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17 F.3d 222 Daniel McILWEE, Plaintiff-Appellant,v.ADM INDUSTRIES, INC., a foreign corporation, WilliamAnderson, individually and as an officer of Solar Hardware,and Wayne Anderson and Clifton Tucker, individually and asofficers of ADM Industries, Inc., Defendants-Appellees. No. 93-1674. United States Court of Appeals,Seventh Circuit. Argued Dec. 1, 1993.Decided Feb. 24, 1994. 1 Gregory P. Sujack (argued) and David F. Buysse, Garofalo, Hanson, Schreiber & Vandlik, Chicago, IL, for plaintiff-appellant. 2 Fern Bomchill and Ira J. Belcove (argued), Mayer, Brown & Platt, Chicago, IL, for defendants-appellees. 3 Before POSNER, Chief Circuit Judge, CUMMINGS, Circuit Judge, and CRABB, Chief District Judge.* 4 CRABB, Chief District Judge. 5 Daniel McIlwee sold his 60,780 shares in ADM Industries, Inc., for $4.00 a share and learned much later that William Anderson, Wayne Anderson, and Clifton Tucker had received a higher price of $8.00 a share. McIlwee brought this suit against ADM, Solar Hardware, and the individual defendants, contending that he would not have sold his shares for $4.00 had he known of the higher price paid for the other shares.1 He sued in federal district court in Illinois, although none of the defendants was a resident of Illinois or found therein, contending that the court had personal jurisdiction over the defendants because the individual defendants had committed tortious acts in Illinois by failing to disclose the price differential to McIlwee in telephone conversations they had with him when he was in Illinois. The district court dismissed the complaint against the individual defendants for lack of personal jurisdiction and McIlwee appealed. The district court also dismissed the complaint against ADM Industries and Solar Hardware because these defendants were never served properly, but McIlwee does not appeal that dismissal. We affirm the district court's dismissal of the individual defendants. 6 The district court found the facts relevant to the issue of personal jurisdiction from the complaint, McIlwee's affidavit, and uncontroverted averments in defendants' affidavits. See Nelson v. Park Industries, Inc., 717 F.2d 1120, 1123 (7th Cir.1983), cert. denied, 465 U.S. 1024, 104 S.Ct. 1277, 79 L.Ed.2d 682 (1984). The parties do not contest the findings. In summary, they are as follows. In 1982, Enamel Products and Plating Company purchased ADM Industries' stock and other assets. Wayne Anderson and Clifton Tucker were officers and directors of ADM Industries, Inc., an Indiana corporation with its principal place of business in Indiana, and William Anderson was an officer of Solar Hardware, a Mississippi corporation wholly owned by ADM. Wayne Anderson and Tucker are Mississippi residents and William Anderson resides in Florida. (The district court did not find expressly that the individual defendants did not have other residences in Illinois but their affidavits establish that they did not.) McIlwee, a citizen of Illinois, owned 60,780 shares of ADM. He received a proxy statement and a notice of a shareholder meeting at which the sale of ADM to Enamel Products was to be addressed. At the meeting, the shareholders voted to approve the sale and to sell their shares for $4.00 a share. McIlwee voted in favor of the sale and sold his stock at the offered price. 7 In 1989, McIlwee learned that the individual defendants had received the equivalent of $8.00 a share from Enamel Products because they were paid additional sums known as "earn share." The amount of the earn share payments was based on the number of shares owned by each defendant. McIlwee alleged that had this fact been disclosed to him, he would not have sold his stock for $4.00 a share. He claimed damages in the amount of $243,120.00 plus interest. 8 During the pendency of the 1982 sale, McIlwee had conducted business with ADM subsidiaries. McIlwee discussed business matters and the stock sale with the individual defendants over the telephone during calls placed by McIlwee and by defendants. At no time did defendants divulge that they would be receiving more for their shares than McIlwee had been offered. OPINION 9 We review de novo the district court's legal conclusion that personal jurisdiction does not lie over the individual defendants in Illinois. Reed v. International Union of Auto., Aerospace, & Agric. Implement Workers, Local Union No. 663, 945 F.2d 198, 201 (7th Cir.1991). A federal district court sitting in diversity in Illinois has jurisdiction over a non-resident, non-consenting defendant if an Illinois state court would have jurisdiction over that party. FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir.1990). The burden of demonstrating the existence of jurisdiction rests on the plaintiff. Nelson, 717 F.2d at 1123. 10 The threshold step in the inquiry is to determine whether plaintiff has alleged that defendants committed one of the acts enumerated in the state's long-arm statute. FMC Corp., 892 F.2d at 1310. Both on appeal and below, McIlwee has based his contention that Illinois courts have jurisdiction over the defendants on the "tortious act" provision of the Illinois long-arm statute, 735 ILCS 5/2-209(a)(2) (formerly Ill.Rev.Stat. ch. 110, Sec. 2-209(a)(2)). This provision states in relevant part: 11 (a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, ... to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts: 12 .... 13 (2) The commission of a tortious act within this State. 14 Illinois courts have held that to establish that a defendant committed a tortious act in Illinois, 15 the plaintiff must allege that the defendant performed an act or omission which caused an injury in Illinois, and that the act or omission was tortious in nature. Alternatively, the requirements of the tortious act provision ... may be met if plaintiff demonstrates an economic injury in Illinois coupled with activity indicating an intent to affect Illinois interests. 16 Arthur Young & Co. v. Bremer, 197 Ill.App.3d 30, 36, 143 Ill.Dec. 736, 741, 554 N.E.2d 671, 676 (1st Dist.1990) (citations omitted). It is well established that fraudulent "mailings or telephone calls into Illinois by a non-resident, when coupled with an intent to affect Illinois interests, are a sufficient basis for jurisdiction" under the tortious acts provision of the long-arm statute. FMC Corp., 892 F.2d at 1313; see also Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 282 (7th Cir.1990); Club Assistance Program, Inc. v. Zukerman, 594 F.Supp. 341, 346-47 (N.D.Ill.1984). 17 The question in this case is whether it is sufficient for jurisdictional purposes merely to allege that during telephone conversations directed at Illinois, defendants failed to disclose information they had a duty to disclose. We conclude that more is required: plaintiff must allege facts showing an intent to affect Illinois interests. 18 McIlwee alleges that the Andersons and Tucker had a fiduciary duty to disclose the earn share payments, that they failed to do so during telephone conversations they had with McIlwee, and that their failure caused McIlwee a financial loss. McIlwee maintains that this is enough to establish that the allegedly fraudulent concealment was a tort committed in Illinois within the meaning of the tortious act provision because it demonstrates that during communications directed at Illinois defendants were afforded an opportunity to disclose information they had an obligation to disclose. McIlwee's "opportunity to disclose" theory of jurisdiction proves too much. Defendants had the opportunity to disclose at all times, not just during telephone conversations with McIlwee. If defendants were withholding information while they were on the phone with McIlwee, they were always withholding information. Nothing stopped them at any time from using any method of communication to divulge the earn share program to ADM shareholders. 19 If McIlwee is correct that the existence of an opportunity to disclose is dispositive, personal jurisdiction would lie in Illinois regardless whether defendants had any connection with the state as long as defendants breached a duty to disclose and an Illinois resident suffered a financial injury. That McIlwee cannot be correct is clear from the Illinois Supreme Court's explicit rejection of the contention that the tortious act provision of the long-arm statute applies to non-resident defendants whose only contact with Illinois is allegedly causing economic harm within the state. Club Assistance Program, Inc., 594 F.Supp. at 346-47 (discussing Green v. Advance Ross Electronics Corp., 86 Ill.2d 431, 438-40, 56 Ill.Dec. 657, 661, 427 N.E.2d 1203, 1207 (1981)); see also Heritage House Restaurants, 906 F.2d at 282; FMC Corp., 892 F.2d at 1312; Young v. Colgate-Palmolive Co., 790 F.2d 567, 570-71 (7th Cir.1986). 20 The Illinois courts require a showing that the sending of fraudulent communications into Illinois is coupled with "an intent to affect Illinois interests." Club Assistance Program, 594 F.Supp. at 346-47 (collecting cases). If McIlwee's stock ownership constituted an "Illinois interest," an Illinois court might have jurisdiction over Tucker and the Andersons if plaintiff alleged facts showing that defendants had placed telephone calls to McIlwee for the purpose of lulling McIlwee into believing that there was no reason for him not to sell his stock at $4.00 a share or of otherwise furthering their fraudulent scheme to induce him to sell his stock at that price. See Heritage House Restaurants, 906 F.2d at 282; FMC Corp., 892 F.2d at 1313. Instead, McIlwee averred only that he and defendants "discuss[ed] business matters and the sale" over the telephone. Even liberally construed, McIlwee's allegations and averments do not support an inference that defendants harbored a fraudulent intent in withholding information from McIlwee during those discussions. 21 In response to a hypothetical question posed at oral argument, McIlwee's counsel conceded that it would be "a stretch" to assert jurisdiction in Illinois over the individual defendants on the basis of a call placed to plaintiff in Illinois in which defendants' only utterance was to ask the time. The bare allegation that the stock sale was "discussed" does not make the assertion of jurisdiction any less of a stretch. The record is devoid of any indication that the conversations regarding the sale were more substantive than an exchange about the time. The district court did not err in holding that the complaint and affidavits before it were too sparse to support the inference that defendants' telephone discussions with McIlwee were undertaken in order to perpetuate a fraud on an Illinois resident. 22 Because we reach this conclusion, we need not consider whether McIlwee's alleged economic loss constitutes an injury within the meaning of the long-arm statute, whether defendants' alleged scheme involved Illinois interests, whether the individual defendants had a duty to disclose information to plaintiff about the price they were paid for their stock, or whether the Illinois fiduciary shield doctrine would preclude a finding of personal jurisdiction over defendants. The decision of the district court is 23 AFFIRMED. * The Honorable Barbara B. Crabb, Chief Judge of the Western District of Wisconsin, is sitting by designation 1 Although Solar Hardware was not named in the caption, the district court treated Solar Hardware as if it had been named as a defendant, noting that there was some ambiguity whether Solar Hardware was a party to the lawsuit

467 B.R. 156 (2012) In re The SHOREBANK CORP., et al., Debtors. No. 12 B 581. United States Bankruptcy Court, N.D. Illinois, Eastern Division. March 12, 2012. *157 George N. Panagakis, Justin M. Winerman, Skadden Arps Slate Meagher & Flom LLP, Chicago, IL, Attorneys for debtors The ShoreBank Corp., et al. Richard S. Lauter, Freeborn & Peters LLP, Chicago, IL, Attorney for Jamil Moore. Elizabeth E. Richert, The Coleman Law Firm, Chicago, IL, Attorney for Mary Houghton and Ron Gryzwinski. Lauren Newman, Thompson Coburn LLP, Chicago, IL, Attorney for Todd Brown. Mark F. Hebbeln, Derek L. Wright, Foley & Lardner LLP, Chicago, IL, Attorneys for the Official Committee of Unsecured Creditors. Alan P. Solow, DLA Piper LLP, Chicago, IL, Attorney for the F.D.I.C. as Receiver. Roman L. Sukley, Office of the U.S. Trustee, Chicago, IL, Attorney for Patrick S. Layng, U.S. Trustee. MEMORANDUM OPINION A. BENJAMIN GOLDGAR, Bankruptcy Judge. This matter is before the court for ruling on the emergency motion of Jamil Moore, Ron Gryzwinski, and Mary Houghton ("the movants") to direct the U.S. Trustee to reconstitute the unsecured creditors committee or alternatively for other relief. For the following reasons, the motion will be denied. *158 1. Facts The relevant facts, few and undisputed, are drawn from the parties' papers and from the debtors' proposed plan and disclosure statement. They are also drawn, to a very limited extent and mostly for procedural details, from the court's docket and the transcript of the March 7, 2012 argument. These jointly administered chapter 11 cases were filed on January 9, 2012. Just three weeks later, the debtors filed a disclosure statement and proposed a liquidating plan. The plan calls for, among other things, the establishment of a liquidation trust and appointment of a trust administrator. No date has been set for confirmation of the plan, but the debtors' stated intention has always been for these cases to move as quickly as possible to confirmation. The immediate post-petition filing of the disclosure statement and plan suggests the debtors mean what they say. On February 15, 2012, the U.S. Trustee held a meeting to form an official committee of unsecured creditors. According to the movants, six unsecured creditors expressed interest in serving on the committee. Three are the movants themselves. Gryzwinski is a former director of debtor ShoreBank Corporation. Houghton is a former officer and director. Moore is a personal injury claimant with a claim against another of the debtors. Of the other three interested creditors, Todd Brown is also a former director. The remaining two, Bank of New York Mellon and The Wilmington Trust Company, are trust preferred security claimants ("TruPS creditors"). The securities they hold are subordinated notes. The plan proposes several classes of unsecured creditors. Senior note holders are placed in Class 4. Gryzwinski, Houghton, Moore, and Brown are general unsecured creditors that the proposed plan places in Class 5. The TruPS creditors are placed in Class 6. The plan also proposes to create a liquidation trust on confirmation. Under the plan, senior note holders will receive their pro rata share of the liquidation trust as if classes 4, 5, and 6 were a single class, as well as their pro rata share of certain interests that but for the senior note holders' rights would be paid to the TruPS creditors. The senior note holders are expected to be paid 78% of their claims. General unsecured creditors will receive their pro rata share of the liquidation trust as if classes 4, 5, and 6 were a single class. Their expected recovery is 19%. The TruPS creditors will also receive their pro rata share as if classes 4, 5 and 6 were a single class, but only if the claimants in Class 4—the senior note holders—are paid in full. The expected recovery of the TruPS creditors is zero. After the February 15 meeting, the U.S. Trustee decided to form a three-member committee consisting of Brown and the two TruPS creditors. After the meeting, however, and before the U.S. Trustee could give formal notice of the committee's formation, Brown resigned. According to the movants (and according to Brown's counsel), he became concerned about serving on a committee of which TruPS creditors constituted a majority. Although no committee had been formed, on February 29, 2012, the movants filed the motion now before the court in which they complain of the committee's makeup and seek to have the court reconstitute it. The motion expressed the same concerns that apparently caused Brown to resign, namely that the TruPS creditors dominate the committee. The movants contend that the structure of the plan—under which the TruPS creditors only get paid after the senior note holders are paid in full—gives the committee an incentive to act primarily in the TruPS *159 creditors' economic interest. That interest would involve pursuing "high-risk strategies that run the risk of depleting the estates of precious resources because it is the only way [the TruPS creditors] could possibly receive any recovery on their claims." (Mot. at 2 (emphasis in original)). Since no committee had officially been formed, however, and since it is difficult to reconstitute a committee that does not yet exist, on the March 1 presentment date the motion was continued until March 7. The very next day, March 2, 2012, the U.S. Trustee filed a formal notice of the appointment of an official unsecured creditors committee. The committee has three members: Bank of New York Mellon and The Wilmington Trust Company (the two TruPS creditors), and Moore, the personal injury claimant. No former directors or officers are on the committee. The day before the continued hearing on the motion to reconstitute the committee, the committee (now extant) filed through its proposed counsel an objection to the motion. The committee argues that the movants are not really interested in adequate representation of their interests but instead want to control the committee themselves to pursue their own agenda. The committee notes that the only specific "high-risk strategy" that worries the movants is the prospect of the committee "`suing officers and directors.'" (Obj. at 2 (quoting Mot. at 9)). The movants' "real motivations," the committee asserts, are to prevent any investigation of possible claims against officers or directors and stave off objections to the release of those claims in the plan. (Obj. at 5). On the March 7 continued date, the court held a hearing at which counsel for the movants, Brown, the U.S. Trustee, the committee, and the debtors were permitted to argue at some length. The movants and the committee disagreed about what they termed the court's "standard of review" of the U.S. Trustee's decision and how deferential that review should be. (Tr. at 6, 16). They also disagreed, of course, over whether reconstitution of the committee was necessary to ensure adequate representation of creditors. Although counsel for the movants and the committee tried to frame the latter issue differently (a difficult task given the papers they filed), the disagreement over adequacy of representation boiled down to deep suspicions on the movants' part about the motivations of the TruPS creditors and on the committee's part about the motivations of the directors and officers. Twice during the hearing, the U.S. Trustee was invited to respond to the motion in writing but declined, citing the deliberative process privilege. (Tr. at 4, 34). See, e.g., In re Austin, No. 85-40639, 1990 WL 10007376, at *2 (Bankr.S.D.Ga. March 23, 1990) (U.S. Trustee asserted the privilege as basis for not producing documents concerning decision to move to dismiss chapter 11 case). The other parties similarly declined an invitation to file any further briefs. (Tr. at 34). The parties also refused an evidentiary hearing at which factual matters raised during argument might have been fleshed out and supported. (Id. at 34-35). At the conclusion of the argument on March 7, the parties having expressed an urgent need for a decision, and with briefing concluded, the court set a ruling date of March 12, just five days later. As promised, the matter is ready for ruling.[1]*160 The sole issue for decision is whether the membership of the existing committee must be changed to ensure adequate representation of creditors.[2] 2. Discussion The answer is no. The motion is premised on the TruPS creditors' conflict of interest, a conflict resulting from the way the debtors' plan classifies and proposes to treat unsecured claims. But the movants' assertion that these creditors will breach their fiduciary duties as committee members and act contrary to the interests of the creditors they represent is currently no more than vague and unsupported speculation. The emergency motion to reconstitute the committee will be denied. a. Statutory Framework The ability of bankruptcy courts to alter the membership of statutory committees has an uneven history. Originally, section 1102(c) of the Code allowed a court to alter committee membership or size if the court determined that the membership was not representative. See 11 U.S.C. § 1102(c) (repealed 1986). Then, in 1986, the U.S. Trustee program was expanded and made permanent, and section 1102(c) was repealed, the goal being to "`separate the administrative duties [of the United States trustee] from the judicial tasks, leaving bankruptcy judges free to resolve disputes untainted by knowledge of administrative matters unnecessary and perhaps prejudicial to an impartial judicial determination.'" In re Barney's, Inc., 197 B.R. 431, 438-39 (Bankr.S.D.N.Y.1996) (quoting H.R.Rep. No. 99-764, 99th Cong., 2d Sess. 18 (1986), reprinted in 1986 U.S.C.C.A.N. 5227, 5230). Despite the repeal of section 1102(c), however, courts continued to inject themselves into the committee process, often invoking section 105(a), 11 U.S.C. § 105(a), as a basis for "reviewing" the U.S. Trustee's appointments. See, e.g., In re Mercury Fin. Co., 240 B.R. 270, 276 (N.D.Ill.1999); Barney's, 197 B.R. at 439. In 2005, Congress restored the explicit statutory authority of bankruptcy courts to order changes to the membership of creditors committees. Section 1102(a)(4), the provision at issue here, now provides in part: "On request of a party in interest and after notice and a hearing, the court may order the United States trustee to change the membership of a committee appointed under this subsection, if the court determines that the change is necessary to ensure adequate representation of creditors or equity security holders." 11 U.S.C. § 1102(a)(4). The Code nowhere defines "adequate representation." Before section 1102(a)(4) was enacted, however, courts employed a series of factors to determine "adequate representation" under section 1102(a)(2), which concerns the ability of courts to order the appointment of additional committees rather than alter the membership of a specific committee. 11 *161 U.S.C. § 1102(a)(2). The factors included the ability of the committee to function, the nature of the case, the standing and desires of the various constituencies, the ability for creditors to participate in the case without an official committee, the possibility that different classes would be treated differently under a plan and need representation, and the motivation of the movant. In re Enron Corp., 279 B.R. 671, 685 (Bankr.S.D.N.Y.2002). The few reported cases under section 1102(a)(4) employ these same factors. See, e.g., In re Park West Circle Realty, LLC, No. 10-12965(AJG), 2010 WL 3219531, at *2-3 (Bankr.S.D.N.Y. Aug. 11, 2010). Another factor courts sometimes consider in determining adequate representation is whether members of a committee have conflicts of interest. See, e.g., Barney's, 197 B.R. at 442; In re Walat Farms, Inc., 64 B.R. 65, 69-70 (Bankr. E.D.Mich.1986). The mere presence of conflicts, though, is insufficient to show a lack of adequate representation. In re Garden Ridge Corp., No. 04-10324(DDS), 2005 WL 523129, at *4 (Bankr.D.Del. March 2, 2005). Because a committee represents the interests of all unsecured creditors, and because those creditors inevitably have different interests, courts recognize that conflicts are inherent in any committee. Enron, 279 B.R. at 689; In re Sharon Steel Corp., 100 B.R. 767, 777-78 (Bankr.W.D.Pa.1989). Courts recognize, as well, that committee members have fiduciary obligations to the other creditors, obligations that constrain what might otherwise be permissible, self-interested behavior, In re Nationwide Sports Distribs., 227 B.R. 455, 463-64 (Bankr.E.D.Pa.1998). Before a conflict of interest necessitates reconstitution of a committee, then, there must be specific evidence that the committee member or members with the conflict have breached or are likely to breach their fiduciary duties. See Barney's, 197 B.R. at 442; In re Laclede Cab Co., 145 B.R. 308, 309-10 (Bankr.E.D.Mo. 1992); In re Microboard Processing, Inc., 95 B.R. 283, 285 (Bankr.D.Conn.1989); In re Richmond Tank Car Co., 93 B.R. 504, 507 (Bankr.S.D.Tex.1988) (requiring "specific acts" indicating a breach or conflict); Walat Farms, 64 B.R. at 70 (recognizing conflicts of interest but calling the concern "premature"); see also Garden Ridge, 2005 WL 523129, at *4 (noting that adequate representation is lacking only when conflicts "prevent" a committee from performing its fiduciary duty); Enron, 279 B.R. at 686, 693 (recognizing that conflicts may disenfranchise certain creditors but refusing to appoint separate committees where there was no showing that the existing committee was providing inadequate representation); Sharon Steel, 100 B.R. at 779 (rejecting request for separate debenture committee where there was no showing that any conflict prevented adequate representation). b. "Standard of Review" Before the court can address whether the movants made the necessary showing, a preliminary question the parties raise must be considered. The movants and the committee disagree about the appropriate "standard of review" of the U.S. Trustee's decision. The movants contend that the standard is "de novo." (Mot. at 7). The committee argues for a deferential "arbitrary and capricious" standard (Obj. at 4), a standard usually associated with administrative review, see 5 U.S.C. § 706(2)(A). The correct answer is that there is no "standard of review." Section 1102(a)(4) does not authorize the court to "review" any decision of the U.S. Trustee. It says "the court may order the United States trustee to change the membership of a *162 committee . . . if the court determines that the change is necessary to ensure adequate representation." 11 U.S.C. § 1102(a)(4). The plain language of the statute, in other words, calls for an independent determination of whether a change in committee composition is necessary; it does not give the bankruptcy court an appellate function or a role akin to administrative review. Section 1102(a)(4) is clear on its face and must be applied as written. See Atunnise v. Mukasey, 523 F.3d 830, 836 (7th Cir.2008).[3] Reading section 1102(a)(4) to call for an independent decision makes sense, not only because the statutory language is clear, but because the nature of the U.S. Trustee's decision does not lend itself to "review" in the appellate or administrative sense. One body's "review" of another body's decision is possible only when the decision is accompanied by a stated rationale and a record of some kind on which the decision was based. But the U.S. Trustee's decision appointing the committee in this case comes with neither. The U.S. Trustee merely filed a notice stating that a committee had been appointed and naming the members. The notice did not have any explanation of the decision to appoint this particular committee rather than another. Nor does it appear that the U.S. Trustee made any sort of record of his process in reaching the decision. The U.S. Trustee did not provide a rationale or make a record for the simple reason that the Code did not require him to. See In re JNL Funding Corp., 438 B.R. 356, 362 (Bankr.E.D.N.Y.2010) (noting that in appointing a committee the U.S. Trustee "is not engaged either in a fact finding mission" or in "deciding issues of law"). The only requirement in the Code is that the U.S. Trustee "appoint a committee of creditors holding unsecured claims." See 11 U.S.C. § 1102(a)(1). Because the U.S. Trustee supplies neither a rationale nor a record, there is nothing for a court to review—other than the bare decision itself, that is—and without a rationale or a record no meaningful review can take place. Cf. Gallegos v. Lyng, 891 F.2d 788, 793 (10th Cir.1989) (stating that an agency's action must be reviewed "on the basis articulated by the agency and on the evidence before the agency at the time it acted," and refusing to review a decision "without a record"); N.L.R.B. v. North Elec. Co., Plant No. 10, 644 F.2d 580, 584 (6th Cir.1981) (noting that meaningful administrative review "is impossible" without a record). The parties' "standard of review" arguments are based on a line of decisions issued between the 1986 and 2005 revisions to section 1102. In those decisions, courts read into the equitable powers conferred under section 105(a) an ability to "review" the U.S. Trustee's committee appointments. Without such a check, courts reasoned, the U.S. Trustee would enjoy "wholly unfettered discretion in appointing committee members," In re Pierce, 237 B.R. 748, 753 (Bankr.E.D.Cal.1999), "with no possibility of judicial review," Mercury Fin., 240 B.R. at 276 (internal quotation omitted). But under the BAPCPA revisions, *163 these concerns are no longer valid. Now that section 1102(a)(4) allows the court to determine for itself whether a committee's make-up must be changed to ensure adequate representation of creditors, judicial review of the U.S. Trustee's decision is not only unnecessary, it is prohibited under the doctrine that "when a specific Code section addresses an issue, a court may not employ its equitable powers to achieve a result not contemplated by the Code." In re Fesco Plastics Corp., 996 F.2d 152, 154 (7th Cir.1993). In sum, the "standard of review" issue the parties have raised is a red herring. Section 1102(a)(4) demands an independent judicial determination of whether committee membership must be changed "to ensure adequate representation." c. Adequate Representation The movants here have not demonstrated that a change in membership is necessary to ensure adequate representation. The movants contend that the way the proposed plan classifies unsecured claims places the TruPS creditors in a conflict of interest. The conflict of interest exists because the TruPS creditors fall in Class 6 and will not be paid unless senior note holders in Class 4 above them are paid in full. According to the movants, the TruPS creditors therefore have an incentive to pursue "high risk strategies" to ensure the senior note holders in Class 6 get paid, strategies that are likely to reduce the recovery of general unsecured creditors in Class 5 (who are sandwiched between Classes 4 and 6). And a committee dominated by TruPS creditors, as the current committee is, will allow the creditors to pursue these alleged "strategies." The problem with the movants' position is that they have discovered a conflict of interest, but that is all they have done, and conflicts of this kind are inevitable. See Enron, 279 B.R. at 689; Sharon Steel, 100 B.R. at 777-78. The movants have not done more, producing "specific evidence" that the TruPS creditors have breached or are likely to breach their fiduciary duties to the creditor body, Barney's, 197 B.R. at 442 (quoting Microboard Processing, 95 B.R. at 285), or demonstrating that the conflict they have identified "prevent[s] an official committee from upholding its fiduciary obligations to all general unsecured creditors," Garden Ridge, 2005 WL 523129, at *4. At the moment, the movants' concerns are only speculation, and vague speculation at that: the only "high risk strategy" the movants identify is the possibility that the committee will sue officers and directors. But nothing in the record as it stands suggests that the committee will pursue that strategy. The committee has not yet expressed an intention to pursue any particular strategy—hardly a surprise since the committee has only existed for ten days—and the committee itself says in its objection that no determination to sue former officers and directors has been made. The committee also notes plausibly that given the speed at which this case is moving, the trustee of the liquidation trust to be created at confirmation is far more likely than the committee to pursue any claims against officers and directors. Even if the committee had decided to sue officers and directors, moreover, that alone would not show a lack of adequate representation. As the committee here observes, creditors committees necessarily look into the performance of former officers and directors of the debtor, see In re Venturelink Holdings, Inc., 299 B.R. 420, 424 (Bankr.N.D.Tex.2003), and occasionally creditors committees sue them, see, e.g., Official Committee of Unsecured Creditors v. Goldman Sachs Credit Partners L.P. (In re Fedders N. Am., Inc.), 422 B.R. 5 *164 (Bankr.D.Del.2010). The committee could not be deemed to represent the creditors inadequately merely because it was doing its job. In short, the movants would have a point here only if they had shown (a) that the committee was in fact going to sue former officers and directors of the debtors, and (b) that the suit would in fact affect adversely the interests of the creditor body— for example, because the action had little or no chance of success, or because the costs of pursuing it plainly outweighed the benefits. But the movants have made no such showing, probably because it cannot be made. They have not even made the assertion in their motion. Based on motivations, the movants' argument is wholly speculative, and mere speculation that a committee member's conflict of interest might one day ripen into an outright breach of fiduciary duty and a lack of adequate representation is not enough to warrant reconstituting a committee. See, e.g., In re Penn-Dixie Indus., Inc., 9 B.R. 936, 940 (S.D.N.Y.1981) (affirming decision not to remove a committee member where no evidence was produced that charges of the member's future misconduct "were anything more than speculative"); Richmond Tank Car, 93 B.R. at 507-08; Walat Farms, 64 B.R. at 70 (calling the objecting creditors' concerns "real" but "premature"); In re Enduro Stainless, Inc., 59 B.R. 603, 605 (Bankr.N.D.Ohio 1986) (refusing to change committee composition "based on mere assumptions"). The movants nonetheless complain that given the way the plan slices and dices the creditor body, the committee ought not to be dominated by creditors with subordinated claims who can expect to receive nothing. The movants suggest that two former directors (one a former officer as well) should be added to the committee so that their numbers at least equal the number of TruPS creditors, with the judgment creditor, Moore, providing any needed tiebreaker. A committee with this composition, the movants say, would be "fair and balanced." (Tr. at 7). In the absence of some concrete reason to believe the TruPS creditors will not carry out their fiduciary duties, however, there is simply no reason to send the U.S. Trustee back to the drawing board and disrupt the bankruptcy case any more than it has already been disrupted. Nothing in section 1102 or in the concept of "adequate representation" requires that committees be formulated even to reflect the exact composition of the creditor body, Garden Ridge, 2005 WL 523129, at *3; Enron, 279 B.R. at 690, much less that a committee achieve some sort of perfect equilibrium of creditor interests. Would a committee with the membership the movants suggest be more "balanced" than the current committee? Probably. Is a more balanced committee necessary to achieve "adequate representation of creditors" in this case? No—not, at least, at this juncture in the case and on the current record. If the committee takes some action with which the movants disagree, section 1109(b) of the Code will allow the movants to object and be heard. See 11 U.S.C. § 1109(b) (allowing any "party in interest" to be heard "on any issue"); In re Johns-Manville, 38 B.R. 331, 332 (S.D.N.Y.1983) (making this point). If the conflict of interest the movants have identified prevents the committee from functioning effectively or causes possible breaches of fiduciary duty to become probable or actual, the movants will have section 1102(a)(4) as a remedy. But right now, with nothing more than a conflict of interest identified, it has not been shown that a change in committee membership is "necessary" to ensure adequate representation of creditors—certainly not in the usual sense of *165 "absolutely required," "essential," or "indispensable" Webster's Third New Int'l Dictionary 1511 (1981). 3. Conclusion For these reasons, the emergency motion of Jamil Moore, Ron Gryzwinski, and Mary Houghton to direct the U.S. Trustee to reconstitute the unsecured creditors committee or alternatively for other relief is denied. NOTES [1] Just before the close of business on March 8, having apparently experienced a change of heart, the U.S. Trustee filed an objection along with what was styled an "emergency" motion seeking leave to file it. Late in the afternoon on March 9, the movants filed a response to the U.S. Trustee's objection. The U.S. Trustee's motion for leave has been denied, and neither the U.S. Trustee's objection nor the movants' response to it has been considered. At the March 7 hearing, these parties were asked if they wanted to file anything else. They declined. If judicial decisions are going to get made, especially when the parties want a decision urgently, there comes a point when the barrage of paper simply has to stop. In this case, it stopped on March 7. [2] As filed, the emergency motion not only sought a change in committee membership, it also requested as alternative relief either the appointment of a directors and officers committee or the disbanding of the unsecured creditors committee altogether. But the first request has not been pressed (it was not even mentioned at the argument), and the second has been abandoned. (Tr. at 17). [3] Some courts have held that when the U.S. Trustee acts as an administrative arm of the bankruptcy court, it is an administrative agency subject to the Administrative Procedure Act. See, e.g., In re Gideon, 158 B.R. 528, 530 (Bankr.S.D.Fla.1993); In re Myers, 147 B.R. 221, 233 (Bankr.D.Or.1992). Even assuming these decisions are correct, the U.S. Trustee's action in forming a creditors committee is not subject to administrative review because the action is not "made reviewable by statute," and section 1102(a)(4) gives parties in interest an "adequate remedy in a court." See 5 U.S.C. § 704 (describing final agency actions reviewable).

303 F.Supp.2d 391 (2004) POSVEN, C.A., Plaintiff, v. LIBERTY MUTUAL INSURANCE CO. d/b/a Liberty Bond Services, Defendants. Liberty Mutual Insurance Co. d/b/a Liberty Bond Services, Defendants, Third-Party Plaintiffs, v. Posco Engineering & Construction Co. Ltd., Third-Party Defendants. No. 02 Civ. 0623(PKL). United States District Court, S.D. New York. January 12, 2004. *394 Dorsey & Whitney LLP, New York, NY, Minneapolis, MN, Neil E. McDonnell, Steven K. Champlin, for Plaintiff. Thelen Reid & Priest LLP, New York, NY, Washington, DC, Jeffrey P. Rosenstein, Andrew D. Ness, Todd J. Wagnon, for Defendant, Third-Party Plaintiff. White & Case LLP, New York, NY, John S. Willems, K. Allison White, for Third Party-Defendant. OPINION AND ORDER LEISURE, District Judge. Plaintiff POSVEN, C.A. ("POSVEN") commenced this diversity action seeking damages for breach of a $39,375,000 performance bond ("Performance Bond" or "Bond") issued by defendant and third-party plaintiff Liberty Mutual Insurance Co. d/b/a Liberty Bond Services ("Liberty Mutual"). The Bond secured performance by Energy Overseas International, Inc. ("EOI") and United Engineers, Inc. ("UEI") on a series of contracts between POSVEN and EOI, UEI, and third-party defendant POSCO Engineering & Construction Co., Ltd. ("POSEC"). Liberty Mutual, in turn, brought a third-party complaint against POSEC for exoneration and quia timet, subrogation, contribution, reimbursement, restitution and indemnity. In response, POSE C now moves to dismiss the third-party complaint for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Liberty Mutual opposes the motion to dismiss and has filed a cross-motion to transfer the entire action to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). Both POSVEN and PSEC oppose transfer of venue. For the reasons set for below, the Court denies the motion to dismiss and grants the motion to transfer. I. BACKGROUND This case centers on the performance of various contracts relating to the construction of a hot-briquette iron facility in Peurto Ordaz, Venezuela ("the Project"). Plaintiff POSVEN is a Venezuelan company, with its principal place of business in Venezuela, formed as a joint venture among a number of companies including Pohang Iron & Steel Co., Ltd., third-party defendant POSEC-itself a subsidiary of Pohang Iron & Steel Co., Ltd., and UEI for the purpose of owning and operating the Project. (Third Party Compl. ¶ 2; Willems Aff., Ex. D.) In 1997, POSEC, EOI, and UEI, formed a consortium and entered into a series of contracts ("the EPC Contracts") with POSVEN to provide engineering, procurement and construction services for the Project. (Willems Aff. Ex. C, E-H.) The EPC Contracts were not negotiated in New York and none of the parties to the EPC Contracts were New York citizens or residents (Koo Decl. ¶ 9-10); however, the EPC Contracts do contain New York choice of law provisions (Willems Aff., Exs. E-H). Under the EPC Contracts, EOI and UEI were required to furnish a performance bond for the benefit of POSVEN. (Compl.¶ 7.) To fulfill this obligation, EOI and UEI obtained the Bond from defendant Liberty Mutual, a Massachusetts company with its principle place of business in Boston, Massachusetts and its headquarters in the Philadelphia, Pennsylvania area. (Compl. ¶¶ 2, 8; Liberty Mutual Opp. at 9 n. 5.) In early 2001, problems began to arise relating to the quality of hot-briquette iron produced by the Project and the construction and engineering of the Project. POSVEN now alleges in its complaint filed January 25, 2002 that EOI and UEI *395 breached the EPC Contracts in numerous respects, including failing to pay liquidated damages for delay and lack of performance to POSVEN, failing to perform required work and failing to correct deficient and defective work on the Project, abandoning the Project, and filing for bankruptcy. (Compl.¶ 9.) POSVEN contends that because EOI and UEI are in default and have been declared to be in default of their obligations under the EPC Contracts POSVEN is entitled to the full sum of the Bond. (Compl.¶¶ 10-12.) Liberty Mutual, in turn, alleges in its third-party complaint that POSEC, a Korean company with its principal place of business in the Republic of Korea, is jointly and severally liable for the alleged breaches of the EPC Contracts and moreover that the alleged breaches relate in substantial part to the performance of equipment supplied by POSEC as part of its obligations under the EPC Contracts. (Third Party Compl. ¶¶ 6-12.) Accordingly, Liberty Mutual seeks recovery from POSE C under various subrogation, contribution and indemnification causes of action. POSEC has moved to dismiss the third-part complaint on the grounds that it is not subject to personal jurisdiction in this Court. Liberty Mutual argues that this Court does have personal jurisdiction over POSEC but that if the Court is inclined to find otherwise, the appropriate course is to transfer venue to the Eastern District of Pennsylvania where, according to Liberty Mutual, POSEC is subject to personal jurisdiction. While most of the relevant acts and omissions in this case occurred in Venezuela, certain acts of jurisdictional significance occurred in both Pennsylvania and New York. Between 1997 and 2001, both UEI and EOI had their principal place of business in Philadelphia, Pennsylvania, where UEI performed most of its engineering and procurement duties under the EPC Contracts. (Marrone Decl. ¶ 3.) From February 1997 to October 1997, POSEC essentially ran a satellite office in space it rented within UEI's Philadelphia office. (Id.) As many as seven POSEC employees performed substantial procurement and engineering work relating to the EPC contracts out of this office, including taking part in meetings and other communications with UEI, EOI and various contractors and subcontractors and preparing reports outlining the progress of POSEC's performance under the EPC Contracts. (Marrone Decl. ¶ 3, Exs. 4-12.) In addition, POSVEN corresponded extensively with the Philadelphia offices of UEO, EOI and POSEC via mail, facsimile and telephone regarding the Project. (Marrone Decl. ¶ 3.) After October 1997, POSEC maintained a liaison officer in Philadelphia through mid-February 1998. (Id.) The relevant contacts in New York occurred on May 16, 2001 when all of POSVEN's shareholders attended a meeting in New York City. The agenda for this meeting was to resolve the financial restructuring of POSVEN; however, the minutes of the meeting show substantial discussion regarding the construction and quality problems impeding the Project. (Id. ¶ 4 and Ex. 13.) Furthermore, the minutes indicate that the proposed financial restructuring was closely integrated with and largely contingent upon the resolution of these same construction and quality problems. (Id., Ex. 13). POSEC was represented at the meeting by POSVEN's general counsel, Mr. Fernando Pelaez Pier, Esq. (Id.) Mr. Pier was not an employee of POSEC, but rather was granted power of attorney for the purpose of representing POSEC in the May 16 meeting. (Supp. Koo Decl. ¶ 4.) Specifically, Mr. Pelaez Pier was authorized to represent POSE C in resolving the financial restructuring of POSVEN, including taking part *396 in the deliberations and voting on this issue. (Supp. Koo Decl., Ex. A.) II. DISCUSSION A. Personal Jurisdiction On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, it is well established that "the plaintiff bears the burden of showing that the court has jurisdiction over the defendant." Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999); Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). "Prior to discovery, a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction." Metropolitan Life Ins. Co., 84 F.3d at 566. Where the parties have conducted discovery on the jurisdictional issue but no evidentiary hearing has been held, the plaintiff must aver facts that, if credited by the ultimate trier of fact, would establish jurisdiction over the defendant. Id. at 567. "Eventually, personal jurisdiction must be established by a preponderance of the evidence, either at an evidentiary hearing or at trial. But where the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiffs favor, notwithstanding a controverting presentation by the moving party." A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993); see also United States Theatre Corp. v. Gunwyn/Lansburgh Ltd. Partnership, 825 F.Supp. 594, 595 (S.D.N.Y.1993). The parties have not indicated in their pleadings whether they have actually engaged in discovery relating to the question of jurisdiction over POSE C; however, Liberty Mutual and POSEC have submitted affidavits and supporting documents supporting their jurisdictional arguments. The affidavits and documents of both parties are, for the most part, factually consistent and there are no significant disagreements over the jurisdictional facts in this case. Rather, the parties differ over the legal consequences of those facts. Accordingly, the Court will determine whether the facts, as alleged by third-party plaintiff Liberty Mutual, are legally sufficient to support personal jurisdiction over third-party defendant POSEC. "Absent a specific grant of jurisdiction, the reach of a federal district court's personal jurisdiction is coterminous with that of the personal jurisdiction of a court of general jurisdiction in the state in which the court sits." Geller Media Management, Inc. v. Beaudreault, 910 F.Supp. 135, 137 (S.D.N.Y.1996) (Leisure, J.) (citing Fed.R.Civ.P. 4(k)(1)(A)). Thus, "the amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits, with `federal law' entering the picture only for the purpose of deciding whether a state's assertion of jurisdiction contravenes a constitutional guarantee." Metropolitan Life Ins., 84 F.3d at 567 (quoting Arrowsmith v. United Press Int'l, 320 F.2d 219, 223 (2d Cir.1963) (en banc)). To determine whether it has personal jurisdiction over POSEC, the Court engages in a two-part inquiry. First, it must determine whether there is personal jurisdiction over POSEC under New York state law; second, if New York law provides for personal jurisdiction, the Court must determine whether the assertion of jurisdiction comports with the constitutional requirements of due process. Id. Third-party plaintiff Liberty Mutual contends that this Court has personal jurisdiction over third-party defendant POSEC pursuant to New York's long arm statute, which allows a court to exercise specific jurisdiction over a non-domiciliary who, in person or through an agent, *397 "transacts any business within the state." N.Y. C.P.L.R. § 302(a)(1) (McKinney's 2001).[1] Under section 302(a)(1), jurisdiction is proper when: (1) the defendant has transacted business in. New York; and (2) the cause of action arises out of the subject matter of the transacted business. Id.; CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986). A non-domiciliary transacts business under section 302(a)(1) when he "purposefully avails [himself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws." CutCo Indus., 806 F.2d at 365 (quoting McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 382, 283 N.Y.S.2d 34, 37-38, 229 N.E.2d 604 (1967)). Courts look to the totality of the circumstances to determine whether the defendant has engaged in such purposeful activity and require a "substantial nexus" between the business transacted and the cause of action sued upon. See PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1109 (2d Cir.1997); Agency Rent A Car System, Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29-31 (2d Cir.1996); CutCo Indus., 806 F.2d at 365; Cedric Kushner Productions, Ltd. v. Thobela, 1994 WL 163992 at *2 (S.D.N.Y.1994) (Leisure, J.). In a breach of contract case, the central question is "whether the defendant has performed purposeful acts in New York in relation to the contract." Cedric Kushner Productions, 1994 WL 163992 at *2 (quoting A.C.K. Sports, Inc. v. Doug Wilson Enterprises, 661 F.Supp. 386, 390 (S.D.N.Y.1987)). Notably, New York's provision for specific jurisdiction under section 302 does not extend as far as the federal Constitution permits. Cuccioli v. Jekyll & Hyde Neue Metropol Bremen Theater Produktion GmbH & Co., 150 F.Supp.2d 566, 572 (S.D.N.Y.2001). Liberty Mutual argues that POSEC is subject to personal jurisdiction in this Court based on the attendance of its agent, Mr. Pelaez Pier, at the POSVEN shareholders meeting in New York on May 16, 2001 and further because the EPC Contracts are subject to New York law.[2] The Court finds, however, that while these contacts do relate to this action, they are insufficient to submit POSE C to personal jurisdiction in New York. Although it initially denied attending any meetings in New York relating to the *398 Project (Koo Decl. ¶ 10), POSEC now admits that it was represented by Mr. Pelaez Pier at the May 16 shareholders meeting (Supp. Koo Decl. ¶ 4). The minutes of the meeting clearly indicate that issues central to this litigation, including construction, engineering and quality problems at the Project, were discussed. (Marrone Dec., Ex. 13.) The minutes also clearly show that POSE C was present at the meeting, albeit through an agent. (Id.) POSE C argues, however, that its presence at the meeting does not provide a basis for personal jurisdiction because the single meeting does not rise to the level of transacting business for the jurisdictional analysis and further because Liberty Mutual's third-party complaint does not arise from this limited contact. As an initial matter, POSEC's view of Liberty Mutual's complaint, and the proper scope of this litigation are too narrow. POSEC argues that there can be no personal jurisdiction over POSEC in New York because Liberty Mutual's third-party claim is not sufficiently linked to the topics discussed at the meeting. According to POSEC, Liberty Mutual's third-party claims against POSE C are all "inexorably linked" to the Performance Bond issued by Liberty Mutual. (POSEC Reply at 8.) Because the Bond was not discussed at the May 16 meeting, POSE C contends that attendance at the meeting bears no relation to Liberty Mutual's third-party complaint. Id. This argument misses the mark. Liberty Mutual's potential liability on the Bond and POSEC's potential liability to Liberty Mutual hinge on the alleged breaches of the EPC Contracts. These alleged breaches, in turn, are closely related to the construction, engineering and quality problems discussed at the May 16 meeting. It follows that there is a substantial nexus between the May 16 meeting and Liberty Mutual's third-party complaint and that the meeting is clearly a relevant contact for the jurisdictional analysis. Nevertheless, POSEC is correct in asserting that its presence at the May 16 meeting is insufficient to show that it transacted business in New York. While the transacting business test has been interpreted to turn more on the quality rather than the quantity of contacts and New York law allows the assertion of personal jurisdiction based on a single transaction of business in New York, see Bank Brussels Lambert, 171 F.3d at 787; Premier Lending Servs., Inc. v. J.L.J. Assocs., 924 F.Supp. 13, 15 (S.D.N.Y.1996), POSEC's presence at the May 16 meeting does not establish the purposeful availment of the benefits and protections of New York law that section 302(a)(1) requires. Courts have been justifiably skeptical of attempts to assert personal jurisdiction over a defendant based on a single meeting in New York, especially where that meeting did not play a significant role in establishing or substantially furthering the relationship of the parties. See, e.g., Kahn Lucas Lancaster, Inc. v. Lark Int'l Ltd., 956 F.Supp. 1131, 1135-36 (S.D.N.Y.1997) (finding, in a contract dispute, that six meetings in New York characterized as progress reports or "courtesy calls" attended by defendant subsequent to formation of the contract did not confer personal jurisdiction over defendant); Premier Lending Servs., Inc., 924 F.Supp. at 17 (assigning only "slight relevance for jurisdictional purposes" to a meeting that occurred after execution of agreement and "essentially consisted of a brief progress report"); United States Theatre Corp. v. Gunwyn/Lansburgh Ltd. Partnership, 825 F.Supp. 594, 596 (S.D.N.Y.1993) ("When the visit ... is not for the purpose of initiating or forming a relationship, but is to alleviate problems under a pre-existing relationship, New York courts have declined *399 to assert jurisdiction."); General Instrument Corp. v. Tie Mfg., Inc., 517 F.Supp. 1231, 1232 (S.D.N.Y.1981) (finding that meetings held in New York subsequent to contract formation for the purpose of reaching a compromise to a performance dispute did not confer personal jurisdiction); cf. Ryan v. Allen, 1997 WL 567717 at *2 (S.D.N.Y.1997) (finding that shareholders meetings held in the United States by defendant foreign corporations did not meet the minimum contacts analysis necessary to satisfy the due process requirements for personal jurisdiction). For example, in United States Theatre Corp., plaintiff sought to recover for damage to a building located in Washington, D.C. from defendant, a Massachusetts company that owned an adjacent property in Washington. 825 F.Supp. at 595. According to plaintiff, the damage to its building was the result of improper demolition work on defendant's property. Id. Plaintiff sought to assert jurisdiction over defendant in the Southern District of New York based, in part, on a single meeting between the parties held in New York. Id. at 596. The Court, however, found that because the purpose of the New York meeting was to facilitate the planned demolition work in Washington and did not serve to form any business relationship in New York, it did not establish any purposeful availment of a New York forum. Similarly, in this case, the minutes of the shareholders meeting show that the discussion focused on the engineering, construction and financing problems of the Project, which, after all, was located in Venezuala. None of the parties to the EPC Contracts are New York citizens or residents, the EPC Contracts were not negotiated in New York, and Liberty Mutual has not alleged that any significant performance contemplated by the EPC Contracts occurred in New York. Viewed in light of these circumstances, the meeting was an isolated contact with New York, more fortuitous than purposeful. Moreover, while the parties did discuss important aspects of the Project, the meeting was more akin to a progress report; they did not substantially further their relationships with each other so as to establish New York as a proper forum for disputes relating to the Project. The fact that the EPC Contracts contain New York choice of law clauses does not tip the balance in favor of asserting jurisdiction. Although such clauses are "relevant in determining whether a nondomiciliary `transacted business' for [section 302(a)(1)] purposes," they are not dispositive. CutCo Indus., 806 F.2d at 365; Kahn Lucas Lancaster, Inc., 956 F.Supp. at 1136-37. Here, while the choice of law provisions of the EPC Contracts are relevant to Liberty Mutual's attempt to assert jurisdiction over POSE C on its third-party complaint, they do not carry enough weight enable Liberty Mutual to meet its burden. Cf. Premier Lending Servs., Inc., 924 F.Supp. at 17; Cedric Kushner Productions, 1994 WL 163992 at *4. Accordingly, POSEC's limited contacts with New York are insufficient to show that it transacted business in the state and POSEC is not subject to personal jurisdiction under New York's long-arm statute. Having found that the law of the forum state does not provide for personal jurisdiction, the Court need not address the issue of whether personal jurisdiction over POSEC in New York would comport with the requirements of due process under the federal Constitution. B. Motion to Transfer Venue As an alternative to dismissing PSE C from this action, Liberty Mutual argues that the Court should transfer the case to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). Under *400 that section, "[f]or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a) (2000). Liberty Mutual contends that such a transfer is appropriate because all of the parties to this action are subject to personal jurisdiction in Pennsylvania and the ability to litigate related claims in a single forum and avoid duplicative litigation substantially weighs in favor of transfer. Both POSVEN and POSE C oppose the motion to transfer on the grounds that POSE C is not subject to jurisdiction in Pennsylvania and the balance of convenience to the parties and witnesses and the interest of justice do not weigh in favor of transfer. In addition, POSE C argues that Liberty Mutual has not shown any "change in circumstances" justifying transfer and that the third-party complaint should be dismissed because Liberty Mutual was not diligent in investigating whether there was personal jurisdiction over POSE C in New York.[3] In order to obtain a transfer of venue, the moving party bears the burden of establishing *401 1) that the action is one that "might have been brought" in the district to which the movant seeks to have it transferred, and 2) that transfer is appropriate based on the convenience of the parties, the convenience of witnesses and the interests of justice. See Royal Ins. Co. of America v. Tower Records, Inc., 2002 WL 31385815 at *2 (S.D.N.Y.2002) (Leisure, J.); Lesser v. Camp Wildwood, 2002 WL 1792039 at *2 (S.D.N.Y.2002); Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 56 (S.D.N.Y.2001); Halliwell v. Moran Towing & Trans. Co., Inc., 1999 WL 258260 at *1 (S.D.N.Y.1999). In determining whether to transfer venue under section 1404(a), courts employ an "individualized, case-by-case consideration of convenience and fairness." Reliance, 155 F.Supp.2d at 56 (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)). This determination is subject to the sound discretion of the district court. Friedland v. Holiday Inns, Inc., 1989 WL 101942 at *1 (S.D.N.Y.1989) (Leisure, J.) (citing Golconda Mining Corp. v. Herlands, 365 F.2d 856, 857 (2d Cir.1966)). 1. The Action "Might Have Been Brought" in the Eastern District of Pennsylvania For the purposes of section 1404(a), an action might have been brought in another forum if, at the time the action was originally filed, the transferee court would have had subject matter jurisdiction and personal jurisdiction over the defendants, and if venue would have been proper in the transferee court. Schechter v. Tauck Tours, Inc., 17 F.Supp.2d 255, 258 (S.D.N.Y.1998); 17 James Wm. Moore et al., Moore's Federal Practice § 111.12 (3d ed.2003). The parties do not dispute, nor do there appear to be any grounds for disputing, that the Eastern District of Pennsylvania would have subject matter jurisdiction in this action or that venue is proper in that district. Furthermore, since defendant Liberty Mutual is headquartered in the Philadelphia area, within the Eastern District of Pennsylvania, it is clearly subject to personal jurisdiction there. The parties disagree, however, on whether third-party defendant POSEC is subject to personal jurisdiction in the Eastern District of Pennsylvania. The Court finds that personal jurisdiction could have been obtained over POSEC in Pennsylvania for the purposes of this action and, accordingly, that the action might have been brought there. Liberty Mutual claims that POSEC is subject to jurisdiction in the Eastern District of Pennsylvania under Pennsylvania's long-arm statute, 42 Pa. Cons. *402 Stat. Ann. § 5322 (2003), which provides for jurisdiction over persons "as to a cause of action or other matter arising from [their transacting] any business in this Commonwealth." Id. § 5322(a).[4] Transacting business in Pennsylvania includes, among other things, "the doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object." Id. § 5322(a)(1). Unlike New York's long-arm statute, the Pennsylvania statute extends jurisdiction over non-residents "to the fullest extent allowed under the Constitution of the United States" and authorizes jurisdiction "based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States." Id. § 5322(b). Thus, the first step in analyzing jurisdiction under section 5322 is to determine whether "the relationship among the defendant, the cause of action, and the forum falls within the `minimum contacts' framework first announced in International Shoe Co. v. Washington, [326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny]." Mellon Bank (East) PSFS, Nat'l Assoc. v. Farino, 960 F.2d 1217, 1221 (3d Cir.1992). In these cases, the Supreme Court has established that the Due Process Clause of the Constitution requires "fair warning that a particular activity may subject [an individual] to the jurisdiction of a foreign sovereign," Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (Stevens, J., concurring in judgment)), in order to "[give] a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that con duct will and will not render them liable to suit," id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). Importantly, "[w]here a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, this `fair warning' requirement is satisfied if the defendant has `purposefully directed' his activities at residents of the forum, and the litigation results from alleged injuries that `arise out of or relate to' those activities." Id. (quoting Keeton v. Hustler Magazine, 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Under this analysis, "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting business within the forum State, thus invoking the benefits and protections of its laws." Mellon Bank, 960 F.2d at 1221 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). Furthermore, "the defendant's conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there." Id. (quoting World Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. 559); see also Dayhoff, Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir.1996); LDM Systems, Inc. v. Russo, 1997 WL 431005 at *3 (E.D.Pa.1997); Eagle Traffic Control Inc. v. James Julian, Inc., 933 F.Supp. 1251, 1255 (E.D.Pa.1996). If a court determines that a defendant has sufficient minimum contacts in the forum state, it may then inquire "whether the *403 assertion of personal jurisdiction would comport with `fair play and substantial justice.'" Mellon Bank, 960 F.2d at 1222 (quoting Burger King, 471 U.S. at 476, 105 S.Ct. 2174). Thus, in appropriate cases, a court may consider. "the burden on the defendant, the forum State's interest in adjudicating the dispute; the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies,, and the shared interest of the several States in furthering substantive social policies." Id. (quoting Burger King, 471 U.S. at 477, 105 S.Ct. 2174). POSEC's contacts in Pennsylvania clearly meet this test. The record before the Court shows that POSEC maintained an office in Philadelphia with as many as seven employees from at least February 1997 through October 1997 for the purpose of performing engineering and procurement work under the EPC Contracts. POSEC paid rent to UEI for this office space and sent correspondence on POSEC letterhead with its Philadelphia office address. POSEC employees at the Philadelphia office took part in numerous meetings and communications with UEI and EOI representatives, as well as with subcontractors and vendors, relating to the Project and compiled various progress reports on POSEC's performance of the EPC Contracts. POSEC further maintained a liaison employee in Philadelphia through February of 1998. These contacts are more than sufficient to show that POSEC purposefully availed itself of the privilege of doing business in Pennsylvania and invoked the benefits and privileges of Pennsylvania's laws. Indeed, POSEC does not, dispute this issue, but instead argues that the cause of action in the Liberty Mutual's third-party complaint does not arise from these contacts, and thus there is no personal jurisdiction over POSEC in this action. As discussed above, see supra, section II.A., POSEC takes too narrow a view of the subject of this litigation. Under Pennsylvania law and the federal Constitution, specific personal jurisdiction over a particular defendant requires that the litigation "result[] from alleged injuries that `arise out of or relate to" the defendant's contacts with the forum state. Mellon Bank, 960 F.2d at 1222 (quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174). Here, POSEC's complaint seeks recovery on the Performance Bond for UEI's and EOI's alleged breaches of the EPC Contracts. In its third-party complaint Liberty Mutual states that it has a claim against POSEC because POSEC is jointly and severally liable to POSEC under the EPC Contracts for the alleged breaches. In addition, Liberty Mutual claims that these alleged breaches relate in substantial part to the performance of equipment supplied by POSEC under the EPC Contracts. Therefore, the subject of this action easily encompasses the performance and alleged breaches of the EPC Contracts. In turn, these issues clearly relate to POSEC's uncontested and substantial contacts in Pennsylvania. Put another way, POSEC's establishment of an office and performance of substantial portions of its obligations under the EPC Contracts in Philadelphia undoubtedly should have put POSEC on notice that it could be haled into court there in an action such as this one. Finally, none of the parties have argued that the fairness factors outlined above would change the analysis here; this is appropriate, as none of these factors would preclude personal jurisdiction over POSEC. Therefore, personal jurisdiction over POSEC in Pennsylvania in this action meets the requirements of Pennsylvania law and the federal Constitution, and the Court is satisfied that this action "might *404 have been brought" in the Eastern District of Pennsylvania. 2. Transfer is Appropriate Based on the Balance of Convenience and the Interests of Justice In balancing the convenience and fairness of a proposed transfer, courts in this Circuit are guided by the following factors: (1) the convenience of witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded to plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based upon the totality of the circumstances. E.g., Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 56-57 (S.D.N.Y.2001); Trehern v. OMI Corp., 1999 WL 47303 at *2 (S.D.N.Y.1999); Ouding v. Nat. R.R. Passenger Corp., 1994 WL 381437 at *1 (S.D.N.Y.1994) (Leisure, J.). The parties do not seriously contest the application factors (2) through (6) (the location of relevant documents and the relative ease of access to sources of proof, the convenience of the parties, the locus of the operative facts, the availability of process to compel attendance of unwilling witnesses, and the relative means of the parties) as they do not weigh in favor of either District in this case. The parties do, however, make arguments as to the convenience of the witnesses, the forum's familiarity with the governing law, the weight accorded to plaintiff's choice of forum, and trial efficiency and the interests of justice. As discussed below, none of these factors weigh heavily in favor of keeping this action in the Southern District of New York. In contrast, the ability to obtain personal jurisdiction over POSEC and to litigate POSVEN and Liberty Mutual's claims in the same action strongly favor transferring the case to the Eastern District of Pennsylvania. The Convenience of Witnesses: POSVEN argues that New York is a more convenient location for many of the witnesses in this case. It is true that, in many cases, the convenience of witnesses is the most significant factor in determining whether to transfer venue. See, e.g., Friedland v. Holiday Inns. Inc., 1989 WL 101942 at *1 (S.D.N.Y.1989). This, however, is not one of those cases. POSVEN lists twelve witnesses from Venezuela and one witness from Mexico, for whom it claims New York is more convenient than Philadelphia. In support of this assertion, POSVEN notes that New York's location, reputation, and ease of access make it more likely that non-party witnesses will voluntarily travel to this Court. This argument is unpersuasive. POSVEN has not offered any reason why travel from Venezuela and Mexico to Philadelphia is appreciably more inconvenient than traveling from those locations to New York.[5]*405 Thus, this factor does not weigh in favor of either District. The Forum's Familiarity with the Governing Law: POSVEN correctly points out that the EPC Contracts are governed by the law of the State of New York, and that this factor weighs against transfer. A forum's familiarity with the governing law, however, is one of the least important factors in determining a motion to transfer, especially where no complex questions of foreign law are involved. See Lesser v. Camp Wildwood, 2002 WL 1792039 at *6 (S.D.N.Y. 2002); Vassallo v. Niedermeyer, 495 F.Supp. 757, 760 (S.D.N.Y.1980). The parties have not indicated that any complex or novel issues of New York law are implicated here, and this Court is confident that the courts in the Eastern District of Pennsylvania are exceptionally competent in the application of New York law. Thus, this factor is accorded little weight. The Weight Accorded to Plaintiff's Choice of Forum: Similarly, little weight is accorded to POSVEN's choice of `the Southern District of New York as the forum for this action. Ordinarily, a plaintiffs choice of forum is given considerable weight. See Lesser, 2002 WL 1792039 at *3 (2002); Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F.Supp.2d 203, 208 (S.D.N.Y.1998); see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) (applying the common law doctrine of forum non conveniens). However, where, as here, the plaintiff has chosen a forum that is neither the district of its residence, nor the locus of the operative facts in the case, this choice is considerably less important. See Halliwell, 1999 WL 258260 at *1; Anadigics, Inc. v. Raytheon Co., 903 F.Supp. 615, 617 (S.D.N.Y.1995); Morales v. Navieras de Puerto Rico, 713 F.Supp. 711, 712-13 (S.D.N.Y.1989); Unico Indus. Corp. v. S.S. Andros City, 323 F.Supp. 896, 897 (S.D.N.Y.1971) (Weinfeld, J.) ("[P]laintiffs' claim that their selection of a forum is entitled to great weight is erroneous, particularly when no judicially recognized circumstances have been shown to exist which would justify that choice."); see also Iragorri v. United Tech. Corp., 274 F.3d 65, 70-73 (2d Cir.2001) (discussing the varying degrees of deference accorded plaintiffs choice of forum under the doctrine of forum non conveniens). POSVEN has not indicated any significant connection between this action and the Southern District of New York, other than the New York choice of law provisions in the EPC Contracts. POSVEN is a Venezuelan corporation, with its principal place of business in Venezuela. On the record before the Court, it appears that the locus of most of the operative facts is Venezuela as well. Indeed, to the extent that there is a connection between the facts underlying this action and the United States, the connection is much stronger in Philadelphia than New York. As noted above, POSEC performed significant amounts of procurement and engineering work under the EPC contracts in Philadelphia, while POSVEN engaged in extensive communications relating to the EPC Contracts with POSEC, as well as UEI and EOI, in Philadelphia. Under these circumstances, POSVEN's choice of a New York forum does not weigh heavily in the Court's determination. Trial Efficiency and the Interests of Justice: Liberty Mutual argues that the Court should transfer venue to the Eastern *406 District of Pennsylvania so that POSVEN's complaint and Liberty Mutual's third-party complaint can be resolved in the same action. Otherwise, if the Court were to dismiss POSEC from the case, Liberty Mutual would be forced file a new action against POSEC in the Eastern District of Pennsylvania. Liberty Mutual argues that such an action would be an unnecessary drain on the resources of the parties and the judiciary and might ultimately need to be consolidated with the current action to avoid the risk of inconsistent results. This is a strong argument, as it is well established that the ability to implead a third-party in the proposed transferee forum and thereby resolve related claims in a single action weighs heavily in favor of transfer. Halliwell, 1999 WL 258260 at *1; Ouding, 1994 WL 381437 at *1; Falconwood Fin. Corp. v. Griffin, 838 F.Supp. 836, 841-42 (S.D.N.Y. 1993) (Leval, J.); Vassallo, 495 F.Supp. at 761; Unico, 323 F.Supp. at 896-97. Transfer under such circumstances substantially advances the interests of fairness, efficiency and judicial economy by preventing duplicative proceedings and thereby reducing the overall burden on the parties, non-party witnesses and the judicial system. See, e.g., Falconwood, 838 F.Supp. at 842 ("Interest of justice' encompasses the private and public economy of avoiding multiple cases on the same issues."); Halliwell, 1999 WL 258260 at *1. POSVEN and POSEC, on the other hand, offer a variety of arguments to neutralize this consideration. POSVEN's arguments are as follows: 1) because discovery has been proceeding in this action for many months, transfer of venue would be inefficient; 2) POSVEN "understands" that the Eastern District of Pennsylvania has a longer backlog of cases than this Court (POSVEN Opp. at 8); 3) Liberty Mutual may have related claims against other non-parties, including EOI, UEI, and certain subcontractors, among others, so that Liberty Mutual has not established that all related claims can be litigated in this action; and 4) different witnesses and evidence may be relevant to the third-party complaint than will be required for POSVEN's claim against Liberty Mutual. POSEC argues 1) that Liberty Mutual, as a third-party plaintiff, must show a change in circumstance since the filing of its third-party complaint in order to justify a transfer, and 2) that transfer is not in the interests of justice because Liberty Mutual was not diligent in investigating whether POSEC was subject to personal jurisdiction in New York before filing its third-party complaint. Finally, both parties argue that regardless of the importance of allowing Liberty Mutual to implead POSEC in this action, the balance of the factors weigh in favor of denying the motion to transfer venue. POSVEN's position is essentially that transfer of this action would be inefficient. It's numerous arguments on this point, however, are unconvincing. First, although discovery has already begun, the case management plan approved by the Court in this action holds depositions in abeyance and provides for the extension of discovery deadlines until after POSEC has appeared. Moreover, Liberty Mutual did not unfairly delay bringing its third-party complaint or seeking transfer. Thus, the circumstances here are distinguishable from those cases where courts have declined to transfer because of prejudicial delays by the party seeking transfer. Cf., e.g., Lesser, 2002 WL 1792039 at *7. Most importantly, because there is substantial overlap between the issues to be litigated between the three parties, providing for transfer so that these issues can be litigated in one action rather than two will result in substantial efficiency gains that will far *407 outweigh the burden of having to include POSEC in any discovery that has already occurred. The opportunity to avoid duplicative litigation also outweighs POSVEN's unsupported claim that there is a larger backlog of cases in the Eastern District of Pennsylvania, especially in light of the fact that, were this Court to dismiss the claim against POSEC and decline to transfer venue, Liberty Mutual would likely bring a separate action against POSEC in that very district and face the same delay. The essential choice before the Court is whether to transfer the case to the Eastern District of Pennsylvania in order to allow the parties' rights and obligations under the EPC Contracts and the Performance Bond to be litigated in a single action or to dismiss the claim against POSEC, thus requiring Liberty Mutual to bring a separate action in Pennsylvania. Allowing the claims to be litigated in a single action is clearly the more efficient course and POSVEN's speculation that Liberty Mutual may have other causes of action relating to the Project or that Liberty Mutual's claims against POSEC may involve different witnesses and evidence does not change the analysis. The fact remains that Liberty Mutual's claims against POSEC are nonspeculative and they are based on the same EPC Contracts at the heart of POSVEN's claim against Liberty Mutual. While the evidence relevant to the parties' respective claims may not be identical, there will be substantial overlap. Enabling these related claims to proceed together is significantly more efficient than requiring that they be resolved in two separate actions. POSEC's arguments are also unpersuasive. While courts in this District have, at times, looked for changed circumstances to justify transferring venue when transfer is requested by the plaintiff who originally chose the forum, see Trehern v. OMI Corp., 1999 WL 47303 at *3 (S.D.N.Y.1999); Harem-Christensen Corp. v. M.S. Frigo Harmony, 477 F.Supp. 694, 698 (S.D.N.Y.1979); Harry Rich Corp. v. Curtiss-Wright Corp., 308 F.Supp. 1114, 1118 (S.D.N.Y.1969), a showing of changed circumstances is not required if transfer is in the interests of justice. See Corke, 572 F.2d at 80-81 (ordering transfer of venue requested by plaintiff because transfer was "in the interest of justice" but making no reference to any requirement that plaintiff show a change in circumstance); Atlantic Mutual Ins., 2003 WL 21756414 at *2; Anglo American Ins., 916 F.Supp. at 1329 ("The court may also grant a § 1404(a) motion by a plaintiff if the court believes that it would be in the interests of justice to do so, even if [plaintiff] can show no change in circumstances."); Gipromer v. SS Tempo, 487 F.Supp. 631, 632-33 (S.D.N.Y.1980); see also Spar, 956 F.2d at 394 (reviewing the district court's denial of plaintiffs motion to transfer venue under section 1406 and noting "we still believe that a district court should consider whether a transfer would be in the interest of justice and that we should afford the court's determination due deference"); Fresco, 595 F.Supp. at 1105. Because the Court finds that the ability to join POSEC in the transferee forum and avoid the burden and expense of duplicative actions is in the interest of justice, there is no need for Liberty Mutual to demonstrate a change in circumstances. Nor is this a case where Liberty Mutual, as third-party plaintiff, has shown a lack of diligence by bringing its third-party complaint in a district where there is no personal jurisdiction over the defendant. If a plaintiff has ignored a clear jurisdictional bar in filing suit in a particular forum, dismissal rather than transfer is often warranted, especially if the plaintiff is engaging in forum shopping or some *408 other form of gamesmanship. See Spar, 956 F.2d at 394-95 (finding that to allow transfer where plaintiff had ample opportunity to bring action within the applicable statute of limitations period but failed to do so "would reward plaintiffs for their lack of diligence in choosing a proper forum and thus would not be in the interest of justice" and furthermore would allow plaintiffs an unfair opportunity to forum shop); Feldman v. L & M Mowing, Inc., 1999 WL 284983 at *3 (E.D.N.Y.1999) ("[D]ismissal may be warranted where the plaintiff knowingly chooses the wrong forum or otherwise exhibits a lack of diligence."); Pares v. Gordon, 1992 WL 296437 at *2 (S.D.N.Y.1992) (dismissing case for lack of personal jurisdiction over defendant and denying motion to transfer where plaintiff's federal action was filed subsequent to dismissal of identical action for lack of personal jurisdiction in the Supreme Court of the State of New York and where, in spite of clear notice of the jurisdictional obstacle, plaintiff had failed to file in the proper forum prior to expiration of that forum's statute of limitations period). Liberty Mutual's third-party complaint and subsequent motion for transfer, however, do not raise any of these concerns. Although its argument for subjecting POSEC to personal jurisdiction in New York is ultimately not successful, it is also not incredible, nor does it ignore the type of clear jurisdictional bar that would call into question Liberty Mutual's motives or diligence.[6] The ability to obtain personal jurisdiction over POSEC in the Eastern District of Pennsylvania, therefore, remains an important consideration for the Court in determining whether to transfer venue. In contrast, no significant factors favor retaining this action in the Southern District of New York. POSVEN is not a resident of New York, none of operative facts occurred in New York, and the convenience of the parties and witnesses do not favor New York. Essentially, no significant connection exists between the instant action and this District, other than the EPC Contracts' choice of law provisions and the fact that the case was filed here. These minimal considerations are far outweighed by the prospect of litigating Liberty Mutual's claims against POSEC in the same action as POSVEN's claims against Liberty Mutual. Liberty Mutual's charge that POSEC is jointly and severally liable for the same breaches of the EPC Contracts for which POSVEN now seeks recovery from Liberty Mutual will obviously involve substantial overlapping evidence and allowing these claims to proceed together rather than separately will save the judicial system and the parties significant resources. The Supreme Court has instructed the lower courts that the purpose of section 1404(a) is "to prevent the waste `of time, energy and money' and `to protect litigants, witnesses and the public against *409 unnecessary inconvenience and expense.'" Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26, 27, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960)); see also Falconwood, 838 F.Supp. at 843 (transferring case to Tennessee to enable the joinder of a third party who was not subject to personal jurisdiction in New York even though the contract at issue between plaintiff and defendant contained a New York forum selection clause).[7] Given the importance of these considerations, the Court finds that transfer is appropriate based on the convenience of the parties and witnesses and the interests of justice. III. CONCLUSION For the foregoing reasons, third-party defendant POSEC's motion to dismiss is DENIED and defendant Liberty Mutual's motion to transfer is GRANTED. The Clerk of the Court is directed to transfer this case to the United States District Court for the Eastern District of Pennsylvania. SO ORDERED. NOTES [1] As opposed to the traditional bases for personal jurisdiction of presence, domicile and doing business, which confer "general jurisdiction," meaning that the claim asserted by the plaintiff need not have any relationship to activities of the defendant in New York, section 302 provides for "specific jurisdiction," meaning that the cause of action must arise out of or relate to the defendant's contacts with New York. See N.Y. C.P.L.R. §§ 301-302; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Where general jurisdiction is asserted, the claim need not arise out of the defendant's contacts with the forum state, but the contacts must be substantial; to assert specific jurisdiction, the claim must arise out of or relate to the defendant's contacts with the forum state, but the contacts need not be as substantial. See Burger King Corp., 471 U.S. at 472-73, 105 S.Ct. 2174; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Geller Media Management, Inc. v. Beaudreault, 910 F.Supp. at 137. Liberty Mutual does not assert, nor does there appear to be any basis for, general personal jurisdiction over POSEC in New York. [2] Liberty Mutual also argues that it is likely that POSEC's Philadelphia-based employees traveled back and forth to Korea via New York's Kennedy Airport and requests discovery on this question. The Court denies this request. Even if POSEC's employees did use Kennedy Airport when traveling between Philadelphia and Korea, it would not help establish personal jurisdiction in this case as these alleged contacts are not sufficiently purposeful nor sufficiently related to Liberty Mutual's claims to affect the jurisdiction analysis. [3] Although the parties have not contested the issue, it bears noting that the lack of personal jurisdiction over third-party defendant POSEC does not affect the Court's ability to transfer the case. In the Second Circuit, district courts may transfer an action "even if there is there is no personal jurisdiction over the defendants, and whether or not venue is proper in [the] district." Volk Corp. v. Art-Pak Clip Art Sen., 432 F.Supp. 1179, 1181 (S.D.N.Y.1977) (Weinfeld, J.); see also Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 80 (2d. Cir.1978) (Oakes, J.) (adopting Judge Weinfeld's statement of the law); Stein v. Microelectronic Packaging, Inc., 1999 WL 540443 at *7 (S.D.N.Y.1999); Saudi Computer Aided Translation Ltd. v. Weidner Communications Corp., 663 F.Supp. 1104, 1108 (S.D.N.Y. 1987) (Leval, J). This statement of the law had its genesis in Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962), which held that a district court lacking both personal jurisdiction and proper venue could transfer a case to a district where jurisdiction could be obtained and venue was proper under 28 U.S.C. § 1406(a), the section of the United States Code that provides for transfer in the interest of justice where a case is filed "laying venue in the wrong division or district." Relying substantially on Judge Weinfeld's Volk Corp. opinion, the Second Circuit extended this principle in Corke to cases where jurisdiction is lacking but venue is proper in the transferor court by reading section 1406(a) in conjunction with section 1404(a), the section that applies when venue is proper in the initial court. 572 F.2d at 80. The Court in Corke pointedly declined to elect between section 1406(a) and 1404(a) as the correct authority for transfer where jurisdiction is lacking over a defendant but venue is proper, but instead found such authority by reading the sections together and placing a "judicial gloss" on the statutory text. 572 F.2d at 80 n. 9. Since Corke, some courts in the Second Circuit considering this issue have continued to rely on both section 1404(a) and 1406(a) read together as providing authority for transfer where jurisdiction is lacking over a defendant in the transferor court, but venue is technically proper. See, e.g., Alexander & Alexander Inc. v. Donald F. Muldoon & Co., 685 F.Supp. 346, 348 (S.D.N.Y.1988); In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 257 F.Supp.2d 648, 649-50 (S.D.N.Y. 2003). The majority, however, have read Corke and Volk Corp. to authorize transfer under either section 1404(a) or section 1406(a) in such cases, see, e.g., SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179 n. 9 (2d. Cir.2000) (Newman, J.) ("[W]hether or not venue was proper, lack of personal jurisdiction could be cured by transfer to a district in which personal jurisdiction could be excercised, with the transfer authority derived from either section 1406(a) or section 1404(a)."); Spar, Inc. v. Information Resources, Inc., 956 F.2d 392, 394 (2d Cir.1992) (holding that tranfer pursuant to section 1406(a), notwithstanding proper venue in the transferor court, may be permitted in the interests of justice); Fresca v. Arnold, 595 F.Supp. 1104, 1105 (E.D.N.Y.1984) (McLaughlin, J.) ("It is of no consequence, however, whether plaintiff's reliance on § 1406(a), as opposed to the general transfer statute, 28 U.S.C. § 1404(a), is proper [as a] district court need not elect between the two sections ...."), so that it is appropriate to analyze the transfer issue solely under section 1404(a), see, e.g., Fort Knox Music, Inc. v. Baptiste, 257 F.3d 108, 111-112 (2d Cir.2001); Atlantic Mutual Ins. Co., Inc., v. CSX EXPEDITION, 2003 WL 21756414 at *2 (S.D.N.Y.2003); Hutton v. Priddy's Auction Galleries, Inc., 275 F.Supp.2d 428, 440 (S.D.N.Y.2003); Stein, 1999 WL 540443 at *7; Anglo American Ins. Group, P.L.C. v. CalFed, Inc., 916 F.Supp. 1324, 1329-30 (S.D.N.Y. 1996); B. Shackman & Co., Inc., v. Original Christmas Store, 1987 WL 16957 at *1 (S.D.N.Y.1987); Saudi Computer Aided Translation Ltd., 663 F.Supp. at 1108. Moreover, courts have recognized that if transfer pursuant to 1404(a) is appropriate, then a fortiori tranfer is appropriate under 1406(a), Matra Et Manurhin v. International Armament Co., 628 F.Supp. 1532, 1534 n. 2 (S.D.N.Y.1986), and that the crucial determination under either section is whether the proposed transfer is "in the interest of justice." In re Ski Train Fire, 257 F.Supp.2d at 650. As there is no allegation in this case that venue is improper in the Southern District of New York, the Court will analyze the transfer question under section 1404(a), keeping in mind, however, that the key inquiry under both 1404(a) and 1406(a) is whether transfer is in the interest of justice. [4] As was the case supra, with regard to personal jurisdiction in New York, Liberty Mutual does not assert any basis for general jurisdiction over POSEC and the facts before the Court do not show sufficient contacts for such jurisdiction. [5] Indeed, POSVEN's argument seems to suggest that the Court should take into account New York's desirability as a place to visit in determining whether to transfer venue. The Court is unaware of any case supporting such an argument and takes no position on whether Philadelphia or New York has a better "reputation" on this score. The Court notes, however, that Philadelphia has its own international airport, several professional sports teams, and a newly revitalized downtown shopping and dining district. More importantly, Philadelphia has played a unique and perhaps unrivaled role in our nation's history, having hosted the Continental Congress and the drafting of the Declaration of Independence and the United States Constitution, as well as having served as the Nation's capital from 1790 through 1800. Accordingly, the Court is satisfied that both Philadelphia and New York are accessible and reputable locations. [6] POSEC emphasizes a factual discrepancy between Liberty Mutual's third-party complaint, which alleged that POSEC representatives attended various meetings (plural) in New York relating to the Project and the EPC Contracts, and the argument in Liberty Mutual's opposition to POSEC's motion to dismiss, which rests largely on POSEC's attending a single meeting in New York. This discrepancy is of little consequence here, especially in light of the fact that, in its motion to dismiss, POSEC initially denied attending any meetings in New York relating to the Project. It was only after Liberty Mutual submitted the Declaration of Robert S. Marrone and the minutes of the May 16 meeting in support of its opposition to POSEC's motion, which made clear that POSEC indeed had a representative at the meeting in New York, that POSEC changed its position. As it appears both sides had some difficulty ascertaining the relevant jurisdictional facts, the Court declines to penalize either party for their respective miscalculations. [7] Transfer here also comports with the purpose behind Rule 14 of the Federal Rules of Civil Procedure, which permits defendants to implead third parties: "to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him and a judgment in his favor against the third-party defendant." Dery v. Wyer, 265 F.2d 804, 806-07 (2d. Cir.1959) (internal quotations omitted).

795 F.2d 90 254 U.S.App.D.C. 45, 6 Fed.R.Serv.3d 482,33 Cont.Cas.Fed. (CCH) 74,489 RANDOLPH-SHEPPARD VENDORS OF AMERICA, et al., Appellants,v.Caspar W. WEINBERGER, et al., Appellees.NATIONAL COUNCIL OF STATE AGENCIES FOR THE BLIND, et al., Appellants,v.Caspar W. WEINBERGER, et al., Appellees. Nos. 85-5149, 85-5150. United States Court of Appeals,District of Columbia Circuit. Argued Jan. 22, 1986.Decided June 13, 1986.As Amended July 30, 1986. 1 Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-3211, 84-3489). 2 Robert R. Humphreys, Clinton, Ky., for appellants. 3 Joseph E. DiGenova, U.S.Atty., with whom Royce C. Lamberth, R. Craig Lawrence, and Rebecca L. Ross, Asst. U.S. Attys., Washington, D.C., were on brief, for federal appellees. 4 Stephen N. Shulman, with whom Barry S. Spector and E. Charles Rowan, Jr., Washington, D.C., were on brief, for appellee, McDonald's Corp. 5 Morgan D. Hodgson with whom Frank B. Stilwell III, Washington, D.C., was on brief, for amici curiae Association for the Education and Rehabilitation of the Blind and Visually Impaired and the Affiliated Leadership League of and for the Blind of America. 6 William C. Gleisner, III, with whom David L. Nichols and David E. Sunby, Milwaukee, Wis., were on brief, for amicus curiae National Federation of the Blind. 7 Before MIKVA and BORK, Circuit Judges, and OBERDORFER, District Judge.* 8 Opinion for the Court filed by District Judge OBERDORFER. OBERDORFER, District Judge: 9 This appeal involves the proper interpretation of the Randolph-Sheppard Act (the Act), 20 U.S.C. Secs. 107-107f (1982), which requires that blind persons licensed by state agencies be given priority to operate vending facilities on federal property. Some of the appellants are organizations which represent blind vendors. Specifically these organizations are the Randolph-Sheppard Vendors of America, the National Council of State Agencies for the Blind, the American Council of the Blind, and Blinded Veterans Association, Inc. Another appellant is the National Council of State Agencies for the Blind (National Council). In contrast to the associations with blind vendors as members, the National Council's membership consists of state agencies which license blind vendors to operate facilities on federal property. Finally, there are two individual appellants. These individuals are Paul Verner, a blind vendor and the President of Randolph-Sheppard Vendors of America, and Jennings Randolph, a retired United States Senator and the primary sponsor of the Act.1 Appellants challenge two contracts awarded by the Secretary of Defense on the grounds that they were not made in accordance with the provisions of the Act. The first contract is to Burger King Corporation (Burger King) for the construction and operation of fast-food facilities on Army and Air Force bases. The second involves a similar contract award to McDonald's Corporation (McDonald's) for fast-food service on Naval bases. The challenges were originally separate actions, which were later consolidated by the District Court. Appellants brought suit against the Secretary of Defense, the Secretaries of the Army and Air Force, and certain Army and Air Force officials regarding the award of the Burger King contract, and against the Secretary of Defense, the Secretary of the Navy, and other Navy officials, regarding the award of the McDonald's contract. The Justice Department, acting as a neutral arbiter to resolve the differing stances of the Departments of Education and Defense, adopted the position of the Defense Department and opposed the complaints in the District Court and represents these individual appellees in this appeal.2 McDonald's was a defendant-intervenor in the District Court. It has filed a brief as appellee in this appeal. 10 Appellants appeal from the Memorandum Opinion and Order of the United States District Court for the District of Columbia, which granted summary judgment to defendants. Randolph-Sheppard Vendors of America v. Weinberger, 602 F.Supp. 1007 (D.D.C.1985) (Parker, J.). As to jurisdictional and jurisprudential concerns raised by the government, the District Court found that the associational plaintiffs with blind vendors,3 or state licensing agencies,4 as members had standing to bring the action, and that these plaintiffs were not required to pursue and exhaust their administrative remedies under the Act. Reaching the merits, the District Court granted summary judgment to defendants, concluding that: 11 [w]hile the Defense Department's apparent insensitivity to the plight of the blind vendors is deplored and there remain troublesome and vexing questions as to whether or not the Department has complied with the spirit of the law, the Court finds that the procurements complied with the minimum requirements of the letter of the Randolph-Sheppard Act. 12 602 F.Supp. at 1009. 13 For the reasons discussed below, we do not reach the merits because we conclude that while appellants had standing to sue, they failed to pursue and exhaust the mandatory administrative remedies. Accordingly, we vacate the judgment below and remand the case to the District Court with instructions to dismiss the action. I. A. 14 The Randolph-Sheppard Act was first enacted in 1936, and was amended twice, in 1954 and 1974. The purpose of the Act is to provide employment opportunities on federal property to blind vendors. S.Rep. No. 937, 93d Cong., 2d Sess. 5 (Sen. Report) (1974). The Act delegates to the Secretary of Education responsibility for interpreting and enforcing its provisions. The Commissioner of the Rehabilitative Services Administration, a subdivision of the Department of Education, is responsible for overseeing the detailed operation of the program. Id. at 3. The Act gives the Secretary responsibility for promulgating regulations to implement the Act. 20 U.S.C. Sec. 107(b). Specifically, the Act directs the Secretary to prescribe regulations to assure that: 15 (1) priority ... is given to ... licensed blind persons ..., and 16 (2) wherever feasible, one or more [blind] vending facilities are established on all Federal property to the extent that any such facility or facilities would not adversely affect the interests of the United States. 17 20 U.S.C. Sec. 107(b)(2). 18 The Secretary also administers the two-tiered system whereby blind vendors may apply to operate a vending facility on Federal property. Under this system, the Secretary designates state licensing agencies. The state licensing agencies then license blind vendors. 20 U.S.C. Sec. 107a(a)(5); 34 C.F.R. Sec. 395.7. State licensing agencies apply to federal agencies for permits to establish sites for their licensed blind vendors on federal property. 20 U.S.C. Sec. 107a(c); 34 C.F.R. Secs. 395.16, 395.35. 19 A dispute resolution system established by the Act is similarly two-tiered, and operates under the auspices of the Secretary. This system provides, as to blind vendors and state licensing agencies, respectively: 20 Any blind licensee who is dissatisfied with any action arising from the operation or administration of the vending facility program may submit to a State licensing agency a request for a full evidentiary hearing, ... If such blind licensee is dissatisfied with any action taken or decision rendered as a result of such hearing, he may file a complaint with the Secretary who shall convene a panel to arbitrate the dispute ..., and the decision of such panel shall be final and binding on the parties except as otherwise provided in this chapter. 21 .... 22 Whenever any State licensing agency determines that any department, agency, or instrumentality of the United States that has control of the maintenance, operation, and protection of Federal property is failing to comply with the provisions of this chapter or any regulations issued thereunder (including a limitation on the placement or operation of a vending facility ... and the Secretary's determination thereon) such licensing agency may file a complaint with the Secretary who shall convene a panel to arbitrate the dispute ..., and the decision of such panel shall be final and binding on the parties except as otherwise provided in this chapter. 23 20 U.S.C. Sec. 107d-1(a), (b). State licensing agencies thus have responsibility for enforcing the substantive provisions of the Act. The Secretary's responsibility is then to oversee arbitration which interprets and applies the Act and the regulations promulgated thereunder. Specifically, it is the Secretary's responsibility upon the filing of a complaint by a blind vendor or state licensing agency to: 24 convene an ad hoc arbitration panel ... [which] shall ... give notice, conduct a hearing, and render its decision which shall be subject to appeal and review as a final agency action. 25 20 U.S.C. Sec. 107d-2(a). 26 The substantive provisions of the Act place a number of obligations on federal agencies which maintain and control federal property. First, the Act provides: 27 Any limitation on the placement or operation of a [blind] vending facility based on a finding that such placement or operation would adversely affect the interests of the United States shall be fully justified in writing to the Secretary [of Education], who shall determine whether such limitation is justified. 28 20 U.S.C. Sec. 107(b). The Act defines "vending facility" as: 29 automatic vending machines, cafeterias, snack bars, cart services, shelters, [and] counters. 30 20 U.S.C. Sec. 107e(7). 31 Second, the Act requires that a newly acquired government building contain a satisfactory site for a blind vendor's facility or, if the new building is to be constructed or substantially altered, the plans for the construction or alteration include a satisfactory site for a blind vendor's facility. 20 U.S.C. Sec. 107a(d)(1). This section also requires a federal agency to "provide notice to the appropriate State licensing agency of its plans for occupation, acquisition, renovation, or relocation of a building adequate to permit such State agency to determine whether such building includes a satisfactory site or sites for a [blind] vending facility." Id. 32 A third section of the Act directs the Secretary of Education to promulgate regulations establishing a priority for blind persons in the awarding of contracts to operate cafeterias on federal property. 20 U.S.C. Sec. 107d-3(e). The regulations promulgated by the Secretary require that any government agency soliciting competitive bids for a cafeteria contract award it to a state agency representing blind persons if the state agency's proposal is for service that "can be provided at a reasonable cost, with a food of a high quality comparable to that currently provided employees." 34 C.F.R. Sec. 395.33(d). Under the regulations, "the appropriate State licensing agency shall be invited to respond to solicitations for offers when a cafeteria contract is contemplated." 34 C.F.R. Sec. 395.33(b). The regulations define a "cafeteria" as: 33 a food dispensing facility capable of providing a broad variety of prepared foods and beverages (including hot meals) primarily through the use of a line where the customer serves himself from displayed selections. A cafeteria may be fully automatic or some limited waiter or waitress service may be available and provided within a cafeteria and table or booth seating facilities are always provided. 34 C.F.R. Sec. 395.1(d).5 B. 34 Events leading to the filing of this action commenced on April 2, 1984, when the Army and Air Force Exchange Service solicited bids to establish franchised "fast food (specializing in hamburgers) facilities" on selected Army and Air Force bases worldwide. Joint Exhibit (J.A.) at 129 (filed April 25, 1985); Brief for Federal Appellees (Brief for Federal Appellees) at 3 (filed June 20, 1985). On June 5, 1984, the Navy Resale and Services Support Office solicited bids for "nationally recognized fast food hamburger organizations" to place their facilities on Naval Bases in the United States and abroad. Id. On May 15, 1984, the Army and Air Force Exchange Service awarded its contract to Burger King. On August 7, 1984, the Navy signed its contract with McDonald's.6 The Burger King contract authorizes the construction of as many as 185 franchised facilities during the five years after the contract award, twenty-four of which were to have been completed during 1985. The McDonald's contract calls for the construction and operation of a minimum of forty and a maximum of three hundred fast-food facilities. 602 F.Supp. at 1010. 35 Upon learning of the bid solicitations, appellants expressed their concern to the Secretary of Defense that if his departments awarded the contracts as planned, without complying with the provisions of the Act, "the Defense Department would be acting, or taking steps to act, in violation of the requirements of the Randolph-Sheppard Act". J.A. at 45 (Letter of Senator Randolph to Secretary of Defense Weinberger (June 27, 1984)). Specifically, the Defense Department had never submitted any element of either bid solicitation to the Secretary of Education for a determination as to whether the requirement that bidders provide nationwide fast-food service constituted a "limitation on the placement or operation of a blind vending facility" under 20 U.S.C. Sec. 107(b). 602 F.Supp. at 1011. Nor had the Defense Department complied with 34 C.F.R. Sec. 395.33, which requires that state licensing agencies be notified of, and blind persons receive priority in, competitive solicitations for cafeteria contracts. The Defense Department also had not consulted with the Secretary of Education to determine whether any state licensing agencies would be able to provide the type of food service contemplated, J.A. at 52 (Letter from Assistant Secretary for Special Education and Rehabilitative Services Will to Senator Randolph (Oct. 31, 1984)), thus potentially denying to blind vendors the opportunity to apply for a "priority" under the Act. 20 U.S.C. Sec. 107(b). There is also no indication in the record that the Defense Department, pursuant to 20 U.S.C. Sec. 107a(d)(1), notified state licensing agencies of its plan to acquire or renovate buildings to accommodate the fast-food facilities. 36 The Secretary of Defense responded to appellants' concerns as follows: 37 It has recently become clear that there is a strong demand by military families for the products of the leading national fast-food chains. As a result the military exchanges are making arrangements to provide these brand-name food items (e.g., McDonald's and Burger King) on either a direct franchise basis or pursuant to a concession contract.... 38 The Department of Education recently confirmed our understanding that, to their knowledge, none of the state licensing agencies are presently in a position to provide these nationally franchised items. 39 The Department of Defense fully and actively supports the Randolph-Sheppard program. We have claimed no exemption from the Randolph-Sheppard Act in conjunction with providing nationally known fast-food service. 40 J.A. at 47 (Letter from Secretary of Defense Weinberger to Senator Randolph (July 30, 1984)). 41 A number of Department of Education officials also expressed concern over the implications of the awards of the fast-food contracts under the Act. In a letter to one of the appellants, one of these individuals stated: 42 The Department has taken the position that the issuance of a request for proposal by a Federal entity which restricts applications only to fast-food concerns capable of operating in numerous States appears to impose a limitation on the placement of Randolph-Sheppard vending facilities. 43 J.A. at 48-49 (Letter from Commissioner for Special Education and Rehabilitative Services Conn to Director of Governmental Affairs Marshall (Sept. 13, 1984)). The Secretary of Education wrote to the Secretary of Defense to express his concern that the bid solicitations "may have failed to afford blind vendors an opportunity to be considered for the priority envisioned for them in the Act," J.A. at 50 (Letter from Secretary of Education Bell to Secretary of Defense Weinberger (Oct. 26, 1984)), and that: 44 the multi-State requirements of the [bid solicitations] at issue may constitute a limitation on the placement or operation of a Randolph-Sheppard facility that, under 20 U.S.C. 107(b), must be cleared in advance by the Secretary of Education. It is my understanding that those requirements were not submitted for clearance. 45 J.A. at 51. Finally, a letter from another Department of Education official contradicted the Secretary of Defense's representation that the Department of Education had verified that blind vendors lacked the ability to bid on the contracts at issue. Her letter stated that: 46 the Department of Education has made no determination about the ability of any State Licensing Agency to provide nationally franchised food items nor has the Department of Education approved a limitation under Section 1(b) of the Randolph-Sheppard Act or the associated regulations at 34 CFR 395.30(b) concerning the operation of cafeterias by blind vendors on Department of Defense property. Since no determinations have been made, the understanding of the Department of Education's position which Secretary Weinberger expresses in paragraph four of his July 30 letter is inaccurate. This misunderstanding might have been based on out of context conversations among lower level officials. 47 J.A. at 52 (Letter from Assistant Secretary for Special Education and Rehabilitative Services Will to Senator Randolph (Oct. 31, 1984)). 48 In addition to the statements by the Department of Education officials, the House Appropriations Committee concluded in September, 1984 that: 49 [i]nformation provided to the Committee indicates that the methods used by the Department in contracting for [the McDonald's] food service operation circumvented, if not the letter of the law, at least the spirit of the law. 50 H.Rep. No. 1086, 98th Cong., 2d Sess. 24 (1984). The Committee directed the Department of Defense to "review its policies concerning contracting out for food service to determine if those policies comply with the Randolph-Sheppard Act." Id. The Committee further required the Defense Department to "determine if every opportunity was given to the state licensing agents who represent blind vendors to bid for these contracts," and to file a report addressing these issues with the Committee before March 1, 1985. Id. Previously, in addressing the need for "strengthening of the [Randolph-Sheppard] program" through the 1974 amendments to the Act, the Senate Committee reviewing the proposed legislation had noted that "[c]ommanders of military installations are singularly insensitive to the need to develop the [Randolph-Sheppard] program." Sen. Report at 10. C. 51 After the signing of the McDonald's contract, appellants filed a bid protest with the General Accounting Office, which dismissed the protest on the basis that it had no jurisdiction over nonappropriated fund activity. J.A. at 130. No appellant sought arbitration under the Act. Instead, appellants filed complaints in federal District Court challenging both contract awards. Appellants sought a preliminary injunction pending resolution by the District Court on the merits. The District Court deemed resolution of the preliminary injunction issue unnecessary because the government agreed to stay further construction on most of the fast-food sites pending an expedited judicial decision on the merits. 602 F.Supp. at 1009. 52 In its Memorandum Opinion, the District Court first addressed the question of standing. The District Court found that the two individual plaintiffs, Senator Jennings Randolph, the sponsor of the Act, and Paul Vernor, a licensed blind vendor and President of the Randolph-Sheppard Vendors, lacked standing. According to the District Court, Senator Randolph's interest was only "in the proper execution of the law," and "amounts to a generalized grievance which is too intangible to confer standing." 602 F.Supp. at 1013 (citation omitted). The District Court also found the individual Paul Vernor to lack standing. The Court noted that although Vernor is a blind vendor who operates a cafeteria in Tampa, Florida, he had failed to allege specific injury, such as that he desires to run a fast-food operation or that his cafeteria business would be harmed by construction of a McDonald's or Burger King. Id. 53 As to the associational plaintiffs, the District Court found that those plaintiff associations which had blind vendors as members7 had standing based on affidavits indicating that blind vendors would provide fast-food services to the Department of Defense if they were contracted for on a smaller scale. Id. at 1014. The District Court also noted that the affidavit submitted by one organization from a blind vendor member who alleged that he would request an opportunity to operate a fast-food facility in Illinois if the state licensing agency had been able to bid for operations at an Illinois location strengthened that organization's standing claim. Id. 54 As to the National Council, a membership organization of state licensing agencies, the District Court noted that state licensing agencies are responsible under the Act for obtaining employment for the blind vendors on federal property. The Court then found that the inclusion of a requirement in the bid solicitation that the bidder have the capacity to provide nationwide fast-food service constituted "a perceptible and specific injury to the state agencies and the blind vendors they supervise." Id. at 1014 (citation omitted). The District Court thus found the same affidavits which established injury to the blind vendors to establish injury to the state licensing agencies and their representative organization, the National Council. The District Court found the claims of two groups which train blind persons for employment8 to be too attenuated to establish standing. Id. 55 On the issue of exhaustion, the Court recognized that "[i]t is unquestionable that at least one affected group--the state licensing agencies--could have sought administrative review of the procurement decisions by seeking arbitration from the Department of Education." Id. at 1015. The Court noted an apparent split of authority on whether arbitration under the Act is mandatory or permissive, but found it unnecessary to decide the issue because it found that arbitration would be futile. According to the Court, "The rights which the plaintiffs seek to vindicate would be lost in the absence of a speedy ruling, even if the Court were to rule in their favor on the merits. Thus, the pragmatic considerations of this case preclude the application of any arbitration requirement." Id. at 1015. 56 On the merits, the District Court construed the meaning of the terms "priority" and "limitation" under the Act. 20 U.S.C. Sec. 107(b). After analyzing the statutory language, the District Court concluded that "[t]he term 'priority' does not suggest an absolute right to receive a government contract, without regard to the contract criteria or the merits of the other bidders." Id. at 1017. The District Court thus found that the requirement in the Act that blind vendors receive a priority on federal property does not preclude the government from including conditions in its food service bid proposals which blind vendors cannot meet. The District Court then examined the term "limitation," and found that the bid solicitation provisions at issue did not constitute a "limitation on the placement or operation of a vending facility" so as to require the Defense Department to seek prior approval from the Secretary of Education. 20 U.S.C. Sec. 107(b). The District Court noted that it was "sympathetic to the plaintiffs' real concerns with the government procurement practices at issue in this litigation," but concluded that "[u]nder the present state of the law, the Court declines to hold the contracts invalid." 602 F.Supp. at 1019. D. 57 In this appeal, appellants claim that the District Court failed to recognize that the Defense Department's activities surrounding the contract awards to the fast-food chains violated four provisions of the Randolph-Sheppard Act: (1) that priority be accorded to blind vendors in operating vending facilities on federal property, 20 U.S.C. Sec. 107(b);9 (2) that any limitation by a federal agency on the placement or operation of a blind vending facility be submitted for determination by the Secretary of Education, 20 U.S.C. Sec. 107(b); (3) that all new or renovated buildings on federal property include a site for a blind vending facility, 20 U.S.C. Sec. 107a(d)(1);10 and (4) that appropriate State licensing agencies be notified when a building is acquired or renovated for the purpose of placing one or more blind vendors at a satisfactory site in the building. Id.; Brief for Appellants (Brief for Appellants) at 11 (filed April 25, 1985). Appellants also contest the role played by the Justice Department as arbiter between the Defense Department and the Department of Education. Appellants claim that both the Justice Department and the District Court failed to recognize the primacy given by Congress to the Department of Education in interpreting the Act. Finally, appellants claim that the District Court erroneously denied the two individual plaintiffs standing. 58 Appellees argue that appellants lack standing to bring this action because they have alleged no actual injury as a result of the contract awards at issue. Appellees also claim that because appellants have failed to follow the arbitration scheme established by the Act, their claims should not yet be reviewed in federal court. Appellees then support the District Court's decision on the merits arguing that the fast-food contracts at issue fall outside the Act and thus do not violate its provisions.11 They also claim that the Justice Department properly resolved the litigation dispute between the two government agencies in this matter. II. A. 59 Before reaching the merits of the controversy, we must resolve the serious jurisdictional and jurisprudential questions raised here and in the District Court.12 The District Court found the National Council to have standing as a representative of the state agencies, and the other associational plaintiffs to have standing on behalf of their blind vendor members. Appellees assert, correctly, that an association's standing depends upon a showing that its members would have standing to sue in their own right. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975). They then argue that no individual blind vendor or state agency would have standing because none has alleged a "concrete, perceptible harm of a real, non-speculative nature." North Carolina Utilities Commission v. Federal Energy Regulatory Commission, 653 F.2d 655, 662 (D.C.Cir.1981) (quoting Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708, 716 (D.C.Cir.1977)). They claim that to show such a perceptible harm, a blind vendor, or a state licensing agency on the blind vendor's behalf, must have applied for, and been denied, a permit to operate a vending facility on a military base because of the contract awards at issue. But, along with the claims that blind vendors were not granted the necessary priority under the Act is the claim that the Defense Department failed to notify state licensing agencies of newly acquired or renovated buildings as is required under the Act. 20 U.S.C. Sec. 107a(d)(1). Standing as to this issue does not depend on a showing that blind vendors, through a state licensing agency, applied for, and did not receive, a permit to operate a vending facility on a military base. The lack of notice alone constitutes a concrete injury under the Act which a state licensing agency would have standing to challenge. The National Council is an organization formed to protect the collective rights of state licensing agencies, and there is no indication that participation of individual state licensing agency members is required to adjudicate the notice issue. Thus, the National Council in its representational capacity has standing to protect the rights of its members under the Act. Hunt, supra, 432 U.S. at 343, 97 S.Ct. at 2441. 60 As to the claims that the contract awards deny blind vendors a "priority" and constitute a "limitation on the placement or operation of a vending facility" in contravention of the Act, 20 U.S.C. Sec. 107(b), at least the appellant organizations with blind vendors as members13 have standing to contest the awards. Appellants claim that the "priority" afforded blind vendors in the Act requires that blind vendors be "insulated from competition." Brief for Appellants at 19-20. Under this interpretation of the Act, blind vendors have standing to argue that the fast-food facilities would injure them by competing with existing blind vendors in violation of the Act. See J.A. at 77-78 (Affidavit of Donald H. Wedewer at paragraphs 5-7); J.A. at 81 (Affidavit of Richard Weidow at p 5). Because blind vendors would have standing to sue in their own right, those organizations with blind vendors as members have standing as their representatives to contest the contract awards. Hunt, supra, 432 at 343, 97 S.Ct. at 2441; Warth, supra, 422 U.S. at 511, 95 S.Ct. at 2211. Accordingly, we find that at least some appellants have standing to pursue this action.14 We find no need to pursue the question of standing further because we rest our decision to dismiss this action on other grounds. B. 61 In this case, no party pursued the grievance procedure set out in the Act. In fact, no state agency, the only entity which can seek arbitration over a perceived violation of the Act by a federal agency, 20 U.S.C. Sec. 107d-1(b), was even a plaintiff in the action. Consequently after oral argument on the appeal, we ordered the parties to file supplemental briefs on the following questions: 62 1. Is joinder of a state licensing agency, 20 U.S.C. Sec. 107(b) (1982), needed for just adjudication of this case? 63 2. Assuming joinder of a state licensing agency is needed but not feasible, should the action be dismissed? 64 Order (filed Jan. 23, 1986). No party15 argues that the action should be dismissed for failure to join a state licensing agency. The parties claim that the appellant National Council adequately represents the interests of its state licensing agency members.16 We find that absent joinder of a state licensing agency complete relief can be afforded all parties to this action, and that the nonjoinder of a state licensing agency will not result in prejudice to any party to this action or any nonparty state licensing agency. See 7 C. Wright & A. Miller, Federal Practice and Procedure p. 90 (1972); Ilan-Gat Engineers, Ltd., supra, 659 F.2d at 240-41. We thus decline to dismiss the action on nonjoinder grounds. C. 65 We now address the dispositive issue of exhaustion. In its analysis of the exhaustion requirement, the District Court noted "several difficult questions of interpretation," 602 F.Supp. at 1015, including the question of whether resort to arbitration is mandatory under the Act. The District Court compared several federal court decisions finding arbitration under the Act to be mandatory, Fillinger v. Cleveland Society for the Blind, 587 F.2d 336 (6th Cir.1978), reh'g denied, 591 F.2d 378 (6th Cir.1979); Massachusetts Elected Committee of Blind Vendors v. Matava, 482 F.Supp. 1186 (D.Mass.1980), with a Claims Court decision finding such arbitration not to be required. Texas State Commission for the Blind v. United States, 6 Cl.Ct. 730, 735 n. 12 (Ct.Cl.1984).17 The District Court determined, however, that it "need not consider the precise scope of the arbitration requirement," because "any resort to arbitration would have been futile." 602 F.Supp. at 1015. The sole basis for this finding of futility was that "an arbitration procedure under the Act would require considerable time to complete," approximately one and one-half years, id. at 1015 & n. 5, and plaintiffs' rights would be lost in the absence of a speedy ruling. 66 i. 67 We first examine the scope of the arbitration requirement.18 In establishing the grievance and arbitration procedure, the Senate Committee reviewing the 1974 amendments to the Act stated that "[i]t is the expectation of the Committee that the arbitration and review procedures adopted ... will provide the means by which aggrieved vendors and State agencies may obtain final and satisfactory resolution of disputes." Sen. Report at 20. The Act provides that "[a ]ny blind licensee who is dissatisfied with any action arising from the operation or administration of the vending facility program may submit to a State licensing agency a request for a full evidentiary hearing." 20 U.S.C. Sec. 107d-1(a) (emphasis added). The Act then specifically conditions resort to the Secretary on initial action by the state licensing agency, stating that "[i]f such blind licensee is dissatisfied with any action taken or decision rendered as a result of such hearing [at the state agency level], he may file a complaint with the Secretary who shall convene a panel to arbitrate the dispute...." Id. The statutory language regarding state licensing agencies is equally explicit, providing that "[w ]henever any State licensing agency determines that any [federal agency] ... is failing to comply with the provisions of this chapter or any regulations issued thereunder ... such licensing agency may file a complaint with the Secretary who shall convene a panel to arbitrate the dispute...." 20 U.S.C. Sec. 107d-1(b) (emphasis added).19 For both a blind licensee and a state agency, an arbitration decision is "final and binding on the parties except as otherwise provided in [the Act]." 20 U.S.C. Secs. 107d-1(a), (b). Finally, the Act provides for judicial review of the arbitration decision after "final agency action." 20 U.S.C. Sec. 107d-2(a). 68 The Act thus establishes a clear and explicit system for resolution of disputes arising under the Act. This dispute resolution system parallels the tiers of authority established by the Act. Under the substantive provisions of the Act, a blind person must apply for a license from a state agency. The state agency then applies to a federal agency for placement of the licensee. Similarly, under the dispute resolution scheme, a blind licensee must first apply to the state licensing agency before filing a complaint with the Secretary. As under the substantive provisions of the Act, a state licensing agency has direct resort to the Secretary under the dispute resolution system. Most telling as to Congress' intent, however, is its statement that an arbitration decision "shall be subject to appeal and review as a final agency action." 20 U.S.C. Sec. 107d-2(a). In contrast to de novo review, judicial review of final agency action is "severely circumscribed," requiring a reviewing court to determine whether a decision is within the ambit of the agency's discretion and supported by the record. Process Gas Consumers Group v. U.S. Department of Agriculture, 694 F.2d 728, 740 (D.C.Cir.1981), cert. denied, 461 U.S. 905, 103 S.Ct. 1874, 76 L.Ed.2d 807 (1983); see Citizens to Preserve Overton Park, supra, 401 U.S. at 416, 91 S.Ct. at 824 ("[T]he ultimate standard of review is a narrow one.").20 It is unlikely, after establishing a specific dispute resolution system and conditioning judicial review on a final agency action, that Congress contemplated that an aggrieved party could, whenever it chose, circumvent the system and seek de novo determination in federal court. Surely Congress contemplated that disputes between state agencies and government agencies could involve contract awards, such as the one at issue here. Congress nevertheless set up an arbitration scheme instead of authorizing direct resort to federal court. As Justice Brandeis stated the "well settled" rule: "where a statute creates a right and provides a special remedy, that remedy is exclusive." United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 465, 63 L.Ed. 1011 (1919) (citations omitted). Thus, where Congress has created an arbitration scheme as the administrative method for enforcing a statutory right, there is a strong presumption that it is exclusive. 69 Other courts that have examined the issue have found that Congress intended to make arbitration under the Act mandatory. According to the Court of Appeals for the Sixth Circuit: 70 Congress' decision to provide administrative and arbitration remedies for aggrieved blind vendors clearly evidences a policy judgment that the federal courts should not be the tribunal of first resort for the resolution of such grievances. Rather congressional policy as reflected in the 1974 amendments is that blind vendors must exhaust their administrative and arbitration remedies before seeking review in the district courts. 71 Fillinger, supra, 587 F.2d at 338; see Matava, supra, 482 F.Supp. at 1189 ("The conclusion reached by the Sixth Circuit in Fillinger is a sound one."). But see Texas State Commission, supra, 6 Cl. Ct. at 735 n. 12.21 Moreover, in an earlier decision, we indicated that we would be inclined to adopt this view. In Harris, supra, we noted that the Act and the regulations promulgated thereunder "set up an internal arbitration procedure for dispute resolution, culminating in judicial review of final agency action." 682 F.2d at 1368. It is a "long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers, supra, 303 U.S. at 50-51, 58 S.Ct. at 463-464 (footnote omitted); see McKart, supra, 395 U.S. at 193, 89 S.Ct. at 1662. Moreover, the policy of exhaustion "is particularly viable where an established scheme of decision making might be undermined by permitting circumvention of administrative procedures." Wallace v. Lynn, 507 F.2d 1186, 1190 (D.C.Cir.1974). Here, the Act establishes a statutory scheme for enforcing statutory rights. The "long settled rule of judicial administration," Myers, supra, 303 U.S. at 50, 58 S.Ct. at 463, should therefore apply. Absent a cognizable rationale for failing to pursue arbitration under the Act, appellants' action must be dismissed for failure to exhaust their administrative remedies. 72 ii. 73 Despite the general rule that exhaustion of administrative remedies is a predicate to judicial review, id., courts have developed exceptions to the exhaustion requirement in circumstances where "the reasons supporting the doctrine are found inapplicable." Committee for GI Rights, supra, 518 F.2d at 474; see Atlantic Richfield Co. v. U.S. Department of Energy, 769 F.2d 771, 781-82 (D.C.Cir.1984); Association of National Advertisers, Inc. v. FTC, 627 F.2d 1151, 1156 (D.C.Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980), modified on other grounds, Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984). The primary purpose of the exhaustion doctrine is to prevent "premature interruption of the administrative process." McKart, supra, 395 U.S. at 193, 89 S.Ct. at 1662; Athlone Industries v. Consumer Product Safety Commission, 707 F.2d 1485, 1488 (D.C.Cir.1983); Sterling Drug, Inc. v. FTC, 450 F.2d 698, 710 (D.C.Cir.1971). Specifically, it preserves the autonomy of the administrative agency by allowing it to exercise its expertise and discretion on appropriate matters. McKart, supra, 395 U.S. at 194, 89 S.Ct. 1662; Athlone Industries, supra, 707 F.2d at 1488; Sterling Drug, Inc., supra, 450 F.2d at 710. In this regard, the exhaustion requirement prevents parties from the "frequent and deliberate flouting of administrative processes [which] could weaken the effectiveness of an agency." Athlone Industries, supra, 707 F.2d at 1488 (quoting McKart, supra, 395 U.S. at 195, 89 S.Ct. at 1663). Requiring exhaustion of the administrative process also promotes effective and efficient judicial review by ensuring that such review is of a fully developed factual record, and undertaken with the benefit of the agency's exercise of discretion or application of expertise. McKart, supra, 395 U.S. at 194, 89 S.Ct. at 1662; Athlone Industries, supra, 707 F.2d at 1488. Finally, requiring exhaustion of administrative remedies promotes judicial efficiency in another way, since decision by the agency may obviate the need for a judicial decision on the issue. McKart, supra, 395 U.S. at 195, 89 S.Ct. at 1663; Athlone Industries, supra, 707 F.2d at 1488; Committee for GI Rights, supra, 518 F.2d at 474; Sterling Drug, Inc., supra, 450 F.2d at 710-11. 74 Professor Davis has noted the "unpredictability of what a court will do with an exhaustion question," commenting that exhaustion "is about as unprincipled as any subject on which judicial opinions are written can be." K. Davis, Administrative Law of the Seventies Sec. 20.07 (1976). In an effort to enhance both the predictability and principle behind exhaustion opinions, we examine the scope of the possible exceptions to the exhaustion requirement applied by the District Court. 75 The exception to the exhaustion requirement ostensibly applied by the District Court is where "any resort to arbitration would have been futile." 602 F.Supp. at 1015. As Professor Davis defines the exception, it applies where "following the administrative remedy would be futile because of certainty of an adverse decision." 3 K. Davis, Administrative Law Treatise Sec. 20.07 (1958) (emphasis added). The fact that an administrative agency lacks, or believes itself to lack, jurisdiction to act upon the dispute can make an adverse decision certain. See Weinberger v. Wiesenfeld, 420 U.S. 636, 641 n. 8, 95 S.Ct. 1225, 1230 n. 8, 43 L.Ed.2d 514 (1975); McNeese v. Board of Education, 373 U.S. 668, 674-76, 83 S.Ct. 1433, 1437-38, 10 L.Ed.2d 622 (1963); Montana National Bank of Billings v. Yellowstone County, 276 U.S. 499, 505, 48 S.Ct. 331, 333, 72 L.Ed. 678 (1928). An adverse decision can also be certain if an agency has articulated a very clear position on the issue which it has demonstrated it would be unwilling to reconsider. For example: 76 [w]hen an agency has committed itself not to change its rules unless judicially compelled to do so, has made known that its general views are contrary to those of the complainant, and has never given an inkling that it would consider a matter afresh, and when the regulations in question have received careful attention within and outside the agency, a complainant need not make a pro forma request that the agency redo its system. 77 Etelson v. Office of Personnel Management, 684 F.2d 918, 925 (D.C.Cir.1982) (footnotes omitted). In Etelson, we noted that the futility exception has been inconsistently applied and "is subject to abuse." Id. Thus, even where the futility of arbitration was supported by these circumstances, we declined to decide that "standing alone, the apparent futility [of obtaining administrative relief] would allow [appellant] to raise his claim here." Id. at 925-26. 78 In other cases applying the futility exception to the exhaustion requirement, we have adhered strictly to the view that, to invoke the futility exception, resort to arbitration must appear "clearly useless," either because the agency charged with arbitration has indicated that it does not have jurisdiction over the dispute, or because it has evidenced a strong stand on the issue in question and an unwillingness to reconsider the issue.22 Baxter, supra, 652 F.2d at 185; see Utah Power & Light Co. v. ICC, 747 F.2d 721, 729 (D.C.Cir.1984) ("[A]ny request for rehearing would be denied."), reh'g denied, 764 F.2d 865 (D.C.Cir.1985); Athlone Industries, supra, 707 F.2d at 1489 ("[I]t is highly unlikely that the [agency] would change its position if the case were remanded to it"); Committee for GI Rights, supra, 518 F.2d at 474 n. 20; National Resources Defense Council, Inc. v. Train, 510 F.2d 692, 703 (D.C.Cir.1974); see also Daedalus Enterprises, Inc. v. Baldridge, 563 F.Supp. 1345, 1350 (D.D.C.1983) ("[W]hen the agency has already made it abundantly obvious that it would not correct the error and would not conform its actions with the strictures of [the applicable statute], it would be meaningless to compel the hapless plaintiff to pursue further administrative remedies simply for form's sake."); Hotel and Restaurant Employees Union, Local 25 v. Smith, 563 F.Supp. 157, 161-62 (D.D.C.1983), summary judgment granted, 594 F.Supp. 502 (D.D.C.1984); Gemmell v. FAA, 558 F.Supp. 918, 920 (D.D.C.1982); Walters v. Secretary of Defense, 533 F.Supp. 1068, 1071-72 (D.D.C.1982), rev'd on other grounds, 725 F.2d 107 (D.C.Cir.1983), reh'g denied en banc, 737 F.2d 1038 (D.C.Cir.1984); Davis v. Bolger, 496 F.Supp. 559, 567 (D.D.C.1980); Feinberg v. Federal Deposit Insurance Corp., 420 F.Supp. 109, 114 (D.D.C.1976). The rule is that the exhaustion requirement may be waived in "only the most exceptional circumstances." Peter Kiewit Sons' Co. v. U.S. Army Corps of Engineers, 714 F.2d 163, 168-69 (D.C.Cir.1983) (quoting 4 K. Davis, Administrative Law Treatise Sec. 26:10 at 460 (1983)); see Association of National Advertisers, Inc., supra, 627 F.2d at 1156 ("In rare circumstances, this court has considered extraordinary prejudgment claims prior to final agency action."); Bristol-Myers Co. v. FTC, 469 F.2d 1116, 1118 (2d Cir.1972). Even the probability of administrative denial of the relief requested does not excuse a failure to pursue arbitration. Peter Kiewit Sons' Co., supra, 714 F.2d at 168-69; Spanish International Broadcasting Co. v. FCC, 385 F.2d 615, 626 (D.C.Cir.1967). Thus, administrative delay could meet the futility exception only where it appears that agency inaction is in reality a statement by the agency of its unwillingness to consider the issue. See Angel v. Pan American World Airways, Inc., 519 F.Supp. 1173, 1177 (D.D.C.1981) (finding the Civil Aeronautics Board's three year delay in acting upon plaintiff's petition to meet the futility exception), overruled on other grounds, Paralyzed Veterans of America v. Civil Aeronautics Board, 752 F.2d 694, 714 (D.C.Cir.), cert. granted, --- U.S. ----, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985); see also Smith v. Illinois Bell Telephone Co., 270 U.S. 587, 591, 46 S.Ct. 408, 409, 70 L.Ed. 747 (1926) (although not explicitly invoking the futility exception, finding that administrative remedies need not be exhausted where the agency "for a period of two years, remained practically dormant; and nothing in the circumstances suggest[ed] that it had any intention of going further with the matter."). 79 These definitions and applications of the futility exception to the exhaustion requirement are inconsistent with the District Court's application of the exception. Here, there has been no demonstration that the agency will certainly, or even probably, deny relief. The Secretary of Education did not disclaim jurisdiction over the controversy. In fact, the Secretary of Education and other members of the Department of Education repeatedly expressed concern over the legality of the procurements at issue. J.A. at 48-52 (letters from Department of Education officials). The government's position in this litigation is that of the Defense Department only because of an executive order which gives the Department of Justice the authority to resolve inter-agency litigation disputes. Exec. Order No. 12146, supra. Despite the government's chosen litigation stance, the Act specifically gives the Secretary of Education the authority to arbitrate disputes between state agencies and other federal agencies. 20 U.S.C. Sec. 107d-1(b). There is no reason to assume that the government's position in this litigation would inevitably prevail in arbitration. Consequently, there is no indication that resort to arbitration would be futile because of lack of jurisdiction of, or an unyielding position held by, the agency. 80 There exist two other commonly recognized exceptions to the exhaustion requirement. The first of these is where administrative remedies are inadequate. McNeese, supra, 373 U.S. at 674-76, 83 S.Ct. at 1437-38; Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070, 1081 (D.C.Cir.1978); Wallace, supra, 507 F.2d at 1190. The futility exception to the exhaustion requirement is actually a subpart of the inadequate remedy exception, since if resort to the administrative process is futile, the agency obviously will not provide adequate relief. Although the two exceptions may in some circumstances overlap, the concepts are distinct. "Futile" means "completely ineffective." Webster's New Collegiate Dictionary 468 (1977). "Inadequate" means "not ... lawfully and reasonably sufficient." Id. at 14, 578. We thus distinguish the two exceptions for the sake of conceptual clarity. Resort to the administrative process is futile if the agency will almost certainly deny any relief either because it has a preconceived position on, or lacks jurisdiction over, the matter. The administrative process is inadequate where the agency has expressed a willingness to act, but the relief it will provide through its action will not be sufficient to right the wrong. It is important to distinguish between these two concepts because the inquiries under the two exceptions differ. Under the futility exception a court must look to the agency's intentions regarding its position on the relevant issue and its statutory authority. When determining whether a remedy will be adequate, a court must consider all potential methods at the agency's disposal to remedy a violation if one is found. 81 The other exception to the exhaustion requirement is where irreparable injury would result unless immediate judicial review is permitted. See Utah Fuel Co. v. National Bituminous Coal Commission, 306 U.S. 56, 59-60, 59 S.Ct. 409, 410-11, 83 L.Ed. 483 (1939); First Jersey Securities, Inc. v. Bergen, 605 F.2d 690, 696-97 (3d Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980); Sears Roebuck & Co. v. NLRB, 473 F.2d 91, 93 (D.C.Cir.1972), cert. denied, 415 U.S. 950, 94 S.Ct. 1474, 39 L.Ed.2d 566 (1974). Like the concepts of futility and inadequate remedy, the concepts of inadequate remedy and irreparable injury overlap in some senses, but nevertheless should remain conceptually distinct. As we have previously observed, in a statement which remains theoretically sound: 82 In one sense, of course, the inadequate remedy requirement is indistinguishable from the irreparable injury requirement. The very thing which makes an injury "irreparable" is the fact that no remedy exists to repair it.... [H]owever, the irreparable injury rubric is intended to describe the quality or severity of the harm necessary to trigger equitable intervention. In contrast, the inadequate remedy test looks to the possibilities of alternate modes of relief, however serious the initial injury. 83 Bannercroft Clothing Co. v. Renegotiation Board, 466 F.2d 345, 356 n. 9 (D.C.Cir.1972), rev'd on other grounds, 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974), vacated, 495 F.2d 1074 (D.C.Cir.1974). 84 The District Court appears to have found that the case before it met both the inadequate remedy and irreparable injury exceptions to the exhaustion requirement. The District Court based its decision to waive the exhaustion requirement on "pragmatic considerations." 602 F.Supp. at 1015. Reading between the lines, it appears that the District Court found first, that appellants would suffer irreparable injury if the relief of full rescission of the disputed contracts were not available after the administrative process. Second, the District Court appears to have found that the arbitration process would be inadequate because the Secretary would be unable to rescind the contracts in their entirety. We address these implicit findings in turn. 85 The usual time and effort required to pursue an administrative remedy does not constitute irreparable injury.23 Renegotiation Board v. Bannercroft Clothing Co., 415 U.S. 1, 24, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123 (1974); Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 952, 39 L.Ed.2d 166 (1974); Myers, supra, 303 U.S. at 51-52, 58 S.Ct. at 463-464; Sears Roebuck & Co., supra, 473 F.2d at 93. Absent a "clear showing of irreparable injury" on some additional basis, the "failure to exhaust administrative remedies serves as a bar to judicial intervention in the agency process." Renegotiation Board, supra, 415 U.S. at 24, 94 S.Ct. at 1040; see Myers, supra, 303 U.S. at 51-52, 58 S.Ct. at 463-465; Sears Roebuck & Co., supra, 473 F.2d at 93. Only under extraordinary circumstances will administrative delay lead to a "clear showing of irreparable injury." Renegotiation Board, supra, 415 U.S. at 24, 94 S.Ct. at 1040. The Supreme Court found administrative delay by a state commerce commission to result in irreparable injury where: 86 the commission, for a period of two years, remained practically dormant; and nothing in the circumstances suggests that it had any intention of going further with the matter. For this apparent neglect on the part of the commission, no reason or excuse has been given. 87 Smith, supra, 270 U.S. at 591, 46 S.Ct. at 409. But, in Smith, the facts cited to demonstrate administrative delay could in fact have supported a finding of futility, since the Court found no indication that the commission intended to fulfill its administrative responsibilities. Moreover, the Smith Court found that the injury threatened was of constitutional magnitude--the taking of property without due process of law. According to the Court: 88 Property may be as effectively taken by long-continued and unreasonable delay in putting an end to confiscatory rates as by an express affirmance of them; and where, in that respect, such a state of facts is disclosed as we have here, the injured public service company is not required indefinitely to await a decision of the rate-making tribunal before applying to a federal court for equitable relief. 89 Id. at 591-92, 46 S.Ct. at 409-10. The Supreme Court's decision in Smith thus established only a narrow circumstance in which waiver of the exhaustion requirement is appropriate due to administrative delay. 90 Here, there is no evidence of unusual delay in the administrative process or of neglect on the part of the agency. Moreover, the right at issue is statutory, and denial of the right appears to threaten only economic injury. Economic loss does not, in and of itself, constitute irreparable harm. Sampson, supra, 415 U.S. at 90, 94 S.Ct. at 952; Wisconsin Gas Co. v. Federal Energy Regulatory Commission, 758 F.2d 669, 674 (D.C.Cir.1985); Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958) ("The 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."). Also, because the right at issue is created by statute, there is a strong presumption that the statutory dispute resolution mechanism should be followed. See, e.g., Babcock, supra, 250 U.S. at 331, 39 S.Ct. at 465. In fact, the statutory dispute resolution mechanism is properly viewed as part and parcel of the right granted appellants under the Act. By creating such a statutory arbitration scheme, Congress must have contemplated that with the benefit of the statutory right, appellants should accept the relative burden of an administrative, as opposed to an immediate judicial, remedy. Absent clear evidence that the right granted under the statute will be lost without judicial intervention, a court should be loath to disturb this balance. 91 There is also a substantial question as to whether a speedy judicial ruling on the merits was, or is, even necessary to preserve appellants' statutory rights. In this analysis, the irreparable injury inquiry merges into the question of whether there exists an adequate administrative remedy, because appellants' threatened injury will not be "irreparable" if there "exists [a remedy] to repair it." Bannercroft Clothing Co., supra, 466 F.2d at 356 n. 9. That is, where the exhaustion requirement affects "only the timing, [and] not the effectiveness of judicial review," a waiver of the requirement is not justified. First Jersey Securities, Inc., supra, 605 F.2d at 697 (quoting Barnes v. Chatterton, 515 F.2d 916, 921 (3d Cir.1975)). 92 First, it is not clear that invalidation of the contracts would be impossible after an arbitration proceeding. Congress contemplated that "[i]f a Federal agency is found in violation of the Act or [a] regulation, its head shall cause such violations to be terminated, and shall take such other action as [is] necessary to carry out the panel's decision." Sen. Report at 29. Thus, the Secretary of Education has broad remedial powers under the Act. Even assuming, however, that invalidation of the contracts would be impossible once construction of the fast-food facilities were underway, it appears that other remedies available to the Secretary of Education could provide appellants with full relief. Most fundamentally, there appears at this preliminary stage to be no reason why the Secretary could not provide the same, or similar, expedited consideration of the merits as did the District Court. Furthermore, even if the Secretary did not provide comparable expedited consideration, his authority under the Act to provide post hoc remedies is broad. See 20 U.S.C. Sec. 107d-2. Without attempting to preempt the administrative process or prejudge the product of it, a review of some possible remedies suggests that appellants could well receive adequate relief after arbitration. As to appellants' complaints regarding notice, it is alleged without contradiction that this violation, if it is one, has already occurred. It thus appears that expedited consideration of this alleged violation of the Act could not provide appellants with greater relief than could a nonexpedited proceeding. If a violation is found, it may well be that the Secretary can provide prospective relief as to future similar contract solicitations or building acquisitions or renovations. If he finds that the lack of notice here resulted in injury under the Act, the Secretary ought to be able to fashion an appropriate remedy, e.g., require the Defense Department to afford a blind vendor an opportunity at some, or all, sites. As to the alleged violations of the "priority" and "limitation" provisions of the Act, 20 U.S.C. Sec. 107, if a violation is found, the Secretary might well be able to require the government entities to place blind vendors somewhere on the entire property at issue, or require the specific buildings at issue to contain a satisfactory site for a blind vendor. Moreover, the McDonald's fast-food facilities are franchised and the Burger King facilities are actually operated by Army and Air Force personnel. Very possibly the Secretary could require that blind persons be franchised to operate, or at least be employed, at some or all of the facilities. If such remedies were employed by the Secretary after an arbitration proceeding, and approved on review, a wholesale invalidation of the contracts might not be necessary to compensate appellants for injury suffered under the Act. Consequently, a speedy ruling on the merits may not have been, or be, essential to remedy any violations of statutory rights found after arbitration to have been committed. 93 Even assuming that invalidation of the contracts in their entirety were necessary to preserve appellants' rights under the Act, an expedited judicial decision on the merits was not the appropriate method for a federal court to guarantee this relief. Instead of seeking a decision on the merits, appellants should have sought a stay or an injunction against the contract awards pending arbitration. Fed.R.Civ.P. 65(a); see Train, supra, 510 F.2d at 703; M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1305 (D.C.Cir.1971); Wheelabrator Corp. v. Chafee, 455 F.2d 1306, 1316-17 (D.C.Cir.1971). The action was in fact before the District Court on plaintiffs' motion for a preliminary injunction. The preliminary injunction, however, was sought pending judicial decision, not arbitration. The government agreed, absent a court order, to halt ongoing construction on the majority of the fast-food facilities pending an expedited decision on the merits by the District Court. 602 F.Supp. at 1009. The District Court thus declined to decide the preliminary injunction issue in favor of reaching an immediate final decision on the merits. 94 The preliminary injunction inquiry, however, is delicately balanced to avoid a hasty judicial decision on the merits, while protecting the parties' rights from irreparable injury. WMATC v. Holiday Tours, Inc., 559 F.2d 841, 842-43 (D.C.Cir.1977); Virginia Petroleum Jobbers Association, supra, 259 F.2d at 925. In the context of an administrative process, this inquiry is especially important because only in "exceptional circumstances," Peter Kiewit and Sons', supra, 714 F.2d at 168-69, should a court allow the parties to circumvent an administrative process in favor of a judicial decision. 95 In deciding whether to grant a preliminary injunction, a court must consider: (1) whether plaintiff is likely to prevail on the merits; (2) whether plaintiff has shown that he will suffer irreparable injury absent interim relief; (3) whether injunctive relief would significantly harm other interested parties; and (4) whether the public interest would be served by granting or denying preliminary relief. Holiday Tours, Inc., supra, 559 F.2d at 843; Virginia Petroleum Jobbers Association, supra, 259 F.2d at 925. Thus in this case, had the parties sought a preliminary injunction pending arbitration, decision on the motion would have been under the same irreparable injury standard applied by the District Court in determining not to require exhaustion. Id. Instead of justifying waiver of the exhaustion requirement, the same finding that appellants' rights would be lost absent a speedy ruling may well have justified an injunction against the contract award pending arbitration. The standard for determining whether to grant a preliminary injunction, however, specifically requires a court to consider not only the harm threatened to the plaintiffs, but the likelihood of plaintiffs' success on the merits, and the relative harms to the parties and the public interest from granting or denying the motion. These additional facets of the preliminary injunction inquiry ensure that its purpose is fulfilled--safeguarding appellants' rights with the least possible intrusion on the administrative process. 96 Here, the District Court found that appellants were unlikely to prevail on the merits as to their broad interpretation of the Act.24 Under a preliminary injunction analysis, this finding would modify the District Court's presumption that appellants would suffer irreparable injury pending arbitration. That is, a finding that appellants were unlikely to prove that their substantive rights had been violated would have meant that they probably would not suffer irreparable injury pending a decision on the merits. Moreover, the District Court appeared to contemplate that the Defense Department would suffer substantial harm were construction on the contracts stayed for any significant length of time. Thus, the balance of factors as it appeared to the District Court may well have caused it to deny the preliminary injunction. Yet, even by denying the preliminary injunction, the purpose of the inquiry is fulfilled. By focusing its inquiry on the merits on appellants' likelihood of success in the administrative process, the District Court would have avoided a final judicial determination of the merits and thus would have preserved appellants' right to full administrative consideration of the controversy. 97 The most important result of a merits inquiry which focused only on appellants' right to a preliminary injunction would have been to preserve the role of the Secretary of Education under the Act. Congress explicitly charged the Secretary of Education with interpreting and administering the Act. 20 U.S.C. Secs. 107, 107d-1(a), (b). The strong policy concerns which support the exhaustion requirement, see, e.g., McKart, supra, 395 U.S. at 193-95, 89 S.Ct. at 1662-63; Athlone Industries, supra, 707 F.2d at 1488; Committee for GI Rights, supra, 518 F.2d at 474, dictate that a court should defer this dispute to the agency charged with the Act's administration. Because a primary component of the relief requested by appellants is an interpretation of the statute at issue which will bind future contract solicitations, it is especially important that the Secretary of Education "be given the first chance ... to apply [his] expertise." McKart, supra, 395 U.S. at 194, 89 S.Ct. at 1663. Resolution of this controversy requires factual development as to the nature of the Defense Department's actions and as to how these particular actions relate to the requirements of the statute and regulations. The scope of the statute and the regulations promulgated thereunder should, in the first instance, be one for the agency charged with its administration. League of United Latin American Citizens v. Hampton, 501 F.2d 843, 847 (D.C.Cir.1974). Judicial review could then be of a fully developed and reasoned agency decision, and agency decision could narrow the issues necessary for a court to consider. Id. Moreover, appellants could well obtain the relief they seek at the agency level, potentially obviating the need for judicial review. In fact, appellants may find that decision by the agency with specific expertise in administering the Act, even though through a more time-consuming process, may provide them with more solid and sure relief than expedited consideration in federal court. 98 * * * 99 * * * 100 Appellants have failed to demonstrate adequate grounds upon which the requirement that they exhaust their administrative remedies should be waived. Accordingly, the District Court was in error in reaching the merits of the case. This Court will vacate the District Court's grant of summary judgment for defendants and will remand to the District Court with an order to dismiss the action without prejudice to any party pursuing the arbitration procedure contemplated by the Act and thus ultimately being entitled to judicial review of the arbitration decision as a final agency action. Such dismissal should also be without prejudice to any party, in an appropriate circumstance, applying for a preliminary injunction pending arbitration. * Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. Sec. 292(a) 1 Two groups were plaintiffs in the District Court and have filed an amicus curiae brief in this Court: the Affiliated Leadership League of and for the Blind of America, and the Association for the Education and Rehabilitation of the Blind and Visually Impaired. Another group, the National Federation of the Blind, was not a plaintiff in the District Court, but has filed an amicus curiae brief in this appeal 2 According to the Justice Department, its position as neutral arbiter is justified by federal statute and executive order. The federal statute provides: Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefore, is reserved to officers of the Department of Justice under the direction of the Attorney General. 28 U.S.C. Sec. 516; see J.A. at 133. The executive order provides: Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to the Attorney General. Exec.Order No. 12146, 44 Fed.Reg. 42,657, 42,658 at p 1-40 (1979). 3 These are the Randolph-Sheppard Vendors of America, the National Council of State Agencies for the Blind, the American Council of the Blind, and Blinded Veterans Association, Inc 4 This is the National Council 5 A fourth requirement of the Act, not at issue in this litigation, regards vending machine income. 20 U.S.C. Sec. 107d-3 6 The McDonald's contract provides for franchised fast-food facilities. Under the Burger King contract, the Army and Air Force will operate the facilities directly, using their own buildings, supplies, equipment and personnel. Brief for Federal Appellees at 3-4 7 These are the Randolph-Sheppard Vendors of America, the National Council of State Agencies for the Blind, the American Council of the Blind, and Blinded Veterans Association, Inc 8 These are the Affiliated Leadership League of and for the Blind of America, and the Association for the Education and Rehabilitation of the Blind and Visually Impaired 9 Appellants claim first that the fast-food facilities should be considered "cafeterias" under the Act and thus be subject to the strict priority provisions of 34 C.F.R. Sec. 395.33. Appellants primarily argue, however, that even if the fast-food facilities do not constitute "cafeterias" under the Act, they are "vending facilities" and for this reason the Defense Department bid solicitations and contracts violate the other provisions of the Act 10 This claim was not raised in the District Court and thus will not be considered in this appeal 11 Appellee McDonald's argues extensively that its fast-food facilities do not fall within the definition of "vending facility" under the Act. The grounds for this argument of McDonald's is not the range of food served, since in addition to the more limited "snack bars, cart services, shelters, [and] counters," 20 U.S.C. Sec. 107e(7), "vending facility" includes "cafeterias" which serve "a broad variety of prepared foods and beverages." 34 C.F.R. Sec. 395.1(d). McDonald's distinguishes its facilities from those covered by the Act on the basis of the volume and complexity of the food service. According to appellee: In contrast to a stand, counter, snack bar, or even a cafeteria, a fast-food restaurant is far more complex and serves a much greater number of customers. Unlike the listed facilities, a fast-food restaurant is designed for very high turnover, requiring, among other things, close management control of food production to minimize the "throw-away" factor. A fast-food hamburger restaurant is also a much larger, more expensive operation. Whereas the listed facilities are of a type suitable to serve a portion of the employee population of a federal building, a McDonald's restaurant is suited to serve the population at large in an entire community. .... ... There can be little doubt that Congress intended that the vending facilities operated by blind vendors would not include expensive, complex, high turnover, fast-food restaurants. Brief for Appellee, McDonald's Corporation at 16-18 (filed June 5, 1985) (footnotes omitted). 12 Both the issues of joinder and exhaustion as presented in this action are jurisprudential concerns. See Ilan-Gat Engineers, Ltd. v. Antigua International Bank, 659 F.2d 234, 240 (D.C.Cir.1981) (joinder); I.A.M. National Pension Fund Benefit Plan C v. Stockton Tri Industries, 727 F.2d 1204, 1208 (D.C.Cir.1984) ("Only when Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision ... has the Supreme Court held that exhaustion is a jurisdictional prerequisite.") 13 These are the Randolph-Sheppard Vendors of America, the National Council of State Agencies for the Blind, the American Council of the Blind, and Blinded Veterans Association, Inc 14 The Act places responsibility for seeking arbitration as to violations of the Act, including limitations on the placement or operation of blind vending facilities, with state licensing agencies. 20 U.S.C. Sec. 107d-1(b). After arbitration, a state licensing agency would have standing to seek judicial review of the arbitral decision. 20 U.S.C. Sec. 107d-2(a). Because of the statutory responsibility of state licensing agencies to enforce the rights of their blind licensees, the National Council, as representative of state licensing agencies, may also have standing to argue that the Defense Department's actions violate the substantive provisions of the Act 15 Three parties responded to the supplemental order: appellants, and both appellees, the government and McDonald's 16 According to the government: [T]o the extent that this Court is reviewing the purely legal question of whether the contract provisions constitute a limitation on the operation or placement of a vending facility, the SLAs' [state licensing agencies'] interest would be protected. And, since the SLAs are the only entity to be able to challenge a limitation through arbitration, the government would not be subject to inconsistent obligations because SLAs (in privity with the National Council) would be bound by the determination reached in this case. Supplemental Brief for Federal Appellees at 9 (filed Feb. 5, 1986) (footnotes omitted). Appellees continue to claim, however, that the District Court should not have found the National Council to have standing, because no member state agency could demonstrate that it applied to place a blind vendor and was rejected because of one of the contracts at issue. Id. at 13 ("[T]he 'problem' in this case is the lack of sufficient allegations of harm, not the failure to join a necessary party."). Absent standing, argue appellees, the Court should not reach the question of joinder. Coast v. Hunt Oil Co., 195 F.2d 870, 872 (5th Cir.), cert. denied, 344 U.S. 836, 73 S.Ct. 46, 97 L.Ed. 651 (1952). 17 The District Court also cited Randolph-Sheppard Vendors of America, Inc. v. Harris, 628 F.2d 1364 (D.C.Cir.1980), noting that: [t]here, the court was well aware of the internal arbitration procedures, id. at 1368, but did not find that these procedures presented any bar to federal jurisdiction. Thus, it is at least arguable that certain broad challenges to the implementation of the Act are not proper subjects for arbitration. 602 F.Supp. at 1015. The "broad challenge" in Harris, however, was to the regulations promulgated by the Secretary of the Department of Health, Education and Welfare (now the Department of Education) pursuant to the Act. The challenge did not relate to the "operation or administration of the vending facility program," 20 U.S.C. Sec. 107d-1(a), nor to contested actions of federal entities with "control of ... Federal property," 20 U.S.C. Sec. 107d-1(b). Instead, the challenge related to the actual structure of the program as established by the regulations promulgated by the Secretary. Agency rulemaking pursuant to its authority under a statute, in contrast to an allegation that another agency has failed to abide by the provisions of statute, does not require further agency action to be "final," but is directly reviewable under the Administrative Procedure Act as "agency action." 5 U.S.C. Sec. 706(2) 18 The arbitration process at issue in this action is established by federal statute and committed to a federal agency. We thus analyze the arbitration requirement under administrative law principles. See generally Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). A separate, but analogous, inquiry obtains where arbitration as a dispute resolution process is agreed to by parties to a contract. The "federal courts have recognized a strong federal policy in favor of voluntary commercial arbitration." Hanes Corp. v. Millard, 531 F.2d 585 (D.C.Cir.1976); see Schattner v. Girard, Inc., 668 F.2d 1366, 1369 (D.C.Cir.1981). In fact, this policy is embodied in the United States Arbitration Act, 9 U.S.C. Secs. 1-208 (1982), which provides that agreements to arbitrate a commercial dispute "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. Sec. 2. The policy of the Arbitration Act is that agreements to arbitrate should be liberally construed, with all doubts resolved in favor of arbitration. Moses H. Cone Memorial Hospital v. Mercury Construction Co., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-942, 74 L.Ed.2d 765 (1983); Schattner, supra, 668 F.2d at 1369; Hanes Corp., supra, 531 F.2d at 597 The "strong federal policy" in the commercial contract context is analogous to the "long settled rule" in the administrative context that parties must exhaust their administrative remedies before being heard in federal court. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-464, 82 L.Ed. 638 (1938). As when there exists a prescribed administrative procedure, when a court is confronted with an issue which the parties agreed by contract to arbitrate, "[t]he propriety [of judicial intervention] must be judged with reference to whether the issue in question is more properly resolved in another forum." Hanes Corp., supra, 531 F.2d at 596 (citing Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 246, 73 S.Ct. 236, 241, 97 L.Ed. 291 (1952) (judiciary should not "pre-empt and prejudge issues that are committed for initial decision to an administrative body or special tribunal.")). Despite the similarities between the policies in the commercial contract, and administrative law, contexts, they differ in some respects. The inquiry when a court is confronted with a contractual arbitral process revolves around the parties' intent. Where arbitration is a matter of contract, "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Technologies, Inc. v. Communications Workers of America, --- U.S. ----, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986) (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960)). Thus, the "threshold question" of the arbitrability of a particular issue is for judicial determination. AT & T Technologies, Inc., supra, 106 S.Ct. at 1419 (quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546, 84 S.Ct. 909, 912, 11 L.Ed.2d 878 (1964)). In determining whether a particular dispute is arbitrable, a court must determine whether the parties intended the particular dispute to be covered by the arbitration clause and if so, whether there is any reason why the parties' agreement should not be given legal force. Hanes Corp., supra, 531 F.2d at 598. In contrast to an inquiry into the parties' intent, when a court is confronted with an administrative process established by statute, the inquiry concerns congressional intent, see Citizens to Preserve Overton Park, Inc., supra, 401 U.S. at 412, 91 S.Ct. at 821, and whether there is any equitable reason why the congressional intent should not be enforced in the particular circumstances. See, e.g., Committee for GI Rights v. Callaway, 518 F.2d 466 (D.C.Cir.1975). Nevertheless, the result of a judicial determination that either the parties to a dispute, or Congress, intended to commit resolution of a dispute to another forum, and that there are no unusual circumstances which preclude enforcement of the evident intent, is the same--the court defers to the arbitral or administrative process. Compare Schattner, supra, 668 F.2d at 1369; Hanes Corp., supra, 531 F.2d at 597-98 with McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969); Myers, supra, 303 U.S. at 50-51, 58 S.Ct. at 463-464. 19 The sections of the Act which set out the dispute resolution process for both blind vendors and state licensing agencies use the word "may" as opposed the word "shall." 20 U.S.C. Sec. 107d-1(a), (b) ("Any blind licensee ... may submit ... a request for a full evidentiary hearing ...;" "any ... licensing agency may file a complaint with the Secretary....") (emphasis added). "Shall" is normally the language of command in a statute, Association of American Railroads v. Costle, 562 F.2d 1310, 1312 (D.C.Cir.1977); Boyden v. Commissioner of Patents, 441 F.2d 1041, 1043 (D.C.Cir.), cert. denied, 404 U.S. 842, 92 S.Ct. 139, 30 L.Ed.2d 77 (1971), whereas "may" is ordinarily construed as permissive. Haig v. Agee, 453 U.S. 280, 294 n. 26, 101 S.Ct. 2766, 2775 n. 26, 69 L.Ed.2d 640 (1981); Thompson v. Clifford, 408 F.2d 154, 158 (D.C.Cir.1968). This construction of the word "may" as discretionary, however, "is by no means invariable, ... and can be defeated by indications of legislative intent to the contrary or by obvious inferences from the structure and purpose of the statute." United States v. Rodgers, 461 U.S. 677, 706, 103 S.Ct. 2132, 2149, 76 L.Ed.2d 236 (1983) (citations omitted); see Thompson, supra, 408 F.2d at 158 (conclusion of discretion depends "on the context of the statute.") (quoting United States ex rel. Siegel v. Thoman, 156 U.S. 353, 359, 15 S.Ct. 378, 380, 39 L.Ed. 450 (1895)). Here we find that the purpose and context of the statute defeats any inference of general discretion to be garnered from Congress' use of the word "may," subject, of course, to the exceptions discussed below. See Part II, C, ii 20 A court may look more closely at an agency's interpretation of substantive provisions of its statutory mandate, but even in this analysis deference is due the agency's decision. United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1206 (D.C.Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981); Thompson, supra, 408 F.2d at 166-67 21 The Claims Court in Texas State Commission found that "[a]rbitration under the Randolph-Sheppard Act is voluntary." 6 Cl.Ct. at 735 n. 12. After quoting the language of the Act, the Claims Court concluded that: [i]n comparing the permissive language allowing an arbitration request with the mandatory language requiring arbitration only after such a request, it becomes clear arbitration is not mandatory. Id. The Claims Court cited one case in support of its result, Oklahoma ex rel. Department of Human Services v. Weinberger, 582 F.Supp. 293 (W.D.Okla.1982), aff'd, 741 F.2d 290 (10th Cir.1983), and three cases where an opposite result was reached, two of which were Fillinger, supra, and Matava, supra, and the other of which was an unpublished district court decision. Texas State Commission for the Blind, Civil Action No. A-84-CA 214 (W.D.Tex. Sept. 28, 1984). The Claims Court addressed the federal court decisions which reached the opposite result as follows: The decisions in other jurisdictions requiring prior arbitration are not persuasive. In Texas the court stated arbitration was mandatory and provided no reasoning for its decision. In Fillinger the court reasoned the amendments to the Randolph-Sheppard Act allowing arbitration reflected a congressional policy "that blind vendors must exhaust their administrative and arbitration remedies before seeking review in district court." 587 F.2d at 338. The court in Massachusetts Electric found this reasoning persuasive and followed Fillinger. From the language of the statute, however, it appears Congress simply provided blind vendors with the option to pursue an additional avenue of relief rather than mandated prior arbitration in each instance. In addition, there is no indication in the legislative history that Congress intended to impose arbitration as a prerequisite to judicial relief. 6 Cl.Ct. at 735 n. 12 (citation omitted) The Claims Court found the decision in Oklahoma, supra, to provide support for its finding that arbitration under the Act is not mandatory, stating that in Oklahoma, "[t]he court implied that the blind licensee or agency has a choice whether to arbitrate or to seek judicial relief directly." Id. Upon close analysis, however, the Oklahoma decision provides only dubious support for the Claims Court's position. According to that decision: The Randolph-Sheppard Act provides for arbitration of a state licensing agency's complaint regarding a federal department or agency's failure to comply with the provisions of the act or any regulations issued pursuant to it. Plaintiff filed an arbitration complaint more than a year ago with the Department of Education but has not obtained a decision and does not anticipate one will be rendered due to the recalcitrance of the Department of Defense. The defendant has not objected to the Court's consideration of this issue and accordingly, under these circumstances, plaintiff will not be required to exhaust its administrative remedies. 582 F.Supp. at 294 n. 2. The Oklahoma Court thus explicitly conditioned the circumstances under which a plaintiff would not be required to exhaust his remedies under the Act. Moreover, the Court appeared to rely on a proper application of the "futility" exception to the exhaustion requirement--where resort to arbitration would be "clearly useless" because the agency is unwilling, or as appeared there, unable because of another department's "recalcitrance," to consider the issue. See, e.g., Baxter v. Claytor, 652 F.2d 181, 185 (D.C.Cir.1981); Lodge 1858, American Federation of Government Employees (AFGE) v. Paine, 436 F.2d 882, 897 (D.C.Cir.1970). Because of the special circumstances present in the Oklahoma case, this case does not serve as strong precedent for a finding that the arbitration scheme of the Act is in usual circumstances discretionary It appears that this decision by the Claims Court has not previously been subjected to federal court review, and we decline to follow its conclusion. 22 Our previous decision in Lodge 1858, AFGE, 436 F.2d 882 (D.C.Cir.1970), cited by the District Court in support of its application of the futility exception, is not to the contrary. In that case, there was "a serious question as to whether the Civil Service Commission [the agency responsible for the administrative process at issue] possessed the necessary authority to determine the central legal issue" because "throughout the administrative process, the Commission has disclaimed jurisdiction to correct, on the employees' appeals, the alleged improprieties." 436 F.2d at 897. Moreover, the Court found it unnecessary to rule on the exhaustion issue because before oral argument on appeal at least some of the appellants had exhausted their administrative remedies. Id 23 In the related context of agency adjudication and rulemaking, the Administrative Procedure Act authorizes a court to "compel agency action ... unreasonably delayed." 5 U.S.C. Sec. 706(1) (emphasis added). See Costle v. Pacific Legal Foundation, 445 U.S. 198, 220 n. 14, 100 S.Ct. 1095, 1108 n. 14, 63 L.Ed.2d 329 (1980), reh'g denied, 446 U.S. 947, 100 S.Ct. 2177, 64 L.Ed.2d 804 (1980); Telecommunications Research & Action Center, supra, 750 F.2d at 79-80; MCI Telecommunications Corp. v. FCC, 627 F.2d 322, 340 (D.C.Cir.1980) 24 On a motion for a preliminary injunction pending arbitration, an analysis of a plaintiff's likelihood of success on the merits should look to the result of an administrative, not judicial, determination. Such an analysis in this case, in light of the expressed concern of individuals within the Department of Education, could arguably have led the District Court to find a greater likelihood of success on the merits. See J.A. at 48-52 (letters from Department of Education officials)

