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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED May 30, 2012 No. 10-60411, consolidated with Case Numbers 10-60413, Lyle W. Cayce 10-60414, 10-60415, 10-60416 Clerk GULF RESTORATION NETWORK, INC.; SIERRA CLUB, INC., Petitioners v. KEN SALAZAR, Secretary of the Department of Interior; WILMA LEWIS, Assistant Secretary, Land and Minerals Management, Department of the Interior; MICHAEL R. BROMWICH, Director, Minerals Management Service, Department of the Interior, Respondents No. 10-60417, consolidated with Case Numbers 10-60468, 10-60475, 10-60483, 10-60488, 10-60489, 10-60491, 10-60496, 10-60499, 10-60500 CENTER FOR BIOLOGICAL DIVERSITY, Petitioner v. KEN SALAZAR, Secretary of the Department of Interior; MICHAEL R. BROMWICH, Director of the Minerals Management Service; MINERALS MANAGEMENT SERVICE, Respondents  Consolidated with 10-60490 CENTER FOR BIOLOGICAL DIVERSITY, SIERRA CLUB, INCORPORATED, Petitioners v. KEN SALAZAR, Secretary of the Department of Interior; MICHAEL R. BROMWICH, Director of the Minerals Management Service; MINERALS MANAGEMENT SERVICE, Respondents Petitions for Review of Orders of the Department of Interior1 Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges. DENNIS, Circuit Judge: On April 20, 2010, BP’s Deepwater Horizon, an oil drilling rig on the outer continental shelf, 50 miles from Louisiana, exploded, causing a three-month long spill of 4.9 million barrels of oil into the Gulf of Mexico. Before and during the oil spill, the Department of the Interior (DOI)2 continued to process mineral 1 Oral argument was heard together in these cases and, because of the “overlapping issues presented . . . , we . . . consolidate them for disposition.” FG Hemisphere Assocs, LLC v. Republique du Congo, 455 F.3d 575, 580 (5th Cir. 2006). 2 The approvals were issued by the Mineral Management Service (MMS), a division of the DOI. In June 2010, MMS was redesignated the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE). See Secretarial Order No. 3302, U.S. Dep’t of the Interior, available at http://www.doi.gov/deepwaterhorizon/loader.cfm?cs Module=security/getfile&PageID=35872. BOEMRE was subsequently divided, on October 1, 2011, into the Bureau of Safety and Environmental Enforcement, the Bureau of Ocean Energy Management, and the Office of Natural Resources Revenue. See Reorganization of Title 30: Bureaus of Safety and Environmental Enforcement and Ocean Energy Management, 76 Fed. Reg. 64432 (Oct. 18, 2011). For simplicity, we will refer to the entity that approved the plans as the “DOI.” 2  Nos. 10-60411 et al. lessees’ applications for approval of plans for exploration and development of new oil wells. The petitioners, the Sierra Club, the Gulf Restoration Network, and the Center for Biological Diversity (the Center), non-profit environmental protection organizations, filed petitions for judicial review in this court challenging sixteen DOI plan approvals, issued between March 29 and May 20, 2010, under the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331-1356a.3 Specifically, the petitioners argue that the DOI’s approvals of the plans violated both the OCSLA and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., because: (1) the DOI failed to consider the BP Deepwater Horizon disaster in approving further deepwater drilling; and (2) the DOI conducted an inadequate review of the plans under NEPA, because it incorrectly applied “categorical exclusions” (from the NEPA requirements of preparing environmental assessments or environmental impact statements) to those plans, which should not have been so excluded because they involved drilling in “relatively untested deep water,” “areas of high biological sensitivity,” “areas of high seismic risk or seismicity,” or “areas of hazardous natural bottom conditions.” As to the second argument, the Center emphasizes that the BP Deepwater Horizon disaster further shows the inherent inadequacy of the DOI’s environmental analyses underlying the categorical exclusions. The petitioners request that we vacate the DOI’s approvals of the sixteen plans and remand the plans to the DOI for further proceedings consistent with OCSLA and NEPA. We conclude that: (1) the petitioners’ OCSLA-based challenges are justiciable, except for four, which have become moot; (2) the DOI’s approval of the exploratory and development plans are subject to judicial review by this court under OCSLA, 43 U.S.C. § 1349(c)(2); (3) the petitioners’ failure to 3 Additionally, several of the companies which submitted the approved plans intervened and are also participating in this appeal. 3  Nos. 10-60411 et al. participate in the administrative proceedings related to the DOI’s approval of the plans as required by § 1349(c)(3) does not oust our jurisdiction because that participation requirement is a non-jurisdictional administrative exhaustion rule; but, (4) the petitioners have not shown sufficient justification for excusing them from that exhaustion requirement in this case. Accordingly, except for four of the petitioners’ petitions for judicial review that are dismissed as moot, the petitioners’ petitions for judicial review are dismissed because of their failure to participate in the administrative proceedings. I. BACKGROUND Congress declared it to be the policy of the United States that “the subsoil and seabed of the outer Continental Shelf [(OCS)] appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in [OCSLA].” 43 U.S.C. § 1332(1). Further, the OCS “is a vital national resource reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.” Id. § 1332(3). The DOI is authorized and required to “administer the provisions of [OCSLA] relating to the leasing of the [OCS]” for mineral exploration and development and to “prescribe such rules and regulations as may be necessary to carry out such provisions.” Id. § 1334(a). The DOI “is authorized to grant to the highest responsible qualified bidder or bidders by competitive bidding, under regulations promulgated in advance, any oil and gas lease on submerged lands of the [OCS].” Id. § 1337(a)(1). Under OCSLA, as amended in 1978, the development of an offshore oil well must be pursued by a lease purchaser or mineral lessee in four distinct administrative stages. See Sec’y of the Interior v. California, 464 U.S. 312, 336-37 (1984). The four stages are: “(1) formulation of a five year leasing plan by the Department of the Interior; (2) lease sales; (3) exploration by the lessees; (4) 4  Nos. 10-60411 et al. development and production. Each stage involves separate regulatory review that may, but need not, conclude in the transfer to lease purchasers of rights to conduct additional activities on the OCS. And each stage includes specific requirements for consultation with Congress, between federal agencies, or with the States.” Id. at 337. The present case involves only the third and fourth stages: exploration and development and production. The first two stages — the five year leasing plan and lease sales — are not at issue here. The Court in Secretary of the Interior described the pertinent exploration and development and production stages as follows: “(3) Exploration. The third stage of OCS planning involves review of more extensive exploration plans submitted to Interior by lessees. 43 U.S.C. § 1340 (1976 ed., Supp. III). Exploration may not proceed until an exploration plan has been approved. A lessee’s plan must include a certification that the proposed activities comply with any applicable state management program developed under [the Coastal Zone Management Act (CZMA)]. OCSLA expressly provides for federal disapproval of a plan that is not consistent with an applicable state management plan unless the Secretary of Commerce finds that the plan is consistent with CZMA goals or in the interest of national security. 43 U.S.C. § 1340(c)(2) (1976 ed., Supp. III). The plan must also be disapproved if it would ‘probably cause serious harm or damage . . . to the marine, coastal, or human environment. . . .’ 43 U.S.C. §§ 1334(a)(2)(A)(i), 1340(c)(1) (1976 ed., Supp. III). If a plan is disapproved for the latter reason, the Secretary may ‘cancel such lease and the lessee shall be entitled to compensation. . . .’ 43 U.S.C. § 1340(c)(1) (1976 ed., Supp. III). . . .” 464 U.S. at 339 (alterations in original). “(4) Development and production. The fourth and final stage is development and production. 43 U.S.C. § 1351 (1976 ed., Supp. III). The lessee must submit another plan to Interior. The Secretary must forward the plan to 5  Nos. 10-60411 et al. the governor of any affected state and, on request, to the local governments of affected states, for comment and review. 43 U.S.C. §§ 1345(a), 1351(a)(3) (1976 ed., Supp. III). Again, the governor’s recommendations must be accepted, and the local governments’ may be accepted, if they strike a reasonable balance between local and national interests. Reasons for accepting or rejecting a governor’s recommendations must be communicated in writing to the governor. 43 U.S.C. § 1345(c) (1976 ed., Supp. III). In addition, the development and production plan must be consistent with the applicable state coastal management program. The State can veto the plan as ‘inconsistent,’ and the veto can be overridden only by the Secretary of Commerce. 43 U.S.C. § 1351(d) (1976 ed., Supp. III). A plan may also be disapproved if it would ‘probably cause serious harm or damage . . . to the marine, coastal or human environments.’ 43 U.S.C. § 1351(h)(1)(D)(i) (1976 ed., Supp. III). If a plan is disapproved for the latter reason, the lease may again be cancelled and the lessee is entitled to compensation. 43 U.S.C. § 1351(h)(2)(C) (1976 ed., Supp. III).” 464 U.S. at 340 (alterations in original). “Congress has thus taken pains to separate the various federal decisions involved in formulating a leasing program, conducting lease sales, authorizing exploration, and allowing development and production. Since 1978, the purchase of an OCS lease, standing alone, entails no right to explore, develop, or produce oil and gas resources on the OCS. The first two stages are not subject to consistency review; instead, input from State governors and local governments is solicited by the Secretary of Interior. The last two stages invite further input from governors or local governments, but also require formal consistency review. States with approved CZMA plans retain considerable authority to veto inconsistent exploration or development and production plans put forward in those latter stages. The stated reason for this four part division was to forestall premature litigation regarding adverse environmental effects that all agree will 6  Nos. 10-60411 et al. flow, if at all, only from the latter stages of OCS exploration and production.” Id. at 340-341 (footnote omitted). II. JURISDICTION A. Standing and Mootness “Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’ and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750 (1984). “All of the doctrines that cluster about Article III — not only standing but mootness, ripeness, political question, and the like — relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.” Id. (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178–1179 (D.C. Cir. 1983) (Bork, J., concurring) (internal quotation marks omitted)). “The Art[icle] III doctrine that requires a litigant to have ‘standing’ to invoke the power of a federal court is perhaps the most important of these doctrines.” Id. Accordingly, before we reach the merits of any claim, we must first assure ourselves that the petitioners have standing to bring their claims and that the claims are not moot. 1. The petitioners have standing to proceed in this case. The DOI and the intervenors do not contend otherwise. The standard for organizational standing is as follows: An association has standing to bring a suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members. Texans United for a Safe Econ. Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789, 792 (5th Cir. 2000) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977); Friends of the Earth, Inc. v. Chevron Chem. Co., 129 7  Nos. 10-60411 et al. F.3d 826, 827-28 (5th Cir. 1997)). The individual members of an organization have standing to sue in their own right if “(1) they have suffered an actual or threatened injury; (2) the injury is ‘fairly traceable’ to the defendant’s action; and (3) the injury will likely be redressed if the plaintiffs prevail in the lawsuit.” Id. at 792 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Friends of the Earth, Inc. v. Crown Cent. Petroleum, 95 F.3d 358, 360 (5th Cir.1996)). Each of the petitioners satisfies the requirements for organizational standing. First, their individual members have standing to sue in their own right. The organizations have submitted declarations and affidavits from their members, describing their research, economic, recreational, and esthetic interests in the Gulf of Mexico and the surrounding area, including its wildlife, ecosystems, coastal lines, and beaches. For instance, one member is a photographer who specializes in conservation photography, and whose subject matter would be impaired by damage to the area. Another member owns a kayaking tour company and relies on the waters of the Gulf of Mexico being safe in order to continue attracting customers. Threats to these interests, which the petitioners argue are posed by the DOI’s approval of plans for exploration, as well as development and production without properly accounting for their environmental impact, as required by OCSLA and NEPA, are cognizable as injuries for the purposes of standing. See Medina Cnty. Envtl. Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 691 n.4 (5th Cir. 2010) (“[The petitioner’s] contentions as to esthetic and pecuniary harm are in fact sufficient to support standing.” (citing Defenders of Wildlife, 504 U.S. at 563; Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586-87 (5th Cir. 2006))). These injuries are also “fairly traceable” to the DOI’s approvals of various plans regarding deepwater drilling in the Gulf of Mexico, especially because energy companies are required to seek agency approval at each of the four stages of developing an offshore oil well. Cf. Sierra Club v. Glickman, 156 F.3d 606, 8  Nos. 10-60411 et al. 614 (5th Cir. 1998) (explaining that although the United States Department of Agriculture lacked “coercive control” over third party farmers, its ability to offer incentives to those farmers, and the effect of those incentives, were sufficient to show that the petitioners’ injuries were “fairly traceable” to the agency). In a similar context, the District of Columbia Circuit has recognized causation and redressability in a case also brought under OCSLA. See Ctr. for Biological Diversity v. Dep’t of the Interior, 563 F.3d 466, 479 (D.C. Cir. 2009) (“Petitioners have shown, solely for the sake of an Article III standing analysis, that [DOI’s] adoption of an irrationally based Leasing Program [under OCSLA] could cause a substantial increase in the risk to their enjoyment of the animals affected by the offshore drilling, and that our setting aside and remanding of the Leasing Program would redress their harm.”). Additionally, the individual members satisfy the requirement of redressability. In a case such as this, where the petitioners are suing to require the DOI to comply with the procedures of OCSLA and NEPA, they “need not show that the procedural remedy that [they are] requesting will in fact redress [their] injur[ies],” although they “must nonetheless show that there is a possibility that the procedural remedy will redress [their] injur[ies].’” Sierra Club, 156 F.3d at 613. “In order to make this showing, the [petitioners] must show that ‘the procedures in question are designed to protect some threatened concrete interest of [theirs] that is the ultimate basis of [their] standing.’” Id. (quoting Defenders of Wildlife, 504 U.S. at 573 n.8). Here, the interests asserted by the petitioners are among those that both NEPA and OCSLA were designed to protect. See 43 U.S.C. § 1332(3) (“It is hereby declared to be the policy of the United States that . . . the outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition 9  Nos. 10-60411 et al. and other national needs.” (emphasis added)); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 886 (1990) (“We have no doubt that ‘recreational use and aesthetic enjoyment’ are among the sorts of interests those statutes [NEPA and another federal statute] were specifically designed to protect.” (emphasis removed)). In addition to the individual members having standing to bring suit in their own right, the litigation is germane to the purposes of each organization. The Sierra Club is a nonprofit organization that uses litigation and advocacy to promote environmental causes, and has about 57,000 members in states bordering the Gulf of Mexico; the Gulf Restoration Network is a not-for-profit environmental advocacy organization that advocates for protecting and restoring the Gulf of Mexico’s natural resources; and the Center is a nonprofit organization that advocates for environmental causes, especially those linked to preserving a diversity of animal and plant species. Finally, the participation of individual members is not needed to proceed in this litigation; the claims asserted and the relief sought by the petitioners are not particular to any individual. Because neither the claims nor the relief “require[] individualized proof,” they “are thus properly resolved in a group context.” Hunt, 432 U.S. at 344. In sum, we conclude that the petitioners have standing to bring their requests for judicial review. 2. However, four of the sixteen petitions challenging plan approvals are moot. Here, the parties agree that the petitions challenging the following four plans are moot: Plan R-5019 was superseded by another plan, R-5037; Plan N-9503 was cancelled; Plan S-7409 was superseded by another plan, Plan R-5081; and Plan N-9509 was superseded by another plan, Plan R-5089. Thus, we dismiss the petitions for judicial review as to those plans. 10  Nos. 10-60411 et al. We also conclude that a fifth petition, challenging Plan N-9438, is not moot. The DOI submits that this petition is moot because the plan has been cancelled. But as the Center points out, the DOI concedes that there is no written or signed order cancelling this plan. Absent a showing that the plan has actually been cancelled, we conclude that the petition challenging the approval is not moot. B. Appellate Jurisdiction Next, we determine whether we have statutory appellate jurisdiction to judicially review the DOI actions challenged by the petitioners. Subsections 1349(c)(2) and (3) of OCSLA provide: (c) Review of Secretary’s approval of leasing program; review of approval, modification or disapproval of exploration or production plan; persons who may seek review; scope of review; certiorari to Supreme Court .... (2) Any action of the Secretary to approve, require modification of, or disapprove any exploration plan or any development and production plan under this subchapter shall be subject to judicial review only in a United States court of appeals for a circuit in which an affected State is located. (3) The judicial review specified in paragraphs (1) and (2) of this subsection shall be available only to a person who (A) participated in the administrative proceedings related to the actions specified in such paragraphs, (B) is adversely affected or aggrieved by such action, (C) files a petition for review of the Secretary’s action within sixty days after the date of such action, and (D) promptly transmits copies of the petition to the Secretary and to the Attorney General. 43 U.S.C. § 1349(c)(2), (3). 11  Nos. 10-60411 et al. 1. Section 1349(c)(2) The petitioners seek judicial review of the DOI’s approval of nine exploratory plans (EPs) under OCSLA in this court of appeals for the circuit in which the allegedly affected state of Louisiana is included. OCSLA provides that “[a]ny action of the [DOI] to approve. . . any exploration plan . . . shall be subject to judicial review only in a United States court of appeals for a circuit in which an affected State is located.” 43 U.S.C. § 1349(c)(2). Thus, insofar as the DOI’s actions in approving the nine EPs are concerned, § 1349(c)(2) clearly subjects them to our appellate jurisdiction and judicial review, contingent upon other applicable OCSLA conditions. The petitioners also seek judicial review of the DOI’s approval of three “Development Operations Coordination Documents” (DOCDs). It is not obvious without further study that a DOCD approval is subject to our judicial review under § 1349(c)(2) as is the DOI’s approval of any “development and production plan” (DPP) under OCSLA. However, after considering the pertinent OCSLA provisions, their purpose and legislative history, as well as the DOI’s regulations adopted pursuant to OCSLA, we conclude that a DOCD is a modified form of a DPP, the DOI’s approval, modification, or disapproval of which is subject to judicial review only in the courts of appeals. Because most OCS oil and gas development has occurred in the Gulf of Mexico offshore Louisiana and Texas, “[t]he long-standing nature and sheer volume of development led Congress and the regulatory agencies to impose different, generally less stringent requirements on some aspects of operations” in the Western Gulf of Mexico.4 For example, § 1351 of OCSLA exempts leases 4 Robert B. Wiygul, The Structure of Environmental Regulation on the Outer Continental Shelf: Sources, Problems, and the Opportunity for Change, 12 J. Energy Nat. Resources & Envtl. L. 75, 85 (1992). The Gulf of Mexico is divided into the Eastern Gulf of Mexico and the Western Gulf of Mexico. 30 C.F.R. § 250.105 (2011). The Eastern Gulf of Mexico consists of “all OCS areas of the Gulf of Mexico . . . [that] are adjacent to the State of Florida.” Id. The Western Gulf of Mexico consists of “all OCS areas of the Gulf of Mexico except those . . . [which] 12  Nos. 10-60411 et al. in the Gulf of Mexico from some of the detailed requirements imposed by § 1351 in the remainder of the OCS, except those areas offshore of Florida.5 Careful examination of all OCSLA provisions and their legislative history clearly indicates that Congress did not intend, however, to exempt development and production by lessees in the Western Gulf of Mexico from regulation by other provisions of OCSLA and by valid regulations adopted by the DOI. To the contrary, these sources evince a legislative intent to authorize the DOI, by valid regulations, to impose anywhere in the OCS all reasonable development and production conditions it deems necessary to its stewardship of the OCS and administration of OCSLA. See 43 U.S.C. §§ 1334, 1351; H.R. Rep. 95-1474, at 115 (1978) (Conf. Rep.); see also Gulf of Mexico Exemption from Sec. 25 of the Outer Continental Shelf Lands Act, as Amended, 87 Interior Dec. 544 (1980); Oil & Gas & Sulphur Operations in the Outer Continental Shelf, 48 Fed. Reg. 55,565 (Dec. 14, 1983). Pursuant to this authority, the DOI requires that, before conducting any development and production activities on a lease or unit in the Western Gulf of Mexico, the lessee must submit and obtain the DOI’s approval of a Development Operations Coordination Document (DOCD). 30 CFR § 250.201(a) (2011). Elsewhere in the OCS, the DOI requires submission and approval of a Development and Production Plan (DPP) before such activities may commence. Id.; see also id. § 250.241 (2011) (a submitted “DPP or DOCD must include”: a “[d]escription, objectives, and schedule,” information about “[t]he location and water depth of each of [the lessee’s] proposed wells and production facilities”; a “description of the drilling unit and associated equipment”; a description of the “[p]roduction facilities”; and a “[s]ervice fee”). Moreover, both DOCDs and DPPs are adjacent to the state of Florida.” Id. (emphasis added). 5 See 43 U.S.C. § 1351(l). 13  Nos. 10-60411 et al. must meet the same basic criteria: for either type of plan, the lessee must demonstrate that it “ha[s] planned and [is] prepared to conduct the proposed activities in a manner that: (a) Conforms to OCSLA, applicable implementing regulations, lease provisions and stipulations, and other Federal laws; (b) Is safe; (c) Conforms to sound conservation practices and protects the rights of the lessor; (d) Does not unreasonably interfere with other uses of the OCS, including those involved with national security or defense; and (e) Does not cause undue or serious harm or damage to the human, marine, or coastal environment.” Id. § 250.202 (2011). Similarly, the DOI will disapprove a DPP or DOCD if it determines that because of exceptional geological conditions, exceptional resource values in the marine or coastal environment, or other exceptional circumstances that all of the following apply: (1) Implementing your DPP or DOCD would cause serious harm or damage to life (including fish and other aquatic life), property, any mineral deposits (in areas leased or not leased), the national security or defense, or the marine, coastal, or human environment; (2) The threat of harm or damage will not disappear or decrease to an acceptable extent within a reasonable period of time; and (3) The advantages of disapproving your DPP or DOCD outweigh the advantages of development and production. Id. § 250.271(d) (2011). Moreover, the language used in agency documents also suggests that the DOI views DOCDs essentially as a lesser included form of DPPs. See 53 Fed. Reg. 10596, 10,608-09 (explaining the decision to retain the DOCD requirement under a section entitled “Subpart B—Exploration and Development and Production Plans); Id. at 10,704 (explaining, in promulgating the regulation, that “[a]ny reference in this part to a Development and Production Plan shall be 14  Nos. 10-60411 et al. considered to include the Development Operations Coordination Document used in the western Gulf of Mexico.”). The adoption of the foregoing regulations by the DOI is consistent with the legislative history indicating that Congress, by § 1349(c,) sought to provide a streamlined judicial review of the agency’s approval, modification or disapproval of all plans for exploration as well as development and production, based on the agency’s administrative record. See H.R. Rep. 95-590 at 162 (explaining that § 1349(c) provides for judicial review of a more limited nature by having petitions for review of certain DOI actions proceed directly to the courts of appeals). Pursuant to that purpose and intent, OCSLA provides that the DOI’s actions approving, modifying or disapproving exploration or development and production plans shall be subject to judicial review only by the courts of appeals, 43 U.S.C. § 1349(c)(2); that any such action by the DOI “shall only be subject to review pursuant to the provisions of this subsection, and shall be specifically excluded from citizen suits which are permitted pursuant to [§ 1349(a)],” id. § 1349(c)(4); that the DOI “shall file in the appropriate court the record of any public hearings required by this subchapter and any additional information upon which the [agency] based [its] decision, as required by [28 U.S.C. § 2112],” and that “[s]pecific objections to the action of the [DOI] shall be considered by the court only if the issues upon which such objections are based have been submitted to the [DOI] during the administrative proceedings related to the actions involved,” 43 U.S.C. § 1349(c)(5); and that “[t]he court of appeals conducting a proceeding pursuant to this subsection shall consider the matter under review solely on the record made before the [DOI],” and “[t]he findings of the [DOI], if supported by substantial evidence on the record considered as a whole, shall be conclusive,” id. § 1349(c)(6). For these reasons, we conclude that the DOI’s approval, modification, or disapproval of a DOCD is subject to judicial review by the appropriate court of 15  Nos. 10-60411 et al. appeals in accordance with 43 U.S.C. § 1349(c)(2)-(7). It would conflict with the statutory and administrative purpose and intent to anomalously conclude that the DOI’s approvals, modifications, and disapprovals of DOCDs are not subject to judicial review only in the courts of appeals, in the same manner as are the DOI’s actions with respect to EPs and DPPs. Accordingly, we conclude that we have jurisdiction of the petitioners’ requests for judicial review of the DOI’s approvals of the three DOCDs, as well as its approvals of the nine EPs. 2. Section 1349(c)(3)(A) The DOI and the intervenors contend, however, that our jurisdiction to review the DOI’s approval of any of the nine EPs and three DOCDs is ousted by § 1349(c)(3)(A), which provides that judicial review shall be available only to a person who participated in the administrative proceedings related to the actions specified in § 1349(c)(2), because none of the petitioners participated in any of the proceedings related to the approval of those plans. The petitioners respond that § 1349(c)(3)(A) is not a jurisdictional limitation, but rather is a jurisprudential provision requiring that they exhaust their administrative remedies before seeking judicial review, a requirement from which we should excuse them under the circumstances of this case. We agree with the petitioners that § 1349(c)(3)(A) is a non-jurisdictional, claim-processing or exhaustion requirement; however, because we conclude that the petitioners cannot be excused or excepted from the consequences of their failure to satisfy that provision in this case, their petitions will be dismissed. a. Section 1349(c)(3)(A) is not jurisdictional “‘Jurisdiction’ refers to ‘a court’s adjudicatory authority.’” Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243 (2010) (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). “Accordingly, the term ‘jurisdictional’ properly applies only to ‘prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction)’ implicating that authority.” [Kontrick, 16  Nos. 10-60411 et al. 540 U.S. at 455]; see also Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89 (1998) (‘subject-matter jurisdiction’ refers to ‘the courts’ statutory or’ constitutional power to adjudicate the case’ (emphasis in original)); Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994) (‘[J]urisdictional statutes “speak to the power of the court rather than to the rights or obligations of the parties”’ (quoting Republic Nat. Bank of Miami v. United States, 506 U.S. 80, 100 (1992) ([Thomas], J., concurring))).” Reed Elsevier, 130 S. Ct. at 1243. “In light of the important distinctions between jurisdictional prescriptions and claim-processing rules,” id. at 1244, the Supreme Court has “encouraged federal courts and litigants to ‘facilitat[e]’ clarity by using the term ‘jurisdictional’ only when it is apposite,” id. (quoting Kontrick, 540 U.S. at 455) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). In Arbaugh, the Supreme Court explained its approach to distinguishing jurisdictional prescriptions from other requirements, such as claims-processing rules: If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character. Arbaugh, 546 U.S. at 515-16 (citation and footnote omitted). “The plaintiff in Arbaugh brought a claim under Title VII of the Civil Rights Act of 1964, which makes it unlawful ‘for an employer . . . to discriminate,’ inter alia, on the basis of sex. Reed Elsevier. 130 S. Ct. at 1244 (quoting 42 U.S.C. § 2000e-2(a)(1)). “But employees can bring Title VII claims only against employers that have ‘fifteen or more employees.’” Id. (quoting 42 U.S.C. § 2000e(b)). The question in Arbaugh was “whether that employee numerosity requirement ‘affects federal-court subject-matter jurisdiction or, instead, delineates a substantive ingredient of a Title VII claim for relief.’” Id. 17  Nos. 10-60411 et al. (quoting Arbaugh, 546 U.S. at 503). The Supreme Court concluded that “it does the latter.” Id. The Arbaugh Court’s “holding turned principally on [its] examination of the text of § 2000e(b), the section in which Title VII’s numerosity requirement appears. Section 2000e(b) does not ‘clearly stat[e]’ that the employee numerosity threshold on Title VII’s scope ‘count[s] as jurisdictional.’” Id. (second and third alterations in original) (quoting Arbaugh, 546 U.S. at 515-16 & n.11). “And nothing in [the Court’s] prior Title VII cases compelled the conclusion that even though the numerosity requirement lacks a clear jurisdictional label, it nonetheless imposed a jurisdictional limit.” Id. (citing Arbaugh, 546 U.S. at 511- 13). “Similarly, § 2000e(b)’s text and structure did not demonstrate that Congress ‘rank[ed]’ that requirement as jurisdictional.” Id. (alteration in original) (citing Arbaugh, 546 U.S. at 513-16). The Court noted that “the employee numerosity requirement is located in a provision ‘separate’ from § 2000e-5(f)(3), Title VII’s jurisdiction-granting section, distinguishing it from the ‘amount-in-controversy threshold ingredient of subject-matter jurisdiction . . . in diversity-of-jurisdiction under 28 U.S.C. § 1332. Id. (alteration in original) (quoting Arbaugh, 546 U.S. at 514-15). The Court concluded that “the numerosity requirement could not fairly be read to ‘speak in jurisdictional terms or in any way refer to the jurisdiction of the district courts.’” Id. (quoting Arbaugh, 546 U.S. at 515, in turn quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982)) (some internal quotation marks omitted). Therefore, the Court “‘refrain[ed] from’ construing the numerosity requirement to ‘constric[t] § 1331 or Title VII’s jurisdictional provision.’” Id. (alterations in original) (quoting Arbaugh, 546 U.S. at 515) (internal quotation marks omitted). Following the Supreme Court’s instruction, we “now apply this same approach,” id., to § 1349(c)(3)(A), which states: 18  Nos. 10-60411 et al. The judicial review specified in paragraphs (1) and (2) of this subsection shall be available only to a person who (A) participated in the administrative proceedings related to the actions specified in such paragraphs . . . . Considering first whether § 1349(c)(3)(A) “clearly states” that its participation requirement is “jurisdictional,” see Arbaugh, 546 U.S. at 515, we conclude that it clearly does not. Additionally, § 1349(c)(3)(A)’s participation requirement, “like Title VII’s numerosity requirement, is located in a provision ‘separate’ from those granting federal courts subject-matter jurisdiction over . . . claims.” Reed Elsevier, 130 S. Ct. at 1245-46 (quoting Arbaugh, 546 U.S. at 514-15). Federal courts of appeals have subject-matter jurisdiction to review the DOI’s approval, modification, or disapproval of plans submitted at the exploration or development and production stage. 43 U.S.C. § 1349(c)(2). But § 1349(c)(2) does not “condition its jurisdictional grant,” see id. at 1246, on whether a person seeking such judicial review has participated in the administrative proceedings related to the challenged DOI action. See Reed Elsevier, 130 S. Ct. at 1246 (citing Arbaugh, 546 U.S. at 515, for the proposition that ““Title VII’s jurisdictional provision’” does not “‘specif[y] any threshold ingredient akin to 28 U.S.C. § 1332’s monetary floor.’”). And, as in Reed Elsevier, “[n]or does any other factor suggest that [§ 1349(c)(3)(A)’s participation requirement] can be read to ‘speak in jurisdictional terms or refer in any way to the jurisdiction of the’ federal courts.’” See id. (quoting Arbaugh, 546 U.S. at 515, in turn quoting Zipes, 455 U.S. at 394) (internal quotation marks omitted). “A statutory condition that requires a party to take some action before filing a lawsuit is not automatically “‘a jurisdictional prerequisite to suit.’” Id. (quoting Zipes, 455 U.S. at 393). “Rather, the jurisdictional analysis must focus on the ‘legal character’ of the requirement, which must be discerned by looking to the condition’s text, context, and relevant historical treatment.” id. (citations omitted) (quoting Zipes, 455 U.S. at 395). The 19  Nos. 10-60411 et al. Court “similarly ha[s] treated as nonjurisdictional other types of threshold requirements that claimants must complete, or exhaust, before filing a lawsuit.” Id. at 1246-47.6 “Plainly read, Arbaugh and [the Court’s other precedents] point to the conclusion that [§1349(c)(3)(A)] is nonjurisdictional.” See id. at 1251 (Ginsburg, J., concurring in part and concurring in the judgment). Similar to other provisions that the Supreme Court has concluded are nonjurisdictional, § 1349(c)(3)(A) “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the federal courts.” See id. As in Reed Elsevier, we determine that “Arbaugh’s ‘readily administrable bright line’ is therefore controlling,” id., and that §1349(c)(3)(A) is nonjurisdictional.7 6 See also id. at 1247 n. 6 (citing Jones v. Bock, 549 U.S. 199, 211 (2007), as “treating the administrative exhaustion requirement of the Prison Litigation Reform Act of 1995 (PLRA) — which states that no action shall be brought with respect to prison conditions under § 1983 of this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted,’ 42 U.S.C. § 1997e(a) — as an affirmative defense[, rather than a jurisdictional requirement,] even though ‘[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court’)” (first and third alterations in original), and Woodford v. Ngo, 548 U.S. 81, 93 (2006), for the same). Furthermore, insofar as the §1349(c)(3)(A) participation requirement establishes an affirmative defense, it is clear that in this case the DOI and the intervenors did not waive or forfeit that defense, but raised it timely and fully at the first opportunity in this court. See Kontrick, 540 U.S. at 459-60 (holding that debtor forfeited right to rely on affirmative defense where he did not raise it before the bankruptcy court reached the merits of the creditor’s objection). 7 We note that under this court’s precedents, we would reach the same conclusion that § 1349(c)(3)(A) is not jurisdictional. As we have explained, “one important factor in deciding whether [a statutory requirement is jurisdictional] is whether the statute explicitly mentions and deprives federal courts of jurisdiction if administrative remedies are not exhausted.” Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 605 (5th Cir. 2007). If the statute explicitly mentions and deprives federal courts of jurisdiction unless the statutory requirement is met, the statute is jurisdictional. Id. In contrast, where the statute “focuses on the individual litigant and does not expressly deprive the courts of jurisdiction if the individual litigant fails to exhaust administrative remedies,” it is jurisprudential rather than jurisdictional. Id. at 605-06. Here, the provision states that “judicial review . . . shall be available only to a person who participated in the administrative proceedings . . . .” 43 U.S.C. § 1349(c)(3)(A). This language clearly focuses on individual litigants and what they must do to obtain judicial review, rather than courts and their jurisdiction. See Dawson Farms, 504 20  Nos. 10-60411 et al. b. Excuse for failure to participate The petitioners argue that because §1349(c)(3)(A) is nonjurisdictional, this court can and should, under the circumstances here, find an exception or excuse for their failure to participate in the administrative proceedings, vacate the DOI’s approval of the plans involved, and remand the plans to the DOI for further proceedings. In support of this argument, the petitioners contend that the DOI, which used its agency website and Office of Public Information to make the public versions of EPs and DOCDs available to the public, placed the information in an obscure location on its website, making it difficult to find. Moreover, they submit, for some of the plans, the DOI placed the public versions on the website in an untimely manner. Worse, they contend, for some plans, the DOI did not make the public versions available at all, either on its website or elsewhere. “Under ordinary principles of administrative law a reviewing court will not consider arguments that a party failed to raise in timely fashion before an administrative agency.” Sims v. Apfel, 530 U.S. 103, 114-15 (2000) (Breyer, J., dissenting) (citing United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37 (1952); Unemployment Compensation Comm’n of Alaska v. Aragon, 329 U.S. 143, 155 (1946); Hormel v. Helvering, 312 U.S. 552, 556-57 (1941); 2 K. Davis & R. Pierce, Administrative Law Treatise § 15.8, pp. 341-44 (3d ed. 1994)). Furthermore, the Supreme Court, in Sims, unanimously agreed that “in most cases, an issue not presented to an administrative decisonmaker cannot be argued for the first time in federal court.” Id. at 112 (O’Connor, J., concurring in part and concurring in the judgment) (“On this underlying principle of administrative law, the Court is unanimous.”) (citing the majority and the dissent). “As the Court explained long ago: F.3d at 605-06. 21  Nos. 10-60411 et al. ‘[O]rderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts. . . . [C]ourts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.’ Id. at 115 (Breyer, J., dissenting ) (quoting L.A. Tucker Truck Lines, 344 U.S. at 37). This ordinary rule has exceptions, but is especially important when made mandatory by a specific statute requiring exhaustion of remedies or issues. See, e.g., Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the [Prison Litigation Reform Act, as provided for by 42 U.S.C. § 1997e(a)].”); Rafeedie v. I.N.S., 880 F.2d 506 (D.C. Cir. 1989) (Ginsburg, J., concurring) (“As I see it, a statutory exhaustion requirement, unless Congress explicitly declares otherwise, does not impose an absolute, unwaivable limitation on judicial review; instead, it sets a condition that may be excused when insistence on exhaustion would threaten grave harm to the party seeking review and would not sensibly serve the purposes Congress envisioned in establishing that condition. In other words, a statutory exhaustion requirement ordinarily functions as a tighter restraint than the judge-made rule, but is not an utterly unbreachable barrier.”); see also Henderson v. Shinseki, 131 S. Ct. 1197, 1206 (2011) (explaining that although “the deadline for filing a notice of appeal with the Veterans Court does not have jurisdictional attributes . . . . [it] is nevertheless an important procedural rule,” and remanding for consideration of “[w]hether this case falls within any exception to the rule”). Section 1349(c)(3)(A), the judicial review provision applicable here, specifically states that judicial review “shall be available only to a person who participated in the administrative proceedings related to the actions” of the DOI about which he or she complains. 43 U.S.C. § 1349(c)(3)(A). Moreover, § 1349(c) further explicitly defines the exhaustion requirement as well as the scope and 22  Nos. 10-60411 et al. limits of our judicial review by providing that: the DOI’s actions “shall only be subject to review pursuant to the provisions of this subsection, and shall be specifically excluded from citizen suits which are permitted pursuant to subsection (a) of this section,” id. § 1349(c)(4); “[s]pecific objections to the action of the [DOI] shall be considered by the court only if the issues upon which such objections are based have been submitted to the [DOI] during the administrative proceedings related to the actions involved,” id. §1349(c)(5); and “[t]he court of appeals conducting a proceeding pursuant to this subsection shall consider the matter under review solely on the record made before the [DOI],” id. § 1349(c)(6). The petitioners have not argued or shown that any “established exception” to this explicitly defined statutory “exhaustion” or “waiver” rule applies. Sims, 530 U.S. at 115 (Breyer, J., dissenting); see, e.g., Bethesda Hospital Ass’n v. Bowen, 485 U.S. 399, 406-07 (1988) (exhaustion would be futile); Mathews v. Eldridge, 424 U.S. 319, 329, n. 10 (1976) (petitioner brings constitutional claims). This court has also explained that “exceptions [to administrative exhaustion] apply . . . only in extraordinary circumstances” and that “[t]here are limited bases for excusing administrative exhaustion.” Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 606 (5th Cir. 2007) (quoting Cent. States Se. & Sw. Areas Pension Fund v. T.I.M.E.-DC, Inc., 826 F.2d 320, 329 (5th Cir. 1987)) (internal quotation marks omitted)). Traditional circumstances in which courts have excused a claimant’s failure to exhaust administrative remedies include situations in which (1) the unexhausted administrative remedy would be plainly inadequate, (2) the claimant has made a constitutional challenge that would remain standing after exhaustion of the administrative remedy, (3) the adequacy of the administrative remedy is essentially coextensive with the merits of the claim (e.g., the claimant contends that the administrative process itself is unlawful), and (4) exhaustion of administrative remedies would be futile because the administrative agency will clearly reject the claim. 23  Nos. 10-60411 et al. Id. (quoting Taylor v. U.S. Treasury Dep’t., 127 F.3d 470, 477 (5th Cir. 1997)) (internal quotation marks omitted). A court may also excuse the failure to exhaust where “irreparable injury will result absent immediate judicial review.” Id.; see also Ace Prop. & Cas. Ins. Co., 440 F.3d 992, 1000 (8th Cir. 2006) (“A party may be excused from exhausting administrative remedies . . . if exhaustion would cause irreparable harm . . . .”). Rather than attempting to show that the present case falls within an “established exception,” the petitioners argue that the circumstances of this case call upon us to recognize a new exception: They contend that their failures to participate in the administrative proceedings were caused by the DOI’s untimely, “obscure” and “difficult to find” postings of the public versions of the plans on the internet; and that they therefore should be excused from the statutory requirement that they must have participated in the proceedings in order to challenge the DOI’s approvals of the plans and to subject them to judicial review. Assuming, without deciding, that we have the authority to recognize such an exception or excuse, we will not do so in this case because the petitioners have not demonstrated that their failure to participate in the administrative proceedings was caused by the DOI’s actions or omissions. In response to the petitioners’ claims, we asked the parties to submit supplemental letter briefs concerning (1) what information, especially public versions of plans, is made available in the agency’s Office of Public Information; (2) when that information is made available; and (3) how one accesses the office and the information it makes available. In response, the agency attached to its initial letter brief the declaration of Michele Daigle, the agency Chief of the Office of Information Management Services for the Gulf of Mexico Region. Ms. Daigle stated in her declaration that: The Office of Public Information [OPI] is located in . . . New Orleans, Louisiana and has operating hours of 8:00 a.m. to 4:00 p.m., Monday through Friday. Four full-time employees work in the 24  Nos. 10-60411 et al. OPI and provide help, service, and information to members of the public who are free to access the OPI during its operating hours. The OPI is equipped with three computers, each with a dedicated printer, and three copy machines which are available for the public’s use. Ms. Daigle explained that “[t]he three computers in the OPI can be used by the public to access the [agency] website,” and thus to access documents made available on that website, but that “[i]f . . . members of the public need assistance in accessing the documents, OPI employees are available to help them. OPI employees can also be reached by telephone . . . , if members of the public need off-site assistance.” Additionally, Ms. Daigle provided this court with a chart regarding the plans at issue.8 Plan Control Date Public Version of Date of Approval Number9 Plan Was Posted on Agency Website S-7409 4/21/2010 4/27/2010 S-7399 4/21/2010 4/16/2010 N-9481 1/29/2010 4/1/2010 N-9483 1/29/2010 3/30/2010 S-7387 2/25/2010 3/29/2010 R-5019 not posted pursuant to 30 3/31/2010 C.F.R. § 250.285(c) (2011) 8 We recognize that in this section, we are dealing only with the remaining twelve plans which are not moot. However, we have included information regarding all sixteen plans, in order to provide a complete picture. 9 Plans beginning with “N” are initial plans; those beginning with “R” are revised plans; and those beginning with “S” are supplemental plans. 25  Nos. 10-60411 et al. R-5021 not posted pursuant to 30 5/3/2010 C.F.R. § 250.285(c) (2011) R-5037 not posted pursuant to 30 4/21/2010 C.F.R. § 250.285(c) (2011) S-7391 3/9/2010 4/29/2010 S-7402 4/23/2010 5/14/2010 S-7408 4/21/2010 4/21/2010 S-7413 4/23/2010 4/23/2010 N-9438 10/1/2009 5/18/2010 N-9503 3/31/2010 4/21/2010 N-9507 3/31/2010 4/26/2010 N-9509 4/6/2010 5/20/2010 Ms. Daigle said that the public versions of plans are posted in the following manner: in addition to submitting “proprietary copies of its EP, DPP, or DOCD,” a company seeking agency approval must also submit “eight copies of such documents for public distribution.” The agency then makes the plans available in a database on its website, the Public Information Data System. However, “supplemental EPs, DPPs, and DOCDs,” (emphasis added) as well as “revised EPs, DPPs, and DOCDs,” (emphasis added) are not required to be posted and follow procedures that typically apply to the approval process for EPs, DPPs, and DOCDs, unless the agency “determines [that the plans] are likely to result in a significant change in the impacts previously identified and evaluated” in the initial plan. 30 C.F.R. § 250.285(c) (2011). In this case, Ms. Daigle explained, the agency determined that pursuant to that regulation, certain revised plans were not likely to result in a significant change, and thus did not post the public versions of those plans. 26  Nos. 10-60411 et al. The petitioners do not contest the facts set forth in Ms. Daigle’s declaration or the chart attached. Thus, the petitioners do not contest that the plans were posted on the DOI website and were available through the Office of Public Information as described by Ms. Daigle. The Center, however, argues that the DOI may not “rel[y] on a post hoc” declaration rather than the administrative record for the proposition that it did not post certain revised plans pursuant to 30 C.F.R. § 250.285(c) (2011). However, the authorities that the Center cites do not prevent our considering the parties’ letter briefs in determining whether the DOI’s actions or omissions caused the petitioners’ failure to participate in the administrative proceedings.10 Further, the petitioners have not expressly alleged or argued that they actually tried without success to access the plans at issue on the DOI website, or through visits or communications with personnel at the DOI’s Office of Public Information. Also, computer searches by this court’s attorneys after this case was submitted indicate that a reasonably qualified attorney or other researcher should have been able to find public versions of plans on the DOI’s website containing information about particular plans pending before the DOI. 10 Matter of Bell Petroleum Services, Inc., 3 F.3d 899 (5th Cir. 1993), dealt with the review of an agency action on its merits, and in that context the court explained that it would “not accept the [agency’s] post-hoc rationalizations in justification of its decision.” Id. at 905. Here, we are not reviewing the merits of the DOI’s agency actions in approving EPs and DOCDs. At this juncture, assuming arguendo that we could recognize an exception or excuse from §1349(c)(3)(A)’s provision that judicial review shall be available only to a person who participated in the administrative proceedings, we are considering whether the petitioners would be entitled to such an excuse or exception. In Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986) the Court referred to the “strong presumption that Congress intends judicial review of administrative action,” id. at 670, in holding that in neither 42 U.S.C. § 1395ff (1982 ed. and Supp. II) nor § 1395ii (1982 ed., Supp. II), had Congress barred judicial review of regulations promulgated under Part B of the Medicare program. That presumption does not prevent Congress from adopting rules requiring exhaustion of administrative remedies before a litigant may seek judicial review of an agency’s actions. See, e.g., Henderson v. Shinseki, 131 S.Ct. 1197, 1206 (2011) (explaining that although “the deadline for filing a notice of appeal with the Veterans Court does not have jurisdictional attributes[,] [t]he 120-day limit is nevertheless an important procedural rule.”). 27  Nos. 10-60411 et al. The DOI’s performance in the proceedings prior to its approval of the plans was by no means flawless. Of the twelve plans dealt with in this section, the DOI approved two on the same day that their public versions were posted on the internet; and in one instance the agency approved the plan before it had been posted. The petitioners’ showing in this case, however, does not persuade us that they would have participated in those proceedings had there been more time between the postings and the approval of the plans. In respect to the clear majority of the plans at issue, there was ample time between the posting and the DOI’s approval of the plan for a diligent interested party to participate in the administrative proceedings. Moreover, the petitioners have failed to offer any evidence or persuasive argument that the DOI’s actions or omissions, rather than their own inattention or unpreparedness, caused their failure to participate in any of the administrative proceedings. Consequently, even if we were convinced that we have equitable powers to create an exception to § 1349(c)(3)’s mandatory statutory requirement that judicial review shall be available only to a person who participated in the administrative proceedings, we conclude that the petitioners have not shown that they would be entitled to such an excuse from the rule in this case. The petitioners’ reliance on Bowen v. City of New York, 476 U.S. 467 (1986), Consolidated Bearings Co. v. United States, 348 F.3d 997 (Fed. Cir. 2003), and Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 550 (D.C. Cir. 1983) is misplaced. None of these precedents controls our decision here. In Bowen, the Supreme Court held that the application of an illegal, secret, internal policy by the Secretary of Health and Human Services in adjudicating Social Security Act claims equitably tolled the limitations periods for seeking judicial review and waived the exhaustion of administrative remedies. Id. at 480-86. Moreover, the Court upheld the district and appellate 28  Nos. 10-60411 et al. courts’ finding that the harm caused by the wrongful denials of disability claims was irreparable. Id. at 484. The Court stated: “These claimants stand on a different footing from one arguing merely that an agency incorrectly applied its regulation. Rather, the District Court found a systemwide, unrevealed policy that was inconsistent in critically important ways with established regulations.” Id. at 485. In the present case, the petitioners have made no showing that the DOI applied an illegal, clandestine, internal policy, such as the district court in Bowen found that the agency there had pursued after a seven day trial. Instead, the petitioners present legal argument only, viz., in effect, that the agency incorrectly applied its regulation. As the Supreme Court in Bowen indicated, that is not a unique situation that justifies a court in tolling limitations periods or waiving statutory exhaustion of remedy requirements. Moreover, the petitioners do not even contend that the well-established irreparable injury exception to the requirement to exhaust administrative remedies applies in this case. In Consolidated Bearings, the Federal Circuit rejected the government’s argument that Consolidated had failed to exhaust its administrative remedies, stating that the “record in this case does not disclose any statutory or regulatory provision that allows a party to challenge the manner in which [the agency] implements the final results of an administrative review,” and, therefore, “[w]ithout an administrative procedure to exhaust, this court holds that Consolidated did not violate the exhaustion doctrine.” 348 F.3d at 1004. Contrary to the petitioners’ argument, however, neither Consolidated Bearing’s holding nor its language is applicable to the present case. Here, 43 U.S.C. § 1349 sets forth the statutory provisions that allow litigants to subject the DOI’s approval of exploration plans and development and production plans to judicial review, § 1349(c)(2), and the rule that requires that they must first exhaust their 29  Nos. 10-60411 et al. administrative remedies by participating in the administrative proceedings related to the DOI’s actions which they seek to challenge, § 1349(c)(3). Thus, unlike the situation in Consolidated Bearings, here there was a statutory vehicle by which the petitioners could have challenged the DOI’s actions if they had met the statutory requirement of exhaustion of remedies by participating in the administrative proceedings. And, as explained above, the agency had a system for placing public versions of plans on its website, and provided assistance to those navigating the website via the Office of Public Information. In other words, Consolidated Bearings is the inapposite obverse of the present case and therefore has no bearing here. In Small Refiner Lead Phase-Down Task Force, the District of Columbia Circuit held that, under the Administrative Procedures Act (APA) and the Clean Air Act, which required the EPA to issue a “proposed rule” before issuing a final regulation and to give a detailed explanation of its reasoning at the “proposed rule” stage of a regulation as well as at the final rule stage, the EPA’s regulation was invalid due to the lack of adequate notice given to small refiners affected by the regulation. 705 F.2d at 548-51. That case is clearly inapposite here. The present case does not involve rulemaking at all, much less the stringent rulemaking procedures required by the Clean Air Act or the APA. The petitioners have not shown that, under OCSLA, the DOI’s actions or omissions caused their failure to participate in the administrative proceedings, as required by §1349(c)(3), in order to subject the DOI’s approval of the plans involved here to judicial review. For these reasons we conclude that, if we could recognize an exception to §1349(c)(3)(A)’s requirement that judicial review shall be available only to a person who participated in the pertinent administrative proceeding, the petitioners have not shown that they are entitled to such an exception or excuse in this case. 30  Nos. 10-60411 et al. c. The Center’s letter The Center also argues that a letter dated May 18, 2010, signed by its Oceans Program Director, Miyoko Sakashita, addressed to the Secretary of the Interior, the Director of the Minerals Management Service, and the Gulf of Mexico Regional Director of the MMS, constituted its “participation” in the administrative proceedings involved in this case “to the maximum extent practicable.”11 The letter “urges the Secretary to rescind the Department of Interior’s policy of categorically excluding drilling plans from thorough environmental review under the National Environmental Policy Act (‘NEPA’).” (citing Department of Interior Manual 516 DM 15.4(C)(10)). “Additionally,” the letter further urges, “the Secretary should rescind all approvals of (1) exploration plans (‘EPs’) and (2) Development Operations Coordination Documents (‘DOCDs’) for offshore drilling in the Gulf of Mexico that the Minerals Management service (hereinafter, ‘MMS’ or ‘the Secretary’) categorically excluded pursuant to the Department’s policy and have not yet been implemented.” The letter proceeds to criticize the Secretary’s “policy” and past practices of approving “drilling activities” as “categorically excluded from NEPA review” as “arbitrary when it was adopted.” “Moreover,” the letter states that “in light of the Deepwater Horizon spill, this policy is now wholly untenable. Accordingly the Secretary has violated and continues to violate the spirit and the letter of NEPA.” The letter continues with a detailed discussion of the Gulf of Mexico ecosystem; the emerging effects of the Deepwater Horizon oil spill; the use of categorical exclusions from NEPA review in the Gulf of Mexico; and why, especially “[i]n light of the Deepwater Horizon oil spill,” the categorical exclusion policy and approvals of drilling plans in the Gulf of Mexico under that policy should be rescinded. In its conclusion, the letter states: 11 According to Ms. Sakashita’s declaration, the letter was sent on May 18, 2010 to the named addressees. 31  Nos. 10-60411 et al. The only lawful, responsible course of action open to MMS in light of the Deepwater Horizon disaster and the agency’s scandalous track record is to rescind the categorical exclusion policy as it applies to drilling plans, and rescind all EP and DOCD approvals that have been issued under [categorical exclusions] which have not yet been implemented. These approvals were issued in violation of NEPA, the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. §§1331 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§551 et seq. Under OCSLA, the statute that dictates MMS’s offshore oil and gas exploration and development permitting program, MMS may only permit offshore oil and gas activities that fully comply with NEPA. 43 U.S.C. § 1866(a). Moreover, these activities may only be permitted if they are “subject to environmental safeguards.” 43 U.S.C. § 1332(3). MMS may suspend oil and gas activities when doing so is necessary to conduct environmental analyses or otherwise fulfill NEPA requirements. 30 C.F.R. § 250.172(d); see also id. at 250.172(b) (providing for suspension of operations when “activities pose a threat of serious, irreparable, or immediate harm or damage. . . . includ[ing] a threat to life (including fish and other aquatic life) . . . or the marine, coastal, or human environment.”). In this case, MMS has not only the authority but the irrefutable responsibility to prevent another disaster like the Deepwater Horizon explosion and spill by immediately suspending Gulf of Mexico drilling activities authorized via CEs, rescinding all such approvals, and undertaking thorough NEPA review for all such proposals. (second, third, and fourth alteration in original). Without intimating any view as to the merits of the criticism that the Center levels at the DOI’s approval of EPs and DOCDs in the Gulf of Mexico, we interpret the writing as a thorough condemnation of the DOI’s policy and past practices, and not as an act of participating in any individual ongoing proceeding in which a lessee is seeking the DOI’s approval of an EP or DOCD. The letter does not specify by name or number any particular proposed exploratory or development plan, but instead calls upon the DOI to “rescind” all plans that have been approved and not yet implemented; it does not state that the Center intends or desires to participate in any particular ongoing or anticipated 32  Nos. 10-60411 et al. proceeding; and it does not urge the DOI to disapprove of any EP or DOCD which has not yet been acted upon. Accordingly, we do not think the Center’s letter can fairly be interpreted to amount to participation in the administrative proceedings related to an action by the DOI on a particular EP or DOCD under 43 U.S.C. § 1349(c)(3). CONCLUSION For these reasons, four of the petitioners’ petitions for judicial review are dismissed as moot, and their remaining twelve petitions are dismissed because of their failure to participate in the administrative proceedings. 33 

536 F.2d 759 Gary D. CARPENTER et al., Appellants,v.STATE OF SOUTH DAKOTA et al., Appellees. No. 75-1939. United States Court of Appeals,Eighth Circuit. Submitted April 28, 1976.Decided June 3, 1976. John W. Gridley, III, Sioux Falls, S. D., filed brief, for appellants. William J. Janklow, Atty. Gen., and Peter H. Lieberman, Asst. Atty. Gen., Pierre, S. D., for appellees. Before LAY, STEPHENSON and WEBSTER, Circuit Judges. STEPHENSON, Circuit Judge. 1 Three inmates of the South Dakota Penitentiary appeal from the district court's dismissal of their petition seeking damages and equitable relief.1 Petitioners challenge the prison censorship board's ban on the receipt by prisoners of mail containing sexually explicit material.2 2 The district court dismissed the petition as frivolous, without a hearing and without requiring a response from the defendants. The district court found: 3 The application clearly shows that Plaintiffs were given written notice that certain mail items were being rejected. Petitioners were granted a hearing at which they were present and given an opportunity to be heard. The mail items were rejected on the basis that they constituted a danger to rehabilitation. 4 Petitioners assert that the district court erred in failing to grant them an evidentiary hearing on whether prison officials were justified in refusing to allow prisoners to receive these publications. We disagree. 5 Assuming these materials are not obscene, non-prisoners would clearly have a right to receive the publications. In Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), the Supreme Court observed: 6 It is now well established that the Constitution protects the right to receive information and ideas. "This freedom (of speech and press) . . . necessarily protects the right to receive . . . ." Martin v. City of Struthers, 319 U.S. 141, 143, (63 S.Ct. 862, 87 L.Ed. 1313) (1943); see Griswold v. Connecticut, 381 U.S. 479, 482, (85 S.Ct. 1678, 14 L.Ed.2d 510) (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-308, (85 S.Ct. 1493, 14 L.Ed.2d 398) (1965) (Brennan, J., concurring); cf. Pierce v. Society of Sisters, 268 U.S. 510, (45 S.Ct. 571, 69 L.Ed. 1070) (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U.S. 507, 510, (68 S.Ct. 665, 92 L.Ed. 840) (1948), is fundamental to our free society. 7 394 U.S. at 564, 89 S.Ct. at 1247, 22 L.Ed.2d at 549. It becomes necessary to determine whether petitioners' status as prisoners mandates a different result under the First Amendment. 8 In Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), the Supreme Court stated: 9 We start with the familiar proposition that "(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285 (68 S.Ct. 1049, 92 L.Ed. 1356) (1948). See also Cruz v. Beto, 405 U.S. 319, 321, (92 S.Ct. 1079, 31 L.Ed.2d 263) (1972). In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. 10 417 U.S. 822, 94 S.Ct. 2804, 41 L.Ed.2d 501. 11 Consistent with this general rule, it has been held that a prisoner retains the right to read what he wants unless the state can show a countervailing interest warranting censorship. See Burke v. Levi, 391 F.Supp. 186, 190-91 (E.D.Va.1975); Laaman v. Hancock, 351 F.Supp. 1265, 1267-68 (D.N.H.1972); Sostre v. Otis, 330 F.Supp. 941, 945 (S.D.N.Y.1971); Rowland v. Sigler, 327 F.Supp. 821, 824-25 (D.Neb.), aff'd sub nom., Rowland v. Jones, 452 F.2d 1005 (8th Cir. 1971); Seale v. Manson, 326 F.Supp. 1375, 1382 (D.Conn.1971); Payne v. Whitmore, 325 F.Supp. 1191, 1193 (N.D.Cal.1971); Fortune Society v. McGinnis, 319 F.Supp. 901, 904 (S.D.N.Y.1970). 12 In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Supreme Court held that in order to justify censorship of prisoners' personal correspondence, two requirements must be met: (1) prison officials must show that "censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation;" and (2) "the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved." 416 U.S. at 413, 94 S.Ct. at 1811, 40 L.Ed.2d at 240.3 A number of cases have expressly held that the Martinez standards should be applied to prison censorship of publications. See Gaugh v. Schmidt, 498 F.2d 10 (7th Cir. 1974); Hopkins v. Collins, 18 Crim.L.R. 2318 (D.Md., December 11, 1975); Aikens v. Lash, 390 F.Supp. 663 (N.D.Ind.), modified on other grounds, 514 F.2d 55 (7th Cir. 1975); McCleary v. Kelly, 376 F.Supp. 1186 (M.D.Pa.1974); Gray v. Creamer, 376 F.Supp. 675 (W.D.Pa.1974). 13 Assuming that the Martinez standards apply, censorship of the publications involved here is constitutionally permissible only if it furthers the prison's substantial interests in security, order, or rehabilitation, and no less restrictive means would suffice to protect the prison's interests. The prison officials have the burden of proving that censorship is warranted. 14 This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty. 15 Procunier v. Martinez, supra, 416 U.S. at 414, 94 S.Ct. at 1811, 40 L.Ed.2d at 240. 16 Although the district court did not require a response from the defendants, we are satisfied that petitioners on the face of their complaint and documents attached thereto demonstrated that further proceedings were not required and that the district court was justified in dismissing their complaint. For example, exhibit I, a summary of the board's action attached to the complaint, stated that upon petitioner Bagley's request a hearing was held on April 16, 1975, by the prison board at which Bagley agreed that one of the catalogues, entitled "Marital Aids for Lovers," sent to him by a California mail order house could be withheld. He insisted, however, that he was entitled to receive "The Complete Adult Mail Order Catalogue." The board described the catalogue as containing "pictures of couples in various sexual poses and advertisements for: Lotions for Love, Potions for Power, Jells for Joy, Turn on Mags., Lesbian Lovers, Bondage, Girl Spankings, Lesbian Lovers, Filthy Party Records." 17 The board's decision was stated thereon as follows: 18 The board agrees with the rejection of the material "Aids for Lovers" and the Complete Adult Mail Order Catalogue on the grounds that the material would be detrimental to rehabilitation. 19 The materials would tend to make inmates more unsettled in their surroundings and less capable of availing themselves to the rehabilitation programs. The hearing board could see no literary, educational or moral value in the material. 20 Similarly, exhibit II to petitioners' petition summarizes the hearing on May 1, 1975, and rejection by the board of other materials requested by petitioner Bagley of a similar nature. The board stated: 21 The board agrees with the rejection of the materials. It is felt that the materials would lead to abnormal arousal and tend to lead to deviate sexual behavior on the part of some inmates. 22 Exhibits 3 and IV pertain to the hearing and the board's rejection of materials requested by petitioners Carpenter and Loy. Again the board rejected the material requested in 3 for the reasons: 23 1 They are primarily for prurient reasons. 24 2 The primary purpose of these books is for sexual arousal.3 The literary value of these books is questionable. 25 The board rejected the material in IV upon the grounds that: 26 1 The text is primarily a Buddhist sex manual. 27 2 Many of the pictures constitute pornography and are prurient. 28 3 If the book were released to the inmate, it would not remain in the private library of the inmate. 29 Petitioners do not quarrel with the board's description of the disputed material. The thrust of their complaint is the material does not present a clear and present danger to the penal institution or its security, order and rehabilitation. 30 It is well settled that pro se complaints should be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Although courts are reluctant to interfere with prison administration, regulations and discipline, allegations of First Amendment deprivation must be scrutinized carefully. Generally they are sufficient to call for the offering of supporting evidence. Brown v. Hartness, 485 F.2d 238 (8th Cir. 1973). 31 Here we are satisfied that the face of the petition including petitioners' own exhibits demonstrates the court was warranted in dismissing the petition without requiring further response by the board or the conduct of further hearings. 32 The decision of the board that receipt of the items described in this case would have a detrimental effect upon rehabilitation was well within the discretion of the board and requires no further review by the courts.4 33 Affirmed. 34 LAY, Circuit Judge (dissenting). 35 I respectfully dissent. 36 This case, involving First Amendment rights of state prisoners, was dismissed by the district court without requiring a responsive pleading from prison authorities. Unless the prisoners' pro se pleading can be deemed frivolous, the district court's summary dismissal is contrary to the principle of Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652, 653 (1972), and the prior mandated policy of this court. See Brown v. Hartness, 485 F.2d 238 (8th Cir. 1973); Jones v. Lockhart, 484 F.2d 1192, 1193 (8th Cir. 1973). In Brown we stated: 37 (W)e think that allegations smacking of First Amendment deprivation are sufficient to call for the offering of supporting evidence. 38 485 F.2d at 239. 39 The pleadings demonstrate that the prisoners' claim is far from frivolous. The majority opinion recognizes that "(a)ssuming these materials are not obscene, non-prisoners would clearly have a right to receive the publications," under Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Slip Op. p. ----. Thus, the only possible rationale for banning a prisoner from reading this material on this record is the prison officials' conclusory allegation that the material would be detrimental to rehabilitation. At the very least the complaint places this question in issue, so the district court's summary dismissal can only be sustained if federal courts are bound by the judgment of prison officials. The majority's decision that the federal courts are so bound is a retreat to the archaic "hands off" doctrine and the abandoned idea that prisoners' constitutional rights deserve little or no protection from arbitrary action of prison officials. Equally significant, however, is the callous disregard of the First Amendment rights of all individuals to receive information and ideas. 40 It is not a sufficient justification for prior restraint that these publications relate to sexual matters. In Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498, 1508 (1957), the Supreme Court observed that "sex and obscenity are not synonymous." Unless the material is legally obscene, which can be determined only by the court after viewing the material,1 no rule allows a court to take judicial notice that such material is, as a matter of law, inimical to rehabilitation. Yet this is the effect of our holding today. 41 I agree that courts should show deference to the expertise and judgment of prison officials in the administration of prison affairs. Nevertheless, I had assumed that when basic constitutional rights were involved, it was settled law that courts would not abdicate their responsibility to investigate, upon complaint, whether those rights were being violated. See Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975). 42 Prison officials should be required to demonstrate by substantial evidence that the challenged material will have a detrimental effect upon rehabilitation efforts. I cannot accept their naked assertion that it does. Such unsupported acceptance is in derogation of the Supreme Court's holding in Martinez that First Amendment rights are not dependent upon the personal prejudices of prison officials. Similarly, the decision is contrary to Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975), where this court invalidated a prison rule against long hair. We held that prison officials had not supported by evidence their contention that long hair was detrimental to security and thus that the rule must yield to the First Amendment freedom of religion of Indian prisoners. 43 In Procunier v. Martinez, 416 U.S. 396, 413-14, 94 S.Ct. at 1811, 40 L.Ed.2d at 240 (1974) the Supreme Court suggests that before a prisoner's First Amendment rights may be circumscribed, it is the duty of prison officials to demonstrate that no less restrictive means will safeguard legitimate institutional interests. Illustrative in the present case is a reason given by the prison board for rejecting the material: "If the book were released to the inmate, it would not remain in the private library of the inmate." There is no showing that no less restrictive means could protect the legitimate needs of prison administration. If it could be shown that this material would indeed have an adverse effect upon prisoners other than the addressee, then prison officials could order confiscation if and when the addressee attempted to circulate it to the others. Another alternative might be to require the book to be used only in the prison library. Other similar measures might be feasible. 44 In Rinehart v. Brewer, 491 F.2d 705 (8th Cir. 1974), I observed: 45 If these men, who have obviously found it difficult to live within society's mores, are ever to enjoy life within the law they must learn self control and discipline in an atmosphere where self respect is maintained and the human personality allowed to flourish. This cannot be achieved while the state pursues a policy which requires conformity beyond need. 46 491 F.2d at 707 (dissenting opinion). 47 This observation is apropos here, where we accept circumvention of First Amendment rights based on conclusory assertions of need. 48 If the material is obscene, it can of course be banned from circulation. However, this decision is one for the court, not the prison officials. No decision holds that nonobscene publications may be subject to prior restraint by prison officials without meeting the standards imposed by Martinez. In fact all decided cases reach a contrary result. See Gaugh v. Schmidt, 498 F.2d 10 (7th Cir. 1974); Hopkins v. Collins, 411 F.Supp. 831, 18 Crim.L.R. 2318 (D.Md.1975); Aikens v. Lash, 390 F.Supp. 663 (N.D.Ind.), modified on other grounds, 514 F.2d 55 (7th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3122 (U.S. Sept. 9, 1975) (No. 75-35); McCleary v. Kelly, 376 F.Supp. 1186 (M.D.Pa.1974); Gray v. Creamer, 376 F.Supp. 675 (W.D.Pa.1974). 49 I would reverse and remand for an inquiry into the bases of the prison censorship board's judgment that the challenged material is detrimental to rehabilitation efforts and that total censorship is the least restrictive means of alleviating the problem. 1 Although petitioners' pleading is styled "A petition for a writ of habeas corpus," it states a colorable claim under 42 U.S.C. § 1983. Viewed as such, the claims are not subject to the exhaustion doctrine. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) Petitioners may be entitled to equitable relief, but they have not alleged the bad faith necessary to overcome the immunity of the defendants from damages. Public officials are immune from damages under section 1983 where the alleged wrong arises out of official conduct done in good faith. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Sebastian v. United States, 531 F.2d 900 (8th Cir., 1976). It is clear that the defendants acted pursuant to a district court order establishing censorship guidelines and state regulations adopted in accord with the court order. 2 The censorship board was comprised of three prison officials. Apparently, the procedures followed in this case were taken pursuant to a court order of January 29, 1975, directing the South Dakota Board of Charities and Corrections to adopt censorship policies in accordance with the following guidelines: Penitentiary officials may not censor any publication or portion thereof unless it presents a clear and present danger to security, order and rehabilitation. Notice of censorship or disapproval of any publication shall be given the inmate addressee, who may request a hearing for the purpose of determining the existence of any foregoing governmental interests of security, order or rehabilitation. Appellant's brief at 3. 3 Martinez turned upon the First Amendment rights of persons who correspond with prisoners, not the rights of the prisoners themselves 4 Compare regulations developed by the California Department of Corrections and approved by the district court after the latter held the original regulations unconstitutional. Procunier v. Martinez, supra, 416 U.S. at 416 n.15, 94 S.Ct. at 1812, 40 L.Ed.2d at 241 1 "A reviewing court must, of necessity, look at the context of the material, as well as its content." Kois v. Wisconsin, 408 U.S. 229, 231, 92 S.Ct. 2245, 2246, 33 L.Ed.2d 312, 315 (1972)

495 A.2d 825 (1985) STATE of Maine v. John BARRY. Supreme Judicial Court of Maine. Argued May 2, 1985. Decided July 15, 1985. Michael E. Povich, Dist. Atty., Sophie L. Spurr, Asst. Dist. Atty. (orally), Ellsworth, for plaintiff. *826 Silsby & Silsby, Raymond Williams (orally), Ellsworth, for defendant. Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, GLASSMAN and SCOLNIK, JJ. McKUSICK, Chief Justice. Defendant John Barry appeals his conviction, entered after a jury trial in Superior Court (Hancock County), of the Class A crime of arson. 17-A M.R.S.A. § 802(1)(A) (1983). In addition to asserting the insufficiency of the evidence to tie him to the crime, defendant contends that during trial the prosecutor and the presiding justice made impermissible comments in regard to identification of the accused and that the jury instruction improperly singled him out for comment on his special interest in the outcome of the proceeding. Finding no reversible error, we affirm. I. The standard to be applied to determine whether evidence is sufficient to support a jury's conviction is whether, based on that evidence viewed in the light most favorable to the prosecution, any trier of fact rationally could find beyond a reasonable doubt every element of the offense charged. State v. Lovejoy, 493 A.2d 1035, 1037 (Me.1985). Defendant does not dispute the overwhelming evidence that the fire in his former home was intentionally started. On appeal he contests only the sufficiency of the evidence to prove that it was he who set the fire. At about 7:00 a.m. on February 21, 1982, two passersby noticed a fire on the doorstep of defendant's former home, then unoccupied. As they watched, a man whom the passersby identified at trial as defendant came out of the bushes near the house and assured them that everything was all right. At about 1:20 p.m. on the same day, a neighbor noticed smoke coming out of the house and called the fire department. The firefighters on responding found and extinguished a slow, smoldering fire. At trial a state fire marshal gave his expert opinion that the fire could have been smoldering for several hours. Thus, the jury could reasonably infer that the fire that the passersby saw in the morning was the same one that was extinguished in the early afternoon. The State also presented evidence that defendant was bitter over the loss, through divorce and financial difficulties, of the house that he had largely built with his own hands, thus suggesting a potential motive for the arson. Without the slightest doubt, the evidence of record was sufficient for the jury rationally to decide, as it did, that it was defendant who set the fire. II. Defendant next contends that comments made by the prosecutor and by the judge in the course of the trial were unfairly prejudicial to him. The remarks in question were intended to preserve for the record two witnesses' in-court identification of defendant, and consisted of the prosecutor's statement: "Let the record reflect the witness is referring to the defendant, John Barry," and the presiding justice's similar observation, "[t]he record will reflect the witness has pointed to the defendant, John Barry." Defendant asserts that those two statements improperly "highlighted" the identification testimony in the minds of the jury. At trial, however, defendant failed to object to either of the statements, and so we review the record only for "obvious error affecting substantial rights." State v. True, 438 A.2d 460, 467-69 (Me.1981). We find no error at all in either of the challenged statements, least of all any obvious error. Both were neutral observations that added no force to the in-court identification of defendant; they were reasonably calculated to make a record of the fact that the witnesses had indicated defendant as the person to whom they were referring. The statements made to preserve for the record the in-court identifications were not of the conclusory nature *827 condemned in State v. Guptill, 481 A.2d 772, 774-75 (Me.1984). III. Defendant argues finally that it violated his right to due process of law for the presiding justice, after giving instructions to the jury regarding the credibility of witnesses generally, to reiterate those instructions with respect to defendant only. The justice, having once instructed the jurors with regard to their exclusive role in determining the credibility, bias, interest, prejudice, and so on, of each witness, stated that defendant's testimony should be treated like that of any other witness, and was subject to consideration of his interest in the outcome of the prosecution. The justice also told the jurors that if they believed defendant had knowingly testified falsely as to any material point of fact, the jurors had the right to distrust his testimony in other particulars. The justice had earlier given that same charge in regard to witnesses generally. Jury instructions "must be reviewed as a whole, taking into consideration the total effect created by all the instructions and the potential for juror misunderstanding." State v. Cote, 462 A.2d 487, 490 (Me.1983). Upon reviewing the instructions given in the case at bar and considering them as a whole, we do not find any error. The charge correctly informed the jury of the applicable law and worked no unfair prejudice to defendant. The presiding justice in his charge to the jury made no suggestion that defendant's testimony was false, or that it should be judged by any standard different from that applied to the testimony of any other interested witness. The portion of the charge to which defendant objects was both prefaced with, and followed by, the statement that defendant's testimony should be treated like that of any other witness. The instructions made no specific reference to any evidence in the case, nor did they, by their terms, imply that defendant was not to be believed. The justice repeatedly emphasized to the jurors that they were the sole triers of the facts, that the State bore the burden of proving every element of the crime beyond a reasonable doubt, and that defendant must be accorded the benefit of the presumption of innocence. The presiding justice also made clear to the jury that nothing in the instructions was to be taken as an indication of his opinion regarding defendant's guilt or innocence. In sum, any implication arising from the mere separateness of the statements regarding defendant's credibility that his testimony should be more closely scrutinized than that of other witnesses was overcome by the remaining parts of the charge to the jury and did not result in any unfair prejudice to defendant. See Commonwealth v. Edgerly, 390 Mass. 103, 110, 453 N.E.2d 1211, 1216 (1983) (comment to a jury on the consequences of a criminal defendant's lying in the course of his testimony held not error in context of the whole charge). Appellant thus fails to persuade us that the presiding justice committed any error in instructing the jury in regard to defendant's testimony. We are nonetheless left with the conviction that the kind of instruction challenged here, which unnecessarily singles out the accused for a reiteration of the standards for evaluating his testimony, carries some risk of infringing upon the exclusive factfinding province of the jury, and of making a defendant less likely to exercise his constitutional right to testify on his own behalf. Furthermore, considerations of judicial economy suggest that trial judges should avoid the use of an instruction that adds little, if anything, to the jury's understanding of its task, but risks an appeal in which the Law Court will be required to appraise the net effect of the whole instruction in each particular case. For those reasons, although such an instruction when read in its complete context may well survive attack in most instances, it should be avoided in favor of the customary general instruction applicable to all witnesses. See id.; E. Devitt & C. Blackmar, Federal Jury Practice and Instructions *828 § 17.12, at 549 (1977) ("It is preferable not to single the defendant out by an instruction referring to his interest in the outcome of the case"). See also United States v. Standing Soldier, 538 F.2d 196, 204 (8th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 30 L.Ed.2d 627 (1976); see generally Alexander, Manual of Jury Procedures and Instructions for Maine, comment to instruction 130, at 76 (1985) (avoid special focus instructions when comprehensive general instruction has been given), and cases cited therein. The entry is: Judgment affirmed. All concurring.

Case: 17-50030 Document: 00514130976 Page: 1 Date Filed: 08/24/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-50030 FILED Summary Calendar August 24, 2017 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff-Appellee v. MARCEIVA ALLEN STEVENS, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 7:06-CR-179-1 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Marceiva Allen Stevens appeals the 24-month, above-guidelines sentence imposed following the revocation of his supervised release. For the first time on appeal, he argues that his sentence was procedurally unreasonable because the district court failed to state sufficient reasons in support. He further argues, also for the first time, that his sentence was * 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: 17-50030 Document: 00514130976 Page: 2 Date Filed: 08/24/2017 No. 17-50030 substantively unreasonable because it was greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a). Because Stevens did not object to either the procedural or substantive unreasonableness of the sentence imposed in the district court, review is for plain error only. 1 See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To establish plain error, he must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion to correct the error but will do so only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. If a district court imposes a revocation sentence that falls outside of the range recommended by the policy statements, it must provide “some explanation” for its decision. Whitelaw, 580 F.3d at 261-62. It should articulate reasons that are sufficient to “satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] legal decision making authority.” Rita v. United States, 551 U.S. 338, 356-57 (2007) (quoted in Whitelaw, 580 F.3d at 261). The district court referenced the witness testimony and the allegations in the revocation pleadings to the effect that Stevens, rather than merely consuming alcohol, had engaged in dangerous behavior presenting a public hazard, “whether intentional or not intentional,” and it found the guidelines range to be inadequate to address the circumstances of Stevens’s violation. The district court’s stated reason, though brief, was adequate in light of the 1Stevens concedes that, because he failed to object at the time sentence was imposed, his arguments are subject to plain-error review but seeks to preserve for possible further review the argument that a contemporaneous objection is not required in order to preserve such arguments for appeal. 2  Case: 17-50030 Document: 00514130976 Page: 3 Date Filed: 08/24/2017 No. 17-50030 revocation record as a whole and did not give rise to any clear or obvious procedural error. See Rita, 551 U.S. at 356-57. Stevens’s substantive unreasonableness challenge essentially amounts to a disagreement with the district court's balancing of the § 3553(a) sentencing factors, which we will not reweigh. See United States v. Warren, 720 F.3d 321, 332 & n.2 (5th Cir. 2013). Moreover, we have “routinely affirmed revocation sentences exceeding the advisory range, even where the sentence equals the statutory maximum.” Id. at 332 (quotation marks and citation omitted); see Whitelaw, 580 F.3d at 259, 265. Stevens has failed to show that his revocation sentence is plainly unreasonable or plainly erroneous. See Warren, 720 F.3d at 326, 332-33. Accordingly, the district court’s judgment is AFFIRMED. 3 

873 F.2d 1446 U.S.v.Swanson NO. 89-1098 United States Court of Appeals,Eighth Circuit. FEB 10, 1989 Appeal From: S.D.Iowa 1 DISMISSED.

Order Michigan Supreme Court Lansing, Michigan September 20, 2017 Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack 156066(72) David F. Viviano Richard H. Bernstein Joan L. Larsen MICHAEL RAMSEY and GLENN DOWDY, Kurtis T. Wilder, Plaintiffs-Appellees, Justices SC: 156066 v COA: 329920 Wayne CC: 10-004708-CD LABORERS’ LOCAL 1191, d/b/a ROAD CONSTRUCTION LABORERS OF MICHIGAN LOCAL 1191, and MICHAEL AARON, Defendants-Appellants, and BRUCE RUEDISUELI, Defendant. _________________________________________/ On order of the Chief Justice, the motion of plaintiffs-appellees to extend the time for filing their answer to the application for leave to appeal is GRANTED. The answer submitted on September 15, 2017, is accepted for filing. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. September 20, 2017 Clerk 

949 F.2d 401 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Donald G. WAYMIRE, Plaintiff-Appellant,v.Gary D. MAYNARD; Neal J. Grover, Defendants-Appellees. No. 91-6072. United States Court of Appeals, Tenth Circuit. Nov. 27, 1991. Before STEPHEN H. ANDERSON, BARRETT and BRORBY, Circuit Judges. ORDER AND JUDGMENT* BRORBY, Circuit Judge. 1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. 2 Plaintiff-appellant Donald Waymire appeals from the district court's denial of his Motion for Relief from Judgment or in the Alternative, Leave of Court to Appeal. Appellant originally brought an action against Defendants-appellees pursuant to 42 U.S.C. § 1983, alleging an invasion of privacy and violations of his due process and equal protection rights. Appellees filed a Motion to Dismiss. The district court, construing Appellant's various pleadings liberally as required by Haines v. Kerner, 404 U.S. 519 (1972), dismissed the complaint because it failed to state a claim and denied Appellant's request to amend his complaint. Over eight months later, Appellant filed his motion for relief. Construing it as a motion filed pursuant to Fed.R.Civ.P. 60, the district court denied the motion and denied Appellant's request to appeal. 3 Our review of the district court's denial of a Rule 60 motion is limited to whether the court abused its discretion in making its ruling. See Cox v. Sandia Corp., 941 F.2d 1124, 1125 (10th Cir.1991). "The district court is vested with a great deal of discretion in its decision to grant or deny a Rule 60[ ] motion." Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1445 (10th Cir.1983). Appellant essentially seeks relief from the effect of the court's dismissal of his action and leave to file an amended complaint. Rule 60, however, cannot provide Appellant the second chance he now seeks. The extraordinary relief that Rule 60 provides is not a substitute for appeal, and the district court must consider it with the need for finality of judgments. Id. at 1444. 4 Following our careful review of the record on appeal and the parties' briefs, we conclude that the district court did not abuse its discretion in denying Appellant's motion. Therefore, for substantially the reasons set forth in the district court's Order dated January 2, 1991, the judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED. The mandate shall issue forthwith. * This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

13 So.3d 540 (2009) Gregory JOSEPH, Appellant, v. The STATE of Florida, Appellee. No. 3D08-2699. District Court of Appeal of Florida, Third District. July 8, 2009. *541 Gregory Joseph, in proper person. Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee. Before RAMIREZ, C.J., and GERSTEN, and ROTHENBERG, JJ. PER CURIAM. Gregory Joseph appeals the trial court's order on his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). On consideration of Joseph's motion, we reverse the trial court's denial of the motion and remand this case for further proceedings to either enter a new order attaching documents that conclusively refute Joseph's claim or to otherwise grant appropriate relief. Joseph claims that when he was resentenced on January 12, 2001, the scoresheet which was prepared and filed at that time stated his sentence as 26.8 years, and this was in excess of the maximum under the scoresheet, which had a maximum of 268 months. After spending twelve years in prison, he discovered that the Florida Department of Corrections registered his sentence as a twenty-six year sentence. He subsequently filed a motion to correct this error with the trial court. The trial court denied the motion as insufficient on September 15, 2008, and appended the order only with the 2001 scoresheet and written sentence. Under this Court's decision in Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2006), to deny a motion under Florida Rule of Criminal Procedure 3.800(a), appropriate records must be attached to refute appellant's factual allegations. In this case, the trial court did not append the transcript of the sentencing hearing from January 12, 2001, and that transcript is not in the court file. The transcript of the resentencing might contain an explanation justifying the sentence of 26.8 years, or might show that the sentence imposed of 26.8 years was an inadvertent error. Because the record now before us fails to conclusively refute Joseph's claim, we reverse the order and remand for further proceedings. The trial court must either enter a new order attaching documents, such as the transcript of the resentencing, which conclusively refutes Joseph's claim, or must otherwise grant the appropriate relief. Reversed and remanded.

647 F.2d 174 U. S.v.Taylor 80-1173 UNITED STATES COURT OF APPEALS Ninth Circuit 3/17/81 1 S.D.Cal. AFFIRMED

789 P.2d 304 (1990) STATE of Utah, Plaintiff and Respondent, v. Mark MATUS, Defendant and Appellant. No. 890413-CA. Court of Appeals of Utah. March 20, 1990. Loni F. DeLand (argued), McRae & DeLand, Salt Lake City, for defendant and appellant. Donald J. Eyre (argued), Juab County Atty., Nephi, for plaintiff and respondent. Before Judges GREENWOOD, JACKSON, and ORME. OPINION JACKSON, Judge: In June 1988, defendant Mark Matus was convicted in justice court of driving under the influence, a class B misdemeanor, in violation of Utah Code Ann. § 41-6-44(1) (1988). Matus appealed the justice court judgment to the circuit court and obtained a trial de novo there. See Utah R.Crim.P. 26(13)(a) (codified at Utah Code Ann. § 77-35-26(13)(a) (Supp. 1989), which has been repealed, effective July 1, 1990); Utah Code Ann. § 78-5-14 (1987) (repealed effective July 1, 1989; now codified at Utah Code Ann. § 78-5-120 (Supp. 1989)). After a November 1988 bench trial in circuit court, Matus was convicted of driving under the influence. The judgment and conviction were entered on May 22, 1989. He thereafter filed a notice of appeal in this court, preliminarily contending that Rule 26(13)(a) of the Utah Rules of Criminal Procedure violates the state constitutional guarantee of the right to appeal insofar as it precludes any appeal from the circuit court's judgment in a trial de novo "except when the validity or constitutionality of a *305 statute or ordinance is raised in the justice court." The Utah Supreme Court recently decided this issue adversely to Matus in City of Monticello v. Christensen, 788 P.2d 513 (1990), which affirmed the decision of this court in City of Monticello v. Christensen, 769 P.2d 853 (Utah Ct.App. 1989). The supreme court held that the "right to appeal" guaranteed in article I, section 12 of the Utah Constitution is satisfied by the granting of an appeal from justice court in the form of a trial de novo in circuit court. City of Monticello v. Christensen, 788 P.2d at 516. Furthermore, once a justice court judgment is appealed to circuit court, article I, section 12 and article VIII, section 5 of the state constitution do not entitle a disgruntled party to plenary review on the record of the circuit court's judgment in the de novo proceeding. See id. at 788 P.2d at 517. Therefore, the supreme court concluded, Rule 26(13)(a) satisfies article I, section 12 and article VIII, section 5 of the Utah Constitution. Id. at 788 P.2d at 518. Because Christensen had not raised in the justice court the issue of the validity or constitutionality of the ordinance under which he was charged, this court's dismissal of his appeal from the circuit court judgment for lack of jurisdiction was proper. Id.; see City of Monticello v. Christensen, 769 P.2d at 854. In this case, Matus unsuccessfully contended in the circuit court that failure to grant his motion to amend the information filed against him by deleting the disjunctive charge that he had driven while "under the influence of alcohol" contrary to section 41-6-44 would unconstitutionally subject him to double jeopardy. He also unsuccessfully challenged the admission of his breath test results, based on his argument that there was insufficient evidence to show that the intoxilyzer operator was certified at the time he administered the test, as required by the public safety standards section 41-6-44.3 mandates. The circuit court's rulings against Matus on both points are the reversible errors asserted in his appeal to this court. Even if we assume that either or both of these issues were raised in the justice court because they were raised in the circuit court, see City of Monticello v. Christensen, 769 P.2d at 854, it is apparent that neither involves the validity or constitutionality of an ordinance or statute. Accordingly, this court lacks jurisdiction over Matus's case, and we are precluded from reaching the merits of the issues raised. See id.; Utah R.Crim.P. 26(13)(a); Utah Code Ann. § 77-35-26(13)(a) (Supp. 1989). The appeal is, therefore, dismissed. GREENWOOD and ORME, JJ., concur.

United States Court of Appeals, Fifth Circuit. No. 93-4153. Jimmy WEAVER and Jeanette Weaver, Plaintiffs-Appellants, v. EMPLOYERS UNDERWRITERS, INC., Malcolm Rodrigues, d/b/a Rodrigues Logging, and Lisa Elliott, Defendants-Appellees. Feb. 9, 1994. Appeal from the United States District Court for the Eastern District of Texas. Before VAN GRAAFEILAND,* SMITH, and WIENER, Circuit Judges. JERRY E. SMITH, Circuit Judge: The district court held that certain claims by an independent contractor against his employer were preempted by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461. We reverse. I. Malcolm Rodrigues owned an unincorporated logging business and hired Jimmy Weaver as a "saw hand" to fell timber in certain tracts of land designated to him by Rodrigues. Rodrigues would tell Weaver on what portion of land he was to cut timber, what days he would need to work, and the time of day he should be at work. Weaver (and the other saw hands employed by Rodrigues) made the decisions as to when, where, and how to cut the timber within the tract. When one tract was complete, Rodrigues would assign new tracts for Weaver to cut. Weaver supplied his own tools and transportation to work and hired his son to assist him. Rodrigues paid Weaver per ton of wood cut. Weaver was treated as a subcontractor for federal income tax and social security tax purposes. Rodrigues became a member of a multiemployer benefit plan (the Southeastern Lumbermen's Association Employee Benefit Plan and Trust) that provided certain medical disability benefits to * Circuit Judge of the Second Circuit, sitting by designation. Rodrigues and his employees. Employers Underwriters, Inc. ("Employers"), was the insurance carrier obligated to pay benefits under the plan. An advertising flyer for the Southeastern Lumbermen's Plan reads in part, SOUTHEASTERN LUMBERMEN'S ASSOCIATION EMPLOYEE BENEFIT PLAN AND TRUST FOR EMPLOYEES AND EMPLOYERS, INDEPENDENT OPERATORS, CONTRACTORS & CONTRACT LABOR AND THEIR EMPLOYEES. It is undisputed that, by its terms, the plan covered only "covered employees," a term defined as "a full-time employee (an Employee which works an average of at least 1 hours or more per week)."1 Weaver had worked for Rodrigues only a few months before he was struck and injured by a falling tree. Because Rodrigues's payroll records listed Weaver as an "employee," Employers began paying benefits to Weaver. When Rodrigues later informed Employers that Weaver was not an employee, Employers stopped the benefit payments, then, through one of its adjusters (Lisa Elliott), negotiated a settlement agreement with Weaver whereby Weaver waived his legal claims, with the exception of his claims to medical expenses, in exchange for a lump-sum payment of $2,700. II. Weaver and his wife2 brought this lawsuit against Rodrigues, Employers Underwriters, and Elliott in Texas state court, and the defendants removed. Weaver makes the following claims against one or more of the defendants: (1) violation of the Texas Deceptive Trade Practices Act—Consumer Protection Act (DTPA)3 for false, misleading, and deceptive practices in the course of settling 1 It is uncertain from the appellate record whether the plan in question had been modified especially for Rodrigues or whether each employer was subject to the same provisions. 2 We refer to the plaintiffs simply as "Weaver." 3 TEX.BUS. & COM.CODE ANN. §§ 17.41 to 17.63 (Vernon 1987 & 1994 Supp.). Weaver's claim; (2) violation of the Texas Insurance Code4 for the allegedly gross inadequacy of the settlement offer; (3) constructive fraud by the making of material and false representations that Weaver relied upon during the course of settlement talks; (4) duress in the negotiation of the settlement agreement; (5) bad faith in denying Weaver's right as a third-party beneficiary of the insurance contract; (6) conspiracy to deceive Weaver and secure a settlement and release; (7) negligence in failing to provide a safe workplace and adequate tools; (8) negligence in failing to treat the plaintiffs in go od faith and with fairness; (9) gross negligence; and (10) attorneys' fees based upon the applicable provisions of the Texas Civil Practice and Remedies Code, the Texas Deceptive Trade Practices Act, and the Texas Insurance Code. The district court held that (1) it had subject matter jurisdiction; (2) all of Weaver's claims, except these regarding unsafe working conditions and inadequate equipment,5 were preempted; and (3) Weaver had no standing to bring an ERISA claim. The district court dismissed Weaver's ERISA-preempted causes of action and remanded his claims regarding unsafe working conditions and inadequate equipment. Weaver argues that the Rodrigues benefit plan was intended to cover independent contractors and that the part of the plan intended to cover them was not an ERISA plan.6 Employers argues that the plan was an ERISA plan established and maintained by Rodrigues to provide benefits to employees, that all of Weaver's claims against the plan are preempted by ERISA, and that Weaver does not have standing to sue under ERISA. III. A. There are two types of employee benefit, or ERISA, plans: "employee welfare benefit plans" 4 TEX.INS.CODE ANN. art. 21.21, § 16 (Vernon 1981 & Supp.1994). 5 Such claims include negligence and gross negligence related to unsafe working conditions and inadequate equipment, as well as the claim for attorneys' fees as it relates to these causes of actions. 6 Weaver contends further that a claim that an insurance agent induced an insured to participate in an ERISA plan that did not provide coverage for the insured is not preempted. and "employee pension benefit plans." 29 U.S.C. § 1002(3). A "welfare benefit plan" is any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment. 28 U.S.C. § 1002(1). The district court concluded that the Rodrigues benefit plan was an ERISA plan, applying the two factors set out in Hansen v. Continental Ins. Co., 940 F.2d 971, 976-78 (5th Cir.1991) ((1) whether the plan is excluded from ERISA by Department of Labor regulations and (2) whether the plan is established or maintained by an employer with the purpose of providing benefits to its employees). The district court's finding that the Rodrigues plan was an ERISA plan is a finding of fact, id. at 976, that we review under the clearly erroneous standard. Weaver argues that at least part of the Rodrigues plan is not governed by ERISA because the plan was intended to benefit independent contract ors as well as employees.7 Indeed, at least one court has held that a plan can be divided into ERISA and non-ERISA portions. Kelly v. Blue Cross & Blue Shield, 814 F.Supp. 220, 227-29 (D.R.I.1993) (health insurance contract covering a nonemployee—the company's owner—was not part of company's ERISA plan). If a claim is related to the non-ERISA portion of the plan, arguably it would not be preempted. But Weaver's argument has mixed factual merit. He relies upon Rodrigues's testimony to prove that the plan was intended to cover independent contractors. Rodrigues testified that (1) he intended the plan to cover Weaver and (2) that he considered Weaver to be an independent contractor. On the other hand, Rodrigues sometimes referred to Weaver as an employee, not an independent contractor. Furthermore, the plan covers employees, not independent contractors. Weaver's argument requires us to make a factual reckoning as to whether Rodrigues intended the plan to cover independent contractors. Even if we were to conclude that he did, we would have 7 Weaver's logic is as follows: An ERISA plan exists to the extent that the plan is established or maintained for the purpose of providing benefits to employees (and beneficiaries). See 29 U.S.C. § 1002(1). The Rodrigues plan is intended to benefit Weaver, who is not an employee. Therefore, the Rodrigues plan is not an ERISA plan to the extent it is intended to benefit Weaver. to go further and hold that part of the plan is non-ERISA, despite the district court's finding that the entire plan is an ERISA plan. We then would have to face the issue of whether an employer's intentions alone can create a non-ERISA portion of the plan when the plain language of the plan contradicts his intentions.8 We find it unnecessary to reach Weaver's argument that the plan is not entirely an ERISA plan. Even if the plan is an ERISA plan in its entirety, Weaver's claims are not preempted. Therefore, for the purposes of argument, we accept the finding of the district court that the Rodrigues benefit plan is an ERISA plan. B. The next issue is whether ERISA preempts Weaver's claims.9 The preemption clause in ERISA states that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan...." 29 U.S.C. § 1144(a).10 State law causes of action are barred by § 1144(a) if (1) the state law claims address areas of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan; and (2) the claims directly affect the relationship between the traditional ERISA entities—the employer, the plan and its fiduciaries, and the participants and beneficiaries. Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d 236, 245 (5th Cir.1990) (footnotes omitted). The district court found that the first Memorial Hospital factor was present with respect to all of Weaver's claims except those related to unsafe working conditions and inadequate equipment. The court held that Weaver's claims address an area of exclusive federal concern, i.e., whether a claim under an ERISA EWBP [employee welfare benefit plan] was properly processed and decided, and the peripheral actions of the claims adjuster, employer, and administrator of the plan in processing and 8 The court in Kelly did not face such an issue, as the plan in Kelly expressly covered a non-employee. 814 F.Supp. at 222. 9 Although the existence of an ERISA plan is a necessary requirement for preemption, the converse is not true. The existence of an ERISA plan does not mean that there must be ERISA preemption. 10 The preemption clause contains two express exceptions not applicable here.  deciding the fate of the claim. The district court also held that the second factor was present: Additionally, the Court notes that the claims in this case—all arising out of the manner in which the Weaver's claims for benefits were resolved—directly affect the relationship between the administrator of the plan (Employer's) and the employee. We do not agree that the claims of an independent contractor "directly affect the relationship between the traditional ERISA entities—the employer, the plan and its fiduciaries, and the participants and beneficiaries." Weaver is not a participant in the Rodrigues plan. ERISA defines "participant" as any employee or former employee of an employer, or any member of former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit. 29 U.S.C. § 1002(7). After reviewing the factors listed in Penn v. Howe-Baker Eng'rs, 898 F.2d 1096, 1102 (5th Cir.1990),11 the district court concluded that Weaver was not an employee but an independent contractor. Weaver does not challenge this conclusion on appeal. If Weaver is not an employee, then he is not an ERISA "participant." Nor is Weaver an ERISA "beneficiary." ERISA defines "beneficiary" as "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a 11 These factors are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. Penn, 898 F.2d at 1102 (citing Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 2178-79, 104 L.Ed.2d 811 (1989)). The district court found that Weaver was an independent contractor in light of "Mr. Weaver's right to control the details of his work, provision of his own tools and means of transportation, the skill required of Mr. Weaver, the ability to hire his own assistants, the payment of his own Social Security and federal income tax, the method of payment, and the minimum benefits provided...." benefit thereunder." 29 U.S.C. § 1002(8). The parties agree the Rodrigues plan did not designate Weaver as a beneficiary; therefore, Weaver is not a "beneficiary" within the meaning of ERISA. The claims by a nonparticipant and no nbeneficiary to a plan do not affect the relationship between the traditional ERISA entities. Therefore, such claims are not preempted. Fugarino v. Hartford Life & Accident Ins. Co., 969 F.2d 178, 186 (6th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1401, 122 L.Ed.2d 774 (1993); Madden v. Country Life Ins. Co., 835 F.Supp. 1081, 1087 (N.D.Ill.1993); Kelly, 814 F.Supp. at 230; Sica v. Equitable Life Assurance Soc'y of the United States, 756 F.Supp. 539, 540 (S.D.Fla.1990);12 Dodd v. John Hancock Mut. Life Ins. Co., 688 F.Supp. 564, 568 (E.D.Cal.1988) (dicta); Pierce v. Capitol Life Ins. Co., 806 P.2d 388, 390 (Colo.Ct.App.1990); Turnbow v. Pac. Mut. Life Ins. Co., 765 P.2d 1160, 1162 (Nev.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989); but see Martin v. General Motors Corp., 753 F.Supp. 1347, 1355-58 (E.D.Mich.1991). Employers cites a number of cases for the proposition that claims of breach of fiduciary duty, fraud, breach of duty of good faith, denial of benefits, misrepresentation, breach of contract, etc., are preempted by ERISA. Because these cases involve claims by plan "participants,"13 "beneficiaries,"14 or other parties entitled to standing under ERISA,15 they are inapposite here, where the plaintiff is 12 The court in Sica erroneously cited Penn, 898 F.2d at 1101, for the proposition that an independent contractor can maintain a claim for benefits under state common law. Upon inspection, we find that the Penn case does not stand for such a proposition, and thus we cannot rely upon it for authority. 13 Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (participant); Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236 (5th Cir.1990) (participant); Lee v. E.I. DuPont de Nemours & Co., 894 F.2d 755 (5th Cir.1990) (participants); Ramirez v. Inter-Continental Hotels, 890 F.2d 760 (5th Cir.1989) (participant); Powell v. Chesapeake & Potomac Tel. Co., 780 F.2d 419 (4th Cir.1985), cert. denied, 476 U.S. 1170, 106 S.Ct. 2892, 90 L.Ed.2d 980 (1986) (participant). 14 Hansen v. Continental Ins. Co., 940 F.2d 971 (5th Cir.1991) (wife named as beneficiary); Light v. Blue Cross & Blue Shield, Inc., 790 F.2d 1247 (5th Cir.1986) (participant and his wife, who was presumably a beneficiary). 15 Beaumont Neurological Hosp. v. Humana, Inc., 780 F.Supp. 1134 (E.D.Tex.1991) (assignee of claims of patients, who were presumably participants or beneficiaries). An assignee of a beneficiary has a derivative right of standing under ERISA. Hermann Hosp. v. MEBA Medical & Benefits Plan, 845 F.2d 1286, 1289-90 (5th Cir.1988). none of the above. Our opinion in Hermann Hospital does not militate against this conclusion. We held that a hospital, an assignee of a beneficiary's rights under an ERISA plan, had standing to sue, even though the statute limits standing to plan participants, beneficiaries, fiduciaries, and the Secretary of Labor. See 29 U.S.C. § 1132(a). We also held that the assignee's claims were preempted by ERISA, reasoning as follows: The Supreme Court recently decided that state common law claims for tortious breach of contract, breach of fiduciary duty, and fraud in the inducement, brought by a beneficiary who alleged failure to pay benefits under an ERISA-governed plan were preempted by ERISA.... These cases are controlling, and the [plaintiff's] attempt to distinguish them on the grounds that it is not—as were the plaintiffs in those cases—an enumerated party under § 1132(a), is unconvincing and contradict ory of its position as an assignee. Adopting [the plaintiff's] position would allow parties that lacked standing to sue under ERISA to circumvent its enforcement provisions by filing suit in state courts under state law. Arguably, they could thus obtain advantages denied to parties plaintiff enumerated under § 1132(a). This is an untenable result. 845 F.2d at 1290 (footnote and citations omitted). Our opinion in Hermann Hospital could be read for the proposition that all claims against ERISA plans are preempted by ERISA even though the plaintiffs lack ERISA standing. We do not think the cited passage controls this case. First, the plaintiff in Hermann Hospital did have standing. Id. at 1289-90. Therefore, the cited passage is mere dicta. Second, because the plaintiff in Hermann Hospital stood in the shoes of a beneficiary (through an assignment of the beneficiary's claim), the plaintiff's claim implicated the relationship between the beneficiary and the ERISA plan. By contrast, Weaver does not stand in the shoes of a beneficiary. His claim does not implicate the relationship of a beneficiary and the plan. IV. Because none of Weaver's claims was preempted by ERISA, the district court should have remanded all of the claims to state court without dismissing them. The judgment, accordingly, is REVERSED and REMANDED. 

Cite as 2014 Ark. App. 475 ARKANSAS COURT OF APPEALS DIVISION I No. CV-14-306 VIRGIL DRAKE Opinion Delivered September 17, 2014 APPELLANT APPEAL FROM THE SEBASTIAN V. COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. JV-12-426] ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR HONORABLE MARK HEWETT, CHILD JUDGE APPELLEES AFFIRMED PHILLIP T. WHITEAKER, Judge Virgil Drake appeals from a Sebastian County Circuit Court order terminating his parental rights to his son, C.D. Because this finding was supported by clear and convincing evidence, we affirm. We review termination of parental rights cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). To terminate parental rights, at least one statutory ground must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Repl. 2009); see M.T. v. Ark. Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). Drake concedes that the Department sufficiently established a statutory ground for termination—the prior involuntary termination of his parental rights to other children—and that the child was adoptable. His only challenge to the termination is the court’s determination that potential harm would befall the child if custody was returned to  Cite as 2014 Ark. App. 475 him. Thus, the issue for our consideration is whether the court’s finding that it was in the child’s best interest to terminate parental rights was proved by clear and convincing evidence. M.T., supra. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). As a result, a review of the facts is crucial to our determination. Tammie and Virgil Drake met in 2000 and subsequently married. Three children were born to them during the course of their marriage—B.D., K.D., and C.D.1 This case began in April 2012, when C.D. was taken into emergency custody by the State of Oklahoma shortly after his birth. C.D. was removed after hospital staff advised an Oklahoma child- welfare worker that Tammie had not been providing care for the child, was leaving the baby with nursing staff, and had expressed a fear of being alone with the newborn. At the time of C.D.’s birth, the Arkansas Department of Human Services (DHS) had already initiated dependency-neglect proceedings for K.D. and B.D. In June 2012, the State of Oklahoma found C.D. to be “deprived” under Oklahoma law after the parents failed to appear, and C.D. became a ward of the court. Because of the open, pending case on B.D. and K.D. in 1 Tammie’s parental rights to four other children—K.G., S.G., C.G., and D.G.—were terminated in Nebraska in 1997 and 2002. 2  Cite as 2014 Ark. App. 475 Arkansas, C.D.’s case was transferred by the Oklahoma district court to Sebastian County Circuit Court in July 2012. Upon transfer to Arkansas, the circuit court had two open dependency-neglect cases: one involving B.D. and K.D., and one involving C.D. In both cases, the circuit court addressed the issues of Tammie Drake’s mental health and substance abuse, as well as Virgil’s failure to recognize the risk of danger that Tammie presented to the children. In October 2012, the circuit court entered an order terminating the Drakes’ parental rights to B.D. and K.D.2 In its order, the court noted that Tammie Drake suffered from mental-health and substance-abuse issues; that she failed to remain on her prescribed medication; that she had been provided services to address those issues; and that, despite the services offered, she had been either unwilling or unable to address and correct those issues. As to Virgil, the court noted that Virgil Drake did not recognize that Tammie presented a risk of harm to the juveniles if left in her care, despite being provided appropriate services to educate him. The court further found that Virgil was either unwilling or unable to provide for their safety due to his lack of awareness regarding Tammie’s mental-health and substance-abuse problems as evidenced by his leaving the children with Tammie as the primary caregiver while he worked 16 hours a day. In October 2013, a year after the termination of appellant’s rights to B.D. and K.D., DHS filed a petition for termination of the Drakes’ parental rights to C.D., alleging that 2 The termination to B.D. and K.D. was upheld by this court in Drake v. Arkansas Department of Human Services, 2013 Ark. App. 274, 427 S.W.3d 710. 3  Cite as 2014 Ark. App. 475 Tammie presented a risk of danger to the child due to her mental-health and substance-abuse issues and that Virgil was either unwilling or unable to provide for the child’s safety. After a hearing on the petition in December 2013, the trial court entered an order terminating the Drakes’ parental rights.3 The December 2013 order terminating the Drakes’ parental rights to C.D. mirrored the October 2012 termination order with respect to C.D.’s siblings in several aspects. Like the October 2012 order, the December 2013 order focused, in large part, on Tammie’s ongoing mental-health issues and her failure to adequately follow through on treatment. The court stressed that Tammie’s “extensive, long-standing, and ongoing mental health issues” made Tammie a danger to juveniles placed in her care or supervision and that her failure to comply with her treatment plan in this case paralleled her prior and repeated failure to do so in previous cases, which had resulted in termination of her parental rights as to those juveniles. And, like the October 2012 order, the December 2013 order reiterated Virgil’s inability or unwillingness to acknowledge the danger Tammie posed to the children. After outlining these facts, the trial court found the requisite statutory ground for termination (prior involuntary termination of a sibling) had been proved and, that it would be in C.D.’s best interest to terminate their parental rights. The court found that C.D. was adoptable and that C.D. would be subject to a great risk of potential harm if returned to the custody of either parent. The court found that Tammie Drake continued to suffer from 3 Tammie Drake did not appeal the decision terminating her parental rights and, thus, she is not a party to this appeal. 4  Cite as 2014 Ark. App. 475 extensive, long-standing, and ongoing mental-health issues that make her a danger to C.D. if placed in her care or supervision; that she did not accept her role in what had happened to her children and instead blames others; that Virgil Drake did not recognize that Tammie presented a danger to C.D.; that he was unwilling to provide sufficient protection for juveniles placed in Tammie’s care; and that C.D. was so young that he could not protect himself from the danger that Tammie presented. Accordingly it was in C.D.’s best interest to terminate the Drakes’ parental rights. On appeal, Virgil argues that it was error for the trial court to terminate his parental rights because it was not in C.D.’s best interest to do so. More specifically, Virgil argues that there had been no evidence of a single occasion where Tammie’s current mental-health issues posed a danger to C.D or that Virgil had improperly entrusted C.D. to Tammie’s care. Thus, the trial court erred in determining that there was potential harm in returning C.D. to his care. We disagree. In considering the potential harm caused by returning the child to a parent, the court is not required to find that actual harm would result or to affirmatively identify a potential harm. Welch v. Ark. Dep’t of Human Servs., 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terms. Collins v. Ark. Dep’t of Human Servs., 2013 Ark. App. 90. Additionally, the risk for potential harm is but a factor for the court to consider in its analysis. Carroll v. Ark. Dep’t of Human Servs., 85 Ark. App. 255, 148 S.W.3d 780 (2004). 5  Cite as 2014 Ark. App. 475 The evidence presented to the trial court in this case supports its potential-harm finding. The trial court was entitled to consider the findings contained in the previous termination order as a backdrop to these hearings. The Drakes’ parental rights to C.D.’s siblings had been terminated a little over a year previously. One of the issues upon which the prior termination was based was the danger posed by Tammie’s mental-health issues and Virgil’s denial of that danger. In the case involving C.D., both parents had been offered services, but the court concluded that the previous issues had not yet been resolved. Testimony was then presented at the termination hearing that, while Tammie had been placed on medication for her mental-health issues, she had not attended individual counseling, had not been consistent in attending medical-management meetings, and had at least one outburst with the family service worker that was out of proportion to the circumstances and was of concern. From this evidence, the trial court could properly conclude that Tammie was not successfully managing the very issues that resulted in the prior terminations and a potential threat of harm remained to C.D. as a result. Despite this evidence, and despite having his parental rights to two other children terminated because of the danger Tammie posed, Virgil still continued to assert that Tammie posed no danger to C.D. or any other child and saw no danger in allowing Tammie to be the child’s caregiver. Given C.D.’s age and inability to protect himself if placed in Tammie’s care, it was not clearly erroneous for the trial court to determine that there was a potential threat of harm to C.D. if placed in Virgil’s care. Affirmed. GRUBER and VAUGHT, JJ., agree. Leah Lanford, Arkansas Public Defender Commission, Dependency-Neglect Appellate Division, for appellant. Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee. Chrestman Group, PLLC, by: Keith Chrestman, attorney ad litem for minor children. 6 

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 10-14905 ELEVENTH CIRCUIT Non-Argument Calendar AUGUST 9, 2011 ________________________ JOHN LEY CLERK D.C. Docket No. 4:09-cv-00218-RS-WCS TROY G. AVERA, Plaintiff-Appellant, versus AIRLINE PILOTS ASSOCIATION INTERNATIONAL, AIRLINE PILOTS ASSOCIATION MASTER EXECUTIVE COUNCIL, UAL Corporation and United Airlines, Inc., Defendants-Appellees, UNITED STATES OF AMERICA, Intervenor-Appellee. ________________________ Appeal from the United States District Court for the Northern District of Florida ________________________ (August 9, 2011) Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges. PER CURIAM: Proceeding pro se, Troy G. Avera sued the Airline Pilots Association, International, and the United Airlines Master Executive Council (collectively, “ALPA”) for violations of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621; the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1101; and for breach of the duty of fair representation under the Railway Labor Act, 45 U.S.C. § 151, et seq. Avera also petitioned for a declaratory judgment that the Fair Treatment of Experienced Pilots Act (“FTEPA”), 49 U.S.C. § 44729, and the Federal Aviation Administration’s (“FAA”) “Age 60 Rule,” 14 C.F.R. § 121.383, were unconstitutional. Pursuant to 28 U.S.C. § 2403(a), the United States intervened to defend the constitutionality of the FTEPA. The district court dismissed the ADEA, ERISA, and constitutional claims for failure to state a claim and dismissed the Railway Labor Act claim as barred by the statute of limitations. On appeal, Avera argues that the district court erred by dismissing his complaint because (1) the FTEPA is unconstitutional and could not shield ALPA from liability on his claims, (2) he stated a claim for violations of the ADEA, ERISA, and the Railway Labor Act, and (3) his claims under the Railway Labor Act were 2 timely under the delayed-discovery doctrine. Avera also appeals the district court’s dismissal of his challenge to the Age 60 Rule, but the government argues that the district court lacked jurisdiction over this claim. After thorough review, we agree with the government, and affirm in large part, but vacate and remand the district court’s ruling on the Age 60 Rule. I. “The issue of whether the district court had subject matter jurisdiction over [the] complaint is a question of law subject to de novo review.” Tamiami Partners, Ltd. ex rel. Tamiami Dev. Corp. v. Miccosukee Tribe of Indians of Fla., 177 F.3d 1212, 1222 (11th Cir. 1999). “The constitutionality of a statute is a question of law subject to de novo review.” Cooper v. Dillon, 403 F.3d 1208, 1213 (11th Cir. 2005) (quotation omitted). “A district court’s dismissal for failure to state a claim under Rule 12(b)(6) is reviewed de novo.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). II. As an initial matter, the United States argues that the district court lacked jurisdiction over Avera’s challenge to the Age 60 Rule. We have a special obligation to satisfy ourselves not only that we have jurisdiction over this appeal, but also that the district court had jurisdiction over the various counts of the complaint. Tamiami 3 Partners, 177 F.3d at 1221. “When the lower federal court lacks jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.” Id. (alterations and quotation omitted). Pursuant to 49 U.S.C. § 46110(a): a person disclosing a substantial interest in an order issued by the Secretary of Transportation (or . . . the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part [pertaining to air commerce and safety], [or] part B [pertaining to airport development and noise] . . . may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day. 49 U.S.C. § 46110(a); see also George Kabeller, Inc. v. Busey, 999 F.2d 1417, 1422 (11th Cir. 1993). “[T]he court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary, Under Secretary, or Administrator to conduct further proceedings.” 49 U.S.C. § 46110(c). The term “order” in the statute “has been given expansive instruction.” Green v. Brantley, 981 F.2d 514, 519 (11th Cir. 1993) (quotation omitted). Although the issue has not arisen in this Court, the D.C. Circuit has stated that the statute could encompass “direct 4 review of regulations promulgated through informal notice-and-comment rulemaking.” City of Rochester v. Bond, 603 F.2d 927, 933 n.26 (D.C. Cir. 1979). “Where Congress has provided in the courts of appeals an exclusive forum for the correction of procedural and substantive administrative errors, a plaintiff may not bypass that forum by suing for damages in district court.” Brantley, 981 F.2d at 521. Stated differently, the district court lacks subject matter jurisdiction to consider “an impermissible collateral challenge to [an] agency order.” Id. The FAA is charged with “promot[ing] safe flight of civil aircraft in air commerce by prescribing . . . regulations in the interest of safety for the maximum hours or periods of service of airmen and other employees of air carriers.” 49 U.S.C. § 44701(a)(4). The FAA promulgated the Age 60 Rule in 1959 pursuant to this mandate. The Rule provided that no pilot may serve as a pilot in operations of a commercial aircraft if that person has reached his 60th birthday. 14 C.F.R. § 121.383(c) (2007). In count four of the amended complaint, Avera sought a declaration that both the FTEPA and the Age 60 Rule were unconstitutional both facially and as applied to him. But as described above, only the court of appeals has exclusive jurisdiction to review a final order of the FAA. Avera may not bypass our exclusive jurisdiction by pursuing in the district court a collateral attack on the FAA’s orders. See Brantley, 5 981 F.2d at 521. Accordingly, we remand with instructions to vacate the district court’s order in part and to dismiss for lack of subject matter jurisdiction Avera’s constitutional challenges to the Age 60 Rule. See Tamiami, 177 F.3d at 1221. III. Next, we reject Avera’s claims that the FTEPA violates the Due Process and Equal Protection Clauses of the Fifth Amendment, violates the prohibition against bills of attainder, and effects an unconstitutional taking without compensation. Prior to enactment of the FTEPA, the Age 60 Rule provided that no person could fly a commercial aircraft after his 60th birthday. 14 C.F.R. § 121.383(c) (2007). However, section (d) of the FTEPA expressly states that, after its enactment, the Age 60 Rule “shall cease to be effective.” 49 U.S.C. § 44729(d). Instead, the FTEPA provides that “a pilot may serve in multicrew covered operations until attaining 65 years of age.” 49 U.S.C. § 44729(a). On appeal, Avera challenges two specific provisions of the FTEPA: the non-retroactivity clause and protection-for-compliance clause. The FTEPA’s non-retroactivity provision provides: No person who has attained 60 years of age before the date of enactment of this section may serve as a pilot for an air carrier engaged in covered operations unless -- (A) such person is in the employment of that air carrier in such operations on such date of enactment as a required flight deck crew member; or 6  (B) such person is newly hired by an air carrier as a pilot on or after such date of enactment without credit for prior seniority or prior longevity for benefits or other terms related to length of service prior to the date of rehire under any labor agreement or employment policies of the air carrier. 49 U.S.C. § 44729(e)(1). The FTEPA also includes a protection-for-compliance provision, which provides: An action taken in conformance with this section, taken in conformance with a regulation issued to carry out this section, or taken prior to the date of enactment of this section in conformance with [the Age 60 Rule] (as in effect before such date of enactment), may not serve as a basis for liability or relief in a proceeding, brought under any employment law or regulation, before any court or agency of the United States or of any State or locality. 49 U.S.C. § 44729(e)(2). There is no merit to Avera’s claim that the FTEPA violates the Equal Protection Clause by targeting “a small ascertainable class” of pilots born between 1942 and 1947 and extinguishing that small group’s “property rights (work, employment, and contract rights), while affording every other person in every other profession . . . the protections of the ADEA.” The Equal Protection Clause requires the government to treat similarly situated persons in a similar manner. Gary v. City of Warner Robins, 311 F.3d 1334, 1337 (11th Cir. 2002). “When legislation classifies persons in such a way that they receive different treatment under the law, the degree of scrutiny the court applies depends upon the basis for the classification.” 7 Id. If a law treats individuals differently on the basis of race or another suspect classification, or if the law impinges on a fundamental right, it is subject to strict scrutiny. Eide v. Sarasota County, 908 F.2d 716, 722 (11th Cir. 1990). Otherwise, the law need only have a rational basis -- i.e., it need only be rationally related to a legitimate government purpose. Id. Although classifications based on race or gender receive strict scrutiny, “[a]ge classifications . . . cannot be characterized as ‘so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.’” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000). Accordingly, “age is not a suspect classification under the Equal Protection Clause,” and a classification based on age receives rational-basis review. Id. at 83-84. The rational-basis test asks (1) whether the government has the power or authority to regulate the particular area in question, and (2) whether there is a rational relationship between the government’s objective and the means it has chosen to achieve it. Leib v. Hillsborough County Public Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009). This standard is easily met. As the Supreme Court has held, under rational-basis review, a state “has no obligation to produce evidence to sustain the rationality of a statutory classification.” Heller v. Doe by Doe, 509 U.S. 312, 320 8 (1993). “Rather, a statute is presumed constitutional, and the burden is on the one attacking the law to negate every conceivable basis that might support it, even if that basis has no foundation in the record.” Leib, 558 F.3d at 1306. “Under rational basis review, a court must accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Id. The FTEPA complies with the Equal Protection Clause. Although Avera argues that this Court should review the FTEPA under the strict-scrutiny standard, age is not a suspect classification and Avera identifies no fundamental right burdened by the FTEPA. Applying rational-basis review, the Supreme Court has rejected equal-protection challenges to mandatory-retirement schemes. See Gregory v. Ashcroft, 501 U.S. 452 (1991) (mandatory retirement at age 70 for state court judges complied with the Equal Protection Clause). Additionally, the FTEPA’s non-retroactivity provision is rationally related to the government’s objective of avoiding disharmony and discord in the labor market. See Kimel, 528 U.S. at 92-93 (Stevens, J., concurring in part and dissenting in part) (“Congress’ power to regulate the American economy includes the power to regulate both the public and the private sectors of the labor market.”). Congress could rationally have concluded that allowing all retired commercial pilots between the ages of 60 and 65 to return to their prior positions with full seniority would disrupt the airline pilots’ labor hierarchy. 9 Finally, the FTEPA’s protection-for-compliance provision is rational because Congress may legitimately seek to minimize any conflict between the FTEPA and other employment laws. Accordingly, the FTEPA survives rational-basis review, and Avera’s equal-protection challenge fails. Nor is there any merit to Avera’s claim that the FTEPA violates the Due Process Clause because the Act’s non-retroactivity provision prevented him from being re-employed at his former position and deprived him of his longevity and seniority at his former airline, the Act violated his right to procedural due process by preventing him from seeking reinstatement at United Airlines at his old position, and the Act is unconstitutionally vague. The Fifth Amendment provides that no person shall “be deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend V. The Due Process Clause provides “two different kinds of constitutional protection: procedural due process and substantive due process.” McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (en banc). “The substantive component of the Due Process Clause protects those rights that are ‘fundamental,’ that is, rights that are ‘implicit in the concept of ordered liberty.’” Id. at 1556 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). “A finding that a right merits substantive due process protection means that the right is protected against certain government actions regardless of the fairness of the 10 procedures used to implement them.” Id. (quotation omitted). However, “areas in which substantive rights are created only by state law (as is the case with tort law and employment law) are not subject to substantive due process protection under the Due Process Clause because substantive due process rights are created only by the Constitution. Id. (quotation omitted). In analyzing a procedural due process claim, on the other hand, we ask whether the plaintiff identified a property interest of which he was deprived by state action and, if so, whether the plaintiff received sufficient process regarding that deprivation. Ross v. Clayton County, Ga., 173 F.3d 1305, 1307 (11th Cir. 1999). Nevertheless, [t]he Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 284 (1984) (quotation omitted). Moreover, “[d]ue process requires ‘that the law must be one that carries an understandable meaning with legal standards that courts must enforce.’” Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1310 (11th Cir. 2009) (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 403 (1966)). “The void-for-vagueness 11 doctrine reflects the principle that a statute which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Id. (quotation and brackets omitted). “The Supreme Court has warned against the mechanical application of vagueness doctrine, emphasizing that an ‘economic regulation is subject to a less strict vagueness test’ and there should be ‘greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.’” Id. at 1310-11 (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982)). To the extent Avera challenges the FTEPA as violating his right to substantive due process, the challenge fails because Avera identified no fundamental right burdened by any of the FTEPA’s provisions and because, as described above, the Act survives rational-basis review. Avera’s procedural due process challenge also fails. Even assuming that the FTEPA revoked Avera’s property interest in his seniority at United Airlines (which interest Avera no longer had because he was terminated in accord with the Age 60 Rule and no longer had any expectation of future employment as a commercial pilot), Congress acted rationally and within its power by enacting the FTEPA and therefore Avera’s rights were protected only by his power, “immediate 12 or remote, over those who make the rule.” Knight, 465 U.S. at 284. Finally, Avera’s vagueness challenge fails because the FTEPA is understandable by persons of normal intelligence, and Congress need not define every term in a statute and need not dedicate a federal agency to interpret each provision of a statute. We likewise reject Avera’s claim that the FTEPA is an unlawful bill of attainder because the Act singles out an easily ascertainable group of commercial pilots born between 1942 and 1947 and punishes the group by depriving the pilots of their rights under the employment laws and their rights to negotiate a return to work and to negotiate better terms of employment. The U.S. Constitution provides that “[n]o Bill of Attainder or ex post facto Law shall be passed.” U.S. Const. art. I, § 9, cl. 3. A bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468 (1977). “A statute inflicts constitutionally forbidden punishment if (1) the statutory penalty falls within the historical meaning of legislative punishment, (2) the statute fails to further any nonpunitive legislative purpose, or (3) the legislative history establishes a congressional intent to punish.” Whitney v. Heckler, 780 F.2d 963, 973 (11th Cir. 1986). 13  As applied here, neither the non-retroactivity provision nor the protection-for- compliance provision inflicts the sort of burden “historically associated with punishment.” Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 853 (1984)). Although “legislative bars to participation by individuals or groups in specific employments or professions” may constitute punishment, id. at 852, the FTEPA’s non-retroactivity provision does not bar Avera from working as a commercial airline pilot. Furthermore, the FTEPA’s protection-for-compliance provision does not, by merely narrowing the scope of statutory causes of action, deny Avera access to the courts. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982) (“[T]he State remains free to create substantive defenses or immunities for use in adjudication -- or to eliminate its statutorily created causes of action altogether.”). Although these provisions restrict Avera’s new right to fly until the age of 65, “[f]orbidden legislative punishment is not involved merely because the Act imposes burdensome consequences.” Nixon, 433 U.S. at 472. Accordingly, the FTEPA is not a bill of attainder. Nor does the FTEPA effect a “taking” without just compensation. The Takings Clause in the Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation.” U.S. Const. amend. V. To state a takings claim, “a plaintiff must first demonstrate that he possesses a ‘property interest’ that 14 is constitutionally protected.” Givens v. Alabama Dept of Corrs., 381 F.3d 1064, 1066 (11th Cir. 2004). “The Takings Clause protects private property; it does not create it.” Id. Therefore, to determine whether a particular property interest is protected, we look to “existing rules or understandings that stem from an independent source such as state law.” Id. (quotation omitted). However, as described above, Avera has no constitutionally protected property interest in being rehired as a pilot with his former level of seniority. Accordingly, Avera’s takings claim fails. IV. We are also unpersuaded by Avera’s argument that the district court erred by dismissing his ADEA claim because his allegations stated a plausible, prima facie case for relief under the ADEA. “The ADEA makes it ‘unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.’” Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (quoting 29 U.S.C. § 623(a)(1)). The ADEA also precludes a union from discriminating based on age or causing an employer to discriminate based on age. 29 U.S.C. § 623(c). Although a Title VII plaintiff may prove his case by showing that his membership in a protected class played a “motivating part” in the employment decision, an ADEA plaintiff must “prove that 15 age was the ‘but for’ cause of the employer’s adverse decision. Gross v. FBL Servs., Inc., __ U.S. __, 129 S. Ct. 2343, 2349-50 (2009). Stated differently, the ADEA does not permit a “mixed-motive” claim for disparate treatment. Mora v. Jackson Memorial Foundation, Inc., 597 F.3d 1201, 1204 (11th Cir. 2010). In this case, the district court correctly dismissed Avera’s ADEA claim. To the extent Avera challenged ALPA’s actions in conformance with the Age 60 Rule or the FTEPA, the protection-for-compliance provision expressly barred his claim. See 49 U.S.C. § 44729(e)(2) (“An action taken in conformance with this section . . . [or the Age 60 Rule] may not serve as a basis for liability or relief in a proceeding, brought under any employment law or regulation, before any court or agency of the United States or of any State or locality.”). To the extent Avera argues that ALPA violated the ADEA by lobbying for the FTEPA or opposing changes to the Age 60 Rule, Avera fails to specify how these acts discriminated against Avera based on his age. Finally, Avera’s allegations pertaining to the bond-proceeds distribution formula fail because Avera conceded in the complaint that ALPA used a formula that, “because of the Age 60 Rule requiring ‘early’ retirement, resulted in younger Flight Officers . . . with levels of seniority equal or comparable to Plaintiff, receiving substantially larger monetary distributions from the sale of the UAL bonds than the distribution of $26,000.00 received by the Plaintiff.” In other words, the formula’s allegedly 16 discriminatory effect resulted from an application of the Age 60 Rule’s mandatory retirement and not from invidious age discrimination. Therefore, Avera could not establish that age was the but-for cause of ALPA’s discrimination, and the district court did not err by dismissing the ADEA claim. See Gross, 129 S.Ct. at 2349-50. V. We likewise find no merit in Avera’s argument that the district court erroneously dismissed his ERISA claim. ERISA governs only “employee benefit plans.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11 (1987) (ERISA regulates employee benefit plans, not employee benefits); see also 29 U.S.C. § 1002(1). However, ERISA provides little guidance regarding the meaning of the phrase “employee benefit plan.” See Fort Halifax, 482 U.S. at 8-9. Nevertheless, in Fort Halifax, the Supreme Court held that a Maine statute requiring lump-sum severance payments to employees displaced by plant closures was not an employee benefit plan. Id. at 12. The Court explained that ERISA was not triggered because the Maine statute created no “need for an ongoing administrative program for processing claims and paying benefits.” Id. Here, the district court correctly dismissed Avera’s ERISA claim because Avera neither identified an ERISA plan nor alleged any facts from which the district court could infer an ERISA violation. To the extent Avera argues that the 17 bond-proceeds distribution formula violated ERISA, this claim fails because, as in Fort Halifax, the distribution constituted lump-sum payments that required no ongoing administrative program for processing claims. Accordingly, the district court properly dismissed the ERISA claim. VI. Finally, we reject Avera’s arguments that the district court erred by dismissing his claims for breach of the duty of fair representation (“DFR”). The DFR is a judicially derived corollary to the union’s statutory status as the employees’ collective bargaining representative. See Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 75-76 (1991). A union owes members a duty to represent them adequately, honestly, and in good faith. Id. However, because a union needs wide latitude to ensure effective performance of its duties, judicial review of union action must be “highly deferential.” Id. at 78. Moreover, a union violates the duty of fair representation only if its actions are “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967). In the interest of labor relations stability, courts have adopted a short, six-month statute of limitation for the filing of DFR claims. Coppage v. U.S. Postal Serv., 281 F.3d 1200, 1204 (11th Cir. 2002); Smallakoff v. Air Line Pilots Ass’n, Int’l, 825 F.2d 1544, 1546 (11th Cir. 1987). The limitations period begins to run 18 once the plaintiff discovers or should have discovered the acts that form the basis of the DFR claim. See Coppage, 281 F.3d at 1205-06 (six-month statute of limitations began to run when employee received notice of unfavorable settlement agreement between union and employer ending the grievance process). In this case, the district court did not err by dismissing the DFR claim as untimely. Although the complaint included few dates, Avera was terminated in 2007, and all of ALPA’s lobbying efforts concerning the FTEPA and the Age 60 Rule must have occurred before the FTEPA was enacted in December 2007. Furthermore, although Avera argues that his claim was timely under the “delayed discovery” doctrine because he did not learn of the relative distributions of the bond proceeds until June 2009, Avera alleged in his October 2007 EEOC charge that ALPA “negotiated a formula for the distribution of the proceeds of the UAL bond sale which resulted in younger Flight Officers with levels of seniority comparable to mine being given a larger amount of the monetary distribution from this bond sale from 2/06 to 2/07.” Because Avera discovered the acts that formed the basis for this claim no later than October 2007, the six-month statute of limitations for his DFR claim expired by April 2008. Avera’s June 2009 complaint was therefore untimely with respect to the DFR claim. 19  As for Avera’s argument that he also asserted a state law claim for breach of “fiduciary duty,” Avera failed to develop this claim in his complaint. But even assuming that this claim was timely and that ALPA was a “contractual fiduciary” for Avera, this claim would fail because ALPA was not responsible for drafting, interpreting, administering, or enforcing any of the FTEPA’s provisions, and ALPA has not adjudicated its liability for administering the statute. Accordingly, the district court did not err by dismissing Avera’s DFR claim or his claim for breach of fiduciary duty. AFFIRMED IN PART, VACATED AND REMANDED IN PART WITH INSTRUCTIONS. 20 

257 U.S. 213 (1921) ROBERT MITCHELL FURNITURE COMPANY v. SELDEN BRECK CONSTRUCTION COMPANY. No. 56. Supreme Court of United States. Argued November 7, 1921. Decided December 5, 1921. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO. *214 Mr. Leo J. Brumleve, Jr., with whom Mr. Walter A. De Camp and Mr. Dudley V. Sutphin were on the brief, for plaintiff in error. Mr. Simeon Nash, with whom Mr. C.C. Williams was on the brief, for defendant in error. MR. JUSTICE HOLMES delivered the opinion of the court. This case is here on error to a judgment of the District Court that held the summons in the suit void and, on the plaintiff's statement that it could not secure service otherwise, dismissed the petition for want of jurisdiction over the person of the defendant. An appeal to this Court lies in such a case. Board of Trade of Chicago v. Hammond Elevator Co., 198 U.S. 424. The material facts are as follows: The action is brought by an Ohio corporation upon a contract made with the defendant, a Missouri corporation, to deliver "F.O.B. cars Ann Arbor, Michigan," specified woodwork for the library building of the University of Michigan, upon which the defendant was engaged. The contract was made by correspondence between the plaintiff in Cincinnati and the defendant in Chicago, and would seem from the affidavits and exhibits to have become operative by the posting of a letter of the defendant accepting corrections, at Chicago, on February 10, 1917, although by the declaration it is alleged to have been made in Cincinnati. Beaumont v. Prieto, 249 U.S. *215 554. The defendant is a contractor, constructing buildings and the like, and, being a foreign corporation, in 1910 had designated Simeon Nash as a person upon whom process against it could be served within the State of Ohio, as required by statute. Subsequently it constructed buildings in Ohio, but its last work was finished on October 26, 1918, and its workmen and property were withdrawn from the State. Since that date it has made no bids for work there. This action was begun on April 5, 1919, in a State Court of Ohio, but afterwards was removed to the District Court of the United States. The only service was upon Nash, and the question is whether it was sufficient in the circumstances set forth. An annual report is required by Gen. Code § 5499 from foreign corporations for profit doing business in the State. The defendant filed such a report in July, 1919, after the service, and no doubt would have been ready to bid upon Ohio contracts that seemed to it tempting, as it had done in the past. The plaintiff contends that these facts show that it was doing business in Ohio when the writ was served. The defendant says that the report was necessary for the ascertainment of taxes due from it for the last financial year, but it may be assumed that the wish to keep open the possibility of further employment was a contributing motive. It did nothing, however, and it contends that merely watching from outside for a chance was not enough to bring it into the trap. If it had withdrawn from the State the agency of Nash did not extend to receiving service in a suit upon a contract made and to be performed as this was. Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U.S. 373. The defendant relies upon the analogy of that case. The purpose in requiring the appointment of such an agent is primarily to secure local jurisdiction in respect of business transacted within the State. Of course when a foreign corporation appoints one as required by statute it *216 takes the risk of the construction that will be put upon the statute and the scope of the agency by the State Court. Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93. But the reasons for a limited interpretation of a compulsory assent are hardly less strong when the assent is expressed by the appointment of an agent than when it is implied from going into business in the State without appointing one. In the latter case the implication is limited to business transacted within the State. Simon v. Southern Ry. Co., 236 U.S. 115, 131, 132. Old Wayne Mutual Life Association v. McDonough, 204 U.S. 8, 22, 23. Unless the state law either expressly or by local construction gives to the appointment a larger scope, we should not construe it to extend to suits in respect of business transacted by the foreign corporation elsewhere, at least if begun, as this was, when the long previous appointment of the agent is the only ground for imputing to the defendant an even technical presence. Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U.S. 373. The indications of the Ohio statutes, so far as they go, look to "liability incurred within this State." Gen. Code § 181. As we know of no decision to the contrary by the Supreme Court of Ohio, we are of opinion that the service upon Nash was bad. Judgment affirmed.

NO. 07-07-0487-CR   IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D JANUARY 16, 2008 ______________________________   ROOSEVELT ALLEN, JR., APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 252ND DISTRICT COURT OF JEFFERSON COUNTY; NO. 07-00816; HONORABLE LARRY GIST, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. MEMORANDUM OPINION             Appellant Roosevelt Allen Jr., acting pro se, filed a document with this court on December 3, 2007, entitled “Petition for Acquittal and Arrest of Judgment Review.” Finding reason to doubt our jurisdiction over the matters addressed in appellant’s “petition,” we requested by letter dated December 11 that he file any documents considered necessary for the court to determine our jurisdiction.           On December 13, 2007, appellant filed a document entitled ”Anders’ Brief for Appellant” in which he references his petition filed on December 3. As we read his documents, appellant raises issues in connection with his conviction and sentencing in a district court of Jefferson County. The documents reference cause number 07-00816 in the Criminal District Court of Jefferson County, and recite that appellant appealed from the judgment to the Ninth Court of Appeals in October 2007.           On December 27, 2007, we received appellant’s response to our December 11 letter. In support of this court’s jurisdiction, appellant provides a copy of the memorandum opinion of the Ninth Court of Appeals, issued November 28, 2007, dismissing his appeal pursuant to Texas Rule of Appellate Procedure 25.2(d). He contends the dismissal demonstrates he has been subjected to abused discretion, and raises a complaint about the form of the Ninth Court’s memorandum opinion.           This court’s appellate jurisdiction generally is limited to cases appealed from trial courts in our court of appeals district. Tex. Gov’t Code Ann. § 22.201 (Vernon 2004). We see no basis for jurisdiction over appeal of appellant’s Jefferson County conviction, and nothing in the documents appellant has filed demonstrates we otherwise have authority to grant any relief he seeks. See Olivo v. State, 918 S.W.2d 519, 522-23 (Tex.Crim.App. 1996) (listing Government Code § 22.201 among examples of laws that establish jurisdiction of courts of appeals). Appellant’s December 3 petition refers to Rule 17.1 of the Texas Rules of Appellate Procedure, which concerns instances in which a court of appeals is unable to take immediate action, and Rule 17.2, providing for action by “the nearest court of appeals that is able to take immediate action.” Tex. R. App. P. 17.1, 17.2. Appellant appears to contend that the rule has application here. Based on the statements in appellant’s petition, we disagree that Rule 17 of the appellate rules has application in the circumstances described. In addition, appellant provides no explanation how, given the great distance between Beaumont and Amarillo, this court could be considered the nearest available court of appeals.           Finding we lack jurisdiction to address appellant’s pleadings, we dismiss his attempted appeal.                                                                            James T. 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BRADLEY S. UNDERWOOD, PRESIDING                                             ______________________________   Memorandum Opinion ______________________________   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.             Appellant Isaac Jones, Jr. appeals his conviction for four counts of aggravated sexual assault of a child.  Through three issues, he contends the State provided improper notice of its intent to use a prior conviction for enhancement purposes, and the evidence is insufficient to support an award of attorney’s fees.  We modify the judgment in trial court cause number 2008-419,678 and affirm as modified, and affirm the judgment in trial court cause number 2008-419,679. Issue One – Notice of Enhancement             In his first issue, appellant contends that proper notice of enhancement of his punishment was not provided in cause number 2008-419,679, even though notice was filed in cause number 2008-419,678 and contained both cause numbers.  Therefore, according to appellant, he is entitled to a new punishment hearing in cause number 2008-419,679.  We overrule the issue. If the State intends to enhance a defendant's punishment through prior convictions, it must give the defendant reasonable notice of that intent by some kind of pleading.  Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App.1997); Cochran v. State, 107 S.W.3d 96, 98 (Tex. App.–Texarkana 2003, no pet.).  Yet, there is no statutory requirement that the notice of enhancement be given at any specific time before trial.  Furthermore, the Court of Criminal Appeals in Villescas v. State, 189 S.W.3d 290 (Tex. Crim. App. 2006) stated that “due process does not even require that the notice be given before the guilt phase begins, much less that it be given a number [of] days before trial.”  Id. at 294.  It then held that if “a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution.”  Id. at 294; see Callison v. State, 218 S.W.3d 822, 823-25 (Tex. App.–Beaumont 2007, no pet.). In the case before us and prior to the commencement of the punishment hearing, the following exchange occurred: MR. STANGL [defense counsel]:  Judge, the State, previous to my appointment on the case, had filed a Notice of Intent to Use a Prior Conviction to Enhance the Classification and/or Range of Punishment in the Indicted Offense.  And it appears that that was filed of record in 2008-419,678.  I believe the Court had indicated the other day that you had gone through the - - one of the files and couldn’t find one, and I think you found it in the other one.               You know, basically, Judge, I know that the copies that I pulled off  the Internet has both numbers written up top, but apparently was filed of record in the highlighted case, which was 2008-419,678, and does not appear to have been filed of record in 2008-419,679.                So, therefore, Your Honor, we would just submit to the Court that this prior - - this allegation of a prior conviction would not be available for enhancement pursuant to 2008 - - or in the case number 2008-419,679, because proper notice was never filed.   *    *    * MS. CROWLEY [State’s attorney]: Your Honor, this is a notice provision, as the Court can see from the notice that was filed.  The District Clerk’s office requires us to highlight the appropriate cause number.  And so what appears to be blacked out is the highlighted mark on one of the cause numbers.  Both would have been filed.  Why the other one is not in the other file is something we need to take up with the district clerk.               Both - - I mean it’s obviously both cause numbers are on the motion.  The highlighted one got into the right file.  The other highlighted one would have gotten into the other file, but they’re filed.  You know, we do it the way the District Clerk’s office wants us to.               Counsel for the defense had adequate notice.  Both cause numbers were listed.  Even though one was highlighted, both cause numbers were listed on the State’s Notice of Intent to Use the Prior Conviction.  And the State’s position is it’s more than adequate to give that notice regardless of whether the clerk’s office managed to get it in to the file or not, but that it was done, and both cause numbers are on it.   THE COURT:  Are you claiming surprise, Mr. Stangl? MR. STANGL:  I’m claiming lack of required notice, Judge. THE COURT:  Are you refusing to answer my question, Mr. Stangl? MR. STANGL:  No, Your Honor, I’m not claiming surprise.  I am - - however, I am claiming lack of adequate notice.   The trial court then observed that: [t]he original in the Court’s file in Cause No. 2008-419,678 is, in fact, highlighted in yellow, but it does bear both cause numbers.  There appears to have been some clerical issue with getting the document with the Cause No. 2008-419,679 into the file in 2008-419,679.  But clearly, Mr. Stangl, you’ve had notice technically or otherwise in Cause          No. 2008-419,678 that the State intended to enhance the range of punishment in that case, correct?   In response to the trial court’s inquiry, the following transpired:   MR. STANGL:  Judge, I mean I will acknowledge that the file marked copy that I pulled off the computer bears both cause numbers.  I will acknowledge that.   THE COURT:  Okay. MR. STANGL:  My objection is merely that the required notice in the other case was not filed of record as required.  I don’t know if it was a clerical error or if it was ever given to the District Clerk.  I have no idea.         THE COURT:  Okay. MR. STANGL:  So therein lies my objection I wasn’t given proper notice.  I’m not going to say that - -   THE COURT:  I understand.  I understand.  The objection is overruled. From the foregoing we observe that appellant knew of the State’s intent to enhance punishment in both causes long before trial began.  And, even if the notice in cause number 2008-419,679 was considered not to have been filed prior to trial, appellant nonetheless received notice before the punishment phase began.  At no time did he allege surprise or that he had a defense to the use of the prior conviction.  Nor did he request a continuance.  Therefore, the trial court did not err in overruling his objection at trial. Issues Two and Three – Attorney’s Fees               In his second and third issues, appellant contends the evidence is insufficient to support an award of attorney’s fees and the amount of attorney’s fees in cause number 2008-419,678.  The State concedes this to be error and agrees the award of attorney’s fees should be vacated.  We agree, sustain the issues and remove reference to the award of attorney’s fees from the judgment in trial court cause number 2008-419,678.  See Mayer v. State, 274 S.W.3d 898, 902 (Tex. App.–Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex. Crim. App. 2010) (modified the judgment to delete like order).             Accordingly, the trial court’s judgment in cause number 2008-419,679 is affirmed and the judgment in cause number 2008-419,678 is affirmed as modified.                                                                           Per Curiam Do not publish.

468 F.2d 950 dCowdenv.Miracle Adhesives Corporation 72-1647 UNITED STATES COURT OF APPEALS Fifth Circuit Nov. 27, 1972 1 N.D.Tex.

