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Filed 8/26/16 P. v. Auther CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, A143134 v. SEAN AUTHER, (Solano County Super. Ct. No. VCR217389) Defendant and Appellant. Sean Auther was convicted by a jury of one count of possession of a controlled substance. He contends the court erred in denying his motion to suppress evidence and ordering him to pay $2000 in attorney’s fees. The court properly denied the motion to suppress, but we agree that lack of notice regarding Mr. Auther’s potential responsibility for attorneys’ fees invalidates the fee order. Accordingly, we affirm the judgment but strike the fee order. BACKGROUND The following evidence was introduced at the combined preliminary hearing and motion to suppress. On the night of March 23, 2013, Solano County Sheriff’s Deputy Coy Caulfield was on patrol with his partner when he observed Auther riding a bicycle in front of the patrol car, traveling the same direction. As Deputy Caulfield approached a four-way intersection marked with stop signs in each direction he saw Auther ride through the intersection without stopping. Caulfield stopped Auther and asked him to provide identification. Auther said he did not have any identification on him and refused to give the officer his name. The 1 officer smelled marijuana, so he asked Auther “if he had something.” Auther said there was methamphetamine in his pocket. A search produced two baggies containing methamphetamine and a small amount of marijuana. Auther was read his Miranda rights, said he understood them, and told Officer Caulfield he did not stop because he didn’t see any headlights approaching the intersection. He also said the methamphetamine was for his personal use and that he does not sell it. He was subsequently charged with one count of possessing a controlled substance. Auther’s friend Joseph Manibusan testified that on the night Auther was stopped he, Auther and some other friends were playing ping-pong in a garage across the street from Manibusan’s house on Fulton Street. As Auther started to leave on foot around 10:30 p.m., Manibusan called him back and offered him a bicycle he could ride home. When Manibusan gave Auther the bike, the two men were about 10 feet from a stop sign at the intersection of Fulton and Ridge. Auther rode the bicycle in a circle, stopped five to ten feet from the stop sign to thank Manibusan and shake his hand, then rode away through the intersection. Wes Lancaster was part of the group in the garage that night. He also testified that Auther was five to 10 feet from the intersection when Manibusan gave him the bicycle, and that he rode in a circle, stopped to thank Manibusan, and then rode off through the intersection. At the suppression hearing defense counsel argued the stop was unjustified because Auther lawfully stopped his bicycle about five feet away from the stop sign. The magistrate disagreed, and explained: “ I don’t find that this was a stop at the limit line for purposes of analyzing this. [¶] I know that if I were at an intersection and a car was five feet behind and then stopped, then came back up to the line, I would expect that car to stop at the limit line before I chose to go. [¶] So, any event, I’m not aware of any clear line that says it has to be within X feet, but here I don’t find it was a stop at the limit line such that it would be unreasonable for the officer to make the detention. I find the officer had reasonable suspicion to detain the defendant for this violation.” 2  Auther renewed his motion to suppress pursuant to Penal Code section 1538.5,1 again without success. The trial court stated: “It’s an interesting argument. . . . I do think, when you think about it, in some circumstances there could be a problem with the vagueness of that statute in this context. [¶] Having said that, it seems to me that in finding all the witnesses were credible, what Judge Kam did is basically find that your client did make a stop but made a stop five feet away, not at what he thought was the intersection or the line, which is consistent with what your witnesses said and that based upon the specific [] facts that he considered he found that in that instance under those circumstances, that that was a—it was not unreasonable for the officer to deem that a violation and therefore he had probable cause, or had reasonable basis to proceed and make the stop. [¶] You know, five different people, based upon their driving habits, might have made five different findings. But I do think, given that’s what the magistrate did, I don’t think it’s my place in the universe to upset the factual analysis of the magistrate. [¶] You have an interesting legal argument about whether or not that statute is vague. But I don’t think that, ultimately, I don’t think, that that changes the analysis I just made.” Auther was convicted as charged, sentenced to three years’ probation, and ordered to pay attorneys’ fees of $2,000 pursuant to section 987.8. This timely appeal followed. DISCUSSION I. Motion to Suppress A. Legal Principles Where a motion to suppress is submitted to the superior court on the preliminary hearing transcript, “the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of 1 Unless otherwise noted, further statutory citations are to the Penal Code. 3 reasonableness.” (People v. Thompson (1990) 221 Cal.App.3d 923, 940.) We independently review the law and its application to the facts (People v. Carter (2005) 36 Cal .4th 1114, 1140) and affirm the trial court’s ruling if correct under any legal theory. (People v. Zapien (1993) 4 Cal.4th 929, 976.) With regard to a traffic stop, “Under the cases, an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.] The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case.” (People v. Wells (2006) 38 Cal.4th 1078, 1082–1083.) Vehicle Code section 22450, subdivision (a) provides that “The driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection shall stop at a limit line, if marked, otherwise before entering the crosswalk on the near side of the intersection. [¶] If there is no limit line or crosswalk, the driver shall stop at the entrance to the intersecting roadway.” Pursuant to Vehicle Code section 21200, subdivision (a), bicycle riders are subject to all provisions of the Vehicle Code applicable to drivers. B. Analysis Auther’s argument is premised on what he views as uncertainty as to the meaning of the Vehicle Code requirement that a driver (or, as in this case, cyclist) must stop “at” the limit line, or if there is no limit line or crosswalk, “at” the entrance to the intersection. (See Veh. Code, § 22450, subd. (a).) Observing that Vehicle Code section 22450 does not state how close the driver must come to the limit line, crosswalk or intersection to be deemed “at” it, he asserts the court should have used the dictionary definition of “at” as meaning “in, on, or near,” and thus ruled that “a stop five feet from the entrance of the intersection is ‘at’ the intersection for purposes of Vehicle Code section 22450, subdivision (a).” This interpretation, he argues, both complies with the rule of lenity and avoids the veritable Zeno’s paradox that arises from interpreting “at” to signify a precise point, as the People maintain, because “it is actually a physical impossibility” to stop a 4 car at a precise point “as there always exists a measureable distance between two objects.” We need not resolve this interesting question because the determinative issue is whether Deputy Caulfield reasonably believed Auther violated a traffic law. “[A] police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law.” (People v. Miranda (1993) 17 Cal.App.4th 917, 926 (italics omitted).) “ ‘If the facts are sufficient to lead an officer to reasonably believe that there was a violation, that will suffice, even if the officer is not certain about exactly what it takes to constitute a violation.’ ” (In re Justin K. (2002) 98 Cal.App.4th 695, 700.) “When assessing the reasonableness of a traffic stop, the question is not whether appellant actually violated the Vehicle Code, but whether there was some ‘ “objective manifestation” that [he] may have’ violated the Vehicle Code.” (People v. Durant (2012) 205 Cal.App.4th 57, 63, italics omitted.) Here, Deputy Caulfield testified he saw Auther ride through the intersection without stopping at the stop sign. The magistrate found Caulfield’s testimony credible, and on that basis found the officer had a reasonable basis to believe Auther had violated the law. Thus, even were we to assume a stop five feet from a stop sign satisfies section 22450—to be clear, we do not decide that issue—the detention was justified by the officer’s observation of an apparent violation. Substantial evidence supports the magistrate’s findings that Deputy Caulfield reasonably believed Auther failed to stop as required. The suppression motion was properly denied. II. Attorney’s fees Auther contends the trial court violated his due process rights when it ordered him to pay for court-appointed attorney’s fees without providing him the notice and opportunity to be heard required by statute. The People concede that the court failed to give adequate advisements, but contend Auther was not prejudiced. We disagree. 5  Background At the arraignment the court inquired about Auther’s employment and income. When Auther said he had none, the court offered to appoint the public defender but gave no indication that Auther might be responsible for attorney’s fees. There is no further mention of that possibility in the record until the sentencing hearing, at which, after deciding Auther was able to work, the trial court imposed attorney’s fees of $1500 for the first day of trial and $500 for the second. The court said, “If he does have a problem where he cannot work, then obviously he has a right to a hearing on all of this. . . . Obviously, he has the right to a hearing on all of this. That can be scheduled if need be.” Analysis Proceedings to charge a criminal defendant with paying attorney’s fees involve the taking of property and therefore require due process of law, including notice and a hearing. (People v. Smith (2000) 81 Cal.App.4th 630, 637 (Smith).) To that end, section 987.8, subdivision (f) directs that “[p]rior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. The notice shall inform the defendant that the order shall have the same force and effect as a judgment in a civil action and shall be subject to enforcement against the property of the defendant in the same manner as any other money judgment.” These provisions mandate that prior to the appointment of counsel the defendant receive ‘ “notice reasonably calculated, under all the circumstances” ’ to apprise him of the potential of his liability for the costs of legal representation and of the possible effects of an order to pay such costs.” (Smith at p. 637.) Here, the People concede that Auther was not advised pursuant to section 987.8, subdivision (f) before counsel was appointed. Instead, relying on Smith, they assert the error was not prejudicial because, as Auther had a colorable claim for a suppression motion, there is no basis to infer he would have foregone appointed counsel had he been 6 properly advised about his potential responsibility for fees. But Smith is inapposite. First, the defendant there had actual notice (even though technically inadequate) that he might have to pay his appointed counsel’s fees. (Smith, supra, 81 Cal.App.4th at pp. 637– 639.) Here, by contrast, there was a total failure to warn Auther of that possibility. Second, Smith did not claim he was prejudiced by the lack of notice and, specifically, did not suggest he would have foregone representation by appointed counsel had he been advised of his potential obligation to pay attorney’s fees. (Id. at p. 639.) Here, Auther asserts he might have decided to plead at the time of the arraignment if the court had warned him he could be liable for attorney’s fees. Even if, as the People suggest, it is illogical to suppose Auther would have declined appointed counsel to bring the motion to suppress, we cannot so readily dismiss his point that, once he lost that motion, he might well have declined to exercise his right to a jury trial had he known that doing so could subject him to thousands of dollars in attorney’s fees. Relying on People v. Scott (1994) 9 Cal.4th 331 (Scott), the People assert Auther waived the lack of notice by failing to object when the court imposed fees at the sentencing hearing. We disagree. By that time it was too late to rectify the error; no objection would have magically transported Auther back in time to the arraignment to decline appointed counsel. In any event, it would be unrealistic and unfair to charge defense counsel with knowing at the sentencing hearing that Auther had not been sufficiently advised under section 987.8, subdivision (f) before he was represented by counsel. Even Scott, which held that failure to object to a sentencing court's failure to articulate discretionary sentencing choices waives the issue on appeal, conditioned that finding of waiver on the existence of “a meaningful opportunity to object to the kinds of claims otherwise deemed waived by today's decision.” (Scott at p. 356) There was no such opportunity here and no possibility that a remand could cure the due process violation. Accordingly, the fee order must be stricken. This conclusion dispenses with the need to reach Auther’s further arguments that (1) there was insufficient evidence to support the finding of ability to pay fees, and (2) the trial court failed to determine the actual cost of Auther’s representation. 7  DISPOSITION The judgment is affirmed except as to the order requiring Auther to pay attorney’s fees, which we order stricken. _________________________ Siggins, J. We concur: _________________________ Pollak, Acting P.J. _________________________ Jenkins, J. 8 

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE In re the Marriage of: TASNEEM HALLOUM, Petitioner/Appellee, v. ADNAN HASASNEH, Respondent/Appellant No. 1 CA-CV 18-0353 FC FILED 4-16-2019 Appeal from the Superior Court in Maricopa County No. FC2016-095376 The Honorable Rodrick Coffey, Judge AFFIRMED COUNSEL Wees Law Firm LLC, Phoenix By James F. Wees Counsel for Petitioner/Appellee Thomas A. Morton PLLC, Phoenix By Thomas A. Morton Counsel for Respondent/Appellant  HALLOUM v. HASASNEH Decision of the Court MEMORANDUM DECISION Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge James B. Morse, Jr. and Judge Peter B. Swann joined. T H O M P S O N, Judge: ¶1 This appeal stems from a highly acrimonious divorce proceeding. Adnan Hasasneh (“appellant” or “husband”) appeals the trial court’s decision denying his motion for new trial. Appellant also appeals the trial court’s decision to preclude his expert’s report and testimony as evidence, as well as the trial court’s apportionment of marital assets and debts. For the following reasons we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Appellant and Tasneem Halloum (“appellee” or “wife”) were married September 23, 2012 in Arizona. They share two children together, aged 4 and 2. While married, the couple owned and ran a furniture store located in Chandler, Arizona (the “business”). The couple also kept $500,000 cash in the marital residence and wife owned jewelry valued at $100,000, which was also kept in the home. ¶3 On September 7, 2016, following a physical altercation, wife sought an order of protection against husband, which required him to move out of the marital residence.1 Wife alleged that shortly after she filed the petition for dissolution of marriage (the “petition”) in September 2016, husband began withdrawing money from the business accounts as well as moving inventory from the business to his father’s furniture store. By January 2017 the business was completely shut-down. Wife also alleged that prior to her filing the petition, husband removed the $500,000 cash from the home. She further alleged that in October 2016, husband broke into the house and stole the $100,000 worth of jewelry. Husband denies all allegations. 1Husband also obtained an order of protection against wife. Both parties appealed the orders of protection, however husband dropped his appeal, wife’s is still pending. Wife obtained a second order of protection after the original expired. 2  HALLOUM v. HASASNEH Decision of the Court ¶4 In February 2017 the court appointed a third-party valuator to determine the value of the business prior to husband shutting it down. After both parties submitted two possible valuators the court blindly chose one, Susannah Sabnekar of Sabnekar & Associates, PLLC, (“Ms. Sabnekar”). She determined that the business was worth $1,245,000 which included over $500,000 in cash that husband had withdrawn from business accounts. Ms. Sabnekar also reported that husband had not been cooperative and had failed to provide her with several documents. ¶5 The court set an original date of October 26, 2017 for the evidentiary hearing. The court ordered that all disclosures be made by September 26, 2017 except for expert disclosures, which were due 60 days before the hearing. On September 25, 2017, husband filed an expedited motion to continue trial. The court granted the motion and rescheduled the evidentiary hearing for January 25, 2018. Husband then disclosed an expert report on November 3, 2017. Wife filed a motion to preclude admission of untimely report and testimony (“motion to preclude”) and husband filed his response. The court granted wife’s motion to preclude, finding that the motion for continuation did not automatically extend the disclosure deadlines. ¶6 The evidentiary hearing was held on January 25, 2018. The court found that husband’s testimony regarding the cash and jewelry was not credible and therefore attributed those assets to him. The court then awarded the house to wife as well as half the value of the business after the cash and taxes were deducted from the total value. Husband filed a motion for new trial arguing that the court erred in precluding his expert’s report and testimony; attributing the cash and jewelry assets to him; in ordering him to be solely responsible for the tax debt; and for attributing $20,000 per month income to him when calculating child support. The motion for new trial was denied. Husband appealed. DISCUSSION ¶7 We review a trial court’s order denying a motion for new trial for an abuse of discretion. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10 (2003). “The trial court has broad discretion in deciding whether to grant or deny a motion for a new trial, and we will not overturn that decision absent a clear abuse of discretion.” Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10 (App. 2009) (citations and quotations omitted). We address each of appellant’s arguments in turn. 3  HALLOUM v. HASASNEH Decision of the Court I. Expert Report and Testimony ¶8 The trial court has broad discretion when ruling on disclosure and discovery matters and this court will not disturb an evidentiary ruling absent a clear abuse of discretion and resulting prejudice. Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013); Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506 (1996). ¶9 Husband first argues the court erred in precluding his expert report and testimony. Husband asserts that his disclosure was made 60 days before the continued trial date and therefore was timely under Arizona Rule of Family Law Procedure (ARFLP) 49(H). We disagree. ¶10 The trial court issued an order setting disclosure deadlines in June 2017. The order clearly set the deadline for expert disclosures as 60 days before the hearing date of October 26, 2017. That meant the deadline for expert disclosure was August 27, 2017. Husband did not file his motion to continue until almost a month later on September 25, 2017. By that time, he had already missed the deadline for disclosing experts. Husband argues that pursuant to Johnson v. Provoyeur, 245 Ariz. 239 (App. 2018) the continuance of the trial necessarily continued the deadline for disclosure. However, in Johnson, when the trial court continued the trial it also expressly reset the disclosure deadline to 60 days before the continued trial date. Id. at 241, ¶ 5. The trial court in this instance did not make such an order, and a continuation of a trial does not automatically reset disclosure deadlines. See State v. Superior Court, 127 Ariz. 175, 176 (1980) (holding that the “resetting of a trial date does not change the date by which pretrial motions must be filed unless so ordered by the trial court”). If husband wished to extend the deadline for disclosures he should have filed a motion to extend said deadline, he did not do so. ¶11 Although husband asserts that wife had notice that he would be using an expert and should have expected the report, that argument is not supported by the record. Husband points to the affidavit filed by the parties providing the court with names of possible neutral third-party valuators, which included the name of husband’s expert he eventually used. However, this is not sufficient notice for wife to know husband would be filing a separate expert report. The names provided on that list were for the judge to blindly choose from. If we are to follow husband’s logic he was also disclosing the other two names as his expert witness. ¶12 Furthermore, husband has not demonstrated prejudice resulting from the court’s decision precluding his expert report and 4  HALLOUM v. HASASNEH Decision of the Court witness. The court appointed Ms. Sabnekar as a neutral third-party valuator for the business. She provided a detailed report of what the business was worth and the related debts. Additionally, husband testified regarding the business and his personal valuation of it. As such there was no prejudice and the trial court did not abuse its discretion. II. Division of Community Property ¶13 When dividing community property at dissolution, the trial court must divide the property and debts “equitably, though not necessarily in kind.” Ariz. Rev. Stat. (“A.R.S.”) § 25-318(A). The trial court has broad discretion in apportioning community property between parties at dissolution, and we will not disturb its allocation absent an abuse of discretion. Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007) (citations omitted). The court commits an abuse of discretion if it “commits an error of law in the process of exercising its discretion.” Id. (quoting Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005)). We view the evidence in the light most favorable to upholding the trial court’s ruling and will sustain the ruling if it is reasonably supported by the evidence. Id. ¶14 Husband argues that the trial court erred when it attributed the $500,000 cash and $100,000 in jewelry to him and then awarded the marital home to wife. Husband asserts that the trial court’s determination that he had the cash and jewelry was not supported by the evidence and the trial court incorrectly relied on wife’s testimony. We disagree. ¶15 The trial court is in the best position to weigh the evidence and judge the credibility of the parties and an appellate court should give deference to the trial court’s conclusions. See In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. & Source, 198 Ariz. 330, 340, ¶ 25 (2000) (“The trial court, not this court, weighs the evidence and resolves any conflicting facts, expert opinions, and inferences therefrom.”); see also Mary Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004) (the trial court is “in the best position to weigh the evidence, judge the credibility of the parties, observe the parties, and make appropriate factual findings”). ¶16 Wife testified that husband kept a large sum of cash hidden in the home in a shoe box. Following a physical altercation between husband and wife, in which both party’s fathers intervened, wife witnessed husband give his father an item wrapped in a shirt. Shortly after witnessing this act, wife overheard her father-in-law tell someone that he needed to leave because his car was “loaded,” and he was worried about cash. Wife then went to check on the cash in its normal hiding place and it was gone. 5  HALLOUM v. HASASNEH Decision of the Court ¶17 Wife also testified that she had gold jewelry worth between $150,000 and $200,000 that she kept hidden in the house. Some of the jewelry was gifted from husband, who had been a gold dealer prior to the marriage, and others were family heirlooms. Wife testified that just before the hearing for temporary orders she saw husband driving around her neighborhood. She decided to take the children and leave the home. When she returned she saw that the front door was open, there was broken glass on the garage door and her jewelry was missing. Additionally, according to the police report, a neighbor saw a truck matching husband’s parked in the driveway the weekend the jewelry was taken. Although husband testified that he did not take any cash or jewelry, the trial court specifically found that husband’s testimony was not credible but wife’s was. ¶18 The trial court therefore attributed $600,000 to husband in cash and jewelry, and then awarded the marital residence worth approximately $380,000 to wife. Because the evidence supports the trial court’s determination that husband was in possession of approximately $600,000 of community property, it did not abuse its discretion in awarding wife the marital home, which was valued at less than the cash and jewelry. III. Tax Debt ¶19 Husband next argues that the trial court erred in apportioning 100% of the tax debt to him. This assertion is a misstatement of the trial court’s ruling. When dividing the business, the court specifically reduced the total value of the business by the $500,000 cash it awarded husband, as well as the $138,000 of taxes owed. The court then ordered husband to pay wife half the amount of that number. Thus, although husband is solely responsible for insuring the tax debt gets paid, wife’s portion of the community debt was deducted from her share of the business. Had the court truly apportioned the entire tax debt to husband he would have been required to pay wife an additional $69,000 for her share of the business. ¶20 Furthermore, the evidence shows that the distribution of property was unequally favorable towards husband. Husband was awarded $600,000 worth of community property while wife received the marital home worth roughly $380,000. This means husband was awarded $220,000 more in community assets than wife. Thus, the trial court did not err in its apportionment of the tax debt. 6  HALLOUM v. HASASNEH Decision of the Court IV. Income Calculation ¶21 Husband’s final argument is that the trial court erred in its determination of his income by attributing his income at $20,000 per month. Again, we disagree. ¶22 “Generally, we review child support awards for an abuse of discretion.” McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6 (App. 2002) (citation omitted). We will accept the trial court’s findings of fact unless they are clearly erroneous, but “draw our own legal conclusions from facts found or implied in the judgment.” Id. (quotations omitted). However, “we review whether a court can attribute greater income to a party de novo, because it is an issue of law.” Pullen, 223 Ariz. at 295, ¶ 9 (citation omitted). “Questions of what factors to apply to attribute income are legal questions.” Id. (citation omitted). “[W]hether the trial court properly applied those factors is reviewed deferentially.” Id. (citations omitted). ¶23 Under A.R.S. § 25-320(5)(E) (2019), “if earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a parent up to his or her earning capacity.” When determining whether to use actual income or earning capacity to calculate child support the trial court should consider five factors: (1) The reasons asserted by the party whose conduct is at issue; (2) The impact upon the obligee of considering the actual earnings of the obligor; (3) When the obligee’s conduct is at issue, the impact upon the obligor of considering the actual earnings of the obligee and thereby reducing the obligor’s financial contribution to the support order at issue; (4) Whether the party complaining of a voluntary reduction in income acquiesced in the conduct of the other party; and (5) The timing of the action in question in relation to the entering of a decree or the execution of a written agreement between the parties. Pullen, 223 Ariz. at 297, ¶ 15 (citation omitted). ¶24 Husband’s 2015 income tax reports that he had an adjusted gross income of approximately $450,000. Additionally, when the court entered temporary child support orders in November 2016, it determined that husband’s gross monthly income was approximately $29,000. After the temporary orders were filed husband shut down the business. He then began working at Dillard’s making $2,300 per month. Although husband testified that the business took a significant downturn in 2016, and that he 7  HALLOUM v. HASASNEH Decision of the Court would have had to move locations to keep the business open, the only evidence husband offered for proof of the downturn were notices of late and unpaid rent for the business. The court did not find his testimony credible. ¶25 The court applied the five factors enumerated in Pullen, and made findings as to each factor. As to factor one, the court found that husband deliberately shut down the business in order to minimize his financial obligations to wife. As to factor two, the court determined that wife and the children would be significantly impacted if it calculated husband’s child support obligation using his retail sales income instead of husband’s earning capacity when operating the business. When looking at factor three and four the court determined that wife’s conduct was not at issue and that she did not acquiesce or agree to husband’s unilateral decision to close the business. As to factor five, the court found that husband closed the business within a couple of weeks after wife sought temporary orders. ¶26 The court therefore found that husband’s change in income was not justifiable or reasonable. Nonetheless, the court reduced husband’s income by $10,000 to account for the possible increase in rent for the business and attributed $20,000 monthly income to husband. After calculating child support owed using the child support work sheet, the court determined husband owed approximately $2,000 per month. However, because wife’s pretrial statement indicated that $1,085 was enough child support, the court reduced the monthly amount to $1,250. ¶27 The trial court properly applied the five factors in determining whether to attribute a greater income to husband and did not abuse its discretion in its determination of each. We therefore affirm the trial court’s order attributing greater income to husband. V. Attorneys’ Fees ¶28 Both parties have requested attorney’s fees and costs. We deny husband’s request. We grant wife’s request pursuant to A.R.S. § 25- 324 (2019) in an amount to be determined upon compliance with Arizona Rule of Civil Appellate Procedure 21. 8  HALLOUM v. HASASNEH Decision of the Court CONCLUSION ¶29 For the foregoing reasons we affirm the trial court’s ruling and grant wife’s request for attorneys’ fees. AMY M. WOOD • Clerk of the Court FILED: AA 9 

38 F.3d 570 Mirandav.Collins* NO. 93-09133 United States Court of Appeals,Fifth Circuit. Oct 12, 1994 1 Appeal From: N.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

108 F.3d 336 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.Michael Alexander CHRISTOPHER, Plaintiff-Appellant,v.James GOMEZ; C/O Gaboa; C/O Gabbie; C/O Yoder; L.Snider, Defendants-Appellees. No. 96-15034. United States Court of Appeals, Ninth Circuit. Submitted Feb. 18, 1997.*Decided Feb. 20, 1997. Before: ALARCN, CANBY, and TASHIMA, Circuit Judges. 1 MEMORANDUM** 2 Michael Alexander Christopher, a California state prisoner, appeals pro se the district court's summary judgment in favor of defendant prison officials in Christopher's 42 U.S.C § 1983 action alleging that he was denied constitutionally adequate access to the prison law library. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 3 Christopher contends that the district court erred by granting defendants an extension of time to file a late motion for summary judgment.1 This contention lacks merit. 4 "[W]e review decisions involving pretrial scheduling orders issued pursuant to Federal Rule of Civil Procedure 16 for an abuse of discretion." Janicki Logging Co. v. Mateer, 42 F.3d 561, 563 (9th Cir.1994). Here, in support of their request for an extension of time to file their summary judgment motion, defendants submitted a declaration from their attorney stating that he had been recently assigned to the case, and that the documents he requested with respect to Christopher's access claim contained over one thousand pages. The district court did not abuse its discretion by granting the defendants' request to file a late summary judgment motion. See id. 5 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. See 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 Christopher fails to raise the issue of whether the district court erred by granting summary judgment for defendants on his section 1983 action. Nonetheless, the district court did not err because Christopher failed to allege that he suffered an actual injury to court access. See Lewis v. Casey, 116 S.Ct. 2174, 2179-80 (1996); see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir.1994)

206 U.S. 46 (1907) KANSAS v. COLORADO et al. DEFENDANTS, AND THE UNITED STATES, INTERVENOR. No. 3, Original. Supreme Court of United States. Argued December, 17, 18, 19, 20, 1906. Decided May 13, 1907. IN EQUITY. *57 Mr. C.C. Coleman, Attorney General of the State of Kansas, Mr. S.S. Ashbaugh, Mr. N.H. Loomis and Mr. F. Dumont Smith for complainant. Mr. N.C. Miller, Attorney General of the State of Colorado, Mr. Joel F. Vaile and Mr. Clyde C. Dawson, with whom Mr. Charles D. Hayt, Mr. Platt Rogers, Mr. C.W. Waterman, Mr. F.E. Gregg, Mr. W.R. Ramsey and Mr. I.B. Melville were on the brief, for the State of Colorado. The Solicitor General, Mr. Assistant Attorney General Campbell and Mr. A.C. Campbell, with whom The Attorney General was on the brief, for the United States. Mr. David C. Beaman, with whom Mr. Cass E. Herrington and Mr. Fred Herrington were on the brief, for the defendant, The Colorado Fuel & Iron Company. Mr. Platt Rogers, with whom Mr. John F. Shafroth and Mr. Frank E. Gregg were on the brief, for the defendant, The Arkansas Valley Sugar Beet and Irrigated Land Company. *80 Mr. C.C. Goodale filed a separate brief on behalf of the defendant, the Graham Ditch Company. MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court. While we said in overruling the demurrer that "this court, speaking broadly, has jurisdiction," we contemplated further consideration of both the fact and the extent of our jurisdiction, to be fully determined after the facts were presented. We therefore commence with this inquiry. And first of our jurisdiction of the controversy between Kansas and Colorado. This suit involves no question of boundary or of the limits of territorial jurisdiction. Other and incorporeal rights are claimed by the respective litigants. Controversies between the States are becoming frequent, and in the rapidly changing conditions of life and business are likely to become still more so. Involving as they do the rights of political communities, which in many respects are sovereign and independent, they present not infrequently questions of far-reaching import and of exceeding difficulty. It is well, therefore, to consider the foundations of our jurisdiction over controversies between States. It is no longer open to question that by the Constitution a nation was brought into being, and that that instrument was not merely operative to establish a closer union or league of States. Whatever powers of government were granted to the Nation or reserved to the States (and for the description and limitation of those powers we must always accept the Constitution as alone and absolutely controlling), there was created a nation to be known as the United States of America, and as such then assumed its place among the nations of the world. The first resolution passed by the convention that framed the Constitution, sitting as a committee of the whole, was: "Resolved, That it is the opinion of this committee that a national government ought to be established, consisting of a *81 supreme legislative, judiciary, and executive." 