[Cite as Millstein v. Millstein, 2018-Ohio-2295.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 106481 NORMAN MILLSTEIN PLAINTIFF-APPELLANT vs. KEVAN MILLSTEIN, ET AL. DEFENDANTS-APPELLEES JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-883760 BEFORE: E.A. Gallagher, A.J., Boyle, J., Laster Mays, J. RELEASED AND JOURNALIZED: June 14, 2018 ATTORNEYS FOR APPELLANT Terry M. Brennan Kendall C. Kash Daniel R. Lemon Kevin G. Robertson Baker & Hostetler L.L.P. Key Tower 127 Public Square, Suite 2000 Cleveland, Ohio 44114 ATTORNEYS FOR APPELLEES Damond R. Mace Steven A. Friedman Squire, Patton Boggs (US) L.L.P 4900 Key Tower 127 Public Square Cleveland, Ohio 44114 Fred N. Carmen 27800 Cedar Road Beachwood, Ohio 44122 EILEEN A. GALLAGHER, A.J.: {¶1} Plaintiff-appellant Norman Millstein appeals the decision of the Cuyahoga County Court of Common Pleas wherein his petition for declaratory and equitable relief pursuant to Civ.R. 12 was dismissed. We affirm. Facts and Procedural Background {¶2} On July 28, 2017, appellant filed a petition for declaratory and equitable relief in the Cuyahoga County Court of Common Pleas. Appellant’s petition states that he is the grantor of two irrevocable trust agreements established for the benefit of his children: the “Al-Jo” trust created on December 29, 1987, and the “Kevan Millstein” trust created May 2, 1988. Appellant did not attach the trust documents to his complaint. {¶3} Appellant alleged that defendant-appellee Kevan Millstein (hereinafter “Kevan”) is the sole trustee of the trusts and one of the beneficiaries of the Kevan Millstein trust. Appellant alleged that under federal income tax law, the two trusts were designed so appellant would personally report the federal taxable income, deductions and credits realized from the investments of trusts under the “grantor trust” rules of the Internal Revenue Code sections 671 et seq. Although appellant is responsible for reporting any net taxable income associated with the trusts, he retained no rights as a beneficiary of the trusts. {¶4} Norman alleged that, in 2010, he requested that Kevan provide him reimbursement from the trusts for “substantial income taxes” owed by him due to the taxable income generated by the trusts. Kevan declined but reached an agreement whereby the assets of a third, unrelated trust were used to defray appellant’s personal income tax liabilities. {¶5} In 2013, Kevan informed appellant that the third trust no longer had liquid assets available to defray appellant’s income tax liabilities resulting from the trusts at issue in this case.  Appellant alleged that Kevan took steps with respect to the Kevan Millstein trust such that appellant would no longer be taxed on the income attributable to the investments of that trust beginning in 2014. No alteration was made to the “Al-Jo” trust. {¶6} Appellant alleged that, as a result of his tax obligations under the terms of these irrevocable trusts, he paid federal and state income taxes of $5,225,837 for the “Kevan Millstein” trust in 2013 and $1,261,068 for the “Al-Jo” trust for the tax years of 2013, 2014 and 2015. Appellant remains liable for future income taxes arising from the “Al-Jo” trust. {¶7} Appellant’s petition sought “equitable reimbursement of income taxes” from the two trusts as well as a “virtual representation” finding of the relevant beneficiaries of the two trusts for the purpose of effectuating such reimbursement. {¶8} Kevan and the trust beneficiaries named as defendants in appellant’s petition moved for the petition to be dismissed pursuant to Civ.R. 12, arguing that 1) appellant lacked standing to request that the trusts make any payment to him, 2) that there is no cognizable claim in Ohio for equitable reimbursement to a grantor for tax liability incurred under the terms of a trust the grantor created, 3) appellant’s claim was inequitable and 4) appellant’s petition was barred by collateral estoppel.1 The trial court granted the motions to dismiss on October 18, 2017, without opinion. Law and Analysis {¶9} In his sole assignment of error, appellant argues that the trial court erred in dismissing his petition for equitable relief pursuant to Civ.R. 12. 1 We note that appellees attached exhibits to their motions to dismiss that were inappropriate for a motion to dismiss under Civ.R. 12(B)(6) and could only have been considered had the trial court converted the motion into a motion for summary judgment. Similarly, appellees advanced arguments in their motion that exceeded the scope of Civ.R. 12(B)(6).  I. Civ.R. 12 {¶10} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim tests the sufficiency of the complaint. N. Point Properties v. Petticord, 179 Ohio App.3d 342, 2008-Ohio-5996, 901 N.E.2d 869, ¶ 11 (8th Dist.). A lower court’s determination that a plaintiff can prove no set of facts that would entitle the plaintiff to relief is reviewed de novo, requiring the appellate court to undertake an independent analysis without deference to the lower court’s decision. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5; Hendrickson v. Haven Place, Inc., 8th Dist. Cuyahoga No. 100816, 2014-Ohio-3726, ¶ 12. {¶11} In deciding whether a complaint should be dismissed pursuant to Civ.R. 12(B)(6), the court’s review is limited to the four corners of the complaint along with any documents properly attached to, or incorporated within, the complaint. High St. Properties v. Cleveland, 8th Dist. Cuyahoga No. 101585, 2015-Ohio-1451, ¶ 17, citing Glazer v. Chase Home Fin. L.L.C., 8th Dist. Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, ¶ 38. The court must accept as true all the material factual allegations of the complaint and construe all reasonable inferences to be drawn from those facts in favor of the nonmoving party. Brown v. Carlton Harley-Davidson, Inc., 8th Dist. Cuyahoga No. 99761, 2013-Ohio-4047, ¶ 12, citing Garofalo v. Chicago Title Ins. Co., 104 Ohio App.3d 95, 104, 661 N.E.2d 218 (8th Dist.1995). To prevail on a Civ.R. 12(B)(6) motion, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling the plaintiff to relief. O’Brien v. Univ. Comm. Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. If there is “a set of facts, consistent with the plaintiff’s complaint, which would allow the plaintiff to recover, the court may not grant a defendant’s motion to dismiss.”High St. Properties at ¶ 16, quoting York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). Thus, a dismissal under Civ.R. 12(B)(6) “is reserved for the rare case that cannot possibly succeed.” Tri-State Computer Exchange, Inc. v. Burt, 1st Dist. Hamilton No. C-020345, 2003-Ohio-3197, ¶ 12. II. Appellant’s Claim for Reimbursement is Disallowed Under The Ohio Trust Code {¶12} We find that the trial court correctly dismissed appellant’s petition for failure to state a claim upon which relief can be granted under Civ.R. 12(B)(6). Central to our conclusion is the fact that the relief sought by appellant is specifically addressed in the Ohio Trust Code and unavailable to him without the cooperation of a trustee or beneficiary. The Ohio Trust Code was enacted in 2006 and is applicable to all trusts created before, on, or after its effective date. R.C. 5811.03. {¶13} Relevant to the present case is R.C. 5804.16, titled, “Modification to achieve settlor’s tax objectives,” which provides: To achieve the settlor’s tax objectives, the court may modify the terms of a trust in a manner that is not contrary to the settlor’s probable intention. The court may provide that the modification has retroactive effect. {¶14} Pursuant to R.C. 5804.10, only a trustee or beneficiary may commence a proceeding to approve or disapprove a proposed modification under R.C. 5804.16. R.C. 5804.10 specifically limits a settlor’s ability to commence a proceeding to approve a proposed modification or termination of a trust to certain situations involving the consent of the trust’s beneficiaries under R.C. 5804.11. {¶15} Appellant has not brought the present action under R.C. 5804.11 and is precluded by operation of R.C. 5804.10 from unilaterally seeking modification to achieve his tax objectives under R.C. 5804.16. Appellant concedes that the question of equity in this case is an issue of first impression in Ohio and without citing the above authority asks this court to utilize equity to directly contradict the legislative intent expressed in R.C. 5804.10 and 5804.16.  {¶16} No court may employ equitable principles to circumvent valid legislative enactments. Lorain Cty. Bd. of Commrs. v. United States Fire Ins. Co., 81 Ohio App.3d 263, 269-270, 610 N.E.2d 1061 (9th Dist.1992), citing Patterson v. Lamson, 45 Ohio St. 77, 90-91, 12 N.E. 531 (1887); Seven Hills v. Cleveland, 1 Ohio App.3d 84, 95, 439 N.E.2d 895 (8th Dist.1980). When the rights of parties are clearly defined and established by law, the courts usually apply the maxim “equity follows the law.” CSEA ex rel. Spencer v. Gatten, 8th Dist. Cuyahoga No. 89398, 2007-Ohio-4071, ¶ 25, citing Assn. of Cuyahoga Cty. Teachers of Trainable Retarded v. Cuyahoga Cty. Bd. of Mental Retardation, 6 Ohio St.3d 190, 192, 451 N.E.2d 1215 (1983). {¶17} In this instance, the legislature clearly considered the circumstances in which it intended to allow parties to a trust to modify the terms of the trust to achieve a settlor’s tax objectives and decided to reserve the power to initiate such an action to the trustee or beneficiary. {¶18} Even if we were to allow appellant to use equity to circumvent the clear intent of the legislature, it is well established that equity will not aid a volunteer. Ins. Co. of N. Am. v. Travelers Ins. Co., 118 Ohio App.3d 302, 318, 692 N.E.2d 1028 (8th Dist.1997). Appellant admits that he established the trusts in a manner that allowed him to personally take advantage of tax deductions and credits derived from the trust investments and that he is responsible for taxable income. Appellant has not alleged that Kevan or any of the other parties named in this suit have taken any action inconsistent with the terms of the trust that he himself created. We agree with the appellee’s position that appellant voluntarily created the situation that he now claims is inequitable. {¶19} We find that the trial court correctly dismissed appellant’s petition for failure to state a claim upon which relief can be granted under Civ.R. 12(B)(6).  {¶20} Appellant’s sole assignment of error is overruled. {¶21} The judgment of the trial court is affirmed. It is ordered that appellee recover of appellant costs herein taxed. The court finds that there were reasonable grounds for this appeal. It is ordered that a special mandate out of this court directing the common pleas 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, ADMINISTRATIVE JUDGE MARY J. BOYLE, J., and ANITA LASTER MAYS, J., CONCUR 

#28448-a-SLZ 2018 S.D. 70 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA **** STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. NATHAN D. CHASE, Defendant and Appellant. **** APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA **** THE HONORABLE MATTHEW M. BROWN Judge **** MARTY J. JACKLEY Attorney General MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee. ELLERY GREY Grey & Eisenbraun Law Attorneys for defendant Rapid City, South Dakota and appellant. **** CONSIDERED ON BRIEFS ON AUGUST 27, 2018 OPINION FILED 10/03/18 #28448 ZINTER, Justice [¶1.] Nathan Chase was convicted of second-degree murder. He appeals the circuit court’s denial of his motion to suppress evidence obtained as a result of an investigatory stop. We affirm. Facts and Procedural History [¶2.] On January 23, 2017, at about 7:50 p.m., law enforcement responded to a call from a Rapid City motel regarding an assault. Officers discovered the body of Jeremy Little in the entrance to one of the motel rooms. He had been fatally stabbed in the face and neck, and there was substantial blood at the scene. Captain Tony Harrison of the Pennington County Sheriff’s Office reviewed security footage of the hallway outside the room in which Little was found. He observed six people entering and leaving the room that night. Five of the individuals were identified and excluded as suspects. The sixth, an unidentified man, became the murder suspect. From the footage, Harrison observed that the suspect was a male of average weight and height wearing a black stocking cap, dark pants, dark shoes, and a tan Carhartt jacket over a black hooded sweatshirt. [¶3.] After completing the initial investigation around 2:00 a.m., Harrison returned to the motel to search nearby dumpsters for the murder weapon. At about 3:15 a.m., he observed a man walking on the sidewalk about two blocks from the motel. Harrison believed the man resembled the suspect from the security footage based on height and weight. Harrison also noticed he was wearing a tan Carhartt jacket similar to the coat worn by the suspect. Yet, in contrast, the pedestrian wore his jacket over a white hooded sweatshirt rather than a black one. Additionally, his -1- #28448 shoes were white rather than dark, and he had on different colored pants than those worn by the suspect in the security footage. It was a cold evening and no one else was moving on the streets. [¶4.] Based on the man’s similar appearance—primarily his build and the Carhartt jacket—and his proximity to the crime scene, Harrison decided to investigate. He activated his emergency lights and stopped his unmarked vehicle next to the man, later identified as Nathan Chase. Harrison exited the car, introduced himself as a law enforcement officer, and informed Chase that he wanted to ask about an “event” at the motel. Chase agreed to a search of his person, and Harrison found a bloody knife in Chase’s pocket. Chase was taken into custody and questioned. The blood on the knife was later matched to Little’s DNA. [¶5.] Chase was indicted for second-degree murder. Prior to trial, he moved to suppress the evidence obtained as a result of the stop. The circuit court denied the motion, ruling that Harrison had reasonable suspicion to initiate the investigatory stop. A jury found Chase guilty. He appeals the circuit court’s decision. He does not challenge the circuit court’s findings of fact. He only challenges the court’s legal conclusion that Harrison had reasonable suspicion for the stop. Decision [¶6.] “The Fourth Amendment of the United States Constitution and Article VI, § 11 of the South Dakota Constitution protect individuals from unreasonable -2- #28448 searches and seizures.”1 State v. Walter, 2015 S.D. 37, ¶ 7, 864 N.W.2d 779, 782. Although it is preferable for law enforcement to obtain a warrant before conducting a search or seizure, a warrant is not necessary for less invasive intrusions, such as an investigatory stop. Id. (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968)). “[W]hen a person is subject to an ‘investigative detention’ rather than a full-blown custodial arrest, the officer need only have reasonable suspicion for the detention rather than the probable cause typically required.” Id. (quoting State v. De La Rosa, 2003 S.D. 18, ¶ 7, 657 N.W.2d 683, 686). That is because “[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” State v. Stanley, 2017 S.D. 32, ¶ 13, 896 N.W.2d 669, 675 (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972)). Thus, “if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.” United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604 (1985). The question whether an officer has reasonable suspicion is viewed under the totality of the circumstances. Stanley, 2017 S.D. 32, ¶ 13, 896 N.W.2d at 675. [¶7.] Chase argues Harrison only had a “sixth sense” about Chase being the perpetrator. He contends Harrison’s testimony at the suppression hearing confirms 1. The State does not dispute that the stop was a “seizure” within the meaning of the Fourth Amendment. See U.S. Const. amend IV. -3- #28448 the stop was based on a mere “hunch.” However, Harrison’s testimony shows he relied on his twenty years of experience as a law enforcement officer in determining whether to stop an individual based upon all the information known to him at the time. It is well settled that law enforcement “officers [may] draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” State v. Mohr, 2013 S.D. 94, ¶ 16, 841 N.W.2d 440, 445 (quoting State v. Haar, 2009 S.D. 79, ¶ 23, 772 N.W.2d 157, 167). [¶8.] Moreover, “[a]lthough a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is ‘considerably less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary for probable cause.” Navarette v. California, 572 U.S. 393, 397, 134 S. Ct. 1683, 1687, 188 L. Ed. 2d 680 (2014) (first quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883; then quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)). Here, Harrison’s suspicion was not grounded on a mere hunch. He identified specific and articulable facts supporting his decision to stop Harrison. [¶9.] Chase next argues that even if the stop was not based on a mere hunch, Harrison’s articulated facts did not support the quantum of suspicion necessary to initiate an investigatory stop. He contends Harrison’s information was stale because over seven hours had elapsed between the crime and the stop. He also contends the description of the suspected perpetrator was too general because the security footage only disclosed an individual of average height wearing a -4- #28448 Carhartt-style jacket. Further, he claims that even if it was a good description, Chase and his clothing did not match the suspect exactly. Chase also identifies non-incriminating inferences or explanations for the incriminating facts and circumstances Harrison relied upon for the investigative stop. [¶10.] We acknowledge Chase’s point that seven and a half hours had elapsed between the crime and the stop. We also recognize that Chase’s clothes were not identical to those worn by the unidentified male in the security footage and Harrison could not observe more specific physical attributes from the security footage.2 But these facts alone do not foreclose reasonable suspicion. Rather, the determination whether reasonable suspicion existed must consider all facts available to Harrison at the time of the stop, viewed under the totality of the circumstances. See Stanley, 2017 S.D. 32, ¶ 13, 896 N.W.2d at 675. [¶11.] “Because the reasonable suspicion determination requires this Court to ‘look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing,’ a review of the salient facts known to [the officer] is necessary.” State v. Johnson, 2011 S.D. 10, ¶ 8, 795 N.W.2d 924, 926 (quoting State v. Herren, 2010 S.D. 101, ¶ 7, 792 N.W.2d 551, 554). The record reveals that Harrison observed firsthand the suspect depicted in the motel’s security footage. He testified that the Carhartt 2. Chase claims that Captain Harrison’s observation of a suspect’s physical attributes via a security footage should be scrutinized in the same way as a physical description provided by an informant. See, e.g., United States v. Brown, 448 F.3d 239, 250–51 (3d Cir. 2006). We disagree. A physical description relayed by a third party is wholly different than observations made firsthand by an officer. Harrison was relying entirely on his own observations when he stopped Chase, not a tip with questionable reliability. -5- #28448 jacket particularly stood out to him in the footage. He further explained that he observed an individual with the same build and jacket as the suspect walking alone at three in the morning only two blocks from the crime scene during a “frigidly cold” night. While he acknowledged Chase wore different colored clothing than shown in the footage, Harrison explained that quickly verifying the man was “not our guy” would have taken ten seconds and the man could be on his way. This was reasonable because “[i]t is quite possible that mutable characteristics of a suspect, such as attire . . . may vary significantly during a flight from apprehension.” State v. Faulks, 2001 S.D. 115, ¶ 11, 633 N.W.2d 613, 617. [¶12.] Ultimately, Chase’s arguments require isolating the facts from the totality of the circumstances. However, Chase’s type of “divide-and-conquer” analysis is not utilized in assessing reasonable suspicion. Haar, 2009 S.D. 79, ¶ 23, 772 N.W.2d at 167; accord District of Columbia v. Wesby, ___ U.S. ___, ___, 138 S. Ct. 577, 588, 199 L. Ed. 2d 453 (2018) (“The totality-of-the-circumstances test ‘precludes [a] divide-and-conquer analysis.’”). Moreover, “[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow . . . a criminal to escape.” Adams, 407 U.S. at 145, 92 S. Ct. at 1923. [¶13.] Indeed, an unapprehended murder suspect poses a serious threat to public safety, and here, the circuit court found that law enforcement had no leads at the time of the stop. When a crime involves a threat to public safety, law enforcement’s interest in detaining the suspect as quickly as possible may “outweigh the individual’s interest to be free of a stop and detention that is no more -6- #28448 extensive than permissible in the investigation” of the crime. Hensley, 469 U.S. at 229, 105 S. Ct. at 680. Considering the totality of the circumstances, the substantial public safety interest in apprehending the homicide suspect that remained at large, and the minimal intrusion created by Harrison’s stop, we conclude that the investigatory stop was based on reasonable suspicion within the meaning of the Fourth Amendment. [¶14.] Affirmed. [¶15.] GILBERTSON, Chief Justice, KERN, JENSEN, and SALTER, Justices, concur. -7- 

538 F.2d 897 Daytona Motel Corp.v.Central States, Southeast and Southwest Areas Pension Fund*# No. 76-2134 United States Court of Appeals, Fifth Circuit 8/24/76 1 M.D.Fla. 2 AFFIRMED*** * Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409 # Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. *** Opinion contains citation(s) or special notations

957 F.2d 1467 140 L.R.R.M. (BNA) 2078, 121 Lab.Cas. P 10,069 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.AUGUSTA BAKERY CORPORATION, Respondent. No. 90-2140. United States Court of Appeals,Seventh Circuit. Argued Nov. 1, 1991.Decided March 24, 1992. Charles P. Donnelly, Jr., Washington, D.C., Elizabeth Kinney, Chicago, Ill., Aileen A. Armstrong, Frederick Havard (argued), William A. Baudler, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., for petitioner. A. Eric Arnold (argued), Zion, Ill., for respondent. Before CUDAHY and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. FLAUM, Circuit Judge. 1 The National Labor Relations Board (Board) seeks enforcement of an order against Augusta Bakery Corporation (Augusta). We grant enforcement. I. 2 We briefly set forth the undisputed facts before turning to our review of the Board's determination. Augusta is a family-owned bakery located in Chicago. During the relevant time period, its production employees were represented by Local Union No. 1, Bakery, Confectionary and Tobacco Workers' International Union of America (Union). On November 20, 1985, after efforts to reach a new bargaining agreement proved unsuccessful (the previous agreement had expired on May 31, 1985), the employees initiated an economic strike against Augusta. Using replacement employees, Augusta continued operating during the strike. 3 On March 17, 1986, Augusta's counsel, Kathy Arnold, sent notice to the Union that Augusta planned to withdraw recognition because a majority of its employees had signed a letter stating that they no longer desired Union representation.1 On March 24, the Union--through its counsel, Jacob Pomeranz--sent two letters to Augusta: the first identified 12 striking employees and stated that "said employees and the Union are offering unconditionally to immediately return to work"; the second demanded that Augusta "return to negotiations immediately so as to reach agreement on a collective-bargaining contract," and questioned Augusta's good faith doubt regarding the Union's majority status. The letters were sent by overnight courier and delivered together to Arnold at her home on March 25. 4 Two days later, on March 27, Arnold sent letters to the Union and to each of the dozen bakers. The letter to the Union expressed doubt over whether the offers to return were, indeed, "unconditional," given that the other letter sent on the same date demanded a return to the bargaining table, and outlined Augusta's views of the reinstatement rights of the dozen employees involved. Only one could be immediately reinstated. As to the others, Augusta asserted that two had engaged in strike misconduct; three had abandoned their employment by applying for and/or receiving pension benefits; and six had been permanently replaced. Augusta stated that no positions were available, and that the names of the six who had been replaced would be put on a preferential hiring list. The letters to the individual strikers apprised them of their status with the company. 5 The Board, upholding the determination of the Administrative Law Judge (ALJ), held that Augusta had violated § 8(a)(1) and (3) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), (3), by refusing to reinstate 11 of the 12 striking employees subsequent to the March 24 offer to return, which the Board found to be unconditional. The Board's order requires, among other things, that Augusta offer the 11 employees immediate and full reinstatement, with back pay.2 II. 6 We have jurisdiction to consider the Board's petition for enforcement pursuant to 29 U.S.C. § 160(e), which also governs our standard of review. We must uphold the Board's determination if its factual findings are supported by substantial evidence in the record as a whole and its legal conclusions have a reasonable basis in the law. Id.; Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Substantial evidence in this context means "such relevant evidence as a reasonable mind might accept as adequate to support" the Board's determination. Roadmaster Corp. v. NLRB, 874 F.2d 448, 452 (7th Cir.1989) (quoting Universal Camera, 340 U.S. at 477, 71 S.Ct. at 459). This standard of review is well established; it "does not allow us to dabble in factfinding, and we may not displace reasonable determinations simply because we would have come to a different conclusion if we reviewed the case de novo." NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7th Cir.1991); see also NLRB v. United Ins. Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1314 (7th Cir.1991) (Board's application of the law to particular facts also reviewed under substantial evidence standard), petition for cert. filed (Dec. 23, 1991). 7 The standard "is not modified in any way when the Board and the ALJ disagree as to legal issues or derivative inferences made from the testimony." Weather Shield Mfg., Inc., Millwork Div. v. NLRB, 890 F.2d 52, 57 (7th Cir.1989). It is the independent validity of the Board's order that is under review. Id. The scope of our review is narrow; we "must uphold the legal conclusions of the Board unless they are irrational or inconsistent with the National Labor Relations Act." Aqua-Chem, Inc., Cleaver-Brooks Div. v. NLRB, 910 F.2d 1487, 1490 (7th Cir.1990) (citations omitted), cert. denied, --- U.S. ----, 111 S.Ct. 2871, 115 L.Ed.2d 1037 (1991). Additionally, we may not disturb the Board's remedial order "unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964) (quoting Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943)). 8 We have expounded upon the standard of review in some detail, for this is a case in which we must keep in mind, as we previously have acknowledged, that "[t]he faithful application of these principles requires a great deal of judicial restraint." U.S. Marine, 944 F.2d at 1314. III. 9 It is well settled that economic strikers retain their status as employees under the Act, and are entitled to full reinstatement at the conclusion of the strike. 29 U.S.C. § 152(3); NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 545, 19 L.Ed.2d 614 (1967). An employer may not retaliate against striking employees by refusing to reinstate them upon their unconditional offers to return to work; such retaliation would discourage employees from exercising their guaranteed rights to organize and strike. Fleetwood Trailer, 389 U.S. at 378, 88 S.Ct. at 546. Accordingly, an employer must reinstate the returning strikers to their former positions unless the employer can show that its action was due to "legitimate and substantial business justifications," in which case it may refuse to reinstate the economic strikers. Id. (quoting NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967)). A. 10 We first consider whether the offer to return was unconditional. The Board adopted the ALJ's determination that the two letters the Union sent to Arnold on March 24 were unrelated, and that one contained an unconditional offer to return to work. The Board's finding of an unconditional offer is a predominently factual determination, which we must uphold if supported by substantial evidence. Augusta bears the burden of showing that the offer to return was not unconditional. Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1107 (1st Cir.1981); NLRB v. Okla-Inn, 488 F.2d 498, 505 (10th Cir.1973). 11 In support of its claim that the offer was conditional, Augusta cites International Union, Allied Industrial Workers v. NLRB, 411 F.2d 249 (7th Cir.1969), in which we enforced a Board determination that strikers' reinstatement requests were conditioned on the employer's agreement to resume bargaining with the union. Id. at 251. In that case, the union had informed the company on July 17 that the strike would be "terminated" on July 20 and, in the same letter, demanded resumption of bargaining--a matter that was subject to a then-pending unfair labor practice charge. On July 20, 61 strikers sent individual but identical letters to the employer which stated, "I make this application for reinstatement with the understanding that [the employer] will continue to recognize and commence bargaining with my duly designated bargaining representative...." We upheld the Board's conclusion that the offer to return was conditional, noting that the company had expressly announced its intent to comply with the determination reached through the administrative processes.3 Id. at 251. 12 Augusta contends that the Union's two March 24 letters likewise should be construed "as a single, conditional offer," Resp't Br. at 10, the condition being Augusta's return to the bargaining table. Since the offer was not unconditional, the company argues, it did not commit an unfair labor practice in refusing to reinstate the workers.4 According to Augusta, the simultaneous timing of the letters indicates that the offer was conditional, and a reading which separates the offer from the bargaining request because they were written on separate pieces of paper "is elevating form over substance." Resp't Br. at 13. 13 The Board rests its determination on the opposite assertion: the Union's decision to distinguish, by way of separate letters, the return-to-work offer from the bargaining demand was a way to ensure, "in form and substance," that the issues would remain decoupled. Pet'r Br. at 12. The Board also maintains that this inference is further confirmed by Augusta's failure to mention the bargaining demand issue in its letters to the strikers. Although Augusta expressed its doubt to the Union over whether the offer was unconditional, it failed to do so in its correspondence with the workers, merely offering to place them on a preferential hiring list as required by law when economic strikers make an unconditional offer to return to work. 14 Were we to view the facts as an original matter and with a somewhat cynical eye, we might be sympathetic to Augusta's argument. A creative union might well attempt to circumvent Allied Industrial Workers by separating the tangible link between offer and condition by setting them forth in separate letters. However, the facts do suggest two reasonable (albeit diametrically opposed) inferences, and the substantial evidence standard does not allow us to reject the Board's "choice between two fairly conflicting views." NLRB v. Stor-Rite Metal Prods., Inc., 856 F.2d 957, 964 (7th Cir.1988) (quoting Stokely-Van Camp, Inc. v. NLRB, 722 F.2d 1324, 1328 (7th Cir.1983)). Where two inferences are possible, we cannot substitute our own inference for that of the Board, so long as the Board's is supported by substantial evidence in the record as a whole. We cannot say that the Board's determination that the offer was unconditional was not so supported. B. 15 Augusta offers three affirmative defenses for its refusal to reinstate the 11 strikers: six, it contends, were permanently replaced; three abandoned their employment by seeking and, in two instances receiving, retirement benefits; and two engaged in misconduct sufficient to warrant refusal to reinstate. The burden of proof on matters which relate to justification for the employer's actions rests with the employer. Fleetwood Trailer, 389 U.S. at 378-79 n. 4, 88 S.Ct. at 545-46 n. 4; Great Dane Trailers, 388 U.S. at 34, 87 S.Ct. at 1797. 1. 16 As noted earlier, an employer may refuse to reinstate economic strikers if it can show a legitimate and substantial business justification for the refusal. One such justification arises when returning strikers' jobs are occupied by permanent replacements hired during the strike to continue operations. Fleetwood Trailer, 389 U.S. at 379, 88 S.Ct. at 546; see NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-11, 82 L.Ed. 1381 (1938). In this way, "labor law purports to recognize business reality and allows a company that has been struck by its work force to hire permanent replacements as business needs dictate." Aqua-Chem, 910 F.2d at 1487. The replacements must, however, be permanent. "If an employer hires replacements without a commitment or understanding that the job is permanent and also discharges the strikers, the interest in protecting economic strikers by an entitlement to reinstatement is not overcome by a substantial business justification." NLRB v. Mars Sales & Equip. Co., 626 F.2d 567, 573 (7th Cir.1980); see Mackay, 304 U.S. at 345-46, 58 S.Ct. at 910-11. 17 The burden of proving that the replacements were hired as permanent employees lies with the employer. Fleetwood Trailer, 389 U.S. at 378, 88 S.Ct. at 546); see Great Dane Trailers, 388 U.S. at 34-35, 87 S.Ct. at 1797-1798. To meet its burden, Augusta was required to show it had a "mutual understanding" with the replacements that they were permanent. Hansen Bros. Enters., 279 N.L.R.B. 741, 741 (1986), enf'd, 812 F.2d 1443 (D.C.Cir.1987); see Associated Grocers, 253 N.L.R.B. 31, 32 (1980), enf'd, 672 F.2d 897 (D.C.Cir.1981). Here, the Board adopted the ALJ's finding that the replacement hires were not permanent because no mutual understanding of permanency existed. This is a question of fact, and we review the Board's determination "only ... to see if it is supported by substantial evidence." Mars Sales, 626 F.2d at 573. "It is the primary responsibility of the Board and not of the courts 'to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.' " Fleetwood Trailer, 389 U.S. at 378, 88 S.Ct. at 546 (quoting Great Dane Trailers, 388 U.S. at 33-34, 87 S.Ct. at 1797-1798). 18 Augusta contends that it had hired permanent replacements for the strikers, and therefore acted permissibly in placing the names of six workers on a "Laidlaw"5 preferential hiring list. During the strike, Augusta hired 16 replacement workers who were told that "if they worked out and did their job, they had a job." App. at 18. This statement, Augusta claims, illustrates that the new employees were permanent. However, the testimony of the replacement workers does not indicate that they understood this to be the case. One stated, for example, that no one told him whether or not his job was for a limited time, and further he never asked; another stated that he concluded his job was for an unlimited time, but that none of Augusta's supervisors told him this.6 Additionally, Augusta stated that when interviewing potential replacements, the company did not make inquiry into future availability for work, and none of the interviewees asked about how long they could work. Although this is admittedly a close call, as the Board acknowledged at oral argument, the Board could find that the testimony, on balance, does not evince the "mutual understanding" necessary to establish that the replacements were permanent. See Hansen Bros. Enters., 279 N.L.R.B. at 741-42 (no permanent relationship established when employer told replacements that he "wanted" to consider them permanent employees and "wanted" them to consider themselves permanent employees, because he did not actually tell them they were permanent); Associated Grocers, 253 N.L.R.B. at 32.7 19 Augusta also urges us to make the inference that replacement employees hired during an economic strike are permanent absent evidence that they were told they were merely temporary. Where two inferences can be drawn, however, it is within the Board's province to determine which is appropriate. Moreover, Augusta's proposed inference runs contrary to the "mutual understanding" requirement already adopted by the Board. See Hansen Bros. Enters., 279 N.L.R.B. at 741 (employer's intent to permanently employ replacements insufficient to satisfy burden of showing mutual understanding). We uphold the Board's determination that Augusta violated the Act by refusing to reinstate these strikers. 2. 20 Augusta claims that three of the striking workers--all in their sixtieshad abandoned their employment by applying for and, in two instances, receiving, their pension benefits during the strike.8 An employer is not required to offer reinstatement to strikers who have abandoned their employment. To establish abandonment--and therefore rebut the assumption of post-strike reinstatement--an employer must present "unequivocal evidence" of the striker's intent to "permanently sever" the employment relationship. Harrowe Servo Controls, 250 N.L.R.B. 958, 964 (1980) (quoting S & M Mfg. Co., 165 N.L.R.B. 663, 663 (1967)). 21 The ALJ determined that Augusta's actions pertaining to the "retirees" were discriminatorily motivated based on an established pattern of retaliation, and concluded that Augusta had therefore violated the Act in denying reinstatement to the three workers who had submitted their pension papers during the strike. The ALJ found that each needed the money to pay bills during the strike period and had not evinced an intent to sever the employment relationship. Moreover, they had continued to participate in the strike, serving as pickets, and their names were included among the 12 employees listed in the unconditional offer letter. Although the Board discounted the ALJ's determination that Augusta's actions were discriminatorily motivated, it adopted the ALJ's conclusion that the strikers had not abandoned their employment, albeit on a different basis--that Augusta had not presented unequivocal evidence of the strikers' intent to permanently sever the employment relationship. Thus, the Board concluded, Augusta had not established a legitimate business reason for denying reinstatement to the three "retired" employees. Augusta maintains the Board's decision is "curious," Resp't Br. at 25, given that the ALJ had stated that it would be "relatively easy to conclude that their cases should be dismissed" absent the pattern of retaliation--which is precisely the basis rejected by the Board in upholding the ALJ's ultimate conclusion. 22 As a general matter, where the Board does not accept the ALJ's findings we do not abandon the substantial evidence standard, but "the evidence supporting the Board's conclusion may be viewed as less substantial than it would be if the Board and the ALJ had reached the same conclusion." Lapham-Hickey Steel Corp. v. NLRB, 904 F.2d 1180, 1186 (7th Cir.1990) (quoting NLRB v. Stor-Rite Metal Prods., 856 F.2d 957, 964 (7th Cir.1988)). However, the significance of the ALJ's findings depends largely upon the role credibility determinations played in the outcome of the case. Universal Camera, 340 U.S. at 496, 71 S.Ct. at 468. " 'Credibility,' in this context, refers primarily to 'testimonial inferences'--those that rest on direct observations of the demeanor of witnesses--rather than 'derivative inferences'--those that are drawn from the substance of the evidence." Stor-Rite Metal, 856 F.2d at 965 (citing Kopack v. NLRB, 668 F.2d 946, 953 (7th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2278, 73 L.Ed.2d 1290 (1982)). As we previously mentioned, our standard is not modified when the Board's disagreement with the ALJ is grounded upon derivative inferences. See Weather Shield Mfg., 890 F.2d at 57. That is the situation here. The ALJ found a "clear inference that [Augusta's] conduct toward the three 'retirees' was based upon an unlawful motive." App. at 16. Although this determination "embodies the inferences [the ALJ] drew from the facts," Kopack, 668 F.2d at 955, the ALJ's decision did not turn solely on credibility as we have construed the term. The ALJ did "not depend on an assessment of demeanor," id., and therefore, "the Board, in the exercise of its own expertise, can effectively draw its own inferences from the record." Id. Our task, then, is limited to determining whether substantial evidence supports the Board's conclusion. Id. at 956. 23 Augusta relies heavily on Giddings v. Lewis, 240 N.L.R.B. 441 (1979), in which the Board held that the employer did not have to reinstate employees who had received pension benefits during the strike. Although similar to the instant case, Giddings also contains relevant differences.9 Of primary importance, the ALJ in Giddings found the testimony of the employer's representatives more credible than that of the strikers. Here, the ALJ credited the strikers' testimony over that of the company. Moreover, in Giddings, although the employer notified the union of the strikers' retirement and their removal from the seniority list, a three- to eight-month period elapsed before the retirees asserted their right to reinstatement. Here, the strikers' names were included in the Union's March 24 offer letter--a strong indication of intent not to retire. 24 For its part, the Board relies on Rose Printing, 289 N.L.R.B. 252 (1988), hinging much of its argument on the notion of "direct communication." The Board in Rose Printing held that "to preclude a finding that a striker has permanently severed his employment by a direct communication to the employer of his intention to quit there must be a showing of some reservation or qualification in the quitting or a showing of continued interest by the striker." Id. at 276 (emphasis added); see also P.B.R. Co., 216 N.L.R.B. 602 (1975) (in finding abandonment, Board noted that strikers initiated conversations with employer by stating that they wanted to terminate employment). According to the Board, the employees in Giddings had directly communicated with their employer and knew that retirement might pose a risk for future re-employment, whereas in the instant case, no such direct communication occurred--the employees applied for their benefits through the benefit department, and did not speak directly with Augusta management about their retirement status. Thus, here there were no direct communications between the strikers and the company from which the "retirees" could glean that future employment would be doomed as a consequence of drawing pension benefits. 25 Although this argument pins much on a technical distinction, we find Rose persuasive, for other reasons. In Rose, as here, termination of employment was the only way the striking employees could obtain their retirement contributions. As here, all of the strikers indicated that this was their purpose in resigning and, as here, there was no showing that they had obtained employment elsewhere at the time of their resignations. And, just as the strikers in Rose continued to participate in the strike following their resignations, here too, there was no evidence that they abandoned the strike following their resignations. Moreover, Augusta's manager "was aware that the three pension applicants continued to picket." Tr. at 434. In Rose, the employees had expressed no reservations upon resigning, but the Board determined that, given the "circumstances and existing economic need cited by the strikers," the resignations did not evince their intent to permanently abandon their jobs. Finally, to the extent that Rose and Giddings may differ, Rose is the more recent exposition of the issue. We uphold the Board's determination that the three strikers who applied for pension benefits did not abandon their employment. 3. Misconduct 26 Augusta dismissed two of the strikers following the March 24 offer letter on the ground that they had participated in strike misconduct warranting termination. The Act does not protect striking employees who commit acts of vandalism or sabotage against their employer. See Clear Pine Mouldings, Inc., 268 N.L.R.B. 1044, 1045 (1984), enf'd, 765 F.2d 148 (9th Cir.1985), cert. denied, 474 U.S. 1105, 106 S.Ct. 893, 88 L.Ed.2d 926 (1986). To lawfully deny an employee reinstatement at the conclusion of a strike on this ground, an employer must produce evidence connecting the discharged employees to specific strike misconduct. See General Telephone Co., 251 N.L.R.B. 737, 739 (1980), enf'd, 672 F.2d 894 (D.C.Cir.1981). Such conduct "must have had a tendency to coerce other employees in the exercise of their protected rights." Richmond Recording Corp. v. NLRB, 836 F.2d 289, 295 (7th Cir.1987). Additionally, "[t]he honest belief of an employer that striking employees have engaged in misconduct provides an adequate defense to a charge of discrimination in refusing to reinstate such employees, unless it affirmatively appears that such misconduct did not in fact occur." Rubin Bros. Footwear, Inc., 99 N.L.R.B. 610, 611 (1952). The discharge is therefore unlawful if the evidence supports a finding that no misconduct occurred, notwithstanding the employer's good faith belief that it did occur. 27 The ALJ's primary determinations were threefold: he found that Augusta did not have an honest belief that the two strikers had engaged in strike misconduct sufficient to justify the discharge; crediting the two strikers' denials that they had engaged in the misconduct, he found that they did not commit the acts for which they were accused; and he determined that, even had the misconduct occurred, it was de minimis in nature and insufficient to warrant termination. Based upon these findings, the ALJ concluded that Augusta's discharge of the strikers on misconduct grounds had violated the Act. In upholding this conclusion, the Board stated that it did not rely on the ALJ's findings that Augusta did not have an honest belief regarding the misconduct. Nor did it rely on the ALJ's finding that any misconduct that occurred was de minimis. Rather, assuming arguendo that Augusta acted in good faith, the Board upheld the ALJ's credibility determinations and found that the strikers had not engaged in the misconduct. 28 As to one of the two strikers involved, Tadeusz Dlugolecki, we have relatively little difficulty in upholding the Board's conclusion. The Board credited Dlugolecki's denial that he had damaged windows at the company's facility during the strike. As the Board acknowledged, the testimony of Augusta's witnesses--a supervisor, who stated that he saw the broken windows and Dlugolecki nearby, and a nonstriking employee, who stated he saw Dlugolecki standing near the broken windows but that he did not see who broke the window--does not preclude a finding by the ALJ of no strike misconduct. The ALJ credited Dlugolecki's testimony over Augusta's witnesses. We again emphasize that "credibility determinations are to be made by the ALJ and the Board and will not be overturned by a reviewing court absent extraordinary circumstances." NLRB v. Illinois-American Water Co., S. Div., 933 F.2d 1368, 1374 (7th Cir.1991) (quoting NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 687 (7th Cir.1982)); see also NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613, 622 (7th Cir.1981). " 'Extraordinary circumstances' include bias by the ALJ or the ALJ's disregard for sworn testimony." Berger, 678 F.2d at 679. Such circumstances do not exist here. Just because the ALJ credited the testimony of the striker over that of the witnesses for Augusta does not provide a grounds for reversal. See NLRB v. Del Rey Tortilleria, Inc., 787 F.2d 1118, 1121 (7th Cir.1986). An ALJ's credibility resolutions are entitled to deference when a choice must be made between competing versions of the same incident. Richmond Recording, 836 F.2d at 295. Sufficient evidence exists on the record to determine that Dlugolecki did not engage in strike misconduct. 29 A more difficult task faces us with regard to Miroslaw Browarski, the other striker discharged for misconduct. Augusta attempted to introduce into evidence the affidavit of nonstriking employee Frank Acevedo, whose statement was taken by a Board agent in January 1986, which indicated that Acevedo saw Browarski throw a board at one of Augusta's windows. The ALJ ruled that Acevedo's testimony, whether in person or through the affidavit, was inappropriate surrebuttal and should have been presented during Augusta's case in chief regarding its good faith belief of strike misconduct.10 The Board affirmed the ALJ's refusal to admit the affidavit, but solely on the basis that it did not fall within the unavailable declarant exception to the hearsay rule, see Fed.R.Evid. 804(a)(5), because Augusta had not shown that it was unable to procure Acevedo's presence at the hearing by process or other reasonable means. 30 The Board raises two primary arguments to support its determination--one threshold, the other substantive. First, the Board asserts that Augusta is barred from seeking review here because it failed, under § 10(e) of the Act, to request reconsideration before the Board. See Pet'r Br. at 27. Section 10(e) provides that, absent extraordinary circumstances, we may not consider objections that were not presented to the ALJ or Board.11 The provision serves two purposes. First, it has a notice function that ensures that the Board has the first opportunity to resolve all issues properly before it. NLRB v. Wayne Transp., Div. of Wayne Corp., 776 F.2d 745, 749 (7th Cir.1985). Second, "it ensures against repetitive appeals to the courts." Id.; see also U.S. Marine Corp., 944 F.2d at 1319 n. 17. The Board has implemented this statutory policy by adopting regulations providing that "[a]ny exception to a ruling, finding, conclusion, or recommendation which is not specifically urged shall be deemed to have been waived," 29 C.F.R. 102.46(b), and that "[n]o matter not included in exceptions or cross-exceptions may thereafter be urged before the Board, or in any further proceeding." Id. § 102.46(h). In interpreting § 10(e), the notice function is paramount: we determine "whether a party's exceptions are sufficiently specific to apprise the Board that an issue might be pursued on appeal." Consolidated Freightways v. NLRB, 669 F.2d 790, 793 (D.C.Cir.1981). "In short, the statute requires notice of objection." Local 900, Int'l Union of Elec., Radio and Machine Workers, AFL-CIO v. NLRB, 727 F.2d 1184, 1192 (D.C.Cir.1984). 31 Here, Augusta filed numerous exceptions to the ALJ's recommendations. One of those specifically objected to the exclusion of the affidavit: "The [ALJ] erred in rejecting Respondent's offer of proof proffering the testimony of Frank Acevedo as direct evidence of strike misconduct by striker Mirolsaw Browarski." Resp't Employer's Exceptions to the Administrative Law Judge's Decision and Recommended Order at 1. The Board argues that Augusta nevertheless was obliged to seek reconsideration of the Board's decision. We disagree. Augusta's exception to the ALJ's decision to exclude the affidavit and accompanying brief were adequate to apprise the Board that Augusta intended to press the issue now on appeal. Although Augusta did not object specifically to the Board's evidentiary determination through a motion for reconsideration, our inquiry "must be guided by the purposes of section 10(e)." Local 900, 727 F.2d at 1192. Here, Augusta's argument was considerably more focused than the general pro forma objections found to be impermissibly vague in other cases finding a § 10(e) bar, see NLRB v. Blake Constr. Co., 663 F.2d 272, 284 (D.C.Cir.1981), and its objection to the exclusion of the affidavit was specific enough to alert the Board that its exclusion on any grounds would be an issue on appeal. 32 On to the substantive issue. Section 10(b) of the Act provides that the Board shall, "so far as practicable," conduct unfair labor practice hearings in accordance with the Federal Rules of Evidence. 29 U.S.C. § 160(b). The Board is not bound absolutely to apply the Federal Rules of Evidence under this provision, NLRB v. Maywood Do-Nut Co., 659 F.2d 108, 110 (9th Cir.1981), and it may, where appropriate, fashion its own particular rule of evidence--for example, where a rule will facilitate the bargaining process. See id. (within Board's discretion under § 10(b) to establish rule excluding surreptitiously prepared tape recordings of negotiations in light of chilling effect such evidence would have on bargaining process) (citing Carpenter Sprinkler Corp. v. NLRB, 605 F.2d 60, 66 (2d Cir.1979)). However, this does not necessarily "justify the exclusion of evidence ... which it would be error to exclude ... in a federal district court." Maywood Do-Nut, 659 F.2d at 110 (quoting General Eng'g, Inc. v. NLRB, 341 F.2d 367, 374 (9th Cir.1965)). Here, the Board cites to Fed.R.Evid. 804(a)(5), and explicitly acknowledges that it "relied solely on the rules governing hearsay" in excluding the affidavit. Pet'r Br. at 26. The "as far as practicable" provision is therefore inapplicable here, and we must determine whether the Board correctly applied the federal evidentiary rules in excluding Acevedo's affidavit based on Augusta's failure to show unavailability. See NLRB v. Bakers of Paris, Inc., 929 F.2d 1427, 1434 (9th Cir.1991) (court ordinarily determines whether the Board properly applied Federal Rules of Evidence). 33 The Board and Augusta agree that the affidavit was hearsay. The Board determined that the affidavit was inadmissible under the unavailable declarant exception to the hearsay rule because Augusta had not shown that it was unable to procure Acevedo's presence at the hearing by process or other reasonable means.12 Augusta had the burden of demonstrating that Acevedo was unavailable. See Moore v. Mississippi Valley State Univ., 871 F.2d 545, 552 (5th Cir.1989). 34 Augusta does not dispute that it did not demonstrate Acevedo's unavailability; rather, it maintains that the ALJ prevented it from doing so. According to Augusta, when the ALJ rejected the affidavit on the ground that it should have been offered in Augusta's case-in-chief, the ALJ refused to allow Augusta to include in the offer of proof the necessary information to establish Acevedo's unavailability. Augusta argues that "[t]he Board transmutes the ALJ's refusal to accept unavailability information into a failure by Augusta to make a showing that it was unable to procure his attendance...." Reply Br. at 17. 35 The Board contends, however, that Augusta had an opportunity to satisfy the rule, "at the point when the [ALJ] allowed an offer of proof as to what the affidavit said." Pet'r Br. at 27. We agree. Augusta admits that it intended to include in the offer of proof its showing of Acevedo's unavailability. See Resp't Br. at 32 ("Counsel for Augusta attempted make [sic] an offer of proof setting out ... the unavailability of the Mr. Acevedo [sic] when ALJ Denison interrupted and refused any offer of proof other than an oral statement about what the witness say [sic] if allowed to testify."). A review of the transcript from that offer of proof indicates that the ALJ did not, as Augusta asserts, preclude it from making that showing; the ALJ's interruption did not occur until after Augusta's counsel had fully addressed the unavailability issue: 36 Arnold: The offer of proof, your honor, is this, that the witness, Mr. Frank Acevedo, is unavailable and that his attendance to testify cannot be procured by process or other reasonable means as a result we offer to present in as Respondent's Exhibit Number 12, the affidavit of Mr. Frank Acevedo which affidavit is signed and sworn to before an Agent of the [Board], dated January 24, 1986 and if this Exhibit is accepted and placed in the record, it will reflect Mr. Acevedo's testimony.... 37 Judge Denison: Now this is not a proper offer of proof. I am sorry. It--you are one step removed. An offer of proof is that if a witness were permitted to testify, a witness would testify "xyz." 38 Tr. at 853. Augusta's conclusory offer of proof offered nothing except the plain assertion that Acevedo was unavailable. See Moore, 871 F.2d at 552. Augusta failed to explain why Acevedo was unavailable, or to show that it had attempted to procure Acevedo's presence. Accordingly, we uphold the Board's ruling that the affidavit was inadmissible pursuant to Fed.R.Evid. 804(a)(5). 39 In the absence of the Acevedo affidavit, we find that substantial evidence existed upon which the Board could determine that Browarski did not engage in strike misconduct sufficient to warrant discharge. We uphold the Board's determination that Augusta was in violation of the Act by discharging Dlugolecki and Browarski on strike misconduct grounds. 40 * * * * * * 41 For the foregoing reasons, we grant enforcement of the Board's order. 1 The Union did not allege that this action constituted an unfair labor practice, and the strike was never converted into an unfair labor practice strike 2 The order also requires Augusta to cease and desist from the unfair labor practices found, as well as from any similar conduct in restraint of employees' rights under § 7 of the Act, 29 U.S.C. § 157; to expunge from its records and files all references to the misconduct charges and to notify the two involved employees that the references have been expunged; and to post appropriate notices 3 The Board ordered the company to bargain on October 13, subsequent to its correspondence with the union but prior to our opinion in the case 4 Augusta maintains that the "chain of conditions" surrounding the letter also supports this reading. It contends that the picketing employees had carried signs the substance of which read "[t]his plant on strike," until approximately March 31--that is, until following the receipt of Augusta's March 27 letter--at which time the signs were altered to read, "Augusta-Heck's Bakeries is unfair to organized labor. They refuse to bargain...." Says Augusta, "The timing here is simply too perfect to be coincidence." The crux of the contention is this: The letters were sent together, at the same time through the same courier. The "offer letter" made an offer to return on behalf of the employees "and the Union." When Augusta asked whether the offer was conditioned upon bargaining, the Union did not clarify the offer, but rather, changed its picket signs--deleting the references to the strike and replacing them with references to bargaining. This, says Augusta, clearly indicates that the Union's prime concern was its own return, not the return of the employees, and that the offer was therefore conditioned on bargaining According to Augusta, "had the Union not ceased picketing at or about the time of its alleged offer to return, Augusta would have been that much more justified to discount the Union's alleged offer to return." Resp't Br. at 14. However, the ALJ found that, based on the evidence and credibility determinations, picketing was halted March 24 and resumed only when it was apparent that Augusta did not plan to reinstate the strikers. The Board upheld the ALJ's credibility determinations. Upon review of the record, we find that the Board's determination was based on substantial evidence. We also note that counsel for Augusta conceded at oral argument that the picketing issue is not, ultimately, determinative in resolving whether the offer was conditional. 5 Laidlaw Corp., 171 N.L.R.B. 1366 (1968), enf'd, 414 F.2d 99 (7th Cir.1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970). See Aqua-Chem, Inc., 910 F.2d at 1489 (emphasis omitted) (observing that Laidlaw preferential hiring strikes a balance between the rights of organized workers and business "by allowing replacement workers to be kept on permanently (in order to give the replacement workers adequate incentive to take replacement jobs), but by requiring genuine vacancies in the workforce to be given, in line of seniority, to the striking workers after the strike is over.") 6 In finding that Augusta had failed to establish the permanency of the replacements, the ALJ observed that Augusta called none of the 16 hires to testify. Rather, the parties by stipulation introduced into evidence Joint Exhibit 20, which consisted of excerpts from a separate hearing in which three replacement workers had testified about the circumstances of their employment with Augusta. It was also stipulated that the ALJ could make credibility findings based on that exhibit 7 Augusta also contends that the ALJ took out of context the testimony of manager Robert Murdoch, in which he stated that it was not until his March 25 phone conversation with Arnold that they decided "whether they [the strikers] go on a Laidlaw, call them back to work, or what we do." Tr. at 621. Although Augusta's contention that we cannot put much weight on a private conversation between Augusta and its attorney regarding what course of action to follow has some merit, the Board did not rest its decision on this conversation. Given the ambiguity of the overall testimony of both Murdoch and the replacement workers, we cannot say that the Board's determination had insufficient basis in the record 8 Two had begun receiving pension benefits from the Union's pension fund prior to the March 24, 1986, "offer" letter, and the third was to begin receiving benefits April 1. Augusta notified the third that he would be retired as of April 1 or, if he elected not to receive the benefits, would be placed on the preferential hiring list. According to Augusta, it therefore had an additional lawful reason--i.e., permanent replacement--not to offer him reinstatement. The Board rejected (as do we) this contention, adopting the ALJ's finding that the replacements were not permanent hires 9 We disagree with the Board's contention that the fact that the plan's failure to preclude employees from returning to work indicated to Augusta that the retirement might be temporary. The Giddings plan, too, provided for the possibility of re-employment, but the Board found this factor unpersuasive We also disagree with Augusta's claim that the fact that the "retirees" would suffer penalties under the plan if they returned to regular employment (pension payments are temporarily suspended upon the pensioner's return to work) indicates an intent to sever. Faced with economic realities, surely some employees would be willing to suffer some loss in the long run in return for financial survival in the short run. 10 As mentioned previously, the employer's honest belief that striking employees have engaged in misconduct provides an adequate defense to a charge of discrimination in refusing to reinstate the strikers, "unless it affirmatively appears that such misconduct did not in fact occur." Rubin Bros. Footwear, 99 N.L.R.B. at 611. Once the employer establishes the good faith belief, "the General Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such misconduct." Id. The employer may then rebut with evidence that the unlawful conduct did occur. Id 11 Section 10(e) provides in pertinent part: No objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. 29 U.S.C. § 160(e). 12 Fed.R.Evid. 804(a)(5) defines a witness as "unavailable" where the declarant "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance ... by process or other reasonable means."

FILED NOT FOR PUBLICATION MAR 14 2017 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SERGIO GALLARDO-DAVILA, No. 15-73096 Petitioner, Agency No. A087-756-343 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 8, 2017** Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges. Sergio Gallardo-Davila, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). questions of law, and review for abuse of discretion the denial of a motion to remand. Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1061-62 (9th Cir. 2008). We deny in part and dismiss in part the petition for review. Contrary to Gallardo-Davila’s contention, the BIA used the proper “future- oriented” standard in conducting its hardship determination. See Figueroa v. Mukasey, 543 F.3d 487, 497-98 (9th Cir. 2008). We also reject Gallardo-Davila’s contention that the BIA engaged in improper factfinding as unsupported by the record. Because the BIA conducted a de novo review of the hardship determination, we do not consider Gallardo-Davila’s challenges to the IJ’s hardship determination. See Romero-Ruiz at 1061 (“Where the BIA conducts an independent review of the IJ’s findings, we review the BIA’s decision and not that of the IJ.”). The BIA did not abuse its discretion in declining to remand based on ineffective assistance of counsel, where Gallardo-Davila failed to establish prejudice from his prior attorneys’ alleged ineffective assistance. See Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005) (to prevail on an ineffective assistance claim, a petitioner must show prejudice). 2 15-73096  Nor did the BIA abuse its discretion in declining to remand to allow Gallardo-Davila to apply for asylum and related relief, where he failed to show that his new evidence would likely change the result of his case. See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008). We lack jurisdiction to consider Gallardo-Davila’s unexhausted contention that he was denied a fair hearing. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010). We do not consider the new evidence referenced in Gallardo-Davila’s opening brief. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is limited to the administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010). Gallardo-Davila’s request for referral to the court’s mediation program is denied, and to the extent Gallardo-Davila contends his case warrants a favorable exercise of prosecutorial discretion, we lack jurisdiction to consider this contention. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012). In light of this disposition, we do not reach Gallardo-Davila’s remaining contentions regarding his prior counsels’ alleged lack of competence or the applicability of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 15-73096 

775 So.2d 11 (2000) Dr. Allen J. ELLENDER, Jr., et al. v. GOLDKING PRODUCTION COMPANY and Denovo Oil & Gas Company. No. 99CA0069. Court of Appeal of Louisiana, First Circuit. June 23, 2000. Rehearing Denied August 15, 2000. Writ Denied February 16, 2001. *13 Virgil A. Lacy, III, Metairie, James M. Funderburk, Houma, Counsel for Plaintiffs/Appellants, Allen Ellender, et al. Richard F. Zimmerman, Jr., Baton Rouge, Counsel for Defendant/Appellee, Olin Corp. Matthew J. Randazzo, III, New Orleans, Counsel for Defendant/Appellee, Concise Oil & Gas. Bruce Schewe, New Orleans, Counsel for Defendant/Appellee, G S Oil & Gas Co. John Y. Pearce, New Orleans, Counsel for Defendant/Appellee, DeNovo Oil & Gas. James M. White, III, New Orleans, T. Brooke Farnsworth, Houston, TX, Counsel for Defendant/Appellee, Austral Exploration. Scott A. O'Connor, New Orleans, Counsel for Defendant/Appellee, Goldking Oil & Gas. B. Richard Moore, Jr., New Orleans, Counsel for Defendant/Appellee, La. Intrastate Gas Co. Before: LeBLANC and FOIL, JJ., and KLINE[1], J. Pro Tem. LeBLANC, J. The issues before us in this appeal are whether the lower court erred as a matter of law in applying the three year prescriptive period of La. C.C. art. 3494(5) and whether the defense of contra non valentem is available to plaintiffs to defeat defendants' plea of prescription. FACTS AND PROCEDURAL HISTORY The procedural history of this matter is lengthy and complex, involving eight supplemental and amending petitions by plaintiffs, numerous orders for substitution of parties plaintiff, the naming and dismissal of multiple defendants, and the filing of copious motions and exceptions. We will limit our discussion of the facts to those deemed essential to the issues raised in this appeal. In the 1970s, landowners[2] of property located in the area of Terrebonne Parish known as the Montegut Field negotiated mineral leases for oil and gas exploration and production with various oil producers.[3] Pursuant to the mineral leases, the landowners were due royalty payments on any minerals produced. Gas produced from the Montegut Field was sold under contracts to Louisiana Intrastate Gas Corporation (LIG). In 1983, the contract price to be paid for gas purchased was renegotiated by LIG. LIG was obligated to pay to the defendant-producers "the best price" for the gas it purchased. The landowners brought suit. In their fifth petition they allege that the defendant-producers allowed LIG to "pay a price for gas ... less than the highest price being paid by LIG in other fields in Terrebonne Parish" and "failed to act prudently in the operation of the Subject Leases". Plaintiffs sought royalties, damages, interest, monetary relief and attorney fees. Several named defendants filed a motion for summary judgment, arguing the three year prescriptive period set forth in La. C.C. art. 3494(5) governed plaintiffs' *14 claims. In response, plaintiffs asserted this is a breach of contract case subject to the ten year prescriptive period of La. C.C. art. 3499. Plaintiffs claimed their damage is from the breach of the implied obligation to prudently market and sell the gas produced, although admittedly measured as the difference in the amount of royalty paid and the amount of royalty that would have been due if the gas had been prudently marketed. Alternately, plaintiffs urged the application of the doctrine of contra non valentem agere nulla currit praescriptio. The district court granted defendants' motion for summary judgment, holding that the claims by plaintiffs were claims for underpaid royalties, governed by article 3494(5), and that the running of prescription was not suspended under the doctrine of contra non valentem.[4] Plaintiffs appeal, and two named defendants have answered plaintiffs' appeal. I. A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966; Rambo v. Walker, 96-2538, p. 4-5 (La.App. 1 Cir. 11/7/97), 704 So.2d 30, 32. The burden is on the mover first to show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Only after the mover has met this initial burden may summary judgment be rendered against an adverse party who fails to make a showing sufficient to establish the existence of proof of an element essential to his claim. La. C.C.P. art. 966 B and C. Once a party seeking a summary judgment properly supports the motion and carries his burden of proof, the law requires the non-moving party who opposes the motion for summary judgment to submit evidence showing the existence of specific facts establishing a genuine issue of material fact, effectively shifting the burden of proof to the non-moving party. The non-moving party is no longer allowed to rely on the allegations of its pleadings in opposition to a properly supported motion for summary judgment. Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-92, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. Appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Rambo, 96-2538 at 5, 704 So.2d at 32-33. II. Louisiana Civil Code article 3494(5) provides: "The following actions are subject to a liberative prescription of three years: ... An action to recover underpayments or overpayments of royalties from the production of minerals...." However, article 3499 provides: "Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years." If plaintiffs' claims are for royalties, the controlling prescriptive period is three years; if the claims are for damages relative to a breach of contract, plaintiffs' claims do not prescribe for ten years. *15 In order to determine whether a claim is one for royalties, the court must look to the petition. Wilson v. Palmer Petroleum, Inc., 97-2386, p. 5 (La.App. 1 Cir. 11/26/97), 706 So.2d 142, 145, writ denied, 97-3204 (La.3/13/98), 712 So.2d 879. Plaintiffs quote extensively in brief to this court from their Fifth Supplemental, Amended and Restated Petition, wherein they assert: [Defendants] failed to seek and receive from LIG prices in the ..... Montegut Field which were at least as high as the highest price paid by LIG in any other field in Terrebonne Parish ... and [defendants] failed to act prudently in the operation of the Subject Leases .... The [defendants] acted in their own self-interest, despite the expressed and implied terms of the Subject Leases and the obligations imposed by the Louisiana Mineral Code. Moreover, the [defendants] acted imprudently and failed to administer the Subject Lease ... by their total and complete abandonment of the marketing duties imposed on them by the Subject Leases and the Louisiana Mineral Code. * * * ...[T]hus, the [defendants'] actions constitute breaches of their obligations under the Subject Leases and ... the Louisiana Mineral Code. Article 122 of the Louisiana Mineral Code, found at La. R.S. 31:122, provides: A mineral lessee is not under a fiduciary obligation to his lessor, but he is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee. The Comments contain the following narration: In Louisiana, the general obligation to act as a "good administrator" or "prudent operator" has been clearly specified in four situations: (1) the obligation to develop known mineral producing formations in the manner of a reasonable, prudent operator; (2) the obligation to explore and test all portions of the leased premises after discovery of minerals in paying quantities in the manner of a reasonable, prudent operator; (3) the obligation to protect the leased property against drainage by wells located on neighboring property in the manner of a reasonable, prudent operator; and (4) the obligation to produce and market minerals discovered and capable of production in paying quantities in the manner of a reasonable, prudent operator. Additionally, the obligation of the lessee to restore the surface of the lease premises on completion of operations may be viewed as a part of this general standard. * * * Diligence in marketing: A mineral lessee is under a duty to exercise reasonable diligence to secure a market for minerals that have been produced or are capable of being produced in paying quantities. There is rarely a problem in this regard where oil is being produced, as ready markets can usually be found. Most problems arise in connection with the marketing of gas where the magnitude of reserves has not been proved, a market is not readily available, marketing facilities are not available, or administrative delays are involved. Although plaintiffs maintain their claims are for an alleged breach of contract, i.e. the duty to prudently market, we find their claims to be for the underpayment of royalties. By choice of words and artful phrasing, the plaintiffs attempt to alter the controlling prescriptive period. However, the underpayment of royalties is why plaintiffs seek redress. *16 In Parker v. Ohio Oil Company, 191 La. 896, 915-17, 186 So. 604, 610-11 (1939), the Supreme Court held plaintiffs' demand for an accounting of and payment for all royalties due from property inherited by plaintiffs to be subject to the three-year prescriptive period now found in article 3494(5). The court stated: The plaintiffs are not entitled to the benefit of the ten-year prescriptive period... because they have demanded that defendant furnish a statement showing the amount of oil produced and its value. They cannot be permitted to reap the benefits of the longer prescriptive period merely by calling their suit one for an accounting. Parker, 191 La. at 917, 186 So. at 611. The plaintiffs petition for an accounting of royalties, payment due, and damages in Acadia Holiness Association v. IMC Corporation, 616 So.2d 855, 857 (La.App. 3 Cir.), writ denied, 620 So.2d 842 (1993), was also held to be a suit for underpayment of royalties, subject to a three-year prescriptive period. The Court in Acadia relied on Breaux v. Pan American Petroleum Corporation, 163 So.2d 406 (La.App. 3 Cir.), writ denied, 246 La. 581, 165 So.2d 481 (1964) and from Breaux we also are guided. The plaintiffs in Breaux brought an action for damages alleged to have been sustained by them as a result of a breach by defendants of an implied condition in their mineral lease. The breach by the defendants in Breaux was failure to protect plaintiffs from the drainage of oil and gas from beneath the surface of their land. As cited above, the general obligation of the lessee to act as a "good administrator" has been specified in four situations: (1) the obligation to develop; (2) the obligation to explore; (3) the obligation to protect against drainage; and (4) the obligation to produce and market minerals discovered. An action for the breach of the obligation to protect against drainage was held in Breaux to be a royalty claim. See Breaux, 163 So.2d at 415. Likewise, an action for the breach of the obligation to market is a royalty claim. In La. R.S. 31:213(5) royalty is defined as "any interest in production, or its value, from or attributable to land subject to a mineral lease, that is deliverable or payable to the lessor or others entitled to share therein. Such interests in production or its value are `royalty[.]'" The rights and interests asserted by plaintiffs in the instant matter are for the plaintiffs' interest in the value of the oil that was allegedly imprudently marketed and undersold. They seek to assert their claim to royalties. A royalty claim does not change its identity based on its characterization. See Wilson, 97-2386 at 5, 706 So.2d at 145. As royalty claims, plaintiffs' claims are subject to the three year prescriptive period found in article 3494(5). We find no merit to this assignment. III. In the alternative, plaintiffs urge the application of the doctrine of contra non valentem agere nulla currit praescriptio raises genuine issues of material fact such that summary judgment was improper. The judicially created doctrine of contra non valentem is an exception to the general rule of prescription and is based on the civilian concept that prescription does not run against a party who is unable to act. American Casualty Company v. Security Industrial Insurance Company, 98-2075, p. 4 (La.App. 1 Cir. 11/5/99), 745 So.2d 832, 834. The doctrine is applied in four general situations: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action; (2) where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor *17 from availing himself of his cause of action; (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Corsey v. State, Department of Corrections, 375 So.2d 1319, 1321-22 (La.1979). Contra non valentum is an exceptional remedy recognized by our jurisprudence which is in direct contradiction to the articles in the Civil Code and therefore should be strictly construed. La Plaque Corporation v. Chevron U.S.A., Inc., 93-1597, p. 4-5 (La.App. 4 Cir. 5/26/94), 638 So.2d 354, 356, writ denied, 94-2125 (La.11/11/94), 644 So.2d 395. Plaintiffs assert the defendants' actions prevented them from availing themselves of their cause of action and that their cause of action was not reasonably knowable. In the instant case, we find plaintiffs have raised no genuine issue of material fact concerning either allegations or evidence of acts by the defendants which prevented plaintiffs from availing themselves of their cause of action, nor do we find any issue of fact concerning whether plaintiffs' cause of action was known or could have been discovered through the exercise of reasonable diligence. Although plaintiffs argue the defendants failed to inform them of specific information, such as the reasons for the drop in the price of natural gas in the 1980's or defendants' legal position asserted in other collateral litigation, there is no allegation of an act by defendants that prevented plaintiffs from availing themselves of their cause of action. There is no issue of fact concerning any act by defendants that prevented plaintiffs from acting. In addition, plaintiffs surely had knowledge that the amount paid to them by defendants was diminishing during the 1980's. The dollar amount of the checks the plaintiffs received during that time period was dramatically less. While it might be argued that each and every plaintiff did not inform himself of the provisions of every other gas contract from the Montegut Field, and therefore was not able to determine if he were receiving the "best" price, the obvious substantial reduction in their royalty checks alone was enough to alert them to question and attempt to protect their interests. Simple friendly inquiry among family members and neighbors was available and would have done much to enlighten plaintiffs, and the price paid for gas from the Montegut Field, and elsewhere, is a matter of public record maintained by the Louisiana Public Service Commission. See La Plaque Corporation v. Chevron U.S.A., Inc., 93-1597, p. 7 (La.App. 4 Cir. 5/26/94), 638 So.2d 354, 357. In the fourth situation described above, contra non valentem will not except a plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned. Corsey, 375 So.2d at 1322. There is no issue of fact concerning what plaintiffs could have reasonably known. Plaintiffs' inaction is not excused under the doctrine of contra non valentum. There is no merit to this assignment. The judgment of the district court is affirmed. IV. Lastly, we address the answers filed by two of the named defendants in this matter. Olin Corporation and DeNovo Oil & Gas, Inc. each filed an answer to plaintiffs' appeal, raising the issue of the district court's denial of their motions for summary judgment wherein each sought dismissal of plaintiffs' claims.[5] The denial of a motion for summary judgment is an interlocutory judgment and is not appealable. *18 Varnado v. Hospital Service District No. 1 of Parish of Assumption, 98-0468, p. 4 (La.App. 1 Cir. 4/1/99), 730 So.2d 1066, 1068; see La. C.C.P. arts. 968 and 1841. The issues raised in the answers to the appeal are not properly before us, and the defendants' answers to the appeal are dismissed. CONCLUSION For the above and foregoing reasons, we find no error with the district court's judgment. The decision of the district court is affirmed, and all costs of the appeal are assessed against the plaintiffs. AFFIRMED. KLINE, J. Pro Tem., concurs with reasons. FOIL, J., dissents KLINE, J. Pro Tem., concurring. For the following reasons, I respectfully concur in the result reached by the majority. I agree that LSA-C.C. art. 3494(5) provides the applicable prescriptive period under the particular facts of this case. As correctly stated by the majority, the pleadings govern the applicable prescriptive period. In the present case, the plaintiffs alleged a breach of the marketing duties imposed on the defendants by the subject leases and the Louisiana Mineral Code, as well as a breach of the defendants' obligation to operate the subject leases prudently. However, the only damages sought by the plaintiffs were money damages, measured by the amount of the alleged underpayment of royalties in the Northeast Montegut Field, along with interest and attorney fees. The plaintiffs also prayed for damages "double the amount of royalty found to be due herein...." Thus, in light of the facts and holding in Acadia Holiness Association v. IMC Corporation, 616 So.2d 855 (La.App. 3rd Cir.), writ denied, 620 So.2d 842 (La.1993), relied upon by the majority, and in consideration that the only damages sought by the plaintiff in the present case are measurable by the amount of royalties due, but not paid, I agree that LSA-C.C. art. 3494(5) provides the applicable prescriptive period. However, if the remedy sought by the plaintiffs had been different, such as cancellation of the lease or specific performance of the lessees' duties under the lease, this same prescriptive period may not have been applicable. FOIL, J., dissenting. I feel that a 10 yr. period is applicable. NOTES [1] Judge William F. Kline, Jr., retired, serving by special appointment of the Louisiana Supreme Court. [2] The named plaintiffs in the original petition filed in this matter number over 75. [3] The defendant-producers named in plaintiffs' petitions number over 25. [4] The district court issued two separate judgments, dated February 5 and August 13, 1998. In a subsequent order, the district court designated the August 13 judgment a final and appealable judgment, pursuant to La. C.C.P. art. 1915. [5] Olin's motion was based on a lack of duty; DeNovo's motion was based on lack of contractual privity.

Court of Appeals of the State of Georgia ATLANTA, March 16, 2017 The Court of Appeals hereby passes the following order A17I0166. UNITED DEVELOPMENT JONESBORO ROAD, LLC v. JANICE JEROME. Upon consideration of the Application for Interlocutory Appeal, it is ordered that it be hereby DENIED. LC NUMBERS: 2015CV01850 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, March 16, 2017. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 09 2020, 10:54 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA John M. Ross, April 9, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1725 v. Appeal from the Ohio Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff. Humphrey, Judge Trial Court Cause No. 58C01-1802-F2-2 Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 1 of 4  Statement of the Case [1] John M. Ross appeals the trial court’s calculation of his credit time after Ross pleaded guilty to conspiracy to dealing in methamphetamine, as a Level 4 felony; possession of methamphetamine, as a Level 5 felony; and to being a habitual offender. We affirm. Facts and Procedural History [2] On May 16, 2019, Ross entered into a plea agreement with the State in which Ross agreed to plead guilty to conspiracy to dealing in methamphetamine, as a Level 4 felony; possession of methamphetamine, as a Level 5 felony; and to being a habitual offender. Pursuant to the plea agreement, Ross was entitled to “receive credit for time served as well as good time for the same.” Appellant’s App. Vol. 3 at 138. He also “waive[d] the right to appeal any sentence imposed . . . so long as the Court sentences [him] within the terms of this plea agreement.” Id. [3] At his ensuing sentencing hearing, the court noted that the Presentence Investigation Report (“PSI”) stated: “The Defendant has been serving a Probation Violation sentence” in another cause number, although the violation, which Ross admitted, was based on the instant offenses, and Ross was “entitled to [zero] days” of credit “on his current cause.” Id. at 96. Ross responded that, because his agreement stated that he “shall receive credit for time served, as well as good time for the same,” even though “these matters must run consecutively, by operation of law, . . . it would be appropriate for [Ross] to Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 2 of 4  receive credit for the time he was in jail on both this case and the probation violation . . . .” Tr. Vol. 2 at 19-20. The court asked Ross’s counsel, “So, is your client asking for double credit?” Id. at 20. Ross’s counsel responded, “Yes.” Id. Thereafter, the trial court sentenced Ross with zero days credit time. This appeal ensued. Discussion and Decision [4] Ross appeals the trial court’s award of zero days of credit time. “Because credit time is a matter of statutory right, trial courts do not have discretion in awarding or denying such credit.” Harding v. State, 27 N.E.3d 330, 331-32 (Ind. Ct. App. 2015). However, it is the appellant’s burden to show that the trial court’s calculation of credit time is erroneous. Id. [5] Ross’s entire argument on appeal is that his plea agreement unambiguously entitled him to an award of credit time in the instant cause equivalent to the award of credit time he received while serving his probation violation in a separate cause. 1 We cannot agree. Ross’s plea agreement stated that he “shall receive credit for time served as well as good time for the same.” Appellant’s App. Vol. 3 at 138. That language unambiguously entitled him only to any credit time he had properly accrued “for time served” on the instant cause, which likewise required the court to consider extrinsic evidence, namely, the 1 The State asserts that Ross waived his right to appeal his sentence in his plea agreement. But Ross’s waiver was limited to only if the court sentenced him in accordance with the terms of the plea, and his argument on appeal is that that did not happen. As such, Ross’s argument is properly before us. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 3 of 4  PSI, to determine that time. Nothing in the plea agreement’s language entitled Ross to a particular amount of credit time or to credit time to which he would not otherwise have been entitled. [6] Ross makes no argument on appeal that he was entitled by statute to receive credit time in the instant cause in addition to the credit time attributed to his probation violation. His only argument is that his plea agreement was intended to require the court to double count his credit time. Again, we reject that argument and, as such, we affirm the trial court’s calculation of Ross’s credit time pursuant to his plea agreement. [7] Affirmed. Kirsch, J., and Brown, J., concur. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1725 | April 9, 2020 Page 4 of 4 

33 So.3d 657 (2008) EX PARTE TOMMIE LEE HAUSEY, SR. No. CR-07-2129. Court of Criminal Appeals of Alabama. November 4, 2008. Decision of the Alabama Court of Criminal Appeal Without Published Opinion Rehearing denied.

493 F.Supp.2d 880 (2007) Candelaria C. PONCE, as Personal Representative for the Estate of Abelino Ponce, Deceased; Able Ponce, Naomi Ponce, Individually and as Next Friend of Son, Joel Eugene Ponce, a Minor Child; Candelaria Martinez, Individually and as Next Friend of Son, Abel Rene Ponce, a Minor Child; Jose Ponce; Arthur Ponce; Juan Ponce; and Paula Gomez Ponce, Plaintiffs v. M/V ALTAIR, her engines, boilers, tackle, apparel, etc., in rem; and Scarlati Ventures, Inc. and B Navi Spa, in personam, Defendants. No. C.A. G-05-539. United States District Court, S.D. Texas, Galveston Division. June 7, 2007. *881 *882 Guy Lee Womack, Attorney at Law, Douglas Travis Gilman, Gilman & Allison, Houston, TX, for Plaintiffs. *883 David R. Walker, Royston Rayzor et al, Houston, TX, for Defendants. FINDINGS OF FACT AND CONCLUSIONS OF LAW SAMUEL B. KENT, District Judge. This case was tried to an advisory jury panel on October 16, 2006, with the Honorable Samuel B. Kent presiding. Having carefully considered all the trial testimony, exhibits, pleadings, credibility of each witness, the jury's recommended findings and verdict, and all post-trial submissions, particularly including the proposed findings of fact and conclusions of law from both sides, the Court hereby enters its Findings of Fact and Conclusions of Law. I FINDINGS OF FACT A Nature of the Case 1. This wrongful death and survival case centers on the October 4, 2005 fatality of Mr. Abelino Ponce ("Ponce"), a 56-year-old longshoreman killed while working aboard the WV ALTAIR[1] in the Port of Houston. Mr. Ponce was operating the vessel's No. 1 cargo boom and unbeknownst to Mr. Ponce, the boom was missing a wire runner guide. The missing runner guide allowed the wire runner to excessively slacken and "catch" or snag on a make-shift "step" that had been welded to equipment underneath the boom. While standing at the winch controls, with the boom in operation, the wire runner broke free from the "step", causing it to slash across the winch operation platform, striking Ponce from behind. Ponce was thrown violently several feet in the air, landing on his head and causing fatal injuries. 2. Within 24-hours of the accident,. Plaintiffs initiated this action against the WV ALTAIR in rem alleging that the premature and untimely death of Mr. Ponce occurred as a result of vessel negligence in failing to discharge the duties prescribed under 33 U.S.C. § 905(b) — consistent with standards articulated in Scindia Steam Navigation Co. v. De. Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981) and its progeny. The same day, Plaintiffs perfected arrest of the WV ALTAIR, and conducted an on-board inspection prior to releasing the vessel for departure[2] On November 28, 2005, Plaintiffs amended their pleadings to add the vessel's owner and operator, Scarlati Ventures, Inc. and B Navi SpA, respectively, as Defendants to this suit. B. Jurisdiction and Venue 3. With the exception of Paula Gomez Ponce,[3] Plaintiffs are all Texas citizens residing within the Southern District of Texas. On the morning in question, Ponce was working as a longshoreman employed by Americargo Transport ("Americargo") on the Defendants' vessel. The WV ALTAIR, having previously called upon this District on other occasions, was docked alongside the New Terminal Warehouse facility located at 1 Wharf Street, Houston, Texas 77012, within this Court's jurisdiction. In connection with the arrest, Defendants' P & I insurer, Steamship Mutual *884 Underwriting Association (Bermuda) ("Claimant"), posted a Letter of Undertaking as security for the vessel's release. Claimant subsequently executed waivers of service and answered on behalf of Defendants herein. 4. The Court finds that this case is properly brought within its admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333, et seq. The Court further finds that it has jurisdiction over all of the parties, and that proper venue for this suit is in this District and before this Court. C. Factual Background and Liability 1. Claims Asserted 5. Plaintiffs have brought this suit pursuant to 33 U.S.C. § 905(b) against the M/V ALTAIR, Scarlati Ventures, Inc., and B Navi SpA (collectively "Defendants") alleging Defendants are jointly and severally liable and accountable for the untimely death of Ponce by reason of negligent acts or omissions committed by the vessel, her agents, representatives or employees. 6. In their pleadings, Plaintiffs state that while Mr. Ponce was operating the cargo boom on the morning of October 4, 2005, the hoist wire running along the bottom of the boom became slack, and snagged on a "step" welded to the forward winch housing in the path of the boom's travel while being swung over the starboard side of the ship. Plaintiffs allege that the hoist wire was allowed to develop slack, deviate from its intended path along the bottom of the boom, and become snagged because the vessel's cargo gear was missing a runner guard/guide. Further, Plaintiffs argue that in watching the signalman (or the load), Mr. Ponce would not have noticed the wire runner snagging on the winch to his right, behind him, because he was required to exclusively focus on either the signalman or the load at all times. 7. Plaintiffs contend that while attempting to lift a load of cargo out from Hatch No. 2, the hoist wire became taught and sprung into Ponce standing at the controls — who, unfortunately, was caught directly in the bight of the wire. Plaintiffs allege Mr. Ponce was caused to be flung some 15 to 20 feet into the air and 40 to 60 feet over to the port-side upon coming into contact with the flailing wire. Accordingly, Plaintiffs suggest the initial blows experienced by Ponce were not fatal, and that he survived a period of seconds — both on the ground and in the air — prior to succumbing to his injuries and, therefore, was caused to sustain certain conscious pain and suffering. 2. Evidence Reviewed and Findings 8. Abelino Ponce ["Ponce"] was born on October 27, 1946. Ponce worked on the waterfront as a longshoreman for over 30 years for various stevedore companies. Ponce was trained and had operated ships' cranes and gear on many occasions prior to his death on October 4, 2005. At the time of his death, Ponce earned approximately $30,000 per year. 9. Ponce is survived by his wife, Candelaria C. Ponce, his two adopted minor grandsons, Joel Eugene Ponce and Abel Rene Ponce, and his mother, Paula Gomez Ponce. Joel, Abel and Paula were completely dependent upon Ponce for financial support. Ponce is also survived by five adult children, Abel Ponce, Jose Ponce, Arthur Ponce, Candelaria Martinez, and Naomi Ponce, who all received limited and sporadic financial support and services from Ponce in varying amounts, with the exception of Abel Ponce. 10. On the morning of October 4, 2005, Ponce, a longshoreman employed by Americargo arrived at work approximately 35 to 40 minutes after 7:00 a.m. to commence discharging operations on board the M/V *885 ALTAIR. The M/V ALTAIR was owned by Scarlati Ventures and operated by B Novi SpA. At the time of the incident, the vessel was moored alongside the New Terminal Warehouse facility in Houston, Texas. The witness testimony and evidence indicate, and the Court agrees, that the M/V ALTAIR was an old ship, in remarkably poor condition, and not well maintained. In maritime parlance, it was a "rust bucket." Ponce was part of a 5-member longshore gang responsible for discharging a cargo of steel from the vessel's Hatch No. 2. There were three longshoremen working inside Hatch No. 2, and Ponce was operating the vessel's cargo boom. Another served as a flogger. 11. At or about 8:00 a.m., and prior to commencing cargo discharge operations, Ponce swung the cargo boom over the inshore side of the vessel to pick-up a loading tray from the dock. The controls for the cargo boom were located on the mast house of the vessel, amidships at the aft side of Hatch No. 2, so that the crane operator could see into Hatch No. 2. The cargo boom being utilized for the cargo discharge operations was located aft of the controls and Ponce. At the time of the accident, the ship was in light condition and high in the water, making it impossible for Ponce to see the loading tray on the dock and requiring Ponce to rely on a flag-man to retrieve the loading tray. 12. To aid the Court in explaining the sequence of events, the Plaintiffs created a computer animation of the incident. The Plaintiffs' liability expert, Eustis John Faulk, confirmed that the animation was to scale based upon the vessel's plans, witness testimony, Houston Police Department reports, and the Coroner's reports. Mr. Faulk testified that he viewed the animation and that it reasonably and accurately portrays the accident as he believed it occurred. The Court recognizes Eustis John Faulk, Plaintiffs' liability expert, as a properly qualified expert in longshore operations and cargo safety pursuant to Rule 702 of the Federal Rules of Evidence. The Court finds Mr. Faulk's testimony credible and unbiased as to the sequence of events and cause of the accident. Despite the Defendants' well presented objections to the contrary, the Court also finds that the computer animated recreation of the sequence of events is to scale and an accurate depiction of the incident based upon the evidence. The Court finds it was not improperly inflammatory and that its probative value clearly outweighs any improperly prejudicial effect. 13. Mr. Faulk testified that while the cargo boom was swung-out over the dock, the crane hook and load were out of Ponce's view, requiring him to entirely rely upon a flag-man, who was located on the dock for directing and guiding the load. Due to the height of the vessel above the dock, the flag-man positioned himself on the dock in clear view so that Ponce could see his hand signals. As Ponce swung the boom over the dock and lowered the cargo hook to retrieve the loading tray, the boom's hoist wire slacked. Mr. Faulk testified that the cargo boom was supposed to be equipped with wire runner guides to hold the wire runner alongside the edge of the boom to prevent it from sagging when there is no tension. The vessel's plans also indicate there should be a wire runner guide on the cargo boom. Unbeknownst to Ponce and the stevedore, the cargo boom was missing a wire runner guide, which had corroded off and never been repaired or replaced, which allowed the hoist wire to excessively sag and become hung-up on a make-shift "step" welded to the starboard side forward winch housing located directly below the boom. The boom and winch were behind Ponce and not in his direct view or line of sight. Richard Legrand, Ponce's supervisor, testified that in taking signals *886 from the flag-man and subsequently watching the load in front of him while swinging the boom over to the starboard or on-shore side of the vessel, the boom was "sloppy" and required Ponce to correct the swinging. This required his full concentration. As Ponce lowered the tray to the dock, the hoisting wire became excessively slack. Ponce, however, did not see that the unrestrained hoist wire had become hung on the winch "step" behind him. This was expressly confirmed by the testimony of eyewitness Mr. Faulk and Mr. Legrand. 14. Once the loading tray cleared the starboard side of the vessel, it was in clear view of Ponce and he took control of its movement over Hatch No. 2 as he was trained and is the customary practice by longshoremen. Specifically, Mr. Faulk and Mr. Legrand testified, and the Court believes, that a longshoreman must focus on the load at all times when it is in clear view. To do otherwise would be a dereliction of his duties to those in the hold. The witness testimony establishes that once Ponce centered the loading tray over Hatch No. 2, he lowered the tray down into the hatch so that the longshoremen working inside the hatch could load it with the steel cargo. From his position at the controls, Ponce could see the area in Hatch No. 2 where the loading tray was to be landed and loaded by the longshoremen working in the hatch. The Court finds Mr. Faulk's and Mr. Legrand's testimony credible that while the tray was being loaded in Hatch No. 2, Ponce, as he was trained and is customary practice by longshoreman, continued to watch the tray and cargo hook. Additionally, the Court finds persuasive Mr. Legrand's testimony that Ponce was an experienced longshoreman and was not in any way at fault for not looking around at his surroundings while the cargo of steel was being loaded onto the tray inside Hatch No. 2. 15. Once the longshoremen completed loading the tray with cargo, they signaled Ponce to lift the tray of cargo from the hatch. As Ponce hoisted the loaded tray from Hatch No. 2, he focused on the load. However, when the wire hoist line became taught with the weight of the load, the wire came free from where it had snagged on the "step." As a result, while standing at the controls, Ponce was caught directly in the bight of the wire. The Court finds credible and accepts Mr. Faulk's testimony that the missing wire runner guide directly and completely caused Ponce's untimely death and that there was no operational reason whatsoever for the cargo boom to not have a wire runner guide. The Court also finds credible Mr. Faulk's testimony that Ponce would not have noticed the missing wire runner guide or the snagged wire runner. The missing guide constitutes negligence on the part of the vessel and Defendants. 16. The testimony of another eye witness to the accident, Rissell Mendoza, confirmed that when the hoist wire came free from the "step," Ponce was struck in his right side and was suddenly and violently thrown approximately ten (10) feet in the air and fifteen (15) feet over to the far port side of the mast house. This testimony is supported by the Houston Police Department and coroner's reports and photographs. (Exs. 1 and 50). The Court finds that the initial blows experienced by Ponce were not fatal and he survived for a few seconds, both on the ground and in the air, prior to succumbing to his injuries. 17. In stark contrast to Plaintiffs' liability expert, who the Court notes testified on behalf of a plaintiff in a personal injury case for the first time in his extensive professional career, the Defendants' paid liability expert, Dean Harrison — is a regular in this Court on behalf of defendants in personal injury cases. Although the Court *887 likes and admires Mr. Harrison, having know him for over 30 years, and almost always appreciates Mr. Harrison's thoughtful, professional and insightful assistance, the Court does not find Mr. Harrison's testimony convincing or helpful regarding the precise cause of this particular accident. The Court finds Mr. Harrison's testimony that Ponce should have seen the snagged wire runner and was completely responsible for his own death as unpersuasive in light of the rest and residue of the witness testimony and evidence. Moreover, Defendants' opening statements promised evidence that mere was an operational reason for the missing wire runner guide. The Court finds that Defendants completely failed to establish any operational reason for the missing wire runner guide either through evidence or witness testimony. In fact, Defendants' liability expert bluntly conceded the same. In sum, the Defendants' alleged version of events, in which they implicate Ponce, are unpersuasive. Therefore, the Court finds that there was no operational reason for the missing wire runner guide and that the Defendants failed to exercise "ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore [would] be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety." Scindia, 451 U.S. at 167, 101 S.Ct. at 1622. The Court finds the vessel and Defendants jointly, severally and completely liable for Decedent's death and the consequent damages; the Court finds no liability on the part of Decedent. Conscious Pain and Suffering Damages 18. The injuries Ponce sustained after being struck by the hoisting wire were horrific. Ponce, a 247-pound man, was caught in the bight of the steel hoisting wire that struck him with tremendous force. 19. The Court recognizes Plaintiffs' forensic pathologist, Dr. Joseph I. Cohen, as an expert in the field of forensic pathology pursuant to Rule 702 of the Federal Rules of Evidence. Dr. Cohen testified that he performs autopsies on a daily basis to certify death certificates. Dr. Cohen testified that he has performed over 4000 autopsies in the past 15 years. Dr. Cohen reviewed post-death photographs of Ponce, the Harris County Police Department's investigative reports, the Harris County medical examiner's autopsy report and investigative report, diagrams of the autopsy, and the reports of John Faulk and Dr. Paul Radelat. Based on his extensive review of the, documents, his education, and experience, Dr. Cohen concluded that within reasonable medical probability Ponce lived for approximately one second to one second and a half. Dr. Cohen confirmed that when Ponce was struck by the hoisting wire in the right side of his torso he would have felt severe and immediate pain. Dr, Cohen further testified that the blow to Ponce's right torso fractured his ribs, bruised his right lung and caused other internal injuries that were not necessarily life threatening, and that Ponce would have been aware of his impending doom. 20. Defendants' pathology expert, Dr. Paul Radelat, who this Court recognizes as an expert in the field of anatomical-clinical pathology pursuant to Rule 702, testified that Ponce lived for less than one-tenth of a second after being struck by the hoisting wire. Dr. Radelat bases his opinion on the assumption that Ponce was struck in the right side of his skull and fell from a drum by the controls to the deck of the ship. The Court finds Dr. Radelat's testimony, unpersuasive based on the evidence, photographs of Ponce taken immediately after the accident, and the witness testimony. (Exs. 1 and 50). Moreover, Dr. Radelat agreed that if Ponce was thrown approximately 10 feet in the air and 30 feet from *888 the controls, Ponce would have lived longer than one-tenth of a second. 21. The Court finds Dr. Cohen's testimony reliable and credible regarding the amount of time Ponce survived prior to his death. Moreover, the Court finds that based on the evidence introduced in this case and the witness testimony; Ponce was struck in the right side of his torso and thrown in the air approximately 10 feet and landed 30 feet from where he was initially struck by the hoisting wire. Based on the foregoing, the Court finds that Ponce lived approximately one and a half seconds from the time he was struck by the hoisting wire until the time of his death. Economic Damages 22. The Court recognizes Dr. Kenneth G. McCoin, Plaintiffs' economist, as an expert in the field of forensic economics pursuant to Rule 702 of the Federal Rules of Evidence. The Court finds, based upon the testimony of Dr. McCoin, the standards of Culver II and its progeny, and the evidence, that Plaintiffs have sustained past and future loss of support, inclusive of past and future wages, fringe benefits, and household services. See Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir.1983). 23. According to Dr. McCoin's testimony, Ponce earned an average of $29,820 per year over the past five years, excluding 2003 for an unrelated injury he sustained. Dr. McCoin calculated Ponce's work-life expectancy at 8.0 years and fringe benefits (unemployment insurance, workers' compensation insurance, etc.) at 3%. Defendants' economist, Dr. James Yeager, who this Court also recognizes as an expert in the field of forensic economics pursuant to Rule 702 of the Federal Rules of Civil Evidence, calculated Ponce's average earning capacity at $29,153, and his expectancy at 8.02 years. 24. Based on Ponce's education, Dr. McCoin testified that Ponce's probability of work through his work-life expectancy is about 68%. Dr. McCoin deducted 7.65% from Ponce's earnings for social security and 0% for federal income tax given Ponce's standard deductions at his level of income. In determining Ponce's total economic loss, Dr. McCoin testified that Ponce consumed only 28% of his income for personal use, i.e. food, clothing, entertainment, transportation, etc., or approximately $9578 per year. Dr. McCoin testified that Ponce had approximately $14,000 net per year in support available to his survivors, which yields a past economic loss in the amount of $15,026, and a future economic loss of $154,439, for a total economic loss in the amount of $169,465. This is the total' amount available to all survivors in compensation of their lost, support. Dr. Yeager agreed that his calculation was very close to Dr. McCoin's based on Ponce's personal consumption of 27%. 25: Dr. McCoin further testified that a separate calculation is made to determine Ponce's value for household services. Dr. McCoin testified that he calculated Ponce's loss of household services at $54,000. 26. Dr. McCoin testified that based upon the Department of Agriculture study pertaining to the cost of raising children, it would cost around $XXXX-XXXX per year per child. Given the ages of the two grandchildren, who lived with Decedent, Dr. McCoin testified that it would cost approximately $80,000 to raise a child from age 7 to 18, and $60,000 to raise a child from age 11 to 18. (1) Estate of Abelino Ponce 27. The Court finds that the Estate of Abelino Ponce is entitled to past and future economic loss and funeral expenses. The funeral bill for Ponce was submitted for payment and never paid by Ponce's employer. The family also could not afford to pay the bill and it remains unpaid. *889 The Court finds that the funeral expenses incurred by the. Estate are $18,849.59. (2) Paula Gomez Ponce 28. The Court finds that Paula Gomez Ponce, Ponce's mother, has depended upon Ponce for support and services since her husband's death in the late 1980s. Ponce traveled to Reynosa, Mexico every two or three weeks to care for his mother and her house. Ponce claimed Paula Ponce as a dependent on his federal tax returns and was his mother's sole financial support. The Court finds the witness testimony credible and the evidence supports that Paula Gomez Ponce was financially dependent on Ponce for her support. (3) Abel Ponce 29. The Court finds the witness testimony and evidence establishes that Abel Ponce, Ponce's adult child, was given nominal support and services from his father. (4) Naomi Ponce and Candaleria Martinez 30. The Court finds that Naomi Ponce and Candaleria Martinez, Ponce's daughters, were financially dependent on and supported by Ponce. Naomi Ponce and her sister, Candaleria, testified that they. received approximately $450 per month from Ponce prior to his death. The money given to Naomi and Candaleria by Ponce was used to pay rent and buy groceries. The Court also finds that Ponce provided household services to Naomi and Candaleria. (5) Jose Ponce 31. The Court finds that Jose Ponce, one of Ponce's adult sons, received nominal support and services from Ponce. Jose testified that he received approximately $150 every two weeks from Ponce for support. (6) Arthur Ponce 32. The Court finds that Arthur Ponce, one of Ponce's sons, received some support and services from Ponce. The Court finds the testimony of Arthur Ponce credible and that he received money from Ponce for down payments on a car and house and that Ponce cared for him when he was unemployed due to medical complications. The Court also finds that Ponce performed services for Arthur by working on his car and around the house. (7) Joel Eugene Ponce and Abel Rene Ponce 33. The Court finds that Joel Eugene Ponce and Abel Rene Ponce, Ponce's grandsons, were financially dependent upon Ponce for their support. The witness testimony and evidence establishes that Ponce adopted Joel and Abel as his own sons, and claimed them as dependents on his tax returns. The Court finds the testimony of Naomi Ponce and Arthur Ponce credible that Joel and Abel received substantial financial support from Ponce and were Ponce's adopted children. It's also worth noting that Joel and Abel never knew their biological fathers and that Ponce gave his grandchildren his name and acted as their father. Non-Economic Damages 34. The Plaintiffs' non-economic losses are significant. The Court finds that the Ponces were a close family that shared in the love, comfort and enjoyment of Abelino Ponce. He was an ever-present, largerthan-life father and father figure to the entire family. In describing their father on the witness stand, Arthur, Jose., and Naomi radiated the love and affection that Ponce had for his family and his place as the father-figure. The emotional testimony brought Ponce to life in the courtroom, and even after over sixteen years on the bench, the Court was deeply moved by the *890 sincerity and poignancy of it. Naomi intimately described the love Ponce had for Joel and Abel, his two adopted grandsons, and how Ponce cared for his grandsons as his own children. Naomi also described how Ponce always put the family first and provided emotional support for his children through the good and bad times. Arthur described how his father's death has impacted the family and brought them closer together, albeit with an enormous hole in the middle of it. Jose had a slightly different story, having only recently found his biological father, but described how Ponce had visited him on numerous occasions, provided financial and emotional support during difficult times, and introduced him into the Ponce family with loving arms. The Plaintiffs' testimony truly portrayed the grief, loneliness, and stress the family has endured since the untimely death of their father. Given the suddenness of Ponce's death, the Court finds that the witness testimony and evidence warrants a substantial award for non-economic damages, as the Plaintiffs are entitled to recover for loss of consortium and/or society. Prejudgment Interest 35. Pursuant to maritime law, "the awarding of prejudgment interest is the rule rather than the exception, and, in practice, well-nigh automatic." Cameron v. U.S., 135 F.Supp.2d 775, 782 (S.D.Tex.2001)(citing Reeled Tubing, Inc. v. M/V Chad G, 794 F.2d 1026, 1028 (5th Cir.1986)). The district court has no discretion to deny prejudgment interest unless peculiar circumstances make the award of interest inequitable. Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 729 (5th Cir.1980). In this Circuit, prejudgment interest is to be awarded from the date of the casualty to ensure the plaintiff is compensated in full. Probo II London v. M/V Isla Santay, 92 F.3d 361 n. 2 (5th cir.1996); King Fisher Marine Serv., Inc. v. NP Sunbonnet, 724 F.2d 1181, 1187 (5th Cir.1984). 36. The Court also has broad discretion in setting the rate of prejudgment interest. See Reeled Tubing, 794 F.2d at 1029. In setting the rate of prejudgment interest the district court may look to reasonable guideposts, including the interests rate set forth in 28 U.S.C. § 1961 for judgments. Id.; see also Cameron, 135 F.Supp.2d at 781. The Court finds that the most equitable rate of prejudgment interest would be 4.96%. Accordingly, the Court finds and awards prejudgment interest at the rate of 4.96% per annum on all damages accrued through the entry of Judgment. II. CONCLUSIONS OF LAW 1. The Court has jurisdiction over the subject matter of this dispute and over the parties. All parties and claims are properly before this Court and venue is uncontested. 2. The parties stipulated that Abelino Ponce was a longshoreman and may recover for negligence against Defendants pursuant to § 905(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA"). 33 U.S.C. § 905(b). 3. The Court concludes that Abelino Ponce is a covered employee under the LHWCA. 4. Pursuant to § 905(b) of the LHWCA, the vessel and its owner are liable: (1) if the vessel owner fails to warn on "turning over" the ship of hidden defects of which it should have known; (2) for injuries caused by hazards under the "active control" of the ship; or (3) if the vessel owner fails to "intervene" in the stevedore's operations when it has actual knowledge both of the hazard and that the *891 stevedore, in the exercise of obviously improvident judgment, means to work on in the face of it and therefore cannot be relied on to remedy it. Scindia Steam, 451 U.S. at 167, 101 S.Ct. at 1622 (1981); Randolph v. Laeisz, 896 F.2d 964, 970 (5th Cir.1990). 5. Under the "turnover duty," the shipowner must "at least [exercise] ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property." Scindia, 451 U.S. at 166-67, 101 S.Ct. at 1622. As a corollary to the shipowner's turnover duty, the shipowner must also "warn the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work." Id. at 167, 101 S.Ct. 1614 (emphasis added); Theriot v. Bay Drilling Corp., 783 F.2d 527, 535 (5th Cir.1986); see also Lincoln v. Reksten Mgmt., 354 F.3d 262, 266, 2004 AMC 179 (4th Cir.2003). "The shipowner thus has a duty with respect to the condition of the ship's gear, equipment, tools and work space to be used in the stevedoring operations; and if he fails to at least warn the stevedore of hidden danger which would have been known to him in the exercise of reasonable care, he has breached his duty and is liable if his negligence causes injury to a longshoreman." Pluyer v. Mitsui O.S.K. Lines, Ltd., 664 F.2d 1243, 1247, 1984 AMC 534 (5th Cir.1982); Harris v. Flota Mercante Grancolombiana, S.A., 730 F.2d 296, 299 (5th Cir.1984)(same); see also Taliercio v. Compania Empressa Lineas Argentina, 761 F.2d 126, 128 (2d Cir.1985)(stating that the shipowner has a "duty to maintain the vessel in a reasonably safe condition," and must exercise due care to "avoid exposing the longshoremen to injury from equipment that is under the shipowner's control."). Moreover, if the "condition existed from the outset, the shipowner is charged with actual knowledge of the dangerous condition and has a duty to warn the stevedore and the longshoremen if the defect is hidden." See Hernandez v. M/V Rajaan, 841 F.2d 582, 586 (5th Cir.1988); Stass v. Am. Commercial Lines, Inc., 683 F.2d 120, 122 (5th Cir.1982). 6. The Court finds that the evidence clearly establishes that the Defendants failed to exercise reasonable care in maintaining, inspecting, repairing, and replacing the crane boom's wire runner guide prior to turning over the M/V ALTAIR to the stevedore and Ponce. The evidence indicates that the condition of the wire runner was noticed by the Defendants or should have been noticed and discovered by the Defendants had proper inspections and maintenance been performed prior to turning over the vessel to the stevedore. The Defendants' failure to warn the Americargo personnel, including Ponce, about the missing wire runner guide and failure to conduct proper inspections and maintenance of the wire runner guide constitutes negligence and was the proximate cause of Ponce's death. Such negligence was a legal and factual cause of the Plaintiffs' damages. Therefore, the Court finds that the Defendants breached their "turn over" duty to "warn the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance *892 of his work." See Scindia Steam, 451 U.S. at 167, 101 S.Ct. at 1622. 7. The Court also finds that the Defendants further breached their "turn over" duty by failing to exercise reasonable care in delivering to the stevedore and Ponce a safe ship with respect to its gear, equipment, tools, and work space to be used in the stevedoring operations prior to turning over, the ship. See Pluyer 664 F.2d at 1247; Harris 730 F.2d at 299. The evidence establishes that the missing wire runner guide was unknown to the stevedores and Ponce. 8. The Court finds that the crane boom's missing wire runner guide was not an open and obvious condition to Ponce. 9. The Court finds that in addition to breaching their "turnover" duty, the Defendants breached their "active control" duty. Scindia Steam, 451 U.S. at 166-67, 101 S.Ct. 1614. The shipowner's active control duty extends to injuries caused by hazards or equipment under the active control of the ship. See Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir.1992). Whether a condition falls under the guise of the vessel's active control duty in situations involving the ship itself, the condition of its gear and/or equipment becomes entirely relevant and, in this case, determinative. See Futo v. Lykes Bros. Steamship Co., 742 F.2d 209, 215 (5th Cir.1984) ("The shipowner, after all, is generally primarily responsible for repairing his own ship, its equipment, or gear, and usually stands to gain the most by its proper maintenance . . . [and] stands in the best position to appreciate the danger caused by a defect in the ship itself, its gear, or equipment."). The witness testimony and evidence clearly establishes that the vessel's cargo boom was missing a wire runner guide designed to keep the wire running along the underside of the boom and prevent the wire from becoming slack and hanging or snagging on vessel appurtenances. Both Plaintiffs' and Defendants' liability experts confirmed that the purpose of the wire runner guide is to prevent the wire from hanging or snagging on cargo, equipment and ship's gear during cargo operations. Unlike the turnover duty, which generally applies to hidden defects, the vessel cannot rely on the stevedore's expertise to repair or replace a missing wire runner guide on a vessel's cargo boom. See Woodruff v. United States, 710 F.2d 128 (4th Cir.1983). The Court finds that had the cargo boom been fitted with a wire runner guide as per the vessel's plans and uncontroverted witness testimony, the accident would have been prevented. The Court concludes that the Defendants maintained control over the cargo boom and are liable to Plaintiffs. 10. The Court concludes that the third Scindia duty, the "duty to intervene" was also clearly violated by the Defendants. Again, the evidence establishes that the missing wire runner guide was observable by the vessel's crew and representatives, who alone did or should have recognized the risks during cargo operations that the missing wire runner guide would present to the stevedore. The shipowner has the duty "to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation." Scindia Steam, 451 U.S. at 167, 101 S.Ct. 1614. Additionally, the shipowner has a duty to correct a known defective condition at the commencement of the cargo operations when the defect creates an unreasonable risk of harm to the longshoremen and the shipowner knows that he cannot rely on the stevedore to protect the longshoremen from that risk. Id. at 175-76, 101 S.Ct. 1614; Lemon v. Bank Lines, Ltd., 656 F.2d 110, 115 (5th Cir.1981). The evidence and expert witness testimony *893 establishes that the lack of a wire runner guide on the cargo boom posed a hazard to Americargo's personnel and Ponce beyond that which is normally encountered by longshoremen in discharging a vessel. The lack of a wire runner guide on a cargo boom being used to discharge a vessel is not an occurrence commonly experienced by stevedores in the exercise of their profession. The Court concludes that the Defendants violated this duty and such violation caused or contributed to Ponce's untimely death. 11. The Court does not find it persuasive that Ponce contributed in any way to his death. The advisory jury, after carefully weighing the evidence and deliberating over such, found that Ponce and/or his employer were 4% responsible. Accordingly, the Court finds that Ponce's employer, Americargo, was 4% contributorily negligent for the accident, although it does not find Decedent liable. Nevertheless, Defendants are liable, jointly and severally, to Plaintiffs for their damages sustained as a result of the subject accident, including past and future loss of support, lost earnings, funeral expenses, loss of society, conscious pain and suffering, and past and future loss of services. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 271-72, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979)(stating that the shipowner is jointly and severally liable for damages not due to the longshoreman's own negligence); see also Foulk v. Donjon Marine Co., 963 F.Supp. 427, 430 (D.N.J.1997)(stating that under the rule of joint and several liability, the shipowner is liable for all of the damages even if only found one percent at fault for the longshoreman's injury). A longshoreman, such as Ponce, may recover fully from a negligent shipowner and/or operator even if: (1) the employer is partly at fault for the accident; and (2) the shipowner is otherwise barred from seeking contribution from the employer. See Edmonds, 443 U.S. at 268-270, 99 S.Ct. 2753. Therefore, the Defendants are liable for all of Plaintiffs' damages. 12. The Court concludes as a matter of law that Plaintiffs have sustained their burden of proof by a preponderance of the evidence showing that the Defendants herein breached their duty of reasonable care in their capacity as vessel owner and vessel operator pursuant to § 905(b) of the LHWCA. Therefore, the Court finds that Plaintiffs may have recovery herein and the Court will enter Judgment in the Plaintiffs' favor. 13. The Court tried the case to an advisory jury and the jury rendered the collective judgment of the community. The Court finds that the advisory jury's recommendation as to damages was largely fair and reasonable. However, the Court finds that the economic damages awarded to Ponce's survivors exceed the earnings which could have been reasonably available to them. Specifically, the jury recommended economic damages to Ponce's survivors totaling $438,250.00 while the expert testimony indicated that Ponce's lost earnings, less taxes and personal consumption, was closer to $169,465.00. In keeping with the jury's relative awards to each survivor, the Court is awarding 39% of the jury's recommendation ($169,465.00 being 39% of $438,250.00) to each survivor, pro rata. The Court also finds that the jury's awards for loss of services are excessive. The recommended award to all Plaintiffs for loss of services was $332,500.00. This is more than six times the figure suggested by Plaintiffs' own expert. The Court finds that Dr. McCoin's estimate of $54,000.00 for loss of services is more appropriate. Accordingly, the Court is awarding 16.2% of the jury's recommendation ($54,000.00 being 16.2% of $332,500.00) to each, pro rata. The Court also finds that any recovery *894 of past and future lost earnings by the Estate of Abelino Ponce would be an impermissible double recovery. The Court therefore declines to award to Estate any damages for lost earnings. Accordingly, based on the witness testimony and evidence, the Court finds that the Estate of Abelino Ponce is entitled to past and future lost earnings and funeral expenses. The Court awards the Estate $18,849.59 for funeral expenses. 14. The Court finds that the credible expert medical testimony establishes that Ponce lived for at least one and a half seconds after being struck by the wire runner and felt severe pain prior to his death, and in reasonably probability likely was aware of his pending death. The Court finds that the jury's award of $100,000.00 for conscious pain and suffering is excessive under the circumstances. In keeping with the Fifth Circuit awards appropriately adjusted for inflation, the Court finds that $11,200.00 is a more appropriate award for Ponce's conscious pain and suffering, and so awards. See Haley v. Pan American World Airways, Inc. 746 F.2d 311 (5th Cir.1984). 15. The Court finds that Abel Ponce received some financial support and services from Ponce and awards $15,502.50 for loss of support and $4,252.50 for loss of services. 16. The Court finds that Arthur Ponce received some financial support and services from Ponce and awards $13,502.50 for loss of support and $4,252.50 for loss of services. 17. The Court finds that Jose Ponce received nominal financial support and services from Ponce and awards $6,142.50 for loss of support and $1,701.00 for loss of services. 18. The Court finds that Paula Ponce was solely dependent on Ponce for her financial support and services and awards $24,570.00 for loss of support and $6,804.00 for loss of services. 19. The Court finds that Naomi Ponce was financially dependent on Ponce for support and services and awards $30,712.50 for loss of support and $8,505.00 for loss of services. 20. The Court finds that the credible witness testimony and evidence establishes that Joel Ponce was Ponce's dependent minor child in loco parentis. The Court awards $23,887.50 for loss of support and $9,922.50 for loss of services. 21. The Court finds that Candelaria Martinez was financially dependent on Ponce for support and services and awards $30,712.50 for loss of support and $8,505.00 for loss of services. 22. The Court finds that the credible witness testimony and evidence establishes that Abel Rene Ponce was Ponce's dependent minor child in loco parentis. The Court awards $23,887.50 for loss of support and $9,922.50 for loss of services. 23. The Court concludes that Plaintiffs are entitled to recover a substantial amount for loss of companionship and society. A loss of consortium and society award is permissible in this case. See Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 585-91, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974); Moore v. M/V Angela, 353 F.3d 376, 383 (5th Cir.2003). It is undisputed that Ponce, a longshoreman, was killed while working in the territorial waters of Texas. Although some discrepancies exist between the law governing injuries to longshoremen killed in territorial waters and persons governed by the Death on the High Seas Act or the Jones Act, the Court must apply the law as it is. See Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 122-23 (5th Cir.1994). 24. The Court also concludes that Plaintiffs may recover for loss of companionship *895 and society, regardless of whether they are financially dependent upon Ponce. A showing of financial dependency is not a prerequisite to recover for loss of companionship and society under § 905(b) of the L HWCA. See Randall v. Chevron, U.S.A., 13 F.3d 888 (5th Cir.1994); Skid-more v. Grueninger, 506 F.2d 716 (5th Cir.1975) (permitting an adult, nori-dependent daughter to recover for loss of her mother's society); Dennis v. Cent. Gulf S.S. Corp., 453 F.2d 137 (5th Cir.1972) (same). 25. In awarding permissible, subjective damages, a trial court's assessment of damages is reviewed for clear error. Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1035 (5th Cir.1984). An award is excessive only if it is greater than the maximum amount the trier of fact could have properly awarded. Id. at 1035. Each award is reviewed on its own facts. Winbourne v. Eastern Airlines, Inc., 758 F.2d 1016, 1018 (5th Cir.1984). However, comparison of damage awards from similar cases is helpful. See Wheat v. United States, 860 F.2d 1256, 1259-60 (5th Cir.1988). 26. Based on the witness testimony and evidence, Ponce was a loving son and father to his children and his adapted grandchildren. The witness testimony and evidence also establishes that Ponce was the presiding father and father figure of a remarkably close-knit, extended family. The Court concludes that the following amounts should be awarded to Ponce's mother, adult children, and adopted grandchildren for loss of consortium and society: Abel Ponce $ 65,625.00 Arthur Ponce $ 65,625.00 Jose Ponce $ 26,250.00 Paula Ponce $105,000.00 Naomi Ponce $131,250.00 Joel Ponce $450,000.00 Candelaria Martinez $131,250.00 Abel Renee Ponce $450,000.00 The amounts awarded are within the parameters of this Circuit's maximum recovery rule for non-pecuniary damages, and largely in keeping with the jury's advisory verdict, except for the grandchildren adopted as children. 27. Plaintiffs are entitled to pre-judgment interest under general maritime law at a rate of 4.96% per annum. 28. To the extent any Finding of Fact constitutes a Conclusion of Law, the Court adopts it as such. To the extent any Conclusion of Law constitutes a Finding of Fact, the Court adopts it as such. 29. For the reasons set forth in the Court's Findings of Fact and Conclusions of Law, and pursuant to Rule 58 of the Federal Rules of Civil Procedure, Judgment is hereby rendered in favor of Plaintiffs on their stated claims against Defendants. Therefore, Plaintiffs, Candelaria C. Ponce as personal representative of the Estate of Abelino Ponce, Abel Ponce, Naomi Ponce, Candelaria Martinez, Joel Eugene Ponce, Abel Rene Ponce, and Paula Gomez Ponce, shall have and recover from Defendants M/V ALTAIR, her engines, boilers, tackles, apparel, etc., Scarlati Ventures, Inc., and B Navi Spa, the total amount of $1,779,832.09, plus taxable costs of court and pre-judgment interest as set forth herein, and post-judgment interest at the rate of 4.96% per annum, for which execution shall issue if not time paid. Out of said recovery, Plaintiffs shall repay the stipulated compensation lien of $7,640.29 to Intervenor Texas Mutual Insurance Company. IT IS SO ORDERED. NOTES [1] The MAT ALTAIR, IMO 7813602, Call Sign 3FMD7, is a Panamanian-flag general cargo carrier of 16,235 gross tons built in 1979. [2] Plaintiffs also attended a hearing before The Honorable Calvin Botley, U.S. Magistrate Judge, which resulted in Defendants' P & I insurer, Steamship Mutual Underwriting Association (Bermuda), issuing a Letter of Undertaking in the amount of $3,000,000.00 USD as security for the vessel's release. [3] The Deceased's mother, Paula Gomez Ponce, is a foreign citizen residing in Reynosa, Mexico.

698 F.2d 1232 Rosenkranzv.U. S. Forest Service 82-5248 UNITED STATES COURT OF APPEALS Ninth Circuit 12/17/82 1 D.Ariz. AFFIRMED

554 S.W.2d 935 (1977) Judith Ellen LAMPHERE, Relator, v. Oswin CHRISMAN, Judge, Domestic Relations Court Number Four of Dallas County, Texas, Respondent. No. B-6783. Supreme Court of Texas. July 27, 1977. *936 Berman, Fichtner & Mitchell, Jay S. Fichtner, Toby L. Gerber, Dallas, for relator. Laurel A. Bates, Ronald E. Massingill, Dallas, for respondent. GREENHILL, Chief Justice. This original mandamus proceeding arises from a controversy between Judith Lamphere and Thomas Lamphere over the custody of their seven-year old daughter, Julie Lamphere. Our respondent, the Honorable Oswin Chrisman, Judge of the Domestic Relations Court Number Four of Dallas *937 County, has denied Judith's application for a writ of habeas corpus for the return of Julie, who is living with her father. Judith thereupon instituted this action to compel Judge Chrisman to grant the writ of habeas corpus. Because we believe that Judge Chrisman's order below is in conflict with Section 14.10 of the Texas Family Code,[1] we conditionally grant the requested writ of mandamus. In September of 1970, the Lampheres' marriage was dissolved by a judgment rendered by the Circuit Court of Saint Louis County, Missouri. The judgment awarded Judith the permanent care, custody and control of Julie; and reasonable visitation rights were given to Thomas. It is undisputed that the Missouri court had jurisdiction over the Lampheres and that the judgment of divorce and custody has never been modified. In November of 1974, Judith and Thomas executed an agreement whereby Thomas was to have the care of Julie at his home in Dallas, Texas. Judith remained in St. Louis, but she was to have the right to custody at any time she elected, provided that Thomas was given seven-days' written notice. The agreement was terminable at the will of Judith on fifteen-days' written notice, and it expressly provided that it in no way altered the Missouri court's award of custody to Judith. Thomas then took Julie to Dallas, and she has lived there with him until the present time. Her stay in Dallas, however, has not been uninterrupted. In the summer of 1975, she visited her mother in St. Louis for two months. Similarly, Julie lived with Judith in St. Louis for two months in the summer of 1976. Julie also spent six days with her mother in Missouri in April of 1977. On April 19, 1977, Thomas filed suit in the Domestic Relations Court Number Four of Dallas County and sought his appointment as managing conservator of Julie. Judith was served with process in St. Louis, and she then filed a special appearance in the Texas court. She also sought a writ of habeas corpus for the return of the custody of Julie pursuant to the Missouri court decree. After a hearing, the trial court overruled Judith's plea to the jurisdiction, denied her application for the writ of habeas corpus, and appointed Thomas temporary managing conservator. Judith then filed this action, which asks this Court to direct the trial judge to issue the writ of habeas corpus and thereby enforce the Missouri court custody decree. At the outset, we note that we have jurisdiction to mandamus the judge of a court of domestic relations. Texas Revised Civil Statutes Annotated Article 1733; McHone v. Gibbs, 469 S.W.2d 789 (Tex.1971). The habeas corpus procedure in child custody cases is governed by Section 14.10 of the Texas Family Code. That section provides in relevant part: (a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order. (b) The court shall disregard any cross action or motion pending for modification of the decree determining managing conservatorship, possession, or support of or access to the child unless it finds that the previous order was granted by a court of another state or nation and that: (1) the court did not have jurisdiction of the parties; or (2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ. * * * * * * We have held that the Legislature, by enacting Section 14.10, intended to change the rule that the right to possession of the child may be readjudicated in a hearing *938 on an application for a writ of habeas corpus. The general rule now is that the writ should be granted when the relator shows that he or she is entitled to custody of the child by virtue of a valid and subsisting court order. The right to possession may not be relitigated in the habeas corpus hearing; the relator is entitled to an issuance of the writ immediately on a showing of his or her right to custody. Further, mandamus is a proper remedy to compel enforcement of the relator's right to custody. McElreath v. Stewart, 545 S.W.2d 955 (Tex.1977); Standley v. Stewart, 539 S.W.2d 882 (Tex.1976). For these purposes, we recognize no differences between valid custody orders of our state and those of sister states beyond the distinctions set forth in the statute. See Russell v. McMurtrey, 526 S.W.2d 270 (Tex.Civ.App.1975, writ ref'd n. r. e.). Therefore, the writ of habeas corpus in this case should have been granted when Judith proved her right to custody under the Missouri court judgment, unless it was proper to relitigate the right of possession under Section 14.10(b). Thomas argues that the trial court properly redetermined the right to possession because Judith's custody order is from Missouri and because "the child has been within the state [Texas] for at least 12 months immediately preceding the filing of the petition for the writ." Section 14.10(b)(2). We disagree. The uncontroverted evidence shows that Julie was with her mother in Missouri for two months in the summer of 1976 and for six days in the spring of 1977. These periods were within the twelve months immediately preceding the filing of the petition for the writ; so the exception of Section 14.10(b)(2) does not apply to this case. Nor does the exception of Section 14.10(b)(1) apply, because it is undisputed that the Missouri court had jurisdiction of the parties. Since neither 14.10(b) exception is applicable, the general rule of the subsection controls; and the trial court, in deciding Judith's entitlement to the writ of habeas corpus, should have disregarded Thomas' request for his appointment as managing conservator. Thomas argues that we here apply a too literal interpretation to Section 14.10(b). He says that the subsection should be interpreted to mean that the child's residence or domicile shall have been in the State of Texas for the twelve months immediately preceding the filing of the habeas corpus application. We cannot subscribe to that view. If the Legislature had meant for residence or domicile to be determinative here, it certainly could have used those terms in phrasing Section 14.10(b)(2). Furthermore, an inquiry into a child's residence or domicile would often raise difficult questions of dubious relevance to the question of whether the foreign custody decree should be immediately enforced, especially when the parents of the child reside in different states. We prefer to apply what we perceive to be the plain meaning of the statute, and we hold that the child must be physically present within the state for the required length of time before the exception of Section 14.10(b)(2) may be invoked. Thomas argues that it would be absurd to require the child's presence to be continuous and uninterrupted for the entire twelve-month period. We are inclined to agree that such a strict construction might lead to absurd results. We do not believe the Legislature intended that a child's mere absence from this state for a few hours or days should prevent a Texas court's redetermination of the right to possession in a habeas corpus proceeding. For example, if a child were sent to a summer camp in another state, or accompanied her father on an ordinary vacation trip in another state, such a temporary absence would not automatically terminate the time period in Texas. Counsel for Judith concedes this. On the other hand, the Legislature could have stated, had it so intended, that the child's presence should be for the principal part of the preceding twelve-month period. See, e. g., Section 11.06(b). Despite the absence of such language, we believe that the Legislature did not intend that the child's presence in Texas be continuous and uninterrupted for the entire twelve-month period. We hold that the child must be present in Texas *939 for the period specified by Section 14.10(b)(2), except for absences which are so brief as to be insignificant. This question is one of law that the court should decide in view of the facts and circumstances of the particular case. In this case we hold that Julie's absence from Texas for two months and six days was more than an insignificant visit beyond our borders. In making this holding, we have considered the relative length of time involved; and we also deem it important that when Julie was outside of Texas, she was living with the parent who here seeks custody. The exception of Section 14.10(b)(2) therefore did not come into play, and Judith was entitled to the issuance of the writ without the relitigation of the right to possession question. Finally, we emphasize that our holding here does not dispose of any of the issues raised by Thomas' suit for his appointment as managing conservator. We here hold only that Section 14.10 requires that the habeas corpus writ should be granted immediately on the relator's showing of his or her right to possession under an existing court order. Section 14.10 does not require the trial court to dismiss pending suits or motions for change of custody; it requires only that these matters be disregarded until such time as the application for the writ of habeas corpus is disposed of. Therefore, after the writ is either issued or denied, the trial court is free to continue with the disposition of any suits or motions for change of custody. The jurisdictional or other questions raised in the change of custody suit may then be considered on appeal from the final judgment in that suit. To the extent that the holding in In re Kamont, 537 S.W.2d 86 (Tex.Civ.App.1976, writ ref'd n. r. e.) may conflict with our views, it is disapproved. It is assumed that Judge Chrisman will vacate his order denying Judith's application for habeas corpus and that he will issue the requested writ. A writ of mandamus will issue only if he declines to do so. Pursuant to Rule 515, Texas Rules of Civil Procedure, no motion for rehearing will be entertained. NOTES [1] Vernon's Texas Codes Annotated, Family Code Section 14.10. All statutory references herein are to Vernon's Texas Family Code Annotated, unless otherwise indicated.

574 F.2d 897 17 Fair Empl.Prac.Cas. 208, 16 Empl. Prac.Dec. P 8231Rodges REDMOND, Plaintiff-Appellee,v.GAF CORPORATION, Defendant-Appellant. No. 76-1839. United States Court of Appeals,Seventh Circuit. Argued Nov. 29, 1977.Decided April 10, 1978. Fred F. Fielding, Washington, D. C., Robert H. Joyce, Chicago, Ill., for defendant-appellant. William Freivogel, Chicago, Ill., for plaintiff-appellee. Before CASTLE, Senior Circuit Judge, WOOD, Circuit Judge, and ESCHBACH, Chief District Judge.* HARLINGTON WOOD, Jr., Circuit Judge. 1 GAF Corporation appeals from the judgment entered below that its discharge of employee, Rodges Redmond, constituted religious discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2(a) and 42 U.S.C. 2000e(j)). 2 The case was tried before the court without a jury in April of 1976 on Redmond's second amended complaint1 which alleged the following violations of Title VII by GAF: (a) failure to promote plaintiff because of his race; (b) compensation of plaintiff at a lower rate than other employees because of his race; (c) harassment of plaintiff in retaliation for filing discrimination charges with the Equal Employment Opportunity Commission (hereinafter EEOC); and (d) termination of plaintiff either in retaliation for bringing EEOC charges or because of his inability to work overtime on Saturdays, even though his religious practices prevented him from doing so. 3 At the close of plaintiff's case, the court found that plaintiff had made out a prima facie case of religious discrimination, but dismissed the other charges.2 After trial on this issue, the court found that the defendant had failed to show any effort to reasonably "accommodate" plaintiff's religious practices or that an accommodation effort would have caused the defendant any "inconvenience." It concluded that GAF had violated Title VII in that "said discharge discriminated against the plaintiff in the exercise of his religion and his religious practices and activities." We agree. 4 The facts of the case are briefly as follows: Redmond had been employed by GAF since 1952 and had been a member of the Jehovah's Witnesses religion since 1958. Redmond was appointed to be in charge of a Bible study class by the Elders of the church in 1959.3 This class met on Tuesday evenings until January, 1974 when it was changed by the Body of Elders to Saturday morning.4 This change resulted, for the first time in all of the many years of Redmond's employment with GAF, in a conflict between the required overtime infrequently scheduled on Saturdays5 and Redmond's religious practices. While the record is unclear as to exactly when GAF was informed of this conflict, it is clear that Redmond did not work Saturday overtime after January 1974. The record, however, does suggest both that overtime had been scheduled by GAF during this period for which Redmond had been excused, and that GAF was aware of the reason for his inability to work on Saturday.6 5 Just after an incident in July of 1974, when he was suspended for one day for failure to return for annual inventory which was held in the middle of his vacation,7 Redmond was scheduled to work overtime on Saturday. After his protest to his immediate supervisor, Hampton, proved unsuccessful, he requested a meeting for the next day with Hampton, and Svatos, the warehouse manager. Redmond testified that even though his employers were aware that he could not work on Saturday because of his "religious obligation," he was told that either he agreed to work or he would lose his job. When he told them he would not be able to work the scheduled overtime on the coming Saturday, he was terminated. I. 6 Title VII prohibits discrimination based on "religion," 42 U.S.C. § 2000e(a) (1), but until the 1972 amendment of the act did not define the term or otherwise indicate the boundaries of the beliefs being protected. The 1972 amendment, 42 U.S.C. § 2000e(j), added the following definition: "The term 'religion' includes all aspects of religious observance and practice, as well as belief . . . ." While the words of the statute make it clear that Congress was attempting to protect both subjective belief and practices followed in carrying out such belief, the enactment does nothing to aid courts in determining the breadth of the "beliefs" and "practices" to be protected, other than to say that they must be "religious." 7 Most of the reported cases discussing "religious discrimination" under Title VII involve situations where either Sabbatarianism or a practice specifically mandated or prohibited by a tenet of the plaintiff's religion is involved.8 However, despite support which can be cited for both positions,9 we do not feel the protection of Title VII is limited to these categories. 8 First, we note that the very words of the statute ("all aspects of religious observance and practice . . . .") leave little room for such a limited interpretation. Secondly, we note that to restrict the act to those practices which are mandated or prohibited by a tenet of the religion, would involve the court in determining not only what are the tenets of a particular religion, which by itself perhaps would not be beyond the province of the court, but would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion.10 We find such a judicial determination to be irreconcilable with the warning issued by the Supreme Court in Fowler v. Rhode Island, 345 U.S. 67, 70, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1953), "(I)t is no business of courts to say . . . what is a religious practice or activity . . . ." 9 The Supreme Court has never had the occasion to interpret this phrase of the 1972 amendment, but the two circuits which have considered it, the Fifth and Sixth Circuits,11 both have concluded that it is not to be given a narrow or limited interpretation. We conclude that conduct which is " religiously motivated," i. e., "all forms and aspects of religion, however eccentric . . . ." is protected. Cooper v. General Dynamics, 533 F.2d 163, 168 (5th Cir. 1976).12 10 We are thus unable to agree with the suggestion made by GAF on appeal, that because Saturday work per se is not prohibited by plaintiff's religion, that the practices in question are outside the protection of Title VII. There is no dispute that Redmond was sincere in his religious belief, having been an active participating member of the church for over 16 years. The evidence establishes that he was appointed to be a lifetime leader of the Bible study class, and had done so for many years prior to this case. The evidence showed that the time of the meeting was arranged by the elders, and that following the meeting the group, of which Redmond was the leader, did field missionary work. Redmond testified that he felt his participation in the Saturday activities was at the dictate of his elders and that they were a "religious obligation." We conclude that the practices in question are within the protection offered by § 2000e(j) to "all aspects of religious observance and practice". II. 11 According to § 2000e(j) once the plaintiff here had established that his practice, which prevented him working Saturday overtime, was "religious" and that nonetheless it had been used as the basis for discharging him, the burden shifted to the employer to "demonstrate that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." 12 The court below found that plaintiff had made out a prima facie case of religious discrimination. The court further found that the defendant made "no effort to accommodate plaintiff," nor had it introduced any evidence "showing or tending to show any inconvenience" which would have prevented it from accommodating plaintiff's religious practices. A. 13 Implicit within plaintiff's prima facie case is the requirement that plaintiff inform his employer of both his religious needs and his need for an accommodation. Defendant at the time of oral argument cited certain recent cases which he states show that there is still another interim step or burden of proof which plaintiff must meet, and here failed to do, before the burden shifts under § 2000e(j) to GAF. 14 GAF cites Yott v. North American Rockwell Corp., 428 F.Supp. 763, 769 (1977), for the proposition that under § 2000e(j) "the plaintiff has the burden of proving that he has offered to the employer an accommodation which is acceptable to him (the employee)." This would require that the plaintiff not only advise his employer of his religious needs and the nature and extent of the potential or actual conflict in terms of his employment, but would also place on the plaintiff the burden of suggesting to his employer possible methods of accommodation. While we feel plaintiff should be free, even encouraged, to suggest to his employer possible ways of accommodating his religious needs, we see nothing in the statute to support the position that this is part of plaintiff's burden of proof. 15 Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir. 1977), also cited by defendant, states that the plaintiff also has a duty "to attempt to accommodate his beliefs himself." This duty is found not in Title VII, but rather in the "mutuality of obligation (which) inheres in the employer-employee relationship" apart from the Act. Id. at 1285. We agree that the concept of a "mutuality of obligation" is inherent in accommodation, for rarely will an accommodation be successful without mutual efforts and cooperation. However, to the extent that the Chrysler court may be interpreted to say that it is incumbent on plaintiff to show first that he has made some effort to either "compromise" or accommodate his own religious beliefs before he can seek an accommodation from his employer, we disagree.13 16 In this connection, we now deal with defendant's claim that plaintiff failed to provide sufficient information to put it on notice of his religious needs and thus to permit an accommodation. The Chrysler court noted that an employee who is disinterested in informing his employer of his religious needs "may forego the right to have his beliefs accommodated by his employer." 561 F.2d at 1286. 17 We agree with defendant that accommodation is not so onerous as to charge an employer with the responsibility for continually searching for each potential religious conflict of every employee. The employee has the duty to inform his employer of his religious needs so that the employer has notice of the conflict. 18 The evidence indicates that plaintiff's Bible study class was switched to Saturday morning in early 1974. The record also reveals that plaintiff did not work any Saturdays after January, 1974. While there is no clear record as to exactly what the situation was between January and July of 1974, it appears that Mr. Redmond was being excused from Saturday work because of his "religious obligation."14 19 While there is a paucity of information in the record regarding this period of time, when the conflict finally reached a climax in early August, Mr. Redmond testified, without contradiction, that he told his supervisor, Hampton, "I thought we had discussed this several times before, that I was not able to work on Saturday because of my religious obligation." The following day during the meeting with Hampton and Svatos, Mr. Redmond stated, "I've talked with you and Mr. Hampton several times before about the matter of Saturday work . . ." I thought we had an understanding as to why I was not able to come to work on Saturday . . . I cannot work Saturdays . . . I have a religious obligation." When Mr. Svatos testified regarding the meeting, his account was that " Rodges, of course, advised us that he couldn't work on Saturdays because of his Bible classes." Whatever confusion or misunderstanding that may have existed prior to this time as to the reasons for Mr. Redmond's inability to work on Saturday, they were clearly eliminated during this meeting. B. 20 Next, we address the defendant's argument that this court is entitled to make de novo review of the trial court's finding of fact as to " accommodation" on the theory that such a finding is in the nature of conclusion of law. Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir. 1976). We disagree. 21 Other circuit courts that have been confronted with this question have concluded that this is basically a question of fact and not one of law. Chrysler Corp. v. Mann, 561 F.2d at 1286; United States v. City of Albuquerque, 545 F.2d at 111; Williams v. Southern U. Gas Co., 529 F.2d at 488. 22 The term "reasonable accommodation" is a relative term and cannot be given a hard and fast meaning. Each case involving such a determination necessarily depends upon its own facts and circumstances, and comes down to a determination of "reasonableness" under the unique circumstances of the individual employer-employee relationship. The trier of fact is in the best position to weigh these considerations. 23 We conclude that the trial court's determination of the issue of "accommodation" must be accepted unless it is "clearly erroneous," i. e., if after a careful review of the record the reviewing court is left with the definite and firm conviction that the finding is clearly wrong and that a mistake has been made. Chrysler, supra, at 1286. C. 24 When the defendant learned of the conflict between Redmond's religious obligations and the Saturday overtime schedule (which clearly occurred at the August 2 meeting), GAF had an obligation to reasonably accommodate the practice unless it could demonstrate that the accommodation would impose an undue hardship on the conduct of its business. 42 U.S.C. § 2000e(j). 25 The trial court below found that defendant made "no effort to accommodate plaintiff," and that it had "introduced no evidence showing or tending to show any inconvenience" justifying its failure to accommodate plaintiff. Unless we are convinced that these findings are "clearly erroneous" the judgment of the district court must be upheld. We find no such mistake, having examined the record carefully and in detail. 26 The record shows that despite the knowledge of Redmond's obligation, his employer indicated to him that he would have to work on Saturday "or else." Mr. Redmond responded that if it was between his religion or his job, he would have to follow the dictates of his religion, whatever the result. Mr. Redmond was terminated the same day. We note that there was no discussion during this meeting of an alternative way of solving the problem other than Mr. Redmond agreeing to work on Saturday. There was no discussion of excusing him, even though apparently this had been done in the past. There was no discussion of the possibility of transferring him to another of GAF's warehouses or transferring him to another job to eliminate this conflict. The only alternative given to Redmond was to agree to work on Saturday or lose his job.15 GAF made "no effort to accommodate" Redmond. 27 The court's finding that there was no evidence showing any "inconvenience" to justify GAF's failure to accommodate plaintiff, we do not find to be clearly erroneous.16 28 While the court did not have the benefit of the clarification which the Supreme Court recently gave to "accommodation" and "undue hardship" in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) there is no showing that the standard used here diverges from that enunciated by the Hardison Court. But cf. Ward v. Allegheny, 560 F.2d 579 (3rd Cir. 1977). The record contains evidence relevant to the interpretation given to the term "undue hardship" by Hardison and supports the finding of the court below. 29 The record reveals that defendant would not have had to underman its warehouse operation if plaintiff were excused from work. There were six other warehouses in the Chicago area from which it could draw. There was also testimony that on other occasions when overtime was required in the warehouse, the company had either hired temporary help or had used office help. Furthermore, Saturday overtime was not done regularly, so the problem was not a constant one (Redmond worked on Saturday only five times during 1973). 30 There is no showing that a replacement would result in a loss of efficiency. The testimony was uncontradicted that the work done on Saturday in overtime was essentially unskilled work that any employee would be capable of doing. 31 To pay replacement employees premium wages would not impose a cost on the defendant, for the regular warehouse employees were already receiving premium wages for their Saturday work. 32 There was no union or collective bargaining contract which would present any problem in shifting plaintiff's schedule. 33 Therefore, we agree with the trial court's finding that defendant made no effort to accommodate plaintiff's religious needs, and failed to demonstrate that it would suffer any undue hardship in accommodating the plaintiff.17 34 For the foregoing reasons, we affirm the judgment of the trial court. 35 AFFIRMED. * The Honorable Jesse E. Eschbach, Chief District Judge of the Northern District of Indiana, is sitting by designation 1 This suit originally began in July of 1974 when Redmond filed a pro se complaint, following receipt of a Notice of Right to Sue from EEOC, charging racial discrimination. Redmond filed the harassment charge with EEOC on July 10, 1974. Following his termination on August 2, 1974, he amended his EEOC complaint to include his termination and the religious discrimination charge. The EEOC issued a Notice of Right to Sue on February 24, 1975. Redmond filed his second amended complaint on February 28, 1975 2 No appeal has been taken from the dismissal of the other charges 3 Mr. Hearring, an elder and the bible study overseer of Redmond's church testified that the leader for the Bible study class is recommended by the elders of his congregation and when the appointment is approved by the Watchtower Bible and Tract Society headquarters in New York, the person holds that position for life 4 Hearring also testified that the decision to change the meeting from Tuesday to Saturday was made by the Body of Elders and that it was not within the power of Redmond, or even himself, as Bible study overseer, to change the time the class met 5 The record reveals that Saturday overtime for which Redmond was scheduled to work occurred five times during 1973. Overtime was often scheduled during the regular work week, requiring the employees to either come in early or stay late. Mr. Redmond has always been able to work this overtime 6 Redmond testified that when he learned he was scheduled for overtime on Saturday in August, he stated to his supervisor, "I thought we had discussed this several times before, that I was not able to work on Saturday because of my religious obligation . . . ." When the supervisor testified regarding the previous conduct of Redmond, he stated, "(W)e were allowing him to go on Saturday . . . prior to this time . . . ." 7 The judge below made the following finding of fact concerning this incident: (P)laintiff was suspended for one day without pay for failing to return from vacation to assist defendant in completion of an inventory. Plaintiff had previously informed the defendant that during his vacation he would be attending a religious conference in Milwaukee, Wisconsin, and that if it were possible for him to return for inventory, he would return, but if it were not possible, he would not return. 8 See e. g., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (Sabbatarianism); Jordan v. North Carolina Nat'l Bank, 565 F.2d 72 (4th Cir. 1977) (Sabbatarianism); Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir. 1977) (Sabbatarianism); United States v. City of Albuquerque, 545 F.2d 110 (10th Cir. 1976), cert. denied, 433 U.S. 909, 97 S.Ct. 2974, 53 L.Ed.2d 1092 (Sabbatarianism); Williams v. Southern Gas Co., 529 F.2d 483 (10th Cir. 1976) (Sabbatarianism), cert. denied, 429 U.S. 959, 97 S.Ct. 381, 50 L.Ed.2d 325; Draper v. United States Pipe and Foundry Co., 527 F.2d 515 (6th Cir. 1975) (Sabbatarianism); Reid v. Memphis Publishing Co., 521 F.2d 512 (6th Cir. 1975); Cummins v. Parker Seal Co., 516 F.2d 544 (6th Cir. 1975), aff'd by equally divided court, 429 U.S. 65, 97 S.Ct. 342, 50 L.Ed.2d 303 (1976), vacated and remanded on rehearing, 433 U.S. 903, 97 S.Ct. 2965, 53 L.Ed.2d 1087 (1977) (Sabbatarianism); Riley v. Bendix Corp., 464 F.2d 1113 (5th Cir. 1972) (Sabbatarianism) 9 Support for the Sabbatarianism limitation can be found in the title given by the EEOC in its guidelines on the subject, 29 C.F.R. § 1605.1 (1975), "Observation of Sabbath and other Religious Holidays." Similarly, the legislative history reveals that the amendment was proposed to protect Saturday Sabbatarians. 118 Cong.Rec. 705. But see Cooper, 533 F.2d at 166, n. 9. Note also that the dissent in Hardison, 432 U.S. at 87, 97 S.Ct. 2264, refers to the numerous cases involving Title VII religious discrimination as involving practices which are a "religious commandment." 10 See e. g., Cooper v. General Dynamics, D.C., 378 F.Supp. 1258 (1975), where the district court conducted extensive investigation into the tenets of plaintiff's religion, which he claimed forbid him from joining the union, and concluded it was "specious and irrational." The Fifth Circuit reversed, 533 F.2d 163 (5th Cir. 1976) 11 In McDaniel v. Essex, 571 F.2d 338 (6th Cir. 1978), the Sixth Circuit noted, "It is clear from the language of § 701(j) that it applies to all religious observances and practices and is not limited to claims of discrimination based on requirements of Sabbath work." Id. at 6 The Fifth Circuit addressed the issue in Cooper v. General Dynamics, 533 F.2d 163 (5th Cir. 1976). The Ninth Circuit in Yott v. North American Rockwell Corp., 501 F.2d 398 (9th Cir. 1974), without specifically addressing the issue by implication also so held. 12 We believe the proper test to be applied to the determination of what is "religious" under § 2000e(j) can be derived from the Supreme Court decisions in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), and United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1969), i. e., (1) is the "belief" for which protection is sought "religious" in person's own scheme of things, and (2) is it "sincerely held." 13 We believe that what the court in Chrysler was suggesting was that when "procedures and scheduling already provide a measure of elasticity in switching work shifts and in allowing excused absences," a plaintiff's failure to first seek an accommodation within these procedures indicates a lack of cooperation which, when combined with other factors, may render an accommodation impossible But see Jordan v. North Carolina National Bank, 565 F.2d 72 (4th Cir. 1977). The court there found that a prospective employee's refusal to agree to ever work on her Sabbath was "so unlimited and absolute in scope . . . that it speaks its own unreasonableness and thus beyond accommodation." 14 See n. 6, supra 15 We also note that the record does not reveal that there were any existing procedures whereby Redmond would on his own have been able to accommodate his practices, such as switching schedules or finding a substitute, as there was in Chrysler, supra. Apparently all the warehouse employees were required to work overtime. The only exception to this was the warehouse supervisor, Hampton. He was in addition to being a supervisor, and therefore not paid extra for overtime work, a Seventh Day Adventist. The company never scheduled him for Saturday work 16 We interpret the finding of "no inconvenience" to be the equivalent of finding "no undue hardship." To the extent these terms may differ in meaning, defendant benefited since "inconvenience" would be a lower standard than "undue hardship." 17 Defendant also challenges the constitutionality of Title VII as it relates to religion arguing it is violative of the establishment clause. However, defendant did not raise the issue below and federal courts have traditionally held that constitutional arguments cannot be raised for the first time on appeal. Allen v. Beneficial Finance Co., 531 F.2d 797, 805 (7th Cir. 1976)

923 F.2d 858 Alexander (Donald K.)v.Hanusa (Kathy) NO. 90-1476 United States Court of Appeals,Eighth Circuit. OCT 11, 1990 1 Appeal From: W.D.Mo. 2 DISMISSED.

481 F.Supp. 816 (1979) FEDERAL FOOD SERVICE, INC. and Harold E. Gelber, Plaintiffs, v. The Honorable Ray MARSHALL, Secretary of Labor and the Honorable Elmer B. Staats, Defendants. No. C.A. 79-2011. United States District Court, District of Columbia. December 17, 1979. *817 John S. Pachter, Washington, D.C., for plaintiffs. Asst. U. S. Atty. Kenneth M. Raisler, Washington, D.C., for defendants. MEMORANDUM OPINION JOHN GARRETT PENN, District Judge. This case comes before the Court on the plaintiffs' motion for a preliminary injunction and the defendants' motion to dismiss. I Very briefly, the facts are as follows: The plaintiffs are in the business of furnishing mess attendant services under contracts with the United States which are subject to the Service Contract Act of 1965 (Act), as amended, 41 U.S.C. § 351, et seq. Contracts were awarded to plaintiff for furnishing mess attendant services at various locations in the United States from July 1, 1973 through June 30, 1975. Early in 1974, an investigation was conducted into the performance of plaintiffs' contract at a facility in Charleston, South Carolina. As the result of that investigation, plaintiffs paid back wages of $418 due seven employees for hours worked but not recompensed. Investigations were commenced into other contracts of the plaintiffs and additional violations of the Act were found. An administrative complaint was filed in November 1976 charging plaintiffs with violations of the minimum wage and fringe benefit requirements of the Act. Plaintiffs denied the charges and asserted the presence of "unusual circumstances" if violations were found. Eventually, the case went before an Administrative Law Judge who filed a decision on November 22, 1977, after formal hearings. His findings included a determination that plaintiffs had violated the Act in the performance of eight contracts, specifically, that in six contracts the plaintiffs failed to pay a number of employees certain vacation benefits, that in five contracts a number of employees were not paid the proper holiday benefits and that in one contract several employees were not paid the minimum wages. Two record keeping violations were also resolved against plaintiffs. The Administrative Law Judge found in favor of plaintiffs on some of the allegations.[1] He concluded that the plaintiffs had not established any "unusual circumstances" and, as a result he recommended, pursuant to 29 CFR § 6.10(b), that the Secretary of Labor (Secretary) take no action to relieve plaintiffs from the ineligible list sanction under the Act. See 41 U.S.C. § 354(a). Plaintiffs appealed to the Administrator of the Wage and Hour Division who affirmed the findings and conclusions of the Administrative Law Judge, including the determination that there were no "unusual circumstances" and who then recommended, see 29 CFR § 7.14, to the Secretary that plaintiffs be debarred from receiving government contracts. Plaintiffs filed an application for relief from debarment, see 29 CFR § 6.12, however, the Secretary concurred with the decision below having found no unusual circumstances, and accepted the decision to debar plaintiffs. Plaintiffs' motion for rehearing was denied by the Secretary on May 15, 1979. *818 The plaintiffs move for a preliminary injunction and argue that the action of the Secretary in refusing to remove plaintiffs' names from the ineligible list is subject to judicial review, that the debarment is contrary to past policy and procedural regulations and that the administrative findings were not supported by a preponderance of the evidence. Plaintiffs primary contention is that the Secretary should have found "unusual circumstances" and should have removed plaintiffs names from the ineligible list.[2] Defendants argue that the case should be dismissed for failure to state a claim upon which relief can be granted. This argument is based upon defendants' contention that the decision as to what constitutes "unusual circumstances" is committed to the sole discretion of the Secretary and is thus not reviewable. In the absence of a dismissal of the action, defendants argue that plaintiffs are not entitled to injunctive relief. II In order to make out a case for injunctive relief, the plaintiffs must demonstrate that they have a substantial likelihood for success on the merits, that without such relief they will suffer irreparable harm, that the issuance of the injunction will not substantially harm other interested parties, and that the granting of such relief is in the public interest, or at least is not contrary to that interest. Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958). The strict requirements set out in the above case have been somewhat modified by Washington Metropolitan Area Transit Commission v. Holiday Tours, 182 U.S.App. D.C. 220, 222, 559 F.2d 841, 843 (1977), which held that "[t]he necessary `level' or `degree' of possibility of success will vary according to the court's assessment of the other factors". The petitioners have not demonstrated a strong likelihood of success on the merits, see Part IV, infra, however, it is clear that they will suffer irreparable injury unless injunctive relief is granted. The harm is obvious since the petitioners will remain debarred for three years, see 41 U.S.C. § 354(a), and unless they have substantial contracts in the private sector, they may be unable to survive financially. The remaining criteria, the harm to other interested parties and the public interest, weigh against the plaintiffs. The Act was designed to provide fair wage standards for employees performing work on federal service contracts, see S.Rep. No. 798, 89th Cong. 1st Sess. reprinted in [1965] U.S.Code Cong. & Admin.News, p. 3739, and any decision setting aside actions which are consistent with the Act may cause substantial injury to enforcement of the Act in this and future cases and is clearly not in the public interest absent some compelling reason to grant an injunction. Under the facts of this case, this Court concludes that plaintiffs have failed to demonstrate that they are entitled to injunctive relief. Such relief shall be denied.[3] III The defendants move to dismiss this case on the grounds that the actions of the Secretary are not reviewable by the court. 5 U.S.C. § 701(a)(2). While it is true, as the defendants argue that the 1972 amendment to the Act, Pub.L. 92-473, 86 Stat. 789, resulted because Congress wanted to make the debarment process almost automatic, see S.Rep. No. 92-1131, 92nd Cong. 2d Sess., reprinted in [1972] U.S.Code Cong. & Admin.News, p. 3536, this Court does not read the original statute or the 1972 amendment as setting forth clear and convincing evidence of a legislative attempt to restrict judicial review. Citizens to Preserve Overton *819 Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). In the absence of such an intent, the administrative decision is reviewable and, accordingly, so much of defendant's motion to dismiss as is grounded on the contention that the administrative determination is beyond review by the court must be denied. IV The Court has reviewed the underlying record consisting of the decision of the Administrative Law Judge, the ruling by the Administrator and the final order by the Secretary. The case has been fully briefed and argued, both during the administrative proceedings and before this Court. The issue is whether the Secretary has properly determined that the plaintiffs' names should not be removed from the list of ineligible persons. This in turn depends on whether the plaintiffs have demonstrated unusual circumstances.[4] The Administrative Law Judge carefully considered that issue utilizing the criteria cited in Washington Moving and Storage Co., et al., No. SCA168, March 12, 1974. There the Secretary set forth guidelines for determining whether there are "unusual circumstances". The Secretary explained that: "Whether `unusual circumstances' are present in a case within the meaning of the Act must be determined on the basis of the facts and circumstances of the particular case. Some of the principal factors which must be considered in making this determination are whether there is a history of repeated violations of the Act; the nature, extent, and seriousness of past or present violations; whether the violations were willful, or the circumstances show there was culpable neglect to ascertain whether certain practices were in compliance, or culpable disregard of whether they were or not, or other culpable conduct (such as deliberate falsification of records); whether the respondent's liability turned on bona fide legal issues of doubtful certainty; whether the respondent has demonstrated good faith, cooperation in the resolution of issues, and a desire and intention to comply with the requirements of the Act; and the promptness with which employees were paid the sums determined to be due them. It is clear that the mere payment of sums found due employees after an administrative proceeding, coupled with an assurance of future compliance, is not in itself sufficient to constitute `unusual circumstances' warranting relief from the ineligible list sanction. It is also clear that a history of recurrent violations of identical nature, such as repeated violations of identical minimum wage or recordkeeping provisions, does not permit a finding of `unusual circumstances.' ..." After reviewing the findings and conclusions of the Administrative Law Judge, and those of the Administrator and the Secretary, this Court is satisfied that there was more than a preponderance of the evidence to support those findings, including the stipulation entered into by the parties before the Administrative Law Judge. The Administrative Law Judge properly applied the Washington Moving and Storage standard noting that plaintiffs' past history reflected violations of the Act during several years, that violations continued to occur, that proper management would have precluded continuing occurrences of widespread underpayments and that there had been "culpable violations." The decisions of the Administrative Law Judge, the Administrator and the Secretary thereafter were not arbitrary, capricious or an abuse of discretion. In view of the above, the Court concludes that further review of this case is unwarranted since the action of the Secretary was not arbitrary, capricious or an abuse of discretion. *820 Accordingly, the Court will, sua sponte enter summary judgment for the defendants and will dismiss this action. NOTES [1] He found, for example, that plaintiffs supplied records in a reasonably prompt fashion to the appropriate authority and that at some locations the records of plaintiffs' predecessors were essential for plaintiffs to take appropriate action but were unavailable to plaintiffs and the government notwithstanding a diligent effort to obtain them by the plaintiffs. (Compl. Ex. 1, p. 6.) [2] The Secretary may recommend that a contractor's name be removed from the ineligible list if he finds "unusual circumstances". 41 U.S.C. § 354(a). [3] An order denying plaintiffs' motion for preliminary injunction was filed on December 11, 1979. [4] The plaintiffs do not seriously argue with the factual findings of the Administrative Law Judge but contend that not withstanding those findings their names should be removed from the list of ineligible persons due primarily to the fact that the charges against them were not serious and that they have had an excellent record in the past.