17‐1827‐cr  United States v. Yilmaz    UNITED STATES COURT OF APPEALS  FOR THE SECOND CIRCUIT  August Term 2018  (Submitted:  December 10, 2018                Decided: December 13, 2018)    Docket No. 17‐1827‐cr              UNITED STATES OF AMERICA,                    Appellee,    ‐ against ‐  TOLGA SAFER YILMAZ,     Defendant‐Appellant.              ON APPEAL FROM THE UNITED STATES DISTRICT COURT  FOR THE SOUTHERN DISTRICT OF NEW YORK    Before:      SACK, PARKER, and CHIN, Circuit Judges.        Appeal from a judgment of conviction of the United States District  Court for the Southern District of New York (Ramos, J.), sentencing defendant‐ appellant principally to 37 monthsʹ imprisonment and three yearsʹ supervised  release for stalking in violation of 18 U.S.C. § 2261A.  Defendant‐appellant  contends that the district court erred by applying a two‐level sentence  enhancement under the United States Sentencing Guidelines for threatened use  of a dangerous weapon.  He also argues that his sentence is incongruous with  sentences imposed on other similarly situated defendants.         AFFIRMED.              Jane Kim and Sarah K. Eddy, Assistant United States  Attorneys, for Geoffrey S. Berman, United States  Attorney for the Southern District of New York,  New York, New York, for Appellee.    Jamesa J. Drake, Drake Law, LLC, Auburn, Maine, for  Defendant‐Appellant.              PER CURIAM:  Defendant‐appellant Tolga Safer Yilmaz appeals from a judgment of  conviction, entered June 8, 2017, following his guilty plea to one count of  stalking, in violation of 18 U.S.C. § 2261A.  He was sentenced principally to 37  monthsʹ imprisonment and three yearsʹ supervised release.  On appeal, Yilmaz  challenges the district courtʹs application of a two‐level sentence enhancement, in  accordance with the United States Sentencing Guidelines (the ʺGuidelinesʺ), for  2    threatened use of a dangerous weapon.  He also argues that his 37‐month  sentence is ʺincongruous with the sentences imposed on other similarly situated  defendants.ʺ  Def. Appellantʹs Br. at 18.    In 2008, while in college in Oregon, Yilmaz met a female student (the  ʺVictimʺ).  The two dated on and off through the Spring 2009 semester.  In Fall  2009, after he had graduated, Yilmaz began harassing and stalking the Victim,  physically as well as by email.  He continued to stalk, harass, intimidate, and  threaten her for almost seven years.  Indeed, between October 2011 and April  2016, he sent some 10,694 emails to the Victim and her professors, administrators,  other university personnel, students, family members, and friends.  On some  days, Yilmaz sent hundreds of such emails.    In Spring 2016, Yilmaz, who had returned to his home country,  Turkey, began sending the Victim messages indicating that he was going to  travel to New York ‐‐ where the Victim had relocated ‐‐ to confront her.  He flew  to Portland, Oregon in May 2016, where law enforcement officials arrested him.   He was charged in the Southern District of New York with stalking, and he pled  guilty and was sentenced as set forth above.    3     We review the procedural and substantive reasonableness of a  sentence under a deferential abuse‐of‐discretion standard.  United States v.  Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014).  This standard incorporates de novo  review of questions of law, including our interpretation of the Guidelines, and  clear error review of questions of fact.  United States v. Legros, 529 F.3d 470, 474  (2d Cir. 2008).  I. Procedural Reasonableness   Yilmaz argues that the two‐level enhancement for threatened use of  a dangerous weapon is inapplicable here because he never displayed a weapon,  and the Victim did not perceive or find credible any weapon‐related threat.  This  argument is unpersuasive.  A district court commits procedural error when it, inter alia, ʺmakes  a mistake in its Guidelines calculation.ʺ  United States v. Cavera, 550 F.3d 180, 190  (2d Cir. 2008).  The Guidelines provide that the base offense level for stalking,  eighteen, may be increased two levels if an offense involved one of five specified  aggravating factors, including the ʺpossession, or threatened use, of a dangerous  weaponʺ or a ʺpattern of activity involving stalking, threatening, harassing, or  assaulting the same victim.ʺ  U.S.S.G. §§ 2A6.2(a), (b)(1)(D)‐(E).  If the offense  4    involved more than one of the five specified aggravating factors, the district  court may increase by four levels.  Id. § 2A6.2(b)(1).  Comments to the Guidelines  define a ʺdangerous weaponʺ as   (i) an instrument capable of inflicting death or serious bodily injury; or (ii)  an object that is not an instrument capable of inflicting death or serious  bodily injury but (I) closely resembles such an instrument; or (II) the  defendant used the object in a manner that created the impression that the  object was such an instrument (e.g. a defendant wrapped a hand in a towel  during a bank robbery to create the appearance of a gun).     Id. § 1B1.1 cmt. n.1(E).  Here, the district court imposed a four‐level enhancement because it  found the offense involved two aggravating factors: the threatened use of a  dangerous weapon and a pattern of activity involving stalking, threatening,  harassing, or assaulting the same victim.  Id. § 2A6.2(b)(1)(D), (E).  Yilmaz does  not challenge the application of the second aggravating factor for a pattern of  activity.   The plain language of Section 2A6.2(b)(1)(D) requires either  possession or threatened use of a dangerous weapon, indicating that the latter  alone is sufficient grounds for the enhancement to apply.  See United States v.  Mingo, 340 F.3d 112, 114 (2d Cir. 2003) (ʺWhere [] the language of the Guidelines  provision is plain, the plain language controls.ʺ).  Clearly, a knife may be wielded  5    as a dangerous weapon, and Yilmazʹs messages stated an intent to severely harm  or kill the Victim using such a weapon ‐‐ among the messages he sent her were  the statements ʺI will kill [her]ʺ; ʺI am going to slice [her] bodyʺ; ʺI am going to  riddle your bodyʺ; and ʺ[a]fter I cut your throat open.ʺ  Present. Report ¶¶ 13, 14;   see Threaten, Oxford English Dictionary (2d ed. 1989) (defining threaten as to  ʺdeclare . . . oneʹs intention of inflicting injury uponʺ); United States v. Walker, 665  F.3d 212, 232 (1st Cir. 2011) (referring to appellantʹs vow to ʺblow [the victimʹs]  head offʺ as a ʺprototypical exampleʺ of evidence that ʺthe appellant placed [the  victims] in fear of harm through, in part, threats to use a gunʺ).  Like the implied  use of a gun in the threat to ʺblow [the victimʹs] head offʺ in Walker, Yilmazʹs  threat to ʺslice [the Victimʹs] bodyʺ and ʺcut [her] throatʺ clearly implied the use  of a knife.    Moreover, the Guidelinesʹ Commentary indicates that displaying a  weapon is unnecessary as ʺa defendant [who] wrapped a hand in a towel during  a bank robbery to create the appearance of a gunʺ would be subject to an  enhancement concerning dangerous weapons.  See U.S.S.G. § 1B1.1 cmt. n.1(E);  see also Stinson v. United States, 508 U.S. 36, 38 (1993) (ʺ[C]ommentary in the  Guidelines Manual that interprets or explains a guideline is authoritative unless  6    it violates the Constitution or a federal statute, or is inconsistent with, or a  plainly erroneous reading of, that guideline.ʺ).    Finally, Yilmaz argues that the threatened use enhancement is  inapplicable because the Victim did not perceive the threat and find it credible.   We are not persuaded.  The Guidelines do not require that the victim be aware of  the threat, as Section 2A6.2(b)(1)(D) simply requires that the offense ʺinvolvedʺ  the ʺpossession, or threatened use, of a dangerous weapon.ʺ  See Mingo, 340 F.3d  at 114‐15.  In any event, the record suggests that the Victim in fact perceived and  credited the threats.  Accordingly, the district courtʹs application of the sentence  enhancement for threatened use of a dangerous weapon was appropriate and not  procedurally unreasonable.  II. Substantive Reasonableness  Although Yilmaz does not explicitly challenge the substantive  reasonableness of his sentence, he argues that his 37‐month sentence ʺis  incongruous with the sentences imposed on other similarly situated defendants.ʺ   Def. Appellantʹs Br. at 18.  To the extent this is a challenge to the substantive  reasonableness of his sentence, it fails.   7     ʺ[A] trial courtʹs sentencing decision will be classified as error only if  it ʹcannot be located within the range of permissible decisions.ʹʺ  United States v.  Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (quoting Cavera, 550 F.3d at 189).  District  courts must consider the sentencing factors outlined in 18 U.S.C. § 3553(a), and  on review, we account for ʺthe totality of the circumstances, giving due deference  to the sentencing judgeʹs exercise of discretion.ʺ  Cavera, 550 F.3d at 188, 190.  A 37‐month sentence for Yilmazʹs stalking of the Victim falls well  within the range of permissible sentences.  See United States v. Lee, 790 F.3d 12, 13‐ 15, 19 (1st Cir. 2015) (upholding 100‐month prison sentence for defendant who  sent his estranged wife 300 emails, some including threats, in addition to other  severe and threatening conduct); United States v. Ull, 370 F. Appʹx 225, 225‐27 (2d  Cir. 2010) (summary order) (upholding 18‐month prison sentence for defendant  who sent victim 1,400 messages between 1983 and 2007).  Here, Yilmaz sent more  than 10,500 emails not only to the Victim, but also to her family, friends,  professors, coworkers, and supervisors.  He falsely accused the Victim of  academic misconduct, threatened her with extreme violence and death, and  destructively impacted her private and professional life.  In considering the §  3553(a) factors, the district court appropriately accounted for the severity and  8    duration of Yilmazʹs conduct and the extent of the harm inflicted on the victim to  impose a sentence within the Guidelines range.  As the district court observed,  the ʺoffense was quite horrific,ʺ and ʺMr. Yilmaz, it is safe to say, stole seven  years of peace of mind from his victim.ʺ  Appʹx at 161.  CONCLUSION  For the reasons set forth above, the district courtʹs judgment is  AFFIRMED.  9    

351 F.Supp.2d 885 (2005) Paul PIGHEE, Plaintiff v. L'OREAL USA [PRODUCTS], INC., Defendant. No. 4:03CV00443 JLH. United States District Court, E.D. Arkansas, Western Division. January 12, 2005. *886 *887 Stephen E. Fisher, Fisher Law Firm, Little Rock, AR, for Plaintiff. M. Tim Boe, David P. Martin, John D. Coulter, Rose Law Firm, Little Rock, AR, for Defendant. OPINION AND ORDER HOLMES, District Judge. This case comes before this Court on L'Oreal USA Products, Inc.'s motion for summary judgment (Docket # 8). Paul Pighee filed this action against L'Oreal, his former employer, claiming that L'Oreal terminated his employment on the basis of his race and in retaliation for Pighee's *888 participation in protected activity. Pighee brings race and retaliation claims under Title VII, 42 U.S.C. § 2000e, First and Fourteenth Amendment claims under the United States Constitution, and claims for outrage, tortious interference, and slander under state common law. In support of its motion for summary judgment, L'Oreal attaches an affidavit from Dave Coombs, L'Oreal's Human Resources Director, contents of Pighee's personnel file, contents of the personnel file of Mike Renner, a former L'Oreal employee, L'Oreal's sexual harassment policy, excerpts from the Equal Employment Opportunity Commission Investigative File, and portions of two depositions of Pighee. In support of his response to this motion, Pighee attaches an affidavit from Renner.[1] For the reasons contained herein, L'Oreal's motion will be granted in its entirety. Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion and identifying the portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir.2003). When the moving party has carried its burden under Rule 56(c), the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(c)). The non-moving party sustains this burden by showing that "there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250, 106 S.Ct. 2505. When a non-moving party cannot make an adequate showing on a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In deciding a motion for summary judgment, the Court must view the facts and inferences in the light most favorable to the party opposing summary judgment. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 841 (8th Cir.2001). If the evidence would allow a reasonable jury to return a verdict for the non-moving party, summary judgment should be denied. Derickson v. Fidelity Life Assoc., 77 F.3d 263, 264 (8th Cir.1996). The facts are as follows.[2] Pighee, an African-American, worked for L'Oreal as a *889 mechanic in its North Little Rock, Arkansas facility beginning in 1995. On several occasions during his employment, Pighee was disciplined for attendance policy violations and for comments that other employees perceived as physically threatening. For the attendance violations, Pighee received a verbal warning, a written warning, and, finally on March 2001, a second and final written warning. For the perceived threatening comments, Pighee was issued a written warning on March 5, 1997, stating that "any type of behavior that would be perceived as threatening in the future will be reason for your immediate dismissal" and a documented verbal warning on March 3, 2000. In 2000, a fellow employee brought a Title VII race discrimination lawsuit against L'Oreal and identified Pighee and at least five other L'Oreal employees as potential witnesses. In August 2001, Pighee testified by oral deposition in that lawsuit. During the deposition, Pighee testified that he had once organized a group of black mechanics and line workers that met with L'Oreal officials, including Coombs, to discuss job concerns. He stated that the meeting was constructive and that the attendees were "thoroughly satisfied" with what Coombs said during the meeting. In 2001, L'Oreal began to receive reports of sexual harassment concerning Pighee. First, Cleo Hogan, a female African-American co-worker of Pighee's, reported to her supervisor that a male mechanic in her department had touched her and made inappropriate comments. Hogan's supervisor reported the allegations to Coombs who then spoke with Hogan. Hogan would not tell Coombs who was harassing her out of alleged fear for her safety. She also requested that her identity not be disclosed. In the course of investigating Hogan's complaint, Coombs spoke with Amanda Clingham, who alleged that Pighee had also made sexually explicit comments to her. Clingham told Coombs that Hogan had complained to her about Pighee's conduct. Clingham also requested that she remain anonymous. On December 7, 2001, Coombs and Steve Kottakis, the Director of Hogan's department, met with Pighee to inform him that allegations of sexual harassment had been made against him. Because of the two women's requests, Coombs did not tell him who made the allegations or provide him with details of the specific allegations. Pighee denied engaging in any inappropriate conduct. Coombs reviewed with Pighee the company's sexual harassment policy[3] and informed him that further *890 complaints would be investigated and met with appropriate disciplinary action. In February 2002, Hogan again complained of harassment, claiming also that others were hesitant to report Pighee's conduct out of intimidation. An investigation ensued, uncovering another allegation from a female employee that Pighee had told co-workers that she and he were having an affair. This female too requested that her identity be kept confidential. On May 8, 2002, Pighee was issued a written warning, informing him that additional reports of unwelcome sexual advances had been made since the December meeting. The warning stated that "[i]f these allegations prove to be true you will be subject to appropriate disciplinary action up to and including termination." Pighee again denied any inappropriate behavior at this time. After the written warning, Coombs received another report of Pighee's continued harassment towards Hogan. By this point, the allegations L'Oreal had collected against Pighee included that he had asked Hogan if he could "eat her p* * *y"; that he had told Hogan how "horny" he was and that he would like to "f* *k [her] from behind"; that he had approached Hogan from behind and rubbed his body against hers; that he had placed his hand between Hogan's legs; that he had asked Hogan to go with him into a mechanic's closet and, on another occasion, to meet him in a secluded spot; that he had stated to female employees that they were "like shirts, you see all of them in the mall and you just want one" and that he "wished [he] could have sex" with them; and that he had informed them "how big [his] groin" is. Several other reports surfaced, including that Pighee had brought pornographic videos and nude photographs of himself to the workplace, had exposed his underwear to a female employee, and had interrogated co-workers in an attempt to discover who had made the complaints. Coombs again commenced an investigation and discovered another female employee who alleged that Pighee had sexually harassed her in the past. This woman also requested anonymity. Finally, Hogan gave Coombs permission to disclose her identity to Pighee. According to Pighee's deposition testimony, Coombs arranged a meeting in late July 2002, at which Hogan confronted Pighee with her allegations. In response to the accusations, Pighee stated, "[w]ell, you know, I know they're not true, and if we're going — if this is who you brought in here to accuse me of sexual harassment, you know, I just really didn't have anything else to say. Because I hadn't — I hadn't done or said anything to Cleo." On July 29, 2002, L'Oreal informed Pighee that he had repeatedly violated L'Oreal's sexual harassment policy despite prior warnings. It gave Pighee the option of resigning or being discharged. Because Pighee stated that he couldn't resign, he was terminated. I. Constitutional Claims Pighee brings claims under the First and Fourteenth Amendments of the United States Constitution, claiming that his supervisors treated him differently than others similarly situated for the purpose of "`chilling' any exercise of his free speech rights" and that they "conspired with themselves and others to deny plaintiff due process." It is well-settled that these rights can be asserted only against *891 state actors. Alexander v. Pathfinder, Inc., 189 F.3d 735, 740 (8th Cir.1999); Niere v. St. Louis County, Mo., 305 F.3d 834, 838 (8th Cir.2002). L'Oreal is a privately owned and operated corporation. As Pighee has not claimed any harm by governmental action, L'Oreal is entitled to summary judgment on these claims. II. Race Discrimination Pighee brings a Title VII race discrimination claim. Under Title VII, an employer cannot discharge or otherwise "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race...." 42 U.S.C. § 2000e-2(a)(1). In the absence of direct evidence of discrimination, a Title VII claim is analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pighee must carry the initial burden of establishing a prima facie case of racial discrimination. To do this, he must show that 1) he was a member of a protected group, 2) he was meeting the legitimate expectations of his employer, 3) he suffered an adverse employment action, and 4) that similarly situated employees who are not members of the protected group were treated differently. Clark v. Runyon, 218 F.3d 915, 918 (8th Cir.2000). If Pighee makes out this prima facie case, the burden then shifts to L'Oreal to identify a legitimate reason for terminating his employment. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If L'Oreal meets its burden of articulating a legitimate, non-discriminatory reason for the discharge, Pighee must then prove that the articulated reason was a pretext. See id. at 804, 93 S.Ct. 1817. The question is whether Pighee creates a genuine issue of material fact on his claim that similarly situated white employees were treated differently by L'Oreal. In order to make out a prima facie case, Pighee need only make a minimal showing on this issue. See Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th Cir.2004). This Court does not believe that he has. Even if Pighee can make out such a showing, however, L'Oreal has articulated a legitimate, nondiscriminatory reason for the termination. Thus, in order to avoid summary judgment, Pighee would have to present sufficient evidence to raise a question of material fact as to whether L'Oreal's proffered reason was pretextual and to create a reasonable inference of racial discrimination. Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 921 (8th Cir.2000). One of the most common methods of demonstrating pretext in a racial discrimination case is to show that similarly situated persons of a different race received more favorable treatment. Cherry, 361 F.3d at 479. The test used to determine whether an employee is similarly situated so as to warrant comparison to the plaintiff is a rigorous one, in particular at the pretext stage when "more substantial evidence" is required than when making out a prima facie case. Id; Erickson v. Farmland Indus., Inc., 271 F.3d 718, 726-27 (8th Cir.2001). Pighee claims that white employees who were accused of sexual harassment were treated differently in that they were provided with the details of the allegations made against them, they were allowed to defend themselves against these allegations, and that ultimately, they were not terminated. Pighee claims that Rob Richey, Tim Davis, and Mike Renner are white employees who were similarly situated but who were treated differently. He attaches an affidavit from Renner. In that affidavit, Renner summarizes his employment history at L'Oreal and states that during his *892 time there he was accused of sexual harassment several times. He refers specifically to an incident when he showed another employee pornographic materials, claiming that he was written up by L'Oreal management but that no investigation followed.[4] He also references other incidents when he called female employees "lard asses or blubber butts" and allegedly commented on a female's breast size. Renner states that he was accused of sexual harassment by a woman named Carol Forester and was suspended for three days, sent to counseling, and put on probation for a period of one year. Renner also states that he was accused of being drunk on the job and of cutting wires on a production line. In rebuttal, L'Oreal claims that it is aware of four males, including Pighee, whom it discharged for sexual harassment since 1991. Two of these males are white and two are African-American. Coombs states that he used the same procedure to investigate Pighee's conduct as he used to investigate other allegations of inappropriate conduct at L'Oreal. L'Oreal argues that, with the exception of not identifying the complainants to Pighee, it treated each white employee as it did Pighee by first investigating the complaint and then speaking with the person against whom the complaint was lodged. As for the three white employees Pighee claims were treated differently, Coombs addresses each situation in his affidavit. With regard to Davis, Coombs states that around May 1999, L'Oreal received a complaint that Davis had asked a female employee out on a date several times despite the fact that this employee told him that she was not interested. After the female complained to L'Oreal, company officials spoke with Davis who assured them that this conduct would stop. L'Oreal informed Davis that should there be further issues, it would investigate and take appropriate action. A memorandum was placed in Davis's personnel file, but no further complaints were made concerning him. As for Richey, Coombs states that around August 2000, a female employee complained to L'Oreal that Richey had made sexually suggestive comments to her and invited her out for a drink after work several times. Company officials spoke to Richey who denied the allegations. The company gave him a warning and told him that L'Oreal would investigate any future allegations and take appropriate actions. A memorandum documenting this action was placed in his file, but as with Davis, no further complaints were made concerning his conduct. Lastly, as for Renner, L'Oreal received various complaints concerning his conduct during his employment, not all involving sexual harassment. In August 1999, he was accused of making racially derogatory comments and received a documented verbal warning. Around March 2002, Renner was accused of bringing pornographic material to work, which Renner claimed he received from another employee. Renner met with two L'Oreal officials who warned him that participation in such activity was prohibited. He was issued a documented verbal warning. In June and again in August 2002, L'Oreal received complaints that Renner had made derogatory comments regarding weight and race. Renner received a written warning and then a second written warning. In September 2002, Renner was accused of asking a female employee who had walked *893 behind him whether it was "as good for you as it was for me." After investigating and determining that this action coupled with the previous warnings were grounds for termination, Coombs issued him a final warning/last chance agreement in lieu of termination. The terms of the agreement called for one year of probation and counseling. Finally, in August 2003, Renner was terminated after a verbal altercation with another employee. Pighee's argument that the investigation procedures were discriminately applied to his case must fail. Pighee argues that L'Oreal withheld the identity of the accusers and the specific allegations because of his race, thus making it impossible for him to defend himself. L'Oreal, however, states that in none of the three cases Pighee claims are similar did the accusers request that their identities not be disclosed. Coombs affirms that he concealed the women's identities in Pighee's case out of consideration of the women's requests and in compliance with the company's policy. Pighee has offered no evidence to the contrary. Additionally, once Hogan gave her permission, Coombs arranged for Hogan to confront Pighee regarding the specific allegations. Since Pighee makes a race discrimination claim, the issue is not whether he could adequately defend himself given the confidential manner in which L'Oreal treated this matter; the issue is whether similarly situated white employees were treated differently when it came to investigation procedures. Pighee has not presented this Court any evidence that the three men he identifies were similarly situated in such a way that shows that terminating him for "violations" of the sexual harassment policy was pretextual. Pighee secondly argues that L'Oreal conducted an insufficient investigation into the allegations against him and claims that watching video surveillance film from the facility would have proven his innocence. For the same reason as above, this argument fails. Pighee has failed to present this Court with any evidence that L'Oreal conducted his investigation differently than it did in other cases. Next, Pighee argues that the white employees were treated differently because they were not ultimately terminated for their conduct. Pighee has the burden of demonstrating that the individuals were similarly situated to him in all relevant aspects. See Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir.1994). It is not L'Oreal's burden to prove dissimilarity. See Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir.1988). With regard to Davis and Richey, no reasonable jury could find that these men were similarly situated in all relevant respects. Cf. Jones v. Frank, 973 F.2d 673, 676-77 (8th Cir.1992). After the initial warnings given to each of these men, neither caused further problems or became the subject of later complaints. In Pighee's case, Pighee was the subject of multiple investigations regarding alleged conduct that continued despite warning. Because Davis and Richey were not similarly situated, the fact that neither was terminated is not material. With Renner, the situation calls for closer analysis. The Eighth Circuit has held that "the individuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances." Clark, 218 F.3d at 918 (emphasis added). Pighee must establish that Renner's acts were of "comparable seriousness" to his own conduct. Lanear, 843 F.2d at 301. Based on the evidence produced, Pighee has not met this burden. Pighee is correct that Renner was treated more leniently than he in that he was given more than one written *894 warning, was suspended, sent to counseling, and put on probation, and was fired only after a verbal altercation with another employee. However, Renner's conduct was not comparably serious to Pighee's. The allegations from female employees against Pighee involved forced physical contact under the shirt and between the legs of female co-workers, repeated inappropriate comments of a more sexually explicit nature than those made by Renner, attempts to determine who had reported him to management, and, moreover, indications that the females feared for their safety if their identities were disclosed.[5] Further aggravating Pighee's situation was the fact that he had been disciplined in the past for conduct which others perceived as threatening. Cf. Clark v. Runyon, 218 F.3d at 918-19 (8th Cir.2000). Because this Court cannot find that Renner was similarly situated, Pighee has failed to create a genuine issue of material fact showing that "the proffered explanation had no basis in fact," that similarly situated white employees "received more favorable treatment," or that it was "unlikely [L'Oreal] would have acted on the basis of the proffered reason" in the absence of discrimination. Erickson, 271 F.3d at 727. For this reason, L'Oreal is entitled to summary judgment on the race discrimination claim. III. Retaliation Pighee also brings a retaliation claim under Title VII, contending that he was unlawfully retaliated against because he arranged for African-American mechanics and line workers to meet with L'Oreal officials regarding job concerns and because he gave deposition testimony in Title VII litigation against L'Oreal. Under Title VII, it is unlawful for an employer to discriminate against an employee "because he has ... made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Pighee must establish a prima facie case of retaliation by showing that he engaged in a protected activity, that an adverse employment action occurred, and that there is a causal connection between the two events. Jackson v. Flint Ink North Am. Corp., 370 F.3d 791, 797 (8th Cir.2004). If he makes such a showing, the burden of production then shifts to L'Oreal to rebut this presumption of discrimination. Id. Since L'Oreal offered a legitimate, nondiscriminatory reason for the termination, Pighee also has the burden to identify specific facts in the record showing that the offered reason was merely pretextual and that unlawful retaliation was the true motivating factor. Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir.2004). Even assuming that Pighee could make out a prima facie case on the retaliation claim, he has failed to meet his burden of showing that L'Oreal's stated reason was pretextual. With regard to the meeting Pighee organized, five of the seven African-American attendees are still employed by L'Oreal. Richie Gaines, one of the attendees, voluntarily resigned; only Pighee was involuntarily terminated. Pighee argues in his brief that this is due to the fact that L'Oreal retaliated against him because of his role in organizing the meeting. *895 Without more than a mere assertion, however, no reasonable juror could conclude that L'Oreal's stated reason was pretextual, especially given Pighee's testimony in 2001 that the meeting was successful and that those who attended were "thoroughly satisfied" with what Coombs had told them. Pighee also testified at that time that he had not seen Coombs do anything that he considered racially discriminatory and that whenever he brought a concern to Coombs, Coombs investigated the matter and resolved it to the best of his ability. Such testimony does not invoke a ready inference that L'Oreal would later retaliate against Pighee for his part in calling the meeting. With regard to his deposition testimony, the evidence is likewise insufficient to create a genuine issue of fact of pretext. Of the six employees who gave depositions, one other employee, a Hispanic male, no longer works for L'Oreal; the other four who testified, including the African-American plaintiff and an African-American female, were still employed by L'Oreal when this suit was filed. Under the burden shifting approach, Pighee cannot defeat summary judgment merely by asserting that the reason is pretextual. He must come forward with sufficient evidence demonstrating that a factual issue has been created and that a reasonable juror could conclude that despite the proffered reason, he was fired for an unlawful one. He has failed to do so. IV. State Law Claims A. Defamation A plaintiff must prove the following elements to support a claim of defamation: (1) the defamatory nature of the statement of fact; (2) that statement's identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant's fault in the publication; (5) the statement's falsity; and (6) damages. Superior Fed. Bank v. Mackey, 84 Ark.App. 1, 12, 129 S.W.3d 324, 331 (2003). Arkansas law recognizes a qualified privilege in cases of employers and supervisory employees. Puckett v. Cook, 864 F.2d 619, 621-22 (8th Cir.1989). A defamation claim will fail under Arkansas law unless there is an abuse of privilege or communication to a non-privileged third party. Id. Coombs states that he told only L'Oreal management officials with a need-to-know about the allegations. Pighee testified that no one told him that they learned of the allegations from a L'Oreal official or manager, but attempts to establish communication to a non-privileged third party based on the fact that "people on the floor [of the L'Oreal facility knew] about it." He argues that since the complainants wished to remain anonymous, it seems more likely than not that the other employees were told by some L'Oreal official. Pighee cites no law that would allow this Court to find such unsubstantiated and speculative assertions sufficient to create a genuine issue of material fact on the issue. Based on the lack of evidence that L'Oreal abused its qualified privilege or communicated this information to a non-privileged third party, L'Oreal is entitled to summary judgment on this claim. B. Intentional Infliction Of Emotional Distress In order to sustain an action for outrage, a plaintiff must prove four elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was "extreme and outrageous," was "beyond all possible bounds of decency," and was "utterly intolerable in a civilized *896 community"; (3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Crockett v. Essex, 341 Ark. 558, 563-564, 19 S.W.3d 585, 589 (2000). The standard that a plaintiff must meet in order to satisfy the elements of outrage in Arkansas "is an exceptionally high one." Kelley v. Georgia-Pacific Corp., 300 F.3d 910, 912 (8th Cir.2002). In the employment context the standard is even higher. Id. (citing Palmer v. Ark. Council on Econ. Educ., 344 Ark. 461, 40 S.W.3d 784 (2001)); Faulkner v. Ark. Children's Hosp., 347 Ark. 941, 958, 69 S.W.3d 393, 404 (2002); Freeman v. Bechtel Constr. Co., 87 F.3d 1029, 1031 (8th Cir.1996). Pighee argues that his claim is predicated on L'Oreal informing Pighee that he violated the company's sexual harassment policy without initially disclosing to him the identity of his accusers or the specifics of the allegations. He also bases his claim on L'Oreal's failure to investigate his claim by watching the video surveillance film. Under Arkansas law, however, employers have great latitude in dealing with their employees, especially in matters involving discharge. See City of Green Forest v. Morse, 316 Ark. 540, 542, 873 S.W.2d 155, 156 (1994). Pighee cites no law in support of his arguments nor does he produce evidence that would allow this Court to find that such actions could be construed as "outrageous." Pighee fails to create a genuine issue of material fact and thus summary judgment must be granted in favor of L'Oreal. C. Intentional Interference With Contractual Rights In Arkansas, to bring a claim of tortious interference with the contractual rights and relationships of another, a plaintiff must establish "(1) the existence of a valid contractual relationship; (2) knowledge of the relationship on the part of the third party; (3) intentional and improper interference by that third party inducing or causing a breach or termination of the relationship; and (4) resulting damage to the plaintiff." Palmer, 344 Ark. at 473, 40 S.W.3d at 791. "An action for tortious interference with a contractual relationship is based upon a defendant's conduct toward a third party." Id. (emphasis added). Pighee brings this action against L'Oreal and thus cannot sustain a claim for tortious interference. For this reason, summary judgment in favor of L'Oreal is appropriate. CONCLUSION For the reasons stated above, L'Oreal's motion for summary judgment is GRANTED in its entirety. NOTES [1] L'Oreal moves to strike portions of this affidavit (Docket # 20), arguing that statements made in the affidavit failed to comport with the requirements of Fed.R.Civ.P. 56(e). The Court denies this motion. In adjudicating L'Oreal's motion for summary judgment, the Court will consider admissible portions, if any, of the affidavit which create a genuine issue of material fact. [2] In response to L'Oreal's statement of undisputed facts as to which there is no genuine issue to be tried, Pighee filed a separate statement including seven facts in dispute. The Court finds that these facts are largely conclusory and unsupported by evidence and fail to contradict the facts presented by L'Oreal. Pursuant to Local Rule 56.1, the Court deems L'Oreal's statement admitted. [3] The L'Oreal Sexual Harassment Policy's definition of sexual harassment covers "unwelcome or unsolicited sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature when: ... 3) this conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment." The policy also sets forth procedures for reporting and investigating sexual harassment as follows: Any employee who believes he/she has been harassed by a co-worker... of the Company or is offended by certain behaviors in the workplace should promptly report the facts of the incident or incidents to his/her manager or a Human Resources representative. All complaints will be promptly investigated by appropriate management or Human Resources in as confidential a manner as is compatible with a thorough investigation of the complaint and with respect to the rights of the accused and accuser. If, after investigation, it is determined by Human Resources that sexual harassment has taken place, appropriate corrective action will be taken. Corrective action may range from verbal warnings to termination, depending on the outcome of the investigation. In all cases, a complaint must be treated in a timely manner with seriousness, sensitivity and confidentiality. Retaliation against an individual for exercising his/her rights under this policy will not be tolerated and can result in immediate dismissal. [4] L'Oreal's Corrective Action Record dated 3/5/02 shows that Renner met with two L'Oreal officials to discuss this allegation, that he denied that he brought the material in, and that the officials warned him that participation in these types of actions would result in more severe corrective action. [5] This Court need not determine the veracity of these allegations. While Pighee asserts that the accusations against him were unfounded, his deposition testimony is unsubstantiated. This Court will not disturb L'Oreal's decision to credit the accusations of the female employees after investigating the situation absent bad faith or unreasonableness. See Cronquist v. City of Minneapolis, 237 F.3d 920, 928 (8th Cir.2001); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir.1995).

782 F.2d 1047 Gean, Gean & Geanv.Heckler 85-1425 United States Court of Appeals,Eighth Circuit. 9/24/85 1 W.D.Ark. 2 AFFIRMED * 3 --------------- * See Local Rule 14.

                                                                                                 IN THE COURT OF CRIMINAL APPEALS                                    OF TEXAS                                                                                                                                                 NO. AP-75,207                                   EX PARTE JOSE ERNESTO MEDELLIN, Applicant                                                                                                           ON APPLICATION FOR A WRIT OF HABEAS CORPUS                                                       FROM HARRIS COUNTY     Keller, P.J., filed a concurring opinion.   On behalf of the United States as amicus curiae, the U.S. Attorney General=s office has taken the position that President Bush=s memorandum constitutes an order requiring this Court to ignore rules of procedural default (including rules governing contemporaneous objections at trial and statutes governing subsequent habeas corpus applications) and evaluate anew whether applicant was prejudiced by a failure to comply with the Vienna Convention on Consular Relations.  I conclude that the President of the United States does not have the power to order a state court to conduct such a review.   AAlthough the source of the President=s power to act in foreign affairs does not enjoy any textual detail, the historical gloss on the >executive Power= vested in Article II of the Constitution has recognized the President=s >vast share of responsibility for the conduct of our foreign relations.=@[1]  Nevertheless, the executive=s power in this regard is not without limits, as it must still be Aexercised in subordination to the applicable provisions of the Constitution.@[2]  Among the principles enshrined in the United States Constitution is that of federalism B the separate sovereignty of the state and federal governments B embodied in the structure of the Constitution,[3] as well as in the Tenth Amendment.[4]  Although federalism was Athe unique contribution of the Framers [of the U.S. Constitution] to political science and political theory,@ there remains Amuch uncertainty respecting the existence, and the content, of standards that allow the Judiciary to play a significant role in maintaining the design contemplated by the Framers.@[5]  Nevertheless, I agree with Justice Kennedy that Athe federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for [the judiciary] to admit inability to intervene when one or the other level of Government have tipped the scales too far.@[6]  In line with Justice Kennedy=s pronouncement, the United States Supreme Court has increasingly stepped forward to prevent the national government from intruding into the sphere of state power.  The Court has adopted a general policy against federal injunctive interference with the course of a pending state criminal prosecution.[7]  The Court has struck down Congressional enactments relating to criminal justice that concerned traditional areas of state authority[8] and that imposed obligations on state officials with respect to a federal regulatory scheme.[9]   Although the Court has not struck down a treaty or an executive agreement for impermissibly intruding upon state authority, it has in several instances construed such documents to avoid preemption of state law where the state law in question involved a traditional area of state competence and applied equally to citizens and non-citizens.[10]  One of those instances regards the Vienna Convention treaty itself; the Supreme Court has explicitly recognized that the treaty does not preempt state rules of procedural default.[11]  To the extent that the President purports to trump such state rules by the memorandum, then, he does not act pursuant to the treaty=s authorization.  Nor does he act according to the Optional Protocol, which gave the International Court of Justice (ICJ) jurisdiction of disputes Aarising out of the interpretation or application of the Convention@ but did not purport to confer jurisdiction regarding the remedy to apply in the event the ICJ determined that a violation of the treaty had occurred.[12]  Even if the ICJ had been authorized to craft a remedy, however, that authorization surely could not include deciding which level or organ of government would implement such a remedy; the latter would be an internal matter for the party-nation itself to determine.  Consequently, the President must depend solely upon his inherent foreign relations power to justify the action he has taken, and as a result, his action should be subject to greater scrutiny.  It is true that the President=s foreign relations power can accomplish the preemption of state law through, for example, executive agreement.[13]  But the treaty process, with the requirement that a supermajority of the Senate concur,  is in the United States Constitution for a reason;[14] Alexander Hamilton suggested in the Federalist Papers that the provision operates as an important check on the President=s power.[15]  I find it significant that this check is exercised by the Senate, the organ of the national government most closely aligned with the states. The Supreme Court has suggested that the proper analysis for determining whether a president=s exercise of his foreign relations power preempts state law is to determine first whether the state has acted within an area of Atraditional state responsibility,@ and if it has, to assess the degree of conflict with federal policy and the strength of the state interest involved.[16]  Unlike other federal preemption cases in which a state has prevailed, we address here an express, stark conflict between the President=s assertion of power (at least under the Justice Department=s interpretation) and the state law at issue.   Nevertheless, given the principle that a weighty state interest lessens the likelihood of federal preemption, it follows that a president cannot use his foreign affairs authority to intrude into the state arena with impunity: at some point, the national interest is served in too attenuated a manner by the specific presidential action, and the state interest intruded upon is too fundamental, to permit a president=s intervention. Such a case is now before us.  Criminal justice is an area primarily of state concern.  The Supreme Court has repeatedly recognized that the AStates possess primary authority for defining and enforcing the criminal law.@[17]  And states have, to say the least, an overwhelming interest in the procedures followed in their own courts.  In Younger, the Supreme Court found that Aa proper respect for state functions@ counseled against injunctive interference by the federal courts with the progress of a state prosecution.[18]  But the presidential memorandum attempts to do something just as intrusive: it attempts to force the states to conduct proceedings they would not otherwise conduct and to do so in a manner inconsistent with their own procedures.  The Supreme Court has itself refrained from engaging in this kind of Alawmaking.@[19]  Moreover, the memorandum ignores Athe importance of the procedural default rules in an adversary system.@[20]  These rules, which are neutral B applying to everyone, not just foreign nationals B Aare designed to encourage parties to raise their claims promptly and to vindicate the law=s important interest in finality of judgments.@[21]  When a habeas petitioner asked the United States Supreme Court in Sanchez-Llamas to exempt Vienna Convention claims from the rules of procedural default, the Court responded that the relief requested was Aby any measure, extraordinary.@[22]  The Court observed that the exception to procedural default rules requested in that case (as in this one) Ais accorded to almost no other right, including many of our most fundamental constitutional protections.@[23]  The President=s action here is unprecedented. And such extraordinary action is not necessary.  The adversary system offers the foreign national the opportunity to raise a Vienna Convention claim before or during trial.  If he does so, the trial court is in a position to afford an appropriate remedy B if a judicial remedy is appropriate at all.[24]  If the foreign national is represented by counsel, and counsel fails to raise the Vienna Convention issue in a timely fashion, then a Asafety valve@ exists in the form of an ineffective assistance of counsel claim that can be raised on an initial application for writ of habeas corpus.  If all other avenues in the state are exhausted, the foreign national can still apply to the Board of Pardons and Parole and the Governor for executive clemency.  And the foreign national has the option to litigate a habeas petition in the federal system.  The President has made an admirable attempt to resolve a complicated issue involving the United States= international obligations.  But this unprecedented, unnecessary, and intrusive exercise of power over the Texas court system cannot be supported by the foreign policy authority conferred on him by the United States Constitution.  As a consequence,  the presidential memorandum does not constitute a new legal or factual basis for relief under Art. 11.071, '5, nor does it override '5=s requirements.             With these comments, I concur in the judgment with regard to the analysis of the president=s memorandum and otherwise join the Court=s opinion. Keller, P.J. Date filed: November 15, 2006 Publish                 [1]  American Ins. Assn. v. Garamendi, 539 U.S. 396, 414 (2003)(quoting in part Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-611 (1952)(Frankfurter, J., concurring)). [2]  Id. at 416 n. 9. [3]  See U.S. Const., Arts. I, '2 (members of the House of Representatives elected by people Aof the several States@), '3 (Senate composed of two senators from each state), '4 (time, place and manner of elections for representatives and senators prescribed by each state), '10 (specific prohibitions against the states), II, '1 (states appoint presidential electors), IV, '1 (full faith and credit between states), '2 (privileges and immunities of citizens of the states), '3 (admission of new states into the union), '4 (duties of U.S. to its states), V (state ratification of amendments proposed by Congress). [4]  U.S. Const., Amend X: AThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.@ [5]  United States v. Lopez, 514 U.S. 549, 575 (1995)(Kennedy, J., concurring).           [6]  Id. at 578. [7]  Younger v. Harris, 401 U.S. 37, 45-54 (1971)(abstention doctrine). [8]  Lopez, 514 U.S. 549 (striking down law criminalizing possession of a firearm in a gun-free school zone); United States v. Morrison, 529 U.S. 598 (2000)(invalidating statutorily-created civil cause of action for victims of gender-motivated violence). [9] Printz v. United States, 521 U.S. 898 (1997)(striking provision requiring state and local law enforcement officials to conduct background checks on prospective handgun purchasers). [10]  Todok v. Union State Bank, 281 U.S. 449, 454-455 (1930)(treaty of amity and commerce did not preempt Nebraska homestead law); Guaranty Trust Co. v. United States, 304 U.S. 126, 142-143 (1938)(executive agreement with the Soviet Government assigning economic claims did not preempt New York statute of limitations); Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2682-2688 (2006)(Vienna Convention treaty does not preempt state rules of procedural default). [11]  Sanchez-Llamas, supra. [12]  Under the ICJ statute, four different topics can be made subject to the international court=s compulsory jurisdiction:   a. the interpretation of a treaty;   b. any question of international law;   c. the existence of any fact which, if established would constitute a breach of an international obligation,   d. the nature and extent of the reparation to be made for the breach of an international obligation.@   Statute of the Court of International Justice, Art. 36, '2 (emphasis added).  The Optional Protocol subjects to the ICJ=s compulsory jurisdiction only A[d]isputes arising out of the interpretation or application of the Convention.@ Optional Protocol to Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, Art. I (emphasis added). [13]  Garamendi, 539 U.S. at 416 (AGenerally, then valid executive agreements are fit to preempt state law, just as treaties are,@ but see caveat referenced earlier in this opinion and cited in footnote 2). [14]  See U.S. Const., Art. II, '2 (AHe shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided that two thirds of the Senators present concur@). [15]  Alexander Hamilton, Federalist Papers, No. 75. [16]  Garamendi, 539 U.S. at 420, 420 n. 11. [17]  Lopez, 514 U.S. at 561 n. 3 (quoting Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)(quoting Engle v. Isaac, 456 U.S. 107, 128 (1982))). [18]  401 U.S. at 44. [19]  Sanchez-Llamas, 126 S. Ct. at 2680 (Awhere a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking of their own@), 2687 (The petitioner Aasks us to require the States to hear Vienna Convention claims raised for the first time in state postconviction proceedings.  Given that the convention itself imposes no such requirement, we do not perceive any grounds for us to revise state procedural rules in this fashion.@)(emphasis in original). [20]  Id. at 2685. [21]  Id. [22]  Id. at 2687. [23]  Id. at 2688. [24]  See Id. at 2680 (expressing doubt about the appropriateness of a judicial remedy).

COURT OF APPEALS OF VIRGINIA Present: Judges Koontz * , Elder and Fitzpatrick Argued at Salem, Virginia RALEIGH MILTON DODSON v. Record No. 0838-94-3 MEMORANDUM OPINION BY** JUDGE LAWRENCE L. KOONTZ, JR. COMMONWEALTH OF VIRGINIA AUGUST 22, 1995 FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge John H. Heard (Sinclair & Heard, on brief), for appellant. Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee. Raleigh Milton Dodson (Dodson) appeals his bench trial conviction for possession of cocaine with intent to distribute. Dodson asserts that the trial court erred in finding his initial confrontation with police was not a seizure and in finding that the subsequent "pat down" was reasonable. Dodson further asserts that the evidence was insufficient to support a conviction for possession of cocaine with intent to distribute. We disagree and affirm Dodson's conviction. On the evening of December 26, 1993, Danville Police Officers Kennedy, Wallace, and Buzby were patrolling a high crime area in response to citizen complaints of drug dealing in that area. The officers were aware that guns had been stolen from a * Justice Koontz prepared and the Court adopted the opinion in this case prior to his investiture as a Justice of the Supreme Court of Virginia. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. building in that area. During their patrol, the officers observed two men standing near a street corner in a dark area. The week before, Officer Wallace and his partner had discovered a gun about a block from where these two men stood. The officers parked their vehicles and approached the two men. Officer Kennedy asked them, "What's up? How Ya'll doing? What's your names?" The two men answered. Kennedy then asked why they were standing on the corner and if they were armed. Officer Kennedy engaged the second man in conversation while Officers Wallace and Buzby spoke with Dodson. For safety reasons, Officer Buzby stood several steps behind Dodson with a flashlight and Officer Wallace stood in front of Dodson. Officer Wallace informed Dodson of the drug and crime problems in the area, requested identification, and asked Dodson to explain his presence in the area. Dodson could not produce any identification. He said he was visiting his girlfriend. Wallace then asked whether Dodson was armed and requested permission to conduct a "pat down." Dodson refused to consent to a "pat down," stating, "I don't have anything, and so there's no need to do that." Dodson then immediately reached into the left pocket of his jogging suit. Officer Wallace testified that he thought Dodson might be reaching for a gun. Wallace told Dodson, "Don't do that. You're making me nervous. Don't do that. I'm going to pat you down, and make sure you don't have a weapon." Officer Wallace then pulled Dodson's hand out of the pocket and began a "pat down" with Officer Buzby's assistance. Dodson -2- protested that he was not carrying any weapons. During the "pat down," Officer Buzby felt a hard lump in Dodson's sock. When Buzby touched the lump, Dodson jerked his leg back and took flight. The officers caught Dodson and discovered 40.1 grams of cocaine in his sock. Dodson first contends that he was illegally seized during the initial confrontation and questioning when Officer Buzby stood behind him with a flashlight and Officer Wallace stood in front of him. "[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). See Florida v. Royer, 460 U.S. 491, 500 (1983); Baldwin v. Commonwealth, 243 Va. 191, 196, 413 S.E.2d 645, 647-48 (1992). Dodson's reliance on Moss v. Commonwealth, 7 Va. App. 305, 373 S.E.2d 170 (1988), is misplaced. In that case, we held that an individual was "seized" under the Fourth Amendment and not free to leave when a police officer appeared suddenly from a hidden location and shined a flashlight into the individual's face, blinding and stunning him. Id. at 306-08, 373 S.E.2d at 171. In the present case, the officers approached Dodson from their police vehicles and initiated a consensual encounter. Furthermore, the officer used the flashlight to look over Dodson's person, not to blind or stun him. Dodson also relies on Goodwin v. Commonwealth, 11 Va. App. -3- 363, 398 S.E.2d 690 (1990). In Goodwin, the officer immediately informed the individual that he would be searched for weapons. Id. at 365, 398 S.E.2d at 691. Unlike the present case, there was no consensual aspect to the encounter. Id. Police officers do not "seize" an individual by simply "asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen." Florida v. Royer, 460 U.S. 491, 497 (1983); see Richards v. Commonwealth, 8 Va. App. 612, 615, 383 S.E.2d 268, 270 (1989). Although one officer was in front and another behind Dodson, Dodson was not limited in his freedom of movement and could have terminated the encounter by stepping to the side or asking the officers to step aside. The police officers did not indicate by words or actions that Dodson was required to remain and answer questions. "Acquiescence in 'a police request, which most citizens will do, does not negate the consensual nature of the response.'" Greene v. Commonwealth, 17 Va. App. 606, 610, 440 S.E.2d 138, 140-41 (1994) (citations omitted). Considering the totality of the circumstances, a reasonable person in Dodson's situation would believe that he or she was free to walk away from the officers. Accordingly, because the initial confrontation between Dodson and the officers was consensual, we hold that Dodson was not seized at that point. Dodson further contends that he was illegally seized when the police conducted the "pat down" search without a reasonable "articulable suspicion" of criminal activity. The dangerous -4- nature of police work necessitates that the police take special precautions to protect themselves and others from potentially violent situations. Terry v. Ohio, 392 U.S. 1, 24 (1968). However, law enforcement agents without probable cause to arrest may only conduct "pat downs" in those instances where they can "point to specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant that intrusion." Id. at 21. In determining whether there are specific and articulable facts to justify a pat down, we look at the circumstances of the encounter including the "'characteristics of the area' where the stop occurs, the time of the stop, whether late at night or not, as well as any suspicious conduct of the person accosted." Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 86-87 (1987) (quoting U.S. v. Bull, 565 F.2d 869, 870-71 (4th Cir. 1977), cert. denied, 435 U.S. 946 (1978)); see Nesbit v. Commonwealth, 15 Va. App. 391, 393, 424 S.E.2d 239, 240 (1992). Dodson was standing in a dark location in a high crime area. The police were responding to a complaint of drug dealing. In this Commonwealth "suspicion of narcotics possession and distribution is . . . recognized as a circumstance which, standing alone, gives rise to an inference of dangerousness." Williams, 4 Va. App. at 67, 354 S.E.2d at 87. Furthermore, guns had been stolen in the area a few months before the incident. Only a week earlier, Officer Wallace had discovered a gun a block away from where Dodson stood. After refusing to consent to a -5- "pat down" search, Dodson stated that he was not armed and immediately reached into his pocket. Under these facts, it was reasonable for the police to be concerned for their safety. We hold that the "pat down" search of Dodson was justified and involved no unlawful seizure. Finally, Dodson contends that the evidence was insufficient to establish possession of cocaine with intent to distribute. We disagree. It is clear that "quantity, when greater than the supply ordinarily possessed by a narcotics user for his personal use, is a circumstance which, standing alone, may be sufficient to support a finding of intent to distribute." Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1973) (emphasis added); see Glenn v. Commonwealth, 10 Va. App. 150, 154-55, 390 S.E.2d 505, 508 (1990); Monroe v. Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987). Officer Wallace testified that 0.7 grams of cocaine was a normal unit for personal consumption and would sell for about $25. The officers found 40.1 grams of cocaine hidden in Dodson's sock. The quantity of cocaine found on Dodson and the manner in which it was hidden are sufficient to raise a reasonable inference that his intent was to distribute the cocaine. For these reasons, the conviction is affirmed. Affirmed. -6- 

217 S.W.3d 430 (2007) CITIZENS INSURANCE COMPANY OF AMERICA, Citizens, Inc., Harold Riley, and Mark Oliver, Petitioners, v. Dr. Fernando Hakim DACCACH, On Behalf of Himself and all Others Similarly Situated, Respondent. No. 03-0505. Supreme Court of Texas. Argued October 21, 2004. Decided March 2, 2007. *435 Fred E. Davis, Mark A. Keene, Davis & Davis, P.C., Austin, for Petitioners. Robert B. Dubose, Alexander Dubose Jones & Townsend LLP, Ronald E. Cook, Robert M. Roach Jr., Cook & Roach L.L.P., Houston, Carlos Velasquez, Montero Finizio & Velasquez, Fort Lauderdale, Tony M. Jobe, Law Offices of Tony Jobe, Madisonville, LA, and Robert J. Malone, Toas, NM, for Respondent. Justice WAINWRIGHT delivered the opinion of a unanimous Court as to sections I-III and V-VIII; the opinion of the Court as to sections IV-A, IV-C, and IV-D, joined by Justice HECHT, Justice O'NEILL, Justice GREEN, Justice JOHNSON, and Justice WILLETT; and a concurring opinion as to section IV-B, joined by Justice JOHNSON. In this interlocutory appeal petitioners challenge a trial court's order certifying a worldwide class. Dr. Fernando Hakim Daccach, the class's representative, alleges that petitioners Citizens Insurance Company of America (CICA), Citizens, Inc., Harold E. Riley, and Mark A. Oliver (collectively Citizens) sold securities from Texas to nonresidents without complying with the registration requirements of the Texas Securities Act. The court of appeals modified the class definition and affirmed the trial court's certification of the class. 105 S.W.3d 712. Because we conclude the trial court did not consider the effect of res judicata on the adequacy of the class representative, the superiority of litigating this case as a class action, the typicality of claims within the class, and the predominance of common issues over individual issues, we decertify the class and remand the case to the trial court for further proceedings consistent with this opinion. I. Background Citizens, Inc. and its wholly-owned subsidiary CICA are Colorado corporations with their principal places of business in Austin, Texas. Riley and Oliver are officers and directors of Citizens, Inc. Citizens sells life insurance policies (CICA policies) through foreign insurance agents exclusively to persons outside of the United States. The purchasers reside in over thirty-five countries including the United States. The CICA policies allow policyholders to assign policy dividends and other benefits to offshore trusts. The trusts use the assigned dividends and other benefits to purchase common stock in Citizens, Inc. Each year since 1996 there have been approximately 30,000 CICA policies in effect, with each policyholder paying an average annual premium of around $2,000. Id. at 717. At least seventy-five percent of these policyholders have assigned their policy dividends and other benefits to the offshore trusts. Id. The CICA policies are not registered with the Texas State Securities Board, Texas Department of Insurance, nor any other regulatory body in the United States, although the common stock purchased with policy dividends is listed on the American Stock Exchange. Similarly, neither Citizens nor its salespersons have registered with any regulatory body in Texas or elsewhere in the United States. Citizens also asserts that the CICA policies are not subject to regulation in the countries in which the policyholders reside. On August 6, 1999, Delia Bolanos Andrade and Luis Martin Tapia Alberti, both residents and citizens of Colombia, South America, filed a class action against Citizens in Texas state court. The original *436 petition alleged several causes of action related to the CICA policies, including (1) violations of the Texas Deceptive Trade Practices Act, (2) breach of contract, (3) fraud, (4) fraud in the inducement, (5) negligent misrepresentation, (6) breach of the duty of good faith and fair dealing, (7) violations of the Texas Insurance Code, (8) equitable reformation of the policies, (9) conspiracy to plan and implement this scheme, and (10) unjust enrichment and the imposition of a constructive trust. On December 15, 2000, the class plaintiffs filed a second amended original petition to add a cause of action under the Texas Securities Act for selling securities in this state without first being registered. See TEX. REV.CIV.STAT. arts. 581-12A, 581-33A(1).[1] By this time seven new plaintiffs had been added to the lawsuit, including Daccach. On June 29, 2001, Daccach filed a motion for class certification in which he sought designation as the class representative and alleged against Citizens only one class claim: selling or offering securities from Texas in the form of the CICA policies without registering with the Texas Securities Board. See TEX.REV.CIV. STAT. arts. 581-12A, 581-33A(1), 581-33D(1), D(3). Daccach expressly disclaimed any intention to pursue the other causes of action in the class suit. In the sixth amended petition, filed the same day as the first amended motion for class certification, the other plaintiffs pled the original claims against Citizens as individuals, not as class representatives. The trial court has not ruled on Daccach's motion to sever the class claims. Challenging Daccach's motion for class certification, Citizens argued that Texas law should not apply to this worldwide class action and that Daccach's abandonment of claims defeats certification prerequisites. In response, Daccach presented alternate choice of law analyses all of which directed the application of Texas law, but none of his theories analyzed the laws of other jurisdictions. After conducting a four-day hearing, the trial court granted Daccach's motion in a twenty-page class certification order. The order's nine-page trial plan identified four class-wide issues to be resolved at trial: (1) whether a CICA Policy is a "security" pursuant to the Securities Act (including the question of whether the CICA policies fall within an insurance exception to the Securities Act); (2) whether Citizens sold or offered for sale the CICA policies from Texas; (3) the calculation of the statutory remedy pursuant to the Securities Act; and (4) attorney's fees. The order defined the class as follows: The Class consists of all persons, who, during the Class Period (August 6, 1996 through the date the Class is certified): (1) purchased a CICA Policy and executed an assignment to a trust for the purchase of Citizens, Inc. stock, or (2) paid any money that, pursuant to a CICA Policy and assignment to a trust, was for the purchase of Citizens, Inc. stock, or (3) were entitled to any cash benefits from a CICA Policy that, pursuant to a CICA Policy and assignment to *437 a trust, were for the purchase of Citizens, Inc. stock. Specifically excluded from the Class are all persons who, within the time period established by the judgment, do not surrender their CICA Policies and take the other actions required to obtain the relief awarded by the Court. Citizens brought an interlocutory appeal challenging the trial court's certification order. See TEX. CIV. PRAC. & REM.CODE § 51.014(a)(3). Citizens argued that the trial court abused its discretion in granting Daccach's motion for class certification. First, Citizens challenged the adequacy of the trial court's class definition. Second, it argued that the trial court failed to conduct a proper choice of law analysis to determine whether common issues predominate over individual issues. Third, Citizens argued that the trial court failed to adequately establish the class certification prerequisites. The court of appeals rejected all three points, holding that: the class definition, after a one-word modification, precisely ascertains the class members;[2] the trial court was not required to engage in a "most significant relationship" choice of law analysis; and the trial court did not abuse its discretion by finding that the class certification requirements had been met. 105 S.W.3d at 729-30. Citizens then petitioned this Court for review. Specifically, Citizens contends that the court of appeals erred in (1) affirming the certification of an improper fail-safe class, whose members are not presently ascertainable, and eviscerating material defenses; (2) not applying the "most significant relationship" test to resolve choice-of-law issues; (3) determining that common legal and factual issues predominate despite that calculating attorney's fees will be an overwhelming task requiring the discovery and resolution of circumstances surrounding life insurance sales in over fifty foreign jurisdictions; (4) affirming that a class action is superior to individual claims despite the fact that certification requires dismissal of ten of the eleven original claims and that this is not a negative value suit;[3] (5) agreeing, without explanation, that the trial court will be able to implement the statutory remedy of rescission even though the beneficial interests of the policies are held in offshore trusts not parties to this case; (6) affirming that Texas Rule of Civil Procedure 42(a)'s typicality requirement was met despite the presence of a statute of limitations defense against the class plaintiff and the class plaintiff's dismissal of ten of the eleven originally alleged claims; and (7) holding that previously asserted, and now abandoned, individual claims of class members would not be barred by res judicata, thereby reading Rule 42 as an exception to the Court's transactional approach to claim preclusion. We granted Citizens' petition for review. II. Jurisdiction Section 51.014(a)(3) of the Texas Civil Practice and Remedies Code allows the interlocutory appeal of class certification orders. Although interlocutory appeals are generally final in the courts of appeals, this Court has jurisdiction over an interlocutory appeal if the court of appeals "holds differently from a prior decision of another court of appeals or of the supreme court." TEX. GOV'T CODE §§ 22.001(a)(2), *438 22.225(b)(3), (c).[4] "[T]wo decisions hold differently or conflict when the rulings in the two cases are so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other." Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 687 (Tex.2002) (internal quotation marks omitted) (citing Christy v. Williams, 156 Tex. 555, 298 S.W.2d 565, 567 (1957)). In Intratex Gas Co. v. Beeson, we held that the trial court abused its discretion by certifying a fail-safe class. 22 S.W.3d 398 (Tex.2000). A fail-safe class is a class bound only by a judgment for the plaintiffs. Id. at 402. In such a case, "[a] determination that the defendant is not liable . . . obviates the class, thereby precluding the proposed class members from being bound by the judgment." Id. at 405. We rejected that outcome because Rule 42(b) was never intended to be an exception to res judicata. In this case, the court of appeals held that the class's claim under the Texas Securities Act met the predominance requirements of Rule 42 even if the class abandoned other potential claims to meet that requirement. The court explained: "`Clients who have claims not raised in this class action because the claims are unsuitable for class treatment can bring those claims on an individual basis, and res judicata will not bar those claims because absent class members had no opportunity to litigate those issues in this lawsuit.'" 105 S.W.3d at 725 (quoting Sullivan v. Chase Inv. Servs. of Boston, Inc., 79 F.R.D. 246, 265 (N.D.Cal.1978)). The court of appeals' creation of a special exception to established principles of claim preclusion conflicts with this Court's holding in Beeson. Accordingly, we have jurisdiction over this appeal. III. General Certification Requirements All class actions must satisfy four prerequisites: (1) numerosity—the class is so numerous that joinder of all members is impracticable; (2) commonality—there are questions of law or fact common to the class; (3) typicality—the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) adequacy of representation—the representative parties will fairly and adequately protect the interests of the class. TEX. R. CIV. P. 42(a); see also Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 435 (Tex. 2000). In addition, a class action must satisfy at least one of the requirements in Rule 42(b). Here Daccach argues the class action satisfies Rule 42(b)(3),[5] which requires that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members" and that class treatment be "superior to other available methods *439 for the fair and efficient adjudication of the controversy." Rule 42 contains a list of nonexhaustive factors to aid a court in determining if (b)(3) certification is appropriate: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. TEX.R. CIV. P. 42(b)(3). In Bernal, we explained that to properly apply the certification prerequisites, a trial court must perform a "rigorous analysis." 22 S.W.3d at 435. And to correctly determine these certification issues, a certifying court must "understand the claims, defenses, relevant facts, and applicable substantive law." Id. This understanding requires a choice of law analysis at the outset anytime there is an issue of which of several jurisdictions' laws should govern a case. Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 672 (Tex.2004) ("[Variations in the laws of multiple jurisdictions] `may swamp any common issues and defeat predominance.'" (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 741 (5th Cir.1996))). The threshold question, therefore, is whether the trial court conducted a proper choice of law analysis and correctly decided that Texas law governs this class suit. Compaq, 135 S.W.3d at 672. IV. Choice of Law A. Plain Language of Section 12 "[W]hen ruling on motions for class certifications, trial courts must conduct an extensive choice of law analysis before they can determine predominance, superiority, cohesiveness, and even manageability." Id. This analysis arms the court with information necessary to determine if questions of law or fact common to the members of the class will predominate over any questions affecting only individual members. See TEX.R. CIV. P. 42(b)(3). Common questions of law may not predominate if class members' claims are not governed by the same law. Schein, 102 S.W.3d at 695-99. Here, Daccach, as class representative, bears the burden of showing that Texas law applies to the class's claim. Compaq, 135 S.W.3d at 672. Daccach alleges that the defendants violated the Texas Securities Act by offering or selling securities from Texas without registering with the Texas Securities Board. He argues that the Texas Securities Act directs the application of Texas law notwithstanding the presumed interests of the forums in which the plaintiffs reside. He explains that the defendants were Texas residents doing business in Texas at all relevant times. Daccach argues that an analysis of other jurisdictions' laws is unnecessary because (1) Citizens is estopped from arguing the applicability of foreign laws because of its previous position that the CICA policies were not subject to foreign regulation, and (2) the registration provision of the Texas Securities Act directs the application of Texas law in this case, rendering unnecessary a comparison of other potentially applicable jurisdictions' laws. Citizens argues that the pleadings show that the dispute implicates interests of over thirty-five jurisdictions where the putative class members reside. Citizens asserts that, at a minimum, the pleadings require the trial court to conduct an extensive analysis of potential conflicts among other jurisdictions' laws and determine *440 which jurisdiction has the most significant relationship to the class claim. See RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 6 (1971). Citizens contends that failing to do so violates the Due Process Clause of the U.S. Constitution. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). In the class certification order, the trial court concluded: The Class Plaintiff has asserted only one cause of action for which he seeks class certification, that is, violations of the Texas Securities Act. At the certification hearing, the Class Plaintiff presented evidence of numerous activities of the Defendants in Texas relating to the CICA policies. Accordingly, the Court concludes that for purposes of class certification, Texas law applies. The court of appeals held that under section 6(1) of the Restatement (Second) of Conflict of Laws, Texas law applies because the Texas statute directs that it apply. 105 S.W.3d at 723-24. As an initial matter, we reject Daccach's estoppel argument. We have explained that "[a] court may not accept `on faith' a party's assertion that no variations in [other jurisdictions'] laws exist." Compaq, 135 S.W.3d at 672-73. The court must determine which substantive law governs the case. See Shutts, 472 U.S. at 820, 105 S.Ct. 2965 ("plaintiff's desire for forum law is rarely, if ever controlling"); Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 352 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Which jurisdiction's substantive law governs is ultimately a question of law for the court. Compaq, 135 S.W.3d at 672. Daccach pleads a single cause of action on behalf of the class: Citizens violated section 12 of the Texas Securities Act that requires dealers in Texas who offer or sell securities to register with the Texas Securities Board. See TEX. CIV. STAT. arts. 581-12A, 581-33A(1). No one disputes that Citizens was doing business in Texas and physically present in Texas when it sold the CICA policies to class members. Texas has a strong interest in regulating the sale of securities in and from the state. The Section 12 registration provisions indemnify investors victimized by violations of the Texas Securities Act, encourages compliance with its regulatory and disclosure provisions, creates an incentive for its private enforcement, and guards the integrity of the state's securities industry by protecting resident sellers who operate in compliance with the law. See TEX. CIV. STAT. art. 581-33 cmt. background—1977; Rio Grande Oil Co. v. State, 539 S.W.2d 917, 921 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.) ("A state is damaged if its citizens are permitted to engage in fraudulent [securities] practices even though those injured are outside its borders."); see also UNIF. SEC. ACT-1956, § 414(a)-(f) cmt. 3, 7C U.L.A. 941 (2006) (noting that state Blue Sky laws are also intended to prevent use of a state as a base of operations to defraud persons in other states); Joseph C. Long, The Conflict of Laws Provisions of the Uniform Securities Acts or When Does a Transaction "Take Place in the State?", 31 OKLA. L.REV. 781, 784 (1978); Louis Loss, The Conflict of Laws and the Blue Sky Laws, 71 HARV. L.REV. 209, 225 n. 50 (1957); Jack E. McClard, The Applicability of Local Securities Acts to Multi-State Securities Transactions, 20 U. RICH. L.REV. 139, 142 (1985). Because the class lawsuit only alleges Citizens' failure to register with the Texas Securities Board before allegedly offering and selling securities from Texas, Section 12 governs under any conflict of law principles that might apply. *441 Absent unique statutory circumstances, trial courts must conduct the extensive choice of law analysis described in Compaq before making a certification decision. Compaq, 135 S.W.3d at 672. In Compaq, the class alleged a Uniform Commercial Code breach of an express warranty claim occurring in all fifty states. See id. at 672-73. We held that the trial court erroneously applied Texas law after a cursory review and failed to analyze the relevant law of each state. However, a claimed failure to register as a dealer before offering or selling securities is different. Securities offered or sold in multiple states may be subject to the registration requirements of each state in which an offer or sale is made. See Lintz v. Carey Manor, Ltd., 613 F.Supp. 543, 550 (D.C.Va.1985); Michael A. Hanzman, The Reach of State Blue Sky Laws—A Potentially Dangerous Trap for the Unwary Practitioner, 63 FLA. B.J. 16, 19 (1989) ("[J]ust as one transaction can violate both federal and state law simultaneously, it can violate several blue sky laws simultaneously."); see also 69A AM. JUR. 2D Securities Regulation § 18 (2006) (stating more broadly than held here that "all of the blue sky laws of all the jurisdictions apply to the transactions which are within the bounds of the statute"). Multiple registration requirements of multiple states may govern the dealer's conduct and give rise to several statutory violations. See Chrysler Capital Corp. v. Century Power Corp., 1992 WL 163006 (S.D.N.Y.1992) (unpublished); Simms Inv. Co. v. E.F. Hutton & Co., 699 F.Supp. 543, 545 (M.D.N.C.1988) ("The court has firmly concluded that the securities laws of two or more states may be applicable to a single transaction without presenting a conflicts of laws question."); see also UNIF. SEC. ACT-1956, § 414(a)-(f) cmt. 3, 7C U.L.A. 941 (2006); JOSEPH C. LONG, 12 BLUE SKY LAW §§ 3.01 n. 2.2, 3.02[1] n. 13 (rev. ed.1988); LOUIS LOSS & JOEL SELIGMAN, FUNDAMENTALS OF SECURITY REGULATION 92-94 (3d ed.1989); McClard, 20 U. RICH. L.REV. at 141. Thus, a claim based on the failure to register with the Texas Securities Board before offering or selling securities from Texas does not present a classic conflict of laws problem. We do not hold that the Texas Securities Act directs the application of the Texas Blue Sky laws[6] in every securities case involving facts touching Texas or its residents. The question is one of legislative intent as to the particular provision at issue, subject to constitutional limitations. We recognize that violations of other securities laws, such as those based on misrepresentation, may well be subject to a different analysis. See Tracker Marine, L.P., 108 S.W.3d at 359; Loss, 71 HARV. L. REV. at 209 (indicating that unlike registration requirements, presumably the conflict of laws rules for anti-fraud aspects of the blue sky laws are not too different from "the rules for common-law deceit or rescission"). But those types of claims are not raised here. The concurrence would require a thorough comparison of the laws of the jurisdictions implicated by the pleadings, even though the only claim at issue is that Texas residents offered or sold securities *442 from Texas without registering with the Texas Securities Board. The concurrence asserts that the Court's choice of law determination "risks making Texas a magnet forum for national and international class actions." 217 S.W.3d 430, 464. We do not hold, contrary to the concurrence's indication, that a class may gain application of Texas law by simply suing in Texas on a Texas statute or on any Texas Blue Sky provision. It is the rare class suit in which a Texas court reaches a permissible conclusion on choice of law without an extensive analysis. The concurrence also argues that the Court allows "the simple institution of a multistate class suit" to create a "substantial threat to our constitutional system of cooperative federalism." Id. at 461 (quoting 4 HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 13.37 (4th ed.2002)). As explained, the filing of suit in Texas is not the basis for the choice of law determination. The determinative question is not where the class suit was filed, but, under principles of statutory interpretation, whether the resident defendants' actions in Texas constitute conduct the Legislature intended to regulate. This holding offends neither the U.S. Constitution nor principles of federalism. Further, the concurrence fails to explain the parameters of its approach. Which of the other jurisdictions' laws may govern the failure to register in Texas? Which jurisdictions' laws should be studied and compared to Section 12(A), the only claim alleged? Neither the pleadings nor the class definition assert the violation of the common law or another jurisdiction's statute prohibiting the sale of securities to or from Texas by a resident dealer not registered in Texas. We do not compel plaintiffs in individual suits to plead the violation of all potentially applicable laws, yet the concurrence would impose that burden on class plaintiffs. Daccach was not required to present a global overview of potentially applicable securities registration laws to pursue a claim against Citizens for selling or offering securities in or from Texas as an unregistered dealer. See Irving L. Faught & Z. Faye Martin Morton, Recent Developments in Securities Law: USA 2002—Something Old, Something New . . ., 60 CONSUMER FIN. L.Q. REP. 58, 60 (2006); Larry Kramer, Choice of Law in Complex Litigation, 71 N.Y.U.L. REV. 547, 549 (1996); Larry Kramer, Rethinking Choice of Law, 90 COLUM. LAW REV. 277, 284-87 (1990) (reasoning that the choice of law analysis of the class's claim should not be evaluated differently than it would be if brought by an individual). The trial court correctly concluded that the Texas Securities Act applies to this suit. B. The Restatement Approach In the alternative, the registration requirement in the Texas Securities Act contains a statutory directive compelling the application of Texas law. This Court uses the analysis described in the Restatement (Second) of Conflicts of Laws to resolve choice of law issues and select the particular substantive issue that governs a case. See Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 203-04 (Tex.2000); Schein, 102 S.W.3d at 696-99. Section 6 of the Restatement provides: (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, *443 (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 6 (1971). The Restatement identifies a framework many courts follow when deciding which jurisdiction's law applies. The first question is whether the particular substantive law is subject to a clear choice of law determination by the Legislature of the forum state. See Marmon v. Mustang Aviation, 430 S.W.2d 182 (Tex.1968). If there is such a directive, a court examines the directive in light of constitutional limitations that might preclude application of the local law. If answering the first two inquiries does not resolve the issue, a court can apply the forum law if it does not conflict with the laws of other interested jurisdictions. See Compaq, 135 S.W.3d at 672. If variation in the laws of several interested jurisdictions creates a conflict, then courts will apply the significant relationship guidelines of Section 6(2) and any other specific sections applicable to the substantive law at issue. See Hughes Wood Prods., 18 S.W.3d at 205; see, e.g., RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 192 (1971) (relating to the validity or rights created by life insurance contracts). Under this hierarchy, the factors in section 6(2) of the Restatement do not come into play if there is statutory guidance that the law is intended to govern the transaction. For instance, when the Fifth Circuit applied this analysis to project Texas' choice of law rule for pendant state claims, it declined to look to the "most significant relationship" guidelines when a Texas statute provided clear choice of law guidance, and held that "`a court should only resort to the § 6 guidelines in the absence of either a valid contractual agreement between the parties regarding the applicable law, or a local statutory provision controlling the disposition of the choice of law question.'" Sommers Drug Stores Co. v. Corrigan, 883 F.2d 345, 353 (5th Cir.1989) (emphasis added) (quoting American Home Assurance Co. v. Safway Steel Prods. Co., 743 S.W.2d 693, 697 (Tex.App.-Austin 1987, writ denied)). An examination of the provision of the Texas Securities Act at issue shows whether the Texas Legislature intended to direct the application of that provision to the facts alleged in this case. The sole violation of law alleged by the class is embodied in sections 33A and 12(A) of article 581 of the Texas Securities Act concerning liability of sellers of securities who fail to register in Texas. The relevant precedent from this Court guides the determination of whether Section 12 contains a directive from the Legislature to apply Texas law, even though some acts may have occurred outside Texas. In Marmon, we stated: Unless the intention to have a statute operate beyond the limits of the state or country is clearly expressed or indicated by its language, purpose, subject matter, or history, no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state or country enacting it. To the contrary, the presumption is that the statute is intended to have no extraterritorial effect, but to apply only within the territorial jurisdiction of the state or country enacting it, and it is generally so construed. An *444 extraterritorial effect is not to be given statutes by implication. 430 S.W.2d at 187 (citations omitted); see 73 AM. JUR. 2D Statutes § 250 (2006).[7] Determining if the extraterritorial reach of Section 12 is "clearly expressed" or otherwise "indicated by its language, purpose, subject matter, or history" begins with the language of the provision. See Marmon, 430 S.W.2d at 187. The Texas Legislature prohibited the offer or sale of a security "in this state" by any company or person, who has not previously complied with the requirement to register as a securities dealer or satisfied a dealer, security, or transaction exemption from registration. TEX. CIV. STAT. arts. 581-12(A), 581-33A. The requirement in Section 12 to register before making offers or sales "in this state" attaches to both offers and sales of securities and includes both offers or sales from persons in Texas to nonresidents and those from out-of-state sellers to Texas residents. See 217 S.W.3d at 465-66, n. 6. Therefore, section 12 requires that persons and companies register or satisfy an exemption from registration before making offers or sales of securities from locations in Texas to out-of-state purchasers. See generally Enntex Oil & Gas v. State, 560 S.W.2d 494 (Tex.Civ.App.-Texarkana 1977, writ ref'd n.r.e.); Rio Grande, 539 S.W.2d 917. The Texas Securities Board, empowered to administer the securities laws, determined in its rules that section 12 of the Texas Securities Act governs "an offer or sale from Texas." 7 TEX. ADMIN. CODE § 139.7. Section 139.7, entitled "Sale of Securities to Nonresidents," provides that "[a]n issuer or selling agent who makes an offer or sale from Texas, by any means . . . is a dealer and must comply with the dealer registration requirements of the Securities Act." This interpretation of Section 12 is supported by the purpose of Texas Blue Sky laws. The commentary to Article 581-33 reiterates the long-standing purposes of the provision: to indemnify investors victimized by violations of the Texas Securities Act, encourage compliance with the Act's regulatory and disclosure provisions, and create incentives for its private enforcement. TEX.REV.CIV. STAT. art. 581-33 cmt. background—1977. Given the nature of securities transactions, achieving these purposes will ultimately require that the Act apply to situations that involve some out-of-state activities, as when an unregistered dealer in Texas sells securities to a nonresident. *445 The history of choice of law concerns arising in the subject matter of securities also supports our interpretation of the language of Section 12. The first Blue Sky laws were promulgated in 1910. Julian M. Meer, The Texas Securities Act—1957 Model: Facelift or Forward Look?, 36 TEX. L.REV. 429, 430 (1957). By 1957, every state except Delaware and Nevada had enacted some form of Blue Sky law to regulate securities transactions. Louis Loss, The Conflicts of Laws and the Blue Sky Laws, 71 HARV. L.REV. 209, 225 (1957); Meer, 36 TEX. L. REV. at 430. Also by 1957, it had become apparent that courts were struggling to apply "traditional but unsuitable [common law] choice-of-law concepts" to the nationwide scheme of securities regulations. Loss, 71 HARV. L. REV. at 248. Professor Louis Loss, the primary draftsman of the Uniform Securities Act of 1956, reported that Blue Sky decisions on choice of law in the securities arena "def[ied] generalization." Id. at 216. The Eighth Circuit Court of Appeals referred to the "bewildering state of affairs in the case law governing transactions which crossed states lines." Kreis v. Mates Inv., 473 F.2d 1308, 1311 (8th Cir.1973). Professor Loss explained why: When a whole area of "public" law owes its very existence to legislation, it is not merely anomalous that so important a segment of the area is left to the chance application of conflict-of-law concepts developed by the common law in quite different contexts; it would be amazing if the result were a reasonably satisfactory geographical allocation of the statutes . . . [T]he one solution to the multifarious and vexatious problems of the conflict of laws which no blue sky state has thus far adopted is the codification route. Loss, 71 HARV. L.REV. at 248. Ultimately, the drafters of the Uniform Act rejected citizenship or residence within a particular state as the policy base for application of the Uniform Act to particular transactions. JOSEPH C. LONG, 12 BLUE SKY LAW § 4:2 (rev. ed.1988). Instead, they elected a territorial base as the foundation for the choice of law decision, requiring that a transaction have some physical nexus or acts within the state whose securities statute was alleged to govern. Id. The Uniform Act's approach is that a statute governs a transaction and claims arising from it if wrongful acts in the transaction occurred "in this state." Id. § 4:1. The Restatement elaborates: The court should give a local statute the range of application intended by the legislature when these intentions can be ascertained and can constitutionally be given effect. If the legislature intended that the statute should be applied to the out-of-state facts involved, the court should so apply it unless constitutional considerations forbid. RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 6(1) cmt.(b) (1971). Choice of law in this area of the Blue Sky laws is now primarily a matter of statutory interpretation, except, of course, for those states that have not legislated choice of law instructions. See Benjamin v. Cablevision Programming, 114 Ill.2d 150, 102 Ill.Dec. 296, 499 N.E.2d 1309, 1316 (1986) (reasoning that whether the Illinois Securities Act applied to a sale of a security from Illinois to a California purchaser was a question of statutory construction, and holding that statutory language referencing an offer or a sale "in this state" indicated the application of the Illinois securities statute); see also 69A AM. JUR. 2D Securities Regulation § 18 (2006) (In the area of securities transactions, state Blue Sky laws apply to the transactions which "are within the bounds of the statute."). *446 The Texas Securities Act was adopted substantially from the Uniform Securities Act. See TEX. REV. CIV. STAT. art. 581-33, cmt. background—1977 (noting that enactment of article 581-33 in 1963 was a modification of the Uniform Act). The Texas Legislature incorporated part of the Uniform Securities Act in Texas Blue Sky laws, including an important term of art in the particular substantive provision at issue here—"in this state"—used in connection with mandates to comply with specified regulatory requirements, like dealer registration.[8] Based on the language, purpose, subject matter, and history of the Texas Blue Sky laws and the Uniform Securities Act, and the registration requirements in particular, we conclude the Texas Legislature intended section 12 of the Texas Securities Act to prohibit the unregistered sale of securities from Texas, even when the purchasers are nonresidents. This approach does not mean that the Texas Securities Act directs the application of the Texas Blue Sky laws in every securities case involving facts touching Texas or its residents. The question is one of legislative intent as to the particular provision at issue, subject to constitutional limitations. See, e.g., Yadlosky v. Grant Thornton L.L.P., 197 F.R.D. 292, 301 (E.D.Mich.2000) (stating, in reference to the misrepresentation provisions of the Michigan Blue Sky law, that "it appears application of Michigan law to all of the 2811 investors would be contrary to the policies of other state `blue-sky' laws"). C. Constitutional Limitations on State Regulation of Extraterritorial Conduct The trial court must also determine whether the Texas statute meets constitutional requirements before it is applied to extraterritorial conduct.[9] Due process requires that the application of Texas law be neither arbitrary nor fundamentally unfair. See Shutts, 472 U.S. at 818-19, 822, 105 S.Ct. 2965. Although the Constitution imposes "modest restrictions" on the application of a forum state's substantive law to conduct that occurs, at least in part, outside of the state, to constitutionally select a forum state's law to apply to a class action, the state must have "a significant contact or significant aggregation of contacts" to the claims asserted by each member of the plaintiff class. Allstate Ins. Co. v. Hague, 449 U.S. 302, 313, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981); see also Travelers Health Ass'n v. Virginia, 339 U.S. 643, 649, 70 S.Ct. 927, 94 L.Ed. 1154 (1950); Shutts, 472 U.S. at 818, 105 S.Ct. 2965. These constitutional limitations apply to choice of law determinations in class suits. See Shutts, 472 U.S. at 821-22, 105 S.Ct. 2965. Citizens contends that because the court of appeals chose to apply section 6(1) *447 of the Restatement in lieu of the most significant relationship test, the court's choice of law analysis did not satisfy the constitutional due process guarantee that the application of Texas law be neither arbitrary nor fundamentally unfair. Texas has an interest in transactions involving the purchase and sale of securities. The constitutional question in this case, then, is whether Texas has sufficient contacts with the class members' transactions to satisfy constitutional due process. In his pleadings and summary judgment evidence presented to the trial court, Daccach alleges that all defendants are Texas residents, Citizens maintains its principal place of business in Texas, advertising and sales materials were created and sent from Texas, a significant portion of the activities related to the marketing and creation of the instruments happened in Texas, and Citizens devised, implemented, and administered the securities "scheme" in Texas. Although Daccach admits that none of the class members are from Texas, he maintains that all CICA policies were sold from Texas. Citizens does not contest that these activities occurred in Texas, but only argues that these activities do not constitute the "sale" of a "security" in Texas. Citizens' argument relates to a contested fact issue set for trial and does not controvert the facts alleged. Because Texas has a significant aggregation of contacts to the business activities alleged to have occurred within the state, we conclude that the application of Section 12 to this lawsuit falls comfortably within the constitutional constraints on the extraterritorial application of Texas laws. Making this determination does not resolve whether Citizens actually "sold" a "security" from Texas within the meaning of the Texas Securities Act; that is a matter to be determined on the merits. To obtain class certification, we require an "extensive analysis" of choice of law. Compaq, 135 S.W.3d at 672. Here, Daccach alleges only that Citizens violated Article 581-33(A) by selling securities in or from Texas without registering as a dealer. No choice of law question is presented. The trial court was required to determine whether the application of the Texas statute at issue met constitutional requirements when applied to the allegations. The trial court did not abuse its discretion in determining that there was a significant aggregation of contacts with Texas to apply Article 581-33(A) constitutionally. Therefore, for different reasons, we affirm the court of appeals' holding that the trial court properly determined that Texas law governs. D. Impact of Contacts with other Jurisdictions At this point we return to the reason for the choice of law scrutiny—to provide the context for a court's rigorous analysis of the certification requirements. See id. at 672-73. The court must ensure that the class representative is adequately representing the rights of absent class members in all aspects of the class litigation. The class representative's burden in this regard stems from the Due Process Clause, which demands "that the named plaintiff at all times adequately represent the interests of the absent class members." Shutts, 472 U.S. at 812, 105 S.Ct. 2965 (citing Hansberry v. Lee, 311 U.S. 32, 42-43, 45, 61 S.Ct. 115, 85 L.Ed. 22 (1940)). Thus, in this case, where there is a significant aggregation of contacts with Texas to apply Texas law constitutionally, the fact that other jurisdictions are implicated by the pleadings raises an issue of adequacy of representation. In a worldwide case like this, where a class representative abandons or chooses not to allege certain claims, including claims that may exist in other jurisdictions, the potential effect of claim preclusion on absent class members *448 raises concerns about the prerequisites of predominance, superiority, typicality, and adequacy. If other jurisdictions' laws could apply to the transaction, even though only a Texas violation is alleged, the class members who could assert those causes of action may be barred from later pursuing them in a different lawsuit. The laws of other interested jurisdictions may provide certain class members more beneficial remedies or causes of action arising from the same subject matter of the lawsuit. We therefore address the effect of res judicata or claims preclusion on later litigation of claims not alleged or abandoned and how the risk of preclusion may affect class certification. V. Res Judicata and Claim Abandonment In the court of appeals, Citizens challenged the trial court's class certification by arguing that because Daccach abandoned all claims but the Texas Securities Act claim, he was not an adequate representative of the class, common issues did not predominate over individual issues, a class action was not superior to other methods of adjudication, and Daccach improperly seeks to resolve a single issue instead of the entire controversy. The court of appeals rejected Citizens' arguments, explaining that the Texas Securities Act claim was the entire controversy in itself and that certification was still appropriate even if other claims existed. 105 S.W.3d at 725. Specifically, the court of appeals affirmed the trial court's certification order despite Daccach's abandonment of numerous claims because "`[c]lients who have claims not raised in this class action because the claims are unsuitable for class treatment can bring those claims on an individual basis, and res judicata will not bar those claims because absent class members had no opportunity to litigate those issues in this lawsuit.'" Id. (quoting Sullivan v. Chase Inv. Servs. of Boston, Inc., 79 F.R.D. 246, 265 (N.D.Cal.1978)). Citizens contends this holding amounts to a special exception to established principles of claim preclusion, and therefore, contradicts our holdings in Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 405 (Tex. 2000), and Southwestern Refining Co. v. Bernal, 22 S.W.3d 425, 432 (Tex.2000). Relying on Henry Schein, Inc. v. Stromboe, Citizens adds that res judicata precludes litigation of previously abandoned class claims arising out of the same transaction, and therefore, defeats class certification because Daccach's willingness to abandon claims to the detriment of absent class members undermines the prerequisites of predominance, superiority, typicality, and adequacy. See 102 S.W.3d 675, 695 ("[I]t is not clear that a class action is superior . . . if it necessitates that plaintiffs give up substantial rights, nor is it clear that the willingness . . . to forego consequential damages is typical of the other 20,000 class members."). Daccach admits that for the class suit he abandoned all but the Texas Securities Act claim because the abandoned claims were not suitable for class treatment. Daccach contends, however, that because these claims were procedurally barred by Rule 42's certification requirements, res judicata will not preclude subsequent litigation of the claims that cannot be litigated through diligence in this class action. See Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex.1992). For the following reasons, we agree with Citizens and conclude that the trial court erred in certifying the class without considering the adequacy of the class representative in light of the res judicata effect of the class representative's decision to abandon claims. *449 A. Res Judicata Generally, res judicata prevents a plaintiff from abandoning claims and subsequently asserting them when the claims could have been litigated in the prior suit. Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex.1985); see also State & County Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex.2001). For res judicata to apply, there must be: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims that were raised or could have been raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.1996). The doctrine seeks to bring an end to litigation, prevent vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent double recovery. Barr, 837 S.W.2d at 629; Jeanes, 688 S.W.2d at 105. Under the transactional approach followed in Texas, a subsequent suit is barred if it arises out of the same subject matter as the prior suit, and that subject matter could have been litigated in the prior suit. Barr, 837 S.W.2d at 631. We explained in Barr that "a final judgment on an action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose." Id. at 631 (CITING RESTATEMENT (SECOND) OF JUDGMENTS § 24(1) (1982)). Determining the scope of the "subject matter" or "transaction" of the prior suit requires "an analysis of the factual matters that make up the gist of the complaint, without regard to the form of action." Id. at 630. This should be done pragmatically, "`giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties' expectations or business understanding or usage.'" Id. at 631 (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 24(2) (1982)). "Any cause of action which arises out of those same facts should, if practicable, be litigated in the same lawsuit." Id. at 630. B. Class Actions Texas Rule of Civil Procedure 42 was adopted in 1941 and patterned after Federal Rule of Civil Procedure 23. Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex.2000). Rule 42 was fully revised in 1977 to conform to the 1966 federal amendments. Thus, we rely on our precedents and persuasive federal decisions and authorities interpreting current federal class action requirements. Id. (citing RSR Corp. v. Hayes, 673 S.W.2d 928, 931-32 (Tex.App.-Dallas 1984, writ dism'd)). Rule 42 is a form of joinder, a procedural mechanism established to increase judicial economy and efficiency for suits with parties too numerous for conventional joinder. See Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1981) (discussing Federal Rule of Civil Procedure 23); Hansberry v. Lee, 311 U.S. at 42-43, 61 S.Ct. 115 ("[t]he class suit was an invention of equity to enable it to proceed to a decree [when parties are so numerous as to make joinder] in conformity to usual rules of procedure . . . impracticable"); see also Beeson, 22 S.W.3d at 404 (citing 5 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 23.02 (3d ed.1999)); 7A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1751 (3d ed.2005). Rule 42 is intended to eliminate or reduce the threat of repetitive litigation, prevent inconsistent resolution of similar cases, and provide an effective means of redress for individuals whose claims are too small to make it economically viable to *450 pursue them in independent actions. Sheldon, 22 S.W.3d at 452 (citing THE AMERICAN LAW INSTITUTE, REPORT: PRELIMINARY STUDY OF COMPLEX LITIGATION 35 (1987)). Although intended to be an efficient device, "there is no right to litigate a claim as a class action." Sheldon, 22 S.W.3d at 452-53. A Texas court may certify a class action only if the plaintiff satisfies the requirements of Rule 42. Id. at 453. Moreover, nothing mandates that a plaintiff pursue a remedy through the procedures of Rule 42. It is the plaintiff who chooses to resolve a claim through the class action mechanism. Though perhaps inefficient, every claim fit for class certification could be litigated outside the confines of Rule 42, just as every claim not suitable for class treatment must be. Thus, despite their unique procedural requirements, class actions provide no greater substantive rights than other procedural mechanisms of litigation. See Bernal, 22 S.W.3d at 432 ("[O]ur procedural rules do not permit the form of the proceeding to determine whether substantive legal principles will control."); see also Rules Enabling Act, 28 U.S.C. § 2072(b) (2000) (stating that the Federal Rules of Civil Procedure shall not "abridge, enlarge or modify" preexisting rights). Class certification under Rule 42 was never meant to be an exception to res judicata, Beeson, 22 S.W.3d at 405, or to exist "in some sort of alternative universe outside our normal jurisprudence," Bernal, 22 S.W.3d at 432. Basic principles of res judicata apply to class actions just as they do to any other form of litigation. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Bernal, 22 S.W.3d at 432; see also Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 377-79, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996). Accordingly, we hold that claims not pursued, or abandoned, in a class suit seeking damages that proceeds to final judgment on other claims arising from the same subject matter are subject to preclusion from relitigation by the principles of res judicata. Although it has not unequivocally decided the preclusive effect on subsequent actions of a final judgment in a class suit, the United States Supreme Court has acknowledged the same approach. In Hansberry and Ben-Hur, the Supreme Court indicated that a judgment in a class suit with an adequate representative may bind absent members of a class. See Hansberry v. Lee, 311 U.S. at 42, 61 S.Ct. 115 (holding that a prior decree in a class suit did not bind a class member because the named plaintiff did not adequately represent the interests of the class of property owners); Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 363-67, 41 S.Ct. 338, 65 L.Ed. 673 (1921) (specifically holding that a federal district court had jurisdiction of a class action); see also Smith v. Swormstedt, 57 U.S. 288, 303, 16 How. 288, 14 L.Ed. 942 (1853) ("[A] court of equity permits a portion of the parties in interest to represent the entire body, and the decree binds all of them the same as if all were before the court."); Geoffrey Hazard, Jr. et al., An Historical Analysis of the Binding Effect of Class Suits, 146 U. PA. L. REV. 1849, 1925-26 (1998). The Court further stated that it is permissible to hold that a judgment rendered in a class suit would be res judicata as to members of the class, and the Fourteenth Amendment does not compel a different rule for conclusiveness of the judgments in class suits. Hansberry, 311 U.S. at 42, 61 S.Ct. 115. This approach has been challenged as unfair to absent class members who do not opt out and are bound by the final judgment. The argument continues that these absent members should be entitled to pursue individual claims in the same or other *451 forums if their class claims are unsuccessful. We view the matter in a fundamentally different light, allowing individual choice by the plaintiffs with their consequent ramifications, to govern the litigation in class suits as in other suits. We do not dictate how litigants should structure their cases or which legitimate legal strategies they will pursue. We simply emphasize that legal consequences attach to tactical and strategic decisions in class actions as in other lawsuits. For instance, outside of class action suits, litigants tailor their actions to seek positive results from proceedings. Parties often decide to drop claims to achieve a desired objective: to enter a particular forum or venue, to avoid removal to federal court, to avoid expense for claims with little likelihood of success, to refrain from opening evidentiary doors harmful to client or case, or to focus the case on claims most likely to be successful. Similarly, a class may decide to pursue certain claims, abandon some, or not plead others. In the context of class actions this is not per se inappropriate, but a class representative must be aware that there are consequences associated with such a decision that could undermine certification. For example, a specific issue may involve too little commonality to allow for a class to survive the predominance requirements. See Bernal, 22 S.W.3d at 435. Having given putative class members the opportunity to choose, however, we will ordinarily hold class actions to the same res judicata standards as other forms of litigation, including enforcing the preclusion on abandoned claims which could have been litigated in the suit. C. Could the Claims have been Litigated? Daccach concedes that res judicata applies equally to class actions. He contends, however, that the claims he abandoned are procedurally barred from litigation in the class action by Rule 42, and therefore, res judicata cannot apply to preclude subsequent litigation of the claims that cannot be litigated through diligence in this class action suit. See Barr, 837 S.W.2d at 631 ("A subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of diligence, could have been litigated in a prior suit." (emphasis added)). To achieve certification despite his abandonment of class claims, Daccach argues for a rule that would preclude later litigation of only those causes of action that could have been certified in the prior class action. For reasons we explain, we decline to adopt Daccach's proposed rule. Most courts agree with Daccach's concession that the basic principles of res judicata apply to class actions. See Cooper, 467 U.S. at 874, 104 S.Ct. 2794 (and authorities cited therein); Hansberry, 311 U.S. at 42, 61 S.Ct. 115; Ben-Hur, 255 U.S. at 367, 41 S.Ct. 338; Beeson, 22 S.W.3d at 405. However, only a few cases can be read to support Daccach's contention that only claims that could have been brought in a class action will be barred from subsequent litigation. One line of cases, followed by the court of appeals below and two other Texas courts of appeals, holds that under Federal Rule of Civil Procedure 23(c)(4), or identical Texas Rule of Civil Procedure 42(d), parties may bring or maintain a class action with respect to specific issues and will not suffer the preclusive effect of res judicata for those claims not actually litigated as unsuitable for class treatment. See, e.g., Sullivan, 79 F.R.D. at 265 (holding that splitting claims that are amendable to class treatment is "perfectly appropriate" in order to realize the savings of resources of courts and parties that Rule 23 is designed to facilitate); Compaq Computer Corp. v. *452 LaPray, 79 S.W.3d 779, 793 (Tex.App.-Beaumont 2002), rev'd on other grounds, 135 S.W.3d 657 (Tex.2004); Microsoft Corp. v. Manning, 914 S.W.2d 602, 610 (Tex.App.-Texarkana 1995, writ dism'd); see also 5 HERBERT B. NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS § 16.22 (4th ed.2002). The reasoning is based on Federal Rule of Civil Procedure 23(c)(4)(A) and Texas Rule of Civil Procedure 42(d)(1): "an action may be brought or maintained as a class action with respect to particular issues." Some commentators characterize this approach as a "sophisticated transactional approach" that limits the basic transactional approach of res judicata and "includes trial convenience in its calculus." 18A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4455 (2d ed.2002) (suggesting the approach is supported by Section 24(2) of the Restatement (Second) of Judgments, which requires that a "transaction" must "be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations" (emphasis added)). Daccach suggests his proposed rule is consistent with Texas jurisprudence on res judicata, relying on some of our cases not involving class actions: Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 651 (Tex.2000); Getty Oil v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex.1992).[10] These cases are factually and legally distinguishable. In Pustejovsky, we addressed "whether a plaintiff may bring separate actions for separate latent occupational diseases caused by exposure to asbestos." 35 S.W.3d at 644. In addressing the single action rule as a species of res judicata, Justice Gonzales noted that "the transactional approach set out in Barr does not necessarily penalize a plaintiff for not bringing a claim arising out of the same facts that nonetheless could not have been litigated in the initial action." Id. at 651. But one of the reasons we adopted a separate accrual rule in that case—and, by implication, the reason the claim could not have been litigated in the prior action— was that the damage-causing injury had not yet been discovered. Id. at 652. In this case we are not faced with latent injuries giving rise to claims that could not have been litigated in a prior action due to lack of discovery. The claims in this case were discovered or discoverable and then abandoned by Daccach to try to achieve class certification. In Getty Oil, we held that a third party's claim against a tortfeasor's insurers was not precluded by prior litigation against the tortfeasor because, under the "no action" clause of the insurance policy and Texas Rule of Civil Procedure 38(c), the third party could not sue the insurer until there was a judgment against the tortfeasor. 845 S.W.2d at 801. Res judicata did not bar the second suit because the third party was contractually precluded from litigating the claim in the prior suit. No similar contractual agreement or rule governs in this case. Daccach also relies on the following statement made by the Fifth Circuit: "If the court rendering judgment lacked subject-matter jurisdiction over a claim or if the procedural rules of the court made it impossible to raise a claim, then it is not precluded." Browning v. Navarro, 887 F.2d 553, 558-59 (5th Cir.1989) (citing RESTATEMENT (SECOND) OF JUDGMENTS *453 § 26(1)(c) (1982)); see also Montgomery v. Blue Cross & Blue Shield of Tex. Inc., 923 S.W.2d 147, 150 (Tex.App.-Austin 1996, writ denied) (citing Browning, 887 F.2d at 558-59). Similarly, the United States Supreme Court cited the Restatement (Second) of Judgments, which states that a second action arising from the same facts may be brought if "[t]he plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action. . . . " Thomas v. Wash. Gas Light Co., 448 U.S. 261, 283 n. 29, 100 S.Ct. 2647, 65 L.Ed.2d 757 (1980) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 61.2(c) (Tent. Draft No. 5, 1978)); see also Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 432 (4th Cir. 2003) (rejecting contention that plaintiffs' individual direct claims would be barred because a class action, "of course, is one of the recognized exceptions to the rule against claim-splitting") (citing 18 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 131.40[3][e][iii] (3d ed.1999)); RESTATEMENT (SECOND) OF JUDGMENTS § 26(1)(c) (1982). We are not persuaded by this argument. First, the issue in Browning and Montgomery was whether the original decision-maker had subject matter jurisdiction to adjudicate the claim sought to be relitigated in district court. In Browning, the court barred litigation of a subsequent fraud claim because the bankruptcy court had subject matter jurisdiction to hear the claim in the prior suit by the party. 887 F.2d at 558-59. In Montgomery, the plaintiff was not barred from litigating extra-contractual claims because the administrative agency that presided over the prior suit did not have jurisdiction to hear those claims. 923 S.W.2d at 150. These rulings turned on a lack of jurisdiction and do not inform our reasoning in this case because rule 42 of the Texas Rules of Civil Procedure does not affect a trial court's subject matter jurisdiction. Second, we do not believe section 26(1)(c) of the Restatement speaks to the class action context. Nothing forces plaintiffs seeking damages into a class suit. They may decide to opt out and pursue their claims individually with separate counsel or decide that the size of the claim does not justify the cost of pursuing it. On the other hand, plaintiffs may choose to litigate their claims under Rule 42 because it provides a more efficient and perhaps less expensive means of litigating certain claims. It is the class representative's choice to seek certification, and the putative class members' decision not to opt out of the class, that restricts their ability to rely on certain theories of recovery that are unsuitable for class treatment. Any restrictions that class action requirements place on a trial court's ability to entertain specific theories of recovery in a class suit arise solely because of the choice to seek class certification. By this choice class members may put at risk their ability to litigate certain other claims not suitable for class treatment. These restrictions follow the individual decisions of the class members and are distinct from the jurisdictional restrictions that may be placed on a bankruptcy court or administrative agency, to which we believe section 26(1)(c) of the Restatements (Second) of Judgments more appropriately applies. We also are unpersuaded that an exception from res judicata principles for claims abandoned as unsuitable for class treatment is supported by the asserted precedent from the United States Supreme *454 Court. In Cooper v. Federal Reserve Bank of Richmond, the Supreme Court announced that general principles of res judicata apply in class actions, but nevertheless determined that for the Title VII claims brought in a class suit under rule 23 of the Federal Rules of Civil Procedure, certain plaintiffs were not barred from subsequently bringing individual discrimination claims. 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). Four employees sought certification of a class of employees alleged to have been discriminated against by a bank that engaged in "policies and practices" of racial discrimination in violation of Title VII Section 1981. Id. at 869-70, 104 S.Ct. 2794. Upon receiving notice, six other employees joined the class. Id. at 870-71, 104 S.Ct. 2794. After a trial in which all named plaintiffs testified, the district court found the bank had engaged in a pattern and practice of racial discrimination for certain levels of employees, but found as to other levels of employees that the discrimination was not pervasive enough to order relief. Id. at 870-72, 104 S.Ct. 2794. The six joining class members moved to intervene to allege that each had been individually denied promotions for discriminatory reasons. Id. at 872, 104 S.Ct. 2794. The motions were denied, and five of the six employees then filed a separate action against the Bank alleging violations of Section 1981. Id. On interlocutory appeal of the separate action, the federal circuit court concluded the doctrine of res judicata precluded the plaintiffs from maintaining their individual race discrimination claims because they were bound by the judgment in the class action. See EEOC v. Fed. Reserve Bank of Richmond, 698 F.2d 633, 674 (4th Cir.1983). The U.S. Supreme Court reversed. The Court began by stating "[t]here is of course no dispute that under elementary principles of prior adjudication a judgment in a properly entertained class action is binding on class members in any subsequent litigation." Cooper, 467 U.S. at 874, 104 S.Ct. 2794. The holding that basic principles of res judicata apply to class actions was part of a lengthy discussion of the "crucial difference between an individual's claim of discrimination and a class action alleging a general pattern or practice of discrimination." Id. at 876, 104 S.Ct. 2794. The suggestion is that a class claim for a pattern or practice of discrimination involves factual issues distinct from those in a class member's individual discrimination lawsuit. Id. at 876-77, 104 S.Ct. 2794. The Court also expressly noted that the district court "pointedly refused to decide the individual claims" of the plaintiffs now seeking adjudication of the claims in a separate action. Id. at 881, 104 S.Ct. 2794. According to the Court, therefore, the court of appeals erred in attaching preclusive effect to the class action because it was not dispositive of the individual claims alleged in the separate action. Id. at 880, 104 S.Ct. 2794. We read Cooper not as an exception to res judicata but as an application of its elements—a subsequent claim might not be barred if it does not involve the same factual issues that were litigated in the prior class action, a situation that can arise in the unique context of Title VII pattern and practice litigation. See, e.g., Munoz v. Orr, 200 F.3d 291, 307 (5th Cir.2000) ("We note that the failure of proof on the class claim does not bar all individual class members from bringing their own suits, provided that they do not base their claims solely on issues already adjudicated in this action and that they can show individualized proof of discrimination.") (citing Cooper, 467 U.S. at 880, 104 S.Ct. 2794); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 425 n. 23 (5th Cir.1998) (distinguishing Cooper and stating that a subsequent disparate *455 impact class action will be barred by res judicata and collateral estoppel because it will inevitably contain the same factual issues as were litigated in the pattern or practice class action); see also Marshall v. Kirkland, 602 F.2d 1282, 1298 (8th Cir.1979) (pre-Cooper case indicating that subsequent individual discrimination claims will not be precluded because the issues were not actually litigated in prior class action and there was no notice to the b(2) class that such claims might be waived); Tobias Barrington Wolff, Preclusion in Class Action Litigation, 105 COLUM. L. REV. 717, 727 (2005) (arguing that the result in Cooper "may represent the correct rule in a Title VII class action, [but] it does not flow inevitably from an application of basic claim preclusion principles"). In addition, we find it significant that the U.S. Supreme Court emphasized the district court's pointed refusal to decide the plaintiff's individual claims. Cooper, 467 U.S. at 881, 104 S.Ct. 2794. It would hardly seem appropriate to bar subsequent litigation of a dispute that a prior court refused to decide. In this respect, we find Texas Rule of Civil Procedure 42(d) instructive. Rule 42(d) provides that "an action may be brought or maintained as a class action with respect to particular issues." The rule, like its federal counterpart, "is a housekeeping rule that allows courts to sever the common issues for a class trial." Castano v. Am. Tobacco Co., 84 F.3d 734, 746 n. 21 (5th Cir.1996). But, while we agree that Rule 42(d) allows a trial court to consider certifying a class whose representative has abandoned or split claims, we decline to take the further step of excepting a final judgment in such a class action from the principles of res judicata. Class members may be precluded from asserting those claims in subsequent individual litigation if they arose from the same transaction or subject matter and could have been litigated in the prior suit. See Barr, 837 S.W.2d at 631. Aggregation of claims in an appropriate class action is a more efficient way to resolve numerous disputes at once. However, efficiency is defeated if the tactfully structured dispute that is finally resolved in class suits may be relitigated in the same or other forums. We caution, also, that Rule 42(d) cannot be used to manufacture compliance with the certification prerequisites. See Castano, 84 F.3d at 745 n. 21 ("A district court cannot manufacture predominance through the nimble use of [Federal Rule of Civil Procedure 23(c)(4)]."). As explained below, the splitting or abandoning of certain claims may affect certification of the class in other ways. D. Effects on Certification The different procedural posture of the Cooper case raises another important issue. There the Court was faced with an interlocutory appeal of the actual subsequent claims being asserted, as opposed to this case in which we are asked to predetermine the preclusive effect of claims that may or may not be asserted in later litigation. In the only other case in which the United States Supreme Court has addressed res judicata in the class action context, a dissenting justice noted that "[a] court conducting an action cannot predetermine the res judicata effect of the judgment; that effect can be tested only in a subsequent action." Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 396, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996) (Ginsburg, J., concurring in part and dissenting in part) (citing 7B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1789 (2d ed.1986)). We generally agree with this maxim, but hasten to address a *456 due process concern that this temporal distinction may raise. Some courts have applied the principles of res judicata, but refused to hold that subsequent claims would be precluded due to a lack of adequate notice to class members regarding the claims being litigated in the class action. See, e.g., Wright v. Collins, 766 F.2d 841, 847 (4th Cir.1989) (no preclusion because no notice); Aspinall v. Philip Morris Cos., 442 Mass. 381, 813 N.E.2d 476, 488-89 n. 19 (2004) (allowing member of class certified on economic damages theory to pursue individual claim for personal injury not suitable for certification in part because no "opt-out" provisions in state rules). The same reasoning has been the basis for court holdings that mandatory class actions for injunctive relief certified under Federal Rule of Civil Procedure 23(b)(2) cannot preclude subsequent individual claims for damages, even if based on the same events. See Hiser v. Franklin, 94 F.3d 1287, 1291 (9th Cir. 1996); Fortner v. Thomas, 983 F.2d 1024, 1031 (11th Cir.1993); Brown v. Ticor Title Insurance Co., 982 F.2d 386 (9th Cir.1992); Norris v. Slothouber, 718 F.2d 1116, 1117 (D.C.Cir.1983); Johnson v. Gen. Motors Corp., 598 F.2d 432, 437-38 (5th Cir.1979) (finding that due process requires notice to absent class members before individual monetary damages could be barred and, though an absent class member could be bound by the res judicata effect of a Rule 23(b)(2) class action judgment as to injunctive or declaratory relief, he could not be barred from pursuing his individual monetary claim); Coleman v. Gen. Motors Acceptance Corp., 220 F.R.D. 64, 80-84 (M.D.Tenn.2004); In re Jackson Lockdown/MCO Cases, 568 F.Supp. 869, 888-89 (E.D.Mich.1983); Jahn ex rel. Jahn v. ORCR, Inc., 92 P.3d 984, 985 (Colo.2004) (en banc). Although we are not faced here with a b(2) class, notice and due process still demand our attention. To have preclusive effect a prior judgment cannot be "constitutionally infirm." Kremer v. Chem. Constr. Corp., 456 U.S. 461, 482, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). Due process requires "that the named plaintiff at all times adequately represent the interests of the absent class members," as well as "notice plus an opportunity to be heard and participate in the litigation." Shutts, 472 U.S. at 812, 105 S.Ct. 2965; see also TEX. R. CIV. P. 42(a)(4); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). We noted as much in Compaq Computer Corp. v. Lapray, where we stated that due process may require that class members be given notice of the class action and an opportunity to opt out and preserve claims that a class representative has abandoned. 135 S.W.3d 657, 668 (Tex.2004); see also Gen. Motors Corp. v. Bloyed, 916 S.W.2d 949, 953 (Tex.1996) ("The United States Supreme Court has made it clear that due process requires adequate representation of the interests of absentee class members that the judgment will bind."). Although a certifying court cannot precisely predetermine the res judicata effect of a class action, it initially must protect the due process rights of absent class members by ensuring that the class representative adequately represents their interests. See Epstein v. MCA, Inc., 179 F.3d 641, 648 (9th Cir.1999) ("[A]bsent class members' due process right to adequate representation is protected not by collateral review, but by the certifying court initially, and thereafter by appeal within the state system and by direct review in the United States Supreme Court."). Some courts have reconciled the tension between the trial court's inability to predetermine res judicata and its burden to protect class members' due process rights *457 by requiring the trial court to assess the "risk" that uncertified claims may be forever barred. See Clark v. Experian Info. Solutions, Inc., No. Civ. A. 8:XXXXXX-XX, 2001 WL 1946329, at *4 (D.S.C. Mar.19, 2001) (stating that offering only some claims for class certification when other, more lucrative claims could not be certified "defeats adequate representation since it places absent class members at the risk of having other claims forever barred by res judicata"); Zachery v. Texaco Exploration & Prod., Inc., 185 F.R.D. 230, 243 (W.D.Tex.1999) (assessing the risk of abandoned monetary claims that members of the b(2) pattern-and-practice class may face in trying to bring later individual claims); Thompson v. Am. Tobacco Co., 189 F.R.D. 544, 550-51 (D.Minn.1999) (refusing to certify because the "possible prejudice to class members" resulting from claim preclusion in the future "is simply too great"); Feinstein v. Firestone Tire & Rubber Co., 535 F.Supp. 595, 606 (S.D.N.Y.1982) (refusing to certify class action for economic losses where plaintiffs also had personal injury claims because of significant risks that class members would "later [be told] that they had impermissibly split a single cause of action"); Millett v. Atl. Richfield Co., No. Civ. A. CV-98-555, 2000 WL 359979, at *9 (Me.Super.Ct. Mar. 2, 2000) (explaining that asserting claims for injunctive relief while leaving personal injury claims unraised places class members at risk of subsequent claim preclusion defense); Small v. Lorillard Tobacco Co., Inc., 252 A.D.2d 1, 679 N.Y.S.2d 593, 601-02 (N.Y.App.Div.1998) (stating that paring down class claims to avoid certification problems creates impermissible "risk" of adverse preclusive effect). We agree with this approach. A class representative's decision to abandon certain claims may be detrimental to absent class members for whom those claims could be more lucrative or valuable, assuming those class members do not opt out of the class. Abandoning such claims, or claims "reasonably expected" to be raised by class members, could undermine the adequacy of the named plaintiff's representation of the class. See City of San Jose v. Super. Ct. of Santa Clara County, 12 Cal.3d 447, 115 Cal.Rptr. 797, 525 P.2d 701, 711-13 (1974). But see Regions Bank v. Lee, 905 So.2d 765, 772-73 (Ala.2004) (rejecting adequacy challenge based on effect of res judicata because abandoned claims would involve a different cause of action against a different defendant than that involved in the class action). We hold, therefore, that Texas Rule of Civil Procedure 42 requires the trial court, as part of its rigorous analysis, to consider the risk that a judgment in the class action may preclude subsequent litigation of claims not alleged, abandoned, or split from the class action. The trial court abuses its discretion if it fails to consider the preclusive effect of a judgment on abandoned claims, as res judicata could undermine the adequacy of representation requirement. See Wolff, 105 COLUM. L. REV at 722 ("[T]he preclusion inquiry would sometimes reveal significant obstacles to class certification. . . . "). A trial court could, however, determine that the risk of preclusion is not high enough to refuse certification. For instance, the abandoned claims may be insignificant, unlikely to succeed in any proceeding, or not valuable. Some abandoned claims may be alleged against different defendants or may not be ripe for litigation, in which case res judicata would not apply. But, because we hold class actions seeking damages to the same res judicata standards as other forms of litigation, including enforcing the preclusion on abandoned claims which could have been litigated in the suit, it is critical that putative *458 class members be given adequate notice and an opportunity to exclude themselves from the class form of proceeding so that they may preserve individual claims that may otherwise be barred from subsequent litigation. See Richard A. Nagareda, Preexistence Principle and the Structure of the Class Action, 103 COLUM. L. REV. 149, 216 (2003) (contending that the ability to opt out respects the rights of class members to control their claims).[11] Under Rule 42, notice must be given to the class, and class members given an opportunity to opt out, before the trial court addresses the merits of the class claims. See Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 360 (Tex. 2001) (Owen, J. dissenting); see also Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 548, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) (explaining that Federal Rule of Civil Procedure 23 was amended to avoid "one-way" intervention issue arising when class members were not identified before court made decisions going to merits). To properly protect absent class members, a trial court must rigorously analyze Texas Rule of Civil Procedure 42's prerequisites prior to sending any necessary class notice, as this analysis will likely affect the class definition and requisites for the notice. McAllen Med. Center, Inc. v. Cortez, 66 S.W.3d 227, 232 (Tex.2001). Rule 42 sets out the following requirements for notice in a b(3) class action: For any class certified under Rule 42(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through counsel if the member so desires; (v) that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded; and (vi) the binding effect of a class judgment on class members under Rule 42(c)(3). TEX.R. CIV. P. 42(c)(2)(B). Ultimately, to certify a class in which the representatives have abandoned claims in favor of pursuing certain class claims, raising a risk of preclusion for absent class members, effective notice must be given to these absent members of an identified class regarding the preclusive effect that may attach to their individual claims. The unnamed members may then exercise independent judgment and chose to remain in the class or opt out. VI. Class Definition Citizens challenges the court of appeals' approval of the class definition on grounds that the definition fails to identify a presently ascertainable class from objective criteria and creates a "fail-safe" class. Citizens specifically points to the definition's exclusionary language, which it contends creates a future contingency that grants each plaintiff a post-judgment opportunity to exclude himself from the class. *459 A class is properly defined only if its members are presently ascertainable by reference to objective criteria. Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 403 (Tex.2000). A class cannot be defined by subjective criteria or require analysis of the merits of the case. Id. A class definition that "rests on the paramount liability question" is not based on objective criteria because "the trial court has no way of ascertaining whether a given person is a member of the class until a determination of ultimate liability as to that person is made." Id. at 404. In other words, the class is defined as members who succeed on the ultimate liability question. Such a "fail-safe class" is also impermissible because it binds members only by a judgment favorable to them but not by a judgment favorable to the defendants. Id. at 405. The trial court's certification order defined the class as follows: The Class consists of all persons, who, during the Class Period (August 6, 1996 through the date the Class is certified): (1) purchased a CICA Policy and executed an assignment to a trust for the purchase of Citizens, Inc. stock, or (2) paid any money that, pursuant to a CICA Policy and assignment to a trust, was for the purchase of Citizens, Inc. stock, or (3) were entitled to any cash benefits from a CICA Policy that, pursuant to a CICA Policy and assignment to a trust, were for the purchase of Citizens, Inc. stock. Specifically excluded from the Class are all persons who, within the time period established by the judgment, do not surrender their CICA Policies and take the other actions required to obtain the relief awarded by the Court. Because the exclusionary language of the trial court's class definition partially defined the class by actions taken after the judgment, it failed to create a class that could be objectively ascertained before judgment. Id. at 403-04. Although the contours of the class did not "rest on whether the CICA policies qualify as securities or whether the policies were in fact sold or offered for sale from Texas," and thus was not invalid as a traditional "fail-safe" class, it did however allow putative class members to essentially opt out of the suit after the judgment and thus escape the binding effect of the judgment. This class definition was improper. The court of appeals revised the definition, substituting the word "remedy" for the word "Class" in the definition's last sentence: Specifically excluded from the remedy are all persons who, within the time period established by the judgment, do not surrender their CICA Policies and take the other actions required to obtain the relief awarded by the Court. 105 S.W.3d at 722 n. 7 (emphasis added). We conclude that this corrects the defective class definition. This sentence simply states what is true is any case: a litigant, or in this case, a class member, may elect not to exercise a right to a remedy rendered in a judgment. Instead, it reiterates the obvious fact that even in the event of a favorable judgment, a class member may elect to keep his or her policy and decline the remedy. Regardless, the class member would still be bound by the judgment. VII. Attorney's Fees Citizens argues that the class's claim for attorney fees involves individual questions of fact because the statute allows recovery if "the court finds that the recovery would be equitable in the circumstances." TEX. REV. CIV. STAT. art. 581-33D(7). The class claim—that Citizens offered or sold securities in or from *460 Texas without registering with the Texas Securities Board—implicates Citizens' overall business scheme. The class makes no allegation of conduct varying from buyer to buyer with regard to this claim. We agree with the court of appeals that because "the heart of the dispute turns only on whether the jury decides [whether] the CICA policies constitute securities and whether they were sold from Texas," attorney's fees could be awarded based on Citizens' marketing conduct in general. VIII. Conclusion As part of a trial court's rigorous analysis for certification of a Rule 42(b)(3) class, a trial court must assess all of Rule 42's requirements with awareness of res judicata's preclusive effect on abandoned claims. See Bernal, 22 S.W.3d at 435. Although we hold that res judicata principles are applicable in class suits and could bar claims abandoned by the class representative, we do not dictate how plaintiffs should structure their case or which legitimate legal strategies they will pursue. We simply note that legal consequences attach to tactical and strategic decisions in class actions as in other lawsuits. While it is not per se inappropriate to abandon claims or for the trial court to certify a specific-issue class, the requirements of class certification must still be met. As we have cautioned above, a class representative's abandonment of claims can affect the class representative's ability to satisfy these requirements. Here the trial court failed to evaluate Rule 42's prerequisites in light of the claims abandoned by the class representative. Therefore, we reverse the court of appeal's affirmance of the trial court's class certification order, decertify the class, and remand the case to the trial court for further proceedings consistent with this opinion. TEX. R. APP. P. 60.2(d). Chief Justice JEFFERSON filed a concurring opinion, joined by Justice BRISTER and Justice MEDINA. Chief Justice JEFFERSON, joined by Justice BRISTER and Justice MEDINA, concurring. I We generally resolve choice-of-law issues by following the Restatement approach. Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex.2000). Section 6(1) of the Restatement (Second) of Conflict of Laws provides that a court will follow "a statutory directive of its own state on choice of law." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(1) (1971). Absent such a directive, however, courts must examine the seven factors outlined in section 6(2). Id. § 6(2). Today, the Court does otherwise, distilling its choice-of-law determination in a single sentence: "Because the class lawsuit only alleges Citizens' failure to register with the Texas Securities Board before allegedly offering and selling securities from Texas, Section 12 governs under any conflict-of-law principles that might apply." 217 S.W.3d at 440. If that is indeed the case, then only rarely will courts analyze choice-of-law issues by examining section 6(2)'s relevant factors[1]—factors critical to a thorough and *461 correct choice-of-law analysis. In cases like this, which will adjudicate the rights of thousands of people in dozens of countries, the problems that will arise from failing to examine those factors will be magnified. As a recent law review article noted: While statutory interpretation in the choice of law context may not be the most pressing legal question of our day, the combination of a choice of law question and a vaguely worded statute presents a real opportunity for mischief. Three factors suggest that the potential for mischief may be quite prevalent and consequential: (i) the high incidence of vaguely worded state statutes, (ii) the enormous incentives for plaintiffs to forum shop, and (iii) the multiplying effect of the class action. Lindsay Traylor Braunig, Note, Statutory Interpretation in a Choice of Law Context, 80 N.Y.U.L. REV. 1050, 1054 (2005). By concluding that because the plaintiffs allege only a violation of Texas law, then Texas law applies, the Court in effect permits the plaintiffs to choose the law that governs the proceeding. But as the United States Supreme Court noted, in a case in which class plaintiffs advocated Kansas law, the law rather than the litigants determines what law is controlling: We . . . give little credence to the idea that Kansas law should apply to all claims because the plaintiffs, by failing to opt out, evinced their desire to be bound by Kansas law. Even if one could say that the plaintiffs "consented" to the application of Kansas law by not opting out, plaintiff's desire for forum law is rarely, if ever controlling. In most cases the plaintiff shows his obvious wish for forum law by filing there. "If a plaintiff could choose the substantive rules to be applied to an action . . . the invitation to forum shopping would be irresistible." Even if a plaintiff evidences his desire for forum law by moving to the forum, we have generally accorded such a move little or no significance. . . . Thus the plaintiffs' desire for Kansas law, manifested by their participation in this Kansas lawsuit, bears little relevance. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 820, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985) (citation omitted). "In a multistate class suit involving nonresidents, a court must be particularly diligent not to commit error by bootstrapping a choice of law determination on a finding of requisite jurisdiction over the parties involved." 4 ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 13.37 (4th ed.2002); see also Shutts, 472 U.S. at 821, 105 S.Ct. 2965 (noting that personal jurisdiction may not be used as an "added weight in the scale when considering the permissible constitutional limits on choice of substantive law," as "this is something of a `bootstrap' argument"). Moreover, "[t]he simple institution of a multistate class suit in one forum cannot provide the foundation for applying that forum's law to nonresidents, without creating a substantial threat to our constitutional system of cooperative federalism." 4 NEWBERG ON CLASS ACTIONS § 13.37. Additionally, the complexity of the choice-of-law analysis here is magnified by the fact that this is not an interstate, but an international class action. [C]lass actions present added difficulties when they include an international element. The problems of jurisdiction and *462 choice of law when the dispute only involves American parties is compounded when international parties are added. Within the United States, we have a fairly uniform legal system, attitude, and history from state to state, and each state is constitutionally required to give full faith and credit to the decisions of another state. This common history and constitutionally mandated acceptance is absent across international lines. Jack B. Weinstein, Compensating Large Numbers of People for Inflicted Harms, 11 DUKE J. COMP. & INT'L L. 165, 175-76 (2001). As another commentator notes: Nationwide class actions have presented issues concerning pre-existing cases, manageability, choice of law, and personal jurisdiction. Extending the reach of a class action judgment beyond U.S. borders adds a new dimension to each determination in class litigation. A transnational class action requires an examination of potential international law and treaty obligations, a careful evaluation of the laws of the countries involved, and an examination of the potential cultural, linguistic, and logistical implications. Debra Lyn Bassett, U.S. Class Actions Go Global: Transnational Class Actions and Personal Jurisdiction, 72 FORDHAM L.REV. 41, 43-44 (2003) (emphasis added). In Compaq Computer Corp. v. Lapray, we held that "when ruling on motions for class certifications, trial courts must conduct an extensive choice of law analysis before they can determine predominance, superiority, cohesiveness, and even manageability." Compaq, 135 S.W.3d 657, 672 (Tex.2004). In this case, both the trial court's certification order and the court of appeals' opinion predate our decision in Compaq. Not surprisingly, therefore, neither court engaged in the sort of extensive analysis we required in Compaq. In Compaq, the putative class members alleged that Compaq breached its express warranty provided in conjunction with certain Compaq computers—a statutory claim under Texas law. Compaq, 135 S.W.3d at 662; see, e.g., TEX. BUS. & COM.CODE §§ 2.313, 2.607, 2.714. The trial court certified a class, stating that it "believe[d] it c[ould] properly apply Texas law to all claims covered by this nationwide class action" but concluded that it would revisit the issue if Compaq sought to litigate an issue on which Texas law differed from other jurisdictions. Compaq, 135 S.W.3d at 672. We rejected this approach, holding: The lower courts erred by failing to conduct a state-by-state analysis of the questions of law presented. Those courts never assessed the substance of other states' laws but instead concluded that the theory was sound under Texas law. A proper review would have analyzed the relevant law of each state and the variations among states. Id. at 673; see also Spence v. Glock, 227 F.3d 308, 312 (5th Cir.2000) (reversing trial court's class certification order which determined that Georgia law would govern class claims, as "one must compare Georgia's contacts and the state policies those contacts implicate with those of the 50 other interested jurisdictions" and "[t]he central problem with the district court's opinion is its failure to make this comparison") (emphasis added). Today, the Court commits a similar error: rather than assess the substance of other nations' laws, it merely concludes that the plaintiffs' theory is sound under Texas law. A proper choice-of-law analysis in this case would require an analysis of section 6(2)'s relevant factors, as well as those of other pertinent Restatement sections. For example, we recently held that a trial court failed to rigorously analyze *463 class certification requirements, in part because it failed to conduct an adequate choice-of-law analysis. Nat'l W. Life Ins. Co. v. Rowe, 164 S.W.3d 389, 391-92 (Tex. 2005). In so holding, we recognized that, in claims involving life insurance policies, the Restatement provides that "[t]he validity of a life insurance contract . . . and the rights created thereby are determined . . . by the local law of the state where the insured was domiciled at the time the policy was applied for, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which even the local law of the other state will be applied." Id. (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 192). As the comment notes: There are several reasons why such importance is attributed to the state where the insured was domiciled at the time the policy was applied for. Life insurance is a matter of intense public concern, as is evidenced by the fact that it has been subjected to extensive statutory regulation by the great majority of states. Issues arising under a life insurance policy should be determined by the local law of the state which has the dominant interest in the insured with respect to these issues, and this state will usually be that where the insured was domiciled at the time the policy was applied for. Likewise, a major purpose of life insurance legislation is to protect the individual insured and his beneficiaries, and the courts have sought to assist in the achievement of this purpose by means of their choice-of-law rules. They have done so by requiring that, at least as a general rule, the insured should receive the protection accorded him by the local law of his domicil. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 192, cmt. c. Here, the parties agree that Citizens sells life insurance policies; a proper choice-of-law analysis would therefore take into account the section 192 factors as well. Who is to say that Colombia, for example, does not have a greater interest in protecting Colombian citizens who purchase life insurance policies in Colombia to provide death benefits to their (presumably Colombian) beneficiaries, than Texas, whose only connection to the case is that the insurer is located here? The Restatement provides that: In determining a question of choice of law, the forum should give consideration not only to its own relevant policies (see Comment e) but also to the relevant policies of all other interested states. The forum should seek to reach a result that will achieve the best possible accommodation of these policies. The forum should also appraise the relative interests of the states involved in the determination of the particular issue. In general, it is fitting that the state whose interests are most deeply affected should have its local law applied. Which is the state of dominant interest may depend upon the issue involved. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6, cmt. f. In this case, the class members presented no evidence of the laws of the class members' countries of residence. Indeed, other than stating that the 25,000 class members hale from "approximately" fifty foreign countries, the record does not even reflect which countries those are.[2] We know little other than that the named *464 plaintiffs are Colombian. According to Citizens, each of the fifty foreign jurisdictions, save one (Belize), operates its own licensed security trading exchange. Citizens argues that, given the presence of such an exchange, courts may infer that each of those jurisdictions possesses a significant body of securities law and regulations, and thus a significant interest in providing redress to its citizens concerning the sale of allegedly unregistered securities within its borders. But it is not our job to infer what the other countries' laws are; plaintiffs, as class action proponents, must present an extensive analysis of those laws. Compaq, 135 S.W.3d at 672-73. Perhaps, after a thorough choice-of-law analysis, it will turn out that Texas law governs the class claims. But just because a statute may apply does not mean that it must apply; that is, a statute's permissible application does not dispense with the need to examine the section 6(2) factors and application of another state's law. By holding that the Texas Securities Act governs this international class action, the Court leapfrogs over any substantive choice-of-law analysis and, in doing so, risks making Texas a magnet forum for national and international class actions.[3]See Arthur R. Miller and David Crump, Jurisdiction and Choice of Law in Multistate Class Actions After Phillips Petroleum Co. v. Shutts, 96 YALE L.J. 1, 58-59 (1986); cf. Allison M. Gruenwald, Rethinking Place of Business as Choice of Law in Class Action Lawsuits, 58 VAND. L.REV. 1925, 1941-42 (2005). If, contrary to what we held in Compaq, class plaintiffs need only allege a violation of a Texas statute to ensure that Texas law will govern the proceedings, the Supreme Court's dictate in Shutts that plaintiffs may not choose which law governs will be thwarted. II I add a brief response to JUSTICE WAINWRIGHT's concurrence. JUSTICE WAINWRIGHT would hold that, based on the history and purpose of blue sky laws, the TSA was intended to have extraterritorial effect if a transaction occurs "in this state," and therefore the TSA contains a statutory directive on choice of law, rendering unnecessary an examination of factors otherwise relevant to a choice-of-law determination. I disagree. Some statutes clearly contain an explicit "directive . . . on choice of law." See, e.g., TEX. BUS. & COM.CODE § 35.531(c) ("A contract to which this section applies is governed by the law of this state. . . ."); TEX. BUS. & COM.CODE § 1.301(a) ("[T]his title applies to transactions bearing an appropriate relation to this state."); TEX. FAM.CODE § 1.103 ("The law of this state applies to persons married elsewhere who are domiciled in this state."); TEX. FAM.CODE § 159.604 (entitled "Choice of Law" and stating that "the law of the issuing state governs" various situations involving child support); TEX. OCC. CODE § 2301.478 (in proceeding against motor vehicle dealer, "the law of this state applies to the action or proceeding"); TEX. INS.CODE, art. 21.42 (entitled "Texas Laws Govern Policies" and providing that "[a]ny contract of insurance payable to any citizen or inhabitant of this State by any insurance company or corporation doing business within this State shall be held to be a contract made and *465 entered into under and by virtue of the laws of this State relating to insurance, and governed thereby"); see also Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan, 883 F.2d 345, 353 (5th Cir.1989) (noting that Texas statute specifically controlled the choice-of-law issue, as it directed that "[t]he internal affairs of a foreign corporation . . . shall be governed solely by the laws of its jurisdiction of incorporation") (quoting TEX. BUS. CORP. ACT art. 8.02). But this is not one of those statutes. The sections of the TSA at issue here provide only that liability will attach if a person "offers or sells a security in violation of" section 12, which prohibits the offer or sale "of any security in this state unless the person is registered."[4] TEX.REV.CIV. STATS. arts. 581-12(A), 581-33(A)(1). Such vague language is not a "directive on choice of law." The comment to Restatement section 6(1) indicates that it is aimed at those statutes that explicitly provide which state's law governs a particular dispute: Statutes directed to choice of law. A court, subject to constitutional limitations, must follow the directions of its legislature. The court must apply a local statutory provision directed to choice of law provided that it would be constitutional to do so. An example of a statute directed to choice of law is the Uniform Commercial Code which provides in certain instances for the application of the law chosen by the parties (§ 1-105(1))[5] and in other instances for the application of the law of a particular state (§§ 2-402, 4-102, 6-102, 8-106, 9-103).[6] Another example is the Model Execution of Wills Act which provides that a written will subscribed by the testator shall be valid as to matters of form if it complies with the local requirements of any one of a number of enumerated states. Statutes that are expressly directed to choice of law, that is to say, statutes which provide for the application of the local law of one state, rather than the local law of another state, are comparatively few in number. Restatement (Second) of Conflict of Laws § 6, cmt. a (footnotes added). If the registration mandates of the TSA are a "statutory directive on choice of law" because they contain the words "in this state," it is difficult to imagine a claim based on any Texas statute that would not be viewed as a statutory directive on choice of law. In support of his writing, Justice Wainwright relies on language in Marmon v. Mustang Aviation, Inc., a case we decided a year before the Restatement (Second) of Conflict of Laws was approved for publication. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS, Introduction (1971); Marmon v. Mustang Aviation, Inc., 430 *466 S.W.2d 182 (Tex.1968). But the second Restatement embodied a major shift in conflict-of-law analysis, abandoning "dogma" in favor the most significant relationship test and the factors relevant thereto outlined in section 6(2). See RESTATEMENT (SECOND) OF CONFLICT OF LAWS, Introduction. The Restatement makes clear that these factors form the basis for courts' choice-of-law determinations, "absent a binding statutory mandate." Id. The TSA "in this state" language is a far cry from a binding statutory mandate that Texas law governs to the exclusion of the laws of the fifty nations from which the class members hale. III Conclusion I would remand the case for a proper choice-of-law analysis. Because I disagree with the Court's treatment of that issue, I respectfully concur in the Court's judgment but not in section IV of its opinion. NOTES [1] Article 581-33A(1) of the Texas Securities Act provides: A person who offers or sells a security in violation of Section 7, 9 (or a requirement of the Commissioner thereunder), 12, 23C, or an order under 23A or 23-2 of this Act is liable to the person buying the security from him, who may sue either at law or in equity for rescission or for damages if the buyer no longer owns the security. TEX.REV.CIV. STAT. art. 581-33A(1). Section 12A states "no person, firm, corporation or dealer shall, directly or through agents, offer for sale, sell or make a sale of any securities in this state without first being registered as in this Act provided." Id. art. 581-12A. [2] The court of appeals modified the last sentence of the class definition by substituting the word "remedy" for the word "Class." 105 S.W.3d at 721-22. [3] A negative value suit is one in which the stakes to each member are too slight to repay the cost of suit. Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 439 (Tex.2000). [4] In 2003, the Legislature amended sections 22.225(b) and (d) to give this Court jurisdiction over interlocutory appeals of orders certifying or refusing to certify a class. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.02, 2003 Tex. Gen. Laws 847, 848-49. The amendments apply to petitions filed on or after September 1, 2003. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(a), (d), 2003 Tex. Gen. Laws 847, 898-99. Because Citizens filed its petition for review in June 2003, the amendments do not govern our jurisdiction in this case. See Hoff v. Nueces, 153 S.W.3d 45, 48 n. 2 (Tex.2004). [5] On July 31, 2002, the trial court certified the class pursuant to Rule 42(b)(4). Effective January 1, 2004, however, the Court deleted as unnecessary subparagraph (b)(3) from Rule 42 and substituted in its place—with minor changes not pertinent here—former subparagraph (b)(4). TEX. R. CIV. P. 42 cmt.—2003. Our references here are to current subparagraph (b)(3), which includes former subparagraph (b)(4). [6] The term "Blue Sky laws" was used by Justice McKenna writing for the U.S. Supreme Court in Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480 (1917). He stated: "The name that is given to the law indicates the evil at which it is aimed, that is . . . `speculative schemes which have no more basis than so many feet of "blue sky"'; or, as stated by counsel in another case, `to stop the sale of stock in fly-by-night concerns, visionary oil wells, distant gold mines and other like fraudulent exploitations.'" Id. at 550, 37 S.Ct. 217. Thus, Blue Sky laws were promulgated by states to protect investors from nefarious securities schemes. [7] In a similar fashion, the commentary to section 6 of the Restatement provides the following: b. Intended range of application of statute. A court will rarely find that a question of choice of law is explicitly covered by statute. That is to say, a court will rarely be directed by statute to apply the local law of one state, rather than the local law of another state, in the decision of a particular issue. On the other hand, the court will constantly be faced with the question whether the issue before it falls within the intended range of application of a particular statute. . . . If the legislature intended that the statute should be applied to the out-of-state facts involved, the court should so apply it unless constitutional considerations forbid. On the other hand, if the legislature intended that the statute should be applied only to acts taking place within the state, the statute should not be given a wider range of application. . . . When the statute is silent as to its range of application, the intentions of the legislature on the subject can sometimes be ascertained by a process of interpretation and construction. RESTATEMENT (SECOND) OF CONFLICTS OF LAWS § 6(1) cmt. b (emphasis added). While we generally agree with this comment, the emphasized sentence does not fully explain the approach we follow in Texas to determine the extraterritorial affect of Texas statutes. See Marmon, 430 S.W.2d at 182. [8] The words "in this state" first appeared in Texas securities statutes in 1925 in a registration provision substantially different from the current version. TEX. REV. CIV. STAT. arts. 579-600. In 1935, the words "in this state" were used in a securities registration provision more similar to the current version. Act of April 16, 1935, 44th Leg., R.S., ch. 100, § 2, 1935 Tex. Gen. Laws 255, 256-59. The language of current Section 12 was adopted in very similar form in 1955, then re-adopted in its current form as section 12 of the Texas Securities Act of 1957. [9] The U.S. Supreme Court has identified two primary constitutional limitations on the application of a state's substantive law to conduct occurring, at least in part, outside the state—the Due Process Clause and the Interstate Commerce Clause. Shutts, 472 U.S. at 818-22, 105 S.Ct. 2965; Travelers Health Ass'n v. Virginia, 339 U.S. 643, 649, 70 S.Ct. 927, 94 L.Ed. 1154 (1950). Citizens only raises a due process violation. [10] We reject the argument predicated on Van Dyke v. Boswell, O'Toole, Davis & Pickering that the class could circumvent this conclusion by obtaining a severance of its Texas Blue Sky claim into a separate action. 697 S.W.2d 381, 384 (Tex.1985). [11] Because counsel and class representatives may have little or no interest in seeing absent class members opt out of a class, the trial court ensures that notice is effective under Texas Rule of Civil Procedure 42(c)(2)(B). See Linda S. Mullenix, No Exit: Mandatory Class Actions in the New Millennium and the Blurring of Categorical Imperatives, 2003 U. CHI. LEGAL F. 177, 245 (2003) (lamenting that opt-out claimants may be "fungible hostages" in a "class action game"). [1] Those factors, applicable "[w]hen there is no [statutory] directive," include: "(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied." RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6. [2] Citizens alleges only that the "fifty foreign countries" are in "every continent of the globe." [3] Indeed, Congress passed the Class Action Fairness Act of 2005 in part because of "state and local courts . . . making judgments that impose their view of the law on other States and bind the rights of residents of those States." Class Action Fairness Act of 2005, Pub.L. No. 109-2, § 2, 119 Stat. 4 (2005) (codified at 28 U.S.C.A. § 1711, historical and statutory notes (2006)). [4] It is noteworthy that, in enacting the TSA, Texas did not adopt the Uniform Securities Act's choice-of-law provision. See UNIF. SEC. ACT § 414 (1956), 7C U.L.A. 940-41 (2006). [5] Prior to its repeal, this UCC section, as adopted verbatim in Texas, provided that "when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law of either this state or of such other state or nation shall govern their rights and duties. Failing such agreement this title applies to transactions bearing an appropriate relation to this state." Uniform Commercial Code, 60th Leg., R.S., ch. 785, § 1.105, 1967 Tex. Gen. Laws 2343, 2346-47 (current version at TEX. BUS. & COM.CODE § 1.301(a)). The Restatement has not yet been updated to reflect this UCC provision's repeal. [6] For example section 4-102 of the UCC provides that "[i]n the case of action or non-action by or at a branch or separate office of a bank, its liability is governed by the law of the place where the branch or separate office is located." U.C.C. § 4-102 (1977).

930 F.2d 661 Ray E. VANCE, Appellant,v.Joseph B. STEVENS, M.D., Appellee,The UpJohn Company. No. 90-2526. United States Court of Appeals,Eighth Circuit. Submitted March 22, 1991.Decided April 19, 1991. Anthony Sestric, St. Louis, Mo., for appellant. Kenneth Bean, St. Louis, Mo., for appellee. Before McMILLIAN, FAGG, and MAGILL, Circuit Judges. McMILLIAN, Circuit Judge. 1 Ray E. Vance, a Missouri resident, appeals the district court's1 grant of summary judgment for Joseph B. Stevens, a psychiatrist who treated Vance in Texas, in this medical malpractice action. Vance is a former airline employee who worked in Texas as a mechanic. During treatment for a major depressive disorder from September 12, 1983, until May 1, 1985, Stevens prescribed Halcion for Vance. While at work on November 13, 1985, Vance became aggressive, and caused serious damage to two airplanes. His employer subsequently terminated his employment. Vance brought this action against Stevens on January 24, 1990, alleging that the doctor knew or should have known that Halcion could cause amnesia, increased aggression, and loss of coordination. 2 The district court granted summary judgment for Stevens on the ground that the suit was barred under the two-year medical malpractice statute of limitations of Missouri or Texas. Mo.Rev.Stat. Sec. 516.105 (1986); Tex.Rev.Civ.Stat.Ann. art. 4590i Sec. 10.01 (Vernon 1987). The district court also denied Vance's motion to amend the judgment in which Vance argued that, under Texas law, his mental disability tolled the statute of limitations. Predicting the Texas Supreme Court's likely resolution of conflicting state court of appeals decisions on this issue, the district court concluded that Vance would be required to show that his mental disability prevented him from pursuing this suit within the limitations period. In light of Vance's failure to controvert Stevens's summary judgment motion with affidavits, and on the basis of undisputed facts in the record, the district court ruled that Vance failed to show his mental disability prevented him from timely pursuing this suit. 3 We review de novo the district court's grant of summary judgment. See Robinson v. Monaghan, 864 F.2d 622, 624 (8th Cir.1989). We will affirm if the record does not reveal a genuine issue of material fact and Stevens is entitled to summary judgment as a matter of law. See id. In accordance with the Supreme Court's recent directive in Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1219-21, 113 L.Ed.2d 190 (1991), we review de novo the district court's state-law determinations. 4 When a tort occurs in a foreign jurisdiction, as in this case, Missouri applies the statute of limitations of the foreign jurisdiction through the Missouri borrowing statute. Mo.Rev.Stat. Sec. 516.190 (1986); Dorris v. McClanahan, 725 S.W.2d 870, 872 (Mo.1987) (en banc). The Texas statute of limitations applied because Stevens's alleged negligence occurred in that state. As to whether Vance's mental disability tolled the statute of limitations, however, the law of Missouri applied. See Dorris, 725 S.W.2d at 872 (Missouri tolling statute applied to foreign statute of limitations adopted through borrowing statute where Missouri resident brought suit for injuries suffered during minority). 5 The Missouri tolling statute for minors and the mentally disabled expressly excepts from its operation the medical malpractice statute of limitations. Mo.Rev.Stat. Sec. 516.170 (Supp.1990). Vance correctly argues that, as applied to minors, the Missouri Supreme Court has declared this provision unconstitutional under the state constitution. See Strahler v. St. Luke's Hosp., 706 S.W.2d 7 (Mo.1986) (en banc). Vance has not cited, however, and we have not found, a Missouri case holding this provision unconstitutional as applied to the mentally disabled. Even assuming the Missouri Supreme Court would so hold, we conclude the district court correctly determined that Vance could not prevail in any event. Vance failed to provide the affidavits of his treating physicians or other experts to establish a genuine issue of material fact for trial as to his mental disability. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). 6 Accordingly, we affirm. 1 The Honorable John F. Nangle, Senior United States District Judge for the Eastern District of Missouri

16 B.R. 132 (1981) In the Matter of FLAGSTAFF FOODSERVICE CORPORATION, et al., Debtors. Bankruptcy Nos. 81-B-11430 to 81-B-11436. United States Bankruptcy Court, S.D. New York. December 23, 1981. Levin & Weintraub by Elias Mann, New York City, for debtors. Angel & Frankel, P.C., New York City, for Creditors' Committee; Joshua J. Angel, Sanford P. Rosen, New York City, and Emmett Creahan, (Law Clerk) of counsel. Wachtell, Lipton, Rosen & Katz, New York City, for General Electric Credit Corporation; Bernard Mindich and Michael S. Himmel, New York City, of counsel. OPINION ROY BABITT, Bankruptcy Judge: The sole issue presented on this multi-faceted motion brought by the committee of unsecured creditors in the Chapter 11 cases of Flagstaff Foodservice Corporation and several of its affiliates (collectively "Flagstaff") is whether General Electric Credit Corporation ("GECC"), a long-time lender to the debtors, has a valid security interest in the accounts and inventory of one of the debtors. Flagstaff Foodservice Corporation of New England ("FFNE"). Resolution of this issue depends on the terms of Section 9-403(1) of the Massachusetts Uniform Commercial Code ("U.C.C."), Mass.Ann. Laws, Ch. 106, concerning perfection of security interests, a sine qua non of validity. These Chapter 11 petitions by Flagstaff, engaged in various aspects of the food business, were filed on July 21, 1981 under applicable provisions of the 1978 Bankruptcy Code, Sections 1101 et seq., Pub.L. 95-598, 92 Stat. 2549 et seq., 11 U.S.C. (1976 ed. Supp. IV) §§ 1101 et seq. *133 Flagstaff's business was financed by GECC which advanced funds pursuant to a November, 1978 loan agreement. Flagstaff's assets collateralized the liabilities to GECC. To continue funding its operation, Flagstaff, as debtor in possession pursuant to Sections 1101(1), 1107(a) and 1108, moved by order to show cause on notice[1] to its ten largest creditors and to the United States Trustee[2] for a hearing to consider its application to borrow money from GECC on a secured basis.[3] On July 29th, following the hearing, the court entered an order authorizing Flagstaff to borrow on a secured basis in a manner substantially similar to the terms of the pre-Chapter 11 arrangement. Thereafter, a committee of unsecured creditors ("Committee") was appointed, Section 151102(a), and it retained counsel, Section 1103.[4] The Committee then began its investigation into the acts, liabilities and financial condition of the debtor in possession. Section 1103(c)(2). In order to verify the validity of GECC's security interest, counsel for the Committee requested copies of all security agreements and financing statements relating to the debtor's pre-Chapter 11 financing activities. Relevant to its security interest in the accounts receivable and inventory of FFNE, GECC produced (1) a copy of a financing statement indicating that the original had been filed with the Secretary of the Commonwealth of Massachusetts; (2) a letter dated September 1, 1978 from counsel to GECC to the Town Clerk of Attleboro, Massachusetts, accompanied by a check limited to $10.00 and a financing statement; (3) an unstamped financing statement bearing no evidence of its receipt in Attleboro or the date or the time of its filing; (4) a certified mail receipt indicating that the letter and financing statement were received on December 4, 1978 by one B. Jordan,[5] bearing the address of the Town Clerk of Attleboro. It is undisputed that Flagstaff maintains one place of business in Massachusetts, that located in Attleboro. And it is agreed that U.C.C. § 9-401(1)(c)[6] requires a dual filing, i.e., in the office of the Secretary of State, a filing not at issue here, and also in the office of the Town Clerk in Attleboro, very much the issue in this dispute. On the evidence described earlier, the efficacy of *134 GECC's filing must be tested by U.C.C. § 9-403(1)[7] which states that "Presentation for filing of a financing statement and tender of the filing fee or acceptance of the statement by the filing officer or register of deeds constitutes filing under this Article. . . . " Based upon these words and the fact that GECC could provide no proof that the financing statement was actually indexed by the town clerk, the Committee brought on this motion the heart of which seeks relief from the July 29 financing order as it relates to FFNE and its assets. Rule 924, 411 U.S. 1102; Rule 60 F.R.Civ.P. See In re Emergency Beacon Corporation, Montco, Inc. v. Barr, 666 F.2d 754 (2nd Cir. 1981), for a thorough discussion of a Bankruptcy Judge's power to grant relief from a prior order. In seeking repudiation of that order, the Committee takes the position that the court should not have put its seal of benediction on a secured status for GECC pre-Chapter 11 petition because it had no such status.[8] The Committee comes to the conclusion that GECC is not secured because, it is argued, its security interest is invalid in that it was not perfected as the necessary financial statement was never filed in Attleboro as required by the U.C.C. The Committee believes GECC has fallen short of the duty of good faith insisted upon in respect of every duty imposed by the U.C.C. See U.C.C. § 1-203.[9] The Committee reasons that this general principle of good faith placed GECC under a duty of investigation since three years had elapsed between the mailing of its financing statement and Flagstaff's Chapter 11 petition, in all of which time GECC had not received its cancelled check nor a copy of a properly stamped financing statement. GECC, on the other hand, stands by the perfection of its security interest, calling attention to its careful preparation[10] and forwarding of the financing statement in compliance with the language of the statute. In short, GECC relies on the clear language of U.C.C. § 9-403(1) as support for its position that its security interest was perfected upon presentation[11] by mail and tender of the appropriate filing fee. Section 9-403(1) of the U.C.C. prescribes the precise point in time when perfection by *135 filing occurs, i.e., upon presentation of the financing statement and tender of the proper fee or acceptance. The choice of the disjunctive "or" in the second clause clearly reveals that the contemplation of the U.C.C. is that filing be effective regardless of whether the officer receiving the controlling documents makes the right gestures of acceptance. And, what is equally clear is that the draftsmen of this legislation intended this result. Prior law was not always clear as to whether a financing statement gave constructive notice from the time of presentation of documents or from their proper indexing. The U.C.C.'s draftsmen decided, therefore, to resolve this problem by adopting the concept that filing is constructive notice from the time of presentation. Anderson, Uniform Commercial Code, (2d ed. 1971) § 403:5. The official comments to the U.C.C. make clear that the secured party ought not bear the risk of the mode of indexing. The official comment to U.C.C. § 9-407 is as follows: "1. Subsection (1) requires the filing officer upon request to return to the secured party a copy of the financing statement on which the material date concerning the filing are noted. Receipt of such a copy will assure the secured party that the mechanics of filing have been complied with. Note, however, that under Section 9-403(1) the secured party does not bear the risk that the filing officer will not properly perform his duties: under that Section the secured party has complied with the filing requirements when he presents his financing statement for filing and the filing fee has been tendered or the statement accepted by the filing officer." (Emphasis added.)[12] Accordingly, notwithstanding the notice filing system adopted by the U.C.C., the enactment of this section by the Massachusetts legislature reflects its policy decision that as between a secured party who has properly prepared and presented a financing statement, and the world, the secured party is protected. See, Uniform Commercial Code Comments to Section 9-403; U.C.C. § 9-403, Mass.Annot. Subsection (1). The secured party simply is not to bear the risk that the filing officer will not properly perform his duties. "The cases are clear that a mistake by a clerk (sic) does not affect the perfection of the creditor's security interest where the financing statement presented was proper, even though no notice is given to subsequent creditors." White & Summers, Uniform Commercial Code (2d ed. 1980) § 23-15. It is thus clear that the ministerial act of indexing plays no part in the matter of proper filing. Anderson, Uniform Commercial Code, (2d ed. 1971) § 9-403.5. And, the authorities support the conclusion that the Committee has missed the mark. GECC did not have the obligation of overseeing the filing officer's prompt and proper handling of its financing statement after presentation, nor did it bear a continuing duty to ensure any performance. The cases leave no room to doubt this. See, In re Royal Electrotype Corp., 485 F.2d 394 (3d Cir. 1973); In re May Lee Industries, Inc., 380 F.Supp. 1 (S.D.N.Y.1974), aff'd 501 F.2d 1407 (2d Cir. 1974); In re Fowler, 407 F.Supp. 799 (W.D.Okla.1975); In re Vaughan, 4 U.C.C. Rep. 61 (Bankr.Ct.W.D.Mich. 1967); In re Kann, 6 U.C.C.Rep. 622 (Bankr. Ct.E.D.Pa.1969). And, as the statutory language and the legislative history are plain and unambiguous compelling these judicial results, that language must be regarded as conclusive, with the result that the Committee's challenge to GECC's security interest must be turned aside. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). *136 Although the court is unaware of any decision which seeks to dilute this clear legislative mandate, the Committee insists there is authority to impose a duty of inquiry upon a secured creditor. It is the Committee's position that In re Fidler,[13] 24 U.C.C. Rep. 465 (D.C.Or.1978) compels the result sought, i.e., that GECC had a continuing duty and rested on the statutory order of things at its peril. Although this case deals with a different set of circumstances, a careful reading indicates its holding is entirely consistent with the clear language of the statute. In Fidler, the bank had mailed a financing statement, along with two cashier checks for $4.50 each, to the county clerk. One check was intended to cover the cost of a lien search, the other to cover the fee for filing a financing statement. Each check was appropriately identified. The check for the lien search was accepted by the clerk. However, the $4.50 check tendered as the filing fee was inadequate as the cost of filing was $6.00. An employee of the clerk's office wrote the bank of its error, informing it that the initial check would be held until the additional amount was received. The bank then sent the additional $1.50, but instead of identifying it as the balance of the filing fee, it was identified as allocable to the lien search. Two years later the clerk returned the $4.50 check, advising the bank it had never paid the outstanding balance. In the meantime, the debtor had incurred a substantial number of secured and unsecured debts before filing its bankruptcy petition. As this summary makes clear, Fidler is a case where the bank's own error in tendering the filing fee resulted in no perfection. Although the opinion does speak of a duty of inquiry, such discussion was merely dictum to underscore the bank's own negligence. Fidler certainly does not indicate that any duty of inquiry is required when there has been a proper tender and presentation. To read into the law such a continuing duty to insure proper filing cuts against the grain of the U.C.C.'s language and is at war with the legislature's purpose in writing that language, and ignores the judicial gloss given that section. In re May Lee Industries, Inc., supra, at 3. The U.C.C. is a carefully matured enactment designed to achieve needed reform in the world of commerce. Its avowed purpose was and is the codification, the simplification and the modernization of the laws governing commercial transactions. It should not be read in such way that the arcane uncertainties it sought to remove are reincarnated by the judiciary. In short, to reinstate under the general rubric of "good faith", a rejected duty to insure proper indexing would be to pervert the intendment of this comprehensive legislation. As it is clear GECC properly filed financing statements with the Clerk of Attleboro, Massachusetts, and with the Secretary of that Commonwealth, GECC has a perfected security interest in the collateral owned by FFNE. The Committee's motion is denied in all respects. It is so ordered. NOTES [1] As the proposed financing agreement contained provisions for cross-collateralization, this court was mindful of and heeded the teachings of In re Texlon Corp., 596 F.2d 1092 (2d Cir. 1979), from the standpoint of notice. [2] This is a United States Trustee Pilot district. Section 1501(2) of the Code. [3] As an interim measure, the court approved a stipulation between Flagstaff and GECC authorizing Flagstaff to use the latter's cash collateral in an amount not to exceed $750,000. See Section 363(c)(2). [4] Section 1102(a) of the Code provides for the appointment of committees by the Bankruptcy Court. In United States Trustee pilot districts, fn. 2, supra, the appointment is by that officer as explained in Section 151102, one of the sections of Chapter 15 of the 1978 bankruptcy sections which sets forth the duties of the United States Trustee in cases of all kinds under the Code. [5] At oral argument the Committee argued that the financing statement had been sent to the wrong person, as B. Jordan was not Attleboro's Town Clerk. Furthermore, counsel stated that he telephoned the Attleboro Town Clerk's office and was told there never had been a B. Jordan employed there. This court must reject out of hand whatever the Committee thinks it can do with this scenario. First, it certainly cannot be expected that the clerk himself would be involved with the ministerial task of receiving mail. Secondly, the staff of a busy clerk's office constantly changes; that no one remembers a B. Jordan working at the Attleboro Clerk's office in 1978 should come as no surprise. As the letter was properly addressed, and there is a stamped receipt, it is accepted that it arrived at the proper place. [6] "§ 9-401. Place of Filing; Erroneous Filing; Removal of Collateral. (1) The proper place to file in order to perfect a security interest is as follows: (c) in all other cases, in the office of the state secretary and in addition, if the debtor has a place of business in only one town of this state, also in the office of the clerk of such town, or, if the debtor has no place of business in this state, but resides in the state, also in the office of the clerk of the town in which he resides." [7] This language is nearly identical to Section 9-403(1) of the Uniform Commercial Code as adopted by most jurisdictions, including heavy commercial jurisdictions such as New York and Pennsylvania. See Uniform Laws Annotated, Uniform Commercial Code, § 9-403. It should be noted that a fundamental purpose of the U.C.C. was to make uniform the laws among the various jurisdictions. U.C.C. § 1-102(2)(c). Cases from other jurisdictions therefore serve as guidance and help fulfill Judge Friendly's 1966 prophecy in United States v. Wegematic, 360 F.2d 674, 676 (2d Cir. 1966) that the U.C.C. was then "well on its way to becoming a truly national law of commerce." [8] The Committee is a proper party to seek relief from this court's financing order as the unofficial committee was on notice that the debtor's assets were being liened, a matter vital to unsecured creditors. See In re Texlon Corp., supra, fn. 1. This action by the Committee is unlike actions belonging to a trustee only. Compare Matter of Monsour Medical Center, 2 C.B.C.2d 1363, 6 B.C.D. 886, 5 B.R. 715 (Bkrtcy. W.D.Pa.1980). [9] That section reads as follows: "Every contract or duty within this chapter imposes an obligation of good faith in its performance or enforcement." [10] See affidavit of Alan D. Wiener, Esq., GECC's attorney in charge of this loan. [11] The Committee has refrained from challenging GECC's choice of "presentation" by mail. Although the term presentation is not specifically defined in the U.C.C., it cannot be disputed that mailing is a commercially acceptable method of presentation. A survey of the offices of the Secretaries of State of Massachusetts, New York and New Jersey indicates that between ninety percent and ninety nine percent of all financing statements presented to those offices are received through the mails. See affidavit of Dennis J. Malenski, appended to GECC's answer. The U.C.C. itself mandates a liberal construction to promote its underlying purposes and policies, including that of simplifying the law governing commercial transactions and of encouraging the expansion of commercial practices through custom and use. Section 1-102(2). [12] As Judge Kaufman observed in In re Yale Express System, Inc., 370 F.2d 433, at 437 (2d Cir. 1966), the official comments to the U.C.C. are powerful dicta not to be ignored. [13] Although the Committee also cites In re D.G. & Associates, 9 B.R. 94 (Bkrtcy.E.D.Tenn. 1981), in support of its position, that case is inapposite. It deals with a secured creditor's duty to refile after learning that the debtor has changed its name. Although the court imposed a duty to refile based upon the duty of good faith, U.C.C. § 1-203, it should be noted that the U.C.C. contains no such requirement. In fact, an amendment to the U.C.C. had proposed a duty to refile, arguably indicating no such duty then existed.