1 Eliot's Debates, 151. In M'Culloch v. State of Maryland, 4 Wheat. 316, 404, Chief Justice Marshall said: "The government of the Union, then (whatever may be the influence of this fact on the case), is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." See also Martin v. Hunter's Lessee, 1 Wheat. 304, 324, opinion by Mr. Justice Story. In Dred Scott v. Sandford, 19 How. 393, 441, Chief Justice Taney observed: "The new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one. But, when the present United States came into existence under the new government, it was a new political body, a new nation, then for the first time taking its place in the family of nations." And in Miller on the Constitution of the United States, p. 83, referring to the adoption of the Constitution, that learned jurist said: "It was then that a nation was born." In the Constitution are provisions in separate articles for the three great departments of government — legislative, executive and judicial. But there is this significant difference in the grants of powers to these departments: The first article, treating of legislative powers, does not make a general grant of legislative power. It reads: "Article I, Section 1. All legislative powers herein granted shall be vested in a Congress," etc.; and then in Article VIII mentions and defines the legislative powers that are granted. By reason of the fact that there is no general grant of legislative power it has become an accepted constitutional rule that this is a government of enumerated powers. *82 In M'Culloch v. State of Maryland, supra, 405, Chief Justice Marshall said: "This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted." On the other hand, in Article III, which treats of the judicial department — and this is important for our present consideration — we find that section 1 reads that "the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." By this is granted the entire judicial power of the Nation. Section 2, which provides that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States," etc., is not a limitation nor an enumeration. It is a definite declaration, a provision that the judicial power shall extend to — that is, shall include — the several matters particularly mentioned, leaving unrestricted the general grant of the entire judicial power. There may be, of course, limitations on that grant of power, but if there are any they must be expressed, for otherwise the general grant would vest in the courts all the judicial power which the new Nation was capable of exercising. Construing this article in the early case of Chisholm v. Georgia, 2 Dall. 419, the court held that the judicial power of the Supreme Court extended to a suit brought against a State by a citizen of another State. In announcing his opinion in the case, Mr. Justice Wilson said (p. 453): "This question, important in itself, will depend on others more important still; and may, perhaps, be ultimately resolved into one, no less radical than this — Do the people of the United States form a nation?" In reference to this question attention may, however, properly be called to Hans v. Louisiana, 134 U.S. 1. *83 The decision in Chisholm v. Georgia led to the adoption of the Eleventh Amendment to the Constitution, withdrawing from the judicial power of the United States every suit in law or equity commenced or prosecuted against one of the United States by citizens of another State or citizens or subjects of a foreign state. This Amendment refers only to suits and actions by individuals, leaving undisturbed the jurisdiction over suits or actions by one State against another. As said by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 407: "The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by States." See also South Dakota v. North Carolina, 192 U.S. 286. Speaking generally, it may be observed that the judicial power of a nation extends to all controversies justiciable in their nature, the parties to which or the property involved in which may be reached by judicial process, and when the judicial power of the United States was vested in the Supreme and other courts all the judicial power which the Nation was capable of exercising was vested in those tribunals, and unless there be some limitations expressed in the Constitution it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the Nation, no matter who may be the parties thereto. This general truth is not inconsistent with the decisions that no suit or action can be maintained against the Nation in any of its courts without its consent, for they only recognize the obvious truth that a nation is not without its consent subject to the controlling action of any of its instrumentalities or agencies. The creature cannot rule the creator. Kawananakoa v. Polyblank, Trustee, &c., 205 U.S. 349. Nor is it inconsistent with the ruling in Wisconsin v. Pelican Insurance Company, 127 U.S. 265, that an original action cannot be maintained in this court by one State to enforce its penal laws against a citizen of another State. That was no denial of the jurisdiction of the court, but a decision upon the merits of the claim of the State. These considerations lead to the propositions that when a *84 legislative power is claimed for the National Government the question is whether that power is one of those granted by the Constitution, either in terms or by necessary implication, whereas in respect to judicial functions the question is whether there be any limitations expressed in the Constitution on the general grant of national power. We may also notice a matter in respect thereto referred to at length in Missouri v. Illinois & Chicago District, 180 U.S. 208, 220. The ninth article of the Articles of Confederation provided that "the United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States, concerning boundary, jurisdiction or any other cause whatever." In the early drafts of the Constitution provision was made giving to the Supreme Court "jurisdiction of controversies between two or more States, except such as shall regard territory or jurisdiction," and also that the Senate should have exclusive power to regulate the manner of deciding the disputes and controversies between the States respecting jurisdiction or territory. As finally adopted, the Constitution omits all provisions for the Senate taking cognizance of disputes between the States and leaves out the exception referred to in the jurisdiction granted to the Supreme Court. That carries with it a very direct recognition of the fact that to the Supreme Court is granted jurisdiction of all controversies between the States which are justiciable in their nature. "All the States have transferred the decision of their controversies to this court; each had a right to demand of it the exercise of the power which they had made judicial by the Confederation of 1781 and 1788; that we should do that which neither States nor Congress could do, settle the controversies between them." Rhode Island v. Massachusetts, 12 Pet. 657, 743. Under the same general grant of judicial power jurisdiction over suits brought by the United States has been sustained. United States v. Texas, 143 U.S. 621; S.C., 162 U.S. 1; United States v. Michigan, 190 U.S. 379. *85 The exemption of the United States to suit in one of its own courts without its consent has been repeatedly recognized. Kansas v. United States, 204 U.S. 331, 341, and cases cited. Turning now to the controversy as here presented, it is whether Kansas has a right to the continuous flow of the waters of the Arkansas River, as that flow existed before any human interference therewith, or Colorado the right to appropriate the waters of that stream so as to prevent that continuous flow, or that the amount of the flow is subject to the superior authority and supervisory control of the United States. While several of the defendant corporations have answered, it is unnecessary to specially consider their defenses, for if the case against Colorado fails it fails also as against them. Colorado denies that it is in any substantial manner diminishing the flow of the Arkansas River into Kansas. If that be true then it is in no way infringing upon the rights of Kansas. If it is diminishing that flow has it an absolute right to determine for itself the extent to which it will diminish it, even to the entire appropriation of the water? And if it has not that absolute right is the amount of appropriation that it is now making such an infringement upon the rights of Kansas as to call for judicial interference? Is the question one solely between the States or is the matter subject to national legislative regulation, and, if the latter, to what extent has that regulation been carried? Clearly this controversy is one of a justiciable nature. The right to the flow of a stream was one recognized at common law, for a trespass upon which a cause of action existed. The primary question is, of course, of national control. For, if the Nation has a right to regulate the flow of the waters, we must inquire what it has done in the way of regulation. If it has done nothing the further question will then arise, what are the respective rights of the two States in the absence of national regulation? Congress has, by virtue of the grant to it of power to regulate commence "among the several States," extensive control over the highways, natural or artificial, upon which such commerce may be carried. It may prevent or remove *86 obstructions in the natural waterways and preserve the navigability of those ways. In United States v. Rio Grande Irrigation Company, 174 U.S. 690, in which was considered the validity of the appropriation of the water of a stream by virtue of local legislation, so far as such appropriation affected the navigability of the stream, we said (p. 703): "Although this power of changing the common law rule as to streams within its dominion undoubtedly belongs to each State, yet two limitations must be recognized: First, that in the absence of specific authority from Congress a State cannot by its legislation destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the Government property. Second, that it is limited by the superior power of the General Government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. In other words, the jurisdiction of the General Government over interstate commerce and its natural highways vests in that Government the right to take all needed measures to preserve the navigability of the navigable watercourses of the country even against any state action." It follows from this that if in the present case the National Government was asserting, as against either Kansas or Colorado, that the appropriation for the purposes of irrigation of the waters of the Arkansas was affecting the navigability of the stream, it would become our duty to determine the truth of the charge. But the Government makes no such contention. On the contrary, it distinctly asserts that the Arkansas River is not now and never was practically navigable beyond Fort Gibson in the Indian Territory, and nowhere claims that any appropriation of the waters by Kansas or Colorado affects its navigability. It rests its petition of intervention upon its alleged duty of legislating for the reclamation of arid lands; alleges that in or near the Arkansas River, as it runs through Kansas and Colorado, *87 are large tracts of those lands; that the National Government is itself the owner of many thousands of acres; that it has the right to make such legislative provision as in its judgment is needful for the reclamation of all these arid lands and for that purpose to appropriate the accessible waters. In support of the main proposition it is stated in the brief of its counsel: "That the doctrine of riparian rights is inapplicable to conditions prevailing in the arid region; that such doctrine, if applicable in said region, would prevent the sale, reclamation, and cultivation of the public arid lands, and defeat the policy of the Government in respect thereto; that the doctrine which is applicable to conditions in said arid region, and which prevails therein, is that the waters of natural streams may be used to irrigate and cultivate arid lands, whether riparian or non-riparian, and that the priority of appropriation of such waters and the application of the same for beneficial purposes establishes a prior and superior right." In other words, the determination of the rights of the two States inter sese in regard to the flow of waters in the Arkansas River is subordinate to a superior right on the part of the National Government to control the whole system of the reclamation of arid lands. That involves the question whether the reclamation of arid lands is one of the powers granted to the General Government. As heretofore stated, the constant declaration of this court from the beginning is that this Government is one of enumerated powers. "The Government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication." Story, J., in Martin v. Hunter's Lessee, 1 Wheat. 304, 326. "The Government of the United States is one of delegated, limited, and enumerated powers." United States v. Harris, 106 U.S. 629, 635. Turning to the enumeration of the powers granted to Congress by the eighth section of the first article of the Constitution, *88 it is enough to say that no one of them by any implication refers to the reclamation of arid lands. The last paragraph of the section which authorizes Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof, is not the delegation of a new and independent power, but simply provision for making effective the powers theretofore mentioned. The construction of that paragraph was precisely stated by Chief Justice Marshall in these words: "We think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional" — a statement which has become the settled rule of construction. From this and other declarations it is clear that the Constitution is not to be construed technically and narrowly, as an indictment, or even as a grant presumably against the interest of the grantor, and passing only that which is clearly included within its language, but as creating a system of government whose provisions are designed to make effective and operative all the governmental powers granted. Yet while so construed it, still is true that no independent and unmentioned power passes to the National Government or can rightfully be exercised by the Congress. We must look beyond section 8 for Congressional authority over arid lands, and it is said to be found in the second paragraph of section 3 of Article IV, reading: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging *89 to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." The full scope of this paragraph has never been definitely settled. Primarily, at least, it is a grant of power to the United States of control over its property. That is implied by the words "territory or other property." It is true it has been referred to in some decisions as granting political and legislative control over the Territories as distinguished from the States of the Union. It is unnecessary in the present case to consider whether the language justifies this construction. Certainly we have no disposition to limit or qualify the expressions which have heretofore fallen from this court in respect thereto. But clearly it does not grant to Congress any legislative control over the States, and must, so far as they are concerned, be limited to authority over the property belonging to the United States within their limits. Appreciating the force of this, counsel for the Government relies upon "the doctrine of sovereign and inherent power," adding "I am aware that in advancing this doctrine I seem to challenge great decisions of the court, and I speak with deference." His argument runs substantially along this line: All legislative power must be vested in either the state or the National Government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the Nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain *90 by the Tenth Amendment. This amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future further powers seemed necessary they should be granted by the people in the manner they had provided for amending that act. It reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The argument of counsel ignores the principal factor in this article, to wit, "the people." Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it, "we the people of the United States," not the people of one State, but the people of all the States, and Article X reserves to the people of all the States the powers not delegated to the United States. The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This Article X is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and *91 liberally so as to give effect to its scope and meaning. As we said, construing an express limitation on the powers of Congress, in Fairbank v. United States, 181 U.S. 283, 288: "We are not here confronted with a question of the extent of the powers of Congress but one of the limitations imposed by the Constitution on its action, and it seems to us clear that the same rule and spirit of construction must also be recognized. If powers granted are to be taken as broadly granted and as carrying with them authority to pass those acts which may be reasonably necessary to carry them into full execution; in other words, if the Constitution in its grant of powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that where prohibition or limitation is placed upon the power of Congress that prohibition or limitation should be enforced in its spirit and to its entirety. It would be a strange rule of construction that language granting powers is to be liberally construed and that language of restriction is to be narrowly and technically construed. Especially is this true when in respect to grants of powers there is as heretofore noticed the help found in the last clause of the eighth section, and no such helping clause in respect to prohibitions and limitations. The true spirit of constitutional interpretation in both directions is to give full, liberal construction to the language, aiming ever to show fidelity to the spirit and purpose." This very matter of the reclamation of arid lands illustrates this: At the time of the adoption of the Constitution within the known and conceded limits of the United States there were no large tracts of arid land, and nothing which called for any further action than that which might be taken by the legislature of the State, in which any particular tract of such land was to be found, and the Constitution, therefore, makes no provision for a national control of the arid regions or their reclamation. But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands *92 which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the National Government. But if no such power has been granted, none can be exercised. It does not follow from this that the National Government is entirely powerless in respect to this matter. These arid lands are largely within the Territories, and over them by virtue of the second paragraph of section 3 of Article IV heretofore quoted, or by virtue of the power vested in the National Government to acquire territory by treaties, Congress has full power of legislation, subject to no restrictions other than those expressly named in the Constitution, and, therefore, it may legislate in respect to all arid lands within their limits. As to those lands within the limits of the States, at least of the Western States, the National Government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid lands are to be found, mainly if not only in the Western and newer States, yet the powers of the National Government within the limits of those States are the same (no greater and no less) than those within the limits of the original thirteen, and it would be strange if, in the absence of a definite grant of power, the National Government could enter the territory of the States along the Atlantic and legislate in respect to improving by irrigation or otherwise the lands within their borders. Nor do we understand that hitherto Congress has acted in disregard to this limitation. As said by Mr. Justice White, delivering the opinion of the court in Gutierres v. Albuquerque Land Company, 188 U.S. 545, 554, after referring to previous legislation: "It may be observed that the purport of the previous acts is reflexively illustrated by the Act of June 17, 1902, 32 Stat. 388. That act appropriated the receipts from the sale and disposal of the public lands in certain States and Territories *93 to the construction of irrigation works for the reclamation of arid lands. The eighth section of the act is as follows: "`SEC. 8. That nothing in this act shall be construed as affecting or intending to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of the water acquired under the provisions of this act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.'" But it is useless to pursue the inquiry further in this direction. It is enough for the purposes of this case that each State has full jurisdiction over the lands within its borders, including the beds of streams and other waters. Martin v. Waddell, 16 Pet. 367; Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; Barney v. Keokuk, 94 U.S. 324; St. Louis v. Myers, 113 U.S. 566; Packer v. Bird, 137 U.S. 661; Hardin v. Jordan, 140 U.S. 371; Kaukauna Water Power Company v. Green Bay & Mississippi Canal Company, 142 U.S. 254; Shively v. Bowlby, 152 U.S. 1; Water Power Company v. Water Commissioners, 168 U.S. 349; Kean v. Calumet Canal Company, 190 U.S. 452. In Barney v. Keokuk, supra, Mr. Justice Bradley said (p. 338): "And since this court, in the case of The Genesee Chief, 12 id. 443, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reasons for adhering to the old rule as to the proprietorship of the beds and shores of such *94 waters. It properly belongs to the States by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water." In Hardin v. Jordan, supra, the same Justice, after stating that the title to the shore and lands under water is in the State, added (pp. 381, 382): "Such title being in the State, the lands are subject to state regulation and control, under the condition, however, of not interfering with the regulations which may be made by Congress with regard to public navigation and commerce. . . . Sometimes large areas so reclaimed are occupied by cities, and are put to other public or private uses, state control and ownership therein being supreme, subject only to the paramount authority of Congress in making regulations of commerce, and in subjecting the lands to the necessities and uses of commerce. . . . This right of the States to regulate and control the shores of tide waters, and the land under them, is the same as that which is exercised by the Crown in England. In this country the same rule has been extended to our great navigable lakes, which are treated as inland seas; and also, in some of the States, to navigable rivers, as the Mississippi, the Missouri, the Ohio, and, in Pennsylvania, to all the permanent rivers of the State; but it depends on the law of each State to what waters and to what extent this prerogative of the State over the lands under water shall be exercised." It may determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any State. It is undoubtedly true that the early settlers brought to this country the common law of England, and that that common law throws light on the meaning and scope of the Constitution of the United States, and is also in many States expressly recognized as of controlling force in the absence of express statute. As said by Mr. *95 Justice Gray in United States v. Wong Kim Ark, 169 U.S. 649, 654: "In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent, Com., 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274." In the argument on the demurrer counsel for plaintiff endeavored to show that Congress had expressly imposed the common law on all this territory prior to its formation into States. See also the opinion of the Supreme Court of Kansas in Clark v. Allaman, 71 Kansas, 206. But when the States of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other States, Pollard v. Hagan, supra; Shively v. Bowlby, supra; Hardin v. Shedd, 190 U.S. 508, 519; and Colorado by its legislation has recognized the right of appropriating the flowing waters to the purposes of irrigation. Now the question arises between two States, one recognizing generally the common law rule of riparian rights and the other prescribing the doctrine of the public ownership of flowing water. Neither State can legislate for or impose its own policy upon the other. A stream flows through the two and a controversy is presented as to the flow of that stream. It does not follow, however, that because Congress cannot determine the rule which shall control between the two States or because neither State can enforce its own policy upon the other, that the controversy ceases to be one of a justiciable nature, or that there is no power which can take cognizance of the controversy and determine the relative rights of the two States. Indeed, the disagreement, coupled with its effect upon a stream passing through the two States, makes a matter for investigation and *96 determination by this court. It has been said that there is no common law of the United States as distinguished from the common law of the several States. This contention was made in Western Union Telegraph Company v. Call Publishing Company, 181 U.S. 92, in which it was asserted that, as Congress having sole jurisdiction over interstate commerce had prescribed no rates for interstate telegraph communications, there was no limit on the power of a telegraph company in respect thereto. After referring to the general contention, we said (pp. 101, 102): "Properly understood, no exceptions can be taken to declarations of this kind. There is no body of Federal common law separate and distinct from the common law existing in the several States in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several States. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress. . . . Can it be that the great multitude of interstate commercial transactions are freed from the burdens created by the common law as so defined, and are subject to no rule except that to be found in the statutes of Congress? We are clearly of opinion that this cannot be so, and that the principles of the common law are operative upon all interstate commercial transactions except so far as they are modified by Congressional enactment." What is the common law? Kent says (vol. 1, p. 471): "The common law includes those principles, usages and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature." As it does not rest on any statute or other written declaration of the sovereign, there must, as to each principle thereof, be a first statement. Those statements are found in the decisions *97 of courts, and the first statement presents the principle as certainly as the last. Multiplication of declarations merely adds certainty. For after all, the common law is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes. As Congress cannot make compacts between the States, as it cannot, in respect to certain matters, by legislation compel their separate action, disputes between them must be settled either by force or else by appeal to tribunals empowered to determine the right and wrong thereof. Force under our system of Government is eliminated. The clear language of the Constitution vests in this court the power to settle those disputes. We have exercised that power in a variety of instances, determining in the several instances the justice of the dispute. Nor is our jurisdiction ousted, even if, because Kansas and Colorado are States sovereign and independent in local matters, the relations between them depend in any respect upon principles of international law. International law is no alien in this tribunal. In The Paquete Habana, 175 U.S. 677, 700, Mr. Justice Gray declared: "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." And in delivering the opinion on the demurrer in this case Chief Justice Fuller said (185 U.S. 146): "Sitting, as it were, as an international, as well as a domestic tribunal, we apply Federal law, state law, and international law, as the exigencies of the particular case may demand." One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each State stands on the same level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none. Yet, whenever, as in the case of Missouri v. Illinois, 180 U.S. 208, the action of one State reaches through the agency of natural laws into the territory of another State, *98 the question of the extent and the limitations of the rights of the two States becomes a matter of justiciable dispute between them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them. In other words, through these successive disputes and decisions this court is practically building up what may not improperly be called interstate common law. This very case presents a significant illustration. Before either Kansas or Colorado was settled the Arkansas River was a stream running through the territory which now composes these two States. Arid lands abound in Colorado. Reclamation is possible only by the application of water, and the extreme contention of Colorado is that it has a right to appropriate all the waters of this stream for the purposes of irrigating its soil and making more valuable its own territory. But the appropriation of the entire flow of the river would naturally tend to make the lands along the stream in Kansas less arable. It would be taking from the adjacent territory that which had been the customary natural means of preserving its arable character. On the other hand, the possible contention of Kansas, that the flowing water in the Arkansas must, in accordance with the extreme doctrine of the common law of England, be left to flow as it was wont to flow, no portion of it being appropriated in Colorado for the purposes of irrigation, would have the effect to perpetuate a desert condition in portions of Colorado beyond the power of reclamation. Surely here is a dispute of a justiciable nature which must and ought to be tried and determined. If the two States were absolutely independent nations it would be settled by treaty or by force. Neither of these ways being practicable, it must be settled by decision of this court. It will be perceived that Kansas asserts a pecuniary interest as the owner of certain tracts along the banks of the Arkansas and as the owner of the bed of the stream. We need not stop to consider what rights such private ownership of property might give. *99 In deciding this case on demurrer we said (185 U.S. 142), referring to the opinion in Missouri v. Illinois: "As will be perceived, the court there ruled that the mere fact that a State had no pecuniary interest in the controversy, would not defeat the original jurisdiction of this court, which might be invoked by the State as parens patriae, trustee, guardian or representative of all or a considerable portion of its citizens; and that the threatened pollution of the waters of a river flowing between States, under the authority of one of them, thereby putting the health and comfort of the citizens of the other in jeopardy, presented a cause of action justiciable under the Constitution. "In the case before us, the State of Kansas files her bill as representing and on behalf of her citizens, as well as in vindication of her alleged rights as an individual owner, and seeks relief in respect of being deprived of the waters of the river accustomed to flow through and across the State, and the consequent destruction of the property of herself and of her citizens and injury to their health and comfort. The action complained of is state action and not the action of state officers in abuse or excess of their powers." It is the State of Kansas which invokes the action of this court, charging that through the action of Colorado a large portion of its territory is threatened with disaster. In this respect it is in no manner evading the provisions of the Eleventh Amendment to the Federal Constitution. It is not acting directly and solely for the benefit of any individual citizen to protect his riparian rights. Beyond its property rights it has an interest as a State in this large tract of land bordering on the Arkansas River. Its prosperity affects the general welfare of the State. The controversy rises, therefore, above a mere question of local private right and involves a matter of state interest, and must be considered from that standpoint. Georgia v. Tennessee Copper Co., decided this day, post, p. 230. This changes in some respect the scope of our inquiry. It is not limited to the simple matter of whether any portion of the *100 waters of the Arkansas is withheld by Colorado. We must consider the effect of what has been done upon the conditions in the respective States and so adjust the dispute upon the basis of equality of rights as to secure as far as possible to Colorado the benefits of irrigation without depriving Kansas of the like beneficial effects of a flowing stream. A little reflection will make this clear. Suppose the controversy was between two individuals, upper and lower riparian owners on a little stream with rocky bank and rocky bottom. The question properly might be limited to the single one of the diminution of the flow by the upper riparian proprietor. The lower riparian proprietor might insist that he was entitled to the full, undiminished and unpolluted flow of the water of the stream as it had been wont to run. It would not be a defense on the part of the upper riparian proprietor that by the use to which he had appropriated the water he had benefited the lower proprietor, or that the latter had received in any other respects an equivalent. The question would be one of legal right, narrowed to place, amount of flow and freedom from pollution. We do not intimate that entirely different considerations obtain in a controversy between two States. Colorado could not be upheld in appropriating the entire flow of the Arkansas River, on the ground that it is willing to give, and does give, to Kansas something else which may be considered of equal value. That would be equivalent to this court's making a contract between the two States, and that it is not authorized to do. But we are justified in looking at the question not narrowly and solely as to the amount of the flow in the channel of the Arkansas River, inquiring merely whether any portion thereof is appropriated by Colorado, but we may properly consider what, in case a portion of that flow is appropriated by Colorado, are the effects of such appropriation upon Kansas territory. For instance, if there be many thousands of acres in Colorado destitute of vegetation, which by the taking of water from the Arkansas River and in no other way can be *101 made valuable as arable lands producing an abundance of vegetable growth, and this transformation of desert land has the effect, through percolation of water in the soil, or in any other way, of giving to Kansas territory, although not in the Arkansas Valley, a benefit from water as great as that which would enure by keeping the flow of the Arkansas in its channel undiminished, then we may rightfully regard the usefulness to Colorado as justifying its action, although the locality of the benefit which the flow of the Arkansas through Kansas has territorially changed. Science may not as yet be able to give positive information as to the processes by which the distribution of water over certain territory has operation beyond the mere limits of the area in which the water is distributed, but they who have dwelt in the West know that there are constant changes in the productiveness of different portions of the territory, owing, apparently, to a wider and more constant distribution of water. To illustrate, the early settlers of Kansas territory found that farming was unsuccessful unless confined to its eastern 100 or 120 miles. West of that crops were almost always a failure, but now that region is the home of a large population, with crops as certain as those elsewhere, and yet this change has