412 F.2d 1143 UNITED STATES of Americav.Lawrence J. CONVERSANO and William P. Keohan.Lawrence J. Conversano, Appellant. No. 17372. United States Court of Appeals Third Circuit. Argued Feb. 4, 1969.Decided July 15, 1969. Richard C. Ferroni, Pirillo & Carabello, Philadelphia, Pa. (Anthony D. Pirillo, Jr., Philadelphia, Pa., on the brief), for appellant. Donald Horowitz, Asst. U.S. Atty., Newark, N.J., for appellee. Before KALODNER, GANEY and SEITZ, Circuit Judges. OPINION OF THE COURT GANEY, Circuit Judge. 1 Defendant, Lawrence J. Conversano, and William Patrick Keohan were charged in a single two-count indictment with transferring and having in their possession and concealing counterfeited obligations of the United States, with intent to defraud in violation of 18 U.S.C. 472 and 473. Keohan plead guilty to both charges while defendant plead not guilty. At his trial, defendant raised the defense of entrapment, took the stand and called Keohan, a co-defendant, as a witness. On the testimony presented by Secret Service Agent Kenneth E. Balge, the only witness called by the prosecution, the jury found defendant guilty on both counts, and the court, after denying post-trial motions, imposed concurrent sentences. 2 Although the Government has not raised the question, we must determine whether written notice of appeal was timely filed in this case in accordance with the Federal Rules of Criminal Procedure. The jury brought in its verdict on Tuesday, October 11, 1967. On the same day in open court, defendant's counsel applied for and was immediately granted, in lieu of the 7-day period provided for in Rule 33 of the Federal Rules of Criminal Procedure, a three-week period of time in which to file motions for judgment of acquittal and for a new trial. Interpreting the three-week period to mean 21 days, we conclude that it began on Wednesday, October 12, and ended with Wednesday, November 1, which was not a legal holiday. By letter dated November 2, one day after the three-week period, defendant's counsel requested an additional two weeks within which to file the post-trial motions. He was notified by telephone on November 6 from the trial judge's chambers that his request was granted. On November 15, defendant filed his motion for a new trial. The motion was based on grounds other than newly discovered evidence, one of them being 'The Court erred in denying Defendant's Motion for a directed verdict in acquittal.' 3 In open court on March 19, 1968, immediately after he was sentenced, defendant was allowed to post an appearance bond in the amount of $5,000 pending an appeal.1 The notation of the sentences was entered in the criminal docket two days later on Thursday, March 21. On April 1, by a written order, the district court denied defendant's motion for a new trial. The following day, April 2, the order was entered and defendant filed his notice of appeal in the district court. The notice provided: 4 'The defendant was found guilty of the above offenses (Selling, transfering and delivering of counterfeited obligations of the United States; possession and concealing counterfeited obligations of the United States with intent to defraud.) and was sentenced to two four-year terms of imprisonment; said terms to run concurrently. 5 'I, the above named appellant, hereby appeal to the United States Court of Appeals for the District of New Jersey from the above stated judgment.'2 6 This notice of appeal was filed one day too late. 7 Rule 37(a)(2) of the Federal Rules of Criminal Procedure, effective at the time defendant filed his notice of appeal, provided in pertinent part: 8 '(2) Time for Taking Appeal. The notice of appeal by a defendant shall be filed within 10 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of the order denying the motion * * *. A judgment or order is entered within the meaning of this paragraph when it is entered in the criminal docket * * *.'3 9 'It is well settled that 'the filing of a notice of appeal within the 10-day period prescribed by Rule 37(a)(2) is mandatory and jurisdictional.' United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964).' United States v. Temple, 372 F.2d 795, 797 (C.A. 4, 1966), cert. denied 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110. Also see United States v. Scarlata, 214 F.2d 807 (C.A. 3, 1954); 5 Orfield, Crim.Proc. Under Fed.Rules 37.12. 10 Using the date of entry of the order denying the motion for a new trial, which was April 2, as the starting point, the filing of the notice of appeal was in time if the motion was timely filed. We think it was not. Rule 33 of the Federal Rules of Criminal Procedure, in pertinent part, provides: 11 'The court on motion of a defendant may grant a new trial if required in the interest of justice * * *. A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 7 days after verdict * * * or within such further time as the court may fix during the 7-day period.' 12 Clearly, the trial judge had authority to grant the extension of time to three weeks in which to file the motion for a new trial inasmuch as the decision was made during the 7-day period immediately after verdict. But even if we assume factually that the letter dated November 2 was received by the trial judge and allowed by him as of that date, the second request for an extension of time was made and granted after the original three-week period had expired. We know of no rule which at the time would have given the district court authority to grant an extension of time other than the ground of newly discovered evidence. But defendant has not filed a motion based on that ground in this case. 13 Using Thursday, March 31, 1968, the date of the entry of judgment in this case as the starting point, Monday, April 1, 1968, was the last day on which notice of appeal could ordinarily have been filed timely here.4 According to the date of the official stamp on the notice of appeal, which we must accept as true in this case, the notice was filed on April 2, one day beyond the time allowed by the Rule. Thus were we to rely solely on the notice of appeal, this Court would be without jurisdiction to hear this appeal. However, the condition of the appearance bond, which was executed and filed in the district court on March 19, 1968, recites that the defendant has filed an appeal to this Court and the appeal is now pending. We think the filing of the appearance bond containing the above recital may be deemed the equivalent of the filing of a written notice of appeal in the district court. See O'Neal v. United States, 272 F.2d 412 (C.A. 5, 1959). And although it was filed prior to the entry of the judgment, it is treated as having been 'filed after such entry and on the day thereof.' in accordance with the mandate of Rule 37(a)(2), supra. 14 On the merits of this appeal defendant contends that the trial court committed reversible error in (1) sustaining an objection to a question put to the prosecution's sole witness on cross-examination as to whether a person identified as James Seth O'Donnell was a paid informer of the secret service, and (2) charging the jury regarding the defense of entrapment and refusing to read to the jury his six requests for charge. For a proper understanding of the basis for defendant's contentions and theory of entrapment, a review of the testimony is necessary. 15 After the secret service learned that counterfeit money was available for sale, Balge, an undercover agent, posed as Ray Simpson, an assistant cashier of a bank in Washington, D.C. James Seth O'Donnell brought defendant, Keohan, to the bank and introduced him to Balge as a person who could possibly lead Balge to a source of counterfeit money. At a restaurant Balge told Keohan that he had embezzled $200,000 from a trust account and was anxious to replace it with counterfeit notes before the bank examiners made their audit. Keohan got in touch with one Theodore Kittelt and told him of Balge's predicament and his desire to buy fake money to cover up the embezzlement. 16 Later, in Baltimore, Maryland, Kittelt introduced defendant to Keohan. The latter informed defendant that O'Donnell had introduced him to a bank official in Washington who had an urgent need to replace an embezzled $200,000 and was willing to buy fake money for that purpose at the rate of $23 for every $100 face value of the fake bills. At first defendant did not want to get involved, but after Keohan and Kittelt assured him there would be no problems and because the bills from the hospital where his wife was a patient were mounting while he was unemployed and unable to pay them as they became due, he agreed to go along. 17 Keohan then told Balge that the fake notes would be delivered to him at a hotel in Newark, New Jersey, on Friday, May 27, 1966. On that day, Keohan, defendant, and Kittelt rode by automobile from Baltimore to Newark, a distance of approximately 185 riding miles. When they arrived at Newark in the afternoon, defendant and Kittelt were dropped off at a service station and instructed by Keohan to go to the mezzanine floor of a certain movie house in the city and wait for a telephone call, while Keohan went on to meet Balge at his room in the hotel. Later, defendant answered a public telephone at the movie house and when he informed the caller that Balge and Keohan were at a certain hotel, the caller told defendant to call Keohan and tell him to get Balge to move out of that hotel and into another before the deal would be consummated. Defendant relayed the message to Keohan at the hotel room where Balge was staying, but Balge refused to move on the pretext of fearing to be robbed of his money. Upon learning that Balge would not move to other quarters, the caller said that the deal was off. The caller was never identified. 18 Before heading back to Baltimore, defendant went to the hotel, on his own volition, to get Keohan. When he arrived there between eleven and eleven-thirty p.m., and knocked on the door, Balge opened it, and the two met each other for the first time. Defendant asked for 'Charlie', the name which Keohan was using. After telling defendant that Charlie was out of the room momentarily and inviting him in, Balge asked him why the deal was off. He responded by saying, 'Look, we're not satisfied with this hotel. There was an arrest here previously involving our group and we don't want any more to do with this hotel. We want you to leave and go to another place.' Then there were two versions as to what was said. 19 According to the testimony of Balge, on direct examination, he told defendant that he was refusing to move for the reason that he was unwilling to take his money out of the hotel where he was staying, and unless delivery was made there he was returning to Washington the next day. Despite this response, defendant tried to persuade Balge to check out of the hotel and go to the airport motel where the deal would be completed. When he refused to budge, defendant told him the deal was off. To which Balge replied that it was alright with him for he was being stalled around too long and was therefore going back to Washington. Then the defendant left the room. However, on cross-examination, Balge stated: 'I tried to assure him (defendant) that this was not any setup where he was going to get arrested at all. All I was interested in is getting the counterfeit money, and if he had it, I was looking for delivery.' 20 According to the defendant's testimony, Balge responded as follows: 'I am not an agent. You must believe it. I am the vice-president of a bank and I got to have that money. I got to put it back before Tuesday or Wednesday.' After being convinced that he was not an agent, defendant told Balge that he would try to do something for him. On the way out of the hotel, defendant met Keohan and told him that Balge had convinced him to go ahead with the proposition. When Keohan reassured him that Balge was not a Government agent, defendant returned to the movie house and obtained a sample bogus ten dollar bill from under a lounge pillow on the mezzanine floor, which he had previously been told to do by the caller. He returned to the hotel around midnight and showed it to Balge who replied that it was alright and to get the rest for him so that he could put it in the bank before the examiners found out about the loss. Defendant again told Balge that the supplier of the fake bills wanted him to move to another place before completing the deal, but Balge steadfastly refused to budge. Defendant then departed and obtained a room for the night in the same hotel. 21 The following morning, Saturday, May 28, defendant went to Balge's room and after he again refused to move, defendant told him in Keohan's presence that the deal would go through at the hotel and that he would pick up the bills, having a face value of $60,000 and wrapped in a brown bag, from a public trash receptacle around the corner from the hotel. He left and then returned with the package. Balge went through the formality of counting the bills and then asked defendant and Keohan to follow him downstairs to get the real money to pay defendant. As they were doing so, Balge thumped the door of the room next to his, wheeled around, identified himself as an agent and told them they were under arrest. The other agents who were standing by in the next room came out and assisted in the arrest. 22 Regarding his first point, defendant argues that it was of the utmost importance to the defense of entrapment to obtain the relationship between the Government agents and O'Donnell who was the first link in the chain that induced defendant to take part in the scheme as outlined at the trial. The relationship of O'Donnell to the Government, whether as a paid informer or agent, was immaterial in this case. See Nordeste v. United States, 393 F.2d 335, 338-339 (C.A. 9, 1968), cert. denied 393 U.S. 878, 89 S.Ct. 178, 21 L.Ed.2d 150. There was no evidence that he ever communicated with the defendant. The mere fact that a person is a link in a chain of people through whom a defendant ultimately meets up with an agent does not make that person an entrapper. Additionally, there was no evidence in the record that Koehan or Kittelt were agents of Balge's, or of the Government's, nor were they in his employ as they deemed the story of Ray Simpson as an embezzler to be true. 23 Concerning defendant's second contention, on charging the jury regarding the defense of entrapment and refusing to read to the jury his requests for charge, the record discloses that at the outset of his trial his counsel informed the court that defendant was not denying that he had committed the acts and in the frame of mind set forth in the indictment, but was relying on the defense of entrapment. In his very brief opening address defense counsel told the jury that his case would differ slightly from those which they probably sat upon during their term as jurors in that defendant's defense is based on the theory of entrapment and for that reason defendant had plead not guilty to the indictment and not because he did not have possession of the money or that he didn't know it was counterfeited. The trial judge told the jury that entrapment was a valid defense to an accusation in an indictment and defined entrapment in the language of United States v. Clark, 343 F.2d 90, 92 (C.A. 3, 1965).5 He also informed them that the secret service is charged with the duty of making investigations and following leads and employing such methods, under the circumstances, as well enable them to prevent or reduce the influx of counterfeit money in circulation as genuine legal tender. He left it to the jury to determine from the testimony on both sides whether the defendant was entrapped. Although he charged that the burden was on the prosecution to prove beyond a reasonable doubt that defendant was guilty of each element of the crime for which he was accused, he did not tell them that this same burden was also on the Government to establish that entrapment did not occur. However, no point for charge was submitted concerning it nor was any objection made to the charge of the court at the close thereof, and we see no reason, under these circumstances, to invoke the Plain Error Rule, Federal Rule of Criminal Procedure 52(b), and, accordingly, absent any objection by the defendant, no substantial rights of his were affected as to warrant consideration without such objection. Lopez v. United States, 373 U.S. 427, 436, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Reid v. United States, 334 F.2d 915-917 (C.A. 9, 1964); Martinez v. United States,300 F.2d 9-10 (C.A. 10, 1962). 24 While it has been held that the burden is on the Government to prove beyond a reasonable doubt that the defendant was not entrapped when that defense is properly raised, United States v. Landry, 257 F.2d 425 (C.A. 7, 1958),6 it also has been held that the trial court's refusal to so charge upon request is reversible error, Pratti v. United States, 389 F.2d 660 (C.A. 9, 1968), but we reiterate that since no objection to the charge on this point was made, we, therefore, must deem the general instructions given on the burden of proof to be broad enough to have covered the issue of entrapment. United States v. Salas, 387 F.2d 121 (C.A. 2, 1967). 25 Defendant objected to the trial judge's 'statement' and 'explanation' of entrapment but offered no suggested improvement except the adding of his six points for charge which the judge had refused to read to the jury. He also objected to the trial judge's use of the term 'investigation' in describing the duty of the secret service as prejudging his theory of entrapment. The trial court's overruling of these objections is the basis for defendant's second point. 26 In view of the defense raised by the defendant, the sole issue in the case was whether he was entrapped by persons acting on behalf of the Government into committing the acts set forth in the indictment. There was no real need to have submitted the case to the jury as though it were an ordinary trial for violations of sections 743 and 742 of Title 18, U.S.C. However, no harm was visited upon defendant by charging in this fashion since it gave him an additional opportunity to be found not guilty, for, despite the fact that counsel admitted the accusations in the indictment, the jury was required by the trial judge to determine the very issues which defense counsel said were no longer in the case. 27 Defendant did not file a motion for judgment of acquittal at the end of all the evidence, as is permitted by Rule 29 of the Federal Rules of Criminal Procedure. Instead, he included in his requests to charge the following: '6. Direct verdict of acquittal.' Additionally, one of the grounds set forth in his motion for a new trial is, 'The Court erred in denying Defendant's Motion for a directed verdict in acquittal.' He has assigned the trial judge's failure to read his requests to charge under the second point as grounds for this appeal. Though motions for directed verdicts have been abolished by the criminal rules, we shall treat the above quoted request as though it were a motion for judgment of acquittal at the end of all the evidence and that it was denied by the district court both at the time it was submitted and in the court's order denying the motion for a new trial. 28 Defendant was not entitled to judgment of acquittal on the grounds that the evidence showed as a matter of law that he was entrapped; at most, it presented a jury question. The parts played by Keohan or Kittelt did not amount to entrapment. United States v. Laverick, 348 F.2d 708 (C.A. 3, 1965). The counterfeiting of United States currency and trading in them is done in secret. It is the job of the secret service to flush new practices to the surface where they may be detected. One method, as used in this case, is to create a fictional demand for forged money and let it be known to those who would willingly traffic in species of that kind. This is permissible. If either Keohan or Kittelt were acting on behalf of the Government there might be merit to defendant's request for judgment of acquittal. The Government did not make Keohan its agent merely by using him as a courier. Keohan, called as a witness by the defense, testified on cross-examination that until he was arrested on May 28, 1966, he never knew Balge was a secret service agent. He also testified on direct examination that he got in touch with Kittelt because he believed that Kittelt could lead him to a source of counterfeit money since he had been involved in counterfeit money transactions on prior occasions. 29 The conversations between Balge and the defendant will not aid him. By his own admission he was predisposed to commit the crimes for which he was indicted or was willing to grasp at the opportunity to fulfill his preconceived intent to commit those crimes albeit he had never been involved in a counterfeit money transaction before. Therefore, defendant must argue that he abandoned his original design and that thereafter Balge induced him to execute it. But the issue of abandonment was never submitted to the jury nor was the trial judge expressly requested to ask the jury to consider that question. He cannot validly complain of that omission here. See Marbs v. United States,250 F.2d 514, 516-518 (C.A. 8, 1958). Balge's testimony did not disclose that defendant abandoned his original intention, as, at best, the 'deal' was declared off only because defendant wanted a change of locale for the delivery of the counterfeit money and not because of any abandonment of his intent to commit the crime. Therefore, any change of heart on his part would have to be revealed by the defendant and the truth of any such revelation would have been a jury question. If the story related by defendant was believed by the jury, a person, whose identity was not revealed, made the decision to postpone the carrying out of the scheme solely because Balge declined to move from the hotel where one of the gang was claimed to have been arrested in the past year. True, Balge candidly admitted that he tried to assure defendant at the hotel that the scheme was not a setup. Defendant said on the witness stand that he told Balge in response to this assurance that he would try to help him. Later, he delivered the bundle of fake bills which raised the permissible inference that he persuaded the unidentified person to supply the bogus bills without which there could not have been any delivery. Moreover, the assurance given by Balge was not of a degree which, in our opinion, required the trial judge to have submitted the issue of abandonment to the jury. Cf. United States v. Klosterman, 248 F.2d 191, 69 A.L.R.2d 1390 (C.A. 3, 1957). 30 The only question remaining is whether there was reversible error in the instructions to the jury. The trial judge properly defined entrapment to the jury. He did not err in refusing to read any of defendant's six requests to charge. All but No. 4 were in effect requests for judgment of aquittal on the evidence. We have ruled he was not entitled to that. Request No. 4 was defendant's definition of entrapment quoted from Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Although it was a correct version, the trial judge was not required to charge in those words. The use of the word 'investigation' by the trial judge, as we have indicated previously, was a reasonable explanation to the jury of the duties of a secret service agent. 31 Accordingly, the judgment of conviction and sentence will be affirmed. 1 The appearance bond was not made a part of the certified record on appeal until this Court requested the Clerk of the district court to do so on June 6, 1969 2 The note was signed by defendant's counsel and underneath his signature appears the date of March 28, 1968, written in ink. However, the notice was stamped as being filed on April 2, 1968, at 8:30 a.m. in the District Court. Counsel has offered no explanation to overcome the presumption of correctness of the stamp 3 Rule 37 was abrogated December 4, 1967, effective July 1, 1968. The procedure for taking appeals in criminal cases is now set forth in Rule 4(b) of the Federal Rules of Appellate Procedure, effective July 1, 1968 4 The 10-day period in which a notice of appeal could have been timely filed in this case began with the 22nd and ended with the 31st of March. Since the 31st was a Sunday, the period of time was extended to the following day, Monday, April 1, which was not a legal holiday. See Rule 45(a) of the Federal Rules of Criminal Procedure; 8A Moore's Fed. Practice (Cipes, Crim.Rules) P37.05 5 In the cited case, this Court, speaking through Judge Kalodner, said: 'Entrapment occurs * * * when the criminal design originates with the officials of the government and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute. * * * To determine whether entrapment has been established, a line must be drawn between the trap for the unwary and the innocent and the trap for the unwary criminal.' 6 But see United States v. Bishop, 367 F.2d 806, 807 (C.A.2, 1966), where the Court held that the accused bears the burden of proving that the agent induced him to commit the offense charged in the indictment, while the Government must prove beyond a reasonable doubt that the accused was ready and willing without persuasion from the agent to commit the offense

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC., Plaintiff, v. Civil Action No. 15-785 (JEB) REX W. TIILLERSON, in his official capacity as U.S. Secretary of State, Defendant. ------------------------------------------------------- CAUSE OF ACTION INSTITUTE, Plaintiff, v. REX W. TILLERSON, in his official Civil Action No. 15-1068 (JEB) capacity as U.S. Secretary of State, and DAVID S. FERRIERO, in his official capacity as U.S. Archivist, Defendants. MEMORANDUM OPINION A full year has now passed since the 2016 presidential election, but the controversy over Hillary Clinton’s emails endures. As readers well remember, Clinton used private email accounts and servers during her tenure as Secretary of State. When news first broke that those accounts were employed to “conduct official government business,” Plaintiffs Judicial Watch and Cause of Action became concerned that the Government might not have retained records of her emails. See JW Compl., ¶ 5; CAI Compl., ¶ 9. To spur recovery, each filed a separate suit alleging violations of the Federal Records Act, “a collection of statutes governing the creation, 1    management, and disposal of federal records.” Public Citizen v. Carlin, 184 F.3d 900, 902 (D.C. Cir. 1999). Plaintiffs argued that pursuant to the statutory scheme, Defendants State Department and the National Archives and Records Administration (NARA) must enlist the Attorney General’s aid in recovering Clinton’s emails. In the parties’ first consolidated foray before this Court, the Government moved to dismiss the case as moot, arguing that it had done all that the FRA requires. The Court took the bait, holding that because Defendants had already taken significant steps to recover the emails, Plaintiffs suffered no ongoing injury. The Court of Appeals reversed and, in doing so, established a higher hurdle for Defendants to clear. Namely, they must initiate action with the Attorney General unless they either recover all the missing emails or “establish their fatal loss.” Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 956 (D.C. Cir. 2016). On remand, the Administration may have changed, but the Government’s stance remains the same. Relying on new evidence of their additional efforts to track down the Clinton emails, Defendants play the mootness card once more. Based on that supplemented record, the Court again agrees the suit is moot and therefore grants their Motion to Dismiss. I. Background Plaintiffs are two non-profit organizations, which describe themselves as dedicated to promoting “transparency, accountability, and integrity in government.” JW Compl., ¶ 3; see also CAI Compl., ¶ 21. After learning of Clinton’s private email accounts, both organizations believed that the Secretary had unlawfully removed federal records from the State Department. See JW Compl., ¶ 5; CAI Compl., ¶ 9. Judicial Watch therefore filed suit on May 2015, and Cause of Action joined the mix two months later. See Minute Order of August 4, 2015 (granting Government’s Motion to Consolidate Cases). Plaintiffs claimed principally that the State 2    Department had failed to retain agency records in violation of the Federal Records Act, such that the current Secretary of State must “initiate action through the attorney general to recover the Clinton emails.” JW Compl., ¶¶ 7, 29; see also CAI Compl., ¶¶ 16-17, 68. This Court dismissed Plaintiffs’ suit as moot. See Judicial Watch, Inc. v. Kerry, 156 F. Supp. 3d. 69, 73 (D.D.C. 2016). To proceed, it reasoned, Plaintiffs must allege an ongoing injury under the FRA, which they could do only if the Secretary and Archivist had been “‘unable or unwilling’ to recover emails that might be federal records.” Id. at 76. As it happened, both NARA and State had already recovered nearly 55,000 pages of Clinton emails and were partnering with the Federal Bureau of Investigation to search for more. Id. at 76-77. Under this Court’s interpretation of the statute, Defendants’ sustained efforts sufficed to alleviate any injury. Id. at 77. The Court of Appeals reversed, applying a mootness test with more teeth. See Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 953 (D.C. Cir. 2016). It allowed that “actions taken by the Department and the FBI might have mooted appellants’ claims by securing custody of all emails that the Attorney General could have recovered in an enforcement action.” Id. at 955 (emphasis added). Although the tag-team efforts “bore some fruit,” the court believed that “shaking the tree harder . . . might [] bear more still.” Id. In so holding, the Court of Appeals mentioned that the FBI had recovered a server and thumb drive housing emails from one of Clinton’s nongovernmental email addresses. Id. If Plaintiffs had “sought emails from [that] server account” only, the court noted, a mootness argument “might well succeed.” Id. But Clinton had used a second nongovernmental address, a Blackberry account, during her first weeks in office. Id. at 955-56. The record showed no effort by the State Department or FBI to recover those emails. Id. The Court of Appeals thus held that the controversy remained live “[a]bsent a 3    showing that the requested enforcement action could not shake loose a few more emails.” Id. at 955. It acknowledged, however, that Defendants had taken actions subsequent to this Court’s initial decision, permitting them to raise mootness once again on remand. Id. at 956-57. Now back for round two, Defendants accept the invitation and renew their Motion to Dismiss on mootness grounds. See MTD (ECF No. 33). To that end, they have supplemented the record previously before this Court and detailed their more recent attempts to recover the remaining emails. That effort includes piggybacking on a parallel investigation by the FBI, which sought all of Clinton’s work-related emails (with a particular emphasis on the Blackberry ones) to assess whether she had mismanaged classified information. See, e.g., id., Exhs. 1-4. As of June 15, 2017, the FBI has turned over all recovered records to the State Department. See Supp. Declaration of E.W. Priestap, ¶ 12. Defendants consequently conclude that they have no “reason to believe that recoverable Clinton email records remain extant.” Gov’t Reply, Exh. 1 (Second Declaration of Lawrence Brewer), ¶ 3; see also id., Exh. 2 (Second Declaration of Eric F. Stein), ¶ 3. II. Legal Standard To survive a motion to dismiss under Rule 12(b)(1), a plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear its claims. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 & n.3 (2006); Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). A court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). “For this reason, ‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal 4    Practice and Procedure § 1350 (2d ed. 1987)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). III. Analysis Plaintiffs’ suits contend that Defendants must initiate action through the Attorney General to recover Secretary Clinton’s emails, which they allege are “federal records” under the FRA. See CAI Compl., ¶¶ 35-37. In seeking dismissal, Defendants rejoin that the actions are now moot, as they have already recovered all extant emails and thus need not invoke the Attorney General’s aid. Alternatively, Defendants ask the Court to grant summary judgment in their favor on the merits. Plaintiffs not only oppose Defendants’ Motion, but they cross-move for summary judgment themselves. See ECF Nos. 37 (JW), 38 (CAI). Cause of Action also moves for jurisdictional discovery to aid it in establishing the Court’s subject-matter jurisdiction, see ECF No. 38, and adds a Motion to Strike Defendants’ chief declaration in support of their mootness argument. See ECF No. 54. The Court’s analysis begins by outlining the FRA, proceeds to examine mootness, and concludes with a look at jurisdictional discovery. It need not reach the summary-judgment dispute. A. The Federal Records Act The FRA requires heads of federal agencies to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency.” 44 U.S.C. § 3101. Each agency head shall also “establish safeguards against the removal or loss of records the head of such agency 5    determines to be necessary and required by regulations of the Archivist,” the head of the National Archives and Records Administration. Id. § 3105. When those safeguards fail, the Act sets forth a structure whereby the Archivist and agency heads are to work together to ensure that no documents are unlawfully destroyed. Each agency head shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed from that agency, or from another Federal agency whose records have been transferred to the legal custody of that Federal agency. Id. § 3106. The Act also includes a check against recalcitrant agencies. If the agency head does not enlist the Attorney General, “the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.” Id. And if both the agency head and Archivist “fail[] to initiate remedial action in a timely manner, private litigants may sue under the APA to require them to do so.” CREW v. U.S. Dep’t of Homeland Sec., 527 F. Supp. 2d 101, 110 (D.D.C. 2007) (citation and quotation marks omitted). Notwithstanding the statute’s mandatory language, the D.C. Circuit has made clear that the agency need not “initially attempt to prevent the unlawful action by seeking the initiation of legal action.” Armstrong v. Bush, 924 F.2d 282, 296 n.12 (D.C. Cir. 1991). “Instead, the FRA contemplates that the agency and Archivist may proceed first by” taking their own “intra-agency actions.” Id. In this case, the Court of Appeals affirmed that “an agency might reasonably attempt to recover its records before running to the Attorney General.” Judicial Watch, 844 F.3d 6    at 956. The agency must initiate the referral process, however, if “those initial efforts failed to recover all the missing records (or establish their fatal loss).” Id. B. Mootness At this stage, the Government assumes that Clinton’s emails are federal records and were unlawfully removed from the agency. See MTD at 5 n.3. It nevertheless contends that its subsequent recovery efforts have mooted the suit. As the Supreme Court has explained time and again, a court “may only adjudicate actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). “To save a case from mootness the ongoing injury must be more than a remote possibility, not conjectural, [and] more than speculative.” Liu v. INS, 274 F.3d 533, 535 (D.C. Cir. 2001) (quotation marks and citations omitted). “Where the plaintiff has recovered all it has sought, no court action can provide further relief and the case is moot.” Judicial Watch, 844 F.3d at 954. The Court of Appeals has provided a road map for the mootness inquiry in this case. To wit, this Court must start from the premise that Plaintiffs seek to “assur[e] government recovery of emails.” Id. at 955. So long as referral to the Attorney General might recover “a few more emails,” Plaintiffs have not “been given everything [they] asked for.” Id. (quoting Noble v. Sombrotto, 525 F.3d 1230, 1241 (D.C. Cir. 2008)). The case is moot, however, if Defendants have already “secur[ed] custody of all emails that the Attorney General could have recovered in an enforcement action.” Id. To evaluate whether that is so, the Court first surveys exactly which emails went missing. Heeding the D.C. Circuit’s instructions, it then asks whether Defendants have successfully recovered those emails or otherwise established their fatal loss. 7     1. The Missing Emails Although “the Clinton emails” have taken on a larger-than-life role in our political discourse, precision in their description is often lacking. The Secretary’s emails came from different accounts and were stored on different servers. The common thread: the accounts and servers were private. As the Court of Appeals highlighted, Clinton “used two nongovernmental email addresses” while at State. Judicial Watch, 844 F.3d at 955. Before her swearing in, she primarily maintained a Blackberry email account (hr15@mycingular.blackberry.net, and then, presumably after AT&T’s 2007 acquisition of Cingular, hr15@att.blackberry.net). See First Priestap Decl., ¶ 4. By January 2009, she had decided to transition to a new private domain, clintonemail.com. Id., Exh. A (FBI Report) at 3. She created the latter account on January 13, 2009 (before she assumed office), and used it as her “primary e-mail” by mid-to-late January. Id. The Secretary apparently sent and received a few scattered emails on the Blackberry account during the subsequent weeks, but by March 18, 2009, the FBI detected no further communications from that domain. Id. In addition to private email accounts, Clinton also used private email servers while at State. An email server is akin to a virtual post office and moves messages from a sender to its intended recipient. In 2007, an aide to former President Bill Clinton purchased an Apple OS X Server (Apple Server) “for the sole purpose of hosting e-mail services for President Clinton’s staff.” Id. at 2. The Clintons maintained that server in the basement of their Chappaqua, New York, residence. Id. at 4. The Apple Server “initially hosted the domains presidentclinton.com and wjcoffice.com,” which were used exclusively by Bill Clinton’s staff. Id. at 3 & n.f. It also hosted clintonemail.com accounts for at least two Clinton staffers. Id. at 4. It is not clear 8    whether Hillary Clinton ever linked her email accounts to this server. Id. (describing conflicting reports as to whether Clinton linked her clintonemail.com domain). Around January 2009, the staff deemed the Apple Server too antiquated to meet their demands and replaced it with one set up by a former campaign worker, Bryan Pagliano (the Pagliano Server). Id. at 3. Pagliano installed the latter sever in March 2009, and Clinton used it throughout her tenure at State to host her clintonemail.com account. Id. at 4-5. Pagliano transferred emails from the Apple Server to the newer edition and believes no email content remained on the old one. Id. at 4. The Apple Server was then repurposed as a personal computer for household staff, before the Clintons discarded it in 2014. Id. In July 2013, Clinton transitioned to a third server, the Platte River Networks (PRN) server, which was run by a third-party vendor in Secaucus, New Jersey. Once again, the staff migrated all emails from the Pagliano Server to the PRN one. Id. at 6. The Secretary used this latest server exclusively after her departure from the State Department until October 3, 2015, when she voluntarily produced it to the FBI. Id. at 6-7. For those keeping track, then, Clinton used two relevant email domains (Blackberry and clintonemail.com) and at least two private servers (the Pagliano Server and the PRN Server), with the possibility of a third (the Apple Server). Clinton also used a series of personal, rather than State-issued, mobile devices. The FBI found thirteen such phones, eight of which she apparently used while at State. Id. at 8. According to Clinton aides, “[I]t was not uncommon for Clinton to use a new Blackberry for a few days and then immediately switch it out for an older version with which she was more familiar.” Id. at 9. Whenever Clinton moved to a new device, aides would dispose of the older SIM cards. Id. In at least two instances, a Clinton aide destroyed the discarded phones “by 9    breaking them in half or hitting them with a hammer.” Id. In addition to the mobile devices, Clinton used up to five different personal iPads, which she used to send emails from her clintonemail.com domain. 2. The Recovery Effort Given Clinton’s use of private email accounts and servers, the Court assumes that at least some federal records were improperly maintained outside the agency, in violation of the Federal Records Act. Plaintiffs no longer suffer a continuing injury, however, if the Government has successfully recovered those emails or established their fatal loss. See Judicial Watch, 844 F.3d at 956. The Court therefore examines that recovery effort. The State Department first attempted to recover Clinton’s emails in November 2014. The agency sent a letter to Clinton’s attorney requesting copies of emails from her personal email account that constituted federal records, if those records were not otherwise preserved in the Department’s recordkeeping system. See CAI Compl., Exh. 4 (Kennedy Letter to Cheryl Mills) at 1-2. In response, Clinton’s representatives canvassed the PRN Server for any pertinent work emails and ultimately provided State with approximately 55,000 pages of responsive documents (apparently all from the clintonemail.com address) on December 5, 2014. Id., Exh. 4 (Mills Letter to Kennedy); see also First Priestap Decl., Exh. A at 15-16. The Court relied principally on that voluntary production in issuing its initial decision. See Judicial Watch, 156 F. Supp. 3d at 76-77. In 2015, the FBI entered the equation, as part of its investigation to determine whether Clinton had unlawfully handled classified information. With her cooperation, the FBI obtained and forensically searched:  The Pagliano Server and two external hard drives used to create back-ups of it. See First Priestap Decl., ¶ 8; Judicial Watch, 844 F.3d at 955; 10      The PRN Server and an external device used for back-ups. See First Priestap Decl., ¶¶ 9-10; Exh. A at 5-7;  The commercial email account used to migrate data from the Pagliano Server to the PRN Server. See First Priestap Decl., ¶ 9; Exh. A at 17;  Two Blackberry devices associated with Secretary Clinton. See First Priestap Decl., ¶ 12; Exh. A at 8-9; and  Three iPads associated with Secretary Clinton. See First Priestap Decl., ¶ 13; Exh. A at 9. All told, the FBI recovered nearly 17,500 unique pages of emails above and beyond those already submitted by Clinton’s team. Id. at 19. In light of those extensive efforts, the Court of Appeals noted that “[i]f appellants had only sought emails from the [Pagliano] server account, a mootness argument based on the recovery of the server might well succeed.” Judicial Watch, 844 F.3d at 955. Perhaps taking the hint, Plaintiffs do not directly challenge the State Department’s recovery effort related to the Pagliano Server. This Court, too, sees no loose ends: since the initial opinion in this case, the FBI has issued a report summarizing its investigative efforts and turned over all relevant emails from that server to the State Department. See First Priestap Decl., Exh. A; Supp. Priestap Decl., ¶ 12. The Court, accordingly, finds Defendants have “recovered” all relevant communications from the Pagliano Server. See Judicial Watch, 844 F.3d at 955-56. Plaintiffs also forgo any direct challenge to the clintonemail.com account, instead zeroing in on the so-called “Blackberry emails,” — i.e., those sent during Clinton’s first months in office (from January 21, 2009, to March 18, 2009). To recap, she used that email account sporadically after her swearing-in, as she had essentially transitioned to the clintonemail.com account by mid- January. The Blackberry emails thus stand as “[t]he core dispute at this stage of litigation.” CAI Opp. at 3; see also id. at 7 (“As the Court of Appeals recognized, the primary trove of 11    unrecovered federal records at issue in this case is the BlackBerry e-mails from the first three months of Secretary Clinton’s tenure.”) (citing Judicial Watch, 844 F.3d at 955-56). Clinton initially failed to provide the State Department with emails from her Blackberry accounts, as her team could not locate any such records from that period. See First Priestap Decl., Exh. A at 20 n.bbb. As part of its forensic review, the FBI recovered “some” emails from January 23, 2009, to March 18, 2009, from a device used to back up the PRN Server. Id. It suspects, however, that those emails are “likely only a subset” of those sent. Id. On remand, the Government does not contest that some Blackberry emails remain missing. Because Defendants apparently did not “recover[]” all relevant emails, the Court must consider whether they are fatally lost or whether further digging may recover some missing messages. See Judicial Watch, 944 F.3d at 956. On cue, Lawrence Brewer, the Chief Records Officer for NARA, avers that the agency does “not know or have reason to believe that recoverable Clinton email records remain extant.” Second Brewer Decl., ¶ 3. NARA, typically the watchdog for federal records, believes that the State Department’s and FBI’s “efforts to recover the missing Federal records . . . are consistent with what agencies are required to do when records have been destroyed or alienated.” Id. State says the same. See Second Stein Decl., ¶ 3 (“State [has] reached its determination that it does not know or have reason to believe that recoverable Clinton email records remain extant that are not currently in the federal government’s possession.”). In other words, the agencies themselves believe all emails are either recovered or fatally lost. Plaintiffs, understandably, hesitate to take Defendants’ word for it. This Court, too, must be wary of relying solely on the agencies’ self-assessment. Although the D.C. Circuit did not define precisely how Defendants might “establish . . . fatal loss,” it left little doubt that the hurdle 12    was high. See Judicial Watch, 844 F.3d at 956. The Federal Records Act provides that agencies shall initiate action with the Attorney General when they “know[] or [have] reason to believe [records] have been unlawfully removed from that agency.” 44 U.S.C. § 3106. In other words, the statute directs agencies to take action so long as records were removed, leaving little room for the agencies themselves to determine whether those records are “recoverable.” Rather, the FRA treats “the law enforcement authority of the United States [as] a key weapon in assuring record preservation and recovery,” such that a suit would be moot only if there are no more “imaginable” avenues for the Attorney General to pursue. Judicial Watch, 844 F.3d at 956. Ordinarily, then, referral to the Attorney General will be the remedy for unrecovered records. This, however, is no ordinary case. The Government has already deployed the law- enforcement authority of the United States to recover Clinton’s emails, as the FBI has sought those records as part of its investigation into whether Clinton mismanaged classified information. The Court thus need not speculate about what the Attorney General might do. On remand, Defendants have submitted the declaration of Special Agent E.W. Priestap, the FBI’s lead investigator in the Clinton case. Agent Priestap swore that “there were no further steps that could have been reasonably undertaken by the FBI that would have recovered additional Clinton work-related e-mails.” Supp. Priestap Decl., ¶ 12. As Assistant Director in the Counterintelligence Division, Priestap supervised the investigation into Clinton’s private emails and server. Id., ¶¶ 1, 2. His sworn affidavit recounts the FBI’s extensive efforts to locate “all potentially work-related” emails. Id., ¶ 12. During that investigation, the “period of January 21, 2009[,] to March 18, 2009” — i.e., the period in which Clinton used the Blackberry account — was apparently “of particular interest to the FBI[],” as the agency hoped “to understand the [Secretary’s] rationale for establishing a private e-mail server” in the first instance. Id., ¶ 6. 13     The Court’s review of the supplemented record confirms that the FBI has exhausted all imaginable investigative avenues. For starters, the Bureau utilized numerous investigative methods to obtain any missing emails, including 1) seeking consensual access to any email repositories, and 2) obtaining personal electronic devices used by the Secretary that might have contained relevant emails. Id., ¶ 4. In the course of its investigation, the FBI also interviewed individuals who had the most frequent work-related communications with Secretary Clinton, thereby obtaining additional email correspondence. Id. When those initial efforts came up short, the agency shook “the tree harder,” Judicial Watch, 844 F.3d at 955, turning to legal process. See Supp. Priestap Decl., ¶ 5. Most infamously, the FBI discovered conceivably pertinent emails during an unrelated investigation into Anthony Weiner, the then-husband of Clinton’s deputy chief of staff, Huma Abedin. Id., ¶ 12; see also Matt Apuzzo, et al., Justice Department Obtains Warrant to Review Clinton Aide’s Emails, N.Y. Times (Oct. 30, 2016). In response, it sought search warrants of Abedin’s computer to ensure there were no new work-related emails located there. See id.; see also Supp. Priestap Decl., ¶ 12. Since the Court of Appeals issued its decision, the Government has also revealed that it used grand-jury subpoenas to assess whether service providers might still maintain Clinton’s emails. See First Priestap Decl., ¶ 4. In June 2017, Defendants submitted a second declaration sketching in the details of those grand-jury subpoenas. See Judicial Watch, Inc. v. Tillerson, 2017 WL 3835677, at *1 (D.D.C. Aug. 31, 2017). This later declaration came with a catch: the Government redacted the bulk of the public document, submitting the full version for in camera and ex parte review only. Id. Plaintiffs responded with a Motion to Produce, arguing that to the extent the Court might rely on the declaration, they must have unfiltered access. Id. The Court agreed the affidavit should be 14    public and therefore granted Plaintiffs’ motion, subject only to a narrow exception. Id. Defendants thus resubmitted an amended and largely unredacted “Supplemental” Priestap declaration. See ECF No. 52 (Notice of Filing of Supp. Priestap Decl.). Priestap’s latest declaration reveals that the FBI subpoenaed RIM, the maker of Blackberry electronic devices; Cingular Wireless and its successor, AT&T wireless, which provided mobile-phone service and thus data access; and the unnamed third-party service provider for Clinton’s emails. See Supp. Priestap Decl., ¶ 8. All four service providers confirmed that they “no longer retained . . . electronic communications transaction information for the accounts” and, therefore, could not produce even the most basic information (such as the subject lines or headers) requested by the FBI. Id., ¶¶ 9, 10. The Bureau deemed those responses consistent with its understanding of Blackberry devices, which “pulled” information off servers rather than storing it on a separate “cloud” server. Id., ¶ 10. Leaving nothing to chance, however, the FBI reissued the subpoenas and contacted the service providers directly. Id. Once again, the providers confirmed that they stored “no data” related to the accounts, meaning any content would be unavailable. Id. Having come up empty on those fronts, Priestap believes that the FBI has taken “all reasonable and comprehensive efforts to recover email communications relevant to its investigation” and sees no “further steps” to take. Id., ¶ 12. In other words, the Attorney General’s investigative arm joins Defendants’ conclusion that there are no remaining emails for State to recover. The FBI so concluded as part of an investigation related to national security, in which it had every incentive to “shake the tree” with all its might. It strains credulity that the Attorney General would implement a more exhaustive search in response to a federal-records request. 15     Plaintiffs protest that the FBI hunted only for classified emails. See CAI Reply at 13. Not so. Although its investigation focused on whether Clinton transmitted or stored classified information on her private systems, its search for emails was not so limited. Rather, “the FBI sought to obtain all identified e-mail communications that were transmitted or stored upon former Secretary Clinton’s private e-mail servers.” Supp. Priestap Decl., ¶ 4 (emphasis added); see also id., ¶ 12 (saying FBI sought “all potentially work-related emails from the former Secretary’s tenure”) (emphasis added). Only once the Bureau had recovered the universe of emails could it provide “relevant emails for classification review to the appropriate U.S. Government agencies.” Id., ¶ 12. In other words, it conducted blanket searches for any plausibly work-related emails because it could not have known ex ante whether those emails would contain classified information. Its search was thus coextensive with (and perhaps broader than) that required by the Federal Records Act. Cause of Action also moves to strike portions of Agent Priestap’s declaration under Federal Rule of Evidence 702, claiming that he offers an “expert” opinion that is neither relevant nor reliable. Rule 702 governs evidentiary proceedings and permits expert testimony that “will help the trier of fact to understand the evidence.” Even assuming the Court is the trier of fact here, however, Agent Priestap does not purport to be an “expert” on FBI searches. Rather, he has recounted the agency’s efforts to recover Clinton’s emails and, as a supervisor of that investigation, opined on the sufficiency of those efforts. Courts frequently rely on government affidavits to adjudicate an agency’s “retrieval efforts” in the FOIA context. See Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (quoting Founding Church of Scientology v. Nat’l Security Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)). Here, too, the Court faces the “peculiar[]” situation in which the agency is “in sole possession” of the relevant information, as FBI 16    personnel have conducted the disputed searches. Id. The Court therefore necessarily relies on the agency’s assessments of those searches, although the above analysis shows that it examines such assessments with care. In any event, the Court finds Priestap’s opinions to be relevant and reliable. As outlined above, he “supervised the Clinton Server Investigation” and thereby witnessed firsthand the “investigative efforts” taken to secure her emails. See Supp. Priestap Decl., ¶ 2. He is thus uniquely situated to assess what further steps the FBI might plausibly pursue. His opinion is also relevant. Although the FBI and the Attorney General are not one and the same, Jeff Sessions would necessarily look to his investigative arm to recover Clinton’s emails. The FBI’s own assessment of its searches is therefore telling. 3. Plaintiffs’ Proposed Recovery Tactics Despite the Bureau’s assurance that no reasonable steps remain to recover Clinton’s emails, Plaintiffs suggest alternative measures that the Attorney General might take. Although they do not always tie these investigative actions to specific missing emails, Plaintiffs presumably target emails from January 21, 2009, to March 18, 2009, as they cite no other possible gaps in the record. The Court addresses each proffered tactic. a. Forensic Searches of Third-Party Servers As explained above, Agent Priestap submitted a declaration as to the FBI’s efforts to recover the Blackberry emails through grand-jury subpoenas. Plaintiffs initially rejected the affidavit as insufficient because it failed to identify the targets and scope of the subpoenas. See CAI Opp. at 8 (asking questions such as “Who or what were the targets of the subpoenas? What did the subpoenas demand? How many subpoenas were there? . . . What were [the] responses?”). 17    Pursuant to an Order from this Court, see ECF No. 49, Defendants have filed an amended declaration making public many of those missing pieces. Plaintiffs nevertheless deem the subpoenas deficient because the FBI did not search those third-party providers’ servers by forensic means. See CAI Reply at 14-15. The Government retorts that while searching Clinton’s servers for her emails was a fruitful task, that process alone took months. See Gov’t Reply at 7. Asking AT&T or Blackberry to search their servers, which house millions of communications from millions of users, is more akin to searching “for specific grains of sand on a beach.” Id. The FBI declined to take that route, as it had (and still has) no basis to believe it would find relevant emails through such a search; indeed, the service providers swore in response to subpoenas that they retained “no data” related to the emails. See Supp. Priestap Decl., ¶ 10. More to the point, the Government apparently sees no legal basis to order those third parties to forensically search their servers. See Gov’t Reply at 6-7 (noting plaintiffs offered no authority that would require the service providers to conduct search or allow Government to do so). If the FBI believes its investigation has provided no factual basis to search those servers, the Court deems it unimaginable that the Attorney General would nevertheless chart that course. b. iMac Computer Cause of Action next suggests that Clinton’s current iMac computer might be “another repository [for] unlawfully removed federal records.” CAI Opp. at 9-10. To refresh, Bill Clinton set up the private Apple Server for his staffers, before the Clintons adopted the Pagliano Server in March 2009. See First Priestap Decl., Exh. A at 4. There is confusion in the record about whether Hillary Clinton linked any of her personal email accounts to the Apple Server. It appears she used third-party servers to host her Blackberry account during that period, but one 18    staffer suggested that the Apple Server briefly hosted the Secretary’s clintonemail.com account. Id. There is no suggestion, however, that any emails from the latter account are actually missing, and Plaintiffs do not argue as much. Indeed, Clinton’s staff members believe that they migrated all emails from the Apple Server to the Pagliano Server in the transition. Id. at 4. If so, there is no meaningful data left on the former. In any event, the Apple Server is long gone. After the server transition, Clinton repurposed the server for use as a personal computer by household staff. Id. In 2014 — more than five years later — she bought a new iMac Computer and apparently transferred some data from the Apple Server onto that device before jettisoning the original server. Id. at 4-5. It is that latest computer that is at issue in this case, and it is only relevant if a) there were any Clinton emails on the Apple Server that b) were omitted in the first migration to the Pagliano Server, but nevertheless c) were inadvertently migrated five years later to a new iMac computer. The Government considers those dots too remote to connect. The FBI concluded that “there was no investigative reason to believe that any email from the original Apple Server” would be on the newer iMac computer. See Gov’t Reply at 11; see also First Priestap Decl., ¶ 7. Given the lack of probable cause, the Government “had no legal basis to attempt to obtain the iMac hard drive.” Gov’t Reply at 12. In an abundance of caution, however, the FBI took the only step legally available to it: it asked Clinton’s lawyers, Williams & Connolly, to voluntarily review the iMac computer for any relevant records by using “a keyword search consisting of terms identified by the FBI.” First Priestap Decl., ¶ 7. After doing so, Williams & Connolly 19    confirmed that the computer contained no emails from Clinton’s time at State, and the Bureau found no information that cast doubt on that conclusion. Id. CAI spills much ink attacking the firm’s conclusions as hearsay and questioning the reliability of its report. See CAI Opp. at 9-17. Its charges, however, miss the mark. Even were hearsay inadmissible in this context, the Court’s conclusion does not hinge on whether Williams & Connolly was correct that the iMac housed no Clinton emails (although this Court has no reason to doubt the firm’s veracity). Rather, the important point is that Williams & Connolly told the FBI as much, and the Bureau believes it has no further routes to pursue. Having apparently concluded there was no legal basis for a warrant to search the iMac computer, the FBI needed to rely on this type of voluntary report. Once again, the Court deems it exceedingly farfetched that the Attorney General would pursue a different course for missing federal records. c. Mobile Devices/iPads In one paragraph, Cause of Action cursorily contends that the FBI should have subpoenaed Clinton’s thirteen mobile devices and five iPads. See CAI Opp. at 16 & n.7. This, too, is not a plausible investigative action. First, the Bureau did request the relevant devices from Clinton’s team and thereby recovered two phones and three iPads. See First Priestap Decl., ¶¶ 11-13. None of the phones contained relevant records. Id., ¶ 12. Two of the iPads were likewise barren, and the remaining iPad contained three emails from 2012 in a “drafts” folder. Id., ¶ 13. The FBI thus had little reason to believe that the other devices would contain emails at all, much less unrecovered emails. That is especially so because, in her interview with FBI agents, Clinton said that she required her aides to dispose of Blackberry SIM cards as soon as she switched to a new device. Id., Exh. A at 9. One aide testified to physically destroying at least two Blackberries with a hammer. Id. Short of resurrecting those phones from the dead, the FBI 20    had no way to examine any such device. The iPads would also lead to dead ends for the Plaintiffs — Apple did not even release the first iPad for public use until April 2010, well after Clinton had switched to the Pagliano Server. Once again, with no reason to believe that the phones or iPads would house relevant emails (or even remain intact), the Attorney General would have no basis to subpoena them. d. Third Parties Finally, Judicial Watch suggests a different course: interviewing third parties. See JW Opp. at 4-6. It alleges that neither “Defendants nor the FBI sought records from persons who received or sent emails to Secretary Clinton and other officials.” Id. at 4. On the contrary, the FBI did interview individuals who most frequently exchanged work-related communications with Secretary Clinton, including Cheryl Mills, Clinton’s Chief of Staff; Jake Sullivan, the Director of Policy Planning; Huma Abedin, the Deputy Chief of Staff; and Sidney Blumenthal, an informal political advisor. See First. Priestap Decl., Exh. A at 24-26. Those interviews are significant, as the FBI determined that only thirteen individuals regularly maintained direct email contact with Clinton through her clintonemail.com account. See id., Exh. A at 13. Indeed, Mills, Sullivan, and Abedin accounted for 68% “of the emails sent directly to Clinton.” Id. Pursuant to those interviews, the Bureau obtained additional email correspondence between those individuals and Clinton, most of which were copies already collected. See Supp. Priestap Decl., ¶ 4. Additionally, as Judicial Watch concedes, any email sent to or from a State employee is already in the Department’s possession. See JW Opp. at 4. Plaintiff would have the FBI go deeper into the well. Most concretely, it seeks email correspondence between Clinton and David Petraeus, who then headed U.S. Central Command (CENTCOM). Id. at 6. Judicial Watch relies on one FBI agent’s handwritten notes from an 21    interview with a State Department employee, which suggest that Clinton and Petraeus exchanged “1000 emails,” “most not in the 30k.” JW Opp., Exh. C (FBI Notes) at HRC-2573. Assuming “not in the 30k” means “unrecovered,” that report might suggest a hole in Defendants’ effort. But in a sworn affidavit, the Government explains that the “1000” emails listed in the report is a red herring. See Second Stein Decl., ¶¶ 5-6. In July 2015, CENTCOM queried its system using the keywords “Hillary” or “Clinton” and estimated that approximately 2,200 emails matched the search. Id., ¶ 6. That search, however, did not reflect the numbers of emails actually sent or received by Clinton; rather, it captured any threads referencing the Secretary. Id. In August 2015, the agency conducted a more targeted search and found 18 email threads between Clinton and Petraeus. Id. Each was a copy of threads already produced to the State Department. Id. To be safe, the Department of Defense nonetheless sent those 18 email threads to State, id., and thereby closed the chapter on the Petraeus emails. Judicial Watch adds a string cite of other potential interviewees. See JW Opp. at 5. To compile the list, it reviewed the State Department’s published database of Clinton’s emails and identified her frequent correspondents, which it deems “likely” to have missing records. Id.; see also id., Exh. A (Declaration of Kristi Jesperson). That logic, however, suffers a fatal flaw: Plaintiff compiled its list from emails already recovered. See JW Opp. at 5. Contra Judicial Watch, it is not obvious — or even likely — that persons on the “frequent sender” list would have exchanged unrecovered emails. A review of the same public database consulted by Plaintiff reveals that Clinton emailed the following people between January 2009 and March 18, 2009:  Huma Abedin  Doug Band, the chief of staff of the Clinton Foundation 22      Colin Powell, a former Secretary of State  Lona Valmoro, a special assistant  Oscar Flores, a personal aide  Lissa Muscatine, a Clinton speechwriter. U.S. Dep’t of State, Virtual Reading Room Documents (last accessed Nov. 1, 2017), available at https://foia.state.gov/search/results.aspx?searchText=*&caseNumber=F-2016-07895. All but Colin Powell used Clinton’s newer clintonemail.com domain, and there is no allegation of any missing records from that account nor reason to think that these contacts sent other, unrecovered messages. Apparently, Clinton’s most frequent contacts knew she had transitioned from the Blackberry account by her swearing-in. From time to time, Clinton would receive emails on her Blackberry account and forward them to her assistant, Oscar Flores, with instructions to print. From reviewing those records, the Court sees no pattern to those contacts and, again, has no reason to suspect that they might harbor additional emails. Against that backdrop, the Archivist, State Department, FBI, and, indeed, the Attorney General would have little reason to suspect that any of Judicial Watch’s “frequent senders” — or any other known email recipients — have copies of any unrecovered records. While it is plausible, albeit barely, that some third parties might retain relevant records nearly a decade after the conversations, and that the FBI might convince such parties to turn them over voluntarily, the Attorney General has no way to know who those third parties might be. The FBI understandably deemed this path too far afield to pursue, and the Court once again concludes that it is implausible that the Attorney General would buck its own investigative arm to demand otherwise. The Court of Appeals may have asked the Government to “shak[e] the tree harder” 23    for more emails, but it never suggested that the FBI must shake every tree in every forest, without knowing whether they are fruit trees. See Judicial Watch, 844 F.3d at 955. * * * To sum up, Defendants and the FBI have recited chapter and verse of their efforts to recover Secretary Clinton’s emails. Those efforts went well beyond the mine-run search for missing federal records, see Second Brewer Decl., ¶¶ 11-14, and were largely successful, save for some emails sent during a two-month stretch. Even then, the FBI pursued every imaginable avenue to recover the missing emails. Plaintiffs, significantly, cast no real doubt on that conclusion. So now, when the Government avers that there are no enforcement steps left for the Attorney General, the Court takes such conclusion seriously. It thus finds that Defendants have “secur[ed] custody of all emails that the Attorney General could have recovered in an enforcement action,” Judicial Watch, 844 F.3d at 955, such that the suit is moot. C. Jurisdictional Discovery In addition to opposing Defendants’ Motion to Dismiss, CAI has separately moved for jurisdictional discovery. See ECF No. 38. In this circuit, “if a party demonstrates that it can supplement its jurisdictional allegations through discovery, then jurisdictional discovery is justified.” GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1351 (D.C. Cir. 2000). At the same time, “[i]t is well established that the district court has broad discretion in its resolution of [jurisdictional] discovery problems.” FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1093 (D.C. Cir. 2008) (internal quotation marks and citations omitted). Courts typically permit jurisdictional discovery where “[t]he record . . . before the court is plainly inadequate,” and the party seeking discovery “may be able to present new facts to bolster [its] theory” regarding jurisdiction. BellSouth Corp., 199 F.3d at 1352. “[H]owever, in 24    order to get jurisdictional discovery a plaintiff must have at least a good faith belief that such discovery will enable it to show that the court” enjoys jurisdiction over the suit. Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998). Furthermore, “a plaintiff must make a ‘detailed showing of what discovery it wishes to conduct or what results it thinks such discovery would produce.’” NBC-USA Housing, Inc., Twenty-Six v. Donovan, 774 F. Supp. 2d 277, 295 (D.D.C. 2011) (quoting Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 53 (D.D.C. 2003)). Importantly, “a request for jurisdictional discovery cannot be based on mere conjecture or speculation.” IFX Mkts., Ltd., 529 F.3d at 1094 (citing Bastin v. Fed. Nat’l Mortgage Ass’n, 104 F.3d 1392, 1396 (D.C. Cir. 1997)). In this case, Cause of Action seeks discovery “to determine the extent of the federal government’s purported efforts to recover the BlackBerry e-mails and adequately search the iMac computer.” CAI Opp. at 23. The Court sees no need for discovery on either score. First, as discussed above, Defendants have extensively documented their (and the FBI’s) efforts to track down the Blackberry account. When CAI moved for discovery, it complained that Defendants had relied on bare allegations that the FBI had used grand-jury subpoenas, without “identifying the targets, the subpoenas’ scope, and the substance of the targets’ response.” Id. at 23-24. Defendants have since supplemented the record with a second declaration, which provides exactly that information. The Government has now documented extensively the subpoenas related to this suit, while staying within the bounds of Federal Rule of Criminal Procedure 6(e), which favors keeping those matters secret. The Court therefore finds nothing left for Plaintiffs to discover. So, too, for the iMac computer. Plaintiff complains that Defendants “rely on inadmissible hearsay in an attempt to establish that the iMac contains no recoverable federal 25    records.” CAI Opp. at 24. In other words, it finds the iMac report unpersuasive to establish mootness, an argument that this Court rejected above. It is unclear, however, how that complaint relates to jurisdictional discovery. Cause of Action also suggests that it cannot “ascertain the complete facts about Defendants[’]” efforts related to the iMac computer. Id. As an initial matter, Plaintiff’s questions relate largely to the FBI, not the State Department, from whom it seeks discovery. It offers no reason, moreover, to suspect that the FBI has withheld information in that regard. Plaintiffs may see Williams & Connolly’s report as vague, but the Bureau did not personally conduct the iMac search, so it, too, had to rely on Clinton’s lawyers. Indeed, it is unclear why the FBI would harbor hidden reports related to the iMac. If the Government had information as to additional search efforts, turning those over to the Court would only have bolstered its case for mootness. Plaintiff has thus failed to persuade the Court that it has “a good faith basis” to believe facts supporting jurisdiction exist and are likely to be found with targeted discovery. See NBC-USA Housing, 774 F. Supp. 2d at 295. As such, the Court will deny its Motion. IV. Conclusion For the foregoing reasons, the Court will deny Cause of Action’s Motions for Jurisdictional Discovery and to Strike, and it will grant Defendants’ Motion to Dismiss. A contemporaneous Order to that effect will issue this day. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: November 9, 2017   26    

Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 2-21-2008 Shah v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-5078 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Shah v. Atty Gen USA" (2008). 2008 Decisions. Paper 1553. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1553 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 06-5078 NILESH KAMAR SHAH, Petitioner v. ALBERTO R. GONZALES, Attorney General of the United States, Respondent On Petition for Review of an Order of the Board of Immigration Appeals (No. A77-699-780) Immigration Judge: Hon. Henry S. Dogin Submitted Under Third Circuit LAR 34.1(a) February 1, 2008 Before: RENDELL and CHAGARES, Circuit Judges POLLAK,* District Judge (Filed: February 21, 2008) OPINION * Honorable Louis H. Pollak, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation. POLLAK, District Judge Nilesh Kamar Shah petitions for review of the Board of Immigration Appeals’ (“BIA”) order of November 17, 2006, denying his motion to reopen and reconsider. For the reasons given below, his petition will be denied. I. Petitioner, a native and citizen of India, entered the United States without inspection in 1999. He was ordered removed in absentia in 2001. In 2004, he successfully moved to reopen the proceeding. At a subsequent hearing before an immigration judge (“IJ”), he conceded removability. He applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), arguing that he would be subject to persecution and torture in India on account of his Hindu faith. The IJ found petitioner’s testimony not credible and ordered his removal on October 8, 2004. Shah appealed, and the BIA affirmed on July 17, 2006. Shah moved for reconsideration and reopening. On November 17, 2006, the BIA denied that motion. Shah has petitioned this court for review of the BIA’s order of November 17, 2006. II. We review the denial of a motion to reconsider and reopen for abuse of discretion. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). “Under the abuse of discretion standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (internal quotation marks 2 omitted). We review de novo questions of law, including whether a petitioner’s right to due process was violated. See Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006). III. Petitioner makes two claims of error with regard to the denial of his motion to reopen and reconsider.1 A. First, petitioner contends that the BIA denied him due process of law and abused its discretion because the BIA refused to consider the evidence petitioner submitted in support of his motion on the ground that the evidence was “time-barred.” Under 8 C.F.R. § 1003.2(c)(1), a motion to reopen “shall not be granted unless it appears to the Board that evidence sought to be offered . . . was not available and could not have been discovered or presented at the former hearing.” See Caushi v. Att’y Gen., 436 F.3d 220, 231 (3d Cir. 2006). The BIA did not fail to consider the evidence presented by petitioner. The BIA’s opinion discusses the evidence in detail, concluding that the evidence was not properly presented in a motion to reopen because it could have been discovered or presented at 1 Petitioner has petitioned for review only of the BIA’s denial of his motion to reopen and reconsider. Because petitioner did not petition for review of the BIA’s order of July 17, 2006, dismissing his appeal of the IJ’s denial of relief, we lack jurisdiction to review that order. See 8 U.S.C. § 1252(b); Stone v. INS, 514 U.S. 386, 404-06 (1995). Accordingly, we cannot consider petitioner’s contention that the BIA erred in that order in affirming the IJ’s adverse credibility determination. 3 petitioner’s 2004 hearing. Petitioner does not identify errors in the BIA’s determination that the evidence could have been presented in 2004; nor are any such errors apparent. Accordingly, we find no merit in petitioner’s challenge, on this ground, to the BIA’s denial of his motion to reopen and reconsider.2 B. Second, petitioner contends that the BIA denied him due process of law “since he was never given the opportunity to present his case to a judge prior to the original order being entered” in 2001, in absentia and allegedly without notice to petitioner. This argument is without merit, because petitioner was not removed on the basis of the 2001 order of removal. Rather, following the reopening of his case in 2004, petitioner was given a full and fair opportunity to present evidence on his own behalf at a hearing held on October 8, 2004. Petitioner, represented by counsel, conceded removability and presented evidence in support of his applications for relief. His petition will therefore be denied on this ground as well. 2 Petitioner does not contend that 8 C.F.R. § 1003.2(c)(1) is itself unconstitutional. 4 

642 F.3d 321 (2011) MONTEFIORE MEDICAL CENTER, Plaintiff-Appellant, v. TEAMSTERS LOCAL 272, Fred Alston, in his capacity as President of Teamsters Local 272, Local 272 Welfare Fund, Mark Goodman, in his capacity as Fund Manager of Local 272 Welfare Fund, Defendants-Appellees. Docket No. 10-1451-cv. United States Court of Appeals, Second Circuit. Argued: February 15, 2011. Decided: April 21, 2011. *324 John G. Martin (Michael J. Keane, on the brief), Garfunkel Wild, P.C., Great Neck, NY, for plaintiff-appellant. Jane Lauer Barker, Pitta & Giblin LLP, New York, NY, for defendants-appellees. Before: CABRANES, POOLER, and CHIN, Circuit Judges. JOSÉ A. CABRANES, Circuit Judge: This case is yet another act in the all-too-familiar drama involving patients, their health care providers, and their health care benefit plans. The question presented is whether a health care provider's breach of contract and quasi-contract claims against a benefit plan established pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., are completely preempted by federal law under the two-pronged test for ERISA preemption established in Aetna Health Inc. v. Davila, 542 U.S. 200, 209, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). We hold: (1) an "in-network" health care provider may receive a valid assignment of rights from an ERISA plan beneficiary pursuant to ERISA § 502(a)(1)(B),[1] the provision setting forth *325 ERISA's civil enforcement scheme; (2) where a provider's claim involves the right to payment and not simply the amount or execution of payment[2]—that is, where the claim implicates coverage and benefit determinations as set forth by the terms of the ERISA benefit plan, and not simply the contractually correct payment amount or the proper execution of the monetary transfer[3]—that claim constitutes a colorable claim for benefits pursuant to ERISA § 502(a)(1)(B); and (3) in the instant case, at least some of plaintiff's claims for reimbursement are completely preempted by federal law; furthermore, the remaining state-law claims are properly subject to the District Court's supplemental jurisdiction. I. BACKGROUND Plaintiff-appellant Montefiore Medical Center ("Montefiore" or "plaintiff") is a non-profit hospital in the Bronx, New York. Between May 2003 and August 2008, Montefiore provided medical services to beneficiaries of defendant-appellee Local 272 Welfare Fund ("the Fund"), an employee benefit plan governed by ERISA. The Fund provides health care coverage to individuals who work in "covered employment," as defined by the Fund, and to their eligible dependents (collectively, the "beneficiaries" or "members" of the Fund). The coverage that the Fund offers is paid directly from contributions it receives from employers, who are obliged by their collective bargaining agreements with defendant-appellee Teamsters Local 272 ("the Union") to make specified contributions to the Fund on behalf of their covered employees. As required by ERISA and U.S. Department of Labor regulations, the Fund's Plan Description ("the Plan") sets forth the eligibility requirements for coverage, the nature of benefits provided, limitations on those benefits, services covered, and the procedures for claiming benefits and appealing claim denials. Under the Plan, beneficiaries may obtain medical services in one of two ways. First, they may visit a health care provider who is in the network of providers with whom the Fund has specially contracted to provide services to its members (an "in-network" provider). Second, beneficiaries may visit a health care provider who is not in the Fund's network (an "out-of-network" provider). When Fund members obtain services from an in-network provider, they pay a small co-payment or co-insurance fee or pay nothing at all, and the Fund reimburses the remaining cost for services directly to the provider. When Fund members obtain services from an out-of-network provider, the member is responsible for paying the provider himself, and thereafter may seek reimbursement for covered services from the Fund. The Plan generally sets forth the beneficiary's co-payments, co-insurance, and other rates of payment, but it does not establish *326 a rate or schedule at which in-network or out-of-network providers will be reimbursed by the Plan. For example, the Plan provides that a beneficiary is responsible for paying a 10% co-insurance fee for maternity care, but it does not establish a ceiling or other limitation on the fee that a provider of maternity care may charge in order to qualify for reimbursement of the remaining cost. These types of limitations are usually set by separate agreements between providers and their Preferred Provider Organizations ("PPOs"),[4] or between PPOs and the ERISA benefit plan, as explained below. At all relevant times, Montefiore was an in-network provider of the Plan by virtue of its membership in two PPOs. Montefiore contracted with (1) Horizon Healthcare Insurance Company of New York ("Horizon"), from April 2003 until January 1, 2007, and (2) Preferred Choice Management Systems, Inc., d/b/a MagnaCare ("MagnaCare"), from January 1, 2007 through March 11, 2009 (the date Montefiore filed its complaint in this action). These PPOs entered into agreements with the Fund to provide eligible Plan beneficiaries with access to the PPOs' participating hospitals, including Montefiore. Montefiore and the other providers, in turn, entered into agreements with the PPOs to provide health care services to beneficiaries of the Plan at agreed-upon reimbursement rates, which rates were typically discounted from the providers' usual and customary rates. The Fund's contracts with Horizon and MagnaCare established the specific rates and terms under which the Fund would reimburse the providers for services. These contracts also included many cross-references to the terms of the beneficiaries' benefit agreement with the Fund, i.e., the Plan.[5] On March 10, 2009, Montefiore filed a complaint against defendants-appellees Teamsters Local 272 et al. ("defendants") in New York state court seeking payment for over $1 million in medical services provided to Plan beneficiaries that the Fund had allegedly failed to reimburse. On its face, the complaint alleged, inter alia, state-law claims for breach of contract and unjust enrichment. On March 31, 2009, defendants removed the action to the District Court, alleging that the claims fell within the civil enforcement provisions of ERISA and were therefore completely preempted by federal law. See 29 U.S.C. § 1132(a). On June 29, 2009, Montefiore moved to remand the case to state court.[6] *327 On November 11, 2009, the District Court issued its Opinion & Order denying plaintiff's motion to remand to the state court and holding, pursuant to the Supreme Court's decision in Davila, that (1) Montefiore had "standing as an assignee of the Plan's participants and beneficiaries to bring a claim under [the civil enforcement provision of] ERISA," and (2) "there [wa]s no independent duty" implicated by defendants' actions. Accordingly, the District Court concluded that Montefiore's claims were completely preempted by ERISA and removal was proper. Observing that "the Second Circuit has not yet determined whether an in-network provider such as Montefiore has standing under ERISA," the District Court sua sponte certified its order for interlocutory appeal. This appeal followed. II. STANDARD OF REVIEW A party seeking removal bears the burden of showing that federal jurisdiction is proper. Cal. Pub. Emps.' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir.2004). A civil claim filed in state court can only be removed to federal court if the district court would have had original jurisdiction to hear the claim. See 28 U.S.C. § 1441(a). Under the "well-pleaded complaint rule," federal subject matter jurisdiction typically exists only "when the plaintiff's well-pleaded complaint raises issues of federal law," and not simply when federal preemption might be invoked as a defense to liability. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). However, a "corollary of the well-pleaded complaint rule" provides that "Congress may so completely pre-empt a particular area [of law] that any civil complaint raising this select group of claims is necessarily federal in character." Id. at 63-64, 107 S.Ct. 1542; accord In re WTC Disaster Site, 414 F.3d 352, 372-73 (2d Cir.2005) ("Complete preemption permits removal of a lawsuit to federal court based upon the concept that where there is complete preemption, only a federal claim exists. Where Congress has clearly manifested an intent to make causes of action removable to federal court, the federal courts must honor that intent." (alterations and quotation marks omitted)). The District Court held, and defendants assert on appeal, that notwithstanding the complaint's express references to state claims for breach of contract and unjust enrichment, plaintiff's claims are completely preempted by ERISA and are therefore removable to federal court. We review de novo a district court's conclusions regarding its subject matter jurisdiction. Devlin v. Transp. Commc'ns Int'l Union, 173 F.3d 94, 98 (2d Cir.1999). III. THE DAVILA TEST ERISA was enacted to "protect ... participants in employee benefit plans and their beneficiaries" by establishing uniform regulations for such plans and "providing for appropriate remedies, sanctions, and ready access to the Federal courts." 29 U.S.C. § 1001(b). Among other things, ERISA creates a comprehensive civil enforcement scheme that completely preempts any state-law cause of action that "duplicates, supplements, or supplants" an ERISA remedy. Davila, 542 U.S. at 209, 124 S.Ct. 2488; see also Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 113 (2d Cir.2008) ("The purpose of ERISA preemption is to ensure that all covered benefit plans will be governed by unified federal law...."); Franciscan Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health & Welfare Trust Fund, 538 F.3d 594, 596 (7th Cir.2008) (explaining that complete preemption under ERISA is "really a jurisdictional rather *328 than a preemption doctrine, [as it] confers exclusive federal jurisdiction in certain instances where Congress intended the scope of a federal law to be so broad as to entirely replace any state-law claim"). The ERISA civil enforcement scheme is set forth in § 502(a), see note 1, ante, and provides, inter alia, that a plan participant or beneficiary may bring an action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan[.]" ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). Therefore, if Montefiore's claims fall within the scope of § 502(a)(1)(B), as defendants urge and plaintiffs deny, those claims are preempted by ERISA. In Davila, the Supreme Court established a two-part test to determine whether a claim falls "within the scope" of § 502(a)(1)(B). Davila, 542 U.S. at 210, 124 S.Ct. 2488 (citation omitted). Specifically, claims are completely preempted by ERISA if they are brought (i) by "an individual [who] at some point in time, could have brought his claim under ERISA § 502(a)(1)(B),"[7] and (ii) under circumstances in which "there is no other independent legal duty that is implicated by a defendant's actions." Id. The test is conjunctive; a state-law cause of action is preempted only if both prongs of the test are satisfied. See Borrero v. United Healthcare of N.Y., Inc., 610 F.3d 1296, 1304 (11th Cir.2010); Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 947 (9th Cir.2009). We now consider each prong of this test. A. Davila Prong One There is potential for confusion regarding the proper sequence of analysis under Davila. Specifically, in situations in which a party seeks remand to a state court, it easy to overlook the distinction between a claim (1) brought solely pursuant to an independent duty that has nothing to do with ERISA, and a claim which (2) could have been brought under ERISA, but also rests on "[an]other independent legal duty that is implicated by [the] defendant's actions." The former fails to satisfy the first prong of Davila because it does not state a "colorable claim" for benefits, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), and therefore could not have been brought under ERISA, and the latter fails to satisfy the second prong of Davila. 542 U.S. at 210, 124 S.Ct. 2488. Accordingly, we can avoid this confusion by expressly disaggregating the first prong of Davila. First, we consider whether the plaintiff is the type of party that can bring a claim pursuant to § 502(a)(1)(B); and second, we consider whether the actual claim that the plaintiff asserts can be construed as a colorable claim for benefits pursuant to § 502(a)(1)(B). Cf. Marin Gen. Hosp., 581 F.3d at 948 (holding, pursuant to the first prong of Davila, that although plan beneficiaries had validly assigned their ERISA claims to the provider hospital, the actual claim brought by the hospital was based upon a separate contractual obligation). After we have considered the two steps of the first prong, we will turn to the second prong to determine whether "there is [an] independent legal duty that is implicated by [the] defendant's actions." Davila, 542 U.S. at 210, 124 S.Ct. 2488. (i) Davila Prong One: Step One As explained above, § 502(a)(1)(B) provides that a civil action *329 may be brought "by a participant or beneficiary" of an ERISA plan to enforce certain rights under that plan pursuant to ERISA. See 29 U.S.C. § 1132(a)(1)(B) (emphasis supplied). Generally, § 502(a) is narrowly construed to permit only the enumerated parties to sue directly for relief. See Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); accord Chemung Canal Trust Co. v. Sovran Bank/Maryland, 939 F.2d 12, 14 (2d Cir.1991). However, we have "carv[ed] out a narrow exception to the ERISA standing requirements" to grant standing "to healthcare providers to whom a beneficiary has assigned his claim in exchange for health care." Simon v. Gen. Elec. Co., 263 F.3d 176, 178 (2d Cir.2001); accord Tango Transp. v. Healthcare Fin. Servs., 322 F.3d 888, 891 (5th Cir.2003) (collecting cases); see also Pascack Valley Hosp., Inc. v. Local 464A UFCW Welfare Reimbursement Plan, 388 F.3d 393, 400 n. 7 (3d Cir.2004) ("Almost every circuit to have considered the question has held that a health care provider can assert a claim under § 502(a) where a beneficiary or participant has assigned to the provider that individual's right to benefits under the plan[.]"). Here, each of the reimbursement forms that provide the basis for Montefiore's suit contain a "Y" for "yes" in the space certifying that the patient has assigned his claim to the hospital. Accordingly, pursuant to our holding in Simon, 263 F.3d 176, the first step of the first prong of the Davila test is satisfied: Montefiore is a health care provider to whom beneficiaries of the Plan have assigned their claims, and therefore is the type of party that can bring a claim against the Fund regarding benefits pursuant to § 502(a)(1)(B).[8] That said, Montefiore vigorously contests the notion that it obtained valid assignments, arguing that "an attempt to assign ERISA benefits to an in-network provider is a nullity[.]" In support of its argument, Montefiore relies upon dicta in Sewell v. 1199 Nat'l Benefit Fund for Health & Human Servs., 187 Fed.Appx. 36, 39 n. 1 (2d Cir.2006), a non-precedential summary order in which we stated: Where the patient receives services from a participating provider, . . . it is not clear that the patient has anything to assign because the patient is entitled only to healthcare at no cost, not reimbursement. If the participant or beneficiary has no right to payment to assign to the participating provider, it is doubtful that the `narrow exception' [for healthcare providers] to ERISA's otherwise stringent standing requirement would apply. As the District Court correctly observed in its Opinion & Order of November 11, 2009, these stray comments are neither binding precedent nor even the holding of the case in which they appear. But more importantly, they do not accurately reflect the nature of the legal right at issue here. The right to "health care at no cost" (or at less cost, where a co-payment or co-insurance fee is involved) is made possible only by arrangements to have one's health care provider reimbursed for the balance of the fee for services. Indeed, the difference between receiving "health care at no cost" and receiving direct reimbursement of one's costs is largely one of form, rather than of substance. This reality, in and of itself, is sufficient to support our holding *330 that patients may assign their rights to "in-network" providers. However, even if we assume for the sake of argument that a provider would continue to provide medical services to beneficiaries at low or no cost despite an inability to enforce beneficiaries' rights under ERISA—quite an assumption—the fact remains that beneficiaries arguably would be liable for whatever costs the provider was unable to recover from a benefit plan, and would have a right to reimbursement of those costs pursuant to ERISA and to the terms of the plan. For example, Montefiore's contract with MagnaCare expressly permits Montefiore to obtain payment (by billing or, if necessary, by suit) directly from patients in the event that Montefiore does not receive payment from the Fund. As Montefiore's counsel conceded at oral argument, in the event that a patient is charged or sued by Montefiore, his right to reimbursement from the Fund is a right that the patient may assign to Montefiore. Montefiore's contract with Horizon, on the other hand, is silent as to whether Montefiore can seek full reimbursement directly from patients; however, even under that contract, patients are likely to be held liable for the services they receive— indeed, it does not take a stretch of the imagination to expect that a patient who receives medical care will be required to pay for it.[9]See Cagle v. Bruner, 112 F.3d 1510, 1515 (11th Cir.1997) ("If provider-assignees cannot [receive a valid assignment so that they may] sue the ERISA plan for payment, they will bill the participant or beneficiary directly for the insured medical bills, and the participant or beneficiary will be required to bring suit against the benefit plan when claims go unpaid. On the other hand, if provider-assignees can sue for payment of benefits, an assignment will transfer the burden of bringing suit from plan participants and beneficiaries to providers[,] [who] are better situated and financed to pursue an action for benefits owed for their services. For these reasons, the interests of ERISA plan participants and beneficiaries are better served by allowing provider-assignees to sue ERISA plans." (citations omitted)); Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286, 1289 n. 13 (5th Cir.1988) ("Many providers seek assignments of benefits to avoid billing the beneficiary directly and upsetting his finances and to reduce the risk of non-payment. If their status as assignees does not entitle them to federal standing against the plan, providers would either have to rely on the beneficiary to maintain an ERISA suit, or they would have to sue the beneficiary."). Accordingly, plaintiff Montefiore's argument that it cannot receive a valid assignment of benefits is without merit. We hold that beneficiaries may assign their rights under ERISA § 502(a)(1)(B) to health care providers that have contracted to bill a benefit plan directly, as the beneficiaries did in this case.[10] (ii) Davila Prong One: Step Two We turn to the second step of the first prong of the Davila test—whether the actual claims that Montefiore asserts can be construed as colorable claims for benefits pursuant to § 502(a)(1)(B). See Firestone Tire & Rubber Co., 489 U.S. at *331 117-18, 109 S.Ct. 948. Montefiore argues, and defendants deny, that its claims are simply contract and quasi-contract claims that have nothing to do with ERISA, and cannot be construed as claims for benefits under the Plan. Specifically, Montefiore contends, inter alia, that the "central disputed issue in this case is the amount which the Fund was required to pay Montefiore, pursuant to its contractual obligations to Montefiore." To this end, Montefiore emphasizes a common distinction in the case law between claims involving the "right to payment" and claims involving the "amount of payment"—that is, on the one hand, claims that implicate coverage and benefits established by the terms of the ERISA benefit plan, and, on the other hand, claims regarding the computation of contract payments or the correct execution of such payments. The former are said to constitute claims for benefits that can be brought pursuant to § 502(a)(1)(B), while the latter are typically construed as independent contractual obligations between the provider and the PPO or the benefit plan. See, e.g., Lone Star OB/GYN Assocs. v. Aetna Health Inc., 579 F.3d 525, 530-31 (5th Cir.2009); Pascack Valley Hosp., Inc., 388 F.3d at 403-04; Blue Cross of Cal. v. Anesthesia Care Assocs. Med. Grp., 187 F.3d 1045, 1051 (9th Cir. 1999). This distinction is helpful and instructive; however, after applying it to the claims for reimbursement submitted by Montefiore, the result is not favorable to Montefiore's argument on appeal. For example, among the selection of claims for reimbursement that the parties specifically submitted for our attention on appeal,[11] all of those for which the reason for denial is discernible[12] appear to implicate coverage determinations under the relevant terms of the Plan, including denials of reimbursement because "pre-certification [is] required," because the "services [were] not covered under [the] plan," or because the "member is not eligible." Joint App'x at 293, 296, 303. None of the selected claims appear to be claims regarding, for example, underpayment or untimely payment, where the basic right to payment has already been established and the remaining dispute only involves obligations derived from a source other than the Plan.[13] In the proceedings below, the District Court analyzed the claim forms, reviewed related affidavits and evidence, and subsequently held in its Opinion & Order that "the Fund refused payment on at least some, if not all, of Montefiore's claims because certain services were not covered by the Plan, patients were not eligible under the Plan, or Montefiore neglected to follow procedures as set forth in the Plan." We conclude that it was proper for the District Court to look beyond the mere allegations of the complaint to the claims themselves (including supporting documentation) in conducting its analysis, and we agree with the District Court's conclusion *332 that these claims are colorable claims for benefits pursuant to ERISA § 502(a)(1)(B). B. Davila Prong Two Under Davila, a claim is completely preempted only if "there is no other independent legal duty that is implicated by [the] defendant's actions." 542 U.S. at 210, 124 S.Ct. 2488. The key words here are "other" and "independent." As noted above, at least some of the claims at issue here are benefits claims in character (i.e., they are "right to payment" claims). Accordingly, the "right to payment" forms the ERISA-related basis for legal action regarding those claims for reimbursement, and the only question remaining is whether some other, completely independent duty forms another basis for legal action (if the claims were in fact merely about the rate or execution of payment, they would not present a colorable claim pursuant to § 502(a)(1)(B) and we would not need to reach the application of the second prong of Davila). Here, apart from Montefiore's argument that its claims involve only the amount of payment, Montefiore asserts that its claims sound separately and independently in quasi-contract law. See Appellant's Br. at 44-46. Specifically, Montefiore argues that prior to providing services to each beneficiary, it would call the Fund and verify that the patient was eligible and that the anticipated services were covered. These verbal communications, Montefiore contends, gave rise to an independent legal duty between Montefiore and the Fund. We are not persuaded. Whatever legal significance these phone conversations may have had, see Appendix A, they did not create a sufficiently independent duty under Davila—indeed, as Montefiore concedes, this pre-approval process was expressly required by the terms of the Plan itself and is therefore inextricably intertwined with the interpretation of Plan coverage and benefits. IV. SUPPLEMENTAL JURISDICTION Under 28 U.S.C. § 1367(a), district courts "shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a). In order to exercise supplemental jurisdiction, a federal court must first have before it a claim sufficient to confer subject matter jurisdiction. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Furthermore, the federal claim and state claim must stem from the same "common nucleus of operative fact"; in other words, they must be such that the plaintiff "would ordinarily be expected to try them all in one judicial proceeding." Id. As we explained above, at least some of the claims for reimbursement brought by Montefiore are completely preempted by ERISA and therefore give rise to federal subject matter jurisdiction. The only question, then, is whether any remaining state law claims arise from the same common nucleus of operative fact. Id. Here, the parties do not dispute that all of the claims asserted by Montefiore involve the Fund's alleged failure to reimburse Montefiore for medical services provided to Plan beneficiaries between May 2003 and August 2008. Accordingly, assuming arguendo *333 that any state-law claims exist, they are properly subject to the District Court's supplemental jurisdiction. See, e.g., Brunswick Surgical Ctr., LLC v. CIGNA Healthcare, Civ. No. 09-5857, 2010 WL 3283541, at *1 (D.N.J. Aug. 18, 2010) (holding that where health care providers' claims for reimbursement for medical services involved thirteen different health insurance policies, eight of which were governed by ERISA, claims regarding the five non-ERISA policies were subject to the court's supplemental jurisdiction). V. CONCLUSION To summarize: (1) Montefiore received valid assignments from the beneficiaries of the Plan, both during the period in which it had contracted with the Horizon PPO, and during the period in which it had contracted with the MagnaCare PPO; (2) at least some of Montefiore's claims for reimbursement involve the right to payment, not merely disputes regarding the amount or proper execution of payment, and such claims are therefore colorable claims for benefits pursuant to ERISA § 502(a)(1)(B); (3) Montefiore's claims do not implicate any duties of defendants separately and independently from defendants' duties under the Plan sounding in contract. Accordingly, (4) at least some of Montefiore's claims are completely preempted by federal law and were properly removed to federal court; and (5) in the circumstances presented here, any remaining state-law claims share a common nucleus of operative fact with the federal claims, and therefore, they are properly subject to the District Court's supplemental jurisdiction. We have considered all of plaintiff's arguments and find them to be without merit. The judgment of the District Court is AFFIRMED, and the cause is REMANDED to the District Court for further proceedings consistent with this opinion. Appendix A NOTES [1] Section 502(a)(1)(B) provides, in relevant part: A civil action may be brought— (1) by a participant or beneficiary— ... (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan[.] 29 U.S.C. § 1132(a). [2] As will be discussed post, exact provider reimbursement amounts and terms regarding the execution of payment to providers are not usually (or, to our knowledge, ever) explicitly set forth in an ERISA benefit plan. We acknowledge, however, that a hypothetical future case may arise in which these terms are in fact provided by the ERISA benefit plan. Our holding regarding the nature of claims involving the amount or execution of payment would not control that hypothetical case, as presumably it would be possible under those circumstances to raise a colorable claim for benefits related solely to the amount or execution of payment. [3] Claims involving the proper execution of the monetary transfer include, among other things, claims regarding the timeliness of payment and claims regarding the proper form of payment. [4] A Preferred Provider Organization is "an entity that contracts with doctors, hospitals, and other health care providers to arrange discounted payments for services for the PPO's customers." United States v. Graf, 610 F.3d 1148, 1154 (9th Cir.2010). In other words, health care providers in a PPO's "network" agree to charge discounted rates for their services, and, in exchange, the insurance plans affiliated with the PPO encourage their members (typically by discounting the member's own payment obligations) to patronize providers within the network. [5] To summarize: Montefiore contracted directly with the PPOs (Horizon and MagnaCare); the PPOs contracted directly with the Fund; and the Fund (via the Plan) contracted directly with the Plan beneficiaries, who, in turn, became patients at Montefiore. See Appendix A. Accordingly, Montefiore has a relationship with the Fund that sounds in contract law, but it did not contract directly with the Fund. At oral argument the parties explained that this type of arrangement between providers, PPOs, and insurance plans is common in the health insurance industry. [6] On June 29, 2009, Montefiore voluntarily moved to dismiss its third and fourth causes of action for breach of contract and unjust enrichment pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 186. The District Court granted the motion on November 11, 2009. Accordingly, we have no occasion to consider those claims. [7] That is, if they are brought by an individual who has standing to assert rights under ERISA § 502(a)(1)(B). [8] We note that the valid assignment of claims is not necessarily limited to those instances in which the provider's documentation specifically reflects the assignment. Rather, a "checked box" or other written indication is merely one possible way of demonstrating that the claims were assigned. [9] We need not consider the question of whether a beneficiary can make a valid assignment to his in-network health care provider in the hypothetical situation in which the provider has expressly contracted not to seek full payment from the beneficiary. [10] To be clear, our holding applies where a provider's contract with a PPO or ERISA benefit plan is silent regarding the question of whether the provider can hold the patient liable for unmet obligations, as in the case of Montefiore's arrangement with Horizon. [11] This selection of claims is sufficient to support our holding because we need only locate a single preempted claim to establish a basis for the exercise of federal subject matter jurisdiction. The selection before us includes multiple claims that are clearly preempted, as we explain below. [12] Some of the documents in the record are nearly illegible; furthermore, the justification for the denial of a claim is not always explained on the face of the claim form. See, e.g., Joint App'x at 305-06. [13] One possible exception is a claim that appears to have been denied on the basis that the "charge [was] previously considered." Depending upon what occurred the first time the charge was considered, this claim may or may not implicate a coverage determination under the Plan. Joint App'x at 298.

993 So.2d 534 (2008) D.S. v. DEPARTMENT OF CHILDREN AND FAMILIES. No. 4D08-1301, 4D08-1303. District Court of Appeal of Florida, Fourth District. October 17, 2008. Decision without published opinion. Affirmed.

Court of Appeals of the State of Georgia ATLANTA,____________________ October 01, 2014 The Court of Appeals hereby passes the following order: A15D0057. ROOSEVELT WOODS v. THE STATE. A15D0069. ROOSEVELT WOODS v. THE STATE. In these two applications for discretionary appeal, Roosevelt Woods appeals the order denying his pro se motion to withdraw his guilty plea. The trial court’s order was entered on July 24, 2014, and Woods filed his applications on September 12, 2014 and September 19, 2014.1 Although the denial of a motion to withdraw a guilty plea is directly appealable,2 we lack jurisdiction to consider Woods’ applications because they are untimely. Ordinarily, if a party applies for discretionary review of a directly appealable order, we grant the application under OCGA § 5-6-35 (j). To fall within this general rule, however, the application must be filed within 30 days of entry of the order to be appealed. See OCGA § 5-6-35 (d) & (j); Hill v. State, 204 Ga. App. 582 (420 SE2d 393) (1992). The requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. See Boyle v. State of Ga., 190 Ga. App. 734 (380 SE2d 57) (1989). Because Woods filed his applications 50 and 57 days after entry of the order he seeks to appeal, the applications are untimely, and they are hereby DISMISSED for lack of jurisdiction. 1 Woods attempted to file an application for discretionary appeal on August 21, 2014, but the application could not be accepted for filing because Woods did not include a stamped “filed” copy of the trial court’s order. See Court of Appeals Rule 31 (e). 2 See Smith v. State, 283 Ga. 376 (659 SE2d 380) (2008).  We note that Woods argues in both applications that his applications are untimely because the trial court and his attorney failed to provide him with a copy of the order denying his motion to withdraw. To the extent that Woods’ ability to file a timely application was frustrated by the trial court’s action, Woods’ remedy is to petition the trial court to set aside and re-enter the order. See Cambron v. Canal Ins. Co., 246 Ga. 147, 148-49 (1) (269 SE2d 426) (1980); Cameron v. Miles, 304 Ga. App. 161 (695 SE2d 691) (2010). Court of Appeals of the State of Georgia 10/01/2014 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

IN THE TENTH COURT OF APPEALS No. 10-15-00069-CV WILLIAM M. WINDSOR, Appellant v. KELLIE MCDOUGALD, Appellee From the 378th District Court Ellis County, Texas Trial Court No. 88611 ORDER Appellant’s Motion Requesting Original Documents as Record, filed on June 18, 2015, is denied. PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins Motion denied Order issued and filed September 3, 2015 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-4686 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JOSEPH S. LUONGO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (CR-02-7) Submitted: December 3, 2003 Decided: July 26, 2004 Before WIDENER, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Craig L. Parshall, LAW OFFICE OF CRAIG L. PARSHALL, Fredericksburg, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Kevin V. DiGregory, Assistant United States Attorney, Amanda Goldman, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Pursuant to a plea agreement, Joseph S. Luongo pleaded guilty to making a false statement before a grand jury, in violation of 18 U.S.C. § 1623 (2000). In May 2002, the district court sentenced Luongo to two months of imprisonment, to be followed by a three-year term of supervised release. We especially note that special condition 6 of the conditions of supervision for supervised release states that “the defendant shall make an effort to settle all law judgments against him in any court within the United States.” In March 2003, the Government filed a motion seeking to modify this term of Luongo’s supervised release. Specifically, the Government sought to compel Luongo to begin making payments on a default judgment entered against him in 2001. After a hearing, the district court granted the Government’s motion and ordered Luongo to submit to a deposition to determine his assets and then to begin making payments toward the judgment. Luongo timely appeals this order. District courts have wide latitude in imposing special conditions on supervised release. United States v. Dotson, 324 F.3d 256, 260 (4th Cir. 2003). A district court may impose any condition it considers appropriate as long as it is “reasonably related” to the factors referred to in 18 U.S.C. § 3583(d)(1) (2000). Id. These factors are: “the nature and circumstances of - 2 - the offense and the history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1) (2000); the need for the condition to deter criminal conduct, see 18 U.S.C. § 3553(a)(2)(B) (2000); the need to protect the public from any further criminal behavior by the defendant, see 18 U.S.C. § 3553(a)(2)(C) (2000); and the need to provide the defendant with training or medical care, 18 U.S.C. § 3553(a)(2)(D) (2000). Id. Additionally, special conditions must be consistent with the Sentencing Commission’s policy statements and may not involve a greater deprivation of liberty than is necessary to achieve the specified goals. Id. A district court’s imposition of special conditions of supervised release is reviewed for an abuse of discretion. Dotson, 324 F.3d at 259. Luongo contends that the district court abused its discretion by requiring him to submit to a deposition to determine his assets and to begin making payments on the civil default judgment. The district court found that Luongo’s offense of conviction—-lying to the grand jury—-and his failure to satisfy the outstanding default judgment against him demonstrate a lack of respect for the legal system. Therefore, the district court found the modification appropriately related to the factors referred to in 18 U.S.C. § 3583(d). Based on our review of the record, we cannot say that the district court abused its discretion in so finding. - 3 -  Accordingly, we affirm the order of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process. AFFIRMED - 4 - 

690 F.Supp. 919 (1988) LITTLE HORN STATE BANK, A Montana Banking Corporation, Plaintiff, v. CROW TRIBAL COURT and Dan Old Elk, Sr., Defendants. No. CV-88-155-BLG-JFB. United States District Court, D. Montana, Billings Division. July 21, 1988. *920 Natasha J. Morton, Christine A. Cooke, Hardin, Mont., for plaintiff. Dan Old Elk, Sr., Crow Agency, Mont., pro se. MEMORANDUM AND ORDER BATTIN, Chief Judge. On July 18, 1988, a hearing was held before the undersigned to show cause why a preliminary injunction should not be entered in this matter. Appearing for the plaintiff was Christine A. Cooke. Neither defendant appeared before the Court to contest plaintiff's motion. Having reviewed the evidence presented by the plaintiff during such hearing, the Court concludes that plaintiff's due process rights were violated and that plaintiff will suffer irreparable harm if an injunction is not granted. The Court further finds that the facts surrounding this case have been fully developed and that there exists a cognizable danger that plaintiff's rights will be violated again. Therefore, the Court issues a permanent injunction restraining, enjoining and prohibiting the defendants from enforcing the Crow Tribal Court Order dated June 30, 1988. PROCEDURAL FACTS The facts of this case strongly support a gross violation of plaintiff's due process rights. On November 21, 1985, plaintiff Little Horn State Bank filed a complaint in the Thirteenth Judicial District Court of the State of Montana, in and for the County of Big Horn. The complaint alleged that Daniel C. Old Elk, Sr. and Old Elk Building Supply had defaulted on a promissory note executed to plaintiff and secured by a purchase money security interest in a forklift. After the foreclosure proceedings were initiated by plaintiff, defendants were duly served with a summons and complaint. No appearance was ever made by the defendants and a default was entered. On July 20, 1986, District Court Judge Charles Luedke issued Findings of Fact, Conclusions of Law and Decree of Foreclosure, together with an Order of Sale. Subsequent to obtaining this judgment, plaintiff filed a complaint for Enforcement of Foreign Judgment in the Crow Tribal Court on April 11, 1987. Again, defendants Daniel Old Elk, Sr. and Old Elk Building Supply were duly served with copies of the complaint and summons which was issued by the Crow Tribal Court. The defendants failed to make any appearance in this proceeding and a default was entered by the Crow Tribal Court on May 12, 1986. On May 20, 1986, the Clerk of the Crow Tribal Court set a hearing on default judgment May 27, 1986. At said hearing plaintiff Little Horn State Bank appeared and presented evidence to the Crow Tribal Court. Once again, defendants failed to appear before the Crow Tribal Court. At the conclusion of the hearing, Tribal Judge Rowena Gets Down advised counsel for the plaintiff that the Court would issue its ruling in five working days. Plaintiff Little Horn State Bank also submitted to the Court proposed Findings of Fact, Conclusions *921 of Law and Decree of Foreclosure. Although this hearing transpired more than two years ago, no decision has been issued by the Crow Tribal Court. Since the default hearing concluded, plaintiff's counsel has made numerous inquiries about the status of said case. Throughout all her communication with the Crow Tribal Court, plaintiff has only been advised that Tribal Judge Rowena Gets Down is no longer sitting on the bench and that a decision as to the underlying default is still pending. On June 20, 1988, plaintiff acquired possession of the forklift and removed it from the exterior boundaries of the Crow Indian Reservation. On June 30, 1988, the Crow Tribal Court issued an Ex Parte Order in the original lawsuit filed by Little Horn State Bank nearly two years ago. This order mandated that the Little Horn State Bank to return the forklift in their possession to the Crow Tribal Court impoundment yard for disposition by the Court. Prior to the issuance of this order, plaintiff's counsel of record was not notified of any motion or hearing on this matter. On July 5, 1988, defendant Daniel C. Old Elk, Sr., delivered a certified copy of the June 30, 1988 Tribal Court Order to State District Court Judge G. Todd Baugh. Again, without notification to plaintiff, defendant Daniel C. Old Elk requested the Thirteenth Judicial District Court of Montana to honor said Crow Tribal Court order. Having been advised of this ex parte communication with Judge Baugh, plaintiff's counsel travelled to Crow Agency, Montana, where she spoke with Chief Judge Dennis Big Hair of the Crow Tribal Court. Counsel for Little Horn State Bank attempted to file with the Tribal Court a motion to set a hearing on the order dated June 30, 1988 and to hold the enforcement of said order in abeyance until a hearing could be held. Judge Big Hair advised plaintiff's counsel that no hearing would be scheduled and that no motion would be accepted by the Crow Tribal Court from Little Horn State Bank. Judge Big Hair further advised counsel that the Crow Tribal Appellate Court was a nonfunctioning body, but that the Appellate Court might begin hearing cases at Judge Big Hair's request. On July 6, 1988, plaintiff Little Horn State Bank filed this action alleging a violation of its due process rights under the Indian Civil Rights Act of Title 25 U.S.C. § 1302(8). Plaintiff also filed a Motion for Temporary Restraining Order seeking to enjoin defendants from enforcing the Crow Tribal Court Order dated June 30, 1988. Defendants were duly served with notice of plaintiff's motion for a temporary restraining order. Defendant Dan Old Elk, Sr., did appear in Chambers and in Court with respect to the Temporary Restraining Order issued on July 7, 1988. However, he did not appear at the hearing of July 18, 1988 on plaintiff's Motion for a Preliminary Injunction although he was given notice of said hearing. Defendant Crow Tribe did not appear to contest either Motion. DISCUSSION Plaintiff invokes the jurisdiction of this Court pursuant to Title 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 25 U.S.C. § 1302(8). The most compelling basis for jurisdiction in this matter is found at 25 U.S.C. § 1302(8) since plaintiff alleges a violation of the Indian Civil Rights Act (ICRA). The Court is quite mindful that the Supreme Court has long held that federal courts have no jurisdiction to entertain actions to redress violations of the ICRA other than by habeas corpus petition pursuant to Title 25 U.S.C. § 1303. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Nevertheless, the United States Court of Appeals for the Tenth Circuit has fashioned a narrow exception to Martinez which appears to be applicable in this case. Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847, reh. denied, 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385 (1981). In Dry Creek, the Court of Appeals distinguished *922 Martinez, noting that the Supreme Court had focused on three factors in determining that federal courts do not have jurisdiction of § 1302 claims. The Court identified those factors as: 1) the availability of Tribal remedies; 2) a dispute which is peculiarly intra-tribal in nature; and 3) an action in which all the parties are Indians. 623 F.2d at 685. Those factors were found not to be present in the Dry Creek Case. After considering those same factors, the Court concludes that they are similarly absent in this case and that the Martinez holding should not preclude this Court from exercising jurisdiction. First, all parties to this action are not Indians. Plaintiff is a financial institution located outside the exterior boundaries of the reservation. One of the significant factors distinguishing Dry Creek Lodge from Martinez, was the presence of non-Indian parties in the former case. 623 F.2d at 684. Secondly, the underlying dispute in this case is not of intra-tribal nature contemplated by the Supreme Court in Martinez. The underlying cause of action arises out of an executed promissory note and purchase money security interest in a forklift. This transaction occurred outside the exterior boundaries of the reservation and is not of tribal importance. Third, the record clearly reflects that there are no further adequate tribal remedies available to plaintiff. Plaintiff has recognized the establishment of the Tribal Court and carefully followed its procedures. Notwithstanding its diligence in providing notice to the defendants and complying with the Tribal Court system, plaintiff has been unable to obtain a simple default judgment. Plaintiff has no other tribal remedies available. The Tribal Court of Appeals has not functioned in some time and will only operate at the whim of the current Judge Dennis Big Hair. Plaintiff's counsel has inquired on numerous occasions as to the status of their underlying action to no avail. Counsel's last contact with the Tribal Court resulted in the Court refusing to file any pleadings which plaintiff's counsel wished to file with the Court. Certainly plaintiff has exhausted all known tribal remedies and should not be required to expend any futile efforts with tribal authorities. With this in mind, the Court concludes that jurisdiction does exist to determine this Motion for Preliminary Injunction. The factors to be considered in deciding whether an injunction is appropriate in a given case are as follows: (1) a strong likelihood of success on the merit; (2) the possibility of irreparable injury if relief is not granted; (3) the balance of hardships; and (4) advancement of the public interest. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). In the Ninth Circuit, plaintiff, as the moving party, has the burden of demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardship tips sharply in its favor. Id., at 1201. These tests are not separate, but represent the "outer reaches of a single continuum". Id. This Court must balance the equities in the case to determine at which point along the continuum a stay is justified. With those points in mind, the Court will proceed to consider the present case in light of those factors. I. Probability of success on the merits and the possibility of irreparable injury. In this case, plaintiff alleges that enforcement of the Tribal Court's order will result in a deprivation of its property without due process. Specifically, plaintiff claims that the order was entered without notice or hearing, in violation of its rights under the ICRA. The ICRA, at 25 U.S.C. § 1302(8), requires at least a minimal amount of process before the property of any person may be taken. The Court need not inquire into the precise amount of due process required in this matter, since it is clear that this plaintiff was afforded absolutely none. By requiring the plaintiff to relinquish control of the forklift in question, *923 the Tribal Court will deprive the bank of its property interest in the equipment, without the courtesy of any notice, hearing or other pretense of due process. Plaintiff has a strong probability of success in its claims regarding a denial of due process, in violation of the ICRA. Further, with respect to the second factor, plaintiff's only remedy lies with its possession of the forklift, and its right to resell the equipment to recover the outstanding indebtedness owed by defendants. Enforcement of the Tribal Court order would deprive plaintiff of this remedy. It is abundantly clear to this Court that the Tribal Court would be of no assistance in plaintiff's quest to recover any amount due. The Tribal Court's refusal to enforce the validly obtained state court judgment against defendant Dan Old Elk deprives plaintiff of any adequate remedy at law. Therefore, this Court must enjoin the Tribal Court from compelling plaintiff to return the forklift to the impoundment yard of the Tribal Court, since failure to do so would subject plaintiff to the possibility of irreparable injury. At this juncture, the Court finds that the first test for a preliminary injunction has been met, and thus the remaining factors need not be evaluated. However, the Court feels compelled to comment more about the situation at hand. Over the past decades, Indian tribes have cried out for and received judicial recognition of their status as sovereign, or quasi-sovereign nations. The Supreme Court has repeatedly fostered the federal government's policy of encouraging tribal self-government. Iowa Mutual Ins. Co. v. La Plante, 480 U.S. 9, 107 S.Ct. 971, 975, 94 L.Ed.2d 10 (1987); Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). As a vital role in tribal self-government, the federal government has consistently urged the development of tribal courts. U.S. v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). This Court is well aware of the continued promotion of tribal self-government and self-determination. In National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985), the Supreme Court directed the federal district court to give tribal legal institutions the "proper respect" by staying its hand in order to allow the Tribal Court a "full opportunity to consider the issues before them." 471 U.S. at 857, 105 S.Ct. at 2454. This Court, in keeping with its obligation to uphold the law, will honor that directive. However, it has become extremely difficult to do so in the face of such decidedly egregious facts as are presented herein. Plaintiff has recognized the sovereignty of the Tribe and has valiantly tried to operate within the Tribal Court system, seeking its approval of a valid judgment entered in the courts of the State of Montana, and assistance in enforcing the same. The Crow Tribal Court, acting as a sort of "kangaroo court", has made no pretense of due process or judicial integrity. Plaintiff was met not only with bias and uncooperativeness, but with a blatantly arbitrary denial of any semblance of due process. The tribal judge's conduct makes a mockery of any orderly system of justice, and renders any attempt to deal with the Tribe in a professional and competent manner a farce. The Court seriously questions whether the conduct of the Tribal Court is befitting the title of a sovereign, and the respect and deference customarily accorded along with that status. It would appear that the Crow Tribal government changes judges at a whim, to the detriment of non-Indian litigants, and of the Tribe. As a result, the Tribal Court lacks any continuity and uniform precedent which is the foundation of our judicial system. While the tribal members enjoy the protection of their rights under both the United States Constitution and the ICRA, depending on the forum, it appears that non-Indians are not granted the same privilege of dual citizenship in Tribal Court. If *924 the Crow Tribe wishes to earn the respect and cooperation of its non-Indian neighbors, it must do more to engender that respect and cooperation, not abuse those neighbors who attempt to work within its system. Ordinarily, the Court would proceed to enter a preliminary injunction at this time, setting a schedule for later determination of the propriety of a permanent injunction. See, Shanks v. City of Dallas, Tx., 752 F.2d 1092, 1097 (5th Cir.1985). However, the factual context of the case is sufficiently established, and need not be further developed to permit a ruling on the issues raised by a request for permanent injunction. Moreover, the plaintiff has shown that "there exists some cognizable danger of recurrent violation." United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 898, 97 L.Ed. 1303 (1953). The Court deems it appropriate at this time to enter a permanent injunction, barring enforcement of the Tribal Court Order obtained ex parte, without notice or hearing. Therefore, IT IS ORDERED that defendants Crow Tribal Court and Dan Old Elk, Sr., are hereby permanently restrained, enjoined, and prohibited from pursuing enforcement of the Crow Tribal Order dated June 30, 1988, commanding plaintiff, Little Horn States Bank, to relinquish the forklift which is the subject of the underlying action. The Clerk is directed forthwith to notify counsel for the respective parties of the making of this order.

759 F.Supp.2d 1059 (2010) HARLEY MARINE SERVICES, INC., et al., Plaintiffs, v. MANITOWOC MARINE GROUP, LLC, et al., Defendants. Case No. 10-C-751. United States District Court, E.D. Wisconsin. December 30, 2010. *1060 David J. Hanus, Jeffrey S. Fertl, Hinshaw & Culbertson LLP, Milwaukee, WI, Mark A. Krisher, Thomas G. Waller, Bauer Moynihan & Johnson LLP, Seattle, WA, for Plaintiffs. Brett Ingerman, DLA Piper U.S. LLP, Baltimore, MD, Thomas L. Schober, Davis & Kuelthau SC, Green Bay, WI, for Defendants. DECISION AND ORDER WILLIAM C. GRIESBACH, District Judge. Defendants Manitowoc Marine Group, LLC, d/b/a Bay Shipbuilding Co., Fincantieri Marine Group, LLC, and The Manitowoc Company, Inc., have filed a motion to dismiss four of the claims brought in the complaint filed by Plaintiffs Harley Marine Services, Inc., Harco Marine, L.L.C., and Olympic Tug & Barge, Inc. Defendants assert that three of the claims are facially inconsistent with the substance of the central claims, which allege breach of contract and warranty. The final claim, they assert, is not yet ripe. For the reasons given below, the motion will be granted in part and denied in part. In brief, in this action Plaintiffs allege that they contracted with Manitowoc Marine for Manitowoc to build a barge capable of carrying 80,000 barrels. The barge (they allege) has failed to live up to the contracted standards, and they thus brought suit for breach of contract and breach of warranty. In addition, however, Plaintiffs also brought claims alleging breach of the duty of good faith, unjust enrichment, and promissory estoppel. But because Plaintiffs are suing on rights set forth in a contract with Manitowoc Marine and the breach of the implied duty of good faith merely restates the breach of contract claim, Defendants argue that these additional causes of action are entirely superfluous. There is no reason, Defendants contend, to assert claims that either duplicate or are legally incompatible with the breach of contract claim. Plaintiffs concede that once the merits are reached, the alternative theories cannot succeed along with the contractual theories—they are mutually exclusive—but assert that they have a right at this stage of the proceedings to plead in the alternative. In this dustup both sides have a point. Plaintiffs are correct that federal pleading standards allow for pleading in the alternative; that is, a party may plead claims which on their face might not be consistent. On the other hand, it is not unreasonable for Defendants to insist that claims having no basis in law be excised as *1061 early as possible so as to minimize unnecessary legal research and discovery. It is after all the purpose of the rules under which this procedural dispute arises "to secure the just, speedy, and inexpensive determination of every action and proceeding." Fed.R.Civ.P. 1. In support of their opposition to Defendants' motion, Plaintiffs cite Diamond Center, Inc. v. Leslie's Jewelry Mfg. Corp., 562 F.Supp.2d 1009 (W.D.Wis.2008), in which Judge Crabb denied a similar motion: As plaintiff correctly points out, Fed. R.Civ.P. 8(e)(2) permits a party to plead alternative theories of relief under both legal and equitable grounds, even if the theories are inconsistent. Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 397 (7th Cir.2003). Under the doctrine of pleading in the alternative, "a party is allowed to plead breach of contract, or if the court finds no contract was formed, to plead for quasi-contractual relief in the alternative. Once a valid contract is found to exist, quasi-contractual relief is no longer available." Id. Plaintiff has done nothing more than plead alternative theories of relief by pleading its unjust enrichment and promissory estoppel claims along with a claim for breach of contract. Although plaintiff would not be able to recover under its quasi-contract claims if there was in fact a contract governing its relationship with defendant, it is free to plead such alternative theories at this stage of the litigation. Accordingly, plaintiff has pleaded its unjust enrichment and promissory estoppel claims as alternative theories of recovery under Rule 8(e)(2). Those claims will not be dismissed at this stage of the litigation. 562 F.Supp.2d at 1017. Plaintiffs argue the same reasoning applies here and also applies to their claim for breach of implied duty of good faith. While such a claim may be mutually exclusive of a breach of contract claim, see Home Valu, Inc. v. Pep Boys, 213 F.3d 960, 965-66 (7th Cir.2000), the plaintiffs note that this is not always true. Thus, they contend that at this stage the claim should be allowed to proceed. For their part, Defendants cite a line of cases that acknowledge the possibility of pleading in the alternative but stand for the principle that a single claim itself cannot be facially inconsistent. For example, when a claim acknowledges that a contract exists but nevertheless seeks equitable (i.e., non-contractual) relief, some courts have granted motions to dismiss on the basis that the claim is a dud on its face. As plaintiff correctly notes, federal rules allow a plaintiff to plead inconsistent claims in the alternative. See Fed. R.Civ.P. 8(e)(2) ("A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses."). Nonetheless, while plaintiff may plead breach of contract in one count and unjust enrichment and promissory estoppel in others, it may not include allegations of an express contract, which governs the relationship of the parties, in the counts for unjust enrichment and promissory estoppel. The Sharrow Group v. Zausa Development Corp., 2004 WL 2806193, *3 (N.D.Ill. 2004) (citing cases). The mere fact that Plaintiffs did not limit the allegations referring to the express contract to the breach of contract claim is easily curable, however, and thus does not by itself seem a sound reason to dismiss the inconsistent claims for relief. The existence of the contract is no secret. It thus matters little whether Plaintiffs also acknowledge that contract's existence within the other claims or not—the contract *1062 is still there, regardless. Moreover, applying the distinction suggested above would simply result in a re-do. The claims would be dismissed without prejudice (because dismissal would be based on a pleading technicality rather than the merits) and Plaintiffs would be allowed to re-plead the same claims as alternative claims so long as they left out the offending parts acknowledging that a contract exists. A stronger rationale for granting such a motion is suggested in American Casual Dining, L.P. v. Moe's Southwest Grill, L.L.C., 426 F.Supp.2d 1356 (N.D.Ga.2006). There, as in this case, the plaintiff asserted claims for breach of contract, breach of implied duty of good faith, unjust enrichment, and promissory estoppel. The defendant moved to dismiss the latter three claims, arguing that they were either included in or inconsistent with the contract the plaintiff claimed the defendant had breached. Also as in this case, the plaintiff argued in response that Rule 8 of the Federal Rules of Civil Procedure expressly allows a party to plead alternative and inconsistent claims and theories of recovery. The district court rejected the plaintiff's argument, noting that the complaint did not indicate that its claims were asserted as alternative theories of recovery. More importantly, however, the court noted that even if the equitable claims for relief had been asserted in the alternative, the plaintiff had not alleged that the contracts attached to the complaint were invalid or potentially invalid, nor had the defendant challenged the existence or validity of the agreements. 426 F.Supp.2d at 1371-72. See also Decatur Ventures, LLC v. Stapleton Ventures, Inc., 373 F.Supp.2d 829, 849 (S.D.Ind.2005) ("Plaintiffs' unjust enrichment claim becomes superfluous when neither side disputes the existence of a valid contract, even if it is being alleged in the alternative..... Plaintiffs went so far as to attach copies of the express contracts between Decatur and NovaStar to their complaint, and NovaStar does not dispute the existence or validity of the contracts. Accordingly, Plaintiffs' unjust enrichment claim is inappropriate."). In response to Defendants' motion, Plaintiffs here argue that they should be allowed to plead alternative claims because Defendants' answer has placed the existence of the contract in dispute. They note that in response to several allegations in the complaint, Defendants denied that the parties had entered into the alleged contract. But that is not the case. Indeed, Defendants in response to paragraph 9 of the complaint expressly "admitted that, in 2005, Harley Marine Service, Inc., and Bay Shipbuilding Co. negotiated an agreement to build the ship...." (Partial Answer, ¶ 9.) In response to the paragraphs of the complaint where Plaintiffs attempted to characterize or quote the substance of the contract, Defendants asserted that "the document speaks for itself, and on this basis the allegations are denied." (Id.) Refusing to accede to an opposing party's interpretation of a written contract, however, is not the same as denying the contract's existence or validity. If there was any doubt about the position of Defendants with respect to the contract, it has now been dispelled by their even more emphatic insistence in their brief in support of their motion to dismiss that "this is a breach of contract case, nothing more or less." (Br. In Supp. of Mot. To Dismiss at 1.) It is therefore clear, at least at this point, that neither the existence or validity of the contract is in dispute. Under these circumstances, I conclude that Defendants' motion to dismiss Plaintiffs' claims for promissory estoppel and unjust enrichment should be granted. In essence, I conclude that where a plaintiff asserts a breach of contract claim and fails to allege any facts from which it could *1063 at least be inferred that the contract on which that claim is based might be invalid, the plaintiff is precluded from pleading in the alternative claims that are legally incompatible with the contract claim. This is but an application of the rule that "[a] plaintiff pleads himself out of court when it would be necessary to contradict the complaint in order to prevail on the merits...." Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir.2008) (quoting Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir.2006)). Here, for example, Plaintiffs do not contest Defendants' argument that their claims for equitable relief fail as a matter of law if the parties entered into a valid contract to govern their relationship. Their complaint alleges the existence of such a contract, and Defendants have not disputed either its existence or validity. Thus, based on their own pleadings, Plaintiffs' claims for equitable relief should be dismissed. And since Plaintiffs' claim for breach of the implied duty of good faith is essentially a repeat of the breach of contract claim, it too will be dismissed. Granting Defendants' motion will not harm Plaintiffs since the dismissal will be without prejudice. If Defendants' position changes and they challenge the existence of the contract, or facts arise in discovery which call into question its validity, Plaintiffs will be free to amend their complaint and reassert these or other claims. Fed. R.Civ.P. 15(a)(2). On the other hand, by dismissing claims that have no legal viability at this point, both parties will be spared the time and expense of requesting and providing irrelevant and costly discovery, and the court will be spared the time and effort of refereeing the disputes that frequently arise over such matters. For it is the plaintiff's claims, as well as the defenses thereto, that determine the scope of discovery that is allowed. See Fed. R.Civ.P. 26(b)(1) ("Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense...."). Claims for unjust enrichment and promissory estoppel, depending as they do on broad equitable considerations, open avenues of discovery far beyond what is needed to dispose of a breach of contract claim. Where, as here, it appears clear from the complaint that such claims have no basis in law, dismissal is not only appropriate but also the surest path to "the just, speedy, and inexpensive determination" of the action that the Rules are intended to further. Fed.R.Civ.P. 1. The Defendants have also moved to dismiss Plaintiff's claim against The Manitowoc Company (Manitowoc Marine Group's corporate parent) for its guaranty of the performance of Manitowoc Marine under the barge build contract. Defendants argue that the guaranty logically applies only if Manitowoc Marine is found to be in default under the build contract. That has not happened yet, Defendants note, and so it is premature to involve the Company in this dispute. There is, they contend, no case or controversy. I am satisfied, however, that there is enough of a controversy to satisfy Article III. In short, it is not true that The Manitowoc Company's liability is only contingent on a finding of its subsidiary's liability in this action. Under the guaranty it signed, the Company agreed that Plaintiffs "may demand performance of the Builder Guaranteed Obligations by the Guarantor without first demanding performance from the Builder." (Dkt. # 13, Ex. 1 at 33.) This means that the Company has agreed to stand in the shoes of its subsidiary not just for contingent liability (e.g., if the subsidiary were found liable but could not pay) but as a primary obligation as well. When another entity has agreed to be jointly and severally liable for the work of another he cannot claim there is no controversy when he is sued to enforce that *1064 obligation. This is reflected in the next sentence of the guaranty, which provides that the Plaintiffs "may bring an action to enforce the Builder Guaranteed Obligations against the Builder, the Guarantor or both." (Id.) It is clear that the Company did not agree to step in only in the event its subsidiary could not perform—it agreed that it could be deemed primarily liable on the same basis as its subsidiary. This case is thus unlike the declaratory judgment cases cited by Defendants. For example, in Casual Dining Development, Inc. v. QFA Royalties, LLC, the plaintiff sought a declaratory judgment on an indemnity agreement with the defendant. 2008 WL 4186692 (E.D.Wis.2008). The plaintiff had been sued in two other lawsuits, but was not adjudged liable in either of them. Thus, the district court concluded that its claim for indemnification was not yet ripe. Although that case reflects a general principle of ripeness as it relates to indemnification agreements, it does not dictate the outcome here. Casual Dining was an action brought by the indemnitee against the indemnitor rather than by an injured party. As between the indemnitee and indemnitor, the case was indeed unripe because the indemnitor's obligation to pay had not yet been triggered. The indemnitee was essentially asking the judge to make a ruling about what its indemnification rights would be if it lost its lawsuits. But if the facts had been as they are here, the outcome would have been different. Here, Plaintiffs are allegedly injured parties who are suing not for indemnification but to enforce a specific guaranty that was made to them as a part of a commercial contract. Unlike Casual Dining, the triggering event is not a judgment of liability in this lawsuit, it is the very allegation of injury itself, as provided in the guaranty agreement. That agreement explicitly states that the buyer may seek redress from either the subsidiary or parent (or both). Such a clause would not make sense if Plaintiffs had to wait to obtain a judgment against the subsidiary. Defendants suggest that parties cannot contract their way into subject matter jurisdiction, but that is not exactly true. Any time parties from different states have a dispute above the jurisdictional threshold, their private agreement has created the relevant case or controversy that opens the federal courthouse door. It is no different here. Plaintiffs obtained a contractual right to require The Manitowoc Company to perform any obligations of its subsidiary, and they have now brought this lawsuit to enforce that right. I conclude, therefore, that the dispute is ripe. For these reasons, the motion to dismiss is GRANTED IN PART AND DENIED IN PART. The motion is granted as to Counts Three, Four, and Five of the Complaint, and those Counts are dismissed without prejudice. The motion is denied as to Count Six.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-4611 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER WIGFALL, a/k/a Frank, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, Chief District Judge. (3:17-cr-00004-GMG-RWT-1) Submitted: May 30, 2019 Decided: June 21, 2019 Before FLOYD and QUATTLEBAUM, Circuit Judges, and DUNCAN, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West Virginia, for Appellant. Zelda Elizabeth Wesley, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury found Christopher Wigfall guilty of two counts of distributing heroin and one count of possessing it with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012). The district court determined that he was a career offender under U.S. Sentencing Guidelines Manual § 4B1.1 (2016), and sentenced him to 210 months in prison, a term at the bottom of the advisory Sentencing Guidelines range. Wigfall now appeals. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but questioning whether the district court erred by (1) denying Wigfall’s challenge under Batson v. Kentucky, 476 U.S. 79 (1986), during jury selection, when the Government used a peremptory strike on an African-American man in the jury pool; (2) designating Wigfall a career offender, based on prior Maryland felony convictions for possession of a narcotic with intent to distribute and robbery with a dangerous and deadly weapon; and (3) imposing an unreasonable sentence. Wigfall has filed a pro se supplemental brief raising additional issues. * We affirm. With respect to Wigfall’s Batson challenge, the potential juror whom the Government struck had been the president of the local branch of the National Association for the Advancement of Colored People. In that role, he met with officials from the United States Attorney’s office for the Northern District of West Virginia—the same * We have considered the issues raised in the pro se supplemental brief and conclude that they lack merit. 2 office that was prosecuting Wigfall—and wrote a letter to the attorney general about the shooting and killing of an African-American man by five white police officers. Separately, the potential juror’s son had been convicted in the district court of a drug offense. In response to Wigfall’s Batson challenge, the Government cited both of those facts as its reasons for exercising its peremptory strike. The district court noted that the Government had not struck an African-American woman from the jury pool and determined that the Government made a practical decision to strike the potential juror in issue because his son had been convicted in the same court and because the Government believed he had an “ax to grind” due to his dissatisfaction with the Government’s investigation of the shooting death. We review a district court’s denial of a Batson challenge for clear error. United States v. Walker, 922 F.3d 239, 251 (4th Cir. 2019). “A clear error exists when we are left with the definite and firm conviction that an error was committed by the district court.” Id. (internal quotation marks omitted). When a defendant has raised a Batson challenge, he must make a prima facie showing that the government exercised a peremptory challenge on the basis of race. Id. at 252. The burden then shifts to the government to articulate a nondiscriminatory reason for the challenge, and, to prevail, the defendant must show that that reason is a pretext for intentional discrimination. Id. Here, the government provided two nondiscriminatory reasons for its decision to strike the African-American man from the jury. Wigfall failed to demonstrate that those reasons were a pretext for discrimination. We therefore conclude that the district court 3 did not err in rejecting Wigfall’s Batson challenge to the Government’s exercise of its peremptory strike. With respect to Wigfall’s sentence, we have reviewed the record and the relevant legal authorities and conclude that the district court properly calculated the advisory Guidelines range. Furthermore, the district court adequately explained its sentence, balancing Wigfall’s criminal history and the seriousness of his offenses with what the court saw as his sincere efforts to change and improve himself. Nothing in the record rebuts the presumption that the court’s sentence, at the low end of the Guidelines range, is reasonable. See United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014) (noting sentence within or below properly calculated Guidelines range is presumptively reasonable). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious grounds for appeal. We therefore affirm the judgment of the district court. This court requires that counsel inform Wigfall, in writing, of the right to petition the Supreme Court of the United States for further review. If Wigfall requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Wigfall. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4 

366 F.2d 99 ORDER OF RAILWAY CONDUCTORS AND BRAKEMEN, etc., et al., Appellants,v.SPOKANE, PORTLAND & SEATTLE RAILWAY CO. et al., Appellees. No. 20331. United States Court of Appeals Ninth Circuit. Aug. 18, 1966. Clifford D. O'Brien, Portland, Or., Harry J. Wilmarth, Cedar Rapids, Iowa, for appellants. Hugh L. Biggs, James P. Rogers, Garry R. Bullard, of Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for appellee. Before POPE, JERTBERG and DUNIWAY, Circuit Judges. POPE, Circuit Judge. 1 A dispute arose between the above named Union and the appellee Railroads concerning allowances to union members for expenses when on duty away from home. When the parties were unable to agree, the Union threatened to strike. The Railroads then brought this suit in the court below to enjoin the strike. From an order granting such an injunction the defendant Union appeals. 2 Following the extended disputes between numerous railroads and their operating employees relating to rules and working conditions which are recounted in detail in Brotherhood of Locomotive Engineers v. Baltimore & O.R. Co., 372 U.S. 284, 83 S.Ct. 691, 9 L.Ed.2d 759, and in Brotherhood of Locomotive Engineers v. Chicago, R.I. & P.R. Co., 382 U.S. 423, 86 S.Ct. 594, 15 L.Ed.2d 501 (January 31, 1966), Congress undertook to avoid the consequences of a threatened strike by the unions through the enactment of provisions for compulsory arbitration of two of the issues between the carriers and the unions. There remained other disputes, not comprehended within this arbitration, which the parties undertook to deal with in what the parties refer to as the 'White House Agreement' dated June 25, 1964. The particular portion of that agreement, involved here, was contained in Article II, 1 thereof, which provided as follows: 3 'ARTICLE II-- EXPENSES AWAY FROM HOME: 4 'Section 1-- 5 'When the carrier ties up a road service crew (except short turnaround passenger crews), or individual members thereof, at a terminal (including tie-up points named by assignment bulletins, or presently listed in schedule agreements, or observed by practice, as regular points for tying up crews) other than the designated home terminal of the crew assignment of four (4) hours or more, each member of the crew so tied up shall be provided suitable lodging at the carrier's expense or an equitable allowance in lieu thereof. Suitable lodging or an equitable allowance in lieu thereof shall be worked out on a local basis. The equitable allowance shall be provided only if it is not reasonably possible to provide lodging. 6 'If an allowance is being made in lieu of lodging as well as other considerations under provisions of existing agreements, the amount attributed only to lodging shall be removed if suitable lodging is supplied, or offset against an equivalent allowance. This shall be worked out on a local basis. 7 'The provisions of this Section shall be made effective at a date no later than 30 days following the effective date of this Agreement.' 8 The lodging referred to is the lodging required by the employees during their layovers at the end of their runs. 9 At conferences following this agreement the parties attempted to agree on what would be considered 'suitable lodging or an equitable allowance in lieu thereof,' but without success. On July 24, 1964, the appellee railroads issued and served on the appellants its 'Circular No. 65' as follows: 10 'SPOKANE, PORTLAND AND SEATTLE RAILWAY COMPANY SYSTEM LINES Portland, Oregon July 24 1964 11 Circular No. 65 ALL CONCERNED: Effective July 25, 1964 and until further notice, whenever a road service crew is tied up at a terminal other than the designated home terminal of the crew assigned for four hours or more, each member of the crew so tied up will be provided lodging at the following locations: Spokane-- Coeur d' Alene Hotel Pasco-- Pioneer Hotel Wishram-- SPS Hotel Bend-- Colonial Hotel Albany-- Albany Hotel Eugene-- Lane Hotel Astoria-- Astor Hotel Seaside-- Chillquist Rooming House Vernonia-- Hy-van Hotel A survey recently taken of lodging then being used by train and enginemen at the above points indicated that while some were using accommodations listed above, others had made different lodging arrangements. Therefore, although accommodations will be available at the above named establishments, if any crew member desires to keep his present arrangement, he may do so in which event he will be allowed $1.50 for each layover period during which he is tied up for more than four hours at the away-from-home terminal of his assignment. This allowance may be claimed on the service slip for the particular trip. 12 While the above arrangement is in effect, the allowance in lieu of lodging presently being made to certain train crew members in pooled caboose territory will be removed. 13 J. L. Monahan Superintendent'On August 3 following, the union sent to the railroad1 a notice as follows: 14 'Our negotiations to date have failed to produce an agreement as to the type, quality or location of suitable lodging, or equitable allowance in lieu thereof. We propose that an agreement be reached in accord with Section 6 of the Railway Labor Act, which will provide that acceptable suitable lodging shall include: '(1) A large single room, well ventilated, heated, lighted, air conditioned, with bath facilities, well finished wood or carpeted floors and closet or large locker storage space. Room is to be equipped with chairs and dresser and full size standard bed with new Simmons 400 mattress and springs, or one of equal quality. Room to be maintained in a suitable manner with linen to be changed after each use. '(2) The lodging mentioned in Paragraph (1) to be located not more than one-fourth miles from point where crews are required to register and/or off duty, or suitable transportation furnished between lodging and points of reporting for duty, or going off duty. Call service will be provided by carrier. ' (3) In lieu of requirements of above Paragraphs (1) and (2), an equitable allowance per trip will be six dollars ($6,00) to be paid by check separate and apart from wages and earnings. 'Please advise me promptly whether you are agreeable to these provisions, or as to a date for conference concerning this proposal, as provided by the Railway Labor Act.' 15 For the purpose of clarifying what next happened, we note that the Railway Labor Act (45 U.S.C. 151 et seq.) provides two separate and distinct methods for the settlement of disputes between carriers and their employees. Section 3 of the Act (45 U.S.C. 153) which establishes a National Railroad Adjustment Board provides that disputes 'growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.' (45 U.S.C. 153(i)) Disputes of this character are known as 'minor' disputes. Their submission to the National Railroad Adjustment Board is 'considered as compulsory arbitration in this limited field,' and awards in such cases are 'final and binding upon both parties,' and in case of attempted violation of such an award through a strike the 'District Court has jurisdiction and power to issue necessary injunctive orders * * * notwithstanding the provisions of the Norris-La Guardia Act.' Brotherhood of Railroad Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622. 16 As the Court there noted, these so-called 'minor disputes' 'may be contrasted with 'major disputes' which result when there is disagreement in the bargaining process for a new contract.'2 In Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, at pages 722 to 727, 65 S.Ct. 1282, at pages 1289-1292, 89 L.Ed. 1886, the Court defined and described the two kinds of disputes. Speaking of 'major disputes' the Court said (p. 723, 65 S.Ct. p. 1290): 'They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.'3 The Court then proceeded to note the divergent procedures prescribed for dealing with the two kinds of disputes. It said (p. 725, 65 S.Ct. p. 1290): "Major disputes' go first to mediation under the auspices of the National Mediation Board; if that fails, then to acceptance or rejection of arbitration, cf. 7; (Brotherhood of Railroad) Trainmen v. Toledo, P. & W.R. Co., 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534, 150 A.L.R. 810; and finally to possible presidential intervention to secure adjustment. 10. For their settlement the statutory scheme retains throughout the traditional voluntary processes of negotiation, mediation, voluntary arbitration, and conciliation. Every facility for bringing about agreement is provided and pressures for mobilizing public opinion are applied. The parties are required to submit to the successive procedures designed to induce agreement. 5 First (b). But compulsions go only to insure that those procedures are exhausted before resort can be had to self-help. No authority is empowered to decide the dispute and no such power in intended, unless the parties themselves agree to arbitration.' 17 For a case in which this court dealt with the distinctions between these two kinds of disputes, see Butte, Anaconda & P. Ry. Co. v. Brotherhood of L.F. & E., 9 Cir., 268 F.2d 54. 18 After the railroad and the Union had exchanged their two notices, quoted above, the railroad's notice of July 24 and the Union's notice of August 3, 1964, they had conferences in an attempt to resolve their differences, but without success. Not only were they unable to agree upon what allowance or lodgings 'away from home' should be furnished, but they were in sharp disagreement as to the character or nature of their dispute, and as to the steps necessary to be taken in an effort to resolve it. It will be noted that in its August 3 notice the Union referred to an agreement to be reached 'in accord with Section 6 of the Reilway Labor Act.' This section (45 U.S.C. 156) deals with a 'major dispute'. By letter of August 10, 1964, the railroad challenged this reference to 6, asserting that this was a dispute 'involving the interpretation or application' of Article VII of the agreement of June 25, 1964. About the same time the Union invoked mediation on the part of the Mediation Board. The Mediation Board took no action at that time, apparently because it was advised that the parties, as of September 15, 1964, agreed to maintain the status quo pending further negotiations. This agreement operated to bring about a cancellation of a strike which the Union was then threatening. 19 There followed a succession of efforts to reach agreements, all without success, and finally, about June 2, 1965, the Union notified the Mediation Board that because of the railroad's 'refusal to bargain realistically on our Section 6 notice of August 3, 1964,' the Union had authority to strike. The Mediation Board notified the railroad of this, and the Union notified the railroad it would strike on June 7, 1965. On June 3, 1965, the railroad submitted its version of the dispute to a Special Board of Adjustment which the parties had set up by agreement in October 1961. When the Union objected to the submission of the dispute to such Special Board the railroad submitted the stated dispute to the National Adjustment Board. 20 It is the railroad's position that 'this dispute was and is one involving only the interpretation of an existing agreement' between the parties, as set forth in Article II, Section 1 of the June 25, 1964 White House Agreement; hence, it is a 'minor dispute' which the Adjustment Board had jurisdiction to determine by an award which would be final and binding upon both parties. It follows, the railroad says, and the trial court held, that the strike was 'unlawful and enjoinable.'4 21 If the dispute here involved was a 'major' one, the strike was not subject to injunction. As we noted in Butte, Anaconda & P. Ry. Co. v. Brotherhood of L.F. & E., supra, at p. 58, 'Major disputes go first to mediation before the National Mediation Board; if that fails, then to acceptance or rejection of arbitration; and finally to possible presidential intervention. If all this fails, compulsory processes are at an end, and either party may resort to self-help.' 22 We are thus confronted with the single question, whether this case involves a 'major' or a 'minor' dispute. It may be assumed, but without deciding, that both parties might have agreed to submit to the Adjustment Board the simple question as to the meaning, or proper interpretation, of what would be 'suitable lodging or an equitable allowance in lieu thereof.' But the Union had the right, if it chose, to seek an addition of new provisions to this part of the White House Agreement. The Railway Labor Act contemplates such changes in or additions to agreements. Section 6 of the Act (45 U.S.C. 156) is entitled: 'Procedure in changing rates of pay, rules, and working conditions.' The only restrictions there stated are that there should be 'thirty days' written notice of an intended change,' and that if conferences are being held, or if services of the Mediation Board have been requested, the proposed changes shall not go into effect until after a stated period following termination of conferences, or until mediation has been completed. 23 In our view, there can be no question but that the Union's notice of August 3, 1964, was a notice of an intended change in the terms of the agreement. That it was so intended is made plain by its recital that it was proposed 'that an agreement be reached in accord with Section 6 of the Railway Labor Act.' This notice did not purport to be a proposed interpretation of the earlier Article II, Section 1; its proposals are obviously new arrangements. That Article II, Section 1 contemplated that there would be some new provisions made is apparent from its reference to certain terms being 'worked out on a local basis.' This seems to us to suggest further negotiations.5 We hold this to have been a 'major' dispute. 24 The reilroad suggests that even if this were a major dispute, yet the Union had no right to resort to self-help by way of strike until mediation through the Mediation Board had been undertaken, followed by at least an attempt at arbitration under Section 7 (45 U.S.C. 157). But the reilroad is in no position to make such a contention. The Union made an effort to utilize the procedures of the Mediation Board. In response to the Union's notice of August 3, 1964, the railroad advised the Union that it considered that notice improper, indeed a 'specific violation of the Agreement.' In response to an inquiry by the Mediation Board as to its views of the Union's invocation of mediation, the railroad replied that it was continuing negotiations concerning the dispute. Later, in response to a similar inquiry by the Mediation Board, the railroad asserted that the Union's invocation of mediation pursuant to its 'purported Section 6 notice' was 'in clear violation of * * * the Agreement and, consequently, of the Reilway Labor Act.' Brotherhood of Reilroad Trainmen v. Toledo, P. & W.R. Co., 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534, is precisely in point here. It forecloses the reilroad, which positively rejected mediation, from claiming an injunction against a strike. 25 When this opinion came to this point it was circulated. The dissenting opinion followed. The author assumes full responsibility for having through the opinion's inadequacy evidently led the author of the dissent to misunderstand completely the thrust of the court's opinion. A reference to the dissent's concluding paragraphs indicates that the dissent proceeds upon the theory that the primary basis for the court's opinion is the fact that the Union labeled its notice as one made in accord with 6 of the Railway Labor Code. This circumstance is mentioned in the opinion but it concerns no more than the intent with which the Union served its notice; there is no suggestion that its reference to 6 determined its character. 26 We stated and reemphasize the following propositions: 27 1. The original agreement was no part of the compulsory arbitration arrangement referred to in the cases cited in the earlier portion of this opinion. It was referred to as the 'White House Agreement' but it had no more impact or finality than any other collective bargaining agreement arrived at though negotiations between union and employer. 28 2. Section 6 of the Railway Labor Act (45 U.S.C. 156) provides for the very thing the Union was seeking here. To use the language of Elgin, J. & E.R. Co., v. Burley, supra, the Union was attempting 'the formation of collective agreements' and making 'efforts to secure' something it did not have. The issue was 'not whether an existing agreement controls the controversy.' The Union's efforts, its disputes, 'look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.' It is immaterial whether the previously existing collective bargaining agreement specifies a particular method of settling disputes such as that found in Article VII, which is quoted in the dissent; such a stipulation, like any other stipulation in a labor agreement, may be amended as positively provided in 6, and no act or agreement of the parties may limit, qualify or take away the right of one party to propose or attempt 'the acquisition of rights for the future'. 29 3. The provisions of 1 Article II of the original agreement, quoted above, are so indefinite that it is doubtful if it is susceptible of a meaningful interpretation. The only description it gives of lodging or allowances are found in the words 'suitable lodging' and 'equitable allowance.' In the nature of the case, these phrases suggest further negotiations between the parties. An adjustment board is in no position to define what is 'suitable' or 'equitable'. And the section itself says as much, when it says: 'Suitable lodging or an equitable allowance in lieu thereof shall be worked out on a local basis.' 'Worked out' surely means 'negotiated for'. And so the Union here, desiring to acquire specific 'rights for the future', made this specific proposal in its August 3 notice. It is not suggested that such a change or addition to the agreement could be accomplished by unilateral action. What 6 provides for is a means for proposing a change or, as stated in the Elgin case, supra, a mode for making efforts that 'look to the acquisition of rights for the future.' The Mediation Board may attempt to mediate any unresolved dispute over such a proposal (5; 45 U.S.C. 155) and attempt to induce the parties to arbitrate, failing which, in the absence of an Emergency Board (10; 45 U.S.C. 160) the parties are 'relegated to self-help' and free to exercise it. Brotherhood of Locomotive Engineers v. Baltimore & O.R. Co., supra, 372 U.S. at pp. 289-291, 83 S.Ct. 691. 30 4. Any other interpretation of the situation here would mean that the Union would be completely at the mercy of the Adjustment Board which would be at liberty under its compulsory arbitration powers to accept and enforce the contentions of the railroad regardless of what the Union may do or say. This is the interpretation insisted on in the dissent. The only reasonable interpretation of the facts and the law here is that the Union is not compelled to leave itself open to compulsory arbitration as to the meaning of indefinite terms like 'suitable' or 'equitable'. Therefore, under 6 of the Act the Union may seek a change in the terms of the original contract. 31 5. That is precisely what the Union sought here. The Union made the proposal which it had the statutory right to do. The proposal was that there be added to the contract which merely called for something 'suitable' or 'equitable' a new provision stating in specific and precise terms just what the Union members should be entitled to in respect to lodging. That what is proposed is not an interpretation but something new is plain from a reading of the terms stated by the Union. These provisions 'look to the acquisition of rights for the future'. These new terms called for a 'large single' room; 'well ventilated' rooms; 'heated' rooms; 'air conditioned' rooms; 'well finished wood or carpeted floors'; 'closet or large locker storage space'; 'chairs and dresser'; 'standard bed'; it specified a type of 'mattress and springs', 'linen to be changed', location 'not more than one-quarter miles', 'suitable transportation', 'call service', 'allowance of $6,00'. All these things are foreign to the paragraph of the original agreement which deals with the subjuct of lodging. In our view this is obviously something new. It is a change of the character contemplated by 6. 32 It appears to be implicit in the dissenting opinion that because of Article VII of the original agreement, or for some other reason, the Union had no right to make or propose a change in the working conditions in the respects here involved. That cannot be. 33 It follows from our holding that the dispute here involved was a 'major' one that the grant of an injunction was improper. 34 The judgment is reversed. DUNIWAY, Circuit Judge: 35 I dissent. In my opinion the dispute is a minor dispute falling under section 3, not a major dispute falling under section 6. I cannot quarrel with my brother Pope's opinion as an exercise in judicial logic. It says that the union's notice of August 3, which refers to section 6 of the Act, sought 'an intended change in agreements affecting rates of pay, rules, of working conditions' (section 6). Hence a dispute falling within section 6 was created. My difficulty is with his premise. It is a too simple solution of a complex problem. It seems to me to disregard what I consider basic, the language and the purpose of the 1964 White House Agreement, as well as the purpose of Sections 3 and 6. 36 Two provisions of that agreement, which was a nationwide settlement forlowing threat of a most serious nationwide strike, are particularly pertinent here. With specific reference to the away-from-home expenses of train crews, Article II, Section 1 of the Agreement provides: 37 'When the carrier ties up a road service crew (except short turnabout passenger crews), or individual members thereof, at a terminal (including tieup points named by assignment bulletins, or presently listed in schedule agreements, or observed by practice, as regular points for tying up crews) other than the designated home terminal of the crew assignment for four (4) hours or more, each member of the crew so tied up shall be provided suitable lodging at the carrier's expense or an equitable allowance in lieu thereof. Suitable lodging or an equitable allowance in lieu thereof shall be worked out on a local basis. The equitable allowance shall be provided only if it is not reasonably possible to provide lodging. 'If an allowance is being made in lieu of lodging as well as other considerations under provisions of existing agreements, the amount attributed only to lodging shall be removed if suitable lodging is supplied, or offset against an equivalent allowance. This shall be worked out on a local basis. 'The provisions of this section shall be made effective at a date no later than 30 days following the effective date of this Agreement.' 38 This was as definite a settlement of this issue, on a national basis, as could be made. Local conditions vary widely; therefore this provision was to be 'worked out' locally. But there is no indication that these matters were to be 'owrked out' outside the definitions and limitations laid down in the agreement itself: 'suitable lodging' or an 'equitable allowance,' and the latter 'only if it is not reasonably possible to provide lodging,' plus a requirement that existing allowance in lieu of lodging is to be removed if 'suitable' lodging is supplied. Under the agreement the carrier is required to provide lodging or an allowance. All that remains is to determine what lodging is 'suitable' and 'reasonably possible to provide,' and what allowance is 'equitable.' Surely this requires that when the parties undertake to work these matters out on a local basis, they do so within those definitions and limitations. To say that defining what lodging is 'suitable' and what allowance is 'equitable' under a given set of circumstances is not 'interpretation' within the meaning of section 3, is to me a far too restrictive view of what 'interpretation' means, in the context in which it is used in section 3. And to say that working out these matters is not 'application' within the meaning of section 3, is also, to me, a far too restrictive view of what 'application' means in that context. 39 I think that the parties to the White House Agreement intended that this type of dispute be a section 3 dispute. Article VII of that agreement provides: 40 'Any dispute involving the interpretation or application of this agreement shall be settled by the parties in accordance with the established procedures therefor, inclunding the creation of Special Boards of Adjustment and other procedures of Section 3 of the Railway Labor Act.' 41 What happened here is completely consistent with an attempt to interpret and apply Article II, Section 1 of the Agreement. Being unable to reach an agreement as to what lodging was 'suitable' and what allowance was 'equitable,' the carrier, by its July 24 notice, put into effect its version, which states what accommodations it will provide and what allowance in lieu thereof it will pay. The union's August 3 notice, while stated to be 'in accord with section 6', is in fact no more than a statement of its version of what shall constitute 'acceptable suitable lodging' and what shall be 'an equitable allowance.' These are the terms used by the union. They are also the terms used in Article II, section 1. They are nothing but an attempt to interpret and apply the White House Agreement. 42 The reference in the union's notice to section 6, when the notice itself discloses that that section is not applicable, cannot, in my opinion, change what is in fact a section 3 dispute into a section 6 dispute.1 This is because section 6 is applicable only if there is to be a 'change in agreements affecting rates of pay, rules, or working conditions'. Here the union can perhaps be said to have sought a change in 'rules' or 'working conditions,' and even in 'rates of pay' as to the in lieu allowance. But it sought them within the White House Agreement: it sought interpretation and application of that agreement; it did not seek a 'change in (that) agreement.' 43 I think that it is a disservice to the cause of peaceful settlement of railway labor disputes, as carefully worked out in section 3, to hold that a union can so easily escape its obligations by merely labelling a section 3 dispute a section 6 dispute. I also think that in the White House Agreement both parties agreed and intended that this dispute be a section 3 dispute, as is witnessed by Article VII. I do not think that the union should now be permitted, by a mere verbal device, to requdiate and dispute so important an agreement. 44 I would affirm. 1 The action was brought by Spokane, Portland & Seattle Railway Company, a Washington corporation, Oregon 'Trunk Reilway, a Washington corporation, and Oregon Electric Railway Company, an Oregon corporation. The last two companies were subsidiaries of the first one named. All there are referred to hereinafter as 'the reilroad' 2 Or where disagreement relates to changes of pay, rules, or working conditions as embodied in existing agreements. See Title 45 U.S.C. 152 Seventh, which reads as follows: 'No carrier, its officers, or agents shall change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements or in section 156 of this title.' 3 The Court described 'minor disputes' as follows: 'The second class, however, contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement, e.g., claims on account of personal injuries. In either case the claim is to rights accrued, not merely to have new ones created for the future.' 4 Counsel for the railroad have furnished us with an opinion of the District Court for the District of Minnesota in a case entitled Great Northern Railway Company v. Order of Railway Conductors and Brakemen, et al., dated March 9, 1966, and so far unreported. In that case, not distinguishable from this one, the court granted an injunction for reasons similar to those stated by the court below. Our decision here discloses that we connot agree with that decision either 5 This is readily understood when we recall that the 'White House Agreement' as framed was nation-wide covering many carriers. The possible desirability of modifications on separate reilroad systems seems apparent. Indeed, the very loose and very general language of the earlier agreement does not readily lend itself to 'interpretation' 1 'The voice is Jacob's voice, but the hands are the hands of Esau.' (Genesis XXVII, 22). Isaac was blind. This court is not, nor does the law require that it act as if it were

580 F.2d 1046 U. S.v.Kubit No. 77-1495 United States Court of Appeals, Second Circuit 5/9/78 1 S.D.N.Y. 2 DISMISSED* * Oral opinion delivered in open court in the belief that no jurisprudential purpose would be served by a written opinion. An oral opinion or a summary order is not citable as precedent. Local Rule Sec. 0.23

Case: 17-20204 Document: 00514567280 Page: 1 Date Filed: 07/23/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-20204 FILED Conference Calendar July 23, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. HERIBERTO RUBIO-GARCIA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:13-CR-630-2 Before KING, ELROD and WILLETT, Circuit Judges. PER CURIAM: * The attorney appointed to represent Heriberto Rubio-Garcia has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Rubio-Garcia has not filed a response. The issue of timeliness of Rubio-Garcia’s notice of appeal does not present a jurisdictional impediment to our consideration of the case, and we * 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: 17-20204 Document: 00514567280 Page: 2 Date Filed: 07/23/2018 No. 17-20204 pretermit the issue. See United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007). We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2 

870 F.2d 660 276 U.S.App.D.C. 246 MIDWEST ENERGY, INC., Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent,KN Energy, Inc., Intervenor. No. 88-1259.* United States Court of Appeals,District of Columbia Circuit. Argued Feb. 3, 1989.Decided Feb. 24, 1989. Dennis Lane, with whom Richard A. Solomon, Washington, D.C., was on the brief, for petitioner. David D'Alessandro also entered an appearance for petitioner. Richard Aylwin White, Atty., Federal Energy Regulatory Com'n ("FERC"), Washington, D.C., with whom Catherine C. Cook, General Counsel, and Joseph S. Davies, Deputy Sol., FERC, Washington, D.C., were on the brief, for respondent. Joel M. Cockrell and Hanford O'Hara, Attys., FERC, Washington, D.C., also entered appearances for respondent. John T. Miller, Jr., Washington D.C., was on the brief, for intervenor. Before RUTH BADER GINSBURG, SILBERMAN, and BUCKLEY, Circuit Judges. PER CURIAM: 1 Midwest Energy, Inc., petitions for review of a Federal Energy Regulatory Commission ("FERC" or "Commission") order construing section 104 of the Natural Gas Policy Act of 1978 ("NGPA"), 15 U.S.C. Sec. 3314 (1982). This section provides that, for natural gas "committed or dedicated to interstate commerce on November 8, 1978" for which a "just and reasonable rate under the Natural Gas Act [15 U.S.C. Sec. 717 et seq.] was in effect," id. Sec. 3314(a), the "maximum lawful price" shall be 2 the just and reasonable rate, per million Btu's, established by the Commission which was (or would have been) applicable to the first sale of such natural gas on April 20, 1977.... 3 Id. Sec. 3314(b)(1)(A)(i). FERC ruled that the section 104 ceiling price for pipeline-produced "old gas" (i.e., from wells drilled before January 1, 1973 or from leases acquired before October 7, 1969) was the national rate "established by the Commission" for independent gas producers as of April 20, 1977. See Order No. 391-B, 40 F.E.R.C. p 61,174 (Aug. 10, 1987). Midwest disputes FERC's interpretation, arguing that section 104's intended base price for pipeline-produced old gas is the rate in effect in April 1977 as calculated through the application of a "cost-of-service" methodology. For the reasons discussed below, we reject Midwest's contentions and enforce FERC's order. 4 A brief summary of the history of this case provides the necessary analytical framework. In Public Service Comm'n v. Mid-Louisiana Gas Co., 463 U.S. 319, 103 S.Ct. 3024, 77 L.Ed.2d 668 (1983), the Supreme Court held that Congress intended to include pipeline-produced gas in the NGPA's pricing scheme. Three years later, this court reversed FERC Rulemaking Orders No. 391, 28 F.E.R.C. p 61,263 (1984), and No. 391-A, 31 F.E.R.C. p 61,036 (1985) (denying petition for rehearing), on the ground that the Commission had erred in concluding that Mid-Louisiana required FERC to rule that pipeline-produced old gas prices must be based on the pre-NGPA national rates applicable to independent producers. Phillips Petroleum Co. v. FERC, 792 F.2d 1165 (D.C.Cir.1986). 5 In Phillips, we determined that section 104 was "ambiguous," and that under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 843-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), our review was limited to determining whether the agency's interpretation represented " 'a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute.' " 792 F.2d at 1169 (quoting 467 U.S. at 845, 104 S.Ct. at 2783). Chevron deference was deemed inappropriate, however, because the Commission's decision was based not on its construction of its governing statute but on an erroneous view of the law. Id. at 1169-70, citing SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). We remanded to enable FERC to reconsider the competing interpretations of section 104 and instructed the Commission, in resolving that provision's ambiguity, to exercise its own judgment and to offer a reasonable explanation for its interpretation, rather than relying on a misreading of Mid-Louisiana. Id. at 1171-72. 6 On remand, FERC fully complied with our guidelines by supplying a well-reasoned explanation to support its conclusions. Emphasizing that section 104(b)(1) mandated application of the "just and reasonable rate ... established by the Commission" on April 20, 1977, FERC noted that as of that date the Federal Power Commission ("FPC") had only "established" wellhead rates for independent producers' gas at a national or area level. Instead of establishing a pipeline producer's unit rate per million Btu's of wellhead production, the FPC had simply approved a pipeline's proposed rate after evaluating the "prudence" of its overall production costs--including the cost-of-service "price" as measured by total pipeline sales. 40 F.E.R.C. at 61,544. 7 Thus, FERC concluded that the Commission had never "established" any "just and reasonable" rate that would be "applicable" to pipeline production of old gas on April 20, 1977. FERC construed section 104's parenthetical phrase, "or would have been [ ] applicable," as "intended to apply the rates established for independent producers to all pipeline-produced gas." Id. at 61,545. The Commission justified its interpretation as consistent with Congress' intent in the NGPA to put pipeline production "on the same footing as all other production." Id. at 61,545-46, citing Mid-Louisiana, 463 U.S. at 333-37, 103 S.Ct. at 3032-35. 8 We conclude that FERC's independent construction of section 104 is "permissible" under Chevron and that the Commission's rationale adequately supports its decision. FERC's only error, which we find non-essential to its analysis, is the assertion that Congress intended the parenthetical phrase to permit the Commission to apply national rates to pipeline producers. Here FERC relies on bootstrap construction: the clause was intended to permit application of national rates because Congress intended section 104 to have that result. This seemingly enigmatic clause is susceptible of altogether sensible interpretation. Midwest offered two explanations. First, the clause corrected two possible anomalies in NGPA pricing. See Petitioner's Brief at 25-27, citing 124 Cong.Rec.H. 13,117 (Oct. 14, 1978) (statement of Rep. Dingell) (phrase applies to two types of gas: gas from wells commenced after January 1, 1975 subject to FERC Opinion No. 770-A, and gas whose contractual price was lower than the 1977 "just and reasonable" rate). Even more persuasively, Midwest maintained that 9 section 104 applies to any natural gas committed or dedicated to interstate commerce on November 8, 1978. For natural gas committed to interstate commerce after April 20, 1977 and before November 8, 1978, obviously no just and reasonable rate was applicable to the sale of gas on April 20, 1977. Thus, ... the "would have been" language was included merely to ensure that natural gas produced after April 20, 1977, but before November 8, 1978 was covered by section 104. 10 Phillips, 792 F.2d at 1172. 11 This single flaw in FERC's rationale, however, does not render its opinion fatally defective. We find sufficient the Commission's justification that Mid-Louisiana confirmed Congress' intent that section 104 apply to pipeline producers. Congress, however, did not specify the means of accomplishing this goal. In light of FERC's conclusion that it had not established "just and reasonable" wellhead rates for pipeline-produced gas, it was reasonable for the Commission to apply the objective national standards that had been established for comparable gas produced by independent producers as the ceiling price under section 104. 12 Midwest has failed to demonstrate that FERC's construction of this NGPA provision is impermissible. Midwest concedes that section 104 does not identify the price applicable to pipeline-produced "old gas," but nonetheless insists that Congress could only have intended for FERC to employ traditional cost-of-service ratemaking in determining this price. As discussed above, however, the Commission's interpretation is equally (perhaps more) reasonable, and under Chevron we must defer to the agency. 13 As the Commission has provided a reasoned explanation for its construction of section 104, we deny Midwest's petition for review of FERC's Order No. 391-C, 42 F.E.R.C. p 61,145 (Feb. 3, 1988) (denying Midwest's petition for rehearing of Order No. 391-B, 40 F.E.R.C. p 61,174 (1987)). 14 So ordered. * This and a companion case, Midwest Energy, Inc. v. FERC, No. 88-1500, were adjudicated in an unpublished judgment and memorandum issued February 24, 1989, 868 F.2d 458. Because the instant case involves a question of statutory interpretation that may be of general interest, we determined that the relevant text of the memorandum warranted publication as a separate opinion

56 F.3d 1391 Cargilev.Horton Homes, Inc.* NO. 94-8664 United States Court of Appeals,Eleventh Circuit. May 15, 1995 1 Appeal From: M.D.Ga., No. 92-00041-5-CV-3-MAC, 851 F.Supp. 1575 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

441 P.2d 950 (1968) Maxine GRENARD and Phyllis Riley, Plaintiff in Error, v. Frank E. McMAHAN, Defendant in Error. No. 41862. Supreme Court of Oklahoma. May 21, 1968. Rehearing Denied June 18, 1968. Crandall & Lacy, Oklahoma City, Emerson R. Phillips, Pawnee, for plaintiffs in error. Carl D. McGee, Pawnee, for defendant in error. DAVISON, Justice. Maxine Grenard and Phyllis Riley (defendants below) appeal from a judgment in favor of Frank E. McMahan (plaintiff below) adjudging a warranty deed invalid and void. The parties will be referred to by their trial court designation. The dispute was presented to the lower court under a stipulation of facts. The property involved is a town lot and house located in Skedee, Pawnee County, Oklahoma. The title to this property was formerly held by Lula Ellen Bradley, who acquired the same from her brother. In December, 1963, Mrs. Bradley, while owner of the property, married the plaintiff and they occupied the property as their homestead. On April 13, 1965, Mrs. McMahan executed a warranty deed conveying the property. The deed was recorded on the same date. By the terms of the deed a life estate was given to her husband (plaintiff), and upon his death the property was to go to the defendants, who were Mrs. McMahan's daughters by a prior marriage. Mrs. McMahan died June 7, 1965. It was stipulated that the property was the homestead of plaintiff and his wife on the date of the deed; that plaintiff did not subscribe the deed; and that the deed was made *951 and recorded without the consent of plaintiff. The trial court found and decreed that the deed was not made and executed in accordance with the statutes, and was invalid, and canceled the deed. Defendants contend and argue the deed is valid on the ground that it falls within the category of a conveyance of the homestead from one spouse to the other. Defendants also make some argument that the deed gives the plaintiff the equivalent of his homestead rights to occupy the property after his wife's death. Defendants cite Hall v. Powell, 8 Okl. 276, 57 P. 168; Brooks v. Butler, 184 Okl. 414, 87 P.2d 1092, and Howard v. Stanolind Oil & Gas Co., 197 Okl. 269, 169 P.2d 737, for the proposition that a deed or mortgage of the homestead from one spouse to another is valid even though the instrument is not subscribed by both. Admittedly, this is the holding in the cited cases, and they are correct under the facts therein stated where no conveyance of the homestead was made to third persons. They are not applicable to the present situation. In the instant case the deed is a conveyance to third persons and, as such, is a deed relating to the homestead. The Oklahoma Constitution, Art. 12, Sec. 2, provides that no conveyance of the homestead shall be made without the consent of his or her spouse, given in such manner as may be prescribed by law. Title 16, O.S. 1961, § 4, provides in part as follows: "* * * and no deed, mortgage or contract relating to the homestead exempt by law, except a lease for a period not exceeding one (1) years, shall be valid unless in writing and subscribed by both husband and wife, where both are living and not divorced, or legally separated, except to the extent hereinafter provided. * * *" (emphasis added) In Atkinson v. Barr, Okl., 428 P.2d 316. 319, it is stated: "It is well established in this State that a homestead estate, whether legal or equitable, cannot be alienated by the owner, if married, unless his or her spouse joins in the instrument of conveyance or assignment, and the attempted conveyance without such joinder is void. Montgomery v. Wise, 179 Okl. 247, 62 P.2d 647; Standard Savings & Loan Ass'n v. Acton, 178 Okl. 400, 63 P.2d 15; Keel v. Jones, Okl., 413 P.2d 549." It is our conclusion that the warranty deed was void because plaintiff did not sign it and such conclusion and judgment of the trial court was correct. Defendants also urge the plaintiff had no homestead rights in the property during the lifetime of his wife (Lula). Defendants make this contention despite the fact that they stipulated the property was the homestead of plaintiff and Lula. The lower court found the property was their homestead at the time of the execution of the deed and on this ground held the deed was invalid. Defendants cite cases (Richards v. Inman, Okl., 294 P.2d 818, and In re Musselman's Estate, 167 Okl. 560, 31 P.2d 142) to support their contention. These cited cases involved the probate homestead and the right of the surviving spouse to thereafter occupy the homestead. They are not in point on the question of existence and occupancy of the homestead during the life of both spouses. In the present case the constitutional homestead is involved, together with the acts and formalities required for conveyance of the homestead. The constitutional homestead is the land itself which is occupied by the family as a home. First Nat. Bank of Sentinel v. Anderson, 206 Okl. 54, 240 P.2d 1066, 1069. The parties stipulated the property was a homestead and we are not referred to any facts showing the contrary. The judgment of the lower court is affirmed. All the Justices concur.