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS October 6, 2009 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 08-2299 v. (D.C. No. 1:97-CR-00731-BB-1) (D. N.M.) RODNEY MILLER, Defendant-Appellant. ORDER AND JUDGMENT * Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ, Circuit Judge. Rodney Miller, a federal prisoner serving a 262-month sentence for distribution of crack cocaine, appeals the denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). The district court determined that although Amendments to the United States Sentencing Guidelines (Guidelines) * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment 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. lowered certain base offense levels for crack cocaine offenses, Mr. Miller was not eligible for resentencing because he was sentenced as a career offender. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. On April 7, 1998, Mr. Miller pleaded guilty to possessing with intent to distribute fifty grams or more of a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). The plea agreement stated that the government would file an Information giving notice for eligibility for imposition of a sentence under the enhanced penalty provisions of 21 U.S.C. §§ 841(b)(1)(A) and 851. Additionally, the plea agreement stated that the mandatory minimum sentence was twenty years’ imprisonment. Mr. Miller’s presentence report calculated a base offense level of 34, after accounting for acceptance of responsibility, a career offender enhancement under Guidelines § 4B1.1, and a criminal history category of VI. His Guidelines sentencing range was 262 to 327 months’ imprisonment, and the district court sentenced him to the low end of that range at 262 months’ imprisonment. 1 On November 1, 2007, “[t]he Guidelines, through Amendment 706, generally adjusted downward by two levels the base offense level assigned to quantities of crack cocaine.” United States v. Sharkey, 543 F.3d 1236, 1237 (10th Cir. 2008). Through Amendments 712 and 713, Amendment 706 became 1 Mr. Miller did not appeal. The district court dismissed his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. -2- retroactive on March 3, 2008. United States v. Rhodes, 549 F.3d 833, 835 (10th Cir. 2008), cert. denied, 129 S. Ct. 2052 (2009). On October 27, 2008, Mr. Miller, proceeding pro se, sought reduction of his sentence under § 3582(c)(2) based on the Amendments. Additionally, he argued that the Guidelines are merely advisory in light of United States v. Booker, 543 U.S. 220 (2005); Kimbrough v. United States, 552 U.S. 85 (2007); and Gall v. United States, 552 U.S. 38 (2007), and that the district court must treat the Guidelines as advisory when resentencing him under § 3582(c)(2). The district court appointed counsel for Mr. Miller. Three days after the government responded to Mr. Miller’s motion for reduction of his sentence, the district court denied the motion. That same day, appointed counsel moved to reconsider, noting the fact that Mr. Miller had not had an opportunity to reply. Ten days later, Mr. Miller also filed a notice of appeal. After the district court granted the motion to reconsider in a text only entry, we granted Mr. Miller’s motion to remand and abated this appeal pending further district court proceedings. Mr. Miller then filed in district court a combined reply, a supplement to his pro se § 3582(c)(2) motion for reduction of sentence, and a request for reconsideration of the district court’s decision. The district court again denied the motion for reduction of sentence, holding that the Amendments are inapplicable to Mr. Miller due to his career offender classification. Mr. Miller filed an amended notice of appeal. We lifted the abatement. -3-  Mr. Miller argues that although he was sentenced as a career offender, his sentence should be reduced under § 3582(c)(2) based on retroactive application of the crack cocaine Amendments. Also, he contends that under Booker and later cases the district court must treat the Guidelines as advisory upon resentencing under § 3582(c)(2). “We review de novo the district court’s interpretation of a statute or the sentencing guidelines. We review for an abuse of discretion a district court’s decision to deny a reduction in sentence under 18 U.S.C. § 3582(c)(2).” Sharkey, 543 F.3d at 1238 (citation and quotation marks omitted). Since this case is not a direct appeal or an appeal from the denial of § 2255 relief, Mr. Miller’s motion for reduction of sentence depends only on § 3582(c)(2). See Sharkey, 543 F.3d at 1238. Section 3582(c)(2) permits a court to reduce a sentence if the sentencing range has been lowered by the Sentencing Commission. Mr. Miller’s sentence, however, is not based on a sentencing range that has been lowered. As we held in Sharkey, “Amendment 706 ha[s] no effect on the career offender guidelines in § 4B1.1” and therefore a reduction in sentence is not authorized under § 3582(c)(2). Sharkey, 543 F.3d at 1239. Furthermore, Sharkey recognized that “the Booker line of cases [does not] provide[] a separate basis for relief under § 3582(c)(2).” Sharkey, 543 F.3d at 1239; see also Rhodes, 549 F.3d at 840 (concluding “that Booker simply has no bearing on sentencing modification proceedings conducted under § 3582(c)(2)”). -4-  Despite acknowledging Sharkey, Mr. Miller cites authority from other circuits that he argues is contrary to Sharkey. “We[, however,] are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” See United States v. Mitchell, 518 F.3d 740, 752 n.14 (10th Cir. 2008) (quotation marks omitted). Mr. Miller has filed a motion to supplement his opening brief. His request is based on three attachments to his motion: (1) a Memorandum of the Justice Department; (2) a statement of an Assistant Attorney General before the United States Senate Committee on the Judiciary Subcommittee on Crime and Drugs; and (3) a letter from the West Virginia United States Attorney to the chief judge of the West Virginia District Court. These attachments indicate that the government seeks to eliminate the disparity in sentencing in crack and powder cocaine cases. The government’s new policy in sentencing proceedings in cases involving crack cocaine, including career-offender cases, is to treat crack cocaine and powder cocaine quantities the same as a starting point in analyzing a variance. Mr. Miller, however, acknowledges that the government does not intend any changes to apply retroactively. Indeed, both the Justice Department’s memorandum and the letter of the West Virginia United States Attorney state that this policy change does not authorize reductions in sentences beyond what is authorized by § 3582(c)(2) and the Amendments. -5-  Typically, we do not consider materials outside the district court record. See United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000). And we decline to exercise our inherent equitable authority to do so in this case. See id. (recognizing inherent equitable power to supplement record). In any event, the new materials would not change the outcome of this case, since the new policy does not apply retroactively. Thus, we deny Mr. Miller’s motion to supplement his brief. The judgment of the district court is AFFIRMED. Mr. Miller’s motion to supplement his brief is DENIED. Entered for the Court Wade Brorby Senior Circuit Judge -6- 

618 F.2d 109 U. S.v.Louis Beck and Diversified Realty Investment Corp. 78-2513 UNITED STATES COURT OF APPEALS Seventh Circuit 1/2/80 1 E.D.Wis. AFFIRMED

988 F.2d 1217 U.S.v.Morales* NO. 91-6089 United States Court of Appeals,Eleventh Circuit. Mar 12, 1993 1 Appeal From: S.D.Fla. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS 31, 2007 July FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-11227 Summary Calendar UNITED STATES OF AMERICA Plaintiff-Appellee v. TONY WADLEY, also known as La La Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:06-CR-83-1 Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges. PER CURIAM:* Tony Wadley appeals the 235-month sentence imposed following his guilty-plea conviction for distribution of cocaine base. Wadley argues that the district court violated his Sixth Amendment rights by imposing a sentence based on facts not admitted by him or found by a jury. Because Wadley did not raise this issue in the district court, review is limited to plain error. See United States v. Green, 324 F.3d 375, 381 (5th Cir. 2003). Wadley has not shown any * 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. 06-11227 error, plain or otherwise, as this court has held that after United States v. Booker, 543 U.S. 220 (2005), the Sixth Amendment does not prevent a sentencing judge from finding all facts relevant to sentencing, including relevant conduct under U.S.S.G. § 1B1.3. See United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006). Wadley argues that the district court erred in finding that he was responsible for 2.65 grams of cocaine base sold by Kristal Simpson to an undercover officer as he was merely a passenger in the car when Simpson made the drug transaction. Wadley has not shown that the district court clearly erred in finding that he was responsible for the cocaine base. See United States v. Gonzalez, 445 F.3d 815, 817 (5th Cir. 2006). Further, any error was harmless as the exclusion of the 2.65 grams of cocaine base would not have changed Wadley’s base offense level of 38. See U.S.S.G. § 2D1.1. Wadley also argues that the district court erred in considering an incident in which Wadley was present outside of a residence when officers executed a search warrant for illegal drugs. Wadley has not shown that the district court’s consideration of this information played a part in the court’s determination of the appropriate sentence. Wadley argues that the sentence is unreasonable because it was based on his own admissions made in response to assurances from government agents that “it would be best to tell the truth.” Wadley’s sentence was within the properly calculated guideline range and, therefore, is presumed reasonable. See Rita v. United States, ___ S. Ct. ___, 2007 WL 1772146, at *11 (U.S. June 21, 2007)(No. 06-5754); see also Alonzo, 435 F.3d at 554. Wadley has not shown that the district court miscalculated the applicable guidelines range. Wadley has not shown that the district court clearly erred in determining that there was no government inducement for him to make a statement and that the PSR’s drug quantity calculation was correct because the information provided by Wadley was corroborated by two confidential informants, Wadley’s coconspirators, and 2  No. 06-11227 an undercover officer’s purchase of cocaine base from Wadley. See Gonzalez, 445 F.3d at 817. The district court adequately considered the factors set forth in 18 U.S.C. § 3553(a), including the nature and circumstances of the offense and Wadley’s extensive criminal history. Wadley has not shown that the sentence imposed by the district court was unreasonable as it was within the applicable guideline range and was based on the § 3553(a) factors,. See United States v. Vargas-Garcia, 434 F.3d 345, 348-49 (5th Cir. 2005), cert. denied, 126 S. Ct. 1894 (2006). AFFIRMED. 3 

533 F.2d 1119 76-1 USTC P 9336 James R. COSON, Plaintiff-Appellant,v.UNITED STATES of America et al., Defendants-Appellees. No. 76-1410. United States Court of Appeals,Ninth Circuit. March 24, 1976. William N. Snell (argued), of Thomas, Snell, Jamison, Russell, Williamson & Asperger, Fresno, Cal., Edgar L. Fraser (argued), of Wadsworth, Fraser & Dahl, Los Angeles, Cal., for plaintiff-appellant. Anthony Capozzi, Asst. U. S. Atty. (argued), Fresno, Cal., for defendants-appellees. Before GOODWIN, WALLACE and SNEED, Circuit Judges. PER CURIAM: 1 This is an appeal from a judgment of contempt of the grand jury upon the refusal of James R. Coson to produce corporate records in response to grand jury subpoena. We affirm. 2 The district court findings, which are supported by the record, establish all the facts necessary to support the conviction. The federal grand jury in Fresno, California, has been investigating possible criminal violation of the internal revenue laws by Coson, Fresno Brass Works, Catalina Brass Company, Inc., and others. Coson was duly served with a valid subpoena describing the demanded records, more than two weeks before his scheduled appearance before the grand jury. He refused to produce the records, was cited into the District Court, persisted in his refusal, and was found in contempt. 3 Coson has been consistent in his refusal to produce the records of the corporations, now defunct, of which he was owner and managing agent. In United States v. Coson, 515 F.2d 906 (9th Cir. 1975), cert. denied, 423 U.S. 927, 96 S.Ct. 272, 46 L.Ed.2d 253 (1975), we held that Coson was entitled to witness fees upon the enforcement of a summons issued by the Internal Revenue Service for the same records which Coson is here claiming he does not have to produce. Because Coson later urged upon the District Court the pendency of this criminal investigation, the District Court stayed the enforcement of the I.R.S. summonses challenged in the former litigation. Now Coson contends the I.R.S. should have followed its administrative procedure instead of this grand jury subpoena. He also seeks to reargue the business of witness fees which we covered in detail in reference to an I.R.S. summons. However, when the Government issues a subpoena to a witness before a grand jury, there is no need to tender fees in advance. Such fees are paid upon presentation of a certificate signed by the United States Attorney or his assistant to the marshal for the district. 28 U.S.C. § 1825. 4 Coson also argues that service of the subpoena by an agent of I.R.S. was defective because the agent was "a real party in interest." The fact that the agent works for the Government, or even that he is working on some phases of the pending investigation does not make him a real party in interest. Such an agent is specifically authorized to serve subpoenas. 26 U.S.C. § 7608(b)(2) (A). 5 Coson claims Fifth Amendment protection for the subpoenaed records. Corporate business records are not so protected. Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). He also argues that some of the subpoenaed records go back beyond the statute of limitations. This point might bar some possible prosecutions, but it has nothing to do with the grand jury's right to inquire into crimes. Time-barred facts may be relevant on questions of intent. 6 Substantial brief space was occupied with an interesting speculation about the potential evils of grand jury investigations that might produce evidence which might improperly find its way into the hands of governmental agencies for use in future hypothetical civil litigation. It is sufficient to observe that this point can be argued when and if a timely motion to suppress evidence is made in a civil case. 7 A district court in a factual situation somewhat comparable to that of this case refused a protective order that was sought to prohibit I.R.S. agents from reviewing records that had been subpoenaed by the grand jury. In Re Grand Jury Investigation William H. Pflaumer & Sons, Inc., 53 F.R.D. 464 (E.D.Pa.1971). We believe the Pflaumer court correctly concluded that it should not deny I.R.S. agents access to the subpoenaed records. The I.R.S. agent's special knowledge and skill in examining corporate records were deemed a legitimate, as well as an advisable, resource in the United States Attorney's conduct of an investigation of possible crimes. We reserve the question of the use of such records, so discovered, in subsequent civil litigation. 8 Finally, Coson relies upon United States v. Alter, 482 F.2d 1016 (9th Cir. 1973) for a number of procedural points, none of which is well taken. For example, he argues that because he alleged a failure by the I.R.S. to comply with its internal procedures, the Government must now come forward and affirm or deny that allegation by affidavit as is required of the Government following an allegation of illegal wire tapping under United States v. Alter. This argument extends Alter beyond its proper scope. Noncompliance with the internal procedures involved here, even if such noncompliance were established as a fact, would not deprive Coson of a constitutional right under the Fourth Amendment or otherwise. Nor does the subpoena of records applicable to tax years barred by limitations require the invocation of Alter. Coson has tendered other arguments of similar import, but none constitutes a defense to his contempt. 9 The wiretap cases present special problems in statutory and Fourth Amendment construction, and are not particularly instructive when employed in a general attack on grand jury subpoenas at large. More instructive are such cases as United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), where the Supreme Court set its face against the interruption of grand jury investigations to try out such questions as competency and relevancy. In Calandra, the Court held that a witness properly before the grand jury must testify even though he claims that some of the questions asked were prompted by information obtained in a search that offended the Fourth Amendment. In light of Calandra, and our own recent decision in United States v. Weir, 520 F.2d 662 (9th Cir. 1975), we agree with the District Court that the points which Coson attempted to raise in this case could not prevail against a proper subpoena. 10 The judgment of contempt is affirmed. The balance of the stay of execution granted in the district court will permit Coson to purge himself of his contempt or surrender to the marshal as he chooses. The mandate will issue now.

130 Ind. App. 390 (1959) 162 N.E.2d 457 LEWIS ET AL. v. ESTATE OF SMITH ETC. No. 19,060. Court of Appeals of Indiana. Filed November 20, 1959. Rehearing denied January 14, 1960. Transfer denied March 1, 1960. *391 Dennis & Dennis, of Richmond, for appellants. Raymond Knoll and Harris & Knoll, of Richmond, for appellee. GONAS, C.J. Appellants filed their claim in the estate of Courtland Paul Smith, deceased, slightly more than six months after the date of the first published notice to creditors, and there is involved here the question of whether it is therefore barred. Sec. 7-801(a), Burns' 1953 Replacement, provides that, with certain exceptions not applicable here, all claims against a decedent's estate shall be forever barred unless filed with the court in which such estate is being administered within six (6) months after the date of the first published notice to creditors. As stated by Judge Bierly for this court, in Otolski v. Estate of Nowicki (1959), 129 Ind. App. 492, 158 N.E.2d 296: "A statute of this type has been referred to as not being a statute limiting the remedy, or, in other words, a statute of limitation, but as a statute constituting a denial of a right of action and imposing a condition precedent to *392 the enforcement of such right of action. See Henry's Probate Law, Vol. 1, Filing of Claims, § 9, page 419, notes 53 and 54; Bahr, Superintendent v. Zahm (1941), 219 Ind. 297, 301, 302, 37 N.E.2d 942; State v. Evans (1927), 143 Wash. 449, 452, 255 P. 1035, 1036, 53 A.L.R. 564, 566, 567. As to the legal effect of a failure to file a claim within the precedent time prescribed by statute, see Oberg v. D.O. McComb & Sons (1957), 127 Ind. App. 278, point 5, 141 N.E.2d 135." The statute prior to the present Probate Code, § 6-311, Burns' 1933, provided that the executor or administrator should give notice by publication of his appointment and the proof of such publication was to be filed by the executor or administrator with the proper clerk within thirty (30) days after the publication was complete. Claims were barred, under § 6-1001, Burns' 1933, if not filed at least thirty (30) days before final settlement of the estate, the time for filing not being based upon the dates of publication. Although it is well recognized by the courts of our state that the intent of a statutory enactment can only be determined from the language of the act itself, we may look at the report of the probate code study commission to determine the underlying reasons, purposes and policies of the probate code and which may be used as a guide in its construction and application. The commission cited § 6-104, Burns' 1953 Replacement and stated in its report: "Under the latter section claims could be filed as late as fifteen or more years after publication of notice. This indefinite and uncertain period for filing claims causes confusion and delay in the administration of estates." In further commenting on the present statute, the commission stated: *393 "It is believed that under modern conditions six months is ample time to be afforded as a creditor to file a claim. When the six months have passed and no more claims can be filed, the assets of the estate become fixed and known and partial distribution can be made or the estate can be closed. The provisions of this section diligently applied should relieve the courts and legal profession of much of the public criticism to the effect that it takes too long to settle an estate and too much time expires after the death of a decedent before the beneficiaries receive their inheritance." While the prior statute provided that the executor or administrator should give notice by publication of his appointment and should file the proof of publication with the proper clerk within thirty days after the publication was complete, the present statute, § 7-107, Burns' 1953 Replacement, provides that upon the issuance of letters the clerk shall cause to be published a notice thereof, in which notice there shall be included notice to creditors to file their claims as required by law. It is further provided that a copy of the notice with proof of publication thereof, shall be filed by the clerk as a part of the administration of the estate within thirty (30) days after the publication thereof has been made. Here the notice was published on May 29, 1956, June 5th and June 12th, 1956. Proof of the publication thereof was not filed by the clerk within thirty days after the last publication, but was filed about a week later. Appellants' claim was filed within six months after the filing of the proof of publication, but more than six months after the first published notice to creditors. It is appellants' argument that the six months' period for filing claims, while it runs from the first publication, does not begin to run until full compliance is had *394 with § 7-107, Burns' 1953 Replacement, including the filing of the proof of publication; that the statute is a unit and all parts thereof are mandatory; that there is no publication such as is required until proof of publication has been duly and properly filed within the time fixed; that the six months' period begins to run only if proof of publication is filed within thirty days, or, if it begins to run at all, it does not do so until such proof is filed. Each of the parties states, with refreshing frankness, that there are authorities from other states which tend to support the contentions of their opponents. Most of the cases relied upon are discussed in an annotation in 42 A.L.R.2d 1218. It is noted in the cases relied upon, that in those instances where the terms of the statute are set out, such statutes, like our former statute, place the duty of filing the proof of publication upon the administrator or executor and not the clerk. Many of the cases relied upon by the parties here are analyzed in Mitchell v. Van Pelt (1954), 58 N.M. 69, 265 P.2d 679, 42 A.L.R.2d 1211. In our opinion, the timely filing by the clerk of the proof of publication does not toll the statute of nonclaim, and that such requirement for filing within thirty days is an administrative requirement which is directory only and not mandatory and is not a part of the notice required to be given to creditors; and that the failure to timely file the same does not vitiate the required notice. The statute does not provide that that time for filing claims runs from the date of the filing of the proof of publication, but from the date of the first publication. It is the publication, and not the filing, which is the vital fact to be considered. The publication is the act which marks the beginning of the six months' period during which claims *395 can be filed. The "proof of publication" is the method of establishing that the publication was made and the date when it was made. It is the evidence of the fact of publication. The notice in this case was properly published and performed its purpose. It is logical to suppose that if the legislature had intended that the time for filing be tolled by a failure to timely file the proof of publication, it would have specifically so provided. Statutes must be interpreted in the light of the purposes with which they deal. To hold otherwise than we do would defeat the express purpose of the statute. Appellants also contend that the nonclaim statute has, in any case, no application here and that the claim is not barred, regardless of when filed, by reason of the provisions of decedent's will. Item One of the will provides that the executor shall sell the entire estate, real and personal, without order of court. Item Two reads as follows: "I direct that my Executor shall first pay out of the proceeds of said sale, all my just debts, funeral expenses and costs of administration of my estate." "Nothing contained in the two preceding sections (§§ 6-116, 6-117) shall preclude any person from proving in any suit or proceeding that the provisions of this act respecting such notice have been complied with, although no such proof of service may have been filed as herein required." Appellants also contend that the nonclaim statute has, in any case, no application here and that the claim is not barred, regardless of when filed, by reason of the provisions of decedent's will. Appellant's position is that this provision differs from the customary general standard testamentary direction to pay debts; that the effect was to create the entire estate a trust fund which is charged with the payment of testator's debts and *396 that it is, in effect, impliedly held in trust for that purpose. "It is generally, though not universally, held that a general direction in a will for the payment of debts which does not create an express trust does not obviate the necessity on the part of a creditor of presenting, probating, proving, or prosecuting his claim within the period fixed by the Statute of Nonclaim." Annotation, 65 A.L.R. 861. We do not regard Swift v. Harley (1898), 20 Ind. App. 614, 49 N.E. 1069, as establishing a different rule. Cases from other jurisdictions support the following statement from 65 A.L.R. 861: "Where the direction in the will is specific as to the debt to be paid or the property wherefrom such payment is to be made, or, of such a nature as to create an express trust, it has been held that there is no necessity for the creditor to present, probate, prove, or prosecute a claim within the time designated by the nonclaim statute." Here the will is not specific as to any particular debt to be paid and does not designate any particular property from which payment is to be made. As was said in Boyd v. Thomas (1925), 162 Minn. 63, 202 N.W. 60: "What is the purpose of the trust for which the contention is made? All of the property involved is subject to the payment of debts. The alleged expressed trust would add nothing. It would not give the creditors any better trust or lien than they had by virtue of law. The decedent could not deprive the creditor of his claim against his property which the law gives him." We do not regard the will as creating a trust for the payment of just debts, funeral expenses or costs of *397 administration. Assuming the propriety of creating such a trust (which we do not decide) there should be a clear declaration of the trust for that purpose. Foster v. Featherston (1935), 230 Ala. 268, 160 So. 689. There is no such declaration here. Judgment affirmed. NOTE. — Reported in 162 N.E.2d 457.

334 F.2d 44 COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.E. J. ZONGKER and Charleen Zongker, Respondents. No. 7553. United States Court of Appeals Tenth Circuit. July 11, 1964. Robert A. Bernstein, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, and Harry Baum, Attys., for Dept. of Justice, with him on brief), for petitioner. Wayne Coulson, Wichita, Kan. (Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Robert J. Hill, Gerrit H. Wormhoudt, Philip Kassebaum, John E. Rees, Robert T. Cornwell, and Willard B. Thompson, Wichita, Kan., with him on brief), for respondents. Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges. PER CURIAM. 1 This is a petition for review of a decision of the Tax Court holding that the corporation in which taxpayers held fifty per cent of the stock was not a "collapsible corporation" within the meaning of Section 117(m) of the Internal Revenue Code of 1939, and that the gain from the sale of the stock was, therefore, taxable as capital gain rather than ordinary income. See: 39 T.C. 1046. The crux of this controversy is Section 117(m) (2) (A), which defines a "collapsible corporation" as "a corporation formed or availed of principally for the manufacture, construction, or production of property [or] for the purchase of property * * * with a view to (i) the sale or exchange of stock by its shareholders * * * or a distribution to its shareholders, prior to the realization by the corporation * * * of a substantial part of the net income to be derived from such property, and (ii) the realization by such shareholders of gain attributable to such property." The sole question is whether the statutory phrase, "substantial part" refers to the part of the total anticipated net income of the corporation already realized at the time of the stock sale or, as the Commissioner contends, the part remaining to be realized. 2 The uncontroverted facts are that the taxpayers owned one-half the stock in a corporation formed in 1952 to develop real estate. The corporation then purchased 100 acres of farm land intending to sell 474 residential lots and retain 16 acres for later commercial development. After 200 of the residential lots were sold to a group of purchasers, the taxpayers together with the other owners of the corporate stock, sold their entire stock interest to the same group of purchasers. Prior to the sale of the stock by the taxpayers, the corporation had realized 34 per cent of its total anticipated net income. The taxpayers treated the proceeds from the sale of stock as capital gain; the Commissioner disallowed and assessed a deficiency, based on ordinary income rates. 3 The admitted facts in our case are indistinguishably like Commissioner of Internal Revenue v. Kelley, 5 Cir., 293 F. 2d 904. In that case, after an exhaustive and penetrating treatment of the same question, Judge Wisdom, speaking for a majority of the sitting Judges, affirmed a majority of the Tax Court, holding that a "substantial part" meant the realized not the unrealized portion of the income; and, that a realization of one-third of the total net income constituted a substantial part. In dissent, Judge Rives took the opposite view that the critical phrase, "* * * `substantial part' has reference to the part not yet realized." Ibid, p. 914. In his view this interpretation best serves the Congressional purpose to close the tax loophole. We have only to choose between the majority and the dissent. While there is merit to the dissent, we are persuaded that Judge Wisdom's analysis of the statutory meaning is more plausible and certainly less penal.1 4 Affirmed. Notes: 1 Judge Wisdom's opinion made reference in a Footnote to the then current legal writings on the subject. See: Footnote 11, Commissioner of Internal Revenue v. Kelley, 5 Cir., 293 F.2d 904, 908. Since that decision, there has been additional comment on the case favorable to the majority view. See: Hines, "Collapsible Corporations — Another Limited Look," 42 N.C.L.Rev. 278 (1964); "The Fifth Circuit On Collapsible Corporations," 36 Tulane L.Rev. 759 (1962); Peel, "Recent Collapsible Developments," 20th Annual N.Y.U. Institute Of Taxation, 857; Note, 75 Harv.L.Rev. 1658 (1962); Note, 14 Stanford L.Rev. 613 (1962); and Ryan, "Prior Realization Of 1/3 Of Income Avoids Collapsibility," 15 Journal Of Taxation 246 (1961)

121 F.2d 245 (1941) OLIVER v. UNITED STATES. SELLERS v. SAME. Nos. 2208, 2217. Circuit Court of Appeals, Tenth Circuit. June 9, 1941. Rehearing Denied July 11, 1941. *246 C. Ray Smith, of Chicago, Ill. (Hugh B. Woodward and R. F. Deacon Arledge, both of Albuquerque, N. M., on the brief), for appellant H. S. Oliver. Hugh B. Woodward, of Albuquerque, N. M. (C. Ray Smith, of Chicago, Ill., and R. F. Deacon Arledge, of Albuquerque, N. M., on the brief), for appellant C. P. Sellers. Everet M. Grantham, of Santa Fe, N. M. (Gilberto Espinosa and Donald B. Moses, both of Albuquerque, N. M., on the brief), for appellee. Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges. MURRAH, Circuit Judge. The appellants appeal from a judgment in pursuance of a conviction upon an indictment charging the appellants and twenty-five other named persons with unlawfully conspiring, under 18 U.S.C.A., § 88, to violate 18 U.S.C.A., § 338, by forming or intending to form a fraudulent scheme and to use the mails in furtherance of it. The separate appeals are based upon a common record. The briefs present a united attack on the judgment below. The cases were consolidated for trial here, and the questions presented will be discussed together, except where proof requires singular treatment. The indictment, containing one count, charges that from March 9, 1937, to March 14, 1940, the defendants named, unlawfully conspired to devise a fraudulent scheme for the sale of oil and gas leases located in the State of New Mexico, to the public generally, by false and fraudulent practices and representations made by the defendants personally, through agents, and by the use of the mails. According to the allegations of the indictment, Dorothy Heard, one of the named *247 defendants, would and did falsely and fraudulently represent herself to be an independent wholesale dealer in oil and gas leases on lands which she would and did purchase from the State of New Mexico in large tracts for $0.05 (five cents) per acre. The leases were divided into small tracts and assigned to the other named defendants, including the appellants, on their order, and by them resold to the public generally at a price greatly in excess of their actual value. Dorothy Heard represented to the public that she had no privity with the other named defendants including these appellants, and no interest in the sale of the oil and gas leases, except to the defendant salesmen on their order; when in fact she was cooperating with the other defendants under a mutual understanding amounting to a joint venture. To effectuate the purposes of the fraudulent scheme, and to conceal the identity and whereabouts of the defendant salesmen, Dorothy Heard rented certain boxes in the United States Post Office at Santa Fe, under the names of Dorothy Heard, Heard's Clients, Petroleum Engineers Company, and Francis Warn. These Post Office boxes were to be used by the defendant salesmen to receive mail for redelivery by Dorothy Heard to them at their true addresses. Dorothy Heard would and did at the request of the defendant salesmen, send out by letter, false and fraudulent information concerning the value of the oil and gas leases; when expedient, conceal the identity and whereabouts of the defendant salesmen from purchasers of oil and gas leases; give letters of recommendation to the various salesmen, and otherwise actively promote the sale of the leases to the public generally. The defendant salesmen, including the appellants, would and did falsely misrepresent the value of the oil and gas leases in that they would represent that the said leases were within a few miles of producing wells and within a district or area controlled by a large oil company which was about to start drilling operations. The defendant salesmen represented that large oil companies were desirous of securing available acreage for a drilling block and that the leases which they proposed to sell could be resold within a short time at an immense profit to the purchasers. The defendant salesmen further falsely represented to individuals who had previously purchased oil and gas leases from other defendant salesmen, and who were dissatisfied with their purchases, that they were representing the State of New Mexico and were giving them an opportunity to purchase other leases in order to recoup their losses, or that the prospective purchasers had certain homestead preference rights which they could exercise by the purchase of valuable oil leases in the state of New Mexico. The indictment further charged that it was the object of the said conspiracy that the mails of the United States would be used for the purpose of carrying into execution the scheme so devised. Nine overt acts were charged, all subsequent to the formation of the conspiracy and before the filing of the indictment. Each of the nine overt acts constitutes a separate use of the mails designed to effect the object of the conspiracy. The appellants contend first that the proof is at variance with the allegations of the indictment in that it fails to prove one large conspiracy, but if anything, only proves different and disconnected smaller ones; second, the intent to use the mails being an essential ingredient of the offense charged, the evidence does not sufficiently prove that the appellants used, intended to use the mails, or intended that the mails would be used in furtherance of the objects of the conspiracy; third, by refusing to submit certain requested instructions to the jury, the court did not adequately present the theory of the appellants' defense; fourth, the court committed error in refusing to apply the rule with respect to the separation of witnesses as requested by the appellants. The proof amply supports the allegations of the indictment. Dorothy Heard was the axis about which the plan of operations revolved. She operated as the "State and Federal Land Service Office" at Santa Fe, New Mexico, boxes 1195 and 1197. She also rented boxes 981, 1245, 1062 and 691. She invited the defendants to use these Post Office Boxes as a clearance for their mail, and otherwise actively cooperated with the defendants, including these appellants, by writing to prospective purchasers of oil and gas leases, encouraging them to purchase the leases, by falsely representing the value of the same whenever and wherever she could be of assistance to any of the salesmen in effecting a sale. *248 From time to time she corresponded with the various salesmen concerning prospective purchasers. In fact, the record is replete with evidence showing conclusively that Heard (her office and office facilities, including the post office boxes) was the clearing house for all of the defendants, including these appellants, in promoting the sale of these oil and gas leases. That the defendants and each of them effectively cooperated with each other and with Dorothy Heard in the sale of the leases is shown plainly by the fact that the various defendant salesmen met with each other to discuss ways and means of selling the leases to the public; they travelled in pairs; sometimes one would pose as the representative of a large company; at other times one would represent himself to be a geologist. After one of the defendant salesmen had sold an individual an oil and gas lease, other salesmen would follow up to "reload" him. In fact, every devious plan known to the art of high pressure salesmanship was employed. It would serve no useful purpose to delineate the numerous instances of the bold and daring acts on the part of the defendants named, including the appellants, which show conclusively that there was one large comprehensive conspiracy on the part of all the defendants named to defraud the public generally. The various salesmen masqueraded under aliases whenever and wherever it was convenient and necessary to conceal their identity. On occasions the defendant Oliver used the name Conley and the defendant Sellers used the name Charles Steele. Most of the defendants named in the indictment used various aliases. The defendant Oliver operated as a partner of one Dunlap, a defendant named in the indictment, and together they called on various prospective purchasers. While the appellant Oliver and the defendant Dunlap were working together, and specifically on March 18, 1937, they sold one Oscar Pearson a lease on 160 acres of land in Eddy County, New Mexico, for the sum of $160. Dunlap signed the receipt for the purchase price, giving his Post Office Box as 487, Santa Fe, New Mexico. In due course, and through the mail, Pearson received the lease executed by Dorothy Heard, as attorney-in-fact for A. C. Conley. On March 23, 1937, Oliver and Dunlap sold one Christ Rast, living in Wendell, Idaho, a lease on 160 acres of land in Eddy County, New Mexico. They represented that they had only 640 acres of leases left which must be divided into smaller tracts before the oil company would buy them. They represented that he would receive returns from the lease within about sixty days. Dunlap executed the receipt to Rast for $160, giving his address as Box 1284, Santa Fe, New Mexico, The lease was executed by Dorothy Heard on the 9th day of April, 1937, and delivered to Rast. On March 19, 1937, Dunlap and Oliver sold William C. and Pearl Hallowell a lease on 80 acres of land in Eddy County, New Mexico. The receipt for the purchase price was signed by appellant Oliver, who gave his address as Box 489, Santa Fe, New Mexico, In due course the Hallowells received a lease through the mail, executed by Dorothy Heard. The Hallowells had previously purchased leases on lands in New Mexico from other named defendants. On March 20, 1937, Dunlap and Oliver sold one J. A. Campbell, living at Whiting, Idaho, an oil and gas lease on 160 acres of land located in New Mexico. Campbell had previously purchased leases from other named defendants. The receipt for the purchase price was executed by the appellant, Oliver, giving his address as P. O. Box 489, Santa Fe, New Mexico. On March 31, 1937, Dunlap wrote a letter to Heard[1] which clearly and unmistakably *249 reveals the plan and the course of conduct which the defendants pursued in effecting the purposes of the conspiracy, and the part which the appellant Oliver played in it. The evidence shows that the appellant Sellers, at various times, worked with the defendant Goss, and the defendant Aaby in the sale of oil and gas leases. The plan of attack was similar in design and purpose to that hereinbefore related. On February 25, 1938, the defendant Goss, addressed a letter to Heard, ordering oil and gas leases and giving directions for their delivery by mail, saying "I had a letter from Aaby on my return, and he is in New York working with Preston Sellers (identified as the appellant Sellers) who is a mighty good man and should send you in lots of business * * *." On April 2, 1938, the defendant Aaby addressed a letter to Dorothy Heard from Harrisburg, Pennsylvania, ordering leases, directing their delivery, and stating that "Mr. Sellers will work with me as far as Pittsburgh." Appellant Sellers and defendant Aaby sold one Susan McMinn in Carbondale, Pennsylvania, a lease on 80 acres of land in New Mexico. The lease, executed by Dorothy Heard, was received by the purchaser through the mail. In May of 1938, appellant Sellers and defendant Goss sold two oil and gas leases to Jesse L. Burt, Lanesboro, Iowa. The leases were received through the mail. Upon inquiry from Burt, Heard recommended the purchase of the leases. On April 11, 1939, the defendant Aaby, under the name of Allen, and the appellant Sellers, under the name of Stevens, called on one C. A. Browman, at Denver, Colorado, who had previously purchased an 80-acre lease in New Mexico, inquired if he wanted to sell his lease, and then by false representations, obtained $140 for other leases in the State of New Mexico. He received the lease, executed by Dorothy Heard, through the mail. In June, 1938, the appellant, Sellers, sold an oil and gas lease to George W. Sharp at St. Louis, Missouri. The lease was delivered by Dorothy Heard to the purchaser through the mail. The record shows numerous other instances wherein the appellant Sellers, using aliases, and in company with other defendants, sold oil and gas leases on lands in New Mexico, which leases were delivered by the defendant Heard, through the mail. The rule applicable to the appellants' first contention is not in dispute. When one large conspiracy is specifically charged, proof of different and disconnected smaller ones will not sustain conviction. Nor will proof of crime committed by one or more of the defendants, wholly apart from and without relation to others conspiring to do the thing forbidden, sustain conviction. Marcante et al. v. United States, 10 Cir., 49 F.2d 156; Wyatt v. United States, 3 Cir., 23 F.2d 791, certiorari denied 277 U.S. 588, 48 S.Ct. 436, 72 L.Ed. 1002; Parnell v. United States, 10 Cir., 64 F.2d 324; United States v. Wills, 3 Cir., 36 F.2d 855; and Telman v. United States, 10 Cir., 67 F.2d 716. The proof in this case, however, conclusively shows that all the defendants had a similar general purpose in view — the sale of oil and gas leases on New Mexico lands to the public generally. Each of the defendants was cooperating in privity with the others toward the same common end. See Telman v. United States, supra, Cf. Marcante v. United States, supra, and United States v. Wills, supra. A mutually implied understanding is sufficient so far as the combination or confederacy is concerned, and the agreement is generally a matter of inferences, deduced from the acts of the persons accused which are done in pursuance of an apparent criminal purpose. It is rarely susceptible of proof by direct evidence, and may be deduced from the conduct of the parties and the attending circumstances. Telman v. United States, supra. "The crime charged in the indictment became complete the instant the conspiracy was formed (provided only that there could be no prosecution unless followed by some overt act), whether the object of the conspiracy ever was consummated, or, if consummated, whether the result, considered apart, was conformable to law or the reverse." United States v. Manton, 2 Cir., 107 F.2d 834, 846; Goldman v. United States, 245 U.S. 474, 38 S.Ct. 166, 62 L. Ed. 410. "The gist of the offense of conspiracy as defined by § 37 of the Criminal Code, 18 U.S.C. § 88, is agreement among the conspirators to commit an offense attended by an act of one or more of the *250 conspirators to effect the object of the conspiracy." United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 207, 85 L.Ed. 128. The conspiracy charged here contemplated the violation of 18 U.S.C.A., § 338. "The elements of the offense defined in § 338, supra, are (1) a scheme devised or intended to be devised to defraud, or for obtaining money or property by false or fraudulent pretenses, representations, or promises, and (2) the use of the United States mails for the purpose of executing the scheme or attempting so to do." Graham v. United States, 10 Cir., 120 F.2d 543, decided by this court on May 27, 1941, Stryker v. United States, 10 Cir., 95 F.2d 601, 604; Morris v. United States, 8 Cir., 7 F.2d 785, 790. It is essential to the guilt of one charged with a conspiracy under 18 U.S.C. A. § 88, to prove an intent not only to defraud, but also to defraud by the use of the mails. Schwartzberg v. United States, 2 Cir., 241 F. 348; Farmer v. United States, 2 Cir., 223 F. 903, certiorari denied 238 U. S. 638, 35 S.Ct. 940, 59 L.Ed. 1500. The charge of an agreement to violate § 338, supra, is a charge of an intention to use the mails in carrying out the scheme to defraud. Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L. Ed. 561; and Morris v. United States, supra. But it is not essential to the guilt of the appellants that they actually and physically used the mails in furtherance of the conspiracy in order to manifest intent. Burns v. United States, 10 Cir., 279 F. 982; Schwartzberg v. United States, supra; Preeman v. United States, 7 Cir., 244 F. 1, 18, Farmer v. United States, supra. It is clear that the accomplishment of the conspiracy to which the appellants were parties, contemplated the use of the mails. Indeed, the use of the mails was essential to the accomplishment of the objects of the conspiracy. The defendant Heard, maintained her establishment in the City of Santa Fe, New Mexico. The defendant salesmen, including the appellants, were traveling over the country selling oil and gas leases in many different states. Some of the defendants executed receipts for money obtained for oil and gas leases, giving a Post Office box at Santa Fe, New Mexico as an address. The defendants, in cooperation with each other, and particularly with Dorothy Heard, used the mails freely and indiscriminately to give directions to Dorothy Heard concerning the delivery of the leases sold. It is plain that the appellants and each of them knew that the mails were used in the furtherance of the objects of the conspiracy, and thus guilty knowledge was not only imparted to them, but they evidenced a wrongful intention to use the mails. Burns v. United States, supra; Schwartzberg v. United States, supra; Preeman v. United States, supra; Farmer v. United States, supra. The question of intent on the part of the appellants was properly submitted to jury under the facts disclosed by the record. The appellants complain of the failure of the court to give certain requested instructions relating to their theory of the case. The requested instructions bear upon the question of whether or not the appellants were parties to the conspiracy as charged in the indictment, and the sufficiency of the circumstantial evidence to prove the guilt of the defendants. It is sufficient to say that the instructions given, adequately and accurately cover the issues presented by the indictment and the proof submitted in support thereof. They were written and submitted to the jury for its use in deliberating upon a verdict. The instructions having adequately and correctly covered the applicable law and the facts, it was not error for the court to refuse to give requested instructions covered by those given. Troutman v. United States (Young v. United States), 10 Cir., 100 F.2d 628; Tingley v. United States, 10 Cir., 34 F.2d 1. Absent affirmative showing of abuse of discretion or manifest prejudice, the exclusion of witnesses from the court room while not testifying is addressed to the trial court's sound discretion. Hood et al. v. United States, 8 Cir., 23 F.2d 472; Holder v. United States, 150 U.S. 91, 14 S. Ct. 10, 37 L.Ed. 1010; Tinkoff v. United States, 7 Cir., 86 F.2d 868, certiorari denied 301 U.S. 689, 57 S.Ct. 795, 81 L.Ed. 1346; Twachtman v. Connelly, 6 Cir., 106 F.2d 501. There is nothing in the record to indicate that the failure to exclude the witnesses from the court room while not testifying prejudiced the appellants in the trial of the case. There was no error in the refusal to exclude the witnesses. The judgments of the trial court are affirmed. NOTES [1] The letter reads in part as follows: "Please file these in A. C. Conley's name and as an address P. O. Box 489. I'm enclosing also $1.00 for the rental on my box. Please pick up all mail to me and also S. H. Oliver. "We will file in Chaves for a while. After we finish here and in Colo will come down to "`See America First' Santa Fe. Would like very much to check up with you on some names in the East & Make a quick trip this spring back there before the boys heat it up too much. Think this over and as you recall the names that might be good jot them down & we will make some money. "I'd like also for you to look at the Dailey Recordings for the last 3 weeks & see if there are any new Colorado names. Send them to me % Brown Palace Hotel, Denver. Will be there 4/2/37. Yours Dunlap."

IN THE COMMONWEALTH COURT OF PENNSYLVANIA John T. Juskowich and : Nancy Albanese, : Appellants : : v. : No. 536 C.D. 2016 : Washington Township Zoning : Hearing Board, Greene County, : Pennsylvania : ORDER NOW, June 19, 2017, having considered appellants’ application for reargument and appellee EQT Production Company’s answer in response thereto, the application is denied. MARY HANNAH LEAVITT, President Judge 

540 U.S. 884 FIGUEROAv.UNITED STATES. No. 03-5038. Supreme Court of United States. October 6, 2003. 1 Appeal from the C. A. 9th Cir. 2 Certiorari denied. Reported below: 52 Fed. Appx. 404.

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT ________________________ JULY 2, 2009 THOMAS K. KAHN No. 08-15587 CLERK Non-Argument Calendar ________________________ D. C. Docket No. 06-00271-CR-W-N UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PRESTON GRICE, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Alabama _________________________ (July 2, 2009) Before TJOFLAT, BLACK and BARKETT, Circuit Judges. PER CURIAM:  Preston Grice appeals his convictions for conspiracy to distribute and possess with intent to distribute marijuana, cocaine base, and cocaine, in violation of 21 U.S.C. § 846, and for distribution and possession with intent to distribute marijuana, cocaine base, and cocaine, in violation of § 841(a)(1). Grice challenges (1) the validity of the search warrant issue for the residence at 589 Holcombe Street; (2) the traffic stop which led to his arrest; and (3) the Government’s exercise of a peremptory challenge during jury selection. We find no merit in these challenges, and accordingly affirm. I. The events that led to the issuance of the search warrant and Grice’s arrest are thoroughly set forth in the magistrate judge’s Report and Recommendation which formed the basis of the district court’s denial of Grice’s motion to suppress and are implicated in Grice’s first two challenges. On November 1, 2005, at approximately 11:45 to 12:00 a.m., Corporal R. J. Steelman, a police officer with the Montgomery Police Department, received information from a confidential source (CS) that Preston Grice and “Corey,” along with someone else called “Bunky,” were at 879 Holcombe Street cooking or cutting a large amount of crack cocaine. The CS indicated that a black Cadillac and a dark mini-van, as well as an older dark blue or black truck and an older Chevy Caprice were parked at the residence, which was next to two vacant lots at the corner of Holcombe and South Street. Steelman ran Preston Grice’s name through the police department’s narcotics 2  files, and his name came up in the database as being involved with drugs in some way. At approximately 12:20 or 12:30 pm on the same day, Steelman drove to the 800 block of Holcombe Street, but could not locate the house or the vehicles. He then proceeded to the 500 block of the same street and found a black pick-up truck, a mini-van and a black Cadillac at 589 Holcombe Street (“the residence”), which was a white single story dwelling near the corner of Holcombe and South Streets, with a vacant lot on either side. A Caprice was parked at the rear of the residence. Steelman set up surveillance near this residence. He observed foot traffic throughout the area – people walking down the street and a man (later identified as defendant [Corey] Harvey) coming from the front of this house and meeting cars. Steelman believed that these activities were consistent with street level drug dealing. After 20 or 30 minutes passed, a black male (later identified as Leenandora Woods) came out of the residence with a plastic bag in his hand and got into the Cadillac. Steelman called Sergeant Drummond on the radio, told him what he had heard and seen, and asked him to get the Cadillac stopped. Corporal Mills, who was also with the Montgomery Police Department, stopped the Cadillac at Drummond’s request. Woods consented to a search of the vehicle, and no drugs were found; however, a narcotics dog thereafter alerted on the center console. Woods took off running on foot, and Lieutenant Bullard used his Taser to stop him. Corporal Conway, the K-9 officer who had arrived with the drug dog, found approximately 450 grams of crack cocaine and 99 grams of powder cocaine in the console area of the car. . . . When Steelman was informed of the results of the search of the Cadillac, he left the residence to prepare an application for a search warrant at the police department’s Special Operations Division, and Lieutenant Caviness and Captain Hughes set up surveillance in his place. At some point, DEA special agent Neil Thompson – who had also received a call from the CS, and was riding with Drummond – participated in the surveillance. Meanwhile, Detective Hamil typed the warrant affidavit as Steelman dictated it. While they were working on the affidavit, officers still on Holcombe Street saw four other vehicles leave the residence. One of these was a black Ford 3  Escort. Detective Wright stopped this car, which took off and had to be pursued. During the pursuit, Wright observed a large quantity of marijuana thrown from the window. A mini-van driven by Preston Grice also left the residence and was stopped. No drugs were found in Grice’s possession or in this van. When Steelman and Hamil completed the warrant affidavit, they took it to municipal judge Troy Massey, who issued a search warrant for the residence. Police executed the warrant and found documents there in the name of Corey Harvey. Harvey, who was observed across the street, was taken into custody. According to the evidence log, police seized numerous bags and bricks of marijuana, bags of crack cocaine, digital scales, a quantity of U.S. currency, and multiple firearms from the residence. Report and Recommendation, March 15, 2007. The denial of a motion to suppress presents a mixed question of law and fact. United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir. 2007). We review the district court’s factual findings for clear error and its interpretation and application of the law de novo. Id. “Probable cause to support a search warrant exists when the totality of the circumstances allow[s] a conclusion that there is a fair probability of finding contraband or evidence at a particular location.” United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999). The “veracity” and “basis of knowledge” of an informant’s tip are “relevant considerations in the totality of the circumstances analysis,” and “a deficiency in one may be compensated for . . . by a strong showing as to the other.” Id. at 1352-53. Further, 4 “some other indicia of reliability” may make up for a deficiency in an informant’s veracity or basis of knowledge, “such as corroborating evidence gathered by law enforcement.” United States v. Foree, 43 F.3d 1572, 1576 (11th Cir. 1995). Search warrant affidavits are presumptively valid. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). A search warrant must be voided and the fruits of the search excluded, however, if the affidavit supporting the search warrant contains a false statement made knowingly and intentionally or with reckless disregard for the truth. Id. at 155-56, 98 S.Ct. at 2676. Nevertheless, a warrant is valid “when material that is the subject of the alleged falsity or reckless disregard is set to one side, [and] there remains sufficient content in the warrant affidavit to support a finding of probable cause.” Id. at 171-72, 98 S.Ct. at 2684. Thus, a defendant must show (1) “that the alleged misrepresentations or omissions were knowingly or recklessly made” and (2) “that the result of excluding the alleged misrepresentations and including the alleged omissions would have been a lack of probable cause for issuance of the warrants.” United States v. Novaton, 271 F.3d 968, 986-87 (11th Cir. 2001). The district court did not err in denying Grice’s motion to suppress evidence. The was no clear error in the court’s adoption of the magistrate judge’s 5 finding that the affidavit underpinning the warrant, which established probable cause, was not the product of knowingly or recklessly made false information.1 II. Grice argues that the district court erred in denying his motion to suppress evidence seized as a result of a warrantless stop of his vehicle. He submits that the stop of his vehicle, his arrest, and the seizure of his keys was unlawful—conducted solely for investigative purposes. He had not violated traffic laws, and they had no reason to believe that he was connected to the Holcombe Street residence, or that he possessed illegal drugs or contraband. “A traffic stop is a seizure within the meaning of the Fourth Amendment.” United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). “A traffic stop . . . is constitutional if it is either based upon probable cause to believe a traffic violation has occurred or justified by reasonable suspicion in accordance with [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)],” which requires that the officers “have a reasonable, articulable suspicion based on objective facts that an individual is engaged in criminal activity.” United States v. Harris, 526 F.3d 1334, 1337 (11th Cir.) (quotation omitted), petition for cert. filed, 1 The affidavit did contain misstatements of fact, but they were unintentional and clearly did not render the warrant invalid. 6 (U.S. Aug. 6, 2008) (No. 08-6074). “A determination of reasonable suspicion is based on the totality of the circumstances, and [i]t does not require officers to catch the suspect in a crime.” Id. (quotation omitted). “Instead, [a] reasonable suspicion of criminal activity may be formed by observing exclusively legal activity.” Id. “Probable cause to arrest exists where the facts and circumstances within the officers’ knowledge, of which they had reasonably trustworthy information, are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed.” United States v. Ollet, 848 F.2d 1193, 1195 (11th Cir. 1988). “[C]ircumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Arizona v. Gant, 556 U.S. ___, 129 S.Ct. 1710, 1719, 173 L.Ed.2d 485 (2009) (quotation omitted). In such a case, “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” Id. The district court did not err in denying Grice’s motion to suppress evidence seized as a result of the traffic stop because the police had reasonable suspicion to believe that he was engaged in criminal activity, had probable cause for his arrest 7 after discovering that he was the driver of the vehicle, and were entitled to search the vehicle incident to his lawful arrest. III. Grice argues that the district court erred in denying his challenge to the Government’s peremptory strike of a juror under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Citing Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), he maintains that the Government’s reason for striking the juror was insufficient and the court erred in failing to conduct a meaningful voir dire regarding the issue. We review a district court’s decision regarding jury selection under Batson de novo and the court’s underlying factual findings for clear error. United States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008), petition for cert. filed, (U.S. Jan. 30, 2009) (No. 08-987). When reviewing the district court’s resolution of a Batson challenge, we give “great deference to a district court’s finding as to the existence of a prima facie case.” United States v. Allen-Brown, 243 F.3d 1293, 1296 (11th Cir. 2001). The Constitution forbids the prosecutor to challenge potential jurors solely on account of their race. Campa, 529 F.3d at 997. Our analysis of a Batson challenge involves three steps: 8  (1) the objector must make a prima facie showing that the peremptory challenge is exercised on the basis of race; (2) the burden then shifts to the challenger to articulate a race-neutral explanation for striking the jurors in question; and (3) the trial court must determine whether the objector has carried its burden of proving purposeful discrimination. Id. at 998 (quotation omitted). To establish a prima facie case of purposeful discrimination, the defendant must show: (1) that “he is a member of a cognizable racial group” and that “the prosecutor . . . exercised peremptory challenges to remove from the venire members of [his] race”; and (2) that “these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” United States v. Dennis, 804 F.2d 1208, 1210 (11th Cir. 1986). In determining whether the defendant has established a prima facie case, we consider “all relevant circumstances,” including “a ‘pattern’ of strikes against black jurors included in the particular venire.” Id. We consider several factors in determining whether the totality of the circumstances shows a “pattern” that creates an inference of discrimination, including (1) “whether members of the relevant racial or ethnic group served unchallenged on the jury”; (2) “whether the striker struck all of the relevant racial 9 or ethnic group from the venire, or at least as many as the striker had strikes”; (3) “whether there is a substantial disparity between the percentage of jurors of a particular race or ethnicity struck and the percentage of their representation on the venire”; and (4) “whether there is a substantial disparity between the percentage of jurors of one race [or ethnicity] struck and the percentage of their representation on the jury.” United States v. Ochoa-Vasquez, 428 F.3d 1015, 1044-45 (11th Cir. 2005). Once the defendant makes a prima facie showing, the burden shifts to the prosecution to explain, in clearly and reasonably specific terms, the legitimate race-neutral reason for striking the juror. Batson, 476 U.S. at 97, 98 n.20, 106 S.Ct. at 1723, 1724 n.20. “After the government articulates such reasons, the court must evaluate the credibility of the stated justifications based on the evidence placed before it.” United States v. Houston, 456 F.3d 1328, 1335 (11th Cir. 2006). Nevertheless, the defendant retains the ultimate burden of proving intentional discrimination. Id. In evaluating the credibility of the prosecution’s proffered race-neutral reasons for a strike, we consider whether the “proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve.” Miller-El, 545 U.S. at 241, 125 S.Ct. at 2325. Other considerations 10 include a prosecutor’s mischaracterization of voir dire testimony, substitution of additional reasons for a strike when confronted with a defendant’s rebuttal, or failure to conduct a meaningful voir dire examination on the subject of the prosecutor’s concern regarding the panelist. Id. at 244-46, 125 S.Ct. at 2327-28. Additionally, any “broader patterns of practice during the jury selection” should be considered, such as evidence of the government’s general practice of excluding black venire members from juries, use of arbitrary “jury shuffl[ing],” or use of contrasting voir dire questions to black and nonblack panel members. Id. at 253-55, 125 S.Ct. at 2332-33. Here, the district court did not err in denying Grice’s Batson challenge because the Government provided a genuine race-neutral reason for striking the juror. AFFIRMED. 11 

95 F.3d 57 Holywell Corporationv.Smith** NO. 94-4818 United States Court of Appeals,Eleventh Circuit. July 23, 1996 1 Appeal From: S.D.Fla., No. 94-00111-CIV-SMA, 177 B.R. 991 2 AFFIRMED. ** Local Rule 36 case

389 B.R. 231 (2008) In re GENEVA STEEL LLC, Geneva Steel Holdings Corp., Iron Ore Mines, LLC, and Williams Farm LLC, Debtors. James T. Markus, Chapter 11 Trustee of Geneva Steel LLC, Geneva Steel Holdings Corp., Iron Ore Mines, LLC, and Williams Farm LLC Plaintiff, v. Albert Fried, Jr., Albert Fried & Co., Steelman, Inc., a Delaware corporation, Defendants. Bankruptcy Nos. 02-35387, 02-35385. Adversary No. 05-02578. United States Bankruptcy Court, D. Utah, Northern Division. May 14, 2008. *233 Stephen J. McCardell, Salt Lake City, Utah, for Williams Farm LLC. STATEMENT OF UNDISPUTED FACTS, ANALYSIS and CONCLUSIONS OF LAW REGARDING CROSS MOTIONS for SUMMARY JUDGMENT GLEN E. CLARK, Bankruptcy Judge. The motion of Albert Fried, Jr., Albert Fried & Co., LLC and Steelman, Inc. (the "Defendants") and the cross-motion of James T. Markus, the Chapter 11 Trustee of Geneva Steel, LLC, Geneva Steel Holdings Corp., Iron Ore Mines, LLC and Williams Farm LLC ("Markus") came before the Court on April 8, 2008. David J. Jordan, Danny C. Kelly, and Mark E. Hindley of Stoel Rives LLP appeared on behalf of Albert Fried, Jr. and Albert Fried & Co., Jason Boren of Ballard Spahr, Andrews & Ingersoll, LLP appeared on behalf of Kay Scholer, Nora Brunelle of Fabian & Clendenin, P.C. appeared on behalf of Steelman, James Marcus and Steven R. Rider, of Block, Markus & Williams, and Steven T. Waterman of Ray Quinney & Nebeker P.C. appeared on behalf of Markus. Markus and the Defendants have filed cross motions for summary judgment with respect to the statute of limitations affecting this adversary proceeding which seeks to avoid the transfer of land known as the Williams Farm Property ("Williams Farm Property") to Steelman, Inc. The transfer of the Williams Farm Property from WFLLC to Steelman, Inc. took place on or around May 23, 2002. The Williams Farm LLC bankruptcy proceeding was filed on September 13, 2002., and this adversary proceeding was commenced by Markus on September 16, 2005. Unless equitable tolling applies, an adversary proceeding such as this would be barred by the statute of limitation found under 11 U.S.C. § 546(a)(1), or by state law as the case may be. Markus argues that equitable tolling should apply because of nondisclosure and misleading information that obscured discovery of the details surrounding the transfer of the Williams Farm Property from creditors of the Williams Farm LLC bankruptcy proceeding. Defendants argue that creditors of the Williams Farm Property LLC bankruptcy proceeding had *234 sufficient information available to put them on notice of the transfer of the Williams Farm Property. The following facts have been identified in the pleadings filed in support or opposition to summary judgment as undisputed facts and have not been disputed or contested by the opposing party. UNDISPUTED FACTS 1. On February 1, 1999, Geneva Steel Company filed Chapter 11 bankruptcy case no. 99-21130, ("Geneva I"). 2. Albert Fried served as co-chair of the Official Bondholders Committee in the Geneva I bankruptcy proceeding. 3. Among other assets, Geneva I owned approximately 76 acres of real property known as the Williams Farm Property. 4. The Geneva I Plan provided for the creation of a single-purpose wholly owned subsidiary known as Williams Farm LLC ("WFLLC"). 5. The Geneva I Plan provided for the transfer of the Williams Farm Property to WFLLC on the effective date of the plan. 6. On November 20, 2000, prior to plan confirmation, Albert Fried & Co. ("AFCO") committed in writing to provide exit funding for Geneva I (the "Commitment to Fund"). 7. Albert Fried, Jr. is the managing member of AFCO. 8. The Commitment to Fund was incorporated into the Geneva I plan of reorganization and consisted of a 9.8 million dollar loan referred to in the plan as the "Tranche C Exit Financing". 9. The Commitment to Fund provided for a principal amount, a coupon amount, financing fees, and the representation that all other terms of the loan would be the same as presently drafted. 10. There was no option included within the Commitment to Fund, and in particular, there was no option for the sale of the Williams Farm Property. 11. On November 21, 2000, the Court confirmed the Geneva I plan as proposed. The Order of Confirmation was entered on December 8, 2000. 12. A letter concerning the Tranche C Exit Financing that purports to grant an option to AFCO for the purchase of the Williams Farm Property was signed by Albert Fried on January 3, 2001 (the "January 3, 2001 Letter"). 13. The January 3, 2001 letter was not disclosed to the Bankruptcy Court or to the Geneva I bankruptcy creditors. 14. On January 3, 2001, AFCO funded the Tranche C Exit Financing. 15. On January 3, 2001, Geneva Steel Holdings Corp. was created pursuant to the terms of the Geneva I plan. 16. All of the assets of Geneva I were transferred into Geneva Steel Holdings Corp. 17. Albert Fried served as a member of the Board of Directors of Geneva Steel Holdings Corp. from the date of its creation until January of 2003. 18. Between January 2001 and January 2002, AFCO acquired additional shares of Geneva Steel Holdings Corp. stock which brought AFCO's ownership interest to approximately 31% of common stock in Geneva Steel Holdings Corp. *235 19. On January 3, 2001, WFLLC was created. 20. WFLLC is wholly owned by Geneva Steel Holdings Corp. 21. The Williams Farm Property was transferred to WFLLC pursuant to the terms of the Geneva I plan. 22. On May 2, 2001, Ken Johnsen ("Johnsen"), Geneva I's executive vice president, and the President and CEO of Geneva Steel Holdings Corp., signed an Option Agreement dated January 3, 2001, that purports to grant AFCO an option to purchase the Williams Farm Property (the "Option Agreement"). 23. The Option Agreement provided for a purchase price of $1,000,000.00. 24. The Option Agreement was recorded with the Utah County Recorder on May 15, 2001. 25. The Option Agreement did not disclose the estimated value of the land to be purchased for a price of $1,000,000.00. 26. The Option Agreement describes an "Option Event" consisting of two requirements which must be met before the buyer may exercise the Option Agreement. The two requirements necessary to trigger the Option Event are: 1) one year has elapsed from the initial funding date, and 2) the closing price per share of the common stock of Geneva Steel Holdings Corp. falls below $3.00 for at least (a) five (5) consecutive trading days, or (b) five (5) trading days out of ten (10) consecutive trading days. 27. Paragraph 4.3 of the Option Agreement provides for the automatic termination of the Option Agreement (the "Automatic Termination Provision"). Paragraph 4.3 states, in part, that if "Seller does not receive a Notice of Exercise after the Option Event but before the expiration of the Option Term, the Option shall automatically terminate as to and all of Buyer's rights hereunder shall cease with respect thereto ..." 28. On August 14, 2001, the Geneva Steel Holdings Corp. Board of Directors, at a board meeting, approved an option reduction from $1,000,000.00 to $781,369.00 for AFCO. 29. On September 17, 2001, the Geneva Steel Holdings Board of Directors declared the option price to be $218,630.00 based upon the August 14, 2001 resolution. 30. On January 25, 2002, Geneva Steel LLC ("GSL") filed for Chapter 11 bankruptcy relief. 31. On April 23, 2002, the Option Agreement price was reduced another time. This time the option price was reduced to $76,000.00. 32. Prior to April 30, 2002, WFLLC owned only one asset of significant value—the Williams Farm Property. 33. In April 2002, AFCO transferred all of its rights in the Option Agreement to Steelman Inc. ("Steelman"). 34. Steelman is a 100% wholly owned subsidiary of AFCO. 35. On or about April 30, 2002, Steelman paid $76,777.40 to WFLLC in order to exercise the Option Agreement to purchase the Williams Farm Property. 36. On May 8, 2002, an appraisal determined the Williams Farm Property to be worth $6,128,000.00. *236 37. A special warranty deed transferring the Williams Farm Property from WFLLC to Steelman was recorded May 23, 2002. 38. On September 13, 2002, WFLLC filed Chapter 11 bankruptcy case number 02-35387. 39. Steve Garcia was appointed bankruptcy counsel in the WFLLC bankruptcy proceeding. 40. Without equitable tolling, the September 13, 2002 petition date would have caused the limitation period under § 546(a)(1)(A) to run on September 13, 2004. 41. On the petition date, WFLLC was, in essence, a bankruptcy proceeding which owned only two assets— $76,000.00 cash, and a claim to recover the Williams Farm Property which was transferred approximately 4 months prior to the petition date. 42. On September 16, 2002, an order was entered directing the joint administration of the WFLLC with five other related bankruptcy proceedings. The joint administration order directed that pleadings be filed in Case 02-35385. 43. On October 28, 2002, WFLLC filed its bankruptcy Schedules and Statements of Financial Affairs. 44. The only creditors named in the WFLLC's bankruptcy proceeding were Atlas Sales, Inc., the Internal Revenue Service, the Utah State Tax Commission and the Pension Benefit Guarantee Corporation. 45. The transfer of the Williams Farm Property to Steelman was not disclosed anywhere in WFLLC's original bankruptcy Schedules and Statement of Financial Affairs. 46. WFLLC's Statement of Financial Affairs states the word "none" in response to question # 10—Other Transfers, which requires the debtor to list all property, other than property transferred in the ordinary course of business, transferred within two years immediately preceding the commencement of the bankruptcy case. 47. The failure to disclose the transfer of the Williams Farm Property in WFLLC's bankruptcy Schedules and Statement of Financial Affairs is a material omission. 48. On December 13, 2002, WFLLC filed its Initial Financial Report ("Initial Financial Report") in its bankruptcy proceeding. 49. WFLLC's Initial Financial Report included the following attachments: a. A Form 10-K filed with the Securities and Exchange Commission ("SEC") by Geneva Steel Holdings Corp. for the fiscal year ended September 30, 2000. b. A Form 10-Q filed with the SEC by Geneva Steel Holdings Corp. for the quarterly period ended September 30, 2001. c. A Form 10-Q filed with the SEC by Geneva Steel Holdings Corp. for the quarterly period ended June 30, 2001. d. A Form 10-Q filed with the SEC by Geneva Steel Holdings Corp. for the quarterly period ended March 31, 2001. 50. The Initial Financial Report offers no explanation why the SEC Forms 10-K and 10-Q filed by Geneva Steel Holdings Corp., which is a separate legal entity from WFLLC, are attached to the WFLLC Initial Financial Report or how the Geneva Steel Holdings Corp. SEC filings *237 are related to the WFLLC bankruptcy proceeding. 51. The Form 10-Q filed by Geneva Steel Holdings Corp., for the quarterly period ended September 30, 2001 states that: a. During the nine months ended September 30, 2001, in connection with the term debt financing, an option to purchase the Williams Farm Property for $218,630 became effective. The option price is estimated at 3.2 million below the fair market value of the property resulting in additional deferred loan fees related to the term debt financing. 52. There is nothing within the Form 10-Q filed by Geneva Steel Holdings Corp. for the quarterly period ended September 30, 2001 to indicate that an entity other than Geneva Steel Holdings Corp. was involved with the option to purchase the Williams Farm Property. 53. The Form 10-Q filed by Geneva Steel Holdings Corp. for the quarterly period ended June 30, 2001 states that: During the six months ended June 30, 2001, in connection with the term debt financing, an option to purchase the Williams Farm Property for $1 million became effective. The option price is estimated at 2.4 million below the fair market value of the property resulting in additional deferred loan fees related to the term debt financing. 54. There is nothing within the Form 10-Q filed by Geneva Steel Holdings Corp. for the quarterly period ended June 30, 2001 to indicate that an entity other than Geneva Steel Holdings Corp. was involved with the option to purchase the Williams Farm Property. 55. The Form 10-Q filed by Geneva Steel Holdings Corp. for the quarterly period ended June 30, 2001, at page 8 of 33 refers to the property transferred to WFLLC as "certain real property" and not as "Williams Farm Property" despite the fact that the term "Williams Farm Property" is used in the preceding page of the Form 10-Q. 56. The Form 10-Q filed by Geneva Steel Holdings Corp. for the quarterly period ended March 31, 2001 states that: During the three months ended March 31, 2001, in connection with the term debt financing, an option to purchase the Williams Farm Property for $1 million became effective. The option price is estimated at 2.4 million below the fair market value of the property resulting in additional deferred loan fees related to the term debt financing. 57. There is nothing within the Form 10-Q filed by Geneva Steel Holdings Corp. for the quarterly period ended March 31, 2001 to indicate that an entity other than Geneva Steel Holdings Corp. was involved with the option to purchase the Williams Farm Property. 58. The Form 10-Q filed by Geneva Steel Holdings Corp. for the quarterly period ended March 31, 2001, at page 7 refers to the property transferred to WFLLC as "certain real property" and not as "Williams Farm Property" despite the fact that the term "Williams Farm Property" is used in the preceding page of the Form 10-Q. 59. None of the 10-K or 10-Q Forms filed by Geneva Steel Holdings Corp. state that Williams Farm Property, LLC granted an option *238 to sell real property to AFCO or Steelman. 60. None of the 10-K or 10-Q Forms filed by Geneva Steel Holdings Corp. state that Williams Farm Property, LLC actually sold the Williams Farm Property to Steelman approximately four months prior to its filing bankruptcy. 61. Despite being filed on December 13, 2002, the Initial Financial Report does not disclose that WFLLC actually sold the Williams Farm Property to Steelman in April of 2002. 62. Although the Initial Financial Report consists of 264 pages, the report makes no disclosure of the fact that on April 30, 2002, Steelman paid WFLLC the sum of $76,777.40 and in return WFLLC transferred property to Steelman worth as much as $6,000,000.00. 63. Despite being filed on December 13, 2002, a full eight months after the sale and transfer of the Williams Farm Property, the only information found in the Initial Financial Report concerning the Williams Farm Property was over 15 months old, it describes an, option price as $213,630.00, and estimates the property value at $3,200,000.00. 64. During its Chapter 11 bankruptcy proceeding, WFLLC filed 23 separate Debtor In Possession Monthly Financial Reports. None of the Monthly Financial Reports mention the transfer of the Williams Farm Property or describe any claim held by WFLLC for the recovery of transferred property. 65. On February 20, 2003, Steelman entered into a consulting agreement with Johnsen and Joe Cannon ("Cannon"), the Chairman of the Board of Geneva Steel Holdings Corp. The consulting agreement was drafted by Garcia. 66. The February 20, 2003 consulting agreement provided Johnsen and Cannon with a percentage of the net sales price of the sale of the Williams Farm Property upon its development and sale. 67. On May 1, 2003, WFLLC filed an adversary proceeding against Atlas Sales, Inc., wherein the complaint alleged in part that "Williams Farm has conveyed the Williams Farm Property to Steelman, Inc., a Delaware corporation, as of May 23, 2002." 68. Nowhere in the WFLLC adversary proceeding is any information disclosing or discussing the value of the Williams Farm Property conveyed to Steelman. 69. On July 28, 2003, WFLLC filed amended Schedules and Statements of Financial Affairs (the "Amended Schedules") which disclose, for the first time, that WFLLC transferred the Williams Farm Property to Steelman for $76,000.00. 70. WFLLC's Amended Schedules were not mailed or sent to any of WFLLC's creditors. 71. Although the Amended Schedules disclosed that $76,000.00 was paid by Steelman to WFLLC to purchase the Williams Farm Property, the Amended Schedules did not disclose the value of the property sold to Steelman. 72. WFLLC's Amended Statement of Financial Affairs at statement # 10 states that there was "no relationship" between Steelman and WFLLC. *239 73. AFCO is an approximate 31% shareholder of Geneva Steel Holdings Corp. 74. Geneva Steel Holdings Corp. is the 100% owner of WFLLC. 75. Garcia, Johnsen, Cannon and Fried were business associates and partners in two business ventures involving the development of condominiums near the Geneva Steel site. None of the business relationships between these individuals were disclosed to creditors of WFLLC before February 24, 2005, the date on which an examiner was appointed in the Geneva Steel LLC bankruptcy proceeding. 76. No unsecured creditor's committee was ever formed in the WFLLC bankruptcy proceeding. 77. On September 13, 2004, Johnsen testified before the Court indicating that "I am working with someone who bought Williams Farm in helping them get that sold." When Johnsen was asked about his commission, Garcia, counsel for GSL and WFLLC, objected on the grounds of relevance. 78. On October 24, 2004, DRHL, Inc., a Delaware Corporation, offered to purchase 42 acres of the 76 acres of Williams Farm Property for the sum of $8,400,000.00. 79. On November 5, 2004, WFLLC filed a motion to voluntarily dismiss its own bankruptcy proceeding arguing that it had no significant creditors and no assets other than $73,500.00 cash. The Court granted the motion to dismiss on December 9, 2004. 80. On April 12, 2005, GSL, the Official Committee of Unsecured Creditors in the GSL case, the United States on behalf of the Emergency Steel Loan Guaranty Board, and the United States Trustee filed a joint motion for appointment of a trustee in the GSL case, and on June 23, 2005, James Markus was appointed as Chapter 11 Trustee in the GSL case. 81. At an initial interview conducted by Markus, Johnsen told Markus that the transfer of the Williams Farm Property to Steelman had been approved by the bankruptcy Court as a part of the Geneva I bankruptcy proceeding. 82. The transfer of the Williams Farm Property to Steelman had never been approved by the bankruptcy Court as a part of the Geneva I bankruptcy proceeding. 83. On September 9, 2005, Markus filed an emergency motion to vacate the dismissal order of the WFLLC case, and on September 15, 2005, the Court granted the motion to vacate dismissal order. 84. On September 16, 2005, Markus was appointed Chapter 11 Trustee of the WFLLC case and on that same day Markus filed this adversary proceeding to avoid the Williams Farm Property transfer. 85. The board of directors of GSL and Geneva Steel Holdings Corp. had knowledge of the option, but the board of directors of GSL and Geneva Steel Holdings Corp. were not creditors in the WFLLC bankruptcy proceeding. 86. At some point in time, members of the Official Unsecured Creditors Committee appointed in the Geneva Holdings Corp. bankruptcy proceeding were provided with information about the Williams Farm Property transfer; however, none of the members of the Official *240 Unsecured Creditors Committee appointed in the Geneva Holdings Corp. bankruptcy proceeding were creditors in the WFLLC bankruptcy proceeding. ANALYSIS Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. The evidence is to be viewed and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. However, the mere existence of a scintilla of evidence in support of the nonmovant's position is insufficient to create a genuine issue of material fact. For a genuine issue of material fact to exist, the nonmovant must present facts upon which a reasonable jury could find in favor of the nonmovant. Johnson v. Lindon City Corp., 405 F.3d 1065 (10th Cir.2005). As a court of equity, bankruptcy courts may equitably toll limitations period. It is hornbook law that limitations periods are customarily subject to "equitable tolling," unless tolling would be "inconsistent with the text of the relevant statute". Congress must be presumed to draft limitations periods in light of this background principle. That is doubly true when it is enacting limitations periods to be applied by bankruptcy courts, which are courts of equity and "appl[y] the principles and rules of equity jurisprudence." Young v. United States, 535 U.S. 43, 49-50, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002) (citations omitted). Unless equitable tolled, the two-year limitation period under § 546(a)(1)(A) begins running upon entry of the order for relief in the bankruptcy, and expires unless a trustee is appointed or elected before the expiration of the two year period. If a trustee is appointed or elected within the two-year period, the limitation period is extended for one year after the appointment or election of the trustee. 11 U.S.C. § 546(a). Of course, a debtor in possession is subject to the same two-year statute of limitations as an appointed trustee. Zilkha Energy Co. v. Leighton, 920 F.2d 1520, 1524 (10th Cir.1990). Because creditors of a bankruptcy estate, with leave of court, may initiate avoiding actions to recover assets on behalf of the estate, Starzynski v. Sequoia Forest Indus., 72 F.3d 816, 821 (10th Cir.1995), a court, when considering equitable tolling, must consider information available to the trustee as well as information available to creditors of the estate. Defendants correctly argue that a plaintiff may not invoke the doctrine of equitable tolling without a showing of due diligence. Due diligence is measured by an objective standard. Therefore, the Court may determine, as a matter of law, whether a plaintiff discovered, or should have discovered, that the alleged fraud occurred, but nonetheless, failed to timely file suit. In re M & L Business Mack Co., Inc., 75 F.3d 586, 591 (10th Cir.1996). Defendants argue that sufficient information was available to Markus and/or the creditors of WFLLC to put them on notice of the alleged fraudulent transfer to Steelman. Notice of this type is characterized as "inquiry notice" and is defined as "sufficient storm warnings to alert a reasonable person to the possibility that there were either misleading statements or significant omissions involved in the sale." Sterlin v. Biomune Systems, 154 F.3d 1191, 1196 (10th Cir.1998) (quoting Cook v. Avien, Inc., 573 F.2d 685, 697 (1st Cir.1978)). Once a party is put on inquiry notice, the duty to exercise reasonable *241 diligence is triggered. Even if the underlying facts of an alleged fraudulent transfer are not discovered in sufficient time to bring suit, if the underlying facts should have been discovered after the plaintiff is put on inquire notice, equitable tolling is not appropriate. Sterlin, 154 F.3d at 1201. Given the undisputed facts of this adversary proceeding, the Court makes the following conclusions of law. CONCLUSIONS OF LAW 1. Because the Williams Farm Property was transferred to Steelman within four months of WFLLC's petition date, WFLLC had a duty to disclose the material terms of the transfer of the Williams Farm Property in its Schedules and Statement of Financial Affairs. 2. The failure to disclose the transfer of the Williams Farm Property in WFLLC's Schedules and Statement of Financial Affairs is a material omission. 3. Because AFCO owned, at all times relevant, at least 20% of the stock of Geneva Holdings Corp. which, in turn, owns 100% of WFLLC's stock, AFCO is an affiliate of WFLLC under 11 U.S.C. § 101(2). 4. AFCO is an insider of WFLLC under 11 U.S.C. § 101(31). 5. Because the Option Agreement does not contain information concerning the value of the property subject to the option, it lacks sufficient information to put a WFLLC creditor on inquiry notice that a fraudulent or avoidable transfer occurred or may occur. 6. Viewed in a light most favorable to Defendants, a creditor of WFLLC could interpret the Automatic Termination Provision of the Option Agreement as having terminated the Option Agreement as soon as the Option Event occurred with no purchase option exercised. 7. Geneva Steel Holdings Corp. is a separate and distinct legal entity from WFLLC. 8. For purposes of equitable tolling in a bankruptcy proceeding, due diligence does not require a creditor of a debtor corporation to comb through information filed with the SEC by a related, but nonetheless, separate and distinct corporation. 9. The information contained in Forms 10-K and 10-Q filed with the SEC by Geneva Steel Holdings Corp., a separate and distinct corporation from WFLLC, did not put creditors of WFLLC on inquiry notice. 10. Given the magnitude and importance of the transfer, WFLLC had a duty to disclose the material terms of the transfer of the Williams Farm Property to Steelman in WFLLC's Initial Financial Report. 11. WFLLC's Initial Financial Report is misleading because of the nondisclosure of information that a creditor would expect to find in a report filed by a Chapter 11 debtor in possession, namely, the sale of property valued at up to $6,000,000.00 for the price of $76,000.00 four months prior to the petition date. 12. WFLLC's Initial Financial Report did not disclose that WFLLC had already transferred the Williams Farm Property to Steelman. The Initial Financial Report spoke only of an option to purchase involving Geneva Steel Holdings Corp. *242 13. Because WFLLC's Initial Financial Report failed to disclose the actual purchase price paid by Steelman for the Williams Farm Property and failed to disclose the value of the Williams Farm Property on the date of the sale, it failed to put creditors of WFLLC on inquiry notice. 14. The only information concerning the Williams Farm Property contained in WFLLC's Initial Financial Report spoke of an option to purchase the Williams Farm Property. Because 11 U.S.C. § 363 permits the sale of property other than in the ordinary course of business only after notice and a hearing, the creditors of WFLLC were, at most, put on notice of the need to monitor WFLLC's bankruptcy proceeding for notice of a hearing seeking authority to sell the Williams Farm Property under 11 U.S.C. § 363. 15. For WFLLC to file a 276 page Initial Financial Report and fail to disclose important and meaningful information regarding the transfer of WFLLC's only significant asset,[1] constitutes an active concealment of material information. 16. WFLLC had a duty to disclose the material terms of the transfer of the Williams Farm Property to Steelman in WFLLC's Amended Schedules. 17. The adversary proceeding filed by WFLLC on May 1, 2003 against Atlas Sales, Inc., provides no information disclosing or discussing the value of the Williams Farm Property conveyed to Steelman, and therefore failed to put creditors of WFLLC on inquiry notice. 18. Because WFLLC's Amended Schedules disclose that property was transferred to Steelman for $76,000.00, but does not disclose that the transferred property was worth as much as $6,000,000.00, the Amended Schedules failed to put creditors of WFLLC on inquiry notice. 19. WFLLC's Amended Schedules did not put creditors of WFLLC on inquiry notice that a fraudulent transfer may have taken place. 20. WFLLC's response to question # 10 of WFLLC's Amended Statement of Financial Affairs which states "no relationship" is affirmatively misleading. 21. Defendants argue that the all of combined information available from all possible sources, in aggregate, was sufficient to put WFLLC creditors on inquiry notice of the alleged fraudulent transfer of the Williams Farm Property to Steelman, however, when viewing the information as a whole, it is too thin, too attenuated, and is contaminated with repeated doses of misrepresentations and misleading information to put a creditor on inquiry notice. *243 22. Creditors of the WFLLC bankruptcy proceeding were never put on inquiry notice of the alleged fraudulent transfer of the Williams Farm Property from WFLLC to Steelman. 23. Creditors of WFLLC exercised reasonable and due diligence with respect to the alleged fraudulent transfer of the Williams Farm Property from WFLLC to Steelman. 24. Markus exercised reasonable and due diligence in his capacity as the Chapter 11 trustee of the WFLLC bankruptcy proceeding. 25. Equitable tolling is appropriate in this adversary proceeding. ORDER GRANTING TRUSTEE'S CROSS MOTION FOR SUMMARY JUDGMENT, and DENYING MOTION FOR SUMMARY JUDGMENT OF ALBERT FRIED, JR. et al. Based upon the undisputed facts and conclusions of law as stated in the Court's Statement of Undisputed Facts, Analysis and Conclusions of Law, it is hereby; ORDERED that equitable tolling is appropriate in this adversary and Markus's motion for summary judgment is GRANTED, and it is further ORDERED that the motion for summary judgment filed by Albert Fried, JR., Albert Fried & Co., and Steelman, Inc., is DENIED. NOTES [1] Although the United States Trustee requires that a specific form be submitted, the information that should have been but was not disclosed in WFLLC's Initial Financial Report, can be summarized in two short sentences: "In May 2002, WFLLC transferred its only asset—property known as the Williams Farm Property to Steelman, Inc., for the sale price of $76,000.00. The Williams Farm Property may be worth $3,000,000.00 or more." Instead, WFLLC choose to file a 256 page report that contains outdated and irrelevant information that was generated, for the most part, by a legal entity other than WFLLC.

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 28, 2013 Elisabeth A. Shumaker Clerk of Court LEON E. LEE, Plaintiff-Appellant, v. No. 12-3188 (D.C. No. 6:12-CV-01025-JTM-KGG) COHEN, MCNEILE & PAPPAS, P.C.; (D. Kan.) JAMES M. MCNEILE; CLIFFORD A. COHEN; GREGORY J. PAPPAS; RICHARD MILONE; DUSTIN J. STILES; SUSAN P. DECOURSEY; JACK PEGGS; JOHN DOES 1-5, Defendants-Appellees. ORDER AND JUDGMENT* Before LUCERO, Circuit Judge, PORFILIO, Senior Circuit Judge, and MATHESON, Circuit Judge. Leon E. Lee (“Lee”) appeals the district court’s dismissal of his claims against defendants for alleged violations of the Fair Debt Collection Practices Act * 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 case is therefore ordered submitted without oral argument. This order and judgment 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. (“FDCPA”) and Kansas Consumer Protection Act (“KCPA”). We have jurisdiction under 28 U.S.C. § 1291 and we affirm. In 2011, Lee received a letter from Frederick J. Hanna & Associates, P.C. (“Hanna”) about collecting a credit card debt he owed FIA Card Services. Lee sent a letter to Hanna requesting validation of the debt and received a response three weeks later from Hanna confirming the amount owed. Hanna eventually forwarded the collection to defendants Cohen McNeile & Pappas, P.C. (“Cohen”), which then sent a letter to Lee demanding the amount due. Lee sent Cohen a request for validation, to which Cohen did not respond. Lee then sent Cohen a notice of intent to sue asking for a response by email, and an attorney from Cohen did respond. The attorney did not include what the parties call a “mini-miranda,” a required disclosure statement under 15 U.S.C. § 1692e(11) in communications that make a collection demand, in the email back to him. Lee filed suit in the district court alleging that Cohen violated various components of the FDCPA including 15 U.S.C. § 1692g(b) by not validating his debt, 15 U.S.C. § 1692e(2) by misrepresenting the amount of the debt owed, and 15 U.S.C. § 1692e(11) by failing to provide a “mini-miranda.” Cohen subsequently filed a motion to dismiss all claims. On June 26, 2012, the district court granted Cohen’s motion to dismiss, finding Lee’s complaint failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). Specifically, the court found that Cohen did not violate § 1692g(b) because -2- Lee had already received a validation letter from Hanna. The court noted that § 1692g(b) only imposes an obligation on the initial debt collector to validate the debt, not successive debt collectors like Cohen. The court also cited the statement in Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999), that “verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed” and “is only intended to eliminate the problem of debt collectors dunning the wrong person or attempting to collect debts . . . already paid.” (internal quotation marks omitted.) As to Lee’s allegations of misrepresentation, the district court found that Lee’s complaint lacked any specific factual allegations and instead contained only general, conclusory ones. With respect to the omitted “mini-miranda” statement, the district court determined that Lee had not adequately developed or supported his bare assertion that the omission of the “mini-miranda” statement on Cohen’s litigation-related email violated his legal rights. The court dismissed the rest of Lee’s claims because they were either unsupported by any factual allegations or relied on Cohen’s failure to validate the debt, which the court had already dismissed as meritless. On appeal, Lee contends that the district court erred because § 1692g(b) requires each subsequent debt collector to observe the validation requirements. He also asserts that § 1692e(11) requires strict compliance with the “mini-miranda” requirement, and that Cohen’s failure to include it on the email to him was a clear -3- violation regardless of intent. Additionally, Lee contends that he did allege facts sufficient to overcome dismissal. We have reviewed de novo the record, the parties’ briefs, and the applicable law. See Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). The district court’s decision is well-reasoned and none of Lee’s arguments persuades us that the court erred in dismissing his complaint. He provides no meaningful support for his contention that Cohen was required by law to validate his debt. Nor does Lee identify facts alleged in the complaint that indicate the actions of Cohen were false or deceptive. Further, there is nothing about the email from the attorney at Cohen that could be construed as misleading or deceptive, and it did not require a disclosure statement under § 1692e(11) because it was merely a response to Lee’s threat of litigation.1 Accordingly, we affirm the district court’s dismissal of Lee’s claims for substantially the same reasons stated by the court in its Memorandum and Order entered on June 26, 2012. Entered for the Court John C. Porfilio Senior Circuit Judge 1 Cohen included the “mini-miranda” disclosure in its initial communication to Lee. To the extent that the attorney’s response email could be construed as a follow-up notice, we note that it is an open question whether the disclosure requirement applies to follow-up notices at all. See Dikeman v. Nat’l Educators, Inc., 81 F.3d 949, 951 n. 8 (10th Cir. 1996). Nevertheless, we need not decide that here because the attorney’s response included only a denial of Lee’s allegations as well as a reference to a settlement concerning litigation that had already commenced in state court. It was thus not a collection demand under § 1692e(11). -4- 

40 F.3d 392 39 ERC 1865, 309 U.S.App.D.C. 136, 25Envtl. L. Rep. 20,158 LEATHER INDUSTRIES OF AMERICA, INC., Petitioner,v.ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner,Administrator, United States EnvironmentalProtection Agency, Respondents,ASSOCIATION OF METROPOLITAN SEWERAGE AGENCIES, Petitioner,v.ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner,Administrator, United States EnvironmentalProtection Agency, Respondents,MILWAUKEE METROPOLITAN SEWERAGE DISTRICT, A Special PurposeWisconsin Municipal Corporation, Petitioner,v.ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner,Administrator, United States EnvironmentalProtection Agency, Respondents.CITY OF PUEBLO, COLORADO, Petitioner,v.ENVIRONMENTAL PROTECTION AGENCY, Respondent. Nos. 93-1187, 93-1376, 93-1404 and 93-1555. United States Court of Appeals,District of Columbia Circuit. Argued Oct. 3, 1994.Decided Nov. 15, 1994. Appeal from an Order of the Environmental Protection Agency. Thomas J. Crawford, Milwaukee, WI, argued the cause for petitioners Association of Metropolitan Sewerage Agencies and Milwaukee Metropolitan Sewerage Dist. With him on the briefs were Lee C. White and Michael J. McCabe, Milwaukee, WI. Ronald L. Raider, Washington, DC, argued the cause for petitioner City of Pueblo, Colorado. With him on the briefs were Thomas K. Bick and Thomas J. Florczak, Washington, DC. John L. Wittenborn, Washington, DC, argued the cause and filed the briefs for petitioner Leather Industries of America, Inc. William M. Guerry, Jr., Washington, DC, entered an appearance. Daniel S. Goodman and Mark A. Nitczynski, Attorneys, U.S. Dept. of Justice, Washington, DC, argued the cause for respondents. With them on the briefs were Lois J. Schiffer, Acting Asst. Atty. Gen., U.S. Dept. of Justice, Caroline H. Wehling, Asst. Gen. Counsel, and Richard T. Witt, Atty., U.S. E.P.A., Washington, DC. Before WALD, WILLIAMS and ROGERS, Circuit Judges. Opinion for the Court filed by Circuit Judge WALD. WALD, Circuit Judge: 1 In these consolidated cases, petitioners seek review of several aspects of the Standards for the Use or Disposal of Sewage Sludge, 58 Fed.Reg. 9387 (1993) (to be codified at 40 C.F.R. parts 257 and 403) ("Regulations"), issued on February 10, 1992 by the Environmental Protection Agency ("EPA" or "agency"). Because petitioners have raised valid challenges to (1) the use of the 99th percentile figures from the National Sewage Sludge Survey ("NSSS") for the Table 3 "clean sludge" caps, (2) the assumed rate and duration of application underlying the risk-based data in Table 3 as applied to heat-dried sludge, (3) the assumed exposure possibilities underlying the risk-based cap on selenium as applied to public contact sites with low potential for occupancy, and (4) the lack of data to support the risk-based cap on chromium, we remand those parts of the regulations to the EPA for modification or additional justification. We reject the challenges to the classification of "dedicated uses" as "land disposal" and to the EPA's refusal to provide for site-specific variances from the pollutant limitations for land-applied sewage sludge. I. BACKGROUND A. Statutory Framework 2 The Clean Water Act of 1972 ("CWA" or "Act") was enacted to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251(a). The Act prohibits "the discharge of any pollutant by any person" into the navigable waters of the United States, except in compliance with various provisions of the Act, 33 U.S.C. Sec. 1311(a), and directs the EPA to regulate the discharge of wastewater into the navigable waters by various industrial, commercial, and public sources. See 33 U.S.C. Sec. 1311(b). As amended by the Federal Water Pollution Control Act of 1977, Pub.L. No. 95-217, 91 Stat. 1566 (codified at 33 U.S.C. Sec. 1251 et seq.), and the Water Quality Act of 1987, Pub.L. No. 100-4, 101 Stat. 7 (1987), the CWA also requires the EPA to promulgate comprehensive regulations for the management of sewage sludge--the by-product of pre-discharge sewage and wastewater treatment by publicly and privately owned treatment works ("POTWs"). 3 POTWs receive sewage and liquid industrial wastes. POTW treatment of these waste streams produces a liquid effluent that meets CWA discharge standards and may be expelled into surface water and a residual material, sewage sludge, which may not be discharged into the waters. POTWs dispose of sewage sludge through incineration or landfill deposits; they also apply it to land or sell it to the public for use as a fertilizer. Implementation of the Clean Water Act of 1972's restrictions on effluent discharge has led to more pre-discharge treatment of sewage wastes and, consequently, more sewage sludge is generated as a by-product of treatment. The production of sewage sludge each year has nearly doubled since the original enactment of the Clean Water Act. See 58 Fed.Reg. 9249. 4 The Federal Water Pollution Control Act of 1977, an amendment to the Clean Water Act, directed the EPA in general terms to develop a regulatory program to ensure the safe use and disposal of sewage sludge. See 33 U.S.C. Sec. 1345(d) (1982). In 1987, Congress enacted another amendment to the CWA, the Water Quality Act, to require the EPA to issue specific regulations for the use and disposal of sewage sludge. Under the amended Act, the EPA must identify and set numeric limits for toxic pollutants that "may be present in sewage sludge in concentrations which may adversely affect public health or the environment," and establish management practices for the use and disposal of sludge containing these toxic pollutants. 33 U.S.C. Sec. 1345(d)(2). Its regulations are to be issued in two phases--the first round to be promulgated "on the basis of available information," the second to encompass pollutants unaddressed by the first round. Id. It is the Round One regulations that are now at issue. B. Regulatory Development 5 At the start of the rulemaking process, the EPA made an initial assessment in the aggregate that "current use and disposal practices for sewage sludge pose little risk to public health." 58 Fed.Reg. 9320. Sewage sludge that meets safety requirements is a "valuable resource" as "fertilizer and a soil conditioner," 58 Fed.Reg. 9249, and the EPA "strongly support[s] the beneficial reuse of sewage sludge." 58 Fed.Reg. 9251. The EPA identifies "land application" as one type of beneficial reuse and defines it as "the spraying or spreading of sewage sludge onto the land surface; the injection of sewage sludge below the land surface; or the incorporation of sewage sludge into the soil so that the sewage sludge can either condition the soil or fertilize crops or vegetation grown in the soil." Sec. 503.11(h), 58 Fed.Reg. 9391. The Round One regulations--Standards for the Use or Disposal of Sewage Sludge--regulate land application of sewage sludge as well as surface disposal and incineration. 6 The Round One regulations establish limits on ten pollutants in sludge destined for land application. To set these land application pollutant limits, the EPA sought first to identify "those [pollutants] most likely to pose a hazard to human health or the environment."1 It enlisted federal, state, academic, and private sector experts to screen a list of 200 pollutants to determine which, if any, posed a potential risk to human health or the environment if contained in sewage sludge that was applied to or disposed of on land or incinerated. These experts selected forty-eight pollutants, for which the EPA compiled environmental profiles. Based on data and information from published scientific reports, the profiles assessed the pollutants' general toxicity and persistence, as well as the particular pathways by which they might cause harm to human health or the environment. See 58 Fed.Reg. 9263-64 (Table III-1). Using these profiles and preliminary data about the concentration and frequency of these pollutants in sewage sludge, the EPA exempted from regulation those pollutants that presented no risk to human health or the environment at the highest observed concentration and deferred consideration of those for which it had insufficient data to make this risk determination. See 58 Fed.Reg. 9264. It initially proposed limits for 25 pollutants in sludge to be applied to land, see 54 Fed.Reg. 5761 (Table III-4), and concluded by regulating ten heavy metals in sludge applied to land in the final Round One sewage sludge regulations, see 58 Fed.Reg. 9392. These portions of the regulations establish numeric limits on pollutants in sludge that is applied to agricultural land, forests, public contact sites, or reclamation sites. II. THE LAND APPLICATION REGULATIONS 7 In establishing the limits for the ten regulated heavy metals pollutants--arsenic, cadmium, chromium, copper, lead, mercury, molybdenum, nickel, selenium, and zinc--the EPA generated two sets of data. A. The Underlying Data 8 The first data set on the ten pollutants describes their current concentration in sewage sludge. The data is culled from the EPA's National Sewage Sludge Survey ("NSSS"), in which the EPA sent questionnaires to 479 POTWs--out of a national total of 11,407--and performed sampling and analysis at 208 of the 479. See 58 Fed.Reg. 9269.2 Based on this sampling and analysis, the EPA identified the pollutant concentrations in current sludge output, and calculated 99th-percentile concentration numbers: the pollutant concentration not exceeded by 99% of the sludge samples in the NSSS ("99th percentile caps"). 9 The second data set on the ten pollutants is risk-based. Under its risk-based analysis, the EPA modelled 14 pathways by which pollutants in land-applied sludge could affect human health or the environment and then identified a hypothetical "highly exposed individual" ("HEI") for each pathway and calculated a pollutant limit that would protect the HEI. The pathway model analyzes the exposure potential from the total quantity of metal in a given area of soil. The EPA proceeded on the uncontested premise that "metals persist in the soil and accumulate over time,"3 and the pathway model assesses the risk posed by the total accumulation of pollutants in a given hectare of land. The resulting pollutant limit, accordingly, "represent[s] the total quantity of metals that could be added to [a given area] of soil. So long as the total quantity ... for the metal is not exceeded, the exposure assessment models predict that there will be no injury to the HEI. The model is unconcerned whether the total quantity of the pollutant is received in a single load or over time." 58 Fed.Reg. 9282 (emphasis added). The risk-based exposure model, then, is indifferent as to the concentration of a pollutant in any given load of sludge. 10 The EPA chose also to regulate concentration limits. "[B]y applying certain conservative assumptions" about the amount of sludge that would be applied to a given area of land, the EPA "backcalculated" from the total pollutant limits in a given area of land to a permissible sludge pollutant concentration per load. 58 Fed.Reg. 9317. The "backcalculation" provides the EPA a means of converting the cumulative pollutant limit into a concentration cap for the pollutant in any given load of sludge. The model assumes a total amount of sludge that will be applied to a given hectare of land based on an assumed yearly application rate and assumed duration of application. The EPA assumed that ten metric tons of sludge would be applied annually to a hectare of land for 100 years. This converts into an assumption that, in total, 1000 metric tons of sludge will be applied to a given hectare of land. Based on (1) this total amount of sludge that the EPA assumed would accumulate on an area of land, and (2) the total amount of pollutant that the EPA had determined could safely accumulate on an area of land, the EPA calculated pollutant/sludge, the permissible concentration of pollutant in any application of sludge. For instance, assuming that 1000 metric tons of sludge would be applied to a hectare of land over its lifetime, and having determined that 41 kilograms of arsenic could safely accumulate in that hectare, the EPA determined that it could allow 41 kgs of arsenic in 1000 metric tons of sludge, or 41 mgs of arsenic per kilogram of sludge. This number--in mg/kg--is the EPA's risk-based concentration cap, and derives from the "backcalculation" from the EPA's risk analysis, which is based on the EPA's application rate and duration assumptions. B. The Regulatory Design 11 The EPA designed its final regulations of pollutants in land-applied sewage sludge on the basis of its risk-based and empirical data sets. These regulations use the following four tables in a manner described in the text below:NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 1. Ceiling Concentrations 12 Table 1--Ceiling Concentrations--contains the less stringent of the two concentration limits, the risk-based concentration cap and the 99th percentile concentration cap, for each of the ten pollutants. See Sec. 503.13(b)(1), 58 Fed.Reg. 9392. No sewage sludge may be applied to the land unless the concentration of each of the pollutants is under the Table 1 limits. Once it complies with the Table 1 limits, it must comply either with the Table 3 limits--qualifying as "clean" sludge--or with the cumulative limits in Tables 2 and 4. Each option is discussed below.4 2. "Clean" or "High Quality" Sludge 13 Table 3--Pollutant Concentrations ("clean sludge caps")--contains the more stringent of the two concentration limits, the riskbased concentration cap and the 99th percentile concentration cap, for each of the ten pollutants. See Sec. 503.13(b)(3), 58 Fed.Reg. 9392. If sludge meets Table 3--i.e., the concentration of each of the pollutants in sludge is under the Table 3 caps, as well as the Table 1 caps--it is considered "clean" sludge, and may be applied to land with no further regulation. 14 3. Cumulative Pollutant Limits for Bulk Sewage Sludge 15 If bulk sewage sludge does not meet the Table 3 caps, it must comply with Table 2--the Cumulative Pollutant Loading Rates ("CPLRs"). While Tables 1 and 3 regulate pollutant concentration in sludge, Table 2 regulates pollutant concentration in land. It contains the cumulative risk-based limit derived from the EPA's pathway exposure model. The CPLRs represent the total amount of pollutant that can ever permissibly concentrate in a given area of land. Compliance with the cumulative option in Table 2 requires the maintenance of centralized land application records to ensure that the total pollutant limit is not exceeded. Each time non-"clean" sludge is applied to land, the amount of sludge applied and the concentration of the pollutants in that sludge must be recorded, so that the agency can keep track of the pollutants accumulating in that piece of land. See Sec. 503.12(e)(2), 58 Fed.Reg. 9391 (person who applies sewage sludge in accordance with Table 2 must first contact permitting authority for prior Table 2 application records and ensure that Table 2 limits are not exceeded); Sec. 503.12(j), 58 Fed.Reg. 9391 (must notify permitting authority of application); Sec. 503.17(a)(5)(ii), 58 Fed.Reg. 9394 (recordkeeping requirements for person who applies sewage sludge in accordance with Table 2).5 16 4. Annual Pollutant Limits for Packaged Sewage Sludge 17 Packaged sewage sludge that does not meet the Table 3 caps must comply with Table 4--the Annual Pollutant Loading Rates ("APLRs"). Table 4 also regulates the pollutant concentration in land. It contains the cumulative limit in "annualized form"--imposing a limit on how much pollutant can accumulate in a given area of land each year. Because packaged sludge is generally applied to home gardens, the EPA did not think it would be feasible to maintain centralized records and control of packaged sludge applications.6 Accordingly, it converted the Table 2 cumulative limits into annual limits: the total amount of pollutant that could be allowed to accumulate in one year. Assuming that packaged sewage sludge would "probably not be applied longer than 20 years,"7 the EPA determined that one-twentieth of the cumulative limit for each pollutant could be applied each year. The Table 4 APLRs are thus the Table 2 CPLRs divided by 20. Each year, non-"clean" packaged sewage sludge can only be applied in quantities such that none of the pollutant limits in Table 4 is exceeded. See Sec. 503.13(a)(4)(ii), 58 Fed.Reg. 9392. For packaged sludge, the EPA enforces this application limit through labelling: non-"clean" packaged sewage sludge must be labeled with the maximum yearly application so as to ensure that none of the Table 4 APLRs will be exceeded. See Sec. 503.14(e), 58 Fed.Reg. 9392 (label shall be affixed on bag or other container with: name and address of person who prepared the sludge, statement that application is prohibited expect in accordance with instructions, and the annual application rate that does not cause any of the ceilings in Table 4 to be exceeded). For instance, the Table 4 APLR for arsenic is 2 kgs of arsenic per hectare. See Sec. 503.13(b)(4), 58 Fed.Reg. 9392. If packaged sewage sludge contained 50 mgs of arsenic per kilogram of sludge, then 40 kgs of that sludge could be applied to a hectare of land before reaching the APLR. (If there are 50 mgs of arsenic in each kilogram of sludge, then 40 kilograms of sludge contain 2 kgs of arsenic.) Such sludge must be labelled so that no more than 40 kgs may be applied to a hectare per year. 5. Summary 18 In brief, all sludge must meet the Table 1 caps as a threshold requirement to land application. Then, there is a choice between meeting the Table 3 "clean sludge" caps--in which case there is no further regulatory control of land application--or the cumulative limits of Tables 2 and 4, in which case there are continuing recordkeeping obligations in the case of bulk sewage sludge (Table 2) or labeling requirements in the case of packaged sewage sludge (Table 4). 19 III. CHALLENGES TO THE TABLE 3 "CLEAN SLUDGE" CAPSPS 20 Petitioners challenge various aspects of the Table 3 "clean sludge" caps. As explained above, Table 3 contains the more stringent of the risk-based and 99th percentile concentration caps for each of the ten pollutants. For chromium and selenium, this more stringent cap is the 99th percentile number; for the other regulated pollutants, it is the risk-based cap.8 Sludge that meets both the Table 1 caps and the Table 3 caps is considered "high quality" sludge, and may be applied to the land without further regulation. Sludge that does not meet the Table 3 caps must meet the cumulative limits in Table 2 or Table 4, which involve more complicated regulatory oversight. 21 All of the petitioners--the Leather Industries of America ("Leather Industries"), the City of Pueblo ("Pueblo"), and, jointly, the Association of Metropolitan Sewerage Agencies and the Milwaukee Metropolitan Sewerage District (collectively "AMSA")--challenge the EPA's use of the 99th-percentile caps in Table 3 on the grounds that they are unrelated to risk. The AMSA also challenges the application rate and duration assumptions that underlie the risk-based caps in Table 3 on the grounds that these assumptions cannot rationally be applied to heat-dried sludge, which is applied at lower rates and for shorter durations. A. Safe Harbor Defense 22 In defending the Table 3 caps, the EPA suggests that because the Table 3 caps do no more than offer land appliers an additional option, rather than impose a mandatory requirement, they should withstand review. Land appliers need not comply with Table 3--if sludge does not meet Table 3, it can nonetheless be applied to land under the recordkeeping or labelling schemes of Tables 2 and 4. Table 3 only offers a safe harbor from the more involved regulatory controls of Tables 2 and 4. Although "[c]omplying with the 'clean sludge' pollutant concentrations in Table 3 may be advantageous" because it relieves the land applier from the recordkeeping and management practice requirements controlling non-"clean" sludge, Table 3 is not a prerequisite to land application. EPA Brief at 24. 23 Because it is not requiring compliance with Table 3, the EPA suggests, it should have greater leeway in designing Table 3. As the EPA acknowledges, however, the Table 3 safe harbor "provides significant relief from the [otherwise controlling] regulatory safeguards." EPA Brief at 24. Failure to meet the Table 3 caps subjects the would-be applier of sludge to not insignificant burdens, and undoubtedly makes non-"clean" sludge less attractive to the applier. Because the Table 3 clean sludge safe harbor provides "significant relief" to complying sludge, the design of that safe harbor is subject to the same rational basis review as the rest of the regulatory scheme. B. NSSS 99th Percentile Caps 24 Petitioners argue that the 99th percentile caps are not risk-based and therefore exceed the EPA's statutory authority under the enabling legislation.9 The statute directing the EPA to issue the Round One pollutant limits for sewage sludge provides: 25 [T]he Administrator shall identify those toxic pollutants which, on the basis of available information on their toxicity, persistence, concentration, mobility, or potential for exposure, may be present in sewage sludge in concentrations which may adversely affect public health or the environment, and propose regulations specifying acceptable management practices for sewage sludge containing each such toxic pollutant and establishing numerical pollutant for each use identified under paragraph (1)(A). 26 33 U.S.C. Sec. 1345(d)(2)(A)(i) (emphasis added). It further instructs that the management practices and numerical criteria so established "shall be adequate to protect public health and the environment from any reasonably anticipated adverse effects of each pollutant." 33 U.S.C. Sec. 1345(d)(2)(D) (emphasis added). 27 In determining whether the 99th percentile limits in Table 3 are a permissible interpretation of the statute, we turn to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and its progeny. We must first determine whether Congress' intent is clear as to the permissibility of the agency's interpretation. If it is not, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. 28 The EPA does not contest that its statutory authority is limited to promulgating regulations "adequate to protect public health and the environment from any reasonably anticipated adverse effects." 33 U.S.C. Sec. 1345(d)(2)(D). As a matter of Chevron's first step, then, there is no dispute that the statute clearly mandates regulations based on "reasonably anticipated adverse effects," and, thus, bearing some relation to risk. The EPA argues, however, that the 99th percentile caps fulfill this mandate of adequate protection from reasonably anticipated adverse effects and bear a relation to risk because they provide "an additional safety mechanism." EPA Brief at 26. The EPA suggests two ways in which the 99th percentile caps function as a safety mechanism: (1) they provide a "margin-of-safety" "necessary to ensure 'adequate' protection from these pollutants," EPA Brief at 28; and (2) they prevent current sewage sludge practices--found to be safe in the aggregate--from deteriorating. EPA Brief at 27. We conclude, however, that the EPA has failed to show that the 99th percentile caps are risk-related, and thus that they accord with the express mandate of the statute. 29 First, the EPA states that the 99th percentile caps are based on "a margin-of-safety analysis [that] is consistent with the legislative intent underlying section 405 of the Act." EPA Brief at 28. Whatever the underlying legislative intent, we do not view the 99th percentile caps as merely a "margin-of-safety" device. The fact that one cap is more restrictive than another does not automatically make it a "margin of safety." Rather, a margin of safety must be rooted in an analysis of risk. "[T]he Administrator [must] base[ ] his conclusion as to an adequate margin of safety on a reasoned analysis and evidence of risk." American Petroleum Institute v. Costle, 665 F.2d 1176, 1187 (D.C.Cir.1981) (emphasis added), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 152 (1982). 30 The 99th percentile caps are not related to risk. In its initial version of the regulations, the EPA proposed to cap all pollutants at the higher of the pathway-generated numbers and the 98th percentile level. This proposal came under heavy attack from "a specially convened group of sewage sludge experts," the Land Practices Peer Review Committee ("PRC"). 58 Fed.Reg. 9267.10 The PRC, composed of "experts from EPA, academia, environmental groups, and units of state and local government agencies,"11 concluded that the 98th percentile approach was "arbitrary," would "either over- or under-regulate," and "ha[d] no technical merit."12 It pointed to the absence of any relation between the percentile numbers and risk, noting that, because the percentile concentrations are purely descriptive, they "may be insignificant from a risk standpoint" just as easily as they "may pose significant risks."13 We can discern no reason--and the EPA has provided none--why the 99th percentile numbers are less "arbitrary" or have more "technical merit" than the 98th percentile figures. We find no support for the 99th percentile caps as a risk-based margin of safety for chromium and selenium, the two pollutants capped by the 99th percentile in Table 3.14 31 Second, the EPA argues that the 99th percentile caps reflect a legitimate "antibacksliding" approach. EPA Brief at 27. The EPA notes that its risk assessment suggests that current practices pose little risk to human health, and concludes that it should ensure that there is no deterioration from current practices. See 58 Fed.Reg. 9283. The antibacksliding rubric, however, cannot evade the requirement that the numeric limits on land application be risk-related--based on reasonably anticipated adverse effects. The conclusion that current sludge composition is safe absent a showing that alternative sludge composition would not be safe does not justify a mandate to freeze current sludge quality. In Natural Resources Defense Council v. EPA, 859 F.2d 156 (D.C.Cir.1988), we upheld an antibacksliding system that prevented a retreat by industrial facilities from standards regulating pollutant discharge that had been established in individual permits once the individual permitting process was replaced by national standards. In that case, the EPA had been authorized in the first place to issue the standards from which backsliding was prohibited, and those standards were based on the same statutory factors as the subsequent national standards. See 859 F.2d at 201. In sum, when the statute mandates risk-based regulation, standards from which facilities may not retreat must also be risk-based.15 32 We also note another significant distinction between the 99th percentile caps and the antibacksliding regime approved in Natural Resources Defense Council v. EPA. The Natural Resources Defense Council system was site-specific and required only that each individual facility maintain its existing standards. See 859 F.2d at 201. The 99th percentile caps, by contrast, are not tailored to individual facilities. There will, by statistical necessity, be a certain number of POTWs that currently produce sludge with chromium and selenium concentrations above the 99th percentile, and these facilities must do more than avoid sliding back in order to meet the clean sludge caps. Without a finding of risk, the EPA is without a basis for imposing the antibacksliding mandate. 33 C. The Application Rate and Duration Assumptions 34 For all other pollutants except chromium and selenium, the risk-based concentration cap is more stringent than the 99th percentile cap, and is thus the Table 3 "clean" sludge cap. The AMSA challenges the risk-based caps in Table 3. It argues that the assumptions about the rate and duration of sludge application underlying the risk-based concentration caps in Table 3 are irrational with respect to heat-dried sludge, which is applied at lower rates for shorter durations. For whatever reason, the EPA chose not to respond to this particular claim, and the AMSA has been less than totally clear about what parts of the regulations are allegedly infected by the use of these assumptions. We are, accordingly, somewhat handicapped in evaluating the challenge. Nonetheless, on the record, we conclude that the EPA has not adequately justified its use of the assumed rate and duration of application to apply the risk-based caps in Table 3 to heat-dried sludge. 35 The EPA's primary risk-based data is in Table 2. As explained above, supra pp. 396-97, the EPA used the assumed application rate of 10 metric tons/hectare and duration of 100 years to convert the Table 2 cumulative risk-based limits into the risk-based concentration caps used in Tables 1 and 3.16 The AMSA challenges the use of these assumptions in Table 3. It argues that these assumptions are irrational as applied to heat-dried sludge because it "is inconceivable that heat dried sludge could ever be applied to land at a rate of 1,000 metric tons/ha." AMSA Brief at 12. The AMSA points to undisputed evidence in the record that the recommended application for Milorganite--a principal heat-dried sludge product--is no more than 3.5 metric tons/ha per year17; and that heat-dried sludges "are applied at low annual rates, usually around 2 to 3 metric tons per hectare, but rarely over 5 metric tons per hectare."18 36 Under the Administrative Procedure Act, the assumed application rate and duration must bear some rational relationship to the actual application rates and durations for land application of sludge. See Edison Elec. Institute v. EPA, 2 F.3d 438, 446 (D.C.Cir.1993). The EPA has provided no response to the AMSA's claim that the assumed rate and duration are irrational as applied to heat-dried sludge. The EPA's explanation of the application rate and duration assumptions on the record is minimal. As explained above, the EPA used these assumptions to "backcalculate" from the total limit on pollutant accumulation in land to a concentration cap on pollutant in any given application of sludge. The agency's only stated basis for its assumed annual sludge application rate ("AWSAR") of 10 metric tons per hectare and duration of 100 years is that it "believes that the pollutant concentrations derived from [these assumptions] are conservative because it is unlikely that any one site will receive 10 metric tons of sewage sludge per hectare per year for 100 consecutive years." 58 Fed.Reg. 9317. 37 From the NSSS data, the EPA had information on AWSARs. It reported that typical AWSARs were 7 metric tons per hectare for agricultural land and 18, 26, and 74 metric tons per hectare, respectively, for a public contact site, forest, and a reclamation site. See 58 Fed.Reg. 9317. The EPA does not suggest that its assumptions are tailored to this data or to the information it had about heat-dried sludge; rather it suggests only that the assumptions are conservative enough to provide protection under each of these AWSARs. Its reasoning is as follows. The assumed application rate of ten metric tons for a duration of 100 years results in a total assumed sludge application of 1000 metric tons per hectare. This would be conservative enough to encompass the 74 metric ton rate, the EPA explained, because the 74 metric ton rate would not likely continue for more than the 13 years it would take to approach the assumed total of 1000 metric tons per hectare. (Seventy-four metric tons of sludge applied yearly for 13 years equals a net application of 962 metric tons.) Making the same calculation for the other observed AWSARs of 7, 18 and 26 metric tons per hectare, the EPA concluded that these types of applications would not likely continue for longer than the 142, 55, and 38 years it would take to reach the assumed total of 1000 metric tons per hectare. See 58 Fed.Reg. 9317. Besides indicating that the combination of the assumed AWSAR and duration can safely accommodate much higher actual application rates, the EPA offers no reason for selecting them. Nor does it offer any reason for using these assumptions to derive caps for heat-dried sludge which it knows will be applied at application rates and durations well below the assumed numbers. 38 An agency has discretion to design rules that can be broadly applied, sacrificing some measure of "fit" for administrability. At the same time, however, "[a]n agency must justify its failure to take account of circumstances that appear to warrant different treatment for different parties." Petroleum Communications v. FCC, 22 F.3d 1164, 1172 (D.C.Cir.1994). In this case, the EPA did not provide any justification for its assumptions of 10 metric tons/hectare for 100 years in the case of heat-dried sludge use, when it had information in the record (1) regarding the actual rate and duration of use of heat-dried sludge, and (2) data showing that heat-dried sludge was not an anomalous type of land application. Given that the EPA had at hand the information necessary accurately to prevent the known risks, it must provide some explanation for ignoring it in favor of blanket, highly conservative assumptions. Absent any further justification, the EPA has not supplied a rational basis for its assumed application duration and rate in the case of heat-dried sludge.19 39 We therefore require that the EPA reconsider the Table 3 risk-based caps with regard to heat-dried sludge in order either to justify its general assumptions on rate and duration or to provide more tailored caps that fit the data on heat-dried sludge. IV. CITY OF PUEBLO'S ADDITIONAL CHALLENGES 40 In addition to its challenge to the 99th percentile caps, Pueblo challenges the risk assessment that underlies the pollutant limits for selenium, found in Tables 1 and 2. It challenges both the EPA's decision to regulate selenium at all and the exposure assumptions used to derive the risk-based limits. It also challenges the EPA's refusal to provide a variance procedure. We agree that the EPA has not justified the use of high-occupancy exposure assumptions to regulate the selenium content of sludge applied to low-occupancy sites. In declining to provide variances, however, the EPA acted within its discretion. A. Risk-Based Cap on Selenium 41 The EPA's method of risk assessment for each identified pollutant was to model 14 possible exposure pathways through which sewage sludge applied to the land could pose a threat to human health or the environment,20 and a prototype "Highly Exposed Individual" ("HEI") for each pathway.21 The EPA analyzed each pathway for each pollutant, and the pathway producing the most restrictive limit on the pollutant became the basis for the cumulative pollutant loading rates (CPLRs) in Table 2, and then the risked-based caps in Tables 1 and 3. 42 For selenium, the pathway leading to the most stringent cap was Pathway 3, "Sewage Sludge -> Human," which "assesses the hazard to a child of ingesting undiluted sewage sludge." 1 Technical Support Document at 5-104, reprinted in J.A. at 632. The highly exposed individual for this path is a 1-to-6-year-old child who ingests sewage sludge daily for a maximum of 5 years. See id. Accordingly, the final risk-based concentration cap for selenium, which governs all land application of sewage sludge, is based on the Pathway 3 scenario. 43 Pueblo first challenges the inclusion of selenium in the regulations at all, on the grounds that it conflicts with an earlier EPA profile of selenium. In 1985, the EPA issued a preliminary analysis of selenium as part of a series assessing a total of 32 chemicals of potential concern in sewage sludge.22 It concluded then that "[n]o human health hazard due to Se[lenium] is expected when either sludge-amended soil or pure sludge is ingested."23 For some of the other pathways, it did identify risks when sludge containing typical amounts of selenium was applied at high rates or when sludge containing high amounts of selenium was applied at lower rates.24 The profile explained that it was a "rapid screening tool" and if a significant hazard was indicated, a more detailed assessment would be undertaken.25 The final regulations cap selenium for precisely the pathway that the profile found to present no threat: human digestion of sewage sludge. As the EPA explained, however, the 1985 profile was a preliminary assessment. Our task today is to evaluate the final rule based on its underlying, more detailed, assessment. If the final regulation of selenium is adequately supported on its own terms, any conflict with the earlier, preliminary assessment is not significant. Accordingly, we now turn to whether that condition--adequate support for the regulation--is satisfied. 44 With respect to the final regulation, Pueblo challenges the risk-assessment underlying the risk-based limits on selenium in Tables 1 and 2 as applied to Pueblo's land application practices. As explained above, the risk-based limit for selenium is derived from Pathway 3--human ingestion of sludge. Pueblo objects to the use of the Pathway 3 HEI--a child who ingests sewage sludge daily for up to 5 years--to regulate the application of sewage sludge to "public contact sites" to which children will not have access--"including all of the various land application sites utilized by Pueblo," such as highway medians, roadside cemeteries, golf courses, and industrial parks. Pueblo Brief at 14. 45 The EPA recognizes that public contact sites "include both those with 'a high potential for occupancy,' such as parks, and those with 'a low potential for occupancy,' including highway medians and roadside cemeteries." EPA Brief at 48-49. Nevertheless, it chose "to be conservative" and define the HEI based on sites with a high potential for occupancy. Id. at 49. See also 1 Technical Support Document at 5-360, reprinted in J.A. at 686. 46 The EPA has failed to demonstrate a rational relationship between its highly conservative exposure assumptions and the actual usage regulated by those assumptions. See Edison Elec. Institute v. EPA, 2 F.3d at 446. Indeed, the EPA has acknowledged the mis-fit, but argues that in a "rulemaking of staggering complexity, the Agency was not required to refine its analysis so precisely as to devise a separate exposure analysis for children who ingest sludge on highway medians or in cemeteries." EPA Brief at 49. Although the EPA is not held to a standard of precise refinement, it is held to one of rationality and it must supply a reasoned basis for its regulatory choices. If, as Pueblo's practices suggest, a significant proportion of sewage sludge application involves sites with low potential for public and child contact, then it is irrational, at least without further explanation, to sweep these applications willy-nilly into a category based on a high-child-exposure model. Accordingly, we remand the selenium limits in Tables 1 and 2 for further justification or modification. B. Site-Specific Variances 47 Pueblo also argues that the EPA's decision not to allow site-specific variances "effectively negated Pueblo's right [under the Administrative Procedure Act] to petition the Agency to amend or repeal the land application limitations for selenium." Pueblo Brief at 19. The absence of a variance procedure by which Pueblo could request an exemption from the requirements, however, has no bearing on Pueblo's right to petition the agency to amend or repeal its caps. The EPA was within its discretion in rejecting a variance procedure because "site-specific pollutant limits would have to be developed on a site-by-site basis for possibly thousands of land application sites." 58 Fed.Reg. 9309. Cf. Edison Elec. Institute v. EPA, 2 F.3d at 446 (upholding EPA's rejection of a variance mechanism). While a variance procedure might save a marginally overbroad general rule, the agency was under no general duty to establish such a procedure, and its reconsideration of the general rule on remand will presumably remove any need for an escape hatch. 48 V. LEATHER INDUSTRIES' CHALLENGES TO THE CHROMIUM CAPS 49 Leather Industries challenges the Table 2 risk-based pollutant limit of 3,000 kg/ha for chromium.26 This risk-based figure was derived from Pathway 8--Sewage Sludge -> Soil -> Plant--the most stringent pathway for chromium. Pathway 8 addresses the problem of phytotoxicity: when plants absorb certain quantities of certain metals their yield can be sharply reduced. The EPA determined that a pollutant would be capped at that concentration which evidence showed would create phytotoxicity effects leading to a more than 50% drop in plant growth.27 Leather Industries argues that the EPA does not have authority to regulate on the basis of phytotoxicity, and that, even assuming it has such authority, the resulting pollutant limit has insufficient evidentiary support. We conclude that the EPA has authority to protect against phytotoxicity, but that it lacks adequate support for its final limit. A. Phytotoxicity as a Regulatory Criterion 50 Leather Industries first argues that the EPA does not have statutory authority to regulate on the basis of phytotoxicity because reduced crop yield is a purely economic concern, not a "human health" or "environmental" concern. Leather Industries Brief at 10-11. Leather Industries did not pursue this claim in its reply brief or at oral argument, and we find the claim untenable. The EPA's mandate to establish standards for pollutants that "may be present in sewage sludge in concentrations which may adversely affect ... the environment," 33 U.S.C. Sec. 1345(d)(2)(D), surely encompasses the authority to protect crop yield, an indisputable aspect of the "environment." B. The Chromium Limit 51 Leather Industries offers a more compelling challenge to the quality of the data underlying the final chromium limit. Modelling the phytotoxicity pathway involves two steps: (1) determining the phytotoxicity thresholds--"the concentration of each metal in the tissue of each plant group ... associated with 50 percent reduction in biomass," ("Step 1"), 1 Technical Support Document 5-200, reprinted in J.A. at 657; and (2) determining the quantity of pollutant in the soil that would cause the plant to absorb that amount of pollutant ("Step 2"). 1. Step 1: Phytotoxicity Threshold 52 In the first step--determining the phytotoxicity threshold for chromium--the EPA relied on short-term laboratory studies to determine the concentration of pollutant in plant tissue that would reduce plant growth by 50%. As far as we can tell, the EPA had only one study relating to this step of the analysis for chromium, a 1975 study of corn grown in pots containing sludge-amended soil ("Mortvedt & Giordano Study").28 Leather Industries argues that the EPA improperly relied on this study because (1) some of its conclusions about the phytotoxic effects of chromium were based on experiments using hexavalent rather than trivalent chromium, and (2) the study assessed phytotoxicity using pot rather than field studies. 53 a. Trivalent vs. Hexavalent Chromium 54 Chromium can exist in two states, hexavalent and trivalent. With regard to risk to human health, only hexavalent chromium is toxic, and the EPA has "delisted" chromium in tanning industry waste because this chromium is in the trivalent form.29 Chromium in sewage sludge is also in the trivalent state, and the agency so assumed in this regulatory process. See 58 Fed.Reg. 9297. There are two complications, however, which may nevertheless make sewage sludge chromium an appropriate target of regulation. First, there is some evidence that trivalent chromium can oxidize to hexavalent chromium. Second, there is some evidence--which may be related to the oxidation possibility--that trivalent chromium can cause phytotoxicity in plants. 55 As to the first complication, there are several studies cited in the record showing that trivalent chromium can oxidize to hexavalent chromium, though the levels of conversion appear to be low. A survey of these studies led one scientist to conclude that a "[trivalent chromium]-containing sludge could release low levels of [hexavalent chromium] over a long-period of time."30 Because it is not now possible to estimate the extent of hexavalent chromium formation, that scientist recommended regulating all chromium--hexavalent and trivalent--alike.31 As to the second complication, the Mortvedt & Giordano study on which the EPA relied to determine the chromium phytotoxicity threshold found that trivalent chromium is less toxic to corn, but nevertheless causes some phytotoxicity.32 There is, then, enough genuine scientific debate regarding trivalent chromium's potential harm and its potential conversion to the hexavalent state to warrant significant discretion on the part of the agency in its choice to use data on the harm posed by hexavalent chromium to regulate trivalent chromium. 56 More important, however, from our reading of the underlying reports, it appears that to the extent that trivalent chromium is less toxic to plants than hexavalent chromium, it is not because plants can absorb trivalent chromium with no harm, but because trivalent chromium is less available for plant uptake. Thus, the hexavalent/trivalent distinction appears to be critical to Step 2, discussed below, but not to Step 1. The Mortvedt & Giordano study, for instance, explains that the lower toxicity of trivalent chromium "suggests that [trivalent chromium] may have been fixed by the soil in forms which were less available than [hexavalent chromium] to plants."33 The Peer Review Committee likewise explains that "[h]exavalent chromium is more soluble and more bioavailable for plant uptake than the trivalent chromium usually found in sludges and field soils."34 57 The relevant distinction between hexavalent and trivalent chromium is that trivalent chromium is less available for plant uptake. This characteristic--availability for plant uptake--is not relevant to Step 1. And in Step 2, discussed below, the EPA's protocol requires that the uptake-based cap be based on field studies of actual sewage sludge, so any observed uptake would necessarily be of chromium found in sludge, in whatever form. In other words, the apparent reason that trivalent chromium is less toxic to plants is that it cannot get into the plant tissue, not that it is harmless once it is in plant tissue. Therefore, we see no problem with using trivalent and hexavalent chromium data to determine that amount of chromium, once in, that is harmful, so long as there is data on trivalent or sewage sludge chromium getting in to the plant. As of now, there appears not to be, as we discuss below. 58 b. Pot v. Field Studies 59 Leather Industries also argues that the EPA's reliance on the Mortvedt & Giordano study was flawed because that study uses pot, rather than field, studies. This distinction too, however, is relevant to uptake, and thus to the second step, not the first. Pot studies test the growth of plants in pots containing actual sludge or soil with salt spikes. Many commenters urged to the agency that salt or pot studies "would drastically over-estimate plant uptake." 58 Fed.Reg. 9294. This is the case for salt studies because metal-containing salt spikes "are not bound to an organic matrix and are, therefore, more freely taken up by plant roots," and for pot studies because "pots tend to restrict the area of root growth and the small amount of contained soil tends to concentrate and retain the sewage sludge pollutants around the roots, thus accelerating uptake." Id. The EPA has acknowledged that salt and pot studies are inadequate to model plant uptake and has disclaimed their use for uptake analysis.35 The EPA did rely on pot studies for the first step, unrelated to uptake. In this context, we see no infirmity with pot studies, and Leather Industries has identified none. 2. Step 2: Plant Uptake 60 After arriving at a phytotoxicity threshold of 3.0 micrograms of chromium per gram of plant tissue, the EPA had to determine the soil concentration of chromium in sewage sludge that would cause plants to absorb chromium up to the phytotoxicity threshold. The EPA looked to field studies of corn grown on sludge-amended soil to make this determination. These field studies, however, provided no data on plant growth in soil with chromium levels in excess of 3,000 kg/ha. EPA Brief at 73. Moreover, the data the studies did provide indicated no risk of phytotoxicity in soils with up to 3,000 kg/ha of chromium. Indeed, the studies showed an inverse relation between soil concentration and plant concentration of chromium: the higher the soil concentration of chromium, the lower the plant concentration. As one study explains: "the probability of exceeding the threshold is greater for plants grown in soil not receiving any sewage sludge than for those grown in sludge-treated soils."36 61 Having no other data available on the connection between soil concentration and plant uptake, the EPA chose the 3000 kg/ha threshold. It explained that it chose this limit because it was "the upper boundary of the range for which EPA had data," and the EPA "had no data indicating that chromium loading rates in excess of 3000 kg/ha would be safe for plants." EPA Brief at 72. The EPA further justifies this decision by explaining that "[w]hile EPA believes that metals are bound to the sludge and thus relatively unavailable to be 'taken up' by plants, the understanding of this process is still developing." EPA Brief at 73-74. In the face of this uncertainty, it points to "data suggesting that chromium may not remain bound to the sludge at high loading rates." EPA Brief at 74. This data, however, is the Mortvedt & Giordano study, which, as explained above, used pot studies, and the EPA has disclaimed reliance on pot studies to model plant uptake.37 Under the EPA's own protocol, the Mortvedt & Giordano study cannot support any conclusions about plant uptake of chromium from sewage sludge amended soils, and thus cannot justify an otherwise unsupported cap premised on uptake-potential. 62 In sum, the EPA's relevant evidence (1) provided no data for chromium uptake at soil concentrations greater than 3000 kg/ha, and (2) showed no uptake danger at a soil concentration of 3000 kg/ha or at any other concentration. Indeed, it indicated a declining probability of plant uptake with increased soil concentration. Based on this data, the EPA chose as the ceiling chromium soil concentration 3000 kg/ha because that was the highest concentration for which it had data. While the EPA "may 'err' on the side of overprotection," it "may not engage in sheer guesswork." American Petroleum Institute, 665 F.2d at 1186-87. VI. ADDITIONAL CLAIMS 63 The AMSA challenges the EPA's classification of dedicated beneficial use sites as "surface disposal" rather than "land application," arguing that this classification is arbitrary and "promotes a negative public perception of dedicated sites as 'dumping grounds.' " AMSA Brief at 36. Dedicated beneficial use sites are sites "generally owned, operated, and controlled by, or are controlled under long-term leases to, the municipal sludge operator." 58 Fed.Reg. 9259-60. Although dedicated sites may be used "to produce crops, such as corn, which are sold as animal feed or for alternative fuel production," 58 Fed.Reg. 9260, the EPA did not classify dedicated sites as a type of land application. The EPA explains this decision on the grounds that dedicated sites involve the application of sludge "at greater than agronomic rates" and public access is generally strictly controlled, thus making it appropriate for other aspects of the regulatory regime to differ. 58 Fed.Reg. 9259. The EPA acknowledges that its "distinction is one of degree, since both land application sites and dedicated sites involve the placement of sewage sludge on the ground." EPA Brief at 40. Indeed, land reclamation sites, which also involve application at greater than agronomic rates, are apparently classified as land application sites in the final rule. See Sec. 503.11(n), 58 Fed.Reg. 9391. The EPA has not explained its reason for distinguishing between land reclamation sites and beneficial use sites. We note, however, that while reclamation sites generally receive only one application at greater than agronomic rates, beneficial use sites receive repeated applications. 64 The EPA's reason for distinguishing beneficial use sites from other land application practices is not entirely clear, but the fact that these sites receive repeated applications of sludge at greater than agronomic rates seems a plausible basis for distinction. Where the agency's line-drawing does not appear irrational and the AMSA has not shown that the consequences of the line-drawing are in any respect dire--the only harm it has claimed to identify from the classification involves unsubstantiated claims of potential public disfavor--we will leave that line-drawing to the agency's discretion. VII. CONCLUSION 65 In sum, we uphold the EPA's refusal to provide site-specific variances and its decision to classify dedicated sites as a type of "land disposal." We hold that the EPA has failed to demonstrate that the 99th percentile caps in Table 3 are based on risk, as required by the statute, and therefore remand those Table 3 caps. We also find that the EPA failed to establish a rational relationship between the assumed application rate and site life underlying the risk-based concentration caps in Table 3 and the actual usage of heat-dried sludge, which is regulated by Table 3. As applied to heat-dried sludge, we remand those caps as well. We further hold that the EPA failed to provide a rational basis for applying the risk-based cap on selenium based on high occupancy exposure assumptions to public contact sites with low potential for occupancy. Accordingly, we remand the Table 1 selenium cap as applied to public contact sites with low potential for occupancy. Finally, we hold that the EPA failed to provide evidentiary support for its Table 2 cumulative pollutant limit on chromium, and remand that limit as well. 66 So ordered. 1 Office of Water Regulations and Standards, U.S. EPA, Summary of Environmental Profiles and Hazard Indices for Constituents of Municipal Sludge 1 (1985), reprinted in J.A. at 889 2 Elsewhere in the record, the EPA uses the figure of 180 for the number of POTWs at which it performed sampling and analysis. 58 Fed.Reg. 9268. We are not certain which, in fact, is correct 3 1 U.S. EPA Technical Support Document for Land Application of Sewage Sludge 6-17 (1992), reprinted in J.A. at 728 ("Technical Support Document") 4 Bulk, not packaged, sewage sludge applied to a lawn or home garden must comply with the Table 3 "clean sludge" regulations. See Sec. 503.13(a)(3), 58 Fed.Reg. 9391-92. This provision is not at issue 5 From our reading of the regulations, it appears that if both "clean" and non-"clean" sludge are applied to land, only the pollutant contribution from the non-"clean" sludge must be recorded and controlled 6 See 1 Technical Support Document at 6-18, reprinted in J.A. at 729 7 Id. at 6-7, reprinted in J.A. at 718 8 For nickel, the risk-based and 99th percentile caps are identical 9 The AMSA also argues that the 99th percentile caps are in conflict with the section of the statute authorizing removal credits. We find this particular tack meritless. Under the removal credit system, POTWs may issue removal credits to indirect dischargers--the industrial facilities that discharge waste to the POTWs--in those cases where the POTWs perform treatment that would otherwise be the responsibility of the indirect dischargers. These removal credits prevent double treatment by the POTWs and the indirect dischargers. Under the statute, removal credits are only available if they do not prevent the ultimate sewage sludge from complying with the regulations at issue, the sludge use and disposal regulations. See 33 U.S.C. Sec. 1317(b). The AMSA argues that "removal credits are consistent with the national policy that the discharge of toxic pollutants in toxic amounts be prohibited." AMSA Brief at 23 (emphasis in original). This argument adds nothing to its position: to the extent that the sludge regulations are valid, the removal credits can be conditioned on those sludge regulations. The important question is whether the sludge regulations are valid on their own terms 10 There is no indication in the record of the regulatory or statutory basis for this peer review committee 11 Memorandum of July 24, 1989, reprinted in J.A. at 30 12 Coop. State Research Serv. Technical Comm. W-170, Peer Review: Standards for the Disposal of Sewage Sludge 86-87 (1989), reprinted in J.A. at 60-61 ("Peer Review Report") 13 Id. at 86, reprinted in J.A. at 60 14 Clearly, the EPA's mandate to establish standards "adequate to protect public health and the environment from any reasonably anticipated adverse effects of each pollutant," 33 U.S.C. Sec. 1345(d)(2)(D), does not give the EPA blanket one-way ratchet authority to tighten standards. Cf. Contract Courier v. Research & Special Programs Admin., 924 F.2d 112, 115 (7th Cir.1991) ("Statutes do more than point in a direction, such as 'more safety.' They achieve a particular amount of that objective, at a particular cost in other interests. An agency cannot treat a statute as authorizing an indefinite march in a single direction.") 15 Leather Industries challenges the 99th percentile cap for chromium on the grounds that the underlying data did not include any POTW that accepts significant amounts of wastewater from a leather tannery. Leather Industries Brief at 18 n. 10. Specifically, Leather Industries states that while the highest reported level of chromium concentration from the NSSS is 3,750 mg/kg, sludges from the POTWs receiving significant amounts of wastewater from tanneries have chromium concentrations in excess of 30,000 mg/kg. Leather Industries Brief at 18 n. 10. The EPA has not contested this claim Pueblo argues that the 99th percentile cap for selenium is arbitrary because it "has penalized communities in Western states where naturally occurring concentrations [of selenium] are high." Pueblo Brief at 17. Because we have remanded the 99th percentile caps on chromium and selenium on other grounds, we do not reach these claims. 16 These assumptions were used to generate all the risk-based concentration caps--those in Table 1 as well as those in Table 3. The AMSA has only challenged Table 3, so we do not address the use of these assumptions in Table 1 17 Comments of Milwaukee Metropolitan Sewerage District at 2 (Aug. 3, 1989), reprinted in J.A. at 160 18 Comments of Milwaukee Metropolitan Sewerage District at 19 (July 18, 1989), reprinted in J.A. at 151 19 We note that for packaged sewage sludge, failure to meet the Table 3 caps sends the sludge to Table 4. The only additional burden imposed by Table 4 is that the producer of the sludge must provide a label with the actual application rate that will ensure that the annual cumulative limits are not exceeded, see supra part II.B. Thus, with respect to packaged sewage sludge, the excessively conservative application assumptions may be quite easily "cured" with a simple label as to actual safe application rates Where the assumed rates underlying Table 3 are inaccurate with respect to packaged heat-dried sludge, then, the producer need only supply its own label with the rates that are accurately calculated to protect safety. No other burden is imposed on the producer. Tables 3 and 4 may well be a rational way to accommodate the actual application rates of packaged heat-dried sludge. We cannot tell, however, if this is the purpose of the system. Moreover, to the extent that POTWs produce one type of sludge product for packaged and bulk use, they would not be greatly helped by relief only for the packaged use. If they produced sludge that was not "clean," they could relatively easily label it for packaged sale, but bulk use would still be considerably more burdensome. We invite the agency to elaborate on these issues as it justifies or reconsiders the risk-based caps in Table 3. 20 Pathway 1, for instance, is "Sewage Sludge -> Soil -> Plant -> Human." The EPA describes all the pathways at 58 Fed.Reg. 9284-88 21 The HEI for Pathway 1 on nonagricultural land, for instance, is "a person who regularly harvests edible wild plants ... from forests or range lands that have been amended with sewage sludge." 1 Technical Support Document at 5-4, reprinted in J.A. at 613 22 See Office of Water Regulations and Standards, U.S. EPA, Environmental Profiles and Hazard Indices for Constituents of Municipal Sludge: Selenium (1985), partially reprinted in J.A. at 258-267 23 Id. at 2-2, reprinted in J.A. at 264 24 See id. at 2-1 to 2-2, reprinted in J.A. at 263-64 25 Id. at i, reprinted in J.A. at 259 26 The Table 2 CPLR is the basis for the risk-based concentration limit as well, which is used in Table 1 27 The EPA used plant growth as a proxy for crop yield. This has not been contested 28 See J.J. Morvedt & P.M. Giordano, Response of Corn to Zinc and Chromium in Municipal Wastes Applied to Soil, 4 J. ENVTL. QUALITY 170 (1975), reprinted in J.A. at 906 29 See R.J. Bartlett, "Chromium," in Penn. Agric. Experiment Station, Penn. State Univ., Criteria and Recommendations for Land Application of Sludges in the Northeast 49 (1985), reprinted in J.A. at 930 ("Bartlett") 30 Id. at 50, reprinted in J.A. at 931 31 See id. at 50-51, reprinted in J.A. at 931-32 32 See Mortvedt & Giordano at 173, reprinted in J.A. at 909 33 Mortvedt & Giordano at 173-74, reprinted in J.A. at 909-10 34 Peer Review Report at 46, reprinted in J.A. at 56 35 See 1 Technical Support Document at 5-200, reprinted in J.A. at 657 36 A.C. Chang et al., A Methodology for Establishing Phytotoxicity Criteria for Chromium, Copper, Nickel, and Zinc in Agricultural Land Application of Municipal Sewage Sludges, 21 J. ENVTL. QUALITY 521, 529 (1992), reprinted in J.A. at 1039 37 The EPA also mentions two data points showing a yield reduction of plants grown in soil with chromium levels of 1,518 kg/ha and 3,036 kg/ha. See 2 Technical Support Document at F-46 to F-47, reprinted in J.A. at 818-19 (data points 285 and 294). As far as we can tell, however, this data involves plants grown in soil containing eight different heavy metals, and does not isolate the effect of chromium. Indeed, the EPA's cursory mention of these data points suggests that they could not have played any prominent role in its final regulatory choice

822 S.W.2d 103 (1991) In the Matter of B.R., J.L.R., D.R., R.R., C.R., and LJ.R., Children. No. 12-90-00243-CV. Court of Appeals of Texas, Tyler. October 18, 1991. Opinion on Rehearing February 11, 1992. *104 Mary Lou Tevebaugh, Longview, for appellant. Janie Johnson, Longview, for appellee. COLLEY, Justice. On June 20, 1990, following a bench trial, the court signed a judgment terminating the parent-child relationship between appellant Mary Rogers and her six children,[1] identified by initials in the caption. The Texas Department of Human Services (hereinafter "DHS"), by its live pleadings sought termination of parental rights over the children under Tex.Fam.Code Ann. § 15.02(1)(D) and (E)(Vernon Supp.1991) (hereinafter "Section 15.02(1)(D) and (E)"). As requested by appellant, the trial court made separate findings of fact and conclusions of law which are a part of this record. However, the trial court's findings of facts contain no express finding that the appellant "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the [children]." See Section 15.02(1)(E). Although the judgment operates to terminate the parental rights of appellant and her husband, Leonard Rogers, only appellant has sought review of that judgment. Appellant, in her points of error one through four, challenges the factual and legal sufficiency of the evidence to support the trial court's finding of facts numbers 10 through 17. (First Issue) By her points of error numbers five and six, appellant challenges the factual and legal sufficiency of the evidence to support the trial court's finding of fact number 18. (Second Issue). We will overrule these points of error and affirm the judgment. Appellant, under her First Issue, argues that the termination can only be upheld by findings of fact bearing on the grounds for termination provided by section 15.02(1)(D). She contends, in this regard, that there is "no evidence that the environment of the children endangered their physical or emotional well-being." She points out that there "are no findings concerning the suitability, or lack thereof, of the children's environment." (See Appellant's Brief at 11, *105 12.) (Emphasis ours.) In so contending, the appellant relies on such cases as In the Interest of A.C. and L.C., 758 S.W.2d 390 (Tex.App.—Fort Worth 1988, no writ); G.M. v. Texas Department of Human Resources, 111 S.W.2d 185 (Tex.App.—Austin 1986, no writ); and Stuart v. Tarrant County Child Welfare Unit, 677 S.W.2d 273 (Tex.App.—Fort Worth 1984, writ ref'd n.r.e.). The rule announced in Stuart, In the Interest of A.C. and L.C., and G.M., as expressed in G.M. is that: Termination under [section 15.02(1)(D)] requires proof that [a terminated parent] left [the child] in a physical environment which was dangerous to the child's physical or emotional well-being. The subsection refers only to the acceptability of the child's living conditions, and does not concern the conduct of the parents toward the child. G.M., 111 S.W.2d at 187-188 (citations omitted, emphasis added). This rule apparently had its genesis in In the Interest of T.L.H., 630 S.W.2d 441, 445-446 (Tex.App.—Corpus Christi 1982, writ dism'd), wherein the court ultimately concluded, "that subsection D can be utilized as a ground for termination ... only if there is clear and convincing evidence that the child was placed in conditions or surroundings dangerous to his or her physical or emotional well-being; parental conduct alone is insufficient under subsection D." Id. (emphasis in original). A close reading of G.M. shows that the appellee, the Texas Department of Human Services, attempting to uphold a termination judgment, argued that the evidence was sufficient for that purpose because it revealed that appellant allowed the children to "remain" in foster care in a home selected by appellee, thereby leaving the child "in an environment which endangered the child's well-being." G.M., 111 S.W.2d at 188. According to a case worker witness in that case, the "negative effect[s]" of that placement included the "temporary nature" of the home and the "unclear roles of the foster parents." Id. The Austin court correctly rejected that argument and found the evidence to be legally insufficient to support termination under section 15.-02(1)(D). The Fort Worth Court of Appeals in the case of In the Interest of A.C. and L.C., was confronted with a "no evidence" challenge regarding the trial judge's findings (incorporated into the judgment) that grounds for termination existed under sections (1)(D) and (E). After finding that "there is some evidence to prove a violation of section 15.02(1)(E)" the court, by way of dicta, went on to say that there was "no evidence of a violation of [subsection] (D)" because that subsection "goes to the environment that the child is in." Id. at 393. After that, the court proceeded to explain the last quoted language by observing that "[t]here is no evidence here that the child's environment (as opposed to the conduct of [the child's] half-brother) endangered [the child's] physical or emotional well-being." Id. On the other hand, the Amarillo Court of Appeals in a case styled, In the Interest of L.S., P.P., G.S. and M.S., 748 S.W.2d 571 (Tex.App.—Amarillo 1988, no writ), found evidence that appellant's live-in boyfriends had repeatedly committed sexual abuse of appellant's four daughters and that appellant had knowledge of such abuse but allowed the children to remain in her home with the abuser, was legally and factually sufficient to sustain a jury finding under section 15.02(1)(D). Id. at 575. In Smith v. Sims, 801 S.W.2d 247, 251 (Tex.App—Houston [14th Dist] 1990, no writ), the court, in construing section 15.-02(1)(D), held that when the evidence shows that the children are subjected to a "potentially violent confrontation" (there, a SWAT Team) then that establishes "a dangerous environment" sufficient of itself "to satisfy the requirements of 15.02(1)(D)." Id. We perceive no sound reason to judicially impose restrictions on the meaning of the plain language of section 15.02(1)(D). That statute reads: A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that: (1) the parent has: * * * * * * *106 (D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangers the physical or emotional wellbeing of the child; .... (Emphasis added.) It is illogical to reason that inappropriate, debauching, unlawful, or unnatural conduct of persons who live in the home of a child, or with whom a child is compelled to associate on a regular basis in his home, are not inherently a part of the "conditions and surroundings" of that place or home under section 15.02(1)(D). The provisions of that statute are manifestly designed to protect children against just such an environment. Therefore, we respectfully decline to follow the rule laid down in G.M., In the Interest of A. C, and in Stuart, but join with our brethren on the Amarillo Court and the Houston 14th Court in their conclusions that abusive or violent conduct by a parent or other resident of a child's home can produce an environment that endangers the physical or emotional well-being of a child within the ambit of section 15.-02(1)(D). See also Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678-679 (Tex.App.—Fort Worth 1984, writ ref'd n.r.e.). Consequently, we reject appellant's argument to the contrary, and her argument that a "strict construction" of section 15.02(1)(D) and (E) calls for a construction of those subsections different from the construction we have rendered here. We respect the declarations in Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985), that involuntary termination of parental rights implicates grave constitutional issues; however, the rule of "strict construction" does not require a court to ignore the plain meaning of the statute under consideration. We now move on to a discussion of the evidence in this case. In so doing, we acknowledge the standard of proof that the evidence offered to support termination of parental rights must be clear and convincing before a court may terminate parental rights. Holick v. Smith, 685 S.W.2d at 20. Furthermore, in reviewing the evidence, we will apply the appropriate standard of review prescribed for "no evidence" and "insufficient evidence" points. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), and Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965). The testimony in this case, together with the contents of that certain "Court Report for Review" dated May 3, 1990, constitutes clear and convincing evidence which, in our opinion, is legally and factually sufficient to support the trial court's finding of facts numbers 17 and 18. The record reveals that appellant and her husband, Leonard Rogers, were the parents of six children. During the testimony of Renee Smith, a Child Protective Services Specialist III (employee of DHS), a document authored by the witness, designated "Court Report for Review," was introduced into evidence by DHS over appellant's objection that the report contained hearsay. The actual objection was: "I would make objections to the hearsay portion of the report, other than that, I would have no objection." The court overruled that objection, and we think correctly so, because the objection is non-specific and therefore insufficient. Moreover, appellant makes no complaint of that ruling in this Court. Hence, we will consider the contents of the report as competent evidence properly before the court, to be treated in accord with Tex.R.Civ.Evid. 802 and 803(6). Suffice it to say that this record shows that several of the children were sexually abused by their father, Leonard Rogers, and that abuse was properly reported and documented. It is undisputed[2] that the father's sexual abuse of his children began with his abuse of B.R. in 1981. The children at the time of the trial, ranged in age from 17 years (B.R.) to 7 years (L.J.R.). On October 3, 1988, the two oldest children, B.R. and J.L.R., were placed in the temporary managing conservatorship of DHS, removed from appellants' home, and placed with relatives. On January 17, 1989, DHS *107 was appointed temporary managing conservator of the remaining children. Those children were then taken into the possession of DHS. Shortly thereafter, appellant and these four children became residents of a shelter for abused families in Longview; however, appellant and her four children thereafter returned to their own home. At that particular point in time, the father was not living with them. On April 11, 1989, appellant telephoned DHS and requested that these four children be placed in foster care because she had been evicted from her apartment. DHS complied with the request, and the four younger children were placed in foster care homes at that time. In the interim, appellant had resumed her relationship and association with her husband. The evidence shows that she moved out twice but each time returned to consort with him again. According to the testimony of Renee Smith, appellant and her husband were not residing in Longview at the time of the trial, and were, perhaps, living in the State of Arkansas. C.R., a female child revealed that she was sexually abused by her father in 1989, and at that time the appellant was advised of the abuse, but refused to believe that her husband had sexually abused the child C.R. It is undisputed that neither appellant nor the father of the children exercised visitation rights with any of the children after October of 1989. After our careful review of this record, we are persuaded that clear and convincing evidence exists that is both legally and factually sufficient to support the finding of facts numbers 17 and 18.[3] We also conclude that neither finding is so contrary to the overwhelming weight and preponderance of the clear and convincing evidence as to be manifestly wrong or unjust. We overrule appellant's points of error and affirm the judgment. OPINION ON REHEARING Appellant asks us to follow the opinion of In the Interest of A.C. and L.C., 758 S.W.2d 390 (Tex.App.-Fort Worth 1988, no writ); we still find it illogical and decline to follow it. Further, appellant urges us to reconsider her no evidence point in light of our interpretation of Tex.Fam.Code Ann. § 15.02(1) (Vernon Supp.1991). We find there is legally and factually sufficient evidence that the appellant knew of sexual abuse of her children in October 1988 when the Department of Human Services was appointed temporary managing conservator of two of her children and she kept the remaining children in that environment until the State intervened in January 1989. Therefore, a finding that she knowingly placed or allowed her children to remain in conditions or surroundings that endangered them is supported by the record. The appellant's motion for rehearing is overruled. NOTES [1] B.R., the oldest of the children has since become 18 years of age. Hence, these proceedings are moot as to her. [2] Neither appellant nor her husband appeared personally at trial, and presented no evidence in opposition to the evidence of the petitioner. [3] Finding of fact number 17 reads: "Respondent, Mary Rogers knowingly allowed the children to remain in conditions or surroundings which endangered their physical and emotional well-being." Finding of fact number 18 reads: "It is in the best interest of the children that the parent-child [relationship] ... between Respondent, Mary Rogers, and the children be terminated."