not been brought about by irrigation. A common belief is that the original sod was largely impervious to water, that when the spring rains came the water, instead of sinking into the ground, filled the watercourses to overflowing and ran off to the Gulf of Mexico. There was no water in the soil to go up in vapor and come down in showers, and the constant heat of summer destroyed the crops; but after the sod had once been turned the water from those rains largely sank into the ground, and then as the summer came on went up in vapor and came down in showers, and so by continued watering prevented the burning up of the growing crops. We do not mean to say that science has demonstrated this to be the operating cause or that other theories are not propounded, but the fact is that, instead of stopping at a distance of 120 miles from the Missouri River, the area of cultivated and *102 profitably cultivated land has extended 150 to 200 miles further west, and seems to be steadily moving towards the western boundary of the State. Now if there is this change gradually moving westward from the Missouri River, is it altogether an unreasonable expectation that as the arid lands of Colorado are irrigated and become from year to year covered with vegetation, there will move eastward from Colorado an extension of the area of arable lands until, between the Missouri River and the mountains of Colorado, there shall be no land which is not as fully subject to cultivation as lands elsewhere in the country? Will not the productiveness of Kansas as a whole, its capacity to support an increasing population, be increased by the use of the water in Colorado for irrigation? May we not consider some appropriation by Colorado of the waters of the Arkansas to the irrigation and reclamation of its arid lands as a reasonable exercise of its sovereignty and as not unreasonably trespassing upon any rights of Kansas? And here we must notice the local law of Kansas as declared by its Supreme Court, premising that the views expressed in this opinion are to be confined to a case in which the facts and the local law of the two States are as here disclosed. In Clark v. Allaman, 71 Kansas, 206, is an exhaustive discussion of the question, Mr. Justice Burch delivering the unanimous opinion of the court. In the syllabus, which by statute (Compiled Laws, Kansas, p. 317, sec. 14) is prepared by the justice writing the opinion, and states the law of the case, are these paragraphs: "The use of the water of a running stream for irrigation, after its primary uses for quenching thirst and other domestic requirements have been subserved, is one of the common law rights of a riparian proprietor. "The use of water by a riparian proprietor for irrigation purposes must be reasonable under all the circumstances, and the right must be exercised with due regard to the equal right of every other riparian owner along the course of the stream. "A diminution of the flow of water over riparian land caused *103 by its use for irrigation purposes by upper riparian proprietors occasions no injury for which damages may be allowed unless it results in subtracting from the value of the land by interfering with the reasonable uses of the water which the landowner is able to enjoy. "In determining the quantity of land tributary to and lying along a stream which a single proprietor may irrigate the principle of equality of right with others should control, irrespective of the accidental matter of governmental subdivisions of the land." And in the opinion, on pages 242, 243, are quoted these observations of Chief Justice Shaw in the case of Elliott v. Fitchburg Railroad Company, 10 Cush. 191, 193, 196: "The right to flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such a character, that whilst it is common and equal to all, through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it, as it passes through his land; and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious to a proprietor lower down. What is such a just and reasonable use, may often be a difficult question, depending on various circumstances. To take a quantity of water from a large running stream for agriculture or manufacturing purposes, would cause no sensible or practicable diminution of the benefit, to the prejudice of a lower proprietor; whereas, taking the same quantity from a small running brook passing through many farms, would be of great and manifest injury to those below, who need it for domestic supply or watering cattle; and therefore it would be an unreasonable use of the water, and an action would lie in the latter case and not in the former. It is, therefore, to a considerable extent a question of degree; still, the rule is the same, that each proprietor has a right to a reasonable use of it, for *104 his own benefit, for domestic use, and for manufacturing and agricultural purposes. . . . "That a portion of the water of a stream may be used for the purpose of irrigating land, we think is well established as one of the rights of the proprietors of the soil along or through which it passes. Yet a proprietor cannot under color of that right, or for the actual purpose of irrigating his own land, wholly abstract or divert the watercourse, or take such an unreasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive from it, if not diverted or used unreasonably. . . . "This rule, that no riparian proprietor can wholly abstract or divert a watercourse, by which it would cease to be a running stream, or use it unreasonably in its passage, and thereby deprive a lower proprietor of a quality of his property, deemed in law incidental and beneficial, necessarily flows from the principle that the right to the reasonable and beneficial use of a running stream is common to all the riparian proprietors, and so, each is bound so to use his common right, as not essentially to prevent or interfere with an equally beneficial enjoyment of the common right, by all the proprietors. . . . "The right to the use of flowing water is publici juris, and common to all the riparian proprietors; it is not an absolute and exclusive right to all the water flowing past their land, so that any obstruction would give a cause of action; but it is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors, to the reasonable enjoyment of the same gift of Providence. It is, therefore, only for an abstraction and deprivation of this common benefit, or for an unreasonable and unauthorized use of it, that an action will lie." As Kansas thus recognizes the right of appropriating the waters of a stream for the purposes of irrigation, subject to the condition of an equitable division between the riparian proprietors, she cannot complain if the same rule is administered *105 between herself and a sister State. And this is especially true when the waters are, except for domestic purposes, practically useful only for purposes of irrigation. The Arkansas River, from its source to the eastern end of the Royal Gorge, is a mountain torrent, coming down between rocky banks and over a rocky bed. Along this distance it is of comparatively little use for irrigation purposes. After it debouches from the Royal Gorge it enters a valley, in which it wanders from one side to the other through eastern Colorado, southwestern Kansas and into Oklahoma, with but a slight descent, and presenting but little opportunities for the development of water power through falls or by dams. Its length in Kansas is about three hundred and fifty miles, and the descent is only 2,320 feet, or less than seven feet to a mile. There are substantially no falls, no narrow passageways in which dams can be readily constructed for the development of water power; and while there are some in eastern Colorado, yet they are of little elevation and mainly to assist in the storing of water for purposes of irrigation. So that, if the extreme rule of the common law were enforced, Oklahoma having the same right to insist that there should be no diversion of the stream in Kansas for the purposes of irrigation that Kansas has in respect to Colorado, the result would be that the waters, except for the meagre amount required for domestic purposes, would flow through eastern Colorado and Kansas and be of comparatively little advantage to either State, and both would lose the great benefit which comes from the use of the water for irrigation. The drainage area of the Arkansas River in Colorado is 26,000 square miles; in Kansas, 20,000 square miles; and all this area, unless the stream can be used for purposes of irrigation, would be left to the slow development which comes from the cultivation of the soil. The testimony in this case is voluminous, amounting to 8,559 typewritten pages, with 122 exhibits, and it would be impossible to make a full statement of facts without an extravagant extension of this opinion, which is already too long, *106 and yet some facts must be stated to indicate the basis for the conclusion to which we have come. It must also be noted that, as might be expected in such a volume of testimony, coming as it does from three hundred and forty-seven witnesses, there is no little contradiction and a good deal of confusion, and this contradiction is to be found not merely in the testimony of witnesses, but also in the exhibits, among which are reports from the officials of the Government and the two States. We have endeavored to deduce from this volume those matters which seem most clearly proved, and must, as to other matters, be content to generalize and state that which seems to be the tendency of the evidence. Colorado is divided into five irrigating divisions, each of which is in charge of a division engineer. That which includes the drainage area of the Arkansas is District No. 2, divided into eleven districts. Under the laws of Colorado, irrigating ditches have been established in this district and the amount of water which each may take from the river decreed. In addition some reservoirs have been built for storing the surplus waters which come down in times of flood, and this adds largely to the amount available for irrigation. The storage capacity of six of these reservoirs is shown to be 8,527,673,652 cubic feet. The significance and value of these reservoirs can be appreciated when we remember that the Arkansas, like many other streams, has its origin in the mountain districts of Colorado, and that by the melting of the snows almost every year there is a flood. The amount of water authorized to be taken by the ditches from the river is, as alleged in the bill, 4,200 cubic feet, and from its affluents and tributaries 4,300 feet. (Whenever this term is used in reference to the flow of water it means the number of cubic feet that pass in a second.) The average flow of the river, as it comes out of the Royal Gorge at Canon City, is as shown by official measurements for a series of years, 750 cubic feet. So that it appears that the irrigating ditches are authorized to take from the Arkansas River much more water than passes in the channel into the valley. It is not clear *107 what surplus water, if any, comes out of the tributaries. There are some twenty-five of them, the average flow from four of which into the Arkansas is 313 cubic feet. Aside from this surplus water some may be returned through overflow of the ditches or from seepage. What either of these amounts may be is not disclosed. Indeed, the extent to which seepage operates in adding to the flow of a stream, or in distributing water through lands adjacent to those upon which water is poured, is something proof of which must necessarily be almost impossible. We may note the fact that a tract, bordering upon land which has been flooded, shows by its increasing vegetation that it has received in some way the benefit of water, and yet the amount of the water passing by seepage may never be definitely known. The underground movement of water will always be a problem of uncertainty. We know that when water is turned upon dry and barren soil the barrenness disappears, vegetation is developed, and that which was a desert becomes a garden. It is the magic of transformation; the wilderness budding and blossoming as the rose. The writer of this opinion recalls a conversation with Bayard Taylor, the celebrated traveler, in which the latter stated that nothing had contributed so much to secure the steady control of the French in Algiers as the fact that after taking possession of that territory they sank artesian wells on the borders of the desert, and thus reclaimed portions of it, for the Arabs believed that people who could reclaim the desert were possessed of a power that could not be withstood. Further, adjacent barren ground is slowly but surely affected, and itself begins to increase its vegetation. We may not be entirely sure as to the methods by which this change is accomplished, although the result is undoubted. It may be that water percolating under the surface has reached this adjacent ground. Perhaps the vegetation, which we know attracts moisture from the air, may increase the rainfall, and thus affect the adjacent barren regions. It appears that prior to 1885 there was comparatively little *108 water taken from the Arkansas for irrigation purposes — certainly not enough to make any perceptible impression on the flow of the river — but about that time certain corporations commenced the work of irrigation on a large scale, with ditches, some of which might well be called canals. Thus, in 1884 work was commenced on ditches capable of carrying off 450 cubic feet; in 1887 others capable of carrying off 1,481 cubic feet, and in 1890 still others carrying 1,705 cubic feet. Most of these were completed within two years after the commencement of the several works. By the year 1902, according to the report of the Census Bureau of the United States, there were 300,115 acres, in 4,557 farms, actually irrigated. The counties in Colorado, from Canon City eastward, through which the Arkansas runs are Fremont, Pueblo, Otero, Bent and Prowers. The following tables prepared by the defendants from various census reports show the population, number of acres cultivated and total value of farm products in these several counties for the years 1880, 1890 and 1900: ---------------------------------------------------------------------------- | Population. County. |-------------------------- | 1880. | 1890. | 1900. -------------------------------------------------|--------|--------|-------- Fremont ........................................ | 4,735 | 9,156 | 15,636 Pueblo ......................................... | 7,617 | 31,491 | 34,448 Otero .......................................... | ...... | 4,192 | 11,522 Bent ........................................... | 1,654 | 1,313 | 3,049 Prowers ........................................ | ...... | 1,969 | 3,766 |________|________|________ Making in the aggregate ................... | 14,006 | 48,121 | 68,421 ---------------------------------------------------------------------------- *109 ---------------------------------------------------------------------------- County. | No. of acres cultivated. | Value of Farm Products. ---------|-------------------------------|---------------------------------- | 1880. | 1890. | 1900. | 1880. | 1890. | 1900. ---------|---------|---------|-----------|----------|----------|------------ Fremont | 16,160 | 52,868 | 109,488 | $ 76,900 | $237,980 | $ 472,293 Pueblo . | 51,984 | 100,697 | 478,821 | 136,184 | 244,580 | 691,693 Otero .. | ....... | 61,347 | 244,594 | ........ | 208,860 | 1,089,344 Bent ... | 30,921 | 30,058 | 118,485 | 105,621 | 35,070 | 670,541 Prowers | ....... | 46,447 | 217,332 | ........ | 60,500 | 465,688 |_________|_________|___________|__________|__________|____________ | 98,975 | 291,417 | 1,168,720 | $318,705 | $786,990 | $3,389,559 ---------------------------------------------------------------------------- These tables disclose a very marked development in the population, area of land cultivated and amount of agricultural products. Whatever has been effective in bringing about this development is certainly entitled to recognition, and should not be wantonly or unnecessarily destroyed or interfered with. That this development is largely owing to irrigation is something of which from a consideration of the testimony there can be no reasonable doubt. It has been a prime factor in securing this result, and before, at the instance of a sister State, this effective cause of Colorado's development is destroyed or materially interfered with, it should be clear that such sister State has not merely some technical right, but also a right with a corresponding benefit. It may be asked why cultivation in Colorado without irrigation may not have the same effect that has attended the cultivation in Kansas west of where it was productive when the territory was first settled. It may possibly have such effect to some degree, but it must be remembered that the land in Colorado is many hundred feet in elevation above that in Kansas; that large portions of it are absolutely destitute of sod, and that cultivation would have comparatively little effect upon the retention of water. Add further the fact that the rainfall in Colorado is less than that in Kansas, and it would seem almost certain that reliance upon mere cultivation of the soil would not have anything like the effect in Colorado *110 that it has had in Kansas, and that the barrenness which characterized portions of the territory of Colorado would have continued for an indefinite time unless relieved by irrigation. Turning to Kansas, the counties along the Arkansas River, commencing from the Colorado line are: Hamilton, Kearney, Finney, Gray, Ford, Edwards, Pawnee, Barton, Rice, Reno, Sedgwick, Sumner, Cowley. Taking the same years as are given for the Colorado counties, the population is shown to be: ---------------------------------------------------------------------------- | Population. County. |---------------------------- | 1880. | 1890. | 1900. -----------------------------------------------|---------|---------|-------- Hamilton ..................................... | 168 | 2,027 | 1,426 Kearney ...................................... | 159 | 1,571 | 1,107 Finney ....................................... | ....... | 3,350 | 3,469 Gray ......................................... | ....... | 2,415 | 1,264 Ford ......................................... | 3,122 | 5,308 | 5,497 Edwards ...................................... | 2,409 | 3,600 | 3,682 Pawnee ....................................... | 5,396 | 5,204 | 5,084 Barton ....................................... | 10,318 | 13,172 | 13,784 Rice ......................................... | 9,292 | 14,451 | 14,745 Reno ......................................... | 12,826 | 27,079 | 29,027 Sedgwick ..................................... | 18,753 | 43,626 | 44,037 Sumner ....................................... | 20,812 | 30,271 | 25,631 Cowley ....................................... | 21,538 | 34,478 | 30,156 |_________|_________|________ | 104,793 | 186,552 | 178,909 ---------------------------------------------------------------------------- We have been furnished by the United States Census Office with statistics of the corn and wheat crops of those counties from the years 1889 to 1904. Corn, wheat and hay are the leading crops in Kansas. It would unnecessarily prolong this opinion to copy these tables in full, so we give the figures for 1890, 1895, 1900 and 1904: *111 Acreage and Production of Corn and Wheat in Kansas — 13 Counties. ---------------------------------------------------------------------------- | | CORN. | WHEAT. YEAR. | COUNTY. |------------------------|----------------------- | | ACRES. | BUSHELS. | ACRES. | BUSHELS. ------|--------------------|-----------|------------|-----------|----------- 1890. | Hamilton ....... | 80 | 400 | 449 | 6,636 | Kearney ........ | 872 | 8,720 | 586 | 10,658 | Finney ......... | 2,423 | 48,460 | 1,410 | 24,740 | Gray ........... | 493 | 2,465 | 3,335 | 38,724 | Ford ........... | 1,558 | 12,464 | 7,190 | 107,295 | Edwards ........ | 2,058 | 20,580 | 8,876 | 168,094 | Pawnee ......... | 544 | 2,720 | 39,464 | 591,402 | Barton ......... | 3,666 | 25,662 | 99,738 | 1,294,639 | Rice ........... | 27,460 | 329,520 | 52,941 | 792,345 | Reno ........... | 98,972 | 989,720 | 35,121 | 351,210 | Sedgwick ....... | 67,685 | 744,535 | 52,506 | 944,804 | Sumner ......... | 19,120 | 267,680 | 134,352 | 2,149,116 | Cowley ......... | 63,391 | 887,474 | 28,073 | 282,666 | |___________|____________|___________|___________ | Totals .... | 288,322 | 3,340,400 | 464,041 | 6,762,329 ======|====================|===========|============|===========|=========== 1895. | Hamilton ....... | 404 | 3,232 | 4,360 | 12,576 | Kearney ........ | 914 | 5,698 | 2,917 | 6,430 | Finney ......... | 2,058 | 20,580 | 27,428 | 69,801 | Gray ........... | 1,115 | 11,150 | 12,297 | 12,309 | Ford ........... | 12,145 | 194,320 | 36,626 | 109,914 | Edwards ........ | 21,222 | 212,220 | 47,479 | 94,958 | Pawnee ......... | 19,076 | 152,608 | 113,980 | 342,075 | Barton ......... | 103,831 | 778,732 | 179,761 | 359,284 | Rice ........... | 153,256 | 3,371,632 | 127,200 | 254,394 | Reno ........... | 205,745 | 7,406,820 | 89,973 | 314,573 | Sedgwick ....... | 190,646 | 5,147,442 | 93,351 | 279,711 | Sumner ......... | 181,642 | 2,179,704 | 248,115 | 619,884 | Cowley ......... | 133,745 | 2,674,900 | 89,866 | 673,822 | |___________|____________|___________|___________ | Totals .... | 1,025,799 | 22,159,038 | 1,073,353 | 3,149,731 ======|====================|===========|============|===========|=========== 1900. | Hamilton ....... | 266 | 3,990 | 155 | 1,550 | Kearney ........ | 538 | 11,298 | 506 | 5,492 | Finney ......... | 1,213 | 18,195 | 427 | 4,234 | Gray ........... | 2,001 | 30,015 | 4,023 | 59,605 | Ford ........... | 11,215 | 145,795 | 23,416 | 444,904 | Edwards ........ | 25,032 | 325,416 | 43,525 | 696,400 | Pawnee ......... | 16,257 | 146,313 | 115,931 | 1,969,801 | Barton ......... | 32,649 | 261,192 | 254,130 | 5,081,352 | Rice ........... | 71,151 | 355,755 | 148,597 | 3,120,537 | Reno ........... | 199,150 | 1,991,500 | 110,404 | 2,097,276 | Sedgwick ....... | 153,635 | 2,766,430 | 123,339 | 2,589,811 | Sumner ......... | 102,057 | 2,143,197 | 288,133 | 5,761,260 | Cowley ......... | 121,398 | 2,792,154 | 79,948 | 1,439,064 | |___________|____________|___________|___________ | Totals ..... | 736,562 | 10,991,250 | 1,192,534 | 23,271,286 ---------------------------------------------------------------------------- *112 ---------------------------------------------------------------------------- | | CORN. | WHEAT. YEAR. | COUNTY. |-----------|------------|-----------|----------- | | ACRES. | BUSHELS. | ACRES. | BUSHELS. ------|--------------------|-----------|------------|-----------|----------- 1904. | Hamilton ....... | 120 | 1,800 | 271 | 2,297 | Kearney ........ | 306 | 6,120 | 536 | 6,244 | Finney ......... | 759 | 7,590 | 7,012 | 37,382 | Gray ........... | 1,579 | 25,264 | 17,268 | 69,590 | Ford ........... | 10,631 | 170,096 | 72,917 | 365,299 | Edwards ........ | 23,396 | 584,900 | 130,313 | 1,302,834 | Pawnee ......... | 13,272 | 331,800 | 162,970 | 1,629,246 | Barton ......... | 26,984 | 728,568 | 262,673 | 3,414,731 | Rice ........... | 59,851 | 1,556,126 | 160,853 | 2,251,838 | Reno ........... | 138,899 | 4,028,071 | 207,002 | 3,518,752 | Sedgwick ....... | 132,374 | 3,441,724 | 151,635 | 1,971,255 | Sumner ......... | 79,808 | 1,995,200 | 294,489 | 3,828,192 | Cowley ......... | 109,708 | 2,962,116 | 68,477 | 821,652 | |___________|____________|___________|___________ | Totals .... | 597,687 | 15,839,375 | 1,536,416 | 19,219,312 ---------------------------------------------------------------------------- Comparing the tables of population it will be perceived that both the counties in Colorado and Kansas made a considerable increase in the years from 1880 to 1890; that while the Colorado counties continued their increase from 1890 to 1900, the Kansas counties lost. As the withdrawal of water in Colorado for irrigating purposes became substantially effective about the year 1890, it might, if nothing else appeared, not unreasonably be concluded that the diminished flow of the river in Kansas, caused by the action of Colorado, had resulted in making the land more unproductive, and hence induced settlers to leave the State. As against this it should be noted, as a matter of history, that in the years preceding 1890, Kansas passed through a period of depression, with crops largely a failure in different parts of the State. But, more than that, in 1889 Oklahoma, lying directly south of Kansas, was opened for settlement and immediately there was a large immigration into that territory, coming from all parts of the West, and especially from the State of Kansas, induced by glowing reports of its great possibilities. The population of Oklahoma, *113 as shown by the United States census, was, in 1890, 61,834, and in 1900, 348,331. Turning to the tables of the corn and wheat products, they do not disclose any marked injury which can be attributed to a diminution of the flow of the river. While there is a variance in the amount produced in the different counties from year to year, it is a variance no more than that which will be found in other parts of the Union, and although the population from 1890 to 1900 in fact diminished, the amount of both the corn and wheat product largely increased. Not only was the total product increased, but the productiveness per acre seems to have been materially improved. Take the corn crop, and per acre, it was, in 1890, 12 bushels and a fraction; in 1895, 21 and a fraction, in 1900, 15, and in 1904, 28 bushels. Of wheat, the product per acre in 1890 was nearly 15 bushels; in 1895 it was only about 3 bushels. (For some reason, while that was a good year for corn, it seems to have been a bad year for wheat.) But in 1900 the product per acre rose to 19 bushels, and in 1904 it was 12 bushels. These are official figures taken from the United States census reports, and they tend strongly to show that the withdrawal of the water in Colorado for purposes of irrigation has not proved a source of serious detriment to the Kansas counties along the Arkansas River. It is not strange that the western counties show the least development, for being nearest the irrigation in Colorado, they would be most affected thereby. At one time there were some irrigating ditches in these western counties, which promised to be valuable in supplying water and thus increasing the productiveness of the lands in the vicinity of the stream, and it is true that those ditches have ceased to be of much value, the flow in them having largely diminished. It cannot be denied in view of all the testimony (for that which we have quoted is but a sample of much more bearing upon the question), that the diminution of the flow of water in the river by the irrigation of Colorado has worked some *114 detriment to the southwestern part of Kansas, and yet when we compare the amount of this detriment with the great benefit which has obviously resulted to the counties in Colorado, it would seem that equality of right and equity between the two States forbids any interference with the present withdrawal of water in Colorado for purposes of irrigation. Many other matters have been presented and discussed. We have examined and fully considered them, but, as heretofore stated, we shall have to content ourselves with merely general observations respecting them. Evidence has been offered of an alleged underflow of the river as it passes through the State of Kansas, and it seems to be the contention on the part of Kansas that beneath the surface there is, as it were, a second river with the same course as that on the surface, but with a distinct and continuous flow as of a separate stream. We are of the opinion that the testimony does not warrant the finding of such second and subterranean stream. If the bed of a stream is not solid rock, but earth through which water will percolate, and, as alleged in plaintiff's bill, the "valley of the river in the State of Kansas is composed of sand covered with alluvial soil," undoubtedly water will be found many feet below the surface, and the lighter the soil the more easily will it find its way downward and the more water will be discoverable by wells or other modes of exploring the subsurface. Undoubtedly, too, in many places there may be corresponding to the flow on the surface a current beneath the surface, but the presence of such subsurface water, even though in places of considerable amount and running in the same direction, is something very different from an independent subsurface river flowing continuously from the Colorado line through the State of Kansas. It is not properly denominated a second and subsurface stream. It is rather to be regarded as merely the accumulation of water which will always be found beneath the bed of any stream whose bottom is not solid rock. Naturally, the more abundant the flow of the surface stream and the wider its channel the more of this subsurface water there will be. If *115 the entire volume of water passing down the surface was taken away the subsurface water would gradually disappear, and in that way the amount of the flow in the surface channel coming from Colorado into Kansas may affect the amount of water beneath the subsurface. As subsurface water, it percolates on either side as well as moves along the course of the river, and the more abundant the subsurface water the further it will reach in its percolations on either side as well as more distinct will be its movement down the course of the stream. The testimony, therefore, given in reference to this subsurface water, its amount and its flow bears only upon the question of the diminution of the flow from Colorado into Kansas caused by the appropriation in the former State of the waters for the purposes of irrigation. Equally untenable is the contention of Colorado that there are really two rivers, one commencing in the mountains of Colorado and terminating at or near the state line, and the other commencing at or near the place where the former ends, and from springs and branches starting a new stream to flow onward through Kansas and Oklahoma towards the Gulf of Mexico. From time immemorial the existence of a single continuous river has been recognized by geographers, explorers and travelers. That there is a great variance in the amount of water flowing down the channel at different seasons of the year and in different years is undoubted; that at times the entire bed of the channel has been in places dry is evident from the testimony. In that way it may be called a broken river. But this is a fact common to all streams having their origin in a mountainous region, and whose volume is largely affected by the melting of the mountain snows. Thus, from one of complainant's exhibits furnished by the United States Geological Survey, the mean monthly flow at Canon City at the mouth of the Royal Gorge for the years 1890, 1895 and 1900 is as follows: *116 Arkansas River — Canon City. Mean Monthly Discharge in Second Feet. ---------------------------------------------------------------------------- | 1890. | 1895. | 1900. --------------------------------------------------|--------|--------|------- January ......................................... | 310 | 344 | a 345 February ........................................ | 363 | 361 | a 353 March ........................................... | 320 | 471 | a 439 April ........................................... | 477 | 868 | 736 May ............................................. | 2,090 | 1,506 | 2,251 June ............................................ | 2,611 | 1,900 | 3,492 July ............................................ | 1,571 | 1,413 | 891 August .......................................... | 670 | 1,095 | 273 September ....................................... | 519 | 635 | 211 October ......................................... | 531 | 505 | 241 November ........................................ | 522 | 499 | 265 December ........................................ | 502 | 444 | 298 ---------------------------------------------------------------------------- a Approximate. Doubtless the variance at different seasons of the year is more regular and more pronounced than in those streams whose sources are only slightly elevated and the rise and fall of whose waters is mainly owing to rains. Contrasting, for instance, the Hudson with the Missouri, illustrates this. When the June flood comes down the Missouri River it is a mighty torrent. One can stand on the bluffs at Kansas City and see an enormous volume of water, extending in width from two to five miles to the bluffs on the other side of the river, flowing onward with tremendous velocity and force, and yet at other times the entire flow of the Missouri River passes between two piers of the railroad bridge across the river at that point. No such difference between high and low water appears in the Hudson. In the days when navigation west of the Mississippi was largely by steamboats on the Missouri River, it was familiar experience for the flat-bottomed steamboats, drawing but little water, to be aground on sandbars and detained for hours in efforts to cross them. Gen. Doniphan commanded an expedition which marched from Fort Leavenworth in 1846 up the Arkansas Valley and into the Territory of New Mexico. He did not enter the valley again until shortly before his death in 1887, and when asked what he recognized replied that there *117 were one or two natural objects like Pawnee rock that appeared as they did when he marched up the valley; the river was the same but all else was changed, and the valley instead of being destitute of human occupation was filled with farm houses and farms, villages and cities — something that he had never expected would be seen in his day. Summing up our conclusions, we are of the opinion that the contention of Colorado of two streams cannot be sustained; that the appropriation of the waters of the Arkansas by Colorado, for purposes of irrigation, has diminished the flow of water into the State of Kansas; that the result of that appropriation has been the reclamation of large areas in Colorado, transforming thousands of acres into fertile fields and rendering possible their occupation and cultivation when otherwise they would have continued barren and unoccupied; that while the influence of such diminution has been of perceptible injury to portions of the Arkansas Valley in Kansas, particularly those portions closest to the Colorado line, yet to the great body of the valley it has worked little, if any, detriment, and regarding the interests of both States and the right of each to receive benefit through irrigation and in any other manner from the waters of this stream, we are not satisfied that Kansas has made out a case entitling it to a decree. At the same time it is obvious that if the depletion of the waters of the river by Colorado continues to increase there will come a time when Kansas may justly say that there is no longer an equitable division of benefits and may rightfully call for relief against the action of Colorado, its corporations and citizens in appropriating the waters of the Arkansas for irrigation purposes. The decree which, therefore, will be entered will be one dismissing the petition of the intervenor, without prejudice to the rights of the United States to take such action as it shall deem necessary to preserve or improve the navigability of the Arkansas River. The decree will also dismiss the bill of the State of Kansas as against all the defendants, without prejudice to the right of the plaintiff to institute new proceedings when *118 ever it shall appear that through a material increase in the depletion of the waters of the Arkansas by Colorado, its corporations or citizens, the substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two States resulting from the flow of the river. Each party will pay its own costs. In closing, we may say that the parties to this litigation have approached the investigation of the questions in the most honorable spirit, seeking to present fully the facts as they could be ascertained from witnesses and discussing the evidence and questions of law with marked research and ability. MR. JUSTICE WHITE and MR. JUSTICE McKENNA concur in the result. MR. JUSTICE MOODY took no part in the decision of this case.