645 F.Supp. 1055 (1986) In re Criminal and Civil Contempt Proceedings Against Arthur N. ECONOMOU. SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. The AMERICAN BOARD OF TRADE, INC., Arthur N. Economou, Phyllis H. Economou, and the American Board of Trade Service Corp., Defendants. No. 83 Civ. 6213 (SWK). United States District Court, S.D. New York. October 8, 1986. As Amended October 22, 1986. Arthur N. Economou, New York City, pro se. Ira Lee Sorkin, New York City, for S.E.C. Milton Gould, Interim Receiver, New York City. MEMORANDUM OPINION AND ORDER KRAM, District Judge. This criminal and civil contempt proceeding arises out of a civil action brought by the Securities and Exchange Commission ("SEC") against the American Board of Trade, Inc. ("ABT"), Arthur Economou, Phyllis Economou, and the American Board of Trade Service Corp. ("ABTS") to enjoin the sale of unregistered commercial paper by the defendants. The Court brought on this proceeding sua sponte after Mr. Economou made statements to the Court and to the Interim Receiver indicating that he had violated Court orders. On September 2, 1986, this Court gave notice to Mr. Economou, pursuant to Fed. R.Crim.P. 42(b), that it would conduct a hearing on September 8, 1986, to determine whether to hold him in criminal contempt for violation of this Court's orders. 18 U.S.C. § 401(3). Specifically, the Court charged Mr. Economou with violating two of its orders. First, it charged Economou with violating its order of May 30, 1986 prohibiting ABT from redeeming commercial paper. Second, it charged Economou *1056 with violating its order of August 15, 1986 prohibiting the expenditure of ABT's commercial paper assets without approval from then Special Master Milton Gould. The Court also informed Mr. Economou that it would consider at the hearing whether to hold him in civil contempt as well. Mindful that Mr. Economou had been proceeding pro se in the civil action brought by the SEC, the Court also suggested that Mr. Economou retain counsel to defend himself against the contempt charges. Mr. Economou, however told the Court he preferred to proceed pro se. On September 8, 1986, the morning the contempt proceedings were scheduled to begin, Mr. Economou informed the Court he did not understand the nature of the proceedings against him. The Court again informed Mr. Economou that he had a right to be represented by counsel, and suggested that he retain counsel. The Court also told Mr. Economou that it could appoint a lawyer to represent him if he could not afford counsel. Mr. Economou stated he could afford counsel but asked that counsel be appointed for him. He argued that since the Government had brought the civil action out of which this contempt proceeding arose, it was obliged to provide him with counsel in the contempt proceeding.[1] Mr. Economou also indicated that even if counsel were appointed, he would only use counsel to "assist" him, and would continue to represent himself pro se.[2] The Court agreed to adjourn the hearing, and sent Mr. Economou to the Magistrate's part to seek CJA counsel.[3] Mr. Economou, however, failed to disclose information about the value of his assets on the CJA affidavit. The Court held a conference on September 9, 1986, and informed Mr. Economou that since he had refused to fill out the affidavit, CJA counsel would not be appointed for him. The Court adjourned the contempt hearing once again, and advised Mr. Economou that if he did not retain counsel, he would have to proceed pro se. The hearing on the contempt charges finally commenced on September 11, 1986.[4] Mr. Economou appeared without counsel, and once again, the Court informed him that he should retain counsel to represent himself. The Court also described the ways in which counsel could assist Mr. Economou. Once again, however, Mr. Economou stated that he desired to proceed pro se. The Court, after further questioning Mr. Economou about his decision, found that his desire to proceed pro se was knowing and voluntary. The Court then informed Mr. Economou of his Fifth Amendment rights, the burden of proof in a criminal case, and his rights to introduce or object to evidence and to confront any witnesses against him. The Court conducted the hearing on September 11, 16, 17, and 22, 1986. The Court *1057 heard extensive testimony from Mr. Economou, Mrs. Economou and Benjamin Bayoneto, ABT's accountant.[5] The Court had an opportunity to observe their demeanor and assess their credibility. The following constitutes the Court's findings of fact and conclusions of law. I. CRIMINAL CONTEMPT In order to determine whether Mr. Economou is guilty of criminal contempt, the Court must find beyond a reasonable doubt that the Court gave Mr. Economou a clear order, that Mr. Economou had actual knowledge of the order, that Mr. Economou violated the order, and that Mr. Economou acted willfully and knowingly in disobeying the order. A. Count 1 The Court's first charge against Mr. Economou is that he violated this Court's order of May 30, 1986, prohibiting him from redeeming commercial paper. On May 30, 1986, this Court entered an order in the underlying civil action which states in pertinent part: "the Court orders defendants to cease the redemption of maturing commercial paper immediately." (Court Exhibit 1.) On July 18, 1986, the Court of Appeals for the Second Circuit issued an order which reads in pertinent part: "[o]n June 10, 1986, we granted [ABT's] motion for a stay pending an appeal of the District Court's order enjoining all redemptions and sales of unregistered notes by defendants. That stay is hereby lifted." (Court Exhibit 2.) The orders of both this Court and the Court of Appeals are clear and unequivocal. Both order ABT, ABTS, and Mr. and Mrs. Economou to cease the redemption of commercial paper immediately. Thus, as of July 18, 1986, Mr. Economou was prohibited from redeeming commercial paper. *1058 This Court informed Mr. Economou personally of its May 30 order. Mrs. Economou testified that she learned of the Second Circuit's order by telephone on July 18, 1986, and informed Mr. Economou of the order on the same day. Mr. Economou testified he knew of both orders as well. Mr. Economou, in fact, did not place his knowledge of the orders in issue. Mr. Economou does not dispute that commercial paper was redeemed after July 18, 1986. In fact, he submitted an affidavit to the Court which states that the commercial paper of 34 customers was redeemed after July 18, 1986, and lists the precise amount of each redemption. See Declaration of Arthur N. Economou in opposition to the motion by the Securities and Exchange Commission for the appointment of a receiver, ¶ 7 and Exhibit E. The exhibit indicates that $175,000 was redeemed. Mr. Economou claims, however, that he personally did not disobey the order. Mr. Economou relies strongly on Mrs. Economou's testimony that she alone decided to redeem the commercial paper. This testimony contradicts her own testimony as well as other evidence in the case. Mrs. Economou, Mr. Economou, and Benjamin Bayoneto each testified that Mrs. Economou told Mr. Economou after July 18, 1986 that she was redeeming paper, and that Mr. Economou approved what she was doing. The evidence also indicates that Mrs. Economou and Mr. Economou both decided to redeem the paper in the first instance. While Mrs. Economou developed and implemented the plan for redemption, it is clear from the evidence that Mr. Economou approved the redemption, and that the redemption would not have occurred without Mr. Economou's approval. Furthermore, the evidence indicates that Mr. Economou knew commercial paper was being redeemed and could have prevented it.[6] Thus, he disobeyed and disregarded the Court orders prohibiting redemption. Mrs. Economou's testimony that she alone decided to redeem ABT commercial paper also contradicts a sworn statement Mr. Economou made in a prior proceeding. Mr. Economou, responding to the Court's question about the redemption of commercial paper after July 18, 1986, stated "I did it....". (Court Exhibit 3.)[7] Mrs. Economou's statement that she alone decided to redeem the paper is further brought into question by her interest in protecting her husband. Of course, she was placing herself in jeopardy by testifying as she did, but the Court finds that her demeanor and evasiveness while testifying about Mr. Economou's role in the redemptions indicate that she was attempting to protect her husband. In short, the Court finds that based on all the evidence adduced at this hearing, Mr. Economou himself disobeyed the Court's order by redeeming commercial paper after July 18, 1986. Regarding the fourth element, that Mr. Economou acted knowingly and willfully when he disregarded the Court order prohibiting the redemption of commercial paper as of July 18, 1986, Mr. Economou essentially asserts the defense of good faith compliance with the order. The testimony indicates that on June 30, 1986, the SEC, the U.S. Attorney, and the Post Office, acting pursuant to a search warrant, seized all of ABT's records. Included in those records were disposition instructions for commercial paper scheduled to mature in the near future. Without disposition instructions, ABT could not redeem paper as it came due. On July 18, 1986, when the Second Circuit affirmed this *1059 Court's stay on redemptions, ABT had not yet redeemed any paper that came due between July 1, 1986, and July 17, 1986 if the disposition instructions had been seized. Nevertheless, Mr. and Mrs. Economou, claiming that they believed this stay did not apply to commercial paper which had matured prior to July 18, 1986, but which was not redeemed prior to July 18, redeemed this paper after July 18, 1986. It is clear the Economous understood that the order prohibited the redemption of commercial paper as of July 18, 1986. The redemption checks for the paper redeemed after July 18, 1986 are backdated to the date the paper matured. ABT did not redeem commercial paper that matured after July 18, 1986, regardless of whether the disposition instructions had been seized. Finally, ABT did not redeem commercial paper which matured before July 18 if disposition instructions were received after July 18. It is clear from the evidence that Mr. Economou knowingly and willfully violated clear orders of this Court and the Second Circuit prohibiting the redemption of commercial paper as of July 18, 1986. He understood the order, and consciously disobeyed it. Even if Mr. Economou did, in fact, construe the Second Circuit order in the way he claims, he did not act in good faith in violating the order. He did not seek the Court's permission to redeem the paper that matured prior to July 18, 1986, but for which the disposition instructions were unavailable until after July 18, 1986. Nor can he argue that the orders were subject to the interpretation he gave them. The letter of the orders clearly prohibit the redemption of commercial paper without exception. The purpose of this Court's order prohibiting the redemption of paper — of which Economou was aware — was to prevent the further depletion of ABT commercial paper assets, and to allow the fairest distribution possible of ABT assets to commercial paper holders should ABT's business ultimately be terminated. In light of this, Mr. Economou's interpretation of this Order is wholly unjustified.[8] The Court thus finds Economou guilty, beyond a reasonable doubt, of criminal contempt on the first count. B. Count 2 On August 15, 1986, the Court issued two orders, the first freezing all of ABT's commercial paper assets, and the second prohibiting the disbursement of these assets without permission from the Master. (Court Exhibits 3 and 4.) Economou testified, and the Court finds, that despite his knowledge of this order, he willfully and knowingly ordered the expenditure of ABT commercial paper assets for the distribution of Bulletin No. 2 on August 19, 1986. (Court Exhibit 6.)[9] *1060 Economou defended these expenditures as follows. First, he testified that he did not use ABT funds for postage but rather used credit on a postage meter used by one of ABT's affiliates. The Court finds that credit on a postage meter is an asset. Mr. Economou also testified that he personally intended to pay for the printing and envelope expenses. He testified that the bill for printing arrived after he sent out the Bulletin, and that he paid it. The testimony indicates that postage and printing cost $2,600 each. Mr. Economou also testified that the bill for the envelopes has not yet arrived. Mr. Economou's testimony regarding his intentions is belied by the fact that he used ABT funds to pay the postage. Furthermore, even if the Court believes his testimony, which it does not, it is clear that $2,600 in ABT funds was expended on mailing Bulletin No. 2. The Court thus finds Economou guilty, beyond a reasonable doubt, of criminal contempt on the second count. Sentencing on both counts is reserved pending a further hearing. II. CIVIL CONTEMPT The Court has already concluded that Mr. Economou violated its clear orders, and has found him guilty of criminal contempt on both counts. Economou's violations are particularly disturbing to the Court. By redeeming commercial paper after July 18, 1986, Economou depleted the pool of money that would be available to commercial paperholders should ABT be wound-down. The assets used for Bulletin No. 2 similarly would have been used to compensate paperholders. In order to remedy this contempt, the Court orders Economou to repay to ABT's commercial program, out of his personal assets, all assets expended in violation of this Court's orders. This totals approximately $175,000 for the commercial paper that was redeemed illegally, and at least $7,800 for the mailing of Bulletin No. 2.[10] SO ORDERED. NOTES [1] The Court found the argument that counsel should be appointed for Economou simply because the Government had brought a civil action against him frivolous, and refused to appoint counsel. Furthermore, the criminal contempt proceeding was brought on by the Court, not the SEC. [2] Mr. Economou's intentions in retaining counsel for "assistance" as opposed to representation raised questions in the Court's mind as to the seriousness of his request for counsel and counsel's potential effectiveness. The Court recognizes that Mr. Economou has represented himself throughout the civil proceeding. He has appeared and argued in court, filed affidavits, exhibits, and legal briefs, and has been an effective and independent advocate. He has consistently stated that he performs better without counsel. Although a criminal case differs from a civil case, it is clear to the Court that Mr. Economou is knowledgeable about the law and able to defend himself. [3] Although Mr. Economou told the Court that he could afford counsel, and Mrs. Economou has stated on the record that they have substantial savings, the Court felt it should allow Economou an opportunity to show he was eligible for counsel under Section VI. B of the Southern District's Revised Plan for Furnishing Representation Pursuant to the Criminal Justice Act. [4] At the hearing, the Court examined Mr. Economou regarding the charge against him and introduced exhibits. The Court also asked the SEC and the Receiver to examine Mr. Economou, examine any other relevant witnesses, and present any evidence in their possession. The Court did not appoint the SEC or the Receiver as private prosecutors in this proceeding. [5] During the course of the hearing, a number of issues arose which merit discussion. First, Mrs. Economou, who is a defendant in the civil action, had been represented therein first by Paul Batista and then by the law firm of Comer and Myerson, both of whom were released and relieved as counsel prior to the contempt hearing. She thus began to represent herself pro se. When the Court learned Mrs. Economou planned to testify on Mr. Economou's behalf, the Court advised her to retain counsel. She did not, however, retain counsel, and she testified without counsel on September 16, 1986. On September 17, Mrs. Economou notified the Court that she wished to retain counsel. The Court agreed to adjourn her cross-examination until September 18, so that she could hire an attorney. On September 18, Mrs. Economou appeared in Court with an attorney, who requested a further adjournment of the hearing so that he could prepare. The Court granted the adjournment until September 22. On September 22, Mrs. Economou's counsel requested that her testimony be stricken from the record since she was not represented by counsel when she gave it. The Court denied that request, ruling first, that because Mrs. Economou was not a defendant in the contempt proceeding, she was not entitled to counsel, and second, that she had waived any right to have counsel present during her direct testimony by testifying after the Court advised her to retain counsel. Finally, in the middle of Mrs. Economou's cross-examination, her attorney suggested she should assert her Fifth Amendment privilege. The Court ruled that if she did assert such a privilege, the Court would not compel her to testify. Nevertheless, Mrs. Economou continued to answer questions. Second, Mr. Economou sought to examine several witnesses during the course of the contempt proceedings, including Receiver Milton Gould, his associate, his secretary, and various SEC attorneys. The Court asked Mr. Economou for a proffer of evidence as to each witness, and found that the testimony would be irrelevant, and prohibited the testimony. Third, during the course of the proceedings, the Court learned that Mr. Economou sent a third Bulletin to commercial paper holders disparaging the Court. The Court warned Mr. Economou that even though he is not an attorney, he is representing himself in this case, and the Court would hold him to the same standards expected of an attorney. The Court warned Economou to cease the disparaging communications. Based on the Court's awareness of Mr. Economou's derogatory statements, Mr. Economou asked the Court to recuse itself in the contempt proceeding. The Court refused, indicating that these remarks did not prejudice the Court's consideration of the charges against him and that the Court was not trying Mr. Economou for making the disparaging remarks. Fed. R.Crim.P. 42(b). Fourth, Mr. Economou has released counsel for ABT and ABTS, the corporate defendants in the underlying civil action. He has not retained new counsel for them. In light of these actions, the Receiver has indicated that he will either retain counsel for the corporate defendants or represent their interests himself. [6] The Court has also had an opportunity to learn about ABT's business and observe Mr. Economou through its close monitoring of this case over the last three years. Mr. Economou has been in Court and testified at countless hearings and conferences, and has submitted many affidavits to the Court. It is clear to the Court that Mr. Economou, as president and founder of ABT, is involved in all the significant decisions regarding ABT. The decision to redeem $175,000 worth of commercial paper after the freeze on redemption was in place is certainly a significant decision. [7] This statement is admissible against Mr. Economou pursuant to Fed.R.Evid. 801(a)(2). [8] Mr. Economou makes much of the fact that in affirming this Court's preliminary injunction against the issuance or redemption of commercial paper, the Second Circuit criticized the U.S. Attorney for failing to inform the Magistrate that a stay was in place, and ABT was operating as an ongoing business. The Second Circuit indicated that in light of this, the Magistrate might have ordered that the records be copied. Mr. Economou's reliance is misplaced, however, as the Second Circuit's opinion was issued well after his decision to redeem the paper. Furthermore, as mentioned earlier, Mr. Economou should have sought guidance from this Court before he redeemed the paper. [9] During the course of the hearing, evidence was disclosed that ABT issued a number of other communications to shareholders without prior authorization for the disbursement from Mr. Gould. One of these, Bulletin No. 3, contained disparaging remarks about the Court, as described earlier. It also contained a number of blatant misrepresentations about the course and status of the underlying litigation. The Receiver informed the Court that hundreds of noteholders were contacting him, and based on the false statements contained in Bulletin No. 3, were very confused about the true status of the litigation. Based on that, the Court prohibited ABT, and Mr. and Mrs. Economou personally, from distributing any further bulletins or written notices to commercial paperholders without prior review by the Receiver. The Court, in making this decision, was fully aware of Mr. Economou's First Amendment rights, but believed that prior authorization was the only way to prevent further false and disruptive communications to noteholders. [10] In order to remedy the contempt for mailing Bulletin No. 2, Mr. Economou may pay $2,600 for the postage or offer documentary proof that he has paid for it, and offer documentary proof to the Court that he has personally paid for the printing and the envelopes. The Court orders Mr. Economou to submit a proposed payment schedule and an affidavit describing all of his personal assets, wherever located and in whatever form.

319 So.2d 760 (1975) Richard VAN NOSTRAND v. STATE. 8 Div. 637. Court of Criminal Appeals of Alabama. October 1, 1975. J. R. Brooks, Jr., Huntsville, for appellant. William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State. HARRIS, Judge. Appellant was indicted for the possession of 70 pounds of marihuana. He was also indicted for maintaining a dwelling house, located at Route 5, Huntsville, Alabama, where persons resorted to for the purpose *761 of using controlled substances. At arraignment, attended by counsel, he pleaded not guilty. The jury returned a verdict finding the defendant guilty of possession of marihuana for personal use. The trial court sentenced appellant to one year in the Madison County Jail. The evidence is uncontradicted that appellant, his wife and one William James Hillenbrand jointly rented the house located at the above address. It is further uncontradicted that on July 6, 1973, the officers went to this house armed with a search warrant and made a thorough search of the house. Upon arriving at the house they saw appellant walk off the porch and go to a blue Volkswagen. They saw appellant's wife at the front door. The officers identified themselves by showing their badges and they told appellant they had a search warrant to search the house. Appellant walked with officers to the house and his wife slammed the door and went back in the house. One of the officers went after her and she pointed a pistol directly on this officer. The officer took the pistol out of her hand and carried her into the living room. The officers found the southwest bedroom door locked. They knocked on the door but got no response. They forced the door open and found Hillenbrand in bed and saw his personal effects in this room. They conducted a search of this room and found one large plastic trash bag, approximately 20 gallon size, with ten packages inside, weighing about two pounds each, containing green vegetable material believed to be marihuana. They found another large trash bag containing nine packages weighing approximately two pounds each, enclosing a green vegetable material believed to be marihuana. They found four large grocery bags containing green vegetable material, weighing about five pounds each, believed to be marihuana. In this same room they found a set of scales, a Browning automatic weapon, a Winchester pump shot gun, and six roaches with green substances believed to be marihuana. In the southeast bedroom, the one occupied by appellant and his wife, they found a few roach clips, two small plastic bags containing green vegetable material believed to be marihuana, a small tin can, about two inches high, with vegetable material believed to be marihuana, a glass jar containing roaches believed to be marihuana and a cigarette roller. In the middle bedroom the officers found one roach containing vegetable material believed to be marihuana. In the middle east bedroom they found one roach containing vegetable matter believed to be marihuana and an ashtray on a chest. They also found three more roaches in a paper bag on the floor in front of the chest. In the living room they found one roach in the ashtray containing vegetable matter believed to be marihuana and another one in an ashtray on top of the television set. Deputy Sheriff Pat Edwards testified that he was employed by the Madison County Sheriff's Department and that on July 5, 1973, he participated in the "stake out" of the location on Smith Road in Madison County. He stated that he viewed the house occupied by appellant and his wife and Hillenbrand and that at approximately 11:20 on the night of July 5, a red pickup truck drove into the driveway of this residence. He saw two occupants of the truck carry two large plastic bags to the porch. A girl opened the door and a male having long blonde hair pulled the bags in the house and the lights went off in the house again. This witness stated that Hillenbrand has long blonde hair. Edwards was the officer who executed the search warrant. He said they found about 58 pounds of marihuana in the room occupied by Hillenbrand. Mr. Robert M. Patterson testified that he was employed by the State of Alabama, *762 Department of Public Safety, Bureau of Investigation, Narcotics Unit. He participated in the search on the morning of July 6, 1973. He stated that in the southeast bedroom they found two plastic bags of marihuana. He also saw several grocery type bags of marihuana in the southwest bedroom. After the search the officer arrested appellant, his wife and Hillenbrand and gave each of them the Miranda rights and warnings. Mr. John Kilbourne testified that he was employed by the State Department of Toxicology and Criminal Investigation and had been so employed for six years. After stating his education and background experience, he testified that he received from Officer Allen Adair one brown bag containing plant material, one manila envelope containing two plastic bags containing plant material, one plastic bag containing plant material and one manila envelope containing a metal tin can which contained plant material. He testified that their evidence was turned over to him on July 9, 1973, and he put it in a locker to which he had the only key; that on September 19, 1973, he removed this material from the locker and performed a microscopic examination and a microchemical test to determine the contents. He stated he had performed many thousands of such tests. He determined the contents of the evidence submitted to him to be marihuana. There was other testimony that this evidence came from the southeast bedroom occupied by appellant and his wife. This evidence was subsequently introduced during the trial. At the conclusion of the state's case appellant made a motion to exclude the state's evidence. This motion was overruled. Hillenbrand was indicted, separately, for the same offenses as appellant. He made application to be treated as a youthful offender. His application was granted and he pleaded guilty to possessing the marihuana found in his room. He was convicted of being a youthful offender and applied for probation. His application for probation had not been decided prior to appellant's trial. He was out on bond and testified at appellant's trial. According to his testimony all of the marijuana found in his room belonged to him and that appellant had no interest in it. On cross-examination he testified that he and a man in a pickup truck brought the marihuana to this house between eleven and twelve o'clock on the night of July 5, 1973. He admitted that appellant and his wife knew he was going to bring the marihuana there that night. That appellant opened the door, but he was vague as to whether appellant helped him carry the marihuana to his room. From the record: "Q If it was dragged back there, who helped you drag it back into your room? A I am not really sure. I couldn't swear to who helped me. Q Didn't Ricky help you put it back there? A I couldn't say for sure. I don't believe so. Q But he could have? A He could have, yes. I don't know that he did. Q And there was other marijuana in the house at that time also, wasn't there? A Yes. Q In fact, there was a little bit of marijuana or some quantity of marijuana in every room, wasn't there? A Yes. Q And wasn't marijuana frequently smoked there by people that lived there and also by people that came there? A Yes. *763 Q Weren't there a lot of partially smoked marijuana cigarette butts around the house also? A Probably." He further admitted that appellant and his wife were living in this house and had been living there about two weeks; that they contributed to the payment of the rent and paid their share of the rent directly to him. Appellant testified in his behalf. He stated that none of the marihuana found in Hillenbrand's room belonged to him. On cross-examination he admitted ownership of the marihuana found in the southeast bedroom occupied by him and his wife. He admitted that he contributed toward the payment of the rent on the house and he gave the money to Hillenbrand the day they moved in. He further admitted that he knew that Hillenbrand was going to bring marihuana to the house on the night of July 5, 1973. He stated that the day they moved in they brought the majority of their personal belongings. He admitted smoking marihuana and stated that some of the partially smoked cigarettes found by the officers around the house might have been his. In Daniels v. State, 49 Ala.App. 654, 275 So.2d 169, this court said: "In a prosecution for unlawful possession of narcotics it is not necessary to prove manucaption but constructive possession may be shown, and where such possession is relied upon the State must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520; Spruce v. State, 43 Ala.App. 487, 192 So.2d 747. See cases in 16 Alabama Digest, Poisons. Such guilty knowledge may be established by circumstantial evidence and guilt does not necessarily depend upon ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761." The verdict of the jury finding appellant guilty of possessing marihuana for personal use had the effect of acquitting him of the felony charge of possession of marihuana and of maintaining a dwelling where persons resorted to buy or use controlled substances. Appellant admitted ownership of all the illegal drugs found in his room by the officers executing the search warrant. It is sufficient to prove so much of an indictment as shows that the defendant has committed a substantial offense specified therein. Owens v. State, 291 Ala. 107, 278 So.2d 693; Taylor v. State, 47 Ala. App. 285, 253 So.2d 354. Possession of marihuana for personal use, a misdemeanor, is a lesser included offense under an indictment charging possession of marihuana which is a felony. Powers v. State, 49 Ala.App. 690, 275 So.2d 369. In Parks v. State, 46 Ala.App. 722, 248 So.2d 761, this court held: "The offense of possession of illegal drugs is susceptible of joint commission. Green v. State, 30 Ala.App. 94, 2 So.2d 324; Gunnells v. State, 21 Ala.App. 648, 111 So. 320. Further the guilt of the accused does not necessarily depend upon proof of his ownership of the drugs. Womack v. State, 34 Ala.App. 487, 41 So.2d 429; Thompson v. State, 32 Ala. App. 402, 27 So.2d 55. However, there must be evidence from which the jury might conclude beyond a reasonable doubt that defendant knew of the presence of the drugs. Such guilty knowledge may be established by circumstantial evidence. Womack v. State, supra; Thompson v. State, supra." See also Miller v. State, 51 Ala.App. 303, 285 So.2d 113, Certiorari denied. 291 Ala. 793, 285 So.2d 117. The evidence in this case leaves no lingering doubt that appellant was fully aware that the house he was living in was *764 completely saturated with marihuana, smoked and unsmoked, and this by his own admissions. Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the state's evidence, the refusal to give the affirmative charge and the overruling of a motion for a new trial, does not constitute error. Drummond v. State, 37 Ala.App. 307, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71; Young v. State, 283 Ala. 676, 220 So. 2d 843. Having carefully examined the record for any reversible error, whether assigned or not, Title 15, Section 389, Code of Alabama 1940, as well as having considered all of the appellant's assignments of error, it is our opinion that the judgment of conviction should be affirmed. Affirmed. All the Judges concur.

18 P.3d 1164 (2001) 2001 WY 25 Carl Thomas CHAPMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). No. 99-125. Supreme Court of Wyoming. March 5, 2001. Rehearing Denied March 27, 2001. *1167 Representing Appellant: Mike Cornia, Evanston, WY. Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General. Before LEHMAN, C.J., and THOMAS,[*] MACY,[**] GOLDEN, and HILL, JJ. LEHMAN, Chief Justice. [¶ 1] A Sweetwater County jury found Carl Thomas Chapman guilty of two counts of indecent liberties with a minor and two counts of third degree sexual assault. He appeals those convictions on the grounds that the district court committed various evidentiary and procedural errors during trial and sentencing and that he was denied effective assistance of counsel. Finding no such errors, we affirm. ISSUES [¶ 2] Chapman raises five claims of error: 1. Did reversible error occur when the court allowed expert testimony on the theory of childhood sexual abuse and post traumatic stress disorder[?] 2. Did multiple charges and convictions for one event constitute double jeopardy[?] 3. Did the trial court err in failing to properly instruct the jury on the applicable law (A) if defendant was denied his right to due process and trial by jury by the lack of a proper elements instruction; and (B) if the appellant was entitled to have the jury instructed on the lesser included offense of fourth degree sexual assault[?] 4. Given the appellant's hearing impairment did his trial violate his rights to confrontation, effective assistance of counsel and his right to be present[?] 5. Was the appellant denied his right to effective assistance of counsel[?] The State rephrases the issues thusly: 1. Whether plain error was committed by allowing expert testimony on the theory of childhood sexual abuse and post-traumatic stress disorder? 2. Whether appellant was punished multiple times for a single incident? 3. Whether the trial court properly instructed the jury? 4. Whether appellant's right to confrontation and his right to be present were violated? 5. Whether appellant received effective assistance of counsel? FACTS [¶ 3] The parents of the victim were divorced in 1991. The father had visitation rights; and, at various times during 1994 and *1168 1995, the victim stayed with her father, a neighbor of Chapman and Chapman's wife. The victim oftentimes stayed with the Chapmans during father's visitation. [¶ 4] In April of 1997, the victim told her mother that Chapman had sexually molested her. Chapman was eventually charged with one count of third degree sexual assault and one count of indecent liberties stemming from sexual activity alleged to have occurred on or about December 30, 1994.[1] Chapman was also charged with one count of third degree sexual assault and one count of indecent liberties stemming from sexual activity alleged to have occurred in June of 1995. These incidents were alleged to have occurred in Chapman's home at a time during which the victim was thirteen years old and Chapman was approaching 50. [¶ 5] After hearing the testimony of the victim, the victim's parents, an expert, and Chapman's wife, a Sweetwater County jury found Chapman guilty of all charges. Convictions were entered accordingly. At Chapman's sentencing, the district court ordered the sentences from the December 1994/January 1995 offenses be served concurrently to each other; the sentences from the June 1995 offenses be served concurrently to each other; and the two sets of concurrent sentences be served consecutively. Chapman appealed. DISCUSSION [¶ 6] In the first four issues in his appellate brief, Chapman claims error based on the admission of expert testimony, improper jury instructions, an alleged violation of the double jeopardy clause in his sentence, and an alleged violation of his right to confront witnesses and be present at trial because he could not hear the proceedings against him. In the alternative, Chapman claims he was denied effective assistance of counsel because trial counsel failed to object in each instance of claimed error. Given the structure of appellant's brief and in order to avoid repetition, we will address each claim only once, both substantively and, where appropriate, as the claim pertains to the ineffective assistance claim. In order to do this, we first reiterate our well established standard for reviewing a claim of ineffective assistance of counsel: When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. Herdt v. State, 891 P.2d 793, 796 (Wyo.1995); Starr v. State, 888 P.2d 1262, 1266-67 (Wyo. 1995); Arner v. State, 872 P.2d 100, 104 (Wyo.1994); Frias v. State, 722 P.2d 135, 145 (Wyo.1986). The reviewing court should indulge a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Herdt, at 796; Starr, at 1266; Arner, at 104; Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Under the two-prong standard articulated in Strickland and Frias, an appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient and that prejudice resulted. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Starr, at 1266; King v. State, 810 P.2d 119, 125 (Wyo.1991) (Cardine, J., dissenting); Campbell v. State, 728 P.2d 628, 629 (Wyo.1986); Frias, 722 P.2d at 145. In other words, to warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to "render such assistance as would have been offered by a reasonably competent attorney" and that "counsel's deficiency prejudiced the defense of [the] case." Lower v. State, 786 P.2d 346, 349 (Wyo.1990). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." *1169 Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Grainey v. State, 997 P.2d 1035, 1038-39 (Wyo.2000). Expert testimony [¶ 7] Chapman contends it was plain error to allow an expert witness to testify that the victim suffers from postraumatic stress disorder (PTSD) because (1) the court allowed the testimony without first determining that it was relevant and reliable; (2) the court failed to give a limiting instruction advising the jury that the testimony was admitted solely for the purpose of explaining the victim's behavior and not to prove that the victim's claim was true; and (3) during her testimony, the expert vouched for the credibility of the victim and also offered an opinion of guilt. Because trial counsel never requested a hearing on the admissibility of the expert testimony and did not otherwise object to the expert, Chapman also claims counsel's performance was outside the wide range of professionally competent assistance. [¶ 8] A qualified expert witness may testify about scientific, technical, or specialized knowledge if such testimony will help the jury understand the case. W.R.E. 702. This court has adopted the federal Daubert model imposing gatekeeping responsibilities on trial courts deciding whether scientific or technical expert testimony is admissible. See Bunting v. Jamieson, 984 P.2d 467, 471 (Wyo.1999) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993)). In doing so, however, we did not "abandon our own precedent regarding the admissibility of expert testimony." Bunting, at 471. Under the Daubert model, the trial court must first determine whether the expert's methodology is reliable; then the court must determine whether the proposed testimony "fits" the facts of the particular case. Id. A district court's decision to admit or reject expert testimony is a decision solely within that court's discretion. Seivewright v. State, 7 P.3d 24, 29 (Wyo.2000); Springfield v. State, 860 P.2d 435, 438 (Wyo.1993); Betzle v. State, 847 P.2d 1010, 1022 (Wyo.1993). [¶ 9] The expert in question testified that she held a bachelor's degree in psychology and had completed all but her dissertation toward a Ph.D. in psychology. She had been employed for twenty years as an outpatient therapist and was currently working at least part of the time with children who had been physically or sexually abused. To be a licensed counselor in Wyoming, she was required to have the educational equivalent of a master's degree, completed 2000 hours of supervised clinical work, and passed a test administered by the state licensing board. She had published articles about her work with sexually abused children in a peer-reviewed journal. The articles related specifically to identifying children who had been sexually abused, assisting them in working through trauma, and helping them overcome the behaviors or symptoms they experienced as a result of the trauma. She had training in working with people who had been diagnosed with PTSD and had been a certified trainer for six years in a neurolinguistics program dealing with PTSD. After explaining her qualifications, the expert testified about her meetings with the victim in this case and the observations she made during those meetings. She observed that the victim exhibited symptoms of disassociation and depression. She testified that it was her opinion the victim suffered from PTSD. She then went on to explain that it was common for victims of sexual abuse to delay reporting the abuse, become sexually active, and return to the abuser's home. [¶ 10] Although Chapman does not take issue with the expert's qualifications, he does contend that the trial court should not have allowed the expert to testify about PTSD because, he claims, the theory of PTSD related to child sexual abuse is not sufficiently developed to permit an expert to formulate a reasonable opinion on the subject and is thus not helpful to the trier of fact. He relies heavily on the cases of Frenzel v. State, 849 P.2d 741 (Wyo.1993) and Sorensen v. State, 895 P.2d 454 (Wyo.1995), child sexual abuse cases involving expert testimony, to support his argument. Before addressing those cases, however, we examine the discussion of "rape trauma syndrome" found in Scadden v. State, 732 P.2d 1036 (Wyo.1987), because that *1170 case provides background for the discussion of the issues in the case presently before the court. [¶ 11] In Scadden, a case involving molestation of high schoolers by their teacher, although the admissibility of rape trauma syndrome testimony was challenged, this court did not need to reach the issue for decision of the case: "Detective Reikens' expert testimony was not testimony regarding rape-trauma syndrome, and therefore we do not now decide whether such testimony is admissible. In any event, the admissibility of rape-trauma testimony must be carefully confined to avoid jury convictions based not on what the direct evidence shows occurred, but on expert opinion." Scadden v. State, 732 P.2d at 1047. This court went on to hold the expert's testimony admissible to explain the behavioral characteristics of the victims. Id. at 1046-47 (citing Lessard v. State, 719 P.2d 227, 233-34 (Wyo.1986) (expert testimony used to explain rape victim's request to her assailant "Don't tell anybody.")). The Scadden court stated that this kind of testimony may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths. 732 P.2d at 1047 (quoting People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291, 298 (1984)). [¶ 12] For a number of reasons, Scadden is important to our discussion in this case. First, it underscores this court's jurisprudence that expert testimony may be used to explain a victim's behavior. Second, the "rape trauma syndrome" mentioned in Scadden shares a close relationship with PTSD. Rape trauma syndrome (RTS) had its origin in an article by Burgess & Holmstrom, Rape Trauma Syndrome, 131 Am.J.Psychiatry 981 (1974) in which the authors reported on a study of those patients admitted during a one-year period to the emergency department of Boston City Hospital who presented a complaint of having been raped. RTS is the terminology used by some for a PTSD subset in which the trauma is rape. Consequently one of the diagnostic criteria of PTSD, namely that the trauma be reexperienced, would in such cases involve a reexperiencing of the sexual assault. State v. Allewalt, 308 Md. 89, 517 A.2d 741, 748 (1986); see also State v. Black, 109 Wash.2d 336, 745 P.2d 12, 16 (1987) ("the American Psychiatric Association indicates that the stress and trauma associated with rape is merely one type of a larger phenomenon known as [PTSD]".) On a closely related matter, we are compelled to make an observation regarding terminology. At least one court has found terminology important in analyzing this sort of testimony. In State v. Allewalt, the Maryland Court of Appeals permitted the use of PTSD testimony, but emphasized the expert "never used the term `rape trauma syndrome,' and avoiding that terminology is more than cosmetic. The concern with unfair prejudice is largely reduced when the terminology does not equate the syndrome exclusively with rape." Id. at 751; see also State v. Gettier, 438 N.W.2d 1, 5-6 (Iowa 1989); State v. Roles, 122 Idaho 138, 832 P.2d 311, 318 n. 4 (App.1992). [¶ 13] Returning to the cases relied on by Chapman, we first address Frenzel, where this court faced the issue of whether expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) was admissible. In performing its analysis, the court first acknowledged that expert testimony explaining behavior of sexual assault victims is generally admissible: Expert testimony that discusses the behavior and characteristics of sexual assault victims and the range of responses to sexual assault encountered by experts is admissible. Scadden v. State, 732 P.2d 1036 (Wyo.1987). Such testimony is relevant and helpful in explaining to the jury the typical behavior patterns of adolescent victims of sexual assault. Griego v. State, 761 P.2d 973 (Wyo.1988). It assists the jury in understanding some of the aspects of the behavior of victims .... Zabel v. State, 765 P.2d 357 (Wyo.1988). Frenzel v. State, 849 P.2d at 748 (quoting Rivera v. State, 840 P.2d 933, 939 (Wyo. 1992)). In keeping with the general admissibility of expert testimony to explain the victim's *1171 behavior, the Frenzel court, after a thorough review of pertinent authorities, ruled that CSAAS testimony would be admitted, but only on a limited basis: [W]e find that CSAAS evidence has yet to reach the stage of development which would permit an expert to reasonably conclude, on the basis of CSAAS alone, that abuse occurred. Therefore, CSAAS does not assist the trier of fact on the issue of whether abuse actually occurred. Additionally, we believe that admission of CSAAS evidence, without limitation, would run too high a risk of misleading the jury and therefore be more prejudicial than probative under W.R.E. 403. However, we also find that CSAAS evidence is relevant and admissible to dispel myths the public might hold concerning a child sexual abuse victim's post-abuse behavior if that behavior is an issue in the case. Qualified experts on child sexual abuse may, therefore, use evidence of CSAAS characteristics of sexually abused children for the sole purpose of explaining a victim's specific behavior which might be incorrectly construed as inconsistent with an abuse victim or to rebut an attack on the victim's credibility. For example, if the facts of a particular case show that the victim delayed reporting the abuse, recanted the allegations, kept the abuse secretive, or was accommodating to the abuse, then testimony about that particular characteristic of CSAAS would be admissible to dispel any myths the jury may hold concerning that behavior. Additionally, if requested, a limiting instruction concerning the narrow purpose of CSAAS should be granted. However, expert testimony of CSAAS cannot be used for the purpose of proving whether the victim's claim of abuse is true. 849 P.2d at 749. [¶ 14] In Sorensen, at issue was the admissibility of testimony on the theory of traumagenic dynamics, a model that "postulates that the experience of sexual abuse can be analyzed in terms of four trauma-causing factors." 895 P.2d at 457. After a review of two articles in professional journals, this court concluded, due to the paucity of information on the subject and the fact that even the theory's own proponents conceded "few theoretical advances" had been made, that traumagenic dynamics was not sufficiently developed to the point it could be considered reliable in its field. Id. at 458 "Unless and until such time as evidence can be brought forth which demonstrates to the contrary, traumagenic dynamics is inadmissible in the courts of Wyoming." Id. The Sorensen court concluded discussion of this issue by writing, "The State may certainly continue to offer this type of evidence, but it may not wrap its evidence up in the cloak of a `theory' or a `syndrome' unless it has been established as reliable." Id. at 459; see also Trujillo v. State, 953 P.2d 1182, 1187 (Wyo.1998) ("Accordingly, we hold that the rule articulated in Sorensen, 895 P.2d 454, applies in all cases where the State wishes to present expert testimony to explain a crime victim's behavior."); Ryan v. State, 988 P.2d 46, 56 n. 6 (Wyo.1999). [¶ 15] Given this legal backdrop, we must examine whether the PTSD offered in this case is sufficiently reliable to warrant admission. Chapman, in his appellate brief, cites to several articles from various publications to support his contention that PTSD related to child sexual abuse is not sufficiently developed or reliable to warrant admission. Although the State does not respond with like materials, our own research satisfies us that PTSD testimony is worthy of limited admissibility in this context.[2] [¶ 16] First, PTSD has achieved acceptance in the fields of psychiatry and psychology. As Chapman recognizes in his brief, PTSD is included in the DSM IV, which has been described as "specialized literature that specifically catalogues the symptoms of mental *1172 disorders and prescribes the method by which the psychological evaluation should take place." State v. Alberico, 116 N.M. 156, 861 P.2d 192, 208 (1993). "The existence of the DSM [IV] and its general acceptance in psychology indicate that PTSD has been exposed to objective scientific scrutiny and empirical verification." Id. Furthermore, the PTSD diagnosis appears to be grounded in basic behavioral psychology. Id. at 209. Previously, this court has recognized, at least implicitly, the importance of the DSM's recognition of a syndrome. In Trujillo, 953 P.2d at 1186-87, this court held there was no plain error in admission of expert testimony on battered woman's syndrome to explain the victim's behavior. There, Trujillo argued that battered woman's syndrome testimony, which is referenced in Wyo.Stat.Ann. § 6-1-203 and, pursuant to that statute, defined by the DSM III R, should only be used when a defendant presents that testimony as a portion of her self defense claim. Rejecting that assertion, we wrote that Wyo.Stat.Ann. § 6-1-203 had no relevance "other than, perhaps, to underscore that Battered Woman Syndrome is sufficiently developed to be the basis for expert testimony." Id. at 1187. [¶ 17] Not only is PTSD recognized by the DSM IV, it has been widely, although not universally, accepted by other jurisdictions as a reliable form of expert testimony in this context. State v. Gettier, 438 N.W.2d 1, 4-6 (Iowa 1989); State v. Hall, 330 N.C. 808, 412 S.E.2d 883, 889 (1992); People v. Fasy, 829 P.2d 1314, 1317 (Colo.1992); State v. Alberico, 861 P.2d at 208-9; People v. Taylor, 75 N.Y.2d 277, 552 N.Y.S.2d 883, 552 N.E.2d 131, 134-35 (1990); State v. Allewalt, 308 Md. 89, 517 A.2d 741, 745-47 (1986). Based on the foregoing, we conclude that expert testimony regarding PTSD is sufficiently reliable to warrant admission, and we find no error on this ground. However, despite being accepted as reliable, the purposes for which PTSD testimony should be admitted remain subject to debate. State v. Gettier; 438 N.W.2d at 5-6; State v. Alberico, 861 P.2d at 207; State v. Black, 109 Wash.2d 336, 745 P.2d 12, 18 (1987). [¶ 18] Chapman correctly points out that this court has placed limitations on the admission of some forms of expert testimony, and Chapman claims those limitations were exceeded at his trial. Chapman contends the PTSD testimony at his trial violated the rule in Frenzel, 849 P.2d at 749, holding that expert testimony that a sexual abuse victim suffers from CSAAS cannot be used to prove the sexual abuse occurred. Preliminarily, we agree with Chapman's premise that a diagnosis of PTSD should not be used to prove the sexual abuse occurred. State v. Moran, 151 Ariz. 378, 728 P.2d 248, 256 (1986); State v. Booker, 348 N.W.2d 753, 755 (Minn.1984); People v. Bledsoe, 36 Cal.3d 236, 203 Cal. Rptr. 450, 681 P.2d 291, 301 (1984); State v. Black, 745 P.2d at 18. However, the record is clear that the testimony concerning PTSD, consistent with the court's holding regarding CSAAS in Frenzel, was used to explain the victim's behavior, not for the purpose of proving the victim's claim of abuse. An explanation of the victim's behavior was necessary at Chapman's trial due to the course the testimony took. During cross examination of the victim, Chapman sought to establish that the victim had created the story about Chapman's abuse, during an argument with her mother, in order to divert the mother's attention from the victim's boyfriend, a young man of whom the mother apparently disapproved. After both mother and daughter testified, the State called its expert, who explained that it was normal for victims of sexual abuse to delay in reporting, thus refuting, at least in part, Chapman's theory that the story had been created to divert attention from the issue of the boyfriend. In addition, the expert explained why the victim would continue to venture to the Chapman's home even after the sexual abuse. Therefore, because the expert's testimony was used to explain the victim's behavior, we reject Chapman's contention that the testimony was used to prove the claim of abuse. [¶ 19] Chapman also contends the expert's testimony offered an opinion of guilt and that admission of certain expert testimony should be perceived as error per se. It is well established that Wyoming law prohibits expert testimony as to the guilt of the defendant. Stephens v. State, 774 P.2d 60, 68 (Wyo.1989); Bennett v. State, 794 P.2d 879, 881 (Wyo.1990); Whiteplume v. State, 841 *1173 P.2d 1332, 1338 (Wyo.1992); Curl v. State, 898 P.2d 369, 373 (Wyo.1995); Punches v. State, 944 P.2d 1131, 1135 (Wyo.1997); Brown v. State, 953 P.2d 1170, 1182 (Wyo. 1998); Metzger v. State, 4 P.3d 901, 905 (Wyo.2000). Without delving into a detailed analysis of the applicable standard of review, see Dudley v. State, 951 P.2d 1176, 1178-80 (Wyo.1998); Newport v. State, 983 P.2d 1213, 1216 (Wyo.1999) ("error-perse rule applies when the prosecution actually asks a witness to give an opinion as to the accused's guilt"), we are satisfied the record does not support Chapman's contention. Although Chapman points generally to the expert's testimony, he essentially contends the opinion of guilt came from the expert when she testified she was seeing the victim due to "a report of molestation from a family friend." Clearly, this situation does not approach the testimony found in Stephens v. State, 774 P.2d at 65-68, where experts opined, after direct solicitation from the prosecuting attorney, that the defendant was the perpetrator of the crime. Neither is there present the inartful questioning found in Curl, 898 P.2d at 373, of "Do you think her stepfather, who she previously identified, did that?"—a question that may have resulted in reversal had the expert not "beneficently interrupted." Instead, the expert's testimony here provided foundation for the expert's testimony and only indicates there had been a report of an assault. As such, it is not an opinion of guilt. [¶ 20] Chapman further contends the expert vouched for the victim's credibility. Again, it is well established in Wyoming that expert testimony vouching for the victim's credibility violates W.R.E. 702. Frenzel v. State, 849 P.2d 741, 744 (Wyo. 1993); Punches v. State, 944 P.2d 1131 (Wyo. 1997); Metzger v. State, 4 P.3d 901, 905 (Wyo.2000); Montoya v. State, 822 P.2d 363, 365 (Wyo.1991); Whiteplume v. State, 841 P.2d 1332, 1338-40 (Wyo.1992). However, our review of the trial transcripts reveals that the expert testimony here did not violate our rule against vouching. Rather, her testimony focused on general symptoms common to victims of sexual abuse and how those symptoms related to the victim. There was no testimony from the expert that she believed the victim's account of what happened such as in Stephens v. State, 774 P.2d 60, 68 (Wyo.1989). Nor is there testimony like that in Whiteplume v. State, 841 P.2d at 1337, where the witness testified that he "made a determination that [the victim] had been raped." See also Metzger, 4 P.3d at 906-7 (Prosecutor asked if father believed his daughter, the victim of sexual assault; held to be error but harmless.) Because there was no direct vouching, either solicited or unsolicited, we find no violation of the rule against vouching. While the expert's testimony may have had the incidental effect of supporting the victim's credibility, incidental bolstering of the victim's credibility alone does not make the expert testimony improper. Frenzel v. State, 849 P.2d at 746; Rivera v. State, 840 P.2d at 939; Montoya v. State, 822 P.2d at 365. We find no error, plain or otherwise, in the limited admission of the expert testimony on PTSD. Due to this conclusion, we must also conclude that counsel was not ineffective in failing to object to the testimony. [¶ 21] We must emphasize that our holding in this case is limited. We simply conclude that the trial court did not err in admitting the expert testimony. We stress, however, that it is with great care that such testimony should be admitted. The pivotal question in determining the admissibility of PTSD testimony in sexual assault cases is the testimony's relevance to the issues in the case; and the pertinent cases vary greatly in the permissible purposes of such testimony. Even where the testimony is relevant, however, other serious concerns can arise. As the Maryland Court of Appeals has written: When a trial judge admits PTSD evidence because he believes that the existence of the disorder coupled with the absence of any triggering trauma, other than the evidence of rape, will aid the jury the ruling necessarily carries certain baggage with it. Cross-examination can include not only cross-examining the expert about PTSD in general, but also cross-examining the expert and the prosecutrix about possible causes of the disorder other than the assault charged in the criminal case. In addition, we can foresee cases where the *1174 defendant will seek to counter the State's PTSD evidence with his own expert testimony. That can, in turn, lead to issues concerning compulsory psychiatric examination of the complainant by an expert for the defense. [Cf. Gale v. State, 792 P.2d 570, 574-76 (Wyo.1990).] Lurking in the background is the nice question of whether the absence of PTSD is provable by the accused in defense of a rape charge, as tending to prove that there was consent. State v. Allewalt, 517 A.2d at 751. [¶ 22] Chapman next contends that, because admission of testimony of PTSD is for a limited purpose, the district court should have given a limiting instruction sua sponte. The law on the subject of limiting instructions is clear: A criminal defendant is entitled, upon making a proper request, to have a jury instruction given which sets forth the limited purpose for which the evidence is being admitted. If, however, the defendant does not present an appropriate request, the trial court is not required to give the limiting instruction. Counsel may decide not to request that a limiting instruction be given in order to avoid drawing the jury's attention to the potentially damaging testimony. Rigler v. State, 941 P.2d 734, 738 (Wyo.1997) (citations omitted); see also Frenzel, 849 P.2d at 749 ("if requested, a limiting instruction concerning the narrow purpose of CSAAS should be granted.") Clearly, the district court had no duty, absent a request, to fashion a limiting instruction. In addition, the decision to request, or refrain from requesting, a limiting instruction is a tactical decision that this court will not second guess. See Grainey v. State, 997 P.2d at 1040-41. [¶ 23] Chapman also argues that the district court, in its gatekeeping role, is required to make a determination of the admissibility of expert testimony prior to its admission regardless of whether an objection has been made—in effect, arguing that trial courts are always required to hold sua sponte Daubert hearings whenever expert testimony is proposed. Such a requirement is clearly unwarranted. First, even where a Daubert hearing has been properly requested, trial courts exercise "discretionary authority... to avoid unnecessary `reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted." Seivewright v. State, 7 P.3d 24, 30 (Wyo.2000) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 at 1176, 143 L.Ed.2d 238 (1999)). In addition, although we agree that, as gatekeepers of expert testimony, judges must always perform some form of reliability analysis, we decline to "shackle the district court with a mandatory and explicit" reliability proceeding. Hoult v. Hoult, 57 F.3d 1, 5 (1st Cir.1995). Instead, like the First Circuit, we "assume that the district court performs such an analysis sub silencio throughout the trial with respect to all expert testimony." Id. In the case at bar, no Daubert hearing was requested. Regardless, because the testimony was properly admitted, there was no error in not holding a Daubert hearing. Double Jeopardy [¶ 24] In this claim, Chapman argues that, by sentencing him on two counts arising from the same incident, the district court violated the constitutional prohibition against double jeopardy. He argues that the charges of taking indecent liberties with a minor and third degree sexual assault for the sexual activity occurring in December 1994/January 1995 should have been merged, and he makes the same argument regarding the sexual activity occurring in June 1995. [¶ 25] In appeals alleging imposition of multiple sentences for a single act, the focus is on those facts proven at trial. Rouse v. State, 966 P.2d 967, 970 (Wyo.1998). The ultimate question is whether those facts reveal a single criminal act or multiple distinct offenses against the victim. Id. Where the acts required for the commission of one offense are a necessary and indispensable precursor to commission of a second offense, the offenses merge for purposes of sentencing. Id. Such merger is mandatory where the second offense cannot be committed absent commission of the first offense. [¶ 26] In the case at bar, evidence was presented that on January 1, 1995, Chapman fondled the victim's breast under her shirt *1175 and made her touch his genitals. These acts constitute indecent liberties. On the same day, he performed cunnilingus on the victim. This act constitutes third degree sexual assault. See Wyo.Stat.Ann. § 6-2-304[3] and § 6-2-301(a)(vii)(B). As for the June 1995 sexual activity, the victim testified there was more oral sex, which again constituted third degree sexual assault. The indecent liberties charge from this date was supported by evidence that Chapman again had the victim manipulate his genitals. The record thus shows that Chapman's convictions were for separate and distinct crimes. Because proof of different facts was required to establish the elements of each crime, cumulative punishment was appropriate. Therefore, Chapman's sentences do not violate the double jeopardy clause. Jury Instructions [¶ 27] In presenting this argument, Chapman first contends that the jury was not properly instructed on the elements of the offense of indecent liberties with a minor. He also claims the jury was not properly instructed on the offense of fourth degree sexual assault, an offense Chapman perceives as a lesser included offense of indecent liberties. No objection was made to the given instructions, and no additional instructions were offered to address these alleged problems. [¶ 28] The jury was instructed that, to find Chapman guilty of the crime of indecent liberties with a minor, it must find that he knowingly caused or encouraged a child to commit with him any immoral or indecent act. Chapman now argues that the district court failed to instruct on an essential element of the crime of indecent liberties. Relying on Pierson v. State, 956 P.2d 1119, 1125-26 (Wyo.1998), he argues that the offense of indecent liberties now requires more than "mere" sexual contact with someone under 18 and that the jury should have been instructed on this claimed essential element. In Pierson, at 1125-26, this court wrote: In defining the term "indecent liberties," we rely on the "common sense of society." Sorenson, 604 P.2d at 1034. As the members of society who will exercise that common sense, the jury must be allowed to consider the totality of the circumstances relating to the culpability of the defendant's conduct. This includes whether the conduct was consensual in those cases where the minor was legally old enough to give an informed consent under Wyo.Stat. § 6-2-304. However, the "consent" must also be considered in light of the facts relevant to the victim's ability, in fact, to give an informed consent and the defendant's actions to secure the consent of the minor. Such circumstances include, but are not limited to, the victim's relative maturity; experience; whether the minor is emancipated; the extent of parental involvement in the minor's decisions; and evidence of the defendant's manipulation or coercion of the minor. Clearly, Chapman's reliance on Pierson is misplaced. First, Chapman's thirteen-year-old victim was not a minor who "was legally old enough to give an informed consent under Wyo.Stat. § 6-2-304," and any claim that the jury should have been instructed about the circumstances surrounding "consent" is not well founded. Second, consistent with Pierson, we find nothing in the district court's instructions that prevented the jury from considering the totality of the circumstances or from using its common sense in reaching its decision on the indecent liberties charges. Chapman has not demonstrated that the jury was improperly instructed on the offense of indecent liberties, and we cannot find counsel ineffective on this ground. [¶ 29] In regard to the lesser included offense argument, this court follows the Blockburger "statutory elements test" in *1176 determining whether one offense is a lesser included offense of another. State v. Keffer, 860 P.2d 1118, 1133-34 (Wyo.1993); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." State v. Keffer, 860 P.2d at 1130 (quoting Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. at 182); McDermott v. State, 870 P.2d 339, 345 (Wyo.1994). In other words, one offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the charged offense. Keffer, at 1134. Where the proposed lesser included offense requires proof of an element not required for the greater offense, no instruction need be given. Id.; Jackson v. State, 891 P.2d 70, 74 (Wyo. 1995). [¶ 30] Had Chapman requested an instruction on fourth degree sexual assault, the trial court would have been required to determine whether the elements of that statute constituted a subset of indecent liberties with a minor. An indecent liberties conviction requires a child victim under the age of 18. Wyo.Stat. § 14-3-105.[4] Fourth degree sexual assault[5] (under the obsolete statute applicable to this case) does not require a child victim, and the indecent liberties statute therefore contains an element not included in the fourth degree sexual assault statute. Conversely, fourth degree sexual assault requires sexual contact under any of the circumstances of W.S. 6-2-302(a)(i) through (iv) or 6-2-303(a)(i) through (vi). However, the indecent liberties statute does not require any of the defined circumstances. Therefore, each statute requires an element not required by the other. Clearly, fourth degree sexual assault is not a lesser included offense of indecent liberties, and trial counsel cannot be faulted for failing to request instructions in this regard. Hearing Impairment [¶ 31] Chapman claims that, because he suffers from an 80 percent loss of hearing, he could not hear and understand the trial proceedings and, thus, he was denied his constitutional rights to confrontation and to be present at trial. Without going into an extended and unnecessary constitutional analysis, suffice it to say that nothing in the record demonstrates that Chapman could not hear what was going on. During trial, neither Chapman nor his trial counsel indicated that Chapman was not hearing testimony; defense counsel asked the judge to instruct the victim to move closer to the microphones to be heard; and the record indicates that the courtroom had an amplified sound system. In addition, during an in-chambers discussion among Chapman, his attorney, and the district court judge regarding Chapman's decision not to testify, Chapman carried on a lengthy conversation with the district court and his attorney, and he even indicated he could hear witness questioning and testimony. Thus, nothing in this record leads this court to conclude Chapman was unable to hear. Cf. Sorensen v. State, 6 P.3d 657, 661-62 (Wyo.2000) (Nothing in the record indicated that juror was unable to hear the evidence.) Based on this record, Chapman's claim must fail both as a substantive matter and as a matter of ineffective assistance of counsel. *1177 [¶ 32] The judgment and sentence entered in the district court is affirmed. NOTES [*] Concurred prior to retirement. [**] Retired June 2, 2000. [1] Although the information alleged this sexual activity occurred on or about December 30, 1994, the prosecutor provided notice to counsel, prior to trial, that the victim had indicated the activity occurred on January 1, 1995. The victim's testimony was consistent with this notice. [2] In Rivera v. State, 840 P.2d 933, 938 (Wyo. 1992), the defendant filed a motion in limine to "suppress testimony concerning `Post-Traumatic Stress Syndrome' (the rape-trauma syndrome) which was denied." Although this court could "discern no error in admission of testimony of these witnesses relating to the rape trauma syndrome," the issue currently before this court, whether PTSD testimony is sufficiently reliable to warrant admission, was not an issue in Rivera. 840 P.2d at 939. [3] Prior to July 1, 1997, Wyo.Stat.Ann. § 6-2-304, Sexual assault in the third degree, provided: (a) Except under circumstances constituting a violation of W.S. 14-3-105, an actor commits sexual assault in the third degree if: (i) The actor is at least four (4) years older than the victim and who inflicts sexual intrusion on a victim under the age of sixteen (16) years; or (ii) The actor is an adult and subjects a victim under the age of twelve (12) years to sexual contact without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim. [4] The version of the indecent liberties statute, Wyo.Stat. § 14-3-105, applicable to this case provides: (a) Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony, and upon conviction shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both. (b) As used in this section, "child" means a person under the age of eighteen (18) years. [5] Wyo.Stat. § 6-2-305 provides: Except under circumstances constituting a violation of W.S. 14-3-105, any actor who subjects a victim to sexual contact under any of the circumstances of W.S. 6-2-302(a)(i) through (iv) or 6-2-303(a)(i) through (vi) without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim commits sexual assault in the fourth degree.

[Cite as State v. Kubico, 2016-Ohio-5066.] COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 15 CA 28 PHILIP KUBICO Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: July 21, 2016 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant DANIEL G. PADDEN PHILIP J. KUBICO, PRO SE Guernsey County Prosecuting Attorney #A286939 139 West 8th Street F.M.C. Z-B 1-205 A4 P.O. Box 640 1800 Harmon Ave. Cambridge, Ohio 43725 Columbus, Ohio 43223 Guernsey County, Case No. 15 CA 28 2 Hoffman, P.J. {¶1} Defendant-appellant Philip J. Kubico appeals the November 18, 2015 Judgment Entry entered by the Guernsey County Court of Common Pleas, denying various motions relative to his criminal convictions and his motion for bond. Plaintiff- appellee is the state of Ohio. STATEMENT OF THE CASE {¶2} On March 10, 1993, Appellant was indicted by the Guernsey County Grand Jury on twenty-four counts of sexually related offenses involving his two minor children. On January 4, 1994, Appellant entered a plea of guilty to the following: Count Ten, rape, a felony of the first degree; Count Twelve, rape, a felony of the first degree; and Count Twenty-three, gross sexual imposition, a felony of the third degree. All other counts were dismissed. Appellant was sentenced to an indefinite term of five to twenty-five years in prison on Counts Ten and Twelve, and a two year sentence on Count Twenty-three, all terms to be served concurrently. {¶3} Appellant has filed various motions for documents and transcripts related to his criminal convictions. Also, on September 25, 2015, Appellant filed a motion for bond with the trial court. {¶4} Via Judgment Entry of November 18, 2015, the trial court denied the various motions and Appellant’s motion for bond. {¶5} On December 7, 2015, Appellant filed a request for leave to file “delay of appeal” with this Court. Appellant stated he had newly discovered evidence, believed his rights were violated and he is being unlawfully incarcerated. Appellant made claims of Guernsey County, Case No. 15 CA 28 3 ineffective assistance of counsel, and prosecutorial misconduct. Appellant sought leave to appeal the trial court’s entry dated January 7, 1994. {¶6} Via Judgment Entry of January 19, 2016, this Court denied Appellant’s motion for “Request for Leave to File Delay of Appeal.” However, this Court found Appellant’s appeal filed on December 7, 2015, would be timely as to the trial court’s November 18, 2015 Judgment Entry, and allowed Appellant’s appeal to proceed as to any errors in that entry only. {¶7} Appellant assigns as error: {¶8} “I. DELIBERATE INDIFFERENCE.” {¶9} “II. DELIBERATE INDIFFERENCE. INAFFECTIVE [SIC] ASSISTANCE OF COUNSEL. {¶10} “III. APPELLANT WAS NOT ADVISED OF HIS RIGHT TO APPEAL.” I, II, III. {¶11} Upon review of Appellant’s assigned errors, we find the same do not relate to the November 18, 2015 Judgment Entry; Appellant’s request for documents and transcripts; or his request for bond. Rather, the arguments challenge Appellant’s underlying convictions and the trial court’s January 4, 1994 Judgment Entry. Accordingly, we find Appellant’s assignments of error barred by the doctrine of res judicata as they were capable of being raised on direct appeal. {¶12} Appellant’s first, second, and third assignments of error are overruled. Guernsey County, Case No. 15 CA 28 4 {¶13} The November 18, 2015 Judgment Entry of the Guernsey County Court of Common Pleas is affirmed. By: Hoffman, P.J. Wise, J. and Baldwin, J. concur 

Robert P. Smallwood v. State of Maryland, No. 2169, September Term, 2016. Opinion by Fader, J. MD. RULE 4-345(A) – MOTION TO CORERCT AN ILLEGAL SENTENCE; RIGHT TO COUNSEL The imposition of a new sentence after a court grants a motion to correct an illegal sentence under Rule 4-345(a) is a sentencing at which a convicted person has the right to counsel. The right to counsel attaches because sentencing is a critical stage of a criminal proceeding and because the defendant has a due process right to counsel at a proceeding that may affect the fact and length of future incarceration. Circuit Court for Baltimore City Case No. 18204820 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2169 September Term, 2016 ROBERT P. SMALLWOOD v. STATE OF MARYLAND Wright, Beachley, Fader, JJ. Opinion by Fader, J. Filed: June 4, 2018  The appellant, Robert P. Smallwood, presents us with the question of whether an incarcerated individual whom a circuit court has determined is imprisoned on an illegal sentence, and thus must be resentenced, has a right to counsel for the resentencing. We hold that he or she does. BACKGROUND In 1982, a jury sitting in the Circuit Court for Baltimore City found Mr. Smallwood guilty of first-degree murder and use of a handgun in the commission of a crime of violence. After a dialogue in which the court made clear its intent to provide Mr. Smallwood with credit for 72 days he had served while awaiting trial, the court pronounced Mr. Smallwood’s sentence on the murder count as “for the term of his natural life less 72 days,” concurrent with a sentence of 15 years for the handgun conviction. On direct appeal, we affirmed. Thirty years later, Mr. Smallwood filed a pro se motion to correct an illegal sentence pursuant to Rule 4-345(a) in which he contended that his sentence was “ambiguous, indefinite, and therefore illegal.” In a February 2013 hearing, Mr. Smallwood made the somewhat contradictory arguments: (1) that his original sentence of “life less 72 days” was ambiguous and vague; and (2) that the sentence required the State to calculate his remaining life expectancy so that it could set a release date 72 days before his expected death. Although the motions court judge was initially skeptical, she ended up granting his motion.1 She then, in the same hearing, imposed a new sentence: “Your sentence for the 1 The motions court judge did not identify the basis on which she found the original sentence illegal. In announcing her decision, the court stated: “So, Mr. Smallwood, I’ll murder, sir, will be life suspend all but 80 years. And, for the concurrent sentence, it’s 15 years and you get credit for the 72 days.” The court also added five years’ probation to the split sentence. Two other aspects of the relatively brief hearing are noteworthy for our purposes. First, on two occasions Mr. Smallwood raised his lack of counsel. Early in the hearing, Mr. Smallwood stated: “I’m sorry. I want to apologize, too. I don’t have counsel. I tried to get counsel for years; I couldn’t do it. So, I tried to speak as best I could.” And just before the court ruled, Mr. Smallwood again addressed his lack of counsel: See, that’s why I knew I shouldn’t have came back without an attorney. I tried for years to get an attorney. I already knew this was – this sentence was ambiguous. I knew it was vague. I tried for years to get an attorney; I couldn’t put myself in a position to get one, so I decided to come down here anyway because I’m getting – you know, I got 31 years in, so I can’t wait any longer. The court did not follow up on either occasion. Second, after imposing the new sentence, the court requested the assistance of an Assistant State’s Attorney not involved in Mr. Smallwood’s case to advise Mr. Smallwood of his appeal rights. The prosecutor advised Mr. Smallwood that he had 90 days to file a motion to modify his new sentence and 30 days to ask a three-judge panel to review his grant your request. I will modify your sentence, and I’m going to note the objection of the State.” Of course, Mr. Smallwood’s request was not to modify his sentence, which would have been untimely, but to correct an illegal sentence. Both the State and Mr. Smallwood agree that the circuit court’s action, in context, should be understood as having granted the motion that was before it, and not as improperly granting a modification that was not, and could not properly have been, requested. We agree. 2 new sentence, but that he had no direct appeal right. Neither Mr. Smallwood nor the State took an appeal at that time. More than a year later, in July 2014, Mr. Smallwood filed a pro se postconviction petition challenging the motions court’s failure to provide him with counsel or advise him of his right to counsel at resentencing. Mr. Smallwood conceded that he did not have a right to counsel for the presentation of his motion, but argued that once the court found his “sentence illegal, then the only thing to do is impose a new sentence. And at that new sentencing procedure, I’m saying I should have been advised of my right to an attorney.” After the postconviction court raised sua sponte whether Mr. Smallwood’s postconviction claim should have been raised on direct appeal, the court learned that Mr. Smallwood had been advised that he had no right to appeal. In supplemental briefing, the State conceded that Mr. Smallwood had a right to direct appeal of his new sentence and suggested that “the appropriate remedy is to allow [Mr. Smallwood] to file a belated appeal.” In a written opinion, the postconviction court rejected Mr. Smallwood’s right-to- counsel claim. The court held that the right to counsel applies only through direct appeal, and does not extend to collateral proceedings like a motion to correct an illegal sentence. But, noting the State’s concession as to Mr. Smallwood’s appeal rights, the postconviction court awarded Mr. Smallwood the right to file a belated appeal from the order imposing his new sentence. Mr. Smallwood’s belated appeal is the matter now before us. DISCUSSION Although this matter arises out of a rather complicated procedural history, most of that is irrelevant to the straightforward issue before us: Once a court has granted a motion 3 to correct an illegal sentence, and so is going to impose a new sentence, does the convicted person have a right to counsel? We hold that he or she does.2 I. MR. SMALLWOOD’S APPEAL IS PROPERLY BEFORE THIS COURT. The State raises three arguments as to why we cannot, or should not, address the merits of Mr. Smallwood’s right-to-counsel claim in this appeal.3 First, the State argues that Mr. Smallwood has no right to appeal from the circuit court’s grant of his motion to correct an illegal sentence. But Mr. Smallwood appeals from the sentence imposed by the circuit court, not from the grant of his motion. To accept the State’s argument would require us to hold that no sentence imposed by a court after granting a motion to correct an illegal sentence could be subject to direct challenge by the 2 We take no position as to whether Mr. Smallwood’s initial sentence was illegal or whether the motions court erred in granting that motion. The State concedes that we are not in position to address that decision because the State did not appeal from it. We do, however, note that Mr. Smallwood’s claim here is based entirely on the specific language used by the trial court in imposing his sentence for murder: “for the term of his natural life less 72 days.” Mr. Smallwood did not argue that there is any inherent ambiguity in imposing a life sentence in which credit is awarded for time served. To the contrary, he argued that the court’s reference to 72 days was not intended merely to provide credit for time served, but was instead intended to limit the time he would serve going forward to 72 days less than the anticipated length of his natural life. Thus, the issue before the motions court was whether the specific language “life less 72 days” was vague and ambiguous— Mr. Smallwood argued that it was; the State argued that, especially in the context in which the sentence was imposed, it was not. The current procedural posture of the case precludes us from weighing in on that issue. 3 The State also argues that Mr. Smallwood was not entitled to counsel because what he really wanted from the motions court was not to correct an illegal sentence but to order a correction to his commitment record. We disagree, both because Mr. Smallwood unquestionably argued that his sentence was illegal and because regardless of what he requested, what the court actually did was vacate his initial sentence and resentence him. That is the decision before us for review. 4 convicted person. The State has not pointed us to any authority for that proposition.4 We rejected a similar argument in Sanders v. State, 105 Md. App. 247 (1995). As with Mr. Sanders in that case, Mr. Smallwood here “is not appealing the grant of the motion to correct an illegal sentence . . . .” Id. at 253. To the contrary, Mr. Smallwood “is appealing the sentence that resulted from resentencing.” Id.; cf. Hoile v. State, 404 Md. 591, 619 (2008) (“The new sentence [imposed after a motion for reconsideration was granted] represents a sentence imposed on [the defendant], and as such, is appealable.”); Webster v. State, 359 Md. 465, 477 (2000) (“Assessment of a new sentence resurrects the penalty portion of a judgement; it replaces the prior sentence. . . . Thus, the sentence imposed as a result of the granting of the motion for reconsideration is the appealable order . . . .”). Second, the State contends that because Mr. Smallwood did not argue below that he had a right to counsel at his resentencing, “there is, technically speaking, no circuit-court ruling denying Smallwood’s counsel-related claims.” Although Mr. Smallwood did not expressly argue that he had a right to have counsel present, he did twice call to the motions court’s attention his desire to have counsel present. On neither occasion did the court ask a question. 4 The State instead cites authority for inapposite legal propositions. For example, the State, relying on Evans v. State, 396 Md. 256 (2006), argues that ineffective assistance of counsel claims and, by analogy, claims based on the denial of counsel, cannot be raised in a Rule 4-345(a) motion to correct an illegal sentence. But Mr. Smallwood’s Rule 4-345(a) motion was not premised on the denial of counsel. That issue arose only after the court granted his 4-345(a) motion. 5  Moreover, if Mr. Smallwood did not preserve the issue, it is likely because he lacked the assistance of counsel to help him recognize the need to do so. Indeed, the right to counsel is important precisely because it “seeks to protect a defendant from the complexities of the legal system and his or her lack of understanding of the law.” Brye v. State, 410 Md. 623, 634 (2009). For that reason, courts are required to ensure that any waiver of the right is knowing and voluntary: the right to counsel is “absolute and can only be foregone by the defendant’s affirmative ‘intelligent and knowing’ waiver.” Robinson v. State, 410 Md. 91, 107 (2009).5 “A defendant’s actual incarceration in a jail, as a result of a proceeding at which he was unrepresented by counsel and did not knowingly and intelligently waive the right to counsel, is fundamentally unfair.” DeWolfe v. Richmond, 434 Md. 444, 460 (2013) (“DeWolfe II”) (quoting Rutherford v. Rutherford, 296 Md. 347, 360-61 (1983)) (emphasis removed). Additionally, “if the right upon which the allegation 5 Expounding on this right, our Court of Appeals has quoted favorably the following passage from the Supreme Court’s plurality decision in Von Moltke v. Gillies, 332 U.S. 708, 723-24 (1948): The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. . . . A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered. Parren v. State, 309 Md. 260, 272-73 (1987) (internal quotation marks omitted). 6 is premised is a fundamental right, the allegation will not be deemed waived simply because it was not raised at a prior proceeding.” Wyche v. State, 53 Md. App. 403, 407 (1983). Because the right to counsel is fundamental, it “may be waived only where the petitioner intelligently and knowingly effects the waiver.” Id. Mr. Smallwood certainly made no such waiver here. For these reasons, even if not preserved, we would choose to exercise our discretion under Rule 8-131(a) to consider Mr. Smallwood’s claim. Third, the State argues that Mr. Smallwood’s right-to-counsel claim would more appropriately be considered in an appeal from the denial of Mr. Smallwood’s postconviction petition, consideration of which this Court has stayed pending the resolution of this direct appeal. We see no reason to further postpone resolution of the important issue raised here to await that collateral challenge. Cf. Greco v. State, 427 Md. 477, 503-04 (2012) (stating that the fact that the same issue was raised in a separate proceeding in the Court of Special Appeals was not a reason to decline review, but instead “lends support for this Court to review the challenge to the sentence without further delay, for the purpose of efficiency and complete resolution”). The issue has been fully briefed, presented, and argued here. We also have the benefit of the record before the postconviction court and of that court’s analysis. Finding no impediment to our consideration of Mr. Smallwood’s challenge, we proceed to the merits. II. THE PROCEEDING IN QUESTION WAS A SENTENCING. A central point of dispute between the State and Mr. Smallwood is over how we should view the part of the proceeding below in which the motions court imposed a new 7 sentence on Mr. Smallwood. According to the State, the imposition of a new sentence was simply a non-severable part of the proceedings on Mr. Smallwood’s motion to correct an illegal sentence. Thus, the State contends, it was not really a sentencing at all. Case law stating that convicted persons have no right to counsel in collateral proceedings generally, and no right to counsel to bring motions to correct illegal sentences in particular, is therefore dispositive. Mr. Smallwood, on the other hand, views the imposition of his new sentence as analytically distinct from the decision to grant his motion. He concedes that he had no right to counsel in preparing or arguing his motion to correct an illegal sentence. He argues, however, that once the court granted that motion, and thus was required to impose a new sentence, what followed was a sentencing. We agree with Mr. Smallwood. As a practical matter, it cannot seriously be disputed that the court imposed a new sentence. After granting his motion, the court declared that Mr. Smallwood’s “sentence for the murder . . . will be life suspend all but 80 years.” The court thus imposed on Mr. Smallwood a new sentence for the crimes of which he had been convicted 30 years earlier. It is also clear that the judge understood that she had just imposed a new sentence, as she requested the assistance of an Assistant State’s Attorney to advise Mr. Smallwood of certain rights that follow imposition of a sentence. See Rule 4-345(e) (stating that court has revisory power over a sentence upon “a motion filed within 90 days after imposition of a sentence”); Rule 4-344(a) (allowing defendant to seek review of sentence by three-judge panel when an application is filed “within 30 days after the 8 imposition of sentence”). Although not the first sentence imposed, a resentencing is a sentencing. Jones v. State, 414 Md. 686, 694 (2010). Additionally, in imposing the new sentence, the court did not merely correct a technical error in the prior sentence or comply with an appellate mandate to enter a particular sentence; the new sentence was both materially different and an exercise of the court’s discretion. Whether the old sentence was life, with no part of it suspended (but with credit for 72 days’ time served)—as the State had claimed—or life, with 72 days suspended—as Mr. Smallwood claims to have understood it—both are different from a sentence of life suspend all but 80 years, with five years’ probation.6 We again find Sanders instructive. There, the circuit court had granted Mr. Sanders’s Rule 4-345(a) motion, concluding that his original 20-year sentence for a handgun violation was illegal because the maximum possible sentence was 15 years. 105 Md. App. at 249-50. At a resentencing proceeding that occurred nine years after the original sentencing, a different judge imposed the maximum 15-year sentence, believing himself bound by the determinations of the original judge and thus unable to consider subsequent developments. Id. at 251. We vacated and remanded. We observed that 6 In addition to being literally different sentences, a convicted person sentenced to life is potentially eligible to be considered for parole at a different time than a convicted person sentenced to life with all but 80 years suspended. Compare Md. Code Ann., Corr. Serv. § 7-301(a) (providing, subject to conditions and limitations, that inmates are eligible for parole when they have served one-fourth of their aggregate sentence) with § 7-301(d)(2) (“an inmate who has been sentenced to life imprisonment is not eligible for parole consideration until the inmate has served 15 years”). Persons convicted of violent crimes committed on or after October 1, 1994 are subject to still different provisions, see Corr. Serv. § 7-301(c), but Mr. Smallwood committed his crime in 1982. 9 “whether a sentence is found to be illegal on appeal or by the trial court directly, the result is that a new sentence must be imposed,” and the rules for such resentencings are not different. Id. at 253. The trial court thus erred by restricting its review to only the information available at the initial sentencing because “[t]he law requires the [resentencing] judge to conduct his own inquiry and to reach his own sentence based upon the evidence before him.” Id. at 257; see Jones, 414 Md. at 703 (stating that the Court “agree[s] with the reasoning of Sanders”).7 Under Sanders, the portion of the proceeding that followed the court’s decision to grant Mr. Smallwood’s motion became a sentencing. That the court imposed the new sentence after granting a motion to correct an illegal sentence—as opposed to initially, on remand, on reconsideration, on a motion for modification, after postconviction relief, or otherwise—does not make it less of an imposition of a sentence. Our courts have similarly 7 A resentencing hearing is not required in every case in which a court grants a motion to correct an illegal sentence. In Holmes v. State, for example, the Court of Appeals held that a sentence in which home detention was imposed as a condition of probation entered pursuant to a guilty plea was illegal. 362 Md. 190, 192 (2000). Under the particular circumstances of that case, the Court did not remand for resentencing but instead ordered that the condition of probation be struck. Id. at 196-97. Similarly, when we conclude that sentences have been imposed for two or more separate crimes that should have been merged, we will sometimes vacate any sentence imposed for the conviction(s) on the lesser included offense(s) without remanding for resentencing. See, e.g., Perry v. State, 229 Md. App. 687, 715 (2016). In such cases, there is no resentencing and, therefore, no requirement to appoint counsel for that purpose. That, of course, is not the case when we vacate a sentence for a lesser included offense and remand for resentencing in the trial court’s discretion. See, e.g., Twigg v. State, 447 Md. 1, 20 (2016). We leave to future consideration, in an appropriate case, whether a convicted person has a right to counsel for a resentencing in which: (1) a correction to an illegal sentence is merely technical; or (2) the circuit court is entirely lacking in discretion because it is bound to follow an appellate mandate. Neither is true here. 10 recognized that sentences imposed after granting other collateral motions “constitute[] the imposition of a new sentence.” Hoile, 404 Md. at 614 (concluding that sentence imposed after granting motion for modification was an appealable final judgment); see also Webster, 359 Md. at 477 (“Here, the collateral motion, the motion for reconsideration, was granted, and resulted in the imposition of a new sentence.”). For the same reason, we find inapposite Grandison v. State, 425 Md. 34 (2012), and other cases cited by the State that address the bringing of collateral petitions. III. MR. SMALLWOOD HAD A RIGHT TO COUNSEL FOR RESENTENCING. We now turn to whether a convicted person has the right to counsel at the imposition of a sentence after a determination that the prior sentence was illegal. Our courts have identified two different sets of constitutional sources for the right to counsel. First, “[t]he Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee a right to counsel, including appointed counsel for an indigent, in a criminal case involving incarceration.” Rutherford, 296 Md. at 357. Under these provisions, “[a]s a general proposition, courts have deemed the assistance of counsel an indispensable and basic right whenever a particular stage or proceeding in the criminal justice process qualifies as ‘critical.’” Utt v. State, 293 Md. 271, 274 (1982). “The underlying policy, in a nutshell, is that ‘essential fairness is lacking if an accused cannot put his case effectively in court,’ and that the accused most likely will be unable to present an effective defense without the aid of counsel.” Id. at 275 (quoting State v. Renshaw, 276 Md. 259, 265 (1975)). 11  Second, “[u]nder certain circumstances, the requirements of due process include a right to counsel, with appointed counsel for indigents, in civil cases or other proceedings not constituting critical stages of criminal trials.” Rutherford, 296 Md. at 358. Under Article 24 of the Maryland Declaration of Rights,8 “indigent defendants ha[ve] a due process right to state-furnished counsel in any proceeding involving incarceration.” DeWolfe II, 434 Md. at 459; id. at 461-62 (citing cases in which the Court has “reaffirmed that the right attaches in any proceeding that may result in the defendant’s incarceration”). “As repeatedly pointed out in criminal and civil cases, it is the fact of incarceration, and not the label placed upon the proceeding, which requires the appointment of counsel for indigents.” Rutherford, 296 Md. at 361. The due process protections of Article 24 “are broader than those found in the United States Constitution” and broader than those contained in Article 21. DeWolfe II, 434 Md. at 457 n.9, 460-61. A. Sentencing Is a Critical Stage. The Supreme Court’s jurisprudence regarding the right to counsel at sentencing has evolved in stages. In Townsend v. Burke, a decision that predates the Supreme Court’s application of the Sixth Amendment as against the States, the Court found a due process violation when the absence of counsel led to a sentencing decision that was premised on false assumptions. 334 U.S. 736, 740 (1948). There, the petitioner had been arrested one 8 Article 24 provides “[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” 12 day, pleaded guilty the next, and was sentenced the day after that. Id. at 737. During that time, he was denied contact with anyone other than a ten-minute conversation with his wife. Id. at 737-38. At sentencing, the judge listed, and appeared to base his decision on, a number of assumptions about the petitioner’s criminal history that turned out to be false. Id. at 739-40. The Supreme Court observed that, had counsel been present, he “would have been under a duty to prevent the court from proceeding on such false assumptions and perhaps under a duty to seek remedy elsewhere if they persisted.” Id. at 740. The Court found that the combination of the “extensively and materially false” evidentiary foundation and the absence of counsel “render[ed] the proceedings lacking in due process.” Id. at 741. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Court extended the right to counsel to “every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Mempa v. Rhay, 389 U.S. 128, 134 (1967).9 In Mempa, the Court considered its pre-Gideon case law regarding the right to counsel at sentencing in light of this new Gideon framework. In that context, the Court found Townsend particularly instructive, observing that it “illustrates the critical nature of sentencing in a criminal case and might well be considered to support by itself a holding that the right to 9 Prior to Gideon, the right to counsel was not uniformly applied to the States. Instead, under Betts v. Brady, 316 U.S. 455 (1942), the right applied only where there were “special circumstances” that made it applicable. Mempa, 389 U.S. at 134. In Gideon, the Court overruled Betts and “held that the Sixth Amendment as applied through the Due Process Clause of the Fourteenth Amendment was applicable to the States and, accordingly, that there was an absolute right to appointment of counsel in felony cases.” Id. 13 counsel applies at sentencing.” Mempa, 389 U.S. at 134. The Court then applied the lessons of Townsend and other precedents to the challenge before it. The State of Washington sentencing scheme at issue in Mempa allowed sentencing to be deferred pending completion of periods of probation. Id. at 130. If a defendant violated probation, however, the court was required to impose the maximum sentence allowed by law for whatever crime was at issue. Id. at 135. The only discretion the court had was that it could recommend that the parole board approve release after a certain period of time. Id. Mr. Mempa, convicted of joyriding, originally received a sentence of 30 days’ incarceration, deferred to follow two years’ probation. Id. at 130. When the court revoked his probation several months later, without counsel present, the court immediately sentenced Mr. Mempa to ten years’ imprisonment, with a recommendation that the parole board release him after a year. Id. at 131. The State argued that Mr. Mempa was not entitled to counsel at his sentencing upon revocation of probation because, with the trial court bound to sentence Mr. Mempa to the maximum possible sentence, that resentencing was “a mere formality constituting part of the probation revocation proceeding.” Id. at 135. The Supreme Court disagreed. Although the trial court had to impose the maximum possible sentence, it did still have discretion to make a release recommendation on which the parole board placed “considerable weight.” Id. Thus, “the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case as to sentence is apparent.” Id. However, “[e]ven more important” to the Court was “the fact that certain legal rights,” including the right to take an appeal, “may be lost if not 14 exercised at this stage.” Id. at 135-36. Thus, the Court held, “a lawyer must be afforded at this proceeding.” Id. at 137. Subsequently, in Gardner v. Florida, a plurality of the Court observed that although a “defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel.” 430 U.S. 349, 358 (1977); see Catala v. State, 168 Md. App. 438, 468-69 (2006) (holding that a defendant who appears without counsel at sentencing must be given opportunity to explain why). That is because “[t]he defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.” Gardner, 430 U.S. at 358. From these cases we glean the following: (1) sentencing is a critical stage of a criminal proceeding at which the right to counsel attaches; (2) the right attaches because (a) the results of a sentencing can affect the fact and duration of a defendant’s incarceration, and (b) counsel can both assist a defendant in presenting his or her case and ensure that the defendant receives due process; and (3) the right applies even when the sentencing court has minimal discretion. The State points out, accurately, that these cases have generally addressed the right to counsel at an initial sentencing, not a resentencing after the grant of collateral relief. We now address whether that difference should cause us to reach a different conclusion. 15  B. Resentencing Is a Critical Stage.10 We see no ground for distinguishing a resentencing such as that here from a sentencing when it comes to the application of the right to counsel. A resentencing, like a sentencing, involves the imposition of a sentence, and can alter both the fact and duration of a defendant’s incarceration. See Sanders, 105 Md. App. at 253-54. Counsel at resentencing, as at sentencing, can provide assistance to the defendant and ensure that the defendant receives due process. Townsend, 334 U.S. at 740-41. And trial courts generally have wide discretion in imposing a new sentence, as they have when imposing an initial sentence. Jones, 414 Md. at 693. Although no Maryland appellate court has yet addressed this issue directly, our preliminary conclusion that the right to counsel applies on resentencing finds strong support in Bartholomey v. State, 267 Md. 175 (1972). There, the Court of Appeals considered the fate of death penalty cases in light of Furman v. Georgia, 408 U.S. 238 (1972), in which the Supreme Court concluded that certain discretionary death penalty statutes violated the Eighth Amendment to the United States Constitution. The Court of 10 As a preliminary matter, the State argues that the Sixth Amendment and Article 21 do not apply at all here because a motion to correct an illegal sentence is not a stage of a criminal proceeding, but “a single civil proceeding in the nature of a collateral attack on the original judgment of conviction.” To the contrary, unlike a postconviction proceeding, a motion to correct an illegal sentence is “part of the same criminal proceeding and not a wholly independent action. [] Rule [4-345(a)] simply grants the trial court limited continuing authority in the criminal case to revise the sentence.” State v. Kanaras, 357 Md. 170, 183-84 (1999). A Rule 4-345(a) motion is collateral to the original prosecution and direct appeal, see Grandison, 425 Md. at 39 (referring to a Rule 4-345(a) motion as “part of the aforementioned collateral proceedings”), but it is filed and addressed as part of the criminal case, not as a separate civil proceeding. 16 Appeals first determined that the Supreme Court’s decision necessarily invalidated all of the death sentences before it and, as a result, that each convicted individual would need to be resentenced. Id. at 184. Because different cases were (or, as we shall see, were not) before it in different procedural contexts, the Court addressed them separately. Two of those cases are particularly instructive. Mr. Bartholomey had been convicted of first-degree murder. Id. at 180. As a result, the only legal sentence he could receive on remand was “life imprisonment; no discretion is lodged in the sentencing judge and the imposition of any other sentence would plainly be illegal.” Id. at 185. Because only the circuit court had jurisdiction to impose the sentence, the Court remanded the case for a new sentencing hearing “with directions that it sentence Bartholomey to life imprisonment on each of his murder convictions.” Id. at 186. Even though the circuit court thus lacked any discretion as to the sentence to be imposed, the Court still stated that, “[a]t the resentencing hearing, Bartholomey has the right to be present and represented by counsel,” as well as the right of allocution. Id. While Mr. Bartholomey’s case was before the Court on direct appeal, the case of Elisha Sterling, Jr. was not properly before the Court at all because Mr. Sterling had improperly filed his petition with the Court itself, rather than with the appropriate circuit court. Id. at 191. The Court observed, however, that because the death sentence was clearly illegal under Furman, if Mr. Sterling filed a motion to correct an illegal sentence or a postconviction petition with “the trial court which imposed the sentence,” that court would have “the power to vacate it.” Id. at 191-92. As a result, the Court obliged the 17 request of all parties to provide guidance as to what should occur if Mr. Sterling were to seek such relief. Id. at 192. Mr. Sterling was convicted of rape, not first-degree murder. As a result, unlike in Mr. Bartholomey’s case, the circuit court on remand was not restricted by statute as to the sentence it could impose. Id. at 192-93. Nor would that court be mandated to sentence Mr. Sterling to “the next most severe penalty which the court could lawfully impose.” Id. at 193. Rather, “in resentencing Sterling, and [others] similarly situated, the sentencing court must approach its task as if no sentence had ever been imposed, and it was exercising its sentencing discretion . . . for the first time.” Id. The judge was thus “invested with wide discretion in determining the sentence to be imposed within the authorized statutory limits.” Id. The sentencing judge could therefore consider “the defendant’s conduct after the offense was committed,” including “evidence of events occurring after the date of the original sentencing to whatever extent he may deem necessary.” Id. at 194. Especially notable for our purposes, the Court of Appeals believed that “[i]t [went] without saying that, as in Bartholomey, Sterling is entitled to be present at the sentencing hearing, represented by counsel, and afforded his right of allocution.” Id.11 11 The Court’s statement that Mr. Sterling was entitled to representation by counsel for his resentencing proceeding was dicta, both because the Court admittedly lacked jurisdiction over the case and because it is not clear that the right to counsel was placed at issue—the decision does not analyze the issue or contain any indication that the parties had taken contrary positions on it. We nonetheless accord the statement substantial weight, both because the Court made it in the course of purposefully providing guidance to lower courts as to how to conduct resentencing proceedings and because the Court expressly intended the statement to apply to the very situation at issue here, a resentencing following the grant of a motion to correct an illegal sentence. 18  Courts in other jurisdictions have agreed that there is a right to counsel in a resentencing that follows the grant of a collateral motion. In State v. Scott, for example, the Florida Supreme Court held that a prisoner whose sentence was found illegal, and who was therefore “entitled to a modification of the original sentence or the imposition of a new sentence,” was then also entitled to “the full panoply of due process considerations,” including the right to counsel. 439 So. 2d 219, 220 (Fla. 1983). The court found it “[u]narguabl[e]” that, in that circumstance, “the prisoner to be sentenced is facing a critical stage of the criminal proceedings, whether the sentence to be imposed is the immediate result of adjudication of guilt or the result of a successful [collateral] challenge.” Id. at 221. And in State v. Kelly, a Louisiana intermediate appellate court vacated the sentence of a defendant who was resentenced without counsel after his original sentence had been set aside on a motion to correct an illegal sentence. 217 So. 3d 576, 577 (La. Ct. App. 2017). The court did so even though the defendant had “received the minimum sentence available” in his resentencing, and might receive a harsher one on remand, because “a defendant has a right to counsel at every critical stage of criminal proceedings, including a resentencing hearing.” Id. at 585; see also State v. Wilson, 179 So. 3d 903, 907 (La. Ct. App. 2015) (holding that defendant was entitled to counsel “to protect his interests” at resentencing after grant of motion to correct an illegal sentence). Similarly, and for the same reason, the Supreme Court of Ohio has held that a defendant is entitled to counsel even at a resentencing hearing “conducted for the limited purpose of properly imposing statutorily mandated postrelease control.” State v. Schleiger, 21 N.E.3d 1033, 1036 (Ohio 2014). Although the court lacked discretion at the hearing, 19 “counsel’s presence ensures that the court complies with the directives of the statute, that it does not exceed the scope of the hearing, that the defendant understands the imposition of postrelease control, and that issues are properly preserved for appellate review.” Id. We agree with these courts that, for largely the same reasons that an initial sentencing is a critical stage of a criminal proceeding at which a defendant is entitled to counsel, a resentencing after the grant of a motion to correct an illegal sentence is also a critical stage at which a defendant is entitled to counsel. C. Article 24 of the Declaration of Rights Provides a Right to Counsel at Resentencing. Independent of our analysis under the Sixth Amendment and Article 21, Mr. Smallwood also had a right to counsel at his resentencing under Article 24 of the Declaration of Rights.12 The Court of Appeals has interpreted the right to counsel under Article 24 broadly to “attach[] in any proceeding that may result in the defendant’s incarceration.” DeWolfe II, 434 Md. at 461 (citing cases applying the right to civil contempt proceedings and probation revocation proceedings). The critical factor in determining whether there is a right to counsel “is the fact of incarceration, and not the label placed upon the proceeding.” Rutherford, 296 Md. at 361. The Court of Appeals’s decision in DeWolfe II is instructive as to the breadth of this right. There, the Court determined that Article 24 provides a right to counsel at a defendant’s initial appearance before a district court commissioner, during which the 12 Because the protections of Article 24 with respect to the right to counsel are broader than those of the Fourteenth Amendment, DeWolfe II, 434 Md. at 457 n.9, we confine our due process discussion and ruling to Article 24. 20 commissioner makes a preliminary determination as to whether the defendant “is eligible for pretrial release” and, if so, whether and in what amount to impose bail. 434 Md. at 450. That is so even though a defendant who is not released by the commissioner must be presented promptly to a district court judge, at which time the defendant has a right to counsel and to the district court judge’s independent determination regarding the fact and amount of bail. Id. at 450-51, 455. The Court of Appeals held that defendants have a right to counsel at the initial appearance because “the defendant is in custody and, unless released on his or her personal recognizance or on bail, the defendant will remain incarcerated until a bail review hearing before a judge.” Id. at 464. It did not matter that the custody might continue “only for a brief time” before the defendant had a right to a hearing, with counsel, before a judge, id. at 463-64 (quoting DeWolfe v. Richmond, 434 Md. 403, 429 (2012) (“DeWolfe I”)); it was enough that the proceeding had a potential effect on a defendant’s incarceration, DeWolfe II, 434 Md. at 464. In a dissent joined by two other judges, Chief Judge Barbera pointed out that the Court had not previously extended the due process-based right to counsel beyond circumstances involving “in-court proceedings, conducted by a judge and having the potential to result in a judge-ordered term of incarceration that was final, save for the possibility of a subsequent court proceeding at which the defendant would have the right to counsel.” Id. at 467 (Barbera, C.J., dissenting). Because hearings before district court commissioners had “none of those features,” the dissent would not have extended the right to those hearings. Id. 21  Here, as discussed above, a resentencing after the grant of a motion to correct an illegal sentence has the potential to affect the term of incarceration, which the majority in DeWolfe II viewed as sufficient by itself to invoke a due process right to counsel. Notably, such a resentencing also meets the DeWolfe II dissenters’ criteria for application of the right as the proceeding is in court, conducted by a judge, and has the potential to result in a judge-ordered term of incarceration that is final, subject to appeal. We thus hold that there is a right to counsel at a resentencing that follows the grant of a motion to correct an illegal sentence under Article 24. D. The Circuit Court Erred in Not Inquiring Further Regarding Mr. Smallwood’s Lack of Counsel Before Resentencing Him. Once the motions court determined that Mr. Smallwood’s existing sentence was illegal, Mr. Smallwood needed to be resentenced. In resentencing him, the court was “not limited by the strict rules of evidence and [wa]s invested with wide discretion in determining the sentence to be imposed within the authorized statutory limits . . .” Sanders, 105 Md. App. at 254 (quoting Bartholomey, 267 Md. at 193). Although Mr. Smallwood’s first-degree murder conviction carried a statutorily-mandated life sentence, a sentencing judge is empowered to suspend any portion of that life sentence so long as a period of probation is added to the split sentence. Md. Code. Ann., Crim. Law § 2-201(b) (2012 Repl.; 2017 Supp.); Md. Code. Ann., Crim. Proc. § 6-222 (2008 Repl.; 2017 Supp.). The sentencing judge thus had wide discretion at resentencing.13 13 The State’s contention that a resentencing is unlike an original sentencing because it cannot be the cause of an individual’s incarceration—because the individual is already incarcerated and will remain so—is wrong on both ends. First, there are many situations 22  Moreover, in considering the appropriate sentence, the court was not restricted to the information that was available at the time of the original sentencing, but could have taken into account, for example, Mr. Smallwood’s conduct during his 31 years of incarceration, as well as any other factors the court considered relevant. Jones, 414 Md. at 694 (“The trial court is charged, therefore, with ‘exercising its sentencing discretion’ as if the sentence was occurring for the first time.”) (quoting Bartholomey, 267 Md. at 193); Sanders, 105 Md. App. at 256-57. Sentencing judges have “the flexibility . . . to effectuate the goals of sentencing by imposing a sentence that fits both the crime and the criminal.” Twigg, 447 Md. at 28 (citing Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct. App. 2013)). Given the stakes of a resentencing, the amount of discretion available to the resentencing court, and the possibility for error and mistake, the potential utility of counsel is unquestionable. In this case, although the presence of counsel for Mr. Smallwood may not have changed the result at all, it also may have. See DeWolfe I, 464 Md. at 429 (stating that “the likelihood that the Commissioner will give full and fair consideration to all facts relevant to the bail determination can only be enhanced by the presence of counsel”). And counsel almost certainly would have challenged the advice given to Mr. Smallwood that he lacked a right of appeal from his new sentence. in which an individual is, and has been, incarcerated at the time of his or her initial sentencing, including where the individual was denied or did not make bail on the charge at issue or where the individual was already incarcerated on a different offense. Second, there are also situations, as here, in which an individual at least theoretically could be released on resentencing, and so the sentencing court’s decision to impose a sentence that is longer than time served would actually be the cause of continued incarceration. 23  In sum, we hold that Mr. Smallwood had a right to counsel at his resentencing both because sentencing is a critical stage of a criminal proceeding and because he had a due process right to counsel at a proceeding in which the fact and length of his future incarceration were at issue. Had Mr. Smallwood had counsel present, resentencing could have proceeded immediately. Because he did not, and in the absence of an appropriate determination on the record that he had knowingly and intelligently waived his right to counsel, the court was required to postpone sentencing until a later date.14 We make one further comment for the guidance of the circuit court on remand. The “upper bound” for a new sentence after a prior sentence has been found illegal, for purposes of application of § 12-702(b) of the Courts and Judicial Proceedings Article, is either: (1) “a previous lawful sentence imposed, if any”; or (2) the “resulting legal sentence” after the illegality is removed. Greco, 427 Md. at 509. Because “removing” an illegality can result in an increased sentence—if, for example, the original sentence were less than a statutory minimum or, as in Greco, the illegality stemmed from failure to impose a period of probation for a split sentence—the cap on a new sentence, in some circumstances, can be higher than the originally-imposed illegal sentence. State v. Crawley, 455 Md. 52, 68 (2017) (holding that circuit court acted properly in correcting an illegal sentence by adding 14 During his postconviction hearing, Mr. Smallwood expressed his lack of preparedness to address sentencing issues after the court granted his motion: “If I had a lawyer, I would have been better off. I definitely would have been better off because he would have been able to speak for me. I wasn’t in no position right then and there. I wasn’t expecting to be sentenced right after she just declared my regular sentence illegal.” 24 a period of probation to sentence originally imposed). Here, the only sentence previously imposed was “the term of his natural life less 72 days.” The “illegality” alleged by Mr. Smallwood was the purported ambiguity of the phrase “less 72 days.” Stripped of that, the original sentence imposed on Mr. Smallwood for his murder conviction was life, with credit for the 72 days he had already served. Thus, the maximum sentence that can be imposed on remand, subject to the provisions of § 12-702(b), is life, with credit for those 72 days and for all of the time he has served since. See Crim. Proc. § 6-218(c) (requiring credit for time served upon resentencing); Parker v. State, 193 Md. App. 469, 520 (2010) (concluding “that the General Assembly intended for a defendant to receive credit for the time served on a previous sentence that is later vacated”). SENTENCE FOR MURDER VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR RESENTENCING CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE. 25 

___________ No. 95-2868 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Judith K. Bledsoe, * * [UNPUBLISHED] Appellant. * ___________ Submitted: December 21, 1995 Filed: December 28, 1995 ___________ Before BOWMAN, BEAM, and MURPHY, Circuit Judges. ___________ PER CURIAM. Judith K. Bledsoe appeals the sentence imposed by the district court1 following her guilty plea to interstate transportation of a security taken by fraud with a value of $5,000 or more, in violation of 18 U.S.C. § 2314. We affirm. While working as a bookkeeper for a Nebraska automobile dealership, Bledsoe wrote five checks (totaling $32,320) to herself from the company's business account by forging the owner's signature. After writing the checks, Bledsoe deposited them in her personal bank account in Iowa, entered them as void on the company's computer and ledgers, removed the forged checks from the 1 The Honorable Thomas M. Shanahan, United States District Judge for the District of Nebraska. bank statement, and inflated the amounts on legitimate checks to reconcile the bank statement. Just before obtaining the Nebraska position, Bledsoe had worked as a bookkeeper for a Nevada truck center. The manager of the truck center alleged that over the course of three years Bledsoe embezzled at least $131,000 from the company by forging his signature on checks drawn on a credit card account. A police report indicated that Bledsoe admitted she wrote the checks, deposited them in her personal bank account, and manipulated the company's books and computer records to avoid detection. A criminal complaint was filed against Bledsoe in Nevada, charging her with seven counts of embezzlement. At sentencing on the instant offense, Bledsoe objected to the presentence report's recommendation to hold her responsible for a total loss exceeding $120,000. Specifically, Bledsoe argued that the then- pending Nevada charges could not be used as relevant conduct. Bledsoe also objected to a recommended U.S.S.G. § 3B1.3 abuse-of-trust enhancement. The district court overruled Bledsoe's objections, sentenced her to 15 months imprisonment and three years supervised release, and ordered her to pay $32,320 in restitution. On appeal, Bledsoe argues that the district court erred by using the Nevada charges to determine the amount of loss. We review a district court's application of the Sentencing Guidelines de novo, and its factual findings regarding whether a defendant's acts constituted relevant conduct for clear error. United States v. Ballew, 40 F.3d 936, 943 (8th Cir. 1994), cert. denied, 115 S. Ct. 1813 (1995). For offenses like Bledsoe's that are grouped, see U.S.S.G. § 3D1.2(d), relevant conduct includes acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2). "The cumulative loss produced by a common scheme or course of conduct should be used in determining the offense level [for fraud], regardless of the number of counts of conviction." U.S.S.G. § 2F1.1, comment. (n.6); see also United States v. Galloway, 976 -2- F.2d 414, 425 (8th Cir. 1992) (en banc) (under § 1B1.3, sentencing court may consider conduct beyond count of conviction), cert. denied, 113 S. Ct. 1420 (1993). To be part of a common scheme or plan, multiple offenses must be substantially connected by at least one common factor, such as "`common victims, common accomplices, common purposes or similar modus operandi.'" United States v. Sheahan, 31 F.3d 595, 599 (8th Cir. 1994) (citing U.S.S.G. § 1B1.3, comment. (n.9)). We conclude the district court did not err in its application of section 1B1.3 or in its finding that Bledsoe's Nevada charges should be used to determine the amount of loss. The undisputed facts show that Bledsoe used a similar modus operandi to commit both offenses, see id. at (n.9(A)) (similarity of modus operandi includes using similar computer manipulations to execute scheme), and that only three months separated her conduct in Nevada and Nebraska. Bledsoe's self-incrimination rights were not implicated because she was not "compelled" to testify about the Nevada charges at the sentencing hearing, and there was no double jeopardy violation. See U.S. Const. amend. V; Witte v. United States, 115 S. Ct. 2199, 2207-08 (1995) (double jeopardy rights not implicated where sentencing court considers "related conduct outside the elements of the crime" because defendant "is still punished only for the fact that the present offense was carried out in a manner that warrants increased punishment, not for a different offense (which that related conduct may or may not constitute)"). Bledsoe's due process claim likewise fails. Cf. Galloway, 976 F.2d at 425-26 (due process rights not implicated when application of § 1B1.3 caused almost three-fold increase in sentence). Bledsoe also argues that the district court erred by assessing the abuse-of-trust enhancement. Section 3B1.3 requires a sentencing court to assess a two-level enhancement "[i]f the defendant abused a position of . . . private trust . . . in a manner that significantly facilitated the commission or concealment -3- of the offense." A district court's assessment of a section 3B1.3 enhancement is entitled to great deference and will not be reversed unless it is clearly erroneous. United States v. Johns, 15 F.3d 740, 744 (8th Cir. 1994). After reviewing the record, we conclude the district court did not clearly err by finding that Bledsoe had abused a private trust, because her conduct exceeded "taking money from the till," and she used her position to facilitate and conceal her actions. Cf. United States v. Brelsford, 982 F.2d 269, 271-73 (8th Cir. 1992) (affirming § 3B1.3 enhancement where bank "teller supervisor" was responsible for maintaining and reviewing reports and used position to conceal embezzlement of bank funds). The judgment is affirmed. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -4- 

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 08-2688 __________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. * Michael Suitt, * * Appellant. * ___________ Submitted: January 13, 2009 Filed: June 25, 2009 ___________ Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges. ___________ SHEPHERD, Circuit Judge. Michael Suitt appeals the district court’s1 denial of his motion to suppress evidence that he possessed with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). We affirm. 1 The Honorable Ronald E. Longstaff, United States District Judge for the Southern District of Iowa. -1-  I. Dallas County, Iowa, Deputy Sheriff Scott Faiferlick (“Deputy Faiferlick”) was driving to work with his canine when he observed the appellant, Michael Suitt, driving over the speed limit in a white Ford pickup truck. Observing that Suitt’s truck appeared to have an expired registration, Deputy Faiferlick used a computer in his car to run a check on Suitt’s license plate. The check confirmed that Suitt’s registration had expired. At 11:31 a.m., Deputy Faiferlick stopped Suitt’s vehicle. After checking Suitt’s driver’s license, proof of insurance, and vehicle registration, Deputy Faiferlick asked Suitt to exit his vehicle and accompany him to the patrol car while Deputy Faiferlick ran additional checks on Suitt’s license and registration. At the suppression hearing, Deputy Faiferlick explained that he wanted to run additional checks because the database used by dispatch is more complete than the database accessed via his car computer. At 11:34 a.m., Deputy Faiferlick told Suitt that he was going to issue a warning ticket. While writing the warning ticket, Deputy Faiferlick began asking Suitt routine questions about his trip. When asked where he was going, Suitt hesitated and answered that he was heading to Ohio, but could not name the city. When asked whom he was going to see, Suitt said that he was going to see family. When asked for specifics, he replied, “I have some family and friends out there.” When asked how long he would be in Ohio, Suitt said “as much time as I like.” Throughout this questioning, Deputy Faiferlick observed that Suitt appeared nervous and fidgety. At 11:39 a.m., Deputy Faiferlick ran the second registration check, this time -2- having dispatch use its database.2 At 11:44 a.m., Deputy Faiferlick gave Suitt a warning ticket and returned his driver’s license. As Suitt was walking away, Deputy Faiferlick asked Suitt whether he had “half a minute” to answer a few final questions. Suitt said that he did, and Deputy Faiferlick then asked him whether he had any contraband in the car. Suitt denied that he had anything illegal. Deputy Faiferlick then asked for permission to search the vehicle. Suitt refused to consent, saying that “I mean I’m kind of in a hurry right now,” and “I’m on a tight schedule.” At this point Deputy Faiferlick decided to walk his drug dog around Suitt’s vehicle. At the suppression hearing, Deputy Faiferlick testified that Suitt’s claim to be on a tight schedule triggered his decision to conduct a dog sniff because it seemed suspicious in light of Suitt’s earlier statements implying that he was not in a hurry. At 11:47 a.m., Deputy Faiferlick’s canine, Hank, alerted to the bed of Suitt’s truck. Deputy Faiferlick then opened the bed of the pickup and discovered 32 bales of marijuana. After being indicted on one count of possession with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B) and one count of forfeiture under 21 U.S.C. § 853, Suitt filed a motion to suppress evidence, which the district court denied. Subsequently, this Court decided United States v. Peralez, 526 F.3d 1115 (8th Cir. 2008), in which we held that drug interdiction questions that prolonged a traffic stop for 10 minutes beyond the point at which the officer decided to issue a traffic citation unreasonably prolonged the detention under the Fourth Amendment. Id. at 118. Suitt then filed a supplemental motion for reconsideration of the denial of his motion to suppress citing our decision in Peralez. The district court denied this motion for reconsideration finding that Peralez did not apply because Deputy Faiferlick did not ask drug interdiction questions, but only routine traffic questions, and therefore he did not unreasonably prolong the stop. Suitt subsequently pled guilty to the possession with intent to 2 Apparently, at 11:41 a.m., Faiferlick also conducted a third check on his car computer, just as he had done prior to the stop. -3- distribute charge and was sentenced to 60 months imprisonment, but conditioned his plea on the appeal of the denial of his motion to suppress. II. “We review a district court’s factual findings for clear error and legal conclusions de novo when reviewing the denial of a motion to suppress.” United States v. McGlothen, 556 F.3d 698, 701 (8th Cir. 2009). Stated succinctly, the primary issue in this case is whether the dog sniff that led to the discovery of the marijuana stored in Suitt’s automobile was the result of an unconstitutionally prolonged traffic stop. Suitt’s basic contention is that Deputy Faiferlick used routine traffic questioning as a pretext to prolong the stop and manufacture a basis on which he could search Suitt’s vehicle. Suitt also argues that the marijuana should be suppressed because the dog sniff was conducted in response to the exercise of his constitutional right to refuse consent to a search. Dog sniffs of the exterior of a vehicle are not searches under the Fourth Amendment. See United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir. 2007). “Such a dog sniff may be the product of an unconstitutional seizure, however, if the traffic stop is unreasonably prolonged before the dog is employed.” United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006), cert. denied, 549 U.S. 1118 (2007) (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)). Such a situation might typically occur when an officer unreasonably lengthens a roadside detention until another officer can bring a drug dog to the scene. However, Deputy Faiferlick had his drug dog with him when he stopped Suitt. Thus, we note as an initial flaw in Suitt’s argument the fact that Deputy Faiferlick did not need any justifiable suspicion under the Fourth Amendment to legally conduct the dog sniff. Having said that, the dog sniff was nonetheless impermissible if it was the result of an unconstitutionally prolonged traffic stop. See Peralez, 526 F.3d at 1119; Alexander, 448 F.3d at 1016. -4-  “The Supreme Court has analogized roadside questioning during a traffic stop to a Terry stop, which allows an officer with reasonable suspicion to detain an individual in order to ask ‘a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.’” United States v. Rodriguez-Arreola, 270 F.3d 611, 617 (8th Cir. 2001) (quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). “A constitutionally permissible traffic stop can become unlawful, however, ‘if it is prolonged beyond the time reasonably required to complete’ its purpose.” Peralez, 526 F.3d at 1119 (quoting Caballes, 543 U.S. at 407). “During a traffic stop, an officer may detain the occupants of the vehicle while the officer completes a number of routine but somewhat time- consuming tasks related to the traffic violation.” Id. (quotation omitted). “A reasonable investigation includes asking for the driver’s license, the vehicle’s registration, as well as inquiring about the occupants’ destination, route, and purpose.” United States v. Sanchez, 417 F.3d 971, 975 (8th Cir. 2005) (quotation omitted). “Whether a particular detention is reasonable in length is a fact-intensive question, and there is no per se time limit on all traffic stops.” Olivera-Mendez, 484 F.3d at 510. “When there are complications in carrying out the traffic-related purposes of the stop, for example, police may reasonably detain a driver for a longer duration than when a stop is strictly routine.” Id. “‘Reasonableness . . . is measured in objective terms by examining the totality of the circumstances.’” United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 646 (8th Cir. 1999) (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)). A number of our cases have held that “[o]nce an officer has decided to permit a routine traffic offender to depart with a ticket, a warning, or an all clear, the Fourth Amendment applies to limit any subsequent detention or search.” Peralez, 526 F.3d at 1120 (quoting Alexander, 448 F.3d at 1016); see also $404,905.00 in U.S. Currency, 182 F.3d at 649 (traffic stop ends when officer tells suspect that he intends to return the suspect’s documents). In Peralez, an officer prolonged a traffic stop, without reasonable suspicion, for 10 minutes after he told the suspects that they would -5- only receive a warning ticket for a traffic violation. 526 F.3d at 1118. Because the officer in Peralez used the 10-minute extension to engage the suspects in a series of drug interdiction questions unrelated to the basis of the stop, we held that “the trooper’s focus on non-routine questions prolonged the stop ‘beyond the time reasonably required’ to complete its purpose.” Id. at 1121 (quoting Caballes, 543 U.S. at 407). We did not require suppression of the evidence in Peralez, however, because the officer had announced his intention to search the vehicle before questioning the suspects, and he had the canine with him at the scene. Id. at 1121-22. Thus, the unconstitutionally prolonged detention was not “‘a but-for cause of obtaining the evidence’ . . .” Id. at 1121 (quoting Olivera-Mendez, 484 F.3d at 551). Peralez does not control this case. First of all, its conclusion that the officer unreasonably prolonged the traffic stop was not necessary to its ultimate ruling, i.e. that the evidence need not be suppressed. Because the officer’s decision to conduct a “dog sniff was not the consequence of a constitutional violation,” id. (quoting Caballes, 543 U.S. at 408), the court’s statements concerning the unlawfully extended stop are non-binding dicta, see John Morrell & Co. v. Local Union 304A of United Food & Commercial Workers, 913 F.2d 544, 550 (8th Cir. 1990). Second, there are important factual distinctions between this case and Peralez that dissuade us from applying its reasoning here. Until the end of the encounter, Deputy Faiferlick did not ask drug interdiction questions like the officer in Peralez, but routine questions about Suitt’s travel plans. The Supreme Court has rejected the notion that the Fourth Amendment prohibits questioning unrelated to the purpose of the original detention, provided that such questioning does not prolong the stop. Muehler v. Mena, 544 U.S. 93, 100-01 (2005); see also Olivera-Mendez, 484 F.3d at 510 (“Where the initial detention was not prolonged by questioning on unrelated matters, there was no additional seizure within the meaning of the Fourth Amendment.” (quotation omitted)). Nonetheless, whether questioning is related or unrelated to the purpose of a detention is relevant to deciding whether the detention -6- was unnecessarily prolonged. After deciding to issue a warning and without any basis for suspecting that criminal activity was afoot, the officer in Peralez proceeded to question the suspects about the presence of guns, drugs, and other illegal activity. 526 F.3d at 1120. Such questioning could not plausibly be related to the purpose of the detention, and therefore it was an impermissible basis on which to “more than double[] the time Peralez was detained.” Id. at 1121. Here, seconds after announcing his intention to let Suitt go with a warning, Deputy Faiferlick asked Suitt about his travel plans as he was writing the warning ticket. It would be arbitrary to the point of pure caprice if routine questions that would have been plainly related to the stop if asked a few seconds before this announcement lost their nexus to, and became an illegitimate basis for continuing, the detention when asked a few seconds later while Deputy Faiferlick engaged in the necessary process of completing the warning ticket. Finally, there is no indication that the suspects in Peralez did or said anything suspicious during the officer’s questioning that justified further interrogation. See id. However, Suitt repeatedly gave hesitant, evasive, and incomplete answers to Deputy Faiferlick’s questions. Suitt would have us analyze this situation by focusing on each of his answers to Deputy Faiferlick’s questions and asking whether and at what point Deputy Faiferlick obtained the suspicion necessary to delay the detention for 10 minutes beyond the conclusion of the basis for the initial stop. However, this approach would transform the common sense nature of the reasonable-suspicion standard into a highly artificial and technical inquiry. See $404,905.00 in U.S. Currency, 182 F.3d at 649 (“When the constitutional standard is reasonableness measured by the totality of the circumstances, we should not be governed by artificial distinctions.”). Deputy Faiferlick’s initial question about Suitt’s destination was perfectly legitimate and did not prolong Suitt’s detention. Suitt gave a vague, evasive answer. Deputy Faiferlick then asked another question about whom Suitt was visiting in Ohio, and Suitt again responded in an unconvincing manner. Although each answer could be innocent when viewed in isolation, the suspicious character of each response was magnified by the evasions that preceded it. -7-  “An officer’s suspicion of criminal activity may reasonably grow over the course of a traffic stop as the circumstances unfold and more suspicious facts are uncovered.” United States v. Linkous, 285 F.3d 716, 720 (8th Cir. 2002); see also United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993) (“[I]f the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.”). Deputy Faiferlick initiated the questioning while performing the routine task of writing a warning ticket. Each of Suitt’s hesitant responses added piece by piece to Deputy Faiferlick’s growing doubts. Thus, this case is unlike Peralez, where the officer could not point to any grounds for suspicion that developed in the course of his drug interdiction questioning. See 526 F.3d at 1120. Accordingly, we hold that there was reasonable suspicion to prolong the stop for additional questioning after the basis for the initial stop had been resolved. Having concluded that Deputy Faiferlick’s questioning did not unreasonably prolong the stop, we must now consider whether the dog sniff constituted a discrete constitutional violation. Suitt argues that the dog sniff constituted such a violation because Deputy Faiferlick refused to let him leave after he declined consent to search his car, and that the exercise of his right not to consent to the search was an improper basis on which to continue the stop. While we agree with Suitt that exercising one’s right not to consent to a search is not a suspicious action that would justify an otherwise unconstitutional seizure, Suitt’s argument fails because the dog sniff was neither a search nor a seizure requiring any Fourth Amendment justification. We have repeatedly upheld dog sniffs that were conducted within a few minutes after a traffic stop ended. See Alexander, 448 F.3d at 1017 (holding that a dog sniff four minutes after the conclusion of a traffic stop was a de minimis extension of the stop and not unreasonable); United States v. Martin, 411 F.3d 998, 1002 (8th Cir. 2005) (holding that a dog sniff conducted two minutes after the conclusion of a traffic stop was not unreasonable); $404,905.00 in U.S. Currency, 182 F.3d at 649 (holding that a canine sniff thirty seconds to two minutes after conclusion of a stop was not an -8- unconstitutional detention). Deputy Faiferlick walked his canine around Suitt’s vehicle at approximately 11:47 a.m., three minutes after he ended the stop at 11:44 a.m when he returned Suitt’s license and issued the warning ticket. This constituted no more than a de minimis extension of the stop. Thus, no discrete Fourth Amendment event occurred as a result of Suitt’s denial of permission to search his vehicle that would need to be predicated upon reasonable suspicion. Consequently, the search of Suitt’s vehicle and seizure of 32 bales of marijuana did not violate the Fourth Amendment. III. Accordingly, the judgment below is affirmed. -9- 

34 F.3d 1073 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.Merle L. ROYSE, Plaintiff-Appellant,v.Joseph D. LEHMAN; Michael Ponti; Walter L. Kautzky; ChaseA. Riveland, Defendants-Appellees. No. 93-36118. United States Court of Appeals, Ninth Circuit. Submitted Aug. 3, 1994.*Decided Aug. 9, 1994. Before: WALLACE, Chief Judge, HUG and RYMER, Circuit Judges. 1 Merle L. Royse, a Washington state prisoner, appeals pro se the district court's summary judgment for defendants in Royse's 42 U.S.C. Sec. 1983 action alleging that prison officials violated Royse's constitutional rights by failing to provide Royse with a television set in order to watch prison educational programs. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review de novo, Tipton v. University of Hawaii, 15 F.3d 922, 925 (9th Cir.1994), and affirm. 2 Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows that no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. Id. To defeat a summary judgment motion, the nonmoving party must come forward with evidence "sufficient to establish the existence of any elements that are essential to that party's case, and for which that party will bear the burden of proof at trial." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The party opposing summary judgment cannot rest on conclusory allegations but must set forth specific facts showing that there is a genuine issue for trial. Leer v. Murphy, 844 F.2d 628, 631 (9th Cir.1988). There is no genuine issue for trial where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. Taylor, 880 F.2d at 1045. 3 Royse contends that he was denied equal protection of the law because other prisoners obtained televisions when he did not. This contention lacks merit. 4 "Section 1983 provides a remedy for violations of the equal protection clause of the fourteenth amendment." Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1112 (9th Cir.1991). In order to prove discrimination in violation of Sec. 1983, however, a plaintiff "must demonstrate that the defendants acted with the intent to discriminate." Id. Conclusory allegations by themselves do not establish an equal protection violation without proof of invidious discriminatory intent. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). Merely treating two groups differently does not necessarily violate the equal protection clause. Bonner v. Lewis, 857 F.2d 559, 565 (9th Cir.1988). 5 Here, the defendants moved for summary judgment, submitting evidence that the availability of prison supplied in-cell television sets was very limited when Royse filed his action on April 29, 1987, and that the prison medical staff apportioned the available televisions to those inmates most in need, based on the staff's determination of the inmates' medical and rehabilitative condition. The medical staff did not consider Royse sufficiently needy, in part because he had sufficient mobility to reach the unit's TV viewing room. Royse was placed on a waiting list and obtained a television set in late 1987. 6 Although the district court advised Royse of the necessity to submit evidence to counter defendants' motion, Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988), Royse failed to proffer any evidence supporting his claim. Royse's allegations that he was denied a television because of his religion or in retaliation for his filing of grievances, unsupported by affidavits or specific facts, were insufficient to withstand the defendants' motion for summary judgment. See Taylor, 880 F.2d at 1045. Royse also failed to present any evidence demonstrating a causal connection between the actions of any named defendant and the temporary denial of his television. See Rizzo, 423 U.S. at 375; Leer, 844 F.2d at 633-34. Royse's apparent disagreement with the prison medical staff's decision that other inmates had a greater need for an in-cell television than Royse fails to raise a genuine issue of material fact that defendants treated him differently from other inmates on the waiting list, or that their actions were motivated by the intention to discriminate against him. Thus, his equal protection claim is deficient. See Village of Arlington Heights, 429 U.S. at 265. 7 Royse contends, however, that he raised a material issue of fact sufficient to defeat summary judgment regarding the extent of defendant Tana Wood's knowledge that he was medically unassigned for work. Royse does not indicate, however, how Superintendent Wood's knowledge of his medical record would defeat summary judgment for the defendants. Accordingly, he has not presented evidence of a material dispute and the district court did not err by granting summary judgment for the defendants on Royse's equal protection claim. See Fed.R.Civ.P. 56(c); Taylor, 880 F.2d at 1044. 8 Royse also contends that the district court erred in an earlier order which dismissed as defendants the State of Washington and the Department of Corrections.1 This contention lacks merit. 9 The Eleventh Amendment generally bars actions in federal court against states or state agencies. See Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir.1991), cert. denied, 112 S.Ct. 1478 (1992); Durning v. Citibank, N.A., 950 F.2d 1419, 1428 (9th Cir.1991). The Eleventh Amendment does not bar claims for prospective injunctive relief against state officials acting in their official capacities. Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir.1992). Accordingly, the district court properly dismissed the State of Washington and the Department of Corrections because Royse sought statewide prospective declaratory and injunctive relief against the State and a state agency. See Durning, 950 F.2d at 1428. The district court properly allowed the action to proceed against the defendant prison officials in their official capacities. See Eu, 979 F.2d at 704. 10 Royse also contends that the magistrate judge lacked authority to deny his motion for a preliminary injunction and to close his district court case while Royse appealed the denial. Because Royse's case was reopened by the district court and proceeded to judgment, these issues are moot. See Mafnas v. Superior Court, 936 F.2d 1068, 1071 (9th Cir.1991) (case is moot if reviewing court can no longer grant effective relief); Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir.1992) (when underlying claims have been decided, the reversal of a denial of a preliminary injunction would have no practical consequences and the issue is therefore moot). 11 In his reply brief, Royse appeals the district court's award of costs in the amount of $31.40 to the defendants. While we ordinarily do not consider issues raised for the first time in a reply brief, see Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990), because Royse is proceeding pro se, in the exercise of our discretion we will address this contention. 12 A prevailing party is ordinarily entitled to recover costs. See Fed.R.Civ.P. 54(d). This is so even in the case of indigent litigants who have been granted leave to proceed in forma pauperis. 28 U.S.C. Sec. 1915(e). However, the defendants' bill of costs includes the sum of $20.00 for a docketing fee under 28 U.S.C. Sec. 1923. There is no evidence in the record, however, that defendants ever paid any docketing fee for their appearance in federal court. Accordingly, we affirm the district court's imposition of costs, but reduce the amount to $11.40. 13 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 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 1 The defendants contend that this court lacks jurisdiction to consider any issues unrelated to the district court's grant of summary judgment. Although Royse filed a notice of appeal only as to the district court's grant of summary judgment for the defendants, this error will generally not be construed to limit the appealable issues where no prejudice to the other party is alleged. Stone v. Godbehere, 894 F.2d 1131, 1133 n. 1 (9th Cir.1990)

70 F.3d 1266 U.S.v.Aclese* NO. 95-40109 United States Court of Appeals,Fifth Circuit. Oct 17, 1995 Appeal From: E.D.Tex., No. 1:94-CR-81-2 1 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

Order entered May 27, 2014 In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00202-CV MILLBROOK HEALTHCARE AND REHABILITATION CENTER, Appellant V. SHAUNDRA EDWARDS, ON BEHALF OF THE ESTATE OF GEORGIA CULLENS, Appellee On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-07856-A ORDER We GRANT appellant’s May 23, 2014 unopposed motion for an extension of time to file a reply brief. We ORDER the reply brief tendered by appellant on May 23, 2014 filed as of the date of this order. /s/ ADA BROWN JUSTICE 

340 F.3d 824 Emma Mercado, Plaintiff-Appellant,v.Allstate Insurance Company, Defendant-Appellee. No. 02-55997. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 4, 2003. Filed August 18, 2003. Ralph Rogari, Rehm & Rogari, Los Angeles, California, for the plaintiff-appellant. Michael M. Pollak, Daniel P. Barer, Lawrence J. Sher, Pollak, Vida & Fisher, Los Angeles, California, for the defendant-appellee. Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-01-03195-ABC. Before David R. Thompson, Stephen S. Trott, and Richard C. Tallman, Circuit Judges. OPINION THOMPSON, Circuit Judge. 1 Emma Mercado appeals the district court's denial of her motion to remand this insurance bad faith action to state court and the district court's summary judgment in favor of Allstate Insurance Company. Mercado argues the district court erred in concluding that (1) Silvia Luevano was a sham defendant included in the action to defeat federal jurisdiction; (2) Mercado's bad faith claim against Allstate is foreclosed by Hamilton v. Maryland Cas. Co., 27 Cal.4th 718, 117 Cal.Rptr.2d 318, 41 P.3d 128 (2002); and (3) Allstate did not commit an unfair business practice by insisting that third parties be added as payees to a proposed settlement check, or by failing to increase a $15,000 policy liability limit by $1000 under the policy's medical payments provision. Mercado also contends the district court should have permitted her to submit further evidence in opposition to Allstate's summary judgment motion. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm. BACKGROUND 2 While crossing the street as a pedestrian, Emma Mercado was struck by a car driven by Brenda Brannon. Mercado filed a negligence action against Brannon in state court. Brannon's insurer, Allstate, paid an attorney to defend the case. Settlement discussions ensued. Allstate offered to pay Mercado $15,000, the liability limit of Brannon's insurance policy, provided Los Angeles County, which had rendered medical services to Mercado, and Isaac Nalive, Mercado's former attorney who claimed a lien on any settlement proceeds, were added as payees on the settlement check. Brannon offered to sweeten the pot by adding $5,000 of her own money to the settlement. Mercado rejected the offers. 3 Mercado and Brannon then entered into a settlement by which Brannon agreed to stipulate to judgment for $150,000 in favor of Mercado, Mercado agreed not to enforce the judgment by levy against any assets of Brannon, and Brannon agreed to assign to Mercado all claims for bad faith against Allstate. Allstate's attorney, Ronald Kent, wrote a letter to Brannon's attorney, Jay McClaugherty, stating that Allstate did "not agree to the transaction contemplated by the agreement," but that McClaugherty should advise Brannon "to take those steps which you believe to be in her best interests." Mercado and Brannon then consummated their settlement. Mercado obtained a stipulated judgment against Brannon for $150,000, and Brannon assigned to Mercado 4 all claims and causes of action Brannon may now have or hereafter acquire against Allstate based upon the policy, on any breach of the covenant of good faith and fair dealing or its failure and refusal to settle with Mercado, except any claim for emotional distress or punitive damages against Allstate. 5 Thereafter, Mercado filed the complaint in the present action against Allstate and Silvia Luevano. Luevano was the Allstate employee who had handled the Mercado claim. Mercado alleged that Allstate and Luevano had breached the covenant of good faith and fair dealing. She also alleged that Allstate and Luevano had committed unfair business practices under California Business and Professions Code § 17200 by insisting that Los Angeles County and Attorney Nalive be added as payees on Allstate's proffered $15,000 settlement check, and by not including in its settlement offer an additional $1,000 under the medical payments provision of Brannon's policy. 6 Allstate removed the case to the district court, and Mercado moved to remand it back to state court. The district court denied the remand motion. The court determined that Luevano had been fraudulently joined as a defendant to defeat diversity jurisdiction, and as a result her presence in the litigation would be disregarded; thus, there was complete diversity between the parties. After a stay of proceedings pending a ruling by the California Supreme Court in Hamilton v. Maryland Cas. Co., 27 Cal.4th 718, 117 Cal.Rptr.2d 318, 41 P.3d 128 (2002), the district court granted summary judgment in favor of Allstate. This appeal followed. DISCUSSION I. Fraudulent Joinder 7 "Fraudulent joinder is a term of art. If the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, the joinder of the resident defendant is fraudulent." McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir.1987). 8 All of Mercado's allegations against Luevano pertain to actions she took in her capacity as an Allstate employee. It is well established that, unless an agent or employee acts as a dual agent (a circumstance not present in this case), she cannot be held individually liable as a defendant unless she acts for her own personal advantage.1 See McCabe, 811 F.2d at 1339 (concluding defendant-employees were fraudulently joined because sworn declarations indicated that they acted in the interest of their employer). At all times during her dealings with Mercado, Luevano acted as Allstate's agent. Accordingly, Luevano is not individually liable. See Lippert v. Bailey, 241 Cal.App.2d 376, 382-83, 50 Cal.Rptr. 478 (1966) (insurance agents not independently liable for negligent failure to provide adequate insurance); Good v. Prudential Ins. Co., 5 F.Supp.2d 804, 807-09 (N.D.Cal.1998) (insurance agent was a sham defendant because, under Lippert, he would not be independently liable for fraud). The district court did not err in concluding that Luevano was a fraudulently named defendant. Mercado's remand motion was properly denied. II. Allstate's Liability 9 Mercado argues the district court erred in concluding that the California Supreme Court's decision in Hamilton v. Maryland Cas. Co., 27 Cal.4th 718, 117 Cal.Rptr.2d 318, 41 P.3d 128 (2002), foreclosed Allstate's liability for the stipulated judgment. She contends the Hamilton holding only applies to contract claims for bad faith, not to tort claims for bad faith as in the present case. We disagree. 10 The relevant facts in the present case are similar to those in Hamilton, except for the circumstance that the assigned claim in Hamilton was a contract claim for breach of the covenant of good faith and fair dealing, and the assigned claim Mercado is pursuing in the present case is a tort claim grounded in the alleged breach of the covenant of good faith and fair dealing. The Hamilton court explained that a bad faith refusal to settle may give rise to either a breach of contract or a tort claim: 11 An unreasonable refusal to settle may subject the insurer to liability for the entire amount of judgment rendered against the insured, including any portion in excess of the policy limits. (citations omitted). Though an action for the insurer's breach of the covenant of good faith and fair dealing sounds in both contract and tort (citation omitted), we are concerned here only with liability for breach of contract, for that is the only cause of action [the insured] assigned to plaintiffs. 12 Hamilton, 27 Cal.4th at 725, 117 Cal. Rptr.2d 318, 41 P.3d 128. 13 The inquiry concerning the breach of the tort duty in this case is the same as the inquiry concerning the breach of the contract duty in Hamilton. The salient question in each case is whether the insurer rejected the settlement in good faith, not whether the form of the claim is contract or tort. Accordingly, the Hamilton rule applies to the tort claim asserted by the plaintiff in this case. That rule provides that an insurer is not obligated, by the duty imposed upon it through the covenant of good faith and fair dealing, to pay a stipulated judgment between its insured and the plaintiff when the insurer is (1) tendering a defense in the action, (2) the insured will suffer no damage from the stipulated judgment, and (3) the insurer did not participate in, nor agree to, the settlement. See Hamilton, 27 Cal.4th at 722, 117 Cal.Rptr.2d 318, 41 P.3d 128. The Hamilton court made clear, "As long as the insurer is providing a defense [in the underlying action], the insurer is allowed to proceed through trial to judgment [in that action]." Id. at 732, 117 Cal. Rptr.2d 318, 41 P.3d 128 (citing Safeco Ins. Co. v. Superior Court, 71 Cal.App.4th 782, 788-89, 84 Cal.Rptr.2d 43 (1999)). This is not to say, however, that the insurer may do so without the possibility of adverse consequences if the litigated judgment in the underlying action exceeds the policy limits. 14 The Hamilton rule echoed the rule the California court of appeal articulated in Safeco. There, the court of appeal concluded that the plaintiff/assignee could not sue the insurer in tort for its alleged bad faith refusal to settle the case until an excess judgment was rendered after a trial in that case. See Safeco, 71 Cal.App.4th at 787-89, 84 Cal.Rptr.2d 43. The reasoning behind the rule is basic fairness: an insurer that tenders a defense does no harm to its insured by declining to settle and taking its chances with a trial. If the trial results in a judgment within the policy limits, the insured is not harmed. If the trial results in a judgment in excess of the policy limits, the insured's remedy is to pursue his own action against the insurer for any bad faith refusal to settle, or to assign that cause of action to the plaintiff in exchange for a covenant not to enforce the judgment against the insured's personal assets. Id. at 788, 84 Cal.Rptr.2d 43. It is only after a litigated excess judgment is obtained that an insurer's refusal to settle becomes actionable. Id. at 788-89, 84 Cal.Rptr.2d 43. Were this not so, "[t]he potential for abuse is apparent." Id. at 787, 84 Cal.Rptr.2d 43. An insurer "in the absence of a breach of its duty to its insured, could be bound by a consent judgment" to which it had not consented. Id. (citations omitted). 15 We conclude that the district court did not err in granting summary judgment in favor of Allstate on the bad faith tort claim asserted by Mercado. III. Unfair Business Practice 16 Mercado argues that the district court erred in granting summary judgment in favor of Allstate on her California Business and Professions Code § 17200 claim.2 She contends that Allstate committed unfair business practices by requiring her to accept co-payees on Allstate's proffered settlement check for $15,000, and by not adding $1,000 from the medical payments provision of the policy to the $15,000 settlement offer.3 We disagree. 17 Allstate required the county to be added as a payee because Mercado had incurred county medical expenses and Allstate had a potential liability to the county pursuant to California Civil Code § 3045.4.4 While it is true that the county's lien would not have been perfected until the county provided a notice pursuant to § 3045.3,5 Mercado had already received a bill from the County USC Medical Center demanding payment of $8,012. It was reasonable for Allstate to assume that a notice of lien would follow shortly. Moreover, by requiring the addition of the county as a co-payee, Allstate was protecting its insured, Brannon, from any claim against her by the county. 18 Allstate's requirement that attorney Isaac Nalive (Mercado's former counsel) be added as a payee to the check was justified because Allstate had received Nalive's lien notice. If Allstate chose to disregard Nalive's lien it would have faced liability to him. See Levin v. Gulf Ins. Group, 69 Cal.App.4th 1282, 1287-88, 82 Cal.Rptr.2d 228 (1999) (holding insurer liable to discharged attorney for paying a settlement to former client and new attorney with knowledge of discharged attorney's lien). 19 Allstate also did not commit an unfair business practice by taking the position that Brannon had only $15,000 in liability coverage and omitting information about the policy's $1,000 medical payments provision. The medical payments provision covered an "insured person" and "any resident relative who sustains bodily injury while in, on, ... or when struck by an auto or trailer." Brannon did not sustain any bodily injury, and Mercado was not an insured or a resident relative of an insured. The $1,000 medical payments provision applied to neither of them. IV. Additional Evidence 20 Mercado argues that the district court abused its discretion by refusing her request to submit portions of a deposition that would have supported her contention that the letter from Attorney Ronald Kent, Allstate's lawyer, to Jay McClaugherty, Brannon's lawyer, was a sham. This argument is meritless. Mercado's claim that the letter was a sham is predicated upon her contention that Kent was not acting as Allstate's lawyer when the letter was written. But there is nothing in the record to support this contention. Moreover, both Kent and McClaugherty stated that Kent was representing Allstate as its attorney at the time the letter was written. Because Mercado's proffered evidence would have had no effect on the court's summary judgment, the district court did not err in rejecting it. See Fed.R.Civ.P. 56(f). 21 AFFIRMED. Notes: 1 An employee acts as a "dual agent" by assuming special duties for the benefit of the insured beyond those required by her principalSee Jones v. Grewe, 189 Cal.App.3d 950, 954-55, 234 Cal.Rptr. 717 (1987). Because Luevano did not take on any additional duties for the benefit of Mercado, she was not a dual agent. See, e.g., Charlin v. Allstate Ins. Co., 19 F.Supp.2d 1137, 1140-41 (C.D.Cal.1998) (concluding joinder of an agent was fraudulent because plaintiff failed to establish he was a "dual agent" by acting beyond his capacity for the insurer). 2 California Business & Professions Code § 17200 provides: As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.... Cal. Bus. & Prof.Code § 17200 ("The Unfair Business Practices Act"). 3 Allstate erroneously contends that Mercado's claim is an attempt to circumvent the holding ofMoradi-Shalal v. Fireman's Fund Ins. Cos., 46 Cal.3d 287, 304, 250 Cal.Rptr. 116, 758 P.2d 58 (1988), which held that violations of California Insurance Code § 790.03 may not serve as a predicate act for a claim pursuant to § 17200. In the present case, Mercado raises the common law claim for breach of the covenant of good faith and fair dealing. California courts have not foreclosed common law theories as a basis for actions pursuant to § 17200. See Moradi-Shalal, 46 Cal.3d at 304-05, 250 Cal.Rptr. 116, 758 P.2d 58 ("[C]ourts retain jurisdiction to impose civil damages or other remedies against insurers in appropriate common law actions, based on such traditional theories as fraud, infliction of emotional distress, ... or breach of the implied covenant of good faith and fair dealing...."); see also Diaz v. Allstate Ins. Group, 185 F.R.D. 581, 594-95 (C.D.Cal.1998) (same). 4 Section 3045.4 provides in pertinent part: Any person, firm, or corporation, including, but not limited to, an insurance carrier, making any payment to the injured person,..., or legal representative, for the injuries he or she sustained, after the receipt of the notice provided by Section 3045.3, without paying to the ... body maintaining the hospital the amount of its lien claimed in the notice, or [an amount] ... as can be satisfied out of 50 percent of the moneys due under any final judgment ... after paying any prior liens shall be liable to the ... body maintaining the hospital for the amount of its lien claimed in the notice which the hospital was entitled to receive as payment for the medical care and services rendered to the injured person. Cal. Civ.Code § 3045.4. 5 Section 3045.3 provides in pertinent part: A lien shall not be effective, ... unless a written notice containing the name and address of the injured person, ... and the name of each person ... known to the hospital and alleged to be liable to the injured person for the injuries received, is delivered or is mailed ... The hospital shall, also, deliver ... a copy of the notice to any insurance carrier known to the hospital which has insured the person ... alleged to be liable to the injured person against the liability. The person, ... alleged to be liable to the injured person shall, upon request of the hospital, disclose ... the name of the insurance carrier which has insured it against the liability. Cal. Civ.Code § 3045.3 (emphasis added).