Case: 12-41415 Document: 00512343609 Page: 1 Date Filed: 08/16/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 16, 2013 No. 12-41415 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. LORENZO NAVARRO-GARCIA, also known as Lorenzo Garcia, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:12-CR-500-1 Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM:* Lorenzo Navarro-Garcia (Navarro) appeals the 70-month sentence imposed by the district court following his guilty plea to being found knowingly and unlawfully present in the United States after having been deported. He argues that the sentence was procedurally unreasonable because the district court mistakenly failed to fulfill its intention to award him a downward variance beyond the one-level variance relating to his acceptance of responsibility. * 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: 12-41415 Document: 00512343609 Page: 2 Date Filed: 08/16/2013 No. 12-41415 Navarro acknowledges that because he failed to object in the district court to the error he now raises, his argument is reviewed for plain error. Under plain error review, Navarro must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. “This court has held that questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011) (internal quotation marks and citation omitted). Divining the district court’s intent in selecting a sentence arguably is a question of fact that could have been resolved if a proper objection had been made, and as such, it could never be plain error. In any event, Navarro has failed to show that the district court made a clear or obvious error in selecting his sentence. See Puckett, 556 U.S. at 135. This is because Navarro has not shown that his interpretation of the district court’s remarks at the sentencing hearing is the only plausible interpretation of those remarks. In light of Navarro’s failure to show an error that is plain, we do not examine the remaining elements of the plain error test. AFFIRMED. 2 

809 F.2d 791 #Edwards, In re 86-1339 United States Court of Appeals,Federal Circuit. 12/15/86 PTO Affirmed 1 --------------- # Denotes patent appeals.

482 S.W.2d 640 (1972) Ex parte Harvey James McMILLAN. No. 45830. Court of Criminal Appeals of Texas. July 12, 1972. *641 No attorney on appeal. Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State. OPINION DALLY, Commissioner. This appeal is from an order in a habeas corpus proceeding remanding appellant to custody for extradition to the State of South Dakota. At the habeas corpus hearing the Executive Warrant of the Honorable Preston Smith, Governor of the State of Texas, was introduced, along with all of the supporting papers. The appellant, testifying in his own behalf, stated that he and his mother had lived in Sioux Falls, South Dakota, in early January of 1971. He was not certain of the date but he had left the State of South Dakota with his mother to join his father, who was in the military service in El Paso, prior to the 16th day of January, 1971, the date on which it was alleged the offense occurred. It is the appellant's contention that he should not be remanded for extradition because he was not in the State of South Dakota on the date alleged to have been the day the crime was committed and for the additional reasons that he is not charged by a "proper accusation" and the evidence would not show an act which would be a violation of the laws of the State of South Dakota. The appellant's testimony that he was not in the demanding state on the date of the alleged offense is insufficient to overcome the prima facie case established by the Governor's Warrant that he was in fact the same individual sought by the South Dakota authorities and that he was in the demanding state at the time the offense was alleged to have been committed. Ex Parte Binette, 465 S.W.2d 373 (Tex.Cr. App.1971); Ex Parte Harvey, 459 S.W.2d 853 (Tex.Cr.App.1970); Ex Parte Sutton, 455 S.W.2d 274 (Tex.Cr.App.1970); Ex Parte Buel, 468 S.W.2d 385 (Tex.Cr.App. 1971); and Delgado v. State, 158 Tex.Cr.R. 52, 252 S.W.2d 935 (1952). In an extradition proceeding the Texas courts are not called upon to decide whether or not the demanding state may prosecute the accused on the basis of the supporting papers standing along. Ex Parte Beckham, 468 S.W.2d 446 (Tex.Cr.App. 1971); Ex Parte Posey, 453 S.W.2d 833 (Tex.Cr.App.1970) and Ex Parte Clubb, 447 S.W.2d 185 (Tex.Cr.App.1969). The guilt or innocence of the appellant is not an issue to be determined in the asylum state in extradition proceedings. Ex Parte Bacquet, 469 S.W.2d 578 (Tex.Cr.App.1971); Ex Parte Sutton, supra. The Executive Warrant introduced in the proceedings appearing to be regular, the order remanding appellant to custody for extradition is affirmed. *642 No motion for rehearing will be entertained or filed with the clerk without leave of the court first being obtained after good cause has been shown. Opinion approved by the Court.

158 Cal.App.2d 785 (1958) PATRICK THOMAS HANCOCK et al., Appellants, v. HUGH M. BURNS, Individually and as Chairman of the Senate Fact Finding Committee on Un-American Activities et al., Respondents. Civ. No. 16902. California Court of Appeals. First Dist., Div. One. Mar. 28, 1958. Albert M. Bendich, Lawrence Speiser, Rubin Tepper and Edward F. Newman for Appellants. Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, Raymond M. Momboisse, Deputy Attorney General, Ralph N. Kleps, Legislative Counsel, Charles W. Johnson, Chief Deputy, Melvin Faulkner and Sheehan & Wiseman for Respondents. McMURRAY, J. pro tem. [fn. *] The four plaintiffs filed a complaint against the several named defendants in their individual *787 capacities and as members of "The Senate Fact Finding Committee on Un-American Activities" (a California Legislative Committee) except in the case of Hugh M. Burns who was sued individually and as chairman of said committee and Richard E. Combs who was sued individually and as chief counsel for said committee. Each plaintiff sued for the violation of rights common to all plaintiffs and alleged in the complaint that the same right to relief arose out of the same series of acts of the defendants therein named. Each plaintiff alleged employment by the Pacific Gas and Electric Company in the following respective employments: meter reader, apprentice electrician, cable splicer and power lineman; and each alleged different damages for the injuries sought to be alleged in the complaint. Other than these differences, the causes of action sought to be alleged by plaintiffs were identical. Each plaintiff alleged that the respective defendants were chairman, members, and chief counsel of the named committee at all times mentioned in the complaint; each plaintiff alleged his employment by the Pacific Gas and Electric Company in his particular capacity and alleged that he "always conducted himself in an efficient and punctual manner and was deservedly held in great esteem and credit by his employer and those with whom he worked. That by means of such employment, plaintiff daily acquired divers great gains, profits and emoluments to the support and maintenance of himself and his family and the great increase of his future." Each plaintiff alleged that at a subcommittee meeting on August 10, 1953, after being subpoenaed, he was asked questions by defendants Burns, Thompson, Coombs, and Desmond as members and defendant Combs as chief counsel, of the said committee and that the said plaintiffs and each of them relying on their rights and privileges under the Constitutions of the United States and of the State of California, including the right not to be witnesses against themselves as provided in the Fifth Amendment of the United States Constitution, refused to answer questions concerning their political beliefs, associations and affiliations. Each plaintiff alleged that subsequent to said hearing the subcommittee and said defendant committee and the defendants individually and as chairman, members, and chief counsel for said committee "did wilfully, wrongfully and maliciously recommend that the said Pacific *788 Gas and Electric Company discharge the plaintiffs and each of them and did wilfully, wrongfully and maliciously induce the said Company to discharge plaintiffs for the plaintiffs' alleged refusals to cooperate with said Committee and on the grounds that the plaintiffs were poor security risks. That said defendant Committee and defendants Burns, Coombs, Desmond, McCarthy and Thompson, individually and as members of said Committee, and defendant Combs, individually and as chief counsel of said Committee, have no authority by reason of legislative action or authority, or by law or custom to make such recommendations nor to induce said Company to discharge the plaintiffs, and that such actions on the part of the defendants were not within the sphere of any legitimate legislative activity. That said recommendations and inducements were made for the sole purpose of injuring the plaintiffs in their employment and the divers great gains, profits the plaintiffs would accrue from their continued employment with said Company." Each plaintiff alleged that the Pacific Gas and Electric Company on August 14, 1953, acting solely on the basis of the above stated recommendations and inducements, discharged the plaintiffs and each plaintiff further alleges that Pacific Gas and Electric Company thereafter notified the union to which plaintiffs belonged to the effect that said company was acting solely on the basis of the above stated recommendations and inducements in discharging said plaintiffs. A copy of the notification from the company to the union is incorporated by reference in each count of the complaint. Each plaintiff alleged that he was ready, willing and able to resume his employment for the company. Each plaintiff alleged "[t]he plaintiffs are not potential saboteurs, security risks, nor are they unfit for continued employment by said Pacific Gas and Electric Company. The plaintiffs are loyal citizens of the United States of America and would not commit any action to hurt the security of said nation." Each plaintiff also alleged that the acts and things complained of were a violation of plaintiffs' rights under the Constitution and laws of the United States and the Constitution and laws of the State of California. A demurrer was interposed to the above complaint. Defendants annexed to their demurrer a copy of Senate Resolution Number 127, as amended, relative to creating the Senate Fact Finding Committee on Un-American Activities. The demurrer was sustained without leave to *789 amend and judgment was entered in favor of defendants. From this judgment the plaintiffs appeal. [1a] Appellants here contend that their complaint sufficiently states a cause of action in tort for wrongful inducement of a breach of contract; that the complaint does not contain facts either on its face or from facts of which judicial notice must be taken which show that respondents' conduct was privileged; and that defendants were not protected by the doctrine of sovereign immunity, and ask that judgment of dismissal entered on the demurrer sustained without leave to amend be reversed. Respondents contend that the demurrer was properly sustained without leave to amend because the lower court, having taken judicial notice of certain facts which, when read with the complaint, disclose the following defenses: absolute privilege for legislative acts within the sphere of legislative authority; qualified privilege for fair and true reports of the proceedings of a public meeting lawfully convened for a lawful purpose and open to the public; privilege to induce a breach of contract under section 767 of the Restatement of Torts (social interest to be protected; relationship of the parties); and privilege to induce another to stand upon his legal rights. They also urge that allowing a cause of action for wrongful inducement to breach a contract under the facts here presented would destroy the immunity given public officials when acting in their official capacity and mention that a judgment should not be reversed to permit recovery of nominal damages. [2] At the outset, it may be said that in this state a cause of action may lie for wrongfully inducing one to breach a contract of employment if such act is not protected by some privilege or immunity. (Imperial Ice Co. v. Rossier, 18 Cal.2d 33 [112 P.2d 631].) The principal question before this court, therefore, is whether or not, under the facts stated in the complaint, defendants may rely on a privilege for making a communication such as is here alleged or whether they may assert an immunity to suit for damages by reason of their status as legislators. [3] Although it is often stated that in considering a demurrer a court is bound to accept the truth of the allegations thereof, this statement may, in certain instances, be modified where, by the nature of the pleading, the court is apprised of the existence of a fact or facts of which it is bound to take judicial notice under the laws of this state. In 39 California *790 Jurisprudence 2d, section 22, under the title "Facts Judicially Noticed" it is said: "... In determining the sufficiency of a pleading, it may be read as though it included all such facts, though not pleaded, and even when the pleading contains an express allegation to the contrary. But the general rule of pleading that a demurrer admits the facts pleaded has no application to facts of which the court may take judicial notice. Allegations contrary to facts which the court may judicially notice are not admitted by demurrer, but must be disregarded and treated as a nullity." The complaint here containing, as it does, a reference to Senate Resolution Number 127 would appear well within this rule. The trial court was bound to consider the contents of this Senate resolution. [4] Furthermore, it is well settled that a demurrer does not give statements of contentions and conclusions alleged in a complaint the status of admitted facts (Howard v. City of Los Angeles, 143 Cal.App.2d 195 [299 P.2d 294]), nor does it admit the deductions the pleader draws from the facts alleged, nor does it admit allegations of conclusions of law. The allegations contained in the complaint before us relative to the capacity in which defendants here acted is a conclusion of law. (See Jackson & Perkins Co. v. Byron- Bethany Irr. Dist., 136 Cal.App. 375 [29 P.2d 217, 30 P.2d 516].) Neither does the use of the words "wilfully, wrongfully and maliciously" add to the pleadings except as they may convey a sense of outrage on the part of plaintiff. The allegation that the defendants had no authority to make such recommendations is a conclusion as is the statement that defendants' acts were not within the sphere of any legitimate legislative activity. The allegation that an act was done maliciously has been held to be a conclusion (Locke v. Mitchell, 7 Cal.2d 599 [61 P.2d 922]). [5] It is a familiar rule in this state that the right to amend a complaint after a demurrer is sustained should not be lightly denied (Romano v. Wilbur Ellis & Co., 82 Cal.App.2d 670 [186 P.2d 1012]). [6] It is, however, proper to sustain a demurrer without leave to amend when the complaint cannot be amended to state a cause of action. The appellants ably and forcefully contend that the mere fact that some of the complaint is based upon conclusions does not justify the ruling of the court below and state that the real question here presented is whether respondents may claim that they had a privileged relationship with Pacific Gas *791 and Electric Company to induce a breach of contract between that company and appellants. [1b] The respondents urge that the complaint, when read in conjunction with the Senate resolution creating the committee, discloses that respondents were acting under color of their legislative authority and were immune from civil liability. The contents of Senate Resolution Number 127 are sufficient to constitute the committee as a committee of that body as expressly authorized by our state Constitution in article IV, section 37. The committee, by this resolution, is created and authorized and directed to investigate, ascertain, study and analyze all facts relating directly or indirectly to certain outlined un-American activities. The committee, by this resolution, is also empowered and directed in paragraph 5(d) thereof "[t]o report its findings and recommendations to the Legislature and to the people from time to time and at any time, not later than herein provided." The argument of appellants as to the possible immunity of defendants for the acts here complained of may be summarized as contending that the respondents may not avail themselves of any sovereign immunity since, by exceeding the sphere of proper legislative power, the defendants have lost the right to claim such immunity. There is no question that article IV, section 11, of our state Constitution, providing for legislators' privilege from arrest does not here apply, nor is it here involved. Appellants further urge that by the demurrer here interposed the respondents waived any defense which they might have upon this ground as this demurrer was in fact a general appearance. This latter contention would seem to be more sophistic than real. The first ground of demurrer stated is that the court has no jurisdiction of the defendants or any of them or of the subject matter of the action. Appellants suggest that, even by reading the complaint in conjunction with Senate Resolution Number 127, it cannot be assumed that the defendants did not exceed the scope of legislative authority. While Senate Resolution Number 127 does not, nor could it, authorize the commission of a tortious act, nevertheless, it does establish a committee of the state Senate authorized to act as an official adjunct of that body. Such committees are expressly authorized by our state Constitution in article IV, section 37. Therefore, by reading the Resolution in conjunction with the complaint, it becomes apparent that the *792 conjunctive pleading of respondents' status (as to respondents' having acted both as committee members and as individuals in doing the acts here complained of) must be grounded on reasoning that by going outside the legislative sphere the defendants were stripped of any legislative immunity and stand before the court as individuals. This theory of the evaporative quality of legislative immunity, by its very statement, discloses its own vice. If government, operating through the individuals who form it, is afforded immunity from private suit only when its actions are beyond any question, and loses that immunity upon mere allegation of improper motives or unlawful acts in a complaint seeking damages, then those persons who form government are subject to the threat of personal liability in any matter in which their discretion is exercised. The fact that a legislative committee erroneously exercised powers, in a mistaken belief that it has such powers, would immediately subject its members to the harassment of litigation. What would a logical extension of this rule lead to so far as the judiciary is concerned? Would a judge who mistakenly assumed jurisdiction in a proceeding be liable to personal suit by an aggrieved party litigant who merely alleged wilfullness, wrongfulness and malice? Would not such a rule require the examination of the motives as well as the propriety of all governmental actions by our courts? We think so. The basic principle of separation of powers which is one of the bases for our entire form of constitutional government would be diluted to a point where the judicial branch, because of artful allegations in a complaint, would be required to reexamine every act of the executive and legislative branches which had an adverse effect upon any individual. Granting that the courts have the privilege and the duty of protecting the personal civil rights of the citizens of this country from abuse, nevertheless, when the enforcement of such personal civil rights results in an erosion of the government which alone can guarantee such rights, the obligation to society as a whole may dictate that the individual forego personal recovery for injury suffered so that government may continue. It has often been said that when elected officials so conduct themselves as to indicate a lack of essential obligation to their responsibilities there are remedies available to the electorate which can correct these abuses; also the power of *793 impeachment still exists. "The Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action and, ultimately, on the vigilance of the people in exercising their political rights." (Colegrove v. Green, 328 U.S. 549, 556 [66 S.Ct. 1198, 90 L.Ed. 1432].) It will no doubt be argued that, by holding the action here taken by the committee as within the protection afforded by legislative immunity, the members of such a committee could commit any tortious act by claiming it to be within the same rule. The argument would, however, fail. Were the committee or its members charged with the commission of some bodily injury inflicted on another in the course of conducting their hearings, such act could not reasonably be urged to come within the immunity here stated, as the mere recitation of the infliction of bodily harm is a statement of an act which by no reasonable means could be encompassed by the immunity. The act here complained of is one which was committed by the use of the ordinary means adopted by such committees in reporting their findings and conclusions; namely, the preparation and forwarding of a written communication. One of the basic foundations of our constitutional government is to be found in the separation of powers. This doctrine has been recognized as essential to a free form of government wherein public officers may perform their duties untrammelled by fear of sanction in the form of personal liability if it transpires that their acts were unwise or based upon a misinterpretation of the law. Much has been written, commencing with Montesquieu in the 18th century, and continuing up to date, regarding the necessity or advisability of continuing the doctrine of the separation of powers. It has been said, "The problems of government are complicated and difficult of solution. But must it not be apparent to everyone, as we gaze into the future, that we cannot hope to maintain the way of life which we call American without exercising every effort to preserve to each branch of government its proper sphere and to the states and the Union a due recognition of their proper functions." (The Doctrine of the Separation of Powers and its Present Day Significance, Arthur T. Vanderbilt, p. 142.) The rights here sought to be enforced are assuredly rights to which a citizen of this country is entitled unless, in the *794 exercise of those rights, the person committing the act is protected by some privilege or immunity. This concept is recognized in section 767 of Restatement of Torts, where it is said, "In determining whether there is a privilege to act in the manner stated in 766, the following are important factors:" "(a) the nature of the actor's conduct," "(b) the nature of the expectancy with which his conduct interferes," "(c) the relations between the parties," "(d) the interest sought to be advanced by the actor and" "(e) the social interests in protecting the expectancy on the one hand and the actor's freedom of action on the other hand." It will be noted that under subdivision (e) the social interest of the persons involved must be considered by a court. When so considered, we feel that the continuance of the basic doctrine of the separation of powers has more social importance than is here presented by the individual defendants. In view of our holding that the action of respondents here was protected by their legislative immunity from suit, it is not necessary to discuss the other points urged by appellants. The immunity appearing on the face of the complaint, it would be useless to allow amendment. The judgment is affirmed. Peters, P. J., and Bray, J., concurred. NOTES [fn. *] *. Assigned by Chairman of Judicial Council.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ANGELICA MILLAN LOPEZ, Plaintiff, v. Case No. 19-cv-2494 (CRC) TOUCHUP CLEANING SERVICES, LLC, et al., Defendants. MEMORANDUM OPINION Angelica Lopez is right: Touchup must pay up. Ms. Lopez is suing her former employer, Touchup Cleaning Services, LLC, and three of its owners and officers for approximately $5,000 in unpaid wages and related damages. Lopez alleges that Touchup Cleaning employed her as a janitor from January 2018 until April 2019, when she quit after not receiving wages for two pay periods. None of the defendants have responded to the suit despite having been served with process. Lopez now moves for default judgment against them. Because Lopez has adequately demonstrated the defendants’ liability and that she is entitled to monetary relief, the Court will enter default judgments against Touchup Cleaning, Milton Bell, Leon Brown, Sr., and Leon Brown, Jr. I. Background The Fair Labor Standards Act (“FLSA”) requires employers to pay a federal minimum wage of $7.25 per hour. See 29 U.S.C. § 206(a). However, employers must pay state- established minimum wages if they are higher than the federal minimum wage. See id. § 218(a). The District of Columbia Wage Payment and Collection Law and the District of Columbia Payment and Collection of Wages Law (collectively, the “District’s wage-and-hour laws”) establish the minimum wage that employers must pay to persons employed in the District of Columbia. See D.C. Code § 32-1001. During the relevant time period, the minimum wage in D.C. was $13.25 per hour. Id. § 32-1003(a)(5)(A)(iii). According to her Complaint, Ms. Lopez worked as a janitor for Touchup Cleaning from January 2018 through April 2019. Compl. ¶ 9, 12. At all times, she worked in the District of Columbia. Id. ¶ 6. From March 16, 2019 through March 31, 2019, she worked 80 hours and was issued a payroll check for $1,060, calculated at the D.C. $13.25/hour minimum wage. Id. ¶ 9, 11. But when she tried to cash the check, it was rejected for insufficient funds. Id. ¶ 6; Mot. for Summ J. Exh. B. During the April 16, 2019 through April 30, 2019 pay period, Lopez worked 16 total hours but was never paid for that time. Compl. ¶ 12. After requesting her pay and being rebuffed, Lopez quit. Id. ¶ 11–12. Lopez filed suit on August 19, 2019 alleging that Touchup Cleaning and three of its owners and officers violated both the FLSA and the District’s wage-and-hour laws by paying her less than the required minimum wage. Lopez seeks $5,088, which includes unpaid wages and liquidated damages. Touchup Cleaning and the individual defendants were properly served, none has filed a response, and the Clerk of the Court entered a default against each of them. Lopez now moves for a default judgment. II. Standard of Review Default judgment is a two-step procedure. See, e.g., Boland v. Cacper Constr. Corp., 130 F. Supp. 3d 379, 382 (D.D.C. 2015). First, a plaintiff requests that the Clerk of the Court enter default against a party who has “failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). Then, the plaintiff must move for entry of default judgment. Fed. R. Civ. P. 55(b). Default judgment is available when “the adversary process has been halted because of an essentially unresponsive party.” Boland v. Elite Terrazzo Flooring, Inc., 763 F. Supp. 2d 64, 67 (D.D.C. 2 2011) (internal citation omitted). “Default establishes a defaulting party’s liability for the well- pleaded allegations of the complaint.” Id. After establishing liability, the court must make an independent evaluation of the damages to be awarded and has “considerable latitude in determining the amount of damages.” Id. The court may rely on “detailed affidavits or documentary evidence” submitted by plaintiffs in support of their claims. Boland v. Providence Constr. Corp., 304 F.R.D. 31, 36 (D.D.C. 2014) (quoting Fanning v. Permanent Sol. Indus., Inc., 257 F.R.D. 4, 7 (D.D.C. 2009)). III. Analysis The Court must determine whether Touchup Cleaning and the individual defendants are liable and whether a default judgment is appropriate. If so, it must make an independent evaluation about whether Ms. Lopez is entitled to the full amount of relief she requests. The Court concludes that Touchup Cleaning and the individual defendants each breached their duties under the FLSA and the District of Columbia’s wage-and-hour laws; therefore, Ms. Lopez is entitled to the monetary relief requested. A. Liability The District of Columbia’s wage-and-hour laws provide that “[e]very employer shall pay all wages earned to his or her employees.” D.C. Code § 32-1302. If an employee quits or resigns, the employer must “pay the employee’s wages due upon the next regular payday or within 7 days from the date of quitting or resigning, whichever is earlier.” Id. § 32-1303(2). Similarly, the FLSA provides that “[e]very employer shall pay to each of his employees . . . not less than the minimum wage.” 29 U.S.C. § 206(b). Although the FLSA does not specify when wages must be made, “courts have found that the [statute] encompasses a requirement that wage payments due to employees must be paid promptly and at regular intervals.” Perez v. C.R. 3 Calderon Constr., Inc., 221 F. Supp. 3d 115, 138 (D.D.C. 2016) (collecting cases). A prevailing plaintiff is entitled to unpaid wages as well as liquidated damages. See D.C. Code §§ 32- 1303(4), 32-1308(a)(1)(A); 29 U.S.C. § 216(b). Because the Clerk of the Court has entered default as to all Defendants, the Court accepts Lopez’s well-pleaded allegations as true to determine whether Touchup Cleaning and the individual defendants are liable and whether entry of default judgment is appropriate. See Elite Terrazzo Flooring, 763 F. Supp. 2d at 67. Lopez plausibly alleges that—based on her regular hourly wage, the minimum wage in D.C. at the time, and the hours she worked without compensation—she is owed $1,272 in unpaid wages. Compl. ¶¶ 11–14. On these facts, Touchup Cleaning is liable to Lopez for those wages and liquidated damages. For the individual defendants to be personally liable, they must qualify as an employer under the FLSA and the District’s wage-and-hour laws, which are “to be construed consistently” with each other. Ventura v. Bebo Foods, Inc., 738 F. Supp. 2d 1, 5 & n. 2 (D.D.C. 2010) (applying individual-liability analysis under the FLSA to the District’s wage-and-hour laws). Typically, an individual “who exercises operational control over an employee’s wages, hours, and terms of employment qualifies as an ‘employer,’ and is subject to individual liability.” Guevara v. Ischia, Inc., 47 F. Supp. 3d 23, 26–27 (D.D.C. 2014) (internal citation omitted); see also Perez, 221 F. Supp. 3d at 143–44 (“[T]he overwhelming weight of authority is that a corporate officer with operational control of a corporation’s covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.” (internal quotations omitted)). To determine individual liability, courts in this district have considered whether the employer was responsible for hiring and firing, controlling work schedules, establishing pay rates, and maintaining employment records. See Ventura, 738 F. 4 Supp. 2d at 6. Here, Lopez alleges that Milton Bell, Leon Brown, Sr., and Leon Brown, Jr. were owners, officers, directors and/or members of Touchup Cleaning and were substantially involved in Touchup Cleaning’s operations. Compl. ¶¶ 3–5. She alleges that they each had control over the terms and conditions of her employment, including the ability to hire or fire her and to set her compensation. Id. In addition, Lopez alleges that they each had control over the funds used pay wages and failed to pay her for her work even after she brought the failure to their attention. Id. These facts sufficiently establish that each individual defendant was Lopez’s employer under the FLSA. See Ventura, 738 F. Supp. 2d at 6. Thus, the individual defendants are jointly and severally liable with Touchup Cleaning under both federal and District of Columbia law. Now that it is clear that the defendants are each liable for the unpaid wages and liquidated damages, the Court must determine whether a default judgment is appropriate. The Court may enter default judgment when a defendant makes no request “to set aside the default” and gives no indication of a “meritorious defense.” Fanning, 257 F.R.D. at 7. Here, no defendant has requested that the default be set aside, nor have they responded to the complaint since being served. See Return of Service/Affidavit as to Milton Bell, ECF No. 5; Return of Service/Affidavit as to Leon Brown, Jr., ECF No. 7; Return of Service/Affidavit as to Leon Brown, Sr., ECF No. 8; Return of Service/Affidavit as to Touchup Cleaning Services, LLC, ECF No. 17. Entry of default judgment is therefore appropriate. B. Damages Next, the Court must determine the amount of damages due, and Ms. Lopez “must prove these damages to a reasonable certainty.” Elite Terrazzo Flooring, 763 F. Supp. 2d at 68. “When a defendant has failed to respond, the Court must make an independent determination— 5 by relying on affidavits, documentation, or an evidentiary hearing—of the sum to be awarded as damages.” Ventura v. L.A. Howard Constr. Co., 134 F. Supp. 3d 99, 104 (D.D.C. 2015). Lopez has submitted an affidavit, summarizing the hours she worked and declaring that Touchup Cleaning failed to pay her wages for that work. See Pl.’s Mot. for Default J., Exh. 1 (“Lopez Aff.”) ¶¶ 4–6. Lopez attests that she was not paid for working 96 hours at an hourly rate of $13.25, which was the minimum wage in D.C. at the time, Lopez Aff. ¶¶ 3–6; therefore, she is owed $1,272. In addition to unpaid wages, Lopez seeks liquidated damages. Under the FLSA, liquidated damages equal the amount of unpaid wages. See 29 U.S.C. § 216(b). But the District’s wage-and-hour laws permit liquidated damages in “an amount equal to treble the unpaid wages.” D.C. Code § 32-1303; see, e.g., Martinez v. Asian 328, LLC, 220 F. Supp. 3d 117, 122–23 (D.D.C. 2016). 1 Since D.C. law is more generous to employees, the Court will assess liquidated damages under D.C. law and will not award a duplicative amount pursuant to federal law. See Williams v. Wash. Metro Area Transit Auth., 472 F.2d 1258, 1261 (D.C. Cir. 1972) (“[W]orkers covered by state law as well as FLSA shall have any additional benefits provided by the state law.”); cf. 29 C.F.R. § 778.5 (stating that employees are entitled to higher minimums set by state law if FLSA standards are lower). Thus, Lopez is owed $3,816 in liquidated damages. When added to her unpaid wages, Defendants are liable to Lopez for $5,088 in total. 1 More precisely, under D.C. law, liquidated damages equal either “10 per centum of the unpaid wages for each working day during which such failure shall continue after the day upon which payment is hereunder required, or an amount equal to treble the unpaid wages, whichever is smaller.” D.C. Code § 32-1303. Using the former calculation, if Lopez were owed $1,272 in unpaid wages for a year, she would be owed $46,428 in liquidated damages ($1,272 x 10% x 365 days). Because the second calculation would result in a smaller damages award, the Court will treble Lopez’s unpaid wages to determine her liquidated damages. See Amaya v. Logo Enters., LLC, 251 F. Supp. 3d 196, 201 n.5 (D.D.C. 2017). 6  IV. Conclusion For the foregoing reasons, the Court will grant Plaintiff’s Motion for Entry of Default Judgment in the amount of $5,088. The Court will issue an order consistent with this opinion. CHRISTOPHER R. COOPER United States District Judge Date: April 3, 2020 7 

198 Mich. App. 499 (1993) 499 N.W.2d 383 DAFTER SANITARY LANDFILL v. SUPERIOR SANITATION SERVICE, INC Docket No. 145528. Michigan Court of Appeals. Submitted October 6, 1992, at Marquette. Decided March 1, 1993, at 10:30 A.M. Peacock, Ingleson & Stenton, P.C. (by Harry Ingleson, II), for the plaintiff. Thomas J. Veum, P.C. (by Leanne Barnes Deuman), for the defendant. Before: CONNOR, P.J., and BRENNAN and MARILYN KELLY, JJ. *501 BRENNAN, J. Plaintiff, Dafter Sanitary Landfill, appeals as of right from a September 26, 1991, order granting summary disposition to Superior Sanitation Service, Inc., and dismissing plaintiff's complaint. We affirm. Plaintiff filed suit alleging that Superior's closure of one landfill and its construction and maintenance of another landfill violated the Solid Waste Management Act (SWMA)[1] and Michigan's Environmental Protection Act (MEPA).[2] The court dismissed plaintiff's SWMA claim, finding that plaintiff failed to allege sufficient facts to establish a prima facie claim under the SWMA because plaintiff did not allege any harm to itself resulting from Superior's violations. The trial court dismissed plaintiff's claim under the MEPA on the ground that plaintiff failed to establish a prima facie case by failing to allege facts that rise to the level of harm required under the act. The court stated that plaintiff merely alleged a potential for harm and failed to identify the harm. On appeal, plaintiff argues that the court erred in granting summary disposition because it was not necessary for plaintiff to allege an individual injury under either act, only an injury to the plaintiff as a member of the general public. However, as noted above, the trial court only held that plaintiff failed to prove an individual injury with respect to the SWMA claim. We address dismissal of that claim first. The court apparently granted summary disposition of both counts pursuant to MCR 2.116(C)(10), having considered depositions as well as the complaint. Check Reporting Services, Inc v Michigan Nat'l Bank-Lansing, 191 Mich App 614, 622; 478 NW2d 893 (1991). A motion brought under this *502 subrule should be granted when there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Traffic Jam & Snug, Inc v Liquor Control Comm, 194 Mich App 640; 487 NW2d 768 (1992). Courts are to apply the plain meaning of statutes. Lake Angelus v Oakland Co Rd Comm, 194 Mich App 220, 224; 486 NW2d 64 (1992). Statutes are to be construed as a whole, and absurd or unreasonable results must be avoided. Traffic Jam & Snug, Inc, supra; Dick Loehr's, Inc v Secretary of State, 180 Mich App 165, 169; 446 NW2d 624 (1989). The SWMA provides in pertinent part: (1) The director or a health officer may request that the attorney general bring an action in the name of the people of the state, or a municipality or county may bring an action based on facts arising within its boundaries, for any appropriate relief, including injunctive relief, for a violation of this act or rules promulgated pursuant to this act. * * * (4) This act shall not be construed to preclude any person from commencing a civil action based on facts which may also constitute a violation of this act or the rules promulgated under this act. [MCL 299.433; MSA 13.29(33).] The plain meaning of subsection 4 is that a private citizen is not prohibited from commencing a civil action merely because the suit is based on facts that also constitute a violation of the act. We interpret this provision to mean that a private citizen may commence a civil action for relief for personal injuries on the basis of facts that may also constitute a violation of the act. The provision *503 clearly does not grant a private citizen the right to commence a civil action under the act alleging injuries as a member of the general public. To accept plaintiff's argument would mean that a private citizen would be able to step into the shoes of the attorney general and bring an action on behalf of the public. This could not be what the Legislature intended. Accordingly, we reject plaintiff's argument. Moreover, a review of the record provided to us[3] reveals that plaintiff failed to allege any personal harm. Plaintiff merely alleges that Superior's violations of the SWMA at both landfills "has and is likely to pollute, impair or destroy the air, water and other natural resources." Therefore, we find that the trial court properly granted summary disposition of this count. With regard to the trial court's dismissal of plaintiff's MEPA claim, the MEPA provides, in pertinent part: The attorney general, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction. [MCL 691.1202(1); MSA 14.528(202)(1).] *504 In order to "determine whether a plaintiff has established a prima facie case under the MEPA, the trial court must consider whether a natural resource was involved and whether the effect of the activity on the environment rose to the level of impairment to justify the court's injunction." Holly Twp v Dep't of Natural Resources (On Rehearing), 194 Mich App 213, 216; 486 NW2d 307 (1992). The second part of the test is at issue in the present case. In determining whether the effect rises to the level of impairment that justifies an injunction by the court, the following factors should be considered: "(1) whether the natural resource involved is rare, unique, endangered, or has historical significance, (2) whether the resource is easily replaceable (for example, by replanting trees or restocking fish), (3) whether the proposed action will have any significant consequential effect on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed), and (4) whether the direct or consequential impact on animal or vegetation will affect a critical number, considering the nature and location of the wildlife affected." [Attorney General ex rel Natural Resources Comm v Balkema, 191 Mich App 201, 206; 477 NW2d 100 (1991), quoting Portage v Kalamazoo Co Rd Comm, 136 Mich App 276, 282; 355 NW2d 913 (1984).] In the present case, plaintiff failed to address any of these factors. As noted above, plaintiff merely alleged in its complaint that Superior's violations of the SWMA at both landfills "has and is likely to pollute, impair or destroy the air, water and other natural resources." Plaintiff merely states this conclusion without any facts to support it. Accordingly, we find that the trial court properly granted summary disposition where the record *505 revealed that plaintiff failed to establish a prima facie showing that Superior's actions in the construction, operation, and closure of its landfills rise to the level justifying the issuance of an injunction under the MEPA. Affirmed. NOTES [1] MCL 299.401 et seq.; MSA 13.29(1) et seq. [2] MCL 691.1201 et seq.; MSA 14.528(201) et seq. [3] We note that we have not been provided a copy of the deposition transcript that the trial court considered in granting summary disposition.

306 P.2d 637 (1957) 62 N.M. 143 FERGUSON-STEERE MOTOR COMPANY a corporation, and E. B. LAW AND SON, Inc., a corporation, Plaintiffs-Appellees, v. STATE CORPORATION COMMISSION of New Mexico, John Block, Jr., James F. Lamb and Ingram B. Pickett, Members of said Commission; and C. R. Scott d/b/a C. R. Scott Oil Company, Defendants-Appellants. No. 6158. Supreme Court of New Mexico. January 23, 1957. Richard H. Robinson, Atty. Gen., for appellant Corporation Commission. Jones, Stiff & Briggs, Albuquerque, for appellant C. R. Scott and Western Transport, Inc. Robert E. Fox, Santa Fe, for appellee Ferguson-Steere Motor Co. Donovan N. Hoover, Santa Fe, for appellee E. B. Law & Son, Inc. *638 COMPTON, Justice. This is an appeal from a judgment setting aside an order of the State Corporation Commission, dated May 14, 1951, extending the certificate of public convenience and necessity theretofore issued to C.R. Scott, d/b/a C.R. Scott Oil Company, to transport petroleum and petroleum products in New Mexico. The case, since its inception, has taken a circuitous route, finally reaching us on the merits. See Ferguson-Steere Motor Co. v. State Corporation Commission, 59 N.M. 220, 282 P.2d 705; Ferguson-Steere Motor Co. v. State Corporation Commission, 60 N.M. 114, 288 P.2d 440; Ferguson-Steere Motor Co. v. State Corporation Commission, 60 N.M. 464, 292 P.2d 333. The order vacated by the court reads: "It Appearing that Certificate of Public Convenience and Necessity No. 885-1, C.R. Scott, dba C.R. Scott Oil Company, authorizes the following operations: "Hauling of casinghead gasoline from points in Eddy and Lea Counties, New Mexico to Artesia, New Mexico, not in competition in whole or in part with common carriers and, hauling of bulk petroleum products between Eddy, Lea and Chaves Counties and De Baca, Lincoln, Roosevelt, Curry, Quay, San Miguel, Harding, Colfax, Union, Mora, Guadalupe, Taos, Torrance, Otero, Socorro, Valencia, Bernalillo, Sandoval, Santa Fe, Rio Arriba, San Juan and McKinley Counties via U.S., State and County Highways, over irregular routes, under non-scheduled service. "It Further Appearing that hearing was held for extension of operations under Docket No. 2645, December 5, 1950, and was granted as follows: "Transportation of petroleum and petroleum products, in bulk, in tank trucks, from points and places in New Mexico to points and places in New Mexico, over irregular routes, under non-scheduled service. No transportation of crude oil or water is authorized to or from any point in New Mexico. "The New Mexico State Corporation Commission, on its own motion, in order that no repetition of authority be shown, Hereby Orders that Certificate of Public Convenience and Necessity No. 885-1, C.R. Scott, dba C.R. Scott Oil Company, dated August 1, 1947, with all endorsements thereon, be, and it is hereby cancelled, and, It Is Further Ordered that a new Certificate of Public Convenience and Necessity bearing No. 885-1 be issued to C.R. Scott, dba C.R. Scott Oil Company, 5230 North 4th Street, Albuquerque, New Mexico, authorizing the following operations: "Transportation of petroleum and petroleum products, in bulk, in tank trucks, from points and places in New Mexico to points and places in New Mexico, over irregular routes, under non-scheduled service. No transportation of crude oil or water is authorized to or from any point in New Mexico." Clearly, the Scott Oil Company, under the original certificate, dated August 1, 1947, was permitted to operate in some 22 counties only. The effect of the order under consideration was to extend its field of operation state-wide. Upon filing the application for such additional authority, protests were lodged by appellees and the Atchison, Topeka, and Sana Fe Railway Company. Thereupon a hearing was had, and following which the Commission found that the extension should be granted and entered the foregoing order. Subsequently, appellees brought this action to vacate the order and certificate. The trial court found and concluded that the order granting the extension was unreasonable and unlawful because it was not supported by substantial evidence. Judgment was entered accordingly and the Commission appeals. Upon motion, C.R. Scott, d/b/a Scott Oil Company and Western Transport, Inc., parties in interest, were permitted to join the appeal. In reviewing decisions of an administrative body, the trial court is governed by the substantial evidence rule, that is, *639 whether the findings of the administrative body are supported by substantial evidence. Harris v. State Corporation Commission, 46 N.M. 352, 129 P.2d 323; New Mexico Transp. Co. v. State Corporation Commission, 51 N.M. 59, 178 P.2d 580; Transcontinental Bus System v. State Corporation Commission, 56 N.M. 158, 241 P.2d 829; Transcontinental Bus System v. State Corporation Commission, 61 N.M. 369, 300 P.2d 948. The burden was on appellants to establish by the evidence, not only a public need for additional services, state-wide, but the inadequacy of existing services in the territory for which the certificate was sought. Section 64-27-8, 1953 Compilation. In this regard, we think the appellants failed to sustain this burden. Perhaps the evidence was sufficient as to the need for additional services in a portion of the area sought to be served but the record is void of substantial evidence touching the inadequacy of existing transportation in at least 6 of the remaining counties of the state. As to these 6 counties, the order is unreasonable and unlawful. Harris v. State Corporation Commission, supra. That the evidence may have warranted the granting of additional service, less than state-wide, is outside the scope of inquiry, since the order cannot be remanded for modification or alteration. It must stand or fall on the record made before the Commission. State ex rel. Transcontinental Bus Service v. Carmody, 53 N.M. 367, 208 P.2d 1073; Transcontinental Bus System v. State Corporation Commission, supra; Leaman Transp. Corp. v. Pennsylvania Public Utility Commission, 153 Pa.Super. 303, 33 A.2d 721; Modern Transfer Co. v. Pennsylvania Public Utility Commission, 179 Pa.Super. 46, 115 A.2d 887. Appellants strongly assert that the verified application, as supported by exhibits, the testimony of the applicant Scott and dence of the inadequacy of existing transportation facilities, state-wide. The exhibits mentioned are "H" and "I", statements of Scott, attached to the application. Appellees, however, contend these are not admissible, not having been offered in evidence. Assuming their admissibility without deciding the question, the verified application, exhibits, and the testimony of the witnesses have been examined, yet, when viewed in a light most favorable to the applicant, we cannot escape the conclusion the claimed evidence offers no substantial support to the decision of the Commission. Exhibit "H" is to the effect that the "applicant is not aware of any person, firm, or corporation now owning or holding a Certificate of Public Convenience and Necessity for state-wide authority", and that certain named persons, firms, and corporations, 5 in number, now serving different areas of the state, are not authorized to render statewide service. Exhibit "I" merely points up the existing need for additional service from San Juan, Chaves and other oil-producing counties in southeastern New Mexico to other sections of the state. The testimony of the two witnesses highlights the need for additional service, but "it does not follow from evidence of need for additional service between specific points that existing transportation facilities are inadequate between all points within an area or that inadequacy exists in adjacent territory as to which there is no evidence." Leaman Transp. Corp. v. Pennsylvania Public Utility Commission, supra [153 Pa.Super. 303, 33 A.2d 723]. The judgment will be affirmed, and it is so ordered. LUJAN, C. J., and SADLER and McGhee, JJ., concur. KIKER, J., not participating.

407 F.2d 774 UNITED STATES of America, Appellee,v.Wrightson Samuel TONGUE, Jr., Appellant. No. 12702. United States Court of Appeals Fourth Circuit. Argued February 6, 1969. Decided March 4, 1969. Certiorari Denied June 16, 1969. See 89 S.Ct. 2113. Frank M. McCann (Court-appointed counsel) for appellant. William C. Breckinridge, Asst. U. S. Atty., for appellee. Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges. PER CURIAM: 1 Wrightson Samuel Tongue, Jr., after a trial by the court, was convicted on a charge of failing to submit to induction into the Armed Forces of the United States in violation of 50 U.S.C. App. § 462. On appeal we affirm. 2 Our first approach is to restate the well-established rule that the determination of a registrant's classification made by a Selective Service Board in conformity with regulations may be overturned by the courts only if it clearly appears that there is no basis in fact for such classification.1 3 This defendant registered with Local Board No. 22 for the City of Lynchburg, Virginia, on August 26, 1960. In 1963 he was given the classification of IV-D, which is the ministerial classification, which he retained until 1967. In April 1967 the Board, having obtained information which indicated that defendant was no longer entitled to the ministerial classification, classified him I-A. On appeal, the Appeal Board approved the I-A classification by a vote of 5-0, and in May he was notified to present himself for physical examination on June 12, 1967. On that date defendant appeared before a Local Board in Freeport, New York, and effected transfer to that jurisdiction for the purpose of submitting to the ordered physical examination, stating that he then lived in that area. The physical examination was scheduled for August 24, 1967, but on August 23 the Board at Freeport received a telegram sent by defendant from Woodbridge, Virginia, indicating that the defendant no longer lived in the Freeport area. Another telegram sent by defendant from Woodbridge, Virginia, was received by Local Board No. 22 on August 25, stating that he was financially unable to appear for physical examination in New York, that he was then a resident of Woodbridge, Virginia, and asking instructions. He was then permitted to transfer for his physical to a Local Board at Manassas, Virginia, and after being examined on October 25, 1967, he was found qualified for induction in the Armed Forces. He was notified to that effect on November 2, 1967. 4 On November 6, 1967, Local Board No. 22 received a letter from defendant requesting that he be furnished information and forms concerning conscientious objector status so that he could apply for that classification. In response the Local Board mailed to him the "Special Form for Conscientious Objector." He completed the form in detail but appended what he termed "a final note" in which he requested that he be classified I-W, stating that he was performing work contributing to the maintenance of the national health, safety and interest through speaking, writing and singing and concluding as follows: "I cannot obey any directive from the Board which would alter the course of the task to which I have been set." 5 On November 22, 1967, Local Board No. 22 classified defendant as I-O (Conscientious Objector) and he was so notified. Additionally, he was afforded the right of a personal appearance or an appeal within thirty days. It was explained to him by letter that Class I-W is applicable only to a registrant who has reported for civilian work in accordance with an order of his Selective Service Board. On December 5, 1967, the Local Board No. 22 received a letter from the defendant protesting the I-O classification and the Board responded with the advice that if he did not take further procedural action by the close of his appeal period on December 23, 1967, the process for ordering him for civilian work would begin in due course. On December 22, 1967, one day prior to the close of the appeal period, the Local Board at Lynchburg received a six-page letter from the defendant which contained the following statement: 6 "Accordingly, I hereby note an appeal, though I have no clear idea what I am appealing for; I know only that I am doing what I must do and cannot forsake it." 7 In the next paragraph of his letter he appeared to take a contradictory position regarding appeal. After giving information about his earlier activities2 in New York in connection with organizing a musical and singing group, expending "thousands of dollars" in recording studios and having prepared for an engagement at a theater which promised to be very profitable he stated that he left the group and returned home "quite discouraged and very broke," realizing that he was "serving himself and not fulfilling his calling." He then asked advice as to whether he should request an appearance before the Board or an appointment for legal advice and for what official classification he might apply or appeal. There was further correspondence between the defendant and Local Board No. 22 and in January the Board received a letter from defendant requesting a personal appearance before the Board and requesting a further delay because he had concluded contracts in the latter part of 1967 which required his return to New York the next day where he would be occupied until the end of the month. The defendant's Selective Service file was then transferred to the proper Appeal Board and, after reviewing the entire file, the Appeal Board classified defendant as I-A. 8 On January 12, 1968, Local Board No. 22 issued the defendant an order to report for induction on February 1, but defendant made a telephone call to the Board on January 16, 1968, protesting the order and claiming that an error had been made. On January 17, 1968, the defendant's Selective Service file was returned to the Local Board No. 22 directing it to reconsider defendant's classification. Upon reconsideration by the Local Board the defendant was assigned the classification I-A by a vote of 3-0 on January 24, 1968. 9 On January 25, 1968, defendant was notified of the reclassification and of the right to a personal appearance or appeal within thirty days, but the defendant sent a letter to the Local Board, received on February 1, 1968, protesting the I-A classification, applying for deferment or, in the alternative, for I-O classification. 10 Further correspondence passed between Local Board No. 22 and the defendant in which the latter applied for deferment based upon "hardship and occupational" grounds and he was then furnished, on March 4, 1968, a questionnaire to be completed in connection with his application for hardship or occupational deferment. The defendant provided no information or evidence in connection with these claims and on March 15, 1968, he was then issued another order to report for induction on April 8. 11 On March 18, 1968, three days after issuance of the order to report for induction, defendant wrote to the same Local Board, related the history of his life and philosophy and requested a change in his Selective Service status. This Board again reconsidered registrant's classification but finding no change in his status resulting from circumstances over which he had no control, the case was not reopened and he was notified to report as ordered. When defendant remained adamant in his refusal to report for induction the indictment on which he was tried was returned by the federal grand jury in May of 1968. 12 It thus clearly appears from the defendant's Selective Service file that he had set upon a fixed course to avoid and escape induction into military service and was determined to do whatever might be necessary to accomplish his objective. His resourcefulness was evidenced at every turn. The Selective Service officials permitted one delay after another in the processing of this registrant, obviously attempting to extend to him every possible consideration. From our examination of the record and upon review of all of the proceedings we cannot say that there is no basis in fact for the Board's classification of the defendant as I-A. Therefore, the judgment of conviction will be affirmed. 13 Affirmed. Notes: 1 Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); United States v. Jones, 382 F.2d 255 (4 Cir. 1967); United States v. Jackson, 369 F.2d 936, 938 (4 Cir. 1966); Blalock v. United States, 247 F.2d 615, 619 (4 Cir. 1957) 2 The activities to which defendant referred had led to a change from a ministerial classification to I-A

502 P.2d 987 (1972) H.M. SHIDLER, Appellant (Defendant below), v. The CLAYTON OIL COMPANY, a partnership, Appellee (Plaintiff below). The CLAYTON OIL COMPANY, a partnership, Appellant (Plaintiff below), v. H.M. SHIDLER, Appellee (Defendant below). Nos. 4118, 4119. Supreme Court of Wyoming. November 13, 1972. *988 Donald E. Chapin, Casper, for Shidler. Houston G. Williams, of Wehrli & Williams, Casper, for Clayton Oil Co. Before McINTYRE, C.J., and PARKER, McEWAN and GUTHRIE, JJ. McINTYRE, Chief Justice. The Clayton Oil Company, plaintiff, sued H.M. Shidler, defendant, for damages stemming from a failure of title in connection with an agreement pertaining to operations under an oil and gas lease. The district court found for the defendant and denied damages to Clayton. In Clayton Oil Company v. Shidler, Wyo., 473 P.2d 593, we reversed the action of the district court and remanded the case for trial on the issue of damages. Findings have now been made as to the amount of Clayton's damages and judgment was entered pursuant thereto. Both parties have appealed from the judgment pertaining to damages. In a letter entitled "Decision Letter," the trial judge stated this conclusion: "* * * I believe the judgment for plaintiff should consist of the $2,210.28 production withheld to May 1, 1969, on account of the 15%, together with the estimated production from that 15% thereafter for the economic life of the well, a figure of some $2,900.00, according to plaintiff's testimony, but with that figure reduced to a present value. * * *" After the judge's decision letter was received by the attorneys, counsel for Clayton wrote the judge suggesting the figure for future loss on account of the 15% working interest held by Karl L. Krusmark should be $6,565.48 instead of "some $2,900.00" as the judge had stated. All figures were taken from plaintiff's Exhibit 4 and counsel represented to the judge as follows: "The $2,900.00 figure is actually $2,965.48, which appears on page 1 of this exhibit as the future net income loss if Clayton could recover drilling and operating costs attributable to the 15%. However, your decision is based upon lost production figures, which means gross production figures, and the figures which I have used represent such amounts." The pertinent portion of Exhibit 4, as it pertains to future production and the 15% working interest, reflects the following: "Future Net Income From Above Well From 5-1-69 To the 15% Working Interest Lost Gross Ultimate Primary Recovery 28,300.00 Bbls. Cumulative Recovery (5-1-69) 7,405.00 _________ Gross Reserves 20,895.00 Bbls. 15% Working Interest Portion of the Gross Reserves (11.25%) 2,350.69 Bbls. 15% Working Interest Gross Value of Oil at $2.793 per Barrel $ 6,565.48 Lifting Cost to 15% Working Interest 3,600.00 ________ Net Future Loss to Clayton of Net Income to the 15% Working Interest $ 2,965.48" ========== *989 Apparently the judge was persuaded by the argument of counsel for Clayton, and when judgment was finally entered, the court allowed plaintiff $2,210.28, representing gross production withheld to May 1, 1969 on the 15% interest. It then allowed $6,565.48, representing future gross production attributable to said 15% interest "reduced to its present value of $5,511.66." Interest was allowed on both items. The court also ordered that in the event plaintiff recovers from the owner of the 15% his proportionate share of the costs and expenses of drilling, equipping and operating the well, the same shall inure to the benefit of Shidler. The Shidler Appeal Shidler's first assignment of error is that the judge considered only gross production without reducing the amount by the proportionate share of costs of production chargeable to Krusmark. A review of the judge's original decision letter together with Exhibit 4 — the principal evidence relied on by plaintiff — discloses that the judge was right in the first place and wrong when he changed to the theory of counsel for Clayton. The theory advanced by counsel for Clayton treats the Krusmark interest as if it is an overriding royalty of 15% rather than a 15% working interest. There can be no doubt that Clayton as operator of the lease can and should withhold from any payments due Krusmark 15% of all drilling and lifting costs. The Clayton argument seems to be that Shidler caused all the trouble about the Krusmark interest and therefore Shidler should pay Clayton damages equal to 15% of the gross production, leaving it up to Shidler to recover from Krusmark what Krusmark owes on drilling and lifting costs. This argument entirely overlooks the obligation of Clayton to mitigate its damages. As stated by us in Asbell Bros., Inc. v. Nash-Davis Machinery Company, Wyo., 382 P.2d 57, 59, it is well established that one who is injured by the wrongful act of another must exercise reasonable care and diligence to avoid loss or to minimize the resulting damage.[1] That rule is especially applicable in this case because Clayton is the operator of the lease involved.[2] Moreover, as indicated in our former decision, at 473 P.2d 593, Clayton knew of the interest of Krusmark when it sold oil. Thus, Clayton has been and is in a far better position than Shidler to collect drilling and lifting costs from Krusmark. As we see it, all Clayton has to do is to withhold such costs from Krusmark or cause the costs to be withheld by the oil purchaser. Also, Clayton knows what the drilling and lifting costs are and Shidler has no way of knowing. As indicated in our former opinion, at 473 P.2d 593, Shidler assigned to Clayton the right to operate, produce, take and remove oil and gas in a certain quarter-section of land. If Clayton knew of Krusmark's interest when Clayton drilled, then Clayton necessarily drilled with the understanding that 15% of all drilling and lifting costs would be withheld from Krusmark's share of proceeds. And even if Clayton did not know of the Krusmark interest at the time of drilling, it did know of such interest prior to any settlement with Krusmark. Therefore, Clayton has been in a position at all times to see that Krusmark's share of drilling and lifting costs are withheld from proceeds payable to Krusmark. A look at Exhibit 4 reveals that the judgment as entered is contrary to the testimony and intention of the expert who prepared such exhibit. With respect to damages in connection with future income, the exhibit, on page 2, clearly shows lifting costs to the 15% working interest at $3,600.00. *990 Also, on page 1, in a capitulation of losses, the exhibit lists the future net income loss to Clayton as $2,965.48. Then again, on page 3, the author of the exhibit undertook to show a possible loss in future or undrilled wells. In doing so, he used the figure of $2,965.48 as the future loss per well. From these considerations, it becomes apparent there was no evidence of a future loss to Clayton in excess of $2,965.48. The only other assignment of error actually argued by Shidler is that funds impounded by the oil purchaser are in the reach of Clayton but not Shidler; and that Clayton's judgment should be reduced by that amount. The judge's decision letter referred to $2,210.28 as the production withheld to the time of trial (May 1, 1969), on account of the 15%. Neither side has challenged this figure. The testimony of plaintiff's expert witness concerning the impounded funds of $2,210.28 was that such funds are burdened with an obligation to Clayton of $3,404.04 as Krusmark's share of the capital investment made in the well through May 1, 1969. We see no reason therefore why Clayton is not in a position to cause the impounded funds of $2,210.28 to be released to it — especially since it is operator of the lease. What we have said about Clayton having a duty to mitigate damages applies to impounded funds. Clayton is in a position to collect the $2,210.28 and Shidler is not. Under these circumstances, we are inclined to believe plaintiff should not have judgment against Shidler for the $2,210.28 and that portion of the judgment needs to be reexamined as we will indicate later. The Clayton Appeal Counsel for Clayton urged upon the trial court that $5,000 should be allowed as additional damages resulting from being unable to develop the acreage by reason of not having all the working interest; and $4,000 for time spent by Clayton's geologist and others. The trial judge said of these items, in his decision letter, that he was unable to see sufficient certainty and definiteness of relationship to warrant awarding any part of these items. We agree with the trial judge. Plaintiff's proof was not sufficient to prove these items as an element of damages. Another item which the trial court did not allow was $3,404.04 claimed by Clayton as being 15% of the capital expenditures for drilling, completing, equipping and operating costs. It is, of course, clear from the operating agreement that Shidler is not obligated for drilling or production costs. Inasmuch as the Krusmark interest is a working interest, it follows that Clayton is not going to distribute anything to him until Clayton has recovered all of its drilling, completion and production costs. Therefore, Clayton has not been damaged on account of the working interest held by Krusmark until Clayton has first recovered all of the drilling and lifting costs. The $3,404.04 item was properly disallowed. The final item disallowed by the trial court was the sum of $15,527.28 claimed by Clayton as a loss in the future on three possible additional well locations on the property. The trial judge simply held any award based on additional wells is quite speculative and thus not warranted. We fully agree. The evidence indicates the likelihood of economical wells at other locations on the quarter-section here involved would definitely be problematical. We also find no evidence indicating the Oil and Gas Conservation Commission would permit 40-acre spacing in the area. Interest In Chandler-Simpson, Inc. v. Gorrell, Wyo., 464 P.2d 849, 853, we said our court has long followed, in general, the rule that interest prior to judgment may *991 not be recovered on unliquidated demands if the amount cannot be ascertained by computation or reference to an established market value. We pointed out in the Chandler-Simpson case that various amounts had been claimed, indicating an unliquidated nature. It is clear in the case now before us that several items of damages were claimed, with disputes as to what amounts could and could not be allowed. We hardly see how Clayton's claim for damages could be classed as anything but an unliquidated demand. If our holding in Chandler-Simpson was correct, and we have no reason to believe it was not, then all interest prior to judgment should be disallowed. It would seem inequitable in any event to charge interest on the item of $2,965.48 because it is for future losses; and we fail to find anything in the record to show that the figure was reduced to its present value. With respect to impounded funds, it has not been shown that the oil purchaser had a right to impound funds until Clayton had first recovered all of its drilling and lifting costs. If such funds were improperly impounded, it may be that the impounder should account for interest. Our review leads us to the conclusion that the case must be remanded for further proceedings and revision of the judgment. First of all, the district court is instructed to determine whether the impounded funds of $2,210.28 will be released by the oil purchaser to Clayton. If there be any doubt, the purchaser must be joined as a party defendant to this suit; and if necessary, Krusmark may also be similarly joined. A determination should then be made with respect to rights in the impounded funds. After the status and rights in the impounded funds are determined, the judgment must be revised to reflect such determination; the present award of $5,511.66 must be changed to $2,965.48; and the allowance of interest prior to judgment should be deleted. Remanded for proceedings consistent with the views herein expressed. NOTES [1] See also Sturgeon v. Phifer, Wyo., 390 P.2d 727, 730. [2] See Clayton Oil Company v. Shidler, Wyo., at 473 P.2d 593.

16 F.3d 1231 U.S.v.Martinez** NO. 89-6021 United States Court of Appeals,Eleventh Circuit. Feb 17, 1994 1 Appeal From: S.D.Fla. 2 AFFIRMED. ** Local Rule 36 case

939 F.Supp. 461 (1996) Robert W. BETTS, Plaintiff, v. RECTOR AND VISITORS OF the UNIVERSITY OF VIRGINIA, Defendants. Civil Action No. 96-0054-C. United States District Court, W.D. Virginia, Charlottesville Division. September 12, 1996. *462 *463 Dexter Brock Green, Charlottesville, VA, for plaintiff. Richard Croswell Kast, University of Virginia, Office of the General Counsel, Charlottesville, VA, for defendants. MEMORANDUM OPINION MICHAEL, Senior District Judge. This matter comes to the court upon Plaintiff Robert W. Betts' motion for a preliminary injunction ordering Defendants Rector and Visitors of the University of Virginia — effectively the University of Virginia ("University") — to admit plaintiff into the University Medical School's 1996 entering class (with courses commencing on August 19, 1996).[1] Plaintiff has filed this suit pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), the Rehabilitation Act, 29 U.S.C. § 701 et seq., 42 U.S.C. § 1983, and Virginia state law. Plaintiff claims that the University violated the ADA, the Rehabilitation Act, his constitutional rights of procedural and substantive due process under the Due Process Clause of the Fourteenth Amendment, and the terms of an alleged contract between the defendants and plaintiff. For the reasons stated below, the court denies plaintiff's motion for a preliminary injunction. I. The parties largely agree on the facts, with minor exceptions. Plaintiff was accepted into the University of Virginia's Medical School pursuant to the Medical Academic Advancement Post-Baccalaureate Program ("MAAP"), designed for economically disadvantaged and minority students. MAAP guaranteed admission to the University's Medical School to selected applicants who, inter alia, completed the program and maintained a minimum GPA of 2.75 per semester, received no grade below a C, and met the requirement of "[s]atisfactory performance" *464 to "be judged by the faculty [committee] of the MAAP[] program." Pl.'s Compl., Exhibit 2. Plaintiff began the program in the summer of 1995, and continued in the program during the fall semester. He failed to maintain the requisite GPA (he attained a 2.223), and he received a grade below a C in physics (he received a D -). Nonetheless, the faculty committee decided to permit plaintiff to proceed under a modified set of requirements. The faculty committee notified plaintiff that if he accepted tutoring and submitted to testing for a learning disability, he would be permitted to continue, pending reevaluation of his performance by the faculty committee at the end of the academic year. Pl.'s Compl., Exhibit 4. Plaintiff agreed. Pursuant to the agreement, plaintiff was examined by the University Learning Needs and Evaluation Center ("LNEC"), which issued a preliminary letter to plaintiff's professors on April 12, 1996, stating that plaintiff had "difficulties with short-term memory [and] reading speed." It recommended that plaintiff be given double time for all examinations. Pl.'s Compl., Exhibit 6. An official report that followed on June 27, 1996, did not diagnose plaintiff with a specific learning disability, but found that plaintiff "had high average verbal conceptual skills and average intellectual ability," but showed "significant weaknesses in particular patterns of abilities." LNEC concluded that plaintiff lacked "adequate strategies when information exceed[ed] the storage capacity of his short term memory," and that he "demonstrated a pattern of uneven cognitive processing skills consistent with a mild learning disability." LNEC again recommended that plaintiff receive double time for all exams. Defs.'s Motion, Attachment Two.[2] Upon receiving the April 12, 1996 letter, the University immediately doubled the allotted time plaintiff was previously permitted on exams, and he took five exams with the enlarged time; on these five exams, plaintiff received grades in the A or B range. In the spring semester, however, plaintiff achieved only a 2.838 GPA, which gave him a cumulative GPA of 2.531 for the year. The other MAAP participants attained the following GPAs for, respectively, the spring and the year: 4.0, 3.4, 3.3, 3.5, 3.6, and 4.0; 3.9, 3.5, 3.2, 3.6, 3.6, and 3.8. On May 28, 1996, the faculty committee met and decided that plaintiff had failed to demonstrate that he was prepared to enter medical school and his offer of admission was rescinded. Plaintiff was informed that his "failure to meet the overall GPA standard of 2.75 for the academic year" was the reason for the decision of the faculty committee to rescind its offer of admission.[3] Pl.'s Compl., Exhibit 7. Plaintiff appealed to the Dean of the Medical School Robert M. Carey (as he was told he could), and was apprised on June 10, 1996, that the faculty committee's decision would be upheld. Plaintiff, with his counsel, was given an additional opportunity to appear before Dean Carey, the Admissions Director Beth A. Bailey, and Associate Dean for Admissions Benjamin C. Sturgill. During that meeting (on August 6, 1996), plaintiff was offered yet another chance to enter into the Medical School (albeit not before the fall of 1997),[4] on newly revised terms.[5] Instead *465 of accepting the offer, plaintiff filed this lawsuit on August 9, 1996, and filed his motion for a preliminary injunction on August 14, 1996 (upon which a hearing was conducted on August 15, 1996), seeking entry into the Medical School on August 19, 1996.[6] Plaintiff requests that this court grant him declaratory relief stating that defendants have violated the ADA, the Rehabilitation Act, and the Due Process Clause, and that defendants have breached a contract between themselves and plaintiff. Plaintiff also seeks preliminary and permanent injunctive relief requiring defendants immediately to reinstate plaintiff into the 1996-1997 Medical School class and requiring defendants to reinstate plaintiff's financial aid, which he received as a MAAP participant. Finally, plaintiff asks for costs and attorney's fees pursuant to the ADA and 42 U.S.C. § 1988. The only issue before the court today, however, is whether preliminary injunctive relief is warranted in this case. II. Plaintiff's motion for a preliminary injunction is governed by the test articulated in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 196 (4th Cir. 1977), pursuant to which the court must take into account four factors, the weight given to each to be determined by the strength of the other factors. First, the court must make a finding that plaintiff will suffer irreparable injury if the court declines to grant injunctive relief. After this determination has been made, the court must assess the likelihood of harm to the defendant if the court issues an injunction against him and then balance this harm against the injury the plaintiff will suffer if he is denied injunctive relief. Subsequently, the court must establish that the plaintiff is likely to succeed on the merits, or if the balance in the previous step clearly favors the plaintiff, the court need only satisfy itself that the plaintiff has raised substantial and serious questions on the merits. Finally, public interest must be considered in the analysis. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 (4th Cir.1994) (quoting Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 812-13 (4th Cir.1991)). "Where serious issues are before the court, it is a sound idea to maintain the status quo ante litem...." Feller v. Brock, 802 F.2d 722, 727 (4th Cir.1986) (citing Blackwelder, 550 F.2d at 194-95). When the injunction that would alter the status quo is mandatory (as opposed to prohibitory), the district court should "sparingly exercise[]" its authority. Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir.1990). "Indeed, granting a preliminary injunction requires that a district court, acting on an incomplete record, order a party to act, or refrain from acting, in a certain way. `[T]he danger of a mistake' in this setting `is substantial.'" Hughes Network Systems v. InterDigital Communications Corp., 17 F.3d 691, 693 (4th Cir.1994) (quoting American Hosp. Supply Corp. v. Hospital Prods., Ltd., 780 F.2d 589, 593 (7th Cir.1986)). A. The court is generally persuaded by the Second Circuit's conclusion that "[o]rdinarily a one-year delay in obtaining admission to a graduate school for the purpose of pursuing professional studies, as distinguished from interruption or termination of attendance already in progress, is insufficient to warrant an injunction in the absence of other circumstances militating in favor of such relief." Doe v. New York University, 666 F.2d 761 (2d Cir.1981) (citations omitted). The court finds no extraordinary circumstances in this case, keeping in mind that "`[t]he possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.'" Hughes, 17 F.3d at 694 (quoting Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 953, 39 L.Ed.2d 166 (1974) (internal quotations and citations omitted) (emphasis added)). Plaintiff urges that he will be irreparably injured because, apparently, the University is discontinuing MAAP *466 after this academic year, and, consequently, he will not be able to apply to the University's Medical School through MAAP again. The University has made plaintiff an offer, however, which gives him an opportunity to enter into its Medical School with significantly relaxed requirements,[7] hence, the discontinuation of MAAP compels no finding of irreparable injury. Even if the University had not made an offer to plaintiff, the court's conclusion would be no different; this is because if a subsequent decision on the merits revealed that plaintiff had been wrongly denied entry into the Medical School, the court could simply order his reinstatement. Nonetheless, plaintiff insists that even if he is accepted to the University's Medical School without MAAP, he will lose the financial aid to which MAAP entitles him, and lacking aid, plaintiff claims, he will be unable to attend the Medical School. Although the matter would be entirely free from doubt if the University had included in its offer to plaintiff a guarantee of financial aid, the University's failure to make any such promise does not suggest that aid will be unavailable to plaintiff. Generally, students who demonstrate need can receive financial aid from the University to sustain their educational expenses. If, as plaintiff asserts, he is in need of financial aid, and is able to satisfy the requirements applicable to the financial aid program, it appears from representations of defendants' counsel at oral argument that he will receive it. Finally, plaintiff complains of psychological injury and stigma associated with being held back while his MAAP peers enter the Medical School. While it very well may be that plaintiff's peers have labeled him a "slow learner," a court order directing the University to admit plaintiff will likely not erase his classmates' perceptions. If other students believe plaintiff to be somehow inferior to themselves because of his poor academic performance, it is doubtful that this court's command that he enter the Medical School will alter their view, since the court cannot expunge plaintiff's academic record. Even if a court order could persuade the other students, however, this factor would not be sufficient to warrant injunctive relief, because any stigmatic effect that could be avoided must be considered in light of the other Blackwelder factors, the majority of which cut against plaintiff. B. 1. ADA AND THE REHABILITATION ACT CLAIMS Of all of plaintiff's claims, those under the ADA and the Rehabilitation Act present the most serious issues. Because of the great substantive similarity between the ADA and the Rehabilitation Act, see Doe v. University of Maryland Medical System Corp., 50 F.3d 1261, 1264 n. 9 (4th Cir.1995), it is appropriate for them to be discussed together. Title II of the ADA provides as follows: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act states as follows: No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C. § 794(a). To state a cause of action under Title II of the ADA or § 504 of the Rehabilitation Act, plaintiff must show (1) that he has a disability; (2) that he is an otherwise qualified individual; and (3) that he was denied the benefit at issue on the basis of his disability.[8]Maryland Medical System, 50 F.3d at 1264-65. Probably on a determination of the merits, *467 plaintiff would be able to satisfy the first and third criteria. "Disability" is very broadly defined by the ADA, 42 U.S.C. § 12102(2),[9] and the Rehabilitation Act, 29 U.S.C. § 760(7)(B).[10] Given (1) that the University itself has determined that plaintiff's needs warrant a doubling of the time in which he takes examinations, (2) the findings of the LNEC, and (3) the affidavit of the independent clinical psychologist retained by plaintiff (attesting to plaintiff's learning disability),[11] in a proceeding on the merits, plaintiff likely could establish that he is disabled under the ADA and the Rehabilitation Act. As to the requirement that plaintiff show a detriment based on his disability, in all likelihood he would be able to make such a showing on the merits. Clearly, if it is found that plaintiff's poor performance resulted from a learning disability, he will have satisfied this criterion, since the University has admitted that plaintiff was denied entry because of his poor performance. The stumbling block for plaintiff lies in showing that he is qualified to attend the University's Medical School. Under the Rehabilitation Act, an "otherwise qualified" individual is "one who is able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). The ADA similarly defines a "qualified individual with a disability" as one who "meets essential eligibility requirements ... for the participation in [a given] program[] ... provided by a public entity" "with or without reasonable modifications to rules, policies, or practices." 42 U.S.C. § 12131(2). Plaintiff urges that the five examinations which he took after the University doubled his allotted time demonstrate his qualifications to attend the Medical School. Although rather different from the case at bar, the court finds the Second Circuit's opinion in New York University (discussed above) instructive. In that case, the plaintiff was accepted into medical school after misrepresenting that she suffered from no mental problems. Actually, she was plagued with various mental disorders. The medical school subsequently determined that the plaintiff had severe psychological problems and could remain in medical school only if she agreed to undergo therapy. She agreed, but various problems ensued, and ultimately the medical school requested her to leave and refused to readmit the plaintiff. The plaintiff filed suit, seeking preliminary injunctive relief pursuant to the Rehabilitation Act, which the district court granted. The Second Circuit reversed, reasoning as follows: In determining whether a handicapped person is "otherwise qualified" for admission to an institution of higher education, a court must also consider other factors not normally encountered in evaluating ability to satisfy employment standards or to qualify for a job. The first of these is a court's limited ability, as contrasted to that of experienced educational administrators and professionals, to determine an applicant's qualifications and whether he or she would meet reasonable standards for academic and professional achievement established by a university.... "Courts are particularly ill-equipped to evaluate academic performance." Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 92, 98 S.Ct. 948, 956, 55 L.Ed.2d 124 (1978). For this reason, although the [Rehabilitation] Act requires [the court] rather than the institution to make the final determination of whether a handicapped individual is "otherwise qualified," ... considerable judicial deference must be paid to the evaluation made by the institution itself, absent proof that its standards and its application of them serve no purpose other than to deny an education to handicapped persons. *468 666 F.2d at 775-76;[12]see Wood v. President and Trustees of Spring Hill College, 978 F.2d 1214, 1222 (11th Cir.1992) (citing New York University with approval). In this case, plaintiff makes no argument — nor could he — that the University has any intention of discriminating against disabled or handicapped persons. It is equally clear that the University has not established its standards, or applied those standards, with the purpose of denying benefits to disabled or handicapped persons. Instead, the University concluded, upon examining plaintiff's record, that plaintiff could not enter into its Medical School because he was unprepared or, in other words, unqualified. While plaintiff's performance did improve with the University's reasonable modification (doubling of plaintiff's exam time), the University had to weigh five exams that showed this improvement against a much lengthier, and substantially poorer, record. On a full decision on the merits, it is highly improbable that plaintiff could demonstrate — with five improved examinations, overshadowed by a fall GPA of 2.223, a spring GPA of 2.838, and a cumulative GPA of 2.531[13] — that he is otherwise qualified or that he can function in the Medical School with or without reasonable modifications. As the University argues, with reasonable modifications plaintiff might be qualified; at this stage, however, the available evidence indicates that probably he is not. Because plaintiff must make such a showing under both the Rehabilitation Act and the ADA, and it is doubtful that he would be able to do so, plaintiff probably will not succeed on the merits of his claims under either the Rehabilitation Act or the ADA.[14] 2. PROCEDURAL AND SUBSTANTIVE DUE PROCESS CLAIMS Plaintiff next claims that even if there was no violation of the ADA and the Rehabilitation Act, the University violated his constitutional rights to procedural and substantive due process guaranteed by the Due Process Clause of the Fourteenth Amendment. Plaintiff's claim asserting procedural due process rights is governed by Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978), and its progeny. In Horowitz, the Supreme Court declined to address the question whether any constitutionally protected interest (liberty or property) was infringed by a student's dismissal from medical school, but assumed that it was. The Fourth Circuit has not directly addressed the issue, although it too assumed the existence of such an interest. See Henson v. Honor Committee of U. Va., 719 F.2d 69, 73 (4th Cir.1983); Lewin v. Medical College of Hampton Roads, 910 F.Supp. 1161, 1164 (E.D.Va.1996) (citing cases). The standard *469 adopted by the Fourth Circuit for evaluating whether there has been a denial of procedural due process depends to some degree on whether the challenged action involves an objective or subjective inquiry. Siu v. Johnson, 748 F.2d 238, 244 (4th Cir. 1984). The standard for the latter type of decisionmaking is substantially relaxed. All that is necessary to ensure that a plaintiff has received constitutionally required process is a finding that the decision "was not so arbitrary and capricious that a reviewing court can confidently say of it that it did not in the end involve the exercise of professional judgment." Id. at 245.[15] Plaintiff makes the argument that his dismissal involved the evaluation of a single objective criterion, specifically whether he attained a 2.75 GPA or better. This assertion simply cannot be supported. From the outset, plaintiff was informed that his admission into the Medical School was dependent upon the satisfaction of the faculty committee. When it modified the criteria plaintiff would have to satisfy to remain in MAAP, the University reiterated that the faculty committee would retain the discretion to rescind its offer of admission if it was dissatisfied with plaintiff's performance. Moreover, according to defendants, the reason plaintiff was denied admission into the Medical School was that the faculty committee "judged [his] academic performance to be insufficient for entry into medical school." Defs.'s Motion, Affidavit of Ms. Bailey. When the faculty committee informed plaintiff that its decision was based on his failure to meet an overall GPA of 2.75, this decision reflected the subjective professional judgment of the faculty committee that students performing below that level were incompetent to attend the Medical School. Plaintiff further contends that even if the faculty committee's decision was subjective, it was also arbitrary and capricious, because it supposedly imposed a new and unexpected criterion on plaintiff. This is not a tenable argument, even making the assumption, see supra note 3, that the specific criterion was not previously made known to plaintiff. A judgment that a medical student should be able to maintain a 2.75 GPA or better is far from arbitrary or capricious; given the great responsibility shouldered by the medical profession, it should hardly surprise anyone — including plaintiff — that grades dangerously close to the C range are unacceptable. Moreover, plaintiff's grades were far below those of all other MAAP participants, none of whom received an average GPA below 3.2 cumulatively, or during the spring semester alone. The same reasoning that compels the conclusion that plaintiff would not be able to establish a violation of procedural due process on the merits, applies with equal force to his substantive due process claim. Under Regents of the University of Michigan v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985), substantive due process concerns are raised only by a decision that is "such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment." Id. at 225, 106 S.Ct. at 513. Otherwise, "[p]lainly, [courts] may not override [an academic decision]." Id. For the reasons stated in connection with plaintiff's procedural due process claim, defendants made no departure from accepted academic norms. 3. STATE LAW BREACH OF CONTRACT CLAIM Plaintiff's last theory for recovery is a pendent Virginia state law breach of contract *470 claim. Citing various cases (none from Virginia), plaintiff argues that an offer by a university followed by acceptance by a student creates a binding contract between the parties. Although plaintiff concedes that the University would have been justified in rescinding its offer to plaintiff when he failed to meet the minimum GPA requirement for the fall semester (and received a D - in physics), plaintiff argues that the University waived this requirement when it permitted plaintiff to continue in MAAP. Further, plaintiff insists that there was never a requirement that he maintain a 2.75 average for the year, but only per semester, and he met this requirement in the spring semester when he attained a 2.838. For purposes of deciding this issue, the court will put aside the fact that a required average of 2.75 per semester ineluctably leads to a required average of 2.75 for the year, which plaintiff did not attain. Assuming there never was a minimum GPA requirement for the year, or, alternatively, assuming that the University waived any such requirement by permitting plaintiff to remain in MAAP despite his failure to attain the 2.75 GPA in the fall, the court still cannot make a finding that the University breached any alleged contract with plaintiff. This is because the University specifically reserved the right to deny plaintiff entry into the Medical School upon reevaluation by the faculty committee and its judgment that plaintiff was prepared for the Medical School. The University did not deviate from its promised course of action. Given the express reservation by the University and subsequent action consistent with the reservation, it is most doubtful that plaintiff could prevail on the merits of his breach of contract claim against the University. C. There remains the question of public interest. The public has an interest in seeing that the various statutory provisions enacted for the benefit of the handicapped or disabled are faithfully followed, so as to prevent discrimination against the disabled generally and against plaintiff here, particularly. Of course, the public also has an interest in the enforcement of constitutional rights and state contract laws. There is a public interest, on the other hand, in preserving unfettered academic responsibility for appropriate academic decisionmaking, both as to admission policies, as in this case, and as to the myriad other academic decisions which must be made in the academic operation of a university, whether generally for the institution or, as in this case, for admission to a medical school. Considering the long range effects of authorizing individuals to enter into the practice of medicine following graduation and given the circumstances of this case, a greater public interest inheres in assuring, by academic decision, the competency of medical school graduates. While not necessary to resolution of the immediate issue herein addressed, there is lurking in this case a more fundamental question. That question is what, in the academic circumstance, is a "reasonable modification." Considering "reasonable modification" in the usual employment setting is relatively straightforward. Modification of work stations, etc., presents relatively little analytical difficulty. The academic setting, however, brings strongly into play factors far removed from work station changes. In the academic setting, the most difficult question arises in defining "reasonable modification." Academic standards are set by the institutions, and involve the classic example of the exercise of the academic function. Is the elimination or relaxation of one or more of those standards a "reasonable modification" for the needs of a disabled person? If a "relaxation" of such a standard must be measured against a reasonableness test, the court is then required to make a decision relating to or dealing with an academic standard. Being projected into that position is contrary to the various case law directions cautioning trial courts against such intrusion in academic matters. Almost inevitably the argument will be made that the relaxation is reasonable, though it is in fact a diminution of the standard affected. Only by entering into this proscribed territory can a court resolve this issue. In the case at bar, it may be that this will not arise as an issue, since *471 the defendants have acquiesced in a program of double time for plaintiff's examinations. It is by no means certain that the issue will not arise here, but it appears unlikely because of that acquiescence. In providing the double time arrangement for plaintiff, the University effectively is measuring his performance by a lower standard. Is this a "reasonable modification"? To determine the answer to that question, is the court then required to enter into the academic thicket? Such questions pose difficult problems for this court. D. Given the court's finding (1) that plaintiff will not suffer irreparable injury, (2) that plaintiff has little chance of success on the merits, and (3) that public interest favors denial of a preliminary injunction, it should be clear that a preliminary injunction should not issue in this case. Nonetheless, for the sake of completeness, the court notes that throughout its analysis it has assumed that the balance of harms favors plaintiff in this case. Still, this lone factor, of course, is insufficient to overcome all of the other considerations, discussed above. Therefore, the court denies plaintiff's motion for a preliminary injunction. Reviewing the foregoing opinion originally submitted on August 16, 1996, the following aphorism, thought to be attributed to Benjamin Disraeli, comes to the court's mind: "If I had more time, I'd write a shorter letter." An appropriate Order shall this day issue. ORDERED that the Memorandum Opinion entered by this court on August 16, 1996, shall be, and it hereby is, withdrawn. The Memorandum Opinion accompanying this Order shall be substituted for the August 16, 1996 Memorandum Opinion. The judgment of the court pursuant to the August 16, 1996 Memorandum Opinion and underlying Order is not affected by the substitution of the previous Memorandum Opinion. NOTES [1] The court's analysis is hampered by the fact that plaintiff filed his complaint on August 9, 1996, and filed his motion for a preliminary injunction on August 14, 1996, giving this court and defendants precious little time to analyze plaintiff's claims before the hearing on August 15, 1996. It was essential to conduct the hearing immediately because the court was advised that the entering class of the Medical School would begin on August 19, 1996. [2] Plaintiff subsequently obtained independent evaluation by a doctor who has purportedly found that plaintiff has a learning disability. [3] Plaintiff persistently emphasizes that there was no requirement that he maintain a 2.75 average GPA for the year; he insist that the requirement (if in force) only applied to individual semesters. But, if there is a requirement of 2.75 in the fall, and 2.75 in the spring, inevitably (by the power of mathematics) there is a minimum requirement of 2.75 per year. Even if a directive from the court could trump mathematics, plaintiff ignores the fact that pursuant to the modified agreement with plaintiff, the faculty committee reserved the right to reject his application upon reevaluation, and after reviewing plaintiff's performance, the faculty committee found plaintiff unprepared for the Medical School based on his failure to achieve a minimum GPA of 2.75. [4] Plaintiff claims that this was, in essence, a settlement offer, but defendants claim to the contrary. The burden on this issue rests with plaintiff, and he has not offered any evidence that rebuts defendants' representation (during oral argument on August 15, 1996) that the offer was a continuing step in the appeals process. [5] Essentially, plaintiff would be required to (1) take an additional twelve credits of course work, in which the University offered to support any request plaintiff made for double time; (2) retake the Medical College Aptitude Test ("MCAT") (again, using double the time allotted non-disabled students if possible); and (3) attain a GPA of 3.25 or better, receive no grade lower than C, and achieve an average score of 8 on the MCAT, with no individual score falling below 7. [6] The Medical School has 139 openings, all of which are currently full. [7] For instance, the average medical student at the University has an MCAT score of 10; plaintiff is required to score an average of only 8 (with double time) pursuant to the University's offer. Defs.'s Motion, Affidavit of Ms. Bailey. [8] The court assumes that the ADA and the Rehabilitation Act apply to the University. [9] The ADA defines disability as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual[,] ... a record of such impairment[,] or ... being regarded as having such an impairment." § 12102(2). [10] The Rehabilitation Act includes within its definition of "handicapped individual" precisely the same individuals covered by the ADA's definition of disability. § 706(7)(B). [11] Plaintiff has produced his own affidavit asserting his past record of learning problems. [12] Subsequent to oral argument, the court uncovered this case, which expresses and addresses the concerns the court voiced from the bench regarding the potential conflict between the ADA and the Rehabilitation Act on the one hand, and academic freedom on the other hand. [13] One requirement of the MAAP program was the achievement of MCAT scores satisfactory to the faculty committee. While the faculty committee did not consider plaintiff's MCAT scores in their initial decision because the scores did not become available until June 1996, the scores plaintiff received are a consideration at this stage for the University. Defs.'s Motion, Affidavit of Ms. Bailey. Plaintiff's scores were extremely low, and far below those of the average matriculating student in the 1996-1997 class, id., although it must be noted that plaintiff took the MCAT examination without the benefit of double time. [14] Plaintiff also argues that defendants violated 34 C.F.R. § 104.7(b), which requires entities covered by the Rehabilitation Act to "adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by this part." Id. It is impossible to resolve this claim without further factual development. No evidence has been presented by plaintiff to prove the negative (i.e., that defendants have no such procedure), and plaintiff does not explain why the right of appeal (to Dean Carey) given plaintiff did not satisfy the requirement for a grievance procedure. Nor does plaintiff present any valid argument that any further grievance procedure would have changed the University's current position. For purposes of demonstrating success on the merits, plaintiff has not met his burden. Defendants do not address plaintiff's claim under the Rehabilitation Act regulations, understandably so, given that plaintiff served his motion on them in the late afternoon before the morning of the preliminary injunction hearing. [15] This standard clearly comports with Horowitz, which explained that [t]he decision to dismiss ... [the student] rested on the academic judgment of school officials that she did not have the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal. Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adaptable to the procedural tools of judicial or administrative decisionmaking. 435 U.S. at 89-90, 98 S.Ct. at 955.

202 B.R. 850 (1996) In re John E. TOPAKAS and Jacqueline Topakas, Debtors. Rose Mary LICCIO, Plaintiff, v. John E. TOPAKAS, Defendant. Bankruptcy No. 96-11545DAS, Adversary No. 96-0624DAS. United States Bankruptcy Court, E.D. Pennsylvania. November 20, 1996. *851 *852 Robert Szwajkos, Lavin, Coleman, Finarelli & Gray, Philadelphia, PA, for Debtors. M. Susan Sheppard, McCabe, Weisberg, Conway & Watson, Philadelphia, PA, for Plaintiff. Michael H. Kaliner, Trustee, Fairless Hills, PA. Frederic Baker, Ass't United States Trustee, Philadelphia, PA. OPINION DAVID A. SCHOLL, Chief Judge. A. INTRODUCTION The instant adversary proceeding ("the Proceeding") requires this court to determine whether the unliquidated claims of waitress ROSE MARY LICCIO ("the Plaintiff") of sexual harassment against her employer, restaurant co-owner JOHN E. TOPAKAS ("the Debtor"), are non-dischargeable pursuant to 11 U.S.C. § 523(a)(6). The conduct at issue is several allegedly sexually-oriented touchings combined with sexually-related utterings. The principal defenses are that the conduct never happened or has been exaggerated in a contrived boilerplate federal district court complaint. Despite the Plaintiff's sloppy pleading, we disbelieve the Debtor's denials that the conduct and speech occurred as the Plaintiff described, because she and her witnesses were highly credible and the debtor was not credible in the least. Our disbelief of the Debtor supports the conclusion that his actions were in fact malicious as well as willful. The aspect of the Plaintiff's case which we find most difficult to accept, i.e., allegations of her virtual psychological collapse as a result of the Debtor's conduct, present an issue of what should be the appropriate damages. This issue, however, will be resolved by the district court, where the Plaintiff had filed a Civil Rights action shortly before the Debtor's bankruptcy filing and which our disposition will permit to resume. B. FACTUAL AND PROCEDURAL HISTORY The Debtor and his wife Jacqueline (referenced collectively as "the Debtors") filed the underlying voluntary joint Chapter 7 bankruptcy case ("the Case") on February 26, 1996. It was preceded by the Plaintiff's filing of a Civil Rights action alleging sexual discrimination and harassment in the United *853 States District Court for the Eastern District of Pennsylvania, at C.A. No. 96-1058 ("the C.R. Action"), on February 12, 1996. Although the C.R. Action preceded the filing of the Case by two weeks, the Debtor attempted to make an issue of his contention that the Plaintiff's claims were not the impetus for the bankruptcy filing by initially stating that he was not aware of the C.R. Action when he and his wife filed bankruptcy and that they did so to discharge indebtednesses of over $10 million arising from the Debtor's prior failed construction business. However, the Debtor was later compelled to reluctantly admit that he was served with the C.R. Action complaint prior to the bankruptcy filing; that there were no emergent proceedings arising from his other financial affairs at the time of the filing; and that the Plaintiff, in care of her attorney in the C.R. Action, was designated in the Debtor's bankruptcy schedules as an unsecured creditor, establishing that he was in fact aware of the C.R. Action when he filed the Case. The Complaint in the Proceeding was filed on May 10, 1996, well prior to the May 31, 1996, deadline for objecting to the general discharge of the Debtors or the dischargeability of any of their debts. Trial was originally scheduled on September 26, 1996. Prior to trial the parties questioned whether the C.R. Action should not be permitted to go to trial before the Proceeding, thereby avoiding possible multiple litigation. We did not think that this was so, even though we acknowledged our unwillingness to liquidate the Plaintiff's claim. See In re Clayton, 195 B.R. 342, 345-46 (Bankr.E.D.Pa.1996); In re Shapiro, 188 B.R. 140, 149 (Bankr.E.D.Pa. 1995) (FOX, J.); and In re Stelweck, 86 B.R. 833, 844-45 (Bankr.E.D.Pa.1988), aff'd sub nom. United States v. Stelweck, 108 B.R. 488 (E.D.Pa.1989) (task of bankruptcy court is to determine dischargeability, not liquidate a nondischargeable claim). Were the C.R. Action litigated first, the parties would nevertheless have to return to this court to determine dischargeability of the Plaintiff's claim unless the Debtor had prevailed, although collateral estoppel of certain findings in the C.R. Action in favor of the Plaintiff could apply here. However, the Proceeding presented the Plaintiff with the more difficult task of establishing not only legitimate claims, but also that her claims were nondischargeable. Had the Plaintiff failed in either regard, the Debtor would have been entitled to the normative bankruptcy relief of discharge from the liabilities alleged in the C.R. Action and a permanent injunction against its going forward. Therefore, it seemed logical to have the Proceeding go forward first. The trial was therefore rescheduled for October 29, 1996. After its completion on that date, we gave the parties until November 12, 1996, to file briefs in support of their respective positions in this adversary action, which they did in timely fashion. The Plaintiff, an unmarried woman in her late 40's, was initially employed at Dynasty Inn ("Dynasty"), located at 43 Snyder Avenue, in South Philadelphia, as a waitress from 1989 to December 1993, when it was under prior ownership. After a fire at the restaurant in December 1993, it was sold to the Debtor, who appears to be in his 50's, has been married 28 years, and is the father of six children, and another individual identified at the trial only as Nick,[1] who reopened it in October 1994 and rehired several of the former waitresses, including the Plaintiff. The Plaintiff testified that she never had any problems at Dynasty until November 1994. At that time, she described an initial incident wherein, while she was standing at a soda machine, the Debtor rubbed his groin area against her buttocks. She stated that she did not say anything to the Debtor, but rather gave him a "dirty look" and tried to ignore the incident, thinking that maybe the space in the area near the soda machine was too tight and that he did not mean to rub up against her in the manner in which he did. However, shortly thereafter, the Plaintiff stated that, when she was standing near a coffee machine, the Debtor again rubbed his groin area against her buttocks. As before, she did not say anything to him about the incident. *854 Later in that same month the Plaintiff testified that, while she was standing at a salad bar, the Debtor asked her, in a suggestive manner, whether she was married or dating. The Plaintiff testified that she did not respond to his questions, although she believed them inappropriate, because she needed her job and did not want to get fired. However, she then told her co-workers about the previous incidents. The Plaintiff next related an incident of December 23, 1994, when she and a friend went to Dynasty for an evening dinner after she had worked that day. While she was at the juke box talking to two co-workers, one of whom, Augusta ("Gussie") Pina, testified at trial, the Debtor suddenly walked up to her and grabbed her between the legs near her crotch. The Plaintiff, although unable to say anything to the Debtor because he walked away immediately thereafter, testified that she was so upset by this occurrence that she left immediately and shortly thereafter told Nick about this incident, assuming that he would speak to the Debtor to get him to cease his unwelcome sexually-related conduct. The Plaintiff's testimony regarding the December 23, 1994, incident was fully supported by Pina's testimony at trial. Pina further stated that she and the Plaintiff had been discussing the Debtor's sexually-related conduct towards the Plaintiff just before this incident occurred. We reject the Debtor's contention that the juxtaposition of this discussion and the event rendered Pina's testimony incredible. Contrary to the Debtor's allegations in his brief, the record does not support the conclusion that Pina was a personal friend of the Plaintiff, but was simply a co-worker who lived in a distant area of the City. Although no longer employed at Dynasty, Pina reflected no animosity towards the Debtor or Dynasty which would have adversely affected her credibility.[2] Pina also testified in support of the Plaintiff's claims that Dynasty was a sexually-abusive environment. She stated that it was rumored that the Debtor was involved in an affair with a barmaid named Maria. Also, she stated that she witnessed an incident in January 1995 when the Debtor opened the vest of another waitress, Donna Kruc, and commented that Kruc had "little boobs." Kruc, although still an employee at Dynasty, corroborated this incident and her resulting embarrassment in her own, understandably reluctantly-delivered testimony. The Plaintiff next stated that, in January 1995, when she had mentioned to the Debtor that she went to a nightclub to watch the Super Bowl, the Debtor, the next day, asked her if she "got lucky with a man" that night. The final incident occurred on February 19, 1995. Near the end of her shift on a Sunday, the Plaintiff was sitting in a booth with Kruc. She testified that, because she was experiencing "hot flashes," she unbuttoned a top button on her blouse and fanned herself with the collar. She stated that the Debtor suddenly approached her and, touching her breast, stated that she had "nice boobs." She stated that both she and Kruc were shocked and Kruc called the Debtor a "dirty old man." Kruc verified her own shock, but testified that the Debtor stated "Are you looking for a man?" and that her own comment to the Plaintiff was, "I can't believe he did that." Kruc stated that she then went to the back of the restaurant to tell Michael Platanis, the Debtor's son-in-law and the manager of Dynasty, about this incident. The Plaintiff, upset by this incident, immediately left Dynasty that day, but testified that she still planned to return to work because she needed her job to help put her daughter through nursing school. She worked a three-hour morning shift the next day. However, that evening she decided that she could not continue to work at Dynasty because it required her to be in the Debtor's presence. She called Platanis to so advise *855 him and to arrange to retrieve her last paycheck upon advice from Platanis that she could do so. However, when she arrived at the restaurant on February 22, 1995, Platanis refused to release her check, allegedly because the Debtor was not on the premises. Thereafter, Susanne Mita, a friend of the Plaintiff who accompanied her, got into an altercation with Platanis. In a subsequent physical confrontation between Platanis and Mita, during which Mita was scratched and her clothing was torn and the Plaintiff was kicked by Platanis. She contacted the police about the incident of both February 19, 1995, and February 22, 1995. However, the police report erroneously indicates that Platanis was the "offender" in not only scratching Mita and ripping her clothes, but also in fondling the Plaintiff's breast. The Plaintiff, who expressed what we find was genuine emotional discomfort at relating all of the foregoing, and began crying at various times, testified that, subsequent to the foregoing incidents, she began experiencing emotional and physical problems for which she initially sought medical treatment on February 27, 1995. She testified that she continues to receive psychiatric care and medication for sleeping, and appeared to be a distraught individual. Although there was no expert testimony diagnosing her condition nor its cause, nor any testimony regarding her customary emotional well-being prior to these incidents, her implicit contention that the Debtor's actions caused her infirmities appeared to be a plausible hypothesis. As some evidence of her deterioration as a result of these incidents, the Plaintiff testified to her work history following employment at Dynasty, which the Debtor conceded had been quite satisfactory. She testified that she worked at Dunkin Donuts for two to three weeks, but quit the job because many of the customers were customers at Dynasty, who had heard stories about the incidents between her and the Debtor. She also worked at the Oregon Diner for three to four months, but left for unexplained reasons. She presently receives only public assistance and was quite convincing in stating that she generally feels "terrible." The Plaintiff lives with her 80-year-old father, who is ill, and has been hospitalized several times in the past year. In cross-examination in which the Debtor attempted to suggest that the father's medical condition had caused her emotional difficulties, the Plaintiff admitted that she was very close to her father, and concerned and upset about his condition. The Plaintiff attached the Complaint in the C.R. Action to the Complaint in the Proceeding and presumably meant to incorporate its averments therein by doing so. The C.R. Action complaint, in addition to misspelling the Debtor's name, includes the following averments: (1) "the Plaintiff made numerous complaints to Defendant, it [sic] agents, servant [sic] and employees;" (2) the Debtor "sexually harassed other female employees of the Defendant and did compel their submission to sexual intimacies and activities and other acts of sexual harassments;" and (3) "[t]he sexual harassment by John Topkas [sic] was rejected and was designed to compel the Plaintiff to submit to his sexual advances." In a Count asserting a cause of action for "False Imprisonment & Unlawful Restraint," the Complaint states, inter alia, as follows: 19. On February 19, 1995, Defendant, John Topkas [sic] cornered Plaintiff in the Defendant's facility grabbed her breast and would not let her leave the facility. 20. Defendant, John Topkas [sic] refused to release Plaintiff, but continued to assault, seize, hold, and restrain the Plaintiff. In a Count for "Assault and Battery" the following is alleged: 27. As a result of the assault and battery upon her by the Defendant, Topasak [sic] the Plaintiff sustained multiple bruises and contusions in and about the body, back and limbs, and external injuries in and about the body, back and limbs, and she did in particular, but without limitation, sustain a discoloration of the breast, contusion of the chest, contusion and abrasion of the arm, and severe emotional stress, some of which or all of which injuries are or may be permanent in nature. Plaintiff also makes a claim for such injuries, *856 damages and consequences resulting from the assault and battery of which she has no present knowledge. 28. As a further result of the assault and battery by Defendant, Plaintiff suffered and underwent great pain and was hindered and prevented from performing and transacting her usual affairs and business. 29. As a further result of the assault and battery by Defendant, Topkas [sic], Plaintiff was forced to expend various sums of money in endeavoring to cure herself of her injuries and may in the future be required to expend further sums of money in endeavoring to cure herself of the injuries. The Complaint in the Proceeding, while implicitly incorporating all of the above and, although reciting few factual allegations of its own, restates the last incident as follows: 9. On April 17, 1995, Defendant, John Topakas cornered Plaintiff in the Defendant's facility, grabbed her breast and would not let her leave the facility. The Plaintiff readily admitted that the foregoing allegations were grossly-exaggerated and/or totally inaccurate recitations of her claims. The Debtor easily rebutted the allegations quoted herein, stating credibly that he was a family man who had never physically injured the Plaintiff, never prevented her from leaving Dynasty at any time, never talked "dirty" to her, and did not proposition her for sex. Far less convincing were his attempts to deny or trivialize the events as described by the Plaintiff and her witnesses. The Debtor described himself as a friendly, "touchy" guy. He denied ever brushing up against the Plaintiff's buttocks and attributed any such contacts to incidental contacts of passage by large people in tight quarters. He stated that he did not recall opening Kruc's vest and talking about her breast size. He stated that he did not recall anything about the December 23, 1994, incident. He also testified that he did not recall ever asking the Plaintiff about her private life or sex life. With regard to the only incident which he did recall, that of February 19, 1995, the Debtor testified that he approached the Plaintiff to reprimand her for having her blouse open while his 12-year-old son was in proximity busing tables. He stated that he told her to button up her blouse and asked whether she was looking for a man. He initially denied having touched her breast at all. He then conceded that, if Kruc said he touched her breast, he probably had done so, but attempted to suggest that it was a barely noticeable accidental contact. He was confronted with attempts at his deposition to suggest that both he and Kruc had taken the incident lightly. This recitation was, however, inconsistent with Kruc's own expressions of indignation at his conduct. In addition to stating that he never harassed the Plaintiff, at one point in the trial he got upset and stated that "the only person being harassed is me." Also, at one point, he addressed the Plaintiff's female attorney as "Honey." Finally, while presenting no testimony regarding most of the incidents described by the Plaintiff, he took care to describe that Platanis, now his son-in-law, had become a Greek Orthodox priest and was "meek and mild," presumably as a rebuttal in light of his role in the physical fracas with the Plaintiff and Mita over the Plaintiff's final paycheck. C. DISCUSSION 1. The Debtor's Conduct Directed Towards the Plaintiff Constituted Actionable Sexual Harassment of Her. As noted in the authorities cited at page 853 supra, it is not the function of this court to liquidate any damages to which the Plaintiff might be entitled as a result of the Debtor's conduct. Rather, it is our duty to merely determine whether any claims of the Plaintiff against the Debtor should be discharged in the Case in light of the Plaintiff's contention that her claims are non-dischargeable under 11 U.S.C. § 523(a)(6). In order to resolve that question, it is initially necessary to analyze the nature of the Plaintiff's claims and determine whether they are actionable at all. If not, it appears that no § 523(a)(6) claim could be stated. See In re McCarthy, 179 B.R. 876, 880 *857 (Bankr.N.D.Ill.1995) (§ 523(a)(6) implicitly requires that the plaintiff prove that the debtor's conduct was wrongful). Title VII of the Civil Rights Act of 1964 considers an employer's actions to be unlawful if that employer fail[s] or refuse[s] to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . . 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has established that the conduct described in Title VII is not limited only to tangible or economic discrimination. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993); and Meritor Savings Bank v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). Rather, the phrase "terms, conditions, or privileges of employment" contained in the statute reveals a congressional intent to expunge all types of disparate treatment of women and men in employment, including requiring a person to work in work environments that are discriminatorily abusive or hostile to a person because of his or her sex. Harris, supra, 510 U.S. at 21, 114 S.Ct. at 370; and Vinson, supra, 477 U.S. at 64, 106 S.Ct. at 2404, both quoting Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 707, n. 13, 98 S.Ct. 1370, 1374-75, n. 13, 55 L.Ed.2d 657 (1978), in turn quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971). A plaintiff can establish that a violation of Title VII has occurred by showing that discrimination or harassment based on gender occurred which was so severe or pervasive that it had the effect of altering the conditions of employment and creating an offensive or hostile work environment. Harris, supra, 510 U.S. at 21, 114 S.Ct. at 370; Vinson, supra, 477 U.S. at 66, 106 S.Ct. at 2405; Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990); and In re Reproduction Systems, Inc., 133 B.R. 493, 499 (Bankr.W.D.Mo.1991). Similarly, the EEOC guidelines provide that [h]arassment on the basis of sex is a violation of Section 703 of Title IV. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, constitutes sexual harassment when . . . (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. 29 C.F.R. § 1604.11(a). The trier of fact must determine whether sexual harassment has occurred based on the totality of circumstances and on the record as a whole. Vinson, supra, 477 U.S. at 69, 106 S.Ct. at 2406-07, citing 29 C.F.R. § 1604.11(b). The Supreme Court has further explained that, in order for conduct to be considered as sexual harassment, the conduct does not have to "seriously affect employees' psychological well-being," nor cause the employee to suffer any injury. Harris, supra, 510 U.S. at 22, 114 S.Ct. at 370-71. The determination of whether conduct is abusive must be determined by considering the totality of the circumstances. Id. at 23, 114 S.Ct. at 371. Factors for the court to consider in making its determination include the frequency of the discriminatory conduct, the severity of the conduct, whether the conduct was humiliating or physically threatening or just a mere offensive utterance, whether the conduct unreasonably interfered with the employee's work performance, and whether other employees were sexually harassed. Id. See also Andrews, supra, 895 F.2d at 1482; and Stair v. Lehigh Valley Carpenters Local Union No. 600, United Brotherhood of Carpenters & Joiners of America, 813 F.Supp. 1116, 1119 (E.D.Pa.1993). In the foregoing analysis, the employee's psychological well-being must also be considered. Id. In Andrews, supra, 895 F.2d at 1482, quoting Vance v. Southern Bell Telephone and Telegraph Co., 863 F.2d 1503, 1510 (11th Cir.1989), the court held that, in order to determine whether a particular plaintiff has established a claim of sexual harassment, a trial court must consider the totality of the circumstances, including *858 whether the workplace was hostile or abusive in such a manner that it was "severe enough to affect the psychological stability of a[n] . . . employee." Other courts have held that, in order for conduct to rise to the level of harassment, "the conduct must be `unwelcome' in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive." Reproduction Systems, supra, 133 B.R. at 500, quoting Hall v. Gus Construction Co., 842 F.2d 1010, 1014 (8th Cir.1988). In a § 523(a)(6) case like that at hand, In re Sotelo, 179 B.R. 214 (Bankr.S.D.Cal.1995), the debtor's subordinate sued him for general and punitive damages which resulted from his alleged sexual harassment of her. In that case, the female plaintiff testified regarding numerous incidents when the debtor made unwelcome comments regarding her physical attractiveness. Id. at 215. The plaintiff began experiencing a variety of physical symptoms including panic attacks, which she alleged were due to the debtor's harassment of her. Id. at 216. She complained about the debtor's conduct to their supervisor, who refused to reprimand the debtor. Id. Thereafter, the plaintiff saw an attorney who agreed to take her case. Id. The attorney in turn notified the debtor that he would be filing a suit against him for sexual harassment on the employee's behalf. Id. The next day an unidentified female called the plaintiff on the telephone and stated "back off — or you're dead!" Id. Following the call, the plaintiff suffered a complete mental collapse and was hospitalized for over 30 days at a psychiatric hospital. Id. The Sotelo court held that the debtor's conduct was wrongful and in violation of Title VII. Id. at 218. The court also determined that, although the debtor's harassment of the plaintiff was not the sole cause of her emotional distress,[3] it was clear to the court that his actions "set off a `chain of events' that ultimately caused [the plaintiff] to suffer a complete mental collapse." Id. at 218. Applying the factors delineated in Harris, and considering the analysis in Sotelo, it is clear that, as to the frequency prong, the Debtor's conduct, while not occurring every day, was occurring on a consistent basis. In addition, not only did the Debtor make verbally offensive comments to the Plaintiff, but he also touched her inappropriately on her crotch, buttocks, and breast, which satisfies both the severity prong and the requirement that the actions in issue be more than a mere offensive utterance, as required by the Harris test and as was the case in Sotelo. With regard to the requirement that the conduct be humiliating or physically threatening, the Plaintiff clearly exhibited humiliation from the Debtor's actions. In light of the fact that the Plaintiff has not been able to hold down a job since the events in question despite her previously being a fine waitress, the Plaintiff has sufficiently alleged that the Debtor's conduct unreasonably interfered with her work performance. Compare Sotelo. Finally, at least one other employee of Dynasty was, to at least some degree, subjected to sexual harassment, i.e., Donna Kruc. Accordingly, the Plaintiff has established that the Debtor's conduct toward her was abusive pursuant to the Supreme Court's Harris test. The responses of the Debtor are, principally, that the Plaintiff was unable to prove the allegations of her "boilerplate" complaint; that the incidents recited were imagined or grossly exaggerated; and that, even if the Plaintiff's allegations were true, her reactions were not supported by clinical findings and were disproportionate to the allegedly-mild nature of his conduct. It is true that the Plaintiff's counsel, while forcefully advocating her client's claims, was extremely derelict in failing to plead the facts as they really happened. However, the Plaintiff, while not blameless for allowing false allegations to be made on her behalf, was also quite believable in disassociating herself from the misplaced exaggerated allegations in the Complaints without hesitation. *859 The testimony of Pina and especially Kruc, whose courage is to be admired since she remains a Dynasty employee, were supportive of the Plaintiff's position that the incidents were deemed seriously inappropriate by all other observers. The Debtor had no supporting witnesses despite his ready access to Dynasty employees who would appear to have been economically motivated to support him if they could. The Debtor's denial that all of the incidents except that of February 19, 1995, occurred, and his attempts at revisionist scenarios of that incident (initially denying any touch, then claiming it was all in fun, and finally ironically attempting to paint himself as the guardian of his son's morals in these actions) were totally lacking in credibility. To some degree, we can understand the Debtor's contentions that, when weighed against similar events sometimes described in the media, his conduct, even if it occurred exactly as the Plaintiff described it, should not have caused the claimed distress to a mature woman of the world such as the Plaintiff. This contention was supported by the inaccuracies and exaggerations in both the C.R. Action Complaint and the Complaint in the Proceeding incorporating it, suggesting that the true facts had to be distorted to make out a case. However, we do not agree that this contention should exonerate the Debtor. The damages will be liquidated in the trial of the C.R. Action. The district court may well conclude, in litigation of that Action, that lack of proximate cause will eliminate most if not all of the alleged damages. Furthermore, in Sotelo, supra, the debtor vigorously argued, similar to the Debtor's contentions, that he should not be held liable to the employee for all of her damages, since other persons' conduct also contributed to her mental collapse. See page 858 & n. 3 supra. In response, the court observed that a defendant takes a plaintiff "as is." 179 B.R. at 218. Thus, the court opined that, if a plaintiff is "unusually susceptible" to injury based on a prior existing condition, the defendant may still be liable for the entire injury. Id. The Sotelo court thus applied the blackletter "thin skull" or "egg shell" plaintiff rule. This rule basically provides that, as a tortfeasor, one takes a victim as the victim is found. See Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 166, 611 A.2d 1174, 1177 (1992); Fretts v. Pavetti, 282 Pa.Super. 166, 175, 422 A.2d 881, 885 (1980); Lebesco v. Southeastern Pennsylvania Transportation Authority, 251 Pa.Super. 415, 423, 380 A.2d 848, 851 n. 2 (1977); and Tomikel v. Commonwealth Dep't of Transp., ___ Cmwth. ___, ___, 658 A.2d 861, 863 (1995). Therefore, a tortfeasor is liable for a victim's injuries even if the victim is particularly sensitive to injury and this sensitivity resulted in more harm to the victim than was foreseeable to the tortfeasor. Lebesco, supra, 251 Pa.Super. at 423 n. 2, 380 A.2d at 852 n. 2. Considering the totality of the instant factual circumstances, we conclude that the Plaintiff has met her burden of proving that she raises legitimate claims that she was sexually harassed by the Debtor. Having made that determination, we must turn to our inquiry to whether this conduct was in violation of 11 U.S.C. § 523(a)(6). 2. The Plaintiff's Claims Against the Debtor Are Not Dischargeable Under Section 523(a)(6) of the Code Because the Debtor's Actions Were Both Willful and Malicious. The Bankruptcy Code provides, at 11 U.S.C. § 523(a)(6), that (a) A discharge under section 727, . . . of this title does not discharge an individual debtor from any debt; . . . . . (6) for willful and malicious injury by the debtor to another entity or to the property of another entity; . . . The nature of this Code section was comprehensively analyzed in In re Conte, 33 F.3d 303, 305-09 (3d Cir.1994). Section 523(a)(6) has been applied by this court in, e.g., In re Blanchard, 201 B.R. 108, 117-19 (Bankr. E.D.Pa.1996) (debtors' sale of equipment and furniture of a learning center without recognition of seller-creditor's security interest therein was excused because the debtors *860 were unaware of the security interest and they were acting for their creditors' general benefit); In re O'Donnell, James v. O'Donnell, Bankr. No. 95-16019DAS, Adv. No. 95-0833 (Bankr.E.D.Pa. March 8, 1996) (debtor's actions in attacking the plaintiff's decedent in retaliation for reports of drug activities at his place of business found nondischargeable); In re Grubb, DeMarco v. Grubb, Bankr. No. 95-12946 DAS, Adv. No. 95-0656 (Bankr. E.D.Pa. Dec. 14, 1995), aff'd, 1996 WL 230019 (E.D.Pa. May 3, 1996), appeal docketed, 96-1475 (3d Cir.) (judgment for plaintiff arising from the debtor's request to the plaintiff to cash an allegedly-forged check found not non-dischargeable despite an award of punitive damages to the plaintiff in a prior undefended state-court action because no certainty of the debtor's action in producing injury to the plaintiff was proven); In re Nickels, 1991 WL 202256 (Bankr.E.D.Pa. Oct. 2, 1991) (allowing release of contaminants on landlord's property by a business in which the debtor's husband was a principal was found dischargeable because no intention to harm the landlord was proven); In re Gaebler, 83 B.R. 264 (Bankr.E.D.Pa. ("Gaebler I"), rev'd, 88 B.R. 62 (E.D.Pa.1988) ("Gaebler II") (debtor's shooting of ex-wife's lover excused because of debtor's mental illness; reversed on appeal); and In re Lane, 76 B.R. 1016, 1023 (Bankr.E.D.Pa.1987) (debtor's refusal to return property allegedly given to her by an ex-lover found at best to be a simple conversion and therefore dischargeable despite § 523(a)(6)). The Plaintiff asserts that her claims against the Debtor are nondischargeable under § 523(a)(6) because the Debtor acted both willfully and maliciously in sexually harassing her over almost the entire period of four months during which she was employed by him at Dynasty and which, given her lack of affirmative responses and the reactions of her co-workers, he knew was not favorably received and was inappropriate. In Lane, we adopted a very narrow view regarding the applicability of § 523(a)(6), stating that it "requires an act with intent to cause injury to the victim." 76 B.R. at 1023. Accord Gaebler I, 83 B.R. at 267. But see Gaebler II, 88 B.R. at 65 ("a creditor need only prove that a debtor intentionally committed an act, without just cause or excuse, which necessarily produces injury"). In this regard, the Conte court, 33 F.3d at 308, adopted a test very much like that enunciated in Gaebler II ("willful and malicious injury . . . include[s] wrongful actions taken with substantial certainty of producing injury"). Thus, while more than mere reckless disregard of a debtor's duties is needed to successfully invoke § 523(a)(6), there is no requirement of a showing of specific malice. Id. Consequently, a debtor's actions will be considered to be willful and malicious under § 523(a)(6) if the actions are deliberate and taken with the specific intention of producing injury or if they have a substantial certainty of producing injury. Id. at 305, 307, 308, 309. As the Debtor's counsel correctly points out in his post-trial brief, the Conte court, id. at 308, quoted from the RESTATEMENT (SECOND) OF TORTS, § 8A, comment b, at 15 (1965), regarding the definition of intent, which states that [i]ntent is not . . . limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes forward, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow will decrease, and becomes less than substantial certainty, the actor's conduct loses the character of intent and becomes mere recklessness. However, we fail to see where that analysis aids the Debtor here. In order to prevail on claims under § 523(a)(6), as under any claims under 11 U.S.C. §§ 523(a) and 727(a), a creditor must prove every element of the claims by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 282-89, 111 S.Ct. 654, 656-61, 112 L.Ed.2d 755 (1991); In re Braen, 900 F.2d 621, 626 (3d Cir.1990), cert. denied, 498 U.S. 1066, 111 S.Ct. 782, 112 L.Ed.2d 845 (1991); and Blanchard, supra, 201 B.R. at 114. Thus, it is the Plaintiff's burden to prove, by a preponderance of the evidence, that the Debtor acted deliberately and with *861 at least a substantial certainty of producing injury to her. Several courts have already decided that sexual harassment claims may fall within the § 523(a)(6) exception to dischargeability. See In re Gee, 173 B.R. 189 (9th Cir. BAP1994); Sotelo, supra; and In re Miera, 104 B.R. 150 (Bankr.D.Minn.1989), aff'd, 926 F.2d 741 (8th Cir.1991). Cf. In re McGuffey, 145 B.R. 582 (Bankr.N.D.Ill.1992); and In re Moore, 1 B.R. 52 (Bankr.C.D.Cal.1979) (both holding that Civil Rights claims arising from racial discrimination in housing are nondischargeable under § 523(a)(6)). In this case, the Plaintiff has proven the requisite level of intent to sustain her claims. The testimony elicited at trial from the witnesses and both parties make it clear that the Debtor's actions toward the Plaintiff were committed willfully and maliciously in violation of the Plaintiff's civil rights under Title VII. The Debtor's conduct was unquestionably willful. There is no claim, even by the Debtor, that the Plaintiff in any way brought on the Debtor's conduct by even so much as sexually provocative dress or conduct or by any verbal encouragement. In fact, she credibly testified that she tried her best to keep her distance from the Debtor. The element of malice is usually the more difficult of the two prongs of § 523(a)(6) to prove. The Debtor's responses, in addition to his denials that the incidents actually occurred, which we thoroughly disbelieve, are the normal ones of parties faced with such charges, i.e., that no harm (but rather a compliment to the target's sexual attractiveness) was intended; that the acts were committed in sense of good (if not so clean) fun; and that certainly no injury to the extent which resulted was foreseen. These, and like defenses, were summarily rejected in Gee, supra, 173 B.R. at 192-93; Sotelo, supra, 179 B.R. at 217-18; and Miera, supra, 104 B.R. at 159. Nevertheless, some comment on the particular actions in issue here is appropriate. It is difficult to see how a man's acts of grabbing a woman's crotch and touching her breast, in public, without very strong signals from the woman that such conduct was appreciated, would ever be deemed appropriate, mutually enjoyable, "fun," and unlikely to produce any injury, at least embarrassment and humiliation, to the woman. The Debtor has not invoked the defense of mental illness, like the Gaebler debtor. He cannot make a claim of right to the actions taken, as did the Lane debtor. Therefore, his conduct appears to have been proven sufficient to clear even the difficult barrier to successful § 523(a)(6) actions articulated in those cases, let alone the more relaxed Conte standards. The Debtor cannot credibly claim ignorance of violations of the claimants' rights, as in Blanchard, nor ignorance of the repercussions of his actions, like the Nickels debtor. The potential for injury to the Plaintiff, at least to some degree, from the Debtor's conduct was much more readily foreseeable than the conduct at issue in the Grubb case. Finally, the Debtor's front-line defense was not that the Plaintiff over-reacted to his conduct. Rather, it was a close-minded and unconvincing denial that what was described ever happened. Finding no claim of a mental incapacity causing such denials, it is most disturbing to us to be confronted with a Debtor who we find was simply dishonest in his testimony to this court. The bankruptcy discharge is the entitlement of the "honest" debtor, or at least the debtor who finally "comes clean" in bankruptcy court. As we stated in In re Glen, 115 B.R. 837, 842 (Bankr.E.D.Pa.1990), quoting In re Butler, 86 B.R. 829, 831 (Bankr.E.D.Pa.1988): "It is our experience that disposition of dischargeability complaints turns largely on the credibility of the parties. Compare Gaebler, supra, 83 B.R. at 269 (debtor credible; debt discharges) with In re Mistry, 77 B.R. 507, 510, 512-13 (Bankr. E.D.Pa.1987), aff'd sub nom. Writer v. Mistry, C.A. No. 87-6466 (E.D.Pa. Feb. 9, 1988); and In re Somerville, 73 B.R. 826, 833, 837, 838 (Bankr.E.D.Pa.1987) (debtors not credible; debts not discharged)). . . . " See also In re Sullivan, 198 B.R. 417, 423 (Bankr.D.Mass.1996) ("a finding of `willful and malicious' conduct necessitates an inquiry by the court, not into the debtor's motivation, but into the degree of immorality of the *862 debtor's conduct. . . . It was proven at the trial that. . . . [t]he conduct also contained aggravating features making it malicious. The trespass and injurious activities continued for several months after it was brought to the attention of the Debtor's workcrew a trespass existed. I therefore conclude the conduct was willful and malicious within the meaning of section 523(a)(6), and hence nondischargeable.") (footnote omitted). We believe that the Debtor has been dishonest in his testimony to this court. Also, his conduct towards the Plaintiff was "immoral" in the colloquial sense that it displayed sexual oppression of a seemingly powerless subordinate employee at the hands of a powerful co-employer, and it was intentional and deliberate and continued throughout the four months of the Plaintiff's employment at Dynasty. Moreover, the Debtor increased his liberties taken with the Plaintiff's body despite her increasingly clear expressions of dissatisfaction with such conduct. Thus, we conclude that the facts of this case do rise to the level necessary to prevent the dischargeability of the claims under § 523(a)(6). Both the direct evidence presented and the circumstantial evidence in this case sufficiently prove that the Debtor acted with an intent to injure the Plaintiff. Consequently, the Plaintiff has satisfied her burden of proving that the Debtor acted willfully and maliciously. D. CONCLUSION An order declaring that the Plaintiff's claims asserted in the Proceeding are not dischargeable will be entered. ORDER AND NOW, this 20th day of November, 1996, after the trial of the above proceeding on October 29, 1996, and upon consideration of the parties' post-trial submissions, it is hereby ORDERED AND DECREED as follows: 1. Judgment is entered in favor of the Plaintiff, ROSE MARY LICCIO ("the Plaintiff"), and against the Defendant-Debtor, JOHN E. TOPAKAS ("the Debtor"). 2. It is DECLARED that the Plaintiff's claims asserted against the Debtor in her Complaint filed in the United States District Court for the Eastern District of Pennsylvania at C.A. No. 96-1058 are not dischargeable under 11 U.S.C. § 523(a)(6). NOTES [1] The transcript phonetically recites his last name as "Coligrios." [2] The Debtor commented that Pina's statement that "you gotta do what you gotta do" indicated a willingness to help the Plaintiff, allegedly her "close friend." In addition to lacking support of any close friendship, the record indicates that Pina used this phrase to encourage the Plaintiff to speak to Nick about the incident, in response to the Plaintiff's expressed fear that doing so would cost her her job. The comment did not relate at all to Pina's own willingness to provide testimony. [3] The telephone call containing the threat was obviously not made by the Debtor, although it was perhaps reasonable to assume that he instigated it. However, in addition, the plaintiff was having difficulties with a female supervisor at work. Id. at 218. Furthermore, she was also having problems with a teenaged daughter and was diagnosed as "`hyper-vigilant' because of a real or imagined sexual attack which occurred some 20 years previous." Id. at 219.

425 S.W.2d 821 (1968) Ex parte Vern Wilmer CARPENTER. No. 41083. Court of Criminal Appeals of Texas. February 28, 1968. Rehearing Denied April 17, 1968. O. M. Calhoun, Amarillo, for appellant. Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State's Atty., Austin, for the State. OPINION WOODLEY, Presiding Judge. This is a habeas corpus proceeding attacking as void the 5 year sentence imposed in Cause No. 13056 in the 47th District Court of Potter County wherein petitioner was convicted of the felony offense of drunk driving. The conviction is attacked upon the ground that at the time petitioner entered his plea of guilty in the County Court of Cottle County in the misdemeanor conviction alleged in the indictment, petitioner: "was denied the right to counsel as guaranteed by the 6th and 14th Amendment___, as petitioner was tried for the offense of D.W.I. and was convicted of the said charge without the aid of counsel," and *822 "such prior conviction being illegal as petitioner was without the aid of counsel." (Quotes from petition for writ of habeas corpus subscribed and sworn to by petitioner to the best of his knowledge and belief, June 6, 1967.) Neither the petition containing the above allegation nor what is designated as a petition for mandamus sworn to October 13, 1967, contains any allegation of fact to support the claim that petitioner was denied the right to counsel when he pleaded guilty in Cottle County to the misdemeanor offense—unless it be the allegation that he was without counsel. As petitioner points out, the Texas Statutes in effect at the time of his conviction in Cottle County did not require that the court appoint counsel for an indigent defendant charged with misdemeanor D.W.I. There is no allegation, affidavit of finding that petitioner desired counsel; was not advised of his right to counsel, or was by reason of indigency unable to obtain counsel to represent or defend him. The trial court's findings of fact based on the pleadings: "Petitioner has sworn on his oath that he had no attorney, and the court therefore finds as a fact that he did not have an attorney at the time of his former trial for the misdemeanor offense," does not support his conclusion that "petitioner is not now lawfully confined," and "petitioner has been at his former trial for the misdemeanor offense denied the right to counsel." Appellant swore only that the information in his Petition for Writ of Habeas Corpus was true to the best of his knowledge and belief. The petition does not contain allegations sufficient to show denial of counsel. Neither this court nor the Supreme Court of the United States has held a felony conviction void on the ground that in the prior misdemeanor conviction pled as an element of such felony the defendant was indigent and without counsel at the time he pled guilty to said misdemeanor. This court is not bound by the conclusions of law of the district judge, that petitioner is now unlawfully confined. Ex parte Young, Tex.Cr.App., 418 S.W.2d 824. The petition for writ of habeas corpus forwarded to this court with the findings and conclusions of the district judge is denied.

22 F.Supp.2d 1146 (1998) Leslie WHALEY, Petitioner, v. S. Frank THOMPSON, Respondent. No. Civ. 97-254-MA. United States District Court, D. Oregon. September 30, 1998. *1147 *1148 *1149 *1150 *1151 *1152 Steven T. Wax, Federal Public Defender, Portland, OR, for Petitioner. Hardy Myers, Attorney General, Lynn David Larsen, Jan Peter Londahl, Assistant Attorneys General, Department of Justice, Salem, OR, for Respondent. JUDGMENT MARSH, District Judge. Based on the Record, IT IS ORDERED AND ADJUDGED that petitioner's habeas corpus petition (# 1) is GRANTED IN PART and DENIED IN *1153 PART as follows: Petitioner's first-degree kidnaping conviction in Multnomah County Circuit Case No. C88-07-35193 is VACATED and the petition is DENIED as to the remaining issues. ORDER In accordance with my opinion issued this date, the petition for writ of habeas corpus (# 1) is GRANTED in part and DENIED in part as follows: GRANTED as to petitioner's kidnaping conviction and DENIED as to petitioner's rape conviction. Petitioner's first degree kidnaping conviction is VACATED. IT IS FURTHER ORDERED that petitioner's motion for summary judgment (# 8) is DENIED and respondent's motion to deny habeas corpus relief (# 19) is DENIED as to the conviction for first degree kidnaping and GRANTED as to the remaining issues. Petitioner's counsel shall present a form of judgment. IT IS SO ORDERED. OPINION Petitioner, an inmate at the Oregon State Penitentiary, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the court are the petition (# 1), the petitioner's motion for summary judgment (# 8), and the respondent's motion to deny habeas corpus relief (# 19). For the reasons set forth below, the petitioner's motion for summary judgment (# 8) is DENIED. The petition (# 1), as well as the motion to deny habeas corpus relief (# 19) are each GRANTED IN PART and DENIED IN PART. PROCEDURAL BACKGROUND Petitioner was convicted on December 12, 1988, on charges of first degree rape and first degree kidnaping. On March 3, 1989, he was sentenced to a 20-year term of imprisonment on the rape charge and a consecutive 10-year term of imprisonment on the kidnaping charge. Petitioner directly appealed his conviction and sentence. Petitioner's court-appointed attorney filed a brief on behalf of petitioner and petitioner also submitted a pro se brief asserting additional assignments of error. The Oregon Court of Appeals affirmed without opinion, the Oregon Supreme Court denied review, and the United States Supreme Court denied certiorari. State v. Whaley, 108 Or.App. 365, 815 P.2d 722, rev. denied, 312 Or. 526, 822 P.2d 1195 (1991), cert. denied, 504 U.S. 977, 112 S.Ct. 2951, 119 L.Ed.2d 574 (1992). Petitioner subsequently filed a petition for state post-conviction relief. Again, despite being represented by counsel, petitioner filed his own supplemental briefs and exhibits. The matter was submitted on the briefs and exhibits without any testimony or argument. On December 13, 1993, the court issued its findings of fact and conclusions of law denying the petition. Petitioner appealed the denial of post-conviction relief. His court-appointed counsel submitted a "Balfour" brief, in which he indicated that the appeal was frivolous, and attached arguments that petitioner desired to make. See State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). The Oregon Court of Appeals affirmed the decision below, without opinion, and the Oregon Supreme Court denied review. Whaley v. Maass, 138 Or.App. 304, 906 P.2d 871 (1995), rev. denied, 323 Or. 264, 916 P.2d 312 (1996). The instant petition was filed on February 13, 1997. In it, petitioner raises six separate grounds for relief. DISCUSSION I. SUMMARY OF FACTS. Deborah Baker, the victim, first met petitioner at the Pass Club, an alcohol-free night-club, on May 6, 1988. The following evening, Baker went to the Pass Club again. As Baker was leaving the Pass Club around midnight, petitioner called Baker's name and asked if she would go for coffee with him. She agreed. Around 1:30 am, they went to a coffee shop near Baker's home. In the course of their conversation, Baker told petitioner she was leaving for Minnesota in a few days to enter a substance abuse program. Petitioner told Baker he wanted to stay in touch with her and wrote his name, address, *1154 and phone number on a piece of paper he cut out of a placemat using a pocket knife. After using the knife, petitioner put it into his coat pocket. Around 3:00 a.m., Baker asked petitioner to take her home. Petitioner drove Baker to her parents' house. They parked either directly in front of the house or next door, and sat in the car talking. When Baker told petitioner she had to go and reached to open the door, petitioner pulled her into the car and told her she could not go. Baker and petitioner kissed. Then, according to Baker, petitioner forced himself on her. In response, she said "don't" several times. Baker tried to push petitioner off, but finally submitted. Petitioner never struck Baker, threatened her or displayed any weapon. She sustained no cuts, bruises, or marks. Nevertheless, Baker testified that she knew petitioner had the pocket knife in his jacket and that she was terrified by it. She remembered attending a class where she had been taught "that if there was any possibility that you could be in danger or that there was not a chance that you could get away to submit." She did not scream for help because she did not think anyone would hear her. Baker testified that after forcing himself upon her, petitioner immediately drove off preventing her escape from the car. They drove to an apartment building which petitioner identified as "a friend's house." According to Baker, petitioner got out, rapped on an apartment window, and returned to the car when there was no response. Baker did not think she had an opportunity to escape at that time because petitioner "kept an eye on her." During the entire time they were driving around petitioner never displayed any weapon, physically restrained her, or threatened to harm her. The car doors were unlocked. Baker testified that she didn't get out and run when they stopped at red lights or at the apartment building because she feared petitioner might chase after her. Petitioner then drove Baker back to the Pass Club. There were "construction people and staff members" present. Petitioner went to use the restroom. When he returned, Baker says she told him that what he had done was wrong, and threatened to call the police if he didn't leave. She took a cab home and told her parents that she had been raped. Baker's parents immediately called the police. Petitioner, when interviewed by the police, stated that he thought Baker had accused him as part of a plot by Darleen Emmonds, whom petitioner's referred to as his "ex-wife." In the weeks prior to trial, petitioner wrote several letters, to Emmonds and others, outlining his perception of the plot. At trial, he offered testimony that the entire story given by Baker was a fraud, a fabrication and a conspiracy to get him into trouble and to extort money from him or to obtain state funds for an abortion under false pretenses. At trial, petitioner was represented by court-appointed counsel. After the prosecutor's opening argument, however, petitioner abruptly announced that he wanted to question some witnesses himself because he knew more about the details of the case than did his attorney, Robert Swider, and he wanted his accusers to have to "look [him] in the eye." However, petitioner still wanted Swider to handle "about 95 percent of [the] case." The trial judge tried to discourage petitioner from representing himself but ultimately allowed petitioner to proceed pro se. However, in view of petitioner's expressed intent to have Swider still handle "95 percent" of the case, and reservations about petitioner's ability to represent himself, the trial judge agreed to permit a "hybrid" representation. Petitioner would be in charge of his own defense, but he could delegate specific tasks to Swider. Swider protested that his client wasn't competent to stand trial, let alone represent himself, but that objection was overruled. Swider subsequently proposed that he be the one to make all evidentiary objections. Petitioner and the trial judge both agreed to this division of responsibility. II. STANDARDS. Before considering the merits of the petition, I must first determine the impact of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, *1155 which amended 28 U.S.C. § 2254 in several respects. The parties disagree on the proper interpretation of the Act and whether it applies to petitioner's habeas petition, in five respects: (1) the viability of the prior petition precluding application of the AEDPA; (2) the impermissible retroactive effect of the AEDPA; (3) the continued discretion to hold evidentiary hearings in this court; (4) the continued recognition of procedural default as a defense; and (5) the deference to be accorded state court decisions. A. Continuation of Earlier Petition. Initially, I reject petitioner's contention that the AEDPA is inapplicable to this case because the instant petition is merely a "continuation" of an earlier petition that petitioner filed on March 18, 1992. The first petition was dismissed, without prejudice, because petitioner had not exhausted his state remedies. Although the prior petition does not count for purposes of the rule barring successive § 2254 petitions, In re Turner, 101 F.3d 1323 (9th Cir.1996), that does not mean the present petition relates back to the one filed five years earlier. In short, the instant petition was not "already pending" when the AEDPA was passed. B. "Impermissible Retroactive Effect." Because this action was filed after April 26, 1996, the provisions of the AEDPA apply. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2061-68, 138 L.Ed.2d 481 (1997); Calderon v. U.S. Dist. Court, 128 F.3d 1283, 1287 (9th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998). Nevertheless, petitioner contends that the AEDPA — if interpreted in the manner respondent urges — would have an "impermissible retroactive effect" because it would "attach[] new legal consequences to the 1993 state court post-conviction proceedings." The AEDPA contains a number of provisions, and the effect of each differs. Accordingly, it is not possible to make a blanket statement that the AEDPA does, or does not, have an impermissible retroactive effect. Rather, each provision must be analyzed separately in the context of a given case. First, petitioner argues that had he known that the rules, procedures, and standards for resolution of habeas corpus claims in federal court would change as radically as the state suggests, he would not have agreed to voluntarily dismiss his 1992 federal habeas petition. That argument fails because dismissal was mandatory due to petitioner's failure to exhaust his state court remedies. Next, petitioner contends that to deny him a federal court evidentiary hearing would attach new legal significance to the state court post-conviction proceeding. Petitioner appears to be arguing that because he knew that he was entitled to a federal court evidentiary hearing, he did not present all of his evidence and arguments in the state post-conviction proceeding. State post-conviction proceedings are not a mere formality in preparation for proceedings in federal court. Petitioner was required to present all of his evidence and his best arguments to the state court. This rule predates the 1993 post-conviction proceeding. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). Consequently, the AEDPA's limitation upon federal court evidentiary hearings does not have an impermissible retroactive effect in this instance. The court also finds no merit to petitioner's contention that the AEDPA has an impermissibly retroactive effect if it increases the level of deference given to the state court's findings of fact and conclusions of law. Petitioner had every incentive to fully litigate in state court. There is no reason to believe that he would have done anything differently had he known the state court's decision would be entitled to greater deference. There is nothing fundamentally unfair about applying the AEDPA to this petition. C. Discretion to Hold an Evidentiary Hearing. 28 U.S.C. § 2254(e)(2) restricts the availability of evidentiary hearings in federal habeas corpus proceedings as follows: (2) If the applicant has failed to develop the factual basis of a claim in State court *1156 proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. Despite the mandatory language of the statute, the circuits to address the application of § 2254(e)(2) have uniformly held that if the applicant/petitioner diligently sought to develop the factual basis of a claim for habeas relief but was denied the opportunity to do so by the state court, § 2254(e)(2) is inapplicable and the federal court retains discretion to hold an evidentiary hearing. Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir.1997); Cardwell v. Greene, 152 F.3d 331, 1998 WL 466704, *6 (4th Cir.1998); McDonald v. Johnson, 139 F.3d 1056, 1059-60 (5th Cir. 1998); Burris v. Parke, 116 F.3d 256, 258-59 (7th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 462, 139 L.Ed.2d 395 (1997); Love v. Morton, 112 F.3d 131, 136 (3rd Cir.1997). I find the reasoning in the above cases persuasive. In the instant proceeding, however, petitioner argues that the failure of his post-conviction counsel to develop certain facts at the state post-conviction proceeding should not be attributed to petitioner and is not a basis for denying an evidentiary hearing. This court cannot agree. Post-conviction counsel "is the petitioner's agent when acting, or failing to act, in furtherance of the litigation." Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Because ineffective assistance of post-conviction counsel does not rise to the level of a Sixth Amendment violation, counsel's errors are not imputed to the state (see Id. at 754, 111 S.Ct. 2546) and are not a basis for avoiding the restrictions of § 2254(e)(2). Finally, I reject petitioner's contention that § 2254(e)(2) is an unconstitutional restriction of this court's jurisdiction. Cf. Coleman, 501 U.S. at 750, 111 S.Ct. 2546 ("[n]o procedural principle is more familiar ... than that a constitutional right may be forfeited ... by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it") (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)). D. Procedural Default. Petitioner contends that by passing the AEDPA, Congress abolished "procedural default" as a defense to a habeas corpus proceeding brought under § 2254. He argues that because Congress included the defense in one section of the statute, i.e., the provisions pertaining only to capital cases, but omitted it in another section, i.e., § 2254, Congress intended to abolish the defense in the section from which it was omitted. This court concludes that procedural default, as an extension of the concept of exhaustion of remedies, remains a viable defense to a habeas corpus action under § 2254(b)(1). See Truesdale v. Moore, 142 F.3d 749, 753 n. 2 (4th Cir.), petition for cert. filed (Aug. 20, 1998) (rejecting "novel" suggestion that AEDPA somehow abolished procedural default in non-capital cases); Moleterno v. Nelson, 114 F.3d 629, 633-34 (7th Cir.1997) (same). Having concluded that procedural default is viable under the AEDPA, it is necessary to examine its applicability to this case. A state prisoner must exhaust all available state court remedies either on direct appeal or through collateral proceedings before a federal court may consider granting habeas corpus relief. Keeney, 504 U.S. at 9, 112 S.Ct. 1715; Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981). A prisoner satisfies the exhaustion requirement by "fairly" presenting his claims to the highest state court with jurisdiction to consider them. Keeney, 504 U.S. at 9, 112 S.Ct. 1715; Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). A prisoner *1157 fairly presents his claims by describing in the state court proceeding both the operative facts and the legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir.1988). If it is clear that no state remedies remain available to the petitioner, the exhaustion requirement is satisfied. See Coleman, 501 U.S. at 732, 111 S.Ct. 2546; see also Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir.1983). On the other hand, if the petitioner has procedurally defaulted on a claim in state court, then habeas corpus relief must be denied. If a habeas petitioner could have previously raised his federal claim in state court but failed to do so and is now barred from doing so by a state procedural rule, he has procedurally defaulted on that claim. Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir. 1988). If a petitioner has procedurally defaulted on a claim in state court, federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice. Sawyer v. Whitley, 505 U.S. 333, 337, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992); Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir .1993). Cause "must be something external to the petitioner, something that cannot be fairly attributed to him." Coleman, 501 U.S. at 753, 111 S.Ct. 2546. Prejudice is actual harm resulting from the alleged constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir.1991). In the extraordinary case, "[a] `fundamental miscarriage of justice' occurs when `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir.1998) (quoting Murray, 477 U.S. at 495-496, 106 S.Ct. 2639). In the present action, a threshold question is whether the claims presented to the state court — and which therefore were not procedurally defaulted — include only the claims presented by petitioner's court-appointed attorney(s), or also include the claims that petitioner himself presented to the state courts. Without deciding the propriety of such "supplemental" claims asserted by a represented petitioner, this court will consider both to the extent they were considered by the state courts.[1] Petitioner properly insisted upon preserving his record by raising all of his issues, notwithstanding his attorney's contrary advice and threat to withdraw if petitioner did not follow his advice. Cf. Clemmons v. Delo, 124 F.3d 944, 948-49 (8th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1548, 140 L.Ed.2d 695 (1998). E. Deference to State Court Decisions. The AEDPA revised the standards of deference a district court must accord state court decisions in habeas corpus proceedings. The new standards are set forth in § 2254(d), which provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (Emphasis added.) The Ninth Circuit has opined that the "contrary to" standard of review set forth in § 2254(d)(1) governs pure questions of law and the "unreasonable application" standard of review governs mixed questions of law and fact. Moore v. Calderon, 108 F.3d 261, 265 *1158 n. 3 (9th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 2497, 138 L.Ed.2d 1003 (1997) (citing with approval Drinkard v. Johnson, 97 F.3d 751, 767 (5th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997) and Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir.1996), rev'd. on other grds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)); see also Neelley v. Nagle, 138 F.3d 917, 923-24 (11th Cir.1998); but see O'Brien v. Dubois, 145 F.3d 16 (1st Cir.1998); Green v. French, 143 F.3d 865, 870-72 (4th Cir. 1998) ("contrary to" standard applies if Supreme Court precedent compels result and, if not, "unreasonable application" standard governs). The determination of a question of fact is reviewed for reasonableness under § 2254(d)(2), as limited by the presumption of correctness set forth in § 2254(e)(1). Accordingly, I conclude that "[s]tate court conclusions of law ... should be examined de novo." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir.1997) (en banc), cert. denied, ___ U.S. ___, 118 S.Ct. 586, 139 L.Ed.2d 423 (1997).[2] A state court decision resolving a "mixed question of law and fact," in contrast, must be given deference unless "it is `so clearly incorrect that it would not be debatable among reasonable jurists.'" Jeffries, 114 F.3d at 1500 (quoting Drinkard, 97 F.3d at 769); Neelley, 138 F.3d at 924.[3] I am not convinced that the foregoing construction of the statute renders it unconstitutional. See Corwin v. Johnson, 150 F.3d 467, 471-72 (5th Cir.1998) (no violation of Supremacy Clause); Lindh, 96 F.3d at 867-68, 871-74 (no violation of Suspension Clause, Supremacy Clause, Due Process Clause or Article III); see also Wright v. West, 505 U.S. 277, 287-95, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (summarizing uncertainty in Supreme Court cases as to whether deferential standard of review appropriate to state court determinations of mixed questions of law and fact without reference to any constitutional infirmity in such approach). Before the deferential § 2254(d)(1) standard of review is applied, of course, the court must determine whether petitioner's claim was "adjudicated on the merits in State court proceedings." See Jackson v. Johnson, 150 F.3d 520, 523 (5th Cir.1998). Here, petitioner's conviction was affirmed on direct appeal, after full briefing by the parties, albeit without a written opinion. While a written opinion addressing petitioner's claims would have been instructive as to the bases for denying those claims, the lack of such an opinion does not mean petitioner's claims were not adjudicated on the merits. See Cardwell, 152 F.3d 331, 338. Similarly, although the state post-conviction court's decision was based upon the record, as supplemented by affidavits, without any additional testimony, the court considered the evidence and made explicit findings of fact and conclusions of law. As such, I find that the claims presented therein were "adjudicated on the merits in State court proceedings" such that the standards of § 2254(d)(1) apply. See Id. at 523-24. III. ANALYSIS OF PETITIONER'S GROUNDS FOR RELIEF. A. Ground One: Ineffective Assistance of Counsel. A defendant alleging the ineffective assistance of counsel must show (1) that counsel's performance was deficient, and (2) that this prejudiced his defense, i.e, that counsel's errors were so serious as to deprive the defendant of a fair trial, that is, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For errors that were committed during the guilt phase, "the question is whether there is a reasonable probability *1159 that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. 2052. A "reasonable probability" is less than a preponderance of the evidence. See Kyles v. Whitley, 514 U.S. 419, 434-35, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Strickland, 466 U.S. at 693, 104 S.Ct. 2052 ("defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.") The question is not whether the defendant would more likely than not have received a different verdict but whether he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. See Kyles, 514 U.S. at 434, 115 S.Ct. 1555. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, or what "might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Reasonableness is judged as of the time of counsel's conduct, not in hindsight. Id. at 689-90, 104 S.Ct. 2052. The petitioner must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690, 104 S.Ct. 2052. Whether trial counsel is ineffective involves a mixed question of law and fact. See Crandell v. Bunnell, 144 F.3d 1213, 1216 (9th Cir.1998) (applying pre-AEDPA law); Moran v. Godinez, 57 F.3d 690, 699 (9th Cir.1994) (same), cert. denied, 516 U.S. 976, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995). Thus, under the interpretation of § 2254(d)(1) above, the court may grant a writ of habeas corpus on this basis only if it is determined "that the state court decision rested on `an unreasonable application of clearly established Federal law, as determined by the Supreme Court,' to the facts of the case." Drinkard, 97 F.3d at 768 (quoting § 2254(d)(1)). 1. Timely Investigation of Case Petitioner contends that his lawyer failed to timely investigate his case and contact potential witnesses. Defense counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. Id.; Burger v. Kemp, 483 U.S. 776, 794-95, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). An attorney's failure to locate potential witnesses will usually constitute ineffective assistance when, without adequate justification, the attorney refuses or neglects to perform any investigation into leads directly related and of potentially great benefit to the defense. See Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir.1995), cert. denied, 517 U.S. 1111, 116 S.Ct. 1335, 134 L.Ed.2d 485 (1996). However, defense counsel need not follow every idea suggested by his client. See United States v. Tucker, 716 F.2d 576, 584 (9th Cir.1983) ("the duty to investigate and prepare a defense is not limitless: it does not necessarily require that every conceivable witness be interviewed"). The state post-conviction court made a general finding that "[t]rial counsel investigated petitioner's case to the extent possible under the circumstances." The brief post-conviction record and the court's finding provide no analysis or recitation of the legal standard it applied. The post-conviction court, with the agreement of the state and petitioner's court-appointed attorney (but over petitioner's initial objections), decided the case based on the record and exhibits submitted by the parties.[4] Petitioner's attorney did not proffer *1160 testimony through the affidavits or the depositions of additional witnesses whose testimony may have been exculpatory, and failed to offer a number of documents potentially relevant to the investigation conducted by petitioner's trial attorney. As a result, this court has an incomplete statement of the likely testimony from one material witness, and no affidavits from any other prospective witnesses. Because petitioner was not precluded from fully developing the factual basis for this claim by the state court, however, he is not now entitled to an evidentiary hearing to develop those facts. See § 2254(e)(2) and p. 1156 supra. The post-conviction record shows that petitioner's trial counsel, Swider, was understandably reluctant to pursue potential "witnesses" who could not possibly offer relevant evidence, and in several instances, would likely have offered damaging testimony as they later did when called as prosecution witnesses. Although many of petitioner's proposed witnesses were properly discounted, it does appear there were several potential witnesses whom Swider should have interviewed but did not. Swider explains his failure to contact these witnesses on grounds that "quite a bit of time had passed between the time of the crime and the time I was appointed to represent Mr. Whaley." However, that time interval was only from May to September, 1988. Nevertheless, because petitioner failed to develop what those witnesses would have said in the state proceedings, petitioner's claim fails. See 28 U.S.C. § 2254(e)(2). In sum, although Swider's investigation may have been questionable under the standard of performance expected of a reasonable attorney, the record compiled during the state post-conviction proceeding is inadequate to establish that but for his omissions there was a reasonable probability that the result would have been different. Accordingly, I necessarily find that the state post-conviction court's conclusion that petitioner did not receive ineffective assistance counsel was not an unreasonable application of clearly established federal law with respect to the alleged failure to investigate. 2. Failure to Obtain or Inspect Medical Records or Physical Evidence. Petitioner also contends that Swider failed to obtain or inspect certain physical and documentary evidence. Adequate pretrial preparation, including the examination of documents and the inspection of physical evidence, is essential to properly represent a criminal defendant. Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.1998); United States v. Berkowitz, 927 F.2d 1376, 1382 (7th Cir.), cert. denied, 502 U.S. 845, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991). On the other hand, the question of how much preparation is enough, like the numerous other decisions that an attorney must make in the course of representation, is a matter of professional judgment. Berkowitz, 927 F.2d at 1382. Petitioner must show that his counsel's decision was outside the wide range of reasonable professional judgment. Id. Most of petitioner's complaints are groundless. Nevertheless, the limited state court record reveals several potentially important omissions, or what appear to be omissions, by Attorney Swider. Apparently, he failed to inspect such physical evidence as the records from the hospital where Baker was examined following the alleged rape; failed to obtain the rape test kit or any results from that examination; and failed to inspect the clothing that Baker was wearing. However, to prevail on this claim, petitioner must do more than simply show that his attorney failed to obtain or inspect this evidence. He must also show that but for the omission, there is a reasonable probability that the outcome of the case would have been different. Petitioner has not met that burden. None of those items are in the record. At this point, it is pure speculation that these items would have contradicted rather than supported Baker's testimony. Even if they were belatedly produced now, there is no *1161 apparent reason why they could not have been produced during the state post-conviction proceeding. As such, the state post-conviction court's conclusion that petitioner did not receive ineffective assistance of counsel was not an unreasonable application of clearly established federal law with respect to petitioner's claims regarding the inspection of documentary and physical evidence. 3. Sentencing. Petitioner contends Swider rendered ineffective assistance of counsel at sentencing because he had no incentive to keep petitioner out of prison for fear that petitioner might sue him for malpractice or file a complaint with the Oregon State Bar. This issue was not properly raised at the state court level and therefore is procedurally defaulted. Moreover, petitioner has not shown that Swider's performance at sentencing was deficient. On the contrary, Swider successfully persuaded the trial judge to change his initial conclusion and to omit a finding that petitioner was a "dangerous offender." Petitioner also contends that Swider should have been present during the interview with Dr. Colbach. However, the record indicates that petitioner vacillated on whether he wanted Swider present, and there is no evidence that Swider's absence had any affect upon the sentence that petitioner received. Petitioner also contends that Swider should have contested some of the victim impact information in the presentence report, relating to the alleged pregnancy and medical complications. However, it is unclear what Swider could have done other than to point out some ambiguities or inconsistencies in the medical records and the absence of clear proof that petitioner was responsible for those injuries. Because petitioner did not develop these facts in the state proceedings, this court cannot determine whether this was in fact a tactical choice on Swider's part. Consequently, I conclude that the state post-conviction court's conclusion on this claim was not an unreasonable application of clearly established federal law. B. Ground Two: Proceeding Pro Se. Petitioner contends that his decision to represent himself was not voluntary. He argues that he was forced to proceed pro se by counsel's lack of preparation for trial. Assuming this argument states a Sixth Amendment claim, see United States v. Silkwood, 893 F.2d 245 (10th Cir.1989), cert. denied, 496 U.S. 908, 110 S.Ct. 2593, 110 L.Ed.2d 274 (1990), it has no merit here. A criminal defendant has an absolute right to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The decision to waive counsel must be knowing, voluntary, and intelligent. Id. The "defendant must be aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation." United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.1987). A waiver is required even if the court approves a "hybrid representation" in which the defendant functions as a co-counsel. United States v. Kimmel, 672 F.2d 720, 721 (9th Cir.1982). A defendant competent to stand trial is also competent to waive his right to counsel and represent himself. Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Whether a waiver of the Sixth Amendment right to counsel was made knowingly, intelligently, and voluntarily is a mixed question of law and fact. Harding v. Lewis, 834 F.2d 853, 857 (9th Cir. 1987), cert. denied 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988). While the record demonstrates that petitioner had great difficulty in comprehending the relevant issues, the threshold for competency to stand trial is quite low. Godinez, 509 U.S. at 396, 113 S.Ct. 2680. The trial judge did not err by allowing petitioner to represent himself. Petitioner was repeatedly warned of the disadvantages of self-representation in about as much detail as was possible under the circumstances. The trial judge offered to delay the trial so petitioner could think about his decision overnight, and let petitioner discuss this decision with his mother and his lawyer. At the conclusion of the trial, the trial judge also made supplemental findings concerning petitioner's competency to represent himself. *1162 Although counsel may have been better prepared, that does not appear to have been petitioner's primary motivation in representing himself. Rather, he told the court that he thought he could do a better job than his lawyer questioning certain witnesses because he knew more about the details of the case and he wanted his accusers to have to "look [him] in the eye." Near the end of the trial petitioner admitted that in representing himself he could testify from counsel table by asking improper questions, which he did throughout the trial, without having to take the stand and risk having his prior criminal record brought out. (Tr. 752.) In sum, there is ample evidence to sustain the trial court's determination that petitioner knowingly and voluntarily waived his Sixth Amendment right to counsel. That decision was not an unreasonable application of clearly established federal law. C. Ground Three: Prosecutorial Misconduct. Prosecutorial misconduct is cognizable in federal habeas corpus. The appropriate standard of review is the narrow one of due process and not the broad exercise of supervisory power. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." Id.; Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). Generally, a claim of prosecutorial misconduct presents a mixed question of law and fact. See United States v. McConney, 728 F.2d 1195, 1204 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); United States v. Spillone, 879 F.2d 514, 520 (9th Cir.1989), cert. denied, 498 U.S. 878, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990). Petitioner alleges four specific instances of prosecutorial misconduct which resulted in the denial of due process: (a) the knowing use of or failure to correct perjured testimony by Baker about her medical condition; (b) withholding exculpatory medical reports which contradicted Baker's testimony regarding her medical condition; (c) withholding information regarding payments to Baker and other victims compensation material and failing to correct testimony by Baker; and (d) failing to produce Baker's underwear for inspection pretrial and then presenting it as trial evidence. Throughout the extensive briefing in support of his petition, petitioner does not limit his argument to these four specific instances. Rather, notwithstanding the lack of an articulated claim on the issue, he appears to "overlay" his arguments with a claim that the prosecutor committed misconduct by introducing testimony which was highly inflammatory, prejudicial, and, at its core, irrelevant. Because the prosecutor's alleged misconduct in this respect was not raised by petitioner as a separate ground for relief, I decline to address the argument in detail. See Frey v. Schuetzle, 78 F.3d 359, 360-61 (8th Cir.1996) (district court must adjudicate only those claims upon which habeas petitioner seeks relief, especially when habeas petition was prepared by counsel). In any event, the prosecutor's acts about which petitioner appears to complain did not "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." Williams v. Borg, 139 F.3d 737, 744 (9th Cir.), pet'n for cert. filed, ___ U.S. ___ (Aug. 18, 1998) (citing Darden v. Wainwright, 477 U.S. at 181, 106 S.Ct. 2464). 1. The Knowing Use of or Failure to Correct Perjured Testimony by Baker About Her Medical Condition. It is a fundamental cornerstone of due process that the Constitution "cannot tolerate a ... criminal conviction obtained by the knowing use of false evidence." Miller v. Pate, 386 U.S. 1, 7, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967). The prosecution offends due process when false evidence is used, whether it solicits the evidence or simply allows it "to go uncorrected when it appears." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (citations omitted). Due process is equally offended by direct statements which are untrue and the eliciting of *1163 testimony which "taken as a whole" gives the jury a "false impression." Alcorta v. Texas, 355 U.S. 28, 31, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957). When false evidence is used, even unwittingly, a new trial is required "if there is a reasonable probability that [without the evidence] the result of the proceeding would have been different." United States v. Young, 17 F.3d 1201, 1204 (9th Cir.1994). Petitioner contends that he was denied due process of law when the prosecution knowingly elicited false and perjurious testimony from Baker and her mother, did not correct the false and perjurious testimony and referenced the testimony in argument. Petitioner objects to a reference in the prosecutor's opening statement, as well as testimony by both Baker and her mother to the effect that Baker became pregnant, contracted a venereal disease, and underwent surgery in Minnesota three weeks after her contact with petitioner. Petitioner contends that, contrary to the testimony described above, Baker did not contract pelvic inflammatory disease from petitioner and that it was unclear whether Baker was pregnant at all. He further argues that Baker's operation for a ruptured ovarian cyst resulted from an entirely independent cause and was falsely ascribed to an infection which resulted from contact with petitioner. In support of this argument, petitioner relies on a somewhat confusing reading of medical records from the hospital in Minnesota where Baker was treated. In fact, there were several indications that Baker may have been pregnant, although the medical records were not entirely clear on this issue. At most, it appears that there was an honest question of medical fact as to whether she was indeed pregnant. Under these circumstances, it would hardly be perjurious for her to testify that she was. The evidence of alleged perjury with respect to Baker's testimony about pelvic inflammatory disease and the purpose of her operation is equally unconvincing. Given the information available from the medical records, I cannot find that Baker's testimony was false or perjurious. In sum, this claim is without merit as the testimony at issue is not false or perjurious, and even if it could be construed as such, there is not a reasonable probability that without this evidence the result of the proceeding would have been different. Moreover, the state post-conviction court's conclusion that none of petitioner's rights were violated by the prosecutor's actions with respect to this issue is not an unreasonable application of clearly established federal law. 2. Withholding Exculpatory Medical Reports. Under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a prosecutor must disclose only evidence that is both favorable to the accused and material either to guilt or punishment. Thus, under Brady, a prosecutor is not required to deliver his entire file to defense counsel, but only to disclose material evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial. United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). "A constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." Id. at 678, 105 S.Ct. 3375. The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. at 682, 105 S.Ct. 3375. Petitioner contends that the prosecutor violated petitioner's due process rights by withholding medical records from the hospital where Baker was seen on May 8, and by withholding the results of the "rape kit" performed at that hospital. Petitioner initially contended that, based upon trial testimony, the records appeared to be exculpatory and contained no reference to any bruises, cuts, scratches or other trauma. Petitioner also argued that the medical records were likely to contain descriptions of the appearance of Baker's clothing. Pursuant to discovery conducted in this action, petitioner ultimately *1164 obtained the Holiday Park medical records, although it appears that the rape kit was never located or produced. The medical reports from Holiday Park Hospital for Baker's visit on May 8 indeed contain no reference to any bruises, cuts, scratches, or other trauma. Nor do they contain any description of the appearance of Baker's clothing. At trial, in cross-examining Baker from a "Crime Laboratory Information Form," petitioner elicited the following testimony: Q. The form I'm referring to says, "bite marks, bruises present, no." Next question says, "photographs taken, no. Forensic gynecologist." — Why is it that under bite marks or bruises present, it says no. Can you explain why there's no marks of violence? A. It's probably because I had no bruises on me. Q. And then it says, "photographs taken." That says no, that means there was no bruises, scratches and your clothing wasn't torn or disarrayed? A. No, that's not what it means. Q. Well, there was not any photographs taken. A. There were no photographs taken, but that doesn't mean that my clothes weren't torn. (Tr. 364.) Thus, the information contained in the medical records would have been cumulative on this point. Beyond the issue of the lack of reference to any bruises, cuts, scratches or other trauma, or the condition of Baker's clothing, nothing else contained in the medical reports could be construed as material either. As such, I cannot find that a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. See Brown v. Crouse, 425 F.2d 305 (10th Cir. 1970) (doctors' examinations of victim which revealed no medical evidence of alleged attack were not dispositive of veracity of her charge where, inter alia, victim testified that assailant told her that he used a protective device). Again, the state post-conviction court's conclusion on this issue is not an unreasonable application of clearly established federal law. 3. Withholding Victim's Compensation Information. Petitioner contends that his due process rights were violated when the prosecutor failed to disclose a Victim's Assistance Program application completed by Baker and permitted incorrect testimony by Baker to go uncorrected. He argues that the forms, which reveal Baker's claims for money as a result of the operation which she underwent in Minnesota at the end of May, were critical in several respects. First, the forms would have substantiated petitioner's claim that Baker had a financial motive to lie about their encounter. Second, petitioner would have been able to use the form to establish that Baker lied in her efforts to obtain money by falsely asserting that her operation was needed as a result of the encounter with petitioner rather than as a result of the ruptured ovarian cyst. These claims are without merit. The withholding of impeachment material by a prosecutor violates due process. Bagley, 473 U.S. at 675, 105 S.Ct. 3375; United States v. Steinberg, 99 F.3d 1486, 1491-92 (9th Cir.1996). The withholding of such evidence violates due process even where the defendant has not specifically requested the documents in question. Paradis v. Arave, 130 F.3d 385, 392 (9th Cir. 1997). The problem with petitioner's claim is that the forms would not have been effective for the purpose of impeachment. Petitioner's first argument might have had some merit, had Baker waited until after she incurred medical expenses to report the alleged rape. She did not. To prevail on an argument that Baker had a financial motivation to lie about her encounter with petitioner would require an incredible stretch of the imagination to conclude that she anticipated medical costs and that she knew victims assistance funds might be available to defray those expenses on the night of the encounter, when she first reported that she was raped. As such, I cannot find that evidence Baker applied for victim's assistance compensation was material to an impeachment argument, *1165 such that had the evidence been disclosed there was a reasonable probability that the result of the proceeding would have been different. Petitioner's second argument is equally unavailing. As discussed above, I cannot find that Baker's testimony about the need for and purpose of her operation was false or perjurious. For the same reasons, I cannot find that the information she supplied on the victims assistance application was a "direct lie" as argued by petitioner. In fact, the application contains virtually identical information to Baker's testimony. Because the information contained in the victim's compensation material would not have been of any value for impeachment purposes, the failure of the prosecutor to produce that information prior to trial did not result in a violation of petitioner's due process rights. Again, the state court decision on this issue was not an unreasonable application of clearly established federal law. 4. Failure to Produce Underwear For Inspection. Petitioner contends that his due process rights were violated because the prosecutor failed to produce Baker's underwear for inspection before trial and then presented the underwear as trial evidence. Contrary to petitioner's position, however, even the most liberal reading of petitioner's direct appeal and state post-conviction record does not demonstrate that petitioner properly exhausted this claim. At trial, petitioner did object to the admission of Baker's underwear into evidence: PROSECUTOR: I'd move to introduce State's 8 [the underwear] THE COURT: Show it to Mr. Whaley. Any objection? WHALEY: I'd object. My objection is there is no way to know when this particular garment — when the garment was ripped. THE COURT: I'll overrule the objection. It will be received in evidence, State's Exhibit 8. (Tr. 448.) This objection, however, did not speak to the failure of the prosecutor to produce the underwear for inspection before trial. At most, it can be construed as an objection based upon the prosecutor's failure to establish a chain of custody. Petitioner did not raise the issue at all upon his direct appeal. Moreover, in his state post-conviction petition, although petitioner made numerous vague references to prosecutorial misconduct in the context of alleged Brady violations, he did not specifically address the underwear. He also did not address the alleged impropriety of the presentation of the evidence at trial (correctly so, as improper admission of the evidence should have been raised on direct appeal). As such, petitioner has procedurally defaulted this issue. He has not shown cause and prejudice excusing this default. Accordingly, he is not entitled to relief. D. Ground Four: Use Of Darleen Emmonds Testimony by Prosecution. Petitioner contends that his due process rights were violated by the use of Darleen Emmonds as a witness because of the prejudice resulting from her highly inflammatory testimony and the late notice given of her potential testimony. Specifically, he contends that his due process rights were violated when Emmonds, who was called by the state in its case-in-chief, presented testimony which "turned out to be a highly distasteful character assassination of [petitioner]." Petitioner complains that Emmonds was allowed to testify about (1) the contents of a letter sent by petitioner to her prior to trial; (2) a letter petitioner had written to another person (Ron Bishop) in which he referred to a variety of things he contended Emmonds had done to get him in trouble over the last eight years, and (3) a letter petitioner had written to his daughter. The letters were replete with references to prior bad acts by petitioner, as well as other potentially inflammatory statements. Contrary to petitioner's protestations, it appears that he procedurally defaulted this claim. Petitioner did not object to Emmonds' testimony at trial. He did not object to admission of the letter he wrote Emmonds. In fact, petitioner himself read substantial portions of the letter into evidence *1166 during his cross examination of Emmonds. While he did object to portions of the Bishop letter when the state attempted to introduce it on Emmonds' direct examination, petitioner himself later offered the letter into evidence.[5] Having failed to object to the evidence of which he now complains, petitioner did not properly preserve this issue for appeal or review. Petitioner's problems do not end at the trial level. Again, even the most liberal construction of petitioner's direct appeal does not evidence a claim that he fairly presented this issue. At most, the appeal can be construed as asserting a claim that as a matter of state law he was denied notice that Emmonds would testify. Thus, petitioner did not fairly present a federal due process claim for relief to the state's highest court. Finally, any attempt to raise the issue on state post-conviction is irrelevant, as it was not a legitimate ground for post-conviction relief. See O.R.S. 138.550(2) (no ground for relief may be asserted on post-conviction which could reasonably have been asserted on direct appeal). Accordingly, petitioner procedurally defaulted his due process claim based on the alleged "surprise" and the inflammatory nature of Emmonds' testimony. Because he has not shown cause and prejudice excusing this default, he is not entitled to relief on this ground. E. Ground Five: Error In Jury Instructions. The court is satisfied that the alleged errors in the jury instructions were harmless and did not affect the outcome of this case. The post-conviction relief court's findings and conclusions on this issue were not contrary to or an unreasonable application of clearly established federal law. Accordingly, relief on this ground is not warranted. F. Ground Six: Insufficient Evidence. Petitioner contends that there was insufficient evidence to support his convictions for kidnaping and rape. A federal habeas court may review a claim that the evidence adduced at a state trial was not sufficient to convict a criminal defendant beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The relevant question is not whether the reviewing court would have found the defendant guilty beyond a reasonable doubt but "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319-20, 99 S.Ct. 2781. Alleged insufficiency of the evidence to support a conviction presents a mixed question of law and fact. See Mitchell v. Prunty, 107 F.3d 1337, 1340 n. 3 (9th Cir.) (applying "unreasonable application" standard to insufficient evidence claim), cert. denied, ___ U.S. ___, 118 S.Ct. 295, 139 L.Ed.2d 227 (1997), overruled in part on other grds. Santamaria v. Horsley, 133 F.3d 1242 (9th Cir.1998) (en banc), petition for cert. filed (May 29, 1998). 1. Rape Charge. While the state's case may not have been beyond any doubt, a rational trier of fact could have found that the state proved all essential elements of the rape charge beyond a reasonable doubt, assuming the trier of fact believed Baker's testimony, gave the prosecution the benefit of all reasonable inferences, and discounted all conflicting evidence as it was entitled to do. Accordingly, I cannot find that the trial court's denial of petitioner's motion for acquittal and the denial of this claim upon his direct appeal resulted from an unreasonable application of clearly established federal law. 2. Kidnaping Charge. Under Oregon law, there are two degrees of kidnaping. The basic offense, a Class B felony, is kidnaping in the second degree which is defined in O.R.S. 163.225: (1) A person commits the crime of kidnaping in the second degree if, with intent to interfere substantially with another's personal *1167 liberty, and without consent or legal authority, he: (a) Takes the person from one place to another; or (b) Secretly confines the person in a place where he is not likely to be found. However, petitioner was convicted of the more serious Class A felony of kidnaping in the first degree, which is reserved for particularly aggravated offenses: (1) A person commits the crime of kidnaping in the first degree if he violates O.R.S. 163.225 with any of the following purposes: (a) To compel any person to pay or deliver money or property as ransom; or (b) To hold the victim as a shield or hostage; or (c) To cause physical injury to the victim; or (d) To terrorize the victim or another person. O.R.S. 163.235. Thus, petitioner could not be convicted of kidnaping in the first degree unless the prosecution proved all the elements of second degree kidnaping and, in addition, proved beyond a reasonable doubt that the kidnaping was undertaken for one of the specific purposes alleged in O.R.S. 163.235(1). The indictment alleges that petitioner committed the offense "with the purpose of causing physical injury to and terrorizing" the victim, and the case was tried on that basis. Consequently, the court must confine its inquiry to those aggravating factors, State v. Nulph, 31 Or.App. 1155, 1164 n. 2, 572 P.2d 642 (1977), rev. denied, 282 Or. 189 (1978), and in any event none of the other listed purposes would apply to these facts.[6] There is insufficient evidence in the record from which a rational trier of fact could find, beyond a reasonable doubt, that petitioner drove Baker to the apartment building and the Pass Club for the purpose of causing physical injury to her. During closing argument, the prosecutor told the jury: There can't be much doubt about what Mr. Whaley's intentions were had he been able to get Deborah Baker into an apartment building. If that's what he's willing to do out on the street inside a parked car, what's he willing to do inside a residence.... This was speculation on the prosecutor's part. Although the state is entitled to argue reasonable inferences based upon the evidence, "mere suspicion or speculation cannot be the basis for creation of logical inferences." Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir.1995). There was no evidence to support the prosecutor's contention that petitioner intended to take Baker inside the building and physically harm her. Baker testified that, as they were driving to the apartment building, petitioner told her that he was going to a friend's house. According to her testimony, he rapped on a window and when no one answered he returned to the car and drove her back to the Pass Club where they had met. On their way back to the Club, petitioner "said he was angry because he had told [Baker] that he was supposed to have picked his friends up." Similarly, according to Officer Taylor's report, Baker told him that when they got to the apartment building petitioner "told her that he had to pick up a guy and girl." Thus, the only available evidence indicates that petitioner went to the building either to pick up some friends or to see a friend. The prosecution presented no evidence that petitioner attempted to enter the building, let alone that he tried to force Baker to enter the building or that he intended to harm her once inside. The state also failed to establish, beyond a reasonable doubt, that petitioner abducted Baker for the specific purpose of terrorizing her. To prove specific intent to terrorize there must be evidence of a purpose to do more than that which is necessary to take or confine by force, threat, or deception. Nulph, 31 Or.App. at 1165, 572 P.2d 642. Conviction on this charge requires proof of *1168 an intent "to fill with terror," and is aimed at "vengeful or sadistic abductions." Id. The focus is on the defendant's state of mind. State v. Swaggerty, 15 Or.App. 343, 347 n. 1, 515 P.2d 952 (1973).[7] A rational trier of fact could not have found, beyond a reasonable doubt, that petitioner drove Baker to the apartment building and the Pass Club for the purpose of terrorizing her. The only hint of such a purpose might come from two remarks petitioner allegedly made while driving, one to the effect that "nobody knew that [Baker] was with him and that he could just take [Baker] away and [they] could be together" and the other to the effect that "he would come down to Minnesota to find [Baker]." Taken out of context, those remarks might seem to be implied threats, but in the context of other remarks petitioner made during the course of the evening it is clear that petitioner was actually suggesting that they run away together or otherwise continue their "relationship." That may have been delusional but it does not equate to specific intent on his part to terrorize Baker. The state also points to a comment petitioner made about Baker being a "tease," but that also falls far short of the mark. Even if those remarks are viewed as implied threats, they merely go to the question of whether petitioner employed "force, threat or deception" to make Baker accompany him. They do not show that petitioner abducted Baker for the specific purpose of terrorizing her. Since no rational juror could have found that the state proved all of the required elements beyond a reasonable doubt, the conviction for first degree kidnaping must be set aside. As such, the denial of petitioner's motion for acquittal and direct appeal on this issue resulted from an unreasonable application of clearly established federal law. In so holding, I decline to modify the state judgment to a conviction for second degree kidnaping. See Swaggerty, 15 Or. App. at 349, 515 P.2d at 955; Nulph, 31 Or.App. at 1166, 572 P.2d at 647. It is unclear whether that doctrine is still viable in the aftermath of State v. Allen, 301 Or. 35, 717 P.2d 1178 (1986). See State v. Jefferson, 81 Or.App. 479, 483, 726 P.2d 392 (court lacked power to modify judgment to second degree kidnaping when trier of fact was never asked to consider that charge), rev. denied, 302 Or. 461, 730 P.2d 1251 (1986).[8] The doctrine is based upon Article VII (Amended), § 3, of the Oregon Constitution, which authorizes Oregon appellate courts to modify a judgment if the court "can determine what judgment should have been entered in the court below." However, this court's powers are not derived from the Oregon constitution, and the court is unaware of any comparable provision in federal law. Moreover, because petitioner could avoid conviction on the first degree kidnaping charge if the state failed to prove specific intent to cause physical injury or terrorize, he was free to focus all his efforts on that one weak link and did not need to be concerned with the other elements of the charge. CONCLUSION The petition for writ of habeas corpus (# 1) is GRANTED in part and DENIED in part as follows: GRANTED as to petitioner's kidnaping conviction and DENIED as to petitioner's rape conviction. Petitioner's first degree kidnaping conviction is VACATED. IT IS FURTHER ORDERED that petitioner's motion for summary judgment (# 8) is DENIED and respondent's motion to deny habeas corpus relief (# 19) is DENIED as to the conviction for first degree kidnaping and GRANTED as to the remaining issues. NOTES [1] In the state post-conviction proceeding, the court sustained the state's objection to one supplemental brief which petitioner filed pro se. [2] The determination of what is "clearly established Federal law, as determined by the Supreme Court of the United States" under § 2254(d)(1) is also a question of law subject to de novo review. Canales v. Roe, 151 F.3d 1226, 1998 WL 472495 *1 (9th Cir. Aug.14, 1998). [3] I note that this is not the first time this court has applied § 2254(d)(1), as amended by the AEDPA, and as construed in this opinion. See Vollmer v. Thompson, Civ. No. 96-6238-MA (D.Or. Sept. 23, 1997), aff'd ___ F.3d ___, 1998 WL 667946 (9th Cir. Sept. 15, 1998) (unpublished opinion); Weaver v. Thompson, Civ. No. 97-428-JO (D.Or. Jan. 27, 1998), notice of appeal filed (Aug. 12, 1998); Glenn v. Thompson, Civ. No. 97-81-JO (D.Or. Aug. 13, 1997). [4] When petitioner appeared before the post-conviction court for hearing, he objected to his attorney's stated intention to submit the case on the record, and expressed surprise that no exculpatory witnesses had been called to testify on his behalf. After conferring with petitioner during a brief recess, his attorney represented to the court that petitioner agreed to submit the case on the record, with the addition of one exhibit prepared by petitioner. The post-conviction judge specifically asked petitioner if he understood and agreed with what his attorney said and if petitioner was satisfied that his attorney could present the exhibits and make the arguments petitioner wanted raised. Petitioner replied with an unequivocal yes. [5] Petitioner did object to portions of the letter he wrote to his daughter, and the trial court sustained those objections. [6] Baker admits that she voluntarily accompanied petitioner up to the point when they were in the front seat of the parked car. Hence, it is undisputed that the kidnaping charge is premised solely upon events after the alleged rape, when Baker rode in petitioner's car to an apartment building and later to the Pass Club. [7] In Swaggerty, the abduction took place at knife-point, and the defendant threatened to kill the victim if she screamed or tried to escape. The Oregon Court of Appeals held that this was insufficient to find, beyond a reasonable doubt, that the victim's terror was the purpose of the kidnaping, as opposed to the means for accomplishing that objective. In Nulph, the defendant ultimately murdered the kidnap victim, but that too was held insufficient to sustain a conviction for first degree kidnaping. Nulph, 31 Or.App. at 1165, 572 P.2d 642. [8] Here, the jury was never instructed upon or given the option to convict petitioner for second degree kidnaping.

Case: 16-11312 Date Filed: 01/18/2017 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-11312 ________________________ D.C. No. 1:12-cv-24298-JAL CHARLES C. WILHELM, M.D., Relator, Plaintiff-Appellant, versus MOLINA HEALTHCARE OF FLORIDA, INC., MOLINA HEALTHCARE, INC., Defendants-Appellees. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (January 18, 2017) Before MARCUS, ANDERSON, and GINSBURG,* Circuit Judges. ____________ * Honorable Douglas H. Ginsburg, United States Circuit Judge for the District of Columbia Circuit, sitting by designation.  Case: 16-11312 Date Filed: 01/18/2017 Page: 2 of 4 PER CURIAM: The primary issue in this appeal was resolved by our very recent decision in United States ex rel. Saldivar v. Fresenius Medical Care Holdings, Inc., 841 F.3d 927, 932 n.1 (11th Cir. 2016), in which we held that the 2010 amendments to the public disclosure bar of the False Claims Act (FCA), 31 U.S.C. § 3730(e)(4), are not retroactive. Thus, following Saldivar, we hold that the 1986 version of the public disclosure bar is applicable to this case. The 1986 version of the public disclosure bar provided: (A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. (B) For purposes of this paragraph, “original source” means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information. 31 U.S.C. § 3730(e)(4) (2006). This Court uses a three-part inquiry to determine whether jurisdiction exists under this section: “(1) have the allegations made by the plaintiff been publicly disclosed; (2) if so, is the disclosed information the basis of the plaintiff’s suit; (3) if yes, is the plaintiff an ‘original source’ of that information.” Saldivar, 841 F.3d at 933 (quoting Cooper v. Blue Cross & Blue 2  Case: 16-11312 Date Filed: 01/18/2017 Page: 3 of 4 Shield of Fla., Inc., 19 F.3d 562, 565 n.4 (11th Cir. 1994). In the district court, plaintiff conceded that if the 1986 version applied, then publicly disclosed information was the basis of his suit and the only issue was whether he was an “original source” of that information. The district court concluded that plaintiff was not an “original source.” The district court based its conclusions largely on plaintiff’s own testimony in a prior civil suit that his knowledge with respect to crucial aspects of his allegations in this case was not personal. 1 Rather, it was second-hand knowledge derived from evidence produced in discovery in that prior case and conversations with doctors, other providers, and Molina’s officials. Plaintiff’s conclusory assertions in his brief on appeal and at oral argument fall short of persuading us that the foregoing conclusions by the district court are erroneous. Based on our own review of the particular record before us, we conclude that plaintiff has failed to adduce sufficient facts to rise to the level of direct and independent knowledge — i.e., to carry his burden of proving that plaintiff is an original source. We agree with the conclusions of the district court 1 We acknowledge that plaintiff’s deposition was taken at a time that plaintiff may not have had in mind the significance of the distinction between first-hand and second-hand knowledge. However, plaintiff’s statements in that deposition cannot be disregarded, especially in light of the fact that plaintiff has adduced no evidence clarifying or undermining same. 3  Case: 16-11312 Date Filed: 01/18/2017 Page: 4 of 4 that the crucial knowledge of plaintiff was second-hand.2 And our Saldivar decision expressly holds that such second-hand information is not sufficient to make plaintiff an “original source” under the 1986 version of the FCA. Id. at 936. Accordingly, the judgment of the district court is AFFIRMED. 2 Because in this case we have given plaintiff the benefit of the most favorable standard of review, we need not actually decide the proper standard of review. 4 

364 F.3d 1000 UNITED STATES of America, Appellee,v.Daniel E. WOODS, Appellant. No. 03-2792. United States Court of Appeals, Eighth Circuit. Submitted March 9, 2004. Filed April 14, 2004. Rehearing En Banc Denied April 26, 2004. Stephen C. Moss, argued, Federal Public Defender, Kansas City, MO, for appellant. D. Michael Green, argued, Asst. U.S. Attorney, Kansas City, MO, for appellee. Before MELLOY, BEAM, and COLLOTON, Circuit Judges. PER CURIAM. 1 In our opinion filed February 27, 2004, we affirmed the judgment of the district court that appellant Daniel E. Woods was ineligible as a matter of law for a downward departure under USSG § 5K2.13 based on alleged diminished mental capacity, because he was convicted of bank robbery. We held that the reasoning of United States v. Petersen, 276 F.3d 432 (8th Cir.2002), controlled this case. Petersen reasoned that a defendant must have committed a "nonviolent offense" to be considered for a downward departure under USSG § 5K2.13, and cited authority holding that the term "nonviolent offense" excludes any offense that is a "crime of violence" under USSG § 4B1.2. Although the phrase "nonviolent offense" was removed from § 5K2.13 by an amendment that took effect in 1998, we felt bound to follow the reasoning of Petersen. 2 Woods has petitioned for rehearing, arguing that the panel erred by following Petersen and, alternatively, that the full court should grant rehearing en banc to reconsider Petersen. In response, the government has clarified its position. The government now has abandoned its argument that the reasoning of Petersen renders Woods ineligible for departure under § 5K2.13. Specifically, the government says it "is not contending that the career offender definition of `crime of violence' contained in U.S.S.G. § 4B1.1 still controls or should control the analysis of whether bank robbery is excluded from consideration for § 5K2.13 departure." (Response to Petition for Rehearing at 4). 3 Given the government's concession, we conclude that this panel and the district court in this case are not bound to follow the reasoning of Petersen. A party is always free to abandon an argument in litigation. E.g., Warren v. Prejean, 301 F.3d 893, 906 n. 4 (8th Cir.2002). This is particularly true with respect to a United States Attorney, given his unique status as a party whose responsibility is not merely to win a case, but to ensure that justice be done. If a United States Attorney in another case elects in good faith to argue that the categorical "crime of violence" approach governs departures under § 5K2.13, then Petersen remains on the books as available precedent. In this case, however, the United States (commendably in our view) has chosen expressly to abandon that position. 4 There remains the question whether the judgment of the district court should be affirmed based on the government's clarified position. The current version of § 5K2.13 provides that a district court may not depart below the applicable guideline range if, among other things, "the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence." The government argues that every bank robbery necessarily involves at least a "serious threat of violence," because the government must prove that the defendant committed the robbery "by force and violence, or by intimidation," 18 U.S.C. § 2113(a), and that the district court thus lacks authority to depart under § 5K2.13. Woods counters that the amended policy statement requires an inquiry by the district court into the "facts and circumstances" of a particular bank robbery to determine whether the defendant's offense "involved actual violence or a serious threat of violence," and that not every bank robbery committed by "intimidation" must involve a "serious threat of violence." We have not previously considered this question, and we have no controlling authority that governs it. 5 The district court never considered whether Woods was ineligible as a matter of law for departure under the terms of the amended guideline, because it was persuaded, as were we, to accept the government's contention that Petersen rendered Woods ineligible. In view of the government's abandonment of the argument on which it relied in the district court and initially before this panel, we conclude that the better course is to remand the case for the district court to consider, in the first instance, whether it has authority to depart under amended § 5K2.13, and, if so, whether departure is warranted. Cf. United States v. Askari, 159 F.3d 774, 780 (3d Cir.1998) (en banc). 6 Our previous order affirming the judgment of the district court is vacated, as are those portions of the previous panel opinion that applied Petersen to affirm the judgment. In all other respects, including the discussion of this panel's respectful disagreement with the reasoning of Petersen, the previous panel opinion remains unchanged. 7 The petition for rehearing by the panel is granted, the judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion.

57 F.3d 1077NOTICE: 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. Gustabo GONZALES-SOLIS, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 94-70080. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 11, 1995.Decided May 26, 1995. Before: POOLE, BOOCHEVER, and WIGGINS, Circuit Judges. 1 MEMORANDUM* 2 Gustabo Gonzales-Solis seeks review of the Board of Immigration Appeals' ["BIA"] affirmance of the Immigration Judge's ("IJ") denial of his applications for registry, suspension of deportation, and waiver of inadmissibility, and its reversal of the IJ's grant of voluntary departure. 3 This court reviews the BIA's decision, rather than that of the IJ. See Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994). When the BIA defers to the IJ, however, for example in reviewing the IJ's finding that a witness was not credible, this court reviews both the BIA's and the IJ's findings for substantial evidence, giving substantial deference to the IJ's observations where supported by a specific reason for the disbelief. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992). 4 The BIA's decision that Gonzales' lack of good moral character made him statutorily ineligible for suspension of deportation, registry, and voluntary departure also is reviewed under a substantial evidence standard. See Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir. 1989); Mabugat v. INS, 937 F.2d 426, 431 (9th Cir. 1991). Reversal for lack of substantial evidence is justified "only where the evidence presented by the applicant would compel any reasonable factfinder to reach a contrary result." Hartooni, 21 F.3d at 340. 5 The BIA's legal findings, such as the mootness of Gonzales' application for waiver of inadmissibility, are reviewed de novo. See id. I. Good moral character 6 The statutory registry provision states that a record of lawful admission for permanent residence may be made for an alien who establishes that he entered the United States before January 1, 1972, has lived here continuously since, is a person of good moral character, and is not otherwise ineligible for citizenship. See 8 U.S.C. Sec. 1259 (emphasis added). 8 U.S.C. Sec. 1254(a)(1), the section providing for suspension of deportation for an alien who has been physically present in the United States for the last seven years and whose deportation would result in extreme hardship to a wife or child who is a United States citizen, also requires that the alien have been a person of good moral character for those seven years. Finally, 8 U.S.C. Sec. 1254(e)(1) allows voluntary departure in lieu of deportation to an alien who has been, for at least the last five years, a person of good moral character. 7 The BIA found that Gonzales did not have the good moral character required for each of the above types of relief, because Gonzales had not testified truthfully about his part in a scheme to provide fraudulent documents to aliens applying for amnesty. There is no doubt that giving false testimony precludes a finding of good moral character. The section defining "good moral character" specifically excludes "one who has given false testimony for the purpose of obtaining any benefits under this chapter." 8 U.S.C. Sec. 1101(f)(6). The only remaining question on appeal is whether there was substantial evidence that Gonzales did not testify truthfully. 8 In his 1988 sworn statement, Gonzales stated that he began selling false residency documents early that year. Other participants in the scheme would send Gonzales verification of residence letters, certifying that an applicant lived at one of Gonzales' rented properties, and Gonzales would sign them, charging each applicant for amnesty from $20 to $60. None of the applicants actually lived in Gonzales' properties. 9 In contrast, at his deportation hearing, Gonzales first testified that he signed amnesty documents only for his tenants. When cross-examined further, he explained that he forgot who lived in his properties. After admitting that he sold the documents for as much as $60, Gonzales then swore that he did it for no money. He next said that he made some pay him, as partial compensation for damage done to his rental properties. He later added that he realized only later that some of the people whose documents he signed had not actually rented from him, although he subsequently characterized his actions as an attempt to help poor people who came up from Mexico. Following this testimony, the judge indicated that he would make his own credibility determination based on the testimony, his notes, the inconsistencies, and Gonzales' general demeanor. 10 The IJ found: "Whenever given the alternative of telling the embarrassing truth or an exculpatory lie, [Gonzales] chose to perjure himself. He invariably insisted that his infractions were innocent mistakes, but would admit his serious involvement only when confronted by the Trial Attorney with incriminating evidence." The IJ gave specific examples, emphasizing that Gonzales first stated he sold documents only to tenants, then admitted otherwise, and finding Gonzales' claim that he did it out of the goodness of his heart "[t]he height of [Gonzales'] duplicity." 11 Gonzales argues that the BIA should have balanced favorable factors, such as his acceptance of responsibility in entering into the Pretrial Diversion Agreement, and his compliance with the agreement, against his false testimony. The BIA decision did mention these factors, but found that the failure to testify truthfully precluded a finding of good moral character. Because Gonzales' false testimony falls within 8 U.S.C. Sec. 1101(f)(6), which states that no person giving false testimony to obtain benefits under the statute shall be found to be of good moral character, no balancing was necessary or even appropriate. Conduct falling into any of Sec. 1101(f)'s eight categories precludes an alien from establishing good moral character. See Torres-Guzman v. INS, 804 F.2d 531, 533 (9th Cir. 1986). 12 Gonzales also argues that the IJ did not allow him to testify directly about his involvement in the signing of the false documents. The record shows, however, that Gonzales' counsel waived direct examination at the hearing. 13 We find there is substantial evidence in the record to support the IJ's and BIA's finding that Gonzales gave false testimony to gain benefits under the statute. Because that conduct is by definition a showing of a lack of good moral character, Gonzales was not entitled to relief under the sections of the statute requiring good moral character for relief from deportation. II. Voluntary departure 14 Gonzales argues that the BIA did not have jurisdiction to reverse the IJ's grant of voluntary departure, where the INS did not oppose voluntary departure before the IJ and did not appeal the grant to the BIA. 15 "In reviewing whether the Board properly denied an applicant voluntary departure, we may examine only whether the Board actually exercised its discretion and whether it did so in an arbitrary and capricious manner. The Board need only support its conclusion with a reasoned explanation based on legitimate concerns." Abedini v. INS, 971 F.2d 188, 193 (9th Cir. 1992) (as amended) (citations and quotations omitted). The BIA's explanation for denying voluntary departure satisfies these requirements; the decision makes clear that voluntary departure is statutorily barred by Gonzales' lack of good moral character, as demonstrated by his untruthfulness at the hearing. See De la Cruz v. INS, 951 F.2d 226, 228-29 (9th Cir. 1991) (Attorney General has no discretion to allow voluntary departure when statutory ineligibility has been demonstrated). 16 Gonzales argues that the BIA could not review the grant of voluntary departure, because the INS did not oppose it below or appeal the grant to the BIA. The BIA, however, is not limited in its review of the IJ's decision by what the INS presents to it in answer to an alien's appeal from the IJ's decision. The BIA "has the power to conduct a de novo review of the record, to make its own findings, and independently to determine the legal sufficiency of the evidence." Charlesworth v. INS, 966 F.2d 1323, 1325 (9th Cir. 1992) (quoting Elnager v. INS, 930 F.2d 784, 787 (9th Cir. 1991)). We find the BIA could make an independent, de novo review of the record to conclude that voluntary departure was not statutorily permitted. See Sagermark v. INS, 767 F.2d 645, 648 (9th Cir. 1985) (court of appeals has jurisdiction to review issue not appealed by alien to BIA, where BIA addressed issue thoroughly enough to satisfy policy that alien must exhaust administrative remedies, so that administrative agency can correct its own errors before judicial intervention), cert. denied, 476 U.S. 1171 (1986); Ghassan v. INS, 972 F.2d 631, 635 (5th Cir. 1992) (BIA could address issue not raised by INS on alien's appeal from IJ's finding), cert. denied, 113 S. Ct. 1412 (1993). 17 III. Waiver of criminal grounds of inadmissibility 18 The BIA found that Gonzales' argument that he was entitled to a waiver of the criminal grounds for inadmissibility under 8 U.S.C. Sec. 1182(h) was moot. Even if the criminal grounds for inadmissibility were waived, the BIA stated that Gonzales was inadmissible for other reasons, i.e. his lack of good moral character, which mandated denial of the relief he sought under the other sections of the immigration law. 19 An alien seeking to have a record of lawful admission made must demonstrate as a prerequisite that he is not inadmissible as a criminal under Sec. 1182. See 8 U.S.C. Sec. 1259. When the alien is not entitled to have such a record made for other reasons, in this case because he is not of good moral character as required by Sec. 1259(c), the need for a waiver of the criminal grounds of inadmissibility no longer exists, and the alien's application for relief under Sec. 1182(h) becomes moot. See Matter of De Lucia, 11 I. & N. Dec. 565, 575 (BIA 1966), aff'd, De Lucia v. INS, 370 F.2d 305 (7th Cir. 1966), cert. denied, 386 U.S. 912 (1967). We find that the BIA did not err in considering this issue moot. CONCLUSION 20 We AFFIRM the BIA's decision. * 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

417 B.R. 557 (2009) In re Greg J. CONTOS and Georgia M. Contos, Debtors. Webster Bank, National Association, Plaintiff, v. Greg J. Contos and Georgia M. Contos, Defendants. Bankruptcy No. 08 B 22580. Adversary No. 08 A 00963. United States Bankruptcy Court, N.D. Illinois, Eastern Division. October 29, 2009. *560 Amy J. Hansen, Daniel F. Lynch, Lynch & Stern LLP, Chicago, IL, for Plaintiff. Joshua D. Greene, Springer, Brown, Covey, Gaertner & Davis, Wheaton, IL, for Defendants. MEMORANDUM OPINION JOHN H. SQUIRES, Bankruptcy Judge. This matter comes before the Court on the amended complaint filed by Webster Bank, National Association ("Webster Bank") against Greg J. Contos ("Mr.Contos") and Georgia M. Contos ("Mrs.Contos") (collectively the "Debtors") to determine the dischargeability of a debt under 11 U.S.C. § 523(a)(2)(B). For the reasons set forth herein, having considered all of *561 the evidence adduced at trial, the Court finds the debt is nondischargeable in the principal sum of $452,322.02 plus $41,438.21 in unpaid interest. Additionally, the costs incurred by Webster Bank in the sum of $1,346.69 are allowed. Webster Bank is afforded ten days to file a revised submission of its attorneys' fees incurred in the collection of the debt from the Debtors. I. JURISDICTION AND PROCEDURE The Court has jurisdiction to entertain this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. It is a core proceeding under 28 U.S.C. § 157(b)(2)(I). II. FACTS AND BACKGROUND In July 2005, the Debtors supplied Webster Bank with two applications for loans to be secured by real property they owned located at 355 South Sturges Parkway, Elmhurst, Illinois. (Webster Bank Ex. Nos. 1 & 2.) One application was for a first mortgage in the amount of $625,000 and the other application was for a junior mortgage securing a home equity credit line in the amount of $455,000. (Id.) The Debtors signed the loan application for the first mortgage, but they did not sign the loan application for the junior mortgage. (Id.) Both loans were brokered by Capital Mortgage Company. Mr. Contos was the owner and president of Capital Mortgage Company. On the applications, the Debtors indicated that Mr. Contos's base employment income was $23,500 per month. (Id.) A monthly income of $23,500 is equivalent to $282,000 per year. Pursuant to the Debtors' subsequently prepared income tax return for 2005, their annual income from Mr. Contos's employment at the time they made the loan applications was $28,663. (Webster Bank Ex. No. 8.) Moreover, the Debtors claimed a loss of $8,944 on their 2005 income tax return. (Id.) The year preceding the loan applications, the Debtors reported on their 2004 federal income tax return $48,000 as annual income from Mr. Contos's employment, plus other income of over $120,000. (Webster Bank Ex. No. 7.) On September 9, 2005, both loans were closed. As a result, the Debtors and Webster Bank entered into the home equity consumer revolving loan agreement in the sum of $455,000 (the "HELOC Note"), and an open-end junior mortgage. (Webster Bank Ex. Nos. 3 & 4.) On that same date, the Debtors signed an adjustable rate note in the sum of $625,000 and the first mortgage. (Webster Bank Ex. Nos. 5 & 6.) The first mortgage loan was subsequently sold by Webster Bank to another party and is not the subject of this adversary proceeding. The Debtors began to make monthly payments of principal and interest pursuant to the HELOC Note, but defaulted on those payments on January 25, 2008. (Joint Pretrial Statement at p. 2.) Pursuant to the HELOC Note, if a payment is not made on the date it is due, the Debtors will be considered in default. (Webster Bank Ex. No. 3 ¶ 10.) Further, under the terms of the HELOC Note, Webster Bank is entitled to collect its costs and attorneys' fees. (Id. ¶ 11.) Webster Bank submitted its attorneys' fees and costs incurred from June 1, 2008 through August 31, 2009 in the sums of $21,575.00 and $1,346.69, respectively. (Webster Bank Ex. No. 9.) On August 27, 2008, the Debtors filed a voluntary Chapter 7 bankruptcy petition. (Webster Bank Ex. No. 10.) On their Schedule B, the Debtors listed total personal property of $21,581. (Id.) On September 24, 2008, at the first meeting of creditors pursuant to 11 U.S.C. § 341, Mr. *562 Contos testified that the $100,000 figure listed on one of the loan applications as the value of the Debtors' personal property in 2005 was not accurate. (Webster Bank Ex. No. 14 at pp. 15-17.) Webster Bank filed the instant adversary proceeding against the Debtors on November 21, 2008. Proper service was made on both Debtors. The Debtors have not filed an answer to the amended compliant. Only Mr. Contos has appeared pro se to defend himself. In its amended complaint, Webster Bank alleges that the Debtors procured the $455,000 loan with an intent to deceive by using materially false written loan applications respecting their financial condition, on which Webster Bank reasonably relied. Webster Bank seeks a determination that the unpaid principal in the sum of $452,322.02, plus interest of $41,438.21 and attorneys' fees and costs in the sums of $21,575 and $1,346.69, respectively, are non-dischargeable under 11 U.S.C. § 523(a)(2)(B). On October 16, 2009, the Court held an evidentiary hearing in this matter. Webster Bank moved for a judgment on partial findings pursuant to Federal Rule of Civil Procedure 52 and its bankruptcy analog Federal Rule of Bankruptcy Procedure 7052 against Mrs. Contos for her failure to answer or otherwise respond to the amended complaint. Pursuant to Bankruptcy Rule 7052(c), the Court reserved ruling on the motion until the close of all the evidence. Thereafter, the Court took this matter under advisement. For reasons as will be detailed herein, the Court grants Webster Bank's motion for default against Mrs. Contos because it demonstrated by a preponderance of the evidence that the Debtors, with the intent to deceive, obtained money from Webster Bank by using materially false written loan applications respecting their financial condition, on which Webster Bank reasonably relied. At the trial, only one witness testified. Teresa Grant ("Ms.Grant"), senior vice president of Webster Bank, testified that she has been with Webster Bank for approximately three years. According to Ms. Grant, while she was not at Webster Bank when the loans were made to the Debtors in 2005, she reviewed Webster Bank's file and documents relating to the loans, and determined that Webster Bank made both loans in accordance with its ordinary loan procedures and loan underwriting policies. Ms. Grant testified that Webster Bank obtained the following financial information regarding the Debtors: a credit report, bank statements, their 2004 federal income tax return, and other documents, including an appraisal of the Debtor's real property and verification of Mr. Contos's employment as well as verification of the liquid securities owned by the Debtors. According to Ms. Grant, the main criterion that Webster Bank viewed crucial to making the loans was the debt to income ratio of the Debtors. In order to obtain the loans from Webster Bank, the Debtors needed a debt to income ratio of forty-five percent or less. Ms. Grant testified that her review of the file indicated that the Debtors' debt to income ratio was forty-four percent. On that basis, as well as the other documents that Webster Bank obtained, including both loan applications, Ms. Grant testified that Webster Bank approved the loans to the Debtors. Ms. Grant also testified that Mr. Contos's firm, Capital Mortgage Company, had brokered approximately thirty-seven other loans through Webster Bank and that there were no problems with any of these loans. III. APPLICABLE STANDARDS A. Exceptions to the Discharge of a Debt The discharge provided by the Bankruptcy Code is meant to effectuate *563 the "fresh start" goal of bankruptcy relief. Vill. of San Jose v. McWilliams, 284 F.3d 785, 790 (7th Cir.2002). The party seeking to establish an exception to the discharge of a debt bears the burden of proof. Goldberg Sees., Inc. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992); Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 957 (Bankr.N.D.Ill.1995). The burden of proof required to establish an exception to the discharge of a debt is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re McFarland, 84 F.3d 943, 946 (7th Cir.1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to the discharge of a debt are to be construed strictly against a creditor and liberally in favor of a debtor. In re Morris, 223 F.3d 548, 552 (7th Cir.2000); Kolodziej v. Reines (In re Reines), 142 F.3d 970, 972-73 (7th Cir.1998); In re Zarzynski 771 F.2d 304, 306 (7th Cir. 1985). "The statute [11 U.S.C. § 523] is narrowly construed so as not to undermine the Code's purpose of giving the honest but unfortunate debtor a fresh start." Park Nat'l Bank & Trust of Chi. v. Paul (In re Paul), 266 B.R. 686, 693 (Bankr. N.D.Ill.2001). B. 11 U.S.C. § 523(a)(2)(B) Section 523 of the Bankruptcy Code enumerates specific, limited exceptions to the dischargeability of debts. Section 523(a)(2)(B) provides as follows: (a) A discharge under section 727 ... does not discharge an individual debtor from any debt— (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (B) use of a statement in writing— (i) that is materially false; (ii) respecting the debtor's or an insider's financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive[.] 11 U.S.C. § 523(a)(2)(B). To prevail on a complaint under § 523(a)(2)(B), a creditor must prove five elements: (1) the debtor made a statement in writing; (2) the statement was materially false; (3) the statement concerned the debtor's financial condition; (4) in making the statement, the debtor had an intent to deceive the creditor; and (5) the creditor actually and reasonably relied upon the statement. Fischer Inv. Capital, Inc. v. Cohen (In re Cohen), 507 F.3d 610, 613 (7th Cir.2007); In re Sheridan, 57 F.3d 627, 633 (7th Cir.1995). "[T]he creditor bears the burden to demonstrate by a preponderance of the evidence that the exception applies." Cohen, 507 F.3d at 613. IV. DISCUSSION A. Whether the Debtors Made Statements in Writing It is undisputed that the Debtors made statements in writing when they submitted the two loan applications to Webster Bank. The fact that the second application was unsigned is not fatal as the testimony was undisputed that Webster Bank considered both applications in connection with the loans it made. The second loan application was submitted by Mr. Contos's firm, Capital Mortgage Company, which he controlled. Hence, Webster Bank has demonstrated this first element. B. Whether the Statements Were Materially False Next, Webster Bank must show that the statements were materially false. *564 Material falsity is "an important or substantial untruth." In re Bogstad, 779 F.2d 370, 375 (7th Cir.1985). There are two tests for determining whether a statement is materially false. Bryson, 187 B.R. at 962. Under the first test, known as the "substantial untruth" test, a statement is materially false if it "paints a substantially untruthful picture of a financial condition by misrepresenting information of the type which would normally affect the decision to grant credit." Id. (internal quotation omitted). An alternative test to determine "materiality" is the "but for" test. Id. The "but for" test requires a creditor to prove that "but for" the material misrepresentations, he would not have extended money, property, services, or credit. Id.; Westbank v. Grossman (In re Grossman), 174 B.R. 972, 984 (Bankr.N.D.Ill.1994). The Seventh Circuit has noted that the causa sine qua non, or "but for" test is a "recurring guidepost" for determining material falsity. Selfreliance Fed. Credit Union v. Harasymiw (In re Harasymiw), 895 F.2d 1170, 1172 (7th Cir.1990); Bogstad, 779 F.2d at 375. However, the Seventh Circuit has not decided whether satisfaction of the "but for" test is an essential part of a claim under § 523(a)(2)(B). Harasymiw, 895 F.2d at 1172. While the inquiry into material falsity will often focus on the content of particular factual assertions made by a debtor, "writings with pertinent omissions may [also] qualify as materially false for purposes of § 523(a)(2)(B)." Cmty. Bank of Homewood-Flossmoor v. Bailey (In re Bailey), 145 B.R. 919, 930 (Bankr. N.D.Ill.1992). In this matter, the Court finds that Webster Bank has demonstrated material falsity by a preponderance of the evidence under either test. First, the Debtors indicated in the loan applications that Mr. Contos earned monthly income of $23,500. (Webster Bank Ex. Nos. 1 & 2.) A monthly income of $23,500 is equivalent to $282,000 per year. The subsequently received documentary evidence revealed, however, that the Debtors' annual income for 2005 from Mr. Contos's employment totaled $28,663. (Webster Bank Ex. No. 8.) Moreover, the Debtors' claimed a loss of $8,944 on their 2005 income tax return. (Id.) Webster Bank established that during the time period when the Debtors executed the loan applications, the Debtors did not have monthly income of $23,500. Rather, their income was significantly less than what they reported in the loan applications. Indeed, the Debtors earned in one year only slightly more than they represented they earned in one month. Thus, the Court finds that the statements regarding the Debtors' income in the loan applications were materially false. Further, the Debtors indicated on one of the loan applications that they owned personal property worth $100,000. (Webster Bank Ex. No. 1.) In fact, however, at the time of the filing of the bankruptcy petition on August 27, 2008, the Debtors listed the total value of their personal property at $21,581. (Webster Bank Ex. No. 10.) Mr. Contos testified at the § 341 meeting of creditors that the $100,000 figure on the loan application was not accurate. (Webster Bank Ex. No. 14 at pp. 15-17.) Hence, because Mr. Contos testified that he did not own personal property worth $100,000 at the time of the loan applications in July of 2005, the Court finds that this representation made in the first loan application was also materially false. Ms. Grant testified that Webster Bank made the loans to the Debtors based on their debt to income ratio of forty-four percent. She further testified that Webster Bankr required a debt to income ratio of no higher than forty-five percent in order for it to make a loan. Webster Bank loaned the Debtors money based on this *565 figure. Ms. Grant stated that had the Debtors scored over forty-five percent, Webster Bank would not have made the loans to them. In sum, the Debtors' actions in furnishing the inaccurate and false loan applications to Webster Bank painted a substantially untrue picture regarding their assets and current income. Further, based on the testimony of Ms. Grant, Webster Bank demonstrated that but for the material misrepresentations made by the Debtors, Webster Bank would not have made the loans to the Debtors. Consequently, Webster Bank has demonstrated that the loan applications were materially false. C. Whether the Statements Concerned the Debtors' Financial Condition In order to satisfy the statement respecting the debtor's financial condition element, the statement must do more than prompt speculation about the debtor's finances. Bednarsz v. Brzakala (In re Brzakala), 305 B.R. 705, 709 (Bankr.N.D.Ill.2004). The statement must be "`sufficient to determine financial responsibility.'" Id. (quoting Old Kent Bank-Chi. v. Price (In re Price), 123 B.R. 42, 45 (Bankr.N.D.Ill.1991)). It is undisputed that the loan applications, which contained information regarding the Debtors' income, assets, and liabilities concerned the Debtors' financial condition. (Webster Bank Ex. Nos. 1 & 2.) Consequently, Webster Bank has demonstrated this element. D. Whether the Debtors Intended to Deceive Webster Bank Next, Webster Bank must demonstrate that the Debtors intended to deceive it when they submitted the false financial statements. A creditor can establish an intent to deceive through direct evidence, or such intent can be logically inferred from a false representation that the debtor knows or should know will induce another to make a loan. Sheridan, 57 F.3d at 633. A debtor's intent to deceive may also be demonstrated by showing reckless indifference to, or reckless disregard for, the accuracy of the information in a financial statement. Phillips v. Napier (In re Napier), 205 B.R. 900, 907 (Bankr.N.D.Ill.1997). Whether to infer the requisite intent to deceive is left to the bankruptcy court that presides over the trial. Sheridan, 57 F.3d at 634. The Court finds that the Debtors intended to deceive Webster Bank when they submitted their loan applications. At a minimum, the Court finds that the Debtors acted with a reckless disregard for the accuracy of the loan applications. The Debtors affirmatively stated on the July 2005 loan applications that Mr. Contos's income was $23,500 per month. (Webster Bank Ex. Nos. 1 & 2.) Based on the Debtors' 2005 federal income tax return, however, that amount was clearly false and substantially greater than that represented on their income tax return. The Debtors reported wages of only $28,663 for 2005, and reported a loss of $8,944. (Webster Bank Ex. No. 8.) Further, the Debtors indicated on one of the loan applications that they owned personal property valued at $100,000. (Webster Bank Ex. No. 1.) Based on their Schedule B filed with their bankruptcy petition and Mr. Contos's testimony at the § 341 creditors' meeting, the Debtors did not have personal property worth $100,000 at the time of the loan applications in July of 2005. (Webster Bank Ex. Nos. 10 & 14 at pp. 15-17.) The Court finds that Mr. Contos, the owner and president of Capital Mortgage Company, was an experienced mortgage broker, and knew or should have known the importance of the accuracy of the information *566 contained in the loan applications. Moreover, his firm had brokered over thirty prior loans made by Webster Bank to other customers. An intent to deceive will be found where the debtor, an experienced businessman, knows that his financial statement inaccurately reflected assets that he did not own. Jaress Truck Ctrs., Inc. v. Hodges (In re Hodges), 116 B.R. 558, 562 (Bankr.N.D.Ohio 1990). Based on the evidence adduced at trial, the Court infers an intent to deceive on the part of the Debtors when they intentionally misrepresented their income and the value of their personal property on the loan applications. Thus, Webster Bank has demonstrated by a preponderance of the evidence that the Debtors intended to deceive it. E. Whether Webster Bank Actually and Reasonably Relied Upon the Statements Finally, Webster Bank must demonstrate that it actually and reasonably relied upon the statements. The reasonableness of a creditor's reliance should be determined on a case by case basis. In re Bonnett, 895 F.2d 1155, 1157 (7th Cir. 1989). Courts should not "undertake a subjective evaluation and judgment of a creditor's lending policy and practices." N. Trust Co. v. Garman (In re Garman), 643 F.2d 1252, 1256 (7th Cir.1980). Indeed, courts should not use the reasonable reliance requirement to second-guess a creditor's decision to lend money. Morris, 223 F.3d at 553. Generally, creditors are not required to conduct an investigation before entering into agreements with prospective debtors. Id. at 554. A creditor need not "view each representation with incredulity requiring verification." Garman, 643 F.2d at 1260. Although investigation is generally not required, "such a precaution could be the ordinarily prudent choice in circumstances where the creditor admits that it does not believe the representations made by the prospective debtor." Morris, 223 F.3d at 554. Reliance may not be reasonable if a lender "possesses information sufficient to call the representation into question...." Mayer v. Spanel Int'l Ltd., 51 F.3d 670, 676 (7th Cir.1995). The requirement of reasonable reliance does not mean that a creditor can bury its head in the sand like an ostrich and ignore facts that are readily available to it. Bogstad, 779 F.2d at 373 n. 4. In evaluating whether a creditor's reliance was reasonable, the following factors may be considered: (1) the creditor's standard practices in evaluating creditworthiness (absent other factors, there is reasonable reliance where the creditor follows its normal business practices); (2) the standards or customs of the creditor's industry in evaluating creditworthiness (what is considered a commercially reasonable investigation of the information supplied by the debtor); and (3) the surrounding circumstances existing at the time of the debtor's application for credit (whether there existed a "red flag" that would have alerted an ordinarily prudent lender to the possibility that the information is inaccurate, whether there existed previous business dealings that gave rise to a relationship of trust, or whether even minimal investigation would have revealed the inaccuracy of the debtor's representations). Colchester State Bank v. Phillips (In re Phillips), 367 B.R. 637, 645 (Bankr.C.D.Ill. 2007). With respect to the first factor, Ms. Grant testified that based on her review of the loan file, Webster Bank's standard practices in evaluating creditworthiness were followed. There was no evidence adduced regarding the second *567 factor—the standards or customs of the banking industry in evaluating credit-worthiness. As for the third factor, the potential "red flag" of the materially lower income on the Debtors' 2004 income tax return from the monthly amount listed in both loan applications is weighed in the balance along with the apparently satisfactory credit report, the Debtors' bank statements, and other documentation received by Webster Bank. The Court finds that Webster Bank has shown by a preponderance of the evidence that it actually and reasonably relied upon the false statements made by the Debtors. Actual reliance is shown by the closing of both loans. Webster Bank demonstrated reasonable reliance by showing that it followed its normal business practices and conducted sufficient due diligence before the loans were made. Webster Bank ran a credit report on the Debtors and procured a copy of their 2004 federal income tax return as well as the other documentation. Ms. Grant testified that Webster Bank actually and critically relied on the Debtors' representations in the loan applications that Mr. Contos's monthly income from employment was $23,500. Ms. Grant further testified that Mr. Contos, through his company, had brokered approximately thirty-seven mortgage loans with Webster Bank and that there had never been a problem with any of those loans. This last factor is critical in Webster Bank's favor because is shows a prior satisfactory course of dealing between Mr. Contos and Webster Bank that allowed it to be lulled into a false sense of security in relying on the Debtors' representations that their income was substantially increased in 2005 over that earned in 2004. When a debtor and a creditor have an ongoing relationship that gives rise to a relationship of trust, a creditor's reliance may be deemed reasonable without additional verification. Phillips, 367 B.R. at 645 (citing Bogstad). Webster Bank was reasonably entitled to rely upon the financial information provided by the Debtors because it had no reason to suspect that the Debtors were providing false information. Although the income on the loan applications was significantly higher than in the 2004 tax return, there is nothing in the record to indicate that Webster Bank should have done more than follow its usual practice of reviewing the credit report and bank statements submitted by the Debtors. In short, there were no "red flags" that would have alerted Webster Bank to the possibility that some of the information provided in the loan applications was inaccurate. Hence, Webster Bank has demonstrated this element by a preponderance of the evidence. Pursuant to the terms of the HELOC Note, Webster Bank is entitled to its attorneys' fees and costs. (Webster Bank Ex. No. 3 ¶ 11.) Webster Bank submitted its attorneys' fees and costs incurred from June 1, 2008 through August 31, 2009 in the sums of $21,575.00 and $1,346.69, respectively. (Webster Bank Ex. No. 9.) The expenses have been adequately detailed and will be allowed as requested. The attorneys' fees, however, have not been properly documented in order for the Court to review the services rendered. The exhibit lists the time spent by Webster Bank's attorneys, but does not reflect the services provided because they have been redacted to preserve the attorney-client privilege. While the Court understands why the details regarding the services provided were redacted, the current submission makes it impossible for the Court to review the services and determine the reasonableness and necessity of the work performed. As a result, the Court affords Webster Bank ten days to file a revised, detailed submission of the attorneys' *568 fees it incurred in the collection of the debt from the Debtors. For the foregoing reasons, the Court finds the debt owed by the Debtors to Webster Bank is non-dischargeable under § 523(a)(2)(B) in the principal sum of $452,322.02 plus $41,438.21 in unpaid interest. Additionally, the costs incurred by Webster Bank in the sum of $1,346.69 are allowed. Webster Bank is afforded ten days to file a revised submission of its attorneys' fees incurred in the collection of the debt from the Debtors. V. CONCLUSION For the foregoing reasons, the Court finds that the debt owed by the Debtors to Webster Bank is non-dischargeable under § 523(a)(2)(B) in the principal sum of $452,322.02 plus $41,438.21 in unpaid interest. Additionally, the costs incurred by Webster Bank in the sum of $1,346.69 are allowed. Webster Bank is afforded ten days to file a revised submission of its attorneys' fees incurred in the collection of the debt from the Debtors. This Opinion constitutes the Court's findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate order shall be entered pursuant to Federal Rule of Bankruptcy Procedure 9021.

628 F.2d 1350 Orpianov.Johnson 80-6396 UNITED STATES COURT OF APPEALS Fourth Circuit 7/22/80 1 E.D.Va. AFFIRMED

92 F.3d 1192 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.Oscar Dan ETIM, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 95-70292. United States Court of Appeals, Ninth Circuit. Submitted July 11, 1996.*Decided July 26, 1996. Before: WOOD, JR.,** CANBY, and RYMER, Circuit Judges. 1 MEMORANDUM*** 2 Oscar Dan Etim petitions this court for review of a decision of the Board of Immigration Appeals ("BIA" or "the Board") denying his applications for registry under § 249 of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1259, and for waiver under § 212(h) of the Act, 8 U.S.C. § 1182(h). For the reasons provided below, we affirm the Board's decision. I. BACKGROUND 3 Etim, a native and citizen of Nigeria, lawfully entered the United States under a six-month, non-immigrant visa in 1968 to attend a church convention. During Etim's stay in the United States, a civil war erupted in Nigeria and most, if not all, of Etim's family perished in the fighting. Etim was a teenager at the time and his church arranged for him to be placed with guardians in Homer, Alaska. Etim's status, however, was never officially adjusted and the Immigration and Naturalization Service ("INS" or "the Service") seemingly lost track of him. 4 Etim attended high school in Alaska from 1968 to 1972. After graduating, he attended the University of Alaska for a period of time, but he did not earn a degree. The record indicates that from 1974 until 1993 Etim held various jobs in Alaska, Arizona, and Nevada. 5 Etim's experiences in this country were not wholly edifying, however. He also engaged in criminal conduct: During his deportation proceedings, Etim admitted to having used cocaine in 1979 and methamphetamine in 1987; in 1989, he pleaded guilty to shoplifting and providing false information to a police officer; and in 1994, he pleaded guilty to attempted coercion,1 a felony. As a result of his coercion offense, Etim was sentenced to one year in jail. The record indicates that Etim actually served approximately nine and one half months of this sentence. 6 Following his incarceration, the Service commenced deportation proceedings. On December 10, 1994, an Immigration Judge ("IJ") found that Etim was deportable. Etim conceded his deportability, but applied for registry under § 249 of the Act and for waiver under § 212(h) of the Act. The IJ denied Etim's applications and ordered that he be deported to Nigeria.2 Etim appealed and on March 16, 1995, the Board affirmed the IJ's decision. Etim then petitioned this court for review. II. DISCUSSION A. Denial of Registry Under § 249 7 Under § 249 of the Act, an alien who is present unlawfully in the United States may, in the discretion of the Attorney General, nonetheless remain if he establishes that he (1) entered the United States prior to January 1, 1972; (2) has resided here continuously since that entry; (3) is of good moral character; and (4) is eligible for citizenship. 8 U.S.C. § 1259. The Board affirmed the IJ's finding that Etim is not of good moral character in light of his admission of past drug use and his criminal record. 8 The determination that an alien lacks good moral character is a factual one, and as such, we subject it to the substantial evidence standard upon review. 8 U.S.C. § 1105a(a)(4). Under this standard, we must uphold the Board's findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. We may only arrive at a factual conclusion different from that reached by the BIA if "the evidence not only supports that conclusion, but compels it." INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1 (1992). After reviewing the record in this matter, we cannot conclude that it compels a finding different from that reached by the Board. 9 The Board's good moral character determination was dictated by the terms of the Act. The Act expressly states that a person may not be found to be a person of good moral character if, "during that period for which good moral character is required to be established," that person "has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more." 8 U.S.C. § 1101(f)(7). As mentioned above, Etim was confined to a penal institution for a period of approximately nine and one half months following his attempted coercion conviction. This confinement immediately preceded Etim's deportation proceedings. Furthermore, Etim has not introduced any evidence that his character has changed since the occurrence of the incident for which he was incarcerated. See Matter of Sanchez-Linn, Interim Dec. 3156 (BIA 1991). Therefore, we conclude that substantial evidence supports the Board's finding that Etim lacks good moral character under the terms of the Act. Thus, we need not discuss the impact of Etim's admission of past drug use nor his earlier plea of guilty to shoplifting. B. Ineligibility for Waiver Under § 212(h) 10 Etim also alleges that the Board erred when it failed to grant him relief under § 212(h) of the Act, 8 U.S.C. § 1182(h). 11 Under section 212(h), the alien is entitled to relief if: (1) he is the spouse, parent or child of a U.S. citizen or lawful permanent resident; (2) deportation would result in extreme hardship to the U.S. citizen or lawful permanent resident spouse, child, or parent; (3) the alien's admission would not be contrary to the national welfare, safety or security of the United States; and (4) the Attorney General exercises his discretion in the alien's favor. 12 Moran-Enriquez v. INS, 884 F.2d 420, 422 (9th Cir.1989). Etim contends that the Board erred when it concluded that he had failed to establish that his daughter would suffer extreme hardship if he were deported. The Board's determination in this regard is reviewed for an abuse of discretion. Shooshtary v. INS, 39 F.3d 1049, 1050-51 (9th Cir.1994) (citation omitted). 13 The record regarding Etim's daughter is sparse; Etim introduced only his own testimony, which the IJ assumed to be true. According to Etim's testimony, he was not even aware of the existence of his daughter until approximately four years ago, when she was fifteen years of age. Etim has had no personal relationship whatsoever with his daughter since then. He has seen her only once, in court, when he responded to a summons pertaining to child support. Etim paid child support through the State of Nevada for a period of one year, until he was incarcerated for attempted coercion. Etim has introduced no further evidence regarding hardship to his daughter. 14 We have previously agreed that a finding of extreme hardship is appropriate " 'only in those cases where "great actual or prospective injury" to the qualifying party will occur. There must be an "extreme impact" on the citizen or lawful permanent resident family member.' " Shooshtary, 39 F.3d at 1051 (quoting the BIA's decision in the case below) (quoting Matter of Ngai, 19 I & N Dec. 245, 246, 247 (BIA 1984)). While it might be true that Etim's daughter may suffer some quotient of hardship if he is deported, as Etim will presumably never thereafter provide any financial support, we cannot conclude that the Board abused its discretion when it concluded that this hardship would not be "extreme." III. CONCLUSION 15 For the reasons provided above, the decision of the Board is affirmed. 16 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** The Honorable Harlington Wood, Jr., United States Circuit Judge for the Seventh Circuit, sitting by designation *** 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 The record indicates that Etim became involved in an altercation with a woman in his apartment over an outstanding loan. Etim allegedly detained the woman against her will for approximately two hours. The confrontation ended when a struggle over a handgun resulted in the firing of several shots which drew the police to the scene. Etim was initially charged with first degree kidnapping with use of a deadly weapon and battery with intent to commit a crime; he later pleaded guilty to the lesser crime of attempted coercion 2 Etim designated Nigeria as the country of deportation; he has expressed no fear of returning to his native country

65 P.3d 1134 (2001) 2001 UT 89 Curtis B. CAMPBELL and Inez Preece Campbell, Plaintiffs, Appellees, and Cross-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant, Appellant, and Cross-Appellee. No. 981564. Supreme Court of Utah. October 19, 2001. Rehearing Denied December 4, 2001. *1140 L. Rich Humpherys, Roger P. Christensen, Karra J. Porter, Salt Lake City, Laurence H. Tribe, Kenneth J. Chesebro, Cambridge, MA, W. Scott Barrett, Logan, for plaintiffs. Glenn C. Hanni, Paul M. Belnap, Stuart H. Schultz, Salt Lake City, Evan M. Tager, Adam C. Sloane, Washington, DC, for defendant. George C. Harris, Salt Lake City, amici National Association of Independent Insurers, National Association of Mutual Insurance Companies, United Services Automobile Association, Farmers Group of Insurance Companies, SAFECO Insurance Company of America. INTRODUCTION DURHAM, Justice: ¶ 1 On August 24, 1989, plaintiffs Curtis B. and Inez Preece Campbell, sued State Farm *1141 Mutual Automobile Insurance Company for damages arising from State Farm's decision to try a third-party automobile accident case in which Mr. Campbell was the defendant, rather than accepting offers to settle for the policy limits of Mr. Campbell's insurance policy. The jury found in plaintiffs' favor, awarding them $911.25 in out-of-pocket costs, $2.6 million in compensatory damages, and $145 million in punitive damages. State Farm filed several post-verdict motions challenging the jury verdict, which the trial court rejected. As a condition of denying State Farm's motion for a new trial, however, the trial court remitted the compensatory damage award from $2.6 million to $1 million and the punitive damage award from $145 million to $25 million. The Campbells also received a judgment from the trial court for attorney fees and litigation expenses in the amount of $801,582.48. State Farm has appealed from the judgment and the Campbells have cross-appealed the trial court's remittitur ruling on punitive damages. BACKGROUND ¶ 2 On May 22, 1981, while driving north on Highway 89-91 near Logan, Utah, Mr. Campbell unsafely passed a car driven by Robert Slusher (Slusher).[1]Slusher, 777 P.2d at 438-39. This unsafe maneuver forced a southbound car, driven by Todd Ospital, to veer onto the shoulder of the road and collide with Slusher's car a split second later. Id. at 439. The accident killed Todd Ospital at the scene and left Slusher disabled. Id. Although the initial investigation of the accident supported differing conclusions as to who caused the accident, a consensus was reached early on by the investigators and witnesses that Mr. Campbell's unsafe pass had indeed caused the crash. ¶ 3 In September 1981, Slusher filed an action against Mr. Campbell, Ospital's estate (Ospital), and Kenneth Brooks (the owner of the car driven by Todd Ospital) for damages resulting from the collision. Slusher, 777 P.2d at 439. Ospital filed a cross-claim against Mr. Campbell for wrongful death. Id. Mr. Campbell cross-claimed against Ospital for contribution. Id. ¶ 4 During discovery, State Farm collected evidence that blamed Mr. Campbell for the accident. At various stages throughout discovery, including as late as a month before trial, Slusher and Ospital invited State Farm to settle for the policy limits of the Campbell policy.[2] On April 23, 1983, Ospital's counsel even sent a letter to State Farm stating that State Farm "should tender its limits" because "[a] limit of $25,000 is too low to risk excess exposure by exposing its insured to personal liability." This letter also stated that if State Farm continued to oppose settlement, Ospital would seek a separate agreement with Slusher that "may not likely be favorable to [Mr.] Campbell's interests." However, State Farm never departed from its original "no settlement" stance, continuing to reject offers made following the commencement of the trial. ¶ 5 In choosing not to settle, State Farm superintendent Bob Noxon (Noxon) and divisional superintendent Bill Brown (Brown) rejected a report of State Farm investigator Ray Summers (Summers) that stated there was evidence of fault on Mr. Campbell's part. In particular, Brown ordered Summers to change the portion of his report describing the facts of the accident and his analysis of liability "wherein [he] had indicated an exposure [for Mr. Campbell], and that there could be a high settlement value on it." Additionally, after hearing from Bill Brown, Noxon told Summers that Noxon had "screwed up" by agreeing with Summers' initial analysis regarding Mr. Campbell's fault and demanded that Summers return to Noxon the letter Noxon had written indicating his approval. Subsequently, State Farm discontinued Summers' involvement in the case. State Farm hired Wendell Bennett (Bennett), an attorney who had done a considerable amount of *1142 work for State Farm, to represent the Campbells. ¶ 6 In June 1983, Ospital's estate did in fact enter into a separate settlement agreement with Slusher. Ospital had $130,000 of combined liability insurance.[3] Under the settlement agreement, Ospital's estate paid Slusher $65,000 dollars and the Ospitals promised to assist Slusher in prosecuting claims against Mr. Campbell and his insurer, State Farm. In exchange, Slusher released all claims he had against Ospital's estate. Id. ¶ 7 Shortly thereafter, the case against Mr. Campbell went to trial. The jury found Mr. Campbell 100% at fault for the accident and a judgment for $135,000 was entered. Slusher, 777 P.2d at 439. The jury also awarded Ospital damages in the amount of $50,849. In light of Bennett's numerous reassurances to both Mr. and Mrs. Campbell that their assets were safe, that they had no liability for the accident, that he would represent their interests, and that they did not need to procure separate counsel, the Campbells were utterly dismayed. To their expressions of dismay, Bennett responded by telling the Campbells that "[y]ou may want to put for sale signs on your property to get things moving," making it clear that State Farm did not intend to pay the excess judgment against the Campbells. Furthermore, State Farm declined to post a supersedeas bond on appeal in excess of their $25,000 policy limit. The Campbells immediately acquired other counsel and learned that their situation was indeed grave. ¶ 8 In late 1984, Slusher, Ospital, and Mr. Campbell entered into an agreement in which Mr. Campbell agreed that: (1) he would pursue a bad faith action against State Farm; (2) Ospital's and Slusher's attorneys would represent him in that action; (3) Slusher and Ospital would have the right to be part of all major decisions relating to that action; (4) no settlement of any claim against State Farm could be made without Slusher's and Ospital's approval; and (5) in the event Mr. Campbell recovered any monies, Ospital and Slusher would receive 90% of the sum remaining after certain agreed-upon obligations were paid. In exchange, Slusher and Ospital agreed to not seek satisfaction of their judgment from Mr. Campbell and to inform anyone checking on Mr. Campbell's credit that their judgments were not personal obligations. Id. ¶ 9 In 1989, this court affirmed the 1983 verdict against Mr. Campbell. Slusher v. Ospital, 777 P.2d 437, 438-39 (Utah 1989). State Farm then paid all of the damages awarded in the 1983 action, both its policy limits and Mr. Campbell's personal liability. Shortly thereafter, the Campbells filed this action against State Farm alleging, among other things, bad faith, fraud, and intentional infliction of emotional distress. The trial court granted summary judgment to State Farm on the ground that because it had ultimately paid all of the damages awarded, there had been no bad faith as a matter of law. Plaintiffs appealed to this court, which transferred the case to the Utah Court of Appeals, which reversed and remanded, stating that although State Farm had paid the debt, the Campbells had the right to pursue their claim that there had been bad faith in the previous dealings. Campbell v. State Farm Mut. Auto. Ins. Co., 840 P.2d 130, 143 (Utah Ct.App.1992), cert. denied, 853 P.2d 897 (Utah 1992). ¶ 10 On remand, the trial court denied State Farm's motion to introduce the settlement agreement entered into by Slusher and Ospital before the original trial in Logan, Utah. However, over the Campbells' resistance, the trial court did grant State Farm's motion to bifurcate the trial. In phase I of the trial, the jury was to determine whether State Farm acted in bad faith. Id. Only if the jury found such bad faith would phase II, setting the compensatory damages award for State Farm's bad faith and addressing the Campbells' claims for fraud, intentional infliction of emotional distress, and punitive damages, occur. ¶ 11 In phase I, the jury found that State Farm had acted unreasonably and in bad faith in its decision to take the case to trial *1143 because there was a substantial likelihood of an excess judgment against Mr. Campbell. Notwithstanding this finding of bad faith, State Farm argued during phase II that its decision to take the case to trial was an "honest mistake" that did not warrant punitive damages. In contrast, the Campbells introduced evidence that State Farm's decision to take the case to trial was a result of a national scheme to meet corporate fiscal goals by capping payouts on claims company wide. This scheme was referred to as State Farm's "Performance, Planning and Review," or PP & R, policy. To prove the existence of this scheme, the trial court allowed the Campbells to introduce extensive expert testimony regarding fraudulent practices by State Farm in its nation-wide operations. Although State Farm moved prior to phase II of the trial for the exclusion of such evidence and continued to object to it at trial, the trial court ruled that such evidence was admissible to determine whether State Farm's conduct in the Campbell case was indeed intentional and sufficiently egregious to warrant punitive damages. ¶ 12 At the close of the evidence, the jury awarded the Campbells $2.6 million[4] in compensatory damages and $145 million in punitive damages. State Farm made several post-verdict motions, including motions for a judgment notwithstanding the verdict, for a new trial, and for remittitur of the damage awards. Ultimately, the trial court denied all of State Farm's motions for a judgment notwithstanding the verdict and for a new trial. However, the trial court did order a remittitur of the damage awards to $1 million in compensatory damages[5] and $25 million in punitive damages.[6] In addition, the trial court awarded the Campbells $400,834.70 (forty percent of the compensatory damages award) for attorney fees and $400,747.78 for litigation expenses, totaling $801,582.48. ISSUES AND STANDARDS OF REVIEW[7] ¶ 13 We list the issues and applicable standards of review in the order of their treatment in the analysis portion of this opinion. 1. Did the trial court commit reversible error in permitting an award of $25 million in punitive damages to stand? a. In particular, State Farm argues that the $25 million punitive damages award is excessive under both Utah and federal law. Standard of Review: [1] Under Utah law, seven factors must be analyzed to determine whether the amount of a punitive damage award is excessive. See Crookston v. Fire Ins. Exch., 817 P.2d 789, 808 (Utah 1991) (Crookston I). We have heretofore reviewed the trial court's findings of fact regarding all but the seventh Crookston I factor under a clearly erroneous standard. See State v. Pena, 869 P.2d 932, 935 (Utah 1994). Because the seventh Crookston I factor involves the trial court's application of the law to the facts, we have in the past reviewed the trial court's determination for correctness, while at the same time affording the trial court some discretion as to the underlying facts. See id. at 936-39. Recently, however, the U.S. Supreme Court has imposed a new standard of review as a matter of federal constitutional law in punitive damages cases.[8] In Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), the Supreme *1144 Court held that federal due process requires federal appellate courts to review punitive damage awards de novo when they are challenged on constitutional grounds. Id. at 1682-83. In view of the applicability of fourteenth amendment standards to state courts, we adopt the de novo standard for reviewing jury and trial court conclusions under the Crookston I factors. 2. Did the trial court commit reversible error by admitting "other acts" evidence in violation of Utah Rule of Evidence 404(b)? Standard of Review: [2] "[W]e review a trial court's decision to admit evidence under rule 404(b) of the Utah Rules of Evidence under an abuse of discretion standard. We review the record to determine whether the admission of other bad acts evidence was `scrupulously examined' by the trial judge `in the proper exercise of that discretion.'" State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120 (quoting State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837) (footnote omitted). 3. Did the trial court commit reversible error by allowing the Campbells' experts to testify because they "usurp[ed] the function of the jury, g[a]ve irrelevant testimony, evade[ed] the hearsay rules, and testif[ied] without a proper foundation?" Standard of Review: A trial court's decision to admit expert testimony is reviewed for an abuse of discretion. Patey v. Lainhart, 1999 UT 31, ¶ 33, 977 P.2d 1193; State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993). Furthermore, a trial court will not be reversed for an abuse of discretion unless "there is a reasonable likelihood that the verdict would have been different if the trial court had [excluded] the expert testimony." Steffensen v. Smith's Mgmt. Corp., 862 P.2d 1342, 1347 (Utah 1993). 4. Did the trial court commit reversible error in excluding evidence relating to the settlement agreement between Slusher and Ospital? Standard of Review: [5] We review a trial court's decision regarding the relevancy of evidence under an abuse of discretion standard. Bambrough v. Bethers, 552 P.2d 1286, 1290 (Utah 1976) ("The trial court is given considerable discretion in deciding whether or not evidence submitted is relevant."); State v. Harrison, 805 P.2d 769, 780 (Utah Ct.App.1991) (same). 5. Did the trial court commit reversible error by ruling that Mrs. Campbell has standing to pursue a bad faith claim? Standard of Review: This is a legal issue, and is reviewed for correctness. Provo City Corp. v. Willden, 768 P.2d 455, 456 (Utah 1989). 6. Did the trial court commit reversible error by allowing Mrs. Campbell to recover for fraud when the evidence was insufficient to support her claim? Standard of Review: [7][8] When considering challenges to jury verdicts based on insufficiency of the evidence, "we view the evidence in the light most supportive of the verdict, and assume that the jury believed those aspects of the evidence which sustain its findings and judgment." Billings v. Union Bankers Ins. Co., 918 P.2d 461, 467 (Utah 1996) (internal quotation marks omitted). "If the evidence taken in the light most favorable to the verdict supports the verdict, we will affirm." Steenblik v. Lichfield, 906 P.2d 872, 875 (Utah 1995). 7a. Did the trial court commit reversible error by allowing both Mr. and Mrs. Campbell to recover for intentional infliction of emotional distress when the evidence was insufficient to support such claims? *1145 Standard of Review: See the standard of review for the previous issue. 7b. Are the remitted emotional distress awards of $600,000 to Mr. Campbell and $400,000 to Mrs. Campbell excessive? Standard of Review: [9] We consider whether there is a "reasonable basis" to support the trial court's decision. Crookston I, 817 P.2d at 805. 8. Did the trial court commit reversible error in awarding attorney fees to the Campbells? Standard of Review: [10, 11] Whether attorney fees should be awarded is a legal issue that we review for correctness. Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998). The amount of attorney fees awarded is reviewed for abuse of discretion in making such an award. Id. 9. Did the trial court commit reversible error in awarding more than $400,000 in litigation expenses without requiring the Campbells to specifically demonstrate that such expenses were reasonable and necessary to their claim for compensatory damages? Standard of Review: [12, 13] The question of whether litigation expenses may be awarded in a bad faith action by an insured against an insurer is one of law, which we review for correctness. The standard of review as to the amount of such expenses is abuse of discretion. Ong Int'l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 460 (Utah 1993); City Consumer Servs., Inc. v. Peters, 815 P.2d 234, 240 (Utah 1991). ANALYSIS I. PUNITIVE DAMAGES ¶ 14 State Farm argues that the punitive damage award is excessive under both Utah and federal law. The Campbells cross-appeal, arguing that the trial court's remittitur of the amount of the punitive damages awarded was not required under Utah law. We consider the application of both the Utah and federal standards separately below. ¶ 15 At the outset, we note the guidelines for trial courts contained in Crookston I, 817 P.2d 789, 811-12 (Utah 1991). In upholding a punitive damages award, "the trial judge must make a detailed and reasoned articulation of the grounds for concluding that the award is not excessive in light of the law and the facts," thereby "permit[ting] more effective and reasoned appellate review of the decision to uphold the award and to enable the appellate court to more carefully consider the various factors that may warrant punitives and the weight to be accorded them, while giving adequate deference to the advantaged position of the trial judge to appraise the witnesses and the evidence." Id. at 811. We note that pursuant to Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), we now review the factors de novo and do not defer to the trial court. When reducing an award of punitive damages, a trial court "should also explain its action" because "[t]he articulation of grounds for a remittitur ... should serve the same salutary purpose on appeal" furthered by requiring trial courts to articulate their grounds for upholding a punitive damages award. Crookston I, 817 P.2d at 811-12. ¶ 16 We commend the trial judge in this case for his exemplary compliance with these guidelines, and indeed for his meticulous, extensive, and very thorough written findings of fact and conclusions of law on all issues. This work by the trial judge has greatly enhanced our ability to review and organize a lengthy and complex record. A. Utah Law ¶ 17 Both parties agree that the Utah law governing punitive damages was outlined in Crookston I, 817 P.2d 789 (Utah 1991), and Crookston v. Fire Ins. Exch., 860 P.2d 937 (Utah 1993) (Crookston II). In Crookston I, the court announced the following *1146 factors to consider when awarding punitive damages: (i) the relative wealth of the defendant; (ii) the nature of the alleged misconduct; (iii) the facts and circumstances surrounding such conduct; (iv) the effect thereof on the lives of the plaintiff and others; (v) the probability of future recurrence of the misconduct; (vi) the relationship of the parties; and (vii) the amount of actual damages awarded. Crookston I, 817 P.2d at 808. ¶ 18 In analyzing the appropriateness of the jury's punitive damage award, the trial court applied the seven factors outlined in Crookston I and remitted the award based solely upon the seventh factor, believing that the damage ratio in that case created a legal limitation. Thus, although he required remittitur of the award, the trial judge observed that $25 million "may be viewed as artificially low in that it does not capture the full amount of harm done to the Campbells as a result of State Farm's misconduct." Id. at ¶ 92. ¶ 19 On appeal, State Farm objects to both the jury verdict and the remitted punitive damage award, citing the following language from Crookston I: "punitive damages awards beyond a 3 to 1 ratio to actual damages have seldom been upheld and ... where the award is in excess of $100,000, we [the Utah Supreme Court] have indicated some inclination to overturn awards having ratios of less than 3 to 1." Crookston I, 817 P.2d at 810. Further, State Farm relies on the following elaboration from Crookston II: [i]t is certainly true that the punitive award here is without precedent in Utah, either as to the amount or as to the high ratio of punitive damages to hard compensatory damages. The presumption, therefore, is that the award is excessive. However, ..., this presumption may be overcome if the trial court explains why the case is unique in terms of one of the traditional seven factors or in terms of some other compelling factor. Crookston II, 860 P.2d at 940 (citing Crookston I, 817 P.2d at 811). ¶ 20 According to State Farm, this language limits punitive damage awards to three times the amount of compensatory damages, unless the other Crookston I factors justify a higher ratio—which in this case, State Farm argues they do not. Thus, State Farm asserts that the trial court erred in not ordering a new trial or remitting the punitive damage award to an amount within the 3:1 ratio. Id. ¶ 21 Conversely, the Campbells argue that the trial court placed undue emphasis on the seventh Crookston I factor. Because the other factors support a large punitive damage award, they assert that the seventh factor does not mandate a remittitur. Id. Instead, awards with higher than normal ratios of punitive to compensatory damages are simply cause for heightened judicial scrutiny to ensure that other factors support the large award. Id. ¶ 22 To determine whether the trial court erred, we consider all of the Crookston I factors. As discussed in the issues and standards of review section, we review the trial court's conclusions under the Crookston I factors pursuant to a de novo standard. Cooper Indus., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674. 1. The Relative Wealth of State Farm ¶ 23 The defendant's wealth is the first factor for consideration. "Punitive damages... should be sufficient to discourage... [the defendant], or anyone similarly situated, from repeating such conduct in the future." Cruz v. Montoya, 660 P.2d 723, 727 (Utah 1983), superceded by statute on other grounds. To calculate an award sufficient to punish and deter companies from future egregious behavior, some courts have compared the amount of punitive damages to the company's net worth. For example, the Seventh Circuit Court of Appeals has held that a typical punitive damage award may be around one percent of the defendant's net worth. Cash v. Beltmann N. Am. Co., 900 F.2d 109, 111 n. 3 (7th Cir.1990). Although such guidelines are helpful in reviewing punitive damage awards, we emphasize that in Utah there is no pre-established mathematical formula for such awards. *1147 ¶ 24 State Farm argues that Utah courts have considered a corporation's wealth only to mitigate large punitive awards, and that it is not aware of "any Utah appellate decision upholding a presumptively excessive punitive exaction on the ground that the defendant happened to be wealthy." In defense of this proposition, State Farm cites to Cruz and VanDyke v. Mountain Coin Machine Distrib., Inc., 758 P.2d 962 (Utah Ct.App.1988), two cases in which the appellate courts did in fact reduce the punitive damage award based on the defendant's wealth. However, neither of these cases holds that the wealth of a company can be considered only to mitigate a punitive damage award. To the contrary, they indicate that a fact finder should consider the defendant's relative wealth when calculating a punitive damage award, and that such awards should have a proportional relationship to the defendant's wealth. See Cruz, 660 P.2d at 726-27; VanDyke, 758 P.2d at 965-66. ¶ 25 Additionally, State Farm relies on two federal court cases, Continental Trend Resources, Inc. v. OXY USA, Inc., 101 F.3d 634, 641 (10th Cir.1996), cert. denied, 520 U.S. 1241, 117 S.Ct. 1846, 137 L.Ed.2d 1049 (1997), and Utah Foam Prod. Co. v. Upjohn Co., 930 F.Supp. 513, 531 (D.Utah 1996). These cases likewise do not support State Farm's position. In particular, while stating that a defendant's wealth "cannot alone" justify a large punitive damage award, Utah Foam indicates that a defendant's wealth may be taken into account. Utah Foam, 930 F.Supp. at 531 (internal quotation marks omitted). Moreover, Continental Trend specifically states that "wealth must remain relevant" when determining punitive damage awards. Cont'l Trend, 101 F.3d at 641. ¶ 26 State Farm's wealth is enormous. As the trial court found, "[t]he evidence indicates that State Farm's surplus increased from $2.65 billion in 1977 to $25 billion in 1995. Its assets increased from $6.3 billion in 1977 to $54.75 billion in 1995, at an average increase of $4.3 million per working day in surplus, and $9.3 million per working day in assets.... A punitive damages award equal to one percent of State Farm's wealth would be $547.5 million. The remitted amount of $25 million in punitive damages represents less that 1/20th of one percent of State Farm's wealth (.0457 per cent)." Moreover, the jury's punitive damage award of $145 million is only 0.26 of one percent of State Farm's wealth as computed by the trial court, to whose judgment on this factual matter we defer. In our view, neither percentage is unreasonable, given the need to sufficiently deter and punish State Farm. See Crookston II, 860 P.2d at 940-41 (upholding punitive damage award that was 0.5 of one percent of defendant's net worth). Furthermore, the evidence showed that a larger than normal punitive damage award is necessary to attract the attention of State Farm officials and deter the company from further bad conduct because, as the trial court specifically found: (1) State Farm's corporate headquarters had never learned of, much less acted upon, a punitive damage award of $100 million in a previous case; and (2) State Farm's Regional vice-president for Utah testified that there was no system in place to inform the company's national headquarters of any punitive damage award, and that he did not plan to report the award in this case. 2. The Nature of State Farm's Misconduct ¶ 27 This factor specifically analyzes the nature of the defendant's conduct in terms of its maliciousness, reprehensibility, and wrongfulness. It mirrors the "reprehensibility" factor described by the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). There, the Supreme Court stated that the defendant's misconduct is "[p]erhaps the most important indicium of the reasonableness of a punitive damages award." Id. at 575, 576, 116 S.Ct. 1589. Repeated "trickery and deceit" targeted at people who are "financially vulnerable" is especially reprehensible and worthy of greater sanctions. Id. Moreover, "deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive" also warrant larger awards. Id. at 579, 116 S.Ct. 1589. ¶ 28 With these standards clearly in mind, the trial court made nearly twenty-eight pages of extensive findings concerning *1148 State Farm's reprehensible conduct. We summarize here three examples from those findings of State Farm's most egregious and malicious behavior. ¶ 29 First, State Farm repeatedly and deliberately deceived and cheated its customers via the PP & R scheme. See Court's Findings, Conclusions and Order Regarding Punitive Damages and Evidentiary Rulings, Campbell, at 17-27. For over two decades, State Farm set monthly payment caps and individually rewarded those insurance adjusters who paid less than the market value for claims. Id. at 18-19. Agents changed the contents of files, lied to customers, and committed other dishonest and fraudulent acts in order to meet financial goals. Id. at 17-27. For example, a State Farm official in the underlying lawsuit in Logan instructed the claim adjuster to change the report in State Farm's file by writing that Ospital was "speeding to visit his pregnant girlfriend." Id. at 35. There was no evidence at all to support that assertion. Ospital was not speeding, nor did he have a pregnant girlfriend. Id. The only purpose for the change was to distort the assessment of the value of Ospital's claims against State Farm's insured. As the trial court found, State Farm's fraudulent practices were consistently directed to persons—poor racial or ethnic minorities, women, and elderly individuals— who State Farm believed would be less likely to object or take legal action. Id. at 26-27. ¶ 30 Second, State Farm engaged in deliberate concealment and destruction of all documents related to this profit scheme. Id. at 31-33. State Farm's own witnesses testified that documents were routinely destroyed so as to avoid their potential disclosure through discovery requests. Id. at 29-30. Such destruction even occurred while this litigation was pending. Id. at 30. Additionally, State Farm, as a matter of policy, keeps no corporate records related to lawsuits against it, thus shielding itself from having to disclose information related to the number and scope of bad faith actions in which it has been involved. Id. at 30. ¶ 31 Third, State Farm has systematically harassed and intimidated opposing claimants, witnesses, and attorneys. Id. at 33-37. For example, State Farm published an instruction manual for its attorneys mandating them to "ask personal questions" as part of the investigation and examination of claimant in order to deter litigation. Id. at 34. Several witnesses at trial, including Gary Fye and Ina DeLong, testified that these practices had been used against them. Id. at 34-35. Specifically, the record contains an eighty-eight page report prepared by State Farm regarding DeLong's personal life, including information obtained by paying a hotel maid to disclose whether DeLong had overnight guests in her room. Id. at 35. There was also evidence that State Farm actually instructs its attorneys and claim superintendents to employ "mad dog defense tactics"—using the company's large resources to "wear out" opposing attorneys by prolonging litigation, making meritless objections, claiming false privileges, destroying documents, and abusing the law and motion process. Id. at 36-37. ¶ 32 Taken together, these three examples show that State Farm engaged in a pattern of "trickery and deceit," "false statements," and other "acts of affirmative misconduct" targeted at "financially vulnerable" persons. BMW, 517 U.S. at 575, 576, 116 S.Ct. 1589. Moreover, State Farm has strategically concealed "evidence of [its] improper motive" to shield itself from liability, which was furthered by State Farm's treatment of opposing witnesses and counsel. BMW, 517 U.S. at 579, 116 S.Ct. 1589. Such conduct is malicious, reprehensible, and wrong. ¶ 33 State Farm responds by arguing in its brief that even if its conduct was wrong, it does not "after all, involve murder, torture, or deliberate poisoning of the environment," and thus cannot warrant millions of dollars in punitive damages. Additionally, State Farm argues that under Crookston II, willful calculated fraud was not sufficient to justify a higher than ordinary ratio of punitive to compensatory damages. Crookston II, 860 P.2d at 940. ¶ 34 State Farm fails to realize that, while Crookston II held that fraudulent conduct alone was insufficient to justify a large punitive damage award, it also observed that fraud combined with other factors justifies a *1149 higher award. Id. at 940-41. Specifically, Crookston II stated that "an additional unique factor justifying the punitive award, both in its dollar amount and in its proportion to the hard compensatory damages [is]... the company's `calculated and calloused attitude' toward settling valid claims." Id. at 941 (citation omitted). In this case, the jury was convinced, and the evidence shows, that State Farm engaged in a widespread pattern of fraud. Moreover, the evidence of its PP & R scheme demonstrates that State Farm specifically calculated and planned to avoid full payment of claims, regardless of their validity. Thus, the nature of State Farm's conduct supports the imposition of a higher than normal punitive damage award. 3. Facts and Circumstances Surrounding State Farm's Misconduct ¶ 35 This factor looks to the circumstances surrounding the illegal conduct, particularly with respect to what the defendant knew and what was motivating his or her actions. See Bundy v. Century Equip. Co., 692 P.2d 754, 759 (Utah 1984). Discussing this point, the trial court referred to its previous analysis of State Farm's conduct and stated "those facts speak for themselves with respect to the type of insensitive and callous behavior exhibited by State Farm." In addition to the trial court's findings, we note that State Farm refuses in its brief on appeal to concede any error or impropriety in the handling of the Campbell case. Rather, testimony at trial indicated that State Farm was "proud" of the way it treated the Campbells. Id. Further, State Farm asserts that it is in fact a "victim" in this case because it is the target of a secret "conspiracy" perpetrated by the Campbells, Ospital, Slusher, and their attorneys to bring this bad faith lawsuit and to share any recovery obtained. ¶ 36 Even if we agreed with State Farm's characterization of the agreement between the plaintiffs and Ospital and Slusher, we are unable to comprehend State Farm's logic. No behavior by those parties operates to excuse State Farm's dishonest and illicit practices over the course of many years, nor its treatment of the Campbells. In fact, without this so-called "conspiracy," which contains no illegal elements whatever, State Farm's wrongdoing would have remained unexamined and unpunished, and the direct harm to the Campbells, the indirect harm to the other parties, and the harmful effect on the larger community of all those who deal with the company, would have had no remedy. The facts and circumstances surrounding State Farm's misconduct all point to a scheme motivated by the goal of making a profit by any means necessary. We agree entirely with the trial court's conclusion that this factor supports the imposition of a higher than normal punitive damages award. 4. Effect of State Farm's Misconduct on the Campbells and Others ¶ 37 This factor examines how the defendant's conduct affected other people as well as the Campbells. The larger the number of people affected, the greater the justification for higher punitive damages. ¶ 38 Here, the effect of State Farm's conduct on the Campbells is well-documented. In particular, the Campbells lived for nearly eighteen months under constant threat of losing everything they had worked for their whole lives. This threat led to sleeplessness, heartache, and stress in the Campbells' marriage and family relationships. Id. State Farm argues that these were relatively minor impacts, and were not as severe as those punished in Crookston II, and additionally, that the alleged harms suffered by other State Farm customers cannot be considered in this case. ¶ 39 Even if the harm to the Campbells can be appropriately characterized as minimal, the trial court's assessment of the situation is on target: "The harm is minor to the individual but massive in the aggregate." Moreover, State Farm's assertion that the trial court erred in considering alleged harms suffered by other customers is incorrect; Crookston II specifically allows courts to consider the effect of the defendant's conduct on others. Crookston II, 860 P.2d at 941. In fact, the Crookston II court justified a high punitive damage award based on the fact that the insurance company's fraudulent *1150 practices were inflicted on countless customers. Id. ¶ 40 In the present case, State Farm's conduct seriously affected the Campbells, as indicated previously, as well as many others. In particular, State Farm's conduct corrupted its employees by forcing them to engage in deceptive practices or lose their jobs. Moreover, State Farm's continuing illicit practice created market disadvantages for other honest insurance companies because these practices increased profits. As plaintiffs' expert witnesses established, such wrongfully obtained competitive advantages have the potential to pressure other companies to adopt similar fraudulent tactics, or to force them out of business. Thus, such actions cause distortions throughout the insurance market and ultimately hurt all consumers. Id. Because State Farm's actions have such potentially widespread effects, this factor supports a high punitive damages award. 5. Probability of Future Recurrences ¶ 41 This factor analyzes the likelihood that the defendant will repeat or continue engaging in its wrongful behavior. A high probability of recidivism justifies a higher than normal punitive damage award. BMW, 517 U.S. at 577, 116 S.Ct. 1589. In light of State Farm's decades-long policy of fraudulent and dishonest practices in its handling of claims, it is difficult to imagine how such ingrained policies of corporate culture can be easily or quickly changed. This would be true even in a case where the perpetrator was fully aware of and remorseful for its conduct. State Farm has not exhibited any such self-awareness in this case. Instead, State Farm asserted at trial that its PP & R policy was "obsoleted" in 1992 and again in 1994. However, the Campbells' evidence showed that the policy was still being followed at the time of trial. Id. ¶ 42 State Farm challenged the Campbells' evidence by pointing out at trial that State Farm's regional vice president for Utah testified that he had sent "peace of mind" letters to customers assuring them that State Farm would protect them against personal exposure in third-party suits. However, as the trial court noted, "[t]he Court does not find it surprising that the jury apparently was not particularly persuaded that this repentance was genuine," especially in light of the fact that the vice president did not decide to send such letters until he "was in the office of trial counsel preparing for his trial testimony ... not long before the jury was to decide punitive damages." ¶ 43 In short, we are persuaded, as was the trial court, that "[g]iven the absence of credible evidence that, in fact, State Farm's policies have changed, and that the misconduct carried out toward Utah consumers during the past two decades has ended, the probability of recurrence of State Farm's misconduct appears extremely high." 6. Relationship of the Parties ¶ 44 This factor analyzes the relationship between the parties, specifically, the degree of confidence and trust placed in the defendant. The greater the trust placed in the defendant, the more appropriate the imposition of a large punitive damage award for a breach of that trust. A breach of a fiduciary relationship also supports a large punitive damage award. ¶ 45 In Beck v. Farmers Ins. Exch., we noted that a fiduciary relationship exists between insurers and insureds like the Campbells because [i]n a third-party situation, the insurer controls the disposition of claims against its insured, who relinquishes any right to negotiate on his own behalf.... In essence, the contract itself creates a fiduciary relationship because of the trust and reliance placed in the insurer by its insured. The insured is wholly dependent upon the insurer to see that, in dealing with claims by third parties, the insured's best interests are protected. 701 P.2d 795, 799 (Utah 1985) (citations omitted). Because State Farm breached its duty in this fiduciary relationship, the trial court ruled that State Farm's actions warranted high punitive damages. See Brown v. Coates, 253 F.2d 36, 40 (D.C.Cir.1958) (holding that punitive damages are particularly appropriate when fiduciary duty is disregarded and exploited for gain). *1151 ¶ 46 State Farm argues that, although a fiduciary relationship exists, it is not an adequate basis for imposing a multi-million dollar penalty. Its argument is that because its breach of its fiduciary duty is the reason it is liable in tort in the first place, the breach cannot be "double-counted" as a justification for a large award. Id. at 86. ¶ 47 We disagree. The facts show that the Campbells trusted in and relied on State Farm's promises of protection and aid. For example, State Farm affirmatively promised the Campbells that it "would look out for their best interests" and that they should not procure their own counsel because State Farm would take care of them. Also, State Farm convinced the Campbells that "they had absolutely no risk," and even on the chance that they were found liable, they had adequate insurance to cover any potential liability. The Campbells relied on these promises: Inez Campbell actually transferred some of her separate property into joint ownership with her husband after the accident upon being told that there was no risk to Mr. Campbell of an excess judgment. The relationship of trust between State Farm and the Campbells, and the breach of that trust, warrants a substantial punitive damage award. 7. Ratio of Punitive to Compensatory Damages ¶ 48 As noted above, the trial court reduced the jury's punitive damage award from $145 million to $25 million based solely on this factor. State Farm argues that this number is still grossly disproportionate to the harm suffered and should be reduced further according to the Crookston I ratio. ¶ 49 Applying the rationale and the language of both Crookston cases to this case, we reject State Farm's interpretation. First, contrary to State Farm's arguments, the ratio of punitive to compensatory damages is not determinative. It is simply one of the factors to be considered, none of which is more important or conclusive than another. See Crookston I, 817 P.2d at 808. Crookston I specifically stated that: "No relative weights have been assigned them [the factors], and no standards or formulas have been established for properly evaluating them." Id. A large award triggers a more searching judicial analysis of the situation to ensure the defendant's conduct warrants large punitive damages. However, if the other six factors support a large punitive damages award, a judge should not decrease the amount solely because of the ratio of punitive to compensatory damages. Crookston II, 860 P.2d at 940. ¶ 50 Second, both Crookston I and Crookston II rejected the idea of establishing a specific ratio or capping punitive damages, and emphasized that the guidelines for punitive damages need to be flexible enough to accomplish both the punishment and deterrent purposes of punitive damages. See Crookston II, 860 P.2d at 941; Crookston I, 817 P.2d at 809. In support of this reasoning, the Crookston II court noted that [i]f a company could predict that its systematic fraudulent conduct would evade detection in many instances and on those few occasions where it was discovered, would never result in punitive damages greater than the ratios we have historically upheld, it could carefully calculate the cost/benefit ratio of its wrongful conduct and avoid the deterrent potential of punitive damages. Crookston II, 860 P.2d at 941. ¶ 51 Finally, Crookston II itself was a case where the ratio of punitive to compensatory damages was higher than three to one. We upheld that award because of the willful, malicious, and fraudulent conduct of the insurance company towards the Crookstons and other similarly situated Utahns. Crookston II, 860 P.2d at 941. Since State Farm's conduct is of a similar nature, we hold that a ratio of greater than three to one is permissible here, and that the trial court erred in remitting the jury award. As long as the other factors sustain a high punitive damage award, as they do here, neither Crookston I nor Crookston II bars courts from imposing punitive damage awards greater than three times the amount of compensatory *1152 damages.[9] ¶ 52 Based on the foregoing review of the seven Crookston I factors, we hold that, with the exception of its analysis of the seventh factor, the trial court's analysis is fully corroborated by our own. However, we conclude that the trial court erred in deciding that the seventh factor required remittitur as a matter of state law. B. Federal Law ¶ 53 State Farm asserts that the standards set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), prohibit imposing the large amount of punitive damages awarded in this case. To "illuminate `the character of the standard that will identify unconstitutionally excessive awards' of punitive damages," the BMW Court stated: Punitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition.... States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case.... Only when an award can fairly be categorized as "grossly excessive" in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment. Id. at 568, 116 S.Ct. 1589 (citations omitted). The Supreme Court then identified "[t]hree guideposts" for consideration: "[1] the degree of reprehensibility of the [conduct]; [2] the disparity between the harm or potential harm suffered ... and [the] punitive damages award; and [3] the difference between this remedy [the punitive damage award] and the ... penalties authorized or imposed in comparable cases." Id. at 574-575, 116 S.Ct. 1589. Since the reprehensibility guidepost of the BMW test mirrors the second and third factors in Crookston I, relating to the nature and circumstances surrounding defendant's misconduct, we incorporate here our earlier analyses of these Crookston I factors, and conclude for the reasons discussed therein that the reprehensibility guidepost is met.[10] We analyze the second and third "guideposts" separately below. 1. Disparity Between the Harm and the Punitive Award (Ratio) ¶ 54 The most common means of determining whether a punitive damage award is excessive under federal law is to look at the ratio of punitive to compensatory damages. See BMW, 517 U.S. at 580, 116 S.Ct. 1589. However, when conducting such an analysis, there is no "simple mathematical formula," "categorical approach," or "constitutional line" for determining an appropriate punitive to compensatory damage ratio. Id. at 582, 116 S.Ct. 1589. In fact, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. Id. Overall, the ratio of punitive to compensatory damages needs to be reasonable considering the totality of the circumstances. Id. at 583; see also TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 458-62, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) (upholding punitive damage award that was 526 times amount of compensatory damage award because of potential harm that could have occurred had defendant's fraudulent scheme worked); Pac. Mut. Life Ins. Co. v. *1153 Haslip, 499 U.S. 1, 23, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (upholding punitive damage award that was 200 times amount of plaintiff's out-of-pocket expenses based on reprehensibility of conduct and wealth of defendant). ¶ 55 Based on the language cited above, the trial court found that this BMW factor "does not impose a rigid cap on punitive damages awards" because in the Campbells' case, as in TXO, "the injury is hard to detect" and the potential for large harm is substantial. Specifically, the trial court relied on the following facts to justify the high punitive damage award: (1) State Farm never reported previous punitive damage awards to headquarters, even though prior awards included a Texas judgment of $100 million; (2) State Farm is an enormous company with massive wealth; (3) State Farm's actions, because of their clandestine nature, will be punished at most in one out of every 50,000 cases as a matter of statistical probability; and (4) State Farm's policies have affected vast numbers of other Utah customers. ¶ 56 While not contesting the validity of the finding that it is likely to be punished at most in one out of 50,000 cases, State Farm does challenge the other three justifications. Because State Farm's objections to considering relative wealth and the effects on other Utah customers are identical to its arguments against the punitive damage award under Crookston I, we again incorporate by reference our previous analysis of Crookston I factors one and four in section "IA" 1 and 4 of this opinion. ¶ 57 Turning to the remaining justification relied on by the trial court, we note that the court found that a prior $100 million punitive damage award against State Farm had not been reported to its national headquarters. State Farm argues that the award in this case need not be more severe than that award, citing Johansen v. Combustion Engineering, Inc., for the proposition that "a punitive award does not need to be large enough to `make the company newsletter' and need `not attract the attention of the board of directors' in order to have a deterrent effect." 170 F.3d 1320, 1338 & n. 36 (11th Cir.1999), cert. denied sub nom. Combustion Eng'g. Inc. v. McGill, 528 U.S. 931, 120 S.Ct. 329, 145 L.Ed.2d 256 (1999). State Farm's reliance on Johansen is unfounded. First, unlike this case, Johansen did not involve punishing a company that had previously been assessed punitive damages for its illicit conduct. Rather, the punitive damage award issued in Johansen against the mining company was the first and only punishment imposed for its misconduct. Id. at 1336. ¶ 58 More importantly, State Farm misconstrues the holding of Johansen, which in fact stands for the proposition that larger awards are necessary for large corporations, and that company executives should be aware of imposed punitive sanctions. See id. at 1338-39. Specifically, Johansen states that in promoting deterrence, the economic wealth of a tortfeasor may be considered. A bigger award is needed to "attract the... attention" of a large corporation. ... It is not unlikely that having to pay ... punitive damages would not make the company newsletter. It should, however, attract the attention of whomever is in charge of the corporation's daily decisions... and would, no doubt, bear heavily upon regional or local managers where failure to regard consequences would be expected to subject their employer to loss. Id. (citations and footnotes omitted and emphasis added). ¶ 59 Many large corporations are "entities too powerful to be constrained" by remedies provided by "criminal and civil law." Michael Rustad & Thomas Koenig, The Historical Continuity of Punitive Damages Awards: Reforming the Tort Reformers, 42 Am. U.L.Rev. 1269, 1329-30 & n.299 (1993). In many cases, the public's only protection against exposure to fraudulent harmful conduct by such large, powerful corporations is the threat that sanctions imposed for misconduct will be sufficiently severe. Id. If such a threat is unavailable, punitive damage awards against large entities will not serve their deterrent and punitive purposes. See Crookston II, 860 P.2d at 941. ¶ 60 State Farm points out that in the wake of BMW, many lower courts have held unconstitutional far lower ratios of punitive *1154 to compensatory damages than exist here. State Farm cites eighteen cases where courts have reduced punitive damage awards after conducting a BMW analysis. Id. at 77-78. In contrast, the Campbells cite nine other cases upholding punitive damage awards where the ratio of punitive to compensatory damages is larger than or the same as the ratio in this case. ¶ 61 All the cases agree, however, that each court must analyze the facts of each case to ensure that the defendant's acts warrant the punitive damage award imposed.[11] In fact, the BMW court made it clear that the initial punitive damage award in that case (500 times the amount of plaintiff's damages) was not automatically invalid, but that it was unconstitutional because of the specific facts of the case—i.e. the fraud was perpetrated without "trickery or deceit," the available criminal and regulatory sanctions for comparable misconduct were minor, and some of the conduct for which BMW was being punished was legal in states other than Alabama. BMW, 517 U.S. at 582-84, 576-78, 572, 116 S.Ct. 1589.[12] ¶ 62 Like BMW, this case contains exceptional facts and circumstances. Here, however, they support a higher rather than a lower punitive damage award. State Farm's fraudulent conduct has been a consistent way of doing business for the last twenty years, directed specifically at some of society's most vulnerable groups. The likelihood of further misconduct by State Farm is great, given the fact that it has not changed its conduct despite a previous $100 million punitive damage award. Moreover, the effect on the Campbells warrants a large award, given that they had to live in fear of complete financial ruin for over eighteen months because of State Farm's refusal to settle their claim. Finally, the harm propagated by State Farm is extreme when compared to the statistical probability that State Farm is likely to be required to pay damages only once in 50,000 cases. Thus, because there are reasonable justifications for the large punitive damage award based upon the specific facts of this case, the ratio factor in BMW does not require the award to be reduced simply because the ratio of punitive to compensatory damages is high. 2. Civil or Criminal Penalties Authorized in Comparable Cases ¶ 63 The final factor for determining whether a punitive award is excessive under federal law is to "[c]ompar[e] the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct." BMW, 517 U.S. at 583, 116 S.Ct. 1589. Possible imprisonment for such conduct is a strong indication that the conduct warrants high punitive damages. Id. ¶ 64 The trial court found that this factor "does not require reduction of the punitive damage award" because the "penalties that could be imposed under Utah law for the fraudulent scheme that has been pursued by State Farm are enormous." Specifically, the trial court found that State Farm could be forced: (1) to pay a $10,000 fine for each act of fraud under Utah Code Ann. §§ 31A-26-301 et seq.; (2) to renounce its business *1155 license or have its Utah operations dissolved under Utah Code Ann. §§ 31A-26-213, 76-3-201(2) and (3), XX-XX-XXXX(ppp), and XX-XX-XXXX.5(5); (3) to disgorge all the illicit profits gained by the scheme, plus pay a fine of twice the value of those profits, under Utah Code Ann. §§ 76-10-1602 et seq.; and (4) to publically acknowledge that its officers had been convicted of fraud under Utah Code Ann. § 76-3-303. Moreover, under Utah Code Ann. § 76-3-303, State Farm's officers could be imprisoned or removed for up to five years, an extremely important consideration for the BMW court. BMW, 517 U.S. at 584, 116 S.Ct. 1589. ¶ 65 State Farm disputes these findings, arguing that since this case is the "only bad faith action against it in the last fifteen years," there is no evidence that it has defrauded customers or gained illicit profits. Moreover, State Farm argues that even if it could be punished for its practices, permissible punishment is limited by the "actual fining practice" of the Insurance Commission. Id. at 83. ¶ 66 State Farm's logic is unpersuasive for several reasons. First, such an interpretation runs contrary to the clear language of BMW indicating the Court was examining "the civil or criminal penalties that could be imposed for comparable misconduct," not other punishments already issued against the defendant. BMW, 517 U.S. at 583, 116 S.Ct. 1589 (emphasis added). ¶ 67 Second, State Farm's argument that there is no evidence of fraud is contrary to the trial court's findings and to the evidence that we have reviewed supporting those findings. It is difficult to understand how State Farm can argue that there is no evidence that it committed fraud or acted illicitly when the record contains volumes of such evidence. The evidence was so extensive and convincing that it took the trial court nearly twenty-eight pages to summarize it in his findings on the post-trial motions. ¶ 68 Finally, State Farm's argument that the Insurance Commission's practices in assessing fines are applicable, rather than the maximum statutory penalties, is contrary to BMW. The BMW court clearly indicated that the punitive award was to be compared to legislatively set penalties, not administrative agency practices. BMW, 517 U.S. at 584, 116 S.Ct. 1589. For example, the Supreme Court stated that it was examining "the statutory fines" and "[t]he maximum civil penalty authorized by the Alabama Legislature." Id. Moreover, BMW also stated that a "reviewing court engaged in determining whether an award of punitive damages is excessive should accord substantial deference to legislative judgments concerning appropriate sanctions for the conduct at issue." Id. at 583, 116 S.Ct. 1589 (internal quotation marks omitted and emphasis added). We conclude that the trial court correctly found that a large punitive damage award was justifiable under this third guidepost. ¶ 69 In conclusion, we hold that the trial court's analysis of the punitive damage award under BMW was correct. In light of the foregoing analysis of state and federal law, we vacate the trial court's remittitur order and reinstate the jury's verdict awarding $145 million in punitive damages. II. OTHER ACTS EVIDENCE ¶ 70 State Farm argues that large quantities of "other acts" evidence were admitted in violation of the Utah Rules of Evidence because such evidence had nothing to do with State Farm's handling of third-party claims in general, or State Farm's conduct toward the Campbells in particular, and therefore had no probative value. State Farm catalogs a long list of allegedly inadmissible evidence on which it bases its argument that the evidentiary process in the trial court was tainted.[13] In contrast, the Campbells argue that *1156 State Farm did not properly preserve its evidentiary objections and that, even if it had, the trial court did not exceed its discretion in admitting the "other acts" evidence. ¶ 71 We decline State Farm's invitation to take a piecemeal approach to the analysis of the admissibility of the "other acts" evidence in this complex and lengthy litigation. Just as any able litigator must have a "theory of the case" if he or she hopes to convince a fact finder of the merits of a particular action, it is crucial for a trial judge confronting a case with so many issues and opportunities for mistake to have an overall view of the necessary balance for fairness to the parties in the conduct of the trial, particularly as this relates to the admission and exclusion of evidence. The trial court in this case had such a vision, and we believe it achieved balance and fairness. ¶ 72 First and foremost, the trial court granted State Farm's request, over the Campbells' strenuous objections, to take the unusual step of bifurcating the trial.[14] The trial court imposed stringent evidentiary restrictions on the Campbells during phase I of the trial, so that only State Farm's treatment of the Campbells was at issue in establishing its bad faith in handling their claim. Id. In a post-trial ruling, the trial court stated that it "understood that the purpose of [the] bifurcation order was to separate the so-called `bad-faith phase' (phase I) from what the parties termed the `institutional phase' of this trial (phase II)." The trial court continued: "State Farm prevailed in its bifurcation arguments largely by pointing out that phase II, covering the institutional evidence, would involve a very lengthy trial, as it would deal with State Farm's corporate policies and practices—so that bifurcation would save substantial resources in the event that the jury found no bad-faith claim handling." (Emphasis added.) ¶ 73 The other major decision that the trial court made, on which State Farm's arguments regarding error in the admission of "other acts" evidence largely succeed or fail, was the admission of evidence related to its PP & R policy. This policy, initiated in 1979 by the company's highest executives, set fixed ceilings on the payment of claims in order to increase corporate profits. After phase I established that State Farm had handled the Campbells' claim in bad faith and had breached its fiduciary duty to them, State Farm defended itself in phase II by claiming that its actions were only the result of an "honest mistake" or an isolated lapse in judgment. Based on this defense, the trial court denied State Farm's request to exclude all evidence from which the jury could infer that the Campbells were the victims of an extensive, intentional scheme to defraud State Farm's policyholders. All of the other categories of evidence State Farm challenges as being erroneously admitted during phase II of the trial, from the practice of office competitions to lower average claims paid, to the discriminatory treatment of insureds based on gender, race, economic status, educational background, and age, were part and parcel of its PP & R policy. ¶ 74 In this context, we conclude that we must consider the evidence in an integrated fashion and analyze whether the trial court erred in admitting the "other acts" evidence in general. State Farm's challenge to the trial court's admission of such evidence is controlled by Utah Rule of Evidence 404(b), which states: Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In other words, evidence offered under this rule is admissible if it is relevant for a non-character purpose and meets the requirements of Rules 402 and 403. Thus, "in deciding whether evidence of other crimes is admissible under rule 404(b), the *1157 trial court must determine (1) whether such evidence is being offered for a proper, noncharacter purpose under 404(b), (2) whether such evidence meets the requirements of rule 402, and (3) whether this evidence meets the requirement of rule 403." State v. Decorso, 1999 UT 57, ¶ 20, 993 P.2d 837. When reviewing such decisions, we apply "an abuse of discretion standard ... [and consider] the record to determine whether the admission of other bad acts evidence was `scrupulously examined' by the trial judge `in the proper exercise of [his or her] discretion.'" State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120 (quoting Decorso, 1999 UT 57 at ¶ 18, 993 P.2d 837). A. Noncharacter Purpose ¶ 75 "Under the first part of this analysis, the proponent must demonstrate that the evidence is actually being offered for a proper, noncharacter purpose, such as those specifically listed in ... rule [404(b) ]." Decorso, 1999 UT 57 at ¶ 21, 993 P.2d 837. Although the list of noncharacter purposes found in rule 404(b) is helpful, it is not exclusive. See Edward L. Kimball & Ronald N. Boyce, Utah Evidence Law 4-41 (1996). ¶ 76 Phase II of the trial involved the Campbells' claims of fraud, intentional infliction of emotional distress, and punitive damages, and State Farm's defense that its mistreatment of the Campbells was unintentional and simply the result of an honest mistake. In this context, the trial court found that the Campbells' evidence, which State Farm now challenges on appeal, was offered for many noncharacter purposes, including establishing State Farm's intent, reckless disregard, absence of mistake, plan, and outrageous conduct, as well as rebutting State Farm's defense. Comparing the elements necessary to establish the Campbells' claims and to rebut State Farm's defenses with the evidence State Farm finds objectionable, we conclude that the trial court was entirely correct in finding that such evidence was offered for noncharacter purposes. Moreover, based on our review of the record, which indicates that the trial court made its conclusions only after reviewing numerous motions in limine made by State Farm and conducting at least ten pretrial hearings that consumed more than fifteen days, we are satisfied that the trial court scrupulously examined the "other acts" evidence ultimately admitted at trial. Once again, we have been greatly assisted in our review by the trial court's extended written findings in his orders on the pretrial motions. Accordingly, we conclude that the trial court did not exceed the permitted range of discretion in finding that the "other acts" evidence was offered for a proper, noncharacter purpose.[15] B. Rule 402 ¶ 77 Under rule 402, "other acts" evidence, like all evidence, must be relevant or it is not admissible. Utah R. Evid. 402 ("All relevant evidence is admissible.... Evidence which is not relevant is not admissible."). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Utah R. Evid. 401. Thus, to be admissible, "other acts" evidence must tend to prove some fact that is material to the cause of action alleged—other than the defendant's propensity to engage in actions in conformity therewith. Decorso, 1999 UT 57 at ¶ 22, 993 P.2d 837. ¶ 78 After careful consideration, the trial court specifically concluded that the "other acts" evidence to which State Farm presently objects was "relevant," "helpful," and "of high probative value" because such evidence was necessary to establish several elements of the Campbells' claims and to rebut State Farm's defenses. Our review of the record makes it clear that the trial court's statement regarding the necessity of the "other acts" evidence is amply supported therein. Notably, one of the chief concerns of rule 402 is *1158 not even present in this case, namely the need to ensure that fact-finders will not infer wrong-doing in a present scenario because an actor has done wrong in the past. Phase I of this trial conclusively established that State Farm acted in bad faith; its wrong-doing was thus determined without any reliance on past deeds or general practices. The only issue in Phase II was the nature of appropriate compensatory and punitive damages to be imposed in response to the wrong-doing. For that purpose, State Farm's intent, motive, and rationale for its wrong-doing was extremely relevant, and the evidence of its long-established methods of doing business were, as the trial court found, highly probative. ¶ 79 Surprisingly, even in the face of the trial court's detailed findings and analysis, State Farm asserts on appeal that the "other acts" evidence had no probative value. We find this assertion troubling. State Farm's failure to acknowledge the probative value of the "other acts" evidence is of a piece with its inability to acknowledge that it engaged in a wide-spread corporate scheme to defraud its insureds, a scheme that had far-reaching negative effects on both its insureds and society in general. Because the trial court had a reasonable basis in the evidence for its decision, we reject State Farm's assertion, and conclude that the trial court did not abuse its discretion in finding evidence of State Farm's "other acts" relevant. See Crookston II, 860 P.2d 937, 938 (Utah 1993) ("[W]e reverse only if we find an abuse of discretion, i.e., no reasonable basis for the decision.") C. Rule 403 Analysis ¶ 80 Rule 403 requires that "we weigh the probative value of the evidence with the potential for creating prejudice in the minds of the jurors." State v. Reed, 2000 UT 68, ¶ 29, 8 P.3d 1025. The rule states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Utah R. Evid. 403. In assessing whether prior acts evidence satisfies the requirements of rule 403, a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility. Reed, 2000 UT 68 at ¶ 29, 8 P.3d 1025. ¶ 81 In ruling upon State Farm's various evidentiary motions, the trial court found that in light of the phase I jury verdict against State Farm, "the pattern and practice evidence is of high probative value and importance to plaintiffs' claims, and that serious prejudice to plaintiffs would result if such evidence were excluded. The court further finds that the probative value is not outweighed by the danger of unfair prejudice or confusion." The trial court made it clear, however, that it was not precluding further rule 403 objections to exclude specific evidence. Rather, it found only that objections to specific evidence based on the "general issues of wrongful pattern and practice evidence" would be improper. ¶ 82 We find compelling reasons under rule 403 to uphold the trial court's denial of State Farm's request to generally exclude all "other acts" evidence related to its patterns and practices. As discussed above, the alleged wide-ranging effects of State Farm's PP & R policy were crucial to the Campbells' ability to prove their fraud, intentional infliction of emotional distress, and punitive damage claims. State Farm attacks the trial court's evidentiary rulings repeatedly for allowing evidence that was "dissimilar" from the facts in the Campbells' case; this once again misses the mark. The underlying purpose of rule 403 is to assure a careful consideration of prior acts and, in the event that the evidence passes the rule 404(b) threshold, to continue to evaluate the evidence in light of its potentially prejudicial effect. Although the "similarity" language of Reed and earlier cases is not particularly apt in this case, we think that its general concerns were accounted for *1159 in the trial court's reasoning underlying his determinations of the admissibility of the "other acts" evidence. State Farm's PP & R policy exposed the Campbells to an excess judgment and the accompanying risk of losing all their assets. Thus, cause and effect became very important. In other words, the relevant inquiry in phase II was: What caused the Campbells' harm? Without the evidence of State Farm's PP & R policy, and evidence of practices flowing from that policy, the Campbells would have been unable to prove the real cause of their harm. The establishment of this cause and effect link was highly dependant on the "other acts" evidence of State Farm's methods of doing business. ¶ 83 State Farm also contends that the time interval factor was not met here because some of the evidence detailed behavior remote in time. However, inasmuch as there was affirmative evidence adduced tending to show that State Farm's practices were ongoing at the time of the trial (which evidence was explicitly believed by the trial court and apparently by the jury), we find that contention without merit. In light of these considerations, the trial court did not abuse its discretion in ruling that the probative value of the "other acts" evidence was not outweighed by any potential prejudice. III. EXPERT TESTIMONY ¶ 84 State Farm objects that the testimony by the Campbells' experts "went far beyond the realm of permissible expert testimony, instead crossing the line into rank advocacy," and thus violated rules 702 and 703 of the Utah Rules of Evidence. Conversely, the Campbells argue that, at most, only two of State Farm's objections were preserved for appeal and that, in any case, the trial court did not commit reversible error. "It is well established that trial courts have wide discretion in determining the admissibility of expert testimony." State v. Kelley, 2000 UT 41, ¶ 11, 1 P.3d 546. Moreover, unless "there is a reasonable likelihood that the verdict would have been different if the trial court had [excluded] the expert testimony," we will not reverse the trial court's decision. Steffensen v. Smith's Mgmt. Corp., 862 P.2d 1342, 1347 (Utah 1993). While there appears to be merit to the Campbells' argument that State Farm failed to preserve many of its objections to the experts' testimony, we deem it more efficient to analyze the substance of State Farm's challenges generally, first under rule 702, and then under rule 703. ¶ 85 To rebut State Farm's "honest mistake" defense, the Campbells called experts Stephen Prater and Gary Fye. These men were intimately acquainted with the intricacies of the insurance industry and with State Farm's practices in particular. Their qualifications as experts were not challenged by State Farm. Their testimony focused upon explaining State Farm's PP & R policy and demonstrating its far-reaching effects. State Farm now argues that much of this testimony was without foundation and was prejudicial. In particular, State Farm challenges the experts' testimony concerning the company's excess liability handbook, its failure to maintain statistics on excess verdicts, the profits it derived from improper claims handling, and the effects of its PP & R policy and related practices on the insurance industry in general. State Farm also argues that Mr. Prater impermissibly testified to legal conclusions. ¶ 86 Utah Rule 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. "[T]he question that must be posed prior to the admission of any expert evidence is whether, on balance, the evidence will be helpful to the finder of fact." State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993) (internal quotation marks omitted). Helpfulness depends upon "whether the subject is within the knowledge or experience of the average individual." Id. However, "[i]t is not necessary that the subject of the testimony be so erudite or arcane that the jurors could not possibly understand it without the aid of expert testimony, nor is it a requirement that *1160 the subject be beyond the comprehension of each and every juror." Id. "This `helpfulness standard' also implicates Rule 403 considerations, since if the evidence is confusing or unfairly prejudicial it will hinder rather than aid jury decision making." Edward L. Kimball & Ronald N. Boyce, Utah Evidence Law 7-9 (1996) (clarifying that "Rule 403 is not being applied directly, so ... the question is `helpfulness,' not whether the probative value is greatly outweighed by confusion or prejudice"); see also Larsen, 865 P.2d at 1363 n. 12; State v. Rimmasch, 775 P.2d 388, 398 n. 8 (Utah 1989). We have reviewed the entire transcript of both Prater's and Fye's trial testimony. With the exception of the argument concerning legal conclusions, we find it unnecessary to address with particularity State Farm's specific challenges. ¶ 87 That the experts' testimony was helpful is evident. State Farm conceded the witness' qualifications. Although the rule does not require that the issue to which an expert testifies be arcane, the issues raised in this case were in fact quite difficult for the average person to understand. The experts' familiarity with the insurance industry in general, and State Farm in particular, must have greatly aided the jury's understanding of the issues. Moreover, our review of the record satisfies us that the experts' testimony, given its relevance and its helpfulness, did not raise any concerns under rule 403 sufficient to warrant exclusion. Thus, because the experts' testimony was helpful to the jury, the trial court did not abuse its discretion under rule 702. ¶ 88 We now turn to State Farm's specific challenge under rule 702 which argues that Prater usurped the trial court's role of instructing the jury by impermissibly offering legal conclusions while testifying. Most of State Farm's objections address Prater's testimony concerning industry standards. In several instances he described "duties" and "standards" of behavior or of "care" that should dictate the practice of insurance companies generally. In every instance, and sometimes following objections by State Farm, it was made very clear to the jury by the phrasing of the question and/or by comments from counsel and the court, that the witness was testifying only to prevailing standards of conduct in the industry, and not to legal standards or rules of law. In at least one instance, the trial court clarified for the jury the role of the court in instructing them on the law, the limited role of the experts, and properly instructed the jury at the end of the trial. The trial court did not abuse its discretion in permitting the testimony in question. ¶ 89 Finally, State Farm objects because Prater pointed to boxes of documents in the courtroom and testified that those documents supported his conclusion that State Farm engaged in a pattern of cheating on claims. This challenge is governed by rule 703, which states The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. This court has held "[O]nce the expert is qualified by the court, the witness may base his [or her] opinion on reports, writings, or observations not in evidence which were made or compiled by others, so long as they are of a type reasonably relied upon by experts in that particular field. The opposing party may challenge the suitability or reliability of such materials on cross-examination, but such challenge goes to the weight to be given the testimony, not to its admissibility." Patey v. Lainhart, 1999 UT 31, ¶ 30, 977 P.2d 1193 (quoting State v. Clayton, 646 P.2d 723, 725 (Utah 1982)) (emphasis added). The policy behind the current iteration of this rule is aimed at broadening the permissible bases of expert opinion. One justification driving this policy is to lessen "`the expenditure of substantial time in producing and examining various authenticating witnesses.'" Id. (quoting note of advisory committee to federal version of rule 703, which is identical to Utah's rule 703). *1161 ¶ 90 Applying rule 703, we find that Prater's testimony concerning the documents were not improper because such documents were "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Utah R. Evid. 703; see also Am. Concept Ins. Co. v. Lochhead, 751 P.2d 271, 274 (Utah Ct.App.1988) (finding that expert in licensed property and casualty claims properly relied upon his examination of adjuster's file, since this was "material[ ] of a type usually relied upon by experts in his field"). ¶ 91 Prater described the nature of the documents in his files, the means by which he had obtained them, and the fact that he had reviewed and was familiar with their contents. He testified that the vast majority of the documents were original State Farm documents or copies thereof. He further testified that his conclusions and opinions in this trial were based in part on his study of the documents. ¶ 92 State Farm complains that cross-examining Prater on these documents would have entailed more time than it was allotted for trial. In our view, however, extra time was not the issue. Cross-examination of Prater on the documents in the boxes was not a relevant task for State Farm. On the contrary, State Farm had a duty to locate and produce documents critical to challenging Prater's testimony and to conduct an effective cross-examination within the known time constraints. Because State Farm had itself produced most of the documents, we presume (as did the trial judge) that it knew their contents. It cannot now claim error because its own trial strategy did not produce favorable results.[16] Accordingly, we find that the trial court did not abuse its discretion in admitting Prater's testimony. IV. SETTLEMENT AGREEMENT ¶ 93 As described briefly in the background portion of this opinion, Slusher and Ospital entered into a settlement agreement prior to the trial of the initial lawsuit in Logan, Utah, to determine liability in the underlying accident. Their agreement was reflected in two separate documents, both dated June 3, 1983. In the first, entitled "Release of Claims," Slusher accepted $65,000 in return for a release of all claims against Ospital and Ospital's insurers. The release expressly preserved Slusher's claims against Campbell and his insurers (who were in any event not parties to the release). The second agreement, which we will refer to as the Bad Faith Agreement, required Ospital to "assist Slusher in the prosecution of his claim against any other party responsible for said injuries and damages, including any claim for bad faith against any insurer of the responsible party." It specifically required Ospital to remain as a party in the Logan case (in which Ospital had a cross-claim against Campbell in addition to Slusher's claims against Campbell) and provided for some sharing of any recovery over and above Slusher's damages as determined by the jury in that case. Id. ¶ 94 In the Logan trial and in both phase I and phase II of the trial at issue in this appeal, State Farm sought admission of the details of that agreement in evidence. State Farm's theory on all three occasions was that, because the settlement required Ospital to remain in the original lawsuit, Ospital and Slusher were permitted to "gang up" on Campbell in the liability determination process. State Farm wished to rely on the agreement as evidence of "collusion" in the Logan trial, which it wanted to argue to the jury in this trial had increased the severity of the liability percentage assigned to Campbell in the original lawsuit, and should therefore mitigate the evidence of bad faith in phase I and support its theory of "innocent mistake" in phase II. The trial judge rejected State Farm's rationale and precluded use of the settlement agreement. We agree with the trial judge. ¶ 95 The record in this case establishes that State Farm was informed, prior to the *1162 Logan lawsuit, that Slusher would seek a unilateral settlement with Ospital if State Farm continued to refuse to participate in a settlement. On the day the Logan trial began, counsel for Slusher told the trial court and State Farm counsel that the terms of the agreement included, in addition to a release of Slusher's claims against Ospital in return for a payment of $65,000, "cooperation" between Slusher and Ospital in the event of a future bad faith action against State Farm. State Farm's counsel immediately informed the trial court that he feared collusion at trial between Ospital and Slusher to place blame for the accident on Campbell. The trial court declined to admit evidence of the settlement agreement. ¶ 96 After verdict in the Logan trial, the trial court, on Campbell's motion for a new trial, explained at length its rationale for excluding the liability release agreement from the trial. The court's memorandum decision observed specifically that Campbell's counsel had requested admission of this agreement and an instruction to the jury that "Ospital and Slusher were no longer in an adversary position with one another," and that he would be "facing the position where counsel for Ospital and Slusher were in collusion against Campbell and the way they could now conduct trial would affect the outcome to the prejudice of Campbell." This is of course exactly the argument State Farm now raises about the Bad Faith Agreement (the basic terms of which had been disclosed at the outset of the liability trial even though it was not shown to the court or counsel). Responding to that argument, the trial judge wrote: As to any collusion, this Court was present and observed the whole trial, observed no collusion between attorneys for Ospital and Slusher. In fact, Counsel for Slusher questioned all witnesses of both Campbell and Ospital as though adversary to his position that Slusher was not negligent, had no liability, and that he didn't know who was liable but it had to be one or the other defendant or both. Memorandum Decision November 22, 1983 ¶ 97 After reading the Bad Faith Agreement in its entirety for the first time, the trial court subsequently took the extraordinary step of executing an affidavit in May of 1996, containing the following assertions: 6. ... I do not believe the second agreement [the Bad Faith Agreement] posed any risks or caused any alteration of the parties' positions at trial different from those already created by the first agreement [the Release of Claims]. 7. Because of my awareness of the first agreement during the trial, I was careful to watch for any signs of improper collusion or other improper conduct by Slusher, Ospitals or their counsel at trial. I saw no such conduct. I also saw no signs of efforts by Slusher, Ospitals or their counsel to work together to gain unfair advantage over Campbell and his counsel. 8. The statements and finding I made after the trial in the Memorandum decision issued in November, 1983 ... were and are accurate. ¶ 98 This court, on appeal of the Logan verdict in Slusher v. Ospital, 777 P.2d 437, 438 (Utah 1989), concluded that the trial court erred in not "disclosing the settlement" to the jury. After analysis of the totality of circumstances at trial, however, we held that "the disclosure of the settlement agreement to the jury would not have had any effect on the outcome of trial." Id. at 445. While our reference to "the settlement agreement" arguably referred only to the Release of Claim document, there is nothing in the separate Bad Faith Agreement that would have differently affected the incentives of the parties or probabilities of collusion between Ospital and Slusher at trial. ¶ 99 Thus, the existence and/or prejudicial effect of alleged collusion between Ospital and Slusher at the Logan trial was effectively raised and decided in that case. Furthermore, State Farm explicitly disavowed in phase I of this trial any intent to rely on an argument that it had been the target of collusion in the Logan trial. It stipulated to the exclusion of the settlement evidence in phase I and cannot now complain of the trial judge's ruling in that regard. ¶ 100 As to phase II, the trial court relied on rule 403 of the Utah Rules of Evidence to exclude the settlement agreement, finding that it had "little, if any, probative *1163 value," and "any probative value it may have is far outweighed by the unfair prejudice to plaintiffs that would result and the danger of confusion of the issues and misleading the jury." It having been conclusively established in the liability trial and subsequent appeal that there was in fact no evidence of actual collusion at the Logan trial, the settlement agreement between Slusher and Ospital simply had no relevance to the claims of Campbell against State Farm, and the trial judge was entirely correct in precluding its admission.[17] V. MRS. CAMPBELL'S FRAUD CLAIM ¶ 101 State Farm argues that there was no basis for the jury to find by clear and convincing evidence that State Farm had an intent to defraud Mrs. Campbell. When considering challenges to jury verdicts based on insufficiency of the evidence, "we view the evidence in the light most supportive of the verdict, and assume that the jury believed those aspects of the evidence which sustain its findings and judgment." Billings v. Union Bankers Ins. Co., 918 P.2d 461, 467 (Utah 1996) (internal quotation marks omitted). "If the evidence taken in the light most favorable to the verdict supports the verdict, we will affirm." Steenblik v. Lichfield, 906 P.2d 872, 875 (Utah 1995). ¶ 102 "To demonstrate that the evidence is insufficient to support the jury *1164 verdict, the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." Crookston I, 817 P.2d 789, 799 (Utah 1991). Comparing the evidence State Farm marshals in its opening and reply briefs to the evidence the trial court summarizes in its order denying State Farm's motions for a judgment notwithstanding the verdict and a new trial regarding Mrs. Campbell's fraud claim, it is clear that all State Farm has done in this appeal is to "argue selected evidence favorable to its position." Id. at 800. As we held in Crookston I, "[t]hat does not begin to meet the marshalling burden [State Farm] must carry." Id. State Farm's failure to meet its marshalling burden is "grounds to reject [its] attack on the fraud finding." Id. ¶ 103 The entirety of State Farm's summary of the evidence is contained in one paragraph of its brief. By contrast, the jury, having listened to weeks of trial testimony, and having been properly instructed on the elements of fraud, found in favor of both plaintiffs. Furthermore, in its Order Denying State Farm's Motions for Judgment NOV and New Trial Regarding Fraud, the trial judge noted: "The evidence at trial supporting each of the elements of fraud is extensive, and it is not practical to set forth all of the evidence in this Order. However, the following summary highlights some of the evidence." There follow in the Order fourteen paragraphs (four-and-a-half pages) of factual summary detailing the fraud evidence. The summary ends with this paragraph: n. Most of the misrepresentations and non-disclosures were also made to Inez Campbell, with the intent that Mrs. Campbell would rely thereon, which she did. Even where misrepresentations were made only to Mr. Campbell, it was apparent that they would be passed on to and relied upon by Mrs. Campbell. The evidence also established that Mrs. Campbell was present with her husband, Curtis, when Wendell Bennett misrepresented that there was no need to hire separate counsel. Mr. Campbell testified that he would gladly have hired personal counsel if he had known of a risk of an excess judgment. There was ample evidence that the Campbells were working together in making decisions in the case, that Mrs. Campbell had strong influence on Curtis Campbell's decisions with respect to the case, and that had she appreciated that there was a substantial likelihood of losing the case, she would have insisted that it be settled and she would have had a terrific bearing on Curtis' demanding that the case be settled. There is ample evidence that the misrepresentations made in Mrs. Campbells' presence induced her inaction, to her detriment. Accordingly, there is ample evidence to support a claim of fraud by Mrs. Campbell. ¶ 104 We conclude that State Farm has entirely failed to meet its burden of marshalling the evidence on its challenge to the finding of fraud against Mrs. Campbell, and we sustain the jury's verdict and the trial court's denial of a judgment notwithstanding the verdict and a new trial. ¶ 105 The trial court limited the judgment on the fraud count to $911.25, which the Campbells paid in attorney fees after the original verdict and which was the total pecuniary loss suffered by plaintiffs. It relied in doing so on Turner v. Gen. Adjustment Bureau, Inc., 832 P.2d 62 (Utah Ct. App.1992), cert. denied, 843 P.2d 1042 (Utah 1992), which held that a fraud claim may not support emotional distress damages because fraud is an economic and not a dignitary tort. Id. at 68. We disagree with the holding in Turner, as is reflected by our opinion in Crookston v. Fire Ins. Exch., 817 P.2d 789 (Utah 1991), where we held that "all damages awarded by the jury can be sustained upon the finding of fraud." Id. at 798. We note that there is scholarly and caselaw support for this view that was apparently not considered when Turner was decided. See Nelson v. Progressive Corp., 976 P.2d 859, 867-68 (Alaska 1999) (holding that emotional distress damages are permitted under fraud theory if severe damages); Kilduff v. Adams, Inc., 219 Conn. 314, 593 A.2d 478, 484-85 (1991) ("[W]e concur with those jurisdictions *1165 that allow the recovery of emotional damages that are the natural and proximate result of fraud."); Osbourne v. Capital City Mort. Corp., 667 A.2d 1321, 1328 (D.C.1995) ("We hold that, upon proof of intentional misrepresentation, a plaintiff may recover `emotional damages that are the natural and proximate result' of the defendant's conduct." (citation omitted)); Andrew L. Merritt, Damages for Emotional Distress in Fraud Litigation: Dignitary Torts in a Commercial Society, 42 Vand. L.Rev. 1, 10-12, 23-32 (1989) ("[A]s a general rule, emotional distress damages should be awarded in fraud actions."). ¶ 106 We therefore overturn Turner's holding on the availability of general and emotional distress damages for fraud. In light of Crookston I and in view of the fact that we may sustain a trial court on a ground not relied on by the trial court, see Bill Nay & Sons Excavating v. Neeley Constr. Co., 677 P.2d 1120 (Utah 1984) (citations omitted), we affirm not only the pecuniary damages assessed in this case, but also Mrs. Campbell's general damages, as well as the punitive damages, on the basis of the fraud verdict. VI. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS ¶ 107 Once again, on this issue State Farm failed in its brief to adequately marshal the evidence, and its challenge is subject to rejection on that ground alone. Furthermore, it must be rejected on its merits. ¶ 108 To sustain a cause of action for the intentional infliction of emotional distress, a party "must show that (i) the conduct complained of was outrageous and intolerable in that it offended against the generally accepted standards of decency and morality; (ii) [the defendant] intended to cause, or acted in reckless disregard of the likelihood of causing, emotional distress; (iii) [the plaintiff] suffered severe emotional distress; and (iv) [the defendant's] conduct proximately caused [the] emotional distress." Retherford v. AT & T Comm. of the Mountain States, Inc., 844 P.2d 949, 970-71 (Utah 1992). ¶ 109 First, State Farm challenges the jury's finding of intentional infliction of emotional distress claiming that the evidence was "exceedingly weak" and that the Campbells "failed to establish that they suffered severe emotional distress." When considering such challenges, "we view the evidence in the light most supportive of the verdict, and assume that the jury believed those aspects of the evidence which sustain its findings and judgment." Billings v. Union Bankers Ins. Co., 918 P.2d 461, 467 (Utah 1996) (internal quotation marks omitted). "If the evidence taken in the light most favorable to the verdict supports the verdict, we will affirm." Steenblik v. Lichfield, 906 P.2d 872, 875 (Utah 1995). ¶ 110 In discussing when the statute of limitations begins to run for the claim of the intentional infliction of emotional distress, this court stated: [T]he element of emotional distress is specific to the plaintiff in each case. Because the tort of intentional infliction of emotional distress requires actual emotional distress, see Restatement (Second) of Torts § 46(1) (1965), this element is to be gauged subjectively. A particularly hardy or calloused plaintiff may never accrue a cause of action for intentional infliction of emotional distress, even though he or she is subjected to outrageous conduct that no reasonable person could be expected to bear. Consequently, our task is to determine when ... [plaintiff] experienced severe emotional distress, not when an ordinarily sensitive person would have experienced such suffering. Retherford, 844 P.2d at 975-76 (footnote omitted) (emphasis added). Thus, the Campbells must only show that they subjectively experienced severe emotional distress regarding the situation they found themselves in, not that an "ordinary reasonable person" would have experienced it that way. State Farm's citation to cases involving the negligent infliction of emotional distress for the proposition that objective proof is required to show that mental or physical consequences have occurred is inapposite. See Harnicher v. Univ. of Utah Med. Ctr., 962 P.2d 67, 70-72 (Utah 1998); Hansen v. Mountain Fuel *1166 Supply Co., 858 P.2d 970, 973-75 (Utah 1993). ¶ 111 Second, State Farm argues that the general damages award for each of the Campbells was excessive. For an award of compensatory damages regarding the intentional infliction of emotional distress, the standard of review confronting State Farm is quite high. This court has stated: While it is true ... that soft compensatory damages, i.e., for pain and suffering, must be awarded with caution, "when the determination of the jury has been submitted to the scrutiny and judgment of the trial judge, his [or her] action thereon should be regarded as giving further solidarity to the judgment." Elkington v. Foust, 618 P.2d 37, 41 (Utah 1980). Or, as we said in Geary v. Cain, 255 P. at 423, 69 Utah at 358, "In case of doubt, the deliberate action of the trial court should prevail. Otherwise, this court will sooner or later find itself usurping the functions of both the jury and the trial court." Id. These statements in Elkington and Geary are consistent with our statement of the appropriate appellate standard of review today. Crookston I, 817 P.2d at 806. Despite the court noting in Crookston I that the trial judge's "statements could have been more specific," it found them adequate to support its decision to uphold the compensatory damage award, and therefore to support its denial of a new trial on the issue of compensatory damages. Id. ¶ 112 There is ample evidence in this record from which a jury could infer that each of the Campbells suffered severe emotional distress. These include: the financial ruin that they believed they faced after the jury in the underlying action rendered its verdict for more than five times the State Farm policy limit; being told by their lawyer that they could start dealing with their exposure by putting a "For Sale" sign on their house; State Farm's refusal to post a supersedeas bond to protect their home and other assets during the pendency of the appeal; and the numerous personal issues that made the Campbells, who had each experienced other traumatic events in their lives, particularly vulnerable to the stress created by State Farm's actions.[18] ¶ 113 Furthermore, with respect to the amount of the award, we note that the trial court did remit the amount of compensatory damages from $1,400,000 for Curtis Campbell and $1,200,000 for Inez Campbell to $600,000 and $400,000, respectively. It might be argued, given the subjective standard enunciated by this court, that the trial court should not have so drastically reduced the jury's initial awards. The Campbells, however, do not raise this issue on appeal. As pointed out above, the deferential nature of our review requires us to uphold a jury's verdict that has been scrutinized by a trial court unless there is a clear abuse of discretion. Our review of the trial court's post-trial ruling on this issue reveals no such abuse. Therefore, we find that the award was not excessive, and note that it provides an independent basis for sustaining all of Mrs. Campbell's damages. See Part V, supra, and Crookston I, 817 P.2d at 798 ("[A]ll damages awarded by the jury can be sustained upon the finding of fraud."); see also Osbourne, 667 A.2d at 1328 (holding that plaintiff may recover emotional damages that are natural and proximate result of defendant's intentional misrepresentation). VII. MRS. CAMPBELL'S STANDING TO SUE FOR BAD FAITH ¶ 114 In view of our holding that the jury verdicts on fraud and intentional infliction of emotional distress should be sustained, and that they independently support *1167 all of the damages awarded in this case, see Parts V and VI, supra; Crookston I, 817 P.2d at 798; Osbourne, 667 A.2d at 1328, we need not address the question of Mrs. Campbell's right to sue State Farm for breach of the covenant of good faith and fair dealing. Notwithstanding the dissent's lengthy advisory opinion on the subject, the question of standing on these facts remains an open question in Utah, awaiting attention from this court in a future case. The dissent apparently offers its views in support of its conclusion that the jury's verdict on damages was somehow prejudiced by having the bad faith claim intermingled with the fraud and intentional infliction of emotional distress claims. We conclude that this notion is entirely inconsistent with the record and the jury's verdict below. This jury responded to the factual conduct of State Farm, and, in our view, rightly so. Whether the basis for recovery bore the label of "bad faith," "fraud," or "intentional infliction of emotional distress," it was the same behavior by State Farm that the jury clearly intended to compensate for and to punish. We do not believe the jury was at all affected in its decision and verdict by the legal labels applied to describe the conduct. Thus, even if the dissent were correct in its view on this question, any error would have been harmless in its effect on damages. ¶ 115 In addition, we do not agree with the dissent that "the punitive damages award must fail because it was awarded jointly to Mr. and Mrs. Campbell rather than separately to each plaintiff." Punitive damages, "are, by nature, not to compensate but to punish and deter future egregious conduct." Crookston I, 817 P.2d 789, 807 (Utah 1991). Therefore, the award of punitive damages is determined by the defendant's conduct and need not be separated as to plaintiff. The dissent cites Crookston I, 817 P.2d 789 (Utah 1991) for its claim that the punitive damages award should be remanded "due to its joint nature." Crookston I, however, does not support this proposition. In Crookston I, we reviewed the issue of whether punitive damages were excessive under the circumstances of that case. Id. at 793-94. The joint nature of the punitive damages award was never questioned. Id. at 811-12. ¶ 116 Furthermore, we do not believe that State Farm was prejudiced by the jury instructions, which referred to the Campbells jointly. The only case cited by the dissent in support of this assertion is Nielsen v. Pioneer Valley Hospital, 830 P.2d 270 (Utah 1992). That case, however, involved only one plaintiff and says nothing about separating plaintiffs in jury instructions. Rather, the instructions in Nielsen were erroneous because separate instructions were contradictory with regard to two alternate legal theories presented by plaintiff. See id. at 274. The instructions were faulty because the two theories required conflicting standards, and the jury could have found defendant liable on either theory. See id. In this case, there was no danger, as the dissent claims, of misperception that Mrs. Campbell's claims were "caused by [ ] State Farm's actions toward Mr. Campbell." As stated previously, the jury clearly awarded punitive damages based on State Farm's egregious conduct toward both Mr. and Mrs. Campbell. Just as we do not believe the jury's decision and verdict were affected by the legal labels applied to State Farm's conduct, neither do we believe that referring to the Campbells in the aggregate in the jury instructions had any effect on the damages awarded. ¶ 117 Finally, we note that the dissent has developed and espoused a theory requiring reversal in this case that was not raised below, briefed by the parties, or raised in oral argument before this court. That theory appears to rely on what the dissent terms a "faulty verdict" in phase I of the trial below, a verdict in favor of both plaintiffs. That verdict was not challenged at the time of its entry nor was it raised in this appeal. Our review of the record and of the briefs in this appeal demonstrate that the wording of the verdict was never mentioned or relied on as a ground for claimed error. It is a well-established rule that we will not reverse a trial court on the basis of claims and arguments not raised below, let alone those not even argued on appeal.[19] *1168 VIII. ATTORNEY FEES ¶ 118 In its challenge to the trial court's award of attorney fees, State Farm raises two arguments. First, State Farm argues that fee shifting is not available under Utah law in third-party bad faith cases. Second, State Farm argues that even if some award of attorney fees is permissible in third-party cases, the amount awarded by the trial court is grossly inappropriate. We address each argument separately below. A. Fee Shifting in Third-Party Cases ¶ 119 Whether attorney fees should be awarded in a particular case is a question of law reviewed for correctness. Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998). "The general rule in Utah, and ... the traditional American rule, subject to certain exceptions, is that attorney fees cannot be recovered by a prevailing party unless a statute or contract authorizes such an award." Stewart v. Utah Pub. Serv. Comm'n, 885 P.2d 759, 782 (Utah 1994). Because the Campbells do not argue here, nor did they below, that a statute or contract authorizes them to recover attorney fees, we turn our analysis to the "certain exceptions" to the general rule. ¶ 120 Under Utah law, plaintiffs may recover attorney fees if they are successful in pursuing a first-party bad faith suit against their insurer. Billings v. Union Bankers Ins. Co., 918 P.2d 461, 468 (Utah 1996). Such actions fall within the rule that the damages available to plaintiffs "include both general damages, i.e., those flowing naturally from the breach, and consequential damages, i.e., those reasonably within the contemplation of, or reasonably foreseeable by, the parties at the time the contract was made." Beck v. Farmers Ins. Exch., 701 P.2d 795, 801 (Utah 1985). The rationale behind allowing recovery of both general and consequential damages in first-party, bad faith actions is "to remove any incentive for insurers to breach the duty of good faith by expanding their exposure to damages caused by such a breach beyond the predictable fixed dollar amount of coverage provided by the policy." Billings, 918 P.2d at 466. Consequential damages in first-party bad faith actions can be awarded for such things as attorney fees, loss of a home or business, damages flowing from bankruptcy, and mental anguish, provided such damages are foreseeable. Id. at 468; Beck, 701 P.2d at 802. ¶ 121 Extending the rationale advanced in the first-party bad faith cases to the third-party bad faith case before it, the trial court concluded that attorney fees should likewise be recoverable. The trial court offered the following in support of its conclusion: a. An award of attorney's fees ... removes some of the incentive for an insurer to breach the duty of good faith and fair dealing. b. Such an award encourages insurers to act reasonably. c. The award of "actual" attorney's fees is designed to assist in fully compensating the insured for the damages caused by the breach of good faith duties, whether such good faith duties arise from a first-party or a third-party situation. d. For purposes of this issue, there is no reasonable basis to distinguish an insured's damages incurred in a first-party or third-party context[.] e. The duties of good faith arising in a third-party context include fiduciary duties and are higher duties than the duties arising under the contract theory in a first-party context. (Citations omitted.) Because we agree with the trial court's analysis, we affirm its conclusion that plaintiffs can recover foreseeable attorney fees if they successfully pursue a third-party bad faith action against their insurer. Although the foreseeability of damages test is generally limited to the contractual *1169 realm, we note that its use to determine damages in the context of tortious third-party, bad faith claims is justified since such "claims arise only because of the contractual relationship of the parties." Savage v. Educators Ins. Co., 908 P.2d 862, 866 (Utah 1995) (holding that employee who had no contractual relationship with employer's workers' compensation insurance carrier could not sue carrier for breach of the covenant of good faith and fair dealing since such actions are predicated upon parties' contractual relationship).[20] ¶ 122 Finally, we note that the existence of a fiduciary relationship between insurers and insureds in the context of third-party bad faith claims, which we recognized in Beck, supports an exception to the general rule that attorney fees are not recoverable in tort actions. State Farm relies on a 1996 Colorado case, Bernhard v. Farmers Ins. Exch., 915 P.2d 1285 (Colo.1996), holding that such fees are not recoverable. However, Bernhard clearly recognized that "[a]ttorney fees may be recoverable in an action for breach of fiduciary duty as a recognized exception to the American rule." Id. at 1289 (citations omitted). The Colorado Supreme Court, however, concluded that insurers were only "quasi," and not "true," fiduciaries, and thus declined to apply the exception. We disagree with Bernhard's view of the relationship, which is contrary to the Utah position. We do, however, accept its assertion that breach of a fiduciary obligation is a well-established exception to the American rule precluding attorney fees in tort cases generally. We thus conclude that the trial court correctly held attorney fees to be a proper element of damages in this case. ¶ 123 Thus, the issue becomes whether, at the time State Farm issued the policy to the Campbells, State Farm could reasonably foresee that if a claim arose against it the Campbells would incur attorney fees in pursuing that claim. Review of the transcript discloses that, at a minimum, State Farm's Claims Vice-President, Frank Haynes, knew that insureds pursuing claims against State Farm typically retained attorneys on a contingency fee basis. Based on this, we hold that an award of attorney fees to the Campbells was indeed foreseeable by State Farm. B. Amount of Attorney Fees Award to the Campbells ¶ 124 State Farm argues that the trial court erred in awarding the Campbells attorney fees equal to 40% of the compensatory damages award. Instead, State Farm suggests that the attorney fees awarded, if any, should be limited to $911.25, the amount the Campbells paid to its attorneys to obtain the benefits due them under the policy. Resolution of this issue requires application of the foreseeability test discussed in the previous section. In other words, could State Farm reasonably foresee that the Campbells would agree to a contingency attorney fee of 40% of the amount recovered for compensatory damages if they found it necessary to hire counsel to pursue a claim against State Farm? ¶ 125 At the hearing on the Campbells' motion for a directed verdict, the trial court concluded that such a fee agreement was foreseeable to State Farm. A trial court's conclusion as to what constitutes a reasonable attorney fee award is reviewed for an abuse of discretion. Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998). The record contains ample support for the trial court's conclusion. Perhaps most telling was State Farm's failure to present any evidence that it could not have foreseen that the Campbells would incur a contingency fee, combined with specific evidence from Vice President Haynes that contingency fees of up to 50% were common in suits by insureds *1170 against State Farm. Moreover, the Campbells presented evidence through several witnesses that contingency fees like this one have been around for decades, are well-known, and are in fact the most likely form of attorney fee arrangement, especially in a bad faith case against an insurance company. Such evidence is similar to that presented in Billings, where we found that the plaintiff's contingency fee arrangement was foreseeable. Billings, 918 P.2d at 468. Therefore, we affirm the trial court's finding that the contingency fee agreement was foreseeable and uphold its award of attorney fees in the amount of 40% of the total compensatory damages, or $400,834.70 plus 40% of postjudgment interest on the principal amount of compensatory damages.[21] IX. LITIGATION EXPENSES ¶ 126 Finally, State Farm argues that the trial court's award of litigation expenses was manifestly unreasonable. According to its statement of the issue, State Farm challenges the legitimacy of any award for litigation expenses, as well as the actual amount awarded by the trial court.[22] ¶ 127 As to the legitimacy of an award of litigation expenses in a case, like this, where an insurer has breached its goodfaith duties to pay third-party claims, we are asked to settle a question of law, and therefore review the trial courts' ruling for correctness. State Farm relies on the distinction this court made in Beck v. Farmers Insurance Exchange, 701 P.2d 795 (Utah 1985) between first-party insurance claims, sounding in contract, and third-party claims, on which a tort action may be brought. It then argues that, like attorney fees, litigation expenses may not be awarded as damages in a tort action. For the same reasons detailed in the previous section regarding attorney fees, we conclude that litigation expenses are recoverable in this limited type of action; their availability will: (1) decrease incentives for insurers to act in bad faith; (2) encourage insurers to act reasonably; and (3) contribute to actual compensation for plaintiffs for financial cost to them of the breach. The trial court specifically found that "litigation expenses incurred by plaintiffs [were] ... foreseeable to State Farm, particularly in light of State Farm's labored, vexatious and burdensome defense...."; "State Farm knew or should have known that its oppressive defense raised against plaintiffs' claims would be extremely costly to plaintiffs...." These observations underscore the policy reasons supporting our determination that litigation expenses may be awarded in bad faith insurance cases in which the defendant's litigation conduct has been largely responsible for them. ¶ 128 Because a challenge to the amount of litigation expenses awarded is similar to a challenge to the amount of attorney fees awarded or the amount of costs awarded under Utah Rule of Civil Procedure 54(d), we *1171 review such awards under an abuse of discretion standard. Ong Int'l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 460 (Utah 1993) ("The determination to award taxable costs is within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion."); City Consumer Servs., Inc. v. Peters, 815 P.2d 234, 240 (Utah 1991) ("The standard of review on appeal of a trial court's award of attorney fees is patent error or clear abuse of discretion." (internal quotation marks omitted)). Moreover, we note that the appropriate measure for awarding litigation expenses is whether such expenses are reasonable and necessary. ¶ 129 In determining that the litigation expenses awarded to Campbells were reasonable and necessary, the trial court made the following written findings: a. The extensive evidence, from which the litigation expenses arose, was necessary to prove each of plaintiffs' causes of action (i.e. breach of good faith duties, intentional infliction of emotional distress and fraud) as well as to refute State Farm's defenses to these causes of action. b. In cases of corporate fraud, intentional infliction of emotional distress and breach of good faith duties, there needs to be considerable latitude in presenting evidence to prove intent, reckless disregard, absence of mistake or innocent mistake, a plan or scheme, and outrageous conduct, and to address other elements of these causes of action and the defenses thereto such as those raised by State Farm in this case. c. State Farm had a policy and practice to destroy historical documents ... and therefore could not produce very substantial relevant documentation during the time period in question. Of plaintiffs' litigation expenses, much was incurred due to this policy and practice of State Farm. d. At State Farm's request, the case was bifurcated, even though plaintiffs resisted upon the grounds that it would increase the expenses. e. There were collateral issues of agency, notice, knowledge and general corporate practices that had to be proven by extensive circumstantial evidence, resulting in the large litigation expenses. f. Compensatory damages, particularly soft damages, are best evaluated and assessed in the context of the totality of all of the circumstances surrounding the wrongful conduct. g. Though there may have been some overlap in the evidence that was necessary to establish plaintiffs' causes of action for compensatory damages and punitive damages, and the other collateral issues in the case, the Court finds that all of the costs were reasonably and necessarily incurred and are justified for reasons other than those exclusively related to punitive damages. h. In numerous evidentiary hearings and orders relating thereto, this Court has set forth in more detail the reasons why the extensive evidence was probative, reasonable and necessary to the plaintiffs' case, and the Court adopts its findings and conclusions set forth in [such orders]. ¶ 130 From these findings, it is clear that the trial court carefully considered whether the costs requested by the Campbells were reasonably and necessarily incurred during their pursuit of this case. In addition, State Farm failed to present any affidavits or contradictory evidence refuting the evidence offered by the Campbells. Finally, the trial judge himself was present throughout this lengthy and complex trial, and was in a good position to gauge the accuracy of plaintiffs' evidence. We therefore hold that the trial court did not abuse its discretion in accepting the amounts proffered by the Campbells and awarding those amounts as litigation expenses. CONCLUSION ¶ 131 In summary, we hold: 1. The trial court's analyses of the punitive damage award under both federal law and the first six Crookston I factors was correct. As to Crookston I factor seven, we reverse, and reinstate *1172 the jury's award of $145 million on the Campbells' cross-appeal. 2. The trial court did not abuse its discretion in admitting "other acts" evidence relating to State Farm's claims handling practices. 3. The trial court did not abuse its discretion in admitting the testimony of the Campbells' expert witnesses. 4. The trial court did not abuse its discretion in precluding admission of the Slusher/Ospital settlement agreement. 5. The evidence is sufficient to support the jury's finding of fraud by State Farm against Mrs. Campbell. 6. General compensatory and punitive damages may be awarded for fraud. 7. The evidence is sufficient to support the jury's finding of intentional infliction of emotional distress against both Mr. and Mrs. Campbell. 8. The remitted compensatory damage awards granted to Mr. and Mrs. Campbell are not excessive. 9. The trial court's award of attorney fees and litigation expenses are correct. Therefore, we affirm the judgment against State Farm in all respects, except for the trial court's remittitur of the punitive damage award. On this issue, we reverse the trial court and reinstate the jury verdict awarding $145 million in punitive damages. ¶ 132 Justice WILKINS, Judge BILLINGS, and Judge DAVIS concur in Justice DURHAM's opinion. ¶ 133 Having recused themselves, Chief Justice HOWE and Justice DURRANT do not participate herein. Judge JUDITH M. BILLINGS and Judge JAMES Z. DAVIS from the Court of Appeals sat. RUSSON, Associate Chief Justice, concurring in part and dissenting in part: ¶ 134 Inez Campbell was never involved in the lawsuit underlying the action now before us, nor could she have been. She was not driving the car that caused the accident, she was never named as a defendant, and she never had any exposure to or became legally obligated to pay damages to any of the claimants. State Farm owed no duty to her under the insurance policy. Only her husband Curtis Campbell was potentially liable, was sued, and was subject to the judgment rendered in that case. State Farm's duty extended only to him. ¶ 135 Ignoring these crucial facts, the trial court in the second stage of the bifurcated trial in this case erroneously instructed the jury three times that State Farm had already been found liable to both Mr. and Mrs. Campbell for breaching its fiduciary duty and its duty of good faith and fair dealing. In fact, the jury in the prior stage of the trial never rendered a verdict extending liability for bad faith to Inez Campbell. As a result, the trial court's multiple jury instructions to the contrary misled the jury and, in the process, vitiated State Farm's right to a fair trial. This error was plain, and it tainted every aspect of the verdict now under review,[1] including Mrs. Campbell's independent claims for fraud and intentional infliction of emotional distress. The majority's attempt to nevertheless affirm on so-called "independent" grounds glosses over the fatal flaws explicit in the lower court's judgment and runs contrary to this court's own well-established case law. I. INEZ CAMPBELL'S BAD FAITH CLAIM ¶ 136 Although the majority declines to address the issue, it is clear under Utah law that Inez Campbell never had standing to sue State Farm for bad faith. While this court has long recognized tort claims for an insurance company's breach of its implied covenant of good faith and fair dealing, see Ammerman v. Farmers Ins. Exch., 19 Utah 2d 261, 266, 430 P.2d 576, 577-78 (1967), we have always required that plaintiffs wishing to bring such claims first demonstrate a contractual nexus through which their suits arise. As we unanimously held only two years ago in Sperry v. Sperry, "Utah law *1173 clearly limits the duty of good faith to first parties to insurance contracts. Consequently, only a first party can sue for breach of that duty." 1999 UT 101, ¶ 7, 990 P.2d 381. This conclusion is as natural as it is logical, for "both first- and third-party claims arise only because of the contractual relationship of the parties." Savage v. Educators Ins. Co., 908 P.2d 862, 866 (Utah 1995). ¶ 137 In this case, Curtis Campbell was a party to the insurance contract with State Farm, and his wife Inez Campbell was not. The contract itself states: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ... Agrees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to all the terms of this policy.... (Emphasis added.) The only person listed as a "named insured" on the declarations to which the contract refers is Curtis Campbell. In fact, Mr. Campbell is the only person listed on those declarations at all. Consequently, Mr. Campbell was the only one with whom State Farm "[a]gree[d] ... in consideration of the payment of the premium" to provide insurance for those designated as covered by the policy. Mrs. Campbell was simply a beneficiary of the contract, an additional insured. ¶ 138 Importantly, we have explicitly held that the implied covenant of good faith and fair dealing does not extend to parties who are merely beneficiaries of an insurance policy. In Savage v. Educators Insurance Co., 908 P.2d 862 (Utah 1995), a school bus driver who was insured under an Educators policy purchased by her employer sued the insurance company for allegedly acting in bad faith by resisting to compensate her for medical expenses she had incurred. Recognizing that "the duty of good faith and fair dealing is a contractual covenant, one that arises solely as an incident to contractual obligations owed by an insurer to its insured," Chief Justice Zimmerman's 4-1 opinion, from which Justice Durham dissented, flatly rejected the plaintiff's contention that she had standing to sue. Id. at 866. We held: Because Savage has no contractual relationship with Educators, she has no cause of action against it for breach of the covenant of good faith and fair dealing. This conclusion is consistent with the commentators and the great majority of courts in other jurisdictions.... Id.[2] Nothing is different here. Just as the Jordan School District contracted with Educators for a policy that insured Pat Savage, *1174 in this case Mr. Campbell purchased his insurance policy from State Farm, a policy that also insured Mrs. Campbell. Consequently, the contract states by its own terms that it is an agreement between State Farm and Curtis Campbell—and no one else. Had Mrs. Campbell wished to be named as a party to the contract rather than merely as a beneficiary of it, she could have negotiated for that right. Because she did not do so, however, she had no right under Utah law to sue for bad faith. See Savage, 908 P.2d at 866. ¶ 139 To this degree, Justice Durham's assertion that any conclusion reached concerning whether Inez Campbell had standing to sue for bad faith is an "advisory" one constitutes nothing less than hyperbolic pretense. The claim for bad faith was the crux of the case against State Farm, and it was for this reason that the lower court bifurcated the trial in the first place. Moreover, our decision in Savage addressed precisely the issue in question here. Accordingly, any notion that the question of whether Mrs. Campbell had standing to sue for bad faith is "an open [one] in Utah" can be characterized only as a conclusion that recklessly throws all judicial restraint, particularly in the name of stare decisis, to the wind for the sake of achieving a desired result: a binding judgment against State Farm for its, admittedly, condemnable behavior. ¶ 140 Importantly, however, the law has long recognized that not all actions causing injury enjoy recourse in the courts. E.g., Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 1999 UT 18, ¶ 140, 974 P.2d 1194 (Zimmerman, J., concurring) ("The law simply does not recognize that every harm suffered should be compensated."); Demman v. Star Broadcasting Co., 28 Utah 2d 50, 53, 497 P.2d 1378, 1380 (1972) (finding that lawsuits cannot be allowed "in every instance"); see also Black's Law Dictionary 398 (7th ed. 1999) ("`There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not hold him accountable for it.'" (quoting John Salmond, Jurisprudence 372-73 (Glanville L. Williams ed., 10th ed.1947))). This rule of damnum absque injuria applies regardless of how offensive or inappropriate society might find an actor's conduct to be, and this court has itself repeatedly barred recovery for conduct that could very well be considered condemnable but for which there is no cause of action. See, e.g., Sears v. Ogden City, 572 P.2d 1359, 1362 (Utah 1977) (holding that there is no recovery for government action making access to one's property difficult and inconvenient); Demman, 28 Utah 2d at 53, 497 P.2d at 1380 (denying recovery for slander to a losing political candidate after a radio station broadcasted "obnoxious" remarks by a caller who asserted that the candidate was unqualified and a felon); N.M. Long & Co. v. Cannon-Papanikolas Constr. Co., 9 Utah 2d 307, 310, 343 P.2d 1100, 1102 (1959) (affirming judgment for no recovery from defendants who had made unusable plaintiff's fish pond business by draining water from their property); Twenty-Second Corp. of the Church of Jesus Christ of Latter-Day Saints v. Oregon Short Line R.R. Co., 36 Utah 238, 255-56, 103 P. 243, 249-50 (1909) (disallowing recovery for disruption of worship services caused by operation of a railroad near a church on Sundays). Consequently, regardless of Justice Durham's assertion to the contrary, it absolutely does matter what legal theory plaintiffs hang their damages on, because failure to sufficiently prove all elements of a given cause of action makes the difference between an injury for which the law provides recourse and one for which there is no legal remedy at all. As such, the majority opinion's curious admission that the jury was not "at all affected in its decision and verdict by the legal labels applied to describe [State Farm's] conduct" in this case both undermines the logic of the opinion itself and emphasizes the importance of whether Mrs. Campbell had standing to sue for bad faith. For if, as the majority recognizes, the jury disregarded the appropriate legal standard in an attempt to "punish" State Farm for conduct the jury found offensive, that is unrefuted evidence of error in law, passion, and prejudice on the jury's part—necessitating a new trial on the court's own motion. See, e.g., Bennion v. LeGrand Johnson Constr. Co., 701 P.2d 1078, 1084 (Utah 1985); Paul v. Kirkendall, 1 Utah 2d 1, 3, 261 P.2d 670, 671 (1953); Utah R. Civ. P. 59. Moreover, the majority's recognition that the jury disregarded *1175 the applicable legal standards in this case actually helps explain the great extent to which the trial court's erroneous instruction that State Farm had committed bad faith against Mrs. Campbell confused and inflamed the jury. See infra part III.A. ¶ 141 Indeed, the majority's reluctance to recognize that Mrs. Campbell never had standing to sue for bad faith only highlights the problems created at the trial level when the lower court inappropriately allowed Mrs. Campbell standing. In fact, the trial court's failure to recognize that Mrs. Campbell did not have standing to pursue a bad faith claim for State Farm's failure to settle the lawsuit against Mr. Campbell eventually led to the court's rendering a faulty verdict in the first stage of the case, and then erroneously instructing the jury in the second stage that State Farm had already been found liable to Mrs. Campbell for bad faith when no such verdict had ever been rendered. II. THE TRIAL COURT'S FAULTY VERDICT AND ERRONEOUS INSTRUCTION ¶ 142 This case was bifurcated, resulting in two different jury trials with verdicts. The jury in the first stage of the bifurcated trial was asked by the special verdict form only whether there was a likelihood of a judgment being entered in favor of various claimants against Curtis Campbell, and whether State Farm had "act[ed] unreasonably when it chose not to settle [the various claims] against Curtis B. Campbell for Mr. Campbell's policy limit." (Emphasis added.) Never was the jury in this first stage of the bifurcated trial asked to answer any question that pertained to Inez Campbell, and the jury accordingly never entered any such verdict in her favor.[3] ¶ 143 However, after reciting the jury's special verdict that addressed only State Farm's actions with respect to Curtis Campbell, the judgment entered in the first stage of the bifurcated trial stated, "Based on the above findings by the jury, ... plaintiffs are granted judgment of liability against defendant State Farm ... based on State Farm's breach of its duty to act in good faith in defending Curtis Campbell." (Emphasis added.) Therefore, with no further explanation, the court ordered that State Farm was liable to both Curtis and Inez Campbell solely on the basis of the jury's findings that State Farm had breached its duty to Curtis Campbell. This giant leap of faith and logic assumed that liability can arise out of the ether for one plaintiff if a jury finds it for another, a result wholly at odds with Utah procedure and law. See, e.g., Brigham v. Moon Lake Elec. Ass'n, 24 Utah 2d 292, 298, 470 P.2d 393, 397 (1970) (when special verdict submitted, jury finds facts and court applies law); Colovos v. Home Life Ins. Co. of New York, 83 Utah 401, 414, 28 P.2d 607, 612 (1934) (court enters judgment on the verdict); Utah R. Civ. P. 47(q) (jury declares verdict). To be sure, this failure to conform to the verdict was plain error, rendering the judgment void on its face and requiring our reversal of Mrs. Campbell's bad faith claim on appeal—especially given the unavoidable conclusion that Mrs. Campbell never had standing to sue for bad faith in the first place. ¶ 144 Moreover, the trial court's faulty judgment eventually resulted in severely misleading the jury in the second stage of the bifurcated trial. Indeed, in the second stage of the case, the trial court erroneously instructed the jury three times that the previous jury had found State Farm liable to Inez Campbell for bad faith even though no such determination had ever been made. State Farm objected to this instruction, but the court gave the erroneous instruction nevertheless. For instance, jury instruction 25 stated: You are instructed that a previous jury in this case has found ... that State Farm acted unreasonably in not settling [the] *1176 claims against Mr. Campbell before the Cache County verdicts. This means that State Farm breached its duties of good faith and fair dealing and its fiduciary duty to Campbells to settle the claims against Curtis Campbell within the policy limits. (Emphasis added.) Likewise, jury instruction 28 informed the jury that "State Farm breached its fiduciary duties and duties of good faith and fair dealing to the Campbells," and thus, that the jury could award "compensatory damages ... caused by State Farm's breaches of these duties." (Emphasis added.) Even the special verdict questions put to the jury were prefaced with the statement that [i]t has previously been determined that State Farm breached its duty of good faith and fair dealing towards the Campbells. (Emphasis added.) As noted, however, this statement simply was not true. The jury in the first stage of the trial never found liability toward Inez Campbell. The trial court's multiple instructions to the contrary in the second stage of the trial were misleading to the jury and constituted plain and prejudicial error, for the jury's erroneous assumption that State Farm was liable to Inez Campbell for bad faith permeated every aspect of the verdict rendered in the second stage of the trial. III. THE PREJUDICIAL EFFECTS OF THE TRIAL COURT'S ERROR ¶ 145 Because the trial court erroneously instructed the jury in the second stage of the bifurcated trial that State Farm had been found liable to Mrs. Campbell for bad faith, the judgment from the trial's second stage must be vacated and remanded as to Inez Campbell's claims for fraud and intentional infliction of emotional distress, and as to the punitive damages award rendered jointly to Mr. and Mrs. Campbell. Those instructions tainted the jury's consideration of Mrs. Campbell's claims for fraud and intentional infliction of emotional distress, thus preventing any chance that State Farm would receive a fair trial on those issues or on the issue of punitive damages. Moreover, the erroneous instructions fundamentally altered the jury's consideration of punitive damages in contravention to our decision in Crookston v. Fire Insurance Exchange, 817 P.2d 789 (Utah 1991). Indeed, both independently and together, the trial court's severe missteps in this regard constituted plain error necessitating reversal on appeal—especially given that such errors occurred, not because the trial court mistakenly overlooked a matter of procedure or law, but as a result of the court's own affirmative actions in respect to the verdict in the first stage of the case and the jury instructions and special verdict form in the second.[4] A. Right to a Fair Trial ¶ 146 All parties to litigation—plaintiff and defendant alike—are entitled to a fair trial. In Utah, this right to a fair trial has long included the right to "a presentation of the case to the jury under instructions that clearly, concisely and accurately state the issues and the law applicable thereto so that the jury will understand its duties." Hanks v. Christensen, 11 Utah 2d 8, 12, 354 P.2d 564, 566 (1960); see also, e.g., Rowley v. Graven Bros. & Co., 26 Utah 2d 448, 451, 491 P.2d 1209, 1211 (1971); Brunson v. Strong, 17 Utah 2d 364, 368, 412 P.2d 451, 454 (1966); Williams v. Lloyd, 16 Utah 2d 427, 429, 403 *1177 P.2d 166, 167 (1965); Wellman v. Noble, 12 Utah 2d 350, 352, 366 P.2d 701, 702 (1961); Utah State Nat'l Bank v. Livingston, 74 Utah 456, 458-59, 280 P. 327, 327-28 (1929). In this case, however, the instructions given by the court to the jury were anything but "clear" or "accurate," and State Farm consequently never received a fair trial. ¶ 147 In fact, the instructions' multiple erroneous statements that State Farm had been found liable to Inez Campbell for bad faith possessed only the possibility to confuse the jury and the issues it was to decide. Perhaps most problematically, the court's erroneous statements "took the jury's mind from the real issue" of whether State Farm was liable under Mrs. Campbell's claims for fraud and intentional infliction of emotional distress by "emphasiz[ing] [a] situation[] ... not supported" by the facts or law—that State Farm was already liable to Inez Campbell for bad faith. Taylor v. Johnson, 15 Utah 2d 342, 349-50, 393 P.2d 382, 387-88 (1964). We have previously held that such an effect violates a party's right to a fair trial, and nothing militates to the contrary here. See id. Likewise, the court's instructions created the misperception that Mrs. Campbell's claims were inextricably bound up in, and caused by, State Farm's actions toward Mr. Campbell. In so doing, the court impermissibly confused the jury by repeatedly referring to "the Campbells" in the aggregate, rather than by separating the two plaintiffs and their respective claims as required by law. Cf. Nielsen v. Pioneer Valley Hosp., 830 P.2d 270, 274 (Utah 1992) (holding that plaintiff had been denied her right to a fair trial when the court gave instructions confusing the two legal theories on which she was pursuing her claim); King v. Barron, 770 P.2d 975, 977 (Utah 1988) (finding severance appropriate where merging trial for plaintiff's legally unrelated claims "would invite error and confusion" by forcing jury to consider different evidence and theories in relation to separate defendants). Had the court specifically instructed the jury that Inez Campbell's claims for fraud and intentional infliction of emotional distress were entirely separate from those lodged by Curtis Campbell—or had it severed Mrs. Campbell's suit from Mr. Campbell's upon making the correct and appropriate determination that she had no standing to sue for bad faith—then the prejudicial effects of this statement arguably would have been avoided. But the court did not take such an action, and as a consequence both the entire verdict as to Mrs. Campbell and the punitive award, which was rendered jointly as to Mr. and Mrs. Campbell, were irreparably tainted by the court's denying State Farm its right to a fair trial. ¶ 148 Indeed, the lower court's violation of State Farm's right to a fair trial in this case is especially flagrant in view of the great care with which trial courts are required to select juries. The process of voir dire exists so that courts can ensure "a fair and impartial jury [is] chosen." 47 Am.Jur.2d, Jury § 189, at 871 (1995). Likewise, partiality, prejudice, and bias all constitute reasons upon which a trial court may excuse a juror for cause, Utah R. Civ. P. 47(f)(6), and we have specifically held that trial "judges should err on the side of caution in ruling on for-cause challenges," as courts' discretion in this area is limited due to the "ease with which all issues of bias can be dispensed by the simple expedient of replacing a questionable juror with another whose neutrality is not open to question." State v. Saunders, 1999 UT 59, ¶ 51, 992 P.2d 951. As a result, we have further held that where a jury considers in its deliberations evidence not introduced at trial, a new trial is required to ensure fairness and impartiality of the ultimate result. See State ex rel. Road Comm'n v. White, 22 Utah 2d 102, 103, 449 P.2d 114, 115 (1969).[5] Similarly, courts uniformly require *1178 dismissal of potential jurors who have prior knowledge of facts material to the dispute, and require a new trial where such jurors were not dismissed. See, e.g., Lewis v. State ex rel. Baxley, 260 Ala. 368, 70 So.2d 790, 791-92 (1954) (affirming trial court's decision to dismiss six jurors from a disciplinary proceeding because their animals had been treated by the veterinarian under review); Barker v. Commonwealth, 230 Va. 370, 337 S.E.2d 729, 733 (1985) (reversing a conviction for rape, sodomy, and malicious wounding because juror who knew of defendant's prior conviction on the same charges, which had been overturned and was being readjudicated, was not excused). And in cases where media coverage is so "extensive" that it precludes a party from "receiv[ing] a fair and impartial trial," we have held that trial courts must take protective measures, such as allowing change of venue, to ensure a fair trial. See, e.g., State v. James, 767 P.2d 549, 554 (Utah 1989). In fact, even in the face of countervailing constitutional concerns, we have allowed trial courts to issue temporary restraining orders restricting during-trial publicity so that the parties hold a greater chance of receiving a fair trial. See KUTV, Inc. v. Wilkinson, 686 P.2d 456, 461 (Utah 1984). It is for this same reason that trial judges examine potential jurors at length about any outside information they may have received concerning the case at issue and whether they have any preconceived notions about the parties or the subject matter in dispute. Upon finding that such partiality exists, a judge will properly excuse that potential juror from service, just as courts repeatedly and appropriately instruct the eventually impaneled jurors not to discuss the case with anyone or to consider any media coverage of the suit or other outside evidence. See Model Utah Jury Instructions, Civil 1.8 (Michie 1993). In this case, however, the trial court nullified any prior efforts it had made to impanel a fair and impartial jury by itself giving the jury erroneous information, namely, that State Farm had already been found liable to Mrs. Campbell for bad faith. Had a potential juror admitted to such an erroneous belief upon reporting for duty, he or she certainly would have been excused. But here, it was the trial court's own instruction that misled the jury and, thus, encroached on State Farm's right to a fair trial. ¶ 149 Accordingly, the majority opinion's bare assertion that Mrs. Campbell's fraud and intentional infliction of emotional distress claims "provide[ ] an independent basis for sustaining all of Mrs. Campbell's damages" cannot support an affirmance of the lower court's judgment. Not only does Justice Durham fail to attempt to explain how those theories of liability account for the damages the jury actually awarded, but the judgments rendered to Mrs. Campbell on her claims for fraud and intentional infliction of emotional distress are void ab initio due to the court's breach of State Farm's right to a fair trial. B. Punitive Damages ¶ 150 Apart from the problems created by the lower court's denying State Farm its right to a fair trial, the court's multiple erroneous instructions to the jury that liability had been found as to Inez Campbell for bad faith prejudiced State Farm further by skewing the fundamental considerations required for determining punitive damages. ¶ 151 The jury was asked in the second stage of the bifurcated trial to award damages to both Curtis Campbell and Inez Campbell, and in doing so awarded compensatory damages to Curtis Campbell in the amount of $1.4 million and to Inez Campbell in the amount of $1.2 million. The jury was also asked to award punitive damages, if any, which it did in the amount of $145 million but without designating which portion of the amount was awarded to Inez Campbell and which portion was awarded to Curtis Campbell. ¶ 152 In its determination of punitive damages, the jury had been specifically instructed by the trial court to consider, among other things, "the effect of defendant's misconduct on the lives of the Campbells," "the relationship between the parties," and "the amount of compensatory damages awarded." *1179 This jury instruction was given in compliance with our decision in Crookston v. Fire Insurance Exchange, 817 P.2d 789 (Utah 1991), which held that a jury awarding punitive damages must be charged with considering seven factors in order to determine the appropriate amount of the award. These factors include "(i) the relative wealth of the defendant; (ii) the nature of the alleged misconduct; (iii) the facts and circumstances surrounding such conduct; (iv) the effect thereof on the lives of the plaintiff and others; (v) the probability of future recurrence of the misconduct; (vi) the relationship of the parties; and (vii) the amount of actual damages awarded." Crookston, 817 P.2d at 808 (emphasis added). However, because the jury was operating under the false assumption that State Farm was liable to Inez Campbell for bad faith, it could not possibly have given proper consideration to each of these factors, and the majority consequently sets dangerous precedent by reinstating the jury's original punitive award for $145 million rather than remanding to the trial court for further deliberations on punitive damages. ¶ 153 Indeed, the jury granted Mrs. Campbell $1.2 million in compensatory damages for her injury, and we can only assume that the jury followed the judge's instructions and based its punitive award, at least partially, on the effect of State Farm's alleged misconduct on Mrs. Campbell's life. See, e.g., Nielsen v. Pioneer Valley Hosp., 830 P.2d 270, 275 (Utah 1992) ("[J]urors are sworn to follow the instructions as given by the court...."). As instructed by the court, the jury understood a good portion of such misconduct to include State Farm's breach of its duty of good faith and fair dealing, but as explained, State Farm did not owe Mrs. Campbell such a duty and no jury had ever found that State Farm had breached it to her. This is enough by itself to require a reassessment of the punitive award at the trial level, since the judgment rendered to punish State Farm is inexplicably tied to "misconduct" that State Farm did not—and could not—commit. ¶ 154 Moreover, the punitive award does not reflect an appropriate consideration of Crookston's sixth factor, the relationship of the parties. The analysis undertaken by any jury properly employing our seven factors for punitive damages will be fundamentally altered when informed that, as a matter of law, one of the plaintiffs in the case has no standing to sue for one of the claims lodged. Especially here, where Mrs. Campbell's claim for bad faith was her only assertion of a fiduciary relationship with State Farm, it is imperative that we remand the punitive damages award for further proceedings. To be sure, even if Inez Campbell's remaining claims for fraud and intentional infliction of emotional distress survived the problems created by the unfair trial given to State Farm in this case, which they do not, they neither create nor demonstrate any relevant legal relationship between Mrs. Campbell and State Farm. The precise effect such a revelation would have had on the jury falls only within the realm of pure speculation, but given our own mandate that the jury consider, not a fictional, but the actual "relationship of the parties" in determining punitive damages, this too requires that we remand to the trial court for further proceedings. ¶ 155 Finally, the punitive damages award must fail because it was awarded jointly to Mr. and Mrs. Campbell rather than separately to each plaintiff. Even if the trial court had properly severed Inez Campbell's claims from her husband's, which it did not, the punitive award would have to be remanded under Crookston due to its joint nature. Mrs. Campbell's claims were entirely independent from Mr. Campbell's, but because punitive damages were awarded jointly as to both these plaintiffs, we cannot now know what portion of the award the jury intended to be owed to Inez Campbell and what portion it intended to be owed to Curtis Campbell. Accordingly, because Mrs. Campbell's claims for fraud and intentional infliction of emotional distress must be remanded while Mr. Campbell's need not—and because, as explained, the jury was inappropriately instructed to commingle the two plaintiffs in its consideration of the fourth and sixth Crookston factors—the punitive damages award must be vacated and remanded for further *1180 proceedings.[6] IV. CONCLUSION ¶ 156 Inez Campbell had no standing to sue State Farm for bad faith, and the jury never found that State Farm was liable to her in that regard. Her only actionable claims were for fraud and intentional infliction of emotional distress. As a result, the trial court's multiple instructions that State Farm had been found liable to Mrs. Campbell for bad faith tainted both the entire verdict as to Mrs. Campbell and the punitive damages assessed against State Farm in behalf of Mr. Campbell. Accordingly, I would (1) reverse as to Mrs. Campbell's claim for bad faith, (2) vacate and remand for a new trial on Mrs. Campbell's claims for fraud and intentional infliction of emotional distress, (3) affirm on the issue of State Farm's liability to Mr. Campbell, and (4) vacate and remand for a new trial on the issue of punitive damages as to Mr. Campbell inasmuch as that award was rendered jointly to both Mr. Campbell and Mrs. Campbell. NOTES [1] The facts as stated herein are drawn from the record on appeal and from the cases of Slusher v. Ospital, 777 P.2d 437 (Utah 1989), and Campbell v. State Farm Mut. Auto. Ins. Co., 840 P.2d 130 (Ut.Ct.App.1992), cert. denied, 853 P.2d 897 (Utah 1992). [2] Mr. Campbell's policy provided $25,000 of coverage for each person injured in an accident up to a maximum of $50,000 of coverage per accident. Campbell, 840 P.2d at 133. [3] Todd Ospital's policy provided $100,000 of coverage for each person injured in an accident up to a maximum of $300,000. Additionally, Brooks maintained $30,000 of liability coverage on the car Ospital was driving. [4] The jury awarded $1.4 million to Mr. Campbell and $1.2 million to Mrs. Campbell. [5] The reduction resulted in an award of $600,000 to Mr. Campbell and $400,000 to Mrs. Campbell. [6] The trial court initially granted State Farm a remittitur or, in the alternative, a new trial. The Campbells accepted the remittitur. [7] We note that, in discussing the applicable standards of review in this case, we found Judge Norman H. Jackson's article in the Utah Bar Journal, 12 Utah Bar J. 8 (1999), especially helpful, and we recommend it to all appellate practitioners. [8] Although State Farm indicates in its statement of issues section that it is challenging the punitive damage award under the Utah Constitution, it has not in fact made such an argument, and we do not discuss that issue. [9] It is worth noting that the trial court here issued a remittitur to $25 million, still twenty-five times the amount of the compensatory damages. Had the trial court complied with State Farm's interpretation of the Crookston I ratio factor, the remittitur would have been to an amount three times the amount of the compensatory damages—$3 million. It is apparent from the trial court's written findings that it would not have remitted the amount at all except for its mistaken belief that the jury's award exceeded proper limits as a matter of law under Crookston I. [10] Facts relevant to other Crookston I factors, such as factors four and six, may also satisfy the BMW reprehensibility guidepost. [11] The de novo standard of appellate review imposed by Cooper Industries underscores this principle. [12] That courts must analyze each case's facts to determine the appropriateness of the ratio is also demonstrated by the following cases, cited by State Farm: Denesha v. Farmers Ins. Exch., 161 F.3d 491, 504-05 (8th Cir.1998) ("As an initial matter, the 24:1 ratio of punitive to compensatory damages is not unsettling as a matter of due process.... [However,] the nature and extent of the [defendant's] conduct does not support the jury's award [and] ... the effect on [the plaintiff] does not warrant" such an award); EEOC v. HBE Corp., 135 F.3d 543, 557 (8th Cir.1998) (reducing punitive damage award only "[a]fter considering the nature and extent of the misconduct, the impact on the individual plaintiffs, a reasonable relation between the compensatory and punitive damages, and an amount sufficient to punish and deter under all the circumstances"); Utah Foam Prods. Co. v. Upjohn Co., 930 F.Supp. 513, 532 (D.Utah 1996) (reducing punitive damage award because, upon review of evidence at trial, "the punitive damages award does not appropriately reflect the level of Upjohn's misconduct. Decidedly, no egregious conduct was presented which would justify the amount of the award based upon clear and convincing evidence"); Apache Corp. v. Moore, 960 S.W.2d 746, 749 (Tex.App.1997) (noting that "the ratio that will pass constitutional muster will depend upon the facts in each case"). [13] In particular, State Farm argues that the following evidence was not admissible: 1. Evidence relating to first-party property claims; 2. Unsubstantiated allegations in class action lawsuits; 3. Verdicts in first-party cases; 4. Evidence of the conduct of a non-party sister company; 5. Evidence that State Farm employed predictable experts; 6. Evidence that State Farm engaged in hard ball litigation tactics; 7. Evidence that State Farm strongly encouraged first-contact settlements; and 8. Evidence showing that State Farm discriminated on the basis of sex and race. [14] The trial judge was actually upholding an earlier bifurcation order by predecessor Judge John Rokich. [15] It is not entirely clear to us that the conceptual considerations related to "character" under rule 404 translate freely from the cases we have decided involving an individual's character to the "character" of a corporation. Both parties in this case have briefed the issue without any attention to potential distinctions, however, and so for purposes of this case, we assume (without deciding) that the analysis should be identical. [16] Additionally, we note that the trial court was very responsive to State Farm's request for additional time when it claimed the necessity of adding rebuttal witnesses regarding a different aspect of the trial. In fact, at that juncture, the trial court doubled the amount of trial time allotted. We are confident that the trial court would have done the same had State Farm convincingly presented such a need regarding these documents. [17] Oddly, despite the trial court's ruling on this issue, the jury did in fact see the Bad Faith Agreement in phase II. State Farm's counsel conducted the following inquiry of Campbells' expert James Crandall: Q: ... Just before the lunch break, I was asking you about your awareness through the documentation of an agreement in June of 1983 between Mr. Ospital, or the Ospitals, and Mr. Slusher about suing State Farm if they got an excess verdict. A: Okay. Q: And you're aware of that? A: I have a general recollection of it. Q: We have this document already in evidence, and it's on June 3rd of 1983, between Robert Slusher, Junior, and the estate of Todd Ospital and Allstate. And it said, it says here that, "Ospital and the attorneys currently retained by Ospital shall assist Slusher in the prosecution of his claim against any other party responsible for said injuries and damages, including any claim for bad faith against any insurer of the responsible party." Do you see that? A: Yes. Q: So before the case went to verdict, which was September of `83, Ospitals and Slushers agreed that they would go together and sue State Farm for bad faith. A: Under certain circumstances. They agreed to settle as between each other, which is common, and under certain circumstances, to proceed further. Q: But the important thing is, you're aware, as a law professor, that Ospital and Slusher didn't have a direct right to sue State Farm. A: That's right. Not for the bad faith claim, that's right. Because it only runs to the Campbells. Q: So when Ospital and Slusher got excess verdicts against Mr. Campbell, they needed Mr. Campbell to be the party to bring the lawsuit. (Emphasis added). Thus, the Bad Faith Agreement was admitted into evidence, and the jury was informed of its provisions. It came in without objection as Exhibit 41 during the cross-examination of Paul Brinkman, a witness for the plaintiffs, and its pertinent terms were read to the jury. After a subsequent objection by plaintiffs, based on the trial court's exclusion of the agreement in the pretrial motion in limine, State Farm agreed to the withdrawal of Exhibit 41; nevertheless, counsel for State Farm referenced the agreement in closing argument: So they confirm that again and then in June of 1983, couple of weeks later, the agreement is signed on June 3rd, 1983, where Slusher, the Ospitals, their counsel and Allstate agree down here in paragraph three that they're going to assist in prosecuting a claim for bad faith against any insurer of the responsible party. And then you get down to paragraph four and they set out how this is going to happen, how this is going to work. And when you go over to paragraph four on page two they talk about splitting up the excess recovery half and half with respect to any general and punitive damages recovered in a bad-faith claim. Now, this is an agreement, ladies and gentlemen of the jury, a contract, I guess you could call it, whereby Ospital and the Slushers agreed to pursue a bad-faith action against State Farm, which they couldn't pursue without Mr. Campbell giving them some kind of cooperation because by law they can't pursue it. .... And so what we have is a situation where the evidence shows that even before trial there was an agreement to pursue a bad-faith action by parties who can't pursue it without Campbell helping them. And I submit to you that for that agreement to be carried out, no execution could be pursued and there was no intent to ever do that. [18] Recently, we decided Schuurman v. Shingleton, 2001 UT 52, 26 P.3d 227, in which we held that "the alleged suffering that plaintiff has undergone in this case [severe pain and suffering and emotional distress] is not the type of distress that no reasonable person could be expected to endure." Id. at ¶ 25. We noted that plaintiff's alleged distress in that case was "indistinguishable from that commonly suffered by others when an intimate personal relationship fails." Id. In this case, however, no reasonable person should be expected to endure the distress suffered by the Campbells at the hands of their insurer, in which they were led to believe they would lose their home and assets and be unable to enjoy their retirement, for which they had worked their entire lives. [19] It is of course true, as the dissent notes, that State Farm argued the issue of Mrs. Campbell's standing to sue for bad faith in Point IV. A of its appellate brief. It did not, however, challenge the phase I verdict in favor of Mrs. Campbell on the fraud and intentional infliction of emotional distress claims on the same basis, since those claims were based in tort, not contract. [20] In Gibbs M. Smith, Inc. v. United States Fidelity & Guaranty Co., 949 P.2d 337, 344 (Utah 1997), this court implied the same result we reach here, by holding, in a third-party claim, that attorney fees were recoverable for a breach of the implied covenant of good faith and fair dealing. Although the court observed that "a more accurate statement might be that this is a first-party action for third-party coverage," it is plain on the facts that the action involved what we described in Beck as a third-party claim. Thus our holding in that case, despite its scant analysis, stands for the proposition that fees are awardable in third-party bad faith claims by an insured against its insurer, a ruling we make explicit today. [21] We explicitly reject State Farm's proposal to limit the award of attorney fees to $911.25, the amount the Campbells paid to obtain the benefits of their insurance contract with State Farm. Because the very purpose of a bad faith claim is to recover extra-contractual damages—namely, the amount of the excess judgment and any compensatory damages suffered in connection with the insurer's bad faith—it would be entirely incongruent to limit attorney fee awards to those fees incurred to secure the benefits of the insurance contract. We also reject State Farm's argument that Mr. Campbell's award of attorney fees should be limited to 4% of the total amount of compensatory damages awarded. Examination of the agreement between Mr. Campbell, Slusher, and Ospital reveals that Mr. Campbell is fully liable for all attorney fees unless there is no recovery or a recovery that is insufficient to cover the attorney fees and litigation expenses. Because the recovery here is sufficient, Mr. Campbell is obligated to pay the full contingency fee in the amount of 40% of the compensatory damages awarded. [22] With respect to State Farm's argument concerning the legitimacy of awarding any expenses, State Farm has failed to meet the requirements of Utah Rule of Appellate Procedure 24. In particular, State Farm has failed to satisfy subsection (a)(5) of rule 24 which requires it to include in its brief "[a] statement of the issues presented for review, including for each issue: the standard for appellate review with supporting authority." (Emphasis added.) Although State Farm's issue statement addresses both attorney fees and litigation expenses, State Farm only cites a case discussing the standard of review for attorney fee awards, not awards for litigation expenses, and makes no attempt to analogize awards of litigation expenses to awards for attorney fees. [1] State Farm raises the issue of Mrs. Campbell's standing to sue for bad faith in point IV.A of its appellate brief. [2] Indeed, the overwhelming majority of jurisdictions follow exactly the same rule Utah does: that "the duty of good faith and fair dealing derives from and exists solely because of the contractual relationship of the parties." Austero v. Nat'l Cas. Co., 62 Cal.App.3d 511, 133 Cal.Rptr. 107, 110 (1976); see, e.g., Lowe v. Am. Med. Int'l, 494 So.2d 413, 414 (Ala.1986) ("The cause of action for the tort of bad faith refusal to pay was created to protect only the person for whose benefit the insurance payments should have been made."); Hatchwell v. Blue Shield of California, 198 Cal.App.3d 1027, 244 Cal.Rptr. 249, 253 (1988) ("Although [Mrs. Hatchwell] was eligible for health care benefits as a Dependent Subscriber [on Mr. Hatchwell's insurance policy], and as such may be termed a `co-insured' or `dependent beneficiary,' as she urges, this is not sufficient to establish standing to sue for breach of contract and bad faith based upon the denial of benefits to [Mr. Hatchwell]." (citations omitted)); Soto v. Royal Globe Ins. Co., 184 Cal.App.3d 420, 229 Cal.Rptr. 192, 197 (1986) ("One who is not a party to the insurance contract and the accompanying implied covenant of good faith and fair dealing may not maintain an action for breach of the covenant."); Eastham v. Nationwide Mut. Ins. Co., 66 Ohio App.3d 843, 586 N.E.2d 1131, 1133 (1990) (holding that a wife did not have standing to bring a bad faith claim against her automobile liability insurer for failing to timely pay the medical expenses of her deceased son, even though she was insured under the policy); United Fire Ins. Co. v. McClelland, 105 Nev. 504, 780 P.2d 193, 197-98 (1989) ("[A] wife's coverage as a dependent under her husband's health insurance policy does not give her standing to enforce her husband's contract rights for bad faith denial of health care benefits."); Vecchiarelli v. Cont'l Ins. Co., 216 A.D.2d 909, 628 N.Y.S.2d 892, 893 (1995) (upholding the dismissal of a spouse's claim for bad faith where no contractual nexus was present); see also Correa v. Pa. Mfrs. Ass'n Ins. Co., 618 F.Supp. 915, 929 (D.Del. 1985) (finding that the duty of good faith and fair dealing does not extend to the spouse of someone insured under a workers' compensation policy); Transp. Ins. Co. v. Archer, 832 S.W.2d 403, 405 (Tex.Ct.App.1992) (disallowing a spouse's suit for bad faith when her husband was denied benefit payments from his workers' compensation carrier). [3] As explained above, there was good reason the jury in the first stage of the bifurcated trial was never asked questions as to breach of duty to Inez Campbell. State Farm did not owe a duty to Inez Campbell to settle the case in her behalf. Inez Campbell was not the driver of the vehicle involved in the accident and had no exposure of liability for claims arising from the accident. For the same reason, she was not named as a defendant in the underlying case in Cache County. [4] Justice Durham, in a single paragraph, apparently takes exception to the entire dissent on the ground that the parties failed to raise the "wording" of the trial court's faulty verdict from the first stage of the case below or on appeal. Despite this bald assertion, State Farm did specifically challenge on appeal the trial court's determination that Mrs. Campbell had standing to sue for bad faith. In fact, State Farm argued that "[t]he court below" should not have "concluded that Mrs. Campbell had standing" based "solely on her marital relationship to Curtis Campbell." Moreover, this court has repeatedly held that we "may consider issues raised for the first time on appeal if the trial court committed plain error." Julian v. State, 966 P.2d 249, 258 (Utah 1998); see also, e.g., Green v. Louder, 2001 UT 62, ¶ 34, 29 P.3d 638 (Durham, J.); State v. Helmick, 2000 UT 70, ¶ 8, 9 P.3d 164 (Durham, J.); Berenda v. Langford, 914 P.2d 45, 51 n. 1 (Utah 1996); Salt Lake City v. Ohms, 881 P.2d 844, 847 (Utah 1994); State v. Germonto, 868 P.2d 50, 58 (Utah 1993) (Durham, J.); State v. Brown, 853 P.2d 851, 853-54 (Utah 1992) (Durham, J.). The trial court's actions in this case unequivocally constituted plain error, a point made repeatedly throughout the dissent. See supra ¶ ¶ 135, 140, 143, 144, 145, 149; infra ¶ 155. [5] Accord United States v. Castello, 526 F.Supp. 847, 848-50 (W.D.Tex.1981) (granting a new trial where a juror conducted ballistic experiments and reported the results to the jury); Frede v. Downs, 101 Ill.App.3d 812, 57 Ill.Dec. 355, 428 N.E.2d 1035, 1037 (1981) (remanding for a new trial a collision case in which the jury referred to a boating handbook not admitted as evidence); Brockie v. Omo Constr., Inc., 255 Mont. 495, 844 P.2d 61, 63-64 (1992) (reversing trial court's decision not to grant a new trial where jury foreman researched physics questions at issue in the case and reported his findings to other jurors); Arthur v. Washington Iron Works, 22 Wash.App. 61, 587 P.2d 626, 629 (1978) (ordering a new trial where jurors went to the public library "looking for handbooks" related to the case and "examin[ed] the yellow pages of the telephone book concerning" witnesses that had been called during trial). [6] Contending that Crookston does not question the legitimacy of joint punitive damage awards, the majority opinion assails the argument that the punitive award in this case must be vacated. However, the majority's contention must fail for at least two reasons. First, in characterizing the necessity for vacating the punitive award solely "due to its joint nature," Justice Durham oversimplifies the reasons stated above for why the award must fail. While Crookston did recognize the policy objectives of punitive damages to include "punish[ment] and deter[rence]," 817 P.2d at 807, we specifically held in Crookston that awards rendered for such purposes must be constrained by well established "parameters" that tether punitive damages to some sense of reasonableness in order to avoid "excessive awards." Id. at 808. Those parameters include the seven factors listed above, which "must be considered [by the jury] in assessing the amount of punitives." Id. (emphasis added). Because, as explained above, the jury was unable to properly consider two of those factors in this case due to the trial court's erroneous instruction that State Farm had been found liable to Mrs. Campbell for bad faith, the punitive award must be vacated and remanded. See id.; C.T. ex rel. Taylor v. Johnson, 1999 UT 35, ¶¶ 17-26, 977 P.2d 479 (upholding a punitive award only because the trial court's failure to instruct the jury to consider all of the seven Crookston factors was harmless since the jury did in fact fully and properly assess each factor); Ong Int'l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 458-59 (Utah 1993) (affirming a punitive award because the jury "made a detailed finding based on the seven factors enunciated in Crookston"). Indeed, nowhere in her opinion does Justice Durham even attempt to address this issue. Second, there is good reason why the "joint nature of the punitive damages award was never questioned" in Crookston. Unlike the case now before us, neither of the parties involved in Crookston ever had their standing to sue questioned, nor was the issue raised on appeal. Consequently, the problematic situation created here—where one party who was awarded punitives had every right to sue but the other party given the same award should have never been involved in the lawsuit—simply did not exist in Crookston. See 817 P.2d at 794 (recognizing that both Mr. and Mrs. Crookston were named as insureds in their homeowner's policy).