82 Cal.App.2d 844 (1947) DANIEL SCANNELL et al., Respondents, v. DANIEL C. MURPHY, Appellant. Civ. No. 13442. California Court of Appeals. First Dist., Div. One. Dec. 12, 1947. John J. O'Toole, City Attorney, Geo. A. Helmer and Edward I. Fitzpatrick, Deputy City Attorneys, and Raymond D. Williamson for Appellant. Charles P. Scully for Respondents. PETERS, P. J. The respondents on this appeal are within the civil service classifications of jailer, captain of the watch, jail matron and operating engineer, and all worked during the fiscal year 1944-1945 in the department of the appellant, the Sheriff of San Francisco, in the city and county jails on a rotating three shift basis, 8 a. m. to 4 p. m.; 4 p. m. to midnight; and midnight to 8 a. m. It is admitted that during the fiscal year in question all of the petitioners worked some time on the two night shifts and some time on the day shift. The respondents claim, and the trial court found that, although the sheriff has certified that these respondents worked on eight- hour shifts, for six days a week, he has refused to certify that part of this period was worked on the night shifts. This becomes important because, under the salary ordinance then in effect, employees on a monthly salary were entitled to overtime for over 40 hours work on a day shift and for over 37 1/2 hours work on a night shift. Admittedly, the sheriff has certified that these employees were on eight-hour shifts for six days a week, and the employees have accordingly been paid overtime at the day rate overtime basis for 48 hours work, which is 20 per cent in excess of regular salary. The excess overtime pay fixed by the ordinance for night shift overtime pay for a 48-hour work week is 27 1/2 per cent of normal salary. Respondents contend that during the period they worked night shifts they were entitled to this excess of 7 1/2 per cent. The trial court, by peremptory writ of mandate, has directed the sheriff to "prepare, approve, sign, and transmit to the Civil Service Commission of the City and County of San Francisco, State of California, timerolls or payrolls for each month included in the fiscal year commencing July 1, 1944, and ending June 30, 1945, ... showing that said work of each said petitioner was for 8 hours per day for 6 days per week on night shifts." From this judgment the sheriff appeals. *846 It should be mentioned that the Civil Service Commission, the city, and the controller were originally made parties to this proceeding, but their demurrers were sustained, apparently on the theory that they were under no duty to act until the head of the department certified the payrolls. The pertinent statutory provisions are as follows: Section 2.2(c) of the 1944-1945 salary ordinance provided: "Night Shifts: Seven and one-half hours per day and five days per week shall constitute the normal work day and week for calculating the compensations for employees whose compensations are fixed herein on a monthly basis and who work on night shifts. A night shift is any full time shift which commences after 2 p. m. and prior to 6 a. m." Section 2.3(b) provided: "Pursuant to the provisions of Section 4, Subdivision (f) of the Salary Standardization ordinance department heads may require occupants of the following specified positions the salaries for which are based on a monthly basis to work in excess of the five days and 40 hours for day shifts and five days of 7 1/2 hours for night shifts for the number of hours hereinafter specified. Employees required to work in excess of the normal work weeks as above specified shall be compensated as follows: ..." Night Shifts ... 48 hours, 27 1/2% above the compensation fixed herein for their respective classifications ... Sheriff ... D 52 Jail Matron ... D 60 Jailer D 64 Captain of Watch ... 0168.1 Operating Engineer."" At all pertinent times section 150 of the city charter provided as follows: "All personal services shall be paid by warrants on the basis of a claim, bill, timeroll or payroll approved by the head of the department or office employing such service. The claims, bills or payrolls hereinafter designated as payrolls, for salaries, wages or compensation for personal services of all officers, assistants and employees of every class or description, without regard to the name or title by which they are known, for each department or office of the city and county shall be transmitted to the civil service commission before presentation to the controller. *847" "The secretary of the commission shall examine and approve such payroll for all persons legally appointed to or employed in positions legally established under this charter. The payrolls thus approved, with notation of any item thereof disapproved, shall be then certified by the secretary to the commission and transmitted by him to the controller. The controller shall not approve and the treasurer shall not pay any claim for personal services, or pay check or warrant for salary, wages or compensation unless the same shall have been approved by the said secretary." It was the position of appellant in the lower court, and it is his position here, that while respondents were working on the two night shifts, they only worked for seven and one-half hours and that the other half hour spent in the jail on the various eight-hour shifts was free time devoted to the eating of a meal. In this connection appellant calls particular attention to the language of section 2.3(b) of the salary ordinance permitting department heads to "require" employees to work overtime, and contends that there is no evidence that he ever "required" or "directed" his employees to work in excess of the seven and one-half hours per day. It is his thought that this section demands that before overtime is allowed the head of the department must expressly order his employees to work overtime and that an implied order is not sufficient. There is no doubt that the appellant, and his undersheriff William Hollingbery, Jr., testified that all of the jail employees on all shifts put in but seven and one-half hours of work, and were permitted one-half hour on each shift free time to eat a meal. The sheriff testified that this had been the custom in the jails for many years prior to 1944-1945, and that he did not vary the custom in that fiscal year. He denied that he had "directed" or "required" any one of the respondents to work longer than seven and one-half hours on any shift. As opposed to this evidence, several of the respondents testified that on the two night shifts they were on duty for a full eight hours, and, while admitting that some of them ate a meal during the eight hours, they contended that they were bound to their posts during the meal period, and subject to call. In this connection respondents introduced into evidence a set of rules and regulations governing their conduct in the performance of their duties for the year in question. These regulations had been drafted by a prior sheriff, and appellant *848 admitted that they were in effect when he assumed office. He testified that he permitted these regulations to remain in effect and that each new employee was required to read them. He also admitted that he issued no repealing or amending order respecting these regulations until after the end of the fiscal year here in question. It is admitted that there is nothing in the regulations which authorize any jail employee to take a half hour off during any eight-hour shift for the purpose of eating. The regulations, in fact, indicate that the employees must work a full eight-hour shift. Thus, in reference to hours of duty, it is provided that: "The jail shall be policed at all times of the day and night, there being three (3) watches provided for this purpose. ... Eight (8) hours shall be worked by each watch, unless otherwise ordered by the Superintendent." No contrary order was ever made by the superintendent. The regulations further require the jailers "to be watchful and on the alert at all times"; prohibit them from performing any "act that may divert their attention from the efficient performance of their duties"; require that two jailers be on duty "in front of the felony wing at all times," and that one jailer must be "on the bridge at all times"; and each employee must remain on duty "until relieved." [1] Respondent Scannell testified that employees on the night shifts were given no time off for meals; that he and the others would eat while on watch at their respective stations; that they were on duty during the periods they were eating; that they were required to remain in uniform during the entire eight-hour shift and were prohibited from leaving the jail premises during the eight hours. The evidence also shows that, under the law, a matron must be on duty in the women's jails at all times, that on night watches there is but one matron on duty at each jail, and that no provision is made to relieve the matrons so that they can take a half hour for meals. Further reference to the evidence is unnecessary. It is quite obvious from the above summary that the finding of the trial court that respondents, while working on the night shifts, were "required" by appellant to work eight hours a shift as that term is used in section 2.3(b) of the salary ordinance is amply supported. If an express order is required under the section, the regulations admittedly applicable constitute such an order. The existence of the so-called "custom" to the contrary *849 testified to by appellant was denied by respondents. This conflict was for the trier of the fact. The next contention of appellant is that respondents have not come into court with "clean hands" and for that reason are barred from relief. [2] There is no doubt, of course, mandate being an equitable action (Potomac Oil Co. v. Dye, 10 Cal.App. 534 [102 P. 677]), that the so-called "clean hands" doctrine is applicable generally to such a proceeding. The theory of appellant is that these respondents worked not only on the two night shifts, but also on the day shift, and, it is urged, that the uncontradicted evidence shows that whatever the rule may have been on the night shifts, on the day shift the employees worked but seven and one-half hours. Admittedly, the employees were paid for eight hours' work on the day shift. It is therefore contended that the record shows that the respondents, even though underpaid on the night shifts, were overpaid on the day shifts, and therefore do not have "clean hands." The difficulty with this argument is that its basic premise is unsound. The uncontradicted evidence does not show that the respondents worked but seven and one-half hours on the day shift. While there is some evidence to that effect, the evidence of respondents is reasonably capable of the interpretation that on all shifts they worked eight hours. Certainly the regulations draw no such distinction between the night and day shifts, and appellant has certified to the Civil Service Commission that all respondents worked eight-hour watches. [3] Moreover, this issue was not presented to the trial court, was not involved at the trial, and no findings were made on it. It was held in Watson v. Poore, 18 Cal.2d 302 [115 P.2d 478], that the "unclean hands" doctrine must be raised in the trial court to be available as a defense, and cannot, as here, be raised for the first time on appeal. If it be a fact that respondents were overpaid while working on the day shifts, that fact not having been here in issue and not having been passed upon, it may be litigated in a proper proceeding, subject to whatever defenses respondents may have to the point. It may not be litigated on this appeal. It is next urged that by this proceeding respondents are seeking to recover overtime pay improperly withheld, that is, they are seeking to recover money only, and it is contended mandamus may not be used for such a purpose where the legal remedy is adequate. (Johnston v. State Comp. Ins. *850 Fund, 41 Cal.App.2d 516 [107 P.2d 102]; Northrup v. Haynes, 15 Cal.App.2d 665 [59 P.2d 1056]; Coombs v. Smith, 17 Cal.App.2d 454 [62 P.2d 380].) There is no doubt that these cases, and particularly the last two, stand for the proposition that mandamus may not be used to recover money in a specific sum from a governmental agency for past services where that is the sole issue presented. But that is not the present case. Here the purpose of the proceeding is to compel the head of a department of a governmental agency to certify and transmit payrolls to the other city departments showing the periods these respondents worked on the night shifts during the year in question. Appellant has certified these payrolls showing that on the days in question these respondents worked on eight-hour shifts without designating whether these were day or night shifts. Under the charter ( 150) the Civil Service Commission will not examine, the controller will not approve and the treasurer will not pay the claimed overtime without the certification of the head of the department in charge of the work records of the employees. What is sought is the certification and transmittal of the work records to the proper authorities--not the payment of money. In the cases relied upon by appellant the petitioners there involved were seeking the payment of back wages in specific sums, where the governmental agency refused to pay. Here the city has not refused to pay, in fact, it clearly appears it will pay upon proper certification and transmittal. This is not trying a case piecemeal as contended by appellant. [4] The pleadings and evidence show that appellant is the only one in the governmental setup that has refused to act. This proceeding was brought to start the chain of municipal action required under the charter as a condition precedent to qualify the respondents for overtime pay. Certification and transmittal by appellant are conditions precedent to a determination of respondents' rights. Mandamus is the proper proceeding for such a purpose. [5] Appellant next complains of the form of the judgment. The judgment directs the issuance of a writ commanding appellant to certify and transmit to the commission payrolls for the year in question "showing the classification in which each said petitioner worked, and further showing that said work of each said petitioner was for 8 hours per day for 6 days per week on night shifts." Appellant contends that this judgment compels him to certify that respondents were employed exclusively on night shifts during the year in question, *851 which is contrary to the admitted fact. There is no doubt at all that the evidence shows, without conflict, that during the year in question the respondents all rotated between the day and night shifts. The judgment is undoubtedly ineptly drawn, and capable of the interpretation placed upon it by appellant. But that is not the only way to interpret the language. What the trial court undoubtedly meant was that, whenever respondents had in fact worked on night shifts during the year involved, they worked for eight hours, six days a week. Out of an abundance of caution, however, and in order to fully protect appellant, that judgment is modified to provide that the writ shall direct the sheriff to certify and transmit the payrolls of respondents so as to show when respondents worked on night shifts during the year in question, and to show that when they did work on such night shifts they worked eight hours a day for six days a week. The judgment is modified as above indicated, and as so modified is affirmed; respondents to recover costs on appeal. Bray, J., and Finley, J. pro tem., concurred.

57 F.3d 1061NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Bernardo FIGUEROA, Plaintiff, Appellant,v.George VOSE, et al., Defendants, Appellees. No. 94-1578. United States Court of Appeals,First Circuit. June 13, 1995. Bernardo Figueroa on brief pro se. David J. Gentile, Esq., On Memorandum In Support of Motion for Summary Disposition for appellees. D.R.I. AFFIRMED. Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge. PER CURIAM. 1 Bernardo Figueroa appeals from the district court's decision that a prison disciplinary board did not violate his federal due process rights under 42 U.S.C. Sec. 1983 when it found him guilty of planning to murder Captain Ronald Brodeur, a correction officer. We affirm. Since the facts have been described in the district court's opinion, we do not repeat them here except as is necessary to explain our affirmance. We turn immediately to Figueroa's contentions on appeal. 1. Notice of Time of Disciplinary Hearing 2 Figueroa claims that he was not given a required 24- hour notice of his disciplinary hearing and that delivery of the disciplinary report to him two days before the hearing was insufficient notice. Federal law does not require 24-hour advance notice of a disciplinary hearing, however. It requires only that inmates be given written notice of the charges against them at least 24 hours before the disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539, 564 (1974). This court has said that delivering a disciplinary report describing the charges against an inmate to the inmate meets that requirement. See Langton v. Berman, 667 F.2d 231, 234 (1st Cir. 1981). Since Figueroa does not dispute that he received a copy of the disciplinary report describing the charge against him two days before the disciplinary hearing, the district court correctly concluded that the notice given to Figueroa satisfied due process.1 2. Provision of Interpreter 3 Figueroa alleges that he should have been given a Spanish-speaking counselor to assist him at the disciplinary hearing rather than an English-speaking counselor. He acknowledges that he understands English, except for an occasional word, but says he does not speak English well and so could not participate "fully" in the hearing. (His spoken English can be hard to understand, as the hearing and trial transcripts show.) At trial, Figueroa said that he had asked both Jack Ward, his English-speaking counselor, and Captain Andrew Anderson, the chairman of the disciplinary board, for Maria Pezza's assistance, but was told that she was unavailable.2 Figueroa wanted her to assist him at the hearing because she could explain words he did not understand and she would have "defend[ed]" him. 4 We agree with the district court that no due process violation occurred here. In part, Figueroa seems to have hoped that Pezza could have presented his case more persuasively to the disciplinary board than he did. In other words, Pezza would have been useful to him as an advocate. In Wolff, the Supreme Court held that inmates do not have a right to counsel in disciplinary proceedings, 418 U.S. at 570, a position it confirmed in Baxter v. Palmigiano, 425 U.S. 308, 315 (1976). The Court suggested, however, that illiterate inmates or inmates with complex cases should be able to "seek the aid of a fellow inmate, or ... to have adequate substitute aid in the form of help from the staff...." See Wolff, 418 U.S. at 570. Assuming that Figueroa should have been treated as an illiterate inmate, any right that he may have had to staff assistance under Wolff was satisfied when Ward was assigned to help him. In addition, nothing in the record suggests that any deficiency in Figueroa's English adversely affected the disciplinary proceedings. As the transcript of the hearing confirms, Figueroa understands spoken English. Despite sometimes unclear syntax, he can also make himself understood in English. At the hearing, he denied his guilt, explained why he wanted to call Captain Brodeur as a witness, challenged his lack of access to confidential reports, and denied that he had been working in the prison kitchen at the time the alleged murder weapon disappeared. Furthermore, Ward appeared with him at the hearing and, according to Figueroa's post-trial brief, participated in questioning Investigating Officer Joseph Forgue.3 Figueroa presented his own case and the transcript does not reflect that he ever sought Ward's aid in making his presentation.4 Moreover, Figueroa testified that Anderson and Ward had told him that Pezza was unavailable, but does not allege any unconditional denial of the assistance of a Spanish- speaking counselor. Although his testimony may suggest that he was told to proceed with the hearing or to proceed with Ward as his counselor,5 he apparently did not actually ask prison officials to postpone his hearing until Pezza was available. Anderson testified at trial that he had never denied any inmate the counselor of his choice and that he had postponed hearings if the inmate's preferred counselor was absent. We therefore affirm the district court's determination that defendants did not violate Figueroa's constitutional rights by not appointing a Spanish-speaking counselor or interpreter to aid him at the hearing. 3. Denial of Witnesses 5 According to Figueroa, he should have been permitted to call as witnesses at his disciplinary hearing Captain Brodeur, the correction officer Figueroa allegedly intended to murder; an Officer Fletcher, who apparently investigated the alleged murder plot and/or prepared the disciplinary report against Figueroa; and two inmates, Larry Botton (also given as Boton or Baton in the record) and Gary Ortiz. At the hearing, Figueroa stated that he wanted to call Brodeur to confirm that he and Brodeur had had no problems with each other. On appeal, Figueroa says that, if Fletcher, Botton and Ortiz had appeared at the hearing, their "testimony could have brought forth new or previous[ly] unsolicited facts." 6 At the disciplinary hearing and again at trial, Captain Anderson, the chairman of the disciplinary board, explained the board's determination that testimony by Brodeur about his relationship with Figueroa would not be relevant. Although lack of animosity might normally seem relevant in determining whether one individual might be motivated to kill another, Officer Joseph Forgue, who had investigated the charge against Figueroa, explained at the hearing that such evidence would be irrelevant in Figueroa's case. According to Forgue, it was "well known" in the prison that there was a "contract" on Brodeur's life and that confidential informants had reported that Figueroa had "pick[ed] up" that contract. For that reason, an inmate would not "have to have a problem with someone to stick them. That's irrelevant whether you had a problem with them or not." Given Forgue's statement, the board did not abuse its discretion in not calling Brodeur as a witness. See Smith v. Massachusetts Department of Correction, 936 F.2d 1390, 1399-1400 (1st Cir. 1991) (applying abuse of discretion standard in reviewing disciplinary board's failure to call inmate witnesses); Turner v. Caspari, 38 F.3d 388, 391, 392 (8th Cir. 1994) (noting that prison disciplinary boards have great discretion to decline to call inmate witnesses whose testimony would be irrelevant or unnecessary).6 7 Nor is there merit in Figueroa's claims respecting Botton and Ortiz. The transcript of the disciplinary hearing shows that he never asked the board to call them as witnesses, and so the board obviously did not violate his due process rights in not calling them. See Harrison v. Seay, 856 F. Supp. 1275, 1281 (W.D. Tenn. 1994).7 8 On appeal, Figueroa alleges that Officer Fletcher's testimony "could have brought forth new or previous[ly] unsolicited facts."8 The record indicates that Figueroa had told the board that Fletcher would either offer favorable character testimony or would corroborate Figueroa's trouble- free relationship with Brodeur. The disciplinary transcript indicates that Figueroa told the board that Fletcher would testify that Figueroa was "not of that type of character" and that the board regarded his testimony to be irrelevant.9 According to Anderson's trial testimony, Figueroa had said that Fletcher would testify that Figueroa and Brodeur had not had any problems with each other.10 Under the circumstances, the court did not err in concluding that the board had not violated due process by declining to call Fletcher as a witness. As noted above, testimony about Figueroa's relationship with Brodeur was irrelevant and unnecessary. In addition, without further specifics, the simple testimony that Figueroa was not the "type" of person to commit murder would not have impugned the confidential informants' clear identification of Figueroa as the inmate who planned to kill Brodeur. See Graham v. Baughman, 772 F.2d 441, 445 (8th Cir. 1985) (prison officials who had to determine whether an inmate had started a fire outside of his cell were well within their discretion in concluding that character evidence was either irrelevant or unnecessary). 9 4. Sufficiency of Evidence and Related Claims 10 Figueroa claimed below that the board's decision was not supported by substantial evidence. The district court concluded that its task in a section 1983 action alleging a violation of federal due process was to determine whether "some evidence" supported the board's decision, citing Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445 (1985). In Hill, the Supreme Court held that federal due process is satisfied if "some evidence" in the record supports a disciplinary decision, defining that term to mean "any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56. Using that standard, the district court found that "some evidence" supported the board's decision, and we agree.11 We also agree with the court that the Hill standard describes the relevant federal due process standard even though state law imposes a stricter evidentiary standard.12 See id. at 456 ("We decline to adopt a more stringent evidentiary standard [than the some evidence standard] as a constitutional requirement."); see Goff v. Dailey, 991 F.2d 1437, 1441 n.9 (8th Cir.) (state regulations may provide more protection than the federal Constitution, but cannot raise the standard of due process under the Constitution), cert. denied, 114 S. Ct. 564 (1993); but see Brown v. Fauver, 819 F.2d 395, 399 n.4 (3d Cir. 1987) (Hill did not establish whether the Constitution requires a particular burden of proof in disciplinary proceedings, but spoke only to appellate review standards). 11 In connection with his argument that the board's decision was not supported by substantial evidence, Figueroa asserts two additional claims, which we consider in turn. First, he complains that neither he nor his counselor, Jack Ward, had access to a confidential investigative report based on information provided by unidentified informants "as did the disciplinary board." Figueroa recognizes that granting him access to the confidential report "could have violated institutional security and other investigations."13 But he claims that Ward could have reviewed the report and inquired into the informants' mutual corroboration, personal knowledge of the matter, and reliability. His point seems to be that Ward might have uncovered evidence discrediting the informants or their information, so that Ward's inability to see the report not only violated Figueroa's due process rights, but should also preclude the district court from considering evidence deriving from the report. Under the circumstances present here, we disagree. First, as the chairman of the disciplinary board testified at trial, the board did not rely on the confidential report in finding Figueroa guilty; it did not even see that report. Although the report had been attached to Figueroa's disciplinary report at one time, it had been removed before the hearing. Instead, the board relied solely on Officer Forgue's statements at the hearing describing the nature and reliability of the informants' information. (According to Anderson's trial testimony, Forgue authored the confidential report). Figueroa was present at the hearing and obviously knew what Forgue had said. Accordingly, he was in exactly the same position as the board in terms of his familiarity with the evidence against him. Figueroa was permitted to speak freely during the hearing and had the right to cross-examine Forgue. See Morris v. Travisono, 499 F. Supp. 149, 169 (D.R.I. 1980) (Disciplinary Procedures, Sec. III.C.4: An inmate has "the right to call a reasonable number of witnesses, both adverse and favorable and examine said witnesses."). At no time during the hearing did Figueroa attempt to question Forgue about the confidential informants' information, reliability, or personal knowledge of the matter. Second, Figueroa never asked the disciplinary board to let Ward review the confidential report, nor did he present that issue to the district court.14 Accordingly, this issue is not even properly before us. Finally, prison officials have no general federal due process obligation to disclose confidential reports to staff members assisting inmates charged with disciplinary infractions. See Mendoza v. Miller, 779 F.2d 1287, 1298 (7th Cir. 1985) (declining to adopt a general rule that inmate counsel should have access to confidential investigative reports used in disciplinary hearings), cert. denied, 476 U.S. 1142 (1986); Freitas v. Auger, 837 F.2d 806, 810 n.7 (8th Cir. 1988) (rejecting an inmate's contention that the court should have made confidential reports available to him or his attorney after the informants were transferred to a different prison); see also Wagner v. Williford, 804 F.2d 1012, 1017-18 (7th Cir. 1986), and on appeal after remand Wagner v. Henman, 902 F.2d 578, 581 (7th Cir. 1990) (both confirming that there is no "general rule" in the Seventh Circuit that confidential reports may be disclosed to inmates' counsel and describing the circumstances under which a "limited release of redacted material information" to counsel might be possible); White v. Nix, 43 F.3d 374, 378 (8th Cir. 1994) (concluding that case law concerning the discovery of confidential investigative files during prison disciplinary hearings "uniformly" sets certain conditions on an inmate's counsel's access to such files). 12 Next, Figueroa challenges the district court's reliance on evidence that the intended murder weapon was a sharpened soup ladle which had disappeared from the prison kitchen at the time Figueroa worked there.15 At the hearing, Officer Forgue told the board that confidential informants had reported that the murder weapon was a honed soup ladle. He also reported that Figueroa had worked in the kitchen at the time the ladle disappeared. On appeal, Figueroa denies that he ever worked in the kitchen and that he ever had access to the soup ladle. At the disciplinary hearing, however, Figueroa acknowledged that he had worked in the kitchen. He also indicated that he had heard that a soup ladle was missing, but denied that he had been working in the kitchen at the time the ladle disappeared. Thus, the undisputed evidence before the board was that Figueroa had worked in the kitchen and that a soup ladle was missing. A controversy existed on the important question whether Figueroa had worked in the kitchen at the time the ladle disappeared. On that point, the board obviously discredited Figueroa, choosing to believe the results of Forgue's investigation. On review, neither we nor the district court may revisit the board's decision not to credit Figueroa's testimony. Cf. Hill, 472 U.S. at 455 (indicating that a disciplinary board's factual findings are not subject to "second-guessing" upon review, nor is the reviewing court required to independently assess the credibility of witnesses or weigh the evidence); Turner v. Scroggy, 831 F.2d 135, 140 (6th Cir. 1987) ("it is not our task nor the magistrate's to substitute credibility determinations contrary to the [disciplinary] committee's ultimate finding") (majority opinion); Harrison, 856 F. Supp. at 1280 ("Reexamination of a prison disciplinary board's credibility choices is beyond the scope of federal court review of disciplinary proceedings.") (citing Turner v. Scroggy ). 5. Remaining Claims 13 Figueroa complains that defendants failed to give him a copy of the disciplinary hearing tape in advance of trial as ordered by the district court. Figueroa did not bring that fact to the court's attention until the day of the trial. When he did so, the court recessed the trial to permit the parties to listen to the tape. After the parties had listened to the tape, the court asked Figueroa if he was ready to proceed. Figueroa said that he was and the trial was conducted without any subsequent objection by Figueroa.16 The trial transcript shows that Figueroa was familiar with the contents of the disciplinary hearing tape and knew what had gone on at the hearing. Nothing in the transcript suggests that his inability to listen to the tape in advance had prejudiced his presentation of evidence at trial. Under those circumstances, his claim is meritless. 14 In an "Addendum" to his appellate brief, Figueroa claims that Officer Forgue sat on the disciplinary board in violation of the Morris Rules. See Morris v. Travisono, 499 F. Supp. at 169 (Disciplinary Procedures, Sec. III.B: "Any officer who initiates a violation report or who investigates and reviews the initiating officer's report is not eligible to sit on the disciplinary board to hear that case."). This claim, which is apparently based on an inadvertent error in the district court's description of the facts, was not presented below and is clearly refuted by the record. 15 Affirmed. 1 On appeal, Figueroa appears to claim as well that failure to provide 24-hour advance notice of the hearing violated the Morris Rules, which are regulations governing the discipline and classification of inmates at the state facility where Figueroa is incarcerated and which have the force and effect of state law. See Rodi v. Ventetuolo, 941 F.2d 22, 26-28 (1st Cir. 1991). The version of the Morris Rules at issue is appended to Morris v. Travisono, 499 F. Supp. 149 (D.R.I. 1980). Figueroa's state law claims are not before us. Although his complaint asserted both state and federal claims, in his pre-trial memorandum Figueroa argued only his due process claims, relying on cases discussing federal due process. Without objection by Figueroa, the district court issued a pre-trial order limiting the evidence to be presented at trial to the federal due process issues. The court's decision resolved only the federal due process claims. Since the court never asserted pendent jurisdiction over Figueroa's state law claims and did not resolve those claims, Figueroa remains free to bring his state law claims in state court if not otherwise barred from doing so by state law, e.g., by any applicable statute of limitations 2 The district court apparently discredited Figueroa's testimony at trial that he had asked for Pezza's assistance, relying on the transcript of the disciplinary hearing which did not record any such request. Anderson testified that Figueroa had never asked him for a Spanish-speaking counselor or interpreter and that he would have readily granted any such request. However, Figueroa testified that he had also asked Ward for Pezza's assistance 3 Ward's participation is not evident from the hearing transcript which apparently incorrectly attributes his questions to disciplinary board members 4 At trial, Figueroa stated that Ward had been of no help to him, but he does not suggest that Ward's alleged failure to help him is actionable under section 1983. In any event, because there is no right to counsel at prison disciplinary hearings, an inmate has no cause of action for a staff assistant's allegedly ineffective assistance. See Bostic v. Carlson, 884 F.2d 1267, 1274 (9th Cir. 1989); Harrison v. Seay, 856 F. Supp. 1275, 1281 (W.D. Tenn. 1994); cf. Coleman v. Thompson, 501 U.S. 722, 755 (1991) (because an inmate has no right to counsel to collaterally attack his conviction, he has no claim for ineffective assistance of such counsel) 5 Figueroa testified as follows: "I ask [Ward and Anderson] if I can have Spanish counsellor, specific, Maria Pezza. I was told that Maria Pezza was embarcation at the time, [inaudible]. I have to proceed." 6 Brodeur's testimony would also have been cumulative and was unnecessary for that reason. Figueroa told the board that he had had no problems with Brodeur, and Forgue agreed, telling the board that Figueroa had no motive to kill Brodeur that he knew of and that, as Figueroa had said, he and Brodeur did not appear to have problems with each other 7 In his pre-trial memorandum, Figueroa told the district court that Botton would testify at trial that Figueroa had been "set up" by a correction officer and another inmate and that Ortiz would testify that an Officer Martinez and inmate Armando Perez had plotted to set him up. The district court would not let Botton and Ortiz testify, ruling, correctly, that the question before the court was not whether Figueroa was actually innocent of the charge against him. On appeal, Figueroa appears to have abandoned the claim that Botton and Ortiz would have testified that he had been set up 8 In his post-trial memorandum, Figueroa stated that Fletcher was the original investigating officer, that another inmate had been under investigation, and that Fletcher would testify that Figueroa was the "wrong man." In his pre-trial memorandum, however, Figueroa had shown no interest in calling Fletcher as a witness, proffering instead the distinctly different theory described above that another inmate and a correction officer had set him up. On appeal, he has obviously abandoned his claim that Fletcher would have testified that a different inmate than Figueroa had plotted to murder Brodeur 9 The disciplinary hearing transcript shows that Figueroa asked to call Fletcher as a witness, but does not record any discussion of the substance of Fletcher's testimony. That discussion apparently occurred, however. The transcript indicates that Figueroa assented to Anderson's statement that "you request ... Officer Fletcher to come up here to testify that you're not of that type of character" and his explanation that the proposed testimony was irrelevant. In addition, in his appellate statement of facts, Figueroa states that he told the board that Fletcher would have testified that he was not the "type of person who would commit the act alleged." 10 Although Figueroa objected to Anderson's statement, he did not explain his basis for disagreeing and did not tell the court that Fletcher would have given different testimony 11 The district court cited the following facts: that different informants, who had had no contact with each other, had identified Figueroa as the inmate who was to stab Brodeur; that each informant's information corroborated the information proffered by the other informant; that the informants had personal knowledge of the matter and had provided accurate information in the past; that there was evidence that the informants were credible; that the weapon the informants claimed Figueroa intended to use-a soup ladle honed to a knife blade-had disappeared from the kitchen when Figueroa worked in the kitchen; and, finally, that Figueroa had offered no rebuttal information or any exonerating evidence 12 Accordingly, we do not decide whether substantial evidence in the record supported the board's decision 13 Therefore, Figueroa is apparently not challenging the district court's finding that he was not entitled to see the confidential report which apparently identified at least one of the inmates who had reported that Figueroa had planned to kill Brodeur. It is well established that inmates have no federal due process right to obtain evidence which could identify confidential informants. See, e.g., Langton, 667 F.2d at 235 (rejecting an inmate's contention that he had the right to cross-examine a confidential informant or review the informant's statement because Wolff left such matters to prison officials' discretion); Mendoza v. Miller, 779 F.2d 1287, 1294 (7th Cir. 1985) (stating that Wolff and Seventh Circuit cases establish "unequivocally" that an inmate does not have a due process right to be informed of the identity of confidential informants), cert. denied, 476 U.S. 1142 (1986); Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987) ("Due process does not require that an informant's identity be revealed to an inmate."), cert. denied, 487 U.S. 1207 (1988) 14 In his pre-trial memorandum, he argued only that he had the right to see the report 15 As of the date of the hearing, the alleged weapon had not been found 16 In his post-trial memorandum, Figueroa alleged only that the transcription of the tape did not accurately reflect the tape of the hearing. He did not argue that any mistranscription had caused the court to misconstrue any critical fact, however, but only that responses of his which were transcribed as inaudible "could have been a response" asking for an interpreter or indicating that he did not understand the proceedings

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. ENTRY ORDER SUPREME COURT DOCKET NO. 2012-476 JUNE TERM, 2013 Logan Nutter } APPEALED FROM: } } Superior Court, Caledonia Unit, v. } Civil Division } } Charles R. Fenoff, Jr. } DOCKET NO. 258-9-08 Cacv Trial Judge: Theresa S. DiMauro In the above-entitled cause, the Clerk will enter: Defendant in this trespass action appeals from a judgment of the superior court, civil division, awarding damages to plaintiff in the amount of $20,000. Defendant contends: (1) the court erred in measuring damages based on the cost of repairing the property rather than the diminution in value; and (2) the damages awarded were unreasonable in light of the value of the property affected; (3) the court erred in relying upon speculative evidence in calculating the damages; and (4) plaintiff failed to meet his burden in proving damages. We affirm. The material facts may be summarized as follows. The parties are neighbors whose properties front on Kidder Road in the Town of Waterford. Defendant purchased his property in April 2006; plaintiff acquired his in June 2006. Kidder Road was a one-lane Class 4 road. Prior to his purchase, defendant obtained the Town’s permission to upgrade Kidder Road. Accordingly, in the fall of 2006 and winter of 2007, defendant performed extensive work on the road, widening and straightening sections, installing a culvert, and altering the elevation in parts to improve drainage. Defendant owns an excavating company and performed the work himself. The trial court found that, in the process of performing the work, defendant tore out trees, destroyed stone walls, and dumped debris—which included large stones, gravel, and tree stumps—down an embankment onto plaintiff’s property. In August of 2008, plaintiff commenced this trespass action. In September 2008, plaintiff filed an amended complaint in the superior court seeking, along with other relief, an order requiring defendant to remove the materials dumped on his property and restore the land to its pre- construction condition, and damages.* On June 29, 2012, the trial court conducted a site visit and later held a one-day trial. Defendant conceded liability, so that the issue focused largely on damages. Plaintiff and defendant testified in their own behalf. In addition, plaintiff called an expert witness, Mark Bannon, a civil engineer who had examined the site and formulated four repair options with cost estimates. The first option involved the use of specialized equipment to remove the debris, estimated to cost between $20,000 and $30,000. The second contemplated removal by * Plaintiff also sued the Town of Waterford, but subsequently dismissed his claims against the Town. hand at an estimated cost of $15,000 to $30,000. The third called for terracing the road to create work platforms before removal, at a cost of $30,000 to $50,000. The fourth involved construction of a route to access the debris from the bottom, estimated to cost between $30,000 and $100,000. Defendant testified that he could perform the repair work himself for a cost of approximately $1,500 to $3,000. The trial court issued a written decision in December 2012. The court concluded that the proper and reasonable measure of damages was the cost of repair, that defendant’s estimates were unreasonably low, and that the second option proposed by plaintiff’s expert—removal of the debris by hand—was the least likely to affect the stability of the area and the most reasonable under the circumstances. Accordingly, the court awarded damages of $20,000, noting that it was within the estimated range of $15,000 to $30,000. This appeal followed. Defendant contends the trial court erred in awarding damages based on the cost of repairing the property rather than its diminution in value. He relies on this Court’s observation in Bean v. Sears, Roebuck & Company, that “the reasonable cost of repair” of property damaged by the defendant’s negligence may be an appropriate measure of damages “[i]f the injury is temporary in the sense that restoration can cure the harm” whereas if the damage “is permanent and beyond full repair, the variance in value of the property before and after the injury affords the better guide to a just award.” 129 Vt. 278, 282 (1971). As we explained, no hard and fast rule obtains: “It all depends upon the character of the property and the nature and extent of the injury.” Id. Defendant argues that in this case the alleged damage is permanent and irreparable such that the proper measure of damages is diminution in value. In making this argument, he points to plaintiff’s own testimony that “in a perfect world I’d like to see it back to the way it was, but I’ve come to terms with the fact that that seems out of reach” and that he would never “feel the same” about the place. This statement by plaintiff is not inconsistent with a finding that the property can be reasonably restored. While expressing pessimism about the possibility of complete restoration, plaintiff also presented expert testimony about the various restoration options and their costs and benefits. Consistent with this evidence, the court found that the damage “cannot be said to be permanent,” and noted that plaintiff had presented substantial evidence on the cost of repair. Defendant further asserts that it was improper for the court to award damages because the cost of repairing the property was disproportionate to the diminution in value. See Sheldon v. Northeast Developers, Inc., 127 Vt. 15, (1968) (holding that jury instruction solely on cost of repair was proper where “the evidence did not demonstrate a cost of repair so inordinate and excessive as to be unreasonable and wasteful”). Defendant argued in this regard that the diminution in value to plaintiff’s property caused by the work could be determined by multiplying the area covered by the debris, about 1,450 square feet or four percent of an acre, by the cost per acre of $795, for a loss in value of $31.82. As noted, the trial court here rejected this argument, expressly finding that plaintiff’s proposed costs of repair did not “rise to the level of waste” in light of the harm caused by defendant’s transformation “of a portion of [plaintiff’s] property from an open forest to bony rocks covered with hydroseed and debris.” The court thus concluded that defendant’s “proposed measure of damages would not adequately compensate [plaintiff] for the harm [defendant’s] trespass has caused,” and that the cost of repair was therefore “the appropriate measure of damages.” In determining the cost of repair, the trial court considered the reasonableness of the various 2 restoration options presented by plaintiff’s expert and expressly rejected one as unduly costly and thus unreasonable under the circumstances. We will not disturb the trial court’s findings unless clearly erroneous, nor its conclusions if reasonably supported by the findings. First Quality Carpets, Inc. v. Kirschbaum, 2012 VT 41, ¶ 20, ___ Vt. ___, 54 A.3d 465. In light of this standard, and the record evidence and findings summarized above, we discern no basis to disturb the trial court’s conclusion that—considering the “character of the property and the nature and extent of the injury”—the cost of repair was not so disproportionate to the diminution in the value of plaintiff’s land as to render it an unreasonable measure of damages. Bean, 129 Vt. at 282. Defendant further contends that the estimated costs of repair provided by plaintiff’s expert were not sufficiently certain to provide a reasonable basis for the court’s award of damages. We view the evidence in this regard in the light most favorable to the prevailing party, and will uphold the court’s award if there is any evidence which fairly and reasonably tends to support it. Ferrisburgh Realty Investors v. Schumacher, 2010 VT 6, ¶ 22, 187 Vt. 308. The evidence must allow the factfinder “to estimate damages with reasonable certainty.” Id. (quotation omitted); see also Lemnah v. American Breeders, Inc., 144 Vt. 568, 580 (1984) (we will uphold damage award where evidence is sufficient to allow factfinder to “estimate the amount within reasonable limits based upon the evidence”). Viewed in light of this standard, the court’s ruling may not be overturned. Plaintiff’s expert testified that he was experienced and routinely provided estimates of this kind, and acknowledged that they were “ballpark figures” which described a range of costs for the four options because each would be subject to permitting requirements of various kinds which could contain conditions, the stability of the bank remained uncertain, and contractors’ costs could vary. Based on the expert’s experience and testimony, the trial court here could reasonably find that the evidence was sufficient to “estimate the amount [of repair costs] within reasonable limits,” Lemnah, 144 Vt. at 580, and the court was also careful to make an award on the low end of the least expensive option which also posed the least risk to further destabilizing the embankment. Accordingly, we discern no basis to disturb the judgment. Affirmed. BY THE COURT: _______________________________________ Paul L. Reiber, Chief Justice _______________________________________ Marilyn S. Skoglund, Associate Justice _______________________________________ Beth Robinson, Associate Justice 3 

187 S.E.2d 172 (1972) 212 Va. 684 Leslie E. COLEMAN v. COMMONWEALTH of Virginia. Supreme Court of Virginia. March 6, 1972. *173 James R. Scott, Jr., Richmond (White, Cabell, Paris & Lowenstein, Richmond, on brief), for plaintiff in error. A. R. Woodroof, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error. Before SNEAD, C.J., and CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ. SNEAD, Chief Justice. Leslie E. Coleman was convicted on June 16, 1970, by the trial court, sitting without a jury, of operating a motor vehicle while under the influence of intoxicants. He was sentenced to 30 days in jail and to pay a fine of $200. The jail sentence was suspended on condition that he be of good behavior for a period of three years (Record No. 7742). Coleman was also tried for unlawfully and unreasonably refusing to take the blood test required by Code § 18.1-55. The court found that Coleman's refusal was not a reasonable refusal and suspended his operator's license for a period of 90 days (Record No. 7743). When arrested, Coleman was advised by Trooper W. D. Spence of the law regarding the blood test. He agreed to take the test and was driven to the Medical College of Virginia by Spence. Before administering the blood test, hospital personnel requested Coleman to sign two forms. He refused to sign these forms or to take the blood test and asked Trooper Spence if he could consult with an attorney. Trooper Spence would not permit Coleman to call an attorney, and thereafter Coleman again refused to sign the forms or take the test unless he was allowed to call an attorney. Copies of the forms Coleman was requested to sign were not offered into evidence. Trooper Spence testified that he saw the forms at the hospital but did not read them. He said merely that they appeared similar to permission forms and waiver of liability forms he had read on previous occasions. In connection with the driving drunk charge, Coleman contends that his conviction should be reversed because he was denied his constitutional right to consult with counsel before deciding whether to take the blood test. However, in Law v. City of Danville, 212 Va. 702, 187 S.E.2d 197 (1972), decided this day, we held that a person charged with operating a motor vehicle while under the influence of intoxicants does not have a constitutional right to consult an attorney before deciding whether to take a blood test. With respect to the charge of unreasonably refusing to take the blood test, *174 Coleman contends that the order revoking his license should be reversed because his refusal was reasonable since it was based upon the denial of his right to consult with counsel. However, in Deaner v. Commonwealth, 210 Va. 285, 293, 170 S.E.2d 199 (1969), we held that an unwillingness to take the blood test without prior consultation with counsel is not a reasonable refusal. Additionally, Coleman contends that the order revoking his license should be reversed because he was required to sign the two forms before hospital personnel would withdraw a blood sample for the test. However, the only testimony concerning the forms came from Trooper Spence. It is not possible from that testimony to know the content of the forms submitted to Coleman. Thus, we cannot say that it was reasonable for Coleman to refuse to take the test because of the requirement that he sign the forms before his blood would be withdrawn. The judgments appealed from will be Affirmed.

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JUL 10, 2006 No. 05-16929 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 03-00024-CR-FTM-29DNF UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELIZABETH MARIE MORSE THOMPSON, a.k.a. Lisa Thompson, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (July 10, 2006) Before CARNES, HULL and PRYOR, Circuit Judges. PER CURIAM:  Elizabeth Marie Morse Thompson appeals her 240-month concurrent sentences for (1) conspiracy to possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine and five grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), (b)(1)(B)(iii), and 846; and (2) two counts of possession with intent to distribute a detectable amount of a mixture or substance containing cocaine base, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). After review, we affirm. I. BACKGROUND On two separate dates, Thompson sold cocaine base to an Drug Enforcement Agency (“DEA”) informant outfitted with electronic surveillance equipment. A search of Thompson’s apartment found a small amount (88 milligrams) of crack cocaine, digital scales and various items of drug paraphernalia. Thompson admitted to officers that she had been selling cocaine since 1999 and that she would sell up to a half ounce daily. At trial, various drug purchasers and dealers testified that Thompson either sold them drugs or received shipments of their drugs. Additionally, two witnesses testified that they each had made drug deliveries for Thompson. 2  The jury convicted Thompson of the above-mentioned counts. The verdict form indicated that the jury found that the conspiracy count involved “500 grams or more” of cocaine and “five (5) grams or more” of cocaine base, crack cocaine. At her first sentencing, the Presentence Investigation Report (“PSI”) attributed 1.5 kilograms of cocaine base to Thompson. However, at the sentencing hearing, the government stated that it did not object to the lesser amount of 500 grams of cocaine base because it did not affect the Guidelines range. The district court rejected Thompson argument that she should be held accountable for less than 500 grams, stating: “[I]n good faith, I can’t find that there’s less than 500 grams. But for the government’s concession, I’d find that there’s over 1.5 kilograms of crack cocaine, based upon the testimony I find credible. The Court is willing to accept the government’s concession that there’s at least 500 grams of crack cocaine and change paragraph 38 to offense level 36. I understand the testimony is disputed. I heard it all. I read it all. It’s just very clear to me that certainly by a preponderance of the evidence there’s more than 500 grams of crack cocaine involved and that the defendant was involved with this amount. Thus, the district court overruled Thompson’s drug quantity objection, finding by a preponderance of the evidence that Thompson’s offenses involved 500 grams of cocaine base. The district court sentenced Thompson under a mandatory Guidelines scheme to a 360-month sentence, at the low-end of the Guidelines range. In so doing, the district court expressed the desire to impose a more lenient 3 sentence than was permitted by the Guidelines. Thompson appealed. On September 1, 2005, this Court affirmed Thompson’s conviction, but vacated and remanded in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), for resentencing under the advisory Guidelines. See United States v. Thompson, 422 F.3d 1285, 1300-01 (11 th Cir. 2005). At resentencing, the district court stated that it wanted to impose a sentence below the advisory Guidelines range, but noted that most factors, aside from Thompson’s family background, weighed against a below-Guidelines sentence. The district court acknowledged the sentences of Thompson’s co-defendants and recounted Thompson’s lengthy history with drug abuse and criminal activity. After noting the advisory Guidelines range and the factors in 18 U.S.C. § 3553(a), the district court imposed below-Guidelines concurrent sentences of 240 months. Thompson stated that she had no objection to the sentence. The district court then stated that it “recognize[d] that the sentence is ten years below the guidelines. And ten years is a significant sentence. But a sentence of 20 years is also significant, and, given all the factors in this case, it’s my view that a 20-year sentence is sufficient in this case.” Thompson appealed her sentences. II. DISCUSSION 4  For the first time on appeal, Thompson argues that the district court violated her Fifth and Sixth Amendment rights by finding by a preponderance of the evidence that Thompson was responsible for at least 500 grams of cocaine base.1 We have repeatedly rejected this argument. When a district court applies the Guidelines in an advisory manner, it does not violate a defendant’s Fifth and Sixth Amendment rights under Booker by finding facts and applying extra-verdict enhancements. See United States v. Chau, 426 F.3d 1318, 1323-24 (11th Cir. 2005); United States v. Rodriguez, 398 F.3d 1291, 1301 (11 th Cir.), cert. denied, 125 S. Ct. 2935 (2005). Here, the district court applied the Guidelines in an advisory fashion and, consequently, any judicial fact-finding done by the district court as to drug quantity and extra-verdict enhancements did not violate Thompson’s Fifth and Sixth Amendment rights. Thompson also asserts that her sentence is unreasonable under Booker. After Booker, the district court must correctly calculate the defendant’s Guidelines range and then, using the factors in 18 U.S.C. § 3553(a), the court may impose a more severe or more lenient sentence as long as it is reasonable. See United States 1 Because Thompson did not raise Fifth or Sixth Amendment objections below, we review for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005); Fed. R. Crim. P. 52(b). To prove plain error, the defendant must establish that (1) there is an error, (2) the error is plain, and (3) it affects substantial rights. Rodriguez, 398 F.3d at 1298. “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). 5 v. Crawford, 407 F.3d 1174, 1179 (11 th Cir. 2005). We review a defendant’s sentence for unreasonableness in light of the factors listed in 18 U.S.C. § 3553(a) and the reasons given by the district court. United States v. Williams, 435 F.3d 1350, 1354-55 (11th Cir. 2006).2 Our review is deferential, and “when the district court imposes a sentence within the advisory Guidelines range, we ordinarily will expect that choice to be a reasonable one.” United States v. Talley, 431 F.3d 784, 788 (11 th Cir. 2005). “[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in light of both [the] record and the factors in section 3553(a).” Id. Here, we cannot say that Thompson’s concurrent 240-month sentences were unreasonable. Thompson does not challenge the district court’s Guidelines calculation, which resulted in an advisory Guidelines range of 360 months to life imprisonment. The 240-month sentences fall 120 months below the low end of the Guidelines range and well below the statutory maximum of life. The district court explicitly considered Thompson’s offense conduct, criminal history, family background, and the sentences of Thompson’s co-defendants, all circumstances falling within § 3553(a)’s factors, and determined that a sentence ten years below 2 Because Thompson’s challenge to the reasonableness of her sentence fails under reasonableness review, it is not necessary to determine, as the government asserts, whether she is only entitled to plain-error review. 6 the advisory Guidelines range was sufficient. See 18 U.S.C. § 3553(a)(1)-(2), (6); see also United States v. Scott, 426 F.3d 1324, 1329 (11 th Cir. 2005) (explaining that the district court is not required to consider explicitly each § 3553(a) factor). Nothing in the record convinces us that Thompson’s concurrent 240-month sentences are unreasonable. AFFIRMED. 7 

798 F.2d 331 21 Fed. R. Evid. Serv. 649 UNITED STATES of America, Appellee,v.Scott GALYEN, Appellant. No. 85-5340. United States Court of Appeals,Eighth Circuit. Submitted May 12, 1986.Decided Aug. 13, 1986. Ralph A. Vinje, Bismarck, N.D., for appellant. Jerome C. Kettleson, Bismarck, N.D., for appellee. Before ARNOLD, FAGG and WOLLMAN, Circuit Judges. WOLLMAN, Circuit Judge. 1 Scott Galyen was convicted by jury of three counts of obtaining a controlled substance by misrepresentation or fraud, see 21 U.S.C. Sec. 843(a)(3) (1982), and of one count of possessing with an intent to distribute a controlled substance. See id. Sec. 841(a)(1). On appeal he alleges error in the admission of certain evidence and in the district court's1 failure to grant his motion for acquittal. We affirm. 2 The controlled substance involved in this case is dilaudid, a painkiller. Galyen had had one leg amputated as a result of a hunting accident and part of the other leg amputated as a result of a motor vehicle accident; and in seeking continued treatment for his condition, he obtained prescriptions for dilaudid from Dr. Gerd Ebel on, among other occasions, January 9, March 9, and April 2, all in 1984. Dr. Ebel testified that he would not have issued these prescriptions had he known that Galyen was also receiving prescriptions for dilaudid from other doctors. Documentary evidence showed that between April 23, 1982, and June 15, 1984, a period of 784 days, Galyen had obtained 413 prescriptions for a total of 11,277 dilaudid tablets, or an average of more than fourteen tablets per day. 3 Galyen objects first to the admission of this series of prescriptions to the degree that they extend approximately eighteen months prior to the occurrence of the events on which the indictment was based. Second, Galyen objects to the testimony of a state undercover drug enforcement agent regarding a marijuana transaction he attempted to negotiate with Galyen in October 1982. The agent specifically testified that Galyen asked him if he was interested in purchasing dilaudid, that Galyen crushed a dilaudid tablet and injected it into the stump of his leg with a syringe, and that Galyen when he left their meeting carried a gun. Third, Galyen objects to the testimony of a convenience store clerk that Galyen asked her to go for a ride with him even though she was married and that Galyen made references to her about "getting high." 4 These evidentiary challenges all are based on Rule 404(b) of the Federal Rules of Evidence, which deals with proof of acts or crimes other than the crimes charged. Evidence of such other acts is admissible when it is relevant to an issue in question other than the character of the defendant, there is clear and convincing evidence that the defendant committed the prior acts, and the potential unfair prejudice does not substantially outweigh the probative value of the evidence. Williams v. Mensey, 785 F.2d 631, 638 (8th Cir.1986) (quoting United States v. Gilmore, 730 F.2d 550, 554 (8th Cir.1984)); United States v. McDaniel, 773 F.2d 242, 247 (8th Cir.1985). This circuit views Rule 404(b) as a rule generally of inclusion, and a trial court's broad discretion in admitting wrongful act evidence will not be disturbed unless the defendant can show that the proof in question "clearly had no bearing upon any of the issues involved." United States v. Estabrook, 774 F.2d 284, 287 (8th Cir.1985). Furthermore, because Galyen's objection to the store clerk's testimony was not renewed at trial, we review the admission of that evidence under the plain error standard. See United States v. Ferguson, 776 F.2d 217, 224 (8th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986). 5 The items of proof challenged by Galyen all suggest that he was involved in drug dealing, an activity which is directly relevant to the intent to distribute count and also suggests a motive for using misrepresentations to obtain controlled substances as alleged in the other counts. The testimony of the store clerk indicates that Galyen was basically functioning normally, which would be inconsistent with the drowsiness or mental clouding that might have been expected had Galyen ingested the quantity of dilaudid which the prescriptions show he purchased. In addition, Galyen's purchase of this volume of prescriptions, with no apparent financial difficulties, is inconsistent with his lack of visible income. The manner in which Galyen ingested the dilaudid (which is meant to be taken orally), again with the number of tablets he obtained, see Barnes v. United States, 777 F.2d 430, 431 (8th Cir.1985), suggests that he was not using the dilaudid for medicinal purposes. Finally, evidence of weapons and of prior offers to sell drugs is relevant to intent to distribute. United States v. LaGuardia, 774 F.2d 317, 320 (8th Cir.1985); United States v. McDaniel, 773 F.2d 242, 247 & n. 4 (8th Cir.1985); United States v. Jones, 676 F.2d 327, 332 (8th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 71, 74 L.Ed.2d 71 (1982). We find no abuse of discretion in the district court's admission of the challenged evidence. 6 Galyen also argues that the court erred in denying his motion for acquittal because the evidence was insufficient to support a finding of guilt on any of the charges. In reviewing this allegation we must take the evidence in the light most favorable to the jury's verdict and draw all reasonable inferences in support thereof. United States v. Robinson, 782 F.2d 128, 129 (8th Cir.1986). Applying this standard to the evidence found admissible above as relevant to intent to distribute, we clearly must uphold the conviction on that charge. In addition, we conclude that the evidence of Galyen's conduct, such as driving extra miles to get prescriptions filled at pharmacies in different towns, was adequate to support an inference that Galyen intended to deceive Dr. Ebel into prescribing more dilaudid either by failing to mention or by affirmatively denying that he was receiving similar prescriptions from other doctors. To the degree Galyen also challenges the lack of a "specific intent" instruction on the misrepresentation issue, we reject that argument. See United States v. Dougherty, 763 F.2d 970, 973-74 (8th Cir.1985). 7 We appreciate the efforts of court-appointed counsel on Galyen's behalf. 8 The conviction is affirmed on all counts. 1 The Honorable Bruce M. Van Sickle, Senior United States District Judge for the District of North Dakota

202 S.W.3d 10 (2005) OFFICE OF CHILD SUPPORT ENFORCEMENT, Appellant v. Colin R. REAGAN, Appellee. No. CA 04-631. Court of Appeals of Arkansas, Division IV. February 2, 2005. *11 G. Keith Griffith, Van Buren, for appellant. Davis & Watson, Springdale, for appellee. LARRY D. VAUGHT, Judge. The Office of Child Support Enforcement (OCSE) appeals from the trial court's conclusion that registration of a 1979 Indiana child-support order in Arkansas was barred based on the Indiana statute of limitations for child-support orders. OCSE argues that the court erred in finding that appellee met his burden of proving the defense of statute of limitations. We disagree and affirm. Colin Reagan and Phyllis Reagan were divorced in Indiana on May 14, 1979. In the divorce decree, Phyllis was granted custody of their child, Gregory, and Colin was ordered to pay $25 per week in child support. On October 16, 2003, pursuant to the Uniform Interstate Family Support Act, the decree was registered in Washington County, Arkansas. Colin objected to the registration and argued the affirmative defense of statute of limitations. A hearing was held on March 8, 2004, where Colin argued that Ind.Code § 34-11-2-10 was the appropriate statute of limitations to apply, which required an action to enforce child support be commenced within ten years after a child's eighteenth birthday or emancipation. Because Gregory turned eighteen on June 30, 1991, Colin argued enforcement of the child-support arrearage was barred as of June 30, 2001. In response, OCSE introduced a certified copy of "minutes of the court" from Indiana dated June 14, 1991, which noted the following: "Pet i/p & b/c. SEH. Ct finds Resp in cont for failure to pay c/s. Arr set at $15,725. Such sum reduced to judg." The document also included the same case number as the divorce decree and indicated the name "Reagan." OCSE argued that Indiana Code § 34-11-2-12 allowed judgments to be enforceable for twenty years. Colin countered that the State had not presented an enforceable judgment, and therefore, the court had nothing to enforce. The court found the exhibit to be something that Arkansas courts would consider to be a docket sheet, not a judgment or support order. The court referred to Arkansas law that required a judgment to be a separate document, signed by the court *12 and filed by the clerk. Further, no legal authority was presented to maintain that Indiana had less stringent requirements for judgments. The court found that, absent any written judgment falling within the twenty-year Indiana limitations period, Colin had met his burden of proof for purposes of contesting the registration of the 1979 order based on the ten-year statute of limitations. We review equity cases de novo on the record, and we will not reverse a finding of fact by the trial court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001). In reviewing a trial court's findings, we give due deference to that court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. McWhorter, 346 Ark. at 475, 58 S.W.3d at 840. Pursuant to Ark.Code Ann. § 9-17-607(a)(7) (Repl.2002), Colin objected to the registration of the 1979 Indiana child-support order on the basis that its enforcement was barred by the applicable statute of limitations. Under that provision, Colin bore the burden of proving that the statute of limitations precluded the enforcement of his child-support obligation. According to Ark.Code Ann. § 9-17-604 (Repl.2002), the appropriate statute of limitations to apply in this case is that of Indiana. The Indiana statute provides that an action to enforce a child-support obligation must be commenced within ten years after the child's eighteenth birthday or emancipation, whichever occurs first. Ind.Code § 34-11-2-10. Additionally, Ind.Code § 34-11-2-12 provides that "[e]very judgment and decree of any court of record of the United States, of Indiana, or of any other state shall be considered satisfied after the expiration of twenty (20) years." Gregory turned eighteen on June 30, 1991; therefore, according to the Indiana ten-year statute of limitations, any action to enforce the child-support obligation was barred unless brought by June 2001. Because the action in Arkansas was not brought until October 2003, it is barred by the statute of limitations. OCSE argues, however, that because it presented some evidence that an action had been commenced in Indiana (and a judgment had been issued) within that ten-year time period, the statute of limitations should be tolled allowing twenty years for the enforcement of any judgment that was issued. However, the twenty-year limitations period set forth in Ind. Code § 34-11-2-12 is not a tolling statute, but rather an independent statute of limitations that applies to legally-enforceable judgments. The only evidence presented of any legal activity was the docket sheet, which the trial court specifically found did not constitute a judgment under Arkansas law. See Hollaway v. Berenzen, 208 Ark. 849, 188 S.W.2d 298 (1945) (stating a docket notation is not an entry of judgment and cannot be used to correct a deficiency in the record). Additionally, OCSE provided no authority to support the conclusion that such a document would be considered a judgment by an Indiana court. Because OCSE did not attempt to register the 1979 child-support order in Arkansas until over two years after the ten-year statute of limitations period had expired and could not provide another valid judgment to enforce, the trial court's finding that registration of the order was barred by the statute of limitations was not clearly erroneous. Affirmed. GRIFFEN and CRABTREE, JJ., agree.

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS February 27, 2006 FIFTH CIRCUIT Charles R. Fulbruge III _________________ Clerk No. 04-30880 (Summary Calendar) _________________ NESTOR SALGADO, Plaintiff-Appellant, versus ALBERTO R GONZALES, U S ATTORNEY GENERAL; JAMES ZIGLAR; EDWARD MCELROY; CARYL THOMPSON, Defendants-Appellees. Appeal from the United States District Court For the Western District of Louisiana UCDC No. 2:04-CV-778-PM Before SMITH, GARZA, and PRADO, Circuit Judges. PER CURIAM:* Nestor Salgado appeals the district court’s denial of his 28 U.S.C. § 2241 habeas corpus petition, which challenged an order of removal by the Board of Immigration Appeals (BIA). In * 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. accordance with the Real ID Act, this court converts Salgado’s writ petition into a timely petition for review of the BIA’s order. See Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005), cert. denied __ S.Ct. __, 2006 WL 37358 (Jan. 9, 2006); see also Real ID Act, Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005) (converted petitions shall not be subject to the thirty-day time filing deadline ordinarily applicable to petitions for review). Salgado argues that his two convictions for theft of services do not render him deportable because they are not crimes involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii) provides that an alien is deportable if he is convicted of two crimes involving moral turpitude that are not part of a single scheme of criminal misconduct. This court reviews de novo the BIA's legal determination that a given crime involves moral turpitude. Okoro v. I.N.S., 125 F.3d 920, 926 (5th Cir. 1997). This court has previously held that theft is a crime of moral turpitude. Id. Salgado makes no argument that theft of services would not fall under this general rule. Accordingly, we will not disturb the BIA’s determination that Salgado is removable. Salgado next complains that his constitutional equal protection rights were violated when he was denied cancellation of removal pursuant to 8 U.S.C. § 1229b. Salgado has not alleged an equal protection violation. See Mahone v. Addicks Utility Dist. of Harris County, 836 F.2d 921, 933 (5th Cir. 1988) (listing the elements of an equal protection challenge). Salgado next argues that his equal protection and due process rights were violated by the Immigration Judge and the BIA throughout his removal proceedings. Salgado’s conclusory allegations of constitutional violations are unsupported by his brief. Accordingly, he has not established that he has suffered a constitutional harm. See United States v. Holmes, 406 F.3d 337, 361 (5th Cir. 2005). -2-  Finally, Salgado argues that he received constitutionally ineffective assistance of counsel in his removal proceedings. He has not, however, demonstrated that he was prejudiced by his counsel’s performance. Accordingly, he is not entitled to relief on this claim. See Miranda-Lores v. I.N.S., 17 F.3d 84, 85 (5th Cir. 1994) (to prevail on a claim of ineffective assistance of counsel in removal proceedings, petitioner must demonstrate substantial prejudice). For the foregoing reasons, Salgado’s converted petition for review is DENIED. -3- 

216 Cal.App.2d 525 (1963) MARION U. DIOWCHI, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SHARON KATHRYN MEADOW, Real Party in Interest. Civ. No. 27159. California Court of Appeals. Second Dist., Div. Four. May 22, 1963. Beilenson, Meyer, Rosenfeld & Susman and Peter R. Cohen for Petitioner. *527 No appearance for Respondent. Schwartz & Sandler and Merle H. Sandler for Real Party in Interest. KINGSLEY, J. Petitioner is the assignee for collection of a firm of attorneys. These attorneys (hereinafter collectively referred to as "Beilensons") were retained by the real party in interest to represent her in a divorce action. During the pendency of that action, respondent court made and entered its order directing the husband to pay directly to them the sum of $7,500 on account of attorney fees and $4,000 on account of costs. This order was secured by a lien, in favor of wife, on certain real and personal property. The husband duly appealed from this order (although it appears from the petition that $5,000 has been paid in partial satisfaction thereof) and that appeal is now pending in division three of this court (2d Civ. 27245). Thereafter, according to the petition, Beilensons filed in the divorce action a notice of motion for $13,000 additional fees. Before this motion came on for hearing, the wife purported to discharge Beilensons as her attorneys and moved to effect a substitution of new counsel. Both the motion of Beilensons for additional fees and the motion to substitute attorneys were continued, on motion of the husband, and are still pending in respondent court, subject to certain proceedings in the Supreme Court hereinafter discussed. While these matters were pending in respondent court, Beilensons filed a complaint in intervention in the divorce action, against husband, but not against the wife, seeking to protect the award of fees and costs already made in their favor and any additional award that might be made. This complaint is still pending in respondent court. It appears that the wife has, in the meantime, quitclaimed to her husband the property on which she held a lien to protect the Beilensons' award, that husband and wife have jointly moved to dismiss the divorce action, and that proceedings are now pending in the Supreme Court of this state to compel such dismissal or, in the alternative, to effect a substitution of the new attorneys for the wife prior to hearing Beilensons' motion for additional fees. [fn. 1] (L.A. 27128.) In an attempt further to protect their claim for fees, Beilensons *528 then filed the action immediately involved in this proceeding. This action is a plenary action at law, against the wife only, alleging the original employment, an unlawful discharge of Beilensons as her attorneys in the divorce action, and praying for the reasonable value of their services in the divorce action. [1] The wife demurred to said complaint on the ground that there was another action pending between the same parties for the same cause. (Code Civ. Proc., 430, subd. 3.) The demurrer was sustained, and the court made an order that "this action is abated until final determination" of the divorce action. A motion to vacate this order having been denied, petitioner sought from this court a writ of mandate to compel vacation of the order sustaining the demurrer and staying proceedings. Mandate is an appropriate method to test the validity of the order of the trial court herein involved. (Pacific Engine etc. Works v. Superior Court (1955) 132 Cal.App.2d 739 [282 P.2d 937].) [2] In her "Return, Demurrer and Answer" to the petition, the real party in interest seeks to controvert the allegations of petitioner as to the wrongfulness of the discharge of the attorneys. Such a denial has no place in this proceeding. We take the complaint in Diowchi v. Meadow as it stands; if its allegations are not true, or if real party in interest has any other defense to the claim for attorney fees, her remedy is to answer the complaint and litigate the issues so formed in the trial court. [3a] An attorney for a wife in a divorce action has two independent bases for collection of fees. As in any other matter, he may look to his own client for payment of his fees. Or, by virtue of the provisions of sections 137.3 and 137.5 of the Civil Code, he may look to the husband for fees payable under a court order. But the amount recoverable in the two instances are not the same. [4] As between attorney and the wife, in a divorce action, the recovery is either the amount agreed upon by contract or a recovery in quantum meruit. (Neblett v. Getty (1937) 20 Cal.App.2d 65 [66 P.2d 473].) [5] And, in case of discharge (whether or not for cause) the recovery may be in quantum meruit even though the retainer contract called for the attorney to look to his statutory claim against the husband. (Bergan v. Badham (1956) 142 Cal.App.2d Supp. 855, 856-857 [297 P.2d 815].) [6] But the statutory recovery against the husband is limited by his ability to pay, and also by the wife's ability to pay fees out of her own resources. (Loke v. Loke (1949) 95 Cal.App.2d 278 *529 [212 P.2d 553].) [3b] It follows that Beilensons' recovery, if any, against the husband, either under the motion for additional fees or under the complaint in intervention, may be for a lesser amount than that recoverable in the plenary action against the wife and will be based on a different duty and obligation. [7] Further, although section 137.5 of the Civil Code allows an order directing payment of fees and costs directly to the attorney, still the application for such an order must be made in the name of the wife and not in the name of the attorney. (See Weil v. Superior Court (1950) 97 Cal.App.2d 373 [217 P.2d 975].) [8] Since neither the parties, nor the cause of action, are the same in the case of Diowchi v. Meadow as in Meadow v. Meadow it follows that: The demurrer to the complaint in the Diowchi action should not have been sustained; the order sustaining such demurrer and ordering an abatement should be vacated, the demurrer should be overruled and the real party in interest be permitted to answer or otherwise plead as she may be advised. Let a peremptory writ of mandate issue, directing respondent court: to vacate its order of February 3, 1963, in the case of Marion U. Diowchi v. Sharon Kathryn Meadow, being action No. 807152 in the files of said court; to overrule said demurrer; and to grant defendant in said action a reasonable time within which to answer or otherwise plead to the complaint on file therein. Burke, P. J., concurred. Jefferson, J., did not participate. NOTES [fn. 1] 1. In view of the pendency of these proceedings, we do not comment on the propriety of either the motion or the complaint in intervention. Cf. Schwartz v. Schwartz (1953) 119 Cal.App.2d 102 [259 P.2d 33].

727 F.Supp. 917 (1990) IMPERIAL CASUALTY & INDEMNITY COMPANY, Plaintiff, v. The HOME INSURANCE CO. OF MANCHESTER, NEW HAMPSHIRE, et al., Defendants, v. NATIONAL CASUALTY COMPANY, Additional Defendant. Civ. A. No. 88-0932. United States District Court, M.D. Pennsylvania. January 8, 1990. Francis E. Marshall, Jr., Law Offices of Francis E. Marshall, Jr., Harrisburg, Pa., for Imperial Cas. and Indem. Co., plaintiff. Zygmunt Ronald Bialkowski, Jr., Scranton, Pa., for Home Ins. Co. of Manchester, N.H., defendant. Michael John Foley, Scranton, Pa., for Cynthia Parker, Administratrix of the Estate of Elvin R. Parker, defendant. Donald B. Hoyt, York, Pa., for County of York Pennsylvania, Mary Ellen Filipovitz, Raymond W. Neidinger and York County Prison Bd., defendants. Frank J. Lavery, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Harrisburg, Pa., for Nat. Cas. Ins. Co., third-party defendant. MEMORANDUM CALDWELL, District Judge. Plaintiff, Imperial Casualty & Indemnity Company (Imperial), and defendant, The Home Insurance Company of Manchester, New Hampshire (Home), have cross-moved for summary judgment pursuant to Fed.R. Civ.P. 56.[1] This is a declaratory judgment action in which Imperial seeks to hold Home liable for the attorney's fees and costs Imperial incurred in defending another action before this court, Parker v. County of York, No. 87-0466 (M.D.Pa.), along with Imperial's contribution to the settlement of that action. *918 Imperial had issued a policy of insurance to the County and its Sheriff's Department for "damages because of wrongful acts arising out of Law Enforcement activities...." Home's policy is a comprehensive general liability policy issued to the County of York. Imperial defended the County and one of its employees (Raymond W. Neidinger) in the Parker action pursuant to a reservation of rights. Home declined coverage for several reasons but its defense of this declaratory judgment action is based upon only two of its grounds for doing so, two exclusions in its policy.[2] One exclusion, dealing with "Malpractice and Professional Services," provides that there shall be no coverage for "bodily injury or property damage due to the rendering of or failure to render any professional service." The other exclusion, dealing with "Law Enforcement," states that the policy would not apply "to any loss or claim arising out of the law enforcement activities or operations." The Home policy provides no clarifying definitions for these exclusions. By way of background on the Parker case, it was brought because of the death by heart attack on May 31, 1985, of Elvin R. Parker, then an inmate at the York County Prison. According to the amended complaint, which we must examine to determine the defendant's duty to defend, see Pacific Indemnity Co. v. Linn, 766 F.2d 754 (3d Cir.1985), Parker was brought to the prison infirmary at about 10:00 p.m. that night suffering from symptoms of a heart attack. The nurse on duty at the time, Mary Ellen Filipovitz, R.N., and Neidinger, a prison guard, were alleged to have acted wantonly, recklessly, and intentionally in failing to provide the decedent with necessary medical treatment. The complaint also apparently alleged that other, unnamed, prison employees failed to provide the decedent with prescribed medication needed for his heart condition in the days prior to the attack and failed to obtain medical treatment for him when he first began to complain of his heart condition. A cause of action under 42 U.S.C. § 1983 and pendent state law claims were asserted. We will analyze the law enforcement exclusion first. Plaintiff contends that the plain meaning of the phrase "law enforcement" does not include activities dealing with the incarceration or detention of prisoners or others awaiting trial.[3] Rather, they involve only conduct occurring prior to that time, such as investigations and arrests. In support, plaintiff refers us to the following definitions of "law enforcement officer." Those whose duty it is to preserve the peace. [cited case omitted]. See also Police officer; sheriff. Black's Law Dictionary 796 (5th ed. 1979) (brackets added). A policeman, sheriff, deputy sheriff, constable, or other officer whose duty it is to be vigilant in discovering violations of the criminal laws and ordinances and to arrest offenders. Ballentine's Law Dictionary 712 (3d ed. 1969). The further reference in the Black's Law Dictionary definition to "police officer" and "sheriff" are in accord with the Ballentine's Law Dictionary definition in limiting a "law enforcement officer" to a person who apprehends and aids in the prosecution of criminals. In the absence of a policy definition, we believe we should rely upon these common definitions in construing the phrase "law enforcement activities or operations" in defendant's policy. Hence, the law enforcement exclusion does not apply to the underlying action since it arose while the decedent was incarcerated in the County prison. In reaching this conclusion, we reject defendant's reliance upon Home Indemnity Co. v. Johnson County Fiscal Court, 682 F.Supp. 326 (E.D.Ky.1987). The policy language at issue in that case is, in our view, distinguishable from the Home policy language in the instant case. In Johnson *919 County, the policy excluded "liability ... arising out of the performance of the insured's duties to provide law enforcement ... and all operations necessary and incidental thereto." Id. at 327. The district court concluded that this exclusion barred coverage for the underlying action, a claim arising from the murder of two people by an escapee from the County prison. The court reasoned, in part, as follows: There can be no valid argument that the operation of a jail, for the purpose of incarceration of convicted criminals or detention of accused, pending disposition of charges against them, is a component of and incidental to law enforcement. Id. at 329. In the instant case, on the other hand, the exclusionary language stops at law enforcement activities or operations. It does not further preclude coverage for incidental operations. We turn now to the professional services exclusion. We have no doubt that, if the allegations of the Parker complaint had related solely to the conduct of Nurse Filipovitz and prison guard Neidinger, this exclusion would have barred coverage. The claims against them were based upon their failure to provide adequate medical treatment on the night of the decedent's death. Medical treatment is a professional service and hence not covered by virtue of the exclusion. See Harad v. Aetna Casualty And Surety Co., 839 F.2d 979, 984 (3d Cir.1988) (quoted and cited cases omitted) ("A `professional' act or service is one arising out of a vocation, calling, occupation or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual rather than physical or manual."). The Parker complaint, however, further alleged that the decedent had been prescribed medication prior to his incarceration (amended complaint, ¶ 10), and that prior to and during his incarceration, he had a history of chest pain, angina and breathing difficulty. (¶ 8). Decedent had advised prison officials of his condition (¶ 12) but they withheld his medications, (Id.), and medical treatment during the weeks preceding his death. (¶ 13). The failure of the officials to act was averred to have resulted from a policy of the County of York. (Id.). We do not believe these averments come within an exclusion for a claim resulting from the rendering or failure to render professional services. In one sense, we readily admit they do. Looking to the acts themselves rather than to the status of the actor or title that person may have had, see Harad, supra, the prison officials could have been called upon to make a professional, medical judgment when decedent made his requests for treatment or his medications. And in failing to act the officials could have been making a professional evaluation of the nature of decedent's complaints. If so, then the exclusion would apply. See Merchants Mutual Insurance Co. v. City of Concord, 117 N.H. 482, 374 A.2d 945 (1977) (actions of city and county officials in failing to obtain psychiatric treatment for prisoner showing signs of mental illness came within exclusion of liability for professional services and were not covered by the insurance policies at issue); Gulf Insurance Co. v. Gold Cross Ambulance Service Co., 327 F.Supp. 149, 152 (W.D.Okla.1971) ("`Medical treatment' in the form of home remedies, or the giving of a hypodermic injection, without consultation with or attendance by a physician, may be administered by a parent, a non-professional, to his sick child. If so, it would be work or service `of a professional nature.'"). But the allegations could also be read as a failure on the part of the prison officials, when faced with serious medical complaints from a prisoner, to convey this information to appropriate prison medical authorities along with the request for medical treatment. In this sense, the officials were not being called upon to exercise a professional judgment but, rather, merely to transmit information and process a request to see a doctor. If so, we do not believe the professional services exclusion would apply. Additionally, the prison officials were averred to have failed to give decedent medication prescribed for his condition prior to his *920 incarceration. Again, this type of service would not be professional in nature. See Merchants Mutual, supra (failure of city employees to convey information to the court arraigning the decedent of his prior behavior while being detained in city jail and that he was emotionally upset and unable to control himself were not actions of a professional nature and were covered under the policy); Gold Cross Ambulance Service, supra (failure of ambulance crew to transport decedent to a hospital was not a professional service and excluded from coverage). Accordingly, we conclude that defendant had a duty to defend the Parker action. Additionally, because that action was settled and liability under the various theories and claims was never resolved, defendant also has the duty to indemnify as well. See Pacific Indemnity Co., supra; Terra Nova Insurance Co. v. 900 Bar, Inc., 887 F.2d 1213 (3d Cir.1989). The defendant has admitted that the amount of the settlement and the costs of defense were reasonable so an order requiring reimbursement of those sums should be a sufficient remedy.[4] We will issue an appropriate order. ORDER AND NOW, this 8th day of January, 1990, upon consideration of the cross-motions for summary judgment, it is ordered and declared that: 1. Plaintiff's motion is granted and defendant's motion is denied. 2. Defendant, The Home Insurance Co. of Manchester, New Hampshire, by its policy, No. 8896840, provided insurance to the County of York for the defense of the underlying action, Parker v. County of York No. 87-0446 (M.D.Pa.). 3. Imperial Casualty And Indemnity Company be reimbursed by defendant for any expenses incurred in defending the underlying action, including attorney's fees and costs and the amount it contributed to the settlement of that action. 4. The Clerk of Court shall close this file. NOTES [1] Third-party defendant, National Casualty Company, also moved for summary judgment. That motion was unopposed and was granted by order, dated December 15, 1989. [2] Home raised other defenses but did not brief them. We consider them waived. [3] The decedent was in the York County Prison serving time on a parole violation and also awaiting trial on another charge. [4] Our interpretation of the law enforcement exclusion requires us to conclude that plaintiff had no duty to defend or indemnify. Plaintiff has also requested the attorney's fees and costs in prosecuting this action. We believe that defendant's position on the coverage issue was reasonable and maintained in good faith. Hence, we will deny this request. See Pacific Indemnity, supra.

IN THE SUPREME COURT OF TEXAS ════════════ NO. 14-0747 ════════════ GLENN HEGAR, IN HIS OFFICIAL CAPACITY AS TEXAS COMPTROLLER, AND KEN PAXTON, IN HIS OFFICIAL CAPACITY AS TEXAS ATTORNEY GENERAL, PETITIONERS, v. TEXAS SMALL TOBACCO COALITION, AND GLOBAL TOBACCO, INC., RESPONDENTS ═════════════════════════════════════════════ ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS ═════════════════════════════════════════════ Argued December 8, 2015 JUSTICE WILLETT delivered the opinion of the Court. Amid nationwide tobacco litigation in the 1990s, the State of Texas individually settled its lawsuit against several of the largest tobacco companies over smoking-related Medicaid costs. The multibillion dollar settlement principally requires the settling manufacturers to make annual payments of approximately $500 million to the State in perpetuity. In return, the State waived without limitation, among other things, any future reimbursement claims against the settling manufacturers. In 2013, the Legislature passed House Bill 3536, which sought to recover the State’s health care costs imposed by non-settling manufacturers’ products through a tax on those manufacturers. This case concerns whether that taxation scheme violates the Equal and Uniform Clause of the Texas Constitution. We hold that it does not. Accordingly, we reverse the court of appeals’ judgment and remand to that court for consideration of the non-settling manufacturers’ remaining challenges to the tax. I In this case, we write against the backdrop of national tobacco litigation, a momentous era culminating in some of the largest and most extensive civil litigation settlements in American history. We begin with an overview of the tobacco liability claims of the 1990s before turning to the facts of this case. A This case arises in part from historic litigation that buffeted the tobacco industry in the last decade of the twentieth century. The Lone Star State was a significant player in that litigation. Just over twenty years ago, Texas sued several of the nation’s leading tobacco companies, asserting violations of numerous state and federal fraud, racketeering, antitrust, conspiracy, and other laws. Texas’s claims were that these companies knowingly misrepresented their products as safe and targeted minors in their advertisements. More than 40 states filed similar suits against the tobacco industry. The companies’ collective defense faltered, however, when one of the companies, Liggett, settled with Texas and several other states (the Liggett Settlement), agreeing in large part to cooperate with the states in their suits against the remaining defendants. As relevant here, Liggett agreed to make annual payments to the states, and the states waived their claims against Liggett. The Liggett Settlement led to settlement negotiations involving the remaining defendants that culminated in a nationwide settlement and state-specific settlements. The Liggett Settlement prompted serious settlement discussions between the states and the remaining tobacco defendants. Shortly thereafter, the states and tobacco defendants executed a Memorandum of Understanding and Proposed Resolution (Proposed Resolution). The Proposed 2 Resolution sought “to forge an unprecedented national resolution of the principal issues and controversies associated with the manufacture, marketing and sale of tobacco products in the United States.” According to the Proposed Resolution, federal legislation would provide the vehicle for implementing the solution and ensuring “comprehensive regulation of the tobacco industry while preserving the right of individuals to assert claims for compensation.” The Proposed Resolution would primarily require the remaining defendants to make annual payments in perpetuity “to fund health benefits program expenditures and to establish and fund a tobacco products liability judgments and settlement fund.” Those payments would total approximately $368.5 billion over the first 25 years. The payments would be adjusted for inflation and changes in the defendants’ sales. The Proposed Resolution would also impose significant limitations on the defendants’ marketing of their products. In return, the states would waive their claims against the defendants as well as future claims arising from the sale or use of tobacco products. The Proposed Resolution never became federal law, but it would serve as the blueprint for several settlements in the following months. The Master Settlement Agreement (MSA) was the largest of the subsequent settlements, involving 46 states plus American territories and the District of Columbia (collectively, settling states). Under the MSA, the settling states released past, pending, and future claims against the remaining defendants (deemed “participating manufacturers”) that sought “recovery for Medicaid and other public health expenses incurred in the treatment of smoking-induced illnesses.” Tracking the Proposed Resolution, the MSA required the participating manufacturers to make initial payments followed by perpetual annual payments based on their market share and product sales. The MSA also imposed marketing restrictions on the participating manufacturers, forbidding advertising to minors and requiring initiatives to prevent such advertising. The MSA permits other 3 tobacco manufacturers to join the MSA, generally requiring these “subsequent participating manufacturers” to comply with the MSA’s restrictions and ongoing payment scheme to receive the same release of claims that the participating manufacturers received. Texas was not a party to the MSA. Instead, Texas and three other states—Minnesota, Mississippi, and Florida—reached individual settlements with the remaining tobacco defendants. For purposes of this case, the differences between these settlements are negligible. The Texas Comprehensive Settlement Agreement and Release (Comprehensive Settlement) accomplished much of what the Proposed Resolution would have accomplished, exemplified by the Comprehensive Settlement’s constant invocation of the Proposed Resolution and the Proposed Resolution’s attachment to the Comprehensive Settlement as an appendix. It stated that Texas and the remaining defendants (settling manufacturers)—Philip Morris, Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Co., Lorillard Tobacco Co., and United States Tobacco Co.— desired to settle on terms “comparable to those contained in the Proposed Resolution, which terms will achieve for Texas immediately and with certainty the financial benefits it would receive pursuant to the Proposed Resolution.” The Comprehensive Settlement required the settling manufacturers to make initial payments to Texas of $725 million—Texas’s 7.25% share of the $10 billion initial payment to the states set out in the Proposed Resolution. The Comprehensive Settlement also required the settling manufacturers to make annual payments in perpetuity. Adjusted by inflation and the settling manufacturers’ market share and product sales, the payments may increase, decrease, and even end if a manufacturer stops selling tobacco products altogether. The Comprehensive Settlement stated that the initial payments “constitute[d] reimbursement for public health expenditures by the State of Texas.” It further stated that “[a]ll other payments . . . are in satisfaction of all of the State 4 of Texas’s claims for damages incurred by the State in the year of payment or earlier years, including those for reimbursement of Medicaid expenditures and punitive damages.” Pursuant to a most-favored-nation provision, the amount of the payments corresponds to the amount required under the Minnesota settlement, which costs settling manufacturers approximately $0.64 per cigarette pack. The parties to this litigation do not dispute that the settling manufacturers’ payments to the State result in annual revenue of approximately $500 million. As in the MSA and Proposed Resolution, the Comprehensive Settlement prohibited the settling manufacturers from marketing to minors and required them to support programs created to reduce underage smoking. Further, the Comprehensive Settlement prevented the settling manufacturers from opposing any legislative or administrative initiatives to strengthen penalties for tobacco-product sales to minors and for minors in possession of those products. In return, the Settlement secured robust immunity for the settling manufacturers, though they admitted no wrongdoing and disclaimed any liability. Texas released all past claims “that were or could have been made in this action or any comparable federal or state action.” And as to future claims, Texas released those claims “directly or indirectly based on . . . the use of or exposure to Tobacco Products manufactured in the ordinary course of business, including without any limitation any future claims for reimbursement for health care costs allegedly associated with use of or exposure to Tobacco Products.” B But what of those tobacco manufacturers who are not parties to either the MSA or the state- specific settlements? The Proposed Resolution cautioned that its achievements “would be substantially undercut if certain companies were free to ignore the limitations it imposes, and were instead able to sell tobacco products at lower prices (because they were not making the payments 5 described above) and through less restricted advertising and marketing activities.” Following the Proposed Resolution’s idea of imposing ongoing payments or escrow obligations on these non- settling manufacturers (NSMs), the MSA and individually settling states established similar methods of dealing with NSMs. The MSA suggested, and every MSA state has enacted, an escrow statute that requires “non-participating manufacturers” to deposit annual fees. The statutes generally provide that the MSA states can recover a judgment or settlement against NSMs from those escrow accounts. But if any fees remain in the escrow accounts after 25 years, they may be returned with interest to the manufacturers who paid the fees. NSMs have challenged those statutes on due-process and equal- protection grounds, but every federal court to consider those challenges has rejected them.1 Minnesota sought to achieve the same goal through a tax on NSMs. That tax currently equates to $.50 per cigarette pack. In 2006, the Minnesota Supreme Court considered the NSMs’ challenge to that tax on equal-and-uniform grounds and rejected the challenge, upholding the tax as rational and reasonably related to its goals of recovering health care costs and reducing underage smoking.2 In 2013, Texas followed suit. The Legislature passed House Bill 3536, which added Subchapter V to Chapter 161 of the Texas Health & Safety Code. Subchapter V imposes a tax, 3 similar to Minnesota’s tax, on NSMs, defined as manufacturers of cigarettes or cigarette tobacco 1 See Xcaliber Int’l Ltd. v. Louisiana., 612 F.3d 368 (5th Cir. 2010); Grand River Enters. Six Nations, Ltd. v. Beebe, 574 F.3d 929 (8th Cir. 2009); Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005); Star Scientific, Inc. v. Beales, 278 F.3d 339 (4th Cir. 2002); S & M Brands, Inc. v. Summers, 393 F. Supp. 2d 604 (M.D. Tenn. 2005); PTI, Inc. v. Philip Morris Inc., 100 F. Supp. 2d 1179 (C.D. Cal. 2000). 2 See Council of Indep. Tobacco Mfrs. of Am. v. State, 713 N.W.2d 300 (Minn. 2006). 3 The statute calls the measure a “fee,” but all parties agree that the measure functions as a tax subject to the Equal and Uniform Clause. See TracFone Wireless, Inc. v. Comm’n on State Emergency Commc’ns, 397 S.W.3d 173, 175 n.3 (Tex. 2013). 6 products that did not sign either the Liggett Settlement or the Comprehensive Settlement.4 The Legislature enumerated various purposes underlying the tax: (1) recover health care costs to the state imposed by non-settling manufacturers; (2) prevent non-settling manufacturers from undermining this state’s policy of reducing underage smoking by offering cigarettes and cigarette tobacco products at prices that are substantially below the prices of cigarettes and cigarette tobacco products of other manufacturers; (3) protect the tobacco settlement agreement and funding, which has been reduced because of the growth of sales of non-settling manufacturer cigarettes and cigarette tobacco products, for programs that are funded wholly or partly by payments to this state under the tobacco settlement agreement and recoup for this state settlement payment revenue lost because of sales of non-settling manufacturer cigarettes and cigarette tobacco products; (4) ensure evenhanded treatment of manufacturers and further protect the tobacco settlement agreement and funding by imposing a partial payment obligation on non- settling manufacturers that already make payments on Texas sales under the master settlement agreement until a credit amendment to that agreement that will provide those manufacturers with a credit for payments to Texas is effective; and (5) provide funding for any purpose the legislature determines.5 The tax is approximately $0.55 per cigarette pack for NSMs who did not join the MSA, and $0.15 per cigarette pack for those NSMs who became subsequent participating manufacturers under the MSA. All taxes paid “shall apply on a dollar for dollar basis to reduce any judgment or settlement on a released claim brought against the manufacturer that made the payment.”6 C Respondents in this case (collectively, the Coalition) are manufacturers, retailers, and distributors who are subject to this taxation scheme. The Coalition sued the Comptroller and Attorney General (the State), alleging that the tax is unconstitutional under the Equal and Uniform 4 See TEX. HEALTH & SAFETY CODE §§ 161.602–.603. 5 Id. § 161.601. 6 Id. § 161.612. 7 Clause of the Texas Constitution and the Equal Protection and Due Process Clauses of the United States Constitution. Specifically, the Coalition claimed that the tax classifications unconstitutionally discriminate against NSMs. The State filed a plea to the jurisdiction, claiming, among other things, that the Coalition had not pleaded viable constitutional claims. The trial court considered that plea along with competing motions for summary judgment. The court rejected the plea and the State’s motion for summary judgment, and granted the Coalition’s motion for summary judgment, declaring the tax unconstitutional under both the Texas Constitution and the United States Constitution. The court of appeals affirmed by addressing only the Equal and Uniform Clause claim. 7 The court found no difference between settling manufacturers’ products and NSMs’ products.8 It described the Legislature’s purposes as “laudable,” but nonetheless held that “imposing a tax on only one class of identical products is not equal and uniform under Texas law and cannot be upheld.”9 We granted the State’s petition for review. The Coalition has agreed that its legal arguments “are the same for both the Texas Settlement Agreement and the Liggett Agreement.” For ease of reference, we therefore proceed on that understanding, denoting both settlements as “the Settlement” and denoting the settling companies under both settlements collectively as “settling manufacturers,” as Chapter 161 does. 7 440 S.W.3d 304. 8 Id. at 311. 9 Id. 8  II The Equal and Uniform Clause is succinct: “Taxation shall be equal and uniform.”10 That mandate generally applies only within classes, not between classes, and so we have established a two-pronged framework within which we assess the validity of statutory tax classifications. First, a challenged statute is entitled to a “strong presumption” of constitutional validity.11 This presumption is particularly robust where the constitutionality of taxation statutes is challenged. 12 Second, the Legislature need only have a rational basis in constructing tax classifications. 13 That is, the Legislature must “attempt to group similar things and differentiate dissimilar things” in formulating rational classifications, and must show that the classifications reasonably relate to the purpose of the tax.14 And above all, “the Legislature must have discretion in structuring tax laws.”15 No party questions the applicability of the presumption of constitutionality here. Instead, the parties dispute the formulation and application of the rational-basis standard. We therefore begin with a clarification of that standard and then apply it to the facts before us. A The parties primarily debate the correctness of the court of appeals’ rendition of the rational-basis standard. The court of appeals emphasized that, in assessing the rationality of tax 10 TEX. CONST. art. VIII, § 1(a). 11 Vinson v. Burgess, 773 S.W.2d 263, 266 (Tex. 1989). 12 In re Nestle USA, Inc., 387 S.W.3d 610, 623 (Tex. 2012) (citing Vinson, 773 S.W.2d at 266). 13 See id. at 622–23. 14 See id. 15 Id. at 623. 9 classifications, its “focus must be on the subject of the tax, not the entity being taxed.”16 The court then observed that both settling manufacturers and NSMs make identical tobacco products, which were, in its view, the taxed subject matter.17 Therefore, the court reasoned, despite the “laudable” goals of recovering health care costs to the State and reducing underage smoking, “imposing a tax on only one class of identical products is not equal and uniform under Texas law and cannot be upheld.”18 The State says that a difference in products may be a sufficient condition for upholding different tax classifications, but it is not a necessary condition. The Coalition counters that, pursuant to its test, the court of appeals appropriately sought to identify any difference between settling manufacturers and NSMs and found none. We do not think the court of appeals’ analysis can be read as generously as the Coalition suggests. In addition to its emphasis in the quotations above on the nature of the products, the court repeated that refrain at least two more times. The court stated that there was “no indication in this record that the taxed subject matter . . . differs even slightly when manufactured by [NSMs] versus [settling manufacturers].”19 Elsewhere, it looked for “justif[ication] [for] the unequal treatment of identical products.”20 Given the court’s earlier statement that its “focus must be on the subject of the tax, not the entity being taxed,”21 it appears the court kept its word by focusing only on the identical nature of the tobacco products manufactured by settling manufacturers and NSMs. 16 440 S.W.3d 304, 311. 17 See id. 18 Id. 19 Id. 20 Id. 21 Id. 10  That constricted approach diverges from our settled precedent. We have made clear that, “[a]t least where non-property taxes are concerned, the Equal and Uniform Clause generally only prohibits unequal or multiform taxes that are imposed on members of the same class of taxpayers.”22 This understanding is deeply embedded in our caselaw. Over 100 years ago, we asked in Texas Co. v. Stephens in the occupation-tax context whether “an attempted classification has [any] reasonable basis in the nature of the businesses classified[.]”23 And just a few Terms ago, we reaffirmed this understanding in Nestle, another occupation-tax case, noting that “classifying taxpayers for purposes of an occupation tax is not an exception to the Equal and Uniform Clause but a consequence of it.”24 The court of appeals’ insistence on focusing on the products and not on the entity being taxed is thus at odds with the concerns of the Equal and Uniform Clause. Products do not pay taxes; taxpayers do. For that reason, in the non-property context, the nature of the taxpayer necessarily lies at the heart of any Equal and Uniform Clause inquiry. This is not to say that differences in taxpayers’ products are wholly irrelevant to this inquiry. The Legislature may well find those differences helpful in distinguishing one taxpayer from another. For example, no reasonable person would dispute that an ice cream manufacturer could be classified differently than a computer manufacturer. On that understanding, we have previously mentioned a “[d]ifference[] in the commodities sold or services rendered” as a difference to which the Legislature may look in constructing tax classifications.25 In the same vein, 22 TracFone Wireless, Inc. v. Comm’n on State Emergency Commc’ns, 397 S.W.3d 173, 181 (Tex. 2013) (emphasis added). 23 Tex. Co. v. Stephens, 103 S.W. 481, 485 (Tex. 1907) (emphasis added). 24 Nestle, 387 S.W.3d at 620. 25 Dancetown, U.S.A., Inc. v. State, 439 S.W.2d 333, 336 (Tex. 1969). 11 we have explained that “[d]ifferences in the profits derived” and “differences in methods of conducting businesses” are also permissible differences upon which the Legislature may rely.26 Although those differences may be sufficient to sustain tax classifications, none of those differences are the sine qua non of rational tax classifications. Nor is that list of differences exclusive. Our precedents may only be said to delineate the core, not the perimeter, of permissible tax-classification distinctions. All of this flows from the fact that the Legislature retains full discretion when it “attempt[s] to group similar things and differentiate dissimilar things,”27 subject, of course, to the general rule that the differences must be real, not fanciful.28 Absent a violation of that rule, our deferential tradition compels respect for the Legislature’s differentiating function. In the end, the Equal and Uniform Clause primarily suggests a question as simple as its text: Is the challenged tax classification rational and reasonably related to the purpose of the tax? B Applying that familiar standard, we have little trouble finding that this taxation scheme does not violate the Equal and Uniform Clause. The Legislature’s distinction between settling manufacturers and NSMs is rational on at least two grounds. First, no party disputes that the settling manufacturers shoulder a $500-million- per-year burden that NSMs do not bear. Asked directly about that distinction at oral argument, the Coalition’s counsel candidly admitted, “Apart from [this] tax, [we] would not be paying anything” 26 See Stephens, 103 S.W. at 485; Hurt v. Cooper, 110 S.W.2d 896, 901 (Tex. 1937). 27 Nestle, 387 S.W.3d at 622. See also id. at 623 (“[W]e believe that the Legislature must have discretion in structuring tax laws.”); Stephens, 103 S.W. at 485 (“The considerations upon which [tax] classifications shall be based are primarily within the discretion of the Legislature.”). 28 See Stephens, 103 S.W. at 485 (“The courts . . . can only interfere when it is made clearly to appear that an attempted classification has no reasonable basis in the nature of the businesses classified, and that the law operates unequally upon subjects between which there is no real difference to justify the separate treatment of them undertaken by the Legislature.” (emphasis added)). 12 to the State. Second, the settling manufacturers function under operating restrictions to which NSMs are not subject. The Coalition says it operates under similar restrictions because it too is legally prohibited from using marketing tactics designed to entice youth. But the Settlement’s operating restrictions go further than prohibiting certain marketing tactics. The Settlement prohibits the settling manufacturers from “challeng[ing] existing or proposed legislative or administrative initiatives insofar as they effectuate” objectives like strengthening civil penalties for sales of tobacco products to minors and for minors in possession of these products. That restriction would implicate serious First Amendment concerns if not for the settling manufacturers’ agreement, and the Coalition has pointed us to no evidence in the record that its members are subject to a similar restriction. Those distinctions establish sufficient differences in business operations to justify the non- settling-manufacturer and settling-manufacturer tax classifications. Our emphasis on businesses’ burdens in Nestle indicates as much. There, we assessed different franchise-tax classifications and upheld them based on the different burdens the businesses could bear: “[T]he Legislature could certainly conclude that employers’ burdens—like compensation, unemployment insurance, and vicarious liability—are greater than those for a business whose work is done by independent contractors.”29 That distinction by analogy is even stronger here. Whereas an employer in Nestle could be subject to higher payments, the settling manufacturers are subject to higher payments. Indeed, we deferred to what the Legislature “could certainly conclude” in Nestle,30 but here we need only accept the Coalition’s concession that its members make no comparable payments to the State. The restriction on the settling manufacturers’ challenges to legislative and administrative 29 Nestle, 387 S.W.3d at 623. 30 Id. 13 initiatives further accentuates the differences between settling manufacturers and NSMs. A fortiori the differences in burdens—“the conditions under which [the businesses] are pursued”31—render these tax classifications rational. The Legislature has also articulated legitimate purposes for the tax. The Legislature primarily aimed to “recover health care costs to the state imposed by non-settling manufacturers,” and “prevent non-settling manufacturers from undermining this state’s policy of reducing underage smoking by offering cigarettes and cigarette tobacco products at prices that are substantially below the prices of cigarettes and cigarette tobacco products of other manufacturers.”32 The Coalition concedes that all tobacco products impose health care costs on the State, and it does not seriously dispute that the State may generally seek to recover those costs. It also acknowledges that “the government has a legitimate interest in preventing underage smoking.” And rightly so. In American Tobacco Co. v. Grinnell, we observed that until the late-twentieth century, “unlike the general dangers associated with smoking, . . . the danger of addiction from smoking cigarettes was not widely known and recognized in the community in general, or, particularly, by children or adolescents.”33 We cited approvingly to a Food and Drug Administration regulation, which explained that “because of tobacco’s addictive effects, the only way to prevent the ensuing disease and death is to prevent children and adolescents from starting to use tobacco[.]”34 We therefore 31 Stephens, 103 S.W. at 485. 32 TEX. HEALTH & SAFETY CODE §§ 161.601(1)–(2). 33 951 S.W.2d 420, 430 (Tex. 1997). 34 Id. at 430–31. See also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000) (“[T]obacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States.”). 14 agree with the Coalition that recovering health care costs to the State and preventing underage smoking are legitimate purposes underlying the tax.35 And finally, the tax classifications are reasonably related to the goals of recovering health care costs and reducing underage smoking. The parties have stipulated that all tobacco products impose health care costs on the State. And the Coalition recognizes that the payments under the Settlement, at least in part, reimburse the State for health care costs that flow from settling manufacturers’ products. Because no similar reimbursement mechanism was in place for NSMs, it was logical for the Legislature to recover those costs from NSMs whose products create the same health risks. As a corollary, the Legislature could have reasonably determined that if NSMs did not bear the health care costs of their products, they could offer their products at prices substantially lower than the prices of settling manufacturers’ products, which would entice youth and undermine the goal of reducing underage smoking. The Legislature in fact did so determine,36 and we hold its classifications are sufficiently related to its stated goals. * * * At bottom, the tax classifications do not violate the Equal and Uniform Clause. III 35 Having found these purposes constitutionally sufficient, we do not consider the Coalition’s argument that the Legislature’s other purposes impermissibly seek to protect settling manufacturers’ market share. For that proposition, the Coalition relies upon various antitrust cases together with writings from our recent Due Course of Law decision in Patel v. Texas Department of Licensing & Regulation, __ S.W.3d __, 2015 WL 3982687 (Tex. June 26, 2015). It appears the Coalition represented to the court of appeals that it “filed suit requesting the trial court to declare the Act unconstitutional as violating the . . . Due Course of Law Clause[] of the Texas Constitution,” Appellee’s Br. 13, even though its amended petition never mentions that Clause. And the Coalition argued at length in the court of appeals about the Due Course of Law Clause. See id. at 35–37. We think those cases and their tests are properly limited to the particular legal frameworks in which they arose, and in any event, we leave it to the court of appeals to determine whether the Coalition has preserved what amounts to a Due Course of Law challenge. 36 See TEX. HEALTH & SAFETY CODE § 161.601(2). 15  The Coalition raises a number of objections to this taxation scheme. It first argues that a settlement may never be considered to classify and tax non-settling parties differently. It then argues that even if a settlement may be considered, the effect of this Settlement should not be considered because its perpetual restrictions on settling manufacturers are their punishment for past conduct, and it would be unconstitutional to subject NSMs to similar conditions when they were never sued and never settled. Its final argument is that the Legislature should have taxed all manufacturers, not only NSMs, if it truly wanted to recover health care costs. We find none of these arguments persuasive. A The Coalition’s broadest argument is that “it is never reasonable to use a private settlement agreement to resolve litigation as a basis for discriminatory taxation.”37 But we have previously approved the effect of a settlement in the face of an Equal and Uniform Clause challenge. And in any event, that broad argument conflicts with the constitutional requirement that the Legislature “attempt to group similar things and differentiate dissimilar things.”38 This is not the first time we have been asked to consider the effect of a settlement in an Equal and Uniform Clause challenge. Our decision in Fort Worth Independent School District v. City of Fort Worth turned in part on such a consideration.39 In the 1930s, after the United States Court of Appeals for the Fifth Circuit held that Bell’s rights-of-way for the placement of poles and 37 At various points in its brief, the Coalition rephrases this objection to say that it is never reasonable to use a business’s voluntary decision as a basis for discriminatory taxation. We agree with that formulation of the objection: A decision to settle cannot by itself constitutionally distinguish that business from identical businesses. But assessing the decision is not the same as assessing the effect of the decision. The Equal and Uniform Clause is concerned with what, if any, change in the business flows from the effect of the decision to settle. 38 Nestle, 387 S.W.3d at 622. 39 22 S.W.3d 831 (Tex. 2000). 16 wires throughout the City of Fort Worth were taxable property interests, Bell’s attorney wrote the City, stating “it will be difficult to formulate a basis of valuation that will not give rise to recurring controversies each year.”40 The attorney expressed hope for “some equitable basis” to “settle the tax question” and “thus terminate the litigation that has been in progress for several years.”41 Specifically, the attorney proposed that Bell pay the City a percentage of its gross revenue each year.42 Bell and the City negotiated a settlement, which resulted in the City passing an ordinance that required Bell to annually pay two percent of its gross receipts “in lieu of any tax.”43 Bell then executed “a written acceptance of ‘the terms of said resolution’ as ‘approving the settlement and compromise’ of the pending litigation.”44 Bell made those annual payments for 55 years.45 Bell later challenged the ordinance on the ground that it violated the Equal and Uniform Clause.46 As we noted, “[n]o other taxpayer in the district had a similar arrangement.” 47 Nonetheless, we held that Bell had “failed to establish that the 1936 arrangement was unlawful.”48 Indeed, “[t]he City and the School District were authorized to settle their tax dispute with Bell, which involved difficult valuation issues that were likely to be disputed for years, by agreeing to 40 Id. at 835–36. 41 Id. at 836. 42 Id. 43 See id. at 836–37. 44 Id. at 838. 45 See id. 46 Id. at 839. 47 Id. at 844. 48 Id. 17 an amount that they were satisfied would approximate the tax liability.” 49 We cautioned that “[n]either a taxing authority nor a taxpayer can circumvent the constitutional restrictions on, or requirements for, taxation merely by agreeing to settle a dispute.”50 But it is equally true, we stated, that “a fair settlement of a legitimate dispute that contemplates the market value of the property is not unconstitutional simply because it is not an appraisal and assessment done by standard procedure.”51 We therefore held that Bell had failed to establish a violation of the Equal and Uniform Clause.52 As with all other cases, that case is, of course, distinguishable on the facts—it dealt with ad valorem taxes, the settlement was a clear attempt to approximate tax liability, the underlying litigation giving rise to the settlement did not contain allegations of wrongdoing, and the property taxpayers not privy to the settlement were not necessarily “competitors” with Bell. All true enough. But as to the broader question of whether the Legislature may, at least in some circumstances, look to the effect of a settlement when establishing tax classifications, that case is not meaningfully distinguishable. Indeed, ours would be an exceedingly odd jurisprudence if it found the effect of a settlement not only constitutionally significant but also constitutionally sufficient to satisfy tax liability pursuant to the Equal and Uniform Clause, but a verboten consideration when the Legislature ponders whether to impose a tax at all. A fair reading of Fort Worth Independent School District does not compel that result. 49 Id. at 844–45. 50 Id. at 845. 51 Id. 52 See id. 18  And for good reason: We have time and again underscored that it is the province of the Legislature to “attempt to group similar things and differentiate dissimilar things.”53 The discretion inherent in that authority is hobbled by no substantial handicap other than the overriding rule that any claimed difference be “real.”54 That discretion does not require the Legislature to turn a blind eye to the real-world consequences of litigation. Such a blinkered approach would be irrational. At least when the effect of a settlement is to fundamentally transform an entity’s business operation, that effect can be considered. We think that incurring a perpetual $500-million-per-year burden is a sufficiently fundamental transformation that distinguishes settling manufacturers from the Coalition, which, in its own words, “would not be paying anything” absent this tax. The Legislature was thus within its discretion to consider the effect of the Settlement when establishing the settling-manufacturer and NSM tax classifications. The Coalition complains that there is no workable test that would govern when the Legislature may properly consider a settlement—how wide-ranging must the settlement be? How important must the settlement be? To whom must the settlement be important? What purposes underlying the settlement are relevant in the Equal and Uniform Clause inquiry? All good questions that we need not answer today. Suffice it to say that in the mine run of cases, aside from tax-liability-approximation cases like Fort Worth Independent School District, settlements will be unlikely to so fundamentally transform an entity’s business operation as to permit the Legislature’s consideration. This case may well concern the most extreme settlement that we will ever consider, as evidenced by the State’s acknowledgment that the Settlement accomplished changes that 53 Nestle, 387 S.W.3d at 622. 54 Tex. Co. v. Stephens, 103 S.W. 481, 485 (Tex. 1907). 19 “neither legislation nor court judgments could have accomplished.” We leave for another day whether it is the only settlement that the Legislature may duly consider. B The Coalition’s fallback argument is that the effect of this Settlement is an inappropriate factor for the Legislature to consider because it serves as the settling manufacturers’ punishment for their pre-1998 conduct. We were never accused of wrongdoing, we were never sued, and we never had an opportunity to settle, says the Coalition, and thus the settling manufacturers’ punishment cannot be a rational basis for classifying NSMs differently. The State counters that the annual payments are not punitive, but are instead annual reimbursements to the State for ongoing health care costs imposed by the settling manufacturers’ products. From the outset, it is worth pausing to appreciate the sheer breadth of the Coalition’s position. Its position is that for sempiternity (or at least until the settling manufacturers decide to stop selling tobacco products), the settling manufacturers will be punished for conduct that occurred during a finite, pre-1998 period in time. Fifty, five hundred, or even five thousand years from now, the settling manufacturers will still be making atonement, according to the Coalition. Never mind that the Settlement expressly disclaims any wrongdoing on the part of the settling manufacturers, that punishment-centered view of the perpetual payments is breathtaking. The Coalition’s only response to that observation is: The pre-1998 conduct was really bad.55 We need not divine the role of those payments today, however, because this is an Equal and Uniform Clause challenge, not a contract-interpretation dispute. Contrary to the latter, which necessarily turns on establishing the correct interpretation of a contract, the former turns (as 55 In the Coalition’s view, “the astounding allegations of wrongdoing against [settling manufacturers] in the tobacco litigation do support the large ongoing annual payments.” 20 relevant here) on whether the Legislature’s tax classification is rational. Rational-basis review does not require the Legislature to show that its understanding of the record before it is infallible. Of course, the Legislature may not rely on the preposterous, but at least where the contractual language provides firm support for the Legislature’s interpretation, the Legislature cannot be said to have acted irrationally. This is the case here. The Settlement expressly provides that the State waived without limitation “any future claims for reimbursement for health care costs allegedly associated with use of or exposure to [the settling manufacturers’] Tobacco Products” in “consideration of the payments to be made by the Settling Defendants.” From that language combined with the Settlement’s endorsement of the Proposed Resolution’s goal of accomplishing “unprecedented and comprehensive regulation of the tobacco industry,” the Legislature “could certainly conclude” that the settling manufacturers, as distinct from NSMs, currently reimburse the State for ongoing health care costs associated with their products.56 The Legislature’s interpretation of the payments under the Settlement is therefore rational.57 Moreover, as a matter of judicial restraint, we must not decide the meaning of those payments today. Though no party in this case has challenged the validity of the Settlement, a definitive description of the payments either way—reimbursement for health care costs or punishment—would prematurely place a thumb on the scales in any future litigation concerning the Settlement’s validity. The Coalition’s counsel admitted as much at oral argument, noting in response to a suggestion that any punishment for pre-1998 conduct must cease at some point, “If they want to litigate [over whether] the contract is valid, that would be the argument to be made.” 56 See Nestle, 387 S.W.3d at 623. 57 We express no opinion on the role, if any, of a settlement in this rational-basis analysis if the effect of the settlement was clearly intended to be punitive. 21 Without an actual challenge to the Settlement, without full briefing from all parties to the Settlement, and without complete vetting of the parties’ potential arguments in the lower courts, we are ill-prepared to offer—and constitutionally prohibited from offering58—an advisory interpretation of the Settlement that could have significant, lasting consequences. C The Coalition’s remaining argument is that the Legislature should have taxed everybody— both settling manufacturers and NSMs—if it truly wanted to recover health care costs.59 But there are commonsense reasons why the Legislature could have chosen to tax only NSMs, and our precedent compels deference to those reasons. First, the Legislature believes (rationally so, as discussed above) that the State is already recovering from settling manufacturers the health care costs that flow from the settling manufacturers’ products. It would be nigh irrational to demand these costs two times over. Our Constitution does not require the Legislature to err on the side of taxation. Second, if the Legislature had enacted an across-the-board tax, it would have been forced to undermine at least one of its policy goals, which was to prevent underage smoking. The Legislature’s theory was that, contrary to the settling manufacturers, NSMs had the distinct advantage of not bearing the health care costs of their products, thereby enabling them to offer their products at lower prices more attractive to youth. Reducing underage smoking, the theory goes, thus depends upon NSMs bearing the burden of the health care costs imposed by their 58 See, e.g., Brooks v. Northgien Ass’n, 141 S.W.3d 158, 164 (Tex. 2004) (“A judicial decision reached without a case or controversy is an advisory opinion, which is barred by the separation of powers provision of the Texas Constitution.” (citing TEX. CONST. art. II, § 1)). 59 Of course the Legislature is not required to tax everybody. As discussed above, settling and non-settling manufacturers comprise different classes, and the Equal and Uniform Clause only applies within classes. 22 products. But if the Legislature were forced to tax both settling manufacturers and NSMs, that tax would double the settling manufacturers’ cost burden, while only subjecting NSMs to one layer of costs, potentially leaving unresolved one of the initial problems the Legislature set out to fix: The cost-burden disparity between settling manufacturers and NSMs, along with the concerns of that disparity’s effect on underage smoking, would remain unchanged. It was therefore rational for the Legislature to decline to tax the settling manufacturers. * * * Our Equal and Uniform Clause caselaw explains that “only an extreme and clear case . . . would justify an interference by the courts with the legislative action.” 60 This is not that case. Whatever may be said of the tax, it is not “an arbitrary, unreasonable, or unreal one,”61 and it thus does not violate the Equal and Uniform Clause. We therefore reverse the court of appeals’ judgment and remand to the court of appeals for consideration of the Coalition’s remaining challenges to the tax. __________________________________________ Don R. Willett Justice OPINION DELIVERED: April 1, 2016 60 Stephens, 103 S.W. at 485. 61 Id. 23 

620 F.2d 741 Larry E. MYERS, aka L. E. Myers, Petitioner,v.UNITED STATES DISTRICT COURT FOR the DISTRICT OF MONTANA, Respondent,andJohn Hancock Mutual Life Insurance Company, a corporation,et al., Real Parties in Interest. No. 79-7517. United States Court of Appeals,Ninth Circuit. June 9, 1980. Stephen C. Mackey, Towe, Ball, Enright & Mackey, Billings, Mont., argued, for petitioner. Sidney R. Thomas, Billings, Mont., argued, for Real Parties in Interest. Appeal from the United States District Court for the District of Montana. Before HUG, FLETCHER and FARRIS, Circuit Judges. FARRIS, Circuit Judge: 1 Petitioner Larry Myers is requesting that this court issue a writ of mandamus directing United States District Judge James Battin to afford Myers a jury trial in his action against John Hancock Mutual Life Insurance Company. Judge Battin denied Myers a jury on the grounds that Myers' jury demand had been untimely and that the issues involved did not require a jury. We order the writ to issue. I. PROCEDURAL BACKGROUND 2 John Hancock initiated this action in a Montana state court to foreclose on a mortgage it held on real estate owned by Myers. Myers counterclaimed for breach of contract and interference with business relations. Myers made an untimely demand for a jury trial before the state court.1 The Montana Rules of Civil Procedure give state trial judges the discretion to afford relief from a jury waiver, and Myers' untimely demand was granted as an exercise of this discretion.2 Shortly thereafter, the United States, as an intervening party, had the case removed to federal court. United States District Judge Battin issued an order setting a date for a non-jury trial. Myers, through his attorney, sent Judge Battin a letter pointing out that the state court had previously granted a jury and inquiring whether Judge Battin had been inadvertent in eliminating the jury. The Judge's law clerk replied that the letter of inquiry would be deemed a jury demand and that "(a) jury (would) be called for the trial as a matter of course, without further action by counsel." Letter from Judge Battin's law clerk to counsel for respondent (February 23, 1979) (Exhibit D attached to petition for writ of mandamus). In briefs submitted prior to trial, John Hancock challenged Myers' right to a jury, and Judge Battin issued a pretrial order setting the case to be heard without a jury. Myers immediately filed his petition for a writ of mandamus. II. DISCUSSION A. Timeliness of Myers' Jury Demand 3 Rule 81(c) of the Federal Rules of Civil Procedure provides that a party who, while in state court, "made an express demand for trial by jury in accordance with state law, need not make a demand after removal." Myers made an express but untimely jury demand while in state court, and the state judge exercised his discretion under Montana Civil Rule 39(b) to grant the demand despite its untimeliness. We are thus presented with the question whether a jury demand is "in accordance with state law" for the purposes of Rule 81(c) when it is not timely made but is nonetheless granted as an exercise of discretion under Rule 39(b). 4 The Montana Rules of Civil Procedure provide two means by which a party may effectively demand a jury. The favored way is to make a demand within the ten-day time limit of Rule 38, but the party may also present the trial court with evidence which persuades the court to exercise its Rule 39(b) discretion to grant an untimely demand. We cannot properly review the Montana trial court's application of a state procedural rule. Myers did not follow the preferred jury demand procedure but his demand was "in accordance with state law." 5 Consequently, Myers' demand is within Federal Rule 81(c) and no further demand was required in federal court. He did not waive his right to a jury trial by failure to make a timely demand. 6 B. Myers Constitutional Entitlement to a Jury Trial 7 In determining whether the Seventh Amendment entitled Myers to a jury trial, we must look first to whether he is raising a claim which, prior to the ratification of the Seventh Amendment, would have been raised in a court of law rather than a court of equity. Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657-58, 55 S.Ct. 890, 891-92, 79 L.Ed. 1636 (1935). With the modern merger of law and equity courts, and the liberal joinder provisions of the Federal Rules of Civil Procedure, considerable judicial attention has been focused on the issue of a party's constitutional right to a jury trial in cases involving both historically "legal" and historically "equitable" claims. 8 In Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970), the Supreme Court articulated the governing principle: 9 (W)here equitable and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed . . . by trying the legal issues as incidental to the equitable ones . . . . The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action. 10 Id. at 537-38, 90 S.Ct. at 738. The Third Circuit in Eldredge v. Gourley, 505 F.2d 769, 770 (2d Cir. 1974) held that a defendant who counterclaimed for contractual damages was entitled to a jury determination of his counterclaim unless the district court found that it lacked merit as a matter of law. 11 John Hancock does not contend that Myers' counterclaim for breach of contract lacks merit. It argues instead that the counterclaim is primarily a request for equitable relief directing John Hancock to execute the documents necessary for the release of the mortgage on Myers' property. Even if the contention that Myers' counterclaim is primarily equitable were true, denying Myers a jury trial on his legal counterclaim merely because it was incidental to his equitable claim would directly contradict the principle stated in Ross v. Bernhard, supra. Claims for breach of contract are historically "legal," and Myers is entitled to a jury trial on that and any other issue raised in his counterclaim which the district court determines to be "legal." III. CONCLUSION 12 Myers is constitutionally entitled to a jury determination of any "legal" issues raised in his counterclaim. He did not waive that entitlement by an untimely demand. We recognize that appellate courts must exercise caution in employing such extraordinary relief as a writ of mandamus. See Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977). The Supreme Court, however, has "emphasize(d) the responsibility of the Federal Courts of Appeals to grant mandamus where necessary to protect the constitutional right to trial by jury . . . ." Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472, 82 S.Ct. 894, 897, 8 L.Ed.2d 44 (1962). 13 The writ shall issue. 1 Montana has adopted Rule 38(b) of the Federal Rules of Civil Procedure which requires that a jury demand be made within ten days of the filing of the last pleading which relates to the jury trial issue 2 Montana Civil Rule 39(b) provides that "notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court upon motion or of its own initiative may on ten days' notice to the parties order a trial by a jury of any or all issues."

135 F.3d 648 98 Cal. Daily Op. Serv. 782, 98 Daily JournalD.A.R. 1055,Pens. Plan Guide (CCH) P 23940AMichael TOUMAJIAN, Plaintiff-Appellant,v.Richard FRAILEY and Frailey & Associates, Inc., Defendants-Appellees. No. 95-56213. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 9, 1997.Decided Jan. 29, 1998. 1 Robert C. Burlison, Jr., Burlison & Luostari, Glendale, California, for plaintiff-appellant. 2 Ronald S. Kravitz and Lowell H. Haky, Zelle & Larson LLP, San Francisco, California, for defendants-appellees. 3 Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, Presiding. D.C. No. CV-93-07210-JSL. 4 Before: FLETCHER and TROTT, Circuit Judges, and JENKINS,* Senior District Judge. JENKINS, District Judge: OVERVIEW 5 Plaintiff Michael Toumajian filed a Complaint in California state court in which he asserted that the defendants, Richard Frailey and Frailey & Associates, Inc. (collectively "Frailey"), were negligent in advising him in setting up and administering a pension plan. The defendants had the matter removed to the district court. On motion of the defendants, the district court dismissed the Complaint. Following payment of sanctions to the defendant, plaintiff was permitted to file an amended complaint. Plaintiff also filed a Motion to Remand. The district court dismissed the Amended Complaint without leave to amend and denied the Motion to Remand as moot. On appeal, the plaintiff challenges both the first and second dismissals as well as the award of sanctions. Because we conclude the action was improvidently removed in the first instance, all orders subsequently entered by the district court dismissing the Complaint and the Amended Complaint are reversed. Although our conclusion that the district court lacked subject matter jurisdiction does not necessarily invalidate the district court's award of sanctions, we also reverse that award. Accordingly, the action is remanded to the district court with directions to remand the action to the state court. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 6 Once again the mysteries of the Employee Retirement Income Security Act of 1974 ("ERISA")-a statute intended to provide a system of uniformity and simplicity in the complex regulatory field of employee benefits-provide added complexity in this action. Specifically, this Court, as so many before and so many still to come, must determine whether the preemptive force of ERISA acts as a bar to an otherwise run-of-the-mill state law claim of professional malpractice. For purposes of simplicity-a proposition foreign to ERISA actions-the procedural and factual history of this action is only briefly described. (The parties, active participants in the torturous history, are no doubt fully aware of the complete history so that a detailed repetition is not warranted.) 7 On October 22, 1993, Toumajian initially filed a Complaint in California Superior Court alleging state law claims of negligence and seeking unspecified damages from the defendants, in which he asserted that he retained Frailey, "to set up and administrate a pension and profit plan," and that as a result of Frailey's "fail[ure] to exercise reasonable care and skill" in the performance of those services, Toumajian personally sustained unascertained money damages. 8 Frailey removed the state action to the district court on December 2, 1993, pursuant to 28 U.S.C. § 1441(b) on the ground that district court had original jurisdiction over the action by virtue of 28 U.S.C. § 1331 in that the Complaint "arises under the Employment [sic] Retirement Income Security Act of 1974 (ERISA)." Soon thereafter Frailey filed a motion to dismiss, asserting that ERISA preempted Toumajian's state law negligence claims. Initially, on October 19, 1994, the district court dismissed the Complaint without prejudice and granted Toumajian twenty-days leave to amend. 9 On or about November 8, 1994, Toumajian, rather than filing an amended complaint as requested by the court, attempted to file a motion to remand. Toumajian's attempted filing, however, was thwarted by his failure to comply with the local district court rules. Instead of filing the motion by hand-delivering it to the clerk of the court, Toumajian's attorney attempted to file the motion via facsimile. Because the motion did not contain an original signature of Toumajian's attorney as required by Local Rule 3.1, the district court rejected the attempted filing. On November 29, 1994, the district court, noting that Toumajian did not file an amended complaint within twenty days, dismissed the action without leave to amend. 10 On December 13, 1994, Toumajian filed a motion seeking relief from the dismissal and/or reconsideration of the November 29, 1994 order. At a January 9, 1995 hearing on his motion seeking relief from dismissal, Toumajian's attorney tried to raise with the district court what he believed to be his prior outstanding motion to remand.1 Although the district court believed it had already ruled on and denied Toumajian's motion to remand, the record indicates that it had not. There were no orders entered on the merits of that motion. The only determination made by the district court was that the motion as received by the court did not comply with the local rules because it had a "fax signature." The only court action on the motion was a Notice of Document Discrepancy, dated November 8, 1994, rejecting the attempted filing. 11 In addition, the record of the January 9th hearing does not support the view that the district court denied Toumajian's motion from the bench. See footnote 1, supra. Although the court stated initially that the motion was denied, it then states that: "I'll look at it. I think it was denied on the papers. If it wasn't, I'll reset it." The district court never re-set the motion for hearing. 12 On January 18, 1995, subject to the condition that Toumajian pay $2,500 in sanctions directly to Frailey, the district court granted Toumajian's motion for relief from dismissal and permitted Toumajian to file an amended complaint. All later rulings from the district court were based on the Amended Complaint. 13 In his Amended Complaint, filed on February 16, 1995, Toumajian described the action as an action for damages due to the negligence and the failure of the defendants to properly advise the plaintiff "in the setting up and administration of the plaintiff's company's employee retirement plan under the Employment [sic] Retirement Income Security Act of 1974." Specifically, Toumajian asserted that the negligence claims arose out of: (1) defendants' failure to properly advise the plaintiff on the legality of the "ERISA plan's creation, actions and administration"; (2) defendants' improper advice that "monies from the ERISA plan could be invested in [zero] coupon bonds"; (3) defendants' advice that "monies from the ERISA plan could be co-mingled with the plaintiff's monies"; (4) defendants' advice concerning "procedures to notify members of the ERISA plan"; and (5) defendants' failure to provide plaintiff with "competent and proper advice" concerning the withdrawal of "funds from the ERISA plan." 14 On March 17, 1995, Frailey filed a motion to dismiss the amended complaint on the grounds that ERISA preempted the state law negligence claims and that, among other things, Toumajian, as an individual, lacked standing to bring an action under ERISA. On April 3, 1995, Toumajian filed a motion to remand. 15 On May 31, 1995, Toumajian filed an untimely opposition to Frailey's motion to dismiss in which he again asked the district court to remand the matter to state court or, in the alternative, grant him leave to file a second amended complaint. Hearings on both the motion to dismiss and the motion to remand were held on June 12, 1995. 16 On July 19, 1995, the district court granted Frailey's motion to dismiss without leave to amend and denied Toumajian's motion to remand as moot. Toumajian filed a timely notice of appeal, appealing the following orders: (1) the November 29, 1994 order dismissing the original Complaint without leave to amend; (2) the January 18, 1995 order conditioning the filing of an Amended Complaint on the payment of $2,500 in sanctions to the defendants; and (3) the July 19, 1995 order dismissing the Amended Complaint and denying the motion to remand. STANDARD OF REVIEW 17 Questions of subject matter jurisdiction and removal are reviewed de novo. Kruse v. State of Hawaii, 68 F.3d 331, 333 (9th Cir.1995); Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9th Cir.1994). The burden of establishing federal subject matter jurisdiction falls on the party invoking removal. Harris, 26 F.3d at 932. The often-related issue of preemption is also a question of law reviewed de novo. Associated Builders & Contractors, Inc. v. Local 302 Int'l Bhd. of Elec. Workers, 109 F.3d 1353, 1355 (9th Cir.1997). The imposition of sanctions by the district court is reviewed for abuse of discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 2138, 115 L.Ed.2d 27 (1991); Buster v. Greisen, 104 F.3d 1186, 1189 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 441, 139 L.Ed.2d 378 (1997). DISCUSSION 18 In this action, as in all actions before a federal court, the necessary and constitutional predicate for any decision is a determination that the court has jurisdiction-that is the power-to adjudicate the dispute. The foundational support for all the court's rulings flows from that power. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). If that power is missing, however, the court is not in a position to act and its decisions cannot generally be enforced. Thus, even on appeal " 'it is this court's duty to see that the District Court's jurisdiction, defined and limited by statute, is not exceeded.' " Curtis v. Nevada Bonding Corp., 53 F.3d 1023, 1026 (9th Cir.1995) (quotation omitted). So it is that we begin our review by first examining whether the federal district court had subject matter jurisdiction over the original Complaint.2 A. Subject Matter Jurisdiction 19 The threshold requirement for removal under 28 U.S.C. § 1441 is a finding that the complaint contains a cause of action that is within the original jurisdiction of the district court. For purposes of this case, that issue turns on whether the Complaint contained a claim that "aris[es] under the Constitution, laws, or treaties of the United States." 28 U.S.C. §§ 1331 & 1441(b)(1988). If so, removal was appropriate and the district court then properly adjudicated the claims contained in the Complaint. If the Complaint did not contain a cause of action that "arises under" federal law, however, the district court lacked subject matter jurisdiction and the action should have been remanded to the state court. 28 U.S.C. § 1447(c). 20 Our analysis regarding subject matter jurisdiction is guided by several decisions of the United States Supreme Court. The Court advises us that in determining whether an action is removable under 28 U.S.C. § 1441(b), we must apply the "well-pleaded complaint rule." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987). Under this rule, "a cause of action arises under federal law only when the plaintiffs' well-pleaded complaint raises issues of federal law." Id. For removal to be appropriate, a federal question must appear on the face of the complaint. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10, 103 S.Ct. 2841, 2846-47, 77 L.Ed.2d 420 (1983). 21 A resulting corollary to the well-pleaded complaint rule, known as the complete preemption doctrine, provides that "Congress may so completely preempt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan Life, 481 U.S. at 63-64, 107 S.Ct. at 1546; Buster, 104 F.3d at 1188. In such a case, even if the only claim in a complaint is a state law claim, if that claim is one that is "completely preempted" by federal law, federal subject matter jurisdiction exists and removal is appropriate. See Metropolitan Life, 481 U.S. at 63-64, 107 S.Ct. at 1546-47. 22 The genesis for the application of the complete preemption doctrine in the ERISA context stems from Supreme Court's decision in Franchise Tax Board, where the Court, in holding that an action was improvidently removed, noted that a state law cause of action that is not only preempted by 29 U.S.C. § 1144(a),3 but also comes within the scope of ERISA's civil enforcement provisions found in 29 U.S.C. § 1132(a), might be subject to complete preemption and, therefore, amount to a claim arising under federal law. 463 U.S. at 24, 103 S.Ct. at 2854. Subsequently, in Metropolitan Life, the Court held that complete preemption applies, and thus removal is permissible, when the complaint asserts state law claims that fall within the scope of § 1132(a). 481 U.S. at 64, 66, 107 S.Ct. at 1546-47, 1547-48. 23 Thus, under Metropolitan Life, if both of these conditions are met-the state law claim "relates to" an ERISA plan within the meaning of § 1144(a) and falls within the scope of ERISA's civil enforcement found in § 1132(a)-the state claims are completely preempted by ERISA and converted to federal questions, at least for the purposes of removal jurisdiction. 481 U.S. at 66, 107 S.Ct. at 1547-48; Buster, 104 F.3d at 1188; Rice v. Panchal, 65 F.3d 637, 639 (7th Cir.1995); Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 354 (3d Cir.), cert. denied, 516 U.S. 1009, 116 S.Ct. 564, 133 L.Ed.2d 489 (1995). 24 If both conditions are not met, however, the federal court does not have subject matter jurisdiction and the matter should be remanded. Only if the complaint asserts a state law claim that can be reasonably characterized as a claim under any of ERISA's civil enforcement provisions can the action be properly removed. Metropolitan Life, 481 U.S. at 66, 107 S.Ct. at 1547-48; see also Franchise Tax Bd., 463 U.S. at 21, 103 S.Ct. at 2852 ("The express grant of federal jurisdiction in ERISA is limited to suits brought by certain parties [under § 1132(a) ], as to whom Congress presumably determined that a right to enter federal court was necessary to further the statute's purposes."); Buster, (holding that because plaintiff's claim was not displaced by § 1132(a), defendants' complete preemption argument fails and district court lacked subject matter jurisdiction); Rice, 65 F.3d at 639 (holding that under ERISA it is the presence of claims cognizable under § 1132(a) that provides the basis for complete preemption and thus federal jurisdiction); Dukes, 57 F.3d at 354 ("The Supreme Court has determined that Congress intended the complete-preemption doctrine to apply to state law causes of action which fit within the scope of ERISA's civil-enforcement provisions."). B. "Complete" vs. "Conflict" Preemption 25 Moreover, even if a defendant has a substantial and persuasive argument that the state law claim asserted in the complaint is preempted by § 1144(a) of ERISA, a defense sometimes called "conflict preemption," as long as the claim is not capable of characterization as an ERISA claim, removal is improper. See Metropolitan Life, 481 U.S. at 63, 66, 107 S.Ct. at 1546, 1547-48; Rice, 65 F.3d at 639. The mere fact that ERISA preemption under § 1144(a) may be raised as a defense, or is in actuality a defense, does not confer jurisdiction or authorize removal. Metropolitan Life, 481 U.S. at 63, 107 S.Ct. at 1546. Accordingly, even if the district court found that the Complaint contained a state law claim that "relates to" an ERISA plan, and is thus preempted by § 1144(a), the complaint is not removable to the federal court unless it is also encompassed within ERISA's civil enforcement scheme. Id. at 64, 66, 107 S.Ct. at 1546-47, 1547-48; Franchise Tax Bd., 463 U.S. at 25-26, 103 S.Ct. at 2854-55; Harris, 26 F.3d at 934; Roessert v. Health Net, 929 F.Supp. 343, 349 (N.D.Cal.1996). 26 As the Courts of Appeal for both the Third and Sixth Circuit have noted, " '[r]emoval and preemption are two distinct concepts.' " Dukes, 57 F.3d at 355 (quoting Warner v. Ford Motor Co., 46 F.3d 531, 535 (6th Cir.1995)). The complete preemption doctrine is concerned with a more limited set of state laws, those which fall within the scope of ERISA's civil enforcement scheme. Thus a state law claim that falls outside the scope of § 1132, even if preempted under § 1144(a), is still governed by the well-pleaded complaint rule and is not removable under the complete preemption doctrine described by the Supreme Court. See Metropolitan Life, 481 U.S. at 64, 107 S.Ct. at 1546-47 (stating that ERISA preemption, without more, does not convert a state law claim into a claim arising under federal law); Franchise Tax Bd., 463 U.S. at 23-27, 103 S.Ct. at 2853-56 (holding that preemption under § 1144(a) does not permit removal if the plaintiff's claim does not fall within the scope of § 1132(a)); Dukes, 57 F.3d at 355 (noting that state law claims that fall outside the scope of ERISA's civil enforcement provisions are not removable). 27 This distinction is important, for if the doctrine of complete preemption does not apply, even if the defendant has a defense of "conflict preemption" within the meaning of § 1144(a) because the plaintiff's claims "relate to" an ERISA plan, the district court, being without subject matter jurisdiction, cannot rule on the preemption issue. See Dukes, 57 F.3d at 355; Harris, 26 F.3d at 934. The district court lacks power to do anything but remand the case to the state court where the preemption issue can be addressed and resolved. Franchise Tax Bd., 463 U.S. at 4, 27-28, 103 S.Ct. at 2843-44, 2855-56; Harris, 26 F.3d at 934. 28 In their briefs to this Court, both parties offered arguments directed to whether the claims contained in the Amended Complaint are preempted because they "relate to" an ERISA plan within the meaning of § 1144(a). In doing so the parties failed to recognize the differences we noted above between "conflict preemption" under § 1144(a), and "complete preemption" under § 1132(a).4 Similarly, the district court also appears to have inadequately distinguished the two-complete preemption, which would confer federal jurisdiction, and conflict preemption, which does not. 29 C. Are the Claims in the Complaint "Completely Preempted" by ERISA? 30 We turn first to the determinative jurisdictional question of whether the state law claims asserted in Toumajian's original Complaint are completely preempted because they fall within the scope of § 1132(a). Because we hold that the district court had no jurisdiction, we do not reach Toumajian's claim that his state law claims do not "relate to" an ERISA plan within the meaning of § 1144(a). 31 In his Complaint, Toumajian, as an individual and not on behalf of any ERISA plan, asserted that the defendants were licensed accountants who were retained and employed by Toumajian "to render accounting advice and services." Specifically, Toumajian asserted that the defendants were "retained to set up and administrate a pension and profit plan for the plaintiff." Toumajian alleges that the defendants "failed to exercise reasonable care and skill" in performing these services, including "fail[ing] to do adequate research of the relevant tax laws," "fail[ing] to advise ... that the plan was illegal and that there was the possibility for criminal repercussions in executing said plan." As a result of these failures, Toumajian asked for general damages, costs, and attorney's fees. Thus, as drafted by Toumajian, the Complaint merely asserts a state law claim of professional malpractice and seeks money damages. 32 Section 1132(a) of ERISA, by its express terms, limits the causes of action that are available under the statute, as well as by whom and against whom they may be brought. For example, in what is the most common cause of action under ERISA, § 1132(a) authorizes a plan participant or beneficiary to bring a civil action to recover benefits due her under the plan or to enforce her rights under the plan or clarify her rights to future benefits under the terms of the plan. § 1132(a)(1)(B). 33 Participants and beneficiaries, along with plan fiduciaries, depending on their respective roles, are authorized to bring actions for appropriate relief for breach of fiduciary duty or for injunctions or to obtain other appropriate equitable relief to redress an ERISA violation or to enforce the terms of the plan or the provisions of ERISA. § 1132(a)(2) & (a)(3). Participants and beneficiaries may also bring an action for appropriate relief against a plan administrator who failed to provide certain enumerated benefit statements or who failed to comply with a request for information. § 1132(a)(1)(A) & (a)(4). 34 Toumajian did not seek relief as participant or beneficiary of the plan for benefits due or to enforce the terms of the plan. Thus, subsection (1)(B) of § 1132(a) is inapplicable. Nor did Toumajian, as a participant or beneficiary of an ERISA plan, assert that Frailey was an administrator of the plan who failed to provide him with benefits information. Accordingly, subsections (1)(A) and (4) of § 1132(a) are inapplicable. Nor does he seek relief as a participant, beneficiary, or fiduciary to enjoin any act or obtain other equitable relief to redress any violations or enforce any provisions of ERISA. Toumajian's claim seeks only compensatory money damages for professional malpractice; he does not seek any type of injunctive or equitable relief. See McLeod v. Oregon Lithoprint Inc., 102 F.3d 376, 378 (9th Cir.1996) (holding that money damages do not qualify as "equitable relief" within the meaning of § 1132(a)(3)), cert. denied, --- U.S. ----, 117 S.Ct. 1823, 137 L.Ed.2d 1030 (1997); see also Varity Corp. v. Howe, 516 U.S. 489, 506-10, 116 S.Ct. 1065, 1075-79, 134 L.Ed.2d 130 (1996) (noting that relief available under § 1132(a)(3) is limited to equitable relief). Therefore, subsection (3) of § 1132(a) is also inapplicable. None of these subsections displace Toumajian's state law claim. See Buster, 104 F.3d at 1188-89. 35 This leaves subsection (2) of § 1132(a) as the only possible ground for supporting federal jurisdiction. Subsection (2), incorporating § 1109 of ERISA, permits any participant, beneficiary, or fiduciary to bring a civil action against: 36 [a]ny person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries ... shall be personally liable to make good to such plan any losses to the plan resulting from such breach, ... any shall be subject to such other equitable or remedial relief as the court may deem appropriate. 37 29 U.S.C. § 1109(a). Even in the event that the defendant Frailey can be considered a fiduciary to the ERISA plan, (an issue we need not determine), Toumajian is not seeking relief on behalf of an ERISA plan, as required by the express terms of § 1109(a), and our case law, see Buster, 104 F.3d at 1189 (citing Kim v. Fujikawa, 871 F.2d 1427, 1432 (9th Cir.1989)); we therefore hold that subsection (2) of § 1132(a) is also inapplicable and, therefore, does not displace Toumajian's state law claim. 38 Moreover, Frailey has failed to demonstrate that claims in Toumajian's original Complaint fall within § 1132(a). Neither in its notice of removal nor in its initial motion to dismiss did Frailey argue that Toumajian, as a participant or beneficiary in an ERISA plan, sought any recovery for benefits due under the plan, or sought enforcement of any present or future rights under the plan. Frailey did not argue that Toumajian's claims were linked to any violation of the terms of an ERISA plan or the provisions of ERISA, or that the claims involved the refusal or failure to provide ERISA plan statements.5 39 Importantly, Frailey did not claim to be an administrator or fiduciary of the plan. As to the original Complaint, there is no assertion that Frailey had discretionary control over the plan or its assets, or regularly provided investment advice to the plan for a fee. Lacking this discretionary authority, Frailey could not be viewed as a fiduciary for ERISA purposes. See 29 U.S.C. § 1002(21)(A); 29 C.F.R. §§ 2509.75-8 & 2510.3-21(c) (1996); Arizona State Carpenters, 125 F.3d at 722. In addition, as employer sponsor of the plan it is Toumajian, absent an express designation of another as administrator in the plan documents, and not Frailey, who would be considered the plan administrator for ERISA purposes. 29 U.S.C. § 1002(16)(A). As the removing party, it was Frailey's burden to prove that the district court had subject matter jurisdiction over the claims in Toumajian's Complaint. See Harris, 26 F.3d at 932. Unfortunately for Frailey, none of its arguments were up to that task. 40 In sum, our analysis of Toumajian's original Complaint suggests that because his asserted state law claims do not fall within the civil enforcement provisions of § 1132(a) of ERISA, the district court lacked jurisdiction from the outset. Therefore, the district court erred when it failed to consider the question of subject matter jurisdiction and erred when it dismissed Toumajian's original Complaint. Because subject matter jurisdiction is lacking this action must be remanded to the California Superior Court. D. Sanctions 41 Toumajian argues that when the district court conditioned the filing of his Amended Complaint on the payment of a $2,500 sanction to Frailey, it abused its discretion. As an initial matter, our conclusion that the district court lacked subject matter jurisdiction does not necessarily render the award of sanctions void. In Willy v. Coastal Corp., 503 U.S. 131, 135-39, 112 S.Ct. 1076, 1079-81, 117 L.Ed.2d 280 (1992), the Supreme Court, noting that an award of sanctions involves the determination of a collateral issue and not an adjudication of the merits of a "case or controversy," held that despite a lack of subject matter jurisdiction, a district court may properly award sanctions under Fed.R.Civ.P. 11.6 Upholding such an award, is proper, in part, because "[t]he interest in having rules of procedure obeyed ... does not disappear upon a subsequent determination that the court was without subject-matter jurisdiction." Id. at 139, 112 S.Ct. at 1081; see also Buster, 104 F.3d at 1190 (holding that an award of sanctions under Rule 11 survives despite a later determination that the court lacked subject matter jurisdiction). 42 As its basis for awarding the sanctions, the district court noted that Toumajian's failure to file the Amended Complaint was inexcusable. Apparently, the district court felt that Toumajian's excuse for not filing the Amended Complaint on time-i.e., his argument that the motion to remand should have been heard first-was unreasonable in that he should have challenged jurisdiction earlier. 43 As discussed earlier, the district court was obligated to consider the motion to remand, and the threshold question of subject-matter jurisdiction, when the issue was first brought to its attention. Challenges to the court's power to rule must, of necessity, be determined before the court may rule on the merits. Toumajian, while not acting with the dispatch the district court hoped for, nevertheless presented the court with a challenge to its jurisdiction. That Toumajian did so rather than filing the amended pleading the district court requested, cannot support the court's sanction. The plaintiff was correct in his understanding of the district court's hierarchy of decision-making and, therefore, should not be sanctioned for his actions. Accordingly, the award of sanctions must be reversed. CONCLUSION 44 Our conclusion that the district court lacked subject matter jurisdiction over the original complaint compels our conclusion that the action was improvidently removed under 28 U.S.C. § 1441(c). We therefore REMAND the action to the district court for the sole purpose of remanding the action to the state court. In doing so, all orders entered by the district court are necessarily VACATED. In addition, because our conclusion that the district court lacked subject matter jurisdiction effectively voids the rationale supporting the imposition of sanctions, that award is also REVERSED. * The Honorable Bruce S. Jenkins, Senior United States District Judge for the District of Utah, sitting by designation 1 At the hearing the following colloquy took place: Mr. Burlison [Toumajian's attorney]: Well, Your Honor, obviously the plaintiff submitted to Your Honor a motion to remand. The Court: Of course. Burlison: That was the key issue here. It was done-and, Your Honor, I have the papers here-it was done within the 20-day time period. The Court: It wasn't done timely at all. Jurisdiction you could have challenged on the first day. Burlison: Of course, Your Honor. The Court: The remand. The remand does not have to await their motion to dismiss. It did. They filed a motion to dismiss, you didn't respond to that. I dismissed with 20-days to respond to that, and you came up with a motion to remand, which wasn't good. Burlison: Your Honor, this motion to dismiss, if you remember the history of this case, was filed a long time ago with the Girardi & Keese firm [plaintiff's original attorneys]. Mr. Girardi found a conflict and you stayed the action to locate other counsel. Other counsel was located. The motion to dismiss was then placed back on the calendar and plaintiff, because the state court action has nothing to do with ERISA, obviously said to the Court, well, we will amend if we have to, because there's no allegation of federal jurisdiction in this complaint, so we had to amend. Within that time period, the plaintiff then did the research that I thought was adequate to determine that a motion to remand would be what the Court would want to have first to determine- The Court: Why? Burlison: -if there was jurisdiction. The Court: Why? Burlison: ... It was the plaintiff's impression, Your Honor, and I think based on the research, that the Court would want to look at the jurisdiction issues, which the plaintiff believes are strong. The Court: But it was never too soon to raise those issues. Burlison: Of course, Your Honor. The Court: So why did you wait until the twentieth day? (E.R.293-295.) The district court and Mr. Burlison then discussed the difficulties Burlison had in speaking with the plaintiff, who was in federal prison, and other persons who had information relevant to the motion to remand. The district court then imposed sanctions on the plaintiff for failing to file an amended complaint as ordered. The courtroom discussion then continued: Burlison: Your Honor, there's a motion to remand that was submitted to the Court -- The Court: Denied. Burlison:--and I'd appreciate if it could be reset for hearing. The Court: I think its been denied already. Burlison: It has been denied? The Court: I think I considered it; that part of the reason you're here. I'll reconsider it on my own motion. Burlison: I appeared for that hearing because we didn't get the order showing that it was taken off the calendar, and I did not see any denial of the motion. Mr. Kravitz [Frailey's attorney]: Your Honor, if I can address that, there's no -- The Court: I'll look at it again. No, I don't want to. I've got a roomful of people. I'll look at it. I think it was denied on the papers. If it wasn't, I'll reset it. I don't have that on the top of my mind, but as I sit here, I thought it was bad on the face of the papers. (E.R.302.) 2 We examine the original Complaint, rather than the Amended Complaint, because it appears that Toumajian initially challenged the propriety of removal at a time when the original Complaint was the operative pleading. See Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423, 1427 (9th Cir.1984) (to determine whether removal or remand is appropriate the court will ordinarily look only to the face of the complaint); see also Kyle Railways, Inc. v. Pacific Admin. Servs., Inc., 990 F.2d 513, 516 (9th Cir.1993) (review of dismissal of ERISA claim is based only on the contents of the complaint). In the defendants' memorandum in support of its motion to dismiss the original Complaint, the defendants asserted that the federal district court has "exclusive" subject matter jurisdiction over the Complaint. In response, Toumajian informed the court that because the defendants are not fiduciaries under ERISA, the action is not an "ERISA action," but merely a state law negligence action. However unartfully presented, these assertions nevertheless raised the issue of subject matter jurisdiction before the district court. See Karambelas v. Hughes Aircraft Co., 992 F.2d 971, 973 (9th Cir.1993) (although no formal motion for remand was filed, the issue was "put squarely before the district court" when raised in opposition to a motion to dismiss). In addition, as detailed in footnote 1, supra, in November 1994, before the Complaint was amended, Toumajian attempted to file a formal motion to remand 3 In part, § 1144(a) provides for preemption of "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" as defined by ERISA. Recently, the scope of this broad "relate to" preemption was markedly narrowed. In New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), the Supreme Court stated: [i]f "relate to" were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course.... But that, of course would be to read Congress's words of limitation as mere sham, and to read the presumption against preemption out of the law whenever Congress speaks to the matter with generality. Id. at 655, 115 S.Ct. at 1676-77. More recently, in California Div. of Labor v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997), the Court noted that: applying the "relate to" provision according to its terms was doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else.... The statutory text provides an illusory test, unless the Court is willing to decree a degree of pre-emption that no sensible person could have intended-which it is not. Id. at ----, 117 S.Ct. at 843 (Scalia, J., concurring). We too, have noted that " 'there are limits to the unusually broad preemptive sweep we have afforded ERISA.' " Arizona State Carpenters Pension Trust Fund v. Citibank, 125 F.3d 715, 723 (1997) (quoting Concha v. London, 62 F.3d 1493, 1505 (9th Cir.1995), cert. dismissed, 517 U.S. 1183, 116 S.Ct. 1710, 134 L.Ed.2d 772 (1996)). Fortunately, because our determination on the jurisdictional issue does not require us to determine whether Toumajian's claims fall within this "relate to" preemption, we can avoid interpreting this provision, which has been aptly labeled by Judge McLaughlin of the Court of Appeals for the Second Circuit as a "veritable Sargasso Sea of obfuscation." Travelers Ins. Co. v. Cuomo, 14 F.3d 708, 717 (2d Cir.1993), rev'd sub nom. Blue Cross & Blue Shield v. Travelers, 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). 4 The defendant Frailey misstates the basic question the court must analyze. Frailey argues that the federal court must merely determine whether the claims in the complaint "relate to " an ERISA plan in order to determine whether it has subject matter jurisdiction. This position, as outlined above, is simply wrong. Not only must the claim "relate to" an ERISA plan, but it must also fall within the confines of ERISA's civil enforcement scheme in order to confer the district court with subject matter jurisdiction. Metropolitan Life, 481 U.S. at 66, 107 S.Ct. at 1547-48. The cases cited by Frailey, Gibson v. Prudential Ins. Co. of America, 915 F.2d 414 (9th Cir.1990), and Casper Air Service v. Sun Life Assurance Co. of Canada, 752 F.Supp. 1005 (D.Wyo.1990), are inapposite. They merely discuss the scope of ERISA preemption, not whether or not the court had subject matter jurisdiction. Frailey has unfortunately confused the two 5 Basically, Toumajian claims that Frailey's negligent advice got him into trouble with the law. Among other things, Toumajian commingled money and converted funds from the ERISA plan he set up. For these and other reasons, Toumajian was sent to prison. Notwithstanding his criminal conviction, Toumajian apparently believes that he performed these acts, and ultimately ended up in prison, because Frailey provided him with faulty accounting and tax advice. For this injury, he seeks money damages. Whether such a claim has any merit is not for us to decide 6 In addition, there are several statutory exceptions for the awarding of court costs and expenses even in the absence of subject matter jurisdiction. See 28 U.S.C. § 1919 (authorizing court to order "payment of just costs" upon dismissal of any action based on a lack of jurisdiction) and 28 U.S.C. § 1447(c) (upon remand for lack of subject matter jurisdiction court "may require payment of just costs and any actual expenses, including attorney's fees incurred as a result of the removal")

54 F.3d 782 Ronald L. Satterleev.State of Missouri NO. 94-3922 United States Court of Appeals,Eighth Circuit. Jan 20, 1995 Appeal From: W.D.Mo., No. 94-CV-3285 1 AFFIRMED.

97 Cal.App.2d 470 (1950) NELTA MARIE MONROE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. Civ. No. 17612. California Court of Appeals. Second Dist., Div. One. May 12, 1950. Robert G. Blanchard for Petitioner. Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Deputy County Counsel, for Respondent. Irvin C. Evans and Paul J. Otto for John Edward Monroe, Real Party in Interest. DORAN, J. According to the petition, an action for divorce was filed on August 24, 1949, by the petitioner, Nelta Marie Monroe, against John Edward Monroe. In the amended complaint the husband was charged with adultery committed with 11 women; extreme cruelty was also alleged in that the husband "associated with women other than his wife." These women were not named as corespondents in the divorce action. Both charges were denied in the husband's answer. Thereafter, the wife, petitioner herein, commenced the taking of a deposition of the husband as the adverse party, pursuant to sections 2031 and 2055 of the Code of Civil Procedure. During the course of the deposition John Edward Monroe testified that he was acquainted with the women named in the complaint, and thereafter, upon advice of counsel, refused to answer questions relating to the following matters: "Where certain of said women lived at the time of his meeting with *471 them," and where such women lived at present; "When was the last time he saw certain of them; and ... What were the circumstances surrounding his meetings with certain of them." The husband further refused to answer an inquiry as to the last time he went out with anyone other than his wife. Objections to the above questions were made on the grounds that the same were incompetent, irrelevant and immaterial and outside the issues of the complaint; that no foundation had been laid, and that questions were highly prejudicial to the defendant's interests. Upon the hearing of an order to show cause, the superior court sustained the objections and refused to require defendant to answer the inquiries. [1] The petition for writ of mandate avers that "By reason of the foregoing orders ... petitioner has been prevented from obtaining ... answers to questions which are legal and pertinent to the matter at issue ... (and) By reason of respondent's action and its failure to perform its judicial duty ... petitioner has been deprived of her lawful opportunity to complete the said deposition and will ... be required to proceed to trial without the benefits of said deposition ... and without any means of obtaining the information necessary to prepare her case." Respondent's points and authorities present the proposition that the testimony in question "was inadmissible because the provisions of Section 1019 C. C. P. had not been complied with." That section provides that "When in an action for divorce adultery is charged ... and the person with whom in any of the pleadings, a copy of such pleadings must be such adultery is alleged to have been committed ... is named personally served on such named person." In Klemmer v. Klemmer, 42 Cal.App. 618 [187 P. 85], the court held that where section 1019 had not been complied with it was not error to exclude a deposition offered to prove the adultery. The petitioner's argument that, because the Supreme Court in denying a hearing in the Klemmer case, "expressly withheld approval of this portion of the opinion, thereby plainly implying a serious doubt as to the soundness of the views expressed," is, of course, without merit. The recent case of McClatchy v. Superior Court, 26 Cal.2d 386, 392, 394 [159 P.2d 944], has been cited by petitioner, where the reviewing court held that "Mandamus is the appropriate remedy to secure the enforcement of a litigant's statutory right to take depositions," and that "By refusing to compel a witness to answer proper questions, a trial court *472 may effectively deny a litigant the right to take deposition." However, as pointed out by respondent, the McClatchy case is in no manner similar to the present litigation. In the McClatchy case the holding was predicated on the fact that although a ruling on demurrer had eliminated the issues embraced by the deposition this did not prevent such issues from being classed as potential since they might be raised by an amended pleading; hence the witness should have been required to answer the inquiries. In the present case no such situation existed. It is also argued by respondent that the questions asked the husband "were objectionable in that the answers might tend to subject the defendant to prosecution for a public offense"; that this privilege applies whether the crime involved is a misdemeanor or a felony. Respondent further calls attention to the fact that "Mandamus will not lie to control the discretion of respondent court"; that in passing upon the admissibility of evidence and materiality of questions, discretion of the trial court is involved and should not be controlled by mandamus except where there is a gross abuse of discretion. It is obvious that the writ of mandate, like other extraordinary writs, is not designed and should not be utilized to unduly control the ordinary activities of trial courts. In matters involving discretion it will not lie to control such discretion "except in those rare instances where under the facts it cannot be exercised in but one way," as was declared in Hilmer v. Superior Court, 220 Cal. 71, 73 [29 P.2d 175], quoted in Lincoln v. Superior Court, 22 Cal.2d 304, 313 [139 P.2d 13]. The present case is one not falling within that category. The record indicates that without complying with Section 1019 of the Code of Civil Procedure, requiring service of pleadings upon the husband's associates in the alleged adulteries, and without making these women parties to the action, the wife's counsel, by way of what is sometimes termed "a fishing expedition," attempted to compel the husband to answer questions concerning the whereabouts of the women. This, upon order to show cause, the trial court refused to sanction. Under the circumstances disclosed by the record and cases governing the use of the writ here employed it cannot be said that petitioner is entitled to the writ. The petition for a writ of mandate is denied. White, P. J., and Drapeau, J., concurred.