106 F.3d 405 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Laura BERRY, Appellant,v.Jay L. OSWALT; Gaylon Lay; Jay Blankenship, WardenVirginia W. Wallace; Larry Norris, Director; D.D. Cook;Katherine Green; Kevin Murphy; C.O.-1 Wright; C.O.-1 R.Reed; Sgt. Tammy Patton, formerly known as Tammy Ridgeway;A. Bradley, Classification Officer, Appellees. No. 96-2184. United States Court of Appeals, Eighth Circuit. Jan. 23, 1997. Appeal from the United States District Court for the Eastern District of Arkansas. Before McMILLIAN, Circuit Judge, Henley, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge. HENLEY, Senior Circuit Judge. 1 Laura Berry, an inmate of the Tucker Women's Unit of the Arkansas Department of Correction, appeals from the district court's1 denial of her motion for a preliminary injunction. We affirm. 2 The district court correctly held that Berry was not entitled to preliminary injunctive relief on her legal mail and "legal trunk" claims. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981). " '[W]hether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict upon other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.' " Goff v. Harper, 60 F.3d 518, 520 (8th Cir.1995) (quoting Dataphase, 640 F.2d at 114). "The burden of proving that a preliminary injunction should be issued rests entirely with the movant." Id. "We review a district court's grant or denial of preliminary injunctive relief for an abuse of discretion or misplaced reliance on an erroneous legal principle." Id. 3 As to the legal mail claim, at an evidentiary hearing Major Luckett, chief of security at Tucker, testified that the prison's mail policy regarding outgoing legal mail required officers to review documents inside envelopes marked "legal mail" to "make sure they are legal documents." He explained that the policy was necessary because of security concerns. He further explained that officers did not read the documents, but only "skimmed" them to verify that they were in fact legal, and after an officer verified the documents he returned the documents and the envelope to the inmate, who would seal the envelope before mailing. In response to questioning by the court, Luckett confirmed that an officer was "only to check the mail as far as necessary to confirm that it is going to a lawyer," and that if an officer read a letter addressed to a lawyer he or she would be violating the policy. Luckett stated that he knew of no violations of the policy. 4 At the hearing, Officer Angela Lovett testified that on one occasion she attempted to verify Berry's legal mail. According to Lovett, Berry took some grievance forms and a piece of notebook paper out of an envelope and gave them to Lovett for verification. As Lovett was "skimming" the page of notebook paper, Berry complained that Lovett was reading her mail. Lovett offered Berry the opportunity to have another officer verify the mail, but Berry declined. According to Lovett, when she "skimmed" a document she did not read it, but only looked for something that "caught" her eye which would indicate that the document pertained to a legal matter. In this case, Lovett stated that she did not see an attorney's name on the page or anything else indicating it was legal mail. In fact, Lovett testified that she could not have read the page because she could not decipher Berry's handwriting. 5 Although Berry had alleged that the prison's mail policy required prison officials to read inmates' outgoing legal mail, see Thongvanh v. Thalacker, 17 F.3d 256, 258-59 (8th Cir.1994) ("prison officials have a duty to maintain security within the prison, and this may include reading inmates' incoming and outgoing mail, with the exception of legal mail"), the district court correctly held that Berry failed to demonstrate the existence of such a policy, which, we believe, indeed might pose a threat of irreparable harm. In addition, we do not believe that Berry even proved that Lovett violated the verification policy or a likelihood that the policy was unconstitutional. Even if she had, an isolated violation still would not necessarily be cause for issuance of a preliminary injunction. See Goff, 60 F.3d at 521. 6 Although at this stage we express no opinion on the merits of the policy, we note that in Bell-Bey v. Williams, 87 F.3d 832 (6th Cir.1996), the Sixth Circuit rejected an inmate's challenge to a prison mail policy, which required prison officials to "inspect" outgoing legal mail to determine whether the mail was in fact legal mail. The court upheld the policy, noting that there was no proof that the policy directed officials to read prisoners' legal mail. Id. at 839. In addition--and we believe importantly--the court noted that there were "procedural safeguards to ensure that a prison employee only looks for identifiable information." Id. Under the policy at issue, "1) the official's inspection [wa]s limited to scanning legal mail for docket numbers, case title, requests for documents, et cetera; 2) the inspection [wa]s conducted in the prisoner's presence in his cell; and 3) the prisoner [could] seal his mail after the inspection [wa]s completed." Id. at 837. 7 As to Berry's claim concerning removal of a trunk containing legal materials from her cell, the district court correctly concluded that she failed to demonstrate a threat of irreparable harm. Prison officials did not require destruction of her legal materials, but merely required storage of them elsewhere. As the district court noted, Berry had not demonstrated how storage of the materials outside her cell would impair her access to the courts. See Lewis v. Casey, 116 S.Ct. 2174, 2179-82 (1996). 8 Accordingly, we affirm the denial of preliminary injunctive relief. 1 The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas

Court of Appeals Sixth Appellate District of Texas JUDGMENT Melvin Wayne Richardson, Appellant Appeal from the 195th District Court of Dallas County, Texas (Tr. Ct. No. F06- No. 06-14-00234-CR v. 62371-N). Opinion delivered by Chief Justice Morriss, Justice Moseley and Justice The State of Texas, Appellee Burgess participating. As stated in the Court’s opinion of this date, we find no error in the judgment of the court below. We affirm the judgment of the trial court. We note that the appellant, Melvin Wayne Richardson, has adequately indicated his inability to pay costs of appeal. Therefore, we waive payment of costs. RENDERED JULY 9, 2015 BY ORDER OF THE COURT JOSH R. MORRISS, III CHIEF JUSTICE ATTEST: Debra K. Autrey, Clerk 

429 F.Supp. 675 (1976) Geraldine Murphy EIPP, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Third-Party Plaintiff, v. MOTOROLA, INC., et al., Third-Party Defendants. No. Civil LV 74-159 RDF. United States District Court, D. Nevada. September 16, 1976. *676 Galatz, Earl & Biggar, Las Vegas, Nev., for plaintiff. Rose, Edwards & Hunt, Ltd., Las Vegas, Nev., for defendant and third party plaintiff. Beckley, Singleton, DeLanoy, Jemison & Reid, Las Vegas, Nev., for third party defendants. MEMORANDUM OPINION GRANTING STATE FARM'S MOTION FOR SUMMARY JUDGMENT AND DENYING GERALDINE MURPHY EIPP'S MOTION FOR SUMMARY JUDGMENT ROGER D. FOLEY, Chief Judge. On January 28, 1969, Peter Rickmers, an employee of Motorola, Inc., was driving an automobile that was involved in a collision in Las Vegas, Nevada, with a vehicle occupied by Geraldine Murphy Eipp. The vehicle that Rickmers was driving was owned by the Hertz Corporation and leased to Motorola, Rickmers' employer. At the time of the accident, Hertz, as owner of the automobile, had an insurance policy with Royal Globe Insurance Company, with applicable limits of $100,000.00. There also existed at the time of the accident an insurance policy issued by Zurich Insurance Company covering Motorola as a named insured and Rickmers as an employee as an additional insured, with applicable policy limits of $500,000.00. In addition, there existed a policy of automobile liability insurance, issued in Arizona to Rickmers by State Farm Mutual Automobile Insurance Company on Rickmers' personal automobile, with applicable limits of $50,000.00. On July 1, 1969, a lawsuit was filed by Mrs. Eipp in the Eighth Judicial District Court of the State of Nevada against Rickmers and Motorola. On September 26, 1973, the lawsuit of Mrs. Eipp against Rickmers and Motorola was settled, by way of a stipulated judgment in the sum of $255,000.00. The settlement provided for a total release of Hertz upon payment of $100,000.00 by Royal Globe. When Zurich tendered $80,000.00 for payment, Motorola received a total release from Mrs. Eipp. Rickmers assigned his rights under the State Farm policy to Mrs. Eipp in return for her covenant not to seek satisfaction of the remaining $75,000.00 against him personally. Mrs. Eipp now seeks to collect the balance of the judgment through the State Farm policy. On August 20, 1974, Mrs. Eipp filed suit against State Farm in the Eighth Judicial District Court of the State of Nevada. In her complaint she alleged that: 1. The policy insured Rickmers against all damages resulting from accidents to persons caused by the ownership, maintenance, or use of a vehicle operated by Rickmers. 2. The policy obligated State Farm to defend, and make any settlement it deemed expedient, which State Farm refused to do, resulting in damages in the amount of $75,000.00. 3. Pursuant to the Financial Responsibility Laws of the State of Nevada, State Farm is obligated to Mrs. Eipp in the sum of $15,000.00. Whereupon, on October 23, 1974, State Farm petitioned for removal from the Nevada State District Court to the United States District Court for Nevada. Then State Farm answered Mrs. Eipp's complaint by way of denying any obligation to indemnify Rickmers. In addition, it denied any liability for failing to defend Rickmers. On March 24, 1976, State Farm filed a motion for summary judgment presenting three grounds: first, that there was no coverage, and hence no duty to defend or settle on the part of State Farm; second, that the particular contractual arrangement drafted presents no legal obligation to pay by State Farm on behalf of Rickmers or his assignee, Mrs. Eipp; third, that as a matter *677 of law, the arrangement giving rise to the present litigation is void. On April 21, 1976, plaintiff filed a cross motion for summary judgment stating, first, that there was coverage of Rickmers by State Farm and likewise a duty to defend; second, that the agreement and assignment is binding against State Farm; and third, the agreement entered into by Motorola, Rickmers and Mrs. Eipp is legal. The determination of whether summary judgment is proper for either party will involve the analysis of two main issues to determine if there are any genuine issues of material fact which would preclude this Court from granting summary judgment. They are: (1) did the State Farm policy exclude coverage? [This issue will turn on whether the "escape" clause in the policy became operative by virtue of the facts and circumstances surrounding the accident, and, in addition, if the "escape" clause did become operative, whether it is void as a matter of public policy]; and (2) were the agreement and assignment binding on State Farm? [There are three areas of contention in this issue which are: (a) the effect of a "no-action" clause; (b) the liability of State Farm as affected by the assignment; and (c) the legality of the settlement agreement.] The Court finds that there are no pertinent genuine issues of material fact. The Court concludes that as a matter of law the "escape" clause became operative and the clause is not void as against public policy. Further analysis is unnecessary. State Farm's motion for summary judgment will be granted. Plaintiff's motion for summary judgment will be denied. AS A MATTER OF LAW, STATE FARM'S POLICY EXCLUDES COVERAGE The resolution of this issue is dependent upon the construction and effect given to the automobile liability insurance policy issued by State Farm to Rickmers. At the time of the accident, there existed a policy issued to Rickmers from State Farm insuring his own personal vehicle. This type of policy has been characterized as an "owner's automobile policy," which is one that insures the holder against legal liability for injuries to others arising out of the ownership, use or operation of a motor vehicle OWNED BY THE HOLDER. The State Farm policy also contained an "exclusionary clause" that would preclude any coverage upon the presence of certain conditions. The relevant passages of the policy are: "All of the foregoing provisions and all coverages are subject to the following: "* * * "(b) The insurance with respect to (i) a temporary substitute automobile, (ii) a trailer, or (iii) a non-owned automobile, owned by any person or organization engaged in the automobile business, SHALL NOT APPLY TO ANY LIABILITY OR LOSS AGAINST WHICH THE INSURED OR THE OWNER OF SUCH VEHICLE HAS OTHER COLLECTIBLE INSURANCE APPLICABLE THERETO, IN WHOLE OR IN PART." (Emphasis provided.) Thus, a triggering mechanism that could make the exclusionary clause operative, consequently absolving State Farm of liability, would be circumstances where the holder of the policy was operating an automobile owned by someone in the automobile business AND "other insurance" was available in whole or in part with respect to the holder of the policy OR the owner of the vehicle. It is State Farm's contention that the circumstances and ownership of the automobile being driven by Rickmers on the date of the accident fell within the facts required to invoke the exclusionary provisions in the policy, since Rickmers was driving an automobile, owned by Hertz, Inc., a business involved in the leasing of automobiles, and that there was applicable insurance, "in whole or in part", to the liability of loss arising out of the accident. It is plaintiff Eipp's position that the exclusionary provision in the State Farm policy is invalid by virtue of the existence *678 of the Arizona and Nevada Financial Responsibility Statutes. Without the exclusionary clause, the State Farm policy would be relegated to an "excess coverage" policy in the same position as the Zurich Insurance policy. Mrs. Eipp contends that since a judgment was obtained in the amount of $225,000 and the primary insurance of Royal Globe, Hertz's insurer, only covered $100,000, the excess insurers (Zurich and State Farm) are liable for the balance of $125,000. If this Court had concluded that the State Farm exclusionary clause was inapplicable and therefore the policy is an excess coverage type similar to the Zurich policy, both policies would share liability on a pro rata basis. Thus, the sole determinative basis of whether State Farm Mutual is excluded from coverage as a matter of law is the construction and validity of the exclusionary clause. The Court concludes that the exclusionary clause is valid and the events surrounding the accident fall within the conditions necessary to invoke the exclusionary clause. The policy is a contract between the parties and as such must be construed to carry out their intent, except insofar as a statute or public policy requires a different construction. Further, while it is the duty of the Court to construe the insurance policy as written and not to rewrite it and thus make a new contract for the parties, ambiguous provisions will be given a meaning most favorable to the insured and exclusions from and exceptions to undertakings by the insurer are not favored. Allstate Insurance Co. v. Shelby Mutual, 269 N.C. 341, 152 S.E.2d 436 (1967); St. Paul Fire & Marine v. Muniz, 19 Ariz.App. 5, 504 P.2d 546 (1972). In examining the exclusionary clause, the Court has no difficulty in construing the phrase "non-owned automobile, owned by a person or organization in the automobile business . . ." The policy defines "automobile business" as "the business or occupation of selling, leasing, repairing, servicing, storing or parking of land motor vehicles or trailers." By definition, therefore, the operation of leasing automobiles is within the ambit covered by "automobile business." Following, there is no dispute that Hertz, Inc., is in the automobile leasing business and that Hertz, Inc., owned the vehicle in question. In interpreting the second relevant aspect of the clause, namely, that the policy "shall not apply to any liability or loss against which the insured or owner of such vehicle has other collectible insurance applicable thereto, in whole or in part," it is noted that in U. S. Fidelity & Guaranty Co. v. Dixie Auto, 292 F.Supp. 554 (1968), the United States District Court for the Northern District of Alabama construed an exclusionary clause remarkably similar to the abovementioned as becoming operative when a customer's liability policy at least provided "excess" insurance covering the accident. In holding that the exclusionary clause was intended to provide coverage only when there was no other coverage available to them, the Court stated that the endorsement was such that included either "primary or excess" insurance coverage which was sufficient to invoke the clause. Thus, it seems that the clear import of the language in the State Farm policy is to exclude coverage if there is either primary or excess insurance available to either the holder of the policy or the owner of the vehicle. It is undisputed that Royal Globe, as Hertz's insurer, provided the primary coverage in the amount of $100,000, an amount greatly in excess of the required amount under the Financial Responsibility Laws. This primary coverage in itself should be sufficient to invoke the exclusionary clause. In addition, however, there was an excess insurance policy available through Zurich Insurance Company. It is undisputed that Zurich covered Motorola as named insured and Rickmers as additional insured with a policy limit up to $500,000. As such, the Zurich policy provides an additional basis for concluding that the "other insurance" aspect of the exclusionary clause has been satisfied. Mrs. Eipp contends the escape clause is void as a matter of public policy. She *679 cites Rocky Mountain Fire & Casualty Co. v. Allstate Insurance Co., 107 Ariz. 227, 485 P.2d 552 (1971), as controlling. There the Court held: "An automobile owner's liability insurer could not exclude from coverage a driver using a `loaner' vehicle notwithstanding there was other valid and collectible insurance available to the driver in an amount sufficient to satisfy the requirements of the omnibus clause of the State Financial Responsibility." Arizona Revised Statutes 28-1170. The Nevada and Arizona Financial Responsibility Acts are worded precisely the same. The Nevada Revised Statutes 485.3091 and Arizona Revised Statutes 28-1170 read: "2. Such owner's policy of liability insurance shall: (b) Insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: $15,000.00 because of bodily injury to or death of one person in any one accident, and, subject to such limit for one person, $30,000.00 because of bodily injury to or death of two or more persons in any one accident." At first glance, Rocky Mountain appears exactly on point. However, careful scrutiny of the case reveals crucial distinguishing facts. In Rocky Mountain, the Court held that the financial responsibility laws prevented an exclusionary clause of the insurer of the OWNER OF THE LOANER VEHICLE from becoming operative. In the case at hand, there is no issue involving an exclusionary clause in the insurance policy of the owner of the loaner vehicle. Ownership coverage is acknowledged as being the primary insurance of Royal Globe on behalf of Hertz. State Farm has ownership coverage with respect to Rickers' personal automobile and non-ownership coverage with respect to the rented vehicle. In Rocky Mountain, the Court adjudicated a claim by a primary insurer and in that respect the Court held that any qualification could not be allowed. Had Royal Globe, as the primary insurer, attempted to limit liability through the use of an exclusionary clause, Rocky Mountain would be controlling. However, there is no such issue in the case at bar. Plaintiff Eipp appears to be confused as to the role of the State Farm policy. The policy is an ownership policy with coverage on Rickmers' own personal vehicle. Under the financial responsibility laws, State Farm is required to provide insurance coverage for Rickmers' own automobile for anyone using that automobile with express or implied permission, that is, omnibus coverage. Thus, while State Farm's policy is an owner policy with respect to the use and operation of his own personal vehicle, invoking the mandate of the financial responsibility laws to provide omnibus coverage, it does not necessarily follow that State Farm is an omnibus insurer for operations arising out of the use of a non-owned automobile. Mrs. Eipp's claim is not predicated on the section of the policy that would require omnibus coverage, namely, liability arising out of the use or operation of Rickmers' own personal vehicle. Clearly, if that were the case, the Court could not allow any qualifications as to coverage. Rather, the claim is covered by the "non-owned" vehicles section of the policy. The "non-owned" vehicles section or "drive other cars" clauses have been held not violative of the financial responsibility laws. The case law, as outlined below, is in harmony with this position. In 1963, the Arizona Supreme Court, in the decision Jenkins v. Mayflower Insurance Exchange, 93 Ariz. 287, 380 P.2d 145 (1963), incorporated the requirements of the omnibus clause of Arizona's financial responsibility act, to be read into all insurance policies issued in the state. In the Jenkins *680 case, there was a specific provision in the policy of insurance issued by the defendant excluding as permissive drivers, under the policy's own omnibus provisions, any member of the "military or naval forces of the United States." Plaintiffs were passengers in the car being driven by an airman who was given permission to drive the car by the named insured of defendant. The exact holding in Jenkins provided: "We hold, therefore, that the omnibus clause is a part of every motor vehicle liability policy, by whatever name it may be called." 380 P.2d at 148. It must be noted that Jenkins involved an exclusionary clause that attempted to limit liability by excluding certain permissive drivers of the owner's vehicle. The viability of the "drive other cars" clause in owners' insurance policies was not addressed until later. In Luehrs v. Utah Home Fire Insurance Co., 450 F.2d 452 (9th Cir., 1971), the Ninth Circuit held that the Arizona statutes do not require omnibus coverage for "drive other cars" clauses in owners' policies. Luehrs involved facts similar to the case at hand. There was an automobile collision between a taxicab owned by the Glendale Cab Co. and Luehrs. The cab was driven by Slaughter. A judgment was obtained in a state court in a wrongful death action for Luehrs. The public liability insurance carrier for the cab company, covering the company and Slaughter as operator of the cab, paid its full policy limits on the judgment. The judgment remained unsatisfied and as a consequence Luehrs initiated a proceeding attempting to hold Utah Insurance Co. liable for the excess under an owner's liability policy issued to Slaughter covering his own personal cars. This "drive other cars" clause went so far as to state that liability did not apply to "any automobile while used as a public or livery conveyance," regardless of whether there was any other collectible insurance. The Court stated that the owner's policy, insuring the taxi driver's own personal vehicle, did not owe any coverage for an accident while the named insured was driving a non-owned vehicle, namely, the taxi. The Court reasoned that: "Thus, under the specific terms of the Utah policy, it did not cover Slaughter while he was operating the taxicab. Luehrs, however, vigorously contends that this exclusion in Slaughter's personal liability insurance is void under Arizona law. In support of this view Luehrs cites a long line of Arizona decisions, and several by this court. These decisions make it clear that to the extent that the Arizona Financial Responsibility Act requires that a motor vehicle liability policy provide specified coverage, policy exclusions or conditions which dilute that coverage are void and of no effect. "In the case before us, by contrast, we are not concerned with insurance coverage required by any Arizona statute. Luehrs' claim against Utah is not predicated upon the omnibus clause in Slaughter's policy of liability insurance. Instead, it is based upon the `drive other cars' coverage of the Utah policy. Had Slaughter's policy been an `operator's policy of liability insurance,' `drive other cars' coverage would have been required under A.R.S. § 28-1170, subsection C. But, as stated above, Utah had issued Slaughter an `owner's policy.' A `drive other cars' clause is not required by Arizona statute in an owner's policy. Gilpin v. Northwestern Security Insurance Co., 447 F.2d 1347 (9th Cir., 1971); Civil Service Employees Insurance Co. v. Roberts, 10 Ariz.App. 512, 460 P.2d 48, 51 (1969)." Luehrs v. Utah Home Fire Ins. Co., 450 F.2d at 455-456. State Farm is not an omnibus insurer with respect to Mrs. Eipp. There is no precedent under either Arizona or Nevada law holding that the financial responsibility acts place any minimal coverage on State Farm. Further, when the policy is read with regard to its plain and ordinary meaning, it is clear that no liability should accrue if the named insured was driving a nonowned automobile, owned by someone in the automobile business where the named insured or owner of such vehicle has other collectible insurance, either in whole or in part. It is undisputed that the vehicle in *681 question was owned by Hertz and that Hertz is in the automobile business. Following there is no denial that Royal Globe as insurer of Hertz provided the primary coverage and that excess insurance was available through Zurich covering Rickmers as an additional insured under the policy with Motorola.

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 12-879V (Not to be published) ***************************** * JANIE L. COSCIA ROBERTS, * Filed: November 14, 2014 * Petitioner, * * Decision by Stipulation; Damages; v. * Influenza (“Flu”) Vaccine; * Transverse Myelitis (“TM”) SECRETARY OF HEALTH AND * HUMAN SERVICES, * * Respondent. * * ***************************** Diana S. Sedar, Maglio Christopher and Toale, PA, Washington, D.C., for Petitioner. Gordon E. Shemin, U.S. Dep’t of Justice, Washington, D.C., for Respondent. DECISION AWARDING DAMAGES1 On December 14, 2012, Janie L. Coscia Roberts filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2 Petitioner alleges that as a result of receiving the influenza (“flu”) vaccine on November 18, 2010, she suffered from Transverse Myelitis (“TM”), and that she experienced the effects of this injury for more than six months. Respondent denies that the flu vaccine caused Petitioner’s alleged TM, or any other injury, and further denies that Petitioner’s current disabilities are sequelae of a vaccine-related 1 Because this ruling contains a reasoned explanation for my action in this case, it will be posted on the website of the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To do so, Vaccine Rule 18(b) provides that each party has 14 days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the ruling will be available to the public. Id. 2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended, 42 U.S.C.A. ' 300aa-10 – 34 (2006)) [hereinafter “Vaccine Act” or “the Act”]. Individual sections references hereafter will be to ' 300aa of the Act. injury. Nonetheless both parties, while maintaining their above-stated positions, agreed in a stipulation (filed November 14, 2014) that the issues before them can be settled and that a decision should be entered awarding Petitioner compensation. I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation (as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the terms set forth therein. The stipulation awards: A lump sum of $100,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. §300aa-15(a). Stipulation ¶ 8. I approve a Vaccine Program award in the requested amounts set forth above to be made to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.3 IT IS SO ORDERED. /s/ Brian H. Corcoran Brian H. Corcoran Special Master 3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately) a notice renouncing their right to seek review. 2  Case 1:12-vv-00879-UNJ Document 36 Filed 11/14/14 Page 1 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) JANIEL. COSCIA ROBERTS, ) ) Petitioner, ) No. 12-879V ) Special Master Corcoran v. ) ) SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) STIPULATION The parties hereby stipulate to the following matters: 1. Petitioner filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 to 34 (the ''Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of the seasonal influenza ("flu") vaccine, which vaccine is contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a). 2. Petitioner received her flu vaccination on or about November 18, 2010. 3. The vaccine was administered within the United States. 4. Petitioner alleges that the flu vaccine caused her to develop Transverse Myelitis ("TM") and that she experienced the residual effects of this injury for more than six months. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages as a result of her condition. 6. Respondent denies that the flu immunization is the cause of petitioner's alleged TM, and/or any other injury.  Case 1:12-vv-00879-UNJ Document 36 Filed 11/14/14 Page 2 of 5 7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry of judgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: A lump sum of $100,000.00 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. §300aa-15(a). 9. As soon as practicable after the entry of judgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(l), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. 10. Petitioner and her attorney represent that they have identified to respondent all known sources of payment for items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa- 15(g), including State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis. 11. Payment made pursuant to paragraph 8 of this Stipulation, and any amount awarded pursuant to paragraph 9 of this Stipulation, will be made in accordance with 42 U.S.C. § 300aa- 15(i), subject to the availability of sufficient statutory funds. 2  Case 1:12-vv-00879-UNJ Document 36 Filed 11/14/14 Page 3 of 5 12. The parties and their attorneys further agree and stipulate that, except for any award for attorneys' fees and litigation costs, and past unreimbursable expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors and/or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Heahh and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kind or nature) that have been brought, could have been brought, or could be timely brought in the Court of Federal Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or in any way growing out of, any and all known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting from, or alleged to have resuhed from, the flu vaccination administered on or about November 18, 2010, as alleged by petitioner in a petition for vaccine compensation filed on or about December 14, 2012, in the United States Court of Federal Claims as petition No. 12- 879V. 14. If petitioner should die prior to entry of judgment, this agreement shall be voidable upon proper notice to the Court on behalf of either or both of the parties. 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a 3  Case 1:12-vv-00879-UNJ Document 36 Filed 11/14/14 Page 4 of 5 decision that is in complete conformity with the terms of this Stipulation, then the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party. 16. This Stipulation expresses a full and complete negotiated settlement of liability and damages claimed under the National Childhood Vaccine Injury Act of 1986, except as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the parties hereto to make any payment or to do any act or thing other than is herein expressly stated and clearly agreed to. The parties further agree and understand that the award described in this Stipulation may reflect a compromise of the parties' respective positions as to liability and/or amount of damages, and further, that a change in the nature of the injury or condition or in the items of compensation sought, is not grounds to modify or revise this agreement. 17. This Stipulation shall not be construed as an admission by the United States or the Secretary of Health and Human Services that the flu vaccine caused petitioner's alleged TM or any other injury. 18. All rights and obligations of petitioner hereunder shall apply equally to petitioner's heirs, executors, administrators, successors, and/or assigns. END OF STIPULATION 4 Case 1:12-vv-00879-UNJ Document 36 Filed 11/14/14 Page 5 of 5 Respectfully submitted, PETITIONER: AUTHORIZED REPRESENTATIVE OF UIE ATTORNEY GE~L: v~~~ Maglio, Christopher & Toale VIN~T~ATANOSKI ~ Deputy Director 1605 Main Street Torts Branch Suite 710 Civil Division Sarasota, Florida 34236 U.S. Department of Justice (888) 952-5242 P.O. Box 146 Benjamin Franklin Station Washington, DC 20044-0146 AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR OF THESE RY OF HEALTH RESPONDENT: AND HU CES: I~ OUSTON, M.D., M.P.H.,FAAP Director, Division of~ein:e Injury Trial Attorney Compensation Programs (DICP), Torts Branch Healthcare Systems Bureau, U.S. Department Civil Division Of Health and Human Services U.S. Department of Justice 5600 Fishers Lane P.O. Box 146 Park1awn Building, Mail Stop 1lC-26 Benjamin Franklin Station Rockville, MD 20857 Washington! DC 20044-0146 (202) 616-4208 5 

392 F.3d 636 Richard G. TATUM, individually and on behalf of a class of all other persons similarly situated, Plaintiff-Appellant,v.R.J. REYNOLDS TOBACCO COMPANY; R.J. Reynolds Tobacco Holdings, Incorporated; RJR Employee Benefits Committee of the R.J. Reynolds Tobacco Company Capital Investment Plan; RJR Pension Investment Committee of the R.J. Reynolds Tobacco Company Capital Investment Plan, Defendants-Appellees.Secretary of Labor, Amicus Supporting Appellant,Chamber of Commerce of the United States of America; American Benefits Council, Amici Supporting Appellees. No. 04-1082. United States Court of Appeals, Fourth Circuit. Argued: September 28, 2004. Decided: December 14, 2004. ARGUED: Jeffrey G. Lewis, Lewis, Feinberg, Renaker & Jackson, P.C., Oakland, California, for Appellant. Daniel Russell Taylor, Jr., Kilpatrick Stockton, L.L.P., Winston-Salem, North Carolina, for Appellees. George William Scott, III, United States Department of Labor, Washington, DC, for Amicus Supporting Appellant. ON BRIEF: Robert M. Elliot, J. Griffin Morgan, Elliot, Pishko, Morgan, P.A., Winston-Salem, North Carolina; Bill L. Lee, James M. Finberg, Leiff, Cabraser, Heimann & Bernstein, San Francisco, California; Lisa T. Belenky, Lewis, Feinberg, Renaker & Jackson, P.C., Oakland, California, for Appellant. Adam H. Charnes, Kristin M. Major, Kilpatrick Stockton, L.L.P., Winston-Salem, North Carolina, for Appellees. Howard M. Radzely, Solicitor of Labor, Timothy D. Hauser, Associate Solicitor, Plan Benefits Security Division, Elizabeth Hopkins, for Appellate and Special Litigation, G. William Scott, Senior Trial Attorney, Office of the Solicitor, United States Department Of Labor, Washington, DC. for Amicus Supporting Appellant. Hollis T. Hurd, The Benefits Department, Pittsburgh, Pennsylvania; Susan Relland, Lynn Dudley, American Benefits Council, Washington, DC, for American Benefits Council; Stephen A. Bokat, Ellen Dunham Bryant, National Chamber Litigation Center, Washington, DC, for the Chamber of Commerce of the United States, Amici Supporting Appellees. Before MICHAEL and MOTZ, Circuit Judges, and Henry E. HUDSON, United States District Judge for the Eastern District of Virginia, sitting by designation. Reversed and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge MOTZ and Judge HUDSON joined. OPINION MICHAEL, Circuit Judge: 1 This is an appeal from an order, entered under Fed.R.Civ.P. 12(b)(6), dismissing a complaint alleging that fiduciaries under a 401(k) plan breached their duty of prudence under the Employee Retirement Security Act (ERISA), 29 U.S.C. § 1001 et seq., when they liquidated two of the plan's investment funds at a loss. The district court concluded that no fiduciary duties were implicated because the plan sponsor had amended the plan to require elimination of the funds. We disagree. Because the plain language of the amendments did not strip the fiduciaries of discretion to maintain the funds in the plan, the amendments do not bar the plaintiff from stating a claim that the decision to liquidate the funds violated ERISA's duty of prudence. We therefore reverse. I. 2 Because we are reviewing a Rule 12(b)(6) dismissal order, we take the facts from the well-pleaded allegations of the amended complaint. See Franks v. Ross, 313 F.3d 184, 192 (4th Cir.2002). As of 1999 the plaintiff, Richard G. Tatum, was an employee of defendant R.J. Reynolds Tobacco Company ("RJR Tobacco"), a corporation engaged in the manufacture and sale of tobacco products. RJR Tobacco was a wholly-owned subsidiary of RJR Nabisco Holdings Corp. ("RJR Nabisco"); RJR Nabisco also owned 80.5 percent of the stock of its food products subsidiary, Nabisco Holdings Corp. ("Nabisco Holdings"). As of 1999 employees of RJR Nabisco and its tobacco and food subsidiaries had the option to participate in the RJR Nabisco Capital Investment Plan (the "Original Plan"), a 401(k) retirement plan governed by ERISA. Tatum, as an employee of RJR Tobacco, participated in the Original Plan. Participants in the Original Plan could direct the investment of contributions into several funds, including (1) a common stock fund holding only the shares of RJR Nabisco and (2) a common stock fund holding only the shares of Nabisco Holdings (together, the "Nabisco funds"). Tatum directed the Original Plan to invest in the Nabisco funds for his individual account. 3 In May 1999 the board of directors of RJR Nabisco approved a plan to dissociate its food and tobacco units by spinning off RJR Tobacco as a separate company. As a step in implementing the spin-off, defendant R.J. Reynolds Tobacco Holdings, Inc. ("RJR Holdings") was created as the new parent company for RJR Tobacco. The actual spin-off occurred on June 15, 1999, when the shares of RJR Holdings were distributed to the shareholders of RJR Nabisco, then renamed Nabisco Group Holdings Corp. ("Nabisco Group Holdings"). The spin-off was accompanied by changes to the RJR Nabisco 401(k) plan (the Original Plan). On June 14, 1999, the Original Plan was divided into two separate plans, one of which was the R.J. Reynolds Tobacco Company Capital Investment Plan (the "Tobacco Plan" or the "Plan"). Participation in the Tobacco Plan was limited to the employees of RJR Tobacco and its affiliates. Tatum thus became a participant in the Tobacco Plan. 4 The Tobacco Plan included an amended section 4.03 that described the investment options available to participants after June 14, 1999. Among other things, amended section 4.03 froze the Nabisco funds and prohibited further contributions into those funds. The section read: 5 Separate Funds. The Trustee shall maintain the following separate Investment Funds within the Trust Fund: the Interest Income Fund, the Nabisco Common Stock Fund, the Nabisco Group Holdings Common Stock Fund, the RJR Common Stock Fund, the Total Stock Market Fund, the Total International Fund, the Conservative Growth Fund, the Moderate Growth Fund and the Growth Fund. All Investment Funds under the Plan are active Funds; provided, however, the Nabisco Common Stock Fund and the Nabisco Group Holdings Common Stock Fund are frozen and, as of the Effective Date, Participants are prohibited from investing contributions or reallocating amounts held under the Plan to such Funds. In addition, the Trustee shall maintain any other Investment Funds as are designated by the RJR Pension Investment Committee. 6 J.A. 247.* At about the time section 4.03 was amended in mid-June 1999, RJR Tobacco informed Tobacco Plan participants that the Nabisco funds "would remain frozen and then would be eliminated from the Plan approximately six months after the date of the spin-off." J.A. 13-14. Later, in October 1999 RJR Tobacco informed Plan participants that the Nabisco funds would be eliminated as investment options on January 31, 2000. Finally, section 4.03 of the Tobacco Plan was again amended on November 18, 1999, as follows: 7 Effective February 1, 2000, Section 4.03 of the Plan is amended to read as follows: 8 4.03 Separate Funds. The Trustee shall maintain the following separate Investment Funds within the Trust Fund: the Interest Income Fund, the RJR Common Stock Fund, the Total Stock Market Fund, the Total International Fund, the Conservative Growth Fund, the Moderate Growth Fund and the Growth Fund. All Investment Funds under the Plan are active Funds. In addition, the Trustee shall maintain any other Investment Funds as are designated by the RJR Pension Investment Committee. 9 J.A. 303-04. On or about January 31, 2000, the Tobacco Plan sold, at a substantial loss, all shares of Nabisco Group Holdings and Nabisco Holdings (together, the "Nabisco stocks") held for participants in the Nabisco funds. The Nabisco funds were thus eliminated as investment options in the Tobacco Plan. 10 The market value of Nabisco stocks declined precipitously between the June 15, 1999, spin-off and the January 31, 2000, sale of the Nabisco stocks held in the Tobacco Plan. Nabisco Group Holdings stock fell sixty percent to around $8.50 per share, and Nabisco Holdings stock fell forty percent to around $30 per share. Nevertheless, "market analysts were advising investors to buy or hold [Nabisco stocks] despite [their] declining market value," J.A. 15, and were predicting the stocks would rebound in due course. Tatum maintained that the amendments to section 4.03 of the Tobacco Plan did not require the sale of the Nabisco stocks. Accordingly, prior to the liquidation Tatum urged the Plan to allow participants to maintain investments in Nabisco stocks allocated to their accounts. The Plan refused, and (as noted) sold the Nabisco stocks held in the Plan on January 31, 2000. The price of the Nabisco stocks rebounded sharply over the next five months: by late June 2000 Nabisco Group Holdings stock had more than tripled in price, selling for around $30 per share; Nabisco Holdings stock had nearly doubled, selling for around $55 per share. 11 On May 13, 2002, Tatum filed an action on behalf of himself and a class of similarly situated participants in the Tobacco Plan. The defendants are RJR Tobacco, RJR Holdings, the employee benefits committee of the Tobacco Plan, and the pension investment committee of the Tobacco Plan. Tatum alleges in his amended complaint that the defendants breached their fiduciary duty of prudence under ERISA by eliminating the Nabisco funds as an investment option under the Tobacco Plan and by selling the Nabisco stocks held in the Plan. See 29 U.S.C. § 1104(a)(1). The defendants moved to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The district court granted the motion, concluding that (1) the amendments to section 4.03 were plan design or settlor acts that did not trigger fiduciary duties under ERISA, and (2) the November 1999 amendment "required the January 31 [2000] liquidation of the frozen Nabisco funds." Tatum v. R.J. Reynolds Tobacco Co., 294 F.Supp.2d 776, 783 (M.D.N.C.2003). Tatum appeals the district court's dismissal order, and our review is de novo, see Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir.1997). II. 12 Tatum argues that his amended complaint states a claim that the defendants breached their fiduciary duties under ERISA when they failed to exercise their discretion to maintain the Nabisco funds as investment options for Tobacco Plan participants. Nothing in the amendments to section 4.03 of the Plan required the defendants to liquidate the Nabisco funds, according to Tatum. ERISA requires a plan fiduciary to make discretionary investment decisions "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent [person] acting in a like capacity and familiar with such matters would use." 29 U.S.C. § 1104(a)(1)(B). The defendants were subject to this "[p]rudent [person] standard of care," id. § 1104(a), if they had the discretion to maintain the Nabisco funds in the Plan after the amendments were adopted. 13 The defendants argue that Tatum fails to state a claim for breach of fiduciary duty under ERISA because the liquidation of the Nabisco funds (or stocks) in the Plan was a non-discretionary act required by the amendments. According to the defendants, the liquidation was non-discretionary because it simply carried out the mandate of the amendments, which were adopted pursuant to RJR Tobacco's authority as Plan sponsor or settlor. Generally, when a plan sponsor amends an ERISA plan, it acts as a settlor and is not subject to ERISA's fiduciary duties. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 443, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999); Coyne & Delany Co. v. Selman, 98 F.3d 1457, 1465 (4th Cir.1996). This rule raises the question whether a plan fiduciary is freed from his fiduciary responsibilities if he simply implements the mandates of the plan document. In this case Tatum and the Secretary of Labor (as amicus curiae) argue that even if the amendments to the Tobacco Plan required the sale of the Nabisco stocks, the Plan fiduciaries had the duty to ignore the Plan document if it was imprudent to sell. We need not reach this question if the amendments did not require the elimination or liquidation of the Nabisco funds. They did not, as we next explain. 14 Section 4.03 of the Plan, as amended in June 1999, required the trustee to maintain nine investment funds, including the two Nabisco funds. Seven funds were designated as active, and the two Nabisco funds were frozen. Further investments in the Nabisco funds were prohibited. Section 4.03 was again amended in November 1999, with the amendment to take effect on February 1, 2000. This amendment required the trustee, as of February 1, 2000, to maintain seven investment funds, but the Nabisco funds were not among those listed. The November amendment also deleted the clause that had designated the Nabisco funds as frozen. In addition, the November amendment provided that all funds "under the Plan are active Funds," and "the Trustee shall maintain any other Investment Funds as are designated by the RJR Pension Investment Committee." J.A. 304. 15 A plain reading of the amendments reveals several points that are dispositive: (1) the trustee was required to maintain the Nabisco funds as frozen funds from June 14, 1999, through January 31, 2000; (2) as of February 1, 2000, the Nabisco funds were unfrozen, were not listed as investment options, and were no longer required to be maintained as investment funds under the Plan; and (3) other investment funds, in addition to those listed, could be designated by the investment committee on or after February 1, 2000. All of this means that the amendments did not strip the Plan fiduciaries of discretion to redesig-nate the Nabisco funds as investment options effective February 1, 2000. In other words, the amendments did not require the elimination of the Nabisco funds from the Plan, nor did they require the sale of the Nabisco stocks. 16 In sum, nothing in the language of the amendments prevents Tatum from stating a claim that the liquidation of the Nabisco funds in the Plan was a discretionary act subject to ERISA's fiduciary duty of prudence, see 29 U.S.C. § 1104(a)(1), and that the Plan fiduciaries violated the applicable standard of care in liquidating those funds. We therefore reverse the district court's order dismissing the amended complaint for failure to state a claim. The case is remanded for further proceedings. REVERSED AND REMANDED Notes: * In his amended complaint Tatum relies on the June 14, 1999, amendment to section 4.03 of the Tobacco Plan and a later, November 18, 1999, amendment to the same section. Although the texts of the amendments are not included in the amended complaint, they are in the joint appendix, and the parties agree to their authenticity. In these circumstances it is appropriate for us, in deciding whether dismissal of the complaint is proper, to refer to the actual language of the amendmentsSee Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir.1999).

455 F.Supp. 476 (1978) DOCTORS HOSPITAL OF SARASOTA, INC., a Florida Corporation, Plaintiff, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education & Welfare, and Blue Cross of Florida, Inc., a Florida Corporation, Defendants. No. 78-314 Civ. T-K. United States District Court, M. D. Florida, Tampa Division. August 21, 1978. *477 *478 R. S. Koss, Sarasota, Fla., for plaintiff. W. Christian Hoyer, Asst. U. S. Atty., Tampa, Fla., Carl H. Harper, Regional Atty., F. Richard Waitsman, Asst. Reg. Atty., Dept. of HEW, Atlanta, Ga., for defendants. ORDER KRENTZMAN, District Judge. This is a case arising under various information-disclosure statutes passed by Congress. A non-party state governmental organization —the Department of Health and Rehabilitative Services (HRS) — seeks to get information from the federal government that the latter uses to pay a group of doctors for performing Medicare services. The federal government in this case wishes to turn over the information to the State, but the group of doctors opposes disclosure of the information on grounds of various statutes enacted by Congress, and has filed for a preliminary injunction to prevent disclosure. The plaintiff herein is a group called Doctors' Hospital of Sarasota, Inc., a health care provider in the Medicare/Medicaid program. Doctors' Hospital treats patients in that program; the bills for such treatment are sent to an intermediary for the federal government, defendant Blue Cross of Florida, Inc. Blue Cross pays the bills on a monthly basis, subject to later adjustment by the federal defendant, Joseph A. Califano, Jr., Secretary of Health, Education, and Welfare. Plaintiff sends the information at issue in this case to the Secretary to enable his staff to decide whether the monthly payments made by the intermediary, defendant Blue Cross, were properly made. The information used by the HEW staff in making such determinations is that same information that is the subject of this suit. Plaintiff has asked the Court for a preliminary injunction, the granting of which depends on plaintiff's ability to persuade the Court of the presence of four factors: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant[s], and (4) that granting the preliminary injunction will not disserve the public interest. Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). The preliminary injunction has been characterized as an "extraordinary and drastic remedy," one "which should not be granted unless the movant clearly carries the burden of persuasion." Id. at 573. The initial question, then, is the likelihood of plaintiff prevailing on the merits. To discuss this, the Court must turn to an examination of the authority in statute and regulation for the actions taken here and the rights proposed to be asserted. The federal defendant proposes to release the information requested under the authority of an HEW regulation, 20 C.F.R. Sec. 422.435: The following shall be made available to the public under the conditions specified: . . . . . (c) Upon request in writing, cost reports submitted by providers of services pursuant to section 1815 of the Act to enable the Secretary to determine amounts due such providers. Plaintiff argues that the promulgation of such regulation was an abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A): . . . The reviewing court shall — . . . . . *479 (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . .. The abuse of discretion, according to plaintiff, lies in allowing by regulation the release of information in contravention of the mandate of 18 U.S.C. § 1905, which is a criminal statute forbidding the disclosure by any government employee . . . to any extent not authorized by law any information coming to him in the course of his employment or official duties . . . or [any] report or record made to or filed with, such department . . . which information concerns or relates to the trade secrets, . . operations, . . . or . . . confidential statistical data, amount or source of any income, profits, losses, or expenditures of any . . . corporation . .. Also at issue here is the Freedom of Information Act (FOIA), which sets forth provisions for the disclosure of information by the federal government. In general, the FOIA requires disclosure of information held by the government, and requires all agencies to set up orderly procedures therefor. 5 U.S.C. § 552(a). Then it exempts certain matters entirely from its operation: This section does not apply to matters that are — . . . . . (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential. 5 U.S.C. § 552(b)(4). This is commonly referred to as the "b(4) exemption." The initial question would be whether any of these statutes accord plaintiff here a right to relief. It seems clear that in the Fifth Circuit some right accrues to persons who provide such information as is defined in 5 U.S.C. § 552(b)(4). Pennzoil Co. v. Federal Power Commission, 534 F.2d 627, 632 (5th Cir. 1976). Accordingly, the Court must proceed to examine the relationship among the authorities contained in statute and regulation, supra. First of all, it is clear that the FOIA does not prohibit disclosure of the information. It is a commonplace that the FOIA forbids no disclosure by the government. Pennzoil v. Federal Power Commission, supra. Rather, it is structured to compel disclosure under certain circumstances. Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976). The provision for compelled disclosure "does not apply" to the types of material exempted, 5 U.S.C. § 552(b); obviously, no mandate of nondisclosure is present therein. To the extent that the Fifth Circuit indicated otherwise in Continental Oil v. Federal Power Commission, 519 F.2d 31, 35 (5th Cir. 1975), cert. denied sub. nom. Superior Oil Co. v. Federal Power Commission, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 794 (1976), that holding was modified by the Supreme Court's decision in Department of the Air Force v. Rose, supra, and the Fifth Circuit's subsequent decision in Pennzoil v. Federal Power Commission, supra. Any doubt as to this is dispelled by the Fifth Circuit's language in Superior Oil Co. v. Federal Energy Regulatory Commission, 563 F.2d 191, 203-04 (5th Cir. 1977). The inquiry would then turn to other authority that would allow the release of the information. 20 C.F.R. Sec. 422. 435(c), quoted supra, clearly authorizes the release of cost reports. The issuance of the regulation would appear to be authorized ab initio by 42 U.S.C. § 1306, which provides that no disclosure of HEW files or information may be made "except as the Secretary of Health, Education, and Welfare . . may by regulations prescribe." The federal defendant's promulgation of this regulation is not challenged by plaintiff except insofar as it is alleged to conflict with controlling substantive law contained in the FOIA, HEW regulations, and 18 U.S.C. § 1905. The Court first turns to the conflict that is alleged to exist with the FOIA, specifically the b(4) exemption. The Fifth Circuit has had occasion to consider the *480 validity of regulations requiring the disclosure of information falling within the b(4) exemption. In Pennzoil v. Federal Power Commission, supra, the Circuit held that, while the FOIA forbids no disclosure, nonetheless the . . . FOIA is not irrelevant in determining whether information encompassed in its exclusions should be disclosed. In reviewing the agency's exercise of discretion concerning the release of such information, this court must be cognizant of the fact that Congress in drafting a broad disclosure statute found sufficient justification for withholding this type of information from public perusal. 534 F.2d at 630.[1] Ultimately in Pennzoil the Circuit held that the agency's failure to fully consider the factors relevant to the congressional purpose in enacting the b(4) exemption warranted a remand to consider the relevant factors. Id. at 632. The factors to be considered were: (1) whether disclosure would significantly aid the agency in performing its functions; (2) the harm to the producers and to the public generally; and (3) whether alternatives to full disclosure could serve the public interest equally. Id. There is a significant difference between the Pennzoil case and the case at bar. In Pennzoil, the agency had merely indicated that it was cognizant that its disclosure order might cause harm, but that the public interest outweighed the harm; the Circuit held that this brief statement is inadequate as an articulation of a finding that disclosure of this information serves a legitimate regulatory function. Id. By contrast, the federal defendant here encloses as "Exhibit B" a four page Memorandum of Record which sets forth the agency's reasons for allowing public access to the cost reports.[2] The Court is of the opinion that the Memorandum of Decision fully satisfies the requirements set forth in Pennzoil. The aid to the agency in performing its functions is clearly set forth where the agency finds that disclosure will assure the public of the proper expenditure of public funds, the quality of services provided, and the financial commitment and financial stability of providers. The harm to the providers is also considered; the agency found that the providers do not compete in the market place in the manner of other portions of the economy, and that the injury claimed is highly speculative.[3] The Memorandum of Decision does not directly address the question whether alternatives to full disclosure could serve the public interest equally, but the information that plaintiff identifies in its complaint as being "secret and confidential" — capital expenditures, relationship with co-owned organizations, revenues and operating expenses — is precisely that kind of information the agency found would benefit the public in determining the propriety of government expenditures and the commitment of providers to the program. Even if the Pennzoil criteria had not been met in this case, the Court would hesitate to find that an abuse of discretion had been committed by the federal defendant here. Pennzoil requires that a balance be struck between the public and private interests, *481 broadly viewed. In the context of a government-regulated industry, to require detailed agency findings is reasonable when the extraction of information is required; after all, the industry itself is not expected necessarily, and does not usually claim, to receive benefits from the government's supervision. In that context, the FOIA is an expression of congressional concern over the kinds of information the extraction and publication of which, in the view of Congress, might cause damage to an industry whose competitiveness and efficiency are to be assisted by regulation. See Pennzoil at 630-31. In the HEW context, the providers form a government-supported industry which receives substantial benefits from a government program; in order to receive such benefits, they must submit certain information necessary for orderly administration and efficient expenditure of public funds. No information is extracted from the providers. No statute or regulation compels, so far as the Court is aware, physicians to form into groups and claim government benefits. The regulations imposed herein are those of the voluntarily regulated and the information disclosed is freely disclosed. To burden HEW by requiring additional findings, simply to release this information which has been freely disclosed, would require a strained reading of the FOIA's liberal disclosure rules. For the reasons given supra, the Court finds that the disclosure regulation is not invalid by reason of the b(4) exemption standing alone, and therefore its promulgation cannot be considered an abuse of discretion simply because it falls within a category not covered by the FOIA. For this reason, the HEW regulations cited by plaintiff (e. g. 20 C.F.R. Sec. 422.401) that make HEW disclosure policy subject to the terms of the FOIA would likewise not operate to prohibit disclosure. The Court now turns to the question whether the disclosure regulation is an abuse of agency discretion because of a conflict with 18 U.S.C. § 1905. The statute, quoted more fully supra, forbids the disclosure of confidential statistical data, amount or source of any income, profits, losses, or expenditures of any . . . corporation . . . but only to the extent that such disclosure is "not authorized by law." As noted supra, plaintiff does not allege that the HEW was without power to issue the disclosure regulation, except insofar as such regulation conflicts with other controlling substantive law. Since the Court has found that the FOIA does not prohibit disclosure, and that regulations allowing the disclosure of material exempted by the FOIA are not for that reason invalid, it would appear from a simple reading of the statute that disclosure of information under a validly issued regulation is "authorized by law" for the purposes of 18 U.S.C. § 1905. The Court so holds. Westinghouse Elec. Corp. v. Nuclear Regulatory Commission, 555 F.2d 82, 94 (3d Cir. 1977). Unfortunately, the Court's inquiry does not end there. Although the Fifth Circuit has never considered the applicability of the FOIA in the context of 18 U.S.C. § 1905, several courts have held that materials exempt from required disclosure under the FOIA are exactly such materials disclosure of which is not authorized by law within the meaning of 18 U.S.C. § 1905. Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976), cert. denied sub nom. Brown v. Westinghouse Elec. Corp., 431 U.S. 924, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977); Westchester General Hospital, Inc. v. Dep't of Health, Education and Welfare, 434 F.Supp. 435 (M.D.Fla.1977); Parkridge Hospital, Inc. v. Blue Cross and Blue Shield, 430 F.Supp. 1093 (E.D.Tenn.1977); McCoy v. Weinberger, 386 F.Supp. 504 (W.D.Ky. 1974). Other circuits have held, to the contrary, that information disclosure pursuant to a validly enacted agency regulation is authorized by law for the purposes of 18 U.S.C. § 1905. General Dynamics Corp. v. Marshall, 572 F.2d 1211, 1217 (8th Cir. 1978); Chrysler Corp. v. Schlesinger, 565 F.2d 1172, 1186-88 (3d Cir. 1977); cert. granted 435 U.S. 914, 98 S.Ct. 1466, 55 *482 L.Ed.2d 504 (1978); Westinghouse Elec. Corp. v. U. S. Nuclear Regulatory Commission, supra. See Sears, Roebuck & Co. v. General Services Administration, 180 U.S. App.D.C. 202, 207-209, 553 F.2d 1378, 1383-85 (1977). Absent controlling precedent from the Fifth Circuit or the Supreme Court, this Court finds the latter authorities persuasive and more consonant with public policy as enacted by Congress in FOIA. In any event, where Congress has legislated authorization for an agency to disclose information generally, 42 U.S.C. § 1306, has considered the kind of information at issue here and refused to require the withholding of same, 5 U.S.C. § 552(b)(4), it would be anomalous for the Court to find that the disclosure of such information was not "authorized by law." For the reasons stated supra, plaintiff does not carry its burden of persuading the Court that there exists a substantial likelihood that it will prevail on the merits. Therefore, the Court need not consider whether plaintiff could have met the requirements of Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974), with respect to the other prerequisites for preliminary injunction. In accordance herewith, the Court is of the opinion that plaintiff's motion for preliminary injunction should be, and it is hereby, DENIED. Defendant Califano has moved for summary judgment. Although the Court's decision herein would appear to resolve the issues in defendant's favor in a manner that would indicate that there are no contested issues of material fact, the Court shall withhold ruling on the motion for a period of ten days to allow the plaintiff to respond to the motion. This is not intended, however, to require defendants to withhold the requested information during the intervening time. The Clerk is directed to return the submitted in camera material to defendant Blue Cross. NOTES [1] See Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976); but see Chrysler Corp. v. Schlesinger, 565 F.2d 1172, 1184-86 (3d Cir. 1977), cert. granted 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978). [2] The promulgation of the regulation is not challenged by plaintiff except insofar as it is claimed to be inconsistent with substantive controlling law. Since no challenge is made to the applicability of the Memorandum of Record, the Court accepts it as a proper statement of the agency's reasons for promulgating the challenged regulation. [3] There is no reason for the agency to have considered the potential harm to the public in this instance. That particular requirement is mentioned in the Pennzoil case because of an earlier finding the agency had made regarding the potential harm to the public in disclosure of certain information regarding gas reserves. In any event, the finding regarding the public's interest in the proper expenditure of funds indicates that the public's interest was considered.

COURT OF CHANCERY OF THE STATE OF DELAWARE SAM GLASSCOCK lll VICE CHANCELLOR 34 THE CIRCLE GEORGETOWN, DELAWARE 19947 Date Submitted: June 9, 2015 Date Decided: June 11, 2015 Richard L. Abbott, Esquire Abbott Law Firm LLC 724 Yorklyn Road, Suite 240 Hockessin, DE 19707 David J. Weidman, Esquire Sergovic, Carmean &Weidman, PA. 142 East Market Street Georgetown, DE 19947 RefEi Seabreeze Homeowners Association, Inc. v. Marshall Jenney, et a]. Civil Action No. 863 5-VCG Dear Counsel: In 2011, the homeowners’ association of Seabreeze subdivision sued the Respondent, Marshall Jenney, in an attempt to force him to remove vegetation which it asserted was growing in violation of deed restrictions on the Jenney property. The property consists of two lots, a bay-front parcel and the adjacent inland parcel in a subdivision, Seabreeze, fronting Rehoboth Bay near Dewey Beach. Jenney settled that litigation on December 21, 2012 by agreeing contractually to trim the foliage on his properties (the “Settlement Agreement”), but, allegedly, Jenney failed to comply with the Settlement Agreement. On June COURT OF CHANCERY COURTHOUSE 11, 2013, the Petitioner, Seabreeze Homeowners Association, Inc.] (the “Homeowners”) filed this action to specifically enforce the Settlement Agreement»; This enforcement action, in turn, was settled by Jenney’s entry into a consent stipulation that was entered as an Order of the Court on July 11, 2014 (“Stipulation and Order”), again requiring Jenney to trim his foliage, with the work to be completed by October 31, 2014. Since that time, this litigation has involved an ongoing effort by the Petitioner to enforce the terms of that Stipulation and Order. Remaining at issue is the trimming of foliage on the bay-front parcel. Notwithstanding the rather limited nature of this case, it has become the most actively litigated on my docket. Currently before me is a request by Jenney and his wife, Erin C. Jenney, recently added as a party respondent, for a stay of my June 1, 2015 Order directing that the Respondents comply with the Stipulation and Order by trimming the foliage in question by June 30, 2015. This Order implemented rulings made on May 21, 2015, following a site visit with a court reporter and arborist, at which the parties agreed on the extent of the trimming necessary to comply with the 1 According to the Respondents, this entity is not the same homeowners’ association that brought the initial action. Stipulation and Order. The stay is sought in light of an appeal of various Court orders in this matter to our Supreme Court.2 Both parties rely on the four factor test for consideration of such a stay set out in D.F. Rich Company v. Gray.3 Those factors are (1) the perceived likelihood of success on appeal, (2) whether the movant faces irreparable harm absent a stay, (3) the harm to other interested parties should the stay be granted, and (4) whether the stay is in the public interest. I evaluate this matter under those factors as follows. I first consider the likelihood of success on appeal. The issues presented on appeal are difficult to glean from the Notice of Appeal filed by the Respondents. As I understand the appeal, it appears that only the Jenneys’ argument that I improperly denied a Rule 60 Motion to Vacate has any bearing on the action this Court has directed the Respondents to take by June 30, 2015: the trimming of the foliage.4 The Motion to Vacate involved whether the Stipulation and Order, entered by Mr. Jenney with the advice of counsel, is enforceable; the Jenneys _=.='T~ '—. 2 The addition of Mrs. Jenney as a party respondent is one of my Orders currently on appeal. That Order was the result of an attempt by J enney to avoid the foliage trimming called for in the Stipulation and Order by a sham transfer of the property in question to Mrs. J enney, his wife. 3 2006 WL 3872830 (Del. Ch. Dec. 15, 2006). 4 As noted, one of the Orders on appeal involves my grant of the Homeowners’ motion to join Mrs. Jenney. That Order was entered after Mr. Jenney undertook a transfer of the properties in question to Mrs. Jenney in an attempt to avoid the Stipulation and Order. She is now a record owner of the property that the Homeowners seek to have trimmed in vindication of the Settlement Agreement and the Stipulation and Order. I find it unlikely that the appeal of that Order bears on the trimming work to be completed by June 30, but, in any event, it is unclear to me on what grounds the joinder of Mrs. Jenney could be found improper under Court of Chancery Rule 19, and this issue, in my view, is unlikely to find success on appeal. contend, on various grounds, that it is not. This argument, in my estimation, is unlikely to be successful on appeal. Jenney’s primary argument is that he would have prevailed on the merits of the Homeowners’ deed restriction and specific performance claims, but instead agreed to an unfavorable settlement on the incompetent advice of counsel. If true, this may give rise to a malpractice claim, but is insufficient grounds to set aside a court order based on a stipulation in vindication of a contractual obligation. He also pointed out that the Settlement Agreement lists the former name of the homeowners association for Seabreeze, while this action is brought under the current name; J enney argues that this makes the attempt to enforce the Settlement Agreement by the Homeowners fraudulent. I find that contention unlikely to prevail on appeal as well. Next I turn to the second and third factors, the relative harms involved in either issuing, or declining to issue, a stay. If my refusal to vacate is reversed on appeal after the Jenneys have complied with my order directing specific performance by June 30, the Jenneys will have needlessly trimmed their foliage;- This involves some quantum of threatened irreparable harm. On the other hand, a stay—improvidently granted—would frustrate the exercise of their property rights by the other property owners in the Seabreeze subdivision, also involving some quantum of irreparable harm. Neither the Petitioner nor the Respondents will suffer overwhelming harm, in either case. Finally, threatened harm to the public is nil. In sum, I am left with an unlikely appeal and offsetting, and minimally substantial, competing harms. Under these circumstances, the exercise of my discretion in favor of a stay is not warranted. I note that the Homeowners have been attempting for over seven months to enforce the Stipulation and Order for trimming trees and bushes which, by its terms, was to be completed by October 31, 2014. Accordingly, the Respondents’ request for a stay is DENIED. To the extent the foregoing requires an order to take effect, IT IS SO ORDERED. I next turn to the fees and costs incurred by the Homeowners in responding to the sham transfer of the property, which I found a vexatious litigation tactic. I shifted attorney fees under the vexatious litigation exception to the American rule on attorney fees, under which each party bears its own fees, win or lose. I directed the attorney for the Homeowners to file an affidavit of fees and costs incurred solely in response to the sham transaction, including bringing a rule to show cause for contempt,5 and I gave the Respondents the opportunity to oppose the amount of fees sought. In objection, the Respondents took issue with the characterization of the transfer to Mrs. J enney by the Homeowners as a “fraudulent transfer,” asserting that “no one has yet to produce one shred of legal authority supporting the 5 See Oral Arg. Tr. (May 21, 2015) 27116—2825,, proposition that a transfer of real property from a husband to his wife in order to end the harassing and seemingly never-ending acts by the Petitioner was anything other than legal and permissible,” and argued that because Mrs. Jenney was added as a party respondent, the motion for contempt related to that transfer was moot and thus, any fees awarded should exclude time spent on that motion.6 I found, however, that the transfer itself was a vexatious litigation tactic and was a contemptuous attempt to avoid enforcement of the Stipulation and Consent Order; whether or not the effects of the transfer have been minimized by my finding that _ Mrs. Jenney should be joined to this action is irrelevant to that finding. In other words, the response to the fee affidavit was an attempt to reargue my decision to shift a limited amount of fees, and not, as I had directed, an objection to the quantum of fees requested by the Homeowners. I find that the Petitioner’s requested fees are reasonable and comply with my Order on May 21, 2015. This letter is accompanied by a form of order directing Respondents to pay the Petitioner’s fees and costs in the amount of $3,750.00. Sincerely, /s/ Sam Glasscock 111 Sam Glasscock III ==__'x-. 6 Respjts’ Resp. to Pet’r’s Aff. for Att’y’s Fees at IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE SEABREEZE HOMEOWNERS ) ASSOCIATION, INC., ) Petitioner, 3 Va. 3 CA. No. 8635-VCG MARSHALL JENNEY, 3 Respondent. 3 ORDER“. AND NOW, this 11th day of June, 2015, The Court having considered the Petitioner’s Affidavit for Attorney’s Fees and the June 9, 2015 response thereto, IT IS HEREBY ORDERED that Petitioner is awarded attorney’s fees in the amount of $3,750.00 for work performed by Petitioner’s counsel relating to the Respondent’s conveyance of properties located at 317 Salisbury Street and 318 Salisbury Street in Rehoboth Beach, Delaware, SO ORDERED: 48/ SEWQLSQAAA; Vice Chancellor

256 P.3d 379 (2011) 162 Wn. App. 678 STATE of Washington, Appellant, v. Noel GARCIA, Respondent. No. 28843-9-III. Court of Appeals of Washington, Division 3. May 10, 2011. Publication Ordered July 28, 2011. *380 James Patrick Hagarty, Kevin Gregory Eilmes, Prosecuting Attorney's Office, Yakima, WA, for Appellant. Janet G. Gemberling, Gemberling & Dooris PS, Spokane, WA, for Respondent. KULIK, C.J. ¶ 1 The State appeals the decision of the trial court to sentence Noel Garcia to an exceptional sentence below the standard sentence range. The State alleges that the mitigating factors found by the trial court in Mr. Garcia's sentencing were not substantial and compelling and that the sentence was too lenient and, therefore, improper under RCW 9.94A.585(4)(b). We disagree and, therefore, affirm the exceptional sentence. FACTS ¶ 2 In 2005, Noel Garcia was convicted in Franklin County of third degree rape of a child. As a transient and a convicted sex offender, Mr. Garcia was required under RCW 9A.44.130 to register with the Yakima County Sheriff's Office (YCSO) and report to the YCSO every seven days. Mr. Garcia had to travel to the YCSO in Yakima to fulfill his reporting duties because a fire had destroyed the closest sheriff's office to Mr. Garcia's place of residence in Sunnyside, Washington. Mr. Garcia had no car and relied on others to get to Yakima every week to meet his reporting obligations. ¶ 3 On July 7, 2009, Mr. Garcia was required to report to the YCSO to fulfill his reporting duties. He intended to check in at the YCSO and then turn himself in to the Department of Corrections (DOC) for an outstanding *381 bench warrant. Mr. Garcia had arranged for his friend, Angie Jenson, to drive him from Sunnyside to Yakima on July 7. Mr. Garcia expected Ms. Jenson to meet him after work at 4:00 p.m. to drive him to Yakima. But Ms. Jenson did not pick up Mr. Garcia until 4:50 p.m. ¶ 4 Mr. Garcia contacted YCSO official Sandee Deel at 4:50 p.m. and told her that he would be unable to check in at the YCSO and would instead turn himself in to the DOC at the Yakima County Jail. Ms. Deel was aware of Mr. Garcia's intentions to turn himself in to the DOC because she was notified of his intentions earlier that day. Mr. Garcia asked Ms. Deel in his 4:50 p.m. telephone call whether there would be a warrant for his arrest if he failed to report to the YCSO on July 7 due to his incarceration at the Yakima County Jail. Ms. Deel notified him that if he was incarcerated, it would be a valid reason for failing to report, and he would not be in violation of his reporting duties because his location would be known. After her conversation with Mr. Garcia, Ms. Deel faxed a copy of Mr. Garcia's DOC warrant to the Yakima County Jail and contacted the jail sergeant's desk to inform them that Mr. Garcia would be arriving at the jail that evening. ¶ 5 Mr. Garcia arrived at the Yakima County Jail around 5:30 p.m. Upon arrival, jail officials told Mr. Garcia that he would not be permitted to turn himself in for the DOC warrant because it was after 5:00 p.m. Mr. Garcia was further told that even if jail officials had the DOC warrant, he could only be admitted to the jail if an officer brought him in. ¶ 6 Mr. Garcia did not report to the YCSO nor was he admitted to the Yakima County Jail on July 7, 2009. On August 10, 2009, the State charged Mr. Garcia with failing to register as a sex offender under RCW 9A.44.130. Mr. Garcia was convicted in a bench trial and sentenced to a 364-day exceptional sentence. The standard range for Mr. Garcia's offense was 33 to 43 months. The trial court justified imposing the exceptional sentence based upon Mr. Garcia's transportation difficulties, attempts to comply with his reporting obligations as evidenced through his telephone calls to the YCSO and reporting to the Yakima County Jail, his obligation to register with two different government agencies located 40 miles apart, and the de minimis nature of his violation. The State appealed. ANALYSIS ¶ 7 Conclusions of law are reviewed de novo. State v. Ferguson, 142 Wash.2d 631, 646, 15 P.3d 1271 (2001); State v. Law, 154 Wash.2d 85, 93, 110 P.3d 717 (2005) (quoting State v. Ha'mim, 132 Wash.2d 834, 840, 940 P.2d 633 (1997)). ¶ 8 A court's justification for a sentence above or below the standard sentence range requires finding that mitigating circumstances are "substantial and compelling" as a matter of law. State v. Moore, 73 Wash.App. 789, 795, 871 P.2d 642 (1994). To find mitigating factors substantial and compelling, it must be shown that (1) the trial court did not base an exceptional sentence on mitigating factors necessarily considered by the legislature in establishing the standard sentence range, and (2) the mitigating factors are sufficiently substantial and compelling to distinguish the instant crime from others in the same category. Law, 154 Wash.2d at 95, 110 P.3d 717 (quoting Ha'mim, 132 Wash.2d at 840, 940 P.2d 633). ¶ 9 Legislative Consideration of Trial Court's Mitigating Factors. Whether the legislature considered the mitigating factors used by the trial court requires an evaluation of the trial court's mitigating factors in relation to the purpose behind the Sentencing Reform Act of 1981, chapter 9.94A RCW. State v. Pascal, 108 Wash.2d 125, 137-38, 736 P.2d 1065 (1987); State v. Freitag, 127 Wash.2d 141, 144-45, 896 P.2d 1254 (1995). The legislature identifies seven purposes for determining standard range sentences. These include: (1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history; (2) Promote respect for the law by providing punishment which is just; *382 (3) Be commensurate with the punishment imposed on others committing similar offenses; (4) Protect the public; (5) Offer the offender an opportunity to improve himself or herself; (6) Make frugal use of the state's and local governments' resources; and (7) Reduce the risk of reoffending by offenders in the community. RCW 9.94A.010. ¶ 10 There are no Washington cases that evaluate similar mitigating factors used by the trial court here in determining violations under RCW 9A.44.130. Courts have rejected sentences outside the standard sentence range when the mitigating factors were the particular purposes listed by the legislature in RCW 9.94A.010 or were drug and alcohol related factors. See Freitag, 127 Wash.2d at 143-45, 896 P.2d 1254 (rejecting a defendant's opportunity to improve herself through community service and absence of criminal history as mitigating factors); State v. Armstrong, 106 Wash.2d 547, 551, 723 P.2d 1111 (1986) (rejecting criminal history as a mitigating factor); State v. Alexander, 125 Wash.2d 717, 730, 888 P.2d 1169 (1995) (rejecting peripheral participation in a drug business as a mitigating factor); State v. Gaines, 122 Wash.2d 502, 511-12, 859 P.2d 36 (1993) (rejecting drug addiction as a mitigating factor); State v. Allert, 117 Wash.2d 156, 164, 169, 815 P.2d 752 (1991) (rejecting alcoholism and absence of future dangerousness as mitigating factors). ¶ 11 In contrast, courts have found only a small number of mitigating factors outside the legislative purposes listed in RCW 9.94A.010, including instances of assistance and cooperation with the state authorities, de minimis drug possession, and factors related to domestic abuse. See State v. Nelson, 108 Wash.2d 491, 500-01, 740 P.2d 835 (1987) (cooperation and assistance with State authorities is a valid mitigating factor); Alexander, 125 Wash.2d at 726-28, 888 P.2d 1169 (possession of an extraordinarily small amount of a controlled substance is a valid mitigating factor); Pascal, 108 Wash.2d at 136, 736 P.2d 1065 (the fact that the victim was the initiator, duress, and the battered woman syndrome in a wife's killing of her husband are appropriate mitigating factors). ¶ 12 Here, Mr. Garcia's transportation difficulties and attempts to comply with his reporting duties do not relate to the purposes listed under RCW 9.94A.010. These factors instead relate to Mr. Garcia's ability to perform his required reporting duties and whether there were external forces hindering his ability to do so. Conversely, the court's mitigating factors are not rationales to allow Mr. Garcia to improve himself, that protect the public, or that reduce state costs. ¶ 13 Only one of the trial court's mitigating factors, the de minimis nature of Mr. Garcia's violation of RCW 9.94A.010, is invalid to support an exceptional sentence. Prior courts have held that exceptional sentences based upon the size of the violation is an evaluation of proportional seriousness, a factor that the legislature has already taken into consideration. State v. Fowler, 145 Wash.2d 400, 405, 38 P.3d 335 (2002). However, the courts have not rejected a trial court's exceptional sentence due to the use of a single, invalid mitigating factor if there are other valid mitigating factors provided. Pascal, 108 Wash.2d at 138, 736 P.2d 1065. Due to the presence of the trial court's other, valid mitigating factors, Mr. Garcia's transportation difficulties, and attempts to comply with his reporting requirements, we conclude that the trial court did not improperly rely upon factors envisioned by the legislature when it established standard sentence ranges. ¶ 14 Distinguishable Crimes from Those in the Same Category. Mr. Garcia's crime is distinguishable from other crimes under RCW 9A.44.130 because the trial court's mitigating factors are factors related to the elements of the crime, and Mr. Garcia's violation of RCW 9A.44.130 did not relate to a failure to disclose his residence or whether local authorities were aware of his presence in their jurisdiction. ¶ 15 Mitigating factors for exceptional sentences must relate to the elements of the crime or the defendant's previous record. Law, 154 Wash.2d at 97, 110 P.3d 717. In *383 applying this standard, courts have rejected personal characteristics and conditions, such as a defendant's drug use and family support, as valid mitigating factors relating to elements of a crime. See Gaines, 122 Wash.2d at 509, 859 P.2d 36. ¶ 16 In contrast, courts have accepted mitigating factors relating to the particular elements of a defendant's crime only in particular crime-specific cases. See Alexander, 125 Wash.2d at 729, 888 P.2d 1169. ¶ 17 The mitigating factors used by the trial court to impose Mr. Garcia's exceptional sentence are elements related to the crime because they relate to Mr. Garcia's ability to perform his obligated reporting duties. The trial court held that Mr. Garcia's transportation difficulties and efforts to comply with registration through contacting the YCSO and attempting to obtain admittance to the Yakima County Jail were factors that justified his exceptional sentence. Neither of these factors relates to Mr. Garcia's personal conditions, such as his family situation or drug dependencies. Instead, they are specifically focused on the elements of the crime under RCW 9A.44.130; namely, Mr. Garcia's ability to report to the YCSO and Yakima County Jail. Accordingly, they are legitimate factors to support the exceptional sentence. ¶ 18 The mitigating factors also distinguish his crime from other crimes normally included under RCW 9A.44.130. The factors did not include rationales based on Mr. Garcia's failure to disclose his residence or whether local authorities were aware of his presence in their jurisdiction. The legislative history of RCW 9A.44.130 shows that the statute was intended to ensure that convicted sex offenders have an affirmative duty to report and register their residence to the appropriate county sheriff regardless of their living situation. LAWS OF 1999, 1st Spec. Sess., ch. 6, § 1. Further, the legislature established the reporting requirements with the intent of ensuring that local authorities have valid information about sex offenders in their jurisdiction. LAWS OF 1990, ch. 3, § 401. This legislative history shows that RCW 9A.44.130 was intended to address two issues: the location of convicted sex offenders and the availability of such information to local authorities. Neither of these issues of legislative intent is included in the factors at issue here. Instead, the factors relate to Mr. Garcia's ability to register in person, not whether he was able to disclose the location of his residence or if local authorities were aware of his presence in their jurisdiction. These different rationales make Mr. Garcia's crime distinguishable. ¶ 19 The trial court's sentence for Mr. Garcia is based on mitigating factors that are substantial and compelling. ¶ 20 Lenient Sentence. The standard of review for an excessively lenient sentence is an abuse of discretion review. Ha'mim, 132 Wash.2d at 840, 940 P.2d 633; State v. Branch, 129 Wash.2d 635, 645-46, 919 P.2d 1228 (1996); Allert, 117 Wash.2d at 163, 815 P.2d 752. ¶ 21 A sentence is too lenient if it is one that no reasonable court would impose. Alexander, 125 Wash.2d at 731, 888 P.2d 1169. Courts have found an abuse of discretion under RCW 9.94A.585(4)(b) when a trial court used mitigating factors to justify a sentence below the standard sentence range that cannot be equally applied to all potential defendants. See Freitag, 127 Wash.2d at 143-45, 896 P.2d 1254. ¶ 22 In contrast, courts have found multiple mitigating factors reasonable and not an abuse of discretion, including cooperation and assistance with the State, de minimis drug infractions, and conditions related to domestic abuse. See Nelson, 108 Wash.2d at 500-01, 505, 740 P.2d 835; Alexander, 125 Wash.2d at 732-33, 888 P.2d 1169; Pascal, 108 Wash.2d at 138-39, 736 P.2d 1065. ¶ 23 The mitigating factors used by the trial court in Mr. Garcia's sentencing were reasonable and do not constitute an abuse of discretion because the factors do not violate equal application principles under RCW 9.94A.340, and they show Mr. Garcia attempted to cooperate and assist State authorities. Unlike Freitag, the mitigating factors established by the trial court in Mr. Garcia's sentencing relate to his actions in attempting to comply with his statutory reporting requirements. Transportation and *384 reporting considerations related to a sex offender's ability to comply with his reporting duties are likely applicable to all persons who have violated RCW 9A.44.130. Further, the trial court used Mr. Garcia's attempts at reporting as evidence of a willingness to work with State authorities. This is similar to Nelson where the defendant attempted to aid State authorities. Nelson, 108 Wash.2d at 500-01, 740 P.2d 835. ¶ 24 We conclude that the trial court's imposition of an exceptional sentence was not too lenient under RCW 9.94A.585(4)(b). We affirm the trial court's sentencing. WE CONCUR: BROWN and SIDDOWAY, JJ.

Filed 11/7/13 P. v. Green CA5 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 FIFTH APPELLATE DISTRICT THE PEOPLE, F064805 Plaintiff and Respondent, (Super. Ct. No. F11901431) v. WILLIAM RAY GREEN III, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge. Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-  On March 21, 2012, a jury convicted defendant and appellant William Ray Green III of six counts of committing a lewd act upon Desiree S.,1 a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1-6), and three counts of molesting Ann A., a child under the age of 18 years (Pen. Code, § 647.6, subd. (a); counts 7-9). On appeal, defendant argues that the trial court erroneously admitted extrajudicial statements under the fresh complaint doctrine or, if properly admitted, failed to give adequate limiting instructions. He also claims ineffective assistance of counsel. We affirm. STATEMENT OF FACTS I. Prosecution Evidence a. Desiree S. In January 2010, Desiree, then 13 years old, and her younger brother were placed as foster children in defendant’s home. At that time, defendant also lived with his wife, two biological children, and two other foster children. During Desiree’s stay, three more foster children, including Ann, were placed under defendant’s care. In March 2010, defendant entered Desiree’s bedroom and offered to massage her legs. After she accepted his offer, he initially massaged her feet, calves, and thighs and then inserted his fingers into her vagina. When defendant asked Desiree if she felt uncomfortable, she did not answer. A couple of days later, Desiree was walking toward the stairs when defendant grabbed her and led her to the couch. He positioned himself behind her body, removed their clothes, and inserted his penis into her anus. Defendant told Desiree that she was no longer a virgin and ejaculated into a towel. Following this incident, Desiree began to cut herself because she believed that she was at fault. She did 1 We refer to certain persons by their abbreviated names in accordance with our Supreme Court’s policy regarding protective nondisclosure of identity. No disrespect is intended. 2. not report what happened because “no one would believe [her]” and she feared that she would be separated from her brother. Desiree specified four other incidents. First, Desiree was lying in her bed when defendant entered her room, mounted her, removed their shorts, and rubbed his penis against her vagina. He told her that he would not insert his penis “all the way in” and then inserted his penis into her vagina.2 Second, Desiree and defendant were conversing in Desiree’s bedroom when he kissed her, removed her shorts, positioned her on her back, lifted her legs, and put his mouth on her vagina.3 Third, Desiree was cutting herself in the bathroom when she heard someone ascending the stairs. After she quickly washed off the blood, defendant entered the bathroom, kissed her, pulled down her shirt and bra, and put his mouth on her breasts. Finally, in or around June 2010, defendant called Desiree into his bedroom, kissed her, pulled down her shorts, positioned himself behind her body, and inserted his penis into her anus. In July 2010, Desiree and the other children were removed from defendant’s home after Ann reported a separate incident to a social worker. (At p. 5, post.) Starting in September 2010, Desiree lived with her aunt, Nora S. One time, after Desiree started living with Nora, defendant picked her up and took her to his father’s house. In one of the rooms, he “tried to get on top of [her.]” When Desiree told defendant to stop, he asked her if she had a boyfriend. She answered, “No.” Defendant then returned to Nora’s house. He subsequently sent Desiree text messages containing Bible verses about forgiveness. 2 Desiree testified that she and defendant engaged in vaginal intercourse approximately 15 times. 3 Desiree testified that defendant put his mouth on her vagina on two or three occasions. 3.  In March 2011, Emily I., Desiree’s best friend, observed cut marks on Desiree’s left forearm and asked her about them. In a text message, Desiree revealed that she “had been in foster care” and “was raped by [her] foster dad.” Emily urged her to notify the police or an adult. On the same day, Desiree told Nora that defendant raped her. Nora subsequently called the police. Under the direction of Detective Jose Jauregui, a member of the Fresno Police Department’s Sexual Assault Unit, Desiree made a recorded pretext call to defendant. At the beginning of the conversation, Desiree spoke to defendant about the “first time [he] touched [her].” He commented that he “screwed up,” “it should have never went there,” and he loved her. Defendant asked Desiree if he forced himself on her. She answered, “Yes.” Next, Desiree asked defendant to explain why he inserted his fingers into her vagina. He stated that “people find [her] very attractive.” Defendant then questioned whether Nora was aware of what happened. Desiree replied that she “was thinking about telling [Nora]” and pointed out that she “started cutting [her]self” because she did not have anyone in whom to confide. Defendant implored her not to report him because he would “lose everything.” Desiree accused him of “trying to satisfy [him]self” when he “put[] it in [her] through the front and through [the] back ….” Defendant apologized, pled for forgiveness, and acknowledged that he “hurt [her]” and “betrayed [her] trust.” Lastly, Desiree told defendant that she thought he impregnated her “[t]he last time … right before [she] left.” He remarked that he “prayed that God … would stop it.” b. Ann A. In June 2010, Ann, then 16 years old, and her two younger sisters were placed as foster children in defendant’s home. At that time, defendant was no longer living with his wife and his biological children. On one occasion, as Ann was leaving the house to walk around the neighborhood, defendant stopped her by the front door, stood behind her, put his arms around her waistline, and touched her buttocks. She felt his penis against her body and “didn’t feel comfortable [with] the way he was holding [her].” 4.  In July 2010, Ann and Desiree were baking a cake for defendant’s birthday when defendant put frosting on their and the other children’s faces. He then chased Ann into the living room where he pinned her down on the couch, mounted her, and “rubbed the icing he had on his face onto [hers].” Their lips touched in the process. Ann felt uncomfortable, turned her head to avoid defendant’s face, and struggled to get up. A few days later, defendant apologized to her for “making [her] feel uncomfortable.” Thereafter, during defendant’s birthday dinner at a buffet restaurant, defendant tickled Ann’s inner thigh while they were sitting next to each other at the table. She told him to stop and pushed his hand away twice before he finally ceased. At some point, defendant temporarily confiscated Ann’s cell phone because she “was on it too late at night.” She was upset that her phone was taken away, but denied that she fabricated events as retribution. After Ann reported the frosting incident to her social worker, she and the other children were removed from defendant’s home. II. Defense Evidence Paul Binion and Aaron Pharr, defendant’s pastor and best friend, respectively, testified that defendant was an honest person. Neither witnessed him engaging in inappropriate activity with another person. Romy Chachere and Miguel Nieves, both of whom coached basketball alongside defendant, also testified that he was an honest person. Veronica Green testified that she and defendant married in 2005 and became foster parents in 2007. While Desiree was living with them, a baby monitor was placed in the room where Desiree slept. Green did not hear any inappropriate sounds or conversations between defendant and Desiree over the receiver. Green moved out of the house on June 5, 2010, due to marital problems, but returned periodically and she did not observe “anything unusual occurring between [defendant] and anyone in the house.” At no point did she witness him engaging in improper behavior with another person. Green also said 5. that Desiree “preferred to be around [defendant]” and never complained about any sexual misconduct. DISCUSSION Before trial, the prosecutor moved in limine to admit, under the fresh complaint doctrine, (1) a text message from Desiree to Emily and (2) a statement made by Ann to Desiree,4 both of which alleged sexual misconduct by defendant. The prosecutor contended that these statements would be offered “not for the purpose of the truth of the matter, but for the nonhearsay purpose[] of establishing the circumstances under which they reported the abuse.” Over defense counsel’s objection, the trial court granted the motion. At trial, Emily testified that Desiree sent her a text message stating “[Desiree] was going from foster home to foster home, and [in one] of those [homes] her foster dad raped her.” The prosecutor stated the text message was “not offered for the truth.” The court admitted the statement over the objection of defense counsel, who did not request a limiting instruction. Nora testified that, sometime in March 2011, she was asked by Desiree, via text message, to come into her bedroom. Nora went to Desiree’s bedroom where Desiree disclosed that she was raped by defendant several times. The prosecutor maintained that Desiree’s statement was “not offered for the truth.” The court admitted the statement over defense counsel’s objection and, upon request, gave the following limiting instruction to the jury: “[L]adies and gentlemen, there are rules of evidence, as you know, and there are times when hearsay evidence can come in, as long as it’s not offered for the proof of the matter asserted. So this is a limited use of what she may say, you understand.” 4 Neither party provided citations to the record confirming that Desiree testified about this statement. 6.  The issues before us are (1) whether Desiree’s extrajudicial statements were properly admitted under the fresh complaint doctrine,5 (2) whether defendant forfeited his argument on appeal that the trial court’s limiting instruction for Desiree’s statement to Nora was erroneous and prejudicial, and (3) whether defense counsel rendered ineffective assistance when he did not request an instruction for Desiree’s statement to Emily and did not object to the instruction given for Desiree’s statement to Nora. We now address each issue. I. Desiree’s extrajudicial statements were admissible under the fresh complaint doctrine because they were offered for a limited, nonhearsay purpose. Hearsay evidence is evidence of any statement made by a declarant, on an occasion other than as a witness testifying at a hearing, that is offered to prove the truth of the fact asserted and, except as provided by law, is inadmissible. (Evid. Code, § 1200, subds. (a) & (b); see also Evid. Code, § 225 [a “‘[s]tatement’” includes an oral or written verbal expression].) Conversely, a declarant’s extrajudicial statement that is offered for some purpose other than to prove the truth of the fact asserted is not hearsay. (People v. Jurado (2006) 38 Cal.4th 72, 117; People v. Bolden (1996) 44 Cal.App.4th 707, 714.) The Supreme Court has held that “under principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim’s disclosure of the assault to others—whenever the 5 Although defendant also contends the trial court erroneously admitted an extrajudicial statement made by Ann to Desiree, he did not cite evidence in the record supporting this assertion. (Ante, fn. 4.) Appellate briefs must support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. (Cal. Rules of Court, rule 8.204(a)(1)(C); accord Sky River LLC v. County of Kern (2013) 214 Cal.App.4th 720, 741.) Because defendant failed to support his argument with the necessary citations to the record, he forfeited the argument. (See Sky River LLC v. County of Kern, supra, at pp. 740-741.) 7. fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact’s determination as to whether the offense occurred.” (People v. Brown (1994) 8 Cal.4th 746, 749-750, italics omitted.) The court explained that “evidence of a victim’s conduct following the alleged commission of a crime, including the circumstances under which he or she did (or did not) promptly report the crime, frequently will help place the incident in context, and may assist the jury in arriving at a more reliable determination as to whether the offense occurred.” (Id. at p. 760.) Thus, under the fresh complaint doctrine,6 the making of the complaint and the circumstances surrounding its making are generally admissible while the details of the complaint, if offered to prove the truth of the matter asserted, are inadmissible. (Ibid.) We find that Desiree’s text message to Emily and spoken statement to Nora were properly admitted under the fresh complaint doctrine. Desiree testified that defendant sexually abused her on multiple occasions while she lived with him for nearly half a year. During this period, she cut herself and did not report the incidents because she feared that she would be doubted and separated from her younger brother, who was also living with defendant at the time. In March 2011, approximately eight months after she and her brother were removed from defendant’s care and six months after she moved into Nora’s home, Desiree revealed to Emily and Nora, two individuals in whom she placed her trust, 6 Although the traditional doctrine required victims of sexual assault to “alert the community immediately following the commission of the crime” on the premise that “it is natural for the victim of a sexual assault to complain promptly following the assault,” the Supreme Court abrogated this element in recognition of “[t]he overwhelming body of current empirical studies, data, and other information establish[ing] that it is not inherently ‘natural’ for the victim to confide in someone or to disclose, immediately following commission of the offense, that he or she was sexually assaulted.” (People v. Brown, supra, 8 Cal.4th at pp. 754, 758, 763, original italics.) Child victims, in particular, may be reluctant to report because they are unaware of the wrongful and abnormal nature of the conduct, are intimidated by the abuser, and/or experience “feelings of confusion and guilt, the desire to forget the incident, and the fear of not being believed ….” (Id. at p. 758.) 8. that she was raped by defendant. The circumstances under which Desiree made her complaints were relevant to the jury’s determination as to whether the alleged abuse occurred because they illuminated the reasons for the delayed disclosure and obviated the risk that the jury, in the absence of such context, would make inferences based on an incomplete or inaccurate understanding of her behavior. Defendant counters that Desiree’s statements were offered solely for the truth of the matter asserted and cited People v. Loy (2011) 52 Cal.4th 46. In Loy, a prosecution witness testified that the deceased victim mentioned in a telephone conversation that she was afraid of the accused because he would “‘make weird looks at her and sneak up to her room and touch her … chest and … grab her crotch.’” (Id. at p. 54.) Finding that this statement could not be admitted under the fresh complaint doctrine, the Supreme Court pointed out that the judge instructed the jury that the statement was introduced “‘for the purpose of showing [a] lewd or lascivious act between the [accused] and the alleged victim on another occasion other than that charged in the case.’” (Id. at p. 65, fn. 2, original italics.) By contrast, Desiree’s statements were offered for a limited, nonhearsay purpose: to provide context for her delayed disclosure, the absence of which may have undermined her credibility in the eyes of the jury. II. Defendant failed to object to the trial court’s limiting instruction for Desiree’s statement to Nora and therefore forfeited the argument on appeal. Extrajudicial statements admitted under the fresh complaint doctrine “should assist in enlightening the jury without improperly prejudicing the defendant” as long as they are “carefully limited to the fact that a complaint was made, and to the circumstances surrounding the making of the complaint, thereby eliminating or at least minimizing the risk that the jury will rely upon the evidence for an impermissible hearsay purpose ….” (People v. Brown, supra, 8 Cal.4th at p. 762.) Hence, the trial court, upon request, must instruct the jury as to the limited scope for which the statements are admitted. (Id. at p. 757; see also Evid. Code, § 355.) In the absence of a request, the court has no sua 9. sponte duty to give such an instruction. (People v. Manning (2008) 165 Cal.App.4th 870, 880.) Defense counsel asked the trial court to provide a limiting instruction for Desiree’s statement to Nora. In response, the court advised the jury that “there are times when hearsay evidence can come in, as long as it’s not offered for the proof of the matter asserted” and “this is a limited use of what she may say, you understand.” This instruction did not clearly delineate the extent of the statement’s limitation in reference to the fresh complaint doctrine. (See Adkins v. Brett (1920) 184 Cal. 252, 260.) Counsel, however, did not object to the error. If the accused does not request an additional instruction or clarification, he or she forfeits the right to complain of any such omission for the first time on appeal. (See People v. Partin (1967) 254 Cal.App.2d 89, 98, citing People v. Robinson (1960) 180 Cal.App.2d 745, 752.) Failure to object to instructional error does not result in forfeiture if the error affected the defendant’s substantial rights. (Pen. Code, § 1259; People v. Lawrence (2009) 177 Cal.App.4th 547, 553-554, fn. 11.) Substantial rights are affected if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; accord People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) In this case, the likelihood that defendant would have obtained a different verdict, but for the inadequate limiting instruction, was not reasonably probable. Because Desiree herself testified at trial, the jury was able to directly assess her credibility and did not exclusively rely on her extrajudicial statement. (See People v. Manning, supra, 165 Cal.App.4th at pp. 880-881.) Moreover, defendant, in the course of the pretext call, admitted that he engaged in sexual conduct with Desiree, expressed remorse for his actions, and tried to convince her not to report him. Since the instructional error would have been harmless, defendant’s substantial rights were not affected. 10.  Defendant contends the trial court’s insufficient limiting instruction deprived him of due process and, under the reversible error test set forth in Chapman v. California (1967) 386 U.S. 18, 24, could not be shown to be harmless beyond a reasonable doubt. We disagree. The Chapman test would apply if an “‘ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’” (Estelle v. McGuire (1991) 502 U.S. 62, 72.) Here, while the court’s limiting instruction did not adequately explain the limited, nonhearsay purpose of Desiree’s statement to Nora, it did not constitute a violation of fundamental fairness. (Id. at p. 73; cf. People v. Johnson (2004) 119 Cal.App.4th 976, 985-986 [instructional error compels reversal per se where the trial court lowered the prosecution’s burden of proof below the due process requirement of proof beyond a reasonable doubt].) III. Defendant’s claim of ineffective assistance of counsel must be rejected because the appellate record did not demonstrate that counsel acted unreasonably. To establish ineffective assistance of counsel, the defendant must show that (1) counsel’s performance did not satisfy an objective standard of reasonableness under prevailing professional norms, and (2) absent counsel’s deficient performance, it is reasonably probable that the verdict would have been more favorable. (See People v. Oden (1987) 193 Cal.App.3d 1675, 1681, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Fosselman (1983) 33 Cal.3d 572, 584.) If the appellate record does not specify why counsel acted or failed to act in the challenged manner, unless counsel was asked for and failed to provide a satisfactory explanation or “there simply can be no satisfactory explanation,” we must reject the claim.7 (People v. Scott 7 For this reason, ineffective assistance of counsel claims are more appropriately made in a habeas corpus proceeding in which the trial attorney is afforded the opportunity to explain the reasons for his or her conduct and the court is in a better position to evaluate whether the conduct was within the range of reasonable competence. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) 11. (1997) 15 Cal.4th 1188, 1212; accord People v. Garvin (2003) 110 Cal.App.4th 484, 489- 490.) Based on the record before us, we cannot find that defense counsel acted unreasonably when he did not request a limiting instruction for Desiree’s text message to Emily and did not object to the instruction given for Desiree’s statement to Nora. He was not asked to explain these omissions and, in view of the presumption that counsel’s conduct “‘“‘“falls within the wide range of reasonable professional assistance”’”’” (People v. Garvin, supra, 110 Cal.App.4th at p. 489, citing People v. Jones (2003) 29 Cal.4th 1229, 1254), counsel may have plausibly concluded that the benefit afforded by a particular instruction would not offset the detriment of requesting or clarifying it.8 (See People v. Hernandez (2004) 33 Cal.4th 1040, 1053; see also People v. Huggins (2006) 38 Cal.4th 175, 206 [failure to object rarely constitutes constitutionally ineffective legal representation].) DISPOSITION The judgment is affirmed. _____________________ DETJEN, J. WE CONCUR: _____________________ GOMES, Acting P.J. _____________________ POOCHIGIAN, J. 8 Assuming arguendo that defendant established that counsel did not act reasonably under prevailing professional norms, we would still reject the claim. In view of defendant’s incriminating remarks during the pretext call, the likelihood that he would have obtained a different verdict in the absence of counsel’s deficient performance was not reasonably probable. 12. 

158 F.3d 635 8 A.D. Cases 1232, 13 NDLR P 232 Robert N. COLWELL, Charles R. Ellinger and Richard H.Abrams, Jr., Plaintiffs-Appellees,v.SUFFOLK COUNTY POLICE DEPARTMENT, County of Suffolk,Defendants-Appellants. No. 1306, Docket 97-9019. United States Court of Appeals,Second Circuit. Argued March 19, 1998.Decided Oct. 15, 1998. Randy Berler, Assistant County Attorney, Suffolk County, Hauppauge, NY (Robert J. Cimino, Suffolk County Attorney, Theodore D. Sklar, Craig D. Pavlik, Assistant County Attorneys, on the brief) for Defendants-Appellants. Brian J. Davis, East Meadow, NY (Daniel J. Baker, Neil H. Angel, Certilman Balin Adler & Hyman, LLP, on the brief) for Plaintiffs-Appellees. B e f o r e: JACOBS, LEVAL, and GIBSON,* Circuit Judges. JACOBS, Circuit Judge: 1 Three Suffolk County police officers prevailed in a jury trial on their claim they were denied promotions as a result of discrimination in violation of the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (1994) ("ADA"). The United States District Court for the Eastern District of New York (Block, J.), denied the defendants' motion for judgment as a matter of law, and the defendants appealed. We conclude the evidence at trial was insufficient to support the jury's finding that the officers were disabled within the meaning of the ADA, and therefore reverse and remand with instructions to enter judgment for the defendants. BACKGROUND 2 Lieutenant Robert N. Colwell, Sergeant Richard H. Abrams, and Sergeant Charles R. Ellinger are three veteran police officers with the Suffolk County Police Department ("SCPD"). As a result of injuries, each officer was assigned to do "light duty" for a substantial part of his career. Ordinarily, a light duty assignment means that the officer is unable to perform the regular duties of a police officer, but is nonetheless able to perform some police duties subject to specific restrictions depending upon the nature of the injury. See N.Y. Gen. Mun. Law § 207-c (McKinney 1982). For Colwell, Abrams, and Ellinger, these restrictions generally relieved them from duties involving "confrontation." 3 In February 1993 all three officers were bypassed for promotion to higher ranks within the SCPD. After filing a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") and receiving right to sue letters, the officers filed a complaint against the SCPD and the County of Suffolk (collectively "the County"), alleging that they were qualified for the positions for which they were denied promotions, and that they were denied those promotions because of their disabilities, in violation of the ADA. 4 A. The Evidence at Trial. 5 At trial, the officers sought to prove that they had been on "light duty" status as a result of physical disabilities, that the Commissioner of the SCPD had instituted a policy to deny promotions to those on light duty assignment, and that as a result they had been denied promotions in rank they otherwise would have won. At trial, each officer presented evidence regarding his physical impairments, his qualifications for promotion to higher rank, and the effect of the denial of that promotion. The following evidence concerning their physical impairments is recounted in the light most favorable to the officers. 1. Lieutenant Colwell 6 Lieutenant Colwell suffered a series of back injuries: one in 1979 pushing a disabled vehicle from a roadway; two others pulling people from cars; and yet another when he fell down some icy steps in 1984. According to Dr. Robert Reiss, a police surgeon at the County's Medical Evaluation Unit, Colwell suffers from "a chronic low back syndrome with left leg sciatica with increasing symptomatology." 7 Colwell testified to the following limitations: he cannot stand in one spot or in a "military type of formal ceremonial position" for any period of time without feeling "excruciating pain"; he has difficulty sleeping and relies on over-the-counter sleep aids or vicodin; he cannot lift "very heavy objects"; he cannot take a "two or three or four hour drive" without stopping to stretch his legs; he avoids doing mechanical work on his and his daughter's cars; although he does "basic chores," he is limited in his ability to do work in "any type of constructive areas"; he cannot "go shopping in the mall and stand around while [his wife] is trying on dresses"; and he cannot ski or golf or do "anything like that." In Colwell's case, light duty status meant "no confrontation, no heavy lifting, [and] no prolonged sitting or standing." 2. Sergeant Abrams 8 Sergeant Abrams suffered a series of lower back injuries: one in 1981; another while trying to arrest someone in 1983; and yet another when he slipped on ice getting out of a patrol car in 1991. According to Dr. Reiss, Abrams has a "chronic degenerative disk disease of his neck and lower back" and the range of motion in Abrams' lower back is "minimally depressed." As a result of these injuries, Abrams suffers headaches, backaches, neck pain, and pain radiating down his arms and legs. 9 Abrams testified generally that the injury "affects [his] entire life" and "[e]verything [he does] is in a limited capacity." As to specific limitations, Abrams testified that he cannot do mechanical work on automobiles (which used to be his hobby); he cannot "bend over for long periods"; he cannot do any heavy lifting or moving of furniture; he has "trouble" doing yard work, and if he tries raking, it "bothers" his back and neck; he cannot "continuously reach up," so that "painting or plastering" is painful; he has "some difficulty" driving, and if he drives for periods of time, he has to "stop and get out and walk around and stretch out a little bit"; he cannot stand "for a long period of time" or else he "start[s] to get a pain down in [his] lower back and shooting pain down into [his] leg"; and he cannot sit in one position too long, but has to "keep getting up and down and moving around." At work, Abrams cannot sit "for long periods of time" at his desk; he has to get up and "walk around to just stretch it out." Abrams would not be able to sit in a patrol car for twelve hours without being able to move around, "cannot get in and out of a [patrol] car excessively," and cannot do "excessive driving." Finally, in responding to an emergency, Abrams would have to walk, not run, to his patrol car. Abrams was assigned to light duty for a period of time after each injury, but after the 1991 injury he never returned to full duty status. While on light duty, Abrams was restricted from engaging in confrontation, doing any heavy lifting, excessive driving, and "excessive getting in and out of" an automobile. 10 Abrams' neurologist, Dr. Donald Holzer, explained that "Abrams [is] capable of performing some duties of his police work, but certainly not the majority of them." When asked how "such tasks as lifting or pushing or moving objects or digging or snow shovelling, that type of thing" would be affected, Holzer responded that: 11 There would be significant limitations. I mean he's not totally impaired to the point where he can do nothing, and, in fact, Mr. Abrams was working at the time I saw him, although in a light duty capacity. And that was my opinion at the time, and which has remained right through my seeing him up to the present time, has been that Mr. Abrams is capable of a light duty situation, but nothing further than that. 12 Asked what Abrams is "able to do in terms of work," Holzer opined: 13 Mr. Abrams certainly is not capable of any physical confrontation.... He is capable certainly of doing sedentary work, provided he has the ability to get up, change position. He can certainly infrequently reach over his shoulder, bend, twist, he can lift objects maybe ten to twenty pounds infrequently. He can stand and walk for short periods of time, maybe half an hour to an hour at a time. He is certainly capable of working an eight hour day with limitations. 3. Sergeant Ellinger 14 Sergeant Ellinger suffered a cerebral hemorrhage in 1984, after which he was hospitalized for approximately 30 days, and remained at home for an additional six months. On return to work in June 1985, Ellinger was assigned to light duty status, which meant that he was to "work days to avoid stress and confrontation and to avoid extreme elements such as cold and heat." 15 According to Ellinger, the only remaining symptom is that he sometimes experiences a sensation in his head that feels like the onset of another cerebral hemorrhage. That sensation occurs when he experiences stress or fear, or engages in physical exertion such as shoveling snow. Ellinger uses biofeedback techniques, easing the fear by "thinking good thoughts" or picturing "clouds [with] the sun coming through." 16 As to specific limitations, Ellinger refrains from doing physical work such as shoveling snow or heavy lifting, or else does it "very slowly"; does summertime digging or planting in his garden slowly; refrains from physical exercise in the wintertime; and wears hats. 17 In December 1992, Dr. Leonard Weitzman, a member of the Police Department's medical evaluation unit, determined that Ellinger was fit for full duty as a policeman. At trial, however, Ellinger presented a letter from his doctor, Dr. Friedling, which recommended that Ellinger work the day shift, indoors only, with overtime only between eight a.m. and eight p.m., and that he avoid stress and confrontation. The doctor warns that "[a]t no time should this patient work late tours or rotating shifts." Suffolk County's Medical Review Unit concurred in this recommendation, and Ellinger elected to follow those restrictions, even after returning to full duty status. 18 B. The Judgment. 19 The jury found that the County discriminated against the officers on the basis of their disabilities in denying their promotions. The jury also awarded each officer more than $200,000 in compensatory damages. The district court subsequently denied the County's Rule 50(a) motion for judgment as a matter of law (upon which the court had previously reserved decision), on the ground (inter alia ) that there was sufficient evidence to support the jury's finding that each of the officers was disabled within the meaning of the ADA. Discussion 20 On appeal, the County argues, inter alia, that the officers failed to prove that they were disabled under the ADA, and that the district court therefore erred in denying judgment as a matter of law. In reviewing the denial of judgment as a matter of law, we view the evidence in the light most favorable to the nonmoving party, and will reverse "only if [we] can conclude that, with credibility assessments made against the moving party and all inferences drawn against the moving party, a reasonable juror would have been compelled to accept the view of the moving party." Bradway v. Gonzales, 26 F.3d 313, 317 (2d Cir.1994) (citations and quotation marks omitted). 21 We conclude that the evidence in this case is insufficient to permit a reasonable juror to find that the officers were disabled within the meaning of the ADA. The ADA defines a "disability" as either: 22 (A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; 23 (B) a record of such an impairment; or 24 (C) being regarded as having such an impairment. 25 42 U.S.C. § 12102 (1994). There is record evidence of some physical impairments, but it is insufficient to support a finding that those impairments substantially limited the officers in any major life activities. The evidence is also insufficient to establish that the officers had "a record" of substantially limiting impairments, or were "regarded as" having such impairments by the County. The district court therefore erred in denying the County's motion for judgment as a matter of law. 26 A. Impairments that Substantially Limit Major Life Activities. 27 The Supreme Court recently followed a three-step process for determining whether a plaintiff has a disability under the first subsection of the ADA's definition. See Bragdon v. Abbott, --- U.S. ----, ----, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998). First, it determined whether the plaintiff suffered from a physical or mental impairment. Id. Second, it "identif[ied] the life activity" upon which the plaintiff relied and "determine[d] whether it constitutes a major life activity under the ADA." Id. Third, it inquired whether the plaintiff's impairment "substantially limited" a major life activity identified in step two. Id. In order to be eligible to prevail upon a further showing of discrimination, a plaintiff must satisfy each of the three prongs. Thus a plaintiff who showed that he had an impairment and that the impairment affected a major life activity would nonetheless be ineligible if the limitation of the major life activity was not substantial. Throughout, we are guided by "interpretations of parallel definitions in previous statutes and the views of various administrative agencies" that have considered these questions. Id. We also construe the ADA "to be consistent with regulations issued to implement the Rehabilitation Act." Id. at 2205. 28 1. Impairment. 29 Indisputably, the officers' conditions are "physical impairments" for the purpose of the ADA. The EEOC has issued regulations implementing the ADA that define an "impairment" to include any "physiological disorder, or condition" that affects (inter alia ) the neurological, musculoskeletal, and cardiovascular systems. 29 C.F.R. § 1630.2(h)(1). The evidence at trial showed that both Colwell and Abrams suffered from conditions affecting their musculoskeletal systems, and that Ellinger suffers from a condition affecting his cardiovascular system. 30 2. Major Life Activities. 31 The second step in the analysis is to identify the life activities affected by the impairment, and to determine whether those activities are "major" life activities under the ADA. Bragdon, 118 S.Ct. at 2202. The Supreme Court has explained that "[t]he plain meaning of the word 'major' denotes comparative importance and suggest[s] that the touchstone for determining an activity's inclusion under the statutory rubric is its significance." Id. at 2205 (citation and some internal quotation marks omitted); see also Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 151 (2d Cir.1998) ("The term 'major life activit[y],' by its ordinary and natural meaning, directs us to distinguish between life activities of greater and lesser significance."). 32 A regulation implementing the Rehabilitation Act interprets the term "major life activities" to include "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Bragdon, 118 S.Ct. at 2205 (quoting 45 C.F.R. § 84.3(j)(2)(ii) (1997); 28 C.F.R. § 41.31(b)(2) (1997)); see also EEOC Regulations, 29 C.F.R. § 1630.2(h)(2)(i) (same). As the Supreme Court noted in Bragdon, this list is illustrative, and not exhaustive. Bragdon, 118 S.Ct. at 2205. We have identified other "major life activities," including, but not limited to, "sitting, standing, lifting, or reaching." Ryan v. Grae & Rybicki, 135 F.3d 867, 870 (2d Cir.1998) (quoting U.S. Equal Employment Opportunity Commission, Americans with Disabilities Act Handbook I-27 (1992)). 33 In deciding whether a particular activity is a "major life activity," we ask whether that activity is a significant one within the contemplation of the ADA, rather than whether that activity is important to a particular plaintiff: 34 We do not think that such major life activities as seeing, hearing, or walking are major life activities only to the extent that they are shown to matter to a particular ADA plaintiff. Rather, they are treated by the EEOC regulations and by our precedents as major life activities per se. 35 Reeves, 140 F.3d at 151-52. The Supreme Court adopted this approach in Bragdon when it determined that reproduction is a major life activity without considering whether reproduction was an important part of the respondent's life. See Bragdon, 118 S.Ct. at 2204-05. 36 Finally, we have emphasized that "[t]he need to identify a major life activity that is affected by the plaintiff's impairment plays an important role in ensuring that only significant impairments will enjoy the protection of the ADA." Reeves, 140 F.3d at 152. This is because 37 [a]n ADA plaintiff could considerably lessen the burden of making an individualized showing of a substantial limitation were he able to define the major life activity as narrowly as possible, with an eye toward conforming the definition to the particular facts of his own case. 38 Id. 39 The police officers in this case claim that their physical impairments have affected many specified life activities. Some of these may be "major life activities" under the ADA, and as to these we consider in the next section whether the limitations on these activities are substantial. But others are not major life activities in the first place. Although it is difficult and unwise to lay down principles for ascertaining in all cases which activities are significant and which are not, we can winnow out many of the impaired activities alleged in this case (such as golf and mall shopping) on the ground that they are insufficiently fundamental. 40 Colwell. The evidence at trial showed that Colwell's back condition affected his ability to stand, sit, lift objects, work, and sleep. We will assume without deciding that these are major life activities. See, e.g., Ryan, 135 F.3d at 870. Colwell also claims an impairment of his ability to sleep, which is undoubtedly a major life activity. However, Colwell also identified a number of activities that cannot reasonably be deemed major league, such as driving, doing mechanical work on cars, performing housework other than basic chores, going shopping in the mall with his wife, skiing, and golfing. Compare 45 C.F.R. § 84.3(j)(2)(ii) (1997) (listing examples of major life activities); 28 C.F.R. § 41.31(b)(2) (1997) (same). 41 Abrams. Like Colwell, Abrams testified that his condition affected his ability to stand, sit, lift objects, and work. Abrams is also limited in his capacity to bend over and reach up. We will assume that these are major life activities. Not so are other activities cited by Abrams: working on his cars, moving furniture, doing yard work, painting and plastering, and driving. Some of these activities incidentally may involve lifting, bending, and reaching, but they are not major life activities in themselves. 42 Ellinger. The evidence at trial showed that the only major life activity affected by Ellinger's cerebral hemorrhage was his ability to work. Ellinger also cited his diminished ability to dig and plant in his garden in the summertime, shovel snow from his driveway, and engage in other physical exercise in the wintertime. However, these activities clearly fall outside the range of "major" life activities. 43 3. Substantial Limitation. 44 The third step in the Bragdon analysis is to determine whether the plaintiff's impairment "substantially limits" the life activities that are properly deemed major. This inquiry is individualized and fact-specific. Reeves, 140 F.3d at 152; Ryan, 135 F.3d at 872; see also Bragdon, 118 S.Ct. at 2206 (evaluating evidence to determine whether the respondent's infection "substantially limited her ability to reproduce"). 45 The Rehabilitation Act regulations provide no guidance. See Bragdon, 118 S.Ct. at 2205 (citing 45 C.F.R. pt. 84, App. A, p. 334 (1997)). However, the EEOC regulations implementing the ADA define the term "substantially limits" to mean: 46 (i) Unable to perform a major life activity that the average person in the general population can perform; or 47 (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 48 29 C.F.R. § 1630.2(j)(1). The regulations recommend that the following factors be considered in determining whether an individual is substantially limited in a major life activity: "(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630(j)(2). See also Ryan, 135 F.3d at 871-72 (applying factors). 49 EEOC regulations also give guidance for determining whether an individual is substantially limited in the major life activity of "working." The ability to work is substantially limited (among other indicia) if the plaintiff is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). The regulations make clear that "the inability to perform in a single, particular job does not constitute a substantial limitation in the major life activity of working." Id. Accordingly, we have indicated that, in analyzing whether a plaintiff is substantially limited in the ability to work, "the kinds of jobs from which the impaired individual is disqualified must be carefully considered." Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir.1994). 50 In the light of these considerations, we review the nature and severity of the impairments said to limit what we have held to be major life activities of each plaintiff. We conclude that the evidence was insufficient to support the finding that any of the officers' impairments were substantial, particularly when evaluated in light of the first EEOC factor: "the nature and severity of the impairment" as compared with the average person's ability to perform those activities. See 29 C.F.R. § 1630.2(j)(2). Accordingly, we conclude that none of the officers has a "disability" under subsection A of the ADA's definition of the term. 51 Colwell. At trial, Colwell testified that his impairment limits his abilities to stand, sit, lift, sleep, and work. He had the burden to show that these limitations were substantial. See Ryan, 135 F.3d at 870. However, Colwell's descriptions of his limitations are marked throughout by hedging and a studied vagueness, so that there is no support for the idea that his impairments would be significantly limiting to "the average person in the general population," see 29 C.F.R. § 1630.2(j)(1), as opposed to someone expected to perform the prolonged, repetitive, and rigorous demands of a police officer. For example, Colwell has difficulty standing "at attention" for "any period of time" or standing "in one spot." This difficulty is overcome, however, if he is able "to move around a lot." Colwell cannot sit "too long," and "prolonged" sitting is a problem at work. As far as lifting is concerned, Colwell can lift "light objects," but not "very heavy objects." At work, Colwell's difficulty standing "in one particular area" for "more than an hour at a time" causes him difficulty when he lectures recruits (which is part of his job). In order avoid this problem, Colwell has to "move around. A lot of people think I've got some sort of weirdness because I'm constantly moving." 52 Similarly as to sleep, Colwell failed to show that his limitation should be deemed substantial. Essentially Colwell's evidence on this point was that he takes a medication as a sleep aid and that "I usually get a tough night's sleep." Difficulty sleeping is extremely widespread. Colwell made no showing that his affliction is any worse than is suffered by a large portion of the nation's adult population. He failed to establish that the degree of limitation he suffers is substantial.1 53 Abrams. As with Colwell, Abrams' testimony as to his physical limitations is cast in terms of the demands of police work, and is carefully qualified. Abrams has difficulty standing "for a long period of time," or sitting "for too long." He cannot lift "anything heavy," bend over "for long periods," or reach up "continuously." At work, Abrams can't sit "for long periods of time" at his desk without getting up and stretching, and he cannot get in and out of a patrol car "excessively." 54 The testimony of Dr. Holzer is vague and qualified. Although Holzer testified that Abrams would not be capable of physical confrontation at work, Holzer stated that Abrams is capable of light duty and can perform sedentary work so long as he can "get up" and "change position." Holzer also testified that Abrams can infrequently reach "over his shoulder," bend, lift objects (of maybe ten to twenty pounds), and stand and walk for "maybe half an hour to an hour at a time." According to Holzer, Abrams is "capable of working an eight hour day with limitations." 55 Neither Abrams' testimony nor Holzer's supports the conclusion that Abrams is "substantially" impaired in his ability to stand, sit, lift, bend, or reach as compared with the average person. Nor do Abrams' limitations at work--including his inability to engage in physical confrontation--significantly restrict his "ability to perform either a class of jobs or a broad range of jobs ... as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i). Abrams' impairment disqualifies him "from only a narrow range of jobs" (those involving physical confrontation) and thus his impairment is not "a substantially limiting one." Heilweil, 32 F.3d at 723. 56 Ellinger. Ellinger testified that his doctor imposed certain restrictions on his work schedule, including that Ellinger work days only and only indoors, with overtime limited to the hours between eight a.m. and eight p.m. The doctor forbade Ellinger from working "late tours or rotating shifts," and instructed him to "avoid[ ] stress and confrontation." Ellinger testified that he continued to "follow" these restrictions after he was returned to full duty status. 57 This evidence is insufficient to show that Ellinger was "significantly restricted" in his ability to work at a class or broad range of jobs. His only evidence concerned the general restrictions imposed by his doctor. Without specific evidence about "the kinds of jobs from which [an] impaired individual is disqualified," the jury could not perform the careful analysis that is necessary to determine that Ellinger was substantially limited in his ability to work. See Heilweil, 32 F.3d at 723. 58 We conclude that each of the plaintiffs failed to advance evidence sufficient to show that the limitation he suffered with respect to a major life activity was substantial.2 59 B. Records of Such Impairments. 60 Even without a showing of substantial limitation of a major life activity, the ADA's definition of "disability" can be satisfied by "a record" of an impairment that substantially limits one or more major life activities. See 42 U.S.C. § 12102(2)(B) (1994). "The intent of this provision, in part, is to ensure that people are not discriminated against because of a history of disability." 29 C.F.R. pt. 1630 App., § 1630.2(k). According to the EEOC: 61 This part of the definition is satisfied if a record relied on by an employer indicates that the individual has or has had a substantially limiting impairment. The impairment indicated in the record must be an impairment that would substantially limit one or more of the individual's major life activities. 62 Id. The record must be one that shows an impairment that satisfies the ADA; a record reflecting a plaintiff's classification as disabled for other purposes or under other standards is not enough. See id. 63 In reviewing the County's Rule 50 motion for judgment as a matter of law, the district court concluded (without explication) that Officer Ellinger could be considered to have such a record of impairment for the purposes of the ADA. On appeal, all three plaintiffs argue that their personnel records (which are part of the record in this case) show a history of a substantially limiting impairment. 64 The contention fails. With the exception of Ellinger's hospitalization, which is discussed below, the records of impairment that each plaintiff showed involved no greater degree of limitation of major life activities than the continuing impairments they showed. Their claims based on record of impairment therefore fail for the same reasons as their claims based on present impairment. 65 In addition, Ellinger argues that his record reflects a substantially limiting impairment because he was hospitalized for 30 days following his cerebral hemorrhage in October 1984. Ellinger relies on School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), in which a schoolteacher's acute tuberculosis, "serious enough to require hospitalization" years earlier, was deemed a "record of impairment" so that she had the status of a "handicapped individual" within the meaning of the Rehabilitation Act. Id. at 281, 107 S.Ct. at 1127. 66 The fact of Ellinger's hospitalization does not establish a record of a substantially limiting impairment, even under Arline. As the Fifth Circuit recently observed, Arline 67 cannot be construed to obviate the requirement, explicit in the ADA and its implementing regulations, that purported conditions be examined to ascertain whether a specific condition substantially limited a major life activity. The ADA requires an individualized inquiry beyond the mere existence of a hospital stay. Although the Court in Arline noted that the plaintiff's hospitalization established a record of impairment, the defendant had conceded that her acute tuberculosis had been substantially limiting.... [The contrary reading of Arline ] would work a presumption that any condition requiring temporary hospitalization is disabling--a presumption that runs counter to the very goal of the ADA. 68 Burch v. Coca-Cola Co., 119 F.3d 305, 317 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 871, 139 L.Ed.2d 768 (1998) (emphasis added). Ellinger's hospitalization is certainly a record of an impairment, and the hemorrhage was certainly an impairment, but Ellinger was required to show that the impairment for which he was hospitalized was imposing a substantial limitation of one or more of his major life activities. This Ellinger failed to do. The only evidence of the extent of the impairment caused by Ellinger's hemorrhage was that Ellinger (1) was hospitalized for approximately 30 days, (2) remained at home for approximately six months after his hospitalization, (3) returned to work in June 1985, and (4) was placed on light duty with the above-mentioned restrictions until December 1992. 69 A jury could reasonably find that Ellinger was unable to work during his recuperation from the hemorrhage (one month in the hospital and six months at home), but a seven-month impairment of his ability to work, with the non-particularized and unspecific residual limitations described on his police work, is of too short a duration and too vague an extent to be "substantially limiting." See Sanders v. Arneson Products, 91 F.3d 1351, 1354 (9th Cir.1996) (holding that three and one-half month impairment with minimal residual effects was not substantially limiting), cert. denied, --- U.S. ----, 117 S.Ct. 1247, 137 L.Ed.2d 329 (1997); Halperin v. Abacus Technology Corp., 128 F.3d 191, 200 (4th Cir.1997) (two month impairment not substantially limiting); see also 29 C.F.R. Pt. 1630 App., § 1630.2(j) (noting that "temporary, non-chronic impairments of short duration, with little or no long term permanent impact, are usually not disabilities"). 70 Of course, every instance of hospitalization is disabling in the sense that one cannot go to work. But Ellinger attempts to rely on the open-ended light duty--which he concedes is not evidence of a continuing disability--to prolong indefinitely the disabling experience of a single acute episode of hospitalization. An employer that accedes to minor and potentially debatable accommodations (a sensible way to avoid litigation, liability, and confrontation), does not thereby stipulate to the employee's record of a chronic and endless disability. Otherwise, costless accommodations to physical complaints--here, the plaintiff's fellow officers, not the county, paid the price in terms of reduced flexibility in assignments--would entail large future costs, would discourage the employment of persons with minor limitations, and would promote litigation without assisting persons entitled to protection of the ADA. 71 C. Being Regarded As Having Such Impairments. 72 The third way to prove a "disability" within the meaning of the ADA is to prove that the plaintiff is "regarded as" having an impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(2)(C) (1994). In Francis v. City of Meriden, 129 F.3d 281 (2d Cir.1997), we explained that whether an individual is "regarded as" having a disability "turns on the employer's perception of the employee" and is therefore "a question of intent, not whether the employee has a disability." Id. at 284. It is not enough, however, that the employer regarded that individual as somehow disabled; rather, the plaintiff must show that the employer regarded the individual as disabled within the meaning of the ADA. See id. at 285-86. Thus, in order to prevail, the plaintiffs were required to adduce evidence that the County regarded each officer as having an impairment that substantially limited a major life activity. This the officers failed to do. 73 As a threshold matter, the officers concede that their assignment to light duty status does not mean that they are regarded as disabled. Their argument is that they are regarded as disabled because (1) Colwell, Abrams, and Ellinger were on light duty on a long-term basis, and were continuously assigned to non-confrontational positions; (2) Abrams and Ellinger alone among the promotional candidates were required to undergo physical examinations; and (3) Police Commissioner Cosgrove considered Ellinger to be "light duty" despite his knowledge that Ellinger had recently returned to full duty status. 74 This evidence is insufficient to permit the inference that the County perceived the officers as having impairments that substantially limited them in one or more major life activities. Assignment to light duty status (as the officers concede) does not support the inference that the County viewed them as disabled; the fact that the light duty assignments were prolonged can make no difference. Continuous assignment of a policeman to non-confrontational positions does not permit the inference that the officers were regarded as substantially limited in their ability to do work. To prove that they were regarded as substantially limited in their ability to work, the officers bore the burden of proving that the County "perceived [them] to be incapable of working in a broad range of jobs" suitable for persons of their age, experience, and training. Ryan v. Grae & Rybicki, 135 F.3d at 872. The fact that the officers were believed to be unable to wrestle with disturbers of the peace is not enough. See id. 75 Evidence that Abrams and Ellinger were the only candidates for promotion required to submit to physical examinations provides no basis for concluding that they were regarded as limited substantially. For a long time, Abrams and Ellinger themselves had insisted that they had physical limitations that prevented their doing a full range of police work. The fact that the County perceived a need to require the exams suggests no more than that their physical condition was an open question. 76 Finally, the evidence that Commissioner Cosgrove thought of Ellinger as "light duty," even though he knew Ellinger had recently become full duty, supports no useful inferences because (as conceded) assignment to light duty status does not support the conclusion that an officer is regarded as disabled. It follows a fortiori that Cosgrove's continued conception of Ellinger as light duty does not support the conclusion that Cosgrove regarded Ellinger as disabled within the meaning of the ADA. Conclusion 77 We conclude that there was insufficient evidence to support the jury's finding that the officers were disabled within the meaning of the ADA. We have considered all of the officers' arguments to the contrary and find them to be meritless. The judgment of the district court is therefore reversed, and the case is remanded with instructions to enter judgment for the defendants. * Honorable John R. Gibson, United States Court of Appeals for the Eighth Circuit, sitting by designation 1 We need not consider whether a plaintiff must show that the discrimination he suffered is motivated in any way by the limitation of the particular major life activity 2 We note that the County did not defend on the ground that plaintiffs' impairments, even after reasonable accommodation, rendered them less well qualified for the promotions they sought than those who won the promotions. Plaintiffs, according to their own testimony, were unable to perform large parts of police work, and this could not be corrected by reasonable accommodation. Nothing in this opinion is intended to suggest that promotion of a non-impaired candidate on the basis of his or her better qualifications (giving the impaired candidate the full benefit of reasonable accommodation) can be considered "discrimination" under the statute

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2008-5044 DUARTE MANUEL CABRAL, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. Duarte Manuel Cabral, of Poway, California, argued for plaintiffs-appellants. David F. D’Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for defendant- appellee. With him on the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Mark A. Melnick, Assistant Director. Appealed from: United States Court of Federal Claims Judge Christine O.C. Miller  NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2008-5044 DUARTE MANUEL CABRAL, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. Appeal from the United States Court of Federal Claims in 07-872C, Judge Christine C. Miller. _______________________ DECIDED: October 8, 2008 _______________________ Before GAJARSA, DYK and MOORE, Circuit Judges. PER CURIAM Duarte Manuel Cabral seeks review of the United States Court of Federal Claims’ January 15, 2008 order that sua sponte 1 dismissed his complaint for lack of jurisdiction. 1 Mr. Cabral argues that it was improper for the Court of Federal Claims to dismiss his action for lack of jurisdiction sua sponte before the United States investigated the claim’s merits and responded. This argument is meritless because the law is well-settled that a trial court has the responsibility to determine its own jurisdiction sua sponte whenever it appears it may be lacking. Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir. 1988). For the reasons set forth below, the court’s order is affirmed. Mr. Cabral filed a complaint against the United States in the Court of Federal Claims seeking reimbursement of past and future wage garnishments in accordance with a California court order mandating child support. In his complaint, Mr. Cabral relies on the First Amendment and the Due Process Clause of the Fifth Amendment 2 to provide jurisdiction in the Court of Federal Claims. Cabral v. United States, Case No. 07-872C (Ct. Cl. 2008). The Court of Federal Claims concluded that it lacked subject matter jurisdiction over Mr. Cabral’s claims because nothing in the First Amendment or the Due Process Clause of the Fifth Amendment explicitly or implicitly obligates the Federal Government to pay money damages. Mr. Cabral also alleges that 28 U.S.C. § 2201 allocates authority to the Court of Federal Claims to render declaratory relief when no other avenue for remedy is available. The Court of Federal Claims concluded that 28 U.S.C. § 2201 does not provide any basis for jurisdiction and that it lacks jurisdiction to grant declaratory judgments. This court reviews de novo the Court of Federal Claims’ dismissal of Mr. Cabral’s complaint for lack of jurisdiction. See Samish Indian Nation v. United States, 419 F.3d 1355, 1363 (Fed. Cir. 2005). In conducting its review, this court assumes that the facts pled by Mr. Cabral are true. See id. at 1364. 2 Mr. Cabral’s original complaint relies on the Fourteenth Amendment. Because the Fourteenth Amendment does not apply to the Federal Government, the Court of Federal Claims reinterpreted Mr. Cabral’s claim as relying upon the Fifth Amendment. 2008-5044 2  The Court of Federal Claims is a court of limited jurisdiction. See Tucker Act, 28 U.S.C. §1491 (waiving the sovereign immunity of the United States). However, any claim for money damages against the United States must be premised upon an express or implied contract, or under a money-mandating constitutional provision, statute, or regulation. 28 U.S.C. § 1491 (a)(1); Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc). Therefore, whether the Court of Federal Claims has jurisdiction over Mr. Cabral’s case depends on whether any of the constitutional or statutory provisions on which he relies are money-mandating. The law is well-settled that the constitutional provisions—the First Amendment and Due Process Clause of the Fifth Amendment—are not money-mandating in these circumstances. See LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995); Mullenberg v. United States, 857 F.2d 770, 773 (Fed Cir. 1988); United States v. Connolly, 716 F.2d 882, 886-87 (Fed. Cir. 1983). The statutes on which Mr. Cabral relies are similarly unavailing. Section 2201 of Title 28, the Federal Declaratory Judgment Act, does not provide any basis for jurisdiction of the Court of Federal Claims. See Rolls-Royce v. United States, 364 F.2d 415, 420 (Ct. Cl. 1966) (“The [Declaratory Judgment] statute is a procedural one and does not supply an independent ground of jurisdiction where none otherwise exists.”) On appeal, Mr. Cabral also avers that he is entitled to compensation under the California Family Code § 3653. However, the Court of Federal Claims does not have jurisdiction over claims founded on state law. Souders v. South Carolina Public Service Authority, 497 F.3d 1303, 1307 (Fed. Cir. 2007). Accordingly, the Court of Federal Claims lacks jurisdiction to hear Mr. Cabral’s claims. 2008-5044 3  CONCLUSION For the foregoing reasons, we affirm the decision of the Court of Federal Claims. No costs. 2008-5044 4 

PD-0245-15 PD-0245-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/28/2015 1:56:01 PM Accepted 4/29/2015 10:52:06 AM ABEL ACOSTA CLERK April 29, 2015 

Filed 8/20/20 P. v. Harper CA2/6 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 SIX THE PEOPLE, 2d Crim. No. B302033 (Super. Ct. Nos. 18CR8466, Plaintiff and Respondent, 19CR04163) (Santa Barbara County) v. RAMON MARQUEZ HARPER, Defendant and Appellant. Appellant Ramon Marquez Harper pled no contest to one count of robbery (Pen. Code, § 211)1 in case number 18CR08466 and two counts of inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), in case number 19CR04163. He also admitted to having one prior strike conviction. The trial court imposed an agreed-upon sentence of 8 years in state prison and ordered appellant to pay restitution fines totaling $600 (§1202.4) and parole revocation fines in the same amount. 1 All further statutory references are to the Penal Code. (§1202.45.) Appellant contends the trial court erred when it refused to stay the restitution fines based on his inability to pay. (See, e.g., People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) We affirm. FACTS The facts of appellant’s substantive offenses are not relevant here, because he challenges only imposition of the restitution fines. Briefly, appellant and a co-defendant used a large kitchen knife to rob the guests at a house party in Santa Barbara. In a separate incident, appellant struck his girlfriend in the mouth, causing injury. He later pinched and twisted the skin of his girlfriend’s leg, causing her to bleed. At the sentencing hearing, the trial court imposed the agreed upon sentence of eight years. It imposed various fines and assessments, a restitution fine of $300 in each case (§1202.4) and a parole revocation restitution fine of $300 in each case. (§1202.45.) Appellant’s trial counsel stated, “I would just make the application of People v. Duenas as it relates to any and all fines and fees the Court assesses under that case and others that follow.” (Italics added.) The prosecutor argued “Dueñas is no longer binding on this Court. There’s a case that came down that specifically disagreed with Dueñas. You look under an 8th Amendment analysis under cruel and unusual for the fines.” (Italics added.) The trial court replied, “As to the fine, the Court has reduced it to the minimum $300 [§]1202.45 fine in each case.” DISCUSSION Relying on Dueñas, supra, 30 Cal.App.5th 1157, appellant contends the trial court erred when it declined to stay the restitution fine entirely, because he is indigent. He asserts that, 2 during his 8-year prison sentence, his prison wages, if any, will not be enough to pay the fines and that he has no other assets from which to satisfy the debt. Respondent contends imposition of the restitution fines did not violate due process or the Eighth Amendment prohibition against excessive fines. Our Supreme Court is in the process of deciding whether due process imposes that requirement or whether restitution fines are more properly reviewed under the excessive fines clause of the Eighth Amendment. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844; see also People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946.) Resolving this case, however, does not require us to reach either of these thorny constitutional questions because Dueñas is distinguishable. The appellant in Dueñas, committed a misdemeanor and was on probation. She was also indigent, homeless, unemployed, disabled by cerebral palsy, primarily responsible for the care of her two young children and unable to work. (People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson); Duenas, supra, 30 Cal.App.5th at p. 1160.) Appellant, by contrast, was sentenced to state prison after committing three felonies. He is 22 years old and does not have child care responsibilities. Appellant is a high school graduate who has worked in construction. There is no indication that he is homeless, has a physical disability or chronic illness, or that he suffers from serious mental illness or substance abuse. Appellant will have the ability to earn wages while in prison and after his release. In short, nothing in the record supports the claim that he will never be able to pay the $600 in restitution fines assessed 3 against him. Any due process violation arising from the court’s failure to consider appellant’s ability to pay the restitution fines was thus harmless beyond a reasonable doubt. (People v. Jones (2019) 36 Cal.App.5th1028, 1035; Johnson, supra, 35 Cal.App.5th at pp. 139-140, citing Chapman v. California (1967) 386 U.S. 18, 24.) DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED. YEGAN, Acting P. J. We concur: PERREN, J. TANGEMAN, J. 4  Von N. Deroian, Judge Superior Court County of Santa Barbara ______________________________ Richard Lennon, Executive Director, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, Yun K. Lee, Deputy Attorney General, for Plaintiff and Respondent. 

[Cite as State v. Cottrell, 2012-Ohio-2634.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 97629 STATE OF OHIO PLAINTIFF-APPELLEE vs. STEVE COTTRELL DEFENDANT-APPELLANT JUDGMENT: REVERSED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-409361 BEFORE: E. Gallagher, J., Celebrezze, P.J., and Cooney, J. RELEASED AND JOURNALIZED: June 14, 2012 ATTORNEY FOR APPELLANT Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor BY: Mary McGrath Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.: {¶1} Steve Cottrell appeals from the trial court’s denial of his motion to void judgment. Cottrell argues that he is entitled to a de novo sentencing hearing because the trial court failed to impose a mandatory period of postrelease control and that his judgment of conviction journalized May 2, 2002 is not a final, appealable order. For the following reasons, we reverse the decision of the trial court and remand the matter for resentencing for the proper imposition of postrelease control. {¶2} On March 28, 2002, a jury found Cottrell guilty of one count of aggravated murder with firearm and criminal gang activity specifications and three counts of attempted murder with firearm and criminal gang activity specifications. On April 26, 2002, the trial court sentenced Cottrell to 20 years to life for aggravated murder, three years for the firearm specification and three years for the criminal gang activity specification, to be served consecutively to each other; five years for one count of attempted murder to be served consecutive to the aggravated murder charge and five years each on the remaining attempted murder charges to run concurrently to the other sentences. Lastly, the trial court sentenced Cottrell to the possibility of five years of postrelease control under R.C. 2967.28 for each count. {¶3} Cottrell appealed and this court affirmed his conviction and sentence. See State v. Cottrell, 8th Dist. No. 81356, 2003-Ohio-5806. {¶4} On August 3, 2011, Cottrell filed a motion to void judgment, which the state opposed. On November 1, 2011, the trial court denied Cottrell’s motion. Cottrell appeals, raising the two assignments of error contained in the appendix to this opinion. {¶5} In his first assignment of error, Cottrell argues that he is entitled to a de novo sentencing hearing because the trial court failed to properly impose the mandatory terms of postrelease control for his convictions. We agree, in part, with Cottrell’s argument. {¶6} When the trial court sentenced Cottrell on April 26, 2002, the trial court stated “the possibility of postrelease control is a part of this prison sentence for a period of five years on each count for the above felony(s) under R.C. 2967.28.” {¶7} R.C. 2967.28 provides: (B) Each sentence to a prison term for a felony of the first degree, for a felony of the second degree, * * * shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender’s release from imprisonment. * * * (1) For a felony of the first degree * * *, five years[.] {¶8} In State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, the Ohio Supreme Court concluded that postrelease control must be imposed upon a defendant who receives an indefinite sentence of life in prison with parole eligibility for a first-degree felony conviction. See State v. Falkenstein, 8th Dist. No. 96659, 2011-Ohio-5188. Of paramount concern to the court was the legislative intent in enacting R.C. 2967.28. The Supreme Court found that the statute’s plain, unambiguous language expressly requires the inclusion of a mandatory postrelease control term of five years for each prison sentence for felonies of the first degree and felony sex offenses. McCormick; Falkenstein. The Supreme Court determined that “[b]ecause R.C. 2967.28(B)(1) is phrased in broad, sweeping language,” the courts “must accord it broad, sweeping application.” McCormick. Thus, “[a]lthough it could be implied from [R.C. 2967.28(F)] that postrelease control is unnecessary for indefinite or life sentences, there is no specific language in either this or other provisions that modifies the express language in R.C. 2967.28(B)(1) requiring postrelease control.” McCormick; Falkenstein. “That is, R.C. 2967.28(B)(1) is not expressly limited to definite sentences; instead, it applies broadly to ‘[e]ach sentence to a prison term for a felony of the first degree.’” McCormick; Falkenstein.1 {¶9} Because Cottrell was sentenced on four first-degree felony charges, five years of postrelease control is mandatory, not merely a possibility, and the trial court erred when it denied his motion. The state concedes as much. {¶10} Thus we remand the matter for resentencing. However, this remand is not a de novo sentencing hearing as argued by Cottrell, but it is limited to the proper imposition of postrelease control. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at paragraph two of the syllabus. {¶11} In his second assignment of error, Cottrell argues that his judgment of conviction, which was journalized May 2, 2002, is not a final, appealable order because 1 While we note that Cottrell will be subject to a period of parole under his indefinite sentence for aggravated murder, this appeal is limited to the correct application of postrelease control. As such, we will limit our discussion to the issue of postrelease control. See R.C. 2967.28(F)(4). the clerk of court’s stamp of “received for filing” is inadequate. We overrule this assignment of error. {¶12} Cottrell could have raised this argument on his direct appeal in 2003; as such, this argument is precluded by the doctrine of res judicata. Fischer. Further, Cottrell’s judgment of conviction is time stamped by the clerk of courts, which established that it was received by the clerk of court’s office on May 2, 2002. This court reviewed his judgment of conviction in his direct appeal. {¶13} Cottrell’s second assignment of error is overruled. {¶14} The judgment of the trial court is reversed, and the matter remanded for a limited resentencing to properly impose postrelease control. It is ordered that appellant recover of said appellee costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the lower court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. EILEEN A. GALLAGHER, JUDGE FRANK D. CELEBREZZE, JR., P.J., and COLLEEN CONWAY COONEY, J., CONCUR  Appendix A Assignments of Error: I. “Whether the trial court erred by failing to accord defendant a de novo hearing on his motion for sentencing where the record (journal entry) on its face presents a prima facie case for the requested relief.” II. “Where the failure to properly file the attempted journal entry finding guilt and imposing sentence offends due process.” 

Fourth Court of Appeals San Antonio, Texas August 21, 2019 No. 04-19-00271-CV Prema DURAIRAJ, Appellant v. Govindasamy DURAIRAJ, Individually; Govindasamy Durairaj, as trustee of the G. Durairaj Children's Trust; Govindasamy Durairaj, as trustee of the Govingdasamy and Prema Durairaj Living Trust; Govindasamy Durairaj, as trustee in the derivative capacity of Suriya Family Limited Partnership; and Vijai Durairaj; Appellees From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2017CI13549 Honorable Peter A. Sakai, Judge Presiding ORDER In accordance with this court’s memorandum opinion of this date, Prema Durairaj’s petition for permission to appeal is DENIED, and this appeal is DISMISSED FOR LACK OF JURISDICTION. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d),(f). Costs of this appeal are taxed against the petitioner, Prema Durairaj. It is so ORDERED on August 21, 2019. _____________________________ Irene Rios, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 21st day of August, 2019. ___________________________ Keith E. Hottle, Clerk of Court 

T.C. Memo. 2013-96 UNITED STATES TAX COURT JOHN E. MCALLISTER, JR., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 19412-09. Filed April 8, 2013. John E. McAllister, Jr., pro se. Mark J. Tober, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION MORRISON, Judge: The respondent issued a notice of deficiency determining a $26,696 deficiency in the petitioner’s federal income tax and a $5,339 accuracy-related penalty under section 6662(a) for tax year 2007. Unless otherwise indicated, all section references are to the Internal Revenue Code as in  -2- [*2] effect for the 2007 tax year. The respondent is referred to as the IRS; the petitioner is referred to as McAllister. The issues for decision are: (1) Did McAllister receive unreported compensation income of $78,849 during the 2007 tax year, or in the alternative, did McAllister receive $78,849 of unreported cancellation-of-debt income (before application of the insolvency exception of section 108(a)(3))? We hold that McAllister did not receive $78,849 of unreported compensation income. However, we hold that McAllister received $78,849 of unreported cancellation-of-debt income (before application of the insolvency exception of section 108(a)(3)). (2) What portion of the $78,849 of unreported cancellation-of-debt income is excludable from McAllister’s income because he was insolvent? We hold that $22,641.42 is excludable from McAllister’s income. (3) Is McAllister liable for an accuracy-related penalty under section- 6662(a)? We hold that he is not.  -3- [*3] FINDINGS OF FACT McAllister timely filed a petition with the Tax Court disputing the determinations of the IRS. At the time of filing, McAllister resided in North Carolina. In 2005 McAllister worked as an employee for Suncoast Roofers Supply. During this time he borrowed money from Suncoast Roofers Supply as follows: Date Amount Feb. 21, 2005 $11,480.00 Oct. 21, 2005 29,869.07 Nov. 16, 2005 2,500.00 Dec. 2, 2005 9,000.00 Dec. 19, 2005 26,000.00 Total 78,849.07 Suncoast Roofers and McAllister executed a promissory note for each of the advances. Pursuant to the loan arrangements, McAllister was to repay the loans from bonuses earned through incentive plans as part of his compensation. Suncoast Roofers agreed to pay McAllister the amounts of any tax liabilities from the earning of bonuses. The loans had no repayment date and required no interest payments. McAllister made no repayments of the loans.  -4- [*4] In 2007 Suncoast Roofers ran into financial difficulties. By August 2007 McAllister was no longer its employee. Suncoast Roofers was sold to Suncoast Acquisition Corp. McAllister timely filed Form 1040, U.S. Individual Income Tax Return, for 2007 in March 2008. In May 2008 Suncoast Acquisition Corp. issued McAllister a Form 1099-MISC, Miscellaneous Income, showing the amount of the loans and characterizing the amount as nonemployee compensation paid in 2007. On his Form 1040 McAllister did not report as income the $78,849.07 that was later reported to him on the Form 1099-MISC. On May 11, 2009, the IRS issued the notice of deficiency. OPINION 1. Did McAllister receive unreported compensation income of $78,849 during the 2007 tax year, or in the alternative, did McAllister receive $78,849 of unreported cancellation-of-debt income (before application of the insolvency exception of section 108(a)(1)(B))? The taxpayer bears the burden of proving by a preponderance of the evidence that the IRS’s determinations in the notice of deficiency are incorrect. Tax Ct. R. Pract. & Proc. 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933); Bronstein v. Commissioner, 138 T.C. 382, 385 (2012). Under section 7491(a), if the taxpayer produces credible evidence with respect to any factual issue relevant to ascertaining the taxpayer’s liability for tax and meets other requirements, the  -5- [*5] burden of proof rests on the IRS as to that factual issue. Our conclusions here are based on the preponderance of the evidence, and thus the allocation of the burden of proof is immaterial. See Martin Ice Cream Co. v. Commissioner, 110 T.C. 189, 210 n.16 (1998). Gross income includes all income from whatever source derived. Sec. 61(a). Gross income includes compensation for services. Sec. 61(a)(1). Gross income also generally includes income from the cancellation of debt. Sec. 61(a)(12); United States v. Kirby Lumber Co., 284 U.S. 1, 3 (1931). It is undisputed that Suncoast Roofers loaned McAllister $78,849.07 in 2005. The IRS contends that in 2007 Suncoast Roofers awarded McAllister a bonus of $78,849.07 that he used to repay the $78,849.07 in loans. Thus, the IRS contends, McAllister must include $78,849.07 in income as compensation. McAllister takes the position that he did not receive a constructive bonus in 2007 and that either (1) the loans were not canceled because he still intends to pay them back, or (2) alternatively, even if the loans were canceled in 2007 he was insolvent. McAllister credibly testified that Suncoast Roofers did not inform him of a bonus (constructive or otherwise) of $78,849.07 in 2007. By August 2007 McAllister was no longer an employee of Suncoast Roofers. Suncoast Roofers  -6- [*6] experienced financial difficulties during 2007 leading to its eventual sale. Therefore, we reject the IRS’s contention that McAllister earned a $78,849.07 constructive bonus in 2007. However, we find the loans totaling $78,849.07 were canceled in 2007. Suncoast Roofers was acquired by another company, Suncoast Acquisition Corp., which never contacted McAllister about paying back the loans. The Form 1099- MISC, we find, memorialized Suncoast Acquisition Corp.’s decision to forgive the McAllister debt that it acquired from Suncoast Roofers. The Form 1099-MISC improperly1 classified the amount of the forgiven debt as nonemployee compensation income of $78,849.07. We find this was a bookkeeping error rather than a reflection that McAllister had been awarded a bonus. We find that by the end of 2007 it was clear that McAllister would not have to repay the debt. Therefore, McAllister had $78,849.07 in cancellation-of-debt income in 2007. Cozzi v. Commissioner, 88 T.C. 435, 445 (1987) (“The moment it becomes clear that a debt will never have to be paid, such debt must be viewed as having been discharged.”). 1 The proper form to issue when canceling debt is a Form 1099-C, Cancellation of Debt.  -7- [*7] 2. What portion of the $78,849 of unreported cancellation-of-debt income is excludable from McAllister’s income because he was insolvent? Section 108(a)(1)(B) excludes discharge of indebtedness income from gross income if the discharge occurs when the taxpayer is insolvent. The amount of income excluded under section 108(a)(1)(B) cannot exceed the amount by which the taxpayer is insolvent. Sec. 108(a)(3). The amount by which the taxpayer is insolvent is defined as the excess of the taxpayer’s liabilities over the fair market value of the taxpayer’s assets. Sec. 108(d)(3). Whether a taxpayer is insolvent and by what amount is “determined on the basis of the taxpayer’s assets and liabilities immediately before the discharge.” Id. McAllister claims that his assets and liabilities at the end of 2007 were as follows: Assets Amount Bank accounts $2,667.07 Savings account 2,000.66 Real estate FL 130,000.00 Real estate NC 175,000.00 Automobile 22,000.00 Total 331,667.73  -8- [*8] Liabilities Amount Home Depot account 4,879.00 Mortgages 363,068.15 State taxes 1,485.00 Automobile loan 19,897.00 Total 389,329.15 Amount of insolvency 57,661.42 Insolvency is a question of fact. See Toledano v. Commissioner, 362 F.2d 243, 245 (5th Cir. 1966), aff’g T.C. Memo. 1963-200; Smith v. Commissioner, 249 F.2d 218, 220, 221 (5th Cir. 1957), aff’g T.C. Memo. 1955-183; Estate of Phillips v. Commissioner, 246 F.2d 209, 213-214 (5th Cir. 1957), rev’g T.C. Memo. 1955- 139; 14A Jacob Mertens, Law of Federal Income Taxation, sec. 54.5 (2013). McAllister has the burden of proving his claim that he was insolvent. See Tax Ct. R. Pract. & Proc. 142(a). At trial McAllister provided credible testimony that his assets and liabilities were what he claimed they were, except that there is legitimate doubt about the exact values he placed on the North Carolina and Florida real estate. We consider the appropriate value of each of these properties in turn. North Carolina McAllister testified that he purchased the property in North Carolina for $191,020 in December 2006 but that by the end of 2007 its value had declined to $175,000. He based the $175,000 estimate on a sale of a property in the same neighborhood in January 2007. The IRS contends that the value of the North  -9- [*9] Carolina property was $201,650, which was the property’s assessed value for local property tax purposes in January 2008. We find that the value of McAllister’s property was $191,020 at the end of 2007. This is the price at which McAllister had bought the property a year before. We do not rely on the January 2007 sale of another property. The sale took place only a month after the purchase of McAllister’s property, and we doubt that the property was comparable to McAllister’s property. We do not rely on the assessed value of McAllister’s property for local property tax purposes. “[A] value placed upon property for the purpose of local taxation, unsupported by other evidence, cannot be accepted as determinative of fair market value for Federal income tax purposes in the absence of evidence of the method used in arriving at that valuation.” Pierce v. Commissioner, 61 T.C. 424, 431 n.6 (1974). The IRS did not provide any information on the method the local government used to assess the property. Thus, we cannot rely on this valuation. Florida McAllister credibly testified that he purchased the property in Florida in March 2005 for $149,000. He testified that its value by the end of 2007 was $130,000 based on its assessed value for local property tax purposes. He did not  - 10 - [*10] explain the method by which the assessed value was determined. We find that the value of the property at the end of 2007 was $149,000. Conclusion In summary, we find that McAllister’s liabilities at the end of 2007 exceeded his assets by $22,641.42. Assets Amount Bank accounts $2,667.07 Savings account 2,000.66 Real estate FL 149,000.00 Real estate NC 191,020.00 Automobile 22,000.00 Total 366,687.73 Liabilities Home Depot account 4,879.00 Mortgages 363,068.15 State taxes 1,485.00 Automobile loan 19,897.00 Total 389,329.15 Amount of insolvency 22,641.42 The amount of income excluded under the insolvency exception of section 108(a)(1)(B) is limited to the amount of the insolvency. Sec. 108(a)(3). Of the $78,849.07 of cancellation-of-debt income, $22,641.42 is excludable from McAllister’s income. The remaining amount--$56,207.65--is included in income.  - 11 - [*11] 3. Is McAllister liable for the accuracy-related penalty pursuant to section 6662(a)? Section 6662(a) and (b)(2) impose a penalty equal to 20% of the part of an underpayment attributable to a substantial understatement of income tax. Generally, an “understatement” is the excess of tax required to be shown on the return over the tax shown on the return. Sec. 6662(d)(2)(A); sec. 1.6662-4(b)(2), Income Tax Regs. An understatement of income tax is substantial if it exceeds the greater of 10% of the tax required to be shown on the return or $5,000. Sec. 6662(d)(1)(A); sec. 1.6662-4(b)(1), Income Tax Regs. The IRS has the burden of producing evidence that a taxpayer is liable for penalties. Sec. 7491(c). The IRS satisfies its burden by producing “sufficient evidence indicating that it is appropriate to impose the relevant penalty.” Higbee v. Commissioner, 116 T.C. 438, 446 (2001). Once the IRS satisfies its burden of production, the taxpayer has the burden of persuading the fact finder that he or she is not liable for additions or penalties. Id. at 446-447. In this case, the IRS has satisfied its burden of production if the Rule 155 computations show a substantial understatement of income tax. McAllister did not report cancellation-of-indebtedness income, resulting in an underpayment of tax. The section 6662 penalty is not imposed on an  - 12 - [*12] underpayment if the taxpayer (i) had a reasonable cause for and (ii) acted in good faith regarding the underpayment. See sec. 6664(c)(1); sec. 1.6664-4(a), Income Tax Regs. The taxpayer bears the burdens of both production and proof as to whether this exception applies. See Higbee v. Commissioner, 116 T.C. at 446 (stating that the IRS “need not introduce evidence regarding reasonable cause, substantial authority, or similar provisions”). On the basis of our review of the record, McAllister had reasonable cause for, and acted in good faith with respect to the underpayment. Accordingly, he is not liable for the section 6662(a) accuracy-related penalty. Decision will be entered under Rule 155. 

109 Mich. App. 15 (1981) 310 N.W.2d 893 PEOPLE v. LONGWISH. Docket No. 53006. Michigan Court of Appeals. Decided August 19, 1981. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people. Gary Granader, for defendant on appeal. Before: D.C. RILEY, P.J., and CYNAR and H.R. GAGE,[*] JJ. PER CURIAM. Defendant was charged with the crime of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA *17 28.424(2). On June 2, 1980, defendant pled guilty to the count of armed robbery and was sentenced to serve one year and one day to three years in prison. The felony-firearm count was dismissed pursuant to defendant's motion. The people bring this appeal challenging the propriety of the dismissal of the felony-firearm count. The charges against defendant stemmed from the armed robbery of a Little Caesar's pizzeria on February 27, 1980. The manager of the pizzeria testified at the preliminary examination that a young man and young woman had entered the store, that the young woman had pointed a pistol at him and demanded money, that he had handed over the money, and that the pair then left, running to a car. A Livonia police officer testified that he arrested defendant based on the strength of information from a female juvenile who stated that she had robbed the store with the defendant. This juvenile told the officer that defendant had taken the gun, belonging to his father, from his house without the father's knowledge. The officer further testified that when arrested, defendant admitted to having some money from the robbery and agreed to go to his house to retrieve the pistol used in the robbery. The pistol was given to the officer by defendant's father at his house. A statement made by defendant to the police indicated that defendant had taken the pistol from his father's drawer, had driven to a gas station where he had given the gun to another female who robbed the gas station, and then drove to Little Caesar's where he gave the gun to the female juvenile. In pleading guilty, defendant admitted having knowingly participated in the armed robbery but indicated that during the robbery *18 the female juvenile held the gun which came from his father's drawer. At the time this matter was in circuit court, there was a split in the Court of Appeals concerning application of the aider and abettor statute to the felony-firearm statute. That conflict has since been resolved in People v Johnson, 411 Mich 50; 303 NW2d 442 (1981), wherein the Court held that one may be convicted of aiding and abetting the commission of a separately charged crime of carrying or having a firearm in one's possession during the commission of a felony, if it is established that the defendant procured, counseled, aided or abetted and so assisted in obtaining the proscribed possession or in retaining such possession otherwise obtained. 411 Mich 50, 54. Although the trial court's dismissal of the felony-firearm count, under the facts of this case, was erroneous in view of the Johnson decision, it was validly supported at the time by the decisions in People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978). The issue in the present case, therefore, is whether the decision in Johnson is to be applied retroactively. Generally, full retroactivity is the rule, and prospectivity is the exception. People v Markham, 397 Mich 530, 548; 245 NW2d 41, 49 (1976) (LEVIN, J., dissenting), People v Young, 410 Mich 363, 373; 301 NW2d 803 (1981) (LEVIN, J., concurring and dissenting), People v Bryant, 80 Mich App 428, 435; 264 NW2d 13 (1978). Retroactivity may be limited, however, when a balancing of three factors so dictates. The three factors are: (1) the purpose of the new rule; (2) the general reliance upon the old rule; and (3) the effect of retroactive application of the new rule on the administration of justice. People v Young, supra, 366. *19 Applying the first factor, it is clear that the purpose of the rule announced in Johnson was to mend the split concerning application of the felony-firearm statute which had developed within this Court by providing criteria for determining guilt based on participation not involving actual possession or use of a firearm during the commission of a felony. The Court's choice of granting leave to decide two cases involving conflicting results indicates the Supreme Court's purpose was to clarify existing law. This purpose supports retroactive application of the rule since such an application would serve to reconcile the inconsistent results under the felony-firearm statute which have preceded the new rule. Such a reconciliation would provide for a uniform application of criminal justice. In addition, relying upon People v Kamin, 405 Mich 482; 275 NW2d 777 (1979), this Court has indicated that a purpose of clarifying existing law is sufficient for the retroactive application of a rule of law. People v Slager, 105 Mich App 593; 307 NW2d 376 (1981), People v Szymanski, 102 Mich App 745, 747; 302 NW2d 316 (1981). The second and third factors may be considered together, as the extent of the reliance on the old rule often determines the effect upon the administration of justice. People v Hampton, 384 Mich 669, 677; 187 NW2d 404 (1971), People v Taylor, 99 Mich App 613, 616; 299 NW2d 9 (1980). Where there has been profound reliance on the old rule, the effect of retroactive application of the new rule on the administration of justice could be marked, People v Rich, 397 Mich 399, 403; 245 NW2d 24 (1976). It cannot be said that there has been profound reliance on the old rule. In fact, the "old rule" consisted of two or more inconsistent *20 applications which led to the split in this Court. In addition, the statute, enacted on January 1, 1977, is a virtual legislative newborn and, as such, has not been the subject of profound reliance. Thus, retroactive application, in all likelihood, will not cause a disruption of the administration of justice. The Supreme Court in Markham, supra, 547, indicated that the third retroactivity factor focuses primarily on the impact on prosecutorial and judicial resources of requiring a large number of retrials. While it cannot be said that retroactive application of the rule will not lead to retrials, this Court is not of the opinion that such retrials as do occur will be particularly burdensome. In order to insure that retrials remain at a reasonable level, we limit retroactive application of the new rule to those appeals which were pending at the time that Johnson was decided. See People v Kamin, supra, 495, People v Reese, 97 Mich App 785; 296 NW2d 172 (1980). Such application will serve a two-fold purpose: it limits the number of felony-firearm cases to be retried and it provides consistency in the application of the statute in those cases pending on appeal, insuring that cases before this Court will receive the same disposition that Supreme Court cases have in the past. People v Bryant, supra, 437. We vacate the order dismissing the felony-firearm count against defendant and remand the case to the trial court for further proceedings to determine the felony-firearm count consistent with the rule announced in Johnson. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.

603 F.3d 119 (2010) ST. PAUL FIRE & MARINE INSURANCE CO., Plaintiff, Appellee, v. VDE CORPORATION, Defendant, Appellant, Banco Santander Puerto Rico, Defendant. No. 08-2576. United States Court of Appeals, First Circuit. Heard November 3, 2009. Decided May 5, 2010. *120 Edilberto Berríos-Pérez, with whom Fernando E. Longo-Quiñones and Berríos & Longo Law Offices, P.S.C., were on brief for appellant. Leslie Alvarado-Lliteras, with whom Carlos A. Steffens and Alvarado, Viñas & Fernández, P.S.C., were on brief for appellee. Before TORRUELLA, LIPEZ and HOWARD, Circuit Judges. LIPEZ, Circuit Judge. Defendant VDE Corporation (VDE) appeals from the district court's grant of summary judgment in favor of plaintiff St. Paul Fire & Marine Insurance Company (St. Paul) releasing St. Paul from its obligations under a construction performance bond. After careful review, we affirm. I. The relevant facts are largely undisputed. In the spring and summer of 2005, VDE arranged for the construction and financing of a residential real estate project, Villas Del Este Project, in Gurabo, Puerto Rico (the project). In April 2005, VDE entered into a construction contract with F & R Contractors Corporation (F & R), engaging the company to serve as contractor for the project. VDE obtained financing for the project from Banco Santander Puerto Rico (BSPR). On June 28, 2005, St. Paul, as surety, issued a performance bond (the bond) for the benefit of VDE, as obligee, to guarantee performance under the construction contract by F & R, as principal. The bond was a standard document, the American Institute of Architects document A312 performance bond (AIA A312). That same day, St. Paul issued a "dual obligee rider" to the bond, adding BSPR as a co-obligee. Paragraph 4 of the surety bond sets forth St. Paul's options for performance in the event that F & R defaults under the construction contract. Paragraph 4 provides: When the Owner [VDE] has satisfied the conditions of Paragraph 3 [setting *121 forth requirements for declaring contractor default], the Surety [St. Paul] shall promptly and at the Surety's expense take one of the following actions: 4.1 Arrange for the Contractor [F & R], with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. (Emphasis added.) On November 7, 2007, VDE declared F & R in default on its obligations as contractor and terminated F & R's right to continue work on the project. In support of its declaration of default, VDE stated that F & R had refused to abide by its contractual obligations, failed to work at a reasonable pace, abandoned work on the project, insisted on collecting payments not due, and failed to act in good faith. Two days later, VDE notified St. Paul that it had declared F & R in default and requested that St. Paul perform its obligations under the bond. VDE informed St. Paul that it "oppose[d] that the project be completed with F & R as contractor, either directly or indirectly." On November 16, St. Paul requested certain documentation from VDE in order to investigate VDE's allegations of contractor default. St. Paul also acknowledged VDE's statement that it opposed the use of F & R as completion contractor and advised VDE that "should the Surety choose to complete under Paragraph 4.2 of the Bond, the terms of the Bond do not allow the Obligee to oppose the contractor that the Surety selects as its own completion contractor, whether it be the Principal or otherwise." On December 6, St. Paul informed VDE that it had not yet received much of the requested documentation related to its investigation of VDE's allegations of contractor default. St. Paul listed the missing documents and asked that VDE provide the information as soon as possible. VDE responded that same day, asserting that "[t]he time for the surety to act has expired" and declaring St. Paul in default on its obligations under the bond. On December 14, following VDE's declaration that St. Paul was in default, St. Paul filed this declaratory judgment action against VDE and BSPR in federal district court. St. Paul requested a declaration *122 that, inter alia, VDE had breached the terms of the bond by not permitting the surety to take action under the circumstances set forth in Paragraph 4 of the bond, and asked that St. Paul be released from its obligations under the bond. VDE and BSPR filed counterclaims, alleging that St. Paul had failed to perform its obligations under the bond. On December 26, VDE provided St. Paul with some of the documentation previously requested, and stated again that it would "not consent to F & R performing additional work at the project, either directly or indirectly." VDE further stated that it would provide St. Paul with an additional fifteen-day period to perform. On January 10, 2008, St. Paul notified VDE that it intended to undertake completion of the project pursuant to Paragraph 4.2 of the bond, using F & R as completion contractor. St. Paul explained that if VDE "maintains the position that the Surety may not use F & R Contractors to complete under Paragraph 4.2 of the Performance Bond, VDE will be in breach of the terms and conditions of the Bond and not only will VDE be waiving its rights under the Bond, but this will also serve to discharge the obligations of the Surety thereunder." VDE responded the following week, maintaining that under Paragraph 4.2 of the bond it had the authority to withhold consent to the use of F & R as the completion contractor. The district court granted summary judgment to St. Paul. The court reasoned that VDE materially breached the bond by insisting that St. Paul could not undertake to complete the project using F & R as completion contractor, contrary to the plain language of Paragraph 4.2, and released St. Paul from its obligations under the bond. The district court dismissed the counterclaims with prejudice. VDE filed this timely appeal from the judgment.[1] II. VDE contends that the district court erroneously granted summary judgment to St. Paul because, under Paragraph 4 of the bond, St. Paul may not undertake to perform and complete the construction contract through the original contractor without VDE's consent. VDE further argues that even if consent is not ordinarily required by Paragraph 4, it is required where, as here, VDE has alleged that the original contractor acted in bad faith. Summary judgment is properly granted where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the district court's grant of summary judgment de novo, drawing all reasonable inferences from the facts in the nonmoving party's favor. Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 446 (1st Cir.2009). This case arises under our diversity jurisdiction, and therefore we apply Puerto Rico law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). As a general matter, "surety contracts are subject to the same rules of construction as other contracts. The terms of surety obligations, therefore, `should be interpreted as a whole, and not out of the context of all the other terms.'" In re Sinking of M/V Ukola, 806 F.2d 1, 5 (1st Cir.1986) (citations omitted) (quoting Martin v. Vector Co., 498 F.2d 16, 23 (1st Cir.1974)). Under Puerto Rico law, if *123 "`the text of a bond agreement is clear, or the true meaning of its clauses can be easily discerned, the courts should adhere to its text.'" Citibank v. Grupo Cupey, Inc., 382 F.3d 29, 31-32 (1st Cir.2004) (quoting Caguas Plumbing, Inc. v. Cont'l Constr. Corp., 2001 T.S.P.R. 164, 2001 WL 1618390, at *5 (P.R. Nov. 30, 2001)); see also P.R. Laws Ann. tit. 31, § 3471 ("If the terms of a contract are clear and leave no doubt as to the intentions of the contracting parties, the literal sense of its stipulations shall be observed."). Although "`[t]he prevailing doctrine is that [a surety bond] should be liberally interpreted in favor of its beneficiary,' that principle `is not a blank check to the judicial power to rule out the pacts and agreements between the parties.'" Citibank, 382 F.3d at 31 (quoting Luan Inv. Corp. v. Rexach Constr. Co., 2000 T.S.P.R. 182, 2000 WL 1847637, at *5 (P.R. Dec. 8, 2000)). Instead, the principle of liberal construction "applies only where the text of the agreement is ambiguous." Id. In this case, the text of Paragraph 4 of the bond is unambiguous on the point at issue. Paragraph 4.2, under which the surety assumes primary responsibility for completion of the construction contract, contains no provision requiring the project owner's consent as to the completion contractor. In proceeding under Paragraph 4.2, St. Paul must "[u]ndertake to perform and complete the Construction Contract itself, through its agents or through independent contractors." By its terms, Paragraph 4.2 places no restrictions on whom St. Paul can use to complete the project. See St. Paul Fire & Marine Ins. Co. v. Green River, 93 F.Supp.2d 1170, 1177 (D.Wyo.2000), aff'd 6 Fed.Appx. 828 (10th Cir.2001) (construing identical provision of performance bond and concluding that under Paragraph 4.2, "it is clear that there are no limitations on who St. Paul could utilize to complete the Project"). Paragraphs 4.1 and 4.3, however, both expressly require St. Paul to obtain VDE's consent as to the completion contractor. Under Paragraph 4.1, St. Paul must "[a]rrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract." (Emphasis added.) Similarly, under Paragraph 4.3, St. Paul is required to "[o]btain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract." (Emphasis added.) The absence of a consent requirement in Paragraph 4.2, and the presence of such a requirement in Paragraphs 4.1 and 4.3, sensibly reflects the different obligations assumed by a surety electing to proceed under each of these provisions. In choosing to proceed under Paragraph 4.2, which requires the surety to undertake to perform and complete the construction contract, St. Paul "assumed primary responsibility to complete the contract, and with that responsibility came the freedom to assemble the project team of its choosing." Green River, 93 F.Supp.2d at 1177; see also Richard S. Wisner & James A. Knox, Jr., The ABCs of Contractors' Surety Bonds, 82 Ill. B.J. 244, 246 (1994) (explaining that when a surety elects to take over and complete the project, it directly assumes the contractor's underlying contractual obligation to complete the project). Once the surety has elected to perform under Paragraph 4.2, the surety and the obligee (here VDE) negotiate an agreement, commonly called the "takeover agreement," which is "the critical document for the completing surety and obligee in defining their future rights and obligations and in establishing a clear understanding of the scope of remaining work to be completed." Philip L. Bruner & Patrick J. O'Connor, Jr., 4A Bruner & O'Connor *124 on Construction Law § 12:80 (2009). Following negotiation of the takeover agreement, the surety awards a completion contract to a contractor. Id. In contrast, a surety electing to proceed under Paragraph 4.1 must arrange for the original contractor to perform and complete the construction contract with the owner's consent, by financing the original contractor's continuing performance. See Wisner & Knox, supra, at 245-46. Under this provision, the surety "does not assume primary responsibility for completing the contract, and the owner is required to maintain an ongoing contractual relationship with the terminated contractor." Green River, 93 F.Supp.2d at 1177; see also Wisner & Knox, supra, at 246. Thus, "[w]hile it makes sense that the owner would have the right to object to such a `shotgun wedding' to the contractor it just terminated [under Paragraph 4.1], it does not follow that the [owner] would have this right when the surety assumes primary contractual responsibility [under Paragraph 4.2]." Green River, 93 F.Supp.2d at 1177 (alterations added). Our interpretation of Paragraph 4.2 is also consistent with common practices in the construction industry. The surety performance options contained in Paragraph 4 of the AIA A312 bond, the bond at issue here, are "standard in the industry." Green River, 93 F.Supp.2d at 1178; see also Bruner & O'Connor, supra, at § 12:16 (describing the A312 performance bond as "one of the clearest, most definitive, and widely used type of traditional common law `performance bonds' in private construction"). It is common practice for a surety undertaking to complete the project itself to hire the original contractor, as St. Paul elected to do here. Wisner & Knox, supra, at 246 (explaining that when the surety elects to take over and complete the construction project, it "does not undertake the construction itself but hires a new contractor, the principal, or the principal's employees under the direction of a consultant"); Bruner & O'Connor, supra, at § 12:80 (stating that "[t]he obligee has no right to unreasonably interfere with the surety's selection of its completion contractor, unless the bond provides otherwise"); Green River, 93 F.Supp.2d at 1178 ("[I]t is common practice for a surety that elects to perform the project itself to hire the principal's employees under the direction of a consultant. . . ."). VDE's arguments in support of a contrary interpretation of Paragraph 4.2 are unavailing. VDE argues that Paragraph 4.2 is ambiguous as to whether it requires owner consent. VDE contends that the capitalized term "Contractor," as used in Paragraph 4.1, refers to the original contractor, in this case F & R. VDE reasons that the term "agents" as used in Paragraph 4.2 cannot also refer to the original contractor. We do not understand these terms to create any ambiguity. If the surety elects to undertake completion of the contract using F & R as the completion contractor, as permitted under Paragraph 4.2, then F & R's role has shifted from that of original contractor to that of agent of the surety. VDE also suggests that because Paragraph 4.2 neither requires nor expressly dispenses with owner consent, "a well-founded objection to a selected `agent' prevents its selection and use by the surety." However, the text of the bond does not support this reading. As discussed above, Paragraphs 4.1 and 4.3 both expressly require owner consent as to the completion contractor, while Paragraph 4.2 contains no such consent requirement. We cannot rewrite Paragraph 4.2 to require owner consent in cases where the owner voices a "well-founded objection" to the selected contractor. *125 VDE further contends that even if Paragraph 4.2 does not ordinarily require that the owner consent to the use of the original contractor as completion contractor, owner consent was required in this case in light of VDE's allegations that F & R acted in bad faith. However, VDE provides no authority for the proposition that F & R's alleged bad faith is in any way relevant to the interpretation of Paragraph 4.2. Paragraph 4.2 places no restrictions on St. Paul's selection of a completion contractor, and does not suggest a different standard for cases in which the owner has alleged bad faith. It is understandable, in light of VDE's allegations of bad faith, that it would be concerned with St. Paul's decision to complete the project using F & R. However, in proceeding under Paragraph 4.2, St. Paul assumes primary responsibility to complete the construction contract. In the event that St. Paul fails to meet its obligations to complete the contract, VDE has a remedy against St. Paul. III. We conclude, as the district court did, that VDE materially breached the bond by insisting that St. Paul could not employ F & R as completion contractor under Paragraph 4.2. See Green River, 93 F.Supp.2d at 1179 (holding that owner's refusal to allow surety to complete construction under Paragraph 4.2 using employees of original contractor was material breach of performance bond). This breach discharged St. Paul from its obligations to perform under the bond. P.R. Laws Ann. tit. 31, § 3052.[2] Affirmed. NOTES [1] BSPR is not a party to this appeal. [2] In light of our conclusion, we need not address St. Paul's contention that there are additional, independent grounds for affirming summary judgment in its favor.

892 P.2d 164 (1995) Edna CLUFF, Appellant, v. NANA-MARRIOTT, Alaska National Insurance Co., Universal Ogden Services, Eagle Pacific Insurance Co., and the Alaska Workers' Compensation Board, Appellees. Edna CLUFF, Appellant, v. NANA-MARRIOTT, Appellee. Nos. S-6083, S-6223. Supreme Court of Alaska. March 24, 1995. *166 William J. Soule, Law Offices of William J. Soule, Anchorage, for appellant. Joseph M. Cooper, Laurence Keyes, Russell, Tesche & Wagg, Anchorage, for appellees Nana-Marriott and Alaska Nat. Ins. Co. Robert B. Mason, Law Offices of Mason & Griffin, Anchorage, for appellees Universal Ogden Services and Eagle Pacific Ins. Co. Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON, and EASTAUGH, JJ. *165 ORDER On consideration of Appellant Cluff's motion for order clarifying opinion, filed on February 14, 1995, and the responses filed on February 15 and 16, 1995, IT IS ORDERED: 1. The motion is interpreted as a petition for rehearing. 2. The ten-day filing requirement in Appellate Rule 506(b) is waived under Appellate *167 Rule 521, because Appellant could not reasonably have anticipated Nana-Marriott's lack of jurisdiction defense in the superior court until it was actually made. Furthermore, the motion was filed five days after Appellant was aware of the defense. 3. The petition for rehearing is GRANTED. a. Opinion No. 4162 issued on January 27, 1995, is WITHDRAWN. B. Opinion No. 4181 is issued in its place with the first sentence in the last paragraph at page 21 amended to read as follows: "We therefore REMAND this case to the Superior Court with directions to remand it to the Board for further proceedings consistent with this opinion." 4. The Clerk shall award Appellant Cluff actual attorney fees for the expense of making the motion to clarify against Nana-Marriott. Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ. OPINION MATTHEWS, Justice. Edna Cluff appeals from a Workers' Compensation Board (Board) determination that NANA-Marriott (NANA) was her employer for workers' compensation purposes at the time of her injury. Although Cluff was an employee of Universal Ogden Services (Universal) on the day of her injury, and has never been employed by NANA, she was taking a physical stress test which NANA required potential employees to take in order to be eligible for hire when she was injured. I. FACTS AND PROCEEDINGS On October 21, 1991, Cluff, a housekeeper employed by Universal to work at an ARCO facility on the North Slope, was injured while participating in a stress test at the facility. This test, which involved physical exercises and some lifting, was conducted by a physical therapist for the purpose of testing potential employees of NANA. ARCO had recently awarded NANA the contract for services which Universal had been providing. NANA required all potential employees to take the test. Uncontroverted evidence establishes 1) that the physical therapist who ran the test, Marsha Wakeland, had contracted with NANA and conducted the test at its direction; 2) that the test was for the purpose of evaluating potential NANA employees and reducing injuries among those hired; 3) that Universal paid Cluff for the time during which she took the test; 4) that NANA never paid Cluff any wages for this time period; and 5) that NANA never hired Cluff. The parties dispute, however, whether Cluff applied for or intended to apply for a position with NANA. The Board did not resolve any of the factual disputes between the parties. Cluff testified that she never intended to apply for a position with NANA but rather intended to wait for a position to open up with Universal. When told by one of her supervisors while she was in Fairbanks that she could apply for work with NANA at NANA's Anchorage office, she refused. She also testified that she only participated in the stress test on instructions from her supervisor. Universal and NANA assert, however, that Cluff was knowingly attempting to secure employment with NANA. A NANA supervisor, Hank Henry, testified that Cluff approached him about possible employment and that Cluff was concerned about having missed interviews which NANA had already conducted with Universal employees. He testified that he informally interviewed her and promised to recommend her to NANA's human resources department. He did not have authority to hire her. Wakeland testified that, before she began the testing, she told all test participants that she worked for NANA and what the purpose of the test was. Cluff's supervisor denied instructing Cluff to take the test and stated that Cluff had told her that she had interviewed with Henry. Cluff filed a report of injury with the Board naming Universal as her employer. In this report, she stated that she was injured "doing stress test for NANA/Marriott." Universal controverted Cluff's claim, contending that her injury did not arise out of and in the course and scope of her employment. NANA accepted responsibility for Cluff's claim and paid her temporary total *168 disability and medical benefits. On May 7, 1992, Cluff filed an application for adjustment of claim against Universal, and NANA petitioned for a determination of Cluff's correct employer. After a hearing, the Board determined that NANA was Cluff's employer for workers' compensation purposes. It first found that Cluff was performing services for NANA under an implied contract of employment and on rehearing concluded that the stress test was an integral part of a tryout period.[1],[2] Cluff appealed to the superior court; the superior court affirmed the Board. Cluff appeals to this court. In October 1993, Cluff brought a civil action for negligence against NANA, the physical therapist who conducted the stress test, and the therapist's employer. NANA moved for partial summary judgment based on collateral estoppel arising from the superior court's decision affirming the Board's determination that NANA was Cluff's employer for workers' compensation purposes. The superior court granted NANA's motion for partial summary judgment and then entered final judgment against Cluff. Cluff appeals from these orders. Cluff's workers' compensation and civil suit appeals have been consolidated on appeal. II. DISCUSSION A. Did the Board err by failing to determine whether Universal was Cluff's employer for workers' compensation purposes before deciding whether NANA was liable for benefits? The decision of the Board only addressed the question of whether Cluff was an employee of NANA for purposes of workers' compensation. The Board did not determine whether Universal could also be held liable for workers' compensation benefits. The Board did not resolve any of the factual disputes between Cluff and Universal and NANA. Apparently, the Board assumed that if it found NANA to be Cluff's employer for workers' compensation purposes, this would either preclude liability on the part of Universal or make such liability irrelevant. The Board's approach was incorrect.[3] The Board failed to take into account the doctrine of lent employment. Under the lent employment doctrine, if one employer lends an employee to another employer, the lending employer is called the "general" employer and the other employer is called the "special" employer. Ruble v. Arctic Gen., Inc., 598 P.2d 95, 97 n. 3 (Alaska 1979); 1B Arthur Larson, The Law of Workmen's Compensation § 48.00, at 8-434 (1992). As we will explain, the requirements for finding an employment relationship for workers' compensation purposes between a lent employee and a special employer are stricter than the standards for finding an employment relationship between an employee and an employer where there is only one employer. If Cluff's version of the facts is accurate, her general employer was Universal and NANA was, at most, her special employer while she was on loan to NANA to take the stress test. Therefore, the Board's decision was erroneous for three reasons, which shall be explained in detail below. *169 First, in a lent employee situation, the statutory presumption of compensability in our workers' compensation system applies to the general employer; the Board failed to apply the presumption to Universal. Second, a special employer may only be liable for worker's compensation if there is an express or implied contract between the special employer and the employee; the Board erred when it determined that an implied contract existed between Cluff and NANA. Third, the tryout exception does not apply to a special employer in a lent employee situation; the Board decided that the tryout exception applied to NANA. 1. The presumption of compensability applies to Cluff's claim that Universal was responsible for her injury. The presumption of compensability for workers' compensation claims is codified in AS 23.30.120(a)(1), which provides: In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary that (1) the claim comes within the provisions of this chapter ... . Cluff argues that the Board erred in failing to apply the statutory presumption against Universal. Universal and NANA argue that the presumption is inapposite, because the presumption only establishes that the claim comes within the provisions of the workers' compensation act, which neither disputes. Universal and NANA argue that the presumption has no effect on the determination of which employer was liable for Cluff's injury once they concede that the injury itself was compensable and that NANA was liable. Universal and NANA are in error. We stated in Ruble that, where multiple employers are involved, the presumption applies to the general employer and the special employer may be liable for benefits only if a contract exists between the special employer and the employee. 598 P.2d at 97. According to [Professor] Larson, a special employer .. . becomes liable for workers' compensation only if the employee ... has made a contract of hire, express or implied, with the special employer... . In the usual case involving multiple employers, the employee is seeking to hold a particular employer liable for workers' compensation. In such cases, the liberal purpose of the workers' compensation act, to benefit the employee, and the presumption that a claim comes within the provisions of the act apply. Id. at 97 (emphasis added, citations omitted).[4] We quoted Professor Larson: What gives the lent-employee cases their special character, however, is the fact that they begin, not with an unknown relation, but with an existing employment relation... . The ... presumption is the continuance of the general employment, which is taken for granted as the beginning point of any lent-employee problem. Id. at 97 n. 8 (quoting 1B Arthur Larson, Workmen's Compensation Law § 48.10, at 8-210 to 8-211 (1978) (emphasis added)). The law on when the presumption should be applied in multiple employer cases was further developed in Alaska Pulp Corp. v. United Paperworkers Int'l Union, 791 P.2d 1008 (Alaska 1990). In Alaska Pulp, the employer claimed that the claimant had suffered a subsequent intervening injury while employed by his union, thus making the union responsible for benefits under the last injurious exposure rule. Id. at 1009. The employer claimed that there was an employee-employer relationship between the claimant and the union and argued that it should have the benefit of the presumption with respect to its claim that the union was the employer. Id. at 1011. We rejected this attempt to extend the presumption of AS 23.30.120(1) to "inter-employer disputes on the question of whether an employment relationship existed between the worker and the subsequent party." Id. at 1011. Our holding did not disturb the principle that the presumption applies where a lent employee *170 makes a claim against a general employer. We only held that the presumption may not be used by an employer in disputes with other possible employers when the question is which is responsible for payment of a workers' compensation claim. Id. at 1011-12. In reaching this conclusion, we emphasized that the presumption of AS 23.30.120(1) is a "pro-worker" presumption and that workers may be deprived of valuable rights if an employee status to which they have not consented contractually is thrust upon them. [W]e do not think that the pro-worker presumption of AS 23.30.120(1) was intended to facilitate proof of an employee status contrary to that asserted by the worker. An important purpose underlying the contract of employment requirement is to avoid "thrust[ing] upon a worker an employee status to which he has never consented ... [since doing so] might well deprive him of valuable rights. ..." 1C A. Larson, The Law of Workmen's Compensation § 47.10 at 287-289 (1986). In a dispute between purported employers, a presumption that the subsequent party was indeed the worker's employer contravenes this purpose. Such use of the presumption risks thrusting upon a worker an employee status to which he never consented, and could deprive him of valuable rights. For example, once deemed to have had an employment relationship, any common law rights the worker may have had against the subsequent party are terminated. We do not believe that the presumption of AS 23.30.120(1) was intended to adversely affect workers' rights in this manner. Id. at 1011-12 (emphasis added). In the instant case, unlike in Alaska Pulp, application of the presumption to Universal is appropriate, since Cluff is attempting to use the presumption to prevent NANA and Universal from thrusting upon her an employee status to which she did not consent contractually.[5] On remand, the Board must apply the presumption of AS 23.30.120(a)(1) to Cluff's claim that Universal was her employer for workers' compensation purposes. Under the presumption, Cluff's injury is presumed to have arisen "out of and in the course of employment" by Universal, absent substantial evidence to the contrary.[6] The presumption "will drop out if an employer adduces `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'" that Cluff's injury did not arise out of and in the course of her employment for Universal. Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991) (quoting Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145, 1150 (Alaska 1989)). 2. No implied employment contract existed between Cluff and NANA at the time of her injury. In lent employee cases, a special employer may be liable for workers' compensation *171 benefits only if the employee has made an express or implied contract of hire with the special employer. Selid Construction Co. v. Guarantee Insurance Co., 355 P.2d 389 (Alaska 1960); Kroll v. Reeser, 655 P.2d 753, 756 (Alaska 1982); Ruble v. Arctic Gen. Inc., 598 P.2d 95, 97 (Alaska 1979); 1B Arthur Larson, The Law of Workmen's Compensation § 48, at 8-434 (1992). In Selid, an oiler employed by a construction company was ordered by the company to work temporarily for another company. 355 P.2d at 390. The oiler went to work for the other company and was injured toward the end of the day. Id. at 391. The construction company urged us to apply the lent employee doctrine and conclude that the oiler was the special employee of the other company for workers' compensation purposes. Id. at 392. We held that the oiler was, at the time of the injury, an employee of the construction company and not of the other company for workers' compensation purposes. Id. at 393. We stated: The relationship of employer-employee can only be created by a contract, which may be express or implied. Once created, the relationship cannot be changed to substitute another employer without the employee's consent. The employee must have understood and agreed before there can be any transfer to another employer. Where the employee commences to serve another at the direction of his employer, no new relationship is necessarily created. He may simply be performing his duty to the employer who gave the order. Even though his actions may be controlled by the new master, no new relationship is created in the absence of an express or implied contract between the employee and the new master. Consent of the employee to a change in masters cannot be implied merely from his obedience to the order of his master. Id. All parties agree that there was no express employment contract between NANA and Cluff. In its first decision, the Board concluded that "the employee was performing services for NANA-Marriott under an implied contract of employment (as far as workers' compensation is concerned) when she suffered her injury." "An implied employment contract is formed by a relation resulting from `the manifestation of consent by one party to another that the other shall act on his behalf and under his control, and consent by the other so to act.'" Childs v. Kalgin Island Lodge, 779 P.2d 310, 314 (Alaska 1989) (quoting 9 W. Jaeger, Williston on Contracts § 1012, at 4-5 (3d ed. 1967)). The existence of an implied contract must be determined by considering all the factors in light of the surrounding circumstances. Id. The circumstances surrounding the stress test are not sufficient to give rise to an implied employment contract. Even if Cluff consented to act under NANA's control for the period of the test, neither party treated the test as an employment relationship. Although the test may have been for NANA's benefit, it cannot be fairly said that Cluff acted an NANA's behalf or that NANA consented to Cluff acting on its behalf. An implied employment contract will not be found to exist in a situation which clearly preceded any possible future employment relationship. 3. The "tryout exception" adopted by this court in Childs v. Kalgin Island Lodge is not applicable in the lent employee context. In Childs, we adopted the "tryout exception to the general rule that a contract for hire must exist before benefits can be awarded." Childs, 779 P.2d at 314. We stated that "when an employer exposes potential employees to risks inherent in a tryout period and the applicant is under his direction or control, any injury resulting during such a period is compensable as a matter of law." Id. at 315. In reliance on Childs, the Board concluded that "the stress test was an integral part of the `tryout' period."[7] We *172 conclude, however, that the tryout exception is inapplicable to a special employer in the lent employee context. Therefore, if the Board, after applying the presumption of compensability, concludes that Universal is liable to Cluff for compensation benefits, its decision that the tryout exception applies to Cluff's relationship with NANA will not stand as a matter of law. Our conclusion that the tryout exception may not apply to special employers in the lent employee context is based on Professor Larson's treatise, the general principles of workers' compensation law, and the policies behind the tryout exception. Larson endorses the tryout exception. 1A Larson, supra, § 26.26, at 5-327. However, Larson also states that a special employer may be liable for compensation benefits only if the special employer has an express or implied contract with the lent employee: When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if: (a) the employee has made a contract of hire, expressed or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work. 1B id. § 48.00, at 8-434. Larson puts great emphasis on the importance of a contract for hire with a special employer in lent employee situations: In compensation law, the spotlight must now be turned upon the employee, for the first question of all is: Did he make a contract of hire with the special employer? If this question cannot be answered "yes," the investigation is closed, and there is no need to go on into tests of relative control and the like... . This must necessarily be so, since the employee loses certain rights along with those he gains when he strikes up a new employment relation. Most important of all, he loses the right to sue the special employer at common law for negligence; and when the question has been presented in this form, the courts have usually been vigilant in insisting upon a showing of a deliberate and informed consent by the employee before employment relation will be held a bar to common-law suit. 1B id. §§ 48.11 to 48.12, at 8-440.[8] Since there is no contract of hire during a tryout, the tryout exception cannot apply to special employers in a lent employee context. The conclusion that the tryout exception may not apply to a special employer also follows from the basic principles of compensation law. Two major features of the compensation system are that "the employee and his dependents, in exchange for ... modest but assured benefits, give up their common-law right to sue the employer for damages for any injury covered by the act" and that "the right to sue third persons whose negligence caused the injury remains, however, with the proceeds usually being applied first to reimbursement of the employer for the compensation outlay, the balance (or most of it) going to the employee." 1 id. § 1.10, at 1-2. The doctrine that workers' compensation law provides an exclusive remedy is, however, limited to situations where the worker gains something of value in exchange for surrendering the common law right to sue in tort: If, as stated [by Larson] earlier, the exclusiveness defense is a "part of the quid pro quo by which the sacrifices and gains of employees and employers are to some extent put in balance," it ought logically to follow that the employer should be spared damage liability only when compensation liability has actually been provided in its place, or, to state the matter from the employee's point of view, rights of action for damages should not be deemed taken *173 away except when something of value has been put in their place. 2A id. § 65.40, at 12-41. Applying the tryout exception to a special employer in the lent employee context would be improper because it would take away the lent employee's right of action for damages without giving the employee anything of value in its place. If a general employer lends an employee to a special employer for purposes of a tryout and the lent employee is injured, the lent employee is assured of getting compensation benefits from the general employer. Thus, applying the tryout exception to the special employer would take away the lent employee's right to sue the special employer in tort without giving the employee any additional benefits in exchange. Moreover, the policies underlying the tryout exception do not support extension of the tryout exception to cover lent employees. The tryout exception is aimed at making sure that compensation benefits are provided once the risks of employment begin to operate where there is no contract of hire. See Laeng v. Workmen's Compensation Appeals Bd., 6 Cal.3d 771, 100 Cal. Rptr. 377, 494 P.2d 1 (1972). As a lent employee is already guaranteed compensation benefits from the general employer if injured while trying out with a special employer, it is unnecessary to extend the tryout exception to lent employees. Since the tryout exception is not applicable to special employers in the lent employee context and since no employment contract was made between Cluff and NANA, if the Board on remand finds that Universal is liable to Cluff for compensation benefits, NANA will not be liable for compensation benefits and Cluff will have the right to sue NANA in tort. B. Should the tryout exception apply to the stress test if the Board finds that Universal is not liable to Cluff? If the Board finds that Universal was not Cluff's employer for workers' compensation purposes, determining whether the tryout exception applies to Cluff's relationship with NANA will require additional factual determinations by the Board on remand. Cluff argues that the tryout exception is inapplicable to the facts of her case. Cluff claims that her case is distinguishable from Childs for four reasons: 1) she did not apply for or intend to apply for a job with NANA; 2) she did not file a workers' compensation claim against NANA; 3) the stress test alone was not sufficient to establish a tryout under law; and 4) she took the stress test at the direction of her employer Universal. We shall address Cluff's arguments in inverse order. Cluff is correct that the tryout exception should not be applicable if she took the stress test at the direction of Universal. If the Board finds that Universal instructed Cluff to take the test, that will mean that Universal was Cluff's general employer at the time of the test and Universal lent Cluff to NANA for the test.[9] As we explained above, the tryout exception is not applicable to a special employer in a lent employee situation. Cluff is in error, however, in her argument that the stress test is not sufficient to establish a tryout under law. It is true that, unlike Cluff, the applicant in Childs performed actual work for the employer. Childs, 779 P.2d at 314. But when we adopted the tryout exception in Childs, we relied on Laeng, 6 Cal.3d 771, 100 Cal. Rptr. 377, 494 P.2d 1. See Childs, 779 P.2d at 315. The applicant in Laeng did not perform any services for his potential employer and only participated in a physical agility test designed to mimic the activities he would have engaged in if hired. 6 Cal.3d 771, 100 Cal. Rptr. 377, 494 P.2d at 3. The stress test taken by Cluff is similar to the agility test taken in Laeng since Cluff took a test designed to mimic the activities she would have engaged in if employed by NANA. We find, *174 therefore, that the tryout exception is applicable to the facts of the stress test. We interpret Cluff's contention that Childs should not be applicable because Cluff did not seek workers' compensation benefits against the purported employer (NANA) as an argument that the tryout exception should not be applicable defensively. None of the jurisdictions applying the tryout exception has decided whether the exception may be applied defensively. Allowing the tryout exception to increase employers' compensation liability without permitting employers to use it defensively would contravene the basic balancing principle of the compensation system that the employee gives up the common law right to sue in tort for modest but assured benefits. See 1 Larson, supra, § 1.20, at 1-2. Forbidding defensive use of the tryout exception would turn the tryout exception into a tool that could only benefit employees without providing a corresponding benefit to employers. We therefore decline to hold that the tryout exception may not be used defensively. However, Cluff's argument that the tryout exception should not be applicable because she did not apply for or intend to apply for a job with NANA leads us to a limitation on defensive use of the tryout exception. When an employee accepts a job with an employer, it is fair that the employee loses the right to sue in tort in exchange for workers' compensation coverage because the employee knows that employment is being accepted and presumably knows the impact that such acceptance has on the right to sue. Likewise, it can be fair for an employee to give up the right to sue in tort when participating in a tryout only if the employee knows that she is applying for a job and participating in a tryout. Otherwise, defensive use of the tryout exception would thrust upon the employee an employment status to which she did not consent and deprive the employee of valuable rights. See Alaska Pulp, 791 P.2d at 1011. Consequently, we decide that the tryout exception may be applied defensively only where the employee knows that she is participating in a tryout and applying for a job. The Board did not determine whether Cluff intended to apply for a job with NANA or knew that she was participating in a test that was part of a job application process. The Board must resolve this on remand only if it finds that Universal was not Cluff's general employer. If the Board then finds that Cluff intended to apply for a job with NANA and knew that she was participating in a test that was part of a job application process when she took the stress examination, it will follow that NANA was Cluff's employer for compensation purposes. Otherwise, NANA may not be considered Cluff's employer for compensation purposes. C. Did the superior court err in dismissing Cluff's civil action against NANA? Although we remand Cluff's workers' compensation case to the Board for additional proceedings, we affirm the dismissal of NANA as a defendant in Cluff's civil suit. We have previously stated that dismissal with prejudice of an action based on collateral estoppel when the initial suit is still subject to appeal, rather than staying the action pending the outcome of the appeal, is not error. Lyman v. State, 824 P.2d 703, 705-06 (Alaska 1992). Since the superior court committed no error when it entered its judgment, and since we are not issuing a final decision on whether NANA is liable to Cluff for compensation benefits, this court is not the proper forum for attacking the superior court's judgment. If Cluff prevails on remand before the Board (or on a subsequent appeal) on her contention that NANA was not her employer, Cluff may file a Civil Rule 60(b)(5) motion for relief from judgment in the civil action, which should be granted as a matter of course assuming that it is filed within a reasonable time after final resolution of the controversy being remanded to the Board. III. CONCLUSION The Board erred by attempting to determine whether NANA was liable to Cluff for compensation benefits without first attempting to determine whether Universal was liable to Cluff for compensation benefits. The *175 Board erred by failing to apply the presumption of compensability to Cluff's claim that Universal was her employer with regard to the injury. The Board erred in concluding that an implied contract of employment existed between Cluff and NANA. The Board did not make the factual findings necessary to determine whether the tryout exception is applicable to this case. We therefore REMAND this case to the Superior Court with directions to remand it to the Board for further proceedings consistent with this opinion. The Board must first determine whether Universal was Cluff's general employer with regard to the stress test. In making this determination, the Board must apply the presumption of compensability to Universal. If Universal was Cluff's general employer, then, under lent employment rules, NANA will not be liable to Cluff for compensation benefits. If Universal was not Cluff's general employer, the Board may find that the tryout exception applies and that NANA is liable to Cluff for compensation benefits only if it determines that Cluff intended to apply for a job with NANA and knew that she was participating in a test that was part of a job application process. The superior court's decision in case S-6223, granting NANA summary judgment on Cluff's civil claim against it, is AFFIRMED. NOTES [1] In Childs v. Kalgin Island Lodge, 779 P.2d 310, 314 (Alaska 1989), we adopted the "tryout exception to the general rule that a contract for hire must exist before benefits can be awarded." We stated that "when an employer exposes potential employees to risks inherent in a tryout period and the applicant is under his direction or control, any injury resulting during such a period is compensable as a matter of law." Id. at 315. [2] The Board issued two decisions because additional documentation erroneously left out of its file was discovered after the first decision. It is unclear whether the Board's reliance on the tryout exception in its second decision was meant as an additional reason, as a clarification, or merely as a restatement of its first decision. The Board's statement in its second decision that it was "reaffirm[ing]" its previous decision and its reliance in both decisions on the stress test being "integral" to NANA's business indicate that it did not distinguish between an implied contract and the tryout exception. [3] This court independently reviews Board decisions on questions of law. Childs, 779 P.2d at 313 (Alaska 1989). The Board's factual determinations are reviewed under the substantial evidence test. Yahara v. Construction & Rigging, Inc., 851 P.2d 69 (Alaska 1993). "Substantial evidence is that which a reasonable mind, viewing the record as a whole, might accept as adequate to support the Board's decision." Id. at 72. [4] We reiterated the quoted language in a subsequent case, Kroll v. Reeser, 655 P.2d 753, 756 (Alaska 1982). [5] The application of the presumption of AS 23.30.120(a)(1) against the general employer in lent employee cases also follows from a long time of cases using the presumption in a wide variety of contexts. It is well-established that the presumption goes far beyond the issue of whether an injury is work-related. [O]ur rulings had [initially] only applied the presumption to claims which sought to establish a nexus between the injury and the work place. Our recent decisions, however, have given a broader reading to the presumption. In Municipality of Anchorage v. Carter, 818 P.2d 661 (Alaska 1991), we extended the presumption of compensability to a claim for continuing care under AS 23.30.095(a) and found that "the text of AS 23.30.120(a) indicates that the presumption of compensability is applicable to any claim for compensation under the workers' compensation statute." Id. at 665. In Wien Air v. Kramer, 807 P.2d 471 (Alaska 1991), we applied the presumption to a claim for continuing temporary total disability. Kirby v. Alaska Treatment Ctr., 821 P.2d 127, 129 (Alaska 1991). In Kirby, we applied the presumption to claims for vocational rehabilitation benefits. Id. In Sokolowski v. Best Western Golden Lion Hotel, 813 P.2d 286, 292 (Alaska 1991), we held that the presumption of compensability applied to each evidentiary question inherent in the special hazard exception to the rule that compensation is not payable for injuries suffered while the employee is going to or coming from work. [6] AS 23.30.265(17) defines "injury" in relevant part as "accidental injury or death arising out of and in the course of employment... ." An "injury" falling within this definition which results in "disability" is compensable. AS 23.30.265(10), 23.30.010. [7] In support of its conclusion that the tryout exception was applicable, the Board found that 1) Cluff "was participating in a pre-employment stress test at the time of her injury"; 2) the testing was "an activity integral to NANA's business practices"; 3) NANA utilized Cluff's services for the testing; 4) NANA controlled the time, manner, and location of the activity; and 5) Cluff performed exercises related to the activities she would engage in at the job for which she was being considered. [8] As noted earlier, this court has followed Larson and stressed the important role that the contract of employment requirement plays in preventing an unwanted employment status from being thrust upon an employee and depriving the employee of a valuable common law right. See Alaska Pulp, 791 P.2d at 1011-12. [9] The converse will not necessarily be true — if Universal did not instruct Cluff to take the test, Universal still may be liable for Cluff's workers' compensation benefits, depending on the Board's evaluation of such indicia of work connectedness as Universal's sanction of the test, its payment of Cluff during the time she was taking the test, the remoteness of the work site, and other potential factors. Cf. 1-1A Larson, supra, §§ 6-29.

539 So.2d 264 (1989) Melissa HURST v. Alfred Robert CAPITELL and Mary Jane Capitell. 87-982. Supreme Court of Alabama. January 16, 1989. *265 Tom Wright of Reese & Wright, Montgomery, for appellant. Philip H. Butler and Scott R. Talkington of Robison & Belser, Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellees. Don Siegelman, Atty. Gen., and Kenneth S. Nunnelley and Dorothy F. Norwood, Asst. Attys. Gen., amicus curiae, for appellant. PER CURIAM. Melissa Hurst, a minor, through her grandmother, sued her stepfather, Alfred Capitell, for damages based upon claims of sexual abuse. She also sued her natural mother, Mary Jane Capitell, claiming damages based upon her alleged aiding and abetting in Mr. Capitell's sexual abuse and based upon Mrs. Capitell's alleged willful and wanton conduct and negligent performance of her duties as a mother, all of which allegedly allowed the abuse to occur. The trial court dismissed the action as to Mrs. Capitell and granted summary judgment in favor of Mr. Capitell, based upon the parental immunity doctrine because of his in loco parentis status. Melissa appeals from those rulings and asks us to reconsider the philosophy supporting the parental immunity doctrine and to abolish it. The parental immunity doctrine had its genesis in the United States in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891), in which a minor daughter was precluded from suing her deceased mother's estate for damages resulting from mental suffering and injury to her character incurred during her confinement in an asylum for 11 days caused by her mother. The court gave this reason for its holding: "The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand." 68 Miss. at 711, 9 So. at 887. The parental immunity doctrine was not based upon English common law, statutes, or previous cases; rather, it was judicially created by the Mississippi Supreme Court. In fact, even the Hewellette opinion recognized the limitation on the application of parental immunity to those cases involving unemancipated children: "If ... the relation of parent and child had been finally dissolved, insofar as that relationship imposed the duty upon the parent to protect and care for and control, and the child to aid and comfort and obey, then it may be the child could successfully maintain an action against the parent for personal injuries. But so long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation *266 to aid and comfort and obey, no such action as this can be maintained." Id., 68 Miss. at 711, 9 So. at 887. (Emphasis added.) The first Alabama case addressing the issue of parental immunity, Owens v. Auto Mut. Indemnity Co., 235 Ala. 9, 177 So. 133 (1937), quoted from a New Hampshire case that states a similar reason for the rule: "It is declared in Lloyd Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055 [1930] that the `disability of a child to sue the parent for an injury negligently inflicted by the latter upon the former while a minor is not absolute, but is imposed for the protection of family control and harmony, and exists only where the suit, or the prospect of a suit, might disturb the family relations.'" 235 Ala. at 10, 177 So. at 134. (Emphasis added.) We reaffirmed the doctrine in Hill v. Giordano, 447 So.2d 164 (Ala.1984) (Jones, J., dissenting), based on the authority of Owens, supra, and held that "any modification or abolition of the parental immunity doctrine should be left to the prerogative of the legislature." 447 So.2d at 164. However, we also stated three months later in Lloyd v. Service Corporation of Alabama, Inc., 453 So.2d 735 (Ala.1984): "While the preferred method for modification of a rule of law is by legislative action, it is clearly within the power of the judiciary, and, at times, appropriate for the judiciary, to change an established rule of law.... "... [W]here a judicial creation has become outmoded or unjust in application, it is more often appropriate for the judicial body to act to modify the law." (Emphasis added.) Because the doctrine was judicially created, it is not exclusively a legislative issue and it may be judicially qualified. Since our decision in Hill to defer to the Legislature on this issue, the Legislature has declined to act in regard to the doctrine, while the incidents of sexual abuse involving children have continued to occur. To leave children who are victims of such wrongful, intentional, heinous acts without a right to redress those wrongs in a civil action is unconscionable, especially where the harm to the family fabric has already occurred through that abuse. Because we see no reason to adhere to the doctrine of parental immunity when the purpose for that immunity is no longer served, as in Melissa's case, we are today creating an exception to the doctrine, limited to sexual abuse cases only. In creating this exception for sexual abuse cases, we believe it is unnecessary to spell out a separate body of procedural and substantive rules to govern such cases. Traditional rules of tort law relating to intentional infliction of personal injury are generally sufficient for the governance of such claims and the defenses asserted thereto. In the interest of preserving the unqualified right of parents to reasonably discipline their children, we do deem it appropriate, however, to require that the proof of alleged sexually abusive conduct be tested under a "clear and convincing" standard, as opposed to a mere "substantial evidence" standard. Because we are restricting this exception to the general rule to cases involving "sexual abuse," and requiring a "clear and convincing" standard of proof, we do not perceive of our recognition of this narrow exception as posing an undue risk of limiting the parents' legitimate role in the disciplining of their children. In creating this exception to the parental immunity doctrine, we make no distinction between natural or adoptive parents or stepparents; the plethora of such cases as Melissa's indicates that sexual abuse is not a respecter of parental status. Thus, civil suits by children against parents for sexual abuse are not confined to a particular category of "parent." Therefore, the trial court's dismissal in favor of Mary Jane Capitell and its summary judgment for Alfred Capitell are both reversed and the case is remanded for trial. REVERSED AND REMANDED. *267 TORBERT, C.J., and MADDOX, JONES, BEATTY[1] and HOUSTON, JJ., concur. STEAGALL, J., concurs in part and dissents in part. ADAMS, J., dissents. STEAGALL, Justice (concurring in part, dissenting in part). I concur in that portion of the majority's opinion that creates an exception to the parental immunity doctrine for sexual abuse cases only. Under ordinary circumstances, I believe the Legislature should address this problem, but, as pointed out in the majority opinion, the Legislature has declined to act since that suggestion was made in the Hill case in 1984. Because of the severe adverse effect that sexually abusive acts have upon the victims and because the rationale for the immunity doctrine fails when family control and harmony are lost, as in this case, I believe the time has come to allow this exception to the doctrine. I must, however, disagree with the majority's decision to allow punitive damages as well as compensatory damages. Punitive damages are designed to punish the wrongdoer, but, in this situation, the punishment is provided by our criminal statutes. On the other hand, compensatory damages, if recoverable, will at least provide the abused child the opportunity to be afforded medical assistance and counseling to help overcome the trauma of the sexual abuse. For these reasons, I feel that compensatory damages would be sufficient, and I respectfully dissent from that portion of the opinion that would allow punitive damages. NOTES [1] Justice Beatty did not sit for oral argument but did listen to the tape of the oral argument.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-40200 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARIO GARCIA TREVINO, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. M-96-CR-60-1 - - - - - - - - - - September 19, 1997 Before JOLLY, BENAVIDES and PARKER, Circuit Judges. PER CURIAM:* Court-appointed counsel for Mario Garcia Trevino has filed a brief as required by Anders v. California, 386 U.S. 738 (1967). We have independently reviewed counsel’s brief, the points raised by Trevino in response to that brief, and the record, and found no nonfrivolous issue. Accordingly, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. * 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. 

116 Cal.App.2d 746 (1953) THE PEOPLE, Respondent, v. ONE 1950 MERCURY SEDAN, Engine No. 50LA40896M, etc., Defendant; J. J. TORRES et al., Appellants. Civ. No. 19081. California Court of Appeals. Second Dist., Div. One. Mar. 18, 1953. David C. Marcus for Appellants. Edmund G. Brown, Attorney General, Donald D. Stoker and Stanley Zipser, Deputy Attorneys General, for Respondent. DRAPEAU, J. A clothes cleaner telephoned the police department in Los Angeles that he had found two brown paper cigarettes in a coat left with him to be cleaned, and that he thought they were marihuana cigarettes. Police officers went to the cleaner's place of business, and waited for the owner of the coat to appear. Jimmie Torres, a 16-year-old boy, drove up in a Mercury sedan. He, and several companions riding with him, were taken into custody. The coat had been left to be cleaned by one of Jimmie's companions. This companion called for it, but said it was Jimmie's. The officers searched the Mercury in Jimmie's presence, and found one brown paper cigarette in a rug doubled up on the floor of the car. Then they let everybody go but Jimmie and his companion who called for the coat. At the police station Jimmie told the officers that he found the cigarettes in the Mercury after he had parked it on a street in Oakland. One of the officers testified on direct examination: "I asked him if he had any more marihuana, and he said he did not." On cross-examination the officer further *748 testified: "I asked him if he knew these were marihuana cigarettes, and he said he did." In this proceeding to forfeit the automobile to the state, the trial judge found that J. J. Torres (Jimmie's father), Jimmie, and Mary Torres (Jimmie's sister), were registered owners of the automobile, and that while the vehicle was being driven by Jimmie it was used to transport marihuana, a narcotic. It was adjudged that the Mercury was forfeited to the state, pursuant to the provisions of chapter 7, article 1, division X of the Health and Safety Code. Jimmie and his family lived in Oakland. At the time the car was seized Jimmie had driven it to Los Angeles to visit relatives. Jimmie's father made the down payment on the car, and monthly payments on the balance of the purchase price. This balance was advanced under a conditional sales contract assigned to Mercantile Acceptance Corporation. Jimmie's father testified that the certificate of ownership was issued by the Motor Vehicle Department to the assignor of Mercantile Acceptance Corporation, as legal owner, and in his name and in the names of Jimmie, his son and Mary, his daughter, as registered owners. He said this was done because he could not drive and the boy could. [1a] Notice of seizure of the automobile was filed in the superior court December 27, 1950. A copy of the notice was mailed to the acceptance company on the same day. Answer of the acceptance company was filed January 19, 1951 The superior court struck out the answer of the acceptance company because it had not been filed within 20 days after mailing of the notice of seizure. The superior court denied a motion under section 473 of the Code of Civil Procedure by the acceptance company to be relieved of its default. Grounds of appeal are as follows: 1. That it was error to strike the answer of Mercantile Acceptance Corporation, and to deny relief under section 473, of the Code of Civil Procedure. 2. That the evidence is insufficient to sustain the finding of forfeiture. 3. That defendant father's motion to dismiss at the close of plaintiff's case should have been granted. These matters will be discussed in order. First, the contention that it was error to strike the acceptance *749 company's answer and to deny its motion under section 473 of the Code of Civil Procedure: The sections of the Health and Safety Code upon which the court's action was predicated are as follows: "Section 11614. Time for filing answer to notice. Within twenty days after the mailing or publication of the notice, the owner of the vehicle may file a verified answer to the fact of the use of the vehicle alleged in the notice of seizure and of the intended forfeiture proceeding." "Section 11615. Extension of time for filing answer forbidden. No extensions of time shall be granted for the purpose of filing the answer." "Section 11616. Failure to file answer: Order of forfeiture. If at the end of twenty days after the notice has been mailed or published there is no verified answer on file, the court shall hear evidence upon the fact of the unlawful use and shall, upon motion, order the vehicle forfeited to the State." This presents the question: Does the failure of the legal owner of an automobile to file an answer in narcotics forfeiture proceedings within 20 days after mailing notice of forfeiture end the case so far as the legal owner is concerned? This appears to be the plain legislative intent, if such proceedings are completed and judgment rendered before the legal owner appears. But here answer was filed before the case was heard. In such circumstances the legal owner is entitled to his day in court. Section 473 of the Code of Civil Procedure is applicable to just such cases as this. [2] The statute imposing forfeiture of automobiles used in transporting narcotics should be construed in a manner as favorable to the owner as is consistent with fair principles of interpretation. (People v. One 1939 Buick Coupe, 56 Cal.App.2d 163 [132 P.2d 308]; cf. People v. One 1940 Ford V-8 Coupe, 36 Cal.2d 471 [224 P.2d 677].) [3] Where statutes are susceptible of two interpretations, one of which would satisfy constitutional guarantees, if possible, courts will uphold the legislation. (People v. One 1941 Buick Sport Coupe, 28 Cal.2d 692 [171 P.2d 719].) In this case to deny the legal owner the right to appear and defend against the asserted forfeiture was to deny him due process of law. Any other construction would be to destroy the element of fairness implicit in our American system of justice. For justice is always the controlling consideration *750 under our law. And in no field of that law is due process more essential than in this present-day legislative resurrection of the ancient medieval concept of the deodand. [4] As said in a dissenting opinion by Mr. Justice Carter in Simpson v. City of Los Angeles, 40 Cal.2d 271 at page 285 [253 P.2d 464]: "While it is impossible to define with precision 'due process of law' it means, broadly speaking, that before a man's property may be taken by the state, he must be given notice of the proceedings which may terminate in the taking, and be given an opportunity to be heard. It means further that the notice shall be a real and reasonable one, and the hearing, such as is ordinarily, or at least reasonably, given in similar cases." [5] Relief from defaults in law cases in proper circumstances is an integral part of due process of law in California. [1b] Therefore it was an abuse of discretion for the court to strike the answer from the file, and to deny relief under section 473 of the Code of Civil Procedure. Grounds of appeal 2 and 3 will be discussed together. [6] While the state has the undoubted right to forfeit vehicles used to transport narcotics; while vehicles may be taken away from owners because persons permitted to drive them have transported narcotics in them, even without their knowledge (People v. One 1937 Plymouth 6, 37 Cal.App.2d 65 [98 P.2d 750]; People v. One 1941 Buick, 28 Cal.2d 692 [171 P.2d 719]), and even when an infinitesimal quantity of narcotics is transported, such as one marihuana cigarette concealed in a sock (People v. One 1941 Chrysler Tudor, 71 Cal.App.2d 312 [162 P.2d 653]), still simple justice requires that the state must prove that in fact narcotics were transported. The proof in this case does not measure up to this indispensable requirement. After proving the facts above narrated, the state put a forensic chemist on the witness stand to prove that the brown paper cigarettes contained narcotic, marihuana. This witness testified that three small envelopes, enclosed in a larger one handed to him, each contained one marihuana narcotic cigarette. But this witness would not say that these were the same cigarettes that he examined in his laboratory and that the specific cigarettes before him were narcotic. And no foundation was established that the cigarettes in *751 court were the same cigarettes examined in his laboratory by the forensic chemist. Therefore so far as the record in this case is concerned the cigarettes found in the coat and in the car are brown paper cigarettes, no more. The trial court sustained objection to the introduction in evidence of the cigarettes. Then the court went forward with the case, and found that the automobile had been used to transport the narcotic marihuana. One more thing remains for consideration. Was the testimony of the arresting officer that Jimmie said he knew the cigarettes were marihuana sufficient to support the finding? [7] It is a fundamental rule that a declaration by a litigant contrary to his position in a lawsuit is admissible and is evidence which tends to prove the matter admitted. (Code Civ. Proc., 1870, subd. 2; Bonebrake v. McCormick, 35 Cal.2d 16 [215 P.2d 728].) [8] But the rule is subject to the qualification that the declaration is not binding upon codefendants. (Nishi v. Inoguchi, 116 Cal.App. 398 [2 P.2d 864].) Therefore, Jimmie's admission did not bind the other defendants. The judgment and the order striking the answer of defendant Mercantile Acceptance Corporation and denying relief under section 473 of the Code of Civil Procedure are, and each of them is, reversed. The appeal from the order denying motion for new trial is dismissed. White, P. J., and Doran, J., concurred.

NO. 07-05-0173-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D MAY 17, 2005 ______________________________ IN RE: R. WAYNE JOHNSON, Relator _________________________________ Original Proceeding - Memorandum Opinion _______________________________ Before QUINN, REAVIS and CAMPBELL, JJ. Pending before this court is the pro se petition of R. Wayne Johnson (Johnson) for a writ of mandamus. He asks the court to order Bruce Zeller, the warden supervising the prison wherein Johnson is housed, to comply "with the rules [sic] forms [sic] the basis of this suit . . . ." So too does he seek "injunctive relief" and a restraining order against Zeller. We deny the petition for the following reasons. Our power to issue a writ of mandamus against anyone other than a judge is quite limited. That is, we may do so only when necessary to enforce our jurisdiction over a pending appeal. Tex. Gov't Code Ann. §22.221(a) (Vernon 1988). And, before it can be said that we are acting to enforce our jurisdiction over a pending appeal, the dispute made the basis of the relator's application for writ must somehow implicate a pending appeal. Bush v. Vela, 535 S.W.2d 803, 804 (Tex. Civ. App.-Corpus Christi 1976, orig. proceeding). Since the subject matter of Johnson's request does not involve a pending appeal, we have no jurisdiction to issue mandamus against Zeller, a prison warden. Accordingly, relator's petition for writ of mandamus is denied. Tex. R. App. P. 52.8(a). Furthermore, because we have denied Johnson's petition for writ of mandamus, we deny his request for injunctive relief and for a restraining order as moot. Brian Quinn Justice 8"/> NO. 07-10-0107-CV   IN THE COURT OF APPEALS   FOR THE SEVENTH DISTRICT OF TEXAS   AT AMARILLO   PANEL B   OCTOBER 8, 2010     JIM JONES TRIGG, JR., Attorney in Fact For MARY JANE TRIGG,                                                                                              Appellant v.   PATTI T. MOORE,                                                                                            Appellee ___________________________   FROM THE 423RD DISTRICT COURT OF BASTROP COUNTY;   NO. 423-500; HONORABLE CHRISTOPHER D. DUGGAN, PRESIDING     Opinion     Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.             Jim Jones Trigg, Jr., attorney in fact for Mary Jane Trigg (Trigg), appeals the dismissal without prejudice of his lawsuit against Patti T. Moore (Moore), his sister.  The order of dismissal was issued in response to a motion for nonsuit filed by Trigg.  Before us, he contends that the judgment should be reversed because 1) he never served notice on his opponent, 2) he had an unfettered right to withdraw his nonsuit before the trial court issued a written order dismissing the cause, and 3) the trial court should have granted his request to reinstate the suit.  We affirm.             Background             Trigg filed suit on March 24, 2009, seeking to invalidate a deed from his mother to his sister.  Allegedly believing that the dispute was settled, he filed, on May 22, 2009, a motion to nonsuit the cause.  However, Trigg attempted to move, on July 30, 2009, to withdraw the nonsuit.  The trial court convened a hearing on that motion, orally denied it, and orally dismissed the proceeding.  The trial court then executed, on December 17, 2009, a written order memorializing the dismissal without prejudice.  Thereafter, Trigg timely moved for a new trial and sought reinstatement of the suit.  Upon convening a hearing on that motion, the trial court learned that a second action involving the same parties and claims had been initiated by Trigg.  It then denied the motion for new trial.                Issues             Regarding Trigg’s contentions that the cause could not be dismissed because he never served the notice on opposing counsel and he attempted to withdraw it before a written dismissal order was executed, we say the following.  It has long been the law that a motion for nonsuit is effective the moment it is filed.  Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); University of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 101 (Tex. 2006).  At that instant, the action is extinguished.  Travelers Ins. Co. v. Joachim, 315 S.W.3d at 862.  Only collateral matters or claims for affirmative relief previously initiated by the opposing party and independent of the plaintiff’s cause of action remain pending.  University of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d at 100-01 (stating that plaintiff's right to nonsuit shall not prejudice the right of an adverse party to be heard on pending claims for affirmative relief, that the dismissal shall have no effect on any motion for sanctions, attorney's fees, or other costs pending at the time of dismissal, and that the claims for affirmative relief must allege a cause of action, independent of the plaintiff's claim, on which the claimant could recover compensation or relief); see also In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 324-25 (Tex. 2009) (stating that “[g]ranting a nonsuit is a ministerial act, and a plaintiff's right to a nonsuit exists from the moment a written motion is filed or an oral motion is made in open court, unless the defendant has, prior to that time, sought affirmative relief”).  More importantly, the sole requirement for the case to be extinguished is filing the motion with the court clerk.  Traveler’s Ins. Co. v. Joachim, supra; University of Tex. Med. Branch at Galveston v. Estate of Blackmon, supra.             If the foregoing authority is to remain the law, then we cannot but hold that it did not matter whether Trigg served notice of his motion on his opponent or withdrew the notice before a formal dismissal order was signed.  Again, the sole requirement is filing the notice or motion with the clerk.   There were no pending claims for affirmative relief initiated by Moore or collateral issues before the court when Trigg filed his motion with the clerk.  Thus, all that remained to be done was for the trial court to perform the ministerial act of memorializing the dismissal via written order.[1]             As for Trigg’s contention that “[i]n fact, the [dismissal] Order of the Court was never based on any pleading submitted by Defendant or Plaintiff to dismiss . . . but rather it was based on [the court’s] own motion and action . . . ,” we view the utterance as disingenuous.  While a motion may not be a pleading, it nonetheless was Trigg’s own motion to nonsuit that caused the proceeding to end.  The record contains no motion of the trial court to dismiss or otherwise terminate litigation.  It simply acted upon that of Trigg.  To suggest otherwise is rather deceitful, not good faith argument.  Nor does his allegation that nonsuit was taken due to an erroneous ruling of the trial court comport with the factual record.  Interestingly, neither Trigg nor his attorney cited us to the supposed trial court ruling that forced them to take a nonsuit.  Nor did our review of the record disclose any such decision.  While there sometimes may be a place for aggressive advocacy, there is never a place for false accusation or contention, and it seems that both appellant and his attorney crossed that border here.               As for Trigg’s supposition that he had a “right to withdraw his motion for nonsuit” before the trial court issued a written dismissal order, we note his failure to cite any supporting authority.  Nor did our search uncover any.  This may be because recognizing such a right could render legal proceedings farcical.  See Chester v. Texas Employers Ins. Ass’n, 265 S.W.2d 648, 650 (Tex. Civ. App.–Texarkana 1954, writ ref’d n.r.e), quoting Sanchez v. Atchison T. & S.F.R. Co., 90 S.W. 689 (Tex. Civ. App. 1905, no writ) (stating that “[i]f a plaintiff can, as seemingly contended . . .  enter a nonsuit whenever he may doubt his ability to obtain a verdict, and then on the mere asking, without any further showing, have the cause reinstated, cases might be tried an indefinite number of times, and the proceedings of courts rendered farcical”).  It does not take much imagination to see how a litigant could use an unfettered ability to dismiss and reinstate to utterly disrupt discovery, a trial, or the orderly proceeding of the cause in general.  Nor need one think hard to envision how such power could vitiate the trial court’s authority to manage its docket.  So, if any such right is to be created, we will leave that for either the Supreme Court or state legislature.             This is not to say that a plaintiff lacks options upon realizing the impropriety of nonsuiting his action.  For instance, he has the ability to move the court to reinstate the cause or for a new trial. See Harris County Appraisal Dist. v. Wittig, 881 S.W.2d 193, 194 (Tex. App.–Houston [1st Dist.] 1994, no writ) (wherein the motion to reinstate was filed before the trial court signed the dismissal order).  More importantly, obligating the litigant to so move conforms with the procedure normally invoked when a cause has ended and a litigant does not like what happened.   See Tex. R. Civ. P. 320 (motion for new trial).  It also protects the trial court’s authority to control the proceeding.  This is so because the court has the discretion to permit reinstatement when appropriate.  See Griffin v. Miles, 553 S.W.2d 933, 935 (Tex. Civ. App.–Houston [14th Dist.] 1977, writ dism’d) (stating that whether to reinstate lies within the trial court’s sound discretion); Chester v. Texas Employers Ins. Ass’n, 265 S.W.2d at 651 (stating the same).  And, this leads us to the remaining issues raised by Trigg. Reinstatement at bar was sought because Trigg’s opponent allegedly breached a settlement agreement derived after suit was filed.  Apparently, he dismissed his complaint before completing settlement.  While the record before us does mention something about an amicable resolution of the dispute having been attempted, Trigg again failed to cite us to an agreement that comports with Rule 11 of the Texas Rules of Civil Procedure.  Nor did we uncover a written agreement expressing the terms of a settlement, signed by counsel or the litigants and filed of record or made in open court  purporting to dispose of the suit.  This is of import since a trial court does not abuse its discretion by refusing to reinstate under the circumstances before us.  See Watson v. Reserve Nat’l Ins. Co., 654 S.W.2d 569, 570 (Tex. App.–Waco 1983, no writ) (holding that the refusal to reinstate was not an abuse of discretion because the alleged settlement agreement failed to comply with Rule 11); Griffin v. Miles, supra (holding the same).              Finally, the trial court noted that it did not want to waste time and resources trying a case where the nonsuit might be upheld on appeal.  Moreover, by the time Trigg’s motion for new trial was heard, he had already begun another suit free of the potential complications of a prior nonsuit.  These circumstances touch upon matters of judicial economy which in turn is a factor that the trial court legitimately could have considered in refusing to grant reinstatement.  In sum, we overrule each issue and affirm the dismissal order of the trial court.                                                                           Brian Quinn                                                                                     Chief Justice            [1]To the extent Trigg suggests that a formal written order of dismissal is a condition to the extinguishment of the action, he is mistaken.  That contention contradicts what the Supreme Court has said throughout the years.  Rather, a written order of dismissal is a mere formality memorializing what already occurred and serves the purpose of triggering appellate deadlines and the time period within which the trial court’s plenary jurisdiction begins to end.  See University of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (recognizing that without a written order of nonsuit, the period of the court’s plenary power and the appellate deadlines do not begin to run).  And, while it is true that the trial court retains jurisdiction over the action for certain matters, it cannot simply refuse to dismiss the cause and treat it like any other on its docket.   

742 F.2d 1435 Stone, In re 83-3067 United States Court of Appeals,Second Circuit. 1/19/84 1 W.D.N.Y. DENIED

91 Wis.2d 126 (1979) 280 N.W.2d 769 MURLAS BROTHERS COMMODITIES, INC., Plaintiff-Respondent, v. BUSHMAN, Defendant-Appellant.[†] No. 76-736. Supreme Court of Wisconsin. Argued May 30, 1979. Decided June 29, 1979. For the appellant there were briefs by Tinkham, Smith, Bliss, Patterson & Richards, and oral argument by Duane Patterson, all of Wausau. For the respondent there was brief by John P. Louderman, III and Eisenberg, Giesen & Ewers, and oral argument by Mr. Louderman, all of Madison. WILLIAM G. CALLOW, J. This is an action on a promissory note and a counterclaim for recovery of investment *128 funds. The issues are whether there was a valid antecedent obligation for the note, and whether the trial court erred in its award of damages. Ernest Bushman (Bushman), a potato grower, began to invest in commodity futures in the Chicago Mercantile Exchange (Exchange) through a Stevens Point agent of Murlas Brothers Commodities, Inc. (Murlas), in September, 1968. He had during preceding years dealt in commodity futures through another broker. On April 21, 1969, Bushman instructed the Murlas agent in Stevens Point to close the account if his balance of $16,860 was exhausted because he could not afford to put any more money into the account. Bushman made the decisions to buy or sell the commodities himself until May, 1969, when his account went into a deficit of $8,384. Murlas did not close the account, and George Murlas personally assumed control of the account and tried to stem the losses through a strategy of "straddling."[1] Bushman received confirmation statements from Murlas reporting each transaction. Such statements showed his cash position with Murlas. Notwithstanding the earlier instruction to close the account when it went into deficit, Bushman made no effort to terminate the trading done on his behalf by George Murlas after the account was in deficit. Murlas advanced the funds necessary to settle the Bushman account with the Exchange after each transaction. On October 27, 1969, Bushman wrote the following note to George Murlas: "I am enclosing a check of $1000.00 to add to my account. It may not seem much to you but that is all I can spare at this time. "I appreciate very much what you are doing and want to take this opportunity to thank you but I would also *129 hope very much that you will make me some profitable moves in the very near future." Bushman testified that by November 25, 1969, his account reached a deficit of $16,000 to $17,000; and at George Murlas's insistence, Bushman executed a promissory note to Murlas in the amount of $25,000. Apparently the note was executed while Bushman was visiting the Exchange as a guest of George Murlas. George Murlas testified that he took the note as "collateral" for Bushman's deficit, and he never credited Bushman's account with the amount of the note. On November 28, 1969, Bushman wrote another letter to George Murlas: "I want to again express my sincere appreciation for your kind hospitality accorded me on my visit to your office. "I enjoyed meeting you and your brother Nick very much and feel that our personal contact has helped me restore confidence in your handling my account. "I beg of you to please handle this account as yours so that we can get out of this mess that I am in. "Please keep me in mind at all times regarding pork belly transactions or any other commodity and please keep me well informed of all business transactions. "I have the deepest confidence in you George so please lets turn this account into a profitable one. Again, I'm deeply grateful for your kind consideration and understanding." On December 3, 1969, Bushman executed a power of attorney authorizing Murlas to buy and sell commodity futures contracts on his behalf. Murlas closed out Bushman's account August 6, 1970. The account had an unpaid deficit of $31,002.50. Murlas sued Bushman to recover on the note. Bushman counterclaimed for $23,861, the net amount allegedly deposited by Bushman with Murlas during their business relationship. The jury found: (1) There was consideration for the note executed by Bushman to Murlas; (2) Agents of *130 Murlas were told by Bushman to close his account when it reached a deficit position; (3) Bushman subsequently authorized or requested Murlas to trade on his behalf; (4) George Murlas improperly traded in the Bushman account after it reached a deficit. The jury found the sum of $14,000 would reasonably compensate Bushman for Murlas's failure to follow instructions to close Bushman's account or his trading improperly after the account reached a deficit position. The trial court entered judgment in the amount of the note, set off by $14,000, for a net recovery of $11,000, plus interest as provided in the note. Bushman appeals, raising two issues: (1) Was there no valid antecedent obligation for the note? (2) Did the trial court err in its computation of damages? [1] The jury found there was consideration for the note. No consideration is necessary for a note given in payment of or as security for an antecedent obligation. Sec. 403.408, Stats.; Hessman v. O'Brien, 258 Wis.243, 45 N.W.2d 730 (1951). Bushman contends that no valid antecedent obligation existed because (1) the transactions were illegal gambling transactions, (2) the debt was incurred in violation of the Exchange rules, (3) the debt was incurred contrary to Bushman's instructions, and (4) the debt was procured by fraud. Bushman's claim that the note was incident to a gambling transaction was never raised in the trial court. Sec. 241.24, Stats.,[2] generally validates futures contracts *131 unless neither party intends to perform. In Carson v. Milwaukee Produce Co., 133 Wis. 85, 94-95, 113 N.W. 393 (1907), the court said that even legitimate transactions furnished many opportunities for collateral wager contracts and gambling, and whether or not the parties had such intention is a question of fact and should be submitted to the jury. [2] Bushman was a potato farmer, and his Exchange transactions in potatoes might reasonably be inferred to be legitimate and consistent with his need to hedge in the potato market, but such an inference would not be applicable to his dealings in pork bellies. The heavy black printed proviso on the confirmations of trade notices sent by Murlas to Bushman provided as follows: "NOTICE—It is understood and agreed that all futures transactions made by us for your account are either hedges or contemplate actual delivery and receipt of the property and payment therefor; and that all property sold for your account is sold upon the representation that you have the same in your possession actually or potentially." We conclude that on this record we will not consider for the first time on appeal the issue of intent which would *132 be crucial to the question of illegality. Cf.: Kassuba Commission Co. v. Blodgett, 155 Wis. 529, 143 N.W. 1060, 145 N.W. 177 (1914). In Shea v. Grafe, 88 Wis.2d 538, 274 N.W.2d 670 (1979), we sua sponte considered a question of contract illegality where the record clearly supported the illegality. Here the illegality does not appear on the surface of the transaction, and the trial court was not presented with the issue. We, therefore, decline to reach the question here. Bushman seeks to be excused from the note obligation because the debt was incurred in violation of an Exchange rule requiring a broker to close an account with insufficient margin until the customer provides the required margin. The record presented to this court is inadequate to determine the purpose of the rule alleged to be violated, and we find nothing in the Commodity Exchange Act, 7 USC, sec. 1, et seq., that would give guidance in this case. We decline to give this Exchange rule the force of public policy necessary to render a collateral obligation unenforceable. See: Du Pont v. Neiman, 156 Cal. App.2d 313, 319 P.2d 60 (1957). [3] Bushman argues, third, that there is no valid antecedent obligation because Murlas did not follow his instructions to close the account. This contention was accepted by the jury, and it awarded him damages of $14,000. However, Bushman's subsequent letters and granting power of attorney to Murlas clearly supports the conclusion that following the trading between May and October Bushman authorized and requested Murlas to trade on his behalf. Accordingly, Bushman cannot escape liability on the note given in November, 1969, on the basis that Murlas violated his instructions to close the account. [4] Bushman argues, finally, that he was induced to execute the note by fraudulent representations. Bushman *133 did not request a jury instruction on fraud and misrepresentation and made no objection concerning the absence of a question on fraud and misrepresentation. We conclude he waived any error based on fraud because this court has said it "will not consider new grounds of relief which are not adequately brought to the attention of the trial court." Hein v. Torgeson, 58 Wis.2d 9, 14, 205 N.W.2d 408 (1973). [5] Bushman maintains Murlas's damages should be limited to the deficit amount existing on the date the note was executed. Bushman argues the note should be treated as a security interest under Article 9 of the Uniform Commercial Code, see, Chapter 409, Stats. We do not agree. The jury found, on credible evidence, that there was consideration for the note. Accordingly, no accounting is required to support Murlas's loss. Bushman argues that Murlas's damages should be reduced because Murlas was in violation of sec. 551.31, Stats., which requires licensing by persons dealing in securities. Prior to January 1, 1970, the effective date of the statute, Bushman executed a power of attorney authorizing Murlas, a Chicago broker, to act for him. The record makes no further inquiry into the circumstances of the granting of the power of attorney or the degree of communication between Murlas and Bushman from January 1, 1970, to the August date when the account was closed. Thus we cannot say the transactions at issue were Wisconsin transactions. Under the doctrine of the presumption of regularity, we are not prepared to say, in these circumstances, that Murlas was in violation of the Wisconsin statute by its failure to be licensed in Wisconsin. [6] In Kilgust Heating v. Kemp, 70 Wis.2d 544, 549-50, 235 N.W.2d 292 (1975), we said "[w]here full recovery is had on a claim for a contract price, and the trial involves *134 no more than putting the plaintiff to proof of the defendant's liability, the requirement that the claim be liquidable in advance is met." Under these circumstances prejudgment interest, as provided in the note, was properly awarded. In any event since we do not limit the loss to that existing on the day the note was executed and do not exclude the loss incurred after January 1, 1970, because of lack of licensing, it is apparent that the actual loss experienced by Murlas exceeded the face amount of the note. Bushman did not have ready cash, and Murlas supplied money being used in the multiple transactions. The note recognized that Murlas was bankrolling these transactions. The jury verdict is adequately supported by the record, and the trial court correctly entered judgment on the verdict. By the Court.—Judgment affirmed. NOTES [†] Motion for reconsideration denied, with costs, on August 27, 1979. [1] "Straddling" is buying short one month and long the next to avoid the effects of wide swings in the market. [2] Sec. 241.24, Stats., provides: "241.24 Board of trade contracts. No contract for the future purchase, sale, transfer or delivery of personal property through a board of trade or organized commodity exchange is void when either party thereto intends, in good faith, to perform the same; and an intention on the part of either not to perform any such contract does not invalidate it if the other party in good faith intends to perform the same. No such contract is void because the vendor was not, at the time it was made, the owner of the property contracted to be sold; and in any action by either party for the enforcement of its terms or to recover damages for a breach thereof it is incompetent to show in defense, by any extrinsic evidence, that such contract had any other intent or meaning than it expresses; and it and all collateral contracts, agreements or securities growing out of it or of which they may have formed the consideration in whole or in part are legal and valid. Nothing herein shall be construed to exclude evidence of fraud in the procuring of any such contract as is first mentioned herein, or of any collateral contract, agreement or security growing out of it, or that any such contract was not entered into upon sufficient consideration, or is not supported thereby, or that both parties intended to make a wagering contract."