758 F.2d 655 Chargualafv.Camacho 85-1632 United States Court of Appeals,Ninth Circuit. 3/8/85 D.Guam AFFIRMED

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 95-10248 Summary Calendar _____________________ MICHAEL CARVER FLOWERS, Plaintiff-Appellant, v. JIM BOWLES, Sheriff, and MEDICAL DIRECTOR, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas (July 25, 1995) Before KING, JOLLY, and PARKER, Circuit Judges. PER CURIAM:* Michael Carver Flowers brought suit under 42 U.S.C. § 1983, claiming that he was unconstitutionally denied medical care while incarcerated. Flowers' claim was dismissed with prejudice pursuant to 28 U.S.C. § 1915(d), and Flowers now appeals. We affirm in part and reverse and remand in part. * Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published.  I. BACKGROUND Flowers, a Texas Department of Criminal Justice prisoner, filed a complaint pursuant to 42 U.S.C. § 1983, alleging that he was denied medical care while incarcerated in two Dallas County jails between January 13 and March 21, 1993. Flowers named Sheriff Jim Bowles and an unidentified medical director as defendants. Flowers was first incarcerated at the Lew Sterrit Jail. There, Flowers claims he told a prison nurse that he had recently undergone back surgery and needed various medications prescribed for his pain. Flowers alleges that, despite his request, he was deprived of these medications during the time he was interned in the jail. After three days, Flowers was transferred to a second facility, where he claims he approached a guard about acquiring the medication for his back pain. According to Flowers, the guard gave him request forms, which Flowers maintains he mailed repeatedly to both Sheriff Bowles and the medical director. Flowers further contends that he did not receive a reply from either the sheriff or the medical director during the sixty-four days he was incarcerated in the center. Flowers filed his complaint on March 28, 1994. On August 19, 1994, the magistrate judge sent an interrogatory to Flowers, asking Flowers to better define his cause of action. When Flowers did not respond within thirty days, the magistrate judge recommended that the district court dismiss the action for 2 failure to prosecute. Flowers promptly objected that he had never received the interrogatory. The district court sided with Flowers, holding that because it was possible Flowers had not received the interrogatory, dismissal was inappropriate. Additionally, the district court instructed the magistrate judge to reissue the document to Flowers. After Flowers replied to the new interrogatory in full, the magistrate judge recommended that the district court dismiss the complaint as frivolous. The magistrate judge first noted that he was uncertain whether Flowers was a pre-trial detainee or a convicted prisoner at the time he was allegedly denied his medication. Thus, the magistrate judge could not determine whether to apply a Fourteenth Amendment standard, which would govern the denial of medical care to a pre-trial detainee, or an Eighth Amendment standard, which would govern the denial of medical care to a convicted prisoner. Nevertheless, the magistrate judge determined Flowers had not stated an arguable § 1983 claim under either standard. Specifically, the magistrate judge maintained that Flowers had failed to demonstrate that the individual defendants had denied him medical care. Flowers filed an objection to the recommendation, alleging that he was a pre-trial detainee for one month while incarcerated in the county jail and was thereafter a convicted felon. Additionally, Flowers claims that he cannot communicate fluently in English, but that he could show the personal involvement of the defendants, if given the opportunity. Despite Flowers' 3 objections, the district court adopted the magistrate judge's recommendation and dismissed Flowers' complaint as frivolous. II. STANDARD OF REVIEW A § 1983 plaintiff who proceeds in forma pauperis is subject to dismissal if his complaint is "frivolous" within the meaning of 28 U.S.C. § 1915(d). Under § 1915(d), an in forma pauperis complaint is frivolous if it lacks an arguable basis in law or in fact. Denton v. Hernandez, 112 S.Ct. 1728, 1733 (1992). We review a § 1915(d) dismissal only for an abuse of discretion because a determination of frivolousness -- whether legal or factual -- is a discretionary one. Denton, 112 S.Ct. at 1734; Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992). In reviewing for an abuse of discretion, we consider whether (1) the plaintiff is proceeding pro se; (2) the court inappropriately resolved genuine issues of disputed fact; (3) the court applied erroneous legal conclusions; (4) the court has provided an adequate statement of reasons for dismissal which facilitates intelligent appellate review; and (5) the dismissal was with or without prejudice. Denton, 112 S.Ct. at 1734. III. ANALYSIS We agree that Flowers has failed to allege an arguable claim against either the sheriff or the unnamed medical director for the three days of medical treatment he was allegedly denied in the Lew Sterrit Jail. Under § 1983, supervisory officials cannot be held liable for the actions of their subordinates on any vicarious liability theory. Thompkins v. Belt, 828 F.2d 298, 4 303 (5th Cir. 1987). Rather, a supervisor is liable only if he is personally involved in a constitutional deprivation or if there is a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Id. Supervisory liability also exists under § 1983 if the supervisory official implements a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force behind the constitutional violation. Id. During his three days of incarceration in the Lew Sterrit Jail, Flowers claims that he informed a nurse of his need for medication. Flowers has alleged no further facts indicating that either the sheriff or the medical director knew of his need for medication or that they acted directly or indirectly to deny him his medication. Accordingly, Flowers has alleged no set of facts which could form an arguable basis of liability against the named defendants and his claim with regard to detention in the Lew Sterrit Jail is therefore legally frivolous. With regard to his claims arising after he was moved to the second facility, Flowers has alleged facts which could implicate personal involvement by both defendants in the alleged constitutional violation. Moreover, Flowers asserts claims that may arise under both the Eighth and Fourteenth Amendments. That is, any constitutional deprivations Flowers can prove occurred while he was still a pre-trial detainee involve claims under the Fourteenth Amendment, see Grabowski v. Jackson County Public Defenders Office, 47 F.3d 1386, 1386 (5th Cir. 1995), reh'g en 5 banc granted, No. 92-7728, 94-60089 (March 14, 1995); see also Bell v. Wolfish, 441 U.S. 520, 537 (1979), and any constitutional deprivations Flowers can prove occurred after he was convicted involve claims under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 97 (1976). In order to prevail on an Eighth Amendment claim, the Supreme Court has held that a convict must prove that a defendant acted with deliberate indifference to his serious medical needs. Estelle, 429 U.S. at 97. The standard for recovery on a Fourteenth Amendment claim, which has previously been more liberal than its Eighth Amendment counterpart, is currently under review by the en banc court. See Hare v. City of Corinth, 36 F.3d 412, 415 (5th Cir. 1994), reh'g en banc granted, No. 93-7192 (Dec. 8, 1994). Even assuming arguendo that we were to adopt a Fourteenth Amendment standard as strict as that currently required to prove an Eighth Amendment claim, it is clear that Flowers' claim is not legally frivolous. Because § 1983 does not provide for supervisory liability, Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987), the sheriff and the medical director in the case at bar would not be liable unless Flowers could prove that they were personally involved in denying Flowers' alleged written requests for medical treatment. On the other hand, if Flowers proved that the sheriff or the medical director was personally and deliberately indifferent to his written requests, he could prevail on his claim against that defendant. Furthermore, the post-operation back pain Flowers 6 alleges he suffered at the time of his incarceration could meet the Eighth Amendment standard of "serious medical need." In short, because Flowers has alleged facts which present an arguable claim even under an Eighth Amendment standard, the district court's dismissal of Flowers' claims arising from the period after he was transferred from the first facility constituted an abuse of discretion. IV. CONCLUSION For the foregoing reasons, the district court's judgment is AFFIRMED in part and REVERSED and REMANDED in part. 7 8 

Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-11-2009 USA v. Alex Hetherington Precedential or Non-Precedential: Non-Precedential Docket No. 08-2564 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Alex Hetherington" (2009). 2009 Decisions. Paper 1382. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1382 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 08-2564 ____________ UNITED STATES OF AMERICA v. ALEX HETHERINGTON, Appellant ____________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-07-cr-00596-1) District Judge: Honorable William H. Walls ____________ Submitted Pursuant to Third Circuit LAR 34.1(a) April 23, 2009 Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges. (Filed: May 11, 2009 ) ____________ OPINION OF THE COURT ____________ FISHER, Circuit Judge. Alex Hetherington pleaded guilty to conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 for which he was sentenced to 312 months of imprisonment. On appeal, Hetherington argues that the District Court did not give meaningful consideration to his extensive cooperation as a factor warranting a variance and as a result his sentence is unreasonable. For the reasons set forth below, we will affirm. I. We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis. The conviction in this case stems from Hetherington’s involvement in a large-scale drug trafficking organization based in Mexico. On February 27, 2007, Hetherington was arrested in a parking lot in Carlstadt, New Jersey while he was in the process of transferring 212 kilograms of “sham” cocaine from a co-conspirator’s vehicle to his own vehicle (unbeknownst to him, law enforcement officers had discovered the actual cocaine and replaced it with a cocaine-like substance as part of a controlled delivery). Hetherington received Miranda warnings upon arrest but indicated his willingness to cooperate. In the days following his arrest, Hetherington made numerous monitored phone calls in an unsuccessful effort to obtain the three million dollars which constituted his payment for delivery of the cocaine so that the Government could seize the money. As a result of other monitored calls, Hetherington helped law enforcement officers seize sixty-four pounds of methamphetamine, which led to the arrest of two other individuals who worked with Hetherington. 2  On January 29, 2008, pursuant to a written agreement, Hetherington pleaded guilty to a one-count superseding indictment which charged him with conspiring with others to distribute and possess with intent to distribute five kilograms or more of cocaine contrary to 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) and in violation of 21 U.S.C. § 846. In the plea agreement, Hetherington stipulated that the amount of cocaine involved in his offense was 212 kilograms. Hetherington’s base offense level of thirty-eight was adjusted upwards four levels because of his leadership role in the offense and was reduced three levels because of his acceptance of responsibility, thus resulting in a total offense level of thirty-nine. This offense level, combined with a criminal history in category I, yielded a Guidelines range of 262 to 327 months of imprisonment. At sentencing on May 12, 2008, the Government did not move for a departure pursuant to U.S.S.G. § 5K1.1 because it believed Hetherington was not completely truthful and forthright about his criminal activities, and Hetherington did not challenge the Government’s decision not to request a downward departure. Hetherington did argue that a variance from the Guidelines range was warranted in light of his cooperation as well as his work as a missionary for two years in Honduras. The District Court sentenced Hetherington to 312 months of imprisonment, five years of supervised release, and a special assessment of $100. Hetherington timely appealed his judgment of sentence. 3  II. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction to review the District Court’s judgment of sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review sentences for both procedural and substantive reasonableness under an abuse of discretion standard pursuant to Gall v. United States, 128 S. Ct. 586, 597 (2007). III. Hetherington argues that the District Court did not give meaningful consideration to his “extensive cooperation” with the Government as a mitigating factor under 18 U.S.C. § 3553(a)(1). Hetherington contends that the District Court rejected his arguments for a variance on the basis of his cooperation because of the Government’s decision not to request a downward departure under U.S.S.G. § 5K1.1. The Government responds that the District Court acted within its discretion when it considered and rejected the variance arguments because Hetherington’s cooperation was not “outside of the mainstream of cooperation.” Our post-Booker precedent instructs district courts to follow a three-step sentencing process which entails calculating a defendant’s Guidelines sentence precisely, formally ruling on any departure motions, and exercising discretion by considering the relevant § 3553(a) factors. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). Hetherington’s challenge to the District Court’s consideration of his variance arguments 4 within the framework of § 3553(a) pertains only to the third step under Gunter. We have explained that “[w]hile a listing of factors may not, alone, be sufficient to demonstrate the necessary consideration of relevant factors,” such consideration can be reflected from “the record as a whole.” United States v. Olfano, 503 F.3d 240, 245 (3d Cir. 2007). Along these lines, a district court need not “discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006). We expect the record to reflect a district court’s “recognition of, and response to, the parties’ non- frivolous arguments.” United States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006). Here, in response to Hetherington’s arguments that the extent of his cooperation warranted varying his sentence, the District Court stated: “I consider whatever you claim he has done by way of cooperation as part of a general constellation of what makes this person before me, what makes Alex Hetherington.” This statement reflects that the District Court considered Hetherington’s cooperation as part of his overall history and characteristics. Also, in response to Hetherington’s inquiry as to whether the District Court was accepting his cooperation “as a 3553 consideration,” the District Court explained: “I am considering this consideration and note that he has been given credit for it in the acceptance of responsibility.” When Hetherington continued to press his cooperation argument and characterized the “scope of the cooperation” as 5 “extraordinary,” the District Court replied that “[i]t doesn’t take it out of the mainstream of cooperation” and it “falls short.” Therefore, the record is clear that the District Court did consider Hetherington’s arguments that he deserved a variance because of his cooperation but nonetheless was unpersuaded by these arguments. Because the record reveals the District Court’s consideration of Hetherington’s arguments for a variance in light of the § 3553(a) factors as well as an explanation of why the District Court chose not to exercise its discretion to vary his sentence, we cannot conclude that the sentence is unreasonable. See United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (explaining that the district court’s decision not to give the defendant’s “mitigating factors the weight that [the defendant] contends they deserve does not render [the] sentence unreasonable”). IV. For the foregoing reasons, we will affirm the judgment of the District Court. 6 

444 P.2d 204 (1968) Sarah E. HUBBARD, Plaintiff in Error, v. Barbara COATES, Administratrix of the Estate of Thelma Compton, nee Stanley, Deceased, Defendant in Error. No. 41597. Supreme Court of Oklahoma. July 23, 1968. John Allen Phillips II, Phillips & Moore, Durant, for plaintiff in error. R. Kay Matthews, Atoka, James E. Driscoll, Seminole, by James E. Driscoll, Seminole, for defendant in error. *206 PER CURIAM: Parties occupy here opposite positions from the positions they occupied in the trial court. The plaintiff in error will be referred to as defendant, and the defendant in error will be referred to as plaintiff or administratrix. The defendant operated a nursing home in the Town of Atoka, Oklahoma, and Thelma Compton was employed by the defendant as cook. They started on a trip to Nevada in the defendant's Cadillac automobile. While travelling west on U.S. 62, at a point 1.9 miles west of the City of Altus, Oklahoma, an automobile accident occurred. Both women were injured in the accident. They were the only occupants of the defendant's car. Thelma Compton died in a hospital in Oklahoma City seventy-two hours after the accident. From the pleadings and evidence, it appears the defendant was driving her automobile and started around a truck, referred to here as Vehicle A. At that moment, Vehicle A started around Vehicle B, which was immediately in front of Vehicle A and travelling in the same direction. Defendant then pulled her car sharply to the left to avoid Vehicle A and in so doing caused her car to run off the highway and it turned over. Soon after the accident, the two women were taken by ambulance to a hospital in Altus where their injuries were treated. That evening they returned to Atoka, the deceased in an ambulance and the defendant in a passenger car. The deceased, Thelma Compton, was taken to an Oklahoma City hospital where she died shortly after arriving there. Barbara Coates, the daughter of Thelma Compton, was appointed administratrix of the Estate of Thelma Compton and is plaintiff in this action. The defendant has raised three propositions for reversal which are: 1. Insufficiency of the evidence which proposition is broken down into five sub-heads. 2. The judgment is excessive and appears to have been given under the influence of passion or prejudice. 3. That the court committed error in the exclusion of certain evidence over the objections of the defendant. We will discuss the foregoing in the above order. It is unquestioned that the defendant drove her car off the road and that Mrs. Compton died as a result of the accident. The defendant contends there was insufficient evidence to go to the jury as to her negligence in the manner she operated her car. It was alleged that defendant violated certain statutes and that such violations amounted to negligence per se. One of the statutes is 47 O.S. 1961, § 11-303, which requires one to give an audible signal when passing another vehicle. The defendant argues: a) that said statute was complied with; b) that defendant was not required to be "reasonably assured" that the driver of the vehicle she was passing heard her horn. Defendant testified she honked her horn when her car was a few feet behind Vehicle A and that her horn continued to honk even as she lost control of the car and it wrecked. The defendant contends, at least in effect, that the driver of Vehicle A was negligent and that his negligence was the sole cause of the accident because Vehicle A attempted to pass Vehicle B while defendant was in the process of passing Vehicle A. The trial court upon this issue gave an instruction which advised the jury that the driver of an auto wishing to pass another going in the same direction "* * * must sound her horn when reasonably necessary to insure *207 safe operation to her vehicle, and before attempting to pass, she must be reasonably assured that the driver ahead knew she was behind, and heard the request, and accorded the right-of-way, before the driver of the car ahead can be charged with negligence in failing to give the right-of-way * * *". No exception was taken to this instruction or indeed to any of the court's instructions by either party as required by 12 O.S. 1961, § 578, if error is to be asserted in the giving of such instructions. We are of the opinion that such instruction, if erroneous at all, was not fundamentally so as to warrant a reversal of the trial court. See Smith v. Clark (1926), 125 Okl. 18, 256 P. 36 and Belford v. Allen (1938), 183 Okl. 256, 80 P.2d 671. We think under the circumstances of this case the jury was justified in finding, as it apparently in effect did, that the defendant, when she sounded her horn and began to pass Vehicle A, was not "reasonably assured" that the driver of Vehicle A heard her signal. A reasonable inference from the evidence would be that apparently the Vehicle A driver not only did not hear the signal, but was not even aware of the presence of defendant's car, for he not only passed Vehicle B but both Vehicles A and B drove on and did not stop when defendant's car left the road and turned over. Under the circumstances, we think it reasonable to say that the driver of Vehicle A was not shown to have been guilty of sole negligence. He had the right, exercisable of course within the limits of ordinary care for the safety of others, to pass the vehicle ahead of him and it was defendant's duty, as the car approaching from the rear, to look out and be reasonably assured she could in safety pass Vehicle A before she attempted to do so. It was for the jury to determine whether she was obeying the rules of the road and whether she was guilty of negligent driving, when she attempted to go around the truck in front of her and drove her car off the road. In effect the jury found the defendant was driving her car in violation of 47 O.S. § 11-305, which states: "No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. * * *" (Emphasis supplied) Under the evidence the jury was justified in finding that defendant was negligent in attempting to go around the truck in front of her without being reasonably sure that she could safely get around the truck and car in front of her. See cases collected at 3 Oklahoma Digest, Automobiles. It is quite evident that the jury believed the defendant was not driving her car in compliance with 47 O.S. § 11-801, wherein it is provided that, "no person shall drive any vehicle upon the highway, at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead." As we have said, the defendant had no assurance whatsoever that the driver of Vehicle A would not attempt to go around Vehicle B. This was of necessity a question for the jury. What constitutes negligence is for the jury, unless facts are such that all reasonable men must draw the same conclusion. See Spicers, Inc. et al. v. Rudd et al. (1948), 199 Okl. 576, 188 P.2d 692; Miller v. Dobbs (1937), 180 Okl. 576, 71 P.2d 737. There was sufficient evidence and defendant's first proposition is not well taken. Defendant's second proposition that the judgment is excessive and appears to have been given under the influence of passion or prejudice is also without merit. The jury appears to have allowed $7,500.00 for pain and suffering. Seventy-two hours after the accident, Mrs. Compton passed away. There was evidence that she suffered pain from the time of the accident until her death. She had *208 fractured ribs, fractures in her chest and other injuries in her chest including possible heart damage. The jury had the duty of fixing the extent and severity of her pain and suffering. There is no conflict as to what caused deceased's pain and suffering and there was evidence as to the extent thereof. There is evidence sufficient to justify the verdict and as that was the function for the jury we see no reason to reverse or reduce the sum allowed, and it will not be done on appeal. See A & A Cab Operating Co. v. Gossett (1947), 199 Okl. 612, 188 P.2d 849. For her third proposition the defendant urges that the trial court committed reversible error in the exclusion of certain evidence over the objections of the defendant. With this we cannot agree. To have permitted the Highway Patrolman Morgan to have answered the questions to which objections were sustained would have permitted him to have to state his opinion as to the cause of the accident and to thus invade the province of the jury. He was permitted to testify to everything he saw that was connected with the accident. He could not have accurately determined whether the defendant was properly driving her car at the time of the accident. We again say that this was a matter for the jury. We find no error in the trial court refusing to let the patrolman testify on this matter. See Kelso v. Independent Tank Co. (1960), Okl., 348 P.2d 855. Judgment will be affirmed. The Court acknowledges the aid of Supernumerary Judge Halley in the preparation of this opinion. After a tentative opinion was written, the cause was assigned to a Justice of this Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court. DAVISON, WILLIAMS, BLACKBIRD, BERRY, LAVENDER, and McINERNEY, JJ., concur. JACKSON, C.J., and IRWIN, V.C.J., concur in result.

30 So.3d 467 (2008) LETTIE MALONE ANDERSON v. CARL ANDERSON. (IN RE: ESTATE OF MACK ARTHUR ANDERSON, DECEASED). No. 2070491. Court of Civil Appeals of Alabama. August 15, 2008. Decision of the Alabama Court of Civil Appeal Without Published Opinion Affirmed.

646 A.2d 1001 (1994) Myra ALBERTILE, Appellant, v. LOUIS & ALEXANDER CORPORATION, et al., Appellees. No. 93-CV-136. District of Columbia Court of Appeals. Submitted June 14, 1994. Decided August 25, 1994. *1002 Robert C. Freed, Washington, DC, filed a brief for appellant. Melvin R. Wright and Elisa A. Eisenberg, Washington, DC, filed a brief for appellee Louis & Alexander Corp. Before WAGNER, Chief Judge, SCHWELB, Associate Judge, and GALLAGHER, Senior Judge. SCHWELB, Associate Judge: This appeal arises from an action for personal injuries allegedly suffered by appellant Myra Albertie when she fell on snow and ice on the sidewalk adjacent to a Burger King restaurant in northwest Washington, D.C. The trial judge granted summary judgment in favor of the operators of the restaurant (Louis & Alexander Corporation) and the owners of the real property on which the restaurant was located (Gartenhaus Associates), concluding that the defendants owed Ms. Albertie no duty of care at common law or under the District's snow removal statute, D.C.Code §§ 7-901 et seq. (1989).[1] On appeal, Ms. Albertie's primary contention is that the snow removal statute imposed a duty upon the defendants vis-a-vis Burger King customers to clear away the snow on the sidewalk adjacent to the restaurant. That statute, however, expressly authorizes enforcement by the Corporation Counsel, but makes no provision for a private right of action. Under these circumstances, and in light of persuasive precedent in this jurisdiction, we cannot agree with Ms. Albertie's position. Ms. Albertie also claims in her brief that the defendants negligently increased the risk of injury to Burger King customers by clearing away the snow but failing to spread sand *1003 on the sidewalk after it had been cleared, and that this failure proximately caused her injuries. This contention, however, was not raised in the trial court or addressed by the trial judge, and we perceive no plain error on the part of the judge in failing to rule in Ms. Albertie's favor on his own initiative on the basis of a theory not advanced to him. Accordingly, we affirm. I. The record before the trial court, viewed (as it must be) in the light most favorable to Ms. Albertie, See Clyburn v. 1411 K St., Ltd. Partnership, 628 A.2d 1015, 1017 (D.C.1993), discloses that there was a snowstorm in the Washington, D.C. area on January 22, 1987, and during the night that followed, and that approximately eleven inches of snow fell on the city. There was no further accumulation after 6:00 a.m. on January 23, 1987. At approximately 5:45 p.m. on January 23, Ms. Albertie, who had been shopping at a nearby Safeway supermarket, decided to make a purchase at the Burger King. She walked along a narrow path that had apparently been shovelled along the sidewalk in front of the restaurant. There were, however, patches of ice in the cleared area. Ms. Albertie claimed that she was being "extremely careful to prevent my falling." Nevertheless, she slipped, fell, broke her ankle, and suffered "excruciating pain." Ms. Albertie filed a timely suit against both Louis & Alexander and Gartenhaus. Louis & Alexander filed a motion for summary judgment, which the trial judge granted in a three-page written order. Gartenhaus subsequently joined the motion, and the judge also granted summary judgment to that defendant. This appeal followed. II. We think it beyond dispute that Ms. Albertie had no right of action at common law against either defendant for failing to clear the snow. In Norville v. Hub Furniture Co., 59 App.D.C. 29, 32 F.2d 420 (1929), the court stated the applicable "rules and principles of the common law" as follows: In the absence of a statutory provision to the contrary, the owner or occupant of property owes no duty to pedestrians to keep the side walk in front of it free from ice and snow coming thereon from natural causes, ... nor does a storekeeper owe any greater duty in this regard to customers leaving his store than he owes to ordinary pedestrians. Id. at 30, 32 F.2d at 421 (citations omitted); accord, Hecht Co. v. Hohensee, 65 App.D.C. 328, 329, 83 F.2d 585, 586 (1936); Radinsky v. Ellis, 83 U.S.App.D.C. 172, 167 F.2d 745 (1948). As the court explained in Radinsky, this is because sidewalks in the District of Columbia are publicly owned, and are controlled exclusively by the municipal authorities of the District. It is, therefore, primarily the duty of the local government to keep its sidewalks in a reasonably safe condition after a snowfall. Id. (footnote omitted). Ms. Albertie does not directly challenge the proposition that her principal claim would be barred at common law, but relies instead on the snow removal statute, D.C.Code §§ 7-901 to 7-906. The first section of that legislation provides as follows: It shall be the duty of every person, partnership, corporation, joint-stock company, or syndicate in charge or control of any building or lot of land within the fire limits of the District of Columbia, fronting or abutting on a paved sidewalk, whether as owner, tenant, occupant, lessee, or otherwise, within the first 8 hours of daylight after the ceasing to fall of any snow or sleet, to remove and clear away, or cause to be removed and cleared away, such snow or sleet from so much of said sidewalk as is in front of or abuts on said building or lot of land. Id. § 7-901. The legislation does not include any provision authorizing enforcement by a private action for damages. Section 7-906, on the other hand, authorizes and directs *1004 the Corporation Counsel to enforce the statute.[2] We decline, under these circumstances, to read a private right of action into the snow removal law. As we recently reiterated in Brantley v. District of Columbia, 640 A.2d 181 (D.C.1994), where a statute [or regulation] expressly provides a particular remedy, a court must be chary of reading others into it. Where, as here, the legislature has specified the relief which is appropriate to redress a violation, courts are not authorized to devise different (and in this case far more drastic) remedies: expressio unius est exclusio alterius. Id. at 184 (citations and internal quotation marks omitted). Moreover, there is precedent in this jurisdiction which strongly supports the conclusion that Ms. Albertie has no right of action under D.C.Code § 7-901. In Radinsky, a suit brought on behalf of a schoolboy who had slipped on an icy sidewalk outside the defendant's apartment house, the court concluded that the snow removal law imposed no obligation on property owners vis-a-vis pedestrians. The court described such legislation as "an attempt on the part of the municipality to shift to the shoulders of individual citizens the burden which it is primarily incumbent on itself to bear," 83 U.S.App. at 173, 167 F.2d at 746 (citing McGuire v. District of Columbia, 24 App.D.C. 22, 28 (1904)), and adverted to the provision in the statute for enforcement by the Corporation Counsel. Id. The court went on to state that it is uniformly held that an ordinance requiring lot owners to keep the sidewalks free from snow and ice, and imposing a penalty for neglect or failure to do so, does not relieve the municipality of this primary duty with respect to the safety of its public streets, and does not impose a civil liability on the lot owner in favor of a third person injured by reason of its violation. 83 U.S.App.D.C. at 173 n. 6, 167 F.2d 745 n. 6 (emphasis added) (quoting Annotation, Statute or ordinance requiring abutting owner to remove snow and ice from sidewalk as affecting liability for injuries, 24 A.L.R. 387, 388 (1923)).[3] Because the plaintiff in Radinsky was a pedestrian and not an invitee, the present case could arguably be distinguished from Radinsky upon that ground. We note, however, that the language italicized above from the court's opinion in Radinsky was broad enough to reach this case—the court spoke of injured third persons, and not merely of injured pedestrians—and its reasoning appears to apply to pedestrians and invitees alike. Accordingly, although the question whether a customer of a store was protected by the snow removal law was not before the court in Radinsky, the decision in that case would evidently have been the same even if the plaintiff had been a customer, rather than a pedestrian.[4] *1005 Ms. Albertie relies on Reichman v. Franklin Simon Corp., 392 A.2d 9 (D.C.1978), but notwithstanding the presence of troublesome dictum in that opinion, the decision does not support reversal. In Reichman, a pedestrian was injured as a result of a fall on an icy sidewalk adjacent to the defendant's store. She sued the store owner for damages pursuant to the provisions of the snow removal statute. In affirming an order granting summary judgment in favor of the defendant, the court stated: District of Columbia law unquestionably requires a property owner to clear abutting sidewalks. However, a real property owner is under no duty to keep the sidewalk abutting its property clear of snow and ice for the benefit of pedestrians, except as to invitees, a status which appellant Helene Reichman does not claim. Robinson v. Park Central Apartments, 248 F.Supp. 632, 634 (D.D.C.1965). See Radinsky v. Ellis, 83 U.S.App.D.C. 172, 173, 167 F.2d 745, 746 (1948). Id. at 13-14 (emphasis added; footnote omitted). Ms. Albertie seizes on the emphasized words in the foregoing passage, but the language in question was not a part of the court's holding. As the court itself noted in Reichman, the plaintiff in that case was a pedestrian, not an invitee. The question whether an invitee could recover in some hypothetical situation was therefore not before the court. The brief remark in the opinion concerning that issue constituted "a statement not addressed to the question before the court or necessary for its decision." United States v. Crawley, 837 F.2d 291, 292 (7th Cir.1988) (quoting American Family Mut. Ins. Co. v. Shannon, 120 Wis.2d 560, 356 N.W.2d 175, 178 (1984)). It was therefore dictum. Language in an opinion which "constitute[s] obiter dictum, entirely unnecessary for the decision of the case ... [has] no effect as indicating the law of the District." Noel v. Olds, 78 U.S.App.D.C. 155, 160, 138 F.2d 581, 586 (1943), cert. denied, 321 U.S. 773, 64 S.Ct. 611, 88 L.Ed. 1067 (1944). "[N]othing in M.A.P. v. Ryan, [supra note4] or otherwise, requires a division of this court to follow [it]." Punch v. United States, 377 A.2d 1353, 1360 (D.C.1977), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978). Writing for the court in Crawley, Judge Posner enumerated some of the reasons which militate against giving weight to dictum: There are many. One is that the passage was unnecessary to the outcome of the earlier case and therefore perhaps not as fully considered as it would have been if it were essential to the outcome. A closely related reason is that the passage was not an integral part of the earlier opinion—it can be sloughed off without damaging the analytical structure of the opinion, and so it was a redundant part of that opinion and, again, may not have been fully considered. Still another reason is that the passage was not grounded in the facts of the case and the judges may therefore have lacked an adequate experiential basis for it; another, that the issue addressed in the passage was not presented as an issue, hence was not refined by the fires of adversary presentation. All these are masons for thinking that a particular passage was not a fully measured judicial pronouncement.... Crawley, 837 F.2d at 292-93. In the present instance, the brief dictum in Reichman regarding the rights of invitees is not supported by the authorities to which that opinion refers us. The court first cited Robinson v. Park Central Apartments, supra, a decision by the United States District Court on which Ms. Albertie also seeks to rely. Robinson, however, involved a landlord's liability to a tenant who had fallen on the ice which covered the sidewalk and private walkway just outside the entrance to the defendant's apartment house. The court's decision was predicated on a landlord's duty to provide reasonably safe "ingress" and *1006 "egress" to his building for his tenants and their guests. Robinson, 248 F.Supp. at 634.[5] The snow removal statute was not discussed or even mentioned in the court's opinion. Robinson, therefore, constitutes no precedent whatever for any interpretation of that statute. The other decision cited by the court in Reichman in support of its dictum relating to invitees was Radinsky. In Radinsky, however, as we have previously noted, the court stated that snow removal statutes do not impose civil liability against owners of real estate "in favor of a third person injured by reason of [the owner's] violation." 83 U.S.App.D.C. at 173 n. 6, 167 F.2d at 746 n. 6 (emphasis added). Radinsky thus lends no support to the dictum in Reichman that an invitee may invoke the snow removal statute; on the contrary, Radinsky supports, and its reasoning compels, the opposite conclusion. Accordingly, we agree with the trial judge's holding that Ms. Albertie has no right of action against the appellees under D.C.Code § 7-901.[6] III. Ms. Albertie testified at her deposition that after she fell on the ice, she was carried into the restaurant. There, a young female who was collecting information about the accident remarked to one of the managers that "I told you you should have put some sand on that sidewalk." On the basis of this conversation, Ms. Albertie asks us to infer that employees of the Burger King must have cleared the sidewalk of snow, and that they had increased the danger to patrons by not spreading sand on any remaining ice. She seeks to invoke the rule that a real property owner may be found liable if it acts in any manner to increase the hazard created by snow or ice accumulated on an abutting public sidewalk and such action proximately causes plaintiff's injury. Reichman, supra, 392 A.2d at 14 (citing Hecht Co. v. Hohensee, supra, 65 App.D.C. at 329, 83 F.2d at 586). Ms. Albertie did not raise this issue in the trial court. The point was similarly omitted from her opposition to Louis & Alexander's motion for summary judgment. There was likewise no reference in Ms. Albertie's Statement of Material Facts to the conversation which she claims to have overheard inside the restaurant. Unsurprisingly, the judge did not address the issue in his written order granting Louis & Alexander's motion. Where an issue is raised for the first time on appeal, we will reverse only "where it is apparent from the face of the record that a miscarriage of justice has occurred." Weisman v. Middleton, 390 A.2d 996, 1000 (D.C. 1978) (citations and internal quotation marks omitted); see also D.D. v. M.T., 550 A.2d 37, 48 (D.C.1988). This is essentially the language of "plain error." See District of Columbia v. Wical Ltd. Partnership, 630 A.2d 174, 182-83 (D.C.1993). Aside from the requirement of a miscarriage of justice, plain error must be "clear" or "obvious." United States v. Olano, ___ U.S. ___, ___, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993); District of Columbia v. Banks, 646 A.2d 972, 978 (D.C.1994). Ms. Albertie has not met the exacting burden imposed on her by the authorities cited above. It is not clear or obvious that the conversation which she overheard would be admissible, for it is questionable whether the speaker's alleged "admission" could bind the defendants. See, e.g., Pratt v. District of Columbia, 407 A.2d 612, 616 (D.C.1979).[7] *1007 Moreover, there is no direct evidence as to who cleared away the snow from the sidewalk, nor is it apparent that the shovelling made the sidewalk more dangerous. Cf. Hecht Co. v. Hohensee, supra, in which the court, quoting Mahoney v. Perreault, 275 Mass. 251, 175 N.E. 467, 468 (1931), stated that [a] landowner cannot be held liable if he shovels snow from the sidewalk in front of his premises upon the space between the outer edge of the walk and the curb and it melts and runs over the walk and thereafter ice is formed. Hecht Co. v. Hohensee, 65 App.D.C. at 330, 83 F.2d at 586. We express no opinion as to whether the award of summary judgment to the defendants could be sustained if the question based on the alleged conversation between Burger King employees inside the restaurant had been presented to the trial court. We hold, however, that there was no miscarriage of justice requiring the trial judge to intervene, sua sponte, cf. Irick v. United States, 565 A.2d 26, 33 (D.C.1989), or warranting reversal of the judgment when the issue was raised for the first time on appeal. IV. For the foregoing reasons, the judgment is hereby Affirmed. NOTES [1] All references in this opinion to the District of Columbia Code are to the 1989 Replacement Volume. [2] Section 7-906 provides as follows: The Corporation Counsel is hereby directed and authorized to sue for and recover from such person, partnership, corporation, joint-stock company, or syndicate, the amount of such expense in the name of the District of Columbia, together with a penalty not exceeding $25 for each offense, with costs, and when so recovered the amount shall be deposited to the credit of the District of Columbia. [3] The cited annotation has since been superseded by a similarly titled annotation, 82 A.L.R.2d 998 (1962). The superseding annotation, which cites Radinsky, discloses that the basic rule remains the same, except arguably in West Virginia. Id. at 1004; see Rich v. Rosenshine, 131 W.Va. 30, 45 S.E.2d 499 (1947). See also 6 EUGENE McQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 22.12, at 417 (3d ed. 1988): The violation of an ordinance requiring abutting owners of property fronting on a street to remove ice and snow from the walks in front of their premises does not constitute actionable negligence and is not sufficient evidence of negligence to entitle the plaintiff to recover in a suit for damages against the owner of the property for injuries received from a fall on the sidewalk, although there is authority to the contrary. (Footnotes omitted). As in the case of the superseding annotation, the only "authority to the contrary" cited by McQUILLIN is from West Virginia. [4] Counsel for Louis & Alexander contend that Norville and Hecht Co. v. Hohensee also constitute binding precedent in their favor. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971). This contention is erroneous. In Norville, "the appellant by his counsel expressly stated that he did not base his claim for a recovery upon the so-called `Snow Law' of the District of Columbia," and the court therefore decided the case on the basis of common law principles. 59 U.S.App.D.C. at 30, 32 F.2d at 421. In Hohensee, the snow removal statute was not mentioned at all in the opinion of the court. These decisions therefore have no precedential significance with respect to the proper construction of the legislation on which Ms. Albertie has predicated her suit. [5] The court relied on Pessagno v. Euclid Investment Co., 72 App.D.C. 141, 112 F.2d 577 (1940), a landlord-tenant case which likewise did not involve the snow removal law. [6] In further support of our conclusion, we note again that in Norville, the court held that a storeowner owes no greater duty to customers than to pedestrians in relation to the removal of snow from the sidewalk. 59 App.D.C. at 30, 32 F.2d at 42. The snow removal statute is silent with respect to customers and pedestrians, and we discern no sound reason for concluding that this legislation effected some unarticulated differential as between the two categories of prospective plaintiffs. [7] Ms. Albertie's brief in this court describes the person who allegedly made the remark as a "manager," but her deposition testimony on the subject is lacking in clarity.

4 A.3d 1057 (2009) Lawrence J. BARNETT, Christine Cookenback, James M. DeFeo and Madlin Laurent, Appellee v. SKF USA, INC., Appellant. No. 282 EDA 2008. Superior Court of Pennsylvania. Argued December 2, 2008. Filed July 13, 2009. Reargument Denied September 21, 2009. *1058 Geoffrey L. Beauchamp, Willow Grove, for appellant. No appellee brief filed. BEFORE: PANELLA, SHOGAN, and ALLEN, JJ. OPINION BY PANELLA, J.: ¶ 1 Appellant, SKF USA, Inc. ("SKF"), appeals the order issued on October 31, 2007, by the Honorable Bernard A. Moore, Court of Common Pleas of Montgomery County.[1] After careful review, we affirm. ¶ 2 Appellees, Lawrence J. Barnett, Christine Cookenback, James M. DeFeo and Madlin Laurent ("Appellees"), are all former salaried, non-union employees of the Philadelphia plant of SKF, which was part of the MRC Bearings Division ("the division") located in King of Prussia, Pennsylvania. SKF maintained a written pension plan governed by the Employment Retirement Income Security Act ("ERISA")[2] for its salaried employees, Appellees, at the Philadelphia plant. Under SKF's non-union pension plan, any salaried employee who reached the age of 45 years and had 20 years of service with SKF at the time of termination was entitled to receive immediate vesting of pension benefits. None of the Appellees had reached the age of 45 or, in the alternate, completed 20 years of service at the time their employment with SKF terminated. ¶ 3 On September 29, 1993, Appellees instituted a cause of action for breach of an oral agreement against their employer, SKF, alleging that SKF requested that they continue working at its Philadelphia plant and forego seeking alternate employment until the plant closed later that year in December, 1991. Appellees specifically contended that, in exchange for their continued employment, SKF orally[3] offered *1059 them specific termination rights equal to that which was offered to the union members of SKF when the plant closed in 1991, terms which Appellees accepted.[4] Appellees thereafter sought to confirm the promised benefits via a written memorandum issued to a SKF Plant Manager, Tony Del Signore, on June 17, 1991. However, upon the closing of the Philadelphia division, SKF failed to provide Appellees with the promised severance benefits and litigation subsequently ensued. ¶ 4 Thereafter, SKF filed preliminary objections to the complaint, challenging the Appellees' cause of action on grounds of preemption under ERISA, which were denied. SKF subsequently submitted two consecutive motions for summary judgment, again opposing the instant action on the basis of preemption under ERISA; both motions for summary judgment were summarily denied. Thereafter, SKF instituted this timely appeal. ¶ 5 On appeal, SKF raises the following single issue for our consideration: WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING SKF'S RENEWED MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT THE APPELLEES' BREACH OF CONTRACT CLAIM WAS NOT PREEMPTED, AND THEREFORE NOT BARRED, BY ERISA? Appellant's Brief, at 3. ¶ 6 Our standard of review and the general rule for reviewing a lower court's grant or denial of summary judgment is as follows: Our review on an appeal from the grant of a motion for summary judgment is well-settled. A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary. In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Evans v. Sodexho, 946 A.2d 733, 737-38 (Pa.Super.2008) (internal citations and quotation marks omitted). ¶ 7 Finally, "[a]s the issue as to whether there are no genuine issues as to *1060 any material fact presents a question of law, our standard of review is de novo; thus, we need not defer to the determinations made by the lower tribunals." Scalice v. Pennsylvania Employees Benefit Trust Fund, 584 Pa. 161, 172, 883 A.2d 429, 435 (2005) (citation omitted). Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. See id. (citation omitted). ¶ 8 SKF contends that the Appellees' breach of oral contract cause of action is governed by the holding set forth by the United States Court of Appeals for the Third Circuit Court in Hooven v. Exxon Mobil Corp., 465 F.3d 566 (3rd Cir.Pa. 2006), and is thereby preempted and barred by ERISA. Prior to resolving this issue, we turn first to the pertinent law concerning preemption. ¶ 9 Section 1144 of Title 29, of the United States Code, provides that "[ERISA] shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) ... and not exempt under section 1003(b) of this title." See 29 U.S.C.A. § 1144(a). The central question in applying this provision is the meaning assigned to the language "relate to," as preemption can only occur if the state law does, in fact, relate to an employee benefit plan falling under this section. See Greenblatt v. Budd Co., 666 F.Supp. 735, 741 (E.D.Pa.1987). Thus, "[s]tate laws that make reference to, or otherwise attempt to or succeed in regulating or administering employee pension plans `relate to' ERISA and are accordingly preempted." See id. (citations omitted). ¶ 10 Our Supreme Court noted in Pappas v. Asbel, 564 Pa. 407, 412, 768 A.2d 1089, 1092 (2001), that "the Supremacy Clause of the United States Constitution... article VI, cl. 2, gives the United States Congress the power to preempt state law, and observed that in determining whether state law is preempted by federal law, we [are] to assume that the historic powers of the states are not superceded unless preemption is the clear and manifest purpose of Congress." See id. (emphasis added). The Pappas Court duly noted that "preemption does not occur... if the state law has only a tenuous, remote, or peripheral connection with covered plans, as in the cases with many laws of general applicability. . . ." See id., 564 Pa. at 412-13, 768 A.2d at 1092. Thus, in those cases where a state law or cause of action impacts upon ERISA in an indirect manner, that is, only tenuously or remotely, then preemption under ERISA is not warranted. ¶ 11 We agree with the trial court that the instant case presents the latter situation and conclude that Appellees' cause of action neither impacts upon the Appellees' employee benefit plan at issue here, or ERISA. As such, preemption of Appellees' cause of action under ERISA is clearly not required. ¶ 12 In Greenblatt, a matter factually similar to the case before this Court, the Eastern District Court of Pennsylvania found that a worker's claim, alleging that his employer misrepresented to him pension benefits that he was receiving under a pension plan would be made equal to those benefits available to comparable salaried management personnel under another pension plan, and that he relied on this misrepresentation to his detriment, was not preempted by ERISA. See id., 666 F.Supp. at 742. Central to the Eastern District Court's holding was the following findings: The cause of action for misrepresentation alleged by the plaintiff at Count II of his complaint should not be preempted because, simply put, the premise underlying *1061 this action was that plaintiff was deceived by the verbal statements made and the actions taken by his employer. That the subject of the deception concerned pension benefits is only incidental and not essential to the plaintiff's cause of action. Like promises for a raise in salary, a promotion, or the use of tickets to a baseball game, plaintiff's employer's promise to provide the plaintiff with certain benefits at some unknown time in the future, upon which plaintiff could reasonably rely, is the essence of the fraud alleged. That this action alleged at Count II of plaintiff's complaint does not "relate to" an employee benefit plan is supported also by the fact that the representations at issue were made by plaintiff's superiors, as his employers, and not as plan fiduciaries. Similarly, the misrepresentations at issue were made to plaintiff in the ordinary course of business and not in the course of administering a Budd Company pension plan. Moreover, if the plaintiff succeeds in proving these allegations, the compensatory damages would be paid directly to him by The Budd Company. There is no principled basis for the conclusion that compensatory damages should be paid out of any Budd Company employee pension benefit plan. Finally, the case law suggests and this Court is persuaded that the plaintiff would be without a remedy under ERISA . . . As such, it would defy logic to presume that Congress intended to preempt the common law action of fraud in a situation of this type ... Accordingly, the plaintiff states a valid cause of action under Pennsylvania law for fraud. See id. (citations omitted) (emphasis added). ¶ 13 Here, we note that, similar to the Greenblatt litigant, Appellees' claim that SKF breached its oral agreement to increase their severance benefits in exchange for their continued employment until the company ceased its Philadelphia division's operations only incidentally involves Appellees' pension benefits plan. That Appellees' action does not "relate to" an employee benefit plan is supported by the fact that the oral contract to pay enhanced severance benefits was made by one of Appellees' superiors, as their employer, and not as a plan fiduciary. Similarly, the oral contract at issue was made to the Appellees in the ordinary course of business and not in the course of administering an SKF pension plan. Although Appellees' complaint references SKF's separate pension plans with its union versus non-union employees, we agree with the trial court that this distinction was presented by Appellees only to demonstrate the company's long standing practice of providing non-union employees with the same or enhanced benefits than those provided to union employees. Appellees' breach of contract claim is, at most, only tenuously related to their employee benefit plan. ¶ 14 Further, we do not agree with SKF that Hooven controls our decision on the issue presented for our consideration or is even binding authority upon this Court, as we note that decisions of the courts of appeals are merely persuasive authority on federal questions where the United States Supreme Court has not yet issued a ruling. See Chiropractic Nutritional Associates, Inc. v. Empire Blue Cross & Blue Shield, 447 Pa.Super. 436, 669 A.2d 975, 979-80 (1995) ("The decisions of the federal district courts and courts of appeal, including those of the Third Circuit Court of Appeals, are not binding on Pennsylvania courts, even when a federal question is involved."). *1062 ¶ 15 Contrary to the instant case, the Hooven case involved claims for breach of fiduciary duty specifically brought under ERISA, equitable estoppel, procedural and reporting violations, as well as an ancillary federal breach of contract claim based on the plaintiffs' alleged detrimental reliance upon a severance document promising them enhanced severance benefits following their company's merger. See Hooven, 465 F.3d at 571. In that case, the district court, following a lengthy trial, found that the litigants' fiduciary duty claim failed due to the lack of evidence supporting their allegation that they had detrimentally relied on the initial SPD [summary plan description], finding that the litigants had continued to work for their employer in order to have the opportunity to work for the new company following the merger, not to collect enhanced severance benefits. See Hooven v. Exxon Mobil Corp., 2004 WL 724496, at *13. The district court further found that the litigants' equitable estoppel and reporting and disclosure violation claims failed due to the absence of extraordinary circumstances, i.e., acts of bad faith on the part of the employer with respect to changes in the plan. See id., at *17. Finally, although the district court found that the litigants had not asserted a valid claim for recovery of benefits under ERISA, the court nonetheless permitted the claim as "arising out of a unilateral contract," finding that the employer's obligation became fixed when the Plaintiffs accepted the CIC Plan [change-in-control retention/severance plan] by continuing to work for Mobil up until and after the merger. See id., at *17-18. ¶ 16 On appeal, in denying the Hooven litigants a recovery for enhanced benefits under a unilateral contract theory arising from the underlying ERISA claim, the Third Circuit noted the following: It is one thing to acknowledge that contract principles apply in ERISA cases. Clearly, they do. Generally, "breach of contract principles, applied as a matter of federal law, govern" claims for benefits due under an ERISA plan. Kemmerer v. ICI Americas Inc., 70 F.3d 281, 287 (3rd Cir.1995). However, it is quite another to say that an employee's severance benefit can be grounded in, and enforceable based on, a unilateral contract outside of ERISA's remedial scheme. Although this approach is intuitively appealing, and seemingly appropriate in this complex area, we conclude that it is inconsistent with the basic framework of ERISA and, therefore, cannot be. We begin with a fundamental premise: every claim for relief involving an ERISA plan must be analyzed within the framework of ERISA. The District Court found, and the parties agree, that the CIC Plan is an "employee welfare benefit plan" covered by ERISA. Hooven, 2004 WL 724496, at *17 (citing 29 U.S.C. § 1002(1)). ERISA is a "comprehensive statute for the regulation of employee benefit plans," Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004); it is intended "to occupy fully the field of employee benefit plans," Reichelt v. Emhart Corp., 921 F.2d 425, 431 (2d Cir. 1990). The District Court found that Plaintiffs' claim was not based on ERISA, but nevertheless allowed it as arising out of a unilateral contract, whereby Mobil's obligation became fixed when Plaintiffs accepted the CIC Plan by continuing to work for Mobil up until and after the merger. Unfortunately for Plaintiffs, this contract-based construct just does not fit within the ERISA structure. ERISA requires "that any contractually accrued rights be discernible from the written terms of the formal ERISA plan *1063 documents themselves." Carr v. First Nationwide Bank, 816 F.Supp. 1476, 1490 (N.D.Cal.1993). Although we occasionally employ unilateral contract concepts in ERISA cases, we do so only where "the asserted unilateral contract is based on the explicit promises in the ERISA plan documents themselves." Id. at 1490-91. Unilateral contract principles may not operate to create extra-ERISA causes of action for plan benefits. Hooven, 465 F.3d at 572-73. ¶ 17 After reviewing the facts and principles cited in Hooven, we find that that decision is factually distinct from the instant case. Appellees have not asserted any claim under ERISA, nor have they brought their oral breach of contract cause of action as an ancillary action to an ERISA claim as done in Hooven. Indeed, had Appellees attempted the latter, their oral breach of contract action would have undoubtedly failed, as all claims brought under ERISA must be based upon a writing. See 29 U.S.C.A. § 1102(a)(1). ¶ 18 For the reasons we have discussed above, we conclude that the trial court neither committed an error of law nor abused its discretion in denying SKF's motion for summary judgment on grounds that Appellees' breach of oral contract cause of action is only tenuously related to an ERISA plan, and is therefore not preempted by 29 U.S.C.A. § 1144. ¶ 19 Order affirmed. Jurisdiction relinquished. ¶ 20 Judge SHOGAN notes her dissent. NOTES [1] SKF purports to appeal from the trial court's orders filed on October 31, 2007 and November 27, 2007, denying summary judgment, and the corresponding opinion of the trial court filed on April 3, 2008. However, we note that it was the October 31, 2007 order denying SKF's renewed motion for summary judgment which supported SKF's petition for permission to appeal to this Court, which permission was summarily granted on February 6, 2008. See Pa.R.A.P., Rule 312, 42 PA. CONS.STAT.ANN. (an appeal from an interlocutory order may be taken by permission pursuant to Appellate Rule 312). [2] 29 U.S.C. § 1001 et seq. [3] Appellees contend that the oral promise concerning the early pension vesting rights was initially communicated to one of them, James M. DeFeo, via a telephone conversation he had with SKF Human Resources Director, James Erven, during the week of June 7, 1991, wherein Mr. Erven purportedly stated, "If the union gets it, you'll get it." See Deposition of James M. DeFeo, 11/20/96, at 33. [4] SKF also employed hourly, union employees from the United Steel Workers of America Local 2898 ("union employees"). The union employees' wages, hours and other terms of employment were governed by a collective bargaining agreement between the Union and SKF. After announcing its impending closing in January 1991, SKF entered into an additional agreement (entitled "Effects Bargaining") which permitted union employees who had not reached 45 years of age or 20 years of service to "add" to their age or service through the expiration of the collective bargaining agreement in 1993, denoted by the parties as the "creeps provision." Appellees' nonunion pension plan contained no similar provision. See Complaint, paragraphs 8-14 (R. 7a-9a).

995 S.W.2d 764 (1999) Sergio GALVAN, Appellant, v. The STATE of Texas, Appellee. No. 04-98-00347-CR. Court of Appeals of Texas, San Antonio. May 26, 1999. Tony Jimenez, III, San Antonio for appellant. *765 Daniel Thornberry, Asst. Criminal Dist. Atty., San Antonio, for appellee. Sitting: PHIL HARDBERGER, Chief Justice CATHERINE STONE, Justice SARAH B. DUNCAN, Justice. Opinion by: CATHERINE STONE, Justice. Sergio Galvan was arrested for driving while intoxicated and for consuming an alcoholic beverage while operating a motor vehicle. For the charge of consumption of an alcoholic beverage, Galvan paid a $96 fine in Municipal Court. Galvan filed a special plea of double jeopardy in district court, arguing that the State should not be allowed to pursue the DWI prosecution because he had already plead guilty to the consumption of alcohol charge. A written order was signed by the trial court granting his special plea and dismissing the charges with prejudice. No appeal was taken from this order. The case nonetheless proceeded as if the dismissal order had not been signed, and Galvan was convicted by a jury of driving while intoxicated, sentenced to ten years imprisonment, and fined $2,000. His sentence was suspended and he was placed on community supervision for ten years. On appeal, Galvan contends that the trial court did not have jurisdiction to convict him on the DWI offense and that DWI and consumption of an alcoholic beverage while operating a motor vehicle are the "same offense" for double jeopardy purposes. We disagree and affirm the judgment of the trial court. JURISDICTION OF THE TRIAL COURT The record reveals that Galvan filed a "Special Plea of Double Jeopardy" requesting that the matter be set for trial for a full evidentiary hearing and the motion to dismiss the cause with prejudice be granted. Galvan argued that the State intended to rely on conduct from the prior offense of consumption of alcoholic beverage while driving, to which Galvan had plead guilty and already been assessed a fine of $96. While the transcript from the Double Jeopardy hearing indicates that the court orally denied the motion, the clerk's record shows that the court signed a written order with the "granted" line checked off. Several months later, Galvan filed a "First Amended Special Plea of Double Jeopardy" which contained the same argument as his first plea, but which was supported by affidavit. At the hearing conducted that day, appellant's counsel stated that the court had already denied the initial motion for double jeopardy, but that he was presenting the second motion only to perfect the record. The record indicates that the court denied this second plea. The State contends, and we agree, that the trial court's granting of the original plea was simply a clerical error. We recognize that, generally speaking, written findings control over oral announcements. See Eubanks v. State, 599 S.W.2d 815, 817 (Tex.Crim.App.1980). However, every piece of evidence in the record indicates that the oral pronouncement was the correct manifestation of the court's intention. See Coffey v. State, 979 S.W.2d 326, 328-29 (Tex.Crim.App.1998) (holding that when there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls). The record of the hearing on Galvan's double jeopardy plea reveals that the judge denied the plea.[1] At another pretrial hearing, Galvan's attorney conceded that the motion had been denied and that he made this second plea simply to perfect the record.[2] Galvan's amended plea of double jeopardy *766 was denied both orally and through written order. All the parties proceeded as if the plea had been denied. Consequently, we hold that the trial court did not lack jurisdiction over the trial and that the trial court's denial of the first plea was simply a clerical error. Galvan's first point of error is overruled. DOUBLE JEOPARDY Galvan contends that the offense of driving while intoxicated and consumption of an alcoholic beverage while operating a motor vehicle fail the Blockburger test. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under the Blockburger test, different offenses are defined if each of the two offenses requires proof of an additional fact which the other does not. See id.; Luna v. State, 985 S.W.2d 128, 130 (Tex. App.-San Antonio 1998, pet. ref'd). The elements of driving while intoxicated include: 1) a person; 2) is intoxicated; 3) while operating a motor vehicle; 4) in a public place. See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp.1999). Consumption of an alcoholic beverage while operating a motor vehicle is committed if: 1) a person; 2) consumes; 3) an alcoholic beverage; 4) while operating a motor vehicle; 5) in a public place and is observed doing so by a peace officer. See TEX. PENAL CODE ANN. § 49.04 (Vernon 1994). Consumption of an alcoholic beverage and being intoxicated are two separate elements of these offenses. Intoxication, which can be caused by alcohol, drugs, or a controlled substance, can be shown by a percent alcohol concentration or loss of the normal use of physical faculties. See TEX. PENAL CODE ANN. § 49.01(2) (Vernon 1994). Consumption of an alcoholic beverage does not necessarily rise to the level of intoxication, and intoxication does not necessarily include the consumption of an alcoholic beverage while driving. "Consumption of alcohol while driving cannot be established by proof of the same or less than all the facts required to establish the offense of DWI," or vice versa. See McDonald v. State, 863 S.W.2d 541, 544 (Tex.App.-Houston [1st Dist.] 1993, no pet.) (determining that consumption of alcohol while driving is not a lesser included offense of DWI under Texas Code of Criminal Procedure article 37.09 because it does not require proof of the same or less than all the facts required to establish DWI). Thus, each offense requires proof of an additional fact which the other does not. Galvan's second point of error is overruled. INSTRUCTION TO THE JURY In the trial court's charge to the jury, the court stated: "In the course of deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous." Galvan contends that this instruction was a method to control the jury's manner and form of deliberations in violation of TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon Supp.1999). Galvan believes that this instruction "effectively nullified the views of less persuasive jurors who were unable to mentally spar point for point with more persuasive jurors in the deliberation room." We disagree. The State correctly notes that charge error should be analyzed in light of the entire charge, not isolated portions. See Inman v. State, 650 S.W.2d 417, 419 (Tex. Crim.App.1983). Review of the entire charge leads us to the conclusion that the charge was not inappropriately coercive.[3]*767 This court recently addressed a different portion of a similar charge in Garza v. State and concluded that "the remainder of the jury charge, including the admonishment that `no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict,' eliminated any potential for coercion." See Garza v. State, 974 S.W.2d 251, 256 (Tex.App.-San Antonio 1998, pet. ref'd). We find this reasoning equally applicable in the present case and hold that the trial court did not err in giving this charge to the jury. Galvan's final point of error is overruled. The judgment of the trial court is affirmed. NOTES [1] At the conclusion of the hearing the judge stated, "I think you can be convicted of both offenses, two distinct offenses. One can be consuming alcohol in a vehicle and not be DWI, and vice versa. So, your request is denied." [2] Appellant's counsel stated at the pretrial hearing, "Judge, we've filed an Amended Plea of Double Jeopardy in this case. The Court has already denied our initial Motion for Double Jeopardy. And the only reason why I'm presenting this Motion at this time is to perfect the record." [3] The three paragraphs objected to are as follows: "In order to return a verdict, each juror must agree thereto, but jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment. "Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors. "In the course of deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous. However, no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict."

84 F.3d 1447 318 U.S.App.D.C. 73, Util. L. Rep. P 14,104 OGLETHORPE POWER CORPORATION, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent.Georgia Power Company, Intervenor. No. 95-1482. United States Court of Appeals,District of Columbia Circuit. Argued May 9, 1996.Decided June 4, 1996. [318 U.S.App.D.C. 74] On Petition for Review of Orders of the Federal Energy Regulatory Commission. William D. DeGrandis, Washington, DC, argued the cause and filed the briefs, for petitioner. Joel M. Cockrell, Attorney, Federal Energy Regulatory Commission, argued the cause, for respondent. Jerome M. Feit, Solicitor, Washington, DC, Joseph S. Davie, Deputy Solicitor, and Edward S. Geldermann, Attorney, Bethesda, MO, were on the brief. Robert H. Forry argued the cause, for intervenor, with whom Benjamin L. Israel, Atlanta, GA, was on the brief. Before: EDWARDS, Chief Judge, GINSBURG and ROGERS, Circuit Judges. GINSBURG, Circuit Judge: 1 Oglethorpe Power Corp. petitions for review of two orders of the Federal Energy Regulatory Commission dismissing Oglethorpe's complaint against Georgia Power Co. See 69 FERC p 61,208 (1994); reh. denied 72 FERC p 61,065 (1995). Oglethorpe claims that (1) Georgia Power violated the filed-rate doctrine when it charged Oglethorpe for certain reserve capacity in contravention of the terms of Georgia Power's tariff, and that (2) in the alternative, if Georgia Power properly charged Oglethorpe for this capacity, then Georgia Power must share with Oglethorpe the settlement it received from a third party that breached its contractual obligation to purchase that same capacity from Georgia Power. We hold that (1) the FERC properly construed the governing tariff to permit Georgia Power to charge Oglethorpe for the additional reserve capacity, but that (2) the agency failed to give a reasoned basis for denying Oglethorpe's alternative claim to a share of the settlement that Georgia Power received in respect of that capacity. I. Background 2 In 1975 Georgia Power filed with the Commission (then the FPC) a tariff for the wholesaling [318 U.S.App.D.C. 75] of power to partial requirements customers in the State of Georgia. This "PR Tariff" governs the rates that Georgia Power may charge such so-called "territorial" customers for four classes of power-generating capacity, as follows. 3 For each contract year Georgia Power must prepare a Resource Classification List (RCL) of all its territorial capacity resources and adjust the RCL as necessary during the course of the year in order to reflect any increase or decrease in such capacity. Georgia Power must also designate its capacity resources as "base," "intermediate," or "peaking" and determine each customer's requirements in each category according to the terms of the PR Tariff. "All other territorial resources," i.e., those not required by any customer, are designated "reserve resources," for which Georgia Power may impose a monthly charge of $4.40 per kilowatt. 4 In February 1982 Georgia Power entered into an agreement to sell Gulf States Utilities Co., an off-system customer, a specific quantity of power (capacity and energy) from certain of its generating units over the next ten years. Under Commission policy Georgia Power could have required its partial requirements customers to pay for that capacity, provided that Georgia Power also credited them with the revenues generated by off-system unit power sales. Instead, however, Georgia Power and its territorial customers opted out of this aspect of the regulatory regime pursuant to an agreement that Georgia Power would absorb the costs and retain the revenues associated with such off-system sales. This agreement is memorialized in a 1982 amendment to the PR Tariff and in a written agreement that the parties filed with the FERC, which together constituted the filed rate for Georgia Power's sales to Oglethorpe when Gulf States defaulted on its obligation to pay Georgia Power in 1986. 5 In 1988 Gulf States, which was approximately $350 million behind in payments to Georgia Power and its affiliates, reaffirmed its previously stated intention not to make further payments because unforeseeable events had reduced its capacity requirements. In August of that year the FERC, at Georgia Power's request, permitted Georgia Power to suspend service to Gulf States without waiving its "legal rights, remedies and claims for damages available against Gulf States"; in the FERC's view, that is, the suspension of service did not terminate the contract. Southern Company Services, Inc., 44 FERC p 61,290 (1988). 6 Georgia Power then "recalled", added to the RCL, and for the remainder of the contract period (1988-92) charged its territorial partial-requirements customers for, the capacity it had previously dedicated to serving Gulf States. Meanwhile, in 1991 Gulf States paid Georgia Power approximately $95 million to settle its breach of contract claim; the FERC approved the settlement and terminated the contract between Georgia Power and Gulf States. Although Oglethorpe had by then paid Georgia Power $12 million in respect of capacity that Gulf States had been obligated to purchase between 1988 and 1992, Georgia Power refused to credit any portion of the settlement proceeds to Oglethorpe or its other territorial customers. Oglethorpe complained to the Commission, which upheld Georgia Power's position, and then petitioned this court for review of the agency's decision. II. Analysis 7 Oglethorpe presses two claims here. First, the petitioner maintains that Georgia Power violated the filed-rate doctrine when it charged Oglethorpe for the capacity it had reallocated from Gulf States to the RCL; the gravamen of this claim is that the reallocation contravened the terms of the PR Tariff and the 1982 agreement between Georgia Power and its partial-requirements customers. On this issue we affirm the Commission substantially for the reasons stated in its orders. There is no need to burden the Federal Reporter by rehearsing the agency's opinion here. 8 Second, Oglethorpe maintains that if Georgia Power did properly charge it for the capacity re-allocated from Gulf States to the RCL, then Georgia Power must share with Oglethorpe the money it received from Gulf States in settlement of Georgia Power's contract claim relative to that capacity. The Commission did not dispute Oglethorpe's [318 U.S.App.D.C. 76] premise that, once Georgia Power started charging its territorial partial-requirements customers for the re-allocated capacity, it was obligated to share with those customers any revenues received in connection with an off-system sale of that capacity. Nonetheless, the Commission gave no fewer than three grounds for rejecting Oglethorpe's claim. Oglethorpe argues that none of the FERC's points provides a reasoned basis for denying Oglethorpe's claim to a share of the settlement. We agree. 9 First, the FERC regarded the Georgia Power-Gulf States settlement as providing compensation only for damages that Georgia Power incurred prior to August 1988; because the settlement was for an amount less than Gulf States owed Georgia Power for the power it had received through that date, the FERC concluded that Georgia Power received nothing in the settlement with respect to the capacity that it re-allocated to Oglethorpe (via the RCL) for the period from August 1988 to 1992. We see no rational basis for characterizing the settlement in this way. 10 Gulf States contracted to purchase from Georgia Power specified quantities of power each year from 1982 through 1992 but stopped making the contractually required payments in June 1986. Georgia Power therefore had a contract claim against Gulf States not only for the damages it incurred through August 1988 but also for the value of its expectancy with respect to the power it would have delivered during the remaining term of the contract, i.e., through 1992. Georgia Power compromised both aspects of its claim for $95 million. The FERC had no valid basis for treating the settlement as though the entire amount was paid to settle the claim for the early years and none was paid to settle the claim for the later years. That the settlement was for less than Gulf States owed for power when the FERC suspended Georgia Power's duty to perform is immaterial in the absence of any reason either to doubt the sufficiency of Georgia Power's claim to damages beyond that time or otherwise to attribute the entire settlement to one aspect of Georgia Power's claim. 11 As an alternative reason for rejecting Oglethorpe's claim to a share of the settlement proceeds, the FERC stated that 12 even if the Gulf States contract never had been suspended, the unit sale nevertheless was scheduled to end in 1992, prior to the filing of Oglethorpe's complaint. Assuming, arguendo, that Oglethorpe's arguments for refunds were otherwise persuasive, we lack the authority to order retroactive refunds in these circumstances. 13 69 FERC p 61,208 at 61,826/2. In its brief before this court the FERC further explains that permitting Oglethorpe to recover a share of the settlement would constitute retroactive ratemaking because Georgia Power received the settlement "to cover a particular period of time, prior to July 1988, during which [the PR Tariff] specifically barred Oglethorpe from sharing in any revenues received by Georgia Power attributable to its [off-system unit power] sales." 14 As should be apparent, this purportedly alternative reason for rejecting Oglethorpe's claim to a share of the settlement proceeds likewise depends upon treating the entire settlement as compensation for damages that Georgia Power suffered before it re-allocated capacity from Gulf States to its territorial customers. Because the FERC's first argument fails, so must this one. 15 Finally, in its order denying rehearing, the FERC offered yet another reason for rejecting Oglethorpe's claim: Oglethorpe had, in effect, already benefitted from the settlement because, to the extent that Georgia Power might have been required to pass the proceeds of the settlement along to its territorial customers, Georgia Power could in turn have raised its rates to recoup that amount from them; when the transactions were complete, the incidence of the burden associated with the unused capacity would be unchanged. 72 FERC p 61,065 at 61,320-21. In its brief to the court the FERC does not defend this aspect of its decision but Georgia Power, as Intervenor, persists in trying. 16 Georgia Power points out that although it charged Oglethorpe for additional reserve capacity at the tariffed rate, it did not raise any of the tariffed rates to reflect the full costs [318 U.S.App.D.C. 77] associated with that capacity. Had it done so, claims the Intervenor, it would have been entitled either to keep the settlement proceeds and reduce by that amount the costs it passed along to the partial requirements customers, or to pass along both the settlement proceeds and the full costs. The parry to this thrust, as the FERC effectively concedes, is that Georgia Power could have obtained such a rate increase only if it had prevailed in a proceeding under § 205 of the Federal Power Act, 16 U.S.C. § 824d. In that proceeding Georgia Power would have had to show that the unused capacity could be properly charged to Oglethorpe as a "used and useful" addition to Georgia Power's territorial rate base. Town of Norwood v. FERC, 80 F.3d 526, 531 (D.C.Cir.1996). Georgia Power might or might not have been able to make that showing; the quoted phrase is a term of art and its application to the capacity here in dispute cannot be assumed. In any event, Oglethorpe would have had an opportunity to oppose the putative rate increase--and Georgia Power would have had the burden of persuasion--in a § 205 proceeding. 16 U.S.C. 824d(e) ("At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate is just and reasonable shall be upon the public utility"). The Intervenor's argument is, therefore, entirely too speculative to carry the day in this very different procedural context. III. Conclusion 17 For the reasons set out above, we affirm the FERC's orders with respect to the $12 million that Georgia Power charged Oglethorpe in connection with capacity re-allocated from Gulf States to the RCL, and vacate the orders insofar as they deny Oglethorpe's claim for a share of the settlement that Georgia Power received from Gulf States. Accordingly, we remand the case so that the FERC may determine the share of such proceeds to which Oglethorpe is entitled. 18 So ordered.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-03-00032-CV ______________________________ ROBIN GWYNNE RUSS, Appellant   V.   TITUS HOSPITAL DISTRICT, D/B/A TITUS REGIONAL MEDICAL CENTER, PEGGY BURGE, R.N., RACHEL MEYERS, R.N., AND DR. MARK E. QUIRING, Appellees                                                On Appeal from the 76th Judicial District Court Titus County, Texas Trial Court No. 29561                                                   Before Morriss, C.J., Ross and Carter, JJ. Opinion by Justice Carter O P I N I O N             Robin Gwynne Russ appeals from a judgment dismissing her medical malpractice suit against Titus Hospital District, d/b/a Titus Regional Medical Center (the Hospital); Peggy Burge, R.N.; Rachel Meyers, R.N.; and Dr. Mark E. Quiring (collectively referred to as Appellees). Russ sustained injuries from a fall out of a hospital window. According to her allegations, the fall resulted from negligence of the various procedures employed by the Appellees while Russ was under their care awaiting transfer to a psychiatric hospital. Appellees moved to dismiss the case alleging the expert report was not timely filed and that it did not comply with the statutory requirements for an expert report. The trial court dismissed the suit. We affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion.             Russ raises two issues on appeal. First, she argues the trial court abused its discretion in failing to allow an additional thirty days in which to file an expert report. Second, she contends the trial court erred in granting the motion to dismiss because the report was sufficient under Article 4590i.             On or about December 3, 1999, Russ sustained injuries from a fall out of a window. Russ filed suit against numerous parties, including the Hospital, on November 30, 2001. The petition alleged the Hospital was negligent in its treatment of Russ. Russ failed to file an expert report by May 29, 2002 (180 days after filing suit). On July 1, 2002, Appellees filed a motion to dismiss. On the day of the hearing, July 22, 2002, but before the hearing, Russ filed a motion to extend the deadline until August 15, 2002. The trial court held the hearing, but the record does not contain a ruling on either the motion to dismiss or the motion to extend the deadline. On August 16, 2002, Russ filed a second motion to extend requesting the deadline be extended to August 20, 2002, which was twenty-nine days after the hearing. On August 20, 2002, Russ provided Appellees a copy of the expert report by fax. Appellees filed a motion to exclude Russ' report due to failure to comply with the deadline and for failure to meet the requirements of the statute. On October 2, 2002, a hearing was held and the trial court dismissed the lawsuit. Russ now appeals. Timeliness of Motion to Extend Time             In her first point of error, Russ argues the trial court erred in failing to grant an additional thirty days in which to file an expert report. We review the trial court's ruling on a motion for extension of time to file an expert report under an abuse of discretion standard. See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). An abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. See Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex. App.—Texarkana 2003, pet. denied). A trial court will be deemed to have acted arbitrarily and unreasonably if it could have only reached one decision, yet reached a different decision. Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex. App.—Texarkana 2003, no pet.). "[A] clear failure by the trial court to . . . apply the law correctly will constitute an abuse of discretion, . . . ." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).             Article 4590i, Section 13.01(d) requires a plaintiff asserting a claim against a healthcare provider or physician to submit an expert report, along with the expert's curriculum vitae, no later than the 180th day after filing suit. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d). The Act requires an expert report to provide "a fair summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6) (repealed 2003).             Article 4590i, Section 13.01 provides two methods by which a claimant can receive an extension to the 180-day deadline. Under Section 13.01(f), "[t]he court may, for good cause shown after motion and hearing, extend any time period specified in Subsection (d) of this section for an additional 30 days. Only one extension may be granted under this subsection." Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(f) (repealed 2003). Section 13.01(f) has been interpreted by this Court to be directory rather than mandatory. Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (Tex. App.—Texarkana 1999, pet. denied). Under the second method, found in Section 13.01(g), if "the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection." Section 13.01(g) has been interpreted to be mandatory on a finding that the failure was a result of accident or mistake. Sutherland, 107 S.W.3d at 789. An extension under Section 13.01(g) can be obtained for either failure to file a report or for an inadequate report, provided the failure was not intentional or a result of conscious indifference. In re Morris, 93 S.W.3d 388, 391 (Tex. App.—Amarillo 2002, no pet.).             The Appellees contend the expert report is untimely because the report was not filed within 210 days of the filing of the suit. Russ' first motion for extension of the deadline was filed on July 22, 2002. This motion requested an extension of the deadline until August 15, 2002, and was entitled "MOTION TO EXTEND TIME FOR FILING UNDER 4590(i) SECTION 13.01(F)." An extension under Section 13.01(f) extends the 180-day period described in Section 13.01(d) to 210 days. Although this Court has noted the motion to extend the deadline can be filed at any time, the extension begins running at the end of the original 180-day time period in subsection (d) and lasts until 210 days from the filing of the suit. See Roberts, 988 S.W.2d at 402. Under an extension granted pursuant to Section 13.01(f), the expert report would have been required to be furnished to the opposing parties within 210 days of the filing of the suit. If the extension had been requested under Section 13.01(f), the expert report would have been required to be furnished to the Hospital and other defendants by June 28, 2002. The Appellees contend that, because the expert report was not furnished to the opposing parties until August 20, 2002, the expert report was not timely.             Even though the title refers to Section 13.01(f), our conclusion is that the substance of Russ' motion requested the extension under Section 13.01(g). In the motion and at the hearing, the parties recited the standards of Section 13.01(g) instead of Section 13.01(f) to the trial court. In the body of the motion, it is alleged that co-counsel was in trial and that counsel did not realize it was his responsibility to file the expert report. Such a statement is consistent with a showing of accident or mistake. In addition, the body of the motion states, "[t]his motion is timely since filed prior to the hearing on Defendants [sic] motions." This statement asserts the timeliness requirement of Section 13.01(g) rather than Section 13.01(f).             Further, at the hearing on July 22 at which the court considered the first motion to extend, the Hospital and Russ both argued under the standards of Section 13.01(g). Counsel for the Hospital stated: I think that the standard is in terms of when a motion like this for an extension is to be granted is when there's a showing of accident or mistake . . . I'm not sure that there's any showing of accident or mistake on the part of Mr. Cooksey's part [sic] . . . I think they need to show some sort of accident or mistake on Mr. Cooksey's part to justify an extension . . . . "Accident or mistake" is the standard for a motion under Section 13.01(g), not Section 13.01(f), which requires "good cause." Shortly thereafter, Russ' counsel made the assertion to the trial court that "a motion to extend time is timely filed if it's filed before the time of the hearing on their motion to dismiss." As discussed above, this is the standard for Section 13.01(g) rather than Section 13.01(f). At this point, the trial court inquired if "the statute uses the language 'accident or mistake.'" The Hospital's counsel responded that the statute says there cannot be "conscious indifference," and Russ' counsel agreed. We not that counsel for Dr. Quiring stated the standard was "good cause," which is the standard under Section 13.01(f).             A motion should be construed by its substance to determine the relief sought, not merely by its form or caption. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999). Because the motion contained allegations consistent with showing accident or mistake, contained the time standards for Section 13.01(g)—not Section 13.01(f), and at the hearing, it was primarily treated by counsel and the trial court in terms unique to Section 13.01(g), we find the motion is one for extension under Section 13.01(g).             The next question is whether the first motion to extend was timely filed. The first motion for extension was filed before the hearing. A motion under Section 13.01(g) "shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section." Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g) (repealed 2003). A hearing on the Appellees' motion to dismiss under Section 13.01(e) was held on July 22, 2002. On the day of the hearing, July 22, 2002, but before the hearing, Russ filed the first motion to extend. Therefore, the first motion to extend was timely filed under Section 13.01(g).             Next, we must consider whether Russ demonstrated that she was entitled to an extension. Russ had to prove that the failure "was not intentional or the result of conscious indifference but was the result of an accident or mistake." See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g) (repealed 2003). During the hearing, Russ' counsel offered to testify. The trial court stated he was "an officer of the court," which implied there was no need for counsel to take the stand or to be sworn. No objection was made by either defense counsel. Russ' counsel then explained: "we had some confusion about who was to do what, and I think Don was relying on me, and I was relying on Don, . . . ." In essence, counsel informed the court the two attorneys representing Russ erred in their communication as to which one of them had the responsibility to file the report.             We note that these statements were not made under oath. The general rule is that an attorney's statements must be under oath to constitute evidence. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). However, such error is waived by failure to object when the opponent knew or should have known an objection was required. Id.; Sutherland, 107 S.W.3d at 793; Knie v. Piskun, 23 S.W.3d 455, 463 (Tex. App.—Amarillo 2000, pet. denied). Similar to Branda, Knie, and Sutherland, the evidentiary nature of the statements was obvious, particularly after the attorney had offered to take the witness stand. We conclude the failure of either defense counsel to object waived the requirement that the statement be made under oath.             Further, the statements are evidence of an accident or mistake. The mistake in this case involved a failure of communication between co-counsel, which resulted in the requirement being inadvertently overlooked. As such, the mistake is a mistake of fact which clearly triggers the extension. As we noted in Sutherland, the accident or mistake need not necessarily be a good excuse, provided the act or omission was, in fact, an accident or mistake. Sutherland, 107 S.W.3d at 792. If the failure to file a report resulted from an accident or mistake, even negligence does not defeat a right to an extension. See id.; Roberts, 988 S.W.2d at 403.             Russ' counsel offered uncontroverted evidence that he did not act with conscious indifference or intentional disregard and that the failure resulted from an accident or mistake. Testimony by an interested witness may establish a fact as a matter of law if the testimony could be readily contradicted if untrue, and is clear, direct and positive, and there are no circumstances tending to discredit or impeach it. Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989). Since the evidence was uncontroverted, the trial court abused its discretion in not making a finding of accident or mistake.             The final issue under Russ' first point of error is whether the expert report was timely provided to the opposing parties under Section 13.01(g). Section 13.01(g) provides a thirty-day "floating window," which begins to run on a finding of accident or mistake. Because the extension is mandatory once it is established that the failure was not due to intentional or conscious indifference but rather an accident or mistake, the trial court must grant a thirty-day extension. Hanzi v. Bailey, 48 S.W.3d 259, 264 (Tex. App.—San Antonio 2001, pet. denied). Therefore, Russ should have received a thirty-day extension starting on July 22. Since the report was provided to the opposing parties on August 20, the expert report was timely within the thirty-day window.             When presented with uncontroverted evidence, the trial court should have found that the failure was not intentional or the result of conscious indifference, but rather due to accident or mistake. The motion was filed timely, and the expert report was timely provided to the opposing parties. Adequacy of Medical Report             In her second point of error, Russ contends the trial court erred in dismissing the suit. Dismissal under Article 4590i, Section 13.01(e) is treated as a sanction and is reviewed for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).             If a claimant furnishes a report within the time permitted, a defendant may file a motion challenging the report. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l) (repealed 2003). The trial court shall grant the motion only if it appears to the court, after hearing, that the report does not represent a good-faith effort to comply with the statutory definition of an expert report. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l); Palacios, 46 S.W.3d 877–78. In determining whether the report represents a good-faith effort, the trial court's inquiry is limited to the four corners of the report. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 878.             Although the trial court stated as its reason for dismissing the lawsuit the failure to meet "the 25 day extension," the order granting the dismissal did not specify a reason. A trial court cannot abuse its discretion if it reaches the right result, even for the wrong reason. See In re Acevedo, 956 S.W.2d 770, 775 (Tex. App.—San Antonio 1997, no pet.); Hawthorne v. Guenther, 917 S.W.2d 924, 931 (Tex. App.—Beaumont 1996, writ denied); Luxenberg v. Marshall, 835 S.W.2d 136, 141–42 (Tex. App.—Dallas 1992, no writ). Therefore, we must consider whether the suit should have been dismissed under the Appellees' alternative argument that the expert report was inadequate.             Omission of any of the statutory elements prevents the report from being a good-faith effort. Palacios, 46 S.W.3d at 879. A report that merely states the expert's conclusions about the standard of care, breach, and causation does not meet the statutory requirements. Id. These three separate requirements must all be present and described with sufficient specificity.             The expert report must set forth an applicable standard of care. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6). The standard of care for a physician is what an ordinarily prudent physician would do under the same or similar circumstances. Palacios, 46 S.W.3d at 880. Identifying the standard of care is critical: "[w]hether a defendant breached his . . . duty to a patient cannot be determined absent specific information about what the defendant should have done differently." Id. "While a 'fair summary' is something less than a full statement of the applicable standard of care and how it was breached, a fair summary must set out what care was expected, but not given." Id. In other words, the report must specify what the defendant should have done.             Second, the expert report must indicate how the defendant breached the standard of care. The report must indicate what actions taken by the defendant deviated from the standard of care. It must be a "fair summary" of the care which was expected, but not given. Id.             The expert's report must also contain information on causation. It is not enough for a report to contain conclusory insights about the plaintiff's claims. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Sutherland, 107 S.W.3d at 790. Rather, the expert must explain the bases of the statements and link his or her conclusions to the facts. Id.             Russ presented an expert report in letter form from Mitchell H. Dunn, M.D. The report, in its entirety, states as follows: It is my opinion, held to a reasonable degree of medical probability, that there were several deviations from the standard of care that directly contributed to the injuries sustained by Robin Russ on the evening of December 3, 1999.   Dr. Quiring deviated from the standard of care by failing to fully evaluate Ms. Russ' suicidal ideation and plans, and failing to inquire about the reason for her excessive serum Dilantin level. There is no evidence that he ever performed a mental status examination. It is evident that he believed the overdose was purposeful as his progress note read "Attention getting ? vs. suicidal attempts." Also, it is clear that Ms. Russ was being held in the hospital awaiting transfer to a psychiatric hospital, indicating that she required further care in a psychiatric hospital setting. Dr. Quiring was aware of this and should have been aware of the MHMR representative's concern that "client may try suicide again." He further deviated from the standard of care by failing to order one-to-one observation of Ms. Russ. Her numerous episodes of attempting to get out of bed unsupervised, her very unsteady gait, and her history of impulsive, potentially life-threatening behaviors necessitated either one-to-one observation or restraints that were escape-proof. Either one of these interventions would have prevented Ms. Russ' injuries.   The hospital deviated from the standard of care by placing a patient with potential suicidal ideation and recent suicidal behavior in a fourth floor room with unlocked windows. It is the standard of care that windows either be secured with metal screens that only staff can open, or be locked. If the patient has access to the window, a special difficult to break glass or Plexiglass should be used. It is simply unacceptable that patients of that type could have access to an open window. Obviously, if there was no access to an open window, Ms. Russ' injuries would not have occurred.   The nursing staff at Titus Regional Medical Center also deviated from the standard of care by failing to pass on critical information regarding Ms. Russ' ICU behavior, including the fact that her dilantin toxicity was purposeful, her degree of agitation, her multiple attempts to get out of bed unsupervised, and her need for one-to-one supervision. Then, even after witnessing her agitation, her unsteady gait, and the fact that "Patient almost went over other side of bed head first," the nurses on the med.-surg. floor failed to restrain Ms. Russ or pursue a higher degree of supervision for her. If they had, Ms. Russ' injuries would not have occurred. In addition, the nurses' notes reflect knowledge that Ms. Russ had cigarettes but would not give them up when the staff requested that she do so. If they had obtained a doctor's order to confiscate Ms. Russ' cigarettes, perhaps she would not have tried to go out on the ledge.             The plaintiff must only make a good-faith attempt to provide a fair summary of the expert's opinions in the expert report. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l); Palacios, 46 S.W.3d at 875. A "good-faith" effort requires that the report discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 875. "[T]o avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial." Id. at 879. The expert report is not required to prove the defendant's liability, but rather only provide notice of what conduct forms the bases of the plaintiff's complaints. "To constitute a 'good-faith effort,' the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the trial court to conclude that the claims have merit." Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.3d at 879).             Palacios makes it clear that a claimant must present specific evidence in a medical report because "knowing what specific conduct the plaintiff's experts have called into question is critical to both the defendant's ability to prepare for trial and the trial court's ability to evaluate the viability of the plaintiff's claims." Palacios, 46 S.W.3d at 877. The Texas Supreme Court stated that "[w]hether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently." Id. at 880. In other words, one must be able to determine from the report what the standard of care required to be done. This requires "specific information about what the defendant should have done differently." Id. However, the report is not required to use magical words. Wright, 79 S.W.3d at 53; Sutherland, 107 S.W.3d at 790. It is the substance of the opinions, not the technical words used, that constitutes compliance with the statute. Sutherland, 107 S.W.3d at 790.             Dr. Dunn's report states his opinions concerning the standard of care, the breach, and causation relating to the Hospital in these particulars: Standard of Care: It is the standard of care that windows either be secured with metal screens that only staff can open, or be locked. If the patient has access to the window, a special difficult to break glass or Plexiglass should be used. Breach: The hospital deviated from the standard of care by placing a patient with potential suicidal ideation and recent suicidal behavior in a fourth floor room with unlocked windows. Causation: Obviously, if there was no access to an open window, Ms. Russ' injuries would not have occurred.             The expert report clearly provides the standard of care for the Hospital. It provides that the standard of care is that the window should have been locked or secured with metal screens. This is a specific allegation which provides the Hospital with notice of the conduct complained of by Russ. The report then provides that the standard of care was breached by placing a suicidal patient in a fourth floor room with unlocked windows. Again, this statement is specific and informs the Hospital of the conduct of which Russ is complaining. Last, the report states that, if Russ did not have access to an open window, her injuries would not have occurred. It is undisputed that Russ' injuries resulted from falling out of a fourth story window. Obviously, a party cannot fall from a window if one cannot exit through the window. The substance of the report gives fair notice to the Hospital of the negligent conduct on which Russ relies and provides a sufficient basis for the trial court to conclude that the claims have merit.             Dr. Dunn's report states his opinions concerning the standard of care, the breach, and causation relating to Dr. Quiring in these particulars: Standard of Care: Her numerous episodes of attempting to get out of bed unsupervised, her very unsteady gait, and her history of impulsive, potentially life-threatening behaviors necessitated either one-to-one observation or restraints that were escape-proof. Breach: He further deviated from the standard of care by failing to order one-to-one observation of Ms. Russ. Causation: Either one of these interventions [one-to-one observation or escape proof restraints] would have prevented Ms. Russ' injuries.             In contrast to the report in Palacios, the expert report here provides the Appellees and the trial court with the specific information required. This report states that "[h]er numerous episodes of attempting to get out of bed unsupervised, her very unsteady gait, and her history of impulsive, potentially life-threatening behaviors necessitated either one-to-one observation or restraints that were escape-proof." (Emphasis added.) The term "necessitated" connotes that the actions which follow should have been done and were essential or vital. The expert stated that either one-to-one observation or escape restraints were necessary. It is clear from the report what the expert believes the physician should have done. Based on this information, the physician knew precisely the complained-of failures. Further, the trial court had information on which to evaluate the viability of Russ' claims. When discussing the actions of the physician , and his care to the patient, stating that a course of treatment is "necessitated" establishes the standard of care and complies with the requirements for a medical report.             Last, our analysis arrives at the conduct of the two remaining nurses, Peggy Burge, R.N., and Rachel Meyers, R.N. The expert report explains in detail the omissions of the nurses which he regarded as a breach of the standard of care. However, the report does not state what conduct was necessary or required and, therefore, gives no assistance to the trial court in attempting to evaluate the conduct of the nurses by the standard of care governing them. A trial court does not abuse its discretion in dismissing a suit in which one is required to infer the standard of care from the allegations in the expert report. Wright, 79 S.W.3d at 53. Thus, the trial court did not abuse its discretion in dismissing the suit as to the nurses because the standard of care must be inferred.             The report is a good-faith attempt to give a fair summary of the standard of care, the breach, and the cause of the injuries suffered as a result of that breach concerning the Hospital and Dr. Quiring. Because the report in this case is not conclusory and does not require inferences, the report adequately fulfills the requirements of the statute as it relates to the Hospital and Dr. Quiring.             Last, the Hospital argues in the alternative that the report is inadequate because Dr. Dunn is not a qualified expert and that he did not state whether his standard of care applies to a general hospital. We will briefly address these remaining arguments.             The Hospital contends the expert is not qualified because he has never worked in a general hospital. We disagree. Dr. Dunn meets the definition of an "expert" for the purpose of Section 13.01(r)(5)(A). Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(5)(A) (repealed 2003); see Tex. Rev. Civ. Stat. Ann. art. 4590i, § 14.01(a), Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2, 1995 Tex. Gen. Laws 988, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884. Dr. Dunn is a board certified psychiatrist who has served as acting clinical director and medical director of the forensic program of Terrell State Hospital since 1995.             The Hospital also argues that the expert report fails to specify whether this standard of care applies to a general hospital or simply to a psychiatric hospital. It is apparent that Dr. Dunn knew the Hospital was a general hospital because he stated Russ was awaiting transfer to a psychiatric hospital. "The standard of care for a hospital is what an ordinarily prudent hospital would do under the same or similar circumstances." Palacios, 46 S.W.3d at 880. In addition to serving as the medical director of the forensic program at Terrell State Hospital, Dr. Dunn also has a part-time practice in adult and forensic psychiatry. He has treated many patients with suicidal behavior and has had the responsibility to make decisions to prevent suicidal behavior. We have found that he has expressed the proper standard of medical and hospital care. He has training and experience to allow him to offer such opinions. The requirement of an expert report is to inform the opposing party of Russ' claim and to provide the trial court with a basis to conclude that the claim has merit. The report is not required to litigate the claim. Id. at 879. We find Dr. Dunn qualified to render such a medical report.             We have carefully examined the Texas Supreme Court's decisions in Palacios and Wright, and believe that this case is distinguishable. Unlike the reports examined in Palacios, the report in question is not conclusory as it pertains to Dr. Quiring and the Hospital. The report contains specific information which informs the Appellees what Russ is contending they should have done. Further, one is not required to infer a standard of care from mere insights provided by the report. Further, Palacio's two-part test to determine "good faith" was met concerning Dr. Quiring and the Hospital. Therefore, the trial court had no discretion to conclude that the report as it pertains to Dr. Quiring and the Hospital was not a good-faith effort.             Accordingly, we affirm the judgment of the trial court concerning Peggy Burge, R.N., and Rachel Meyers, R.N.; we reverse the judgment of the trial court concerning Dr. Quiring and the Hospital, and remand the case to the trial court for further proceedings.                                                                           Jack Carter                                                                         Justice Date Submitted:          January 22, 2004 Date Decided:             February 3, 2004

748 F.Supp.2d 1201 (2010) Joseph ANTONETTI, Plaintiff, v. Howard SKOLNIK, et al., Defendants. No. 3:10-cv-00158-ECR-RAM. United States District Court, D. Nevada. October 25, 2010. *1206 Joseph Antonetti, Indian Springs, NV, pro se. ORDER EDWARD C. REED, JR., District Judge. Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 (# 1-2). The Court has screened plaintiffs civil rights complaint pursuant to 28 U.S.C. § 1915 A and finds that it must be dismissed in part. I. Screening Pursuant to 28 U.S.C. § 1915A Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act of 1995 (PLRA), a federal court must dismiss a prisoner's claim, "if the allegation of poverty is untrue," or if the action "is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See *1207 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.1995). Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir.2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999). In making this determination, the Court takes as true all allegations of material fact stated in the complaint, and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir.1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id., see Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). All or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991). II. Screening of the Complaint Defendants The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Ninth Circuit has held that "[a] person `subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978). Count I In count one, plaintiff alleges violations of his Eighth Amendment right to be free of cruel and unusual punishment, based on deprivation of needed mental *1208 health care. He claims that he is housed in segregation/isolation, which has lead to a mental health breakdown. He claims that in five years, he has been seen by mental health professionals at total of eight times, instead of every ninety days as required by NDOP administrative regulations. Plaintiff claims that prison mental health professionals have recommended that he pursue art and music for his mental health, but defendants have refused to provide him with the necessary drawing materials. He claims that defendants' failure to provide him with regular mental health care is a deliberate and wanton infliction of pain and demonstrates deliberate indifference. Plaintiff claims that the mental health professionals at the prison have suggested that he take anti-psychotic and anti-depression medications, which he states would not be necessary but for defendants' neglect and indifference. He further claims that he has been made to suffer bouts of aggression, extreme depression, voices, paranoia, hallucinations, emotional breakdowns and distress, unreasonable fear, and systematic dehumanization which leaves him not knowing who he is as a person or whether he is human anymore. To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir.1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982). Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison officials may be held liable only if they acted with "deliberate indifference to a substantial risk of serious harm." Frost v. Agnos, 152 F.3d 1124 (9th Cir.1998) (citing Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Farmer v. Brennan, 511 U.S. at 834, 114 S.Ct. 1970 (citing Wilson v. Setter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). Second, the prison official must "know of and disregard an excessive risk to inmate health or safety." Id. at 837, 114 S.Ct. 1970. Thus, "a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. at 835, 114 S.Ct. 1970. Prison officials may avoid liability by presenting evidence that they lacked knowledge of the risk, or by presenting evidence of a reasonable, albeit unsuccessful, response to the risk. Id. at 844-45, 114 S.Ct. 1970. Mere negligence on the part of the prison official is not sufficient to establish liability, but rather, the official's conduct must have been wanton. Farmer v. Brennan, 511 U.S. at 835, 114 S.Ct. 1970; Frost v. Agnos, 152 F.3d at 1128; see also Daniels v. Williams, 474 U.S. 327, 333, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The Eight Amendment's proscription against cruel and unusual punishment prohibits penalties which are grossly disproportionate to the offense. Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 *1209 L.Ed.2d 251 (1976). Placing a prisoner in isolation can amount to cruel and unusual punishment, depending on the particular conditions and circumstances. See Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). The court finds that plaintiff has stated a colorable Eighth Amendment conditions of confinement claim, based on isolation. A prisoner's claim of inadequate medical care does not constitute cruel and unusual punishment unless the mistreatment rises to the level of "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. 285. The "deliberate indifference" standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). Second, the prison official must act with a "sufficiently culpable state of mind," which entails more than mere negligence, but less than conduct undertaken for the very purpose of causing harm. Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. 1970. A prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety." Id. In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's civil rights have been abridged, "the indifference to his medical needs must be substantial. Mere `indifference,' `negligence,' or `medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980), citing Estelle, 429 U.S. at 105-06, 97 S.Ct. 285. "[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. 285; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir.1995); McGuckin v. Smith, 974 F.2d 1050, 1050 (9th Cir.1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997) (en banc). Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.1990). A prisoner's mere disagreement with diagnosis or treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989). Deliberate indifference can be manifested by prison guards intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Estelle v. Gamble, 429 U.S. at 104-05, 97 S.Ct. 285. However, where a prisoner alleges a delay in receiving medical treatment, the prisoner must allege that the delay led to further injury. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997); Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.1985). The Courts of other federal Circuits have also found deliberate indifference where prison officials ignore a previous physician's treatment plan. White v. Napoleon, 897 F.2d 103 (3rd Cir.1990) (finding cognizable claim for deliberate indifference where prison officials ignored private hospital's treatment orders and refused inmate's *1210 access to prescribed medication); Gill v. Mooney, 824 F.2d 192 (2nd Cir.1987) (finding cognizable claim where prison officials refused to permit plaintiff to participate in exercise program prescribed by doctor); Eades v. Thompson, 823 F.2d 1055 (7th Cir.1987) (finding cognizable claim where prisoner alleged that prison officials made him travel and carry a heavy box, causing a surgical incision to gape open, in violation of prior medical orders); Martinez v. Mancusi, 443 F.2d 921 (2nd Cir.1970), cert, denied 401 U.S. 983, 91 S.Ct. 1202, 28 L.Ed.2d 335, cited with approval by Estelle v. Gamble, 429 U.S. at 105 n. 10, 97 S.Ct. 285 (finding deliberate indifference where prison staff forced post-surgical prisoner-patient to walk, ignoring warnings from hospital personnel that inmate should not be moved); see also Carl T. Drechsler, Annotation, Relief Under Federal Civil Rights Acts to State Prisoners Complaining of Denial of Medical Care, 28 A.L.R. Fed. 279 (1976) (recognizing that, on the whole, courts do not condone the practice of prison officials ignoring orders rendered by a prisoner's previous physician). This court finds that under the facts alleged in count one, plaintiff has stated a colorable Eighth Amendment medical care claim. Count 2 In count two, plaintiff alleges violations of his rights under the First, Fifth, Sixth, and Fourteenth Amendments related to freedom of speech, access to the courts, and deprivation of due process and law library access. Plaintiff claims that he has been housed in segregation for several years, and has been repeatedly denied materials such as books, paper, pens, and envelopes, as well as assistance from a law clerk and help with research. Plaintiff alleges that defendants have deprived him of these things both by direct refusal and by policy. Arguing that proper law library access is required for proper and meaningful access to the courts, plaintiff argues that defendants' failures have prevented him from being properly prepared for court. He claims that as a result, his habeas corpus petitions and civil rights actions have been dismissed. A prisoner alleging a violation of his right of access to the courts must demonstrate that he has suffered "actual injury." Lewis v. Casey, 518 U.S. 343, 349-50, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The right to access the courts is limited to direct criminal appeals, habeas corpus proceedings, and civil rights actions challenging conditions of confinement. Id. at 354-55, 116 S.Ct. 2174. "An inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is sub-par in some theoretical sense." Id. at 351, 116 S.Ct. 2174. Rather, the inmate "must go one step further and demonstrate that the library or legal assistance program hindered his efforts to pursue a legal claim." Id. The actual-injury requirement mandates that an inmate "demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded." Id. at 353, 116 S.Ct. 2174. In Lewis v. Casey, the Supreme Court defined prisoners' right of access to the courts as simply the "right to bring to court a grievance." Id. at 354, 116 S.Ct. 2174. The Court specifically rejected the notion that the state must enable a prisoner to "litigate effectively once in court." Id. (quoting and disclaiming language contained in Bounds v. Smith, 430 U.S. 817, 825-26, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)); see also Cornett v. Donovan, 51 F.3d 894, 898 (9th Cir.1995) (determining that prisoners' right of access to the courts is limited to the pleading *1211 stage of a civil rights action or petition for writ of habeas corpus). The court finds that under the facts alleged by plaintiff in count two, he states a colorable First Amendment access to courts claim. Count III In count three, plaintiff alleges a violation of the Eighth Amendment, based on the deprivation personal hygiene items and the sanitary conditions of the prison. He claims that he is regularly deprived of toilet paper and soap, and so cannot maintain personal hygiene. He states that he is allowed a shower only twice a week, and is made to strip in dirty showers, full of filth and insects. He claims that the unit in which he resides is filthy and littered with food and urine. He states that there are open sewers, and that insects and rodents are rampant. Plaintiff claims that he has suffered illness resulting from these conditions. The court finds that under the standard set forth above, plaintiff has stated a colorable Eighth Amendment claim based on conditions of confinement. See Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir.1995) (severe or prolonged exposure of prisoner to lack of sanitation can constitute an Eighth Amendment violation); Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir.1996), amended by 135 F.3d 1318 (9th Cir.1998) (indigent inmates have the right to personal hygiene items such as toothbrushes and soap). Count IV In count four, plaintiff alleges an Eighth Amendment violation based on lack of outside exercise. Plaintiff alleges that he is subjected to a policy which provides a minimum of five hours outside exercise per week, although the relevant administrative regulation provides for a minimum of seven hours and a controlling consent degree provides for a minimum of eight hours. Plaintiff alleges that he is routinely given only two to three hours outside exercise per week. "Deprivation of outdoor exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term segregation." Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir.1996) (citing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.1979)), amended by 135 F.3d 1318 (9th Cir.1998). The court finds that plaintiff has stated a colorable Eighth Amendment conditions of confinement claim, based on lack of outdoor exercise. Count V In count five, plaintiff alleges violations of his rights under the First and Fourteenth Amendments based on the deprivation incoming mail, without notice and without a post-deprivation remedy. Plaintiff claims that defendants have confiscated, withheld and returned mail from friends and family as well as publications from legitimate vendors. The mere fact that prison officials open and conduct a visual inspection of a prisoner's legal correspondence does not state a claim for violation of a prisoner's constitutional rights. See Wolff v. McDonnell, 418 U.S. 539, 576-77, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Mitchell v. Dupnik, 75 F.3d 517, 523 (1996). However, prisoners have a First Amendment right to send and receive mail. Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.1995). An authorized, intentional deprivation of property is actionable under the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532, n. 13, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)); Quick *1212 v. Jones, 754 F.2d 1521, 1524 (9th Cir.1985). An authorized deprivation is one carried out pursuant to established state procedures, regulations, or statutes. Logan v. Zimmerman Brush Co., 455 U.S. at 436, 102 S.Ct. 1148; Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir.1987). Authorized deprivations of property are permissible if carried out pursuant to a regulation that is reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The court finds that under the facts alleged, plaintiff has stated both a First Amendment claim and a Fourteenth Amendment claim based on deprivation and confiscation of incoming mail. Count VI Plaintiff alleges violations of his First Amendment right to send mail. He claims that under the policies and procedures at High Desert State Prison, to obtain materials for writing letters or court documents, an indigent prisoner must prove indigent status and then get on an indigent list, Plaintiff states that this process can take two to three months. Plaintiff alleges that as a result of these policies or the improper training of employees, he has been denied the ability to send both personal and legal mail. The court finds that plaintiffs allegations state a colorable First Amendment claim based on denial of the right to send mail. Count VII In count seven, plaintiff alleges violations of his Fifth and Fourteenth Amendment rights to equal treatment and due process. He claims that he is housed in administrative segregation at High Desert State Prison, and has never been given proper classification. He states that he has been placed in administrative segregation for an indeterminate length of time without any process, review, or rational. Plaintiff also claims that he is treated differently than other prisoners in this regard, based on his crime, race, religion, and political beliefs. Equal protection claims arise when a charge is made that similarly situated individuals are treated differently without a rational relationship to a legitimate state purpose. See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). In order to state a § 1983 claim based on a violation of the equal protection clause of the Fourteenth Amendment, a plaintiff must allege and that defendants acted with intentional discrimination against a class of inmates which included plaintiff. Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir.1985); Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 471 (9th Cir.1991). The court finds that the allegations in count seven state a colorable Fourteenth Amendment equal protection claim. In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995), the Supreme Court abandoned earlier case law which had held that states created protectable liberty interests by way of mandatory language in prison regulations. Id. at 2299-2300. Instead, the Court adopted an approach in which the existence of a liberty interest is determined by focusing on the nature of the deprivation. Id. In doing so, the Court held that liberty interests created by prison regulations are limited to freedom from *1213 restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 2300. In applying this standard, the Court in Sandin held that ten days in disciplinary segregation did not constitute a deprivation in which a state might create a liberty interest. The Due Process Clause itself does not confer on inmates a liberty interest in being confined in the general prison population instead of administrative segregation. See Hewitt v. Helms, 459 U.S. 460, 466-68, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). However, the Sandin decision appears to leave open the question of whether, under different conditions of confinement from those found in Sandin, an inmate could have a liberty interest in freedom from confinement in administrative segregation or SHU. Thus, in determining whether the threshold test of Sandin is met, the circumstances of the particular state's prison system are relevant. Under the facts alleged in count seven, plaintiff states a colorable due process claim based on failure to provide periodic review of his classification. Count VIII In count eight plaintiff alleges violations of the "5th, 8th and 14th Amendment rights to be free of arbitrary abuse of authority and punishment." Relying on the same facts alleged in support of count seven, plaintiff claims that he has been subjected to cruel and unusual punishment. Specifically, plaintiff claims that by being housed in administrative segregation, he is subjected to all the punitive measures placed on inmates in disciplinary segregation. These include yard restrictions, spending restrictions, movement and use of restraint restrictions and implementations, strip searches, cell searches, visiting restrictions, program restrictions, social restrictions, less food and poorer quality food, and no exercise equipment. He concludes that placement in administrative segregation amounts to punishment without due process. The court finds that to the extent plaintiff alleges an Eighth Amendment claim, it is subsumed within the due process claim. To the extent that plaintiff alleges a due process violation, his claim is duplicative of count seven. The court will therefore dismiss count eight as duplicative. Count IX In count nine plaintiff alleges deprivation of property without due process in violation of the Fourth, Fifth and Fourteenth Amendments. Plaintiff claims that he has suffered a "shake down" of his cell in which various items were taken from him and deemed to be contraband. Plaintiff states that he believed these items to be authorized, and had in fact purchased the items at the prison or had been given the items by employees of the prison. Plaintiff claims that he was not notified of any rule changes and that the rules are not posted. He claims that he was told he had no right to be made aware of or obtain a copy of rules and policies/procedures or regulations. He states that he was deprived of his property, given no notice that the items were unauthorized, given disciplinary sanctions, and was forced to forfeit his own property with no post-deprivation remedy. The court finds that under the standard set forth above in connection with count five, plaintiff states a Fourteenth Amendment due process claim for intentional, authorized deprivation of property. Count X In count ten, plaintiff alleges violations of the Eight Amendment prohibition *1214 against cruel and unusual punishment. He states that he is housed in High Desert State Prison in administrative segregation, subject to 24 and 23 hour lockdown in a cell with a steel door. Plaintiff claims that defendants disconnected the intake vent which pulls dust and allergens from the cells. He claims that although dirty and dusty vent blow dirt into the cells, there is no circulation system pulling the dirty air out. Plaintiff further claims that the "air" is not on in the summer and the heat is not on in the winter. Plaintiff states that as a result of these conditions, he suffers cracked lips and nostrils which bleed and refuse to heal, as well as difficulty in breathing and sleeping. The court finds that under the standard set forth above in count one, plaintiff has stated an Eighth Amendment claim based on conditions of confinement. Count XI In count eleven, plaintiff alleges violations of his First Amendment right to free exercise of his religion. Plaintiff claims that he is a devout, practicing fundamentalist Christian and has been denied access to a priest, a place of worship, communion, confessional, and congregation with those of his faith. Plaintiff states that he has thereby been denied forgiveness, connection to his god and chances at atonement. Plaintiff further claims that he has been denied the kosher diet that is in accordance with his beliefs. He states that inmates who practice a wide variety of other religions are given assistance with the exercise of their religions, yet plaintiff is denied the ability to practice his, thereby putting his immortal soul in jeopardy. The First Amendment to the United States Constitution provides that Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. U.S. Const., amend. I. The United States Supreme Court has held that prisoners retain their First Amendment rights, including the right to free exercise of religion. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). The Court has also recognized that limitations on a prisoner's free exercise rights arise from both the fact of incarceration and from valid penological objectives. Id.; McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir.1987). Prison regulations alleged to infringe on the religious exercise right must be evaluated under the "reasonableness" test set forth in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). O'Lone, 482 U.S. at 349, 107 S.Ct. 2400; Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir.1997) (recognizing that the United States Supreme Court's decision in City of Boerne v. P.F. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), invalidated the Religious Freedom Restoration Act and restored the "reasonableness test" as the applicable standard in free exercise challenges brought by prison inmates). In determining the reasonableness of a challenged restriction on First Amendment rights, the court considers four factors. First, there must be a valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it, and the governmental objective must itself be a legitimate and neutral one. A second consideration is whether alternative means of exercising the right on which the regulation impinges remain open to prison inmates. A third consideration is the impact accommodation of the asserted right will have on guards, other inmates, and the allocation of prison resources. Finally, the absence of ready *1215 alternatives is evidence of the reasonableness of a prison regulation. Allen v. Toombs, 827 F.2d 563, 567 (9th Cir.1987) (citing Turner v. Safley, 482 U.S. at 89-91, 107 S.Ct. 2254). The court finds that under this standard, plaintiff states a colorable First Amendment free exercise claim in count eleven. Count XII In count twelve, plaintiff alleges violations of his Fifth Amendment right to due equal protection and due process, his Eighth Amendment right to be free of cruel and unusual punishment, and his Fourteenth Amendment right to due process, all in connection with the food provided to him by the prison. Setting out the alleged facts in detail, Plaintiff claims that he is provided food of less nutritional value, less quality, and less caloric value than the food provided to other inmates at High Desert State Prison. Plaintiff further claims that prison officers make trays of food from dirty food carts located next to inmate showers, and that birds pick at the inmates' food while the food carts are outside. He states that the amount of food provided is inadequate and that he suffers from weight loss, lack of energy, and perpetual hunger, which he feels is a form of punishment. The court finds that count twelve states a colorable Eighth Amendment conditions of confinement claim, under the standard set forth in count one. Count twelve does not state a due process claim upon which relief can be granted. Count XIII In count thirteen, plaintiff alleges violations of his Fourth Amendment right to be free of unlawful searches and his Eighth Amendment right to be free of cruel and unusual punishment in connection with public and unhygienic strip searches. Plaintiff claims that whenever he is moved from his cell to any other location, he is made to stand in a brightly lit shower in full view of female employees, made to strip naked, place his bare feet on a filthy floor covered with hair, scum and insects, spread his buttocks, lift his penis, and then put his fingers in his mouth, all without any opportunity to wash his hands. Plaintiff asserts that this is entirely unnecessary, because inmates are in full restraints, escorted and solitary at all times. Plaintiff states that to avoid this "needless, filthy, dehumanizing practice," he is forced to refuse to leave his cell. He states that this has resulted in mental and physical degeneration. Generally, strip searches do not violate the Fourth Amendment rights of prisoners. See Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir.1988). However, strip searches that are `excessive, vindictive, harassing, or unrelated to any legitimate penological interest," may be unconstitutional. Id. at 332. The court finds that under the facts alleged, plaintiff states a colorable Fourth Amendment claim based on unreasonable searches. Searches intended to harass may violate the Eighth Amendment. See Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). In considering such a claim, the court must ask: 1) if the officials acted with a sufficiently culpable state of mind; and 2) if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation. Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The court finds that under the facts alleged, plaintiff has stated a colorable Eighth Amendment claim. *1216 Count XIV In count fourteen, plaintiff alleges a violation of his rights under the Fourth and Eighth Amendments. He claims that officers search his cell any time he leaves his cell, and that the officers throw away personal belongings, with no notice, paperwork, or post-deprivation remedy. Prisoners have no Fourth Amendment right of privacy in their cells. See Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Accordingly, plaintiffs Fourth Amendment claim in count fourteen based on an allegation of an unreasonable search will be dismissed for failure to state a claim upon which relief can be granted. Similarly, plaintiffs allegations do not state a colorable claim for relief under the Eighth Amendment prohibition against cruel and unusual punishment. Thus, that claim will be dismissed also. However, the court finds that under the standard set forth above in connection with count five, plaintiff states a Fourteenth Amendment due process claim for intentional, authorized deprivation of property. Count XV In count fifteen, plaintiff alleges violations of his Fifth and Fourteenth Amendment rights to due process and his Eighth Amendment right not to be subjected to cruel and unusual punishment. He claims that he is in segregation under no sentence, but rather is in "ad seg." He states that as a maximum custody inmate, he is subject to 24 and 23 hour lockdown for years and years. Plaintiff claims that he is denied the programs and privileges, and access to rehabilitation, social and exercise programs that other inmates are allowed and are provided by state and federal law. Plaintiff claims that although he has not suffered a disciplinary violation, he is arbitrarily kept in isolation and treated as if he were in disciplinary segregation. The Eighth Amendment prohibits punishment which involves the unnecessary and wanton infliction of pain, is grossly disproportionate to the severity of the crime or serves no justifiable penological interest. Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Isolating an inmate under circumstances that warrant discipline is not necessarily unconstitutional. Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). However, conditions of confinement which include extreme isolation and environmental deprivation can support an Eighth Amendment claim. See Madrid v. Gomez, 889 F.Supp. 1146 (1995). Accordingly, the court finds that count fifteen states a colorable Eighth Amendment claim. In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. In Sandin v. Conner, 515 U.S. 472, 487, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court abandoned earlier case law which had held that states created protectable liberty interests by way of mandatory language in prison regulations. Id. Instead, the Court adopted an approach in which the existence of a liberty interest is determined by focusing on the nature of the deprivation. Id. In doing so, the Court held that liberty interests created by prison regulations are limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S.Ct. 2293. The court finds that under the facts alleged *1217 in count fifteen, plaintiff states a colorable Fourteenth Amendment due process claim based on his arbitrary placement in circumstances that amount to disciplinary segregation for a period of many, many years, without a disciplinary violation. Count XVI In count sixteen, plaintiff alleges that he has been deprived of his Fourteenth Amendment rights to due process and equal protection, and of his Fifth Amendment right to equal protection. Plaintiff claims that he was arbitrarily classified to "max custody," based on his crime and sentence. A prisoner has no due process right to a particular classification status. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987). Thus, count sixteen does not state a due process claim for relief on which relief can be granted. Plaintiff claims that he is treated differently than inmates with similar convictions and sentences, and that the classification system is unfair and unevenly applied. Plaintiff alleges that defendants have classified him differently, and continue to deny him reclassification based on his race, and political and religious beliefs, as well as his crime. The court finds that under the standard set forth above in count seven, plaintiff states a colorable equal protection claim. Count XVII In count seventeen, plaintiff alleges violations of his Eighth Amendment right to be free of cruel and unusual punishment and his Fifth Amendment right to equal protection. Plaintiff alleges that the exercise provided him at High Desert State Prison is to stand in a completely enclosed cage alone, in extreme heat or cold with no water, no shade, no exercise equipment and no urinals. He states that because of these conditions, he has suffered sunburns and cracked and bleeding lips, and a lack of any desire to exercise. Plaintiff claims that as a result, he as lost physical and mental health. He believes that this is a punishment, rather than a privilege. The court finds that under the standard set forth above in connection with count one, plaintiff states a colorable Eighth Amendment conditions of confinement claim based on the right to exercise. The court further finds that under the standard set forth in count seven, plaintiff does not state an equal protection claim in count seventeen. Count XVIII In count eighteen, plaintiff alleges violations of his Fifth, Eight, and Fourteenth Amendment rights to "be free of arbitrary government action" and cruel and unusual punishment, and "to receive equal treatment." Plaintiff claims that he has been made to walk great distances in restraints, causing cuts, bleeding and scaring of his ankles. He further claims that inmates have been murdered, beaten, stabbed, assaulted and brutalized while in restraints and under escort. Plaintiff states that inmates under restraint have been left helpless and unable to defend themselves, and have been walked through groups of inmates who are not restrained at all. Plaintiff claims that defendants are completely indifferent to this obvious risk and threat to inmate safety, and states that he does not want to be the next victim. The court finds that plaintiff has alleged the required deliberate indifference to a substantial risk of serious harm and so has stated a colorable Eighth Amendment claim based on conditions of *1218 confinement. The court finds that plaintiffs allegations in count eighteen do not support either an equal protection or a due process claim. Count XIX In count nineteen, plaintiff alleges violations of the Eighth Amendment, based on conditions of confinement. Plaintiff claims that he is forced to endure unhygienic conditions, including getting a shower only every three days in a filthy shower. The court finds that these claims are duplicative of those made in count three. Count nineteen will therefore be dismissed on that basis. Count XX In count twenty, plaintiff alleges violations of his Fifth and Fourteenth Amendment rights to equal protection and due process and "to be free of arbitrary use of authority." Plaintiff claims that defendants refuse to provide him with copies of institutional policies or administrative regulations. Plaintiff claims that he has served eighteen years in the Nevada Department of Prisons and that defendants' institutional policies are not in accordance with the administrative regulations and that the administrative regulations are not in accordance with the Nevada Revised Statutes and state and federal laws. Plaintiff claims that defendants routinely add rules through institutional policies or administrative regulations which deprive inmates, needlessly and only for purposes of punishment, of privileges, various items of property, access to programs and exercise, religious services, law library access, redress of grievances and social activities. He claims that defendants have removed kites and grievances from units, denied grievances with sense-less answers, made inmates wait months past the time due for responses, and then suggested that plaintiff provide proof or copies of items impossible to obtain. Plaintiff claims that defendants have refused to allow grievances to proceed to higher levels and have completely abused their positions and have impeded inmates' ability to pursue justice. Plaintiff asserts that he is suffering arbitrary abuse of authority and retaliation for pursuit of justice. As stated above, equal protection claims arise when a charge is made that similarly situated individuals are treated differently without a rational relationship to a legitimate state purpose. See San Antonio School District v. Rodriguez, 411 U.S. at 1, 93 S.Ct. 1278. Plaintiff does not make such an allegation in count twenty, thus the court concludes that count twenty does not state an equal protection claim. Plaintiff makes several allegations concerning the grievance system at High Desert State Prison. Because prisoners have no constitutional right to an inmate grievance system, plaintiffs allegations concerning the workings of the grievance system at High Desert State Prison do not state a constitutional claim. Plaintiff alleges that defendants refuse to provide him with copies of institutional policies and administrative regulations. The court finds that these allegations, standing alone, do not state either a equal protection or due process claim. Plaintiff, however, also alleges retaliation for his "pursuit of justice." Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985); see also Valandingham *1219 v. Bojorquez, 866 F.2d 1135 (9th Cir.1989). To establish a prima facie case, plaintiff must allege and show that defendants acted to retaliate for his exercise of a protected activity, and defendants' actions did not serve a legitimate penological purpose. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.1995). A plaintiff asserting a retaliation claim must demonstrate a "but-for" causal nexus between the alleged retaliation and plaintiffs protected activity (i.e., filing a legal action). McDonald v. Hall, 610 F.2d 16, 18 (1st Cir.1979); see Mt Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The prisoner must submit evidence, either direct or circumstantial, to establish a link between the exercise of constitutional rights and the allegedly retaliatory action, Pratt, 65 F.3d at 806. Timing of the events surrounding the alleged retaliation may constitute circumstantial evidence of retaliatory intent. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 (9th Cir.1989). The court finds that under the facts alleged in count twenty, plaintiff states a colorable retaliation claim. Count XXI In count twenty-one, plaintiff alleges that his civil rights were violated based on "wilful, intentional and deliberate infliction or physical and emotional distress." Plaintiff realleges and incorporates the facts from counts one through twenty. The court finds count twenty-one to be largely duplicative of earlier claims in the complaint, and otherwise insufficient to state a claim upon which relief can be granted. It will therefore be dismissed for failure to state a claim. Count XXII In count twenty-two, plaintiff alleges that his civil rights were violated based on "deliberate indifference, negligent and wanton infliction of pain." Plaintiff realleges and incorporates the facts from counts one through twenty. The court finds count twenty-two to be largely duplicative of earlier claims in the complaint, and otherwise insufficient to state a claim upon which relief can be granted. Count XXIII In count twenty-three, plaintiff alleges that his First Amendment right of freedom of association was violated, based on denial of visitation. He states that he was twice denied visitation with his mother, absent cause. It is settled law that prisoners have no absolute right to unfettered visitation. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.1996). Moreover, the Supreme Court has in recent years concluded that a prisoner has a liberty interest protected by the Due Process Clause only where the restraint "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Denial of visitation privileges for a matter of weeks or even months would likely not impose an atypical or significant hardship of the type that creates a liberty interest under Sandin. First Amendment associational rights are related to the freedom to associate with groups of a particular type, often political or religious in nature. See Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). The court finds as a matter of law that the denial by prison authorities of two personal *1220 visits with his mother does not impact plaintiffs First Amendment right to freedom of association. Count twenty-three will therefore be dismissed for failure to state a claim upon which relief can be granted. Count XXIV In count twenty-four, plaintiff alleges that his Fifth and Fourteenth Amendment rights to equal treatment and procedural due process are violated by restitution practices at the prison. Plaintiff claims that there is no hearing, proof, receipt or review of ordered restitution. He states that he is charged with restitution, and has no idea what for. He also claims that he was ordered to pay restitution for "state sweat pants," although no such thing exists. It is well-settled that a prisoner has a constitutionally protected property interest in his prison inmate account. Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir.1985). An authorized, intentional deprivation of property is actionable under the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532, n. 13, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)). An authorized deprivation is one carried out pursuant to established state procedures, regulations, or statutes. Logan v. Zimmerman Brush Co., 455 U.S. at 436, 102 S.Ct. 1148; Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir.1987). Authorized deprivations of property are permissible if carried out pursuant to a regulation that is reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The court finds that plaintiffs allegations state a colorable due process claim. The court further finds that in count twenty-four, plaintiff fails to state an equal protection claim upon which relief can be granted. Count XXV In count twenty-five, plaintiff alleges violations of his Fifth and Fourteenth Amendment due process rights and right to be from arbitrary exercise of authority, based on the fact that John and Jane Doe defendants have banned smoking in the Nevada Department of Corrections. Plaintiff claims that this ban was instituted arbitrarily, with intent to punish, and without any real benefit or service. Plaintiff claims that the banning of smoking has created an angry environment and a security threat, as it has created a new contraband item. He claims that inmates smuggle tobacco, and that other inmates pay $5 to $10 for a cigarette. Plaintiff claims that until the recent ban, inmates in the Nevada Department of Corrections were allowed to smoke. In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. In Sandin v. Conner, 515 U.S. 472, 487, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court abandoned earlier case law which had held that states created protectable liberty interests by way of mandatory language in prison regulations. Id. Instead, the Court adopted an approach in which the existence of a liberty interest is determined by focusing on the nature of the deprivation. Id. In doing so, the Court held that liberty interests created by prison regulations are limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S.Ct. 2293. *1221 The court finds that the health benefits conferred by not smoking are no longer subject to debate. Further, it is established law that housing a prisoner in an environment that exposes him to environmental tobacco smoke may support an Eighth Amendment claim. See McKinney v. Anderson, 959 F.2d 853, 853 (9th Cir. 1992), aff'd Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). The court therefore finds that the prohibition of smoking in prisons cannot amount to an atypical and significant hardship on prisoners so as to support a due process claim. Accordingly, count twenty-five will be dismissed for failure to state a claim upon which relief can be granted. IT IS THEREFORE ORDERED that the Clerk of the Court shall FILE the complaint. (Docket #1-2.) IT IS FURTHER ORDERED that plaintiffs motion to for enlargement is GRANTED. (Docket #1-1.) IT IS FURTHER ORDERED that count eight is DISMISSED as duplicative. IT IS FURTHER ORDERED that count twelve states a colorable Eighth Amendment conditions of confinement claim. All other claims in count twelve are DISMISSED for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count fourteen states a colorable Fourteenth Amendment due process claim for intentional, authorized deprivation of property. All other claims in count fourteen are dismissed for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count sixteen states a colorable Fourteenth Amendment equal protection claim. All other claims in count sixteen are dismissed for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count seventeen states a colorable Eighth Amendment conditions of confinement claim. All other claims in count seventeen are dismissed for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count eighteen states a colorable Eighth Amendment claim based on conditions of confinement. All other claims in count eighteen are dismissed for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count nineteen is DISMISSED as duplicative. IT IS FURTHER ORDERED that count twenty states a colorable First Amendment retaliation claim. All other claims in count twenty are dismissed for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count twenty-one is DISMISSED for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count twenty-two is DISMISSED for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count twenty-three is DISMISSED for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count twenty-four states a colorable Fourteenth Amendment due process claim based on an authorized, intentional deprivation of property. All other claims in count twenty-four are dismissed for failure *1222 to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count twenty-five is DISMISSED for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED as follows: 1. The Clerk shall electronically serve a copy of this order, including the attached Notice of Intent to Proceed with Mediation form, along with a copy of plaintiffs complaint, on the Office of the Attorney General of the State of Nevada, to the attention of Pamela Sharp. 2. The Attorney General's Office shall advise the Court within twenty-one (21) days of the date of entry of this order whether it can accept service of process for the named defendants. As to any of the named defendants for which the Attorney General's Office cannot accept service, the Office shall file, under seal, the last known address(es) of those defendant(s). 3. If service cannot be accepted for any of the named defendant(s), plaintiff shall file a motion identifying the unserved defendant(s), requesting issuance of a summons, and specifying a full name and address for said defendant(s). Plaintiff is reminded that, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, service must be accomplished within one hundred twenty (120) days of the date the complaint was filed. 4. If the Attorney General accepts service of process for any named defendant(s), such defendant(s) shall file and serve an answer or other response to the complaint within thirty (30) days following the date of the early inmate mediation. If the court declines to mediate this case, an answer or other response shall be due within thirty (30) days following the order declining mediation. 5. The parties SHALL DETACH, COMPLETE, AND FILE the attached Notice of Intent to Proceed with Mediation form on or before thirty (30) days from the date of entry of this order. IT IS FURTHER ORDERED that henceforth, Plaintiff shall serve upon defendants or, if an appearance has been entered by counsel, upon their attorney(s), a copy of every pleading, motion or other document submitted for consideration by the court. Plaintiff shall include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the defendants or counsel for defendants. If counsel has entered a notice of appearance, the plaintiff shall direct service to the individual attorney named in the notice of appearance, at the address stated therein. The Court may disregard any paper received by a district judge or magistrate judge which has not been filed with the Clerk, and any paper received by a district judge, magistrate judge or the Clerk which fails to include a certificate showing proper service. *1223 ________________________________ Name ________________________________ Prison Number (if applicable) ________________________________ Address ________________________________ ________________________________ UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ________________________________, ) Case No. _______________________ Plaintiff, ) ) NOTICE OF INTENT TO v. ) PROCEED WITH MEDIATION ) ___________________________________) ) ___________________________________) Defendants. ) ___________________________________) This case may be referred to the District of Nevada's early inmate mediation program. The purpose of this notice is to assess the suitability of this case for mediation. Mediation is a process by which the parties meet with an impartial court-appointed mediator in an effort to bring about an expedient resolution that is satisfactory to all parties. 1. Do you wish to proceed to early mediation in this case? ____ Yes _____ No 2. If no, please state the reason(s) you do not wish to proceed with mediation? _______ ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ 3. List any and all cases, including the case number, that plaintiff has filed in federal or state court in the last five years and the nature of each case. (Attach additional pages if needed). ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ 4. List any and all cases, including the case number, that are currently pending or any pending *1224 grievances concerning issues or claims raised in this case. (Attach additional pages if needed). ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ ____________________________________________________________________________________ 5. Are there any other comments you would like to express to the court about whether this case is suitable for mediation. You may include a brief statement as to why you believe this case is suitable for mediation. (Attach additional pages if needed). This form shall be filed with the Clerk of the Court on or before twenty (20) days from the date of entry of this order. Counsel for defendants: By signing this form you are certifying to the court that you have consulted with a representative of the Nevada Department of Corrections concerning participation in mediation. Dated this ____ day of _____________________________, 2010. __________________________________ Signature ____________________________________ Name of person who prepared or helped prepare this document

Opinion filed April 9, 2020 In The Eleventh Court of Appeals __________ No. 11-18-00104-CR __________ JOE JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 106th District Court Dawson County, Texas Trial Court Cause No. 18-7866 MEMORANDUM OPINION The grand jury indicted Joe Johnson for murder under Section 19.02(b)(1) of the Texas Penal Code. The jury found him guilty and assessed his punishment at confinement for life. The trial court sentenced him accordingly. We affirm. In his sole issue on appeal, Appellant claims that the evidence was legally insufficient to find him guilty of murder as charged in the indictment and that he should have been acquitted because he acted in self-defense.  On February 16, 2016, Appellant encountered the victim, Dominique Quayshawn Adams. Appellant was accompanied by his friend, Cruzito Gutierrez. According to the testimony of Adams’s girlfriend, Kassandra Ramos, Appellant and Adams were formerly friends. Ramos testified that sometime prior to February 16, 2016, while Adams was in jail, Ramos cheated on Adams with Erasmus Watson (Raz). Subsequently, Adams and Ramos resumed their relationship after Adams was released from jail. Ramos testified that Adams was upset with Appellant because Appellant continued to be friends with Raz. Gutierrez testified that, on the day of the offense, as he and Appellant were walking “to the Stop-N-Go to get some Cokes,” they saw Adams and Ramos driving around together. Gutierrez testified that he told Appellant, “There’s Dominique right there,” and that Appellant replied, “I got to dump him.” Similarly, Ramos testified that she and Adams noticed Appellant and Gutierrez. When they got closer to Appellant and Gutierrez, and as the car came to a stop, Appellant made a motion with his hand that indicated that he wanted Adams to roll down his window. Adams then asked Appellant, “What’s up?” Gutierrez testified that Adams also asked Appellant “if he still want[ed] that beef s--t,” meaning that Adams and Appellant were in disagreement about something. In response, Appellant then told Adams that they, Adams and Ramos, had “better leave or it was going to end bad for both of [them].” Adams did not have a gun on his person or in the car. In addition, Gutierrez testified that he never saw a gun in Adams’s hand. Ramos testified that, at that point, Adams parked the car and that, as soon as Adams stepped one foot out of the car, Appellant began to shoot; he shot Adams. After Appellant shot Adams, Appellant and Gutierrez ran away from the scene and to Appellant’s house. Luisa Florez, the forensic pathologist who performed the autopsy on Adams’s body, testified that Adams had two gunshot wounds, one to the 2 left leg and one to the back. Florez determined that the cause of death was the gunshot wound to the back. At trial, when the State rested its case-in-chief, Appellant moved for a directed verdict, which the trial court overruled. Appellant testified in his own defense. He testified that the reason he had a gun with him on the day of the offense was because of an encounter with Gutierrez’s neighbor earlier that morning. He stated that he believed that his life was threatened and that he did not want to “walk around without a weapon.” In addition, Appellant claimed that he shot Adams in self-defense and testified that he had had three prior “interactions” with Adams. The first incident occurred when Appellant was walking one day and Ramos and Adams pulled up next to him in a car. Appellant claimed that Adams got out of the car and asked Appellant if he wanted to fight. Appellant said that he could see that Adams was holding something behind his back and that he assumed that it was a gun; he decided to keep walking. Appellant also testified that he had a gun at this time and that he could have shot Adams then if he had wanted to. Ramos corroborated this incident in her testimony, but she did not corroborate Appellant’s assertion that Adams was holding something behind his back during the incident. Appellant claimed that the second incident occurred one night as he walked home from his girlfriend’s house. He noticed that a car was coming up behind him. Appellant testified that the car began to slow down and that he heard a voice he recognized as Adams’s say, “Hey, what’s up with that.” Appellant immediately ran away. Appellant claims that, as he ran away, he heard gunshots. Appellant testified that he encountered Adams for a third time as Appellant was walking. Adams drove toward Appellant and said, “What’s up with that.” Again, Appellant immediately ran away. When Appellant ran into a nearby alley, he heard gunshots and assumed that “[Adams] was letting [Appellant] know 3 [Adams] had a gun or was coming after [Appellant] or something.” No other witnesses corroborated the second and third incidents, and Ramos testified that she never saw Adams shoot at Appellant. Appellant denied that, on the day of the offense, he motioned for Adams to roll down his window. Appellant also denied that he initiated a conversation with Adams. Appellant maintained that Adams initiated the confrontation. Appellant stated that he did not want to shoot Adams but that, as he turned to walk away, he saw Adams start to reach down and believed that Adams was reaching for a gun. Appellant testified that Adams had had a gun in their encounters in the past. Appellant also thought to himself at this time, “He’s not only going to shoot me; I have another person with me too,” meaning Gutierrez. Indeed, Appellant testified that he “reasonably believe[d] that [Adams] had a weapon and he was going to commit the offense of murder against [Appellant] and/or [Gutierrez].” Appellant testified that he was scared for both his and Gutierrez’s lives. Appellant insisted that he intended to shoot low at the door to give them time to run away. Appellant also testified that the gun found in his home was not the gun he used to shoot Adams and that he did not remember what happened to the gun. Lieutenant Darrel Williams testified that Gutierrez had said during an interview that, when he and Appellant arrived at Appellant’s house after the shooting, Appellant went outside, hid the gun, then came back inside without the gun. However, at trial, Gutierrez denied that he ever saw Appellant go outside with the gun. In his sole issue on appeal, Appellant claims that the evidence was legally insufficient to convict him of murder and that he should have been acquitted of murder because he acted in self-defense or in defense of a third person. “When determining whether the evidence is sufficient to support a criminal conviction, the only standard an appellate court should apply is the Jackson v. Virginia test for legal sufficiency.” Cary v. State, 507 S.W.3d 761, 765–66 (Tex. 4 Crim. App. 2016); see Jackson v. Virginia, 443 U.S. 307 (1979). This means that we must review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Thompson v. State, No. 11-16-00300-CR, 2018 WL 4925733, at *2 (Tex. App.—Eastland Oct. 11, 2018, pet. ref’d) (mem. op., not designated for publication). Thus, we must “defer to the jury’s credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.” Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). In addition, we defer to the factfinder’s resolution of any conflicts in the evidence and presume that the factfinder resolved such conflicts in favor of the verdict. Jackson, 433 U.S. at 326; Brooks, 323 S.W.3d at 899; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When we review the sufficiency of the evidence, we look at “events occurring before, during, and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). When we review the sufficiency of the evidence when the jury rejected a self- defense or defense-of-others claim, we “determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt.” Braughton v. State, 522 S.W.3d 714, 727 (Tex. App.—Houston [1st Dist.] 2017), aff’d, 569 S.W.3d 592 (Tex. Crim. App. 2018) (quoting Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991)). This is because when the defendant has raised a justification defense, and “a jury finds the defendant guilty, 5 there is an implicit finding against the defensive theory.” Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). As we have said, Appellant was indicted for murder under Section 19.02(b)(1) of the Texas Penal Code. A person commits murder under this section if the person “intentionally or knowingly causes the death of an individual.” TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2019). A person acts intentionally “when it is his conscious objective or desire to engage in the conduct or cause the result.” Id. § 6.03(a) (West 2011). A person acts knowingly “with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Id. § 6.03(b). Appellant claims that he acted in self-defense and in defense of a third person. Use of force against another is justified “when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” Id. § 9.31(a). In the same manner, the use of deadly force against another is justified under the above circumstances and “when and to the degree the actor reasonably believes the deadly force is immediately necessary . . . to protect the actor against the other’s use or attempted use of unlawful deadly force.” Id. § 9.32(a). The use of force or deadly force against another to protect a third person is justified if the actor would be justified in using force or deadly force to protect himself and the actor “reasonably believes that his intervention is immediately necessary to protect the third person.” Id. § 9.33. Or, stated another way, “A person is justified in using deadly force in defense of others ‘[s]o long as the accused reasonably believes that the third person would be justified in using [deadly force] to protect himself.’” Braughton, 522 S.W.3d at 730 (alterations in original) (quoting Smith v. State, 355 S.W.3d 138, 145 (Tex. App.— Houston [1st Dist.] 2011, pet. ref’d)). 6  The use of force against another is not justified under a number of circumstances, including the following: when the use of force is in response to verbal provocation alone, if the actor provoked the other’s use or attempted use of unlawful force, or if the actor sought a discussion with the other person “concerning the actor’s differences with the other person” while the actor unlawfully carried a weapon in violation of Section 46.05 of the Texas Penal Code. PENAL § 9.31(b)(1), (4), (5). Here, there was sufficient evidence for the jury to find the essential elements of murder beyond a reasonable doubt. For example, as previously stated, a person commits murder if the person “intentionally or knowingly causes the death of an individual.” Id. § 19.02(b)(1). The jury, in this case, heard evidence that Appellant caused Adams’s death by shooting Adams in the back. Further, because Appellant testified that he did in fact point his gun in Adams’s direction and pull the trigger, a rational juror could have inferred Appellant’s intent to kill because he was using a deadly weapon in a deadly manner. Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993). Thus, we find that a rational juror could have concluded that Appellant caused Adams’s death and that he had the necessary intent to do so. Further, although Appellant testified that he believed Adams would kill both him and Gutierrez and that Appellant acted in self-defense and in the defense of Gutierrez, the jury apparently did not believe him. The jury, as the factfinder, was entitled to draw its own conclusions from the evidence and was not required to accept Appellant’s defense claims as true. Rodriguez v. State, 546 S.W.3d 843, 860 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). Thus, we overrule Appellant’s sole issue on appeal. 7  We affirm the judgment of the trial court. JIM R. WRIGHT SENIOR CHIEF JUSTICE April 9, 2020 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.1 Willson, J., not participating. 1 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment. 8 

417 F.2d 1338 Matt KOEHL, Individually and as head of The American NaziParty and on behalf of the Estate of George LincolnRockwell, and George Lincoln Rockwell, Inc., a Virginiacorporation and The American Nazi Party, aka NationalSocialist White Peoples Party, individually and as custodianof the remains of George Lincoln Rockwell, Appellants.v.Stanley R. RESOR, Individually and as Secretary of the Armyof the United States of America, and Robert S.McNamara, Individually and as Secretaryof Defense of the UnitedStates, Appellees. No. 13474. United States Court of Appeals Fourth Circuit. Argued Nov. 6, 1969.Decided Nov. 24, 1969. Herbert A. Rosenthal, Jr., Washington, D.C., and Philip J. Hirschkop, Alexandria, Va. (Cohen, Hirschkop, Hall & Jackson, Alexandria, Va., Lawrence Speiser, Ralph Temple, Washington, D.C., and David M. Weitzman, Falls Church, Va., on brief), for appellants. Stephen R. Felson, Atty., Department of Justice (William D. Ruckelshaus, Asst. Atty. Gen., and Robert V. Zener, Atty., Department of Justice, and Brian P. Gettings, U.S. Atty., on brief), for appellees. Before SOBELOFF, WINTER and BUTZNER, Circuit Judges. PER CURIAM: 1 The judgment appealed from is affirmed on the opinion of the District Court. 296 F.Supp. 558 (E.D.Va.1969). 2 Affirmed.

161 Ariz. 195 (1989) 777 P.2d 693 Ned Ramon ROBINSON, Petitioner-Appellee, v. Lee A. PRINS, Arizona Department of Transportation, Respondent-Appellant. No. 1 CA-CV 88-038. Court of Appeals of Arizona, Division 1, Department C. January 17, 1989. Review Granted April 25, 1989. Robert G. Swan, Phoenix, for petitioner-appellee. Robert K. Corbin, Atty. Gen. by Joe Acosta, Jr., Asst. Atty. Gen., Phoenix, for respondent-appellant. OPINION BROOKS, Presiding Judge. The state has appealed from a superior court judgment that set aside an administrative suspension of appellee Ned Ramon Robinson's driver's license for refusal to submit to a breath test under A.R.S. § 28-691(E). Although Robinson verbally agreed to submit to an intoxilyzer test, and nothing about his behavior suggested that his cooperation was less than complete, machine printouts characterized the samples that he provided as "deficient." The issue on appeal is whether, under these circumstances, the state was required to establish that the officer administering the test was qualified to do so and that the machine was in proper working order. The facts are undisputed. On March 25, 1987, Department of Public Safety (DPS) officer M.D. Bonin stopped Robinson because he was speeding and weaving between lanes. The officer detected an odor of alcohol and noted that Robinson's eyes were bloodshot and watery and that his speech was slurred. After performing unsatisfactorily on field sobriety tests, Robinson was arrested and taken to a DPS station. At the station, Officer Bonin advised Robinson of the implied consent law, and Robinson agreed to submit to an intoxilyzer test. On Robinson's first attempt, the machine registered a blood alcohol level of .132%, but the readout indicated "deficient sample." Robinson's second attempt yielded a reading of .000%, and the machine again characterized the sample as deficient. Based on Robinson's failure to provide a sufficient sample, Bonin filed an "officer's report of refusal to take breath test" to support the suspension of Robinson's license. Robinson requested a hearing before the department of transportation. The only contested issue was whether he had refused to submit to the breath test. Robinson maintained that he had in fact agreed to take the test. He explained that he had been confident that the result would be below the legal limit. He claimed that he had tried to take the test, but the machine *196 was not operating properly. Describing his attempts to provide a sufficient sample, he stated that blowing into the machine was like trying "to blow up a baloon [sic] that you just could not get started." He reported that the officer had blown into the machine and that he had had to blow quite hard to activate it. Officer Bonin reported nothing about Robinson's overt behavior that might suggest that he had been attempting to avoid the test or sabotage the results. Proof of Robinson's refusal rested entirely upon the validity of the "deficient sample" readings on the machine printouts. The officer had no independent recollection of blowing into the machine in order to demonstrate to Robinson that it was working properly, but acknowledged that he usually did so when someone blew an insufficient sample on their first try. He explained that if the machine had failed to register an appropriate reading on him, he would not have made a second attempt with Robinson. He testified that he had observed Robinson for the minimum period before giving him the test and, further, that in administering the test, he had followed the intoxilyzer checklist. He noted that the machine had been calibrated on March 17, 1987, eight days before the incident. No other evidence was offered to show that the machine was in proper operating condition at a time before or after the tests were administered to Robinson. Furthermore, no evidence was offered to show that Officer Bonin was qualified to administer an intoxilyzer test. The hearing officer found that Robinson had refused to take the test and ordered that his license be suspended for one year. See A.R.S. § 28-691(B) (1988 Supplemental Pamphlet). Robinson moved for a rehearing on several grounds, including insufficiency of the evidence offered to support a finding of refusal absent proof that the officer administering the test was qualified to do so and that the machine had been checked after March 25 to establish that it was in proper working order. The motion for rehearing was denied, and Robinson appealed to the superior court. After concluding that the foregoing evidence was relevant and foundational, the superior court found insufficient evidence to support the hearing officer's decision and, accordingly, reversed it. On appeal to this court, the state asserts that the evidence presented to the hearing officer was sufficient to make a prima facie case for refusal. The state therefore argues that in order to prevail at the hearing, Robinson was obligated to demonstrate that the machine was not working properly. In any event, the state continues, evidence that the machine had accepted the sample provided by Officer Bonin was sufficient to demonstrate that the machine was operating properly. Furthermore, relying on Halloway v. Martin, 143 Ariz. 311, 693 P.2d 966 (App. 1984), the state argues that neither the officer's certification nor the accuracy of the testing device is an issue at an implied consent hearing. In all respects, we disagree. SUFFICIENCY OF THE EVIDENCE In an appeal to the superior court from an administrative decision under the implied consent law, the scope of review is limited to a consideration of whether the hearing officer's action was illegal, arbitrary, capricious, or an abuse of discretion. Ontiveros v. Arizona Department of Transportation, 151 Ariz. 542, 543, 729 P.2d 346, 347 (App. 1986). The hearing officer's decision will be set aside only if it is not supported by competent evidence. Id. The Arizona Supreme Court has defined refusal under the implied consent law as follows: It is the opinion of this court that a refusal to submit to the test occurs where the conduct of the arrested motorist is such that a reasonable person in the officer's position would be justified in believing that such motorist was capable of refusal and manifested an unwillingness to submit to the test. Campbell v. Superior Court, 106 Ariz. 542, 553, 479 P.2d 685, 696 (1971). Refusal may, of course, be verbal. See, e.g., Halloway. Furthermore, as the state correctly notes, evidence that a licensee verbally refused to submit to a breath test *197 is sufficient, even absent proof that the test, if performed, would have been administered by qualified personnel in accordance with methods prescribed by the department of health services. Id., 143 Ariz. at 313, 693 P.2d at 968. In that context, we observed that "the validity of a test refused is not relevant in determining suspension under the implied consent statute. That issue does not arise until a test is given and the results are offered as evidence." Id. (emphasis in original). The instant case does not concern verbal refusal, however, and must be distinguished from Halloway on that basis. There is no question but that Robinson verbally agreed to submit to the breath test. Moreover, the test was given, and the result — "deficient sample" — was offered as evidence. On the other hand, a refusal need not be verbal; conduct constituting less than cooperation by the licensee is tantamount to a refusal. Ontiveros, 151 Ariz. at 543, 729 P.2d at 347. In Ontiveros, the subject deposited chewing gum on the mouthpiece of the testing device, blew "little puffs of air," and otherwise displayed an attitude of "gamesmanship" rather than cooperation. Id. Similarly, in Kuznicki v. Arizona Department of Transportation, 152 Ariz. 381, 732 P.2d 1119 (App. 1986), the subject, having been given five opportunities to take the test, persisted in blowing out of the sides of his mouth despite instructions not to do so. See also Geer v. Ordway, 156 Ariz. 588, 754 P.2d 315 (App. 1987) (asked eleven times if he would take the test, subject persisted in responding with irrelevant questions and comments). In the case before us, however, no evidence was presented to suggest that Robinson was uncooperative in any way. In sharp contrast to the cases described above, the finding of Robinson's refusal rested entirely on the presumed validity of machine printouts indicating that he had provided "deficient" breath samples. We do not mean to imply that such independent evidence of non-cooperation is always necessary. In its absence, however, a finding of refusal cannot rest solely on test results that do not meet statutory foundational requirements. We therefore agree with the superior court's conclusion that the evidence of refusal was insufficient. The implied consent statute provides: Any person who operates a motor vehicle within this state gives consent, subject to the provisions of A.R.S. § 28-692, to a test or tests of his blood, breath, or urine for the purpose of determining the alcohol or drug content of his blood if arrested for any offense arising out of acts alleged to have been committed in violation of this chapter while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. A.R.S. § 28-691(A) (emphasis added). Thus, the validity and admissibility of such test results in an implied consent hearing are conditioned upon compliance with the requirements of A.R.S. §§ 28-692(G)[1] and -692.03.[2]See Fuenning v. Superior Court, 139 Ariz. 590, 602, 680 P.2d 121, 133 (1983) ("test results will be `valid' if `performed *198 according to methods approved by the department of health services' (A.R.S. § 28-692(G)), and thus will be `admissible' when it is established that the agency has complied with the standards required by A.R.S. §§ 28-692.03(A) and the rules promulgated under subsection B."). We hold that an intoxilyzer's "deficient sample" reading constitutes "results of a breath test," which may be admitted as evidence at an implied consent hearing only upon proof that the foundational requirements of A.R.S. § 28-692.03 have been met.[3] Because no other evidence supported the finding of refusal, the superior court correctly set aside the hearing officer's decision. AFFIRMED. CONTRERAS and KLEINSCHMIDT, JJ., concur. NOTES [1] A.R.S. § 28-692(G) provides: Any analysis of a person's blood, urine, breath or other bodily substance is valid under the provisions of this section if it is performed according to methods approved by the department of health services and by a person possessing a valid permit issued by the department of health services for such purpose. [2] A.R.S. § 28-692.03(A) provides: A. The results of a breath test administered for the purpose of determining a person's blood alcohol level are admissible as evidence in any trial, action or proceeding for a violation of § 28-692 upon establishing the following foundational requirements: 1. The test was performed using a quantitative breath testing device approved by the department of health services. A properly authenticated certification by the department of health services is sufficient to establish this requirement. 2. The operator who conducted the test possessed a valid permit issued by the department of health services to operate the device used to conduct the test. 3. An operator observed the person charged with the violation for twenty minutes immediately preceding the administration of the test. 4. The operator who conducted the test followed an operational checklist approved by the department of health services for the operation of the device used to conduct the test. The testimony of the operator is sufficient to establish this requirement. 5. The device used to conduct the test was in proper operating condition. Records of periodic maintenance which show that the device was in proper operating condition at a time before and after the test are admissible in any proceeding as prima facie evidence that the device was in proper operating condition at the time of the test. Such records are public records. [3] It is undisputed that the record fails to demonstrate that Officer Bonin possessed a valid permit to operate an intoxilyzer. See A.R.S. § 28-692.03(A)(2). Therefore, we need not consider the state's argument that evidence indicating that the officer was able to produce an appropriate reading with his own breath sample was sufficient to demonstrate that the machine was in proper operating condition.

[Cite as Kolosai v. Azem, 2019-Ohio-66.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 102920 PAULETTE KOLOSAI, ADMINISTRATOR OF THE ESTATE OF NICHOLAS GIANCOLA PLAINTIFF-APPELLANT vs. HAITHAM MOUAID AZEM, M.D., ET AL. DEFENDANTS-APPELLEES JUDGMENT: AFFIRMED AND REMANDED Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-806065 BEFORE: Laster Mays, J., Kilbane, A.J., and Stewart, J.* RELEASED AND JOURNALIZED: January 10, 2019 __________________ * Editor’s Note: Judge Melody J. Stewart participated in this ruling before her resignation from this court. -i- ATTORNEYS FOR APPELLANT Mark A. DiCello Mark Abramowitz Robert F. DiCello Justin Hawal The DiCello Law Firm 7556 Mentor Avenue Mentor, Ohio 44060 Jacques G. Balette Marks, Balette & Giessel, P.C. 10000 Memorial Drive, Suite 760 Houston, Texas 77024 ATTORNEYS FOR APPELLEES Rita A. Maimbourg Jane F. Warner Tucker Ellis L.L.P. 950 Main Avenue, Suite 1100 Cleveland, Ohio 44113 Leslie Moore Jenny Jason P. Ferrante Kenneth W. McCain Marshall Dennehey Warner Coleman & Goggi 127 Public Square, Suite 3510 Cleveland, Ohio 44114 ANITA LASTER MAYS, J.: I. INTRODUCTION {¶1} The instant appeal is before us pursuant the Ohio Supreme Court’s decision in Giancola v. Azem, Slip Opinion No. 2018-Ohio-1694 (“Kolosai III”). The court heard an appeal from this court’s decision in Kolosai v. Mouaid, 8th Dist. Cuyahoga No. 102920, 2016-Ohio-5831 (“Kolosai II”), where we held that the law-of-the-case doctrine, based on our decision in Kolosai v. Azem, 8th Dist. Cuyahoga No. 100890, 2014-Ohio-4474 (“Kolosai I”), barred our consideration of the assigned errors set forth in Kolosai II. The Ohio Supreme Court disagreed and remanded the case for review of the assigned errors. II. BACKGROUND AND FACTS {¶2} Paulette Kolosai (“Kolosai”), administrator of the estate of Nicholas Giancola (“Nicholas”), is the plaintiff-appellant in this nursing home negligence and wrongful death case against defendants-appellees Cleveland Healthcare Group, Inc., Walton Manor Health Care Center, Saber Healthcare Group, L.L.C., Saber Healthcare Holdings, L.L.C., and Saber Healthcare Foundation (collectively “Walton Manor”) and Haitham Mouaid Azem, M.D. (“Azem”). The pending question is whether the trial court properly determined that Nicholas signed the Walton Manor arbitration agreement that would result in a stay of the wrongful death action pending arbitration. {¶3} Kolosai filed this action against appellees on April 29, 2013, as amended on July 11, 2013, claiming: (1) corporate negligence; (2) corporate recklessness/willfulness; (3) medical negligence; (4) gross negligence; (5) resident rights violations; (6) wrongful death; and (7) survivorship damages. Walton Manor responded to the complaint by filing an answer on July 23, 2013. The answer included a number of affirmative defenses; however, there was no defense referencing an arbitration agreement or lack of jurisdiction though there was a reference to failure to comply with the admission agreement. {¶4} On August 27, 2013, Walton Manor filed a motion to stay the proceedings pending arbitration, asserting that Nicholas signed a Resident and Facility Arbitration Agreement (“Arbitration Agreement”). Kolosai argued that the deposition testimony of Walton Manor’s witness and former employee, Stephanie Lewis McCaulley (“Lewis”), who admitted Nicholas to the nursing home and signed the Arbitration Agreement as the facility representative, established that Nicholas’s mother, Rose Giancola (“Rose”) executed the Arbitration Agreement without authority to do so, thus rendering it unenforceable. {¶5} Though Rose was admitted to Walton Manor just a few weeks after Nicholas,1 no documents containing Rose’s signature were presented to the trial court supporting Walton Manor’s argument that Nicholas signed the agreement. Instead, Walton Manor relied on the copy of the Arbitration Agreement containing a signature above the name of Nicholas. Walton Manor also argued that Lewis’s testimony was vague and was not based on actual knowledge. {¶6} The trial court decided that Rose signed the Arbitration Agreement on behalf of Nicholas with apparent authority to do so and granted the stay as to Counts 1-5 and 7. The wrongful death claim set forth in Count 6 was retained for further proceedings on the ground that a decedent cannot bind beneficiaries to arbitration in a wrongful death claim. Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, 873 N.E.2d 1258, ¶ 19. {¶7} On January 15, 2014, Kolosai appealed the trial court’s order in Kolosai v. Azem, 8th Dist. Cuyahoga No. 100890, 2014-Ohio-4474 (“Kolosai I”). Kolosai argued that the trial court erred in granting the stay and holding that Rose signed the Arbitration Agreement, which would render it unenforceable, yet determining the Arbitration Agreement was, in fact, enforceable under the doctrine of apparent authority, an argument that was not offered by either 1 Nicholas was admitted on October 28, 2011. Rose was admitted on November 21, 2011. Both Rose and Nicholas are now deceased. party. Walton Manor at no point during the trial court proceedings offered evidence to support its argument that Nicholas signed the Arbitration Agreement. {¶8} While advocating before this court on appeal, Walton Manor proffered documents that were not part of the record. The documents consisted of Rose’s admission documents that had been in Walton Manor’s possession since Rose was admitted to the facility in 2011. The documents had never been introduced as evidence. Walton Manor claimed that the documents “were not available due to the lack of discovery prior to the Motion to Stay.” Appellee’s Brief at 2. Kolosai I at ¶ 4. {¶9} We noted in our opinion that, while new evidence could not be entertained by this court, the submission of the additional documentation to support the premise that Nicholas signed the Arbitration Agreement effectively confirmed Kolosai’s position that the trial court’s finding of apparent authority was erroneous. This court also rejected Walton Manor’s fall-back position offered during the appeal that the trial court properly granted the stay based on the doctrine of apparent authority because it directly conflicted with their contrary argument that Nicholas signed the Arbitration Agreement.2 Id. at ¶ 9-10. {¶10} Thus, we sustained Kolosai’s first assignment of error that: The trial court abused its discretion in finding the Arbitration Agreement was enforceable due to apparent agency principles. The trial court should not have relied upon this theory because it was an erroneous interpretation of fact and not addressed in the motion to stay and enforce the binding Arbitration Agreement. 2 “Walton Manor hedges its argument by claiming that even if we ignore its new evidence on appeal, the apparent agency theory was appropriately relied upon by the court under the circumstances, thus providing sufficient justification for its decision to enforce the arbitration agreement.” Kolosai I at ¶ 9. In light of the trial court’s improper reliance on the apparent authority principle, this court reversed and remanded the case “for further proceedings consistent with the opinion.” Id. at ¶11. {¶11} Walton Manor filed a renewed motion to stay arbitration on December 12, 2014. Attached to the motion were copies of Rose’s admission documents that were improperly proffered during the oral argument in Kolosai I and a December 4, 2014 letter, on Speckin Forensic Laboratories letterhead that was signed by Forensic Document Analyst Robert D. Kullman (“Kullman”).3 Kullman opined that, based on his review of documents that contained the signatures of Nicholas and Rose, (1) the signatures on the copies of Nicholas’s admission and arbitration agreements were probably written by the same person, to a reasonable degree of scientific certainty; and (2) the signatures on those agreements, compared with documents containing Rose’s signature were, to a reasonable degree of scientific certainty, not written by the same person. {¶12} Kolosai replied on December 19, 2014, that the law-of-the-case doctrine applied because Kolosai I determined that the Arbitration Agreement that the trial court held was signed by Rose was not enforceable because apparent authority did not apply. Kolosai offered that the impact of the Kolosai I decision required the trial court to lift the stay and move forward with the case on the merits. {¶13} Kolosai also argued that: (1) Walton Manor failed to submit Rose’s information during the initial proceedings though it had been in their possession since November 3 The document also states that a curriculum vitae with Kullman’s last four years of testimony is attached, but it is not a part of the court filing. 2011; (2) due to the law-of-the-case, the motion should have been made under Civ.R. 60(B); (3) Walton Manor waived the right to a stay by conducting the depositions of Nathan and Vanessa Giancola on the merits of the case; and (4) Kullman’s report was unreliable because it failed to meet the Daubert4 test for expert qualifications and reliability under Evid.R. 702 as set forth in Walker v. Ford Motor Co., 8th Dist. Cuyahoga No. 100759, 2014-Ohio-4208. {¶14} The trial court held an evidentiary hearing on February 27, 2015. Prior to the hearing, Walton Manor filed a Notice of Filing of the Affidavit of Robert Kullman setting forth his forensic findings, a copy of Kullman’s report submitted with Walton’s Manor’s initial motion, Kullman’s curriculum vitae, and copies of the documents that Kullman relied on in forming his opinion. Kolosai objected that the documents were handed to Kolosai’s counsel only two hours before the hearing. {¶15} At the hearing, Walton Manor said the law firms had been in discussions since 2013 regarding obtaining a release for Rose’s forms due to Health Insurance Portability and Accountability Act (“HIPAA”) concerns preventing revelation until Kolosai provided a signed release on April 23, 2014.5 Walton Manor advised that its position had always been that Nicholas signed the documents. {¶16} Kolosai reiterated that HIPAA had not prevented the release of Rose’s signature that had been in Walton Manor’s possession since 2011 and that the law-of-the-case should apply. Kolosai also disputed the efficacy of Kullman’s affidavit and argued that Kolosai had no 4 Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). 5 In Kolosai I, Walton Manor’s explanation was that the documents were not available until the appellate proceedings due to the lack of discovery during the motion to stay. opportunity to conduct discovery, secure a rebuttal expert, or cross-examine Kullman, a paid biased witness. {¶17} Kolosai also complained that Walton Manor withheld Nicholas’s admission records until 20 minutes before the deposition of Lewis. The records included a checklist that indicated Rose signed Nicholas’s documents, including the Arbitration Agreement. In spite of Lewis’s testimony that documents were presented to Rose, Walton Manor refused to withdraw the motion to stay. {¶18} The trial court determined that, based on the opinion of the expert, as well as exhibits, Nicholas signed the Arbitration Agreement and granted the stay. The trial court pointed out that Kolosai failed to rebut the Kullman report and exhibits submitted by Walton Manor, and that Plaintiffs’ post-hearing brief includes a motion to strike Kullman’s affidavit, because, in part, “he ignores the plain [fact] that * * * this court has already ruled that Rose Giancola signed the arbitration agreement.” However, as stated, that ruling was reversed by the Court of Appeals. Accordingly, plaintiffs’ motion to strike is denied. Upon remand, defendants’ renewed motion to stay proceedings and compel/enforce arbitration is granted. (Emphasis added.) Journal entry No. 88549382 (Mar. 30, 2015). {¶19} Kolosai appealed and we determined in Kolosai II that the trial court was bound by the law-of-the-case doctrine based on our opinion in Kolosai I. Appellees appealed our decision and the Ohio Supreme Court concluded: The law-of-the-case doctrine provides that legal questions resolved by a reviewing court in a prior appeal remain the law of that case for any subsequent proceedings at both the trial and appellate levels. Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). The decision of the appellate court in the first appeal in this case was limited to whether Nicholas Giancola’s mother had apparent authority to sign an arbitration agreement on behalf of her son. Therefore, the law-of-the-case  from the first appeal was not relevant in the second appeal, because on remand from the first appeal, the trial court had relied on new evidence to decide that Giancola had signed the arbitration agreement. We reverse the Eighth District’s judgment, which was based on the law-of-the-case doctrine, and we remand the matter to that court for review of the assignments of error that were not considered. Kolosai III at ¶ 1. III. ASSIGNMENTS OF ERROR I. The trial court abused its discretion by ruling against the clear manifest weight of the evidence. II. It was error for the trial court to consider the affidavit of defendants’ expert, previously undisclosed, in ruling on defendants’ renewed motion to compel arbitration. III. The trial court erred by reversing its earlier ruling finding that Rose Giancola signed the arbitration agreement. IV. LAW AND ANALYSIS A. Manifest Weight {¶20} The trial court initially determined that Rose signed the Agreement on behalf of Nicholas with apparent authority. Kolosai argues that the trial court’s subsequent determination that Nicholas signed the agreement based on a signature comparison with the allegedly newly discovered form containing the signature of Rose is not supported by the manifest weight of the evidence. {¶21} When reviewing the manifest weight of the evidence, we weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-20. We are guided by the presumption that the trial court’s findings were correct and will not reverse the  trial court’s judgment if it is supported by some competent, credible evidence going to all the essential elements of the case. Domaradzki v. Sliwinski, 8th Dist. Cuyahoga No. 94975, 2011-Ohio-2259, ¶ 6, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. OneWest Bank, N.A. v. Unknown Heirs, 8th Dist. Cuyahoga No. 104503, 2016-Ohio-8159, ¶ 14. {¶22} The Ohio Supreme Court has steadfastly maintained that, “‘[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit.’” Taylor v. Ernst & Young, L.L.P., 130 Ohio St.3d 411, 2011-Ohio-5262, 958 N.E.2d 1203, ¶ 20, quoting AT&T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 648-649, 106 S. Ct. 1415, 89 L.Ed.2d 648 (1986). See also Acad. of Med. v. Aetna Health, Inc., 108 Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488, ¶ 11-14 (in order for an arbitration agreement to be enforceable, the agreement must apply to the disputed issue), and Ghanem v. Am. Greetings Corp., 8th Dist. Cuyahoga No. 82316, 2003-Ohio-5935, ¶ 12. {¶23} An appellate court applies the principles that govern contract formation in deciding whether a party has agreed to arbitrate. We look for “mutual assent on the essential terms of the agreement, which is usually demonstrated by an offer, acceptance of the offer, and consideration.” Seyfried v. O’Brien, 2017-Ohio-286, 81 N.E.3d 961, ¶ 19 (8th Dist.), citing Reedy v. The Cincinnati Bengals, Inc., 143 Ohio App.3d 516, 521, 758 N.E.2d 678 (1st Dist.2001). “[Q]uestions of contract formation and intent remain factual issues to be resolved by the fact finder after careful review of the evidence.” One Hundred Forty Realty Co. v. England, 2d Dist. Montgomery No. 10189, 1987 Ohio App. LEXIS 10263 (Dec. 23, 1987), citing Mead Corp. v. McNally-Pittsburgh Mfg. Corp., 654 F.2d 1197, 1206 (C.A.6 1981). Specifically, the question of whether the parties  agreed to arbitrate their disputes is a matter of contract and the terms of a contract are a question of fact. Palumbo v. Select Mgt. Holdings, Inc., 8th Dist. Cuyahoga No. 82900, 2003-Ohio-6045, ¶ 18. Id. at ¶ 19. {¶24} In Kolosai I, Walton Manor asserted in the trial court that Nicholas signed the agreement but, (1) failed to proffer evidence in support of its position either initially or in rebuttal, and (2) failed to file a cross-appeal in Kolosai I challenging the trial court’s finding that Rose signed the agreement. In light of the dearth of evidence, the trial court determined, based on the testimony of the Walton Manor representative that was present with Nicholas and Rose when Nicholas’s admission documents were signed, that Rose signed the agreement with apparent authority. {¶25} The “new evidence” consisted of the expert opinion that accompanied the renewed motion to stay pending arbitration upon remand by this court. The opinion was, in turn, based on the expert’s review of more “new evidence” consisting of an admission document from Walton Manor’s files, executed by Rose in 2011 when she was admitted to Walton Manor’s facility just weeks after the admission of Nicholas. {¶26} Kolosai points to the October 29, 2013 deposition testimony of Lewis to support Kolosai’s position that Nicholas did not sign the documents. Lewis, who was working for a different employer by the time of the deposition, served as a social service designee at Walton Manor in March of 2011. Lewis handled the admission process for Nicholas. {¶27} The admission coordinator prepared the admission packet along with a checklist indicating what information was required for the admission such as whether the prospective resident had a health care power of attorney and an attorney-in-fact who may execute the documents on the resident’s behalf. Lewis would usually highlight or place an “X” at the areas that required signatures. Lewis explained that she did not insert the typewritten name and date information at the tops of the admission forms because that process was computerized and that was not the practice. Lewis “did it by hand.” (Tr. 44-45.) Sometimes the documents were signed on a date after the actual admission if there was a backlog. After the documents were executed, Lewis turned the packet over to the admission coordinator. {¶28} Lewis recalled that Nicholas was admitted for rehabilitation and that Nicholas became a resident shortly before his mother Rose was admitted. The signatures in Nicholas’s packet contained typewritten names for Nicholas and Rose below the signature lines. In some cases, the signatures were on the signature line for Nicholas and others above the name for Rose. {¶29} In spite of the fact that the packet indicated Rose signed the documents, Lewis’s testimony was somewhat ambiguous. At one point she testified that she did not know whether Rose was present when the admission packet for Nicholas was signed and she did not recall obtaining Rose’s signature. At other times, Lewis’s responses indicated that Rose signed the documents. Q And we see the signature purportedly to be of Rose Giancola; right? A Yes. *** Q Now, we know from [p]age 1 * * * [of the admission packet] that Rose Giancola signed the admission paperwork; right? A Correct. Q And your review of the Arbitration Agreement on [p]age 15 confirms that Rose Giancola signed the Arbitration Agreement; right? A Yes. (Tr. 46.) {¶30} In response to the question of whether Lewis “had any specific recollection of Rose Giancola in explaining the paper work [for Nicholas] to Rose Giancola” during the admission, Lewis responded “I don’t remember. I know they were there [patients at the facility] at the same time and I know she was his — she was his [power of attorney], so that would be who I would have spoken to.” (Tr. 48-49.) Yet then Lewis said she had no personal recollection of speaking with the admission coordinator about who should sign the admission documents for Nicholas or that Rose held a health care power of attorney for Nicholas though that would be the standard procedure. Lewis said several times that she had no independent recollection of explaining the documents to Nicholas or Rose but could explain the usual admission process. {¶31} Typically, Lewis would read the first paragraph of the Arbitration Agreement to the resident and explain the rest: Then when it said binding nature of arbitration, I would go through and explain it, that meant that we were able to go in front of a magistrate, they had that choice in order to solve any issues or anything like that that were — that they had with us as a nursing home facility, whether it would be financial or medical. In that nature I would just go through each of them, like, who conduct[s] it? A magistrate would be conducting it as opposed to us going in front of maybe a judge or anything like that or having attorneys. The magistrate would be like the middle person is how I was explained. [sic] (Tr. 67.) {¶32} Lewis would read verbatim any portions that she was unable to summarize or did not understand. Generally, Lewis was not familiar with how the arbitration process worked or what rules applied but was aware that arbitration was in lieu of a constitutional right to a jury trial. Lewis also explained to the resident or representative that they did not have to sign the arbitration agreement. If there were questions about the agreement, Lewis would have an administrator handle them. {¶33} Kullman reviewed signatures contained in the admission packet for Nicholas and the admission packet for Rose. Kullman concluded that the signatures on the documents for Nicholas’s admission “were to a reasonable degree of scientific certainty, probably written by the same person.” Kullman also determined that it was “highly probable” that the signatures on Nicholas’s admission documents, including the arbitration agreement, and the signature on the documents submitted from Rose’s admission “were, to a reasonable degree of scientific certainty, not written by the same person.” {¶34} Kolosai does not contest the authenticity of Rose’s signature on her own admission documents. Additional evidence supporting the finding that Nicholas signed the Arbitration Agreement is the deposition testimony of Nathan Giancola, the nephew of Nicholas, who said that Nicholas would have been making his own medical care decisions at the time of his admission. {¶35} Our review of the facts in this case includes a comparison of the signatures on the documents. The October 24, 2011 Admission Agreement for Nicholas contains the typewritten names of Nicholas as the resident and Rose as the representative. The signature line above the typewritten name of Nicholas at the end of the agreement is blank. The signature line above the typewritten name of Rose contains a barely legible signature that includes a middle initial. Below the signatures is the signature of Lewis, the Walton Manor employee who conducted the admission process, and a signing date of October 28, 2011. {¶36} The Arbitration Agreement also contains the typewritten date of October 24, 2011 and name of Nicholas as resident. The same signature appears above the name of Nicholas. There is no signature above the name of Rose. This document was also signed by Lewis and dated October 28, 2011. {¶37} A document entitled “Authorization & Acknowledgment of Receipt” contains no signature above the printed name of Nicholas. The signature line for Rose is similar to the signatures on the other documents and is also signed by Lewis on October 28, 2011. {¶38} Additional documents contain what appears to be the same signature. A Medicare secondary payer form lists Nicholas as the resident. The single signature line contains the printed name “Rose Giancola,” but the signature below it matches the signatures throughout the package. Though the signatures in Nicholas’ packet are sometimes over his name and sometimes over Rose’s name, the signatures visibly appear to be consistent in form. {¶39} Rose’s admission packet is dated November 20, 2011. Rose is listed as the resident and Nicholas as the representative. The signature of Rose’s name is discernibly larger and more legible than the Nicholas packet. The facility representative that conducted the admission for Rose was Dan Burgett on November 21, 2011. {¶40} Based on our review of the record, this court does not find that the “finder of fact clearly lost its way” in this case. Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-20. The trial court’s judgment is supported by the manifest weight of the evidence. The first assigned error lacks merit.  B. Expert Affidavit {¶41} Kolosai next contends that the trial court’s consideration of Kullman’s expert affidavit proffered with the renewed motion for reconsideration on remand was in error. We disagree. {¶42} Kolosai asserts that appellees produced the affidavit and expert opinion at the last hour, denying them the opportunity to conduct discovery of Kullman’s opinion, securing a rebuttal expert, and cross-examining Kullman. Kolosai also argues that Kullman’s opinion did not comply with applicable evidentiary rules and constituted biased, paid evidence. {¶43} Rose died on December 27, 2013. Kolosai I was remanded on October 9, 2014. The renewed motion was filed on December 12, 2014, based on obtaining Rose’s signature from her admission file and the expert report of Kullman. The trial court’s judgment entry returning the case to the regular docket was entered on December 15, 2014. Kolosai replied on December 19, 2014. On February 27, 2015, appellees filed the Kullman affidavit in further support of its filing. The hearing on the renewed motion was held on March 2, 2015. Supplemental post-hearing briefs were also entertained. On March 30, 2015, the trial court determined that Kolosai failed to rebut appellees’ evidence that Nicholas signed the agreement. {¶44} Evid.R. 702 provides: A witness may testify as an expert if all of the following apply: (A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;  (C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. * * * {¶45} Further, “‘The determination of whether a witness possesses the qualifications necessary to allow expert testimony lies within the sound discretion of the trial court. [Thus], the qualification of an expert witness will not be reversed unless there is a clear showing of an abuse of discretion on the part of the trial court.’” Georgetown of the Highlands Condominium Owners’ Assn. v. Nsong, 8th Dist. Cuyahoga No. 106025, 2018-Ohio-1966, ¶ 56, quoting State v. Wages, 87 Ohio App.3d 780, 786, 623 N.E.2d 193 (8th Dist.1993). An abuse of discretion standard “connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶46} Kullman’s curriculum vitae is extensive, reflecting training with the Michigan State Police, study at the Federal Bureau of Investigation Training Academy, and the U.S. Secret Service Laboratory. Kullman provided expert testimony comparing signatures on documents more than 225 times. {¶47} There is no evidence in the record that Kolosai attempted to depose Kullman or requested an extension of time to secure a rebuttal expert. While the Kullman affidavit and curriculum vitae information were added to the record a few days prior to the hearing, the Kullman opinion attached to the renewed motion to stay was filed more than three months prior to the hearing. {¶48} The Kullman opinion is on letterhead listing the company’s name, Speckin Forensic Laboratories, addresses in Michigan and Florida, contact numbers, and website. The documents that Kullman relied on in arriving at his opinion are identified. Kullman described the method of examination and factors that lead to his conclusions. The ASTM Designation standards used to describe forensic document examinations along with the corresponding definitions are also listed. Clearly, Kolosai had prior notice of Kullman’s identity and opinion. {¶49} As Kolosai briefly alluded to a Daubert challenge, Expert witnesses in the field of handwriting analysis generally offer their opinions to “a reasonable degree of scientific certainty.” (Emphasis added.) E.g., State v. Loza, 71 Ohio St.3d 61, 77, 641 N.E.2d 1082 (1994); State v. Powell, 8th Dist. Cuyahoga No. 99386, 2014-Ohio-2048, ¶ 96. However, under Evid.R. 702, experts are not required to use any particular “magic words.” Lucsik v. Kosdrosky, 2017-Ohio-96, 79 N.E.3d 1284, ¶ 15. Rather, an expert’s opinion is admissible so long as it provides evidence of more than mere possibility or speculation. Id. (expert testimony admissible even though not offered to “a reasonable degree of medical certainty”); Butler v. Minton, 6th Dist. Erie No. E-05-061, 2006-Ohio-4800, ¶ 17 (same); see also Johnson v. Memphis Light Gas & Water Div., 695 Fed.Appx. 131, 136-137 (6th Cir.2017) (same result under Federal Rules of Evidence). State v. Beasley, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 162. {¶50} In this case, the Kullman opinion contained the proper terminology. As the trial court observed, Kolosai supplied no evidence rebutting the Kullman opinion or the documents submitted during the hearing containing the signatures from both admission packets. We do not find that the trial court abused its discretion. {¶51} The second assigned error is overruled. C. Reversal of Prior Finding {¶52} As the third and final assigned error, Kolosai advances the procedural argument that the trial court could not effectively vacate the prior judgment that Rose signed the agreement without apparent authority unless that judgment was vacated by a Civ.R. 60(B) motion. This argument also fails.  {¶53} As the Ohio Supreme Court explained, Rather, “‘[u]pon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred.’” State ex rel. Douglas v. Burlew, 106 Ohio St.3d 180, 2005-Ohio-4382, 833 N.E.2d 293, ¶ 11, quoting State ex rel. Stevenson v. Murray, 69 Ohio St.2d 112, 113, 431 N.E.2d 324 (1982). In this case, error occurred when the trial court granted the motion to stay arbitration on the basis of Giancola’s mother’s apparent authority to bind her son. By ordering a remand for “further proceedings,” the decision in Kolosai I returned the parties to the same position they were in prior to the error, and nothing precluded Walton Manor from reasserting its argument that Giancola had signed the arbitration agreement or prevented the trial court from permitting the introduction of new evidence to support that assertion. Kolosai III at ¶ 21. IV. Conclusion {¶54} The trial court’s judgment is affirmed. The case is remanded to the trial court for proceedings consistent with this opinion. It is ordered that appellees recover from appellant 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 common pleas 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. ____________________________________ ANITA LASTER MAYS, JUDGE MARY EILEEN KILBANE, A.J., CONCURS IN JUDGMENT ONLY; MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4484 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ANDRES ESTRADA, Defendant - Appellant. No. 06-4804 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus PRIMITIVO ABEJA VEGA, a/k/a Roberto Lopez, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:05-cr-00363-JAB) Submitted: July 11, 2007 Decided: July 20, 2007 Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. John A. Dusenbury, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina; Benjamin D. Porter, MORROW, ALEXANDER & PORTER, PLLC, Winston-Salem, North Carolina, for Appellants. Anna Mills Wagoner, United States Attorney, Randall Stuart Galyon, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. - 2 - PER CURIAM: In these consolidated appeals, Andres Estrada and Primitivo Abeja Vega appeal their convictions and sentences for conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 846 (2000). On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), claiming there are no meritorious issues on appeal, but raising the question of whether the sentences were reasonable. Neither Appellant filed a pro se supplemental brief. Finding no error, we affirm. We find Appellants’ ranges of imprisonment were properly calculated under the Sentencing Guidelines. Thus, their sentences at the low end of the Guidelines range of imprisonment were reasonable. United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006). Pursuant to Anders, we have examined the entire record and find no meritorious issues for appeal. Accordingly, we affirm the convictions and sentences. We require counsel to inform the clients, in writing, of their right to petition the Supreme Court of the United States for further review. If a client requests a petition be filed, but counsel believes such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on the client. We dispense with oral - 3 - argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process. AFFIRMED - 4 - 

774 F.Supp.2d 34 (2011) OBAYDULLAH, Petitioner, v. Barack H. OBAMA,[1] et al., Respondents. Civil Case No. 08-1173 (RJL). United States District Court, District of Columbia. March 23, 2011. *35 Cindy Panuco, Radhika Sainath, Virginia Keeny, Dan Stormer, Hadsell Stormer Keeny Richardson & Renick, LLP, Anne Richardson, Nagwa Ibrahim, Pasadena, CA, Gaillard T. Hunt, Silver Spring, MD, Kristine Huskey, Ranjana Natarajan, National Security Clinic, Austin, TX, Pardiss Kebriaei, New York, NY, for Petitioner. Andrew I. Warden, Arthur Laverne Rizer, Ronald James Wiltsie, Scott Michael Marconda, August Edward Flentje, James J. Schwartz, Terry Marcus Henry, U.S. Department of Justice, Civil Division, Washington, DC, for Respondents. CLASSIFIED MEMORANDUM OPINION RICHARD J. LEON, District Judge. For the reasons set forth on the record at the public hearing held on October 19, 2010, and for the following reasons, the Court DENIES Obaydullah's petition for a writ of habeas corpus. ANALYSIS Petitioner Obaydullah, an approximately 27-year old Afghan citizen, grew up in the small village of Milani in the Khost province near the Pakistan border. On July 21, 2002. U.S. forces, acting on tips from various intelligence sources, conducted a nighttime raid at the petitioner's home. During that raid, U.S. forces secured from his person a notebook containing certain diagrams that appeared to be wiring designs for building lethal improvised explosive devices ("IEDs"). In addition, U.S. forces found a stash of 23 anti-tank mines buried in an outdoor pit close to petitioner's home. Petitioner was, of course, taken into custody and transported to Champman Airfield for follow-up questioning. Shortly thereafter, he was transferred to Bagram Airfield where he was imprisoned for approximately three months before being transported to the U.S. Naval Base in Guantanamo Bay, Cuba in October 2002. ANALYSIS The Government argues that Obaydullah is the type of individual who is detainable *36 under the Authorization for Use of Military Force ("AUMF")—or, in other words, is an enemy combatant—because he was "part of" an Al Qaeda "bomb cell" operating in the Khost region of Afghanistan at the time he was taken into custody by U.S. forces in 2002. (Return ¶ 1 at 1.) In particular, the Government contends that petitioner: (1) was hiding on his property a cache of 23 anti-tank mines and seven plastic mine shells from which explosives had been removed; (2) was captured in possession of a notebook containing instructions and wiring diagrams for how to build a remote-control detonating device (i.e., IED); (3) was storing an automobile that contained dried blood and Taliban propaganda, and that had been used by him and another to ferry to a local hospital certain bomb cell members who had been injured in an accidental explosion; and (4) has repeatedly given false and implausible explanations regarding his knowledge of, and involvement with, these explosives, this notebook, and this automobile. In short, the Government contends that its pre-raid intelligence sources linking Obaydullah to the bomb cell have been more than adequately corroborated and that it is therefore more likely than not that petitioner was indeed a member of that al Qaeda cell. Petitioner, not surprisingly, disagrees. He denies any ownership interest in the mines and automobile recovered from his property. (Classified Opening 16:12-18:2, 18:4-23.) Moreover, he claims that the notebook contains nothing more than his notes from a bomb detection training he had been required to attend by the Taliban some eight months earlier, as well as notes from his business. (Traverse 5-6.) In essence, he claims that either the Government's pre-raid intelligence has not been adequately corroborated, or that the unidentified sources of the Government's pre-raid intelligence have falsely accused him of membership in this supposed al Qaeda bomb cell. (Classified Opening 20:4-18; 21:4-10.) Upon reviewing the return, the traverse, and oral arguments of counsel during the merits hearing, 1 disagree with the petitioner's contention and conclude for the following reasons that the Government has more than adequately established that it is more likely than not that the petitioner was in fact a member of an al Qaeda bomb cell, and is therefore detainable under the AUMF. 1. The pre-raid intelligence. The Government's case in large part rests on the pre-raid intelligence reports that link Obaydullah to an al Qaeda bomb cell. However, the Government has not disclosed the source of the pre-raid intelligence. Though, as petitioner points out, raw intelligence reports may not be sufficiently reliable, standing alone, to justify detention (Traverse 17-18), essentially, the government argues that its intelligence has been sufficiently corroborated to conclude that it is accurate, and thus, that it is more likely than not that Obaydullah was, in fact, a member of an al Qaeda bomb cell and is thus detainable under the AUMF. Accordingly, a short description of the information contained in that pre-raid intelligence is appropriate. [Redacted] 2. The raid on Obaydullah's compound. U.S. forces, acting on this intelligence, subsequently conducted a night-time raid on petitioner's compound on July 21, 2002.[Redacted] During the raid,[Redacted] U.S. forces recovered 23 anti-tank mines of Italian and Pakistani origin, as well as seven empty mine shells,[Redacted]from Obaydullah's compound. [Redacted] U.S. forces also *37 found a taxi cab in the compound that was covered by a tarp and contained inside dried blood and Taliban propaganda. (Gov't Exs. 37,[Redacted]110.) Indeed, the Special Forces Staff Sergeant who participated in the raid reported that the blood could have been connected to an earlier incident in which petitioner and Karim Bostan were seen by an intelligence source taking some individuals to the hospital after an accidental explosion that occurred during the construction of a mine-based IED. (Gov't Ex. 37.) Finally, U.S. forces recovered a notebook from Obaydullah's pocket. (Return ¶ 45 at 18-19; Gov't Ex. 110; see also Gov't Ex. 17.) That notebook contained information intended to assist in the construction of a remote-controlled IED that used a mine as its main charge. (Gov't Ex. 13.) Obaydullah, who then identified himself as "Baitullah," was taken into custody along with two of his cousins. (Gov't Ex. 110, Return ¶ 43 at 18). 3. Petitioner's explanations for his possession of the mines and the notebook. At the scene, the petitioner, by his own admission, lied when confronted with the mines and the notebook. With respect to the mines, Obaydullah claimed that he was holding onto the mines for his business partner and friend, Karim, who he later identified to be Karim Bostan. (Gov't Ex. 37; Return ¶ 46 at 19.) With respect to the notebook, petitioner again lied by telling the soldiers that the notebook contained notes and diagrams regarding, of all things, a power generator. (Gov't Exs. 37, 110.) Petitioner also maintained that the notebook had been given to him by Karim. (Gov't Ex. 110.) Obaydullah now puts forth very different accounts of the mines as well as the notebook. For the following reasons, however, I find his current explanations for why he was in possession of anti-tank mines and a notebook of instructions on how to generate mine-detonated IEDs, not to be credible. With respect to the mines, Obaydullah later changed his story on a number of occasions regarding his involvement with, and interest in, the mines. (Hearing Tr., Oct. 1, 2010 AM, 4:24-9:25, 11:10-14:21.) His initial reconfiguration of the events was that the mines had been left behind at his home more than ten years earlier by the Soviet commander Ali Jan, who had used Obaydullah's compound as an operations base. (Id. 8:9-15; Gov't Ex. 29.) However, he has also at times claimed that the mines were instead left by jihad fighters. (Gov't Ex. 30). He claimed that his mother and uncle buried the discarded mines some 300 meters from his compound. (Gov't Ex. 47.) However, at other times he claimed that he buried them himself (Gov't Exs. 30, 46), that just he and his uncle buried them (Gov't Ex. 107), or that just he and his mother buried them (Gov't Ex. 89). Petitioner has also changed his story as to when the mines were buried, at one time saying that they were buried approximately in 1992, ten years prior to his arrest (Gov't Ex. 47), yet also stating that they were buried approximately in 2001, just after Obaydullah's supposed conscripted attendance at a Taliban school (Gov't Ex. 107). Petitioner now even questions whether the mines uncovered by the U.S. forces are the same mines he recalls burying, but even if they are, continues to contend that he did not intend to use the anti-tank mines to build IEDs for use against U.S. and Allied forces. (Hearing Tr., Sept. 30, 2010 PM, 35:9-36:15; 61:5-6.) More specifically with respect to the mines, however, petitioner contends, inter alia, that a number of inaccuracies in the *38 pre-raid intelligence's description regarding the mines and their location, are sufficient evidence to undercut the overall credibility of the sources of the pre-raid intelligence linking him to al Qaeda. (Classified Opening 21:24-23:22.) For example, the pre-raid intelligence mentioned[Redacted]and that the mines were Soviet, not Pakistani or Italian (Classified Closing 31:19-20). Petitioner also points to other statements in the pre-raid intelligence linking him to al Qaeda to argue that it has not been sufficiently corroborated. I disagree. The details Obaydullah focuses on are— for the most part—of insufficient importance in the grand scheme of the events. For example, whether the number of mines was 18 or 23 and whether the mines were properly characterized as being of Italian, Soviet, or Pakistani origin are of little to no moment. [Redacted] What matters is that there were, in fact, 23 anti-tank mines of Italian and Pakistani origin that were found in close proximity to the petitioner's compound. And while the parties may quibble over issues relating to how the mines were buried and by whom, the fact is that Obaydullah lied about his interest in them when first confronted and then came up with a series of inconsistent and inherently ridiculous accounts as to their storage. Indeed, if, as he now claims, the mines the U.S. forces found were not the same ones allegedly discarded by the Soviets (or, in an alternate version of petitioner's account, by jihad fighters) that he purportedly buried with various family members, why did he not direct the U.S. forces to the supposed location 300 meters away? But even more importantly, if petitioner really had no ongoing interest in these mines, what on earth was he doing with a notebook on his person that spelled out in detail how to assemble those mines into remote-control detonated IEDs? Petitioner's story as to the notebook has also, not surprisingly, evolved to his current account that they were his notes from a Taliban-required class he attended months earlier on bomb detection. This story—yet again—defies both common sense and reality. In fact, the Government's uncontroverted analysis of the notebook's contents clearly indicates that it contains wiring diagrams and notes that constitute a veritable checklist—in albeit somewhat cryptic form—of how to assemble a remote-control detonated IED. Thus, if there were any lingering doubt about petitioner's interest in the landmines unearthed on his property prior to the notebook's analysis, when viewed in combination with the notebook, there can be little doubt about the accuracy of the pre-raid intelligence of petitioner's interest in, and intent to use, these explosives against U.S. and Allied forces. 4. Taxi recovered during raid. It is worth commenting briefly on the automobile found at petitioner's compound. The Special Forces Staff Sergeant ("the Staff Sergeant") who participated in the raid submitted a declaration indicating that the petitioner and Karim Bostan, in the aftermath of an accidental explosion, were seen driving an automobile talcing several wounded bomb cell members to a local hospital for medical attention. (Gov't Exs. 37, 110.) He also stated that the U.S. forces seized a taxi from petitioner's compound, and that that automobile had contained both evidence of dried blood and certain pro-Taliban propaganda. (Id.; [Redacted] Petitioner denies that any such car existed by pointing to the post-raid report that does not mention the contents of the automobile seized, the lack of physical evidence of the blood in the car, and questions *39 the veracity of the Staff Sergeant's declaration, which was submitted four years after the raid. (Hearing Tr. Sept. 30, 2010 PM, 40:10-17; 41:4-7.) However, other than the arguments of counsel, there is nothing to indicate that the Staff Sergeant had, or would have, falsified his sworn statements to the Court. Moreover, the Staff Sergeant noted in his 2010 declaration that this automobile was found underneath a tarp,[Redacted] Accordingly, I find no reason to distrust the statements made by the Staff Sergeant regarding the discovery of the taxi and its contents, including the residue of dried blood. This fact, of course, is consistent with the preraid intelligence claim that petitioner was seen using a vehicle to ferry wounded individuals to a local hospital, once again corroborating the government's intelligence. 5. Petitioner's relationship with Karim Bostan Finally, as for the petitioner's relationship to Karim Bostan, I would, of course, be remiss to unnecessarily plunge head-first into an analysis of Bostan's alleged ties to al Qaeda as chronicled at length by former Guantanamo detainee Adel Al Zamel (ISN 568). Indeed, unraveling the considerable evidence regarding Al Zamel's credibility—at this point—would be a major project that no court would likely undertake unless absolutely necessary. Fortunately, in this case, it is not. Notwithstanding Al Zamel's accounts, it is well-established that petitioner had a long-standing relationship of both a business and personal nature with Karim Bostan. Bostan is also an Afghan citizen from the Khost region who was Obaydullah's business partner. (Gov't Exs. 22, 29, 31.) The two were also both members of a religious organization called Jamaat al-Tabligh, which, though officially apolitical, has been used as a cover by members of some terrorist groups, including al Qaeda. (Hearing Tr., Sept. 30, 2010 PM, 59:11-12; Gov't Exs. 29, 24, 45, 64.) Indeed, petitioner and Bostan's relationship was sufficiently close that on the evening of the raid by U.S. forces Obaydullah claimed to be holding the mines found on his property for Bostan. (Gov't Ex. 37.) [Redacted] Not surprisingly, perhaps, petitioner began backing away from these and other stories involving Bostan when Bostan later showed up as a fellow detainee at the Guantanamo facility. However, the combination of the explosives, the notebook instructions and the automobile with dried blood all fit together to corroborate the intelligence sources placing both the petitioner and Bostan at the scene aiding fellow bomb cell members who had been accidentally injured while constructing an IED. Additionally[Redacted]serve to further corroborate the credibility of the government's intelligence source linking Obaydullah to the al Qaeda bomb cell. Thus, combining all of this evidence and corroborated intelligence, the mosaic that emerges unmistakably supports the conclusion that it is more likely than not that petitioner Obaydullah was in fact a member of an al Qaeda bomb cell committed to the destruction of U.S. and Allied forces. As such, he is being lawfully detained under the AUMF and this Court must, and will, therefore DENY his petition for a writ of habeas corpus. CONCLUSION Thus, for all of the foregoing reasons, and those set forth at the hearing on October 19, 2010, the Court DENIES Obaydullah's petition for a writ of habeas corpus. NOTES [1] Pursuant to Federal Rule of Civil Procedure 25(d), if a public officer named as a party to an action in his official capacity ceases to hold office, the court will automatically substitute that officer's successor, Accordingly, the Court substitutes Barack H. Obama for George W. Bush.

67 So.2d 351 (1953) MONTAGUE v. MILAN. No. 20008. Court of Appeal of Louisiana, Orleans. June 8, 1953. Rehearing Denied October 19, 1953. Adrian G. Duplantier, New Orleans, for appellant. Henry G. Neyrey, Jr., New Orleans, for appellee. REGAN, Judge. This is a suit by plaintiff, Charles W. Montague, a subcontractor, against the defendant, Daniel A. Milan, the owner of the property and also an engineer, who acted, on this occasion, as his own contractor, for labor performed and material furnished to the defendant in the amount of $1,366.20. Defendant answered and admitted the furnishing of labor and material, but denied that he was indebted unto plaintiff in any sum whatsoever and reconvened for the sum of $280 (corrected in brief to $270), representing money expended in correcting errors of construction caused by plaintiff. Defendant additionally requested that the court reserve unto him his right to recover damages from plaintiff for whatever loss he might, in the future, sustain as a result of the errors. *352 There was judgment in the court, a qua, in favor of the plaintiff in the amount of $1,056.20, which apparently recognized that part of the defendant's suit in reconvention demanding the sum of $270 and rejecting defendant's request for reservation of his right to recover damages from plaintiff for whatever loss he might sustain in the future as a result of the contractor's errors in construction. From this judgment defendant has appealed. Plaintiff has answered the appeal praying that the judgment be increased to the sum of $1,332.60. The record reveals that defendant visited the offices of plaintiff, where he deposited a set of plans and specifications and requested a bid for the driving of piling, concrete foundation and slab work. Several days thereafter, plaintiff's superintendent, Mike Lanoux, having figured, in writing, the cost thereof, submitted a bid to defendant, which he admits he accepted. The bid offered to perform the following work: "Drive 62-25 foot pilings at 8.50 527.00 Lay 265 feet of grade beam and caps (8 × 10) 556.50 Lay 1595 sq. ft. of slab 957.00" Subsequently, the slab work was cancelled by mutual agreement and, therefore, it is not an issue herein. After the piling had been driven and the grade beam laid, Lanoux discovered that he had laid 319 feet of grade beam in conformity with the plans instead of 265 feet as per the bid. Defendant concedes that plaintiff laid about 320 feet of grade beam, however, he asserts that he accepted plaintiff's bid without rechecking the plans to determine whether the measurements set forth in the quotation coincided with those in the plans. Lanoux' explanation is simply that it was an "honest mistake", which defendant should not be permitted to take advantage of unjustly. In any event, plaintiff is requesting payment for 319 feet of grade beam, which is the lineal measurement of the beam actually laid. Lanoux made no mention of this additional 54 feet of grade beam until he rendered defendant a bill upon the completion of the work. The foregoing facts relate to the original contract. Subsequently extra work was performed by the plaintiff, at the request of the defendant. He drove five additional pilings for which he charged the agreed price of $8.50 each, or a total of $42.50. He provided 52 feet of additional grade beam for a porch which was laid also at the request of defendant. The record reflects a stipulation to the effect that insofar as the piling is concerned, they were properly driven and the number thereof furnished was 67, and that the additional grade beam was 52 feet (for the porch) and that the agreed price was $2.10 a foot or a total of $109.20. Plaintiff also seeks to recover payment for sixteen "pedestals" at a price of $2 each or a total of $32. Lanoux testified that these pedestals were ordered by the defendant's brother, Ed Milan, who acted in the capacity of defendant's superintendent during the course of the work. Ed Milan admitted that he ordered these pedestals, however, defendant refused to pay for them as he was of the opinion that they were "caps" as reflected in the original quotation. Plaintiff testified that a "cap" is a portion of concrete that encases the head of the pile. The purpose of the cap is to transfer the load of the beam to the pile. A "pedestal" is a base for the superstructure. They are not synonymous terms. The "cap" fits around and on top of the piling, the grade beam then fits on top of the cap and the pedestal fits on top of the grade beam, which is apparently admitted by defendant. Our analysis of the complicated record causes us to understand that plaintiff is endeavoring to recover the following amounts for labor and materials furnished in connection with the contract and for extra work performed incidental thereto. "For driving 62 pilings as called for in original quotation 527.00 For driving 5 additional pilings as extras 42.50 *353 For laying 319 feet of grade beam (265 ft. @ 2.10 a foot as called for in original quotation and 54 additional feet at 2.10 a foot as required by the plans) 669.90 For 52 feet of grade beam for porch as extras 109.20 For 16 pedestals 32.00 ________ 1380.60" Plaintiff concedes that defendant is entitled to a credit of $48 for material used and furnished by defendant. While he sued for $1,414.20 subject to a credit of $48, he now admits that he has only proved that he is entitled to $1,380.60, subject to a credit of $48, or the sum of $1,332.60, the amount he desires to recover in his answer to the appeal. Defendant insists that he owes plaintiff nothing because plaintiff did not substantially perform the building contract, in that the concrete used in the grade beam did not test 2500 pounds per square inch and, therefore, failed to measure up to the specifications and, in addition, that plaintiff owes him damages of $80 for correcting an error in the level of the grade beam and $190 (he originally claimed $200) expended by him in strengthening the foundation; in the alternative, defendant asserts that even if plaintiff's performance was a substantial compliance with the contract, there is no doubt that plaintiff's work was not an actual compliance therewith and, therefore, defendant is entitled to recover damages which he suffered as a result thereof or the sum of $270; and, in any event, according to defendant's calculations plaintiff's recovery should be limited to the sum of $917.20 or $139 less than the amount awarded by the lower court. A careful analysis of the pleadings, the lay and expert testimony contained in the record and the briefs of respective counsel reveals that the only factually scientific point of issue in the case relates to the strength of the concrete poured by plaintiff. It is very difficult for us as laymen to comprehend and satisfactorily digest the expert dissertation on the relative strength of the concrete and this fact is emphatically pointed up by virtue of the following interrogation of Cecil M. Shilstone, a partner of Shilstone Testing Laboratories and the response thereto: "Q. Do you do a lot of concrete testing? A. Considerable. "Q. Mr. Shilstone, will you tell the Court something about the behavior of concrete after it is poured, something about the relationship between age and strength of concrete? A. You will have to understand, that question could be answered in a series of lectures which would last probably a month * * *." In view of the foregoing answer, Shilstone's expert dissertation on the subject of concrete was relatively short, however, we shall endeavor to elucidate thereupon as informatively and briefly as possible. He related that when 2500 pounds per square inch concrete is required by the specifications, that means the concrete should test 2500 pounds per square inch on the 28th day after the pouring of the concrete. The grade beam was poured on July 23, 1951. Thereafter two tests were made of the concrete used in the grade beam. A test was made by Shilstone Laboratories on September 14, 1951, and that concrete tested 1431 pounds. It appears that a legitimate dispute arose over this test because plaintiff insist that the sample was taken in an improper container, a porous one, and defendant while admitting that the sample should not have been placed in a porous container, contends that this error was rectified by virtue of placing the porous container in moistened and shaded sand. The second test was made by Shilstone Laboratories on March 1, 1952 of a core taken from the grade beam itself. This was approximately six months after the date on which the concrete should have tested 2500 pounds, that is, August 20, 1951, the 28th day after the pouring of the concrete. This core tested 2567 pounds. Shilstone testified that concrete hardens from the 28th day after the pouring some *354 15% in eight or nine months, but that it is possible the core could have hardened less than 15%; that 15% of 2500 pounds is 375 pounds and that, therefore, according to his estimation the grade beam had tested 2125 pounds per square inch on the 28th day after the pouring of the concrete. Later he asserted that the grade beam tested approximately 2000 pounds per square inch after the pour. Plaintiff, on the other hand, insists that the concrete tested 2232 pounds per square inch on the 28th day after the pouring and predicates various mathematical computations upon Shilstone's testimony to sustain that conclusion. We have carefully considered all of the testimony, and, in the last analysis, it is our opinion that the plaintiff failed to substantially comply with the contract. We have reached this conclusion for the reason that the concrete, on the 28th day after the pouring, did not even approximate 2500 pounds per square inch, and when defendant discovered this fact there was nothing the plaintiff or anyone else could do with the concrete to bring it up to the specified strength. Ordinarily, when a contractor fails to comply in detail with his contract but does, in substance, comply therewith, the owner must pay the contract price less such amount as he may necessarily expend to effect the completion thereof. However, when the contractual work fails to measure up to the specifications of the contract and nothing can effectually remedy the existing condition and the owner is forced thereby to make alterations in his plans in order to acquire a useable structure, he is not obligated to settle with the contractor in conformity with the doctrine of "substantial compliance", unless he desires to use whatever the contractor has created. To elucidate, in such a situation the owner may say to the contractor that nothing that he may do will produce the building which was contemplated in the plans, and that, therefore, the contractor will be required to entirely remove what he has erected. On the other hand, the owner may say (or so act) to the contractor that what he had erected is not the structure which was designed, but that, the owner, nevertheless, by effecting changes in his plans, can use what the builder has constructed. If he decides to follow this alternative, he is liable to the contractor for what has been erected, less the amount it may cost him to secure a useable building, even though the construction is not such as was contemplated by the plans. We are of the opinion that this is exactly what the owner, Milan, did here and since he saw fit to use what the plaintiff had erected and did not demand its removal, he should pay for that work, less, of course, what he was required to expend as a result of the modification of the plan. The damage for the breach of a building contract where the owner derives some benefit from the defective construction is usually the cost of repairing the defective work. DuBos v. Sanders, 174 La. 27, 139 So. 651; Merrill v. Harang, La. App., 198 So. 386; Sarver v. Barksdale, La.App. 24 So.2d 649; Home Services v. Marvin, La.App., 37 So.2d 413; Banks v. Reed, La.App., 52 So.2d 554; Moore v. Usrey & Usrey, La.App., 52 So.2d 551. There is no doubt that defendant derived benefit from the defective construction in view of the fact that he erected his residence upon this foundation, however, he expended the sum of $270 to effect the correction of the defective construction. Defendant disputes the validity of plaintiff's charge for the following items: 16 pedestals 32.00 54 feet of grade beam at 2.10 per foot or 113.40 Defendant's brother, Ed Milan, admitted that he ordered these pedestals from plaintiff and our examination of the record shows that the only reason why defendant refused to pay for them was because he was of the opinion that they were caps as reflected in plaintiff's original quotation, *355 however, we conclude that pedestals and caps are not synonymous as defendant believed, and that the sixteen pedestals were actually used in conjunction with the construction work. Relative to the 54 feet of additional grade beam defendant admitted that plaintiff laid approximately 320 feet of grade beam and that he accepted plaintiff's bid without rechecking the plans to determine whether the measurements set forth in plaintiff's quotation (265 feet) coincided with those in the plans (319 feet). As related heretofore plaintiff explained that the quotation was simply an honest mistake which defendant should not be permitted to take advantage of unjustly. There is no doubt that plaintiff's quotation was based on the use of 265 feet of grade beam whereas he laid 319 feet in conformity with the plans and specifications and we are of the opinion that plaintiff is entitled to recover the value thereof. Accordingly, plaintiff is entitled to recover the sum of $1,332.60 and defendant is entitled to the cost of repairing the defective construction—$270. The trial judge awarded plaintiff a judgment in the amount of $1,056.20. We are unable to reconcile this figure with the net figure of $1,062.60 which we believe plaintiff is entitled to recover. For the reasons assigned the judgment appealed from is amended by increasing the amount thereof from $1,056.20 to $1,062.60 and as thus amended, it is affirmed. Amended and affirmed.

IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Submitted on Briefs September 19, 2006 IN RE I.C.G., B.M.D., T.N.C., & T.L.C. Appeal from the Juvenile Court for Hamilton County No. 192214-18 Suzanne Bailey, Judge No. E2006-00746-COA-R3-PT - FILED OCTOBER 31, 2006 In this appeal, S.L.B. (“Mother”) contends that the trial court erred in terminating her parental rights to four of her five children. Mother does not challenge the propriety of the trial court’s order terminating her parental rights as to the fifth child. After careful review of the evidence and applicable authorities, we hold that the evidence does not preponderate against the trial court’s finding by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of her children. Therefore, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; Case Remanded SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL PICKENS FRANKS, P.J., and CHARLES D. SUSANO , JR., J., joined. Robert B. Pyle, Chattanooga, Tennessee, for the Appellant, S.L.B. Paul G. Summers, Attorney General and Reporter, and William N. Helou, Assistant Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.  OPINION I. Background This case involves the termination of Mother’s parental rights to five of her children.1 Imari G. (born September 13, 1991) is the son of Anthony G., who is deceased. Bre’Ana D. (born March 1, 1993) is the daughter of Michael D. The remaining three children, Tyrone C., Jr., (“Tyrone Jr.”) (born July 30, 1999), Tyshaila C. (born December 3, 2000), and Tyonna C. (born July 7, 2002), were fathered by Tyrone C., Sr. (“Tyrone Sr.”). The Department of Children’s Services (“DCS”) is not seeking termination of the parental rights of Michael D. and Tyrone Sr. and is continuing to provide services to them. On May 4, 2002, Mother brought Tyrone Jr. to the emergency room of T.C. Thompson Children’s Hospital in Chattanooga. The child was treated for second-degree burns on the tops and sides of his feet, his left elbow, his left buttock, and part of his back. He also had first-degree burns on his shoulders. According to Mother, who was approximately seven months pregnant at the time of the incident, she was taking a nap around 11 a.m. on either May 1 or 2, 2002,2 when she awoke to the sound of Tyrone Jr. screaming. Mother said that she found the two-year-old in the bathtub, and he had been burned by hot water in the tub.3 Mother testified that her elderly grandparents were supposed to be watching the children while she slept.4 Tyrone Jr.’s pediatrician reported that Mother called him late on the night of May 3, 2002, to request a prescription for ointment to treat the burns, and then brought the child to his office the following morning. Mother was told to take Tyrone Jr. to the emergency room, which she did that same day. Doctors told DCS that the burns on Tyrone Jr.’s body were not water burns. Mother had previously been investigated by DCS because of burns on Bre’Ana D. and bruises on Tyrone Jr. On May 8, 2002, the Juvenile Court of Hamilton County entered a protective custody order which vested DCS with temporary custody of Imari G., Bre’Ana D., Tyrone Jr., and Tyshaila C. The court found probable cause to believe that the children were dependent and neglected based on the severe injuries sustained by Tyrone Jr. while in his Mother’s care. On July 9, 2002, the trial court entered a protective custody order regarding Tyonna C., then two days old, and placed her in the care of DCS based upon the same episode of alleged abuse. 1 Since DCS filed its Petition to Terminate Parental Rights on May 19, 2004, Mother has given birth to two additional children, Jomanna and Jacob. Both children were removed from Mother’s custody shortly after their birth and placed in the custody of DCS. M other’s parental rights to these two children are not at issue in this case. At the time the trial court rendered its judgment on February 24, 2006, Mother was pregnant with her eighth child. 2 According to the record, Mother is unable to remember the exact date of the incident. 3 A test of the water temperature in Mother’s apartment indicated that the water could get as hot as 151 degrees. 4 Tyrone Sr., M other’s husband and the father of three of the children at issue in this case, was incarcerated for domestic violence at the time of Tyrone Jr.’s injury. -2-  DCS drafted permanency plans for the children.5 Mother signed the permanency plans for her four oldest children on June 20, 2002, noting that she did not agree to the requirement that she “admit to child abuse or any other criminal conduct.” The permanency plan for the infant, Tyonna C., was not signed by Mother. There is no indication in the record as to why she did not sign the final permanency plan, which was developed in September of 2002. However, the requirements for Tyonna C.’s plan were essentially the same as those of the other four children. On September 9, 2003, the trial court found Mother’s five children to be dependent and neglected. Furthermore, the court entered a finding of severe abuse against Mother, stating that clear and convincing evidence persuaded the court that Mother had intentionally inflicted Tyrone Jr.’s burns. The trial court’s findings were affirmed by the Circuit Court of Hamilton County. On April 14, 2004, the trial court terminated Mother’s visitation because of Mother’s inappropriate behavior during supervised visits with her children. During one of the visits, Mother lost her temper, and DCS had to call security to remove Mother from the premises. The following month, DCS filed a petition to terminate the parental rights of Mother on the grounds that Mother abandoned the children by willfully failing to support them; Mother committed severe abuse against Tyrone Jr.; Mother failed to substantially comply with the permanency plans drafted by DCS; the children have been removed from Mother’s home by court order for more than six months and the conditions which led to the removal persist and are unlikely to be remedied in the near future, and the continuation of the mother/child relationship greatly diminishes the children’s chances of early integration into a safe, stable, and permanent home; and Mother was sentenced to more than two years’ imprisonment for conduct against Tyrone Jr.6 DCS further asserted that the termination of Mother’s parental rights would be in the best interests of her five children. The trial court granted a default judgment to DCS on September 26, 2005, because Mother failed to appear in court and did not provide an excuse for her absence. Mother’s attorney filed a motion to set aside the default judgment, which the trial court denied when Mother once again failed to appear in court for the motion hearing. Mother’s attorney filed a second motion to reconsider the termination, which was granted on November 9, 2005. Following a bench trial, the court entered a Termination of Parental Rights and Final Decree of Complete Guardianship on February 24, 2006. The trial court found, by clear and convincing 5 The permanency plans required, among other things, that Mother: undergo a parenting assessment; complete a psychological examination; actively participate in any counseling recommended as a result of the pyschological assessment and attend such counseling until all treatment goals have been met; complete counseling designed to deal with domestic abuse issues; admit to abusing her children; have gainful, stable employment for at least six months prior to her children returning home; provide a safe, clean, and stable home for her children; cooperate with all DCS case workers and other professionals assigned to work with her; and pay child support to the state in accordance with current guidelines. 6 Mother pleaded guilty to attempted aggravated child neglect, for which she received a ten-year sentence. The Criminal Court of Hamilton County suspended Mother’s sentence and placed her on active probation. -3- evidence, all of the grounds for termination of Mother’s parental rights alleged by DCS with the exception of abandonment by failure to pay child support.7 Furthermore, the court found by clear and convincing evidence that it was in the best interests of the children that Mother’s parental rights be terminated. Mother appeals. II. Issue The sole issue raised by Mother on appeal is whether the trial court was correct in finding, by clear and convincing evidence, that termination of her parental rights was in the best interest of Imari G., Bre’Ana D., Tyshaila C., and Tyonna C. Mother did not appeal the trial court’s finding that termination of her parental rights to Tyrone Jr. was in that child’s best interest. III. Standard of Review A biological parent’s right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the due process clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993); Ray v. Ray, 83 S.W.3d 726, 731 (Tenn. Ct. App. 2001). Although this right is fundamental and superior to claims of other persons and the government, it is not absolute. State v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). This right continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Although “parents have a fundamental right to the care, custody, and control of their children,” this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute. In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645 (1972)). Termination proceedings are governed by statute in Tennessee. Parties who have standing to seek the termination of a biological parent’s parental rights must first prove at least one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c)(1). Secondly, they must prove that termination of the parent’s rights is in the child’s best interest. Tenn. Code Ann. § 36-1- 113(c)(2). Because the decision to terminate parental rights has profound consequences, courts must apply a higher standard of proof in deciding termination cases. Therefore, to justify termination of parental rights, the party seeking termination must prove by clear and convincing evidence the ground (or grounds) for termination and that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W. 3d 539, 546 (Tenn. 2002). The heightened burden of proof in parental termination cases minimizes the risk of erroneous decisions. In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000); In re M.W.A., Jr., 7 The trial court stated that “because of Mother’s pregnancies with children who are not the subject of this action and claims of inability to work during those pregnancies, the Court does not find clear and convincing evidence of abandonment by failure to pay child support.” -4- 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. M.S., filed Aug. 13, 2003), no appl. perm. filed, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474. In a non-jury case such as this one, we review the record de novo with a presumption of correctness as to the trial court’s determination of facts, and we must honor those findings unless the evidence preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to the trial court’s factual findings. Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999). Further, “[o]n an issue which hinges on the credibility of witnesses, the trial court will not be reversed unless there is found in the record clear, concrete, and convincing evidence other than the oral testimony of witnesses which contradict the trial court’s findings.” Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. Ct. App. 1990) (citing Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn. Ct. App. 1974)). The trial court’s specific findings of fact are first reviewed and are presumed to be correct unless the evidence preponderates against them. We then determine whether the facts, either as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the grounds for terminating the biological parent’s parental rights. In re S.M., 149 S.W.3d 632, 640 (Tenn. Ct. App. 2004). The trial court’s conclusions of law are reviewed de novo and are accorded no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993). IV. Analysis Mother asserts that the trial court erred in finding that termination of her parental rights is in the best interest of Imari G., Bre’Ana D., Tyshaila C., and Tyonna C. Tennessee law provides that a court shall consider the following factors when determining whether termination of parental rights is in the best interest of a child: (1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interest to be in the home of the parent or guardian; (2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services -5-  agencies for such duration of time that lasting adjustment does not reasonably appear possible; (3) Whether the parent or guardian has maintained regular visitation or other contact with the child; (4) Whether a meaningful relationship has otherwise been established between the parent and guardian and the child; (5) The effect a change of caretakers and physical environment is likely to have on the child’s emotional, psychological and medical condition; (6) Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or adult in the family or household; (7) Whether the physical environment of the parent’s or guardian’s home is healthy and safe, whether there is criminal activitiy in the home, or whether there is such use of alcohol or controlled substances as may render the parent or guardian consistently unable to care for the child in a safe and stable manner; (8) Whether the parent’s or guardian’s mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child; or (9) Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to § 36-5-101. Tenn. Code Ann. § 36-1-113(i). The factors enumerated above are not exhaustive, and “[t]he statute does not require every factor to appear before a court can find that termination is in a child's best interest.” Dept. of Children's Svcs. v. T.S.W., No. M2001-01735-COA-R3-PT, 2002 WL 970434, at *3 (Tenn. Ct. App. M.S., filed May 10, 2002). The trial court heard testimony from several witnesses, including DCS employees, mental health professionals, friends of Mother, and Mother herself. After considering all of the evidence, the court found by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the children. Specifically, the court found that: -6-  • The children had been removed from Mother’s custody by order of the court for at least six months before the hearing, and Mother “failed to make any adjustment of circumstance, conduct or conditions to make it safe and in the Children’s best interest to be placed in her care.” See Tenn. Code Ann. § 36- 1-113(i)(1). • Despite assistance from DCS, “there is no evidence that [Mother] can provide a home in which the Children will be safe from the threat of certain emotional and psychological and very likely physical harm caused by the Mother’s tendency to engage in violent relationships and her untreated personality disorders.” See Tenn. Code Ann. § 36-1-113(i)(2), (7), (8). • The children “were taken from the Mother at such a tender age that no meaningful parent-child relationship exists between them and their mother.” See Tenn. Code Ann. § 36-1-113(i)(4). Imari G. indicated that he wanted to remain with his foster family rather than returning to Mother. Bre’Ana D. told Dr. Tom Biller, one of the pyschiatrists who counseled the children after they were placed with DCS, that if she (Bre’Ana) were a parent, it would be wrong to treat her children like Mother treated her. • A change of caretakers and homes is likely to have a negative effect on the children. See Tenn. Code Ann. § 36-1-113(i)(5). The trial court emphasized that the children have been in foster care for four years during the pendency of this proceeding, yet “they have achieved an amazing level of permanency despite this lengthy process.” The court expressed concern that “[i]t is highly unlikely that other such good opportunities for permanency will be available if full advantage is not taken of these right away.” Finally, the court noted that continuation of Mother’s parental relationship with the children “greatly diminishes the Children’s chances of early integration into a stable and permanent home.” • Because of Mother’s antisocial personality disorder, Mother “cannot provide a safe environment for the Children and she will not change.” See Tenn. Code Ann. § 36-1-113(i)(8). The trial court reiterated testimony from Dr. Bertin Glennon, the psychiatrist who conducted a parenting assessment of Mother, that “[Mother’s] personality disorder will cause her to consistently fail to follow the normal process of thinking for a mother and that the condition will not change.” The court emphasized that none of the mental health service providers who testified would recommend that custody of the children be restored to Mother. While discussing the statutory grounds for terminating Mother’s parental rights, the trial court called attention to its earlier finding that Mother had committed severe child abuse against -7- Tyrone Jr. That finding, which was affirmed by the Circuit Court of Hamilton County, is also relevant in the best-interest analysis. See Tenn. Code Ann. § 36-1-113(i)(6). Mother argues that the trial court “hardly carried the day on best interests of the children, much less by clear and convincing evidence.” We disagree. There is ample evidence in the record to support the trial court’s findings. Certainly the history of child abuse in Mother’s household would raise concerns about the health of these children, should they be returned to Mother. There was also a history of domestic violence between Mother and her partners. Mother testified that she had been in three abusive relationships in her lifetime, one of which is with her current husband, Tyrone Sr., who is also the father of three of the children at issue in this case. Mother was diagnosed with personality disorders by two mental health professionals, and the court stated that it witnessed symptoms of Mother’s antisocial personality disorder while she was testifying. Furthermore, there is evidence that Mother’s parenting ability will be impaired because of her mental health condition. Three case managers from DCS testified that they would not recommend that Mother be allowed to have custody of her children. They described her temper tantrums during visits with her children and a general uncooperative attitude when she interacted with DCS employees. In fact, Mother’s behavior during visits was so extreme and so upsetting to her children that the court terminated her visitation. Mother was also uncooperative during her parenting assessment and did not complete the counseling that was required as part of her permanency plan. She failed to pay child support and testified that she does not want to get a job because she is trying to get disability payments. This suggests that she might not be able to support her children, even if they were returned to her care. Although a parent’s right to the care and custody of her children is a fundamental liberty interest protected by both our state and federal constitutions, a parent’s interest must yield to that of her children. After careful review, we must conclude that the evidence does not preponderate against the trial court’s finding by clear and convincing evidence that termination of Mother’s parental rights is in the best interest of Imari G., Bre’Ana D., Tyshaila C., and Tyonna C. V. Conclusion For the foregoing reasons, the judgment of the trial court is affirmed. This case is remanded to the trial court for enforcement of the trial court’s judgment terminating Mother’s parental rights to Imari G., Bre’Ana D., Tyshaila C., and Tyonna C. and for collection of costs assessed below, all pursuant to applicable law. Costs on appeal are adjudged against the Appellant, S.L.B. ___________________________________ SHARON G. LEE, JUDGE -8- -9- 

98 F.3d 1359 78 A.F.T.R.2d 96-6705, 96-2 USTC P 50,540 NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.The SWIG INVESTMENT COMPANY, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee. No. 95-5051. United States Court of Appeals, Federal Circuit. Oct. 10, 1996. Before ARCHER, Chief Judge, MICHEL, and RADER, Circuit Judges. DECISION ARCHER, Chief Judge. 1 Swig Investment Company (Swig) appeals from the December 14, 1994 judgment of the United States Court of Federal Claims, No. 92-50 T, dismissing its complaint. We affirm. BACKGROUND 2 Swig brought a refund suit to contest the Internal Revenue Service's (IRS) disallowance of a business expense deduction claimed by the Fairmont Hotel Company in San Francisco, California, for the 1984 tax year.1 Swig's refund claim pertains to a $3,023,347 expenditure to replace an entablature, which had been constructed in 1907 and consisted of five foot high unreinforced terra cotta and concrete parapets with overhanging cornices around the entire roof perimeter. 3 In 1969, the City of San Francisco (the city) passed an ordinance setting higher safety standards for parapets and cornices because of the hazardous conditions caused by earthquakes. In 1980, the city notified the Fairmont Hotel that its parapets and cornices were potentially hazardous in a major earthquake.2 The notice required corrective action which could include strengthening, reconstructing, bracing or removing the parapets and cornices. Fairmont hired an engineer, an architect and a construction company to determine the extent of the necessary repairs. This investigatory team, however, recommended that the parapets and cornices be replaced. The construction company was then authorized to replace these old structures with new parapets and cornices made of glass fiber reinforced concrete (GFRC), which made them lighter and stronger than the original ones. They were also attached to the hotel using welded connections instead of wire supports, making them more resistant to damage from lateral movement. The cost of this replacement was $ 3,023,347 and the Fairmont deducted it from its 1984 gross income as an ordinary and necessary business expense pursuant to 26 U.S.C. § 162(a) (1994) (IRC). 4 The IRS disallowed the deduction, ruling that the amount should be treated as a capital expenditure pursuant to IRC § 263. The disallowance resulted in the assessment of additional tax and interest. Fairmont paid the resulting deficiencies and filed a claim for a refund. When the IRS denied the claim, Fairmont filed a refund suit in the Court of Federal Claims on January 23, 1992. 5 After trial, the Court of Federal Claims delivered its opinion from the bench on May 16, 1994. The court found: 6 The project significantly improved the structural soundness of the building. In addition, the project cured a defect and brought the hotel into compliance with the San Francisco requirements in the Parapet Safety Program. The project removed a hazardous structural deficiency.... 7 The structure and construction of the hotel was changed substantially. The new parapets and cornices will last an indefinite time in the future.... 8 The new installation cannot be considered as a deferred repair and maintenance. R & M [repair and maintenance] would have repaired existing terra cotta and fastenings. R & M would not include installation of new and different fastenings. The new installation is integral to the hotel building, it is not an appendage. 9 The Court of Federal Claims held that the $ 3,023,347 expenditure was a capital expenditure subject to depreciation and not an ordinary and necessary business expense fully deductible in 1984. DISCUSSION I. 10 In an appeal of a judgment from the Court of Federal Claims, we review the questions of law de novo and the factual findings for clear error. See Columbia Gas System, Inc. v. United States, 70 F.3d 1244, 1246 (Fed.Cir.1995); Shelden v. United States, 7 F.3d 1022, 1026 (Fed.Cir.1993). The proper interpretation of a statute is a question of law. Columbia Gas, 70 F.3d at 1246. II. 11 We agree with the Court of Federal Claims that the parapet and cornice replacement expenditure should be classified as a capital investment rather than an ordinary and necessary business expense. Swig has not demonstrated that the expenditures at issue are deductible as ordinary and necessary business expenses under IRC Section 162(a). Swig attempts to dismiss the benefits that accrued to the hotel from the replacement of the parapets and cornices as "incidental," but the Court of Federal Claims found that these expenditure produced significant benefits to the hotel which extended beyond the tax year in question. This finding is amply supported by the record. 12 IRC Section 162(a) provides: "There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business...." Section 263(a) provides: "No deduction shall be allowed for--(1) Any amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate...." If a payment is properly characterized as a business expense, it is currently deductible. Indopco, Inc. v. Commissioner, 503 U.S. 79, 83 (1992). A payment properly characterized as a capital expenditure, however, must be capitalized and depreciated, generally over the useful life of the asset. Id. at 83-84. "Through provisions such as these, the Code endeavors to match expenses with the revenues of the taxable period to which they are properly attributable, thereby resulting in a more accurate calculation of net income for tax purposes." Id. at 84. 13 Determining whether a payment is a business expense or a capital expenditure is a fact intensive inquiry. The regulations establish the criteria for distinguishing between deductible expenses and capital expenditures. Treas. Reg. § 1.162-4 states: 14 The cost of incidental repairs which neither materially add to the value of the property nor appreciably prolong its life, but keep it in an ordinarily efficient operating condition, may be deducted as an expense, provided the cost of the acquisition or production or the gain or loss basis of the taxpayer's plant, equipment, or other property, as the case may be, is not increased by the amount of such expenditures. Repairs in the nature of replacements, to the extent that they arrest deterioration and appreciably prolong the life of the property, shall ... [be capitalized]. Treas. Reg. § 1.263(a)-1 explains: 15 1 ... no deduction will be allowed for-- 16 1 any amount paid out for new buildings, or for permanent improvements or betterments made to increase the value of any property or estate, or 17 * * * 18 * * * 19 (b) In general, the amounts referred to in paragraph (a) of this section include amounts paid or incurred (1) to add to the value, or substantially prolong the useful life of the property owned by the taxpayer.... Amounts paid or incurred for incidental repairs and maintenance of property are not capital expenditures.... 20 Treas. Reg. § 1.263(a)-2 provides examples of capital expenditures: 21 (a) The cost of acquisition, construction, or erection of buildings, machinery and equipment, fixtures, furniture and fixtures and similar property having a useful life substantially beyond the taxable year. 22 Under these regulations, a payment is a capital expenditure if it materially prolongs the life of the property or increases its value. Both are true in this case. The new parapets and cornices increased the value of the property and they were expected to last an indefinite time into the future. 23 The new parapets and cornices are lighter and stronger than the old ones and the welded connections provide additional strength and increased protection from stress. The Court of Federal Claims found that the new parapets and cornices, which were made of different material with different fastening and additional steel, significantly improved the structural soundness of the hotel. The city found the old parapets and cornices a potential hazard. Hence, the court's finding that their replacement improved the structural soundness of the building is well supported. Doubtless, removing a potential hazard and replacing it with lighter, stronger material with increased supports which improves the structural soundness of the building also improves the value of the building. In fact, the court found that the hotel management rejected the option of simply removing the non-complying parapets and cornices because such a removal would alter the classical appearance of the hotel and destroy its identity as a "landmark" and a "grand hotel of the world." The hotel management clearly considered the parapets and cornices to be essential to the hotel and a valuable part of the building. Although not specifically quantified, the replacement of these essential structures with new, improved materials and with better and more secure supports and fastenings necessarily provided some increased value to the building, particularly in view of the fact that it also eliminated a potential hazard and an ordinance violation. 24 This replacement also extended the useful life of the decorative features of the hotel and improved them. There is no dispute that the new parapets and cornices were meant to last beyond a year. The expenditures at issue here do assist in extending the useful life of the entire structure. We, therefore, discern no error in the court's finding that the replacement of the parapets and cornices materially prolonged the life of the property. 25 Swig argues that the replacement was an "incidental repair" and as such is deductible as an ordinary and necessary business expense pursuant to IRC § 162(a). This was far more than an incidental repair; it was a major replacement project. All of the parapets and cornices surrounding the entire building were replaced with improved material at a cost of $ 3,023,347. As the district court found, the hotel management rejected several alternatives, including the removal of the parapets and cornices, because the parapets and cornices were essential to the hotel's classical appearance. We are not persuaded that such wholesale replacement should be classified as an incidental repair. 26 We also find untenable Swig's argument that the parapets and cornices have no independent useful life and will be worthless when the hotel becomes structurally unsound. Adopting this logic, work on an aging structure would seldom be classified as a capital investment unless the entire structure is similarly improved. 27 Finally, Swig argues that because it was compelled by a city ordinance to bring its parapets and cornices into compliance, the replacement cost should be treated as an ordinary and necessary business expense. "The fact that a payment is imposed compulsorily upon a taxpayer does not in and of itself make that payment an ordinary and necessary business expense ..." Commissioner v. Lincoln Savings & Loan, 403 U.S. 345, 359 (1971). See also Teitelbaum v. Commissioner, 294 F.2d 541, 544 (7th Cir.1961) (cost of converting electricity in its building from D.C. to A.C. was a capital expenditure despite the fact that it was compelled by a Chicago city ordinance); Woolrich Woolen Mills v. United States, 289 F.2d 444, 448 (3d Cir.1961) (cost of building a filtration plant must be capitalized even though it was only built because of state anti-pollution law); RKO Theatres, Inc. v. United States, 163 F.Supp. 598, 602 (Ct.Cl.1958) (cost of compliance with safety regulations was a capital expenditure because it increased the value of the theater (if only because it could remain in business)). In this case, considering all of the circumstances, the Court of Federal Claims held that the expenditures were capital in nature even though they were the result of the enforcement of the city ordinance. Under the facts, and above-cited authorities, the court did not err as a matter of law. 28 In the process of distinguishing between capital expenditures and business expenses, the rule is that an income tax deduction is a matter of legislative grace and the taxpayer has the burden of clearly showing the right to the claimed deduction. Interstate Transit Lines v. Commissioner, 319 U.S. 590, 593 (1943). Deductions are exceptions to the norm of capitalization. Indopco, 503 U.S. at 84. The Court of Federal Claims' decision that the replacement of the parapets and cornices constitutes a capital investment is consistent with this rule. CONCLUSION 29 Although cases requiring determination of whether an expenditure must be capitalized or may be expensed present close questions, as here, we cannot say that the Court of Federal Claims' findings regarding the increased value from the improvement in the structure of the building and the extended life of the parapets and cornices are clearly erroneous or that it erred in applying the law. Therefore, we affirm that Swig's payment of $ 3,023,347 to replace the parapets and cornices constituted a capital expenditure. 1 In the years at issue, Swig owned fifty percent of the Fairmont Hotel. In 1986, Swig became the sole owner. When the hotel company was subsequently dissolved, all assets and liabilities were transferred to Swig 2 It is undisputed that the parapets and cornices were otherwise still in good condition (they did not generally suffer from deterioration or damage), and were replaced only because they did not comply with the city ordinance

477 F.3d 347 Thomas LEONARD, Plaintiff-Appellant,v.Stephen ROBINSON, in his individual capacity, Defendant-Appellee. No. 05-1728. United States Court of Appeals, Sixth Circuit. Argued: June 2, 2006. Decided and Filed: February 2, 2007. ARGUED: Michael E. Freifeld, Law Office of Glen N. Lenhoff, Flint, Michigan, for Appellant. Frank A. Misuraca, Kaufman & Payton, Farmington Hills, Michigan, for Appellee. ON BRIEF: Michael E. Freifeld, Law Office of Glen N. Lenhoff, Flint, Michigan, for Appellant. Frank A. Misuraca, Kaufman & Payton, Farmington Hills, Michigan, for Appellee. Before: BOGGS, Chief Judge; and KEITH and SUTTON, Circuit Judges. BOGGS, C.J., delivered the opinion of the court, in which KEITH, J., joined. SUTTON, J. (pp. 363-68), delivered a separate opinion concurring in part and dissenting in part. OPINION BOGGS, Chief Judge. 1 Thomas Leonard appeals the judgment of the district court granting summary judgment to the defendant, Stephen Robinson, in this civil rights action resulting from Leonard's arrest at a township board meeting. The district court dismissed the case, holding that Robinson was entitled to qualified immunity on claims for wrongful arrest and that Leonard could not make out a prima facie case on his claim for First Amendment retaliation in violation of his civil rights. We reverse both holdings. The district court's application of state law to Leonard's conduct overlooked the First Amendment and its evaluation of Leonard's retaliation claim ignored evidence indicating that Robinson did have an improper motive. We hold that 1) no reasonable officer would have found probable cause to arrest Leonard solely for uttering "God damn" while addressing the township board because the First Amendment protects this sort of uninhibited debate, and 2) Leonard's retaliation claim survives summary judgment because Robinson's motive for the arrest is a genuine issue of material fact in dispute. 2 * This case presents the question of whether an arrest for obscenity, vulgarity, or disturbing the peace, when based upon speech and not conduct, is valid when it occurs during a democratic assembly where there is no evidence that the individual arrested was out of order and some evidence of improper motive by the arresting officer. With due regard to the procedural disposition of the case, the facts are here recounted in the light most favorable to Leonard. 3 Leonard's wife Sarah operates a towing company called Leonard's Auto Works. Auto Works was the exclusive towing company for the township of Montrose, Michigan until around 2000. At that time, the Montrose Township Chief of Police, Charles Abraham, was promoting his own plan with the city board to extend township police jurisdiction to include the city of Montrose as well as the surrounding township. Agnes Johnson, Sarah Leonard's mother, was a member of the City Council and opposed Abraham's plan. Abraham asked Sarah to lobby her mother in support of the plan. In return, he offered, Auto Works could continue to tow for the Township. When Sarah refused, Auto Works lost its business with the Township. Sarah sued the Township and Chief Abraham in Genesee County Circuit Court under 42 U.S.C. § 1983 for violating her First Amendment rights. The case was removed to federal court and settled in February 2003. Leonard v. Montrose, No. 02-71084 (E.D.Mich. Feb. 11, 2003) (stipulation dismissing case). As a result of the lawsuit, according to Leonard, Chief Abraham hated him and his wife. 4 Before the settlement, on October 15, 2002, Thomas, Sarah, and their child attended a Township Board meeting. Officer Robinson testified that he was ordered by Chief Abraham to attend the meeting. Thomas Leonard believes that Abraham ordered Robinson to attend so that he might arrest Sarah in retaliation for her suit against him. Much of the meeting was recorded on videotape. When he arrived, Robinson took his seat at the back of the meeting hall because he "do[esn't] really like anyone behind [him]." Near the beginning of the meeting, Robinson was asked by another attendee why he, a police officer, was present. Robinson lied in response—he did not disclose that the Chief had ordered him to attend. Instead, he said, "I'd like to see what's going on." 5 Later in the meeting, during the portion known as Citizen Time, Sarah addressed the council about the actions the Township had taken that had affected her business: Auto Works was not selected for several police car repair contracts, even though it was the low bidder, and Auto Works was no longer called to tow wrecked municipal vehicles. When she finished, Thomas Leonard was recognized by the Township Supervisor, Don Papineau. Thomas arose and spoke: 6 LEONARD: It's not right and you guys know it. We want an answer. We're sick and tired of getting screwed. You guys are screwing us and we know it. We're sitting, the attorneys are sitting here, he hasn't read about it, nobody knows nothing about it. I'm sick of it. 7 PAPINEAU: I, I disagree that we screwed Leonard's [Auto Works] or— 8 LEONARD: You do? Do it right now. 9 PAPINEAU: Yes, sir, I do. LEONARD: (inaudible) 10 PAPINEAU: I disagree with that. 11 LEONARD: Well, that's good. That's why you're in a God damn lawsuit — 12 Thomas then sat down. After he had taken his seat, Papineau said, "Hey, do not use the Lord's name in vain." Leonard responded, "I'll do whatever I want, Don, just like you." At that point, Officer Robinson entered the conversation: ROBINSON: (inaudible) 13 LEONARD: You stay out of it. I'm not talking to you. ROBINSON: (inaudible) 14 LEONARD: No, you come in here, you come here — 15 ROBINSON: No, I come here as a police officer. 16 LEONARD: No, you didn't. Don't give me a hard time. 17 ROBINSON: If I'm going to (inaudible) I'm going to take you with me. 18 LEONARD: I'm ready to go, so, let's go. 19 Robinson took Leonard outside the meeting room and placed him under arrest. Leonard was transported to the police station and charged with violations of Michigan Compiled Laws §§ 750.167 (disorderly person) and 750.337 (obscenity). He was released after a one-hour detention. One month later the citation was voided and dismissed. 20 On June 6, 2003, Leonard filed this action against Robinson in his personal capacity in the United States District Court for the Eastern District of Michigan, alleging that Robinson, under color of law, violated his Fourth Amendment right to be free of unreasonable seizure. The complain also raised three state law torts: battery, false arrest, and false imprisonment. Robinson filed a motion for summary judgment on November 20, 2003. He argued that he was entitled to qualified immunity on the constitutional allegations and that the state law claims must be dismissed because the arrest was supported by probable cause. To bolster this claim, Robinson cited two additional Michigan statutes that Leonard may have violated, Michigan Compiled Laws §§ 750.103 (cursing and swearing) and 750.170 (disturbance of lawful meetings). Leonard filed a response to the motion, defending his claims under a First Amendment retaliation theory and generally asserting the same grounds he does here on appeal. 21 On May 4, 2005, the district court granted the motion for summary judgment and dismissed the case. Leonard v. Robinson, No. 03-72199, slip op. at 26 (E.D.Mich.) [hereinafter D. Ct. Op.]. The district court held that Robinson did not violate the Fourth Amendment because he had probable cause to arrest Leonard. Id. at 7. The court declined to exercise supplemental jurisdiction over the state law claims. D. Ct. Op. at 27 n. 17. The court found that even though Michigan Compiled Laws § 750.337 (criminalizing indecent language in the presence of women or children) had been invalidated by the Michigan Supreme Court, other statutes, criminalizing conduct for which Leonard had not been charged, supported the arrest, viz., §§ 750.103 (swearing), 750.170 (disturbing a meeting), and 750.167 (disorderly person). Therefore, based upon these statutes, Robinson had probable cause to arrest Leonard because he had violated the plain language of those statutes and Robinson was "to enforce laws until and unless they are declared unconstitutional." D. Ct. Op. at 12. See also Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (holding that an officer's subjective reason for making an arrest need not include the criminal offense that later establishes probable cause). 22 The district court denied Leonard's First Amendment retaliation claim by holding that there was no "causal connection between Plaintiff's protected speech and his arrest." D. Ct. Op. at 25. The court held that our precedents "recognize[] a permissible inference of retaliatory motive in only a particular category of cases: namely, those cases where all of the possible grounds for arrest arise solely during the course of a citizen's encounter with a police officer." Id. at 23 (citing McCurdy v. Montgomery County, 240 F.3d 512 (6th Cir.2001) and Greene v. Barber, 310 F.3d 889 (6th Cir.2002)). The court refused to make reasonable inferences favorable to Leonard's claims. Instead, it ignored his allegations regarding Robinson's motive for the arrest, the previous lawsuit by Leonard's wife, and Robinson's inconsistent statements and held that "there is absolutely no evidence of any improper motive." D. Ct. Op. at 22. The district court concluded that it was illegal to "use[] objectionable language and become[] somewhat belligerent during a public meeting," id. at 27, and that Leonard should have just calmed down and not made a federal case of it. II 23 We review a grant of summary judgment on qualified immunity grounds de novo "because application of this doctrine is a question of law." McCloud v. Testa, 227 F.3d 424, 428 (6th Cir.2000) (internal quotation and citations omitted). See also Armstrong v. City of Melvindale, 432 F.3d 695, 698 (6th Cir.2006). Summary judgment is appropriate where "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). "The district court, and this [c]ourt in its review of the district court, must view the facts and any inferences reasonably drawn from them in the light most favorable to the party against whom judgment was entered." Kalamazoo Acquisitions, L.L.C. v. Westfield Ins. Co., Inc., 395 F.3d 338, 342 (6th Cir.2005) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The party opposing summary judgment cannot rest on its pleading or allegations, to prevail, they must present material evidence in support of their allegations. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A mere scintilla of evidence is insufficient; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III 24 * "Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law." Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) (citing Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). As we shall discuss, the laws cited by Robinson, in support of the contested arrest, are all state laws. Both parties agree that "[w]here probable cause exists, `[a] police officer is permitted to make an arrest without a warrant for a misdemeanor committed in his presence.'" United States v. Reed, 220 F.3d 476, 478 (6th Cir.2000) (quoting United States v. Smith, 73 F.3d 1414, 1416 (6th Cir.1996)). 25 We must independently and objectively determine whether Robinson had probable cause to arrest Leonard. 26 Our cases make clear that an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. . . . "[T]he Fourth Amendment's concern with `reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." "[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer." 27 Devenpeck, 543 U.S. at 152-53, 125 S.Ct. 588 (citations omitted). "[P]robable cause determinations involve an examination of all facts and circumstances within an officer's knowledge at the time of an arrest." Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir.1999) (citing Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). 28 Robinson has asserted the defense of qualified immunity. "Qualified immunity is an affirmative defense that shields government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Estate of Carter v. Detroit, 408 F.3d 305, 310-11 (6th Cir.2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The initial inquiry in ascertaining the validity of a qualified immunity defense is: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). See also Silberstein v. Dayton, 440 F.3d 306, 311 (6th Cir.2006). "In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established." Saucier, 533 U.S. at 194, 121 S.Ct. 2151. If the court can find, "on a favorable view of the [plaintiff's] submissions," a violation of a constitution right, the next step in Saucier's sequential analysis is to determine if the right was clearly established. Ibid. See also Groh v. Ramirez, 540 U.S. 551, 563-64, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (noting that reasonable public officials should know the law governing their conduct). For a right to be clearly established, the "`contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Greene v. Barber, 310 F.3d 889, 893 (6th Cir.2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). 29 We will not grant immunity to a defendant if no reasonably competent peace officer would have found probable cause. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). In other words, "[i]t is clearly established that arrest without probable cause violates the Fourth Amendment." Klein v. Long, 275 F.3d 544, 550 (2001) (quoting Donovan v. Thames, 105 F.3d 291, 297-98 (6th Cir. 1997)). Where the reasonableness of an officer's actions hinge on disputed issues of fact, "the jury becomes the final arbiter of . . . immunity, since the legal question of immunity is completely dependent upon which view of the facts is accepted by the jury." Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir.1989). 30 "[G]overnment officials in general, and police officers in particular, may not exercise their authority for personal motives, particularly in response to real or perceived slights to their dignity." Bloch v. Ribar, 156 F.3d 673, 682 (6th Cir.1998) (quoting Duran v. Douglas, 904 F.2d 1372, 1378 (9th Cir.1990)). For a plaintiff to state a claim for First Amendment retaliation, he must show that the injury was material, Bloch, 156 F.3d at 678 (that the injury would "would likely chill a person of ordinary firmness from continuing to engage in that activity"), "that his conduct was constitutionally protected," and that it was a "motivating factor" behind the government's actions. Adair v. Charter County of Wayne, 452 F.3d 482, 492 (6th Cir.2006); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). A "motivating factor" is essentially but-for cause — "without which the action being challenged simply would not have been taken." Greene, 310 F.3d at 897. 31 Probable cause is clearly relevant to Leonard's First Amendment retaliation claims. See Hartman v. Moore, 547 U.S. 250, ___, 126 S.Ct. 1695, 1699, 164 L.Ed.2d 441 (2006). In Hartman, the Supreme Court determined that probable cause is an element of a malicious prosecution charge brought as constitutional tort under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Hartman, 126 S.Ct. at 1699. Although there are differences between wrongful arrest and malicious prosecution, see id. at 1705 (noting that "the causal connection required here is not merely between the retaliatory animus of one person and that person's own injurious action, but between the retaliatory animus of one person and the action of another"), there is an obvious similarity in that "the significance of probable cause or the lack of it looms large," id. at 1706. Hartman, therefore, calls into question our cases holding that "probable cause is not determinative of the [First Amendment] constitutional question." See Greene, 310 F.3d at 895. Yet, we need not decide whether Hartman adds another element to every First Amendment claim brought pursuant to § 1983 because, when viewed in the light most favorable to the plaintiff, we find that the facts of this case demonstrate an absence of probable cause. 32 In sum then, both Leonard's claims1 and Robinson's defenses turn on the laws that Leonard allegedly violated and their validity as applied in the context of a democratic assembly. Again, when the facts are viewed in a light most favorable to Leonard, we believe that First Amendment freedoms, clearly established for a generation, preclude a finding of probable cause because the laws cited by Robinson are either facially invalid, vague, or overbroad when applied to speech (as opposed to conduct) at a democratic assembly where the speaker is not out of order. B 33 Robinson relies on four sections of Michigan's Penal Code defining various misdemeanors. Leonard was charged with two violations of Michigan Law. The first is Michigan Compiled Laws § 750.167, defining a disorderly person: 34 (1) A person is a disorderly person if the person is any of the following: 35 (a) A person of sufficient ability who refuses or neglects to support his or her family. (b) A common prostitute. (c) A window peeper. (d) A person who engages in an illegal occupation or business. (e) A person who is intoxicated in a public place and who is either endangering directly the safety of another person or of property or is acting in a manner that causes a public disturbance. (f) A person who is engaged in indecent or obscene conduct in a public place. (g) A vagrant. (h) A person found begging in a public place. (i) A person found loitering in a house of ill fame or prostitution or place where prostitution or lewdness is practiced, encouraged, or allowed. 36 * * * 37 Ibid. (emphasis added). See also Mich. Comp. Laws § 750.168 (stating that it is a misdemeanor to be a disorderly person). In Robinson's deposition, he reveals that he believes subsection (f) to be most applicable to Leonard's conduct at the meeting. The criminal citation also relied upon Michigan Compiled Laws § 750.337: 38 INDECENT, ETC., LANGUAGE IN PRESENCE OF WOMEN OR CHILDREN — Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor. 39 Ibid., invalidated by People v. Boomer, 250 Mich.App. 534, 655 N.W.2d 255 (2002). 40 Additionally, to support his defenses of qualified immunity and probable cause, Robinson presented two more statutes in his motion for summary judgment. See Br. of Appellee at 10-12. The first of these, Michigan Compiled Laws § 750.103 states: 41 CURSING AND SWEARING—Any person who has arrived at the age of discretion, who shall profanely curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost, shall be guilty of a misdemeanor. No such prosecution shall be sustained unless it shall be commenced within 5 days after the commission of such offense. 42 Ibid. The next and last law, Michigan Compiled Laws § 750.170, states: 43 DISTURBANCE OF LAWFUL MEETINGS — Any person who shall make or excite any disturbance or contention in any tavern, store or grocery, manufacturing establishment or any other business place or in any street, lane, alley, highway, public building, grounds or park, or at any election or other public meeting where citizens are peaceably and lawfully assembled, shall be guilty of a misdemeanor. 44 Ibid. C 45 The First Amendment is an important part of our system of self-government. It specifically allows for the people "to petition the government for a redress of grievances." U.S. Const. amend. I. The limitations of the First Amendment are applicable to the states. See Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) ("It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action."). 46 Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. 47 Mills v. Alabama, 384 U.S. 214, 218-19, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) ("The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system"). The First Amendment reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (citing Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) and De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937)). Even those who advocate the most narrow interpretation of the freedom of speech agree that in a democratic forum like a township meeting, the state should abstain from regulating speech: 48 Constitutional protection should be accorded only to speech that is explictily [sic] political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law. 49 Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 20 (1971). 50 Of course, the constitutional protection of speech is not without limits. Specifically not afforded protection are fighting words, "those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Barnes v. Wright, 449 F.3d 709, 717 (6th Cir.2006) (internal quotations and citations omitted). 51 The First Amendment permits "restrictions upon the content of speech in a few limited areas, which are `of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" 52 Thus, for example . . . fighting words—"those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction"—are generally proscribable under the First Amendment. 53 Virginia v. Black, 538 U.S. 343, 358-59, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (citations omitted) (holding that the First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation and speech or symbolic acts to intimidate lack First Amendment protection). D 54 Section 750.337 of Michigan Compiled Laws, regulating speech in the presence of women or children, was held unconstitutional by the Court of Appeals of Michigan in Boomer, 250 Mich.App. 534, 655 N.W.2d 255. Boomer reversed the conviction of a criminal defendant prosecuted under the law. The man, known to the local media as the cussing canoeist, was convicted for uttering a string of expletives in the presence of women and children upon tipping his canoe on the Rifle River. Id. at 256. See also Sarah Kershaw, A 1909 Washington State Law Shielding a Woman's Virtue Is Being Challenged, N.Y. Times, Jan. 26, 2005 at A13. The court determined that it was "unnecessary to address [Boomer's] overbreadth arguments, or to undertake an extensive First Amendment analysis, because . . . M.C.L. § 750.337 is unconstitutionally vague." 655 N.W.2d at 257. The court explained that "in order to pass constitutional muster, a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Id. at 258 (internal quotations and citations omitted). 55 A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application . . . . Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked. 56 Here, it would be difficult to conceive of a statute that would be more vague than M.C.L. § 750.337. There is no restrictive language whatsoever contained in the statute that would limit or guide a prosecution for indecent, immoral, obscene, vulgar, or insulting language. Allowing a prosecution where one utters "insulting" language could possibly subject a vast percentage of the populace to a misdemeanor conviction. 57 Id. at 258-59 (emphasis added) (citations, internal quotations, and omissions removed). 58 The court went on to state that, "[the statute], as currently drafted, impinges on First Amendment freedoms . . . . [It is] unquestionable that [the statute], as drafted, reaches constitutionally protected speech, and it operates to inhibit the exercise of First Amendment rights." Id. at 259. Thus, it is clear that probable cause for Leonard's arrest is not supported by § 750.337. See Sandul v. Larion, 119 F.3d 1250, 1256 (6th Cir.1997) (holding that protected speech cannot serve as the basis for a violation of city ordinances at issue). 59 Michigan's courts have not commented so clearly and directly upon the constitutionality of the other three statutes at issue in this case. Surely aware of this fact, Robinson argues that Boomer says nothing about the other statutes' validity because it is well established that: 60 Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality-with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement. 61 DeFillippo, 443 U.S. at 38, 99 S.Ct. 2627 (emphasis added); accord Boomer, 655 N.W.2d at 257. The Michigan Supreme Court held that the law in Boomer was just such a law—that it was "difficult to conceive of a statute that would be more vague than M.C.L. § 750.337." 655 N.W.2d at 258. See also Sandul, 119 F.3d at 1257 (Kennedy, J., dissenting) (arguing that De-Fillippo is strengthened in "the absence of any Michigan case law which has held a similar ordinance unconstitutional."). Similarly, viewing the facts in the light most favorable to the plaintiff, no reasonable police officer would believe that any of the three other Michigan statutes relied upon by the district court are constitutional as applied to Leonard's political speech during a democratic assembly. 62 Therefore, and for many of the same reasons relied upon by the Boomer court, we hold that Michigan Compiled Laws § 750.167(f), to the extent it is applied to Leonard's speech, cannot here support probable cause. First, the plain language of that statute regulates conduct and not speech. We understand indecent or obscene as regulated in § 750.167(f) as regulating "conduct consisting of exposing private body parts when one reasonably might expect that they would be viewed unwantedly by others," United States v. Whitmore, 314 F.Supp.2d 690, 698 (E.D.Mich.2004), and not speech. Furthermore, to the extent that § 750.167(f) is intended to regulate speech, we hold that its language is so free of limitation and so closely tracks that of § 750.337 that it is flagrantly unconstitutional. 63 Next, we hold that Leonard's conduct could not have been proscribed by Michigan Compiled Laws § 750.103. That law makes "profanely curs[ing] or damn[ing] or swear[ing] by the name of God, Jesus Christ or the Holy Ghost" a crime. Ibid. The Supreme Court has held that a state may not make a "single fourletter expletive a criminal offense." Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). In Cohen, "the defendant was observed in the Los Angeles County Courthouse . . . wearing a jacket bearing the words `Fuck the Draft.'" Id. at 16, 91 S.Ct. 1780. "The defendant [in Cohen] testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft." Ibid. We can find no principled distinction between the expletive in Cohen and the milder profanity in this case. Although "the right of free speech is not absolute at all times and under all circumstances," Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), Leonard's utterance of "God damn," was not, as a matter of law "likely to cause a fight." Id. at 573, 62 S.Ct. 766. Accord Sandidge v. State, 279 Ga.App. 86, 630 S.E.2d 585, 586 (2006) (holding that "arrest me" and "damn" were not fighting words and listing other Georgia cases that did involve fighting words under Chaplinsky); Sandul, 119 F.3d at 1255 (citing Chaplinsky, and relying on Cohen for the holding that the use of the word "fuck," in and of itself, is not criminal conduct). Prohibiting Leonard from coupling an expletive to his political speech is clearly unconstitutional. See Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (conduct may be obscene when, taken as a whole, it lacks serious political value). Section 750.103, if not facially invalid, is radically limited by the First Amendment. 64 Finally, we consider Michigan Compiled Laws. § 750.170, prohibiting "[a]ny person who shall make or excite any disturbance or contention . . . at any . . . public meeting where citizens are peaceably and lawfully assembled." Although this section may constitutionally proscribe some conduct, it has already been held to be overbroad by a Michigan court. We agree. 65 A sit-in at the University of Michigan's Literature, Science, and Arts building was the subject of People v. Mash, 45 Mich. App. 459, 206 N.W.2d 767, 768 (1973). The defendant in that case challenged that § 750.170 was void for vagueness and overbreadth. Ibid. The Mash court recognized that the words "excite any contention" must be excised from the statute for it to survive constitutional scrutiny, for without this alteration, the statute might unconstitutionally criminalize the expression of ideas, "`merely because the ideas are themselves offensive to some of their hearers.'" See Bachellar v. Maryland, 397 U.S. 564, 571, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970) (quoting Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969)). An earlier decision by the Court of Appeals of Michigan had suggested: 66 In all prosecutions under this statute the activity to be punished must be shown to present clear and present danger of riot, disorder, interference with traffic, or a threat to public safety. The statute is concerned with intentional acts of violence or threats of the commission of acts of violence by persons having the ability of immediate execution of such threats. 67 People v. Purifoy, 34 Mich.App. 318, 191 N.W.2d 63, 64 (1971). The Mash court refused to adopt these limiting principles. While Mash is somewhat unclear about what expressive conduct may be proscribed by the state, when we view the facts here in a light most favorable to Leonard, there is no conduct at issue for the statute to prohibit, nor is there conduct upon which Robinson could find probable cause. 68 Application of Mash to these facts is, in the first instance, a job for the district court. For our purposes, we consider Leonard's version of the incident and "view the facts and any inferences reasonably drawn from them in the light most favorable to [him.]" Kalamazoo Acquisitions, 395 F.3d at 342. On this view, there was no disturbance to which a court might apply § 750.170 and no reasonable police officer could think so. The exact nature of Leonard's conduct is instead a disputed issue of material fact, and our legal analysis need not consider the merits of that dispute. See Cureton, 882 F.2d at 215-16. On one view of the facts, Leonard was merely advocating an idea. This cannot support a conviction and it cannot create probable cause. Bachellar, 397 U.S. at 570, 90 S.Ct. 1312. "It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Street, 394 U.S. at 592, 89 S.Ct. 1354; Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (noting "an `equality of status in the field of ideas'"). See also, e.g., Brown v. Louisiana, 383 U.S. 131, 150, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (reversing a breach of the peace conviction for staging a protest at a segregated library); Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965) (reversing a loitering conviction in connection with a civil rights protest); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (reversing breach of the peace convictions for protest against segregation on the capitol grounds). But see Feiner v. New York, 340 U.S. 315, 320, 71 S.Ct. 303, 95 L.Ed. 295 (1951) (upholding conviction for breach of the peace where sidewalk speaker created an "immediate threat to public safety, peace, or order.") 69 The crux of this case perhaps lies in the dissent's statement that certain facts are "undisputed because the record contains a video of the incident." The dissent's characterization of the events shown on the tape, as rendered at page 14, is perhaps reasonable. However, that characterization is neither undisputed, nor undisputable. This judge has looked at the same tape, and not only come to a slightly different conclusion personally, but more importantly concluded that a rational juror could come to a different conclusion. This judgment means that there is a genuine issue of material fact as to whether Leonard's conduct could constitutionally be considered criminal by any rational officer. 70 We conclude that the statute is unconstitutional as applied by the district court because the procedural posture of the case permits a finding that Leonard merely advocated an idea. This conclusion is based upon First Amendment jurisprudence that is decades old. In light of this, and of the prominent position that free political speech has in our jurisprudence and in our society, it cannot be seriously contended that any reasonable peace officer, or citizen, for that matter, would believe that mild profanity while peacefully advocating a political position could constitute a criminal act. The facts in this case could lead a reasonable factfinder to conclude that the circumstance of Leonard's arrest for disturbing the peace were devoid of any indicia of disruption or contention. See Mich. Comp. Laws. § 750.170. 71 We therefore hold that no reasonable officer would find that probable cause exists to arrest a recognized speaker at a chaired public assembly based solely on the content of his speech (albeit vigorous or blasphemous) unless and until the speaker is determined to be out of order by the individual chairing the assembly. See Jones v. Heyman, 888 F.2d 1328, 1329 (11th Cir.1989) (holding that the chair of city commission meeting may, without violating the First Amendment, have a speaker removed when she becomes disorderly by speaking off-topic). Any peace officer in attendance can reasonably be expected to restrain herself from arresting speakers based upon what they say while advocating their political positions in an orderly fashion. See Houston v. Hill, 482 U.S. 451, 461-62, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (noting that a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen). Therefore, because Leonard's arrest was not supported by probable cause, it was error for the district court to grant Robinson qualified immunity on the Fourth Amendment claims. E 72 The district court's analysis of the retaliation claim under Mt. Healthy was also flawed. Because Leonard's conduct was constitutionally protected and because arrest is particularly suited to chill this conduct, see Bloch, 156 F.3d at 679-80 (holding that a combination of embarrassment, humiliation, and emotional distress is sufficient to chill for Mt. Healthy's purposes), we focus on the district court's evaluation of Robinson's motive for the arrest. The district court never considered whether Leonard's exchange with the board was protected speech. It accepted without analysis that the Michigan statutes were valid as applied because no court decision had specifically struck them down in toto. The court then concluded that Michigan had validly proscribed Leonard's conduct before the Board and that probable cause existed for an arrest. 73 The district court did not address evidence that was relevant to Robinson's motivation in making the arrest. The court noted, that at the moment of arrest: 74 Plaintiff already had commenced his vehement complaints that the township board had been "screwing over" his family's business, and he already had made the reference to a "goddamn lawsuit" which, as discussed earlier, provided probable cause to arrest for violating Mich. Comp. Laws § 750.103. Moreover, all of these statements were directed at the township supervisor, and not at Defendant. Consequently, when Defendant initially approached Plaintiff and asked him to calm down, there would have been absolutely no reason to suspect that Defendant's "true motivation was to punish a slight to his dignity." Rather, Defendant presumably could only have been acting out of an appropriate desire to preserve calm and order at a public meeting, or perhaps with the intention to act upon Plaintiff's apparent violation of a Michigan statute. At a minimum, there is absolutely no evidence of any improper motive or purpose that might have led Defendant to initiate the encounter with Plaintiff. 75 D. Ct. Op. at 21-22 (emphasis added). 76 Although we believe that it is a close case on this point, we reverse. A reasonable factfinder, viewing the record evidence in the light most favorable to Leonard, could conclude that he was arrested in retaliation for constitutionally protected conduct. Leonard's deposition reveals disputed facts about a prior lawsuit (several lawsuits, according to counsel at oral argument), a feud between the police department and his family, and Chief Abraham's "hatred" of his wife. The recording of the Township meeting, with Leonard off-camera and recorded only in voice, also creates a triable issue on whether Leonard disrupted the meeting and whether Robinson lied about his motive to attend. 77 We cannot ignore that Leonard's testimony on one point is equivocal. In response to the question, "Do you have any — aside from your opinion that's happened, do you have any facts or any statements from people to support your opinion [that Robinson was ordered to arrest one of the Leonards]?" Leonard answered, "No." This answer is inconsistent with Leonard's prior statements in the same deposition where he details the circumstances surrounding his wife's prior lawsuit with Chief Abraham. In light of this, his answer can be interpreted as a response to a misunderstood question because it is not unreasonable to infer that the related facts about the political situation in Montrose support Leonard's opinion. We interpret Leonard's "no" answer to mean that he was unaware of any direct admissions from the defendant or Chief Abraham that would definitively prove his case. It is not Leonard's burden to depose every individual whose testimony might add credibility to his allegations in order to oppose Robinson's motion for summary judgment. These are difficult cases to try, see Hartman, 126 S.Ct. at 1705, but the facts and circumstances surrounding Leonard's arrest are sufficiently odious to support a reasonable inference of retaliatory conduct. Robinson could have eliminated these suspicions by deposing Leonard's wife and mother-in-law, whose testimony would tend to either enhance or detract from the veracity of Leonard's allegations. In fact, Leonard's final witness list prepared for the district court names Sarah Leonard, and his mother-in-law, Agnes Johnson, as individuals who may testify for the plaintiff. 78 We hold that Leonard has set out a prima facie case of First Amendment retaliation and has created a genuine issue of material fact. See Fed.R.Civ.P. 56. A jury could reasonably find that Robinson acted out of malice in arresting Leonard. See Musso v. Hourigan, 836 F.2d 736, 742 (2d Cir.1988) (affirming the district court's denial of qualified immunity on First Amendment retaliation allegations of false arrest at an open school board meeting). IV 79 For the reasons stated above, we REVERSE the district court's entry of summary judgment and REMAND for further proceedings consistent with this opinion. Notes: 1 "To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law."Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006). 80 SUTTON, Circuit Judge, concurring in part and dissenting in part. 81 Officer Robinson had probable cause to arrest Leonard for violating any one of four Michigan statutes: Michigan Compiled Laws § 750.103 ("Cursing and swearing"); § 750.167 ("Disorderly person"); § 750.170 ("Disturbance of lawful meetings"); and § 750.337 ("Women or children, improper language in presence"). While I am prepared to accept the majority's judgment that the application of all four statutes to Leonard violated his First Amendment rights, I am not prepared to accept its judgment that the Supreme Court, our court or the Michigan courts had clearly established the unconstitutionality of all four of these duly enacted laws before this incident. 82 The Michigan courts, it is true, had declared one of the four statutes facially unconstitutional six-and-a-half months before this arrest. See Mich. Comp. Laws § 750.337 (criminalizing the "use [of] any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child"), invalidated by People v. Boomer, 250 Mich.App. 534, 655 N.W.2d 255, 259 (2002) (holding § 750.337 "facially vague"). But the other three have been on the books since 1931, see Mich. Pub. Act No. 328, §§ 103, 167, 170 (Sept. 18, 1931), were enacted by a state legislature sworn to uphold the United States Constitution, see U.S. Const. art. VI, cl. 3, and accordingly receive a presumption of constitutionality, Illinois v. Krull, 480 U.S. 340, 351, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). 83 Put yourself in the shoes of Officer Robinson when it comes to enforcing just one of these statutes, § 750.170 ("Disturbance of lawful meetings"), on the evening of October 15, 2002. Let us assume (improbably) that Robinson had looked at the statute before attending the meeting. Let us assume (even more improbably) that Robinson had looked at judicial interpretations of the statute before the meeting. And let us assume (most improbably) that Robinson had read Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), before the meeting. 84 The statute, he would have learned, says that "[a]ny person who shall make or excite any disturbance . . . at any election or other public meeting where citizens are peaceably and lawfully assembled, shall be guilty of a misdemeanor." Nothing about the case law enforcing the provision would have tipped him off that he was clearly forbidden from applying it here. One of the cases defines "disturbance" as "[a]ny act . . . contrary to the usages of a sort of meeting and class of persons assembled that interferes with its due progress or irritates the assembly in whole or in part." People v. Weinberg, 6 Mich.App. 345, 149 N.W.2d 248, 251 (1967) (internal quotation marks omitted); id. at 252-53 (upholding a conviction under the law on the grounds that the defendants "hindered and interfered" with a savings and loan association's "right to conduct [its] business in an orderly, quiet, decorous manner" when they sat on the floor and were "requested to leave" but "refused to do so"). Another case upholds a conviction where the evidence showed that the defendants had "failed to leave the building when requested" and that their presence interfered with janitorial service. People v. Mash, 45 Mich.App. 459, 206 N.W.2d 767, 770 (1973). And both of these cases uphold the statute in the face of constitutional challenges. Mash, 206 N.W.2d at 770 (holding that "§ 750.170 is not void for vagueness nor constitutionally infirm for overbreadth"); Weinberg, 149 N.W.2d at 255-56 (holding that § 750.170 was not "unconstitutionally broad" and upholding convictions in the face of a First Amendment challenge). As for Cohen v. California, it would have taught him that the First (and Fourteenth) Amendment prohibits a State from making "a single four-letter expletive a criminal offense." 403 U.S. at 26, 91 S.Ct. 1780. 85 All Robinson would have learned, in other words, is that the statute had been enforced several times during its 75-year existence; it had not sunk into desuetude as shown by the fact that it had been enforced within the last decade, People v. Walker, No. 198893, 1998 WL 1989516 (Mich.Ct.App. Oct. 27, 1998); it had withstood two constitutional challenges, one of them on First Amendment grounds; and Cohen prevented him only from arresting someone on the sole ground that the individual had uttered an expletive. Even had Robinson been equipped with this uncommonly extensive knowledge of Michigan and federal law, indeed even had Robinson carried a laptop equipped with Westlaw and Lexis/Nexis to the meeting, I am hard pressed to understand how he would have known that it was "clearly established" that he could not enforce this law in this setting. 86 The undisputed facts (undisputed because the record contains a video of the incident) show that Robinson observed Leonard at a "public meeting where citizens were peaceably and lawfully assembled," Mich. Comp. Laws § 750.170, yelling, swearing and answering requests with the words "I'll do what I want." JA 152. What starts as a pointed, but seemingly controlled, exchange between Leonard and a board member turns into Leonard speaking over the board member and degenerates into Leonard losing control and simply yelling at the board member. At that stage, when Robinson stepped in, Leonard not only had created a "disturbance" at this public meeting but also had lost control of himself. One can only wonder where the verbal confrontation was heading, and it is doubtful that a single one of the 25 or so people in attendance (save the Leonards) regretted Robinson's decision to take action. A reasonable police officer could fairly believe that Leonard had "excite[d][a] disturbance," Mich. Comp. Laws § 750.170, either by "interfer[ing]" with the council meeting's "due progress" by "refusing" to abide by the council member's requests, Weinberg, 149 N.W.2d at 251; see also Mash, 206 N.W.2d at 770, or by "hinder[ing]" the meeting from "conduct[ing][its] business" by yelling and cursing during the meeting, Weinberg, 149 N.W.2d at 252. 87 It may be true that Robinson did not wait for the chair to call Leonard "out of order." See Maj. Op. at 361. But I am not aware of any requirement — under Michigan law, the First Amendment or any other law — that an officer may restore order to such a gathering only by following Robert's Rules of Order. 88 Nor does People v. Purifoy, 34 Mich. App. 318, 191 N.W.2d 63 (1971), alter this conclusion. While one of the three judges reviewing that case stated that activity punished under § 750.170 must present a "clear and present danger of riot," id. at 65, two of the three judges in Purifoy expressly rejected this language, id. (Danhof and V.F. Brennan, JJ., concurring in part and dissenting in part) ("We cannot agree, however, that all prosecutions under the statute . . . would require that the activity to be punished must be shown to present a clear and present danger of riot. . . ."). Two years later, Mash removed all doubt about the point. See 206 N.W.2d at 770 (noting that "the other members of the [Purifoy] panel . . . . declined to adopt the qualifying language cited by the Chief Judge," and holding that "[w]e also respectfully decline to follow this dicta in Purifoy"). 89 In Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), the Supreme Court addressed the problem raised by this case — namely, how can the courts fairly require police officers to anticipate constitutional rulings? — in the context of ruling on a suppression motion filed under the Fourth Amendment: 90 At that time, of course, there was no controlling precedent that this ordinance was or was not constitutional, and hence the conduct observed violated a presumptively valid ordinance. A prudent officer, in the course of determining whether respondent had committed an offense under all the circumstances shown by this record, should not have been required to anticipate that a court would later hold the ordinance unconstitutional. 91 Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality—with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement. 92 Id. at 37-38, 99 S.Ct. 2627. Similar reasoning ought to apply here. DeFillippo, it is true, applied what came to be known as the "Leon good faith" exception to the Fourth Amendment. Id. at 38, 99 S.Ct. 2627. But "the Leon good-faith inquiry and the qualified-immunity inquiry are one and the `same,'" Baranski v. Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco & Firearms, 452 F.3d 433, 448 (6th Cir.2006) (en banc) (quoting Groh v. Ramirez, 540 U.S. 551, 565 n. 8, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004)); see also United States v. Leon, 468 U.S. 897, 911-12, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ("We have not required suppression of the fruits of a search incident to an arrest made in good-faith reliance on a substantive criminal statute that subsequently is declared unconstitutional.") (citing DeFillippo). 93 To my knowledge, the Supreme Court has never rejected a claim of qualified immunity to a police officer who enforced a statute that had not been declared unconstitutional at the time of the citizen-police encounter. While DeFillippo acknowledges "the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws," 443 U.S. at 38, 99 S.Ct. 2627, the exception remains just that—a theoretical possibility, one that can be imagined but that the Court has never enforced. 94 Adhering to DeFillippo's guidance that the combination of legislative action and judicial inaction generally "forecloses speculation by enforcement officers concerning [a statute's] constitutionality," 443 U.S. at 38, 99 S.Ct. 2627, the Sixth Circuit has resisted imposing liability on police officers and other officials who fail to anticipate each twist and turn of judicial review. See Risbridger v. Connelly, 275 F.3d 565, 574 (6th Cir.2002) (granting qualified immunity to an officer who had arrested plaintiff for refusing to identify himself because "a reasonable officer would not have known that the ordinance would be found to be unconstitutionally vague as applied in this situation"); Wolfel v. Morris, 972 F.2d 712, 720 (6th Cir.1992) ("[S]ince the defendants reasonably relied on and applied valid regulations, they are entitled to qualified immunity for their actions. The fact that these regulations were subsequently held unconstitutionally vague as applied in a court case addressing a fairly complex legal matter cannot serve to strip these individuals of their immunity . . . ."); Hanna v. Drobnick, 514 F.2d 393, 397 (6th Cir.1975) ("[The building inspectors'] actions at the time were presumptively valid under a city ordinance which they had no part in adopting and which had not been declared unconstitutional. . . . [W]e perceive no duty on the part of the building inspectors to defy their city's ordinance and their supervisors' instructions by asserting the invalidity of the penalty clause of the ordinance which had not yet been attacked."), repudiated on other grounds by Thomas v. Shipka, 818 F.2d 496 (6th Cir.1987); see also Prose v. Wendover, 96 Fed.Appx. 358, 364 (6th Cir.2004) ("Because the only court to have considered the ordinance in question, a federal district court, concluded that it was not `patently and flagrantly unconstitutional,' the officers were entitled to qualified immunity from a claim that they violated the First Amendment by attempting to enforce it."). 95 The other courts of appeals have taken the same path. See Vives v. City of New York, 405 F.3d 115, 117-18 (2d Cir.2005) (granting qualified immunity to officers because no case established "the proposition that [the statute] is facially unconstitutional"); Cooper v. Dillon, 403 F.3d 1208, 1220 (11th Cir.2005) (granting qualified immunity to officers because "[a]t the time of Cooper's arrest, the statute had not been declared unconstitutional, and therefore it could not have been apparent to Dillon that he was violating Cooper's constitutional rights"); Blumenthal v. Crotty, 346 F.3d 84, 104-05 (2d Cir.2003) (granting qualified immunity to state officials because "enforcement of a presumptively valid statute creates a heavy presumption in favor of qualified immunity"); Doe v. Heck, 327 F.3d 492, 516 (7th Cir.2003) (granting qualified immunity to state officials who enforced corporal-punishment statute later declared unconstitutional because they had acted within their "statutory authority"); Lederman v. United States, 291 F.3d 36, 45, 47 (D.C.Cir.2002) (granting qualified immunity to officers who arrested plaintiff for distributing leaflets in a "no-demonstration zone" on the Capitol Grounds because while the law contained "profound flaws" and was "astonishing[ly]" broad it was not "so grossly and flagrantly unconstitutional that the officers should have recognized its flaws") (internal quotation marks omitted); Grossman v. City of Portland, 33 F.3d 1200, 1210 (9th Cir.1994) (granting qualified immunity to officer who arrested plaintiff for demonstrating without a permit because "an officer who reasonably relies on the legislature's determination that a statute is constitutional [and arrests with probable cause] should be shielded from personal liability"); Swanson v. Powers, 937 F.2d 965, 968-69 (4th Cir.1991) (granting qualified immunity to state revenue secretary who enforced a tax later declared unconstitutional because she "was enforcing a long-standing statute" that is presumptively constitutional). 96 The only case of which I am aware construing DeFillippo and denying qualified immunity is Carey v. Nevada Gaming Control Board, 279 F.3d 873 (9th Cir. 2002). But in that case "two Ninth Circuit cases [were] directly on point" because they had declared parallel statutes of other States—permitting an arrest for refusing to identify oneself—unconstitutional. Id. at 881. That of course does not remotely describe today's case. Nor does Sandul v. Larion, 119 F.3d 1250 (6th Cir.1997), offer any refuge to Leonard. It dealt not with the question whether an officer could be denied qualified immunity for failing to predict a judicial ruling declaring a statute unconstitutional but with whether the statute covered the plaintiff's conduct. See id. at 1256 (holding that shouting epithets from a moving car did not provide probable cause to arrest the plaintiff under a disorderly-conduct statute). 97 In the end, Leonard not only asks us to take a road less traveled but one never traveled. It is one thing to credit police officers with knowledge of all statutory and constitutional rulings potentially bearing on all statutes they enforce; but this necessary requirement needlessly loses any connection with reality when we hold police officers to the standard of anticipating a court's later invalidation of a statute that was duly enacted by legislators sworn to uphold the Constitution, that is presumed constitutional, that has been on the books for 75 years and that has withstood two constitutional challenges. The First Amendment properly protected Leonard from being prosecuted for his unruly speech and conduct—and for now that is enough. To expose Robinson to money damages for enforcing these laws not only seems unfair (absolute immunity protects the legislature from similar risks, Bogan v. Scott-Harris, 523 U.S. 44, 48-49, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998)) but also risks placing him in the push-me-pull-me predicament of having to decide which duly enacted laws to enforce and which ones not to enforce on the pain of losing either way—because he is charged with dereliction of duty when he opts not to enforce the law and because he is charged with money damages when he does enforce the law. See Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ("A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does."). 98 Leonard fares no better under his free-speech retaliation claim. Because probable cause existed to arrest Leonard, as has been shown, our case law forecloses this claim as a matter of law. See Barnes v. Wright, 449 F.3d 709, 720 (6th Cir.2006) ("[T]he defendants had probable cause to seek an indictment and to arrest Barnes on each of the criminal charges in this case. Barnes's First Amendment retaliation claim accordingly fails as a matter of law. . . ."). 99 But even had probable cause been missing, this claim still would fail as a matter of law. No evidence shows that Robinson was doing anything but attempting to restore calm to the disrupted board meeting. Robinson gave no indication of a retaliatory motive. Cf. Greene v. Barber, 310 F.3d 889, 892 (6th Cir.2002) ("`I said, "This is the United States of America and we have freedom of speech here" . . . . [The police officer] answered, "Well, not in my building" . . . .'") (bracket omitted); Adair v. Charter County of Wayne, 452 F.3d 482, 492 (6th Cir.2006) (noting that the critical issue is "whether the adverse action was motivated at least in part as a response to the exercise of the plaintiff's constitutional rights"). None of Leonard's speech was directed at Robinson. And no evidence shows that Robinson had any stake in the dispute between the city and the Leonards. Prior lawsuits between the city and the Leonards, a feud between the police department and the Leonards and Chief Abraham's apparent "hatred" of Leonard's wife thus do not bear on whether Robinson had a retaliatory motive. 100 The fainthearted suggestion that Chief Abraham had sent Robinson on a retaliatory errand is just that—if not less than that. "I think," Leonard initially proposes in his deposition testimony, that Robinson "was probably sent there by the chief." JA 151. But Leonard then acknowledges that "aside from [his] opinion," he did not "have any facts or any statements from people to support [that] opinion." Id. The undisputed evidence reveals that Robinson was asked to "swing through" the meeting for 15 to 20 minutes, that Chief Abraham never said "anything negative to [Robinson] about the Leonards" and that no board member had any conversation with Robinson about Mr. Leonard. JA 138. The majority seeing these issues differently, I respectfully dissent.

FILED NOT FOR PUBLICATION NOV 27 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JANINE BUELL, No. 14-35874 Plaintiff-Appellant, D.C. No. 6:13-cv-01794-AA v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner Social Security, Defendant-Appellee. Appeal from the United States District Court for the District of Oregon Ann Aiken, Chief District Judge, Presiding Submitted November 22, 2017** Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges. Janine Buell appeals the district court’s affirmance of the Commissioner of Social Security’s denial of her application for disability insurance benefits under Titles II and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we reverse and remand for further proceedings. The administrative law judge (“ALJ”) did not support with substantial evidence his finding under Step Two of the sequential analysis that the constellation of Buell’s fibromyalgia symptoms failed to amount to a severe medically determinable impairment (“MDI”). The ALJ found that the medical evidence in the record (1) did not fulfill the American College of Rheumatology’s (“ACR’s”) diagnostic criteria for fibromyalgia, and (2) that there was no evidence of a proper tender point test. However, examining physician Dr. Nolan determined that Buell suffered from fibromyalgia based on a clinical finding that she exhibited fourteen tender points, three more than necessary to support his opinion. He located bilateral “local tenderness” involving the mid trapezius and scalene areas (two points each), the infrascapular area (two points), the intercostal area (two points), the lateral epicondyles (two points), the trochanteric area (two points), and the sternocleidomastoid muscle (two points), for a total of fourteen points. This evidence, combined with other medical evidence of record indicating Buell’s history of widespread pain and that other disorders that could cause similar symptoms had been excluded, conform to the ACR’s diagnostic requirements. See 2 SSR 12-2P, 2012 WL 3104869, at *2-3 (July 25, 2012) (summarizing ACR guidelines for diagnosing fibromyalgia). The ALJ stated in support of his decision that Dr. Nolan noted “a number of positive Waddell’s signs,” which may indicate non-organic sources of back pain. The ALJ relied on this information to discount Dr. Nolan’s opinion. However, Dr. Nolan’s exam identified just two Waddell’s signs. Only a finding of three or more is considered “clinically significant,” such that these signs can weigh against a diagnosis of fibromyalgia. See Gordon Waddell et al., Nonorganic Physical Signs in Low-Back Pain, 5 Spine 117, 118 (Mar.-Apr. 1980); accord Reinertson v. Barnhart, 127 F. App’x. 285, 289 (9th Cir. 2005). As a result, this was not a clear and convincing reason supported by substantial evidence for discounting Dr. Nolan’s diagnosis. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). The ALJ also did not afford Dr. Nolan’s fibromyalgia diagnosis1 weight because the diagnosis was made based upon Buell’s self-reported symptoms and responses, and the ALJ found Buell’s description of her symptoms was not fully credible. However, fibromyalgia “is diagnosed entirely on the basis of patients’ 1 We do not accept the Commissioner’s suggestion that Dr. Nolan’s opinion is less than a diagnosis. 3 reports of pain and other symptoms.” Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). Therefore, Dr. Nolan appropriately relied upon Buell’s reports in diagnosing Buell with fibromyalgia, and the fact that he did so is not a clear and convincing reason for discrediting his diagnosis. See Carmickle, 533 F.3d at 1164. Moreover, the ALJ arrived at his adverse credibility finding after first determining at Step Two that Buell did not have a fibromyalgia-related severe MDI. If the ALJ had in front of him a valid diagnosis of fibromyalgia, it stands to reason that Buell’s symptoms and behavior would have appeared in a different and more favorable light. Accordingly, we vacate the ALJ’s adverse credibility finding without prejudice to revisiting this issue on remand. The ALJ’s unsupported finding at Step Two does not amount to harmless error because it affected the ALJ’s determinations in subsequent steps of the sequential analysis and may have influenced the ultimate determination of Buell’s nondisability status. Under Step Three, the ALJ found Buell’s impairments did not meet or equal a listed impairment. Because the ALJ improperly found Buell’s fibromyalgia was not a severe MDI, he also did not analyze under Step Three whether Buell’s fibromyalgia, coupled with other impairments, medically equaled a listed impairment. See SSR 12-2P, 2012 WL 3104869, at *6 (explaining fibromyalgia is not a listed impairment, and so ALJs determine whether it equals a 4 listed impairment). Thus, the ALJ’s error in not supporting with substantial evidence his finding that Buell’s fibromyalgia did not constitute a MDI was not “inconsequential to the ultimate nondisability determination” and, as a result, was not harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). The ALJ’s error at Step Two may have affected the Residual Functioning Capacity (“RFC”) analysis as well. If the ALJ had properly analyzed the fibromyalgia-related evidence, it may have been necessary for him to examine, under Step Three, whether Buell’s fibromyalgia medically equaled a listed impairment. In turn, if the ALJ had found Buell’s fibromyalgia equaled a listed impairment, inquiry into Buell’s RFC would have been superfluous. See Kennedy v. Colvin, 738 F.3d 1172, 1174-75 (9th Cir. 2013) (explaining that if the ALJ finds a claimant’s impairments meet or equal a listed impairment under Step Three, “the claimant is considered disabled and benefits are awarded, ending the inquiry”). Because the ALJ’s error may have influenced the outcome of the case by leading the ALJ to proceed unnecessarily to Step Four, it was not harmless. See Molina, 674 F.3d at 1115. Buell does not satisfy the credit-as-true rule, which requires that the record already be fully developed with “no outstanding issues to be resolved,” as the issue 5 of evaluating Buell’s fibromyalgia evidence remains. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). REVERSED AND REMANDED. 6 

187 B.R. 676 (1995) In re Ronald Arthur YENSEN, fdba Dirty Shame Saloon, fdba C & R Logging, Debtor. Bankruptcy No. 95-00466. United States Bankruptcy Court, D. Idaho. July 17, 1995. *677 John H. Krommenhoek, Trustee, Boise, ID. Randal J. French, Boise, ID, for Debtor. SUMMARY ORDER ALFRED C. HAGAN, Bankruptcy Judge. Presently before the Court is the Chapter 13 Trustee's motion to dismiss. The debtor, Ronald Arthur Yensen's previous Chapter 13 proceeding[1] was dismissed in February of 1995 for failure to attend the § 341 meeting of creditors. The debtor testified at the hearing held July 10, 1995 that he deliberately chose not to attend because he was afraid he would be arrested at the meeting on state criminal charges. The debtor filed the petition is the present case on February 23, 1995. DISCUSSION Code section 109(g)(1) provides: (g) Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if — (1) the case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case;. . . . 11 U.S.C. § 109(g)(1). Failure to attend a section 341 meeting is "failure to abide by a court order" within the meaning of § 109(g). In re Basile, 142 B.R. 931, 932 (Bankr.D.Idaho 1992); In re Armwood, 175 B.R. 779 (Bankr.N.D.Ga. 1994); In re Pappalardo, 109 B.R. 622, 625 (Bankr.S.D.N.Y.1990). The burden of proof is on the debtor to show the failure to abide by a court order was not "willful." In re Huerta, 137 B.R. 356, 375 (Bankr.C.D.Cal. 1992). The term "willful" as used within the meaning of 11 U.S.C. § 109(g)(1) means deliberate or intentional rather than accidental or beyond the debtor's control. In re Pappalardo, 109 B.R. at 625. See also In re Basile, 142 B.R. at 932 (absent opportunity to cross-examine the debtors the debtors' affidavit explaining that they failed to attend the 341 meeting because they were confused about the time of the meeting was insufficient to prove the debtors' failure was not "willful"). Here the debtor's only excuse for his failure to attend the hearing is that he was afraid he might be lawfully arrested. If the debtor had been arrested before the meeting, *678 that would have been a circumstance beyond the debtor's control. However, fear (even legitimate fear) of arrest is not valid excuse for failure to abide by court orders. Accordingly, the Court concludes the debtor's failure to attend the hearing was "willful". Therefore, the debtor is not eligible for relief under title 11. Accordingly, it is hereby, ORDERED: The trustee's motion to dismiss is granted and the case is DISMISSED. NOTES [1] In re Yensen, 94-03151.

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 17 2015, 6:28 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kristina J. Jacobucci Gregory F. Zoeller Newby, Lewis, Kaminski & Jones, LLP Attorney General of Indiana La Porte, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Marzano Shelly, March 17, 2015 Appellant-Defendant, Court of Appeals Case No. 46A03-1404-CR-133 v. Appeal from the La Porte Superior Court. The Honorable Kathleen B. Lang, State of Indiana, Judge. Appellee-Plaintiff Cause No. 46D01-1201-MR-31 Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 1 of 25 [1] Marzano Shelly appeals his convictions for Murder, 1 a felony, Felony Murder,2 a felony, Robbery,3 a class A felony, and Serious Violent Felon in Possession of a Firearm,4 a class B felony. Shelly raises a number of issues, including whether his convictions violate the constitutional prohibition against double jeopardy. Finding that they do, we reverse and order the trial court to vacate Shelly’s convictions for felony murder and class A felony robbery. On remand, the trial court is instructed to enter judgment of conviction on class C felony robbery and revise Shelly’s sentence accordingly. We affirm the judgment of the trial court as to all other issues raised. Facts [2] In 2012, seventy-three-year-old Charles Harper lived in a house in Michigan City with his friend, Vincent Fayson. On January 19, 2012, Shelly arrived at Harper’s house and asked Fayson if Harper was available. Harper asked Shelly to come inside and gave Fayson some money so that he could leave the house and go out with his friends. Fayson left the house sometime around eight o’clock at night. 1 Ind. Code § 35-42-1-1(1). 2 I.C. § 35-42-1-1(2). 3 I.C. § 35-42-5-1. 4 Ind. Code § 35-47-4-5. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 2 of 25 [3] Around 10:30 p.m., Fayson, still out with his friends, called Harper and received no answer. When Fayson returned to Harper’s house later that night, Harper’s truck was gone, but the lights and television were still on and the door to the house was unlocked. Fayson entered the house and noticed that a chair was propped underneath the doorknob to the kitchen door. Fayson removed the chair, opened the door, and found Harper lying in a pool of blood. [4] Harper had been shot five times, including once in the back of the head and once in the face. Fayson contacted the police and informed them that Shelly was the last person he had seen with Harper. Later that evening, officers discovered Harper’s truck parked at an apartment complex. The next morning, officers knocked on the door of an apartment at the complex belonging to Doris Parr, who invited them inside. The officers soon discovered Shelly hiding in the furnace room and arrested him. [5] Officers then spoke with a woman who was in Parr’s apartment when Shelly was arrested. She informed them that Shelly had been carrying a twelve-pack box of Icehouse beer and that he had attempted to hide the box when police arrived. After Parr consented to a search of her apartment, the officers found the Icehouse box hidden underneath Shelly’s jacket in the furnace room. They searched the box and found, among other things, Harper’s wallet, keys, two handguns, and ammunition. [6] The State charged Shelly with murder, felony murder, class A felony robbery, and class B felony serious violent felon in possession of a firearm. The State Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 3 of 25  later requested an habitual offender sentence enhancement. Shelly filed a motion to suppress the evidence found inside the Icehouse box, which the trial court denied. Shelly also filed a motion asking the trial court to declare Jury Rule 20(a)(8), which allows jurors and alternates to discuss the evidence amongst themselves during recesses prior to the commencement of deliberations, unconstitutional. The trial court denied this motion as well. [7] During the jury selection process, one of the prospective jurors, Gorski, informed the trial court that he believed one of Shelly’s tattoos signified that he had previously murdered someone. Gorski said that he had shared these thoughts with other prospective jurors. [8] Shelly moved for a mistrial. The trial court denied the motion, finding that any taint could be cured by individually questioning all of the prospective jurors. When questioned, only two prospective jurors indicated that they had discussed Shelly’s tattoo with Gorski. Both prospective jurors, along with Gorski, were dismissed. No other prospective juror indicated that they had participated in or overheard such discussions and the trial court admonished all that remained that they must not speak about the case with anyone. [9] Following jury selection, Shelly moved to discharge the jury panel, alleging that the prosecutor had made statements that improperly informed the jury of the facts of the case, misinformed the jury as to the elements of the crimes charged, and improperly commented upon Shelly’s exercise of his right against self- incrimination. The trial court denied this motion as well. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 4 of 25 [10] On August 12, 2013, Shelly was tried before a jury. At the close of evidence, Shelly moved for a mistrial, alleging that the State had failed to disclose evidence of Harper’s past criminal activity, about which Shelly had just learned. The trial court denied the motion, finding that there was not a reasonable probability that the evidence would have affected the outcome of the trial. The trial court also denied Shelly’s request to instruct the jury on involuntary manslaughter. [11] The jury found Shelly guilty on all counts, and the trial court later found him to be an habitual offender. The trial court merged Shelly’s conviction for felony murder with his conviction for murder. Shelly was sentenced to sixty-five years for the murder conviction, thirty years for the class A felony robbery conviction, ten years for the class B felony violent felon in possession of a firearm conviction, and thirty years for the habitual offender finding. With the exception of the class B felony violent felon in possession of a firearm sentence, which was to be served concurrently to the murder sentence, the trial court ordered all sentences to be served consecutively, resulting in a total executed sentence of 125 years. Shelly now appeals. Discussion and Decision I. Double Jeopardy [12] Shelly claims that the trial court has placed him in double jeopardy by entering judgments of conviction for murder, felony murder, and class A felony robbery. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 5 of 25  Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” [13] Shelly first argues that the trial court placed him in double jeopardy when it entered judgments of conviction for both murder and felony murder. Although the trial court merged the counts, Shelly points out that “[a] trial court’s act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008). A double jeopardy violation is not remedied by the “practical effect” of concurrent sentences or merger of convictions. Id. On this point, the State agrees. Appellee’s Br. p. 15. [14] In its sentencing order, the trial court indicated that “[j]udgment of conviction is entered on Count II, Felony Murder.” Appellant’s App. p. 577. Although it later noted in the same order that both the murder and felony murder counts had been merged, id. at 578, this is insufficient to cure a double jeopardy violation. Accordingly, we must determine whether such a violation occurred. [15] Here, Shelly was charged with both murder, as defined in Indiana Code section 35-42-1-1(1), and felony murder, as defined in Indiana Code section 35-42-1- 1(2). Appellant’s App. p. 21. To prove murder, the State had to prove that Shelly “knowingly and intentionally kill[ed] another human being.” I.C. § 35- 42-1-1(1). On the other hand, to prove felony murder, the State had to prove that Shelly “kill[ed] another human being while committing or attempting to commit . . . robbery.” I.C. § 35-42-1-1(2). Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 6 of 25 [16] Two offenses are the same offense for purposes of Article I, Section 14 if, “with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis original). While both murder and felony murder contain separate and distinct statutory elements, our Supreme Court has made clear that “[m]urder and felony murder constitute the same offense, and one may not be twice punished for a single homicide.” Shields v. State, 493 N.E.2d 460, 460 (Ind. 1986). [17] Since Shelly cannot be convicted of both murder and felony murder, a choice must be made. Shelly argues that his murder conviction should be vacated, but we cannot agree. This Court dealt with a nearly identical situation in Fuller v. State, and held that: when a defendant stands convicted of murder, felony murder, and an additional felony, the felony murder should be vacated and the murder conviction should remain. To hold otherwise would permit a person who commits an intentional murder while committing another felony to use the felony murder rule to escape punishment for the underlying felony. This simply cannot be. When a person intentionally murders a human being while committing another felony, punishment for both the killing and the other felony does not violate double jeopardy principles. 639 N.E.2d 344, 347-48 (Ind. Ct. App. 1994). We believe that this reasoning is sound. Consequently, on remand, the trial court is instructed to vacate the felony murder conviction. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 7 of 25 [18] When Shelly’s felony murder conviction is vacated, his convictions for murder and robbery will stand. Shelly does not argue that murder and robbery contain the same statutory elements, nor does he argue that each crime was proved by the same evidence. Clearly, murder and robbery “contain mutually exclusive elements—the killing of another human being and the taking of property from another person.” Moore v. State, 652 N.E.2d 53, 60 (Ind. 1995). Accordingly, this Court has previously sustained convictions for both murder and robbery. Id. Shelly provides us with no reason as to why we should decide differently here. [19] However, while convictions for both murder and robbery can stand, Shelly’s conviction for robbery as a class A felony cannot. Class A felony robbery is an elevated form of robbery in which the robbery “results in serious bodily injury to a person other than the defendant.” I.C. § 35-42-5-1.5 “A defendant may not be convicted and sentenced for both Murder and Robbery (Class A) where the act that is the basis for elevating Robbery to a Class A felony is the same act upon which the murder conviction is based.” Moore, 652 N.E.2d at 60. Such is the case here—Shelly’s act of killing Harper serves as the basis for both his murder conviction and the elevation of his robbery conviction. 5 We refer to provisions of the Indiana Criminal Code as they existed when Shelly committed the offense. Following amendments that became effective on July 1, 2014, this form of robbery is now a Level 2 felony. Similarly, class B felony robbery is now a Level 3 felony. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 8 of 25 [20] The State suggests that we remedy this double jeopardy violation by reducing Shelly’s robbery conviction to a class B felony. Class B felony robbery is that which “is committed while armed with a deadly weapon or results in bodily injury to any person other than the defendant.” I.C. § 35-42-5-1. Once again, because the act that inflicted bodily injury—shooting Shelly—is the same act for which he was convicted of murder, it cannot serve as the act which elevates his robbery charge to a class B felony. Therefore, in order for Shelly to be convicted of class B felony robbery, the jury would have had to find that Shelly was armed with a deadly weapon. [21] While the jury found Shelly guilty of class A felony robbery, “the Class B charge is not necessarily included in the Class A offense.” Kingery v. State, 659 N.E.2d 490, 496 (Ind. 1995). We therefore must look to the final jury instructions to determine whether the jury found that Shelly used a deadly weapon and, thus, convicted him of class B felony robbery. The jury was instructed on the class A robbery charge as follows: Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt: One, the Defendant; Two, knowingly or intentionally; Three, took property from the presence of Charles Harper; Four, by using or threatening to use the use of force on Charles Harper; Five, and the commission of elements one through four resulted in serious bodily injury to Charles Harper. Tr. p. 2081. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 9 of 25 [22] As is evident from the above instructions, the jury was not asked to find that Shelly used a deadly weapon. Therefore, the jury did not convict Shelly of class B felony robbery in this instance. “A person cannot be sentenced for a crime for which that person has not been convicted.” Kingery, 659 N.E.2d at 496. Consequently, we may not reduce Shelly’s robbery conviction to a class B felony. However, as the above instructions do contain all of the elements of robbery as a class C felony, on remand, the trial court is instructed to enter judgment of conviction on class C felony robbery and revise Shelly’s sentence accordingly. II. Search of the Icehouse Box [23] Prior to trial, Shelly moved to suppress the evidence that officers discovered in the box of Icehouse beer that he attempted to hide in Parr’s apartment shortly before he was arrested. The trial court denied this motion, finding that Shelly did not have a reasonable expectation of privacy in the Icehouse box because, among other reasons, “a beer box is a beer box.” Appellant’s App. p. 186. [24] The trial court has broad discretion to rule on the admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We review its decision to admit evidence for an abuse of discretion and will reverse only when the decision is clearly against the logic and effect of the facts and circumstances and the error affects a party’s substantial rights. Id. [25] While Shelly acknowledges that Parr had consented to the search of her apartment, he maintains that the officer’s warrantless search of the Icehouse Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 10 of 25  box without his consent violated his constitutional rights. Shelly draws our attention to Krise v. State, 746 N.E.2d 957 (Ind. 2001). In Krise, Krise’s roommate consented to a search of the house that the two lived in together. Id. at 960. Once inside the house, officers found Krise’s purse, opened it, and found that it contained drugs. Id. Our Supreme Court held that this search violated Krise’s rights against unreasonable search and seizure protected by the Fourth Amendment to the United States Constitution. Id. at 959. [26] The Court first looked to Krise’s subjective expectation of privacy in both the area and the personal item searched, and then considered whether this expectation was objectively reasonable. In regard to the area searched, the Court noted that Krise’s “purse was located inside her home and thus was not accessible to the general public.” Id. at 970. In regard to the item searched, the Court noted that “‘[p]urses are special containers’” as “‘they are repositories of especially personal items that people generally like to keep with them at all times.’” Id. (quoting Wyoming v. Houghton, 526 U.S. 295, 310 (1999) (Breyer, J., concurring)). Under these circumstances, the Court found Krise’s expectation of privacy both subjectively and objectively reasonable. [27] The facts here are easily distinguishable. First, unlike in Krise, the object Shelly seeks to protect was not found in his own home. Rather, as Shelly left the Icehouse box in the home of another, his expectation of privacy was diminished accordingly. Second, the Icehouse box is not a “repository[y] of highly personal items” but, rather, a repository of beer. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 11 of 25 [28] Shelly argues that he was unable to afford a purse or similar container, and “[i]ndigent persons should not be afforded less protection under the Fourth Amendment simply because of their indigent status.” Appellant’s Br. p. 30. He argues that, because society has recognized that a person’s expectation of privacy in their purse is objectively reasonable, society recognizes, or perhaps should recognize, a similarly reasonable expectation of privacy that those who cannot afford purses have in whatever object they use to carry their belongings. [29] However, we need not consider how society would view Shelly’s expectation of privacy in the Icehouse box, because Shelly has not shown that he, himself, had such an expectation of privacy. First of all, it is questionable whether the Icehouse box even belonged to Shelly.6 Furthermore, Shelly did not present any evidence, nor does he claim, that he normally carried his personal belongings in beer boxes or similar containers. [30] In fact, to show a subjective expectation of privacy, Shelly points only to the fact that he tried to hide the Icehouse box when the police arrived. Here, Shelly conflates a desire for privacy with an expectation of privacy. We do not doubt 6 At the hearing on Shelly’s motion to suppress, the following exchange took place: State: Judge, I don’t even think the box was his, was it? Judge, not even the box was . . . even, not even the box, just, just briefly. Not even the Icehouse box was the defendant’s because he took that as well from the decedent’s . . . Court: Okay. State: . . . residence. Defense: Judge, that’s not in the record. That’s nowhere [in] testimony . . . Tr. p. 100. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 12 of 25  that Shelly did not want the officers to find the Icehouse box and its contents. However, Shelly’s attempt to hide the box indicates only that he did not want the officers to find evidence of a crime, not that he had a subjective expectation of privacy in the box. [31] Finally, we find that the search of the Icehouse box was reasonable under Article I, Section 11 of the Indiana Constitution. Under the Indiana Constitution, “the legality of a governmental search turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances.” Perez v. State, 981 N.E.2d 1242, 1251 (Ind. Ct. App. 2013), trans. denied. In making our determination, we consider: (1) the degree of concern, suspicion, or knowledge that a violation occurred; (2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities; and (3) the extent of law enforcement needs. Id. [32] In this case, these factors weigh in favor of concluding that this search was reasonable. When police searched the Icehouse box they knew that someone had been murdered and that Shelly, their primary suspect, had recently possessed the box. The search imposed no intrusion into Shelly’s ordinary activities, as he was under arrest at the time and the Icehouse box was located in another person’s home. Finally, officers had received the consent of the homeowner and had no reason to suspect that the Icehouse box was Shelly’s property or that he had a reasonable expectation of privacy in it or its contents. Under the totality of the circumstances, the officers’ search of the Icehouse box Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 13 of 25  was reasonable. Consequently, the trial court did not err in admitting this evidence. III. Prosecution’s Statements to the Jury [33] Shelly next argues that the prosecution made several statements that tended to condition the jury in the prosecution’s favor during voir dire. Shelly claims that the State attempted to implant in jurors’ minds ideas about the substantive facts of the case. He also claims that the State improperly commented on his decision not to testify.7 [34] A trial court has broad discretion to regulate the form and substance of voir dire. Adcock v. State, 933 N.E.2d 21, 26 (Ind. Ct. App. 2010). Parties may question prospective jurors to determine their attitudes towards the charged offense and whether they hold any preconceived ideas about defenses that the defendant intends to use. Id. “In making these determinations, the parties may pose hypothetical questions, provided they do not suggest prejudicial evidence not adduced at trial.” Id. [35] Regarding Shelly’s decision not to testify, during voir dire, defense counsel engaged in the following exchange with a prospective juror: 7 Although Shelly accuses the prosecution of making improper statements, his brief does not identify these statements and contains no citation to these statements in the record. Appellant’s Br. p. 8-9, 31-32. We remind Shelly that each contention made in the argument section of appellate briefs “must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on . . . .” Ind. Appellate Rule 46(A)(8)(a). To the extent that Shelly refers to statements that we have not identified above, we find that he has waived his argument as to any error arising from these statements. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 14 of 25  Defense: You understand that he’s uh, he doesn’t have to testify, he doesn’t have to say anything. Everybody understand that? You ever watch TV and ever heard about Fifth Amendment before? Juror: Uh huh. Defense: Alright, you can’t use that against him, you can’t hold that against him right? Juror: Correct. Tr. p. 584. The following day, the State engaged in the following exchange with a prospective juror: State: Relative to why someone wouldn’t testify, do you think that if someone were to . . . willing to lie to the police they would be willing to lie in court? Juror: I would hope not. State: Well, again, yes, we, we all hope that, but if someone takes the oath that they’re, but for a reason not to testify, I mean that was discussed yesterday, okay. Defense: Your Honor, objection . . . . Tr. p. 680. The State argued that defense counsel had begun this line of questioning the day before, and that it was just trying to explore the area further. The trial court sustained the objection as to any reference by the State regarding Shelly’s decision not to testify. Id. at 681. [36] “The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from the defendant’s silence.” Boatright v. State, 759 N.E.2d 1038, 1043 (Ind. 2001). However, after reviewing the exchange above, we cannot say that the State presented the jury with such an invitation. It is simply not clear where the State Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 15 of 25  was going with this line of questioning. The State’s question, while confusing, does not appear improper as is. We can only speculate as to whether improper comments would have followed had the State been allowed to continue. If improper comments would have followed, the objection served its purpose. [37] Shelly next asserts that the State improperly informed the jury of the facts of the case. In this instance, Shelly failed to object when the alleged misconduct occurred. Accordingly, he has waived his claim unless he can demonstrate fundamental error. Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012). To show this, he must establish that “the misconduct made a fair trial impossible or constituted clearly blatant violations of basic and elementary principles of due process or that the misconduct presented an undeniable and substantial potential for harm.” Id. (quotations omitted). [38] During voir dire, the State questioned a juror who stated that he had recently retired. The following exchange took place: State: Congratulations. How old are you? I hate to ask. Juror: Seventy. State: In this particular case, Mr. Harper, the decedent, was 73. Do you feel like that, being that close in age may create kind of a conflict or would that cause you to be impartial? Weigh some, something in . . . towards his benefit or not or do you think you’d be able to just set that aside? Tr. p. 541-42. On another occasion, the State informed the jury as follows: State: In, in this particular case, the Defendant has filed a Notice of Self-Defense. Did everybody hear that? Self-defense? And which means a couple of things. He’s not disputing the fact Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 16 of 25  that Mr. Harper is dead and that he was the person who shot and killed Mr. Harper. I can repeat that again. He’s not disputing that Mr. Harper is dead, or that he’s the person who caused the death. . . . [J]ust wanted to make sure you understand that that’s not an issue in this particular case. This is not a “who done it.” Tr. p. 451. [39] The impropriety of these statements is apparent from the moment the State utters the phrase “in this particular case.” Voir dire is not the place for discussion of the facts of a particular case. Blackburn v. State, 271 Ind. 139, 142, 390 N.E.2d 653, 656 (Ind. 1979). Our Supreme Court has made clear that “[i]t is not the function of jury voir dire examination to ‘Inform’ the prospective jurors of anything. Rather, it is to ascertain whether or not they can render a fair and impartial verdict in accordance with the law and the evidence.” Id. [40] The State argues that it was simply asking the jurors “whether they could be impartial and whether the proximity in age created any conflict . . . .” Appellant’s Br. p. 34. We recognize that “[i]t is not improper to inquire of prospective jurors if their own personal feelings could be influenced by such facts being presented so that the parties might know that an impartial and unprejudiced jury is trying their cause.” Barnes v. State, 435 N.E.2d 235, 238 (Ind. 1982). However, these questions should be posed in general terms—they should never refer to the specific facts of a case. [41] Similarly, in a case in which self-defense is at issue, both parties may properly inquire into jurors’ beliefs regarding such a defense. Once again, a general Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 17 of 25  question would adequately serve this purpose. However, the State’s above- quoted articulation of self-defense as it applied to Shelly’s case in particular was highly improper. Such statements were clearly not designed to discover whether jury members could properly perform their duty—which is the entire purpose of voir dire—as the State did not even pretend to present these statements in the form of questions. Simply put, the State may not use voir dire as an opportunity to make an opening statement. Had an objection been made, it would have been sustained. [42] That being said, these improprieties do not rise to the level of fundamental error. Here, we do not have a situation in which “the questions propounded by the prosecutor were designed solely to inflame the prejudices of the jury rather than uncover what prejudices could keep them from rendering a fair verdict.” Bane v. State, 587 N.E.2d 97, 102 (Ind. 1992) (citing Robinson v. State, 260 Ind. 517, 519, 297 N.E.2d 409, 411 (Ind. 1973)).8 Rather, we have a situation where the questions and statements were designed to do neither of these things. The State simply used voir dire to prematurely inform the jurors of some of the facts of this case. While this was clearly improper, the State’s representations were 8 In Robinson v. State, the State asked prospective jurors: “If a father killed his twenty year old daughter because she resisted his sexual advances, could you vote for the death penalty then?” 260 Ind. at 519, 297 N.E.2d at 411. The Court noted that “[t]he facts assumed by this question, although hypothetically stated bore a striking resemblance to the facts of the case at hand.” Id. Furthermore, the question implied an incestuous relationship when there was no evidence presented to that effect at trial. Our Supreme Court found this to be reversible error. Here, although the State has improperly informed prospective jury members of the facts of the case, none of its representations were inaccurate or misleading. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 18 of 25  not inaccurate or misleading. Under these circumstances, we do not believe that this error prejudiced Shelly or presented a substantial potential for harm. IV. Improper Discussions Between Prospective Jurors [43] During jury selection, a prospective juror came forward and informed the trial court that another prospective juror, Gorski, had shared his opinion as to Shelly’s guilt. Gorski informed the juror that he believed one of Shelly’s tattoos meant that he had killed somebody. Gorski told the prospective juror that he had looked this up online and that he believed Shelly was guilty. Tr. p. 851. The trial court asked the juror if Gorski was speaking to multiple jurors or if any other jurors had overheard. The prospective juror told the court that he didn’t believe anyone had overheard. [44] The trial court questioned Gorski and learned that he had shared his belief with a total of two prospective jurors. Shelly moved for a mistrial, but the trial court denied the motion, reasoning that any taint could be cured by individually questioning all prospective jurors. During questioning, two prospective jurors informed the court that Gorski had spoken directly to them about his beliefs. Both of these jurors, along with Gorski, were dismissed. Tr. p. 997, 1199. No other juror indicated that they had overheard these conversations. Shelly argues that the trial court erred in denying his motion for mistrial. [45] “A trial court is in the best position to evaluate whether a mistrial is warranted because it can assess first-hand all relevant facts and circumstances and their Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 19 of 25  impact on the jury.” Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014). Therefore, we review the denial of a motion for mistrial for an abuse of discretion. Id. [46] When seeking a mistrial for suspected jury taint, defendants are entitled to a presumption of prejudice after making two showings: (1) extra-judicial contact or communications between jurors and unauthorized persons occurred, and (2) the contact or communications pertained to the matter before the jury. Id. at 939. In this case, there was no extra-judicial contact between jurors and unauthorized persons. Rather, the contact complained of occurred between prospective jurors. [47] However, assuming that Shelly is entitled to a presumption of prejudice, it then falls to the State to rebut that presumption by showing that the contact or communication was harmless. Id. In this case, we find that the actions taken by the trial court subsequent to learning of these communications were appropriate and rendered the communications harmless. [48] Our Supreme Court has instructed trial courts to “immediately investigate suspected jury taint by thoroughly interviewing jurors collectively and individually, if necessary.” Id. at 940. Here, after learning of Gorski’s comments, the trial court interviewed all prospective jurors individually. Tr. p. 897-952. Those who were involved in the conversations with Mr. Gorski were dismissed from the jury. Tr. p. 997, 1199. [49] Although Shelly argues that the jurors could have overheard these conversations, none of the jurors indicated that they had. Shelly does not Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 20 of 25  indicate how he was otherwise prejudiced. We find the trial court’s actions appropriately remedied the situation and that Shelly was not entitled to a mistrial under the circumstances. V. Involuntary Manslaughter Instruction [50] Shelly next argues that the trial court erred in failing to instruct the jury on involuntary manslaughter. Instruction of the jury is within the sole discretion of the trial court and is reviewed only for an abuse of discretion. Bayes v. State, 791 N.E.2d 263, 264 (Ind. Ct. App. 2003). [51] When a defendant requests a jury instruction on what the defendant believes is a lesser-included offense of the crime charged, the trial court must conduct a three-part analysis. Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995). The first two parts of the analysis require the trial court to determine if the offense is either inherently or factually included in the crime charged. Ketcham v. State, 780 N.E.2d 1171, 1177 (Ind. Ct. App. 2003). If so, the trial court then proceeds to the final step, where it must determine if there is a serious evidentiary dispute regarding any element that distinguishes the two offenses. Id. If there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater, then it is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense. Wright, 658 N.E.2d at 567. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 21 of 25 [52] Both parties agree that involuntary manslaughter is not an inherently included offense of murder. Appellant’s Br. p. 26; Wright, 658 N.E.2d at 569. However, involuntary manslaughter “may be a factually included lesser offense if the charging information alleges that a battery accomplished the killing.” Ketcham, 780 N.E.2d at 1177. This is because “[t]he only element distinguishing murder from involuntary manslaughter is what the defendant intended to do—batter or kill.” McEwen v. State, 695 N.E.2d 79, 86 (Ind. 1998). In Ketcham, this was the case, as the charging information alleged that Ketcham killed his victim by shooting him with a deadly weapon. Id. This Court found that, because shooting is a battery,9 the charging information alleged a battery, and involuntary manslaughter was factually included in the murder charge. Id. at 1178. [53] Here, the charging information does not allege that a battery accomplished the killing. The charging information simply provides that “Shelly, did knowingly or intentionally kill another human being, to wit; Charles Harper.” Appellant’s App. p. 21. Without any mention of the means by which Shelly killed Harper in the information, we simply cannot conclude that the charge alleged a battery. Consequently, involuntary manslaughter was not factually included in the murder charge, and the trial court did not err in denying Shelly’s request for the jury instruction. 9 A person commits battery when he “knowingly or intentionally touches another person in a rude, insolent, or angry manner.” I.C. § 35-42-2-1. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 22 of 25 [54] Moreover, even if involuntary manslaughter had been factually included in the murder charge, we agree with the trial court’s conclusion that no serious evidentiary dispute existed as to whether Shelly intended to kill Harper. “When one shoots another person multiple times at close range, a reasonable jury could infer that the shooter’s intent was to kill, not batter, the victim.” Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). Here, the evidence showed that Shelly shot Harper five times, including once in the face and once in the back of the head. The trial court did not err in concluding that an instruction on involuntary manslaughter was improper in light of such evidence. VI. Harper’s Criminal History [55] At the close of evidence, Shelly learned that Harper had a criminal history that the State had failed to disclose. In particular, Harper was charged with threatening the President of the United States in 1967, unlawful use of a weapon in 1971, and resisting law enforcement in 1972.10 Defendant’s Ex. A. Shelly moved for a mistrial and the trial court denied his motion. Once again, we will review the trial court’s decision to deny a motion for mistrial for an abuse of discretion. Ramirez, 7 N.E.3d at 935. [56] It is unknown whether Harper was convicted of any of these offenses, 11 but Shelly argues that, had he been informed of this history, he “could have 10 Harper had also been charged with other, nonviolent crimes. Defendant’s Ex. A. 11 Both parties agree that a letter from the United States Department of Justice “tended to establish that Harper had been convicted” of threatening the President in 1967. Appellee’s Br. p. 19; Defendant’s Ex. B. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 23 of 25  introduced reputation or opinion evidence of Charles Harper’s character for aggressiveness.”12 Appellant’s Br. p. 25. In Holder v. State, our Supreme Court explained: Evidence of the victim’s character may be admitted for either of two distinct purposes: to show that the victim had a violent character giving the defendant reason to fear him or to show that the victim was the initial aggressor. Evidence of specific bad acts is admissible to prove that the victim had a violent character which frightened the defendant. However, only general reputation evidence of the victim’s violent nature is admissible to prove that the victim was the initial aggressor. If the defendant wishes to introduce either type of character evidence, she must first introduce appreciable evidence of the victim’s aggression to substantiate the self-defense claim. When offering specific bad acts evidence to prove the victim’s violent character frightened her, the defendant must also prove a foundation showing that she knew about the specific bad acts in question before she killed the defendant. 571 N.E.2d 1250, 1254 (Ind. 1991) (citations omitted). [57] Because it is undisputed that Shelly did not know of these decades-old charges against Harper, he does not argue that he should have been allowed to present the charges themselves as evidence of specific bad acts. Appellant’s Br. p. 25. Instead, Shelly appears to argue that, had he known of these charges, he would have presented reputation or opinion evidence of Harper’s violent nature to 12 On appeal, Shelly makes a brief reference to Brady v. Maryland, 373 U.S. 83 (1963), when he notes that “[f]ailure to turn over such exculpatory evidence may result in a violation of the defendant’s due process rights under the Fifth Amendment of the United States Constitution.” Appellant’s Br. p. 24. However, as Shelly fails to argue that his due process rights were actually violated in this case, we need not conduct the Brady analysis. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 24 of 25  show that Harper was the initial aggressor. Id. However, even to do this, Shelly was first required to introduce “appreciable evidence of the victim’s aggression to substantiate the self-defense claim.” Holder, 571 N.E.2d at 1254. Shelly does not argue that he did this, nor is it apparent from the record. Shelly also fails to explain exactly how his lack of knowledge of these decades-old charges prevented him from introducing reputation or opinion evidence as to Harper’s violent nature. Therefore, the trial court did not err in denying his motion for a mistrial.13 [58] The judgment of the trial court is affirmed in part and reversed in part. The cause is remanded to the trial court to vacate Shelly’s convictions for felony murder and class A felony robbery, enter judgment of conviction on class C felony robbery, and revise Shelly’s sentence accordingly.14 Vaidik, C.J., and Riley, J., concur. 13 Shelly also argues that the trial court erred in denying his motion to declare Indiana Jury Rule 20(a)(8), which allows jurors and alternates to discuss the evidence amongst themselves during recesses prior to the commencement of deliberations, unconstitutional. This Court has previously addressed the same argument in Weatherspoon v. State, 912 N.E.2d 437 (Ind. Ct. App. 2009), in which we found no constitutional violation. We decline Shelly’s invitation to revisit this issue. 14 Given that the trial court must resentence Shelly, we cannot entertain his claim for a reduction of his sentence under Indiana Appellate Rule 7(B) at this time. Therefore, we dismiss Shelly’s Rule 7(B) claim without prejudice. Court of Appeals of Indiana | Memorandum Decision 46A03-1404-CR-133 | March 17, 2015 Page 25 of 25 