Case: 19-20387 Document: 00515527565 Page: 1 Date Filed: 08/14/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 19-20387 August 14, 2020 Summary Calendar Lyle W. Cayce Clerk Michael-Francis Palma, Plaintiff—Appellant, versus State of Texas; Rolando Pablos, State of Texas; Murl E. Miller, State of Texas Comptroller; Roland Altinger, Harris County Appraisal District; Ronnie Thomas, Harris County Appraisal Review Board; Ann Harris Bennett, Harris County Tax Assessor - Collector; Judiciary Defendants, State of Texas; Harris County District Clerk; Senate Select Committee on Property Tax Reform, State of Texas; Senate Committee on State Affairs, State of Texas; Texas Judicial Counsel; Harris County Sheriff's Office In Rem Defendants, Defendants—Appellees. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:18-CV-4561 Case: 19-20387 Document: 00515527565 Page: 2 Date Filed: 08/14/2020 No. 19-20387 Before Jolly, Elrod, and Graves, Circuit Judges. Per Curiam:* Michael-Francis Palma appeals the dismissal of his 42 U.S.C. § 1983 complaint in which he sought damages and other relief for violations of his civil rights in connection with the collection of property taxes. The district court dismissed the action after finding that Palma failed to prosecute his claim and failed to comply with a court order. The pro se brief filed by Palma does not address the sole issue on appeal, which is whether the district court erred by dismissing his complaint for the reasons set forth above. Accordingly, it is as if he did not appeal the issue. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Although pro se briefs are afforded liberal construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must brief arguments in order to preserve them, Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Because Palma has not identified any error in the district court’s analysis underlying the dismissal of his civil action, his appeal is DISMISSED AS FRIVOLOUS. * 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. 2 

118 T.C. No. 15 UNITED STATES TAX COURT SQUARE D COMPANY AND SUBSIDIARIES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 6067-97. Filed March 27, 2002. P, an accrual method taxpayer, is a U.S. corp. and subs. wholly owned by S, a foreign corp. P accrued but did not pay interest owed to S and another related foreign person during 1991 and 1992 and claimed deductions of such accrued interest in those years. R disallowed any deduction in a year prior to the year the interest was actually paid and relies on sec. 1.267(a)-3, Income Tax Regs., in support of his position. Held, the instant case raises the identical issue decided in Tate & Lyle, Inc. v. Commissioner, 103 T.C. 656 (1994), revd. and remanded 87 F.3d 99 (3d Cir. 1996), of whether sec. 1.267(a)-3, Income Tax Regs., is a valid exercise of the regulatory authority granted in sec. 267(a)(3), I.R.C. In light of the reversal by the Court of Appeals for the Third Circuit, we reconsider our holding.  - 2 - Held, further, the two-part test of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), applied. Under the first part of the Chevron test, sec. 267(a)(3), I.R.C., authorizing regulations applying the “matching principle” of sec. 267(a)(2), I.R.C., to foreign persons, is not clear and unambiguous. Under the second part of the Chevron test, sec. 1.267(a)-3, Income Tax Regs., is a permissible construction of, and not manifestly contrary to, sec. 267(a)(3), I.R.C. To the extent our opinion in Tate & Lyle is inconsistent with this holding, we will no longer follow it. Held, further, sec. 1.267(a)-3, Income Tax Regs., does not violate Article 24(3) of the Convention With Respect to Taxes on Income and Property, July 28, 1967, U.S.-Fr., 19 U.S.T. 5281, 5310. Robert H. Aland, Gregg D. Lemein, John D. McDonald, and Holly K. McClellan, for petitioner. Lawrence C. Letkewicz and Dana E. Hundrieser, for respondent. OPINION GALE, Judge: Respondent determined deficiencies in petitioner’s Federal income taxes of $7,420,227, $28,971,522, and $15,285,996, for taxable years 1990, 1991, and 1992, respectively. Petitioner claims overpayments of $12,486,577 and $18,289 for taxable years 1990 and 1992, respectively. We must decide whether petitioner, an accrual method taxpayer, may deduct  - 3 - certain interest owed to related foreign persons during the taxable years in which the interest was accrued but not paid.1 Unless otherwise noted, all section references are to the Internal Revenue Code in effect for taxable years 1991 and 1992, and all Rule references are to the Tax Court Rules of Practice and Procedure. Factual Background The facts have been stipulated by the parties and are so found. We incorporate by this reference the stipulation of facts, the first supplemental stipulation of facts, and accompanying exhibits. The following summary of the facts is based on the stipulations. Square D Company, a Delaware corporation with its principal executive offices in Palatine, Illinois, is the common parent of an affiliated group of corporations making a consolidated return (collectively, petitioner). Petitioner computes consolidated taxable income on the basis of a calendar year. Prior to its acquisition by Schneider S.A. (discussed below), petitioner was a publicly held company whose stock was traded on the New York Stock Exchange. During the years in issue petitioner was engaged in the United States and abroad in the manufacture and sale of electrical distribution and industrial 1 Other issues raised in the instant case are considered in a separate opinion.  - 4 - control products. During the years in issue, Schneider S.A. (Schneider), a French corporation with its principal executive offices in Paris, France, was, through its subsidiaries, a multinational manufacturer and marketer of electrical distribution and industrial control equipment, among other activities. Schneider owned, directly or indirectly, five major subsidiaries, including Merlin Gerin S.A. (MGSA) and Telemecanique S.A. (TESA), both French corporations. Around late 1990 or early 1991, Schneider began taking steps to initiate a hostile takeover of petitioner. In connection therewith, Schneider, MGSA, and TESA (the Schneider Lenders) organized Square D Acquisition Co. (ACQ) under the laws of California (and subsequently Delaware) as a transitory entity to serve as a vehicle for the acquisition of petitioner. The Schneider Lenders together owned 100 percent of ACQ. Eventually, after agreeing to ACQ’s purchase of petitioner’s outstanding stock for a total purchase price of about $2.25 billion, petitioner, Schneider, and ACQ entered into a merger agreement in May 1991. On May 30, 1991, the merger was consummated. ACQ’s purchase of petitioner’s stock was financed through a combination of loans from banks, capital contributions to ACQ from the Schneider Lenders, and loans from the Schneider Lenders that were required to be subordinated to the bank loans (1991 Subordinated Loans).  - 5 - The 1991 Subordinated Loans, which totaled $328,272,605, had a fixed maturity date of May 30, 2001, and provided for interest at an annual rate of 10.7 percent, payable quarterly beginning September 30, 1991. Effective August 22, 1991, ACQ merged into petitioner, which assumed ACQ’s obligations under the bank loans and the 1991 Subordinated Loans. After the merger, the Schneider Lenders owned 100 percent of the stock of petitioner. On August 23, 1991, the Schneider Lenders transferred the 1991 Subordinated Loans to Merlin Gerin Services, S.N.C. (SNC), a Belgian entity, in return for a 100-percent ownership interest in SNC. SNC was classified as a partnership for U.S. Federal income tax purposes. As a result of the transfer, the notes reflecting the 1991 Subordinated Loans were replaced with new notes designating petitioner as the borrower and SNC as the lender. A year later, on August 24, 1992, Schneider made a loan, also subordinated to the bank loans, of $80 million to petitioner (1992 Subordinated Loan). The 1992 Subordinated Loan was evidenced by a promissory note, which had a fixed maturity date of May 30, 2001, and provided for interest at an annual rate of 9.8 percent, payable quarterly beginning September 30, 1992. Although the promissory notes for the 1991 and 1992 Subordinated Loans made interest payable quarterly commencing September 30, 1991 and 1992, respectively, the promissory notes  - 6 - provide for payment of principal and interest to be subordinated to payment in full of all amounts outstanding under the bank loans. The agreement for the bank loans in general prohibits any payment of principal or interest on the Subordinated Loans before January 1, 1994. Petitioner did not make any interest payments under the 1991 or 1992 Subordinated Loans during the years in issue. Rather, petitioner accrued interest on the 1991 and 1992 Subordinated Loans during the years in issue as follows: Accrual year 1991 Sub’d Loans 1992 Sub’d Loan Total 1991 $21,075,101 $21,075,101 1992 35,710,584 $2,831,111 38,541,695 The 1991 and 1992 Subordinated Loans constituted debt for U.S. Federal income tax purposes. Schneider, MGSA, TESA, and SNC were not engaged in a trade or business within the United States for U.S. Federal income tax purposes during the years in issue. Interest accrued by petitioner had the following characteristics: (i) It was not includible in the gross incomes of Schneider, MGSA, TESA, or SNC for U.S. Federal income tax purposes; (ii) it was from sources within the United States for U.S. Federal income tax purposes; and (iii) it was not effectively connected with the conduct of a U.S. trade or business for U.S. Federal income tax purposes. During the years in issue, petitioner and the Schneider Lenders  - 7 - were members of the same controlled group of corporations as defined in section 267(b)(3) and (f). During the years in issue, petitioner was a bona fide resident of the United States, and the Schneider Lenders were bona fide residents of France, within the meaning of Article 3(1a) and (2a) of the Convention With Respect to Taxes on Income and Property, July 28, 1967, U.S.-Fr., 19 U.S.T. 5281 (1967 Treaty). During the years in issue, neither the Schneider Lenders nor SNC maintained a permanent establishment in the United States within the meaning of the 1967 Treaty. Article 10(1) of the 1967 Treaty would have applied to any payments by petitioner of the accrued interest on the 1991 and 1992 Subordinated Loans that occurred before January 1, 1996. As a result, the payments would have been exempt from taxes that otherwise would have been due under sections 881 and 1442. Petitioner did not claim deductions for the interest accrued but unpaid with respect to the 1991 and 1992 Subordinated Loans on its returns for taxable years 1991 and 1992. During the course of the examination by respondent, petitioner informally requested that it be allowed to deduct the amounts of interest accrued in 1991 and 1992; namely, $21,075,101 and $38,541,695, respectively. In the notice of deficiency, respondent determined petitioner was not entitled to the deductions.  - 8 - Discussion A. Secretary’s Authority Under Section 267(a)(3) 1. Introduction We must decide whether petitioner, an accrual basis taxpayer, may deduct the interest at issue during the taxable years in which the interest was accrued or must delay the deductions until the taxable years in which the interest was actually paid. The answer to the question hinges on the validity of section 1.267(a)-3, Income Tax Regs., as that section applies to the interest in the instant case. In general, the regulation would prevent petitioner from deducting the interest until the amounts are actually paid. Not surprisingly, respondent argues in favor of the validity of the regulation, while petitioner argues against it. We considered the identical issue in Tate & Lyle, Inc. v. Commissioner, 103 T.C. 656 (1994) (Tate & Lyle I), revd. and remanded 87 F.3d 99 (3d Cir. 1996) (Tate & Lyle II), in which we held that the regulation was invalid. In light of the reversal by the Court of Appeals for the Third Circuit, we reconsider our holding. We now hold that the regulation is valid as a permissible construction of the statutory language that authorizes it. To the extent our opinion in Tate & Lyle I is inconsistent, we will no longer follow it. 2. Statutory and Regulatory Provisions Section 1.267(a)-3, Income Tax Regs., is a legislative  - 9 - regulation, promulgated pursuant to a specific grant of authority in section 267(a)(3). That provision makes the authorization with reference to section 267(a)(2). The provisions state: SEC. 267(a). In General.-- * * * * * * * (2) Matching of deduction and payee income item in the case of expenses and interest.–-If–- (A) by reason of the method of accounting of the person to whom the payment is to be made, the amount thereof is not (unless paid) includible in the gross income of such person, and (B) at the close of the taxable year of the taxpayer for which (but for this paragraph) the amount would be deductible under this chapter, both the taxpayer and the person to whom the payment is to be made are persons specified in any of the paragraphs of subsection (b), then any deduction allowable under this chapter in respect of such amount shall be allowable as of the day as of which such amount is includible in the gross income of the person to whom the payment is made (or, if later, as of the day on which it would be so allowable but for this paragraph). * * * (3) Payments to foreign persons. The Secretary shall by regulations apply the matching principle of paragraph (2) in cases in which the person to whom the payment is to be made is not a United States person. Thus, section 267(a)(2) provides in general that in the case of amounts owed to certain related persons (specified in section 267(b)), if the person to whom the amount is owed, as a result of that person’s accounting method, need not include the amount in  - 10 - income unless it is actually paid, then the person who owes the amount cannot deduct it until it is includible by the first person.2 Further, section 267(a)(3) directs the Secretary to issue regulations applying the “matching principle” of section 267(a)(2) to foreign persons. The phrase “matching principle” does not appear in section 267(a)(2) and is not defined elsewhere in the Code. The regulation we are concerned with is section 1.267(a)- 3(c)(2), Income Tax Regs., which, in combination with section 1.267(a)-3(b)(1), Income Tax Regs., requires a taxpayer to use the cash method of accounting in deducting amounts of interest, which is U.S. source and not income effectively connected with a U.S. trade or business, owed to a related foreign person, whether or not the foreign person is exempt from U.S. tax on such interest under a treaty. The parties have stipulated that Article 10(1) of the 1967 Treaty would have applied to any payments of interest by petitioner on the 1991 and 1992 Subordinated Loans before 1996 and therefore that the payments would have been exempt from taxes otherwise due under sections 881 and 1442. The parties have further stipulated that if section 1.267(a)-3, Income Tax Regs., is valid, petitioner is not 2 For convenience, we shall sometimes use the term “payor” to refer to the person who owes the amount in question and “payee” to refer to the person to whom the amount is owed, even if the amount in question has not been paid.  - 11 - entitled to deduct, during taxable years 1991 and 1992, interest accrued on the 1991 and 1992 Subordinated Loans.3 3. Tate & Lyle In Tate & Lyle I we held that section 1.267(a)-3, Income Tax Regs., insofar as it required an accrual basis taxpayer to use the cash method with respect to interest owed to a foreign person that was exempt from U.S. tax pursuant to treaty, was invalid because it was manifestly contrary to the statute.4 We reasoned that the “matching principle” of section 267(a)(2) was as follows: “An accrual basis taxpayer is not entitled to deduct any amount if it is payable to a related person and, because of the payee’s method of accounting, the item is not currently includible in the payee’s gross income.” Tate & Lyle I at 667. Further, we found the mandate in section 267(a)(3) that the Secretary apply this matching principle to be “absolutely clear” on its face, thus confining the ambit of the regulations to those situations where the failure of the payor’s deduction to “match” the payee’s income inclusion was attributable to the payee’s method of accounting. Because section 1.267(a)-3’s restriction 3 In light of these stipulations, we do not consider the impact, if any, of the fact that the interest on the 1991 Subordinated Loan was owed to SNC rather than the Schneider Lenders. 4 We also held in the alternative that the regulation was invalid because its retroactive application violated the Due Process Clause of the Constitution. The due process issue is not present in the instant case.  - 12 - on deductions extended to situations where the failure to match was not attributable to the payee’s method of accounting (but instead was attributable to a treaty exclusion from the payee’s income), it “[went] beyond applying the matching principle of section 267(a)(2).” Tate & Lyle I at 670. Accordingly, insofar as the challenged regulation precluded the deduction of properly accrued interest owed to a foreign person that was entitled to exclude the interest from gross income under a treaty, it was “manifestly beyond the mandate of the statutory authorization and therefore * * * invalid”. Id. at 671. The Court of Appeals for the Third Circuit reversed in Tate & Lyle II. The Court of Appeals found that our interpretation failed to give appropriate consideration to the structure of the statute, in particular the interaction of section 267(a)(2) and (3): “If, as the Tax Court found * * *, the plain meaning of section 267(a)(3) requires the Secretary to apply exactly the same matching principle of section 267(a)(2) to foreign persons, then the language of section 267(a)(3) is redundant.” Tate & Lyle II at 104. Because in the Court of Appeals’s view “Congress intended more” in enacting section 267(a)(3), Tate & Lyle II at 104 n.12, the court concluded that section 267(a)(3)’s mandate to apply the matching principle in the case of foreign persons was not clear. Consequently, the Court of Appeals reasoned, under the Chevron doctrine, see Chevron U.S.A., Inc. v. Natural Res.  - 13 - Def. Council, Inc., 467 U.S. 837 (1984), the challenged regulation need only represent a permissible construction of section 267(a)(3). Based on a review of the legislative history, the Court of Appeals concluded that section 1.267(a)-3, Income Tax Regs., was a permissible construction and therefore valid, rejecting our view that the regulation was manifestly contrary to the statute. 4. Chevron In light of the Court of Appeals’ reversal, we reconsider our holding in Tate & Lyle I. Because we are reviewing respondent’s construction of a statute he administers, our analysis is governed by Chevron. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., supra; see also Bankers Life & Cas. Co. v. United States, 142 F.3d 973 (7th Cir. 1998) (Chevron doctrine applies to tax regulations, whether legislative or interpretive). Under Chevron, when reviewing an agency’s regulatory implementation of a statute, we look first to the intent of Congress. If Congressional intent is clear, our inquiry ends, and we simply apply the clear intent of Congress. However, if Congressional intent is not clear, the question is whether the regulation is based on a permissible construction of the statute. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., supra at 842-843.  - 14 - Thus, in the first step of a Chevron analysis we must ascertain whether the statute is clear and unambiguous, and in the second step we consider whether, given ambiguities in the statute, the regulation is based on a permissible construction of the statute. The agency’s choice among permissible constructions is entitled to deference. Holly Farms Corp. v. NLRB, 517 U.S. 392, 398-399 (1996). Indeed, where as here the regulation is legislative in character, it must be upheld unless “arbitrary, capricious, or manifestly contrary to the statute”. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., supra at 844; N.Y. Football Giants, Inc. v. Commissioner, 117 T.C. 152, 156 (2001); Peterson Marital Trust v. Commissioner, 102 T.C. 790, 797-798 (1994), affd. 78 F.3d 795 (2d Cir. 1996). 5. Analysis a. Chevron, First Step In Tate & Lyle I, we concluded that the statutory language of section 267(a)(3) is clear; namely, that it authorizes regulations to limit deductions only where a mismatch of a deduction and corresponding income inclusion results from the payee’s method of accounting because, we reasoned, “the matching principle of paragraph (2)” covers only mismatches attributable to that cause. The Supreme Court recently provided additional guidance for administering the first step of the Chevron test in FDA v. Brown  - 15 - & Williamson Tobacco Corp., 529 U.S. 120 (2000). In determining whether the statute is clear for purposes of the Chevron doctrine, the Supreme Court reiterated the “fundamental canon” of statutory construction that “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme” and that a reviewing court performing a Chevron analysis must “fit, if possible, all parts into an harmonious whole”. Id. at 133 (citations omitted). The Supreme Court enunciated the further principle that “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand”. Id. “At the time a statute is enacted, it may have a range of plausible meanings. Over time, however, subsequent acts can shape or focus those meanings.” Id. at 143. Applying these principles, the Supreme Court in Brown & Williamson concluded that the Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040 (Act) (1938), currently codified at 21 U.S.C. secs. 301, 321(g) and (h), 393 (2000), must be interpreted under Chevron to preclude Food and Drug Administration (FDA) regulatory authority over tobacco, even though the Act gave the FDA authority to regulate “drugs” and “combination products” and defined those terms in a manner that on its face might appear to cover nicotine and cigarettes, respectively. The Supreme Court reached this conclusion because, notwithstanding that nicotine  - 16 - and cigarettes might appear to fall within the statutory definitions of “drug” and “combination product” when such definitions were considered in isolation, consideration of the statute as a whole and in the context of other enactments revealed items that conflicted with any grant of jurisdiction in the Act to the FDA to regulate tobacco. In view of the refinements of the Chevron doctrine in Brown & Williamson, we believe our opinion in Tate & Lyle I may have given insufficient attention to fitting all parts of section 267(a) into “an harmonious whole”. If, as we held in Tate & Lyle I, section 267(a)(3) authorizes only regulations that address mismatches resulting from the payee’s method of accounting, then it would appear that section 267(a)(3) is redundant in relation to section 267(a)(2), as the Court of Appeals for the Third Circuit reasoned. That is because section 267(a)(2) would already reach, and implicitly authorize regulations covering, payments owed to a related foreign person with a (U.S.) method of accounting for such payments. Moreover, as in Brown & Williamson, there was a time gap between the enactment of section 267(a)(2) and (a)(3), the latter provision being enacted some 2 years after the former.5 The subsequent enactment of 267(a)(3) 5 Sec. 267(a)(2) was amended in 1984 to the form in effect in the years in issue. Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 174(a), 98 Stat. 704. Sec. 267(a)(3) was added to the Code in 1986. Tax Reform Act of 1986, Pub. L. 99-514, sec. (continued...)  - 17 - may, under the principles of Brown & Williamson, be interpreted as altering the precise contours of section 267(a)(2) for purposes of applying the Chevron doctrine. That is, when considered in isolation, section 267(a)(2) may well appear to describe a “matching principle” applicable only to mismatches caused by the payee’s method of accounting, but when the subsequent enactment of section 267(a)(3) is brought to bear on (a)(2)’s meaning, that meaning may thereby have been “shaped” to include something broader, especially if (a)(3) must be construed to harmonize with the rest of the statute and avoid redundancy. Thus, giving due regard to the Supreme Court’s admonition in FDA v. Brown & Williamson Tobacco Corp., supra at 133, to “fit * * * all parts into an harmonious whole” and to consider the effect of subsequent enactments when undertaking step one of a Chevron analysis, we conclude that the meaning of section 267(a)(3) is not clear. If that section is to be construed to avoid redundancy, then the intent of Congress in authorizing regulations thereunder is uncertain. b. Chevron, Second Step In light of our conclusion that section 267(a)(3) is unclear, we proceed to the second step of the Chevron analysis. 5 (...continued) 1812(c), 100 Stat. 2834. Both were effective retroactively to taxable years beginning after Dec. 31, 1983. Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 174(c), 98 Stat. 707-708; Tax Reform Act of 1986, Pub. L. 99-514, sec. 1881, 100 Stat. 2914.  - 18 - In this step, we defer to the agency’s choice between “conflicting reasonable interpretations” of the statute. Holly Farms Corp. v. NLRB, 517 U.S. at 398-399. We examine, inter alia, legislative history in the second step of the Chevron inquiry.6 See id. at 402 n.8. A close examination of the legislative history reveals that Congress intended the Secretary’s authority under section 267(a)(3) to encompass imposition of the cash method on the payor where the foreign payee does not have a U.S. method of accounting with respect to the amounts owed. Section 267(a)(3) was added to the Code because Congress felt “The application of * * * [section 267(a)(2)] is unclear when the related payee is a foreign person that does not, for many Code purposes, include in gross income foreign source income that is not effectively connected with a U.S. trade or business.” H. Rept. 99-426, at 939 (1985), 1986-3 6 The extent to which extrinsic factors (i.e., factors outside the statutory language itself) may be considered in step one of a Chevron analysis may not be entirely clear after FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). There, the Supreme Court clearly considered an extrinsic factor, namely, subsequent Congressional actions, as part of step one. With respect to legislative history, however, the Court of Appeals for the Seventh Circuit, to which an appeal in this case would ordinarily lie, generally adheres to the view that legislative history may not be considered in step one. See MBH Commodity Advisors, Inc. v. CFTC, 250 F.3d 1052, 1060-1061, 1061-1062 (7th Cir. 2001); Bankers Life & Cas. Co. v. United States, 142 F.3d 973, 983 (7th Cir. 1998). In light of the position of the Court of Appeals, we do not consider legislative history as part of our analysis of step one of Chevron in the instant case. See Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971).  - 19 - C.B. (Vol. 2) 1, 939; S. Rept. 99-313, at 959 (1986), 1986-3 C.B. (Vol. 3) 1, 959. In this passage, Congress expressed its uncertainty as to the application of section 267(a)(2) in a situation where the foreign person has foreign source, non- effectively connected income that need not, for many Internal Revenue Code purposes, be included in U.S. gross income. A characteristic of the foregoing type of income is that the foreign recipient lacks a U.S. method of accounting for it if the income need not be included in U.S. gross income. Both the House and Senate reports provide an example to illustrate what could be required by the regulations contemplated under section 267(a)(3): For example, assume that a foreign corporation, not engaged in a U.S. trade or business, performs services outside the United States for use by its wholly owned U.S. subsidiary in the United States. That income [i.e., the payment by the U.S. subsidiary to the foreign parent for the services rendered] is foreign source income that is not effectively connected with a U.S. trade or business. It is not subject to U.S. tax (or, generally includible in the foreign parent’s gross income). Under the bill, regulations could require the U.S. subsidiary to use the cash method of accounting with respect to the deduction of amounts owed to its foreign parent for these services. * * * [H. Rept. 99- 426, supra at 939, 1986-3 C.B. (Vol. 2) at 939; S. Rept. 99-313, supra at 959, 1986-3 C.B. (Vol. 3) at 959.] We believe this example shows that Congress intended to give the Secretary authority to require the cash method for the deduction of amounts owed to a related foreign person even where those  - 20 - amounts would never be included in the foreign person’s U.S. gross income–-that is, irrespective of any method of accounting of the foreign payee.7 We note also that the situation where the amounts owed to the related foreign person are foreign source, non-effectively connected income is denominated an “example” of where the regulatory authority conferred was intended to be exercised, which suggests other examples were also contemplated where the foreign payee would lack a U.S. method of accounting. The legislative history goes further in its guidance. It specifically (i) contemplates the need for regulations when the amounts owed to a related foreign person are eligible for treaty benefits and (ii) suggests that it is the absence of a U.S. method of accounting that determines the intended scope of the regulatory authority. The House and Senate reports both provide: Regulations will not be necessary when an amount paid to a related foreign person is effectively connected with a U.S. trade or business (unless a 7 In Tate & Lyle, Inc. v. Commissioner, 103 T.C. 656, 670 (1994) (Tate & Lyle I), we acknowledged that the foregoing legislative history was “troublesome” with respect to our “literal reading of section 267(a) and its matching principle” as having application only where failures to match were attributable to methods of accounting. Because we conclude in the instant case, in contrast to Tate & Lyle I, that the statute is not clear, the legislative history must be accorded greater weight. Moreover, as respondent argues, the legislative history for the predecessor of sec. 267(a)(2) suggests that Congress enacted that section to cover cases where the payee would not include the amount because the amount was accrued and deducted but never actually paid. See S. Rept. 1242, 75th Cong., 1st Sess. (1937), 1937-2 C.B. 609, 630.  - 21 - treaty reduces the tax). In that case, present law already imposes matching. However, regulations may be necessary when a foreign corporation uses a method of accounting for some U.S. tax purposes (e.g., because some of its income is effectively connected), but when the method does not apply to the amount that the U.S. person seeks to accrue. [H. Rept. 99-426, supra at 940, 1986-3 C.B. (Vol. 2) at 940; S. Rept. 99-313, supra at 960, 1986-3 C.B. (Vol. 3) at 960.] We believe a set of principles is discernible from the foregoing. The authority granted by section 267(a)(3) does not apply (i.e., “Regulations will not be necessary”) in the case of effectively connected income because (we infer) the foreign recipient in this instance would have a U.S. method of accounting for such income, triggering a straightforward application of section 267(a)(2) (i.e., “present law already imposes matching”). Regulations under section 267(a)(3) would be necessary, however, where treaty benefits are available. Finally, the last sentence in the passage illustrates the fundamental principle underlying the intended regulatory authority, in our view; namely, the scope of the regulations under section 267(a)(3) is generally determined by the presence or absence of a U.S. method of accounting for the income item in the hands of the foreign recipient, where the U.S. payor seeks to accrue a deduction with respect to that item.8 8 We also note that other provisions of the regulations that have been issued pursuant to sec. 267(a)(3) (i.e., besides the provision at issue herein) reflect this principle. The provisions in general impose the cash method on the U.S. payor under sec. 267(a)(3) only where the related foreign payee lacks a U.S. method of accounting for the item otherwise accruable by the (continued...)  - 22 - Petitioner relies on the same passages from the legislative history previously quoted to argue that the regulation at issue exceeds the Secretary’s authority. First, with respect to the example cited in the legislative history, petitioner argues that the passage indicates that Congress authorized regulations to cover only the situation set out in that example; i.e., where the amount owed to the foreign person is neither U.S. source nor effectively connected income. According to petitioner, Congress did not authorize regulations covering amounts owed that are U.S. source income, as in the instant case. Petitioner effectively reads “for example” as used in the committee reports as denoting the exclusive scenario in which the regulatory authority was intended to operate. We think this is at best a strained reading of “for example” and that the ordinary usage of that phrase does not suggest exclusivity. Regardless of whether petitioner or respondent (with whom we happen to agree) has the better interpretation of the passage, we conclude that respondent’s construction, as embodied in the challenged regulation, is a permissible one. Under the Chevron doctrine, that settles the matter. Respondent’s interpretation of the regulatory authority granted in section 267(a)(3) is reasonable in light of the legislative history and therefore is entitled to 8 (...continued) payor and apply section 267(a)(2) where such payee has a U.S. method of accounting for the item.  - 23 - deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). As a permissible construction, the regulation is ipso facto not manifestly contrary to the statute. Petitioner also mounts an argument based on the previously quoted passage from the committee reports that cites instances where “a treaty reduces the tax” (emphasis added). Petitioner argues that Congress thereby intended to distinguish between reductions and eliminations of tax by treaty, citing respondent’s maintenance of that distinction in other contexts. Therefore, the argument goes, Congress intended to authorize regulations in the case of reductions, but not eliminations, of tax by treaty, such as exist in the instant case. For the same reasons just outlined, petitioner’s argument must fail. Even if petitioner’s interpretation were the better one, it cannot be said that respondent’s position in the challenged regulation-–to the effect that the committee report’s use of “reduction” encompasses “elimination” of tax by treaty-–is an impermissible construction of the statute. Under the Chevron doctrine, respondent’s position prevails. B. Treaty Nondiscrimination Provision Petitioner argues in the alternative that section 1.267(a)- 3, Income Tax Regs., as applied in this case violates Article 24(3) of the 1967 Treaty (Article 24(3)).  - 24 - Treaties and statutes are viewed under the Constitution as on the “same footing”. Whitney v. Robertson, 124 U.S. 190, 194 (1888) (cited in Am. Air Liquide, Inc. & Subs. v. Commissioner, 116 T.C. 23, 28-29 (2001)); see secs. 894(a), 7852(d). Indeed, when a treaty and statute relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, * * * [Whitney v. Robertson, supra at 194.] For the reasons outlined below, we do not believe that section 267(a)(3) and section 1.267(a)-3, Income Tax Regs., are inconsistent with Article 24(3).9 Article 24(3) provides as follows: A corporation of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which a corporation of that first- mentioned Contracting State carrying on the same activities, the capital of which is wholly owned by one or more residents of that first-mentioned State, is or may be subjected. 9 We note that the rule establishing parity between treaties and Federal laws concerns statutes rather than Treasury regulations, and that petitioner is challenging the regulation in question rather than the statute. However, we need not, and do not, decide whether the regulation is equivalent to a statute for these purposes, because we find that it does not violate Article 24(3). See Blessing & Dunahoo, Income Tax Treaties of the United States (1999), par. 1.03[1][a][ii]; cf. Am. Air Liquide, Inc. & Subs. v. Commissioner, 116 T.C. 23 (2001); UnionBanCal Corp. v. Commissioner, 113 T.C. 309 (1999).  - 25 - Thus, for purposes of the instant case, Article 24(3) provides that a U.S. corporation owned by French residents (French-owned corporation) shall not be subjected to U.S. taxation that is “other or more burdensome” than the taxation to which a U.S. corporation owned by U.S. residents (U.S.-owned corporation), “carrying on the same activities” as the French-owned corporation, is subjected. Petitioner argues that petitioner, a French-owned corporation, is subjected to other or more burdensome taxation than a U.S.-owned corporation would be. We disagree. Article 24(3) prevents “other or more burdensome” treatment based on the residence of the owners of the capital of the corporation. Article 24(3) does not apply when there is no connection between the residence of the owners and the different tax treatment that results under U.S. law. See generally Vogel, Klaus Vogel on Double Taxation Conventions, Art. 24(5) par. 165 (3d ed. 1997) (“The provision does not protect enterprises in which non-residents participate, against discrimination generally, when there is no connection between the discrimination and the ownership of capital by foreigners.”). Petitioner does not seem to dispute this. Rather, petitioner argues that different treatment in the instant case is connected to the residence of the owners; i.e., that petitioner is denied an accrual basis deduction for interest amounts owed to its foreign  - 26 - owner,10 but a hypothetical U.S.-owned corporation would be permitted accrual basis deductions for interest amounts owed to its U.S. owner (as long as that owner used the accrual method). We are not persuaded by petitioner’s supposed “connection”. Section 1.267(a)-3, Income Tax Regs., operates independently of the residence of the owners of the payor corporation; the fact that payments to a foreign owner might be treated differently from payments to a U.S. owner is merely incidental. As respondent argues: “The basis for deferring the interest deduction [under the challenged regulation] is dependent entirely on the U.S. tax treatment of the payment in the hands of the foreign corporation, not the identity or nationality of the owner of the payor.” This is clear when the operation of section 1.267(a)-3, Income Tax Regs., is examined more closely. For instance, a U.S. corporation, whether U.S.-owned or foreign- owned, must in general deduct on the cash method interest payments to a related foreign person that are not effectively connected income of that foreign person. Sec. 1.267(a)-3(b)(1) 10 As noted earlier, see supra note 3, none of the interest with respect to the 1991 Subordinated Loans was owed to petitioner’s parent, Schneider, because it was all owed to SNC during the years in issue. Thus, petitioner’s argument would not apply to the interest on the 1991 Subordinated Loans. However, the interest on the 1992 Subordinated Loan was owed to Schneider, making petitioner’s argument relevant to that interest. In any event, we find that sec. 1.267(a)-3, Income Tax Regs., does not violate Article 24(3), rendering moot whether the interest at issue was owed to Schneider or to SNC.  - 27 - and (2), (c)(2), Income Tax Regs. Further, payments of interest that are effectively connected income may be deducted on the accrual method if the foreign payee uses the accrual method, again without regard to the residence of the owners of the payor. Sec. 1.267(a)-3(c)(1) and (2), Income Tax Regs. Thus, if a U.S. corporation is making a payment of interest to a related foreign person, the accounting method for deducting the amount depends on whether the interest is or is not effectively connected income, and on whether the payee uses the accrual method, not on the residence of the owners of the U.S. corporation. See also sec. 1.267(a)-3(c)(4), Income Tax Regs. (amounts owed to controlled foreign corporation and similar enterprises are deductible on the accrual method if the enterprise uses the accrual method). In sum, there is nothing in the regulation in issue that subjects petitioner to other or more burdensome taxation. Thus, there is no violation of Article 24(3). Conclusion We conclude that section 1.267(a)-3, Income Tax Regs., is a valid exercise of the regulatory authority granted in section 267(a)(3) and does not violate Article 24(3) of the 1967 Treaty. To the extent any other arguments of the parties are not addressed, they are moot, irrelevant, or meritless. To reflect the foregoing,  - 28 - An appropriate order will be issued. Reviewed by the Court. SWIFT, GERBER, COLVIN, HALPERN, BEGHE, LARO, FOLEY, THORNTON, and MARVEL, JJ., agree with the majority opinion. WHALEN, J., dissents.  - 29 - RUWE, J., dissenting: Section 267(a)(2) prevents an accrual basis taxpayer from currently deducting any amount payable to a related person if the amount is not currently includable in the payee’s gross income because of the payee’s method of accounting. Section 267(a)(3) authorizes regulations to apply the matching principle of section 267(a)(2) in cases where the payee is a foreign person. As explained in the Commissioner’s Notice 89-84: Section 267(a)(2) of the Code provides generally that a taxpayer may not deduct any amount owed to a related party (as defined in section 267(b)) until it is includible in the payee’s gross income if the mismatching arises because the parties use different methods of accounting. Section 267(a)(3) authorizes the Secretary to issue regulations applying this principle to payments to related foreign persons. * * * [Notice 89-84, 1989-2 C.B. 402; emphasis added.] Nevertheless, section 1.267(a)-3, Income Tax Regs., puts accrual method taxpayers, who could otherwise deduct interest payable to a related foreign person, on the cash method of accounting, even though, pursuant to a treaty, the interest is not, and never will be, includable in the payee’s gross income. The regulation would disallow the deduction for accrued interest regardless of the fact that the exclusion from the payee’s gross income has nothing to do with payee’s method of accounting. As more fully set forth in our plurality opinion in Tate & Lyle, Inc. & Subs. v. Commissioner, 103 T.C. 656 (1994), the regulation goes beyond the scope of the regulatory authority specifically granted in section  - 30 - 267(a)(3) because it is not based on the matching principle stated in section 267(a)(2). The majority states that restricting the scope of the regulations under section 267(a)(3) to the application of the matching principle articulated in section 267(a)(2) would make section 267(a)(3) redundant. But section 267(a)(3) literally authorizes regulations only in order to apply the matching principle of section 267(a)(2). Section 267(a)(3) was enacted because Congress perceived some uncertainty in how to apply the matching principle where the payee was a foreign person.1 It does not authorize regulations that change the matching principle. Thus, the Commissioner correctly argued in Tate & Lyle, Inc.: I.R.C. §267(a)(3) only clarified existing tax law. * * * * * * * * * * Here, I.R.C. §267(a)(3), was enacted to clarify I.R.C. §267(a)(2), which had been effective since 1984. Tax Reform Act of 1984, Pub. L. No. 98-369, sec. 174(a)(1). Because I.R.C. §267(a)(3) is a technical correction or clarification of the earlier law, it, too, was made effective by Congress for tax years beginning after December 31, 1983. Pub. L. No. 99-514, 1 For example, in the case of a foreign payee there was uncertainty whether the terms “gross income” and “method of accounting” referred to gross income and method of accounting for U.S. tax purposes. In Tate & Lyle, Inc. & Subs. v. Commissioner, 103 T.C. 656, 662 (1994), we agreed with respondent that the terms “gross income” and “method of accounting” as used in sec. 267(a)(2) meant for U.S. tax purposes.  - 31 - §§1812(c)(1), 1881. [Tate & Lyle, Inc. & Subs. v. Commissioner, supra at 661.] Following this rationale, the Commissioner argued in Tate & Lyle, Inc. that even without section 267(a)(3) and section 1.267(a)-3, Income Tax Regs., the taxpayer’s interest could only be deducted when paid.2 Id. In Tate & Lyle, Inc., we explained in great detail why section 1.267(a)-3, Income Tax Regs., goes well beyond applying the matching principle defined in section 267(a)(2). On the basis of that analysis, I believe that the portion of the regulations that would preclude petitioner from accruing and deducting the interest in question is manifestly beyond the statutory authorization and therefore is invalid. See Rite Aid Corp. v. United States, 255 F.3d 1357 (Fed. Cir. 2001). WELLS, COHEN, CHIECHI, and VASQUEZ, JJ., agree with this dissenting opinion. 2 In Tate & Lyle, Inc. & Subs. v. Commissioner, supra, we rejected this argument, and it appears that the majority in the instant case also rejects any argument that petitioner’s claimed interest deduction would be disallowed under sec. 267(a)(2) even without enactment of sec. 267(a)(3) and sec. 1.267(a)-3, Income Tax Regs. 

Not for Publication in West's Federal Reporter United States Court of Appeals For the First Circuit No. 06-1461 BERT J. ALLEN, III, Plaintiff, Appellant, v. YORK COUNTY JAIL, ET AL., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] Before Torruella, Lynch and Lipez, Circuit Judges. Bert J. Allen, III on brief pro se. Michael J. Schmidt and Wheeler & Arey, P.A., on brief for appellees. January 23, 2007  Per Curiam. Bert J. Allen, III, pro se, appeals from the district court's entry of judgment as a matter of law under Fed. R. Civ. P. 50(a) in favor of defendant Tammy Legnard and the jury verdict entered in favor of defendant Daniel Dubois in this civil rights action. Allen's claims arose from injuries he suffered at the hands of other inmates while he was confined at the York County Jail in Sanford, Maine, as a pretrial detainee; specifically, Allen asserted that he was sexually assaulted by two inmates at the behest of defendant Dubois, and that on another occasion he was injured when inmates pelted him with rocks during a prison evacuation in August 2000. Allen claimed that these injuries were the result of the deliberate indifference of defendants, both corrections officers at the prison, to his health and safety, in violation of his Fourteenth Amendment Due Process rights as a pretrial detainee. On appeal, Allen first argues that the district court erred in granting defendant Legnard's motion for judgment as a matter of law under Fed. R. Civ. P. 50(a). To the extent Allen challenges the timing of the motion or the ruling on the motion, his argument is baseless; Rule 50(a) expressly authorizes the procedure that was followed. Allen's challenge to the substance of the ruling is also unavailing. Although the evidence showed that Legnard put Allen in a cell with inmates who had sexually assaulted him a few days after the assault occurred, she testified that she -2- was unaware that the assault had occurred and that she removed Allen from the holding cell as soon as he requested it. Allen does not cite any evidence to refute that testimony, and he does not allege that he suffered any injury as a result of the post-assault confinement. Allen also fails to cite any evidence that would refute Legnard's testimony that she was not present at the prison during the rock-throwing incident. Since the focus of a deliberate indifference claim is what the officers knew and what they did in response to a known risk, Burrell v. Hampshire County, 307 F.3d 1, 8 (1st Cir. 2002), see Farmer v. Brennan, 511 U.S. 825, 845 (1994), the district court's grant of Legnard's motion for judgment as a matter of law was proper. Allen next argues that the district court erred in permitting defendants to introduce a redacted version of a videotaped deposition of an unavailable witness at trial. Since it appears that the redacted content was limited to material properly ruled inadmissible by the trial court, however, the district court's ruling was not in error. Allen also asserts that the district court erred in instructing the jury to apply the standard of deliberate indifference applicable to claims brought by convicted inmates under the Eighth Amendment; he suggests that a different standard should have been applied because, as he was a pretrial detainee, his claims were brought under the Fourth Amendment. However, we -3- have made clear that the Eighth Amendment standard is to be applied to deliberate indifference claims brought by pretrial detainees. See Burrell, 307 F.3d at 7. Allen's assignment of error is therefore unfounded. We have carefully considered Allen's remaining issues and find them to be without merit. Affirmed. See 1st Cir. Loc. R. 27.0(c). -4- 

FILED NOT FOR PUBLICATION JAN 20 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT SIRVARD OROUJYAN, No. 06-70347 Petitioner, Agency No. A075-706-738 v. MEMORANDUM * ERIC H. HOLDER Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 11, 2010 ** Before: BEEZER, TROTT, and BYBEE, Circuit Judges. Sirvard Oroujyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, * 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). NED/Research withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review adverse credibility determinations for substantial evidence, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001), and we deny the petition for review. Substantial evidence supports the IJ’s adverse credibility determination because Oroujyan’s testimony was inconsistent with her declaration concerning the details of her escape from the September 1999 attack and concerning whether her February 2000 attackers threatened her with a gun or a knife, see Chebchoub, 257 F.3d at 1043 (inconsistencies in the details of events that form the basis for the asylum claim go to the heart of the claim and support an adverse credibility finding), and the IJ reasonably found Oroujyan’s explanations for the discrepancies unconvincing, see Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007). In the absence of credible testimony, Oroujyan failed to establish eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Oroujyan’s contention that the BIA failed to address her CAT claim is not supported by the record. Because Oroujyan’s CAT claim is based on the same evidence the IJ found not credible and she points to no further evidence to show it NED/Research 2 06-70347 is more likely than not she wold be tortured if returned to Armenia, her CAT claim fails. See id. at 1156-57. PETITION FOR REVIEW DENIED. NED/Research 3 06-70347 

377 Pa. Superior Ct. 512 (1988) 547 A.2d 1180 Evelyn MORGANSTEIN, Executrix of the Last Will and Testament of Morton Morganstein, Deceased, Appellant, v. Benjamin HOUSE, M.D., Appellee. Supreme Court of Pennsylvania. Submitted April 7, 1988. Filed August 18, 1988. Reargument Denied October 5, 1988. *513 Keith S. Erbstein, Philadelphia, for appellant. Stanley P. Stahl, Philadelphia, for appellee. Before WIEAND, BECK and HOFFMAN, JJ. *514 WIEAND, Judge: In this appeal from the judgment entered following a defense verdict in a medical malpractice action, the principal issue is whether the trial court erred by instructing the jury on the "two schools of medicine" doctrine. On June 24, 1980, Morton Morganstein made a professional visit to Benjamin House, M.D., who had been his physician for almost twenty years. Morganstein complained of pain in his left armpit, which radiated down his left arm. Dr. House was a primary care or family physician. Morganstein was overweight and had a history of hypertension; and Dr. House had been treating him regularly since 1962 for asthmatic bronchitis. On June 24, 1980, the doctor made a routine examination of his patient, took a history, found his blood pressure to be 140 over 80, and administered an electrocardiogram (EKG). House interpreted the EKG as being normal, observed that Morganstein was not in pain, diagnosed his patient's condition as presumptive coronary artery disease, and prescribed nitroglycerine as a therapeutic trial. Dr. House also advised Morganstein to restrict his activity, not to go to work, to return for additional evaluation on July 1, 1980, and to contact him immediately in the event of subsequent pains. Morganstein immediately returned to work. Two days later Mrs. Morganstein called and expressed concern for her husband's condition. Dr. House told her to have her husband call him. On the evening of June 26, 1980, Morganstein called Dr. House, inquired about test results, and said that he felt fine. He also reported that he had suffered left axillary pain for a few minutes the night before, for which he had taken nitroglycerine. Dr. House again recommended that Morganstein restrict his activity, told him to call immediately if the symptoms worsened, and said he would see him in a few days at the time of their scheduled appointment. On June 29, 1980, after a late night of socializing, Morganstein began to experience pain and placed a nitroglycerine tablet under his tongue. When the pain persisted, his wife called a nearby hospital, which agreed to see him immediately. *515 As he was leaving home about 2:00 a.m., Morganstein collapsed and died of a heart attack. Letters testamentary were issued to Evelyn Morganstein, and she commenced an action to recover for her husband's death in which she alleged that Dr. House had been guilty of medical malpractice. At trial, Michael Barrett, M.D., a cardiologist, opined that the June 24th EKG had disclosed significant changes which suggested that the decedent had been suffering from unstable angina, a condition which required immediate hospitalization, in addition to nitroglycerine. However, defendant's cardiologist, Dr. Norman Makous, testified that his examination of decedent's EKG revealed no significant heart changes and that Dr. House's treatment under the circumstances had been in accordance with accepted medical practice. Dr. House also testified that neither the EKG nor any of his patient's symptoms had indicated unstable angina and that hospitalization had not been warranted. Following a four day trial, the jury returned a verdict in favor of the defendant physician. After defining negligence and instructing the jury on causation, the trial court charged the jury as follows: There was testimony here as to the proper or improper methods used or utilized by physicians in regard to cardiac problems. One expert testified one way, another expert testified differently. So that you will have to decide whether the manner followed by either or the other expert was proper or the method employed was proper. In assisting you in doing this, I wish to advise you that "a physician may rightfully choose to practice his profession in accordance with a school of thought which differs in its concepts and procedures from another school of thought, even though the school that he follows is a minority one. He will not be deemed to be negligent or practicing improperly so long as it is representable and respected by reasonable medical experts." At the conclusion of the trial court's instructions, appellant's counsel recorded the following objection: *516 MR. ERBSTEIN: Your Honor, you discussed the competing schools of thought in conjunction with discussing the fact that the different experts in the case expressed different opinions. And in that chronological sequence of discussing that, I believe one gets the impression that if there are two experts who testify on the witness stand and one said one is appropriate and the other says the other is appropriate that if the doctor merely followed one of the things that one of the experts said — THE COURT: If reputable. MR. ERBSTEIN: I believe it was confusing, Your Honor. I take exception — THE COURT: Okay. Appellant contends that the trial court's instruction on two schools of medicine was inapplicable and inappropriate and should not have been given. Initially, we must determine whether this issue has been properly preserved for appellate review. Appellee asserts that the present argument was not included in the objection made by appellant at trial, which was directed to the confusing nature of the instruction. We conclude that the issue of whether the inclusion of this portion of the court's instructions was confusing because inapplicable to the facts has been properly preserved for appellate review. The doctrine of different schools of medicine has been clearly stated at 29 P.L.E. Physicians and Surgeons § 23 as follows: A physician or surgeon is not bound to employ any particular mode of treatment, and where among physicians or surgeons of ordinary skill and learning more than one method of treatment is recognized as proper, it is not negligence for a physician to adopt either of such methods. Thus, in cases where medical authorities differ, a competent physician or surgeon is only bound to exercise his best judgment in determining what course of treatment is the best, and where competent medical authority is divided, a physician or surgeon will not be held responsible if, in the exercise of his judgment, he follows *517 a course of treatment advocated by a considerable number of his profession in good standing in his community. Id. (footnotes omitted). The rule was first articulated in Remley v. Plummer, 79 Pa.Super. 117 (1922), where the issue was whether it had constituted negligence to administer a general anesthetic during minor surgery instead of a local anesthetic. The Superior Court stated the reason for the rule as follows: The question actually passed upon by the jury was not whether the defendants, in their handling of the case, had been guilty of negligence in not following a well-recognized and established mode of treatment, but rather, which of two methods, both having their respective advocates and followers of respectable authority, was the safer and better from a surgical standpoint. In other words, in the face of conflicting reliable expert evidence as to what was the proper course to be pursued by the surgeon in charge of the case, twelve laymen, with no knowledge of medicine and surgery were called upon to decide a disputed scientific medical and surgical question upon which eleven physicians and surgeons of standing and experience could not agree, and as to which there is a wide divergence of competent authority. . . . Id. at 121. This, the Court said, had been error. "If the treatment is in accordance with a recognized system of surgery, it is not for the court or jury to undertake to determine whether that system is best, nor to decide questions of surgical science on which surgeons differ among themselves." Id. at 123, quoting 30 Cyc. 1588, section 8. The rule was subsequently adopted and made a part of the law of this Commonwealth by the Supreme Court in Duckworth v. Bennett, 320 Pa. 47, 181 A. 558 (1935). See also: Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980); Trent v. Trotman, 352 Pa.Super. 490, 508 A.2d 580 (1986). However, the rule is not without limitation. In Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338 (1939), a young boy had fallen on a stick which penetrated his thigh by several *518 inches. His physician treated the wound by cleaning and bandaging it. He did not give the boy an injection of tetanus anti-toxin. A tetanus infection caused the boy to suffer lockjaw. Plaintiff's experts testified that proper treatment for a puncture wound included an anti-tetanus injection. Defendant's experts opined that the wound had been a "lacerated" or "tunneling" type wound for which cleaning and bandaging constituted proper treatment. The trial court instructed the jury on the "two schools of thought" doctrine, and the jury returned a verdict for the defendant. The trial court set aside the verdict and granted a new trial. The Supreme Court affirmed. It held that where medical experts in a case agree as to the recognized and established proper treatment for a particular type injury but there is a dispute as to whether the plaintiff had that type of injury, the latter question is one of fact for the jury. Similar limitations had been recognized by the Superior Court via dictum in Remley v. Plummer, supra, when it said: [I]f there is a reasonably general agreement as to what is the proper medical treatment for a disease or the proper surgical treatment for an injury and there is a dispute as to whether the physician or surgeon in charge of the case used the method or means thus generally prescribed a question of fact is presented which is for a jury to determine. Or if the symptoms of a disease or the effects of an injury are so well known that a reasonably competent and skillful physician or surgeon ought to be able to diagnose the disease or injury, his negligence in failing to do so is likewise a matter of fact on which a jury of laymen may pass judgment. Id. at 122. Appellant argues that these limitations are applicable to the instant case. He contends that whether Dr. House should have diagnosed his patient's malady as an unstable angina requiring immediate hospitalization and treatment was an issue of fact for the jury. We agree. It was Dr. Barrett's testimony that the unstable angina was apparent *519 from the EKG reading and that the patient should have been hospitalized immediately. He conceded that most patients with stable angina can obtain relief with nitroglycerine. On the other hand, it was the testimony of Dr. House and Dr. Makous that neither the patient's symptoms nor the EKG had disclosed that the patient was suffering from an unstable angina requiring immediate hospitalization. Dr. Makous testified that under such circumstances, there having been no prior history of heart disease, it was sound medical practice to use nitroglycerine as a therapeutic trial and to aid in the evaluation of the patient's complaints. He did not negate a need for immediate hospitalization when a patient has unstable angina. Whether Dr. House should have diagnosed Morganstein's condition as an unstable angina and hospitalized him for treatment and further testing was an issue of fact for the jury. To instruct the jury regarding two schools of medical thought, under these circumstances, was inappropriate. Appellee argues, however, that the trial court's charge, when examined in its entirety, did not mislead the jury. This argument relies on the well-established principle that whether a charge is erroneous depends on an examination of the charge as a whole and not on isolated portions taken out of context. See: Baker v. Pa. Nat'l Mutual Casualty Ins. Co., 370 Pa.Super. 461, 469, 536 A.2d 1357, 1361 (1987); Mecca v. Lukasik, 366 Pa.Super. 149, 167-168, 530 A.2d 1334, 1343 (1987); 10 St.Pa.Prac.2d § 59:52. In the instant case, the principle of different schools of medical thought and its possible application were not further explained to the jury by the trial court. Therefore, it was possible for the jury to interpret the instruction as requiring a finding that Dr. House was not negligent so long as his conduct was supported by the testimony of another medical expert. We are constrained to conclude, therefore, that the erroneous instruction was neither harmless nor corrected by any other part of the court's charge. *520 Because it may have contributed to the verdict, a new trial is required. Richmond v. A.F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 271-272, 218 A.2d 303, 304 (1966). Ackerman v. Delcomico, 336 Pa.Super. 569, 578 n. 1, 486 A.2d 410, 415 n. 1 (1984). We find no merit in appellant's remaining assignments of error. Because there was evidence that the decedent had disregarded his physician's instructions regarding his returning to work and also regarding his use of nitroglycerine, the trial court could properly instruct the jury, as it did, on Morganstein's possible contributory negligence and the law of comparative negligence. See, e.g.: McCullough v. Monroeville Home Ass'n, 270 Pa.Super. 428, 411 A.2d 794 (1979) (if there is any evidence of contributory negligence it is reversible error to refuse to charge thereon). Moreover, it would have been improper for the trial court to instruct the jury, as appellant urged, that it could draw an inference adverse to the defendant merely because only a portion of the electrocardiogram print-out had been retained. The evidence was that it was generally accepted medical practice to segment off and cut up electrocardiogram results, while retaining only a small portion thereof as a permanent record. In light of such evidence, the trial court properly refused appellant's request for an instruction that would have permitted the jury to draw an inference adverse to the physician because only a part of the EKG print-out had been retained. See generally: Haas v. Kasnot, 371 Pa. 580, 584-585, 92 A.2d 171, 173 (1952) (adverse inference applies only where party failing to produce evidence which is in its control and would naturally be in its interest fails to give a satisfactory reason for the omission); Farley v. Southeastern Pennsylvania Transportation Authority, 279 Pa.Super. 570, 577-580, 421 A.2d 346, 350-351 (1980) (per Watkins, J., with two judges concurring in result) (same). Nevertheless, for the reason hereinbefore set forth, a new trial must be granted. *521 Reversed and remanded for a new trial. Jurisdiction is not retained.

951 F.2d 360 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.Thorn LOVELACE, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 91-35081. United States Court of Appeals, Ninth Circuit. Submitted Dec. 5, 1991.*Decided Dec. 19, 1991. Before EUGENE A. WRIGHT, DAVID R. THOMPSON and T.G. NELSON, Circuit Judges. 1 MEMORANDUM** 2 Thorn Lovelace appeals pro se from summary judgment entered in favor of the Government in his tax refund suit. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 110 S.Ct. 3217 (1990), and affirm. I. 3 Our review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989); Judie v. Hamilton, 872 F.2d 919, 920 (9th Cir.1989). "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Contrary to Lovelace's arguments in this case, the district court correctly analyzed this case, found no disputed fact that would affect the outcome of the suit under governing law, and applied the relevant substantive law. 4 Lovelace misapprehends his burden of proof in this case. In a tax refund suit, deficiency determinations by the IRS are presumed correct, and the burden of proof is on the taxpayer to show the findings are erroneous. Helvering v. Taylor, 293 U.S. 507, 514-15 (1935); Roat v. Commissioner, 847 F.2d 1379, 1383 (9th Cir.1988); see also Watts v. United States, 703 F.2d 346, 348 (9th Cir.1983) (taxpayer in refund suit has burden to prove overpayment of tax). The claim for a refund must be substantiated by something other than tax returns, uncorroborated oral testimony, or self-serving statements. Mays v. United States, 763 F.2d 1295, 1297 (11th Cir.) (citations omitted), cert. denied, 474 U.S. 998 (1985). 5 Lovelace has not challenged the merits of the IRS's determinations set out in the notice of deficiency. His attacks on the procedural validity of the assessments fail to shoulder the burden of proof of establishing invalidity of the assessments. 6 The ultimate issue in a refund suit is whether the taxpayer overpaid the tax, see Lewis v. Reynolds, 284 U.S. 281 (1932), modified, 284 U.S. 599 (1932), not whether the IRS complied with the requirements of 26 U.S.C. § 6020(b). An integral issue in this case, therefore, is whether Lovelace filed a valid tax return. The district court correctly determined that Lovelace did not file a valid tax return for tax years 1981 and 1982. "Tax forms that do not contain information upon which tax liability may be computed are not returns within the meaning of the Internal Revenue Code." Edwards v. Commissioner, 680 F.2d 1268, 1269-70 (9th Cir.1982) (citations omitted). 7 Lovelace argues that a double standard was used by the district court in evaluating his 1981 and 1982 tax returns and the "dummy return" prepared by the IRS. This contention is irrelevant and without merit, and does not affect Lovelace's burden of proof in this case. 8 The issue of whether valid tax returns were filed was also crucial in responding to the question of whether Lovelace was assessed within the limitations period of 26 U.S.C. § 6501(b)(3). Because Lovelace did not file a valid return, the statute of limitations for the Commissioner to make an assessment did not start running. Edwards, 680 F.2d at 1269-70; see also 26 U.S.C. § 6501(b)(3). 9 Lovelace argues material facts "relative to the assessment and requisite Notices still remain at issue." Appellant's Opening Brief at 5. We disagree. These alleged facts have no bearing on the outcome of this case under governing law and do not affect Lovelace's burden of proof. The district court correctly observed that Lovelace's admission of his receipt of the notice of tax deficiency and his deliberate election not to pursue the available means of testing the assessments confirmed the presumption of procedural regularity on the part of the IRS. District Court Order at 4, citing United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926). The district court also correctly determined that the IRS did not deny Lovelace due process by not giving him a preassessment hearing. Id. at 4-5, citing Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428 (9th Cir.1985), cert. denied, 474 U.S. 1056 (1986). 10 Lovelace apparently argues that the district court erred in relying on the declaration of an IRS special procedures advisor in granting summary judgment because it is hearsay and because the attachments to the declaration contained improperly certified forms. These arguments are without merit. The declaration was made on personal knowledge, was not hearsay, and complied with Fed.R.Civ.P. 56(e). Furthermore, the presumption of correctness of the assessment procedure and collection of the tax has not been overcome by allegations that the forms are fraudulent because they were improperly certified. For these reasons, the district court also correctly denied Lovelace's motion to strike. 11 The "recent information" submitted by Lovelace to purportedly demonstrate a lack of authority to affix the official seal and certify Forms 4340 and 2866, consists of documents outside of the record in this case and will not be considered on appeal. See Fed.R.App.P. 10(a); Ninth Cir.R. 10-2. Lovelace's argument related to this information is raised for the first time on appeal and will not be considered by this court. See Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1264 (9th Cir.1990). 12 Lovelace argues that the court should have deferred ruling on his motion for summary judgment until he received certain discovery. We disagree. While Lovelace argues this information would have permitted him to discover the Government's exhibits were prepared without the required delegated authority, this information was not essential to justify his opposition to the Government's motion for summary judgment. See Fed.R.Civ.P. 56(f). 13 The district court's denial of Lovelace's motion for summary judgment as moot in light of its ruling on the Government's motion for summary judgment was not a failure to exercise discretion or a denial of due process. The denial simply reflects Lovelace's failure of proof in this case. The record reveals no unfair treatment of Lovelace or judicial bias and Lovelace's allegations of lack of due process are without merit. II. 14 The Government has requested this court impose sanctions upon Lovelace for bringing a frivolous appeal. We have the discretion to impose such sanctions, even against pro se litigants, to deter frivolous appeals and conserve judicial resources. 28 U.S.C. § 1912; Fed.R.App.P. 38; Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir.1988). Lovelace's claims are wholly without merit. Accordingly, we impose $1,500 as a sanction in lieu of other costs and fees. III. 15 The court affirms the judgment of the district court granting the Government's motion for summary judgment and dismissing Lovelace's claims; denying Lovelace's request for deferral of ruling; denying Lovelace's cross motion for summary judgment; and denying Lovelace's motion to strike. We grant the Government's request for sanctions and impose a $1,500 sanction against Lovelace for bringing this frivolous appeal. 16 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4 ** 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

202 F.Supp.2d 705 (2002) AIR BRAKE SYSTEMS, INC., Plaintiff, v. Norman Y. MINETA, in his capacity as Secretary of Transportation, National Highway Traffic Safety Administration, Defendant. No. 01-10308-BC. United States District Court, E.D. Michigan, Northern Division. April 25, 2002. *706 David M. Lick, Jeffrey S. Theuer, Daniel L. Pulter, Loomis, Ewert, Lansing, MI, for Plaintiff. Sandra M. Schraibman, United States Department of Justice, Antitrust Division, James J. Gilligan, U.S. Department of Justice, Civil Division, Washington, DC, James A. Brunson, U.S. Attorney's Office, Bay City, MI, for Defendant. OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT LAWSON, District Judge. The plaintiff, Air Brake Systems, Inc. (ABS Inc.), manufactures components for braking systems which are installed on trucks and trailers. A potential customer of ABS Inc. made inquiry of the National Highway Traffic and Safety Administration (NHTSA) as to whether a product manufactured by ABS Inc. would meet a certain Federal Motor Vehicle Safety Standard (FMVSS) pertaining to an anti-lock braking system (ABS) which the customer considered installing as original equipment on trailers which it manufactured. NHTSA did not conduct testing of the product, but based on information that it had available to it concluded in a letter by its acting chief counsel interpreting the requirements of FMVSS No. 121 that the plaintiff's product would not comply. NHTSA posted the letter on its website. The plaintiff promptly filed its complaint in this Court seeking an injunction requiring the removal of the letter from the agency's website and reversal of the agency's "finding" that the plaintiff's product failed to comply with FMVSS No. 121. This Court took under advisement the plaintiff's previous motion for a temporary injunction, and the parties have filed cross motions for summary judgment. The Court held a hearing on the motions on February 22, 2002, and now finds that the interpretive letters issued by NHTSA's chief counsel did not constitute a "final agency action" as that term is used in the Administrative Procedures Act, 5 U.S.C. §§ 701, et seq., and therefore this Court is without jurisdiction to review the matter or otherwise provide the plaintiff the relief it seeks. The Court will therefore grant the defendant's motion for summary judgment and deny the plaintiff's motion for summary judgment. I. The National Highway Traffic Safety Administration has been delegated the authority by Congress to enact motor vehicle safety standards pursuant to the National Traffic and Motor Vehicle Safety Act of 1966 (the Act), 49 U.S.C. § 30101. As a result, NHTSA established the Federal *707 Motor Vehicle Safety Standards. In March 1995, NHTSA proposed amendments to FMVSS 121 to require that all "heavy vehicles" must be equipped with an "antilock brake system" as defined in FMVSS 121, Subsection 4. Despite concerns by certain groups that only electronic braking systems would meet the definition in Subsection 4, the amendments became final. The plaintiff, ABS Inc., spent ten years developing a pneumatic anti-lock brake system for installation on trucks and trailers. On January 7, 1992, ABS Inc. was awarded a patent for the MSQR-5000™, which it describes as a "non-computerized anti-lock braking system which is a combination differential pressure regulator/quick release valve that is installed at each braking axle into the service air lines centered between the brake chambers." Pl.'s Brief in Supp. of Mot. for Prelim. Inj. at 7. The MSQR-5000™ has been sold on the retrofit after-market for trucks and trailers. Recently, ABS Inc. has attempted to sell the MSQR-5000™ to original truck and trailer manufacturers. In early 2001, ABS Inc. met with MAC Trailer Manufacturing, Inc. (MAC) about possible installation of the MSQR-5000™ on its newly-manufactured trailers. MAC orally inquired of NHTSA whether the MSQR-5000™ satisfied the definition of an "antilock brake system" under the FMVSS No. 121. NHTSA orally advised MAC that the device did not satisfy the definition as set forth in the standard. On February 13, 2001, William Washington, president of ABS Inc., and consultants hired by ABS Inc. met in Washington D.C. with employees from NHTSA to explain the operation and characteristics of the MSQR-5000™. At that meeting, NHTSA employees requested data supporting the principles upon which the MSQR-5000™ operates and test results from an experienced and reputable testing contractor performed on a vehicle equipped with the MSQR-5000™. The record does not disclose whether any additional data were submitted. Sometime after the February 13 meeting, Congressman Dave Camp (representing his constituent Washington) made inquiries of L. Robert Shelton, the executive director of NHTSA. Shelton responded by letter on March 21, stating that "[b]ased on a review of the promotional materials describing the devise and principles involved in its operation, it is NHTSA's view that the MSQR-5000 would not allow a vehicle to meet Standard No. 121." Compl., Ex. 3. ABS retained counsel and on May 24, 2001 scheduled another meeting with NHTSA for June 12, 2001. ABS Inc. stated that the purpose for the meeting was to (1) demonstrate that the MSQR-5000™ complied with FMVSS No. 121 and (2) discuss tests to satisfy NHTSA that the MSQR-5000™ complies with FMVSS No. 121. Eight days before the meeting, John Womack, acting chief counsel for NHTSA, sent a letter (the June 4 Letter) to MAC in response to its request for an interpretation of whether a "trailer equipped with the MSQR-5000 `system' installed as means of meeting ABS requirements would meet the requirements of FMVSS No. 121." Admin. R 0080. In the June 4 Letter, Womack noted that although "[i]t is not uncommon for a vehicle manufacturer to request information from an equipment manufacturer," "it is the responsibility of the manufacturer to ensure that its vehicles or equipment comply with applicable safety standards." Id. Womack also noted that recall and remedy orders of the National Traffic and Motor Vehicle Safety Act fall to the vehicle manufacturer, not the equipment manufacturer. *708 Based on the attachments provided by MAC and "other data obtained from ABS, Inc.," Womack stated that "it is NHTSA's view that the installation of the MSQR-5000 alone would not allow a vehicle to meet FMVSS No. 121's ABS requirement." Id. at 0081. This conclusion was reached for two reasons: (1) "the MSQR-5000 does not seem to have any means of automatically controlling wheel slip during braking by sensing, analyzing, and modulating the rate of angular rotation of a wheel or wheels" and (2) "the MSQR-5000 also appears to lack any provision for illuminating a warning light providing notification of an ABS malfunction." Id. at 0082. The June 4 Letter was published on the NHTSA's website.[1] At the June 12, 2001 meeting, NHTSA representatives recommended that ABS Inc. perform a split coefficient test. The test was conducted on July 6, 2001; NHTSA representatives were invited at attend but were not present. On July 18, 2001, ABS Inc. sent a letter to the NHTSA with the results of the split coefficient test. ABS Inc. asked NHTSA to publish a letter by counsel for ABS Inc. on its website so "both viewpoints could be expressed." Compl., ¶ 68. The letter was never posted. ABS Inc. filed the complaint in this case on August 29, 2001. At the same time, it filed a motion for temporary restraining order and preliminary injunction. This Court denied the motion for temporary restraining order on August 30, 2001 and scheduled the motion for preliminary injunction for hearing on September 20, 2001. At the hearing, the Court took the motion for preliminary injunction under advisement and directed the defendant to complete its activity concerning the plaintiff's pending agency request. The Court gave the following directions to the parties: 1) The defendant must notify the plaintiff on or before October 4, 2001 if any additional testing is necessary or prudent for defendant's continuing review of the issues discussed and decided in its June 4, 2001 opinion letter. 2) Fourteen days thereafter, plaintiff shall advise the defendant of its intention to submit materials or that it has no intention to submit additional materials. If plaintiff intends to submit additional materials, it shall advise the defendants of the estimated time necessary to prepare and submit those materials. 3) Defendant shall complete its review within thirty days after receiving the additional materials from the plaintiff and place its findings in letter form to the plaintiff. Order Setting Timeline For Resolution of Agency Request, 1-2. On December 10, 2001, the NHTSA issued another interpretation letter (the December 10 Letter) which superceded the June 4 Letter. The December 10 Letter, which repeated the conclusion that the plaintiff's product would not by itself allow a vehicle on which it was installed to comply with FMVSS 121, was issued pursuant to ABS Inc.'s request for further consideration and this Court's order. II. The plaintiff filed a complaint which contains six "causes of action" and seeks to overturn the agency's determination concerning the adequacy of its product under FMVSS 121 together with an injunction which removes the opinion letters from the agency's website. These "causes *709 of action" are labeled (1) violation of the Administrative Procedures Act, (2) abuse of discretion, (3) unlawful rulemaking under the Administrative Procedures Act, (4) violation of due process, (5) declaratory judgment, and (6) preliminary and permanent injunction. The gravamen of the plaintiff's complaint is that NHTSA lacks the authority to provide interpretive responses to inquiries by citizens on the question of whether a particular product actually complies with a safety standard. Rather, if NHTSA intends to measure a product's compliance against a FMVSS, it must comply with all the procedural requirements of 49 U.S.C. § 30118, which affords the manufacturer and other interested persons an opportunity to present information and argument on the product's compliance, after which the manufacturer could seek judicial review under the Administrative Procedures Act. Using the vehicle of an interpretive letter, plaintiff contends, visits devastating economic effects on the manufacturer by poisoning the product for potential customers while depriving the manufacturer of the procedural safeguards contained in § 30118, unlawfully avoiding judicial review, and violating the manufacturer's due process rights. The defendant argues that the Secretary has an obligation under the Small Business Regulatory Enforcement Fairness Act (SBREFA), Pub.L. 104-121, Title II, § 201 to 224, Mar. 29, 1996, 110 Stat. 857-862, to respond to inquiries by small businesses such as MAC Trailer concerning the interpretation of and compliance with statutes and regulations, and that muzzling the agency would result in allowing potentially unsafe products into the stream of commerce while exposing manufacturers to costly recalls. Further, the Secretary contends that 49 U.S.C. § 30118 does not apply here because the MSQR-5000TM, intended for installation on new trailers, is neither a "motor vehicle" nor "replacement equipment," to which § 30118 is limited. Further, the interpretive letters do not constitute "final agency action" necessary to confer review jurisdiction on this Court under the Administrative Procedures Act. Finally, the Secretary argues that its actions did not directly deprive the plaintiff of an existing property interest and therefore the Due Process Clause is not implicated. A. As an initial matter, the Court observes that the case is before it on the parties' cross-motions for summary judgment. The Court of Appeals for the Sixth Circuit has suggested, without deciding, that the use of summary judgment procedures is inappropriate for judicial review of an administrative action under the Administrative Procedures Act. See Alexander v. Merit Sys. Prot. Bd., 165 F.3d 474, 480 (6th Cir.1999). The Tenth Circuit has held that a motion for summary judgment is an inappropriate procedural device to review administrative decisions because it invites the district court to rely on evidence outside the administrative record. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir.1994). In that case, the Court stated that the district court is not exclusively a trial court but sometimes acts as an appellate court. It reasoned that since motions for summary judgment are "conceptually incompatible with the very nature and purpose of an appeal," the district court should be governed by the Federal Rules of Appellate Procedure. Id. at 1580. In this case, the defendants argue that this Court should confine its inquiry to the administrative record. Although supplementation of the administrative record is appropriate in some cases, see Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir.1997), the Court finds that it is neither necessary nor appropriate to consider affidavits outside *710 of the administrative record or any information that was not available to the administrative decision makers in this case, except, perhaps, with respect to the plaintiff's due process claim. Review of actions by an administrative agency is generally conducted under the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. According to section 706 of the Act, a federal court must "hold unlawful and set aside agency action, findings and conclusions found to be ... arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. 706(2)(A).[2]See GTE Midwest, Inc. v. Fed. Communications Comm'n., 233 F.3d 341, 344 (6th Cir.2000). "The scope of review under the `arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Even though the analysis is deferential to the agency, the agency nonetheless must articulate a "rational connection between the facts found and the choice made." Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). An abuse of discretion is found when, based on the evidence, the explanation offered for a particular outcome is unreasonable. Perry v. United Food & Commercial Workers Dist. Unions 405 & 442, 64 F.3d 238, 242 (6th Cir.1995). An agency ruling that is contrary to law likewise must be set aside. A court may invalidate an agency adjudication or rule making if it is "inconsistent with the statutory mandate or frustrate[s] the policy that Congress sought to implement." Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1350 (6th Cir.1994). "An agency which violates its regulations is acting contrary to law...." Chrysler Corp., v. Schlesinger, 412 F.Supp. 171, 177 (D.Del.1976), vacated on other grounds sub nom Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979); S & S Logging Co. v. Barker, 366 F.2d 617, 624 n. 6 (9th Cir. 1966); Delaware v. Bender, 370 F.Supp. 1193, 1203 (D.Del.1974). Thus, based on the administrative record this Court must first determine whether the interpretive letters constitute rule making, a final agency adjudication or an ultra vires act of the agency that is beyond its authorized scope or otherwise contrary to law. *711 B. Administrative agencies conduct their business by means of making adjudications, rule making, and issuing interpretive decisions. Only final adjudications and rule making are subject to judicial review. The Administrative Procedures Act provides that [a]gency action made reviewable by statute and final agency action for which there is no adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority. 5 U.S.C. § 704 (emphasis added). "Agency action" includes the "whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). However, not every "action" taken by an agency constitutes "final agency action" under the statute and entitles a party to judicial review. See Pharm. Mfrs. Ass'n v. Kennedy, 471 F.Supp. 1224, 1226 (D.Md. 1979). A "rule" is defined as the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription of the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing. 5 U.S.C. § 551(4). As one court noted, "[t]he APA's broad definition of the term `rule' includes `virtually every statement an agency may make.'" Nat'l Treasury Employees Union v. Reagan, 685 F.Supp. 1346, 1356 (E.D.La.1988). Although this may be true, courts are not willing to allow judicial review of all agency statements. Agency adjudications—that is, the "agency process for the formulation of an order," 5 U.S.C. § 551(7)—may result from formal or informal processes. Formal adjudications follow rules that establish a trial-type setting, see 5 U.S.C. §§ 554(b), (c), 556 and 557, and occur only when "required by statute to be determined on the record after an opportunity for an agency hearing." 5 U.S.C. § 554(a). See Camp v. Pitts, 411 U.S. 138, 140-41 & n. 3, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Informal adjudications are decisions which result from off-record or informal procedures conducted in compliance with the "minimal requirements" of 5 U.S.C. § 555(b). See American Airlines v. Dept. of Trans., 202 F.3d 788, 797 (5th Cir.2000). Whether formal or informal, however, judicial review may occur only when an adjudication is "final." "As a general matter, two conditions must be satisfied for agency action to be `final': First, the action must mark the `consummation' of the agency's decision-making process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which `rights or obligations have been determined,' or from which `legal consequences will flow.'" Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citations omitted). The defendant *712 argues that the letters in this case satisfy neither requirement. The Court agrees. The June 4 and December 10 Letters do not represent the last step in the process leading to the formulation of an order from NHTSA. Rather, the letters contain the opinion of NHTSA's acting chief counsel— a "subordinate official," see Franklin v. Massachusetts, 505 U.S. 788, 796-98, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992)—that the plaintiff's product "alone" will not permit a vehicle to comply with FMVSS 121. The letter was not issued pursuant to 49 U.S.C. § 30118, the statute dealing with defective and noncomplying vehicles and replacement equipment which authorizes action by the Secretary of Transportation. The Chief Counsel's opinion is not binding on the Secretary, but represents the position the Secretary is likely to take if and when proceedings are initiated relating to the product of a vehicle in which it is installed. More importantly, the Letters do not determine "rights or obligations" or cause "legal consequences" to "flow." The Letters are advisory in nature and have no legal effect. The plaintiff makes the valid, practical point that economic consequences "flow" from the opinion Letters and therefore it should have the right to challenge in court the validity of the opinions. Perhaps the plaintiff should have that right, but at present it does not. MAC Trailer chose to abandon its purchase of the plaintiff's product, presumable influenced by the warning from the defendant that compliance with a FMVSS would not result. Nevertheless, the decision not to purchase the MSQR-5000™ was not mandated by agency action and was the exercise of the free judgment of MAC Trailer. Reliance on a letter warning that sanctions may result from the failure to comply with federal regulations does not automatically convert the letter into "final agency action" under the Administrative Procedures Act. This point is illustrated by Air California v. United States Department of Transportation, 654 F.2d 616, 621 (9th Cir.1981). In that case, the Orange County Board of Supervisors adopted a policy to freeze the level of airport operations at the Orange County Airport to prevent increased noise levels. This policy had the effect of excluding new carriers and benefitting Air California, an existing carrier. The Board had subjected the airport to federal regulation by entering into agreements with the FAA to gain federal airport funds. A hearing was held to investigate allegations made by carriers who unsuccessfully applied for authorization to use the airport that the airport policy violated federal law. After the hearing, the FAA Chief Counsel sent a letter to the Board warning that failure to comply with federal regulations would result in the FAA pursuing sanctions. The letter stated that no formal action would be taken for thirty days. Because of the letter, the Board met and adopted an interim plan to reallocate flights, which resulted in reducing the number of flights authorized for Air California. No formal action by FAA was taken. Air California sought judicial review of the letter under the Administrative Procedures Act, contending it would "suffer substantial economic loss if the Board submitted to the FAA's demands by reallocating flights from Air California to new carriers." Id. at 619. The Court held that the letter was not final agency action because it was "informal [in] nature" and "indirect [in its] effect upon the complaining party." Id. at 620. The court stated that the letter was neither a "definite statement of the agency's position nor a document with the status of law" because it "did not specify the exact form that compliance would take, but rather *713 commented, briefly and tentatively, upon alternatives suggested in the investigative report and offered aid in the Board's attempt to comply." Id. The Court also noted that the "effect of the FAA's actions on Air California was not direct and immediate." It stated that "[w]hile the desire to avoid litigation and the danger of losing federal funding no doubt exerted strong pressure on the Board, it did not relieve the Board of responsibility for its decision." Id. at 621. In sum, a statement by an agency is not an adjudication unless it "announces a rule of law, imposes obligations, determines rights or liabilities, or fixes legal relationships. ..." Industrial Safety Equip. Ass'n, Inc. v. Envtl. Prot. Agency, 656 F.Supp. 852, 855 (D.D.C.1987), aff'd, 837 F.2d 1115 (D.C.Cir.1988). The Letters do none of these. The plaintiff argues that the interpretation letters have affected sales for the MSQR-5000™. Although an agency process without binding effect may have "significant practical effects," it is not "final agency action." Int'l Tel. & Tel. Corp. v. Local 134, 419 U.S. 428, 444-48, 95 S.Ct. 600, 42 L.Ed.2d 558 (1975). Nor do the letters constitute rule making within the meaning of 5 U.S.C. § 551(4) (defining "rule"). They do not prescribe or implement law or policy, but rather describe the operation of an existing rule. The "mere fact that an agency action has `substantial impact' [does not] `transform[ ] it into a legislative rule.'" Industrial Safety, 837 F.2d at 1121. Further, if the plaintiff desires to challenge in court a rule relating to motor vehicle safety standards, it must seek review "in the [appropriate] court of appeals," 49 U.S.C. § 30161(a), which has exclusive jurisdiction over such challenges. See Greater Detroit Res. Recovery Auth. v. Environmental Prot. Agency, 916 F.2d 317, 321 (6th Cir. 1990). The Court concludes that, despite the obvious economic impact which NHTSA's interpretive Letters visit on the plaintiff, these letters do not constitute final agency action or rulemaking subject to judicial review under the Administrative Procedures Act. C. The plaintiff argues that the agency's sole authority to issue the interpretive Letters is derived from 49 U.S.C. § 30118, which prescribes the procedure for determining whether a product is defective or fails to comply with a safety standard. The parties agree that NHTSA did not comply with § 30118 in issuing the Letters. That section requires an initial determination of noncompliance, notice, an opportunity for the manufacturer "to present information, views and arguments" in favor of the product, and a final decision before remedial action can be ordered by the Secretary. 49 U.S.C. § 30118(a) & (b). The plaintiff argues further that the statute requires NHTSA to conduct independent testing before making an initial determination of noncompliance or defect, although the statute specifically provides other means of information gathering including "inspection, investigation, or research. ..." Because the statute by its terms applies only to "the manufacturer of a motor vehicle or replacement equipment," the Secretary contends it is not bound by its procedures because the MSQR-5000™ is neither, as those terms are defined by 49 U.S.C. §§ 30102(a)(6) & (b)(D). The Court need not address the applicability of the procedural requirements of § 30118(a) because it has already determined that no final action was taken, and the Letters at most could constitute an "initial decision," which is not immediately reviewable. 5 U.S.C. § 704 ("A preliminary, procedural, or intermediate agency action or ruling not directly reviewable *714 is subject to review on the review of the final agency action."). Assuming that 49 U.S.C. § 30118 does not apply to this case, then the Court must determine what authority the NHTSA has to issue interpretation letters. The Supreme Court has held that "an agency's power is no greater than that delegated to it by Congress." Lyng v. Payne, 476 U.S. 926, 937, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986). The plaintiff, accordingly, contends that absent statutory authorization to issue the Letters, NHTSA committed an ultra vires act contrary to law. However, an administrative agency has the implied authority to interpret its own rules. "Because applying an agency's regulation to complex or changing circumstances calls upon the agency's unique expertise and policymaking prerogatives, we presume that the power authoritatively to interpret its own regulations is a component of the agency's delegated lawmaking powers." Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 151, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). Therefore, the NHTSA has the implied authority to issue interpretation letters on the regulations which it administers. The Court of Appeals for the District of Columbia noted that "[a]dvisory opinions should, to the greatest extent possible, be available to the public as a matter of routine; it would be unfortunate if the prospect of judicial review were to make an agency reluctant to give them." Nat'l Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 699-700 (D.C.Cir.1971). Moreover, NHTSA has a duty to give advice on the application of its rules, including the safety standards it has developed, by responding to inquiries posed by small businesses, as mandated by the Small Business Regulatory Enforcement Fairness Act (SBREFA), Pub.L. 104-121, Title II, § 201 to 224, Mar. 29, 1996, 110 Stat. 857-862. SBREFA provides for informal small entity guidance, stating that [w]henever appropriate in the interest of administering statutes and regulations within the jurisdiction of an agency which regulates small entities, it shall be the practice of the agency to answer inquiries by small entities concerning information on, and advice about, compliance with such statutes and regulations, interpreting and applying the law to specific sets of facts supplied by the small entity. In any civil or administrative action against a small entity, guidance given by an agency applying the law to facts provided by the small entity may be considered as evidence of the reasonableness or appropriateness of any proposed fines, penalties or damages sought against such small entity. SBREFA § 213(a). NHTSA's Acting Chief Counsel found that MAC Trailer was a "small entity" in the December 10 Letter, and the plaintiff has not challenged that finding. The parties further agree that NHTSA's scrutiny of the MSQR-5000™ was initiated by MAC Trailer's initial inquiry as to whether that product's installation as original equipment on its trailers would satisfy the requirements of FMVSS 121. The Court finds that there is ample authority permitting NHTSA's response to MAC Trailer's inquiry and issuance of the letters was not beyond the authority of the agency. D. The plaintiff claims that the NHTSA violated its due process rights because the interpretation letters may result in lost sales of the MSQR-5000™. However, "the due process [clause] does not apply to the indirect adverse effects of governmental action." O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 789, 100 *715 S.Ct. 2467, 65 L.Ed.2d 506 (1980). Because plaintiff's lost sales would be "no more than an indirect injury resulting from government action," there is no deprivation under the Due Process Clause. Nuclear Transp. & Storage, Inc. v. United States, 890 F.2d 1348, 1354 (6th Cir.1989). E. Finally, the plaintiff's claim for injunctive relief is nothing more than a request for an equitable remedy that is dependent on the underlying merits of its other claims; it does not state an independent cause of action. Cf. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (permanent injunctive relief requires actual success on the merits). Because the Court finds that the plaintiff has not prevailed on its other counts, the request for an injunction will likewise be denied. III. The Court concludes that the June 4 and December 10 Letters are not reviewable as final decisions under the Administrative Procedures Act. Further, the plaintiff has not established a violation of the Due Process Clause, or entitlement to injunctive relief. Accordingly, it is ORDERED that the plaintiff's motion for a preliminary injunction [dkt # 2], previously taken under advisement, is DENIED. It is further ORDERED that the plaintiff's motion for summary judgment [dkt # 21] is DENIED. It is further ORDERED that the defendant's motion for summary judgment [dkt # 24] is granted, and the plaintiff's complaint is DISMISSED with prejudice. NOTES [1] [2] Section 706 of the Administration Procedures Act, 5 U.S.C. § 706, states: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall — (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

831 F.2d 300 Powell (Joseph)v.Lockhart (A.L.) NO. 87-1848 United States Court of Appeals,Eighth Circuit. JUL 29, 1987 1 Appeal From: E.D.Ark. 2 AFFIRMED.

T.C. Memo. 2016-102 UNITED STATES TAX COURT ALLIED TRANSPORTATION, INC., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 24348-14. Filed May 25, 2016. Scott A. Hovey, for respondent. MEMORANDUM OPINION LAUBER, Judge: Currently before the Court is a motion by the Internal Revenue Service (IRS or respondent) to dismiss this case for lack of jurisdiction on the ground that petitioner, its corporate charter having been revoked, lacked legal capacity to prosecute the case. We will grant the motion.  -2- [*2] Background The following facts are derived from respondent’s motion, the exhibits at- tached thereto, and publicly available records of the State of Maryland. Allied Transportation, Inc. (Allied) had a corporate address in Maryland at the time the petition was filed. Allied was incorporated in Maryland on August 23, 2001. Sukhjeet Singh Gill was listed as its incorporator. Allied was assigned a taxpayer identification number by the Maryland Department of Assessments and Taxation, Corporate Charter Division (department). On October 8, 2004, the department revoked and annulled Allied’s corpor- ate charter pursuant to section 3-503 of the Corporations and Associations article of the Maryland Code for failing to file a required tax return. The department’s official records indicate “the entity was forfeited for failure to file [a] property [tax] return for 2003.” On February 12, 2007, Mr. Gill filed articles of revival on behalf of Allied, but the articles were declared “void for non-payment” on March 6, 2007, leaving the status of Allied as forfeited. On August 14, 2014, the IRS mailed to Allied a notice of deficiency de- termining for the taxable year 2010 a Federal income tax deficiency of $79,812 and additions to tax exceeding $18,000 under sections 6651(a)(1) and (2) and  -3- [*3] 6655.1 On October 14, 2014, Allied filed with this Court a petition for redetermination signed by Mr. Gill. On October 14, 2015, the IRS filed a motion to dismiss for lack of juris- diction, contending that the petition was not filed by a party with capacity to sue under Rule 60(c). Counsel for respondent represented in his motion that he had discussed the motion with Mr. Gill, who stated that he no longer had any involve- ment with Allied and that he did not intend to prosecute this case further. By order dated October 20, 2015, we directed Allied to respond to the motion to dis- miss on or before November 23, 2015. Allied has not responded to that order or to the motion to dismiss. Discussion Rule 60(c) provides that the capacity of a corporation to engage in litigation in this Court “shall be determined by the law under which it was organized.” See NT, Inc. v. Commissioner, 126 T.C. 191 (2006); David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270-271 (2000), aff’d, 22 F. App’x 837 (9th Cir. 2001). Here, the relevant law is that of Maryland. Allied bears the burden of af- 1 Unless otherwise indicated, all statutory references are to the Internal Revenue Code in effect for the tax year at issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. We round all monetary amounts to the nearest dollar.  -4- [*4] firmatively establishing all facts giving rise to the Court’s jurisdiction. See David Dung Le, M.D., Inc., 114 T.C. at 270; Harold Patz Trust v. Commissioner, 69 T.C. 497, 503 (1977); Asbury v. Commissioner, T.C. Memo. 2007-53, 93 T.C.M. (CCH) 974, 975. In Maryland, when a corporation forfeits its charter, “the powers conferred by law on the corporation[] are inoperative, null, and void as of the date of the proclamation [of forfeiture].” Md. Code Ann., Corps. & Ass’ns sec. 3-503(d) (LexisNexis 2014). Thus, “all powers * * * , including the power to sue or be sued,” are extinguished as of and during the forfeiture period. Dual Inc. v. Lock- heed Martin Corp., 857 A.2d 1095, 1101 (Md. 2004). Nevertheless, Maryland law does “make[] it clear that a corporation continues to exist, at least for some limited purposes, beyond forfeiture or dissolution of its charter.” Thomas v. Rowhouses, Inc., 47 A.3d 625, 630 (Md. Ct. Spec. App. 2012) (discussing Md. Code Ann., Corps. & Ass’ns sec. 3-515 (LexisNexis 2014)). Under Maryland law, a director of a forfeited corporation may bring suit in its name if there is a “rational relationship” between the suit and a legitimate “winding up” activity of the corporation. Md. Code Ann., Corps. & Ass’ns sec. 3-515(c); Dual Inc., 857 A.2d at 1102. But this power pertains only to the com- pletion of corporate business that existed at the time of the forfeiture. Patten v.  -5- [*5] Bd. of Liquor License Comm’rs, 667 A.2d 940, 945 (Md. Ct. Spec. App. 1995). The greater the period between forfeiture and commencement of the lawsuit, the less likely it is that the litigation is part of any “winding up” activity. Ibid. Allied filed the petition in this case more than ten years after its corporate charter was revoked. For a corporation of Allied’s modest scale, we find that ten years would be an excessive period within which to conduct “winding up” acti- vity.2 Moreover, the petition in this case concerns an alleged tax liability for 2010. The notice of deficiency determined, on the basis of a bank deposits analysis, that Allied had unreported gross receipts of $247,595 for that year. Given that Allied had forfeited its charter six years previously, it seems unlikely that it (as opposed to a related party) could have earned those gross receipts. In any event, litigation concerning income that arose in 2010 would not seem to have a “rational relation- ship” to the winding up of corporate business that existed in 2004. See Dual Inc., 857 A.2d at 1102; Patten, 667 A.2d at 945. Finally, Mr. Gill’s reluctance to prose- 2 Some States have a fixed time limit for winding up, but others do not. Compare Tex. Bus. Orgs. Code Ann. sec. 11.356 (West 2012) (providing a three- year period for purposes of prosecuting or defending in the terminated entity’s name) with Mich. Comp. Laws Serv. sec. 450.1833 (LexisNexis 2014) (providing that dissolved corporations shall continue in existence for the purpose of winding up). Reviewing courts generally allow a reasonable period. See, e.g., Flint Cold Storage v. Dep’t of Treasury, 776 N.W.2d 387, 395-396 (Mich. Ct. App. 2009).  -6- [*6] cute the case establishes that this litigation cannot properly be regarded as related to any “winding up” of Allied’s business affairs. To reflect the foregoing, An order will be entered granting respondent’s motion to dismiss for lack of jurisdiction. 

IN THE SUPREME COURT OF THE STATE OF DELAWARE DONALD DUROSS, § § No. 117, 2017 Defendant Below, § Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1511008759 (N) § Plaintiff Below, § Appellee. § Submitted: July 21, 2017 Decided: August 1, 2017 Before VAUGHN, SEITZ, and TRAYNOR, Justices. ORDER This 1st day of August 2017, upon consideration of the appellant’s Supreme Court Rule 26(c) brief, the State’s response, and the record below, it appears to the Court that: (1) On November 7, 2016, the appellant, Donald Duross, pled guilty to Driving Under the Influence of Alcohol and Vehicular Assault in the Second Degree. Duross was sentenced as follows: (i) for Driving Under the Influence of Alcohol, eight years of Level V incarceration, suspended after four years for eighteen months of Level III probation; and (ii) for Vehicular Assault in the Second Degree, one year of Level V incarceration, suspended for one year of Level III probation. This is Duross’ direct appeal.  (2) On appeal, Duross’ counsel (“Counsel”) filed a brief and a motion to withdraw under Supreme Court Rule 26(c). Counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. Counsel informed Duross of the provisions of Rule 26(c) and provided Duross with a copy of the motion to withdraw and the accompanying brief. (3) Counsel also informed Duross of his right to identify any points he wished this Court to consider on appeal. Duross has not raised any issues for this Court’s consideration. The State has responded to the Rule 26(c) brief and has moved to affirm the Superior Court’s judgment. (4) When reviewing a motion to withdraw and an accompanying brief under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (ii) conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.1 (5) This Court has reviewed the record carefully and has concluded that Duross appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Counsel has made a conscientious effort to examine the 1 Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996). 2 record and the law and has properly determined that Duross could not raise a meritorious claim in this appeal. NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED. The motion to withdraw is moot. BY THE COURT: /s/ Collins J. Seitz, Jr. Justice 3 

May 18, 2015 No oral argument required No. 13-08168-3 03-14-00386-CR In The COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS STATE OF TEXAS, Plaintiff-Appellee v. GAYLEEN S. TODD Defendant- Appellant. On Direct Appeal from The COUNTY COURT AT LAW OF (public) RECORD ^RECEIVED\ IN THE CITY OF GEORGETOWN APR 282015 Trial Case No. l VJiFFRfojSy TODD'S BRIEF Gayleen S. Todd 2116 Juniper Trail Round Rock, Texas 78664 1 Only cases have numbers. There being no charging instrument(s) filed, much less served, there is no case here by any number. A reference number used by the county court is 03-14-00386.  Identity of Parties and Councel Appellant Appellee GAYLEEN S. TODD STATE OF TEXAS 2116 Juniper Trail Office of the Attorney Round Rock, Texas 78664 Williamson Co. Justice Center In the City of Georgetown Assertion of Rights Gayleen Todd (Todd1) asserts all her unalienable rights, privileges, and immunities at Natural Law, Common Law, and Maritime Law, and all her commercial rights relevant to " this state". Objection to Non-judicial Decision Making Todd objects to and does not consent to any assignment or any referral of this case, in any part, to any decision-maker other than a duly elected or properly appointed judicial officer exercising full authority of an appellate court judge/ justice and who has an active and current oath of office on file. CF. Gonzales f If the parties consent") (Construing 28 U.S.C. 636(b). Objection to use of Private Law Todd objects to the use of unpublished cases. A cite to "WL" and "Lexis" is a reference to materials not publicly accessible. For such references to even begin to be meaningful, a full copy of the opinion for each "WL" or "Lexis" reference must be attached. Table of contents TODD'S BRIEF i Identity of Parties and Councel ii Assertion of rights ii Appellant's Brief (Todd) ii No Notice. No Commercial nexus  Objection to Non-judicial Decision Making ii Objection to use of Private Law ii Index of Authorities v Statement of Case x Nature of the Case x Course of Proceedings x Present Trial Court Disposition x No Oral Argument Requested xi Issues Presented xi Statement of Facts 1 Record references 1 Procedure 1 Merits 3 Summary of the Argument 4 No subject matter jurisdiction 4 No personal jurisdiction 4 No evidence against Todd 4 "judgment" is void 5 Argument 5 Appellant's Brief (Todd) iii No Notice. No Commercial nexus  Point 1: What was Todd's plea? -clerical error 5 Point 2: Procedure to correct record is what? 5 Point 3: Did the trial court compel Todd's consent? 5 Compelled consent generally 5 Compelled consent during trial 6 The court totally relieved STATE of it's burden of proof 8 Point4: Did the trial court violate Todd's right to a fair trial? (Parti) 8 Denial of right to a fair trial 8 The trial totally disallowed Todd's defense 9 Point 5: Did the trial court violate Todd's right to a fair trial? (Part 2) 9 Denial of access 9 Point 6: Did the trial court violate Todd's right to travel? 10 The right to travel, generally 10 There's no practical or legal difference between in-TER- and in-TRA-state ...10 travel in "this state" 11 Point 7: Did the trial court violate Todd's right (not) to contract? 11 Point 8: Did the trial court violate Todd's right (not) to engage in commerce?12 Point 9: Does the trial court have personal jurisdiction? 13 Appellant's Brief (Todd) iv No Notice. No Commercial nexus  Overview: The systemic problems regarding notice 13 Notice requires both filing and serving the paperwork 13 Notice used to require filing and serving two documents 14 Without both of those documents, there was no notice 14 The "The lack of attorney signature" problem 14 No pleading filed? — no Notice 14 No pleading served? — no Notice 15 In sum, no pleading? — no Notice 15 The "lack of witness statement" problem 15 In sum, no complaint and no pleading? — no Notice 15 Point 10: How is it fair that the trial court had two attorneys prosecuting? 15 Point 11: What law did the trial court act on by refusing to answer the jurors' question during their deliberations? 16 Request for Releif 17 Certificate of Service Appendix Contents 20 Index of Authorities Cases Alexander v. State, 240 S.W. 3D 72 (Tex. App. - Austin 2007 no pet.) Anderson v. Liberty Lobby Inc., All U.S. 242 (1986) Appellant's Brief (Todd) v No Notice. No Commercial nexus Aptheker v. Secretary of State, 378 U.S. 500 (1964) Arizona v. Johnson, 129 S. Ct. 781 (2009) Arnold v. United States, 544 U.S. 1058 (May 31, 2005) Att Gen. of NY v. Soto-Lopez, Alb U.S. 898 (1986) Bailey v. State, 15 S.W. 3d 622 (Tex. App. - Dallas 2000, no pet.) Ballard v. Comm'r; 544 U.S. 40 (2005) Bates v. State Bar of Arizona; 433 U.S. 350 (1977) Boddie v. Connecticut; 401 U.S. 371 (1971) Burger King Corp. v. Rudzewicz; All U.S. 462 (1985) Christopher v. Harbury; 536 U.S. 403 (2002) Computize, Inc. v. NHS Comm. Group, Inc.; 992 S.W. 2d 608 (Tex. App. - Texarkana (1999, no pet.) Davis v. State; 203 S.W. 3d 845 (Tex. Crim. App. 2006) Del Dev. Corp. v. Best Indus. Unif. Supply Co., Inc.,; 1A3 S.W. 2D 302 (Tex. App.-Houston [14th Dist.] 1987, (writ, denied) Devenpeck v. Alford 543 U.S. 146 125 S. Ct. 588 (2004) Dunn v. Blumstein, 405 U.S. 330 (1972) Edwards v. California 314 U.S. 160 (1941) Escobedo v. Illinois 378 U.S. 478 (1964) Ex Parte Smythe 116 Tex. Crim. 146, 28 S.W 2D 161 (Tex. Crim. App. 1930) Garcetti v. Ceballos 547 U.S. 410 (2006) Globe Leasing, Inc. v. Engine Supply and Mach Serv., A31 S.W. 2D 43 (Tex. Civ. App. -Houston [1st Dist] 1969 no wrti) Gonzalez v. United States 553 U.S. 242 (12 May 2008) Goodman v. Luken Steel co. 482 U.S. 656 (1987) Graham v. Lappin 255 F. 3d 906 (7th Cir. 2001) Griffin v. Breckenridge 403 U.S. 88 (1971) Griswold v. Connecticut 381 U.S. 479 (1965) Hamdi v. Rumsfeld 542 U.S. 507 (2004) Heiner v. Donnan 285 U.S. 312 (1932) Herring v. United States 129 S. Ct. 695 (2009) Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County 542 U.S. 177, 124 S. Ct. 2451 (2004) Holmes v. State 323 S.W. 3d 163 (Tex. Crim. App. 2009) Illinois v. Caballes 543 U.S. 405, 125 S. Ct. 834 (2005) In Re Winship 397 U.S. 133 (1955) Jones v. Helmes 452 U.S. 412 (1981) Jordan v. State 51 Tex. Crim. 531, 103 S.W. 633 (Tex. Crim. App. 1907) Appellant's Brief (Todd) vi No Notice. No Commercial nexus. Kent v. Dulles 357 U.S. 116 (1958) Kuntoplast of Am., Inc. v. Formosa Plastics Corp. USA, 937 S.W. 2d 455 (Tex. 1996) Lloyd v. Alexander 5 U.S. (1 Cranch) 365 (1803) Marsh USA Inc. v. Cook 354 S.W. 3d 764 (Tex. 2011) Miranda v. Arizona 384 U.S. 436 (1966) Moore v. Elektro-Mobil Technik GmbH, 874 S.W 2d 324 (tex. App. - El Paso 1994, writ denied) Mullaney v. Wilbur 421 U.S. 684 (1975) Murphy Bros. Inc. v. Michetti Pipe Stringing, Inc. 526 U.S. 344 (1999) Ohralik v. Ohio State Bar Assn. 436 U.S. 447 (1978) Plumbers' Union v. Borden 373 U.S. 690 (1963) Pollock v. Farmers' Loan and Trust Co. 157 U.S. 429 (1895) (Pollock I) Portier v. State 68 S.W 3D 657 (Tex. Crim. App. 2002) Rothgery v. Gillespie County, Texas 554 U.S. 191 (2008) Rowland v. California Men's Colony 506 U.S. 194 (1993) Safford Unified Sch. Dist. No.l v. Redding 129 S. Ct. 2633 (2009) Scott v. Harris 550 U.S. 372 (2007) Shapiro v. Thompson 394 U.S. 618, 89 S. Ct. 1322 (1969) Smith v. O'Grady 312 U.S. 329 (1941) Standard Oil Co. of New Jersey v. United States 221 U.S. 1 (1910) Storrie v. Cortes 90 Tex. 283, 38 S.W. 154 (1896) Terry v. Ohio 392 U.S. 1 (1968) Tex. Dept. of Parks and Wildlife v. Miranda 133 S.W. 3d 217 (Tex. 2004) United States v. Booker 543 U.S. 220 (2005) United States v. Brown 117 F. 3d 471 (11th Cir. 1997) United States v. Diebold 369 U.S. 654 (1962) United States v. Guest 383 U.S. 745 (1966) Valle v. State 109 S.W 3D 500 (Tex. Crim. App. 2003) Virginia v. Moore 553 U.S. 164, 128 S. Ct. 1598 (2008) Webb v. State 766 S.W. 2D 236 (Tex. Crim. App. 1989) Wiley v. State 1A S.W. 3D 399 (Tex. Crim. App. 2002) Zemel v. Rusk 381 U.S. 1 (1965) Zobel v. Williams 457 U.S. 55 (1982) Appellant's Brief (Todd) vii No Notice. No Commercial nexus. Statutes 28 U.S.C. 636(a), (c) 28 U.S.C. 636(b) Tex Gov't Code Ann. 30.00024(a) (Thomson/West Supp. 2010) Tex. Gov't Code Ann. 30.00027(b) (1) (Thomson/West 2012) Rules of Criminal Procedure Tex. Crim. Proc. Code Ann. art 2.04 (Thomson/West 2011) ("Art. 2.04") Art. 2.05 Art. 21.20 Art. 21.22 Art. 25.04 Art. 27.01 Art. 45.01 (repealed, eff. Sept. 1999) Art. 45.018(b) Art. 45.019 Rules of Civil Procedure Fed. R. Civ. P. 8(c) Fed. R. Civ. P. 8(c)(1) Tex. R. Civ. P. 94 Tex. R. Civ. P. 316 Tex. R. Civ. P. 329b(f) Rules of Appellate Procedure Tex. R. App. P. 38.6 Appellant's Brief (Todd) viii No Notice. No Commercial nexus. Treatises 1 Page, The Law of Wills 5.7, 5.11 (rev. 2003) Amy Morris Hess, George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees _ (Supp. 2011) ("Bogert") Bogert 42 (Supp. 2011) Bogert 44 (Supp. 2011) Professional Responsibility ABA Model Rules of Prof'1 Conduct R. 3.7 (2002) ("ABA Rule 3.7") Tex. Disciplinary Rs. Prof'1 Conduct 3.08, 5.05, reprinted in 3A Tex Gov't Code Ann. pp. 296-97, 327, (title 2 subtitle G. app. A (after 84) (Thomson / West 2011) (Tex. State Bar R. art X 9) Appellant's Brief (Todd) ix No Notice. No Commercial nexus.  Statement of the Case Nature of the Case "Civil" due to no Notice and no "actual grievance" Fail to maintain proof of financial responsibility Course of Proceedings Todd's Special Appearance and Motion to Dismiss was supposed to be heard before the trial court on the day of trial. Instead, each motion was overruled before it could even be said. Todd Formally Declined to Plea, due to the lack of Notice. Todd was continually denied the right to present case law and evidence that would have proved the STATE to have no standing, no jurisdiction, and no case against Todd. Present Trial Court Disposition Todd stands "convicted" of failure to maintain proof of financial responsibility. Fine is $220. Appellant's Brief (Todd) x  No Notice. No Commercial nexus No Oral Argument Requested Oral argument is not expected to aid in the resolution of these issues. Issues Presented Point 1: What was Todd's plea? - clerical error Point 2: Procedure after reformation is what? Point 3: Did the trial court compel Todd's consent? Point 4: Did the trial court violate Todd's right to a fair trial? (part 1) Point 5: Did the trial court violate Todd's right to a fair trial? (part 2) Point 6: Did the trial court violate Todd's right to travel? Point 7: Did the trial court violate Todd's right (not) to contract? Point 8: Did the trial court violate Todd's right (not) to engage in commerce? Point 9: Does the trial court have personal jurisdiction? Point 10: How is it fair that the trial court had two attorneys prosecuting? Point 11: What "law" did the trial court act on by refusing to answer the jurors' question during their deliberation? Appellant's Brief (Todd) xi No Notice. No Commercial nexus.  Statement of Facts Procedure Due to "no Notice" This is a non-case: hence civil. To talk procedural facts is to talk procedural rules so as to identify the relevant procedural facts. The "case" was opened not with a complaint but with a "citation". Todd appeared specially, Sp. App., objecting to the trial court's subject matter, jurisdiction, personal jurisdiction, and venue. There being no direct ruling, the Sp. App. was denied by operation of law. Formal Declination to Plea. STATE never gave Todd any Notice of any charge against her. Todd never pled: hence never waived Notice: Hence no response was ever due. See Art 45.018(b). Not only was no response due, but the trial court never had jurisdiction. Not even to set a trial. Even per STATE'S hideously tortured concept of "availability" of a "complaint", no "complaint" was even "available". Since a ruling of any type, responsive to the Sp. App. has got to constitute "any proceeding", cf Rothgery (arraignment is a proceeding), it follows, that as of that date June 2, 2014, STATE'S deadline for timely service came and went. Arraignment didn't happen until the date of trial, and even then, there was still Appellant's Brief (Todd) T No Notice. No Commercial nexus. No Notice to Todd of any charge against her in compliance with Art. 45.018(b). STATE never served any charging instrument on Todd. Period. Much less a day before "any [ie. the first] proceeding". If STATE actually believed it's Due- Process-defiant "availability" theory, why was an unfilestamped copy of the alleged "complaint" handed to Todd at all, even on the day of trial? STATE was silent when confronted by the fact that a ticket alone is not a charging instrument. That silence is proof enough what STATE is well aware of. By pretending the alleged complaint was available, STATE confessed not only "no Service per Art. 45.018(b)" but also no intent to Serve, which is attitudinally straight out of Art. 25.04, STATE is judicially confessing the total change in what constitutes Notice now that Art. 45.01 has been repealed. STATE loses either way: there was no Service of any (type of) charging instrument. Yet if we're still under Art, 45.018(b), then the instrument to be Served is merely a "complaint". But if we're now, (since 1999) UNDER Art. 25.04, Then STATE must Serve not only a "Complaint" but also an "Information". There is no Information to be found anywhere, including the Record and STATE most certainly didn't Serve any "Information" at any time. The trial court ruled that Todd not be allowed to object to the commercial terms identified in her Standing Evidentiary Objections. The sum and substance Appellant's Brief (Todd) 2 No Notice. No Commercial nexus of that ruling is that it effectively prohibited Todd from being able to defend herself in this matter. Specifically, that ruling prevented Todd from objecting to the key commercial terms in "transportation" cases: "transportation", "vehicle", "drive" (in all of its forms), "motor vehicle", and "operate" (in all of its forms). Since STATE had no (and for this type of case never has) evidence of "transportation", i.e., a bill of lading or a passenger manifest, the sole mechanism on which STATE depends is consent to the commercial terms. Merits CITY acted at all times as STATE'S agent. In such capacity, CITY issued Todd the fail to maintain financial responsibility ticket in dispute. The only people liable for fail to maintain financial responsibility are those engaged in transportation or those involved in an accident or some other form of harm (bodily or otherwise) to another person or property. It matters then that there was no harm of any kind and that Todd was never engaged in "transportation". Specifically she was never (1) removing people and/or property (2) from here to there (3) for profit or hire. (4) under any choice of law, including that of "this state". CITY/STATE provided no evidence on any of these elements of "transportation". Since STATE depends 100% not on any actual evidence of "transportation" Appellant's Brief 3 No Notice. No Commercial nexus but rather on the scam nature of commercial consent to the semantics of the commercial terms of art, it's instantly relevant that the trial court totally prohibited Todd from objecting at a critical time. In sum, on the merits, the trial court compelled Todd to consent to being in "transportation" Summary of the Argument No Subject Matter Jurisdiction STATE never had an "actual grievance" because Todd was never engaged in "transportation". Due to the absence of both "transportation" and Notice, this is a non-case; hence civil. No Personal Jurisdiction CITY/STATE never Served Todd with any charging instrument "at least a day before any proceeding" Art. 45.018(b). Moreover, given the appeal of Art. 45.01 (effective 1999), Todd very strongly doubts that "complaint only" cases are still lawful at all, and there certainly was no "information" Served. No Evidence Against Todd There is no evidence that Todd (A) removed anything or anyone, (B) from here to there, (C ) for profit or hire (D) under any choice of law including "this state". Appellant's Brief (Todd) 4 No Notice. No Commercial nexus. "Judgment" is Void The "judgment" is void. As STATE'S agent, CITY should be ordered to refund Todd's cost of impounding her car and strike the so-called ticket off her record. Argument Point 1: What was Todd's Plea? -clerical error Todd never entered a plea. How could she? She was never Served with anything to which a responsive plea was due. The court entered a plea of Not Guilty on Todd's behalf. Thus, Todd never waived Notice. If Todd's objection • to the court's charge wasn't carried forward into the document, Todd objects to the document. Point 2: Procedure to Correct Record is What? Cy Tex. Rs. Civ. P. 316 (clerical errors) 329b(f) (timing of correction of clerical errors). Since this court may actually have power to reform the county court's documents, Todd is not submitting a Motion for Abatement. Cf. Alexander, 240 S.W. 3D at 74 (county criminal [i.e. appellate] court may affirm, reverse, or reform the trial court's judgment) (citing Gov't Code 30.00024 (a)). Point 3: Did the Trial Court Compel Todd's Consent? Compelled consent generally Appellant's Brief (Todd) f No Notice. No Commercial nexus  Consent cannot be compelled, period. Rudzewicz (jurisdiction doesn't flow from fraud, undue influence, or overwhelming bargaining power); Fed. R. Civ. P. 8(c); Tex. R. Civ. P. 94; Ballard (local rules don't justify (criminal) Due Process violations); 636(a). (c) ("by consent only"): Gonzales ("If the parties consent") (construing 636(b)). Compelled consent is the exact antithesis of the very soul of "this state". The coercive environment vitiates the very "evidence" it purports to create. Ohralik (addressing coercion specifically engaged by the legal profession). Bates (addressing coercion specifically engaged by the legal profession) Escobedo (coerced confession is not evidence): Miranda (same): 1 page 5,7, 15.11 (coerced will is not evidence): Bogert 42 at 434, 44 at 452 and n.16 (coerced trust is not evidence): Pollock I, 157 U.S. At 553-54 (1st of opinion) (non consent by even 1 beneficiary prevents amendment to trust agreement: Arnold (vacated per Booker) ("evidence" (and never-before-heard-of-charges) not presented at trial and not agreed to at sentencing is (are) inadmissible for sentencing). Compelled Consent During Trial Given that "transportation" is a privileged, commercial activity, for which a "license" is required, it follows that such line of conduct is entered into one and only one way: purely voluntarily. Appellant's Brief (Todd) 6  No Notice. No Commercial nexus Evidence of transportation typically includes a passenger manifest or a bill of lading. There never was any such evidence in any way associated with this case. In matters that don't involve big rigs or buses or vans or taxis, CITY/STATE goes to trial knowing full good and well that there are no people or goods being moved from one point to another for profit or hire (under any choice of law). In other words CITY/STATE knows full good and well that there's no "transportation" at issue. By what mechanism, what shinanigan, what scam, then, does STATE rely on to "prove" "transportation"? The answer is this: The defendant's silence (i.e. consent) in response to questions using, thus presuming satisfaction of, the key commercial term, which is "transportation". In other words STATE'S "transportation" position is 100% bluff, 100% dependent on the legal ignorance (or incompetence) of the defendant. STATE moves forward in these matters in 100%) bad faith, and, here, the trial court subtly encouraged it. In short "the" defense to "transportation" non-cases, is consent to the commercial terms, by which objection the term "transportation" is never consented to. By the whole preventing Todd from objecting to the very terms through which "consent" is clandestinely acquired in such cases, the municipal court has not only compelled Todd's consent but also has violated Todd's access to the court, right to a fair trial, and right (not) to contract. Appellant's Brief (Todd) ]  No Notice. No Commercial nexus. The matters to which Todd objected aren't just matters of evidence. They're also matters that go to the very heart of her defense. See her Sp. App. where the defendant doesn't consent to being regulated as one engaged in "transportation". CITY/STATE never has standing: hense the court never has subject matter jurisdiction. Thus it's not just a matter of evidence on the merits but also a matter of evidence on the threshold issue of jurisdiction. See Todd's Sp. App. The court totally relieved STATE of it's burden of proof By compelling Todd's consent, the court relieved STATE of it's burden. Cf. Scott (summary judgment, video of car chase relevant), (citing Diebold, 369 U.S. at 655: Anderson, All U.S. at 255) (summary judgment presumptions are against movant). Mullany (citing In re Winship) (to relieve plaintiff of burden is to violate Due Process.): Heiner. Point4: Did the Trial court deny Toddfs Right to a Fair Trial? (parti) Denial of Right to Fair Trial (part 1) Anytime the defendant is flat out prevented from putting on her defense, the right to a fair trial is violated. In most cases it's a matter of evidence exclusion Cf, e. g. Holmes 323 S.W. 3D at 169-70 (prohibited from cross exam of STATE'S expert): Davis (evidence): Valle, 109 S.W. 3d at 506: Webb 766 S.W. 2d at 244 Appellant's Brief (Todd) 8  No Notice. No Commercial nexus (exclusion of witness). Of course the commonly cited case is Potier. The analysis with language that is the closest to the concept at issue here is Wiley, 1A S.W. 3d at 405 ("In other words the erroneous ruling goes to the heart of the defense"). Todd was in fact prevented from defending herself: hence, she was denied a fair trial. The Trial Court Totally Disallowed Todd's Defense The trial court completely prevented Todd from defending herself and basically compelled Todd to consent to "everything". By not being allowed to object to the key commercial terms on which the consent-based "transportation" scam depends, Todd was compelled to consent to being a party willfully and knowingly engaging in "transportation" activity: hence, also to the matters for which CITY/STATE carries the burden of proof, e.g., standing (proving the existence of an "actual grievance"): thus, ultimately, to the court's subject matter jurisdiction. In short, the trial court violated Todd's right to a fair trial. Point 5: Did the Trial Court Deny Todd's Right to a Fair Trial (part 2) Denial of Accessible See Motion for New Trial. The prosecutors were allowed to access all kinds of materials via the computer during the trial. Todd was not allowed to access anything by computer and had to rely on the printed materials. That's a Appellant's Brief (Todd) 9  No Notice. No Commercial nexus. flagrantly unfair trial environment. Cf. Hamdi (denial of access and of opportunity to be heard): Boddie (denial of access): Harbury (same). Point 6: Did the Trial Court Violate Todd's Right to Travel? The Right to Travel, generally Post-1913. Edwards (right to "transport" indigent people in interstate commerce): Kent (even communists have a right to travel (passport)): Aptheker (travel at home and abroad is a right guaranteed to a citizen, even to communists.): Zemel (citing Kent, Aptheker) Guest (241 broad enough to cover right to travel from state to state). Post 1965 (case start dates). Griffin (right to interstate travel: Dunn (clarifying Shapiro "In any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." 394 U.S. At 634): Jones v. Helmes (right to travel is "interstate" in nature); Zobel (concuring opinions provide context for right to travel cases); Soto-Lopez; (sometimes "right to travel" may be better labled as "right to migrate"). There's no practical or legal difference between in-TER-state and in-TRA- state travel in "this state". There are no States. Post-1965. Cf. Graham (despite Art. Ill 2, Art. IV, 2, and the Sixth Amendment, Colorado (transferee) trial court had jurisdiction Appellant's Brief (Todd) H)" No Notice. No Commercial nexus over (criminal) Murrah Building bombing cases which arose in Oklahoma; to challenge the transferee court's jurisdiction by arguing the "constitution" was (1) frivolous, (2) without merit, (3) of no authority, and (4) ludicrous. Post 1913 See also U.S. Const. Amend. 17. The 17 Amendment superceded the original language as to how "senators" are chosen. Originally, the senate was the State's legislative body, which offices were filled by action of each State. States haven't selected "their" representative for "their" legislative body since 1913, meaning States haven't existed for all kinds of legal purposes since 1913. There is a theoretical difference between in-TER-state and in-TRA-state activity. The "right to travel" is recognized in, and it's associated with the notion of in-TER-state travel. However given that there is only one "state" i.e. "this state," "everything" is in-TRA-state. Thus either there are no in-TER-state theories that apply at any time for any reason, which means that there's no in-TER-state right to travel, any more, or that in-TER-state "right to travel" permeates the entirety of "this state". Point 7: Did the Trial Court Violate Todd's Right (not) to contract? Even if what we're talking about is an in-TRA-state matter, hence nothing for which the in-TER-state "right to travel" is relevant, we're still talking about "transportation", which is engaged one and only one way: "voluntarily". No one Appellant's Brief (Todd) IT  No Notice. No Commercial nexus may be "compelled to agree" to engage in "transportation" activity. Standard Oil Co. (anti-trust context, right to carry on trade or business is recognized in context of right to contract); Goodman (right to contract in race discrimination context); Plumbers' Union (union tortiously interfered with right to contract). See also Fed. R. Civ. P 8(c) 1 (affirmative defense of duress); Tex. R. Civ. P. 94. CCA: Jordan, 51 Tex. Crim. at 532. 103 S.W. at 634. Ex Parte Smythe, 116 Tex. Crim. at 149. 28 S.W. 2d at 163 Tex. S. Ct.; Storrie 90 Tex. at 287, 38 S.W. at 156; Marsh USA Inc. Todd has a right not to contract, which right she has asserted from the instant this started. By asserting her objections to the key commercial terms on which this "transportation" scam so heavily depends, via her Sp. App. and then via her Standing Evidentiary Objections, she was asserting her right not to contract By overruling her Sp. App. and by bulldozing her Standing Evidentiary Objections, the trial court disallowed her objections, effectively compelling Todd to agree that she was engaged in "transportation", where the reality is that she never was. Thus, the trial court has violated Todd's right not to contract. Point 8: Did the Trial Court Violate Todd's Right (not) to Engage in Commerce? See e.g. Griswold (to outlaw contraceptives is to compel married women to Appellant's Brief (Todd) 12  No Notice. No Commercial nexus use "marriage license" to make babies for STATE) (i.e. even those with licenses cannot be compelled to use them.) STATE cannot compel even those with "licenses" to engage in that line of commerce for which that "license" exists. A cab "driver" or "operator", a bus "driver" or "operator" can never be prevented from also just being a "traveler". Just because one has a "license" it absolutely, positively, no way under the heavens means that s/he's actually using it at any particular time. Thus, those who are not in those professional lines of "transportation" are never "drivers" or "operators" by any means other than STATE'S skullduggery in the legal mechanism of clandestine consent. To disallow Todd's objections is to compel Todd into "transportation". Point 9: Does the trial court have personal jurisdiction? Overview: The systemic problems regarding Notice. For there to be personal jurisdiction, there must first be proper Notice. Notice requires both filing and serving the paperwork Murphy Bros. Inc. (timing and sequence matter regarding filing and serving) Lloyd, 5 U.S. At 366 ("A citation not served is as no citation"). Clearly "citations" and "complaints" Art. 45.018(b), are two entirely different things All cases whether civil or criminal, have the same generic requirements. Cf Appellant's Brief (Todd) \3  No Notice. No Commercial nexus. O'Grady. See also United States v. Brown ("real Notice" habeas context). And there is to date, no Notice: hence, this is a non-case i.e. civil. Notice used to require filing and serving two documents. Before about 1965, Notice for misdemeanor cases required the filing and serving of two documents: (1) a sworn statement ("complaint") and (2) a pleading, i.e. the Information. See Arts. 2.04, 2.05, 21.20, 21.21, 21.22, 27.01. Without both of these documents, there was no Notice. THE LACK OF ATTORNEY SIGNATURE PROBLEM To examine into the pleading first, STATE is, in actuality, a corporate entity, a commercial enterprise, doing business in "this state" via the benefit of a tax exemption certificate. No artificial entity may appear in court without authorized signature. For a misdemeanor case that authorized signature exists if there's a pleading. For a misdemeanor, the pleading is the Information. No pleading filed- no Notice [Tex. Const. Art. 5, 12]; Arts. 2.04, 21.20, 21.21, 21.22, 27.01: Rowland 506 U.S. at 201-03 (all artificial entities must have counsel-federal); Tex. R. Civ. P. 7 (corporations must have counsel - state); Kuntoplast of Am. Inc., (same) Computize Inc. (same) Moore; (same) Dell Dev. Corp. (same) Globe Leasing Inc. A31 S.W. 2D at 45-46 (same); ABA Model Rules of Prof'L Conduct R 3.7 Appellant's Brief (Todd) 14  No Notice. No Commercial nexus. (material witness can't also be attorney of Record); Tex Disciplinary Rs. Prof1 Conduct 3.08, 5.05 (same, plus facilitating unauthorized practice); Garcetti v. Ceballos (ethics still matter; "whistleblower" lawyer who testifies against client is fortunate still to have license, much less job); Tex. Dept. of Parks and Wildlife v. Miranda (standing, burden on plaintiff, requires "actual grievance" - state). No pleading served? - no Notice A pleading has meaning sometime after it's been filed, not before. See Murphy Bros. Inc. A pleading has meaning sometime after it's been served, not before. Lloyd, 5 U.S. At 366 ("A citation not served is as no citation."). In sum, no pleading? No Notice Thus without a pleading, there simply was no Notice, thus no case. The Lack of witness statement problem No "administrative citation" ("ticket") has ever been a "complaint". A "complaint" is a sworn statement. See Arts. 2.04, 21.22, 45.018 and 45.019 In sum, no complaint and no pleading? - No Notice Thus, it used to be that without the filing and serving of both a "complaint" and an Information, there simply was no Notice. Point 10: How is it fair that the trial court had two attorneys prosecuting? Appellant's Brief (Todd) 1?  No Notice. No Commercial nexus. The trial court had two prosecuting attorneys conspiring against Todd. Todd was not allowed to have representation other than herself. The trial court was in direct violation of Tex. Crim. Code of Proc. Art. 45.020(b). Not more than one council is allowed to conduct either the prosecution or defense. Todd-0. STATE -2 Fair? Impartial? Legal? Not. Point 11: What law did the trial court act on when refusing to answer the jurors' question? The jury asked this question during deliberation, "Is there a legal procedure allowing the entry of a license plate into a database for the purpose of identifying whether a car has insurance?" To which the Judge replied, "The court under the law, is not permitted to answer the question you presented." Todd demands to know what "law" allows or disallows the trial court to answer a jury's question? It all could have been over then and there. In application of these points There was never any "transportation" at issue, which greatly explains why there was never any evidence of "transportation". Since Todd was not engaged in "transportation", there was no "vehicle", no "driver", no "motor vehicle", and no "operator". Therefore there was never any authority to issue any ticket. For the trial court to disallow Todd's objections to these terms, was for the trial Appellant's Brief (Todd) 16"  No Notice. No Commercial nexus. court to prevent, completely, Todd's defense, and to compel consent, and to deny access, and to violate Todd's right to a fair trial. This trial was in no way fair or impartial. There were two licensed prosecuting attorneys and a judge who would not listen to, or accept any evidence of, or take judicial notice of, anything that even had a chance of causing reasonable doubt, all conspiring Todd in order to strip her of her rights and maliciously, knowingly, and illegally condemn her in the eyes of the jury. Request for Relief Wherefore, premises considered, Todd requests relief as follows: * Declare that Todd's right of Due Process has been violated: * Reform the clerical errors that the county court refused to correct (points * Declare that the repeal of Art. 45.01 materially changed the procedures (point 9) and also declare that Notice for all misdemeanor matters requires both a "Complaint" and an Information. * Declare that for municipal courts of record, the period of "one day" for Notice, as found in Art. 45.018(b), is unconscionable. * If Art. 45.018(b) still applies, declare that a "proceeding" includes ruling on a pre-trial motion, setting a trial date, and conducting a trial. Appellant's Brief (Todd) 17  No Notice. No Commercial nexus. * Strike Art. 25.04 which purports to relieve STATE of it's burden to both file and Serve it's original pleading(s), as repugnant to Due Process. * Declare that STATE'S Notice is facially invalid for proceedings in municipal courts of Record where there's (A) no attorney's signature, and (B) no address provided for Service of the defendants documents. * Having settled what Notice now requires, Vacate the "judgment" as void for want of personal jurisdiction, due to no Notice both substantively (inadequate documents) and procedurally (Nothing Served ahead of trial) *Vacate the "judgment" as void for want of subject matter jurisdiction, due to no "transportation" proved: thus failure to prove standing and submitting no evidence in support of the "judgment". *Vacate the "judgment" as void as a result of the trail court's having Compelled Todd's consent to "transportation" "vehicle" "motor vehicle" "drive" (in all forms) and "operate" (in all forms) and Violated Todd's right to a fair trial right to travel right (not) to contract Appellant's Brief (Todd) \S  /RECEIVED N No Notice. No Commercial ne MAY 1 8 2015 right (not) to engage in commerce TWRDCOURJ OF APPEALS, \ JEFFREY D.KYLE / * Declare the entire Transportation Code either (1) 100% commercial, as is the commonsense understanding, or (2) totally vague for want of definitions of "transportation" and "this state". * Refund the impound amount for Todd's car. * Award Todd costs and all other relief to which she is justly entitled. Respectfully submitted, G^YLEEN S. TODD 2116 Juniper Trail Round Rock, Texas 78664 Appellant's Brief (Todd) 19  No Notice. No Commercial nexus. /"RECEIVED\ MAY 1 8 2015 Certificate of Service THIRD COURT OFAPPEALS \ JEFFREY P. KYLE / By my signature below, I certify that on this the 24th day of April, 2015, I served a true and correct copy of this brief with it's Appendix on the following by certified mail or by 3-day or faster delivery: Court of Appeals Third district P.O.Box 12547 Austin, Texas 78711 'Ot/l^^ ^M AYLEEN S. TODD Appendix Contents Judgment and Sentence Taken After a Jury Trial Al Charge of The Court A2 Court Response to Jury Question A3 Bill of Service for Impoundment of Car A4 Appellant's Brief (Todd) 20  Gayleen S. Todd 2116 Juniper Trail Round Rock, Tx 78664 Jeffrey D. Kyle Clerk Court of Appeals Third District of Texas RECEIVED P.O. Box 12547 MAY 1 8 2015 Austin, Tx. 78711 THIRD COURTOFAPPEALS. " •ffFREYD. KYI P y court of appeals number: 03-14-00386-CR trial court case number: 13-08168-3 May 6, 2015 Certificate of Compliance Concerning the Appellant's Brief I sent via certified mail on April 28 th , and was received by the court clerk, but was not filed, here is the calculation of words in said document according to the computer program used to write it: There are 6019 words in the document. Gayleen S. Todd No Notice. No Commercial nexus.  JAIL SEN"~E^C CAUSE NO. 13-08168-3 THE STATE OF TEXAS COUNTY COURT AT LAW #3 VS. OF GAYLEEN S TODD WILLIAMSON COUNTY, TEXAS JUDGMENT AND SENTENCE TAKEN AFTER A JURY TRIAL On June 02, 2014, this cause was called for trial. The State appeared by and through Williamson CountyAttorney Dee Hobbs, and ^ the above-named Defendant having voluntarily waived his/her rightto counsel appeared in person. • the above-named Defendant appeared in person with his/her attorney, Both parties announced "ready" for trial. Defendant was arraigned and/or waived arraignment and the Court entered a plea of NOT GUILTY to the offense of FAIL TO MAINTAIN FINANCIAL RESPONSIBILITY, a Class C Misdemeanor committed on or about May 15, 2013, as charged by the Information herein. A jury of six persons was selected, empanelled, and sworn. After hearing the Information read, receiving the evidence submitted and the charge of the Court, and hearing arguments of counsel, said jury retired to deliberate and returned the following verdict in open court: "We, the Jury, find the Defendant, GAYLEEN S TODD, GUILTY of the offense of FAIL TO MAINTAIN FINANCIAL RESPONSIBILITY as charged in the Information." Said verdict form was signed by the presiding juror. The trial then proceeded to the punishment phase where Defendant elected to have his/her punishment assessed by the same jury. Said jury then heard evidence regarding punishment, retired to deliberate, and returned the following verdict in open court: a fine of $220.00. It is therefore ADJUDGED that Defendant is guilty ofthe offense of FAIL TO MAINTAIN FINANCIAL RESPONSIBILITY, and is hereby sentenced to pay a fine of $220.00. All costs of courtincurred herein are hereby taxed to Defendant. SPECIAL FINDINGS AND ISSUES • TheCourt AFFIRMATIVELY FINDS Defendant committed family violence inthe course ofcommitting the offensecharged. • Defendant is ORDERED to pay restitution of $ to through the Williamson County Community Supervision andCorrections Department orthe County Attorney's Office. D Defendant's driver's license is SUSPENDED for days, beginning June 3, 2014 D If eligible, Defendant is to receive credit on thislicense suspension for any prior administrative license revocation. • AVictim Impact Statement was returned to the prosecuting attorney and provided to the Court for consideration in sentencing. ORDER OF COMMITMENT The Honorable Sheriff of Williamson County is ORDERED to take Defendant into custody and keep him/her in the County Jail until expiration ofthe following sentence: Defendant has been SENTENCED to a term of DAYS-in jail, with credit for days served. This sentence is to be served: • on CONSECUTIVE DAYS • on CONSECUTIVE DAYS in the Williamson County Work Release Program • on CONSECUTIVE WEEKENDS • through the Williamson County Community Service Restitution Program (Road and Bridge) in lieu ofincarceration. The Defendant is ORDERED to reportto the program coordinator at 7:45AM on the date the sentence is orderedto begin. Said sentence shall begin Defendant has been ordered to pay the following fine and court costs: $ 220.00 Fine $ 222.00 Court Costs $ 442.00 TOTAL • Unless Defendant can produce a receipt showing payment in full to the County Clerk, do not release Defendant until he/she has received credit for additional days in jail. E3 Defendant is ordered to pay said costs to the County Clerk in full by July 18, 2014 Failure to pay said costs in full by said date will result in a capias pro fine warrant being issued for Defendant's arrest If Defendant fails to appear for weekend jail, work release, or Road and Bridge, in accordance with this Order, this sentence is hereby commuted to CONSECUTIVE DAYS in jail upon Defendant's arrest until it is satisfied. This sentence shall run CONCURRENT with the followi iifb,.Av SIGNED June 3, 2014 JUN 0 3 2014 Defendaq^^^fthumbprint •  CAUSE NO. 13-08168-3 THE STATE OF TEXAS COUNTY COURT AT LAW #3 VS. OF GAYLEEN S TODD WILLIAMSON COUNTY, TEXAS TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL I, judge of the trial court, certify this criminal case: El is nota plea-bargain case, and the Defendant has the right ofappeal; or • is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the Defendant has the right of appeal; or D isa plea-bargain case, but the trial court has given permission to appeal, and the Defendant has the right of appeal; or • is a plea-bargain case, and the Defendant has NO right ofappeal; or • the Defendant has waived the right of appeal. SIGNED June 3, 2014 Ihave received acopy of this certification. Ihave also been informed of my rights concerning any appe^o>tnis criminal case, including any right to file a pro se petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. Ihave been admonished that my attorney must mail a copy of the court of appeals judgment and opinion to my last known address and that Ihave only 30 days in which to file a pro se petition for discretionary review in the Court of Criminal Appeals. Tex. R. App. P. 68.2 I acknowledge that, if Iwish to appeal this case and if Iam entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which Iam currently living or any change in my current prison unit. Iunderstand that, because of appellate deadlines, if Ifail to timely inform my appellate attorney of any change in my address, Imay lose the opportunity to file a pro se petition for discretionary review. DEFENDANT'S ATTORNEY DEFENDANT Mollinn address Mailing arlrlrocc ' 7&7 fit £/ State Bar Number Telephone number __ Telephone number bled Fax number, if any FaXTrarnTOT if any JUN 0 3 2014 ^ X County Cierk, WilliamsonCq. T%  NO. 13-08168-3 The State of Texas § in the county court at law § VS. § NUMBER THREE § GAYLEEN S. TODD § WILLIAMSON COUNTY, TEXAS CHARGE OF THE COURT Ladies and Gentlemen of the Jury: The Defendant, GAYLEEN S. TODD, stands accused by information with the offense of Failure to Maintain Financial Responsibility, it being alleged that said offense was committed in the territorial limits of the City of Round Rock, Williamson County, Texas, on or about the 15th day of May 2013, to which charge the Court has entered a plea of 4iNot Guilty" for the defendant. I now give the following instructions in this case: I. Our statutes provide that a person may not operate a motor vehicle in this State unless financial responsibility is established for that vehicle. Statutes provide further that as a condition of operating a motor vehicle in this state, the operator of said vehicle on request shall provide to a peace officer evidence of financial responsibility by exhibiting: (1) a motor vehicle liability insurance policy; (2) a filed surety bond; (3) a deposit of case or securities with comptroller; (4) a deposit of cash or cashier's check with county judge; or (5) a certificate of self-insurance issued in compliance with statute. It is a defense to prosecution that the person charged produces to the court proof of financial responsibility that was valid at the time that the offense occurred. It is also a defense to prosecution that the person operating a vehicle in violation of this section was in possession for the sole purpose of maintenance or repair and was not owned in whole or in part by that person. Our statutes further provide that this section does not apply to the operation of a motor vehicle that is a former military vehicle or is at least 25 years old; is used for exhibitions, club activities, parades, and other functions of public interest and not for regular transportation; and for which the owner files with the department an affidavit, signed by the owner, stating that the vehicle is a collector's item and used only for exhibitions, club activities, parades, and other functions of public interest and not for regular transportation. The law does not apply to the operation of a neighborhood electric vehicle or golfcart that is operated only as authorized by statute; or a volunteer fire department for the operation of a motor vehicle the title of which is Jl;I<Y GlAKl.l l>uli ' f,i f» held in the name of a volunteer fire department unless a person is operating that vehicle in a manner inconsistent with a volunteer fire department. II. In your deliberations, you shall use the following definitions: "Motor Vehicle " means a self-propelled vehicle designed for use on a highway, a trailer or semitrailer designed for use with a self-propelled vehicle, or a vehicle propelled by electric power from overhead wires and no operated on rails. The term does not include: (A) a traction engine; (B) a road roller or grader; (C) a tractor crane; (D) a power shovel; (E) a well driller; (F) an implement of husbandry; or (G) an electric personal assistive mobility device as defined by statute III. Now therefore, if you believe from the evidence beyond a reasonable doubt that on or about the 15th day of May 2013, the defendant, GAYLEEN S. TODD, did then and there, in the territorial and corporate limits of the City of Round Rock, in Williamson County, Texas, operate a motor vehicle on a public street, to wit: Gattis School Road, when there was not in effect any authorized method of establishing evidence of financial responsibility for that vehicle, contrary to the ordinance of the city of Round Rock, and the defendant was not in possession of the vehicle for the sole purpose of maintenance or repair and has not produced proof of financial responsibility that was valid at the time of the offense, was not operating a former military vehicle or is at least 25 years old, was not used for exhibitions, club activities, parades, and other functions of public interest and not for regular transportation, the vehicle was not a neighborhood electric vehicle, golf cart or a volunteer fire department vehicle being operated in compliance with being a volunteer fire department vehicle, you will find the defendant ,;Guilty." If you do not so believe or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "Not Guilty." IV. The law of the State of Texas provides that intent is not an element which must be proven by the State for the offense of Failure to Maintain Financial Responsibility. The prosecution must prove each and every element of the offense beyond a reasonable JllO GlAKl.i ''v doubt. VI. All persons are presumed to be innocent. The law does not require a defendant to prove his/her innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case. VII. Under our Constitution and laws, every defendant has the right to remain silent and not to testify. If the Defendant did not testify at trial, you are not to discuss or consider that fact in your deliberations. VIII. You cannot infer guilt from the fact that a person has been arrested, confined, indicted, or otherwise charged with an offense. You are further instructed that the Complaint and Information against the Defendant are not evidence in the case. The sole use of the Information is to charge the offense and to inform the Defendant of the alleged offense. The reading of the Information to the jury cannot be considered as a fact or circumstance against the Defendant in your deliberations. IX. You are charged that you are permitted to receive evidence regarding the case or any witness therein only from the witness stand and the exhibits that have been admitted into evidence by the judge. No juror is permitted to communicate to any other juror about anything he or she may have heard concerning the case from any source other than the witness stand and the exhibits. In deliberating the case, you are not to refer to or discuss any matter or issue not in evidence before you. However, you are permitted to make reasonable inferences from the evidence. XI. You are the exclusive judges of the facts proved, of the credibility of the witnesses and other sources of evidence, and of the weight to be given to the testimony and evidence, but you are bound to receive the law from the Court, which is herein given you, and be governed thereby. Do not let prejudice or sympathy play a part in your deliberations. JlIO GlAKln '' M  XII. After argument of counsel, you will retire and select one of your members as your Presiding Juror. It is the duty of your Presiding Juror to preside at your deliberations and to vote with you in arriving at a verdict. Your verdict must be unanimous. After you have arrived at a unanimous verdict, your Presiding Juror must sign the attached form that conforms to your verdict. In no event shall the Presiding Juror sign more than one of such forms. XIII. During your deliberations, you shall not separate from each other, nor talk with anyone not of your jury. No one has any authority to communicate with you except the Officer who has you in charge. You may communicate with this Court in writing, by a note signed by your Presiding Juror, through the Officer who has you in charge. Do not attempt to talk to the Officer. Signed and Submitted to the Jury on this, the -"' day of ,,,. vV , 2014. " -\ JUDGE PRESIDING J.;i<> Thau..i l>A(:i 4 0i (}  NO. 13-08168-3 THE STATE OF TEXAS IN THE COUNTY COURT AT LAW VS. NUMBER THREE GAYLEEN S. TODD WILLIAMSON COUNTY, TEXAS VERDICT OF THE JURY We, the Jury, find the Defendant, GAYLEEN S. TODD, GUILTY of the offense of Failure to Maintain Financial Responsibility. Signedon this, the day of , 2014. PRESIDING JUROR I' \M •> <>! i'i JUU\ GlAKtil  NO. 13-08168-3 THE STATE OF TEXAS IN THE COUNTY COURT AT LAW VS. NUMBER THREE GAYLEEN S. TODD WILLIAMSON COUNTY, TEXAS VERDICT OF THE JURY We, the Jury, find the Defendant, GAYLEEN S. TODD, NOT GUILTY of the offense of Failure to Maintain Financial Responsibility. Signedon this, the day of , 2014. PRESIDING JUROR Jl'KV GlAKtil  NO. 13-08168-3 The State of Texas IN THE COUNTY COURT AT LAW vs. NUMBER THREE GAYLEEN S. TODD WILLIAMSON COUNTY, TEXAS COURT RESPONSE TO JURY QUESTION The Court under the law is not permitted to answer the question you presented. Please consider only the instructions that have been given to you and continue with your deliberations. Signed andSubmitted to the Jury on this, the $Cck day of \) W-w? , 2014. JUN 0 3 2014 1r®&- 'rl w'"iamsonCo.,TY  Bill of Service TDLR# 0644778VSF Date: OS-/S-/S Sunrise Towing 1101 N. Industrial Blvd #A Round Rock, TX 78681 (512)238-8229 Owner's or Lienholder's Name : ZJoh m Kachntai' Address: £/S3 (TsjaJtZyfo^t P<0. City, State, Zip: Sx/n (Marc**; TY 78C66 To whom it may concern: (per Vehicle Storage Facility Act, Occupation Code, Title 14, Ch. 2303) Your vehicle has been impounded and stored at Sunrise Towing, 1101 N. Industrial Blvd. #A R.R., TX 78681, Tel: (512) 238-8229, #0644778VSF. The vehicle was impounded by the authority of: K -&. P. O and accepted for storageon os-/S-i^ . The vehicle was towed from IES<S Ga£L\ ^U<~S**/. (? ?(/*• at UWW on QS-tS-13 by Sunrise Recovery, 3iO*> K. lH 3S Ste. ADO , R.R., TX 78664, Tel: (512) 238-8229.Tow Company # 006452258C. The vehicle is a QOOO (Year) ffkndta (Make) fhZco (Model) UJhifS (Colort. bearingCg3/Wf2(License Plate Number) TY andJTill/gJ^MVflafV?^ (V1N). Vehicles released between 8:00 A.M -12:00 A.M Monday - Saturday and 8:00 A.M - 5:00 P.M Sunday. National Holidays Closed. Vehicles released after hours within 1(one) hours notice. The following charges have accrued. "Total storage charges cannot be computed until vehicle is claimed. The storage charge will accrue daily until vehicle is released." Daily Storage rate: $ 20 per day S ~ Notification Fee I Impoundment Fee S5Q.te Sales Tax (8.25 %) Sub-total Tow Rate Winching Dollies Clean Up Transfer to Body Shop Extra Time (stand by) Additional Labor Other: Total C Removed by VY 'JA^^f/^^ , wrf Operator IJ$J/ Date: OS-IS-1J hereby accept thVabove described vehicle and verify that I have the right to possess the vehicle, In addition. I have reviewed details of charges on the original tow ticket or tow invoice and I have been advised of the Precinct and the Justice of the Peace having jurisdiction in which the vehicle was towed. Questions or unresolved complaints about stored vehicles may be directed to: Texas Department of Licensing & Regulation, P.O. Box 12157. Austin. Texas 78711 or 1-800-803-9202. wwv/.license.state.tx.us/Complaints/ DRIVER NAME: M.BoJlos TOW TRUCK LICJ WRECKER LIC.# 1420? INVOICE # Sunrise Recovery 3103 M. 1H3S. Suite#'^oo Phone # (512)238-8229 TDLR#006452258C Round Rock, TX 78664 TDLR#0644778VSF Date 0S-/S-/3 TIME/1:42 @ PM LOCATION OF VEHICLE /3>SS GaJtfil Sebcvf /&. /?. rZ 7* PQ 7^///c S/0/7 YEAR QOOO MA^ /?7«?<2fcf MODEL Profej^ £<$ COLOR fc^/fr LIC. PLATE # 0S3MGJ STATE DOORS Xi- vehicleldno. crm/ej-^ MYoao Z33C* DESTINATION OF VEHICLE Ht 3tO$ H Iff 3^ 5u/fc . 4-OQ TOWED PER ORDER OF: STATE POLICE "^LOCAL POLICE PROPERTY MANAGEMENT Vehicle Storage Begining Date: as-/s"ts Ending Date: or-(Stz VEHICLE STORAGE FACILITY 1101 N. INDUSTRIAL BLVD. #A ROUND ROCK, TX 78681 TDLR#0644778VSF Inventory of valuable property visible inside vehicle's passenger compartment Front Seat Area/Glove Box: Rear Seat Area: Trunk/Bed Other: Damage to Vehicle/Missing Parts: CHARGES ODOMETER READINGS: IMPOUND TOW FEE STARTING POINT: *?s. ca PICKUP: Once this vehicle leaves DROP OFF: DOLLIES: the property,Sunrise WINCHING: Towing & Sunrise DIRECT ALL COMPLAINTS TO CLEAN UP: TEXAS DEPT. OF Recovery, will not be LICENSING TRANSFER TO BODYSHOP responsible for any & REGULATION P.O.BOX 12157 EXTRA TIME: damages or claims. AUSTIN, TX 78711 ADDITIONAL LABOR: (512)463-6599 EMAIL: OTHER: TOWTNG@LICENSESTATE.TX.US WWW.LICENSESTATE.TX.US/COMPLAINTS/ a> TOTAL CHARGE: 12£ AUTHORIZATION TO REMOVE VEHICLE: Igive Sunrise Towing my permission and authorization to remove this vehiclerthxj where itis parked on the property. Signaturi Print Narrii  U.S. POSTAGE PAID ROUND ROCK.TX 78664 APR 24, 15 AMOUNT 7D1N 34^0 DDDE Dfl57 5h30 UNtTEDST&TES POSTAL SERVICE. 1000 $8.66 78711 00113871-02 ~ ~ " §u~ir o -W5 inc^ * .-- ^v *, 7^7// 

510 U.S. 824 Fisch et al.v.Randall Mill Corp. No. 92-1977. Supreme Court of United States. October 4, 1993. 1 Appeal from the Sup. Ct. Ga. 2 Certiorari denied. Reported below: 262 Ga. 861, 426 S. E. 2d 883.

803 F.2d 714Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Nelson J. WASHINGTON, Jr., a/k/a James Williams, Appellant,v.James P. TINNEY, III, Superintendent, M.C.I.; Gerald A.Keller, Former Superintendent, M.C.I.; Ms. Cunningham,Nurse, M.C.I.; J.A. Trumpower, Officer, M.C.I.; CaptainHecker, Officer, M.C.I.; Bettie J. Kline, Officer, M.C.I.;Captain Clingan, Officer, M.C.I.; Lieutenant Suman,Officer, M.C.I.; Keviun Staley, Officer, M.C.I.; OfficerScott, Officer, M.C.I., Appellees. No. 84-6479. United States Court of Appeals, Fourth Circuit. Submitted Aug. 29, 1986.Decided Oct. 7, 1986. Nelson J. Washington, Jr., appellant pro se. Stephen H. Sachs, Attorney General, Glenn Bell and Patricia E. McDonald, Assistant Attorneys General, for appellees. D.Md. AFFIRMED. Before RUSSELL, ERVIN and CHAPMAN, Circuit Judges. PER CURIAM: 1 While in the custody of the Maryland Division of Corrections, Nelson Washington, Jr., a/k/a James Williams, litigated a number of 42 U.S.C. 5 1983 cases in the United States District Court for the District of Maryland. In C/A Nos. K-79-1493, K-79-1494, K-79-1988 and K-80-862, Washington raised some 145 paragraphs of factual allegations in support of the following claims: (1) that on June 11, 1979, and December 30, 1979, he was denied due process in connection with two adjustment team actions at the Maryland Correctional Institution at Hagerstown (MCI-H); (2) that he was denied due process when he was placed in administrative segregation in retaliation for seeking redress of grievances; (3) that he was subjected to deliberate indifference to his serious medical needs on at least eighteen occasions; (4) that he was retaliated against for pursuing legal remedies; (5) that certain correctional officers negligently deprived him of his property; and (6) that some of the defendants allowed correctional officials to search his cell and seize his legal papers. 2 In addition to these claims, Washington brought C/A No. K-80-234 in which he complained of his placement in segregation, denial of medical attention, and interference with his legal mail. Finally, in C/A No. K-80-2941, Washington complained of a conspiracy to persecute him, a search of his cell for purposes of harassment, and a seizure of property without due process of law. 3 These cases were referred to a magistrate pursuant to 28 U.S.C. Sec. 636 (b) (1) (B), and on May 17, 1983, a detailed "Report and Recommendation " was filed. The magistrate discussed thoroughly each of Washington's claims and made the following recommendations: (1) that summary judgment be granted to the defendants in the consolidated cases (C/A Nos. K-79-1493, etc.) except on the claim that defendants were deliberately indifferent to Washington's medical needs by delaying his assignment to a single cell or lower bunk and on the claim that defendants Stelly and Cunningham were deliberately indifferent to Washington's medical needs while rendering treatment after his fall from a top bunk; (2) that summary judgment be granted for the defendants in C/A No. K-80-234 except on the mail tampering claim against defendant Kline; and (3) that summary judgment be granted for the defendants in C/A No. K-80-2941 except on the illegal search and seizure claim against defendants Trumpower, Heckler, and Scott. Washington's objections to the magistrate's report were denied, and the recommendations were adopted in toto by order of the district court on June 6, 1983. 4 Our review of the record indicates that the entry of summary judgment, pursuant to the magistrate's recommendation, on the claims described above was proper. We therefore affirm, on the reasoning of the district court, the entry of judgment in favor of the defendants on these claims. Washington v. Tinney, C/A Nos. K-79-1493, K-79-1494, K-79-1988, K-80-862, K-80-234, K-80-2941 (D.Md., June 6, 1983). 5 Counsel was appointed to represent Washington on the claims that survived the defendants' motions for summary judgment. An amended complaint was filed on December 30, 1983, whereby the remaining counts were consolidated. The new complaint contained three counts--deliberate indifference to medical needs, illegal search and seizure, and interference with legal mail. After a trial to the court, judgment was entered in favor of defendants on these claims as well. 6 We perceive no basis for reversing the district court's denial of relief on the claims which proceeded to trial. To establish a deprivation of his constitutional rights, Washington had to show that defendants were deliberately indifferent to his serious medical needs in failing to assign him to a single cell or lower bunk or in treating him after his fall from an upper bunk. Estelle v. Gamble, 429 U.S. 97 (1976). The district court found, on conflicting evidence, that defendants were not sufficiently informed of Washington's condition to render their failure to reassign him deliberate indifference. The court also found that the defendants provided appropriate treatment after Washington's fall. Review of the record and the arguments on appeal reveals no basis for concluding that the district court erred in its findings of fact or in its application of the law to the facts. 7 As to Washington's claim of illegal search and seizure, the defendants' evidence established that razors and broken glass were confiscated from Washington's cell during two searches, and that no legal documents were seized during the searches. The in stitutional need to maintain security permits officers to conduct the type of cell searches carried out here. Hudson v. Palmer, 468 U.S. 517 (1984). The district court properly rejected Washington's claim of an unconstitutional search and seizure. 8 Finally, Washington's claim that his legal mail had been confiscated, opened and read raised disputed factual is sues on which the district court could properly determine that Washington had failed to carry his burden of proof. Under the clearly erroneous standard of review applicable to such factual findings, we can find no error in the judgment of the district court. See Anderson v. City of Bessemer City, --- U.S. ----, 53 U.S.L.W. 4314 (Mar. 19, 1985). 9 We accordingly affirm the judgment in favor of the defendants. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

4 So.3d 589 (2007) TORIANO JOWERS v. STATE. No. CR-05-2353. Court of Criminal Appeals of Alabama. January 12, 2007. Decision of the alabama court of criminal appeals without opinion. Affirmed.