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Charmain T. Willis, Petitioner Below, Petitioner FILED August 31, 2015 vs) No. 14-0445 (Fayette County 13-C-268) RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Lori Nohe, Warden, Lakin Correctional Center, Respondent Below, Respondent MEMORANDUM DECISION Petitioner Charmain T. Willis, by counsel Brandon S. Steele, appeals the Circuit Court of Fayette County’s December 30, 2013, order denying her petition for post-conviction habeas corpus relief.1 Respondent warden, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court’s order. On appeal, petitioner asserts that the circuit court erred in denying her habeas petition because (1) her 2011 guilty plea was “unlawfully induced” where her counsel failed to obtain an independent chemical test of the alleged controlled substance; (2) her 2009 trial counsel was constitutionally ineffective for several alleged deficiencies both before and during trial;2 (3) “there were no African Americans on the jury, and . . . the State failed to disclose favorable evidence”; (4) the circuit court made racially charged comments at petitioner’s sentencing hearing on January 17, 2012; and (5) her sentence was constitutionally excessive or more severe than expected. This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. In 2008, petitioner was indicted on two counts of delivery of a controlled substance in violation of West Virginia Code § 60A-4-401. Prior to trial, in a jury questionnaire sent to potential jurors, Juror 16 indicated that he was African American. The jury trial commenced in 2009, and, at the conclusion of jury vior dire, the State used a peremptory strike to remove Juror 1 Petitioner’s counsel filed a brief in this matter pursuant to Anders v. California, 386 U.S. 738, (1967). 2 As explained below, a jury found petitioner guilty of two felony offenses in 2009, and she pled guilty to a separate felony offense in 2011. Both the 2009 and 2011 convictions are at issue in this appeal. 1 16 from the jury panel. Petitioner challenged that strike on Batson grounds.3 In articulating race- neutral grounds for the strike, the State explained that Juror 16 had voted to acquit another criminal defendant weeks earlier and that an officer involved in petitioner’s case had made a controlled drug purchase from Juror 16 within the last year. The circuit court denied petitioner’s Batson challenge, and Juror 16 was stricken from the jury panel. During the State’s case-in-chief, a confidential informant (“CI”) claimed that police “already had eight other purchases on [petitioner].” The circuit court sustained petitioner’s objection to the statement and directed the jury to disregard it. At the conclusion of the State’s case-in-chief, petitioner moved for judgment of acquittal or, in the alternative, a mistrial based, in part, on the CI’s statement. The circuit court denied the motions. The jury found petitioner guilty on both counts. In April of 2009, the circuit court sentenced petitioner to two consecutive prison terms of one to fifteen years, but it suspended that sentence and imposed a three-year probationary term. Only three months later, in July of 2009, petitioner’s probation officer filed a notice of probation revocation alleging multiple violations of the alcohol and drug conditions of her probation. Petitioner admitted to the allegation that she used cocaine, but, nevertheless, the circuit court permitted her to return to probation with no additional terms or conditions. In 2011, petitioner was arrested for delivery of a controlled substance. Petitioner’s probation officer filed a second notice of probation revocation based on that arrest, and, in December of 2011, the circuit court held a joint plea and probation revocation hearing. Pursuant to her plea agreement with the State, petitioner admitted that she violated her probation as alleged, and she pled guilty to delivery of a controlled substance, by information.4 During her plea colloquy with the circuit court, petitioner stated that she understood the consequences of her guilty plea and the rights she was waiving by pleading guilty, and, with that understanding and with advice of counsel, she still wished to plead guilty. Her signed plea agreement stated, in relevent part, that [b]efore being called upon to enter any plea in this case, I fully understand the following . . . [t]hat I have a right to challenge in the [t]rial [c]ourt and on appeal all pre-trial proceedings, but by pleading guilty I waive all pre-trial defects with regards to, among others, my arrest, the gathering of evidence against me and prior confessions, as well as, all non-jurisdictional defects in this criminal proceeding. She also signed a waiver of rights statement in which she stated that her trial counsel “to [her] complete and total satisfaction, represented, advised and consulted with [her][.]” The circuit 3 See Batson v. Kentucky, 476 U.S. 79 (1986) (holding that prosecution’s purposeful exclusion of members of jury panel due to race is constitutional violation where defendant establishes prima facie case of the same and prosecution cannot articulate race-neutral explanation for the exclusion). 4 Petitioner waived her right to a grand jury indictment in this matter, and the parties proceeded by information. The State dismissed the felony offense as charged in September of 2011. 2 court accepted petitioner’s admission that she violated the conditions of her probation and accepted her guilty plea to the felony of delivery of a controlled substance. In January of 2012, the circuit court held a joint sentencing and dispositional probation revocation hearing. For petitioner’s probation violation, the circuit court imposed her original 2009 sentence of two terms of one to fifteen years in prison. For the 2011 conviction, the circuit court sentenced her to a third term of one to fifteen years in prison. All terms were ordered to run consecutive to one another. Petitioner did not directly appeal her convictions or sentences. In October of 2013, petitioner filed a pro se habeas petition asserting three grounds: (1) “unlawfully induced” plea in 2011 because her counsel failed to obtain an independent chemical test of the alleged controlled substance; (2) ineffective assistance of trial counsel in 2009 due to several alleged deficiencies both before and during trial; and (3) “there were no African Americans on the jury, and . . . the State failed to disclose favorable evidence[.]” By order entered on December 30, 2013, the circuit court denied her habeas petition. The circuit court explained that petitioner’s grounds were either waived and/or lacked merit. This appeal followed. This Court reviews appeals of circuit court orders denying habeas corpus relief under the following standard: [i]n reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review. Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009) (internal citations omitted). On appeal, petitioner assigns error to allegedly “racially charged” comments made by the circuit court at her sentencing hearing and to the amount of prison time she received as her sentence for these offenses. However, in her argument to this Court, petitioner failed to include “citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal.” W.Va. R. App. P. 10(c)(7). This Court has often held that it will not consider issues raised for the first time on appeal. See In re Michael Ray T., 206 W.Va. 434, 444, 525 S.E.2d 315, 325 (1999) (stating that “a constant refrain of this Court is that we will not consider, for the first time on appeal, a matter that has not been determined by the lower court from which the appeal has been taken.”); see also Syl. Pt. 1, Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334 (1971) (holding that “this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.”). The record is devoid of any evidence that petitioner included these issues in her habeas petition below or otherwise placed these issues before the circuit court. Therefore, we decline to address these issues on appeal. Petitioner’s remaining issues were raised in her habeas petition and were adequately addressed by the circuit court in its final order. Upon our review and consideration of the circuit 3 court’s final order, the parties’ arguments, and the record submitted on appeal, we find no error or abuse of discretion by the circuit court. Our review of the record supports the circuit court’s decision to deny petitioner’s petition for writ of habeas corpus based on the three grounds raised in this appeal. Having reviewed the circuit court’s order denying habeas relief, entered on December 30, 2013, we hereby adopt and incorporate the circuit court’s well-reasoned findings of fact and conclusions of law as to these assignments of error. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision. For the foregoing reasons, we affirm. Affirmed. ISSUED: August 31, 2015 CONCURRED IN BY: Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Brent D. Benjamin Justice Menis E. Ketchum Justice Allen H. Loughry II 4 

Case: 12-10149 Document: 00512307651 Page: 1 Date Filed: 07/15/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 15, 2013 No. 12-10149 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RICKY LYNN COLE, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 5:09-CV-186 Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM:* Following a jury trial, Ricky Lynn Cole, federal prisoner # 31788-177, was convicted of 107 counts of interstate transportation of child pornography, distribution of child obscenity, transportation of obscene matter, and aiding and abetting and was sentenced to a total 365-month term of imprisonment. On direct appeal, this court vacated and remanded for clarification of the sentence, and on remand, the district court reimposed the original 365-month * 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: 12-10149 Document: 00512307651 Page: 2 Date Filed: 07/15/2013 No. 12-10149 sentence, amending the judgment by removing the double terms of imprisonment originally imposed on count 98. This court affirmed. United States v. Cole, 281 F. App’x 277, 278 (5th Cir. 2008). Cole then filed a motion under 28 U.S.C. § 2255 seeking to vacate his conviction and sentence on various grounds, including ineffective assistance of counsel. The district court denied the motion and denied a certificate of appealability (COA). A judge of this court granted Cole a COA only on the issue whether the district court abused its discretion by denying, without conducting an evidentiary hearing, Cole’s claim that trial counsel rendered ineffective assistance in failing to object in the trial court to substantial government interference with defense witness Tina Cox-Cole. In addition to arguing the issue upon which COA was granted, Cole asserts in his appellate brief that the Government engaged in misconduct with respect to other witnesses and that his trial counsel was ineffective in failing to object in the trial court to government interference with witnesses besides Cox-Cole. We have jurisdiction to address only the issue specified in the order granting Cole a COA. See United States v. Daniels, 588 F.3d 835, 836 n.1 (5th Cir. 2009). Thus, to the extent that Cole raises other issues, we do not address them. See id. In an appeal from the denial of a § 2255 motion, we review a district court’s factual findings for clear error and its legal conclusions de novo. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). We review the district court’s decision not to grant an evidentiary hearing for abuse of discretion. Id.; see also United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). The district court should conduct an evidentiary hearing only if the defendant produces “independent indicia of the likely merit of [his] allegations.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (internal quotation marks 2  Case: 12-10149 Document: 00512307651 Page: 3 Date Filed: 07/15/2013 No. 12-10149 and citation omitted). “Once such independent evidence is presented, ‘[a] motion brought under . . . § 2255 can be denied without a hearing only if the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief.’” Cavitt, 550 F.3d at 442 (quoting United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)); see § 2255(b). The district court denied Cole’s claim that trial counsel was ineffective in failing to object to prosecutorial misconduct on the ground that Cole had failed to demonstrate any misconduct by the Government warranting an objection by trial counsel. Speculative allegations or conclusional assertions do not entitle a defendant to an evidentiary hearing. See, e.g., Edwards, 442 F.3d at 264; United States v. Auten, 632 F.2d 478, 480 (5th Cir. 1980). By contrast, Cole’s allegations are not speculative or unsupported by evidence but are supported by the affidavits of Cox-Cole and Lesley Androes. See, e.g., United States v. Whittington, 783 F.2d 1210, 1219 (5th Cir. 1986); United States v. Hammond, 598 F.2d 1008, 1012-13 (5th Cir. 1979). The record does not contain any “sworn record testimony from counsel explaining the strategy behind his decision” not to raise the issue of substantial interference with Cox-Cole in the trial court or addressing whether counsel considered raising the issue. Cavitt, 550 F.3d at 441; see Strickland v. Washington, 466 U.S. 668, 687 (1984). Based on the information known to counsel at the time of trial, the decision not to raise the issue of substantial government interference with Cox-Cole may well have been a reasonable one, but without additional evidence, we cannot say that “the motion and the files and records of the case conclusively show that [Cole] is entitled to no relief.” § 2255(b); see also Cavitt, 550 F.3d at 442. Accordingly, we VACATE the district court’s order dismissing Cole’s § 2255 motion only with respect to Cole’s claim that counsel was ineffective in failing to object in the trial court to substantial government interference with 3  Case: 12-10149 Document: 00512307651 Page: 4 Date Filed: 07/15/2013 No. 12-10149 Tina Cox-Cole and REMAND the case to the district court for further proceedings, to include an evidentiary hearing. We express no view on the merits of Cole’s claim. VACATED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. 4 

No. 2--06--0999 Filed: 7-5-07 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ In re RANDALL M., a Minor ) Appeal from the Circuit Court ) of Lake County. ) ) Nos. 05--JD--264 ) 06--JD--498 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. Randall M., ) Raymond D. Collins, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________ PRESIDING JUSTICE GROMETER delivered the opinion of the court: This appeal presents two issues involving section 5--410 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5--410 (West 2004)). The first issue is whether section 5--410 authorizes the automatic transfer of a minor with pending delinquency matters from a juvenile detention facility to an adult detention facility upon the minor's seventeenth birthday. The second issue is whether, under section 5--410, a minor 17 years of age or older with pending delinquency matters may be housed in the general population of a county jail. On April 20, 2005, a petition for adjudication of wardship was filed in the circuit court of Lake County, as case number 05--JD--264. The petition alleged that the minor, Randall M., born on October 2, 1989, was delinquent in that he had committed the offense of domestic battery (720 ILCS 5/12--3.2(a)(2) (West 2004)). On May 18, 2005, Randall admitted to the offense and was No. 2--06--0999 placed on probation for a period of one year. For reasons not relevant here, the period of probation was later extended until November 8, 2006. On September 26, 2006, the State filed a petition for adjudication of wardship as case number 06--JD--498 and a corresponding petition to revoke Randall's probation in case number 05--JD--264. With respect to the former petition, the State alleged that Randall had possessed a firearm without the requisite firearm owner's identification (FOID) card (430 ILCS 65/14(c)(3) (West 2004)) and that he had committed the offense of unlawful use of a weapon (720 ILCS 5/24--1(a)(2) (West 2004)). At the detention hearing held later the same day, the trial court found "sufficient probable cause" to believe that Randall was delinquent. The court further determined that it was a matter of "immediate and urgent necessity" for the protection of both Randall and the community that Randall be held in "secure detention." See 705 ILCS 405/5--410(2)(a) (West 2004). Pursuant to a local court rule, a minor determined to require "secure detention" is lodged in the Hulse Detention Center unless otherwise ordered by a juvenile court judge. 19th Judicial Cir. Ct. R. 9.13 (eff. January 2, 1997). At the conclusion of the detention hearing, the trial court asked about the date of Randall's birthday, noting that he would be turning 17 in October. The assistant State's Attorney responded that Randall would turn 17 on the following Monday. The court then stated, "Monday? Monday you will be transferred to Lake County." On September 29, 2006, Randall's attorney filed an emergency motion to enjoin the automatic transfer of Randall from the Hulse Detention Center to the Lake County jail. The motion averred that Randall would turn 17 years old on October 2, 2006, and that "[b]ased upon information and belief from past practices, because the minor will have attained the age of 17 the Juvenile Detention Center will automatically transfer the minor to the custody of the Lake County Sheriff, -2- No. 2--06--0999 who will then incarcerate the Minor [sic] within the general population of the jail with adult arrestees and criminals." The matter proceeded to a hearing on October 2, 2006. At the hearing on the emergency motion, Randall's attorney told the court that Randall was turning 17 that day and that based on what counsel had "seen throughout [his] career and years in juvenile court they're going to move [Randall] to the Lake County Jail." Randall's attorney further asserted that there was no basis in law for the transfer to occur. The State informed the court of its belief that the court was "within [its] rights to transfer [Randall] who *** turns 17 today as we have been doing in the past to keep him separate now from the juveniles that are out at the Hulse Detention Center." Ultimately, the trial court denied the emergency motion, stating: "Pursuant to 705 ILCS Section 405/5--410, Subsection V, minors under the age of 17 shall be kept separate from confined adults and may not at any time be kept in the cell, room or yard with adults confined pursuant to criminal law. Persons 17 years of age and older who have a petition of delinquency filed against them shall be confined in an adult detention facility. In making a determination whether to confine a person 17 years of age or older who has a petition of delinquency filed against the person these factors have to be considered, the age of the person. He's obviously 17 years old today and any--any previous delinquent history. In looking at the past socials that have been filed on the two cases he has a domestic battery from '05 and he has a criminal trespass to real property in '05 and he has unlawful possession of a stolen motor vehicle from '05 and then the present pending petitions against him. -3- No. 2--06--0999 Based on those two--the other two factors, any previous neglect or abuse history of the person, which I don't think there is any, any mental health or education history of the person, but based on the first two factors I am going to deny the motion of the public defender's office and transfer--have the minor transferred to the Lake County Jail pursuant to statute." On October 10, 2006, Randall filed a petition for leave to appeal to this court (see 210 Ill. 2d R. 306(a)(5)) as well as a notice of interlocutory appeal. On November 7, 2006, this court allowed Randall's petition for leave to appeal. During the pendency of this appeal, Randall admitted to possessing a firearm without a FOID card (430 ILCS 65/14(c)(3) (West 2004)) and testified at his sentencing hearing that while housed in the Lake County jail, he was "kept in population" with "adults." As noted, we are presented with two principal issues in this case. The first is whether section 5--410 of the Act (705 ILCS 405/5--410 (West 2004)) authorizes the automatic transfer of a minor with pending delinquency matters from a juvenile detention facility to an adult detention facility upon the minor's seventeenth birthday. The second is whether the same statute allows a minor 17 years of age or older with pending delinquency matters to be housed in the general population of a county jail. Before turning to these matters, we must address the State's suggestion that this appeal is moot. The State points out that Randall was sentenced subsequent to the date he filed his notice of appeal and that he is no longer subject to the statutory provisions in question. An issue becomes moot when an actual controversy no longer exists and the interests of the parties no longer are in controversy. In re Dexter L., 334 Ill. App. 3d 557, 558 (2002). As a general rule, a reviewing court will not decide moot or abstract questions. In re J.T., 221 Ill. 2d 338, 349 -4- No. 2--06--0999 (2006). However, reviewing courts may examine an otherwise moot issue pursuant to the public- interest exception. This exception applies if the following three criteria are present: (1) the question is of a public nature; (2) an authoritative determination on the question will help guide public officers in the performance of their duties; and (3) the question is likely to recur. In re Dru G., 369 Ill. App. 3d 650, 654 (2006). This case satisfies all three of the foregoing requirements. First, the questions we are asked to address are undoubtedly of a public nature, as they deal in general with the status and welfare of minors in detention and in particular with whether such minors may be automatically transferred to an adult facility upon their seventeenth birthdays and housed within the general population of a county jail. Second, we have found no cases interpreting the statutory provisions at issue, and Randall has provided this court with letters from counties throughout this state that indicate that not all jurisdictions treat in the same manner the arrival of the seventeenth birthday of a minor with pending delinquency matters.1 By addressing these issues, we hope to 1 Citing principally to People v. Heaton, 266 Ill. App. 3d 469, 476 (1994), the State objects to giving any consideration to these letters, on the basis that they were not presented to the trial court. In Heaton, the Fifth District determined that it would not be proper to take judicial notice of a report not before the trial court when reviewing for an abuse of discretion the lower court's admission of evidence. Heaton, 266 Ill. App. 3d at 476-77. As we discuss later in this opinion, this case involves statutory interpretation, which is a question of law subject to de novo review. People v. Calderon, 369 Ill. App. 3d 221, 230 (2006). Our supreme court has recently indicated that, in conducting de novo review, a reviewing court may, where appropriate, consider sources outside the record. In re Commitment of Simons, 213 Ill. 2d 523, 531 (2004); see also Pace v. Regional Transportation Authority, 346 Ill. App. 3d 125, 132 (2003) ("[I]n deciding whether a claim is moot, we may -5- No. 2--06--0999 provide guidance and create uniformity in the application of the relevant provisions of the Act. Third, it is evident from the letters provided by these other counties that regardless of whether Randall is currently incarcerated, other minors continue to be automatically transferred from juvenile facilities to adult facilities upon turning 17 and some of these minors are held in the general population of the jail. Thus, the questions are likely to recur. Accordingly, we will address the issues. Both of the inquiries presented in this case involve matters of statutory construction. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. People v. Brady, 369 Ill. App. 3d 836, 843 (2007). Ordinarily, the best indicator of the legislature's intent is the language of the statute itself. Brady, 369 Ill. App. 3d at 843. All provisions of a statutory enactment are to be viewed as a whole. In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002). As such, we must construe words and phrases in light of the other relevant portions of the statute so that, if possible, no term is rendered superfluous or meaningless. West Suburban Bank v. City of Chicago, 366 Ill. App. 3d 1137, 1140 (2006). If the language of a statute is clear and unambiguous, we will give effect to the statute's plain meaning. People v. Pierce, 367 Ill. App. 3d 203, 205 (2006). If, however, the statutory language is ambiguous, we may resort to other interpretive aids to resolve the ambiguity and ascertain the legislature's intent. People v. Taylor, 221 Ill. 2d 157, 163 (2006). We are also mindful of the rule that any ambiguity in a penal statute should consider matters dehors the record"); People v. Dalcollo, 282 Ill. App. 3d 944, 955 (1996) (rejecting Heaton and noting that when asked to establish the law of the jurisdiction for future cases, a court of review will "engage in a broad review" and consider "any pertinent legal and scientific commentaries"). Thus, in resolving the mootness question, we will consider the letters at issue. -6- No. 2--06--0999 be construed in favor of the accused. People v. Kohl, 364 Ill. App. 3d 495, 499-500 (2006). We review issues of statutory construction de novo. In re Jaime P., 223 Ill. 2d 526, 532 (2006). Our first task is to determine whether the Act authorizes the automatic transfer of a minor with pending delinquency matters to an adult detention facility upon the minor's seventeenth birthday. The Act defines a "delinquent minor" as "any minor who prior to his or her 17th birthday has violated or attempted to violate, regardless of where the act occurred, any federal or State law, county or municipal ordinance." 705 ILCS 405/5--105(3) (West 2004). The Act further provides that when there is reasonable cause to believe that the minor is a delinquent minor, confinement in a county jail shall be in accordance with the restrictions set forth in sections 5--410 (705 ILCS 405/5- -410 (West 2004)) and 5--501 (705 ILCS 405/5--501 (West 2004)) of the Act.2 705 ILCS 405/1--4.1 (West 2004). In this case, the trial court found "sufficient probable cause" to believe that Randall was a delinquent minor. Relevant to our initial discussion is section 5--410(2)(c)(v) of the Act (705 ILCS 405/5-- 410(2)(c)(v) (West 2004)). Prior to January 1, 2004, section 5--410(2)(c)(v) provided: "(v) Violation of the time limit on detention in a county jail or municipal lockup shall not, in and of itself, render inadmissible evidence obtained as a result of the violation of this time limit. Minors under 17 years of age shall be kept separate from confined adults and may not at any time be kept in the same cell, room or yard with adults confined pursuant to criminal law. Persons 17 years of age and older who have a petition of delinquency filed 2 We limit our discussion to section 5--410 as the parties refer to section 5--501 only in passing and the trial court did not rely on section 5--501 in making its decision. -7- No. 2--06--0999 against them shall be confined in an adult detention facility." (Emphasis added.) 705 ILCS 405/5--410(2)(c)(v) (West 2002). In making its ruling, the trial court cited, inter alia, the last two sentences of the provision reproduced above. However, section 5--410(2)(c)(v) acquired its current verbiage when Public Act 93--255 (Pub. Act 93--255, eff. January 1, 2004 (amending 705 ILCS 405/5--410 (West 2002))) became law. The amended version of the statute, which was in effect at the time that the trial court made its ruling, provides: "(v) Violation of the time limit on detention in a county jail or municipal lockup shall not, in and of itself, render inadmissible evidence obtained as a result of the violation of this time limit. Minors under 17 years of age shall be kept separate from confined adults and may not at any time be kept in the same cell, room or yard with adults confined pursuant to criminal law. Persons 17 years of age and older who have a petition of delinquency filed against them may be confined in an adult detention facility. In making a determination whether to confine a person 17 years of age or older who has a petition of delinquency filed against the person, these factors, among other matters, shall be considered: (A) The age of the person; (B) Any previous delinquent or criminal history of the person; (C) Any previous abuse or neglect history of the person; and (D) Any mental health or educational history of the person, or both." (Emphasis added.) 705 ILCS 405/5--410(2)(c)(v) (West 2004). As the evolution of this statutory provision suggests, while confinement in an adult detention facility was once mandatory for an individual 17 years of age or older with pending delinquency matters, -8- No. 2--06--0999 this is no longer the case. The plain language of the current version of the statute clearly provides that such individuals "may" be confined to an adult detention center. The use of the word "may" indicates that the legislature intended the provision to be discretionary. See People v. Young, 124 Ill. 2d 147, 157 (1988). However, in making a decision on such confinement, the statute provides that the four enumerated factors (plus any other relevant information) "shall" be considered. The use of the word "shall" in this context indicates that the legislature intended the application of the factors to be mandatory. See Young, 124 Ill. 2d at 157. Thus, as currently written, the plain language of section 5--410(2)(c)(v) does not authorize the automatic transfer of a minor with pending delinquency matters to an adult detention facility upon the minor's seventeenth birthday. A transfer may occur only once the requisite factors are assessed. The State concedes that section 5--410(2)(c)(v) of the Act now mandates individualized consideration of the factors enumerated therein, prior to transfer. The State goes on to assert, however, that Randall was provided the appropriate consideration in that he was not transferred to the county jail until after the trial court considered the requisite factors. Although the trial court did consider the factors outlined in section 5--410(2)(c)(v) of the Act, it did so only after Randall's attorney filed an emergency motion challenging Lake County's practice of automatically transferring minors with pending delinquency matters to the county jail upon their seventeenth birthdays. Absent the emergency motion, Randall would have been automatically transferred to the Lake County jail upon turning 17. More important, we do not endorse the procedure that ultimately resulted in Randall's transfer to the county jail. We do not believe that a minor should be required to initiate a proceeding to prevent his or her transfer to a county jail. In fact, such a procedure is inconsistent with a similar -9- No. 2--06--0999 statute, which places the burden of initiating a transfer on a party other than the minor. Section 3-- 10--7 of the Unified Code of Corrections (Code) (730 ILCS 5/3--10--7 (West 2006)) sets forth the procedure for transferring from the Department of Juvenile Justice to the adult division of the Department of Corrections certain minors prosecuted under criminal law and sentenced under the Code. Pursuant to that statute, the Department of Juvenile Justice must, within 30 days of the minor's seventeenth birthday, notify the sentencing court and the State's Attorney when the minor will turn 17. 730 ILCS 5/3--10--7(a) (West 2006); see also 730 ILCS 5/5--8--6(c) (West 2006) ("[T]he Department of Juvenile Justice shall, after a juvenile has reached 17 years of age, petition the court to conduct a hearing pursuant to subsection (c) of Section 3--10--7 of this Code"). The court must then hold a hearing within 90 days of receipt of the notice, and the minor must be served with notice of the date of the hearing. 730 ILCS 5/3--10--7(a) (West 2006). Among other things, the statute also provides the minor with the right to counsel during the hearing. 730 ILCS 5/3--10-- 7(a) (West 2006). At the hearing, the trial court must consider "all available information which may bear upon the issue of transfer" and may rely on "[a]ll evidence helpful to the court in determining the question of transfer." 730 ILCS 5/3--10--7(c) (West 2006). In making its decision, the court must consider certain non-exclusive factors and include in its order a statement of reasons. 730 ILCS 5/3--10--7(c) (West 2006). We conclude that a procedure similar to the one outlined in section 3--10--7 of the Code should be employed in applying the transfer provision set forth in section 5--410(2)(c)(v) of the Act, albeit in an expedited manner. As such, if the State deems a transfer appropriate, it may, within a reasonable time of the minor's seventeenth birthday, petition the court handling the minor's case to conduct a hearing pursuant to section 5--410(2)(c)(v) of the Act. Within a reasonable time of -10- No. 2--06--0999 receiving the State's petition, the court shall hold a hearing to determine whether the minor should be transferred to the county jail. Moreover, the minor shall be afforded the same procedural guarantees provided in section 3--10--7 of the Code, including the right to be notified of the date of the hearing and the right to have counsel present during the hearing. At the hearing, the trial court must consider the factors set forth in section 5--410(2)(c)(v) of the Act (705 ILCS 405/5-- 410(2)(c)(v) (West 2004)) as well as any other information that may bear upon the transfer issue. Finally, the court shall provide a statement of reasons explaining its ruling. We believe this procedure promotes one of the stated purposes of the Act, to provide "due process *** through which each juvenile offender and all other interested parties are assured fair hearings at which legal rights are recognized and enforced." 705 ILCS 405/5--101(1)(d) (West 2004). We next address whether the Act prohibits confining in the general population of a county jail a minor with pending delinquency matters. Prior to discussing this matter, we set forth the statutory provisions relative to our analysis. Section 5--410(2)(c) of the Act (705 ILCS 405/5-- 410(2)(c) (West 2004)) provides in relevant part: "Except as otherwise provided in paragraph (a), (d), or (e), no minor shall be detained in a county jail or municipal lockup for more than 12 hours, unless the offense is a crime of violence in which case the minor may be detained up to 24 hours." 705 ILCS 405/5-- 410(2)(c) (West 2004). Paragraph (a) (705 ILCS 405/5--410(2)(a) (West 2004)) states that "[n]o minor under 12 years of age shall be detained in a county jail or a municipal lockup for more than 6 hours." Paragraph (d) provides: -11- No. 2--06--0999 "(d)(i) If a minor 12 years of age or older is confined in a county jail in a county with a population below 3,000,000 inhabitants, then the minor's confinement shall be implemented in such a manner that there will be no contact by sight, sound or otherwise between the minor and adult prisoners. Minors 12 years of age or older must be kept separate from confined adults and may not at any time be kept in the same cell, room, or yard with confined adults. This paragraph (d)(i) shall only apply to confinement pending an adjudicatory hearing and shall not exceed 40 hours, excluding Saturdays, Sundays and court designated holidays. To accept or hold minors during this time period, county jails shall comply with all monitoring standards promulgated by the Department of Corrections and training standards approved by the Illinois Law Enforcement Training Standards Board. (ii) To accept or hold minors, 12 years of age or older, after the time period prescribed in paragraph (d)(i) of this subsection (2) of this Section but not exceeding 7 days including Saturdays, Sundays and holidays pending an adjudicatory hearing, county jails shall comply with all temporary detention standards promulgated by the Department of Corrections and training standards approved by the Illinois Law Enforcement Training Standards Board. (iii) To accept or hold minors 12 years of age or older, after the time period prescribed in paragraphs (d)(i) and (d)(ii) of this subsection (2) of this Section, county jails shall comply with all programmatic and training standards for juvenile detention homes promulgated by the Department of Corrections." 705 ILCS 405/5--410(2)(d) (West 2004). Paragraph (e) provides: -12- No. 2--06--0999 "(e) When a minor who is at least 15 years of age is prosecuted under the criminal laws of this State, the court may enter an order directing that the juvenile be confined in the county jail. However, any juvenile confined in the county jail under this provision shall be separated from adults who are confined in the county jail in such a manner that there will be no contact by sight, sound or otherwise between the juvenile and adult prisoners." 705 ILCS 405/5--410(2)(e) (West 2004). The Act defines an "adult" as "a person 21 years of age or older" (705 ILCS 405/1--3(2) (West 2004)) and a "minor" as "a person under the age of 21 years subject to this Act" (705 ILCS 405/1-- 3(10) (West 2004)). In addition, as noted previously, "delinquent minor" is defined as "any minor who prior to his or her 17th birthday has violated or attempted to violate, regardless of where the act occurred, any federal or State law, county or municipal ordinance." 705 ILCS 405/5--105(3) (West 2004). Relying on the statutory provisions quoted above, Randall argues that at the time he was placed in the Lake County jail he was a "minor" 12 years of age or older. As such, even if he had been properly transferred to the Lake County jail, he should not have been housed in the same cell, room, or yard with confined adults and he should not have had any contact by sight, sound, or otherwise with the adult prisoners. The State does not dispute that the legislature placed certain limitations on contact between minors and adult prisoners at a county jail. However, the State contends that the legislature intended these restrictions as "three non-overlapping age categories with graduated levels of supervision and protection." Thus, the State asserts, section 5--410(2)(d) applies to persons 12 to 14 years of age, prohibits contact, and requires the jail to adhere to "certain program standards." Section 5--410(2)(e) applies to persons 15 to 16 years of age and prohibits contact. -13- No. 2--06--0999 Section 5--410(2)(c)(v) covers minors age 17 years and older and allows "unlimited confinement" in an adult detention facility. We reject the State's reading of the statute as it ignores the Act's plain language. As noted above, section 5--410(2)(c) (705 ILCS 405/5--410(2)(c) (West 2004)) contains restrictions regarding (1) the amount of time a minor may be detained in a county jail and (2) with whom the minor may have contact while so confined. The issue we are asked to address concerns only the restrictions related to the latter category, and we limit our discussion to that realm. Generally, "[m]inors under 17 years of age shall be kept separate from confined adults and may not at any time be kept in the same cell, room or yard with adults confined pursuant to criminal law." 705 ILCS 405/5--410(2)(c)(v) (West 2004). This general rule is subject to two relevant exceptions, which we discuss below.3 See 705 ILCS 405/5--410(2)(c) (West 2004). The first exception, which is found in section 5--410(2)(d) of the Act (705 ILCS 405/5-- 410(2)(d) (West 2004)), applies to "a minor 12 years of age or older" who is "confined in a county jail in a county with a population below 3,000,000 inhabitants." Section 5--410(2)(d) forbids "contact by sight, sound or otherwise between the minor and adult prisoners," requires the minor to be "kept separate from confined adults," and prohibits the minor from being "kept in the same cell, room, or yard with confined adults." The second exception, which is found in section 5--410(2)(e) 3 Section 5--410(2)(c) (705 ILCS 405/5--410(2)(c) (West 2004)) also lists a third exception, which appears in section 5--410(2)(a) of the Act (705 ILCS 405/5--410(2)(a) (West 2004)). As noted above, this exception limits the amount of time individuals under age 12 may be detained in a county jail. As this exception does not affect our analysis, we do not discuss it. -14- No. 2--06--0999 of the Act (705 ILCS 405/5--410(2)(e) (West 2004)), applies to "a minor who is at least 15 years of age" and who is "prosecuted under the criminal laws" of Illinois. Under section 5--410(2)(e), the trial court may enter an order directing the minor be confined in a county jail. 705 ILCS 405/5-- 410(2)(e) (West 2004). However, the minor must be "separated from adults who are confined in the county jail in such a manner that there will be no contact by sight, sound or otherwise between the juvenile and adult prisoners." 705 ILCS 405/5--410(2)(e) (West 2004). In this case, the trial court found reasonable cause to believe that Randall was a delinquent minor. However, he was not prosecuted under criminal law. Thus, the exception set forth in section 5--410(2)(e) would not apply. We note, however, that Lake County has fewer than 3 million inhabitants. See http//:quickfacts.census.gov/qfd/states/17/17097.html. As a result, when there is reasonable cause to believe that he is a delinquent minor, an individual at least 12 years of age but less than 21 years of age who is confined in the Lake County jail must be kept separate from confined adults and must not have any contact by sight, sound, or otherwise with adult prisoners. Accordingly, we agree with Randall that even if he was properly transferred to the Lake County jail, he should have been confined separately from any adult prisoners. As the foregoing discussion suggests, the State's claim that the legislature intended to create three nonoverlapping age categories is not supported by the plain language of the statute. Had the legislature so intended, it could have very easily drafted the statute to include categories with minimum and maximum ages. See Jaime P., 223 Ill. 2d at 538. It did not do so and we will not read such limitations into the statute. See In re Application of County Treasurer, No. 2--05--1209, slip op. at 9 (June 5, 2007) ("Where the language of the statute is clear, we may not read into it -15- No. 2--06--0999 exceptions that the legislature did not express and we will give it effect as written"). We also find that the State's position defies logic in that it would provide sight and sound separation for a minor over 15 years of age being prosecuted under criminal law but not for a minor over 17 years of age facing adjudication as a delinquent. As a remedy, Randall requests that we enter an order requiring (1) the Hulse Detention Center to stop automatically transferring juveniles to the Lake County jail upon their seventeenth birthdays; (2) the Lake County juvenile court to comply with section 5--410(2)(c)(v) before placing a minor 17 years of age or older in the Lake County jail; and (3) the Lake County jail to keep all juveniles confined pursuant to the Act from contact by sight, sound, and otherwise with confined adults. We decline to enter such an order. We believe that this decision serves to provide the aforementioned institutions with the guidance necessary to correctly apply the relevant provisions of the Act. See In re Dorothy J.N., 373 Ill. App. 3d 332, 334-35 (2007) (noting that in applying public-interest exception, a court of review is given the opportunity to provide guidance with respect to the application of a statute). For the reasons set forth above, we hold that section 5--410(2)(c)(v) of the Act (705 ILCS 405/5--410(2)(c)(v) (West 2004)) does not authorize the automatic transfer of a minor with pending delinquency matters to an adult detention facility upon the minor's seventeenth birthday. We further hold that a minor 17 years of age or older with pending delinquency matters who is housed in a county jail in a county with fewer than 3 million inhabitants must be separated from adult prisoners in accordance with the restrictions set forth in section 5--410 of the Act (705 ILCS 405/5--410 (West 2004)). Thus, we reverse the order of the circuit court of Lake County denying the emergency -16- No. 2--06--0999 motion to enjoin the automatic transfer of Randall from the Hulse Detention Center to the Lake County jail. Reversed. HUTCHINSON and CALLUM, JJ., concur. -17- 

718 S.E.2d 362 (2011) STATE of North Carolina v. Thomas John STARR. No. 64PA11. Supreme Court of North Carolina. December 9, 2011. *363 Roy Cooper, Attorney General, by Karen A. Blum, Assistant Attorney General, for the State. Thomas Reston Wilson, New Bern for defendant-appellant. MARTIN, Justice. This case presents the question of whether the trial court exercised its discretion in accordance with N.C.G.S. § 15A-1233(a) when it denied the jury's request to review the trial transcript. For the reasons stated herein, we modify and affirm the decision of the Court of Appeals finding no error in the trial court's denial of the jury's request. *364 On 27 September 2007, members of the Wilmington Fire Department arrived at an apartment complex in response to a 911 call reporting water leaking into one of the units. Concerned that defendant, the upstairs resident, might need medical assistance, four firefighters and a police officer knocked loudly on his door and identified themselves. When there was no response from defendant's apartment, they forced entry with a Halligan tool. Firefighters Spruill, Lacewell, Chadwick, and Comer, along with the police officer, stood directly in front of defendant's door during this process. Spruill wedged the Halligan tool between the door and the jamb, while Chadwick hammered the tool with an axe to break the lock. As Chadwick hammered, Spruill, Lacewell, and he heard a "pop" sound. When Spruill pushed the door open, he heard a second "pop" just before entering the apartment. He then saw defendant standing about twelve feet away, pointing a gun at him. Defendant fired at Spruill, who quickly exited and shouted, "He's got a gun[!]" Chadwick also saw defendant pointing his gun and ducked out of the doorway just as another "pop" sounded. The police officer entered the apartment with his gun drawn and ordered defendant to drop his weapon. Defendant complied and was promptly arrested. Defendant was charged with one count of assaulting a law enforcement officer with a firearm and four counts of assaulting a firefighter with a firearm. Defendant pleaded not guilty and the case proceeded to trial. Corporal Musacchio and three of the four firemen testified. The jury acquitted defendant of the charge of assaulting a law enforcement officer with a firearm, but convicted him of all four counts of assaulting a firefighter with a firearm. The trial court sentenced defendant to two consecutive active terms of nineteen to twenty-three months, suspended for thirty-six months with supervised probation. Defendant filed a petition for writ of certiorari with the Court of Appeals on 26 August 2010. Among other things, defendant argued that the trial court erred in failing to follow the procedures of N.C.G.S. § 15A-1233 when it denied the jury's request to review Firefighter Spruill's testimony. The Court of Appeals stated that a "trial court properly exercises its discretion in denying the jury's request to review testimony when the court instructs the jurors to rely on their recollection of the evidence in reaching a verdict." State v. Starr, ___ N.C.App. ___, ___, 703 S.E.2d 876, 882 (2011) (citing State v. Harden, 344 N.C. 542, 563, 476 S.E.2d 658, 669 (1996), cert. denied, 520 U.S. 1147, 117 S.Ct. 1321, 137 L.Ed.2d 483 (1997), and State v. Corbett, 339 N.C. 313, 338, 451 S.E.2d 252, 265 (1994)). The court held that because the trial court instructed the jurors to rely on their recollection of the evidence, the trial court "properly exercised its discretion in denying the jury's request to review Firefighter Spruill's trial testimony." Id. at ___, 703 S.E.2d at 882 (citing State v. Lawrence, 352 N.C. 1, 27, 530 S.E.2d 807, 824 (2000), cert. denied, 531 U.S. 1083, 121 S.Ct. 789, 148 L.Ed.2d 684 (2001)). On 15 June 2011, we allowed defendant's petition for discretionary review on that issue. Jury requests for review of evidence during deliberations are governed by section 15A-1233(a), which states: If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested. N.C.G.S. § 15A-1233(a) (2009). This statutory provision is a codification of the common law rule that "the decision whether to grant or refuse the jury's request for a restatement of the evidence lies within the discretion of the trial court." State v. Ford, 297 N.C. 28, 30, 252 S.E.2d 717, 718 (1979) (citations omitted); see also State v. Ashe, 314 N.C. 28, 34-35, 331 S.E.2d 652, 656-57 (1985). Under this rule, the trial court "must exercise its discretion in determining whether to permit *365 requested evidence to be read to or examined by the jury together with other evidence relating to the same factual issue." Ashe, 314 N.C. at 34, 331 S.E.2d at 656. When a trial court violates this statutory mandate by denying the jury's request to review the transcript "`upon the ground that the trial court has no power to grant the motion in its discretion, the ruling is reviewable,'" and the alleged error is preserved by law even when the defendant fails to object. State v. Barrow, 350 N.C. 640, 646, 517 S.E.2d 374, 378 (1999) (quoting State v. Johnson, 346 N.C. 119, 124, 484 S.E.2d 372, 375-76 (1997)). "[T]here is error when the trial court refuses to exercise its discretion in the erroneous belief that it has no discretion as to the question presented." Id. (quoting Johnson, 346 N.C. at 124, 484 S.E.2d at 376 (quotation marks omitted)). Here, after the jury retired to deliberate, the following exchange took place: THE COURT: They've got a question. Let the record reflect that they have sent another note saying, "We are requesting the testimony of Marvin Spruill." Of course, we don't have that. We don't have that capability and I thought if it was okay with you, since we're in the middle of jury selection in this one, that we would open the door without y'all being seen and let [the court reporter] take everything down and me just inform them to rely on their recollections. We don't have the modern day equipment to provide realtime transcript or something. (NO VERBAL RESPONSE.) (THE FOLLOWING TOOK PLACE AT THE JURY ROOM DOOR.) THE COURT: Hey, freeze what you're doing right now. I have received this note, "We are requesting the testimony of Marvin Spruill." In North Carolina we don't have the capability of realtime transcripts so we cannot provide you with that. You are to rely on your recollection of the evidence that you have heard in your deliberations. That's my instruction to you. Okay. Thank you. [Emphasis added.] When the trial court gives no reason for a ruling that must be discretionary, we presume on appeal that the court exercised its discretion. Johnson, 346 N.C. at 126, 484 S.E.2d at 376. "However, where the statements of the trial court show that the trial court did not exercise discretion, as is evident in the present case, the presumption is overcome, and the denial is deemed erroneous." Id. The trial court's statement "we don't have the capability ... so we cannot provide you with that" overcomes the presumption the court exercised its discretion. A trial court's statement that it is unable to provide the transcript to the jury demonstrates the court's apparent belief that it lacks the discretion to comply with the request. Barrow, 350 N.C. at 646, 517 S.E.2d at 378. Because "[a] court does not exercise its discretion when it believes it has no discretion," State v. Maness, 363 N.C. 261, 278, 677 S.E.2d 796, 807 (2009) (citations omitted), cert. denied, ___ U.S. ___, 130 S.Ct. 2349, 176 L.Ed.2d 568 (2010), a response indicating the inability to provide a transcript constitutes erroneous failure to exercise discretion. This Court has examined exchanges nearly identical to the exchange in this case and concluded that the trial court did not properly exercise its discretion in denying the jury's request to review the transcript. Those cases compel our decision in the present case. For example, the trial court did not exercise discretion when it responded: "[W]hat [the court reporter is] taking down has not yet been transcribed. And the Court doesn't have the ability to now present to you the transcription of what was said during the course of the trial.... It will be your responsibility and obligation to use your independent recollection of what those witnesses testified...." Barrow, 350 N.C. at 647, 517 S.E.2d at 378 (emphasis omitted). Similarly, we held that the trial court did not exercise discretion when it said: "I'll have to give you this instruction. There is no transcript at this point. You and the other jurors will have to take your recollection of the evidence as you recall it and as you can agree upon that recollection in your deliberations." Ashe, 314 N.C. at 33, 331 S.E.2d at 656; see also State v. Lang, 301 N.C. 508, 510-11, 272 S.E.2d 123, 125 (1980); Ford, 297 N.C. at 30, 252 S.E.2d at 718. These cases demonstrate *366 the well-settled rule that a trial court does not exercise its discretion when, as evidenced by its response, it believes it cannot comply with the jury's transcript request. In cases such as these, in which the trial court's statement indicates its belief that it does not have discretion to grant the jury's request to review evidence, the court's additional instruction that the jurors rely on their memory will not render the response discretionary. Therefore, the trial court in the instant case violated N.C.G.S. § 15A-1233(a) by failing to exercise its discretion, and thus the error is preserved by operation of law for appellate review. See Ashe, 314 N.C. at 40, 331 S.E.2d at 659. We pause to provide guidance to trial court judges to ensure compliance with N.C.G.S. § 15A-1233(a). The trial court must exercise its discretion to determine whether, "under the facts of th[e] case," the transcript should be made available to the jury. Lang, 301 N.C. at 511, 272 S.E.2d at 125. But the trial court is not required to state a reason for denying access to the transcript. The trial judge may simply say, "In the exercise of my discretion, I deny the request," and instruct the jury to rely on its recollection of the trial testimony. See 1 Super. Court Subcomm., Bench Book Comm. & N.C. Conf. of Super. Court Judges, North Carolina Trial Judges' Bench Book § III, ch. 38, at 2 (Inst. of Gov't, Chapel Hill, N.C., 3d ed.1999). Having determined that there was error and that defendant's failure to object at trial did not bar appellate review, we now consider whether the trial court's failure to exercise its discretion was prejudicial. See Lang, 301 N.C. at 510, 272 S.E.2d at 125. Defendant bears the burden of showing that he has been prejudiced by the trial court's error in not exercising discretion in accordance with N.C.G.S. § 15A-1233(a). He must show "a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." N.C.G.S. § 15A-1443(a). Defendant argues that "[t]he jury's review of Fireman Spruill's testimony could have reasonably resulted in not guilty verdicts for Mr. Starr on one or more of the guilty verdicts of the four firemen." Defendant has not carried his burden of proving that the error was prejudicial. He does not explain how the review of Spruill's testimony would have created a reasonable possibility that a different result would have been reached at his trial. The jury had the opportunity to see and hear Spruill's testimony at trial, see State v. Covington, 290 N.C. 313, 344, 226 S.E.2d 629, 649-50 (1976), and the testimony was not confusing or contradicted, see Johnson, 346 N.C. at 126, 484 S.E.2d at 377. Further, Spruill's testimony was not "`material to the determination of defendant's guilt or innocence.'" Id. (quoting Lang, 301 N.C. at 511, 272 S.E.2d at 125). Specifically, the requested testimony was incriminating to defendant and came from a witness for the prosecution, unlike alibi testimony or other testimony that would tend to benefit a defendant. See State v. Hudson, 331 N.C. 122, 144-45, 415 S.E.2d 732, 744 (1992), cert. denied, 506 U.S. 1055, 113 S.Ct. 983, 122 L.Ed.2d 136 (1993); Lang, 301 N.C. at 511, 272 S.E.2d at 125. In addition, Spruill's testimony was not "the only evidence directly linking defendant to the alleged crimes." Johnson, 346 N.C. at 126, 484 S.E.2d at 377. Rather, three other witnesses gave testimony that corroborated Spruill's testimony. Defendant thus has not demonstrated a reasonable possibility that a different result would have been reached at his trial had the error not been committed. Accordingly, we modify and affirm the decision of the Court of Appeals. MODIFIED AND AFFIRMED.

859 F.Supp. 1168 (1994) Wilma TIBBITTS, Plaintiff, v. VAN DEN BERGH FOODS COMPANY, a division of Conopco, Inc., a New York corporation, Defendants. No. 92 C 1559. United States District Court, N.D. Illinois, Eastern Division. July 15, 1994. *1169 Roger J. McFadden, Thomas J. Dillon, Tyrrel J. Penn, McFadden & Dillon, Chicago, IL, for plaintiff. Ralph Andrew Morris, Brittain, Sledz, Morris & Slovak, Chicago, IL, Robert J. Kartholl, Jr., Van Den Bergh Foods Co., Lisle, IL, for defendants. *1170 MEMORANDUM OPINION AND ORDER CASTILLO, District Judge. Plaintiff Wilma Tibbitts ("Tibbitts") sues defendant Van Den Bergh Foods Company ("Van Den Bergh") for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq., alleging that Van Den Bergh willfully discriminated against her on the basis of age when it terminated her.[1] Van Den Bergh moves for summary judgment. BACKGROUND The parties have submitted the following facts as to which there is no genuine issue. Tibbitts was an employee of Durkee Foods in the accounting department at the Joliet, Illinois plant—an edible oils manufacturing facility—from February 22, 1977, to December 5, 1988, at which time Van Den Bergh purchased certain of Durkee's assets including the Joliet plant. Defendant's Statement of Material Facts as to Which There is No Material Issue ("Defendant's Facts"), ¶¶ 6, 10-13[2]. Plaintiff continued to work at the Joliet plant, now under Van Den Bergh's control, from December 5, 1988, until her termination on October 22, 1990. Id., ¶ 7. At the time of her termination, Tibbitts held the position of Chief Accounting Clerk and was 60 years of age. Id., ¶¶ 5, 8. In early 1990, Van Den Bergh undertook a staffing evaluation at the Joliet facility. Id., ¶ 15. Management determined that a reduction-in-force ("RIF") of ten employees should be implemented effective October, 1990. Id., ¶¶ 16, 17. R. Bishop, Director of Cost Accounting, directed Robert Dudzik ("Dudzik") to evaluate the accounting/finance department at the Joliet facility and make recommendations for the elimination of jobs within that department. Id., ¶ 25. Dudzik was the Cost Controller of oils and was responsible for the financial reports for the margarine and oil business. He also assisted plant managers in the profitability of their own facilities. Id., ¶ 18. From 1984 to 1989, Dudzik was the Plant Controller at the Joliet facility. Id., ¶ 24. Over the course of several weeks, in consultation with Bishop and R. Lundin (Joliet Plant Controller), Dudzik analyzed the duties of each accounting/finance position at the Joliet facility. Id., at ¶ 27. Dudzik prepared a detailed written evaluation of the job tasks of each position, id., ¶ 28, and submitted a written recommendation to Bishop recommending the elimination of the Senior Cost Accounting Clerk position (a position that was vacant as the result of a voluntary resignation). Id., ¶¶ 30, 31. Dudzik also recommended that, if necessary, certain duties of the Chief Accounting Clerk could be eliminated and the remaining duties could be split up amongst the other members of the department thereby eliminating that position. Id., ¶¶ 29-32. Bishop evaluated Dudzik's recommendations, concurred in them and passed them on to his supervisor D. Peffer who also concurred and passed them on to T. Stephens, Vice President, Finance and Administration. Id., ¶¶ 33-34. Subsequently, Dudzik was informed that the positions of Senior Cost Accounting Clerk and Chief Accounting Clerk would be eliminated and he was instructed to terminate Tibbitts which he *1171 did on October 22, 1990. Id., ¶¶ 35-37. During all relevant times, Dudzik was 37 years old. Id., ¶ 18. Van Den Bergh maintained a company-wide management policy in connection with any non-union RIF, that an individual whose position is eliminated be terminated. Id., ¶ 38. A collective bargaining agreement covering union employees provided that more senior employees faced with layoff could displace (or "bump") less senior employees. Id., ¶¶ 39, 41. Tibbitts was a nonunion employee. Id., ¶ 40. At the time of the RIF, Betty Damon was employed in the accounting department as the Accounts Payable Clerk. Ms. Damon, 60 years of age in October, 1990, did not lose her position as part of the RIF; however, she gave notice of her voluntary retirement on January 7, 1991, and retired effective January 18, 1991. Id., ¶¶ 48-53. On January 18, 1991, Tibbitts left two copies of a letter with a Joliet plant security guard concerning her interest in filling the position vacated by Damon. Id., ¶ 54. The security guard left one copy on the desk of Chris Cole, Human Resource Manager, and gave the second copy to V. Smoots, Human Resources Assistant (and Tibbitts' daughter), who placed the letter in the interoffice mail addressed to Dudzik. Id., at ¶¶ 55-57. Tibbitts never received any response to her letters. Id., ¶ 58. Damon's position was filled by a temporary employee, Mariann Buczyna (age 44), beginning January 14, 1991. Buczyna was made a permanent employee on March 11, 1991. Id., ¶¶ 60-61. Van Den Bergh's personnel policy prohibits the rehire of any former employee without the express permission of the Senior Vice President of Human Resources. Id., ¶ 59. Van Den Bergh moves for summary judgment contending that there is no genuine issue of material fact as to whether age was a factor in Tibbitts' termination or as to whether Van Den Bergh's legitimate nondiscriminatory justification for terminating Tibbitts was a pretext. DISCUSSION Summary Judgment Standard Summary judgment is proper only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The court must view all evidence in a light most favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987), and draw all inferences in the nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir.1990). However, if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11; Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988). In determining whether a genuine issue exists, the court "must view the evidence presented through the prism of the substantive evidentiary burden." Liberty Lobby, 477 U.S. at 254, 106 S.Ct. at 2513. In making its determination, the court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513-14. I. Establishing Age Discrimination The plaintiff's burden in an age discrimination action is to prove that he or she was discharged (or otherwise adversely treated in employment) as a result of his or her age. Age need not be the only factor motivating the adverse action, but it must be a determining factor—a "but for" cause; that is, "but for" age discrimination, the plaintiff would not have been treated adversely. Konowitz v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir.1992); Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988); Ayala v. Mayfair Molded Prods. Corp., 831 F.2d 1314, 1318 *1172 (7th Cir.1987). The plaintiff may attempt to prove discrimination directly by presenting direct or circumstantial evidence that age was the determining factor in the employment action; or, the plaintiff may employ the indirect (or "burden-shifting") method of proof originally set out for Title VII actions in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), and subsequently adapted to ADEA claims in Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1212 (7th Cir.1985). See Oxman, 846 F.2d at 452; Ayala, 831 F.2d at 1318. Under the McDonnell Douglas burden shifting approach, the plaintiff may establish a prima facie case of discrimination by showing that she was: (1) a member of the protected class; (2) performing her job satisfactorily; (3) subjected to a materially adverse employment action despite her satisfactory performance; and, (4) treated less favorably than similarly situated employees outside of the protected class. Konowitz, 965 F.2d at 232. If the plaintiff succeeds in making this prima facie showing, a rebuttable presumption of discrimination arises and the burden of production shifts to the employer to articulate a legitimate nondiscriminatory justification for its action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981); Konowitz, 965 F.2d at 232; LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). If the employer meets its burden of production, the presumption is rebutted and the burden falls on the plaintiff to prove that the proffered reasons are a pretext—that is, not the true reason for the employment action. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; LaMontagne, 750 F.2d at 1409. Pretext may be established by showing either that a discriminatory intent more likely motivated the employer or that the employer's proffered explanation is unworthy of credence. Konowitz, 965 F.2d at 232-33; LaMontagne, 750 F.2d at 1409. At all times, the plaintiff retains the ultimate burden of persuasion that she was the victim of intentional discrimination. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. II. Tibbitts' Claim of Discrimination Based on her Termination In the instant case, Van Den Bergh does not dispute that Tibbitts can establish a prima facie case of discrimination with respect to her discharge. Van Den Bergh contends, however, that its decision to terminate Tibbitts was based on a legitimate nondiscriminatory justification—namely, Dudzik's evaluation of the accounting/finance department positions and his analysis that Tibbitts' job duties could be eliminated or redistributed to the other accounting department personnel. Van Den Bergh further contends that Tibbitts fails to raise a genuine issue of material fact as to whether the proffered justification is merely a pretext. In opposition to Van Den Bergh's motion, Tibbitts submits evidence of an age-related remark made by Dudzik that reflects age-based animus; evidence refuting the Dudzik's proffered justifications for terminating her; and, evidence that Van Den Bergh failed to consider her for rehire after another employee left the accounting department. A. Dudzik's Age-Related Remark Tibbitts asserts that at some point in time prior to her termination[3], Dudzik remarked, "We've got to get rid of these old gals and get some young gals in here." Tibbitts Dep. at 123-24. Tibbitts testified that at the time of the remark, she assumed Dudzik was joking, Tibbitts Dep. at 120, 121, but at the present time she does not know whether or not he was joking. Id. at 124. Tibbitts could not recall the context in which the remark was made. Id. at 123. *1173 Betty Damon also testified as to the remark. Damon could not recall the exact wording of the remark but testified that it was "something about the old ladies of the accounting department," Damon Dep. at 25. She could not recall whether the remark included a reference to bringing in some "young ladies" but stated that it might have. Damon Dep. at 26. Damon also thought the comment was made jokingly. Damon Dep. at 27. Dudzik denies ever making any such remark. Dudzik Affidavit ¶ 11. On a motion for summary judgment the court's function is not to weigh evidence or judge credibility; the evidence is to be construed in a light most favorable to the nonmoving party. Accordingly, for purposes of ruling on Van Den Bergh's motion for summary judgment, the court must assume that Dudzik made the alleged remark. The Seventh Circuit has repeatedly cautioned that isolated remarks made in the workplace, by themselves, do not suffice to establish a genuine issue as to pretext unless the remarks are made relatively contemporaneously with the adverse employment action and are related to that action. See, e.g., Hong v. Children's Memorial Hosp., 993 F.2d 1257 (7th Cir.1993); Rush v. McDonald's Corp., 966 F.2d 1104, 1116 (7th Cir.1992); McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686-87 (7th Cir.1991). However, the remarks that were the subject of these Seventh Circuit opinions were markedly different than that attributed to Dudzik. In Hong, the plaintiff testified that her supervisor had told her to "learn to speak English." 993 F.2d at 1265. After noting that "[e]vidence of a supervisor's occasional or sporadic use of a slur directed at an employee's race, ethnicity, or national origin is generally not enough to support a claim [of discrimination]," id. at 1266, the Seventh Circuit held that the plaintiff had failed to demonstrate the requisite nexus between the remark and the plaintiff's termination. In Rush, the plaintiff asserted that her supervisor made statements that reflected antipathy towards blacks. 966 F.2d at 1115. The Seventh Circuit found this evidence insufficient to raise a genuine issue of material fact as to pretext because the plaintiff failed to show that her supervisor's racial animus was the cause of the decision to terminate her. Id. at 1117. Similarly, in McCarthy, the Seventh Circuit found that the plaintiff had failed to present a evidence of discrimination where racist remarks attributed to the plaintiff's supervisors were unrelated to the plaintiff's firing. 924 F.2d at 687. In these Seventh Circuit cases, the remarks were, at best, remarks that reflected a general animosity toward the protected class; the remarks did not even remotely relate to a personnel action such as discharge or discipline. In marked contrast, Dudzik's remark relates directly to a termination decision. Dudzik's remark can reasonably be inferred to reflect both age-based animus and a desire, if not an intent, to eliminate older women from the accounting department. The logical relationship between the remark and Tibbitts' termination could not be more clear: Dudzik spoke of his desire to "get rid of the older gals" and Tibbitts was gotten rid of. Under these facts, the court finds that Dudzik's remark was sufficiently related to Tibbitts' termination. Dudzik's remark was not made contemporaneously with Tibbitts' termination. However, in light of the nature and circumstances of the remark, this lack of contemporaneity does not preclude the remark from raising a genuine issue of material fact as to discriminatory intent or pretext. This court does not read the Seventh Circuit's opinions involving so-called "stray remarks" as setting forth a bright line test to be rigidly and mechanically applied regardless of what injustice might result. There are surely instances—and this case is among them—where contemporaneity cannot be considered a determinative factor.[4] As far as can be discerned from the record, *1174 Dudzik was not in a position to effect Tibbitts' termination at the time he made his remark; the lack of contemporaneity between the remark and the termination simply reflects this fact. A factfinder could reasonably find that it was not until Dudzik was given the opportunity to make personnel recommendations that he was able to act on his discriminatory animus. If Dudzik's remark was the only evidence proffered by Tibbitts, deciding whether she had adduced sufficient evidence to raise a genuine issue as to pretext would be a very close call. However, as discussed below, Tibbitts offers more. In determining whether Tibbitts presents sufficient evidence to raise a triable issue, the court considers the totality of the evidence rather than evaluating each portion piecemeal. Cf. Moffett v. Chicago Transit Authority, 1994 WL 127711 (N.D.Ill.1994) (finding that remarks, which taken alone were, at best, tenuous evidence of age animus, raised a genuine issue as to age animus when viewed in conjunction with the fact that employee was replaced by a younger woman). The court finds that Dudzik's remark, when considered in conjunction with Tibbitts' evidence refuting the proffered reasons for her termination and the evidence that she was not considered for rehire into a position that was filled by a younger, arguably less qualified woman, raises a genuine issue of material fact as to age-based animus and pretext. B. Dudzik's Inconsistencies Tibbitts also attempts to establish pretext by identifying certain inconsistencies between Dudzik's analysis of the accounting department job duties—which served as the foundation for his determination as to what positions could be eliminated—and his deposition testimony. In particular, Tibbitts points to Dudzik's testimony that: (1) one of the primary reasons that Tibbitts' position could be eliminated was that the "downtime" or "idle-time" reports which she prepared were going to be eliminated and preparation of these reports was Tibbitts' most time-consuming task; and, (2) Tibbitts' position had no "core activity." Tibbitts attacks this testimony by referring to Dudzik's written memorandum detailing his job analyses in which he described Tibbitts' tasks: —Codes and batches accounts payable vouchers—three to four hours per day —Matches output of check copies with vouchers —Prepares interhouse group billings for all shipments from plant —Prepares weekly and monthly downtime reports—one hour each day —Prepares accrual and standard journal entries at month end —Reconciles accounts —Does month end closing of dump stock —Types hand checks as required Plaintiff's Appendix, Exhib. H at 8 (emphasis added). Tibbitts argues that Dudzik's memorandum plainly reveals Dudzik's awareness that preparation of the downtime reports took at most one hour per day, and that, like any other position, Tibbitts' position involved a task that occupied a significant portion of the day—a "core activity." Tibbitts contends that this evidence refutes Dudzik's articulated justification for terminating her and raises a genuine issue as to pretext. Dudzik testified that one factor relevant to his determination that Tibbitts' position could be eliminated was that task of preparing the downtime (also known as idle time) reports was to be eliminated. Dudzik Dep. at 61. Dudzik stated: We were doing a report called an idle time report and that was very lengthy in preparation. Prior management used it extensively. Current management did not want it at all. I said okay, there is one of the things which was significant work and time and energy, we can eliminate that. That was being performed by the chief clerk. Id. Dudzik estimated that preparation of these reports took "a couple hours a day," Id. at 69-70, 90, and, at one point, Dudzik characterized this task as the "core activity" of the Chief Accounting Clerk, id. at 88, and the task that took the majority of Tibbitts' time. Id. at 91. As Tibbitts contends, this deposition testimony is flatly inconsistent with his *1175 written analysis of Tibbitts' position which attributed only one hour per day to the task. Moreover, Tibbitts testified that, actually, the task took only thirty to forty-five minutes each week plus an hour or two at the end of the month. Tibbitts Dep. at 134-36. Accordingly, Dudzik's reliance on this factor is open to question. Tibbitts' also attacks Dudzik's testimony that another factor justifying her termination was that her position had no "core activity." Tibbitts argues that her position was no different from any other position with respect to the existence or not of a "core duty"; hence Dudzik's justification is pretextual. Dudzik's memorandum attributes "three to four hours per day" to Tibbitts' task of coding and batching accounts payable vouchers. Indeed, this is quite comparable to Tibbitts' own estimate of the task; Tibbitts testified that she spent approximately "two and a half days" per week coding the vouchers, Tibbitts Dep. at 39-41. Mary Ann Clark, Tibbitts' immediate supervisor, testified that coding the vouchers consumed approximately sixty percent of Tibbitts' time. Clark Dep. at 37. Accordingly, Tibbitts argues that, under Dudzik's definition of a core activity as "something in excess of 50, 60, some 70 percent, somewhere in there," Dudzik Dep. at 89, coding and batching the vouchers constituted a "core activity." Again, Dudzik's reliance on the absence of a "core activity" is open to question. Finally, a comparison of the job analyses in Dudzik's memorandum fails to reveal any significant difference between Tibbitts' position and certain other positions that were not eliminated, with respect to whether they involved one central task or multiple tasks. For instance, Dudzik described the Keypunch Operator as involving a variety of tasks (e.g., takes inventory of blank checks and other accounting documents, files shipping copy of bills of lading, handles credits for returned goods) in addition to spending "½ day each day" keypunching input data. The Accounts Payable Clerk was also described as involving several tasks (e.g., maintains petty cash and postage meter, handles outbound mail, reconciles miscellaneous receivables account—two hours per month, summarizes daily package production and daily bank drafts) in addition to spending "½ day, each day" working with invoices. Tibbitts' position, as characterized in Dudzik's memorandum involved one task that took three to four hours per day (approximately half of the 7.5 hour workday) and several other tasks. In view of the similarities between these positions, a factfinder could reasonably give little credence to Dudzik's attempt to set apart Tibbitts' position as a catch-all position that was "designed to pick up many multiple tasks." Dudzik Dep. at 61. Most, if not all, of the positions involved many varied small tasks; Tibbitts' position does not stand alone in this regard. A factfinder could, therefore, reasonably find Dudzik's assertion that Tibbitts' position was easiest to redistribute open to doubt. Taken collectively, the evidence presented by Tibbitts regarding the inconsistencies in Dudzik's testimony regarding the justifications for eliminating her position—in conjunction with Dudzik's alleged age-related remark and the evidence discussed below regarding Van Den Bergh's failure to consider Tibbitts for rehire — can support a reasonable finding that Dudzik's proffered justifications were not the real reasons motivating his decision. It should be emphasized that the court is not second-guessing Dudzik's determinations as to which position could be redistributed among the other employees most easily. The court is cognizant that a federal court hearing a discrimination case "does not sit as super-personnel department that reexamines an entity's business decisions." Dale v. Chicago Tribune Co., 797 F.2d 458, 464-65 (7th Cir.1986), cert. denied, 479 U.S. 1066, 107 S.Ct. 954, 93 L.Ed.2d 1002 (1987). Indeed, if Dudzik's inconsistencies regarding the amount of time spent on various tasks were the only evidence adduced by Tibbitts, the court would find that showing a very slim reed upon which to establish pretext. However, this evidence must be considered in conjunction with Tibbitts' other evidence of discrimination and when this is done a factfinder could reasonably infer pretext and discriminatory animus. *1176 C. Van Den Bergh's Failure to Rehire Tibbitts Finally, Tibbitts contends that Van Den Bergh's failure to consider Tibbitts as a replacement for Damon—upon Damon's retirement —provides further evidence that Van Den Bergh's justification for terminating her was pretext. Tibbitts presents substantial evidence that she was qualified to fill Damon's position; indeed, Tibbitts was Damon's back-up when she was away from the office. Cole Dep. at 59, 62; Damon Dep. at 28-29. Chris Cole, Director of Human Resources at the Joliet facility, testified that he was aware of no factors that would preclude Tibbitts from taking over Damon's position, Cole Dep. at 62, and Damon testified that Tibbitts "knew [Damon's] job very well" and performed Damon's functions competently. Damon Dep. at 11-14, 17. Damon also testified that Tibbitts was more qualified to fill her position than the "temp" who Damon trained to fill the position—a woman approximately sixteen years younger than Tibbitts—and who was ultimately hired as an permanent employee. Id. at 21-22. Van Den Bergh contends that its failure to rehire Tibbitts cannot be construed as circumstantial evidence of discriminatory animus or pretext because it is undisputed that: (1) the job was already filled by the time Tibbitts submitted a letter requesting that she be considered for the position; and, (2) Van Den Bergh maintained a policy that former employees could not be rehired without the express written consent of the Senior Vice President of Human Resources. Defendant's Reply at 8 n. 6. However, it is also undisputed that at the time that Tibbitts submitted her letter, Damon's position was occupied by a "temporary" employee who was not extended a formal offer of permanent employment until several months later. Defendant's Facts ¶¶ 60, 61. Also, Van Den Bergh's personnel policy merely requires the consent of the Senior Vice President; it does not prohibit rehire. Cole's testimony suggests that he asked Dudzik to follow up on Tibbitts' request to be considered for Damon's position. Cole Dep. at 61. When Cole asked Dudzik if he had followed up, Dudzik stated that he did not indicating that he did not have time. Cole Dep. at 62. Although Dudzik testified that Cole did not ask him to follow up but instead indicated that he would handle the matter locally, Dudzik Dep. at 54-59, the court must resolve this uncertainty against Van Den Bergh and conclude that Dudzik just let Tibbitts' request sit. As far as can be discerned form the record, Neither Dudzik nor anyone else at Van Den Bergh ever attempted to secure the Senior Vice President's authorization. Thus, the policy is largely irrelevant. In light of the evidence suggesting Tibbitts' superior qualifications for the position and the fact that the woman hired to fill Damon's position was younger than Tibbitts, in conjunction with all the other evidence previously discussed in this opinion, a reasonable factfinder could infer discriminatory animus from Van Den Bergh's failure to consider Tibbitts for rehire and view this failure as circumstantial evidence of pretext. Accordingly, the court finds that the totality of the evidence presented by Tibbitts raises a genuine issue of material fact as to whether Dudzik's proffered justification for terminating her was a pretext for discrimination. Therefore, Van Den Bergh's motion for summary judgment must be denied. CONCLUSION Van Den Bergh Foods Company's motion for summary judgment [34-1] is denied. Status hearing set for Aug. 2, 1994. NOTES [1] Tibbitts' Complaint identified Van Den Bergh's failure to rehire her as a basis upon which she was alleging discrimination. Complaint ¶ 14(B). Based upon Tibbitts' failure to brief the rehiring claim as a separate and distinct claim and Van Den Bergh's representation to the court that Tibbitts' "counsel has stated in open court that this is [not] a failure to rehire case," Defendant's Memorandum at 9 n. 10, the court assumes that Tibbitts' has abandoned her failure to rehire claim as a separate ground for recovery. [2] In its Amended Local Rule 12(N)(1) Response to Defendant's Local Rule 12(M) Statement, Tibbitts responds to several of Defendant's fact paragraphs by stating, "Tibbitts has insufficient information to form a belief as to the truth or falsity of the statements contained in paragraph [___]." This boilerplate language may be appropriate in answering a complaint, but it is not adequate as a response to a 12(M) statement of material facts as to which there is no genuine issue. Local Rule 12(N)(3)(b) provides, in pertinent part, "All material facts set forth in the statement required of the moving party will be deemed to be admitted unless specifically controverted by the statement of the opposing party." Accordingly, the court will regard any statement in either party's Local Rule 12 statement of material facts to be uncontroverted unless specifically denied by the other party. [3] Tibbitts could not remember the precise date or year but she testified that it was "a couple of years" before the decision to terminate her. Tibbitts Deposition at 121. Betty Damon, who also testified about Dudzik's remark, could not recall when the remark was made but stated that it was when Dudzik was acting as controller. Damon Dep. at 25. Dudzik testified that he was controller until 1989. Tibbitts was terminated in October 1990. Thus, resolving the uncertainty in favor of Tibbitts, the court will assume that the remark was made approximately one to two years prior to Tibbitts' termination. [4] This is, perhaps, most clearly illustrated by the case of a racist employee who asserts, "If I ever become boss I'm going to fire all the African Americans." In the event that the employee becomes boss in two years and African American employees are fired shortly thereafter, it would work an extreme injustice to hold the remark insufficient to raise a genuine issue as to discriminatory intent based on the fact that the remark and the terminations were not contemporaneous. Dudzik's remark differs only by a shade.

FILED NOT FOR PUBLICATION APR 05 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS FOR THE NINTH CIRCUIT ANISHA WASHINGTON, No. 10-17629 Plaintiff - Appellant, D.C. No. 2:10-cv-00186-FCD- KJM v. CALIFORNIA DEPARTMENT OF MEMORANDUM * EDUCATION; CALIFORNIA DEPARTMENT OF MENTAL HEALTH; CALIFORNIA DEPARTMENT OF SOCIAL SERVICES, Community Care and Licensing Division; JACK O'CONNELL, Superintendent of CA Dept. of Education; STEPHEN W. MAYBERG, Director of CA Dept. of Mental Health; JOHN A. WAGNER, Director of CA Dept. of Social Services, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Franµ C. Damrell, Senior District Judge, Presiding Argued and Submitted December 7, 2011 San Francisco, California * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District Judge.** Appellant Anisha Washington appeals the district court's dismissal of her claims--brought under the Individuals with Disabilities Education Act ('IDEA') and the Rehabilitation Act--for failure to exhaust administrative remedies. We have jurisdiction pursuant to 28 U.S.C. y 1291, and we affirm.1 The district court concluded that Washington's failure to exhaust deprived the court of subject matter jurisdiction. After that decision, our en banc court overturned prior circuit precedent and held that the IDEA's exhaustion requirement is not jurisdictional. Payne v. Peninsula School Dist., 653 F.3d 863 (9th Cir. 2011) (en banc), cert. denied, 2012 WL 538336 (Feb. 21, 2012). But Payne made clear that IDEA defendants could challenge claims for failure to exhaust in an unenumerated motion to dismiss. 653 F.3d at 881. We may affirm on any ground supported by the record, Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001), and we ** The Honorable William H. Stafford, Jr., Senior District Judge for the U.S. District Court for Northern Florida, sitting by designation. 1 Because the parties are familiar with the facts of this case, we recite them only as necessary to explain our decision. 2 conclude that the district court properly dismissed the claims for failure to exhaust.2 Washington settled her initial administrative due process complaint with various school district and local agency defendants, who agreed to place her in a residential treatment facility in Colorado. She voluntarily discharged herself from the Colorado facility, and subsequently brought a complaint in federal district court. Washington did not first avail herself of the IDEA's administrative procedures, as required by 20 U.S.C. y 1415(l). Further, Washington has not demonstrated that exhaustion would be futile or that any other exception to exhaustion applies. Hoeft v. Tucson Unified School Dist., 967 F.2d 1298, 1303-04 (9th Cir. 1992). She does not show that the administrative process cannot address her claims--namely, whether she is entitled to in-state residential treatment. AFFIRMED. 2 Dismissals of IDEA claims for failure to exhaust are without prejudice. Kutasi v. Las Virgenes Unified School Dist., 494 F.3d 1162, 1170 (9th Cir. 2007). 3  FILED APR 05 2012 Page 1 of 4 Washington v. California Department of Education 10-17629 MOLLY C. DWYER, CLERK U.S . CO U RT OF AP PE A LS STAFFORD, District Judge, dissenting. Because I do not agree that this case was appropriately dismissed for failure to exhaust, I must respectfully dissent. Washingtonùs underlying claim in this case is that the State of California has failed to maµe in-state residential treatment available to emotionally-disturbed IDEA- eligible students who, liµe Washington, are between the ages of 18 and 22. According to the plaintiff, Californiaùs failure to maµe such services available to her constitutes a violation of the IDEA. The plaintiffùs claim arises from a regulation promulgated by the California Department of Social Services (þCDSSþ), 22 Cal. Code Regs. y 84022(b)(2)(E), which requires California-certified residential facilities to discharge students upon reaching age eighteen. The regulation is based upon language in the California Health and Safety Code that prohibits the housing of minors with adults. Washington asserts that þstudents ages eighteen through twenty-one are regularly denied residential placements in the state of California based on these licensing restrictions, even when required by their IEPs.þ Washington has alleged that those local agencies most recently responsible for her Individualized Education Program (þIEPþ) þacµnowledge that [she] needs to be placed in a residential program in California . . . , [yet] it is impossible for the local agencies to maµe such a placement because no such placement exists that is authorized by the State of California.þ She challenges no other aspect of her IEP. Washington raised the same claim in a 2009 administrative due process complaint. In addition to naming the relevant local educational agencies as defendants  Page 2 of 4 in the administrative case, Washington named two state educational defendants, the California Department of Education (þCDEþ) and the California Department of Mental Health (þCDMHþ). The Office of Administrative Hearings (þOAHþ) quicµly dismissed CDE from the case on the ground that CDE was not a þresponsible local educational agencyþ within the meaning of the California Education Code. Washington then entered into a settlement agreement with the local educational agencies, accepting the only placement the local educational agencies were authorized to maµe--namely, an out-of- state residential placement. She nonetheless continued to pursue her claim against CDMH, arguing that the Stateùs failure to allow her local educational agencies to place her in a California residential program violated the IDEA. After a two-day hearing, the OAH dismissed CDMH, finding that CDMH had no responsibility for providing a free appropriate public education to Washington. The OAH thus failed to rule on the question of whether the State of California has a responsibility under the IDEA to ensure that local educational agencies are authorized to place emotionally-disturbed IDEA- eligible adult students such as Washington in California residential facilities. After Washington filed her complaint in federal court, the defendants moved to dismiss, arguing that the court lacµed jurisdiction based on Washingtonùs failure to adequately plead exhaustion of administrative remedies. Relying on Blanchard v. Morton Sch. Dist., 420 F.3d 918, 920-21 (9th Cir. 2005),1 the district court granted the motion, explaining that þ[t]o establish jurisdiction in a case brought pursuant to the 1 As noted by the majority, this circuit has since overruled Blanchard and its progeny, holding that the IDEAùs exhaustion requirement is not jurisdictional but is, instead, an affirmative defense to be pleaded and proved by IDEA defendants. Payne, 653 F.3d at 870-71.  Page 3 of 4 IDEA, a plaintiff must show that he or she has exhausted all available administrative remedies prior to commencing her action in federal district court.þ Placing the burden on Washington, the district court concluded that Washington failed to establish either (1) that she exhausted her administrative remedies, or (2) that exhaustion would be futile. I do not agree with the majorityùs conclusion that the result reached by the district court is supported by the record. The existence of a futility exception to the IDEAùs exhaustion requirement can be traced to the legislative history of the IDEA. Senator Harrison Williams, the author and floor manager of the Senate bill, stated that þexhaustion of the administrative procedures established under this part should not be required for any individual complainant filing a judicial action in cases where such exhaustion would be futile either as a legal or practical matter.þ 121 Cong. Rec. 37416 (1975). The congressional understanding of the futility exception is spelled out in the legislative history of the IDEA. It is important to note that there are certain situations in which it is not appropriate to require the exhaustion of [IDEA] administrative remedies before filing a civil law suit. These include complaints that: First, an agency has failed to provide services specified in the childùs individualized educational program [IEP]; second, an agency has abridged or denied a handicapped childùs procedural rights-for example, failure to implement required procedures concerning least restrictive environment or convening of meetings; three, an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law, or where it would otherwise be futile to use the due process procedures-for example, where the hearing officer lacµs the authority to grant the relief sought; and four, an emergency situation exists.... 131 Cong. Rec. 21392-93 (1985); see also H.R.Rep. No. 296, 99th Cong., 1st Sess. 7 (1985).  Page 4 of 4 Here, Washington has raised an issue of law regarding a state-required practice of general applicability alleged to be in violation of the IDEA. In my view, because such a claim presents a þsituation in which it is not appropriate to require the exhaustion of [IDEA] administrative remedies before filing a civil law suit,þ the district courtùs order of dismissal should be reversed and the case remanded so that Washington may litigate her claim that the State of California violates the IDEA by prohibiting her and other emotionally-disturbed IDEA-eligible students between the ages of 18 and 22 from being treated in California residential treatment facilities even where, as here, the local educational agencies agree that residential treatment is needed as part of the studentùs IEP. 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-4227 STEVEN L. HEARD, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 97-4228 STEVEN L. HEARD, Defendant-Appellant. Appeals from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (CR-96-16) Submitted: January 30, 1998 Decided: February 23, 1998 Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL James R. Fox, JORY & SMITH, L.C., Elkins, West Virginia, for Appellant. William D. Wilmoth, United States Attorney, Robert H. McWilliams, Jr., Assistant United States Attorney, Wheeling, West Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Following a jury trial, Steven L. Heard was convicted on four counts of tax evasion in violation of 26 U.S.C.§ 7201 (1994), and the district court sentenced him to thirty-six months imprisonment. Heard appeals, claiming errors both at trial and sentencing. We find no merit to his claims. Consequently, we affirm. Heard was an independent contractor who sold business forms to local businesses in the Clarksburg, West Virginia, area. A grand jury indicted Heard on four counts of violating 26 U.S.C.§ 7201, for evad- ing income tax in the years 1989 to 1992. Heard did not deny failing to pay taxes. His sole defense at trial was that he had an honest but mistaken belief that the income tax laws did not apply to him. Heard first contends that the trial court erred in admitting into evi- dence statements he made reflecting his rejection of the tax laws. When the government subpoenaed Heard before the grand jury, he filed a "Non-statutory Abatement." This preprinted form, which Heard characterizes as being synonymous with a motion to quash the subpoena, referred to the Clerk of the United States District Court and the United States Attorney as "Alien Enemy agents of a statutorily created, [sic] foreign de facto corporation, known as THE UNITED STATES OF AMERICA." (emphasis in original). Heard filed a motion in limine to bar introduction of the abatement at trial. The dis- trict court ruled that the government could use the abatement only for two purposes. First, if Heard attempted to claim he did not believe the tax laws applied to him, the document could be used to show that he 2 did not sincerely believe that these laws were inapplicable to him. Second, the government could use the abatement to cross-examine Heard's character witnesses if they testified that he was law-abiding, because the document was relevant to show that Heard rejected the authority of the United States. We find that the district court did not exceed its discretion in finding that the abatement was admissible under Fed. R. Evid. 404(b) to show such things as proof of intent and the absence of mistake or accident. See United States v. Queen, ___ F.3d ___, ___, 1997 WL 790470, at *3 (4th Cir. Dec. 29, 1997) (No. 96-4085). Heard argues that by filing the abatement, he was asserting his Fifth Amendment privilege against self-incrimination and that the government improperly used this against him during the trial. How- ever, the abatement never was mentioned during the government's case-in-chief. Instead, defense counsel engaged in a lengthy direct examination of Heard concerning the document, during which coun- sel elicited from Heard that he filed the abatement in order to invoke his Fifth Amendment privilege against incriminating himself before the grand jury. Because he introduced this testimony himself, any error which may have resulted is nothing more than invited error and thus is not reversible. See, e.g., United States v. Neal, 78 F.3d 901, 904 (4th Cir.) (no reversible error where defendant invited error him- self by eliciting statements he challenged on appeal), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9410). During cross-examination, the government asked Heard about the abatement but, as directed by the district court in its order denying Heard's motion in limine, limited its questions to whether he believed the language of the document, particularly where it called the United States Attorney an alien enemy agent of a statutorily created foreign de facto corporation known as the United States. When questioning Heard's character witnesses, the government also limited its questions in accordance with the court's order concerning the motion in limine. Thus, we find no error in the court's admission of this evidence. Next, Heard challenges the admissibility of two letters in which he urged two businesses to ignore summonses from Internal Revenue requesting financial records concerning him. In these letters, Heard questioned the authority of Internal Revenue and stated that he 3 believed the summonses could be ignored because process was ille- gally served. The mailing of these two letters was charged as specific acts of tax evasion in Count Four of the indictment. Heard argues that these letters constitute permissible conduct under 26 U.S.C.A. § 7609 (West 1989 & Supp. 1997), in that he claims that they were legitimate acts performed to quash the summonses. Section 7609(b) allows an individual identified in business records summonsed by Internal Revenue to file a motion to quash the sum- mons and then serve a copy of the motion to quash upon the third party record keeper. Even if the parties upon whom the summonses were served could be characterized as third party record keepers, Heard failed to file a motion to quash the summonses. We find that Heard's letters do not constitute the type of activity sanctioned under § 7609(b). As the government argues in its brief, Heard's letters were relevant because they constituted overt acts of tax evasion charged in the indictment. Moreover, as Heard's key defense was that he was under the mistaken belief that he did not have to pay taxes, the letters were relevant evidence for the government to show that Heard rejected, rather than misunderstood, the tax laws. Thus, the district court did not exceed its discretion by admitting the letters into evidence. See Sasaki v. Class, 92 F.3d 232, 241 (4th Cir. 1996). In five separate instances, a social security number other than Heard's real one appeared on documents pertaining to him. Specifi- cally, five different social security numbers similar to Heard's true one, but with two or more numbers transposed, appeared on: (1) Heard's 1099 forms submitted to Internal Revenue by the com- pany paying Heard's commission; (2) Heard's bank signature card for his checking account; (3) a utility service application for Heard's residence; (4) a loan application; and (5) a credit report for Heard. Heard argues that the introduction into evidence of the five incorrect social security numbers unfairly prejudiced him because there was no direct evidence that he was the one who supplied the false numbers. Because there was no direct evidence showing that Heard supplied a false social security number to the company paying his commission in order to evade taxes, the government utilized the five different false 4 social security numbers to show through circumstantial evidence that Heard was the person who provided the false number for the 1099 forms. We find that these social security numbers were admissible under Fed. R. Evid. 404(b) to show that it was Heard who provided the false number to his company and to show that he did so intention- ally rather than by mistake or accident. Both in his direct testimony and on cross-examination, Heard denied responsibility for any of the five false social security numbers. At sentencing, the district court found this testimony to be both mate- rial and false and enhanced Heard's sentence two levels for perjury. Heard challenges this enhancement. In order to enhance a defendant's offense level for perjury follow- ing an objection on that basis, a district court must review the evi- dence and "make independent findings necessary to establish a willful impediment to or obstruction of justice." United States v. Smith, 62 F.3d 641, 647 (4th Cir. 1995) (citing United States v. Dunnigan, 507 U.S. 87 (1993)). When engaging in this review, it is preferable for the court to address, in a separate finding, each individual element of per- jury: (1) false testimony, (2) concerning a material matter, and (3) made with the intent to deceive. However, if the court's singular finding encompasses all of these necessary factual predicates, the enhancement is sufficiently justified. Id. Here, the court's findings at the sentencing hearing encompass all the necessary factual predicates. We therefore conclude that the district court did not clearly err by enhancing Heard's sentence for perjury. For these reasons, we affirm Heard's conviction and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argu- ment would not aid the decisional process. AFFIRMED 5 

70 F.3d 113 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Porter Jacob COLE, Jr., a/k/a Porter Cole, a/k/a Billy Wade,Defendant-Appellant. No. 94-5639. United States Court of Appeals, Fourth Circuit. Submitted: October 17, 1995Decided: November 14, 1995 Daniel S. Johnson, Winston-Salem, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, David B. Smith, Assistant United States Attorney, Timika Shafeek, Special Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Before HALL, MICHAEL, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. OPINION PER CURIAM: 1 Porter Cole pled guilty to conspiring to manufacture and possession with intent distribute marijuana. Prior to entering his plea, Cole moved to suppress the evidence against him. The district court denied the motion. Cole entered a conditional guilty plea, preserving his right to appeal the denial of his suppression motion. We affirm the denial of the motion and Cole's conviction. I. 2 Deputy Sheriff Jerry Boles was conducting an investigation into a marijuana growth operation. As part of the investigation, law enforcement officers set up a surveillance at one of the residences where the officers suspected growing was taking place. The officers observed a white van parked outside the residence. Boles followed the van after it left the residence. While he was following the van, the van reached speeds of up to eighty miles per hour. 3 The next day the officers executed a search warrant at the residence where they saw the van. The officers discovered marijuana plants inside. The officers met at a staging area near the other suspected residence to execute a second search warrant. While they were waiting to execute the warrant, Boles noticed the white van drive by and slow down. The officers pulled the van over to identify the driver. Boles approached the driver's side of the car and instructed the driver, Cole, to step out of the van with his driver's license and registration. Another deputy approached the passenger side with his gun drawn. 4 When Cole stepped out, Boles patted him down for weapons. Cole told Boles that he did not have a registration because the tag on the van belonged to another vehicle. Boles asked Cole whether the van contained any bombs, guns, hand grenades, drugs, or other contra band. Cole said no. Boles then asked, "Do you mind if we look?" Cole replied, "No, go ahead." The officers searched the vehicle and discovered an electric bill that connected Cole to the residence where the marijuana was discovered. Boles advised Cole of his Miranda* rights. Cole refused to answer any more questions without an attorney present. II. 5 Cole first contends that the district court erred in denying his motion to suppress because the vehicle stop was unwarranted. He claims that, in any event, the officers' activities after the stop exceeded the scope of Terry v. Ohio, 392 U.S. 1 (1968). 6 In Terry, the Supreme Court held that an officer who has a reasonable belief that crime is afoot may stop an individual and conduct a limited pat down search for weapons. Additionally, police officers may stop a vehicle upon a reasonable and articulable suspicion that the occupants are involved in past or present criminal activity. United States v. Hensley, 469 U.S. 221, 226 (1985); United States v. Mobley, 699 F.2d 172, 173-76 (4th Cir.), cert. denied, 461 U.S. 909 (1983). 7 In this case, the officers had observed Cole's van in front of residence where they discovered a marijuana growth operation. Furthermore, Deputy Boles observed the van speeding the previous day, and officers saw the van a second time in front of another residence where they suspected a marijuana growth operation was located. This information provided the officers with the articulable suspicion to stop the vehicle. United States v. Taylor, 857 F.2d 210, 213 (4th Cir.1988). After they made an authorized, investigatory stop of the vehicle, the officers were authorized to conduct a limited frisk search of the occupants of the vehicle if there was reason to believe the occupants were armed and dangerous. See Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1977); Adams v. Williams, 407 U.S. 143, 146 (1972); United States v. Crittendon, 883 F.2d 326, 328 (4th Cir.1989). 8 There is no bright line separating a Terry stop from an arrest. United States v. Jones, 759 F.2d 633, 636 (8th Cir.), cert. denied, 474 U.S. 837 (1985). Whether an official detention is a Terry stop or an arrest depends upon whether the "methods of restraint used are reasonable to the circumstances," so as to maintain the status quo and protect the officers' safety. Crittendon, 883 F.2d at 329; Taylor, 857 F.2d at 213. Brief deprivations of liberty do not convert a Terry stop into an arrest, provided the methods of restraint used are reasonable under the circumstances. United States v. Perate, 719 F.2d 706, 708-09 (4th Cir.1983). Specifically, approaching a suspect's car with weapons drawn does not elevate the stop into an arrest. Id. 9 The officers who stopped Cole's van were acting on information that the vehicle had connections to a large marijuana growth operation. It was reasonable for the officers to believe that the occupants of the van may have been armed and dangerous. United States v. Moore, 817 F.2d 1105, 1107-08 (4th Cir.), cert. denied, 484 U.S. 965 (1987). Because of the potential danger involved in stopping the vehicle, approaching the vehicle with drawn weapons was reasonable. See Taylor, 857 F.2d at 214; Moore, 817 F.2d at 1108. Contrary to Cole's contention, the officers' actions in this situation did not exceed the scope of a Terry stop. III. 10 Cole also claims that the deputies should have given him Miranda warnings prior to asking him any questions. Miranda warnings, however, are only required when there is a custodial interrogation. See Beckwith v. United States, 425 U.S. 341, 345-46 (1976). 11 Whether a suspect is in custody depends upon the reasonable perception of a person in the suspect's position. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). Cole claims that because he was approached by three to five officers and one of the officers had his gun drawn, Cole believed he was in custody. Cole never presented any evidence to show that he was aware of the drawn gun, or that he felt compelled to answer Boles' questions because of the presence of the other officers. Moreover, preliminary investigatory questions following a Terry stop do not normally present a custodial situation calling for Miranda warnings. Berkemer, 468 U.S. at 440. Hence, the district court did not err in refusing to suppress Cole's response to these questions on Miranda grounds. IV. 12 Finally, Cole claims that he did not voluntarily consent to the search of the van. Rather, he alleges that he merely acquiesced in the face of apparent lawful authority. 13 The district court's finding regarding the voluntariness of consent is a factual determination which must be affirmed on appeal unless clearly erroneous. United States v. Gordon, 895 F.2d 932, 938 (4th Cir.), cert. denied, 498 U.S. 846 (1990). Whether the consent was voluntary is determined by examining the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). The government must prove voluntariness by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974). But "the government need not demonstrate that the defendant knew of the right to refuse to consent for the search to be deemed a voluntary one." Gordon, 895 F.2d at 938. 14 Cole offered no evidence to support his contention that his consent was involuntary or that the officers somehow coerced him into consenting. There was no evidence that any of the officers told Cole that they would search the van regardless of whether he consented. Absent such evidence, the district court properly concluded that Cole voluntarily consented to the search. See United States v. Wilson, 895 F.2d 168, 171-73 (4th Cir.1990). 15 Accordingly, we affirm the district court's denial of Cole's motion to suppress and we uphold his conviction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED * Miranda v. Arizona, 384 U.S. 436 (1966)

841 F.2d 770 1988-1 Trade Cases 67,920 UNITY VENTURES, an Illinois partnership, LaSalle NationalBank, as Trustee under Trust No. 103331, andWilliam Alter, Plaintiffs-Appellants,v.COUNTY OF LAKE, Village of Grayslake, Norman C. Geary,George Bell and Edwin M. Schroeder, Defendants-Appellees. Nos. 86-1620, 86-1706. United States Court of Appeals,Seventh Circuit. Argued Feb. 25, 1987.Decided March 9, 1988.Rehearing and Rehearing En Banc Denied May 5, 1988. Clifford L. Weaver, Burke, Bosselman & Weaver, Chicago, Ill., for defendants-appellees. James P. Chapman, James P. Chapman & Assoc. Ltd., Chicago, Ill., for plaintiffs-appellants. Before CUMMINGS and WOOD, Circuit Judges, and ESCHBACH, Senior Circuit Judge. HARLINGTON WOOD, Jr., Circuit Judge. 1 The plaintiffs, Unity Ventures, LaSalle National Bank, and William Alter, sued defendants Village of Grayslake, Lake County, and three officials under the fourteenth amendment to the United States Constitution, 42 U.S.C. Sec. 1983, and the Sherman Act, 15 U.S.C. Sec. 1. The plaintiffs allege that the defendants improperly denied plaintiffs' request for sewage service in order to control the use of plaintiffs' property, violating the plaintiffs' rights to equal protection, substantive and procedural due process, and section one of the Sherman Act. After trial, the jury returned verdicts against all defendants on the equal protection, substantive due process, and antitrust claims. The court trebled the jury's award of $9,500,000 in damages under the antitrust count and on January 16, 1984, entered judgment on the verdict in favor of plaintiffs in the amount of $28,500,000. Defendants filed a timely motion for judgment notwithstanding the verdict or a new trial. On March 19, 1986, the district court granted defendants' motion for judgment n.o.v., denied their motion for a new trial, and denied plaintiffs' procedural due process claims and their request for injunctive relief. Plaintiffs have appealed, raising the following issues: (1) whether there was sufficient evidence to support the jury's finding that defendants violated plaintiffs' rights to substantive due process and equal protection; (2) whether defendants violated plaintiffs' rights to procedural due process by failing to provide plaintiffs with notice and an opportunity to be heard before denying their request for sewer hookups, and by failing to articulate standards for their decision; (3) whether the evidence supported the jury's finding that defendants' agreement on the provision of sewage treatment services eliminated competition between municipalities and between developers, in violation of section one of the Sherman Act; and (4) whether defendants' anticompetitive conduct constituted state action and was therefore immune from the antitrust laws. Defendants have cross-appealed from the denial of their motion for a new trial. We affirm the district court's judgment notwithstanding the verdict on the grounds that the plaintiffs' claims were not ripe for adjudication. I. STANDARD OF REVIEW 2 Our review of the "district court's decision to enter a judgment n.o.v. must be ... de novo." Graefenhain v. Pabst Brewing Co., 827 F.2d 13, 15 (7th Cir.1987). We do not, however, judge the credibility of the witnesses, or substitute our judgment on the weight of the evidence for that of the jury. La Montagne v. American Convenience Prods., 750 F.2d 1405, 1410 (7th Cir.1984). Our task is to determine whether the evidence, and all reasonable inferences which may be drawn from it, is substantial enough to support the jury's verdict, "when viewed in the light most favorable to the non-moving party." Graefenhain, 827 F.2d at 15. With this standard in mind, we turn to a brief discussion of the facts of the case. II. FACTUAL BACKGROUND 3 We draw our discussion of the facts, in large part, from the district court's opinion. Unity Ventures v. County of Lake, 631 F.Supp. 181 (N.D.Ill.1986). 4 In 1972, Alter obtained an option to purchase 585 acres of farmland (the Unity property) in an unincorporated area of Lake County, Illinois. The Unity property was south of Grayslake and southeast of Round Lake Park. On August 15, 1976, Alter and Round Lake Park entered into an annexation agreement providing for development of the Unity property. The Village adopted an ordinance annexing the property and Alter contributed land and money to the Village for municipal facilities. Alter exercised his option to purchase the Unity property on October 21, 1976. 5 In 1973 Lake County completed a plan for a system of regional sewage treatment plants. Under the plan, unincorporated and annexed properties would be served through an off-site connection: an underground pipe would extend from the property or municipality to the main interceptor, a larger underground pipe that connected to the treatment plant serving that area. Two principal interceptors would serve central Lake County. The Northeast Central Interceptor was designed to serve the area of Grayslake and communities along its path to a new sewage treatment plant in Gurnee, Illinois. The Northwest Central Interceptor would serve the area of Round Lake Park and communities along its path to another new treatment plant in Fox Lake, Illinois. The Unity property, under grants approved by the Illinois Environmental Protection Agency (IEPA), the terms of the revenue bond issue, and regional construction plans, was located in the proposed Northeast Interceptor's service area. 6 Lake County and the Village of Grayslake agreed, on April 20, 1976, that the County would provide service to Grayslake through the Northeast Interceptor. The County granted to Grayslake jurisdiction over a "sphere of influence" including unincorporated areas in Lake County adjacent to Grayslake. The Village had the right to approve all connections to the County's Northeast Interceptor from this area. The County and the Village agreed that "[t]he County shall preserve the function of County interceptors located within the sphere of influence of the Village ... by not permitting any direct connection hereto by any person, firm, corporation or municipality unless the Village consents in writing to such direct connection." Unity Ventures, 631 F.Supp. at 185. The 1976 agreement reflected some changes in the sewage disposal arrangement that the parties had reached in 1973. The word "municipality" was an addition, and Grayslake's sphere of influence was increased to include the Unity property and a 2,500-acre parcel in unincorporated Lake County known as the Heartland property. The district court found that neither the plaintiffs nor Round Lake Park officials knew of the sphere of influence agreement between Grayslake and Lake County until October of 1978. Id. at 186. 7 In August of 1978 Alter submitted to the Lake County Public Works Department two plans for the construction of a connection between the Unity property and the Northeast Interceptor. One plan provided for a connection to serve only the Unity property for which Alter would pay the construction costs. The second plan provided for a connection to serve both the Unity property and the Heartland property which lay between Unity and Grayslake. Alter would pay for the bulk of this sewer with Grayslake paying only for the additional costs of oversizing to accommodate the larger area. Martin Galantha, Director of the Lake County Public Works Department, approved the plans and sent them on to Mayor Edwin M. Schroeder for Grayslake's approval according to the sphere of influence agreement. Galantha also sent a letter indicating that although Round Lake Park generally would be served by the Northwest Interceptor, the Unity property, because it lay within the Des Plaines River basin, "should be tributory [sic] to the County's Northeast Central interceptor system." Id. (quoting Plaintiffs' Exhibit 50). 8 The plaintiffs learned of the sphere of influence agreement on October 31, 1978, at a meeting with Galantha, Mayor Schroeder, Mayor Walter Bengson of Round Lake Park, and others to discuss Alter's proposals. Mayor Schroeder declined to consent to Unity's connection into the Northeast Interceptor at that time. 9 Round Lake Park appealed Grayslake's veto of Alter's requested sewage connection to the Lake County Board through Joseph Tobolik, Round Lake Park's representative on the Board. On March 16, 1979, the Board's Public Service Committee obtained a legal opinion from the law firm of Chapman & Cutler as to the propriety of Grayslake's veto power. Chapman & Cutler found the sphere of influence agreement to be of questionable legality. Because it vested Grayslake with arbitrary authority, the agreement could violate the requirements of due process and, moreover, according to the opinion, if the agreement was not considered to be an exercise of state action it might violate the antitrust laws as well. After receiving this opinion, the Public Service Committee sought the State's Attorney's advice about its legal options. Ultimately, the Committee abandoned further inquiry into the legality of Grayslake's veto power and instructed the County to take the necessary steps to support the contract's validity. 10 Following Grayslake's rebuff, plaintiffs and Round Lake Park proceeded with alternate plans to provide sewage treatment facilities for the Unity property. On August 29, 1976, Round Lake Park filed a petition for variance with the Illinois Pollution Control Board, requesting permission to construct a sewage treatment plant to serve the Unity property. The defendants did not file any objections. In November of 1979, the Pollution Control Board granted the variance without objection. In December of 1979, Round Lake Park entered into an agreement with a sewer company to construct the plant. 11 While the plaintiffs were engaged in these efforts, the developer of the Heartland property had been negotiating an annexation with Grayslake officials. In November of 1980, after several years of unsuccessful negotiations with Grayslake, the Heartland's developer sought annexation by Round Lake Park. Faced with the prospect of losing Heartland, the Grayslake Board of Trustees on December 22, 1980, adopted a resolution that Grayslake would consider allowing the Unity property to connect to the Northeast Interceptor if Round Lake Park would agree not to annex Heartland without Grayslake's consent. Round Lake Park rejected this offer on January 3, 1981, and on January 14, 1981, Round Lake Park passed a resolution to authorize Heartland's annexation. 12 Five days later Lake County and Grayslake filed with the IEPA objections to construction of the sewage treatment plant to serve the Unity property. The Grayslake trustees on February 2, 1981, unanimously rescinded their earlier resolution to consider allowing the Unity property to connect to the Northeast Interceptor. On June 3, 1981, the defendants filed an action in the Circuit Court of Lake County challenging the validity of Round Lake Park's zoning and annexation of Heartland. (The complaint was later amended to include a challenge to Round Lake Park's zoning of plaintiffs' property.)1 On May 15, 1981, plaintiffs filed this suit. III. DISCUSSION A. Ripeness of Constitutional Issues 13 The defendants, in an early motion to dismiss, argued among other things that the plaintiffs' claims were not ripe for adjudication. The district court denied the motion. No discussion of the ripeness issue appears in the district court's opinion. Ripeness, as an element of the case or controversy requirement of Article III of the Constitution, is an issue we must address. Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974). Since this case was tried, the Supreme Court has discussed the doctrine of ripeness on two occasions. The decisions in those cases, and a recent Ninth Circuit opinion convince us that this case is indeed not yet ripe for our consideration. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986); Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); Herrington v. County of Sonoma, 834 F.2d 1488 (9th Cir.1987). The Ninth Circuit explained the principle behind the ripeness doctrine as follows: 14 In land use challenges, the doctrine of ripeness is intended to avoid premature adjudication or review of administrative action. It rests upon the idea that courts should not decide the impact of regulation until the full extent of the regulation has been finally fixed and the harm caused by it is measurable. 15 Herrington, 834 F.2d at 1494. 16 The Supreme Court's recent discussion of ripeness has been in the context of regulatory taking claims. In one such case, the Court stated that a plaintiff "must establish that the regulation has in substance 'taken' his property ... [and] that any proffered compensation is not 'just.' " Yolo County, 106 S.Ct. at 2566 (citations and footnote omitted). "[A]n essential prerequisite to a takings claim is a final decision by the government as to what use of the property will be allowed." Id. In order for a plaintiff to maintain a suit, the government's use determination must be one "which inflicts a concrete injury on the plaintiff." Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 (9th Cir.1987). The Kinzli court has interpreted the final decision requirement to include "(1) a rejected development plan, and (2) a denial of a variance." Id. (citing Williamson, 473 U.S. at 187-90, 105 S.Ct. at 3117-19). The Ninth Circuit applied this test in Kinzli to dismiss the plaintiffs' taking claim because they had "neither submitted a development plan nor applied for a variance." 818 F.2d at 1455. The Kinzli court similarly found that plaintiffs' equal protection and substantive due process claims were not ripe, and because the substantive due process claim was not ripe there could not yet be a denial of procedural due process. Id. at 1456; see also Williamson, 473 U.S. at 199-200, 105 S.Ct. at 3123-24. 17 Plaintiffs here do not allege that Grayslake and Lake County have "taken" their property. They argue that the denial of a sewer connection to the Northeast Interceptor was not based on any discernible standards and violated their rights to equal protection and substantive due process. Moreover, they contend, their rights to procedural due process also were violated because they did not receive notice and an opportunity to be heard before the denial. 18 Although the plaintiffs' suit is not premised on a takings claim, as were the Yolo County, Williamson, and Kinzli cases, we agree with the Ninth Circuit in Herrington that the ripeness analysis used in those cases applies as well to equal protection and due process claims. Herrington, 834 F.2d at 1494. The plaintiffs in Herrington initially brought suit under 42 U.S.C. Sec. 1983 against Sonoma County asserting that the County's denial of their development plan "effected a taking of their property without just compensation." Id. at 1493. The Herringtons, like plaintiffs here, also claimed violations of their rights to equal protection and substantive and procedural due process.2 After the close of evidence at trial the Herringtons abandoned their taking claim; the case was thus decided and appealed only on the equal protection and due process issues. We believe the Ninth Circuit's analysis of these issues is persuasive, and we adopt the reasoning of the Herrington opinion. 19 A final decision must be demonstrated by a development plan submitted, considered, and rejected by the governmental entity. Because plaintiffs here are challenging defendants' denial of a sewer connection, this requirement can be met by a rejected application or proposal for the connection. Plaintiffs are unable to meet this requirement. Alter's efforts to obtain a sewer connection for the Unity property did not include a formal application to either Grayslake or Lake County, and thus did not result in a final decision. 20 Alter submitted two plans to Martin Galantha, director of the Lake County Public Works Department. Galantha approved of the plans and sent them to Mayor Schroeder of Grayslake for the Village's approval in accordance with the sphere of influence agreement. When Alter met with Mayor Schroeder and others October 31, 1978, Schroeder, speaking with the knowledge and approval of the Board of Trustees, told him that Grayslake would not consent at that time to the Unity property connecting to the Northeast Interceptor. In a letter to the County Board Schroeder mentioned Grayslake's concerns about the sewer's capacity to accommodate the property of developers interested in annexing to Grayslake. He stated, however, that "[a]s a matter of record Grayslake has never taken the position that it will never consent to the connection by Unity Ventures." Alter made no formal application to the Village Board of Trustees. Neither did he approach the Lake County Board to apply for a connection. Nor did he file a request with the IEPA to approve a connection to the Northeast Interceptor. 21 Round Lake Park generally was located in the area to be served by the Northwest Interceptor. The Unity property, although tributary to the Northeast Interceptor, was politically part of Round Lake Park. Alter, however, never applied for connection to the Northwest Interceptor. Alter failed to make any effort to obtain a final, reviewable decision before any governmental entity on his application for a sewer connection. He asserts that further efforts to apply to the County, the IEPA, or the North Shore Sanitary District would have been "a useless act." 22 The Ninth Circuit has ruled that the final decision requirement may be met with proof that attempts to comply would be futile. Kinzli, 818 F.2d at 1454; Martino v. Santa Clara Valley Water Dist., 703 F.2d 1141, 1146 n. 2 (9th Cir.), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983). The Ninth Circuit, relying on Yolo County, has found that futility is not established "until at least one meaningful application has been made." Herrington, 834 F.2d at 1495; Kinzli, 818 F.2d at 1454-55 (citing Yolo County, 106 S.Ct. at 2568 n. 8). The plaintiffs in Herrington were able to establish the futility of further efforts to seek approval of their development plan. They had submitted an application to Sonoma County for a thirty-two unit subdivision. The plaintiffs' proposal included a tentative map prepared by a civil engineer, a narrative description of the project, and a filing fee. Herrington, 834 F.2d at 1491. The application was technically incomplete, however, because it did not contain the requisite environmental impact report, but instead was accompanied only by a series of environmental studies. The plaintiffs demonstrated through uncontroverted testimony that despite this technical insufficiency their plan had in fact been considered and rejected by the County Board of Supervisors. Id. at 1496. This testimony also revealed that applications for a variance would have been futile as well because variances were prohibited by law. Id. The plaintiffs thus were able to meet the requirements of a final decision without either a technically complete development plan or a rejected application for a variance. The Ninth Circuit, however, "emphasize[d] that mere allegations by a property owner that it has done everything possible to obtain acceptance of a development proposal will not suffice to prove futility." Id. 23 Plaintiffs here do not allege that they have done everything possible, nor can they. Although Alter testified that he believed applications to the County and other entities would be "useless," the law requires a greater legitimate effort to follow administrative procedures than plaintiffs have made. At the very least, Alter should have sought formal approval of his request for a sewer connection from the Grayslake Board of Trustees at a regular meeting. Mayor Schroeder's informal denial of Alter's request was not unassailable. He refused to approve the sewer connection "at that time." In his letter to the County Board, although the Mayor expressed concerns about the capacity of the Northeast Interceptor, he stated that Grayslake had not taken the position that it would never approve sewer connection to the Unity property. The Village's hesitation to approve Alter's application because of questions about capacity points up the rationale behind the final decision requirement. If the plaintiff had presented a formal application to the Grayslake Board of Trustees with adequate documentation about the density of the proposed development and the anticipated volume of sewage the connection would have to accommodate, then the Village could have made a reasoned decision about the Northeast Interceptor's ability to handle the excess. And if the Village still denied the application, a court would have a basis on which to evaluate the impact and extent of the Village's denial. At this point, it is simply impossible for a court to determine how the Grayslake Board of Trustees or the Lake County Board would have acted on a formal application, or whether or to what extent the plaintiffs have been harmed. 24 The plaintiffs' claims are, unfortunately at this late date, not ripe for adjudication. The plaintiffs have not obtained a final decision on their application for a sewer connection; indeed, they have failed even to present a formal application to either the Village of Grayslake or Lake County regarding the Northeast Interceptor. They have failed to seek a connection to the Northwest Interceptor as well. They have not persuaded us that submitting a formal application would be futile--we have nothing but their assertions to demonstrate futility. This is not enough. Plaintiffs' equal protection and substantive due process claims are not ripe. 25 As for plaintiffs' claim that they were denied their right to procedural due process, it, too, is premature. We will not evaluate the adequacy of the procedures available to the plaintiffs before they have availed themselves of those procedures. Because neither the Village nor the County has made a final decision regarding a sewer connection for the Unity property, the plaintiffs' procedural due process claim is not ripe. See Kinzli, 818 F.2d at 1456. B. Antitrust Claims 26 Our discussion of ripeness in connection with the plaintiffs' equal protection and due process claims applies equally to their antitrust claim. See Suburban Trails, Inc. v. New Jersey Transit Corp., 800 F.2d 361, 368 (3d Cir.1986) (finding, without discussion, that district court's ruling on antitrust issues was premature). We believe that this claim also must await a final decision on the plaintiffs' application for a sewer connection. 27 The plaintiffs in Suburban Trails, two affiliated, privately owned bus companies, were denied federal funds by the defendant, the state agency designated to receive and allocate federal grants under the Urban Mass Transportation Act. There was evidence that the defendant denied the plaintiffs' subsidies because the plaintiffs directly competed with the defendants on one route. The plaintiffs charged that the federal legislation preempted the defendant's action, and also argued that the defendant's conduct violated section one of the Sherman Act and denied the plaintiffs due process of law. The Third Circuit, finding that the Urban Mass Transportation Administration (UMTA) retained the right, not yet exercised, to review and perhaps veto the defendant's allocation plan, held that the plaintiffs' preemption and antitrust claims were not ripe. Administrative proceedings on the plaintiffs' eligibility to receive the federal funds were pending, as was a complaint the plaintiffs had filed against the defendant before UMTA. Even the defendant's decision to deny plaintiffs' subsidy was not yet final. 28 Plaintiffs here assure us that they do not challenge the facial validity of the agreement between Lake County and Grayslake. Rather they challenge the defendants' use of the powers granted them by the contract. It follows that because the defendants have not yet reached a final decision on the plaintiffs' application for a sewer connection, they have not yet exercised these powers. Plaintiffs' antitrust claim thus is premature. 29 It is possible that the plaintiffs will prevail on their application for a sewer connection, should they decide to pursue it further. If so, then they will have suffered no injury from the agreement between Grayslake and Lake County. Even if they do not prevail, however, they may not recover against the defendants based on the alleged anticompetitive agreement, because the defendants are immune from antitrust liability under the state action doctrine. 30 The state action exemption from antitrust liability was established by the Supreme Court in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), and extended to local government entities acting "pursuant to state policy to displace competition with regulation or monopoly public service." City of Lafayette v. Louisiana Power & Light Co., 435 U.S 389, 413, 98 S.Ct. 1123, 1137, 55 L.Ed.2d 364 (1978). The state's policy must be clearly articulated. Id. at 410; 98 S.Ct. at 1135; Town of Hallie v. City of Eau Claire, 471 U.S. 34, 39, 105 S.Ct. 1713, 1716, 85 L.Ed.2d 24 (1985). In deciding whether a local government's actions are undertaken pursuant to clearly articulated state policy, we "first determine whether any state legislative act(s) authorizes the challenged conduct and then determine whether anticompetitive effects are a foreseeable result of the authorization." LaSalle Nat. Bank v. DuPage County, 777 F.2d 377, 381 (7th Cir.1985), cert. denied, 476 U.S. 1170, 106 S.Ct. 2892, 90 L.Ed.2d 979 (1986). If the answers to both questions are yes, then we conclude that the state intended the local government's action to be immune from antitrust challenge. 31 In LaSalle National Bank, we analyzed the same statutes the defendants cited to the district court in this case. The plaintiffs in LaSalle National Bank, Unity Ventures, William Alter, and the Bank, alleged in their complaint that the defendants had "conspired to unlawfully restrain competition among developers in DuPage County and ... among local governmental units who seek to annex, to tax, to zone, and to provide utility services to developments." Id. at 379. The plaintiffs alleged that the County and the defendant villages reached an agreement whereby each village was given control over access to sewer connections in certain unincorporated areas outside each village, and the County retained control over a portion of the remaining unincorporated areas. The County and each village agreed on a formula for apportioning the limited number of new sewer connections the IEPA would allow. The County was not allocated enough new connections to serve the plaintiffs' proposed development. 32 We found that "[t]he State of Illinois authorizes counties and municipalities to contract together and combine resources for the provision of sewage treatment." Id. at 381 (citing Ill.Ann.Stat. ch. 34, p 3111; Ill.Ann.Stat. ch. 24, p 11-147-4; Ill.Ann.Stat. ch. 111 1/2, p 1046(b)). Moreover, we found express legislative authorization for the IEPA " 'to engage in planning processes and activities and to develop plans in cooperation with units of local government ... in connection with each such unit.' " Id. at 381-82 (quoting Ill.Ann.Stat. ch. 111 1/2, p 1004(n)). Therefore, we found that the defendants' agreements were authorized by the state legislature. Further, we viewed anticompetitive results as a foreseeable consequence of the statutory authorization. Id. at 382. 33 In sum, free competition and competitive pricing are not the policies underlying the Illinois scheme for sewage treatment. Rather the scheme is one in which local governmental units are encouraged to cooperate in providing sewage service to residences within their boundaries for the common good of the communities they serve. These local and regional decisions regarding sewage treatment are guided by political forces, minimal judicial review, see Krol v. County of Will, 38 Ill.2d 587, 590, 233 N.E.2d 417 (1968), and state and national environmental protection laws. Under such a scheme anticompetitive effects are clearly foreseeable and contemplated. We therefore hold that the defendants' agreement allocating sewage treatment capacity was authorized and that the Illinois legislature intended that such cooperative agreements not be the subject of federal antitrust suits. 34 Id. 35 The district court found that LaSalle National Bank was controlling on this suit. Unity Ventures, 631 F.Supp. at 191. It found that the agreement between Lake County and Grayslake was authorized by the same statutes as we relied on in LaSalle National Bank. Unity Ventures, 631 F.Supp. at 190. And the restraint of competition was a foreseeable result of the authorizing legislation. Were the antitrust claim not premature, we would affirm the district court's judgment that because the state action doctrine applies to the actions of the local governments here, "the jury's verdict and award for the federal antitrust action must be vacated and the action dismissed." Id. at 191. IV. CONCLUSION 36 In light of the foregoing discussion, we affirm the district court's grant of defendant's motion for judgment notwithstanding the verdict.3 Costs in this court are waived. 37 AFFIRMED. 1 On December 22, 1986, judgment was entered for defendants (plaintiffs in this case). People ex rel. Foreman v. Village of Round Lake Park, No. 81 CH 392 B (19th Cir.Ct., Lake Cty., Ill. Dec. 22, 1986). According to the plaintiffs in this case, the judgment has been appealed to the Illinois Appellate Court for the Second District 2 Because the plaintiffs invoke no fundamental right and posit no suspect classification, they are not entitled to the higher level of scrutiny that attaches to those kinds of equal protection claims. See, e.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). The parties here seem to agree that the same standards apply in the ordinary equal protection analysis as apply to substantive due process challenges. See, e.g., Griffin High School v. Illinois High School Ass'n, 822 F.2d 671, 674-76 (7th Cir.1987). The regulation must bear a rational relation to a legitimate state interest. Id 3 In light of our holding that plaintiffs' claims were not ripe for adjudication, we do not reach defendants' cross-appeal. We also need not rule on the parties' various motions to strike portions of each others' briefs which do not bear on the ripeness issue, except to deny plaintiffs' request for attorneys' fees We acknowledge the four amicus curiae briefs filed in support of the defendants-appellees by the State of Illinois, the National Institute of Municipal Law Officers, the National Association of Counties, and the Northeastern Illinois Planning Commission, the National Association of Regional Councils, the American Planning Association, and the Metropolitan Housing and Planning Council.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS No. 13-167V Filed: March 21, 2014 ******************************** LORIN FORCINE and BLAISE FORCINE, * legal representatives of minor child * William Forcine, * Stipulation; Attorney Fees and Costs Petitioners, * * v. * * SECRETARY OF HEALTH * AND HUMAN SERVICES, * Respondent. * ******************************** Paul R. Brazil, Esq., Muller Brazil, LLP, Philadelphia, PA for petitioners. Lisa Ann Watts, Esq., U.S. Dept. of Justice, Washington, D.C. for respondent. DECISION ON ATTORNEY FEES AND COSTS1 Vowell, Chief Special Master: In this case under the National Vaccine Injury Compensation Program,2 I issued a decision on December 17, 2013, that awarded compensation pursuant to respondent’s proffer. On March 14, 2014, the parties filed a stipulation for attorney fees and costs. The stipulation indicates that respondent does not object to the amount petitioners are requesting. Additionally, pursuant to General Order #9, the stipulation notes that petitioners incurred no personal litigation costs. I find that this petition was brought in good faith and that there existed a reasonable basis for the claim. Therefore, an award for fees and costs is appropriate, 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this decision on the United States Court of Federal Claims' website, 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)). In accordance with Vaccine Rule 18(b), petitioners have 14 days to identify and move to delete medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will delete such material from public access. 2 The applicable statutory provisions defining the program are found at 42 U.S.C. § 300aa-10 et seq. (2006). 1 pursuant to 42 U.S.C. §§ 300aa-15(b) and (e)(1). Further, the proposed amount seems reasonable and appropriate. Accordingly, I hereby award the total $23,878.263 in the form of a check payable jointly to petitioners and petitioners’ counsel of record, Paul Brazil, for petitioners’ attorney fees and costs. The clerk of the court shall enter judgment in accordance herewith.4 IT IS SO ORDERED. s/ Denise K. Vowell Denise K. Vowell Chief Special Master 3 This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered. Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924 F.2d 1029 (Fed. Cir.1991). 4 Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review. See Vaccine Rule 11(a). 2 

42 Wis.2d 429 (1969) 167 N.W.2d 226 McCONNELL, Respondent, v. L. C. L. Transit Company and others, Appellants. No. 201. Supreme Court of Wisconsin. Argued March 31, 1969. Decided May 6, 1969. *434 For the appellants L. C. L. Transit Company and Helen E. Pomprowitz there was a brief by Cornelisen, Denissen, Kranzush, Kuehn & Condon, attorneys, and David J. Condon of counsel, all of Green Bay, and oral argument by David J. Condon. For the appellant Kellogg-Citizens National Bank there were briefs by Wilmer & Surplice of Green Bay, and oral argument by Alex Wilmer. For the respondent there was a brief by Kaftan, Kaftan & Kaftan of Green Bay, and oral argument by Fred F. Kaftan. HANLEY, J. On this appeal L. C. L. and Mrs. Pomprowitz contend: (1) That the employment contract is plain, complete and unambiguous on its face, and that it must be construed without reference to parol evidence; (2) That the liquidated damages provision of the employment contract sets the sole amount of damages recoverable upon the company's termination of the contract; and (3) That there is no factual issue in the case which must be decided before judgment can be entered. The third defendant, the bank, has raised further issues on this appeal. Before any discussion of those questions, it is necessary to explain why the bank was named as a party to this case. At all times pertinent, the bank and Mrs. Pomprowitz were cotrustees of several trusts created under the will of Joseph Pomprowitz. In addition, the bank and Mrs. Pomprowitz were cotrustees of a voting trust agreement. These trust arrangements involved 100 percent of the voting stock of L. C. L. Plaintiff has alleged that Mrs. Pomprowitz and the bank's representative promised him that they would always vote the stock so that plaintiff *435 would continue to be employed as long as L. C. L. made a profit. In response to plaintiff's allegations, the bank raises the arguments proposed by the other defendants. In addition, the bank contends: (1) That none of its officers or employees had authority to make any promise to plaintiff; and (2) That in performing its function as trustee, the bank could not become personally liable because of L. C. L.'s breach of an employment contract. Summary Judgment Generally. In Hardscrabble Ski Area, Inc. v. First National Bank of Rice Lake, ante, p. 334, 166 N. W. 2d 191, the court cited numerous recent cases which have extended the use of summary judgment beyond its original purpose. Also noted therein was the court's concern with the number of appeals from orders overruling motions for summary judgment. Again, setting forth the discretionary language of sec. 270.635, Stats., the court stated that the summary judgment statute: ". . . vests discretion in the trial court as to whether the case should be tried. It follows that an order denying a motion for summary judgment will not be reversed until it appears that the trial court has abused its legal discretion or has not exercised it." Clearly, the trial court has not abused its discretion when denying a motion for summary judgment unless it either incorrectly decides a legal issue or it declines to decide a legal issue which is capable of resolution in a factual vacuum. A litigant is not entitled to summary judgment merely because the parties to a lawsuit have stipulated to the facts. This court pointed out in Zimmer v. Daun (1968), 40 Wis. 2d 627, 630, 162 N. W. 2d 626, that: *436 ". . . A trial court need not decide a question of law on a motion for summary judgment . . . ." In the Zimmer Case, supra, this court approved the trial court's failure to decide a clear legal question because this court, at page 631, was: " . . . not convinced the affidavits set forth all the relevant facts which should be considered." Taking all of these considerations into mind, it is quite apparent that a trial court denying summary judgment will generally be sustained. Applicability of Summary Judgment to this Case. L. C. L. generally rested its motion for summary judgment upon the written employment contract, the provisions therein for termination, and the clause referring to liquidated damages. To grant this motion, it would have been necessary for the trial court to hold, as a matter of law, that the language of the written employment contract precluded a consideration of any other evidence in this case. Thus, L. C. L. relies on the general rules that: "Where preliminary negotiations are consummated by a written agreement, or an oral contract is evidenced by a subsequent agreed memorandum in writing, the writing supersedes all previous understandings, and the intent of the parties must be ascertained therefrom. . . ." 17 A C. J. S., Contracts, p. 215, sec. 322. "An oral agreement collateral to a written contract will not be construed or held to be valid and enforceable in so far as it conflicts with, changes, or devitalizes the written contract . . . ." 17A C. J. S., Contracts, p. 217, sec. 323. The trial court pointed out that under plaintiff's theory of reformation, plaintiff's theory of promissory estoppel, or even under some other theories, it would be possible *437 to receive evidence of the alleged oral promise involved here. Such an observation is certainly in conformity with Wisconsin law. ". . . Parol evidence is admissible to establish mutual mistake in a reformation action. Thus it is not a valid objection to interpose to the offer of such evidence that it tends to vary the terms of the written instrument sought to be reformed." Newmister v. Carmichael (1966), 29 Wis. 2d 573, 577, 139 N. W. 2d 572. Nor does the fact that a promise is only oral prevent its proof under a theory of promissory estoppel. See Hoffman v. Red Owl Stores, Inc. (1965), 26 Wis. 2d 683, 133 N. W. 2d 267. It is not necessary for this court to decide whether the making of a written contract after a person relies on an oral promise prevents said person from raising a promissory estoppel argument. In this case the plaintiff has alleged that the promise of "continual employment during profits" was repeatedly made as late as November, 1966. Plaintiff further alleged that the later and continual making of the promise induced him to forego terminating his employment contract in order to accept other employment. L. C. L. also contends that even if plaintiff successfully proves the oral agreement which was allegedly made, nevertheless, the liquidated damages clause of the written employment contract fixes the maximum amount which the plaintiff can recover in the event of L. C. L.'s breach. This court has stated: ". . . Where . . . the parties intended to agree upon liquidated damages, it is the duty of the court to enforce it though it may appear somewhat harsh. Parties have a right to make harsh provisions in their contracts if they see fit. . . ." Grant Marble Co. v. Marshall & Ilsley Bank (1918), 166 Wis. 547, 555, 165 N. W. 14. See also Keehn v. Saxe (1935), 219 Wis. 84, 261 N. W. 25. *438 Wisconsin has always recognized, however, the distinction between liquidated damages and a penalty. "Courts will ascertain for themselves the real intent of the parties to the contract, and are not bound by the assertions of the parties themselves as to that intent, and the stipulated damages must appear to be grossly in excess of the actual damages, or have no relation thereto, before the court can say within established principles that the damages stipulated are a penalty. . . ." Sheffield-King Milling Co. v. Jacobs (1920), 170 Wis. 389, 398, 175 N. W. 796. "In determining whether a stipulated sum payable on breach of a contract is to be considered as liquidated damages or a penalty the reasonableness of the amount provided for, including the relation which the sum stipulated bears to the extent of the injury, and whether it violates the fundamental rule of compensation, must be considered. The court will compare the amount stipulated with the probable damages from a breach to determine whether the stipulated sum was arrived at as the result of a good faith endeavor to estimate damages or was fixed for some other purpose. . . ." 25 C. J. S., Damages, p. 1051, sec. 108. "Where it appears that the amount fixed was evidently not intended to be a full compensation for a breach of contract, or would be grossly inadequate as such, it will, as a rule, be considered as a penalty." 25 C. J. S., Damages, p. 1056, sec. 108. Whether or not a contractual provision calls for a penalty or liquidated damages is a question of law for the court. However, in resolving that question, the intention of the parties at the time of the making of the contract is an important factor. In this case the plaintiff has alleged that he never understood the provision in the employment contract calling for liquidated damages. Moreover, he never worried about it because he had been promised that L. C. L. would not terminate the contract as long as the company was making a profit. *439 The trial court did not abuse his discretion when he refused to decide the damage question in the absence of all the facts. Clearly, L. C. L.'s motion for summary judgment should have been denied. Mrs. Pomprowitz and the bank also moved for summary judgment. Both of these parties alleged that plaintiff's sole remedy for the termination of his employment contract was the remedy specified in the contract. It is clear that the contract cannot protect the bank or Mrs. Pomprowitz in any event because they were not parties to it. The complaint alleged that the bank, through its authorized representative, and Mrs. Pomprowitz both promised, for their own benefit, to vote all the stock for L. C. L. so that plaintiff would be retained as presidentgeneral manager as long as L. C. L. made an annual profit. The answers and the affidavits have raised clear issues of fact as to whether Mrs. Pomprowitz, by negotiating with plaintiff, was acting for her own benefit, for L. C. L., or as a trustee; whether the bank had authorized any of its agents to participate in employment negotiations with plaintiff; and when the promises were made, if they were made at all. We are of the opinion that there is no clear issue of law which is capable of being decided without a factual determination. We agree with the trial court that the case ought to be tried and not disposed of in a summary manner. By the Court.—Order affirmed.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-1486 GARY R. JONES, Plaintiff - Appellant, versus SHAWN R. ARLEDGE; CITY OF CHESAPEAKE, Defendants - Appellees. Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Norfolk. Rebecca B. Smith, District Judge. (CA-98-482-2) Submitted: September 30, 1999 Decided: October 5, 1999 Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. Gary R. Jones, Appellant Pro Se. Alan Brody Rashkind, FURNISS, DAVIS, RASHKIND & SAUNDERS, Norfolk, Virginia; Thomas Jeffrey Salb, BREEDEN, MACMILLAN & GREEN, Norfolk, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Gary R. Jones appeals the district court’s order dismissing his 42 U.S.C.A. § 1983 (West Supp. 1999) action, following a jury trial. On appeal, Jones alleges his counsel was ineffective. Because claimants are not entitled to counsel in a § 1983 action, there is no right to constitutionally effective counsel. See Sanchez v. United States Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986); Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985). Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

614 S.E.2d 775 (2005) 279 Ga. 460 BERNOCCHI et al. v. FORCUCCI. No. S05A0483. Supreme Court of Georgia. June 16, 2005. *776 Michael W. Higgins, Higgins & Dubner, Atlanta, for Appellants. Charlotte Kathleen Perrell, Perrell & Wright, LLC, Atlanta, for Appellee. BENHAM, Justice. In this appeal, we are called upon to review the propriety of the trial court's issuance of injunctive relief and the trial court's disqualification of counsel from simultaneously representing the corporate appellants and the individual appellant. We reverse the entry of injunctive relief, vacate the order granting the motion to disqualify counsel, and remand the case to the trial court for further proceedings. Appellant Riccardo Bernocchi is an Italian clothing designer. He and appellee Anthony Forcucci and the late Irene Volpi formed appellant Berik Design USA ("BDUI"), with Forcucci as president, in 1995. Six years later, Bernocchi and Forcucci formed a limited liability corporation, appellant The Berik Group, LLC ("TBGL"). In 2004, after Volpi died, a third party purchased her interest in *777 BDUI and Forcucci was removed as a director and voted out of BDUI's management. Bernocchi was elected the sole officer and director of BDUI and approved an offering of shares of BDUI stock. In June 2004, Forcucci, still the owner of one-third of the BDUI stock, filed a petition for a temporary restraining order to stop the stock offering. The parties entered into a consent TRO which restrained Bernocchi and BDUI from issuing more stock and from disposing of the trademarks or assets of TBGL. The parties extended the life of the consent TRO twice, with an attorney from the firm of Higgins and Dubner signing one of the consent orders as the attorney for Bernocchi, BDUI, and TBGL. Contending Bernocchi's interests were adverse to those of BDUI, and TBGL, Forcucci filed a motion to disqualify Higgins and Dubner from simultaneously representing the three defendants. At a hearing on September 10, 2004, the expiration date for the last consent TRO, the trial court found the corporate defendants and Bernocchi to have conflicting interests and granted the motion to disqualify counsel. The trial court issued a certificate of immediate review of its ruling and, in response to Forcucci's inquiry about the status of the TRO, issued an order continuing the restraints set forth in the consent TROs until further order of the court. Bernocchi filed a direct appeal to this Court on the basis that the trial court's latter order was, in fact, an interlocutory injunction. See OCGA 5-6-34(a)(4). 1. "An interlocutory injunction is a device to keep the parties in order to prevent one from hurting the other whilst their respective rights are under adjudication. There must be some vital necessity for the injunction so that one of the parties will not be damaged and left without adequate remedy." Chambers v. Peach County, 268 Ga. 672(1), 492 S.E.2d 191 (1997). Trial courts enjoy broad discretion in deciding whether an interlocutory injunction should be imposed, though the power to do so "shall be prudently and cautiously exercised...." OCGA § 9-5-8. In determining whether to issue an interlocutory injunction, the trial court must balance the conveniences of the parties pending final adjudication. Univ. Health Services v. Long, 274 Ga. 829, 561 S.E.2d 77 (2002). An interlocutory injunction may be issued to maintain the status quo if, after balancing the relative equities of the parties, it appears the equities favor the party seeking the injunction. Lee v. Environmental Pest Control, 271 Ga. 371(2), 516 S.E.2d 76 (1999). The trial court's exercise of its discretion will not be disturbed by an appellate court "unless a manifest abuse of that discretion is shown [or] unless there was no evidence on which to base the ruling." Kennedy v. W.M. Sheppard Lumber Co., 261 Ga. 145, 146(1), 401 S.E.2d 515 (1991). In the case at bar, the order granting the interlocutory injunction does not reflect that the trial court balanced the relative equities of the parties. The hearing transcript reflects the trial court recognized the need for an evidentiary hearing, but scheduling conflicts prevented the hearing from taking place on the day the consent TRO expired. As a result, the trial court entered the interlocutory injunction in the absence of an evidentiary hearing at which the party seeking the relief would have to demonstrate entitlement thereto (see Treadwell v. Investment Franchises, 273 Ga. 517, 519, 543 S.E.2d 729 (2001) (burden is on the party seeking injunctive relief to demonstrate entitlement to the relief)), and the parties against whom relief was sought could present evidence showing the inequity in imposing interlocutory injunctive relief. Since the grant of injunctive relief occurred without a balancing of the equities and without evidentiary support, the entry of injunctive relief must be reversed for lack of evidentiary support. Kennedy v. Sheppard Lumber Co., supra, 261 Ga. 145, 146(1), 401 S.E.2d 515. 2. Appellants next take issue with the trial court's order granting Forcucci's motion to disqualify Higgins & Dubner from simultaneous representation of appellant Bernocchi and the two corporate defendants. The trial court's written order contained no findings, but the hearing transcript reflects the trial court believed the corporations to have "a divergence of interests" from both Forcucci and Bernocchi, and granted the motion to disqualify because "there is a conflict on behalf of Mr. Bernocchi with whether or *778 not the corporations' ownerships interest in... designs and royalties would be protected." "[T]he right to counsel is an important interest which requires that any curtailment of the client's right to counsel of choice be approached with great caution." Blumenfeld v. Borenstein, 247 Ga. 406, 408, 276 S.E.2d 607 (1981). "[D]isqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and ... inevitably cause[s] delay." Reese v. Ga. Power Co., 191 Ga.App. 125(2), 381 S.E.2d 110 (1989). "[A] client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and `may lose the benefit of its longtime counsel's specialized knowledge of its operations.'" Bergeron v. Mackler, 225 Conn. 391, 398, 623 A.2d 489 (Conn.1993). Because of the right involved and the hardships brought about, disqualification of chosen counsel should be seen as an extraordinary remedy and should be granted sparingly. Anderson Trucking Service v. Gibson, 884 So.2d 1046, 1049 (Fla.App.2004). See also Meehan v. Antonino, 2002 WL 31559712 (Conn.Super.2002) (unpub. op.). The simultaneous representation of parties whose interests in litigation may conflict, such as co-plaintiffs or co-defendants, is governed by Rule 1.7(b) of the Georgia Rules of Professional Conduct. Comment 7 to Rule 1.7(b). Rule 1.7 permits a lawyer to represent a client notwithstanding a significant risk of material and adverse effect if each affected or former client consents, preferably in writing, to the representation after: (1) consultation with the lawyer, (2) having received in writing reasonable and adequate information about the material risks of the representation, and (3) having been given the opportunity to consult with independent counsel. Client consent is not permissible if, among other things, the representation "involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients." Rule 1.7(c)(3). Citing Reese v. Georgia Power Co., supra, 191 Ga.App. 125, 381 S.E.2d 110, appellants contend Forcucci lacks standing to raise any conflict of interest issue with regard to appellants' counsel since Forcucci does not have an attorney-client relationship with appellants' counsel. In Reese, at 127, 381 S.E.2d 110, the Court of Appeals held that the plaintiff lacked standing to assert opposing counsel had a conflict of interest in representing simultaneously a corporate defendant and an employee of that corporation in a personal injury action because that objection "`is available only to those as to whom the attorney in question sustains, or has sustained, the relation of attorney and client.'" See also Piedmont Hosp. v. Reddick, 267 Ga.App. 68(7)(c), 599 S.E.2d 20 (2004); Johnson v. Prime Bank, 219 Ga.App. 29, 464 S.E.2d 24 (1995). On June 12, 2000, however, this Court issued an order which adopted the afore-mentioned Georgia Rules of Professional Conduct in place of the Canon of Ethics, effective January 1, 2001. The Rules prescribe terms for resolving conflict "among a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person[,]" and are "rules of reason ... designed to provide guidance to lawyers." Ga. Rules of Prof. Conduct, Preamble, Par. 8, 13, 18. Each Rule is accompanied by a Comment which "explains and illustrates the meaning and purpose of the Rule" and is intended to serve as a guide to interpretation. Id., Par. 21. Because the representation at issue took place after the effective date of the Georgia Rules of Professional Conduct, and because "it would be injudicious for this court to employ a rule of disqualification that could not be reconciled with the ... Rules of Professional Conduct," the Rules are relevant to the case at bar. Ayres v. Canales, 790 S.W.2d 554, 557 (Tex.1990). Comment 15 to Rule 1.7 places the primary responsibility for resolving questions of conflict of interest on the lawyer undertaking the representation. A court may raise the question when, in litigation, there is reason to infer the lawyer has neglected the responsibility, and opposing counsel may raise the question "[w]here the conflict is such as clearly to call into question the fair or efficient administration of justice ..." Id. The Comment goes on to advise that an objection from opposing counsel "should be *779 viewed with caution ... for it can be misused as a technique of harassment." In order for counsel to have standing to raise the issue of an opposing lawyer having a conflict of interest in simultaneously representing multiple plaintiffs or defendants, there must be a violation of the rules which is sufficiently severe to call in question the fair and efficient administration of justice (In re Robinson, 90 S.W.3d 921, 925 (Tex.App.2002)), and opposing counsel must provide substantiation. Meehan v. Antonino, supra, 2002 WL 31559712 (Conn.Super.2002) (unpub. op.). See also Anderson Trucking Serv. v. Gibson, supra, 884 So.2d 1046. The trial court did not apply this standard to determine whether opposing counsel had standing to inquire whether Higgins & Dubner had a conflict of interest in representing Bernocchi and the two corporate defendants simultaneously. Accordingly, we vacate the order disqualifying counsel from simultaneous representation of the three defendants and remand the case to the trial court for consideration of the motion pursuant to the standard set forth in Rule 1.7(b) and the accompanying Comments. Judgment reversed and case remanded with direction. All the Justices concur.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Nos. 14-50154 Plaintiff-Appellee, 14-50157 v. D.C. Nos. 13-CR-3970-LAB RAUL ANTONIO CRUZ-MENDEZ, 08-CR-3618-LAB Defendant-Appellant. OPINION Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted October 21, 2015* Pasadena, California Filed January 27, 2016 Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen, Circuit Judges, and Michael A. Ponsor, Senior District Judge.** Opinion by Judge Ponsor * The panel unanimously concluded this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Michael A. Ponsor, Senior District Judge for the U.S. District Court for Massachusetts, sitting by designation. 2 UNITED STATES V. CRUZ-MENDEZ SUMMARY*** Criminal Law The panel affirmed a sentence for possession of 100 kilograms or more of marijuana on a vessel, and a consecutive sentence for violation of the terms of supervised release imposed in a prior case. The panel held that the district court did not err in applying a two-level “pilot/captain” enhancement under U.S.S.G. § 2D1.1(b)(3)(C), which applies where the defendant “acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance.” The panel rejected the defendant’s assertion that, because he simply operated a panga by standing at the tiller of the outboard motor, he lacked the requisite special skills or authority on the vessel to support the imposition of the enhancement. The panel explained that the fact that the Guidelines commentary acknowledges that pilots and boat captains may use “special skills” also subject to an adjustment under U.S.S.G. § 3B1.3 and dictates that the two sections may not both apply to the same conduct does not mean that § 2D1.1(b)(3) can only apply where such special skills are demonstrated by a pilot or captain. The panel concluded that the 92-month total sentence was not substantively unreasonable. *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  UNITED STATES V. CRUZ-MENDEZ 3 COUNSEL Sarah R. Weinman, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant. Laura E. Duffy, United States Attorney; Bruce R. Castetter and Steve Miller, Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee. OPINION PONSOR, Senior District Judge: Defendant Raul Cruz-Mendez received an eighty-month sentence after pleading guilty to possessing one-hundred kilograms or more of marijuana on a vessel. In the same sentencing proceeding, he received a consecutive twelve- month sentence for violation of the terms of supervised release imposed in a prior case. On appeal, he raises two issues. First, Cruz-Mendez challenges the district court’s imposition of a two-level enhancement to his offense level for the marijuana conviction, as contemplated under U.S.S.G. § 2D1.1(b)(3)(C) (the “pilot/captain” enhancement). Second, he contends that the combined sentence of ninety-two months was substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm. BACKGROUND The underlying facts are not significantly disputed. On October 5, 2013, Customs and Border Protection agents 4 UNITED STATES V. CRUZ-MENDEZ aerially observed two men operating a so-called “panga” vessel1 off the coast of Ensenada, Mexico, heading northwest toward the United States. They also spotted several bales of suspected narcotics visible in the open hull. Shortly afterwards, a U.S. Coast Guard vessel initiated an interception of the panga, during which the helicopter crew observed defendant and another man dumping bales overboard. Warning shots from the Coast Guard vessel, and finally disabling gunfire directed at the engine, ultimately succeeded in bringing the panga to a stop, whereupon law enforcement agents recovered thirty-one bales of marijuana totaling over 568 kilograms. Cruz-Mendez and a co- defendant were arrested for possession of marijuana with intent to distribute, on a vessel, in violation of 46 U.S.C. §§ 70503 and 70506. At the time of his arrest, Cruz-Mendez was on supervised release for a 2008 conviction for transporting undocumented aliens in a vessel, in violation of 8 U.S.C. § 1324.2 On December 5, 2013, Cruz-Mendez pled guilty to the marijuana charge, and on January 6, 2014, he admitted to a violation of the terms of supervised release imposed in connection with his 2008 conviction. A consolidated sentencing hearing took place on April 1, 2014. The presentence report filed by the probation department included application of the two-level “pilot/captain” enhancement for the specific offense characteristic of acting 1 A panga boat is “an open-bow vessel commonly used for smuggling.” United States v. Ramos-Atondo, 732 F.3d 1113, 1117 (9th Cir. 2013). 2 Cruz-Mendez had one additional earlier conviction in 2007 for possession with intent to sell marijuana.  UNITED STATES V. CRUZ-MENDEZ 5 “as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance[.]” U.S.S.G. § 2D1.1(b)(3)(C). With the enhancement, the probation department calculated Cruz- Mendez’s guideline range to be seventy to eighty-seven months. After Cruz-Mendez objected to the two-level increase, the probation department filed an addendum asserting that, because Cruz-Mendez and his co-defendant possessed the skill of being able to pilot a vessel and exercised that skill in furtherance of their crime, the two-level increase was warranted. The government recommended a sentence of sixty months, based on a sentencing guidelines range of sixty to seventy-one months, which did not include the two-level upward adjustment. At the hearing, the district court overruled Cruz-Mendez’s objection to the application of the “pilot/captain” enhancement. Specifically, Cruz-Mendez argued that he and his co-defendant had equal responsibility on the boat, with each piloting the boat at different points of the voyage. The court determined that, by the Coast Guard’s observation and by his own admission, Cruz-Mendez was operating the panga and was therefore the pilot of the vessel under the plain text of the enhancement. After recognizing the parties’ agreement that the starting offense level was twenty-eight, the district court increased the level by two with the application of the “pilot/captain” enhancement. With a three-level reduction for acceptance of responsibility and a four-level reduction based on the district’s “fast track” program, the offense level was twenty- three, with a criminal history category of IV, generating a sentencing guideline range of seventy to eighty-seven months. The court imposed upon Cruz-Mendez a sentence in 6 UNITED STATES V. CRUZ-MENDEZ the middle of this range: eighty months. With regard to the violation of supervised release the district court found, without objection, that the sentencing guideline range was fifteen to twenty-one months, but varied to a below-guideline sentence of twelve months, consecutive to the eighty-month sentence on the marijuana charge, resulting in a total of ninety-two months. Cruz-Mendez filed a timely notice of appeal contesting both the application of the “pilot/captain” enhancement and the substantive reasonableness of the total sentence. STANDARD OF REVIEW We review the district court’s interpretation of the Sentencing Guidelines de novo and its application of the Guidelines to the facts of the case for abuse of discretion. United States v. Garcia-Guerrero, 635 F.3d 435, 438 (9th Cir. 2011). We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). DISCUSSION A. Interpretation and Application of the Enhancement Cruz-Mendez contends that the district court’s use of the “pilot/captain” enhancement to increase his offense level was legal error because the plain meaning of the terms “pilot,” “captain,” “navigator,” and “officer,” as well as the Guidelines commentary, structure, and legislative history, all support a narrow reading of the enhancement such that it applies only to individuals either who occupied a position of authority on the vessel or who possessed “special skills”  UNITED STATES V. CRUZ-MENDEZ 7 aboard the ship. Cruz-Mendez asserts that, because he simply operated a panga by standing at the tiller of the outboard motor, he lacked the requisite special skills or authority on the vessel to support the imposition of the enhancement. The proper application of a “pilot/captain” enhancement is an issue of first impression in this circuit. We agree with every other circuit court to consider this issue – the First, Fifth, Seventh, and Eleventh – and hold that the proper reading of the “pilot/captain” enhancement is not as constrained as Cruz-Mendez suggests. See United States v. Bautista-Montelongo, 618 F.3d 464, 466–67 (5th Cir. 2010) (adopting the holdings of the First, Seventh, and Eleventh Circuit Courts of Appeals that the enhancement applied to a defendant who “drove a boat containing contraband”); United States v. Rendon, 354 F.3d 1320, 1329 (11th Cir. 2003) (declining to adopt a technical definition of “captain” and applying it to a defendant who operated a boat); United States v. Senn, 129 F.3d 886, 896–97 (7th Cir. 1997) (stating that “the plain language of the statute carries the day” and declining to find that a pilot or captain must have special skills), abrogated on other grounds, United States v. Vizcarra, 668 F.3d 516, 523 n.2 (7th Cir. 2012); United States v. Guerrero, 114 F.3d 332, 346 (1st Cir. 1997) (finding that the term “pilot” did not require proof of any special skill or authority, only evidence that the person steered the vessel). The plain language of § 2D1.1(b)(3)(C), which calls for a two-level enhancement where “the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance” (emphasis added), is strongly indicative of a broad scope, not dependent on a finding of any particular formal training or type of boat. See United States v. Shill, 8 UNITED STATES V. CRUZ-MENDEZ 740 F.3d 1347, 1351 (9th Cir. 2014) (stating that “analysis begins and ends with the ordinary meaning of the statutory language”). The fact that the Guidelines commentary acknowledges that pilots and boat captains may use “special skills” also subject to a two-level adjustment under § 3B1.3 and dictates that the two sections may not both apply to the same conduct does not mean, as Cruz-Mendez would have it, that § 2D1.1(b)(3)(C) can only apply where such special skills are demonstrated by a pilot or captain. Such a reading would lead to complete overlap between the two sections, and would also ignore situations where an individual obviously assumed the role of pilot or captain but demonstrated little skill in doing so. See Senn, 129 F.3d at 890 (upholding application of the enhancement where defendant was listed as captain on customs documents and directed boat operations, but journey involved several stops for repairs, a stop for fuel, and a stop to ask directions from a passing freighter, followed by difficulty locating Jamaica). As with our sister circuits, we decline to apply “rigid requirements of professionalism” to the “pilot/captain” enhancement and instead opt for a “common sense approach.” Bautista-Montelongo, 618 F.3d at 467. We find no error in the application of the “pilot/captain” enhancement on the facts of this case. By Cruz-Mendez’s own account, he was a lifelong fisherman hired to transport marijuana bales, and in so doing he operated a boat laden with substantial cargo in open water by controlling both its speed and direction.3 Such conduct fully justifies the 3 While Cruz-Mendez highlights that he had no authority over his co- defendant, he does not argue that his co-defendant had any authority over him while they were on the panga. See Bautista-Montelongo, 618 F.3d at 466–67 (upholding application of enhancement to career fisherman who,  UNITED STATES V. CRUZ-MENDEZ 9 imposition of the two-point enhancement. Cf. United States v. Cartwright, 413 F.3d 1295, 1299 (11th Cir. 2005) (upholding application of the enhancement where defendant was a lifelong fisherman who was one of several men who drove the boat). B. Reasonableness of the Sentence The district court’s imposition of the twelve-month sentence for violation of supervised release consecutive to the eighty-month sentence for possession of marijuana on a vessel, resulting in a global sentence of ninety-two months, was not an abuse of discretion. See Autery, 555 F.3d at 871. In fact, the district court exercised its discretion in departing downward from the Guidelines range, “just not by as many months as [the defendant] requested.” United States v. Ayala- Nicanor, 659 F.3d 744, 752 (9th Cir. 2011). Under these circumstances, we cannot say that the below-Guidelines sentence was substantively unreasonable. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. inter alia, did not use navigational tools and had no crew other than co- conspirator).