662 F.2d 1176 PLACID INVESTMENTS, LTD., Plaintiff-Appellant,v.GIRARD TRUST BANK, Defendant-Appellee. No. 81-1273. United States Court of Appeals,Fifth Circuit. Dec. 7, 1981. A. B. Conant, Jr., Dallas, Tex., for plaintiff-appellant. Strasburger & Price, Wilson W. Herndon, Dallas, Tex., Dechert, Price & Rhoads, Raymond W. Midgett, Jr., Philadelphia, Pa., for defendant-appellee. Appeal from the United States District Court for the Northern District of Texas. Before GEE and RUBIN, Circuit Judges, and SPEARS,* District Judge. GEE, Circuit Judge: 1 Plaintiff appeals the district court's dismissal of this diversity action for the alleged breach of an option contract and related torts due to a lack of personal jurisdiction over the defendant under the Texas long-arm statute, Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon 1964 & Supp. 1980-81). We affirm.I. Facts and Disposition Below. 2 On July 11, 1978, defendant Girard Trust Bank ("Girard"), a Pennsylvania corporation with its main office in Philadelphia, granted Metals Quality Corporation ("MQC"), a New York corporation1 with offices in New York City, an option to purchase $710,000 (face value) of United States silver coins. This option contract, originally for a term of one year, was extended by agreement between Girard and MQC to July 11, 1980. MQC subsequently exercised its right to assign the contract by assigning it to plaintiff Placid Investments, Ltd. ("Placid"), a Texas limited partnership headquartered in Dallas. 3 Placid notified Girard on June 6, 1980, of its claim to be the holder of the option contract. Girard responded that same day by writing to Placid, listing the requirements for exercising the option and enclosing an indemnity agreement made necessary by conflicting claims to this and other options granted MQC. Placid signed the agreement and returned it to Girard. 4 Thereafter, the parties communicated by phone concerning the exercise of the option. When Placid attempted to exercise the option, a dispute arose as to whether Placid had done so before the option's expiration on July 11, 1980. Girard refused Placid's tender of payment for the coins. Placid then brought this suit in the Northern District of Texas alleging breach of the contract and several alternative contract and tort claims. 5 Placid's complaint asserted that the court enjoyed personal jurisdiction over Girard under Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon 1964 & Supp. 1980-81).2 Service of the complaint and summons on Girard was done through the Texas Secretary of State. Girard moved for dismissal under Fed.R.Civ.P. 12(b)(2) for lack of jurisdiction and under Fed.R.Civ.P. 12(b)(5) for insufficiency of service of process. Alternatively, Girard requested an order transferring the case to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a) (1976). The district court granted Girard's motion to dismiss under Fed.R.Civ.P. 12(b)(2), holding Girard not amenable to suit under article 2031b due to a failure to fulfill its nexus requirement. Placid appeals this dismissal. 6 II. Issues on Appeal. 7 The pivotal issue on appeal, the meaning and application of article 2031b, was recently addressed in Prejean v. Sonatrach, Inc., 652 F.2d 1260 (5th Cir. 1981). Prejean held that 8 while the statute encompasses all nonfortuitous contact with the forum such that due process would allow amenability to suit, in addition the cause of action must arise out of those minimum contacts.... (S)ervice of process under Article 2031b cannot be made validly on a nonresident defendant whose contacts with Texas have no connection with the plaintiff's cause of action. 9 Id. at 1267 (footnotes omitted). 10 Placid first argues that its cause of action need not arise out of specific Texas contacts in order to create jurisdiction under article 2031b. That argument is foreclosed by Prejean, and this court is bound by it. See S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 1278-79 (5th Cir. 1981). Alternatively, Placid claims that its cause of action does arise out of Texas contacts. This claim has no merit. 11 The district court found that it was undisputed that Girard does business in Texas. Although Girard has no office in Texas, it does maintain accounts in Texas banks, own Texas real estate, solicit business in Texas, and receive revenue from Texas sources. However, none of these contacts gave rise to this cause of action. The option contract was entered into in Philadelphia between Girard and MQC. Placid played no role in its negotiation. The option was to be exercised at Girard's Philadelphia office. No representative of Girard has ever been in Texas in connection with this contract. The only Texas contacts by Girard in connection with this contract were the indemnity agreement and letters, telex messages, and telephone conversations concerning the exercise of the option. Since this suit is on the option contract and not on the indemnity agreement, the causal relationship or nexus required by article 2031b is not shown here by these contacts. 12 Placid next asserts that its cause of action arises under section 4 of article 2031b from a tort committed in whole or in part in Texas by Girard. This alleged tort is Placid's foreseeable economic injury due to Girard's breach. Prejean answers this argument: 13 The economic effects from the alleged tortious conduct were not purposefully introduced into Texas, but were only fortuitous impacts on the (plaintiffs), wherever they are located, from the wrongful acts.... Without the necessary factor of purposeful creation of the effects, the assertion of in personam jurisdiction is unconstitutional. 14 652 F.2d at 1270. The district court correctly held that out-of-state tortious acts did not establish commission of a tort under article 2031b. 15 Finally, Placid contends that jurisdiction over Girard was obtained under Tex.R.Civ.P. 108. However, a rule of procedure adopted by the Texas Supreme Court may not be used as an end-run around the substantive jurisdictional requirements enacted by the Texas Legislature in article 2031b. To allow such a device would render article 2031b a nullity. See Tex.Rev.Civ.Stat.Ann. art. 1731a (Vernon 1962); Drake v. Muse, Currie & Kohen, 532 S.W.2d 369, 372 (Tex.Civ.App.-Dallas 1975) writ ref'd n.r.e., 535 S.W.2d 343 (Tex.1976) (per curiam), rev'd and remanded on other grounds on appeal after remand, 550 S.W.2d 736 (Tex.Civ.App.-Dallas 1977). 16 AFFIRMED. * District Judge of the Western District of Texas, sitting by designation 1 The district court found that MQC was a New York corporation. However, the option contract states that MQC is a Delaware corporation 2 Under Fed.R.Civ.P. 4(d)(7) and (e), the long-arm statute of the forum state governs a federal court's jurisdiction over a nonresident defendant in a diversity case. See Prejean v. Sonatrach, Inc., 652 F.2d 1260, 1264 n.2 (5th Cir. 1981)

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-1152V Filed: October 18, 2018 Not for Publication ************************************* DEVON ENGSTROM and ERIC * ENGSTROM, on behalf of C.E., a Minor * Child, * * Damages decision based on * stipulation; diphtheria-tetanus- Petitioners, * acellular pertussis (“DTaP”), * inactivated poliovirus (“IPV”), v. * haemophilus influenza B (“Hib”), * rotavirus, and pneumococcal SECRETARY OF HEALTH * conjugate vaccines; Transverse AND HUMAN SERVICES, * myelitis * Respondent. * * ************************************* Amber D. Wilson, Washing, DC, for petitioners. Camille M. Collett, Washington, DC, for respondent. MILLMAN, Special Master DECISION AWARDING DAMAGES1 On October 17, 2018, the parties filed the attached stipulation in which they agreed to settle this case and described the settlement terms. Petitioners allege, on behalf of their son, that C.E. suffered from transverse myelitis as a result of his receipt of diphtheria-tetanus-acellular pertussis (“DTaP”), inactivated poliovirus (“IPV”), haemophilus influenza B (“Hib”), rotavirus, and pneumococcal conjugate vaccines on or about September 28, 2015. They further allege that C.E. 1 Because this unpublished decision contains a reasoned explanation for the special master’s action in this case, the special master intends to post this unpublished decision on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002). This means the decision will be available to anyone with access to the Internet. Vaccine Rule 18(b) states that all decisions of the special masters will be made available to the public unless they contain trade secrets or commercial or financial information that is privileged and confidential, or medical or similar information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and move to delete such information prior to the document’s disclosure. If the special master, upon review, agrees that the identified material fits within the banned categories listed above, the special master shall delete such material from public access. experienced the residual effects of this injury for more than six months. Respondent denies that the DTaP, IPV, Hib, rotavirus, and pneumococcal conjugate vaccines caused C.E. to suffer transverse myelitis or any other injury. Nonetheless, the parties agreed to resolve this matter informally. The undersigned finds the terms of the stipulation to be reasonable. The court hereby adopts the parties’ said stipulation, attached hereto, and awards compensation in the amount and on the terms set for therein. Pursuant to the stipulation, the court awards: a. a lump sum of $150,000.00, in the form of a check payable to petitioners, as guardian/conservator of C.E.’s estate; b. a lump sum of $1,547.89, in the form of a check payable to petitioners; and c. a lump sum of $150.58, representing reimbursement of the State of Pennsylvania Medicaid lien for services rendered on behalf of C.E. in the form of a check payable jointly to petitioners and Pennsylvania Department of Human Services Case #280431471 P.O. Box 8486 Harrisburg, PA 17105-8486 These amounts represent compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a). In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith.2 IT IS SO ORDERED. Dated: October 18, 2018 s/ Laura D. Millman Laura D. Millman Special Master 2 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or jointly, filing a notice renouncing the right to seek review. 2 

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 08-4511 _____________ UNITED STATES OF AMERICA v. KELIN MANIGAULT, Appellant ______________ On Appeal from the United States District Court for the Middle District of Pennsylvania (Criminal No. 05-00187) District Judge: Hon. Sylvia H. Rambo Submitted February 25, 2010 Before: CHAGARES, STAPLETON, and LOURIE, * Circuit Judges. (Filed: September 30, 2010) ______________ OPINION ______________ CHAGARES, Circuit Judge. This matter is before the Court on defendant Kelin Manigault’s appeal of the * The Honorable Alan D. Lourie, Circuit Judge for the United States Court of Appeals for the Federal Circuit, sitting by designation. denial of his motion for relief under 28 U.S.C. § 2255. For the reasons below, we will vacate the order granting the certificate of appealability and dismiss the appeal for lack of jurisdiction. I. Because we write solely for the benefit of the parties, we only briefly summarize the essential facts. On December 9, 2004, Harrisburg, Pennsylvania police recovered a .45 caliber semi-automatic handgun and thirty-two grams of cocaine base while conducting an inventory search of an illegally parked car. The vehicle was registered to Rechina Stanley, but Ms. Stanley later acknowledged that she had purchased the car on behalf of Manigault, and that he was the operator of the car at all times. A warrant was issued for Manigault’s arrest. On March 29, 2005, police observed Manigault sitting in a parked car. When they approached the vehicle, Manigault fled, and threw a bag under a nearby car. Manigault was caught and placed under arrest, and the bag, which contained forty-one grams of cocaine base, was recovered. Manigault was indicted on May 11, 2005 for five counts of firearm and drug trafficking offenses. Pursuant to a plea agreement, he pleaded guilty to two counts of possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and the other charges were dropped. 2  Manigault had two prior felony convictions – one for drug trafficking and one for reckless endangerment of another person. In the Presentence Report (“PSR”), the Probation Officer determined that these two convictions qualified Manigault as a career offender under United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1. This increased his criminal history category from V to VI, and with an offense level of 33, the recommended Guideline range was determined to be 235 to 293 months in prison. Manigault objected to the PSR, specifically arguing that his prior conviction for reckless endangerment was not a “crime of violence” under U.S.S.G. § 4B1.2, and that he therefore was not a career offender. The District Court rejected his objections and sentenced Manigault to 235 months of imprisonment. On March 21, 2006, Manigault appealed this judgment to this Court. Relying upon our precedent in United States v. Parson, 955 F.2d 858 (3d Cir. 1992), we affirmed the judgment and determination that reckless endangerment is a crime of violence for the purposes of determining whether a criminal defendant is a career offender. United States v. Manigault, 228 F. App’x 183 (3d Cir. 2007). On July 10, 2008, Manigault filed a motion pursuant to 18 U.S.C. § 3582(c) to reduce his sentence pursuant to the retroactive amendment to the crack cocaine sentencing guidelines. On August 6, the District Court agreed that the amendment reduced his offense level to 31, which reduced his guideline range to 188 to 235 months. The District Court subsequently reduced Manigault’s sentence to 188 months. 3  Also on July 10, Manigault filed a counseled motion for relief under 28 U.S.C. § 2255. He alleged three grounds of ineffective assistance of counsel: (1) that his counsel was ineffective for failing to file a motion to compel documents regarding his reckless endangerment conviction; (2) that his counsel was ineffective for inadequately arguing that reckless endangerment was not a crime of violence; and (3) that his counsel was ineffective for failing to object to the Government’s arguments at sentencing that his career offender classification was appropriate. He also argued that his sentence was based on inaccurate information and false assumptions in violation of the Due Process clause. The District Court denied Manigault’s § 2255 motion, and Manigault filed a timely notice of appeal and a request for a certificate of appealability. In his request for a certificate of appealability, Manigault argued that his conviction for reckless endangerment was no longer a crime of violence based on the Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008). Although Begay had been decided before he filed his counseled § 2255 motion, Manigault did not raise Begay before the District Court or argue that there had been any recent change in the relevant law. On July 16, 2009, a panel of this Court granted a certificate of appealability on the following issues: (1) whether Manigault may relitigate his challenge to his career offender status based on a change in the applicable law; Begay v. United States, 128 S. Ct. 1581 (2008); United States v. Palumbo, 608 F.2d 529, 533 (3d Cir. 1979); Davis v. United States, 417 U.S. 333 (1974); (2) whether Manigault waived this claim by not bringing Begay to the District Court’s attention despite its availability; (3) what details of the reckless endangerment conviction are 4  available in documents appropriate under a Shepard [v. United States, 544 U.S. 13 (2005)] analysis; and (4) the outcome of the state drug charges pending during sentencing and the impact additional drug convictions would have on any resentencing. App. at 20. II. Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. We lack appellate jurisdiction unless the applicant has made such a showing. United States v. Cepero, 224 F.3d 256, 267 (3d Cir. 2000) (en banc). In Cepero, the defendant argued that the District Court misapplied the sentencing guidelines because the Government failed to show that he had sold crack cocaine and not some other form of cocaine base. Id. We concluded that we lacked jurisdiction over the appeal because the misapplication of the guidelines in that case did not present a constitutional issue. However, we noted that we were not suggesting that such an error could never rise to the level of a constitutional deprivation. Id. at 268 n.6. Thus, the question is whether the Begay claim Manigault seeks to raise on appeal alleges an error1 that rises to the level of a violation of a constitutional right.2 Manigault 1 We will assume arguendo that Begay applies retroactively to Manigault’s claim, see Sun Bear v. United States, 611 F.3d 925 (8th Cir. 2010); Gilbert v. United States, 609 F.3d 1159, 1165 (11th Cir. 2010); Welch v. United States, 604 F.3d 408 (7th Cir. 2010), and that his conviction for reckless endangerment would no longer qualify as a crime of violence. See United States v. Lee, 612 F.3d 170, 196 (3d Cir. 2010). Because we conclude that the claim does not present a constitutional issue, we need not reach the 5 contends that he argued in his § 2255 motion that “constitutional violation(s) led to a sentence based on inaccurate information and false assumptions.” Reply Brief at 11. However, Manigault was not sentenced on inaccurate information or false assumptions in violation of his rights to due process under the Fifth Amendment; his sentence was correct under our caselaw at the time. Rather, the legal consequences of his prior offense changed after Begay. Manigault argued that his sentencing guidelines range would be 168 to 210 months without the career offender designation. App. at 85. Manigault’s sentence of 188 months does not exceed the maximum of that guidelines range. Nor does his sentence exceed the statutory maximum of 480 months for his conviction. See 21 U.S.C. § 841(b)(1)(B)(iii). Manigault has not made a substantial showing of the denial of any constitutional right; rather, he alleges only that, after Begay, the application of the career offender enhancement to his sentence violates the sentencing guidelines.3 Under Cepero, this is question of whether Manigault waived his Begay claim. 2 As for the claims Manigault raised in his § 2255 motion in the District Court, we conclude that Manigault has not made a substantial showing of the denial of a constitutional right for essentially the reasons given by the District Court. 3 We acknowledge that one Court of Appeals has addressed a similar claim based on Begay on appeal from the denial of a § 2255 motion. The court in Sun Bear believed that the defendant’s Begay claim was not an ordinary claim of the misapplication of the sentencing guidelines. Rather, it believed the claim was based on a change in the law that made the District Court’s sentencing calculations unlawful. The court concluded that this “inherently results in a complete miscarriage of justice and presents exceptional circumstances that justify collateral relief under § 2255.” Sun Bear, 611 F.3d at 930 (quoting Davis, 417 U.S. at 346-47). While the Sun Bear court addressed the 6 not sufficient for the issuance of a certificate of appealability. III. For the above reasons, we will vacate the order granting the certificate of appealability and dismiss the appeal for lack of jurisdiction. cognizability of the claim under § 2255, it did not address whether the claim alleged a violation of a constitutional right under § 2253(c)(2), a distinct issue. Davis, 417 U.S. at 345-47; Cepero, 224 F.3d at 267 (“Section 2255 petitions . . . serve only to protect a defendant from a violation of the constitution or from a statutory defect so fundamental that a complete miscarriage of justice has occurred. . . . Under § 2253(c)(2), we have appellate jurisdiction over only those issues substantially shown to deny a petitioner a constitutional right.”). 7 

11-3421-cr United States v. Hagerman UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 20th day of December, two thousand twelve. Present: JOHN M. WALKER, JR., ROBERT A. KATZMANN, DEBRA ANN LIVINGSTON, Circuit Judges, ________________________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 11-3421-cr PAUL HAGERMAN, Defendant-Appellant. ________________________________________________ For Defendant-Appellant: MOLLY CORBETT, Research and Writing Specialist, (Gene V. Primomo, Assistant Federal Public Defender, Lisa Peebles, Interim Federal Public Defender, of counsel), Federal Public Defender Office, Albany, N.Y. For Appellee: RICHARD FRIEDMAN, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C.  (Tamara Thomson, Assistant United States Attorney, Northern District of New York, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Gregory D. Andres, Acting Deputy Assistant Attorney General, and Lanny A. Breuer, Assistant Attorney General, Criminal Division, United States Department of Justice. Appeal from the United States District Court for the Northern District of New York (Suddaby, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment and order of the district court be and hereby are AFFIRMED in part, REVERSED in part, and REMANDED. Defendant-Appellant Paul Hagerman appeals from a judgment and a post-judgment restitution order of the United States District Court for the Northern District of New York (Suddaby, J.), convicting him, following his guilty plea, of one count of receiving child pornography and one count of possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) & (a)(5)(B). On August 17, 2011, the district court imposed a Guidelines sentence of ninety-seven months’ imprisonment, a life term of supervised release, and a special assessment of $200. On November 30, 2011, the district court entered a post-judgment order holding the defendant jointly and severally liable to the victim for $975,917.64 in restitution, pursuant to 18 U.S.C. § 2259. On appeal, Hagerman contends that his sentence is procedurally unreasonable because the district court offered only a limited explanation for its sentence, and substantively unreasonable because it fails to take into account his personal circumstances. Hagerman also contends that the order of restitution is unlawful because: (1) Hagerman’s possession of the pornography did not proximately cause the victim’s harm; (2) the monetary harm the district court attributed to Hagerman’s conduct is too high; (3) he cannot be held jointly 2 and severally liable for all of the harm suffered by the victim; and (4) the district court failed to consider his financial ability to pay the restitution award and set an appropriate payment schedule. We presume the parties’ familiarity with the underlying facts and procedural history of this case as well as with the issues on appeal. We review a district court’s sentence for “reasonableness, which is ‘akin to review for abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds of allowable discretion, committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact.’” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011) (per curiam) (quoting United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007)). “A district court commits procedural error where it fails to calculate the Guidelines range (unless omission of the calculation is justified),” “makes a mistake in its Guidelines calculation,” “treats the Guidelines as mandatory,” “does not consider the [sentencing] factors” set out in 18 U.S.C. § 3553(a), “rests its sentence on a clearly erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Where the Court determines that there was no procedural error in a district court’s sentencing, it “then considers the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard, taking into account the totality of the circumstances.” United States v. Rigas, 583 F.3d 108, 121 (2d Cir. 2009) (internal quotation marks omitted). Although we do not presume that a sentence within the Guidelines range is reasonable, United States v. Dorvee, 616 F.3d 174, 182 (2d Cir. 2010), a district court’s substantive findings will be set aside only “in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions,” Cavera, 550 F.3d at 189 (internal quotation marks omitted). 3  Hagerman contends that the district court’s imposition of a 97-month term of imprisonment is procedurally unreasonable because the court offered a very limited explanation for its sentence. We disagree. Although the district court did not offer a lengthy explanation for its sentence, viewing the transcript in context, the district court provided a reasoned justification. Before pronouncing its sentence, the district court noted that it had reviewed and considered all of the information provided to it, and adopted the factual information contained in the Presentence Report. The court then sentenced Hagerman to 97 months’ imprisonment, concluding this was “sufficient but not greater than necessary to satisfy the requirements of justice in this case.” App’x 76–77. Immediately after announcing the sentence, the district court also found that the defendant “need[ed] extensive mental health treatment,” noting that although Hagerman “ha[d] been victimized himself,” “the need for non-disparate treatment in these types of cases, [together with] . . . the number of images, the violent nature of the images,” and that the defendant transported the images on a handheld device, were “all indications of a severe problem that needs addressing.” Id. at 77. These specific factors were mentioned in connection with the court’s recommendation that Hagerman participate in mental health and sex offender treatment while in prison, but they also demonstrate that the district court considered the factors outlined in § 3553(a) in fashioning its sentence. For example, the district court’s mention of “the need for non-disparate treatment in these types of cases,” is a reference to § 3553(a)(6), which sets forth “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” This reference identifies the court’s reasoning for the length of the sentence and does not relate to whether Hagerman could benefit from 4 mental health and sex offender treatment. Although the district court cannot fashion a sentence “to promote an offender’s rehabilitation,” Tapia v. United States, --- U.S. ----, 131 S. Ct. 2382, 2391 (2011), we have held that it is not procedurally unreasonable for a court to discuss rehabilitation in the course of issuing its sentence, so long as the length of the sentence is based on permissible considerations. See United States v. Gilliard, 671 F.3d 255, 259 (2d Cir. 2012). Here, in discussing the violent nature of the photographs and the need to avoid unwarranted sentencing disparities, balancing those factors against Hagerman’s own history of abuse, the district court gave sufficiently specific “reasons . . . for its chosen sentence.” United States v. Echeverri, 460 F. App’x 54, 56 (2d Cir. 2012) (summary order) (holding sentence procedurally unreasonable where district court’s only explanation for sentence was that the “low end” of the Guidelines range was “sufficient but not greater than necessary” to satisfy § 3553(a)). There is no “requirement that a sentencing judge precisely identify either the factors set forth in § 3553(a) or [respond to] specific arguments bearing on the implementation of those factors in order to comply with [his] duty to consider all the § 3553(a) factors,” United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006) (emphasis omitted), and we conclude that the district court has sufficiently discharged its duty here. Hagerman also argues that the district court’s sentence was substantively unreasonable in light of his offense characteristics and personal background. In particular, Hagerman notes that he has no prior criminal history, that he is the victim of sexual abuse, that he has never sexually abused a minor, and that a psychological assessment concluded that he poses only a low to moderate risk of reoffending. See, e.g., Dorvee, 616 F.3d at 183-84 (reversing statutory maximum sentence of 240 months where district court presumed reasonableness based on a 5 Guidelines range above the statutory maximum and speculated that defendant was at high risk of re-offending). We do not find this argument persuasive, as this is not an “exceptional case[] where the trial court’s decision cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189 (emphasis added); see also United States v. Gouse, 468 F. App’x 75, 78 (2d Cir. 2012) (summary order) (affirming as substantively reasonable a 120-month sentence for child pornography possession, where there was no evidence that defendant had ever had inappropriate contact with a minor, or had distributed child pornography); United States v. Magner, 455 F. App’x 131, 134-35 (2d Cir. 2012) (summary order) (affirming 108-month sentence in same circumstances). Moreover, unlike Dorvee, Hagerman was not sentenced to the 240-month statutory maximum, nor did the district court speculate in considering his likelihood of reoffending. See, e.g., United States v. Aumais, 656 F.3d 147, 149 & 157 (2d Cir. 2011) (affirming 121-month sentence, and noting that, unlike in Dorvee, the district court's sentence was “well short of the statutory maximum”); United States v. Henchey, 443 F. App’x 617, 619-620 (2d Cir. 2011) (summary order) (affirming as substantively reasonable a 120-month sentence for possessing and receiving child pornography for defendant with no past inappropriate contact with minors, and distinguishing Dorvee on the ground that the sentence was “well below . . . the statutory maximum”). Accordingly, we do not conclude that Hagerman’s sentence was substantively unreasonable. Next, Hagerman objects to the district court’s restitution order on multiple grounds. First, Hagerman contends that the district court erred in concluding that he proximately caused a portion of Vicky’s harms. We disagree. In our decision in Aumais, we joined the majority of our sister circuits in holding that where an individual depicted in child pornography seeks 6 restitution from a defendant who has been convicted for possessing that pornography, the victim’s losses “must be proximately caused by the defendant’s offense.” Aumais, 656 F.3d at 153. That standard has been met here. The district court reasonably found that Vicky had actual knowledge of Hagerman’s offense conduct as her representative had informed her of this action, and that her knowledge that Hagerman was among those who had downloaded her picture had caused her actual and ongoing psychological harm, as demonstrated in her victim impact statement and psychological evaluations. See United States v. Kearney, 672 F.3d 81, 99–100 (1st Cir. 2012) (holding proximate cause satisfied where victim submitted evidence of notice and harm). Hagerman also objects to the district court’s determination of the amount of restitution attributable to his conduct. Although the district court determined that Hagerman proximately caused only $6,636.24 of Vicky’s recoverable losses, the district court nevertheless held Hagerman jointly and severally liable for all $975,917.64 of those losses. Both parties agree that the imposition of joint and several liability was improper in the circumstances of this case. We also agree. In Aumais, we held that the wording of “[s]ection 3664(h) implies that joint and several liability may be imposed only when a single district judge is dealing with multiple defendants in a single case” and “does not contemplate apportionment of liability among defendants in different cases, before different judges, in different jurisdictions around the country.” Aumais, 656 F.3d at 156. The district court’s imposition of joint and severally liability in this single action against Hagerman is squarely foreclosed by Aumais.1 1 The district court’s opinion argues that Aumais and the cases on which it relied were wrongly decided. It is well-established, however, that a panel of this Court does not have the authority to overrule a precedent set by a prior panel. See, e.g., United States v. Minaya, 321 F. 7  We hold that Hagerman should only be responsible for the losses that he proximately caused. The district court determined that Hagerman, as one of approximately 146 defendants successfully prosecuted for the unlawful possession of child pornography featuring Vicky, contributed to 1/146 or 0.68% of the harm she sustained from the downloading of her images from the Internet. The district court also found that the harm caused her to suffer total economic losses of $1,224,697.04, of which $248,779.40 had been collected through restitution payments from other defendants, leaving $975,917.65 unpaid and recoverable. Then the district court applied the percentage of harm caused by Hagerman to the unpaid loss balance to find Hagerman as having proximately caused $6,636.24 of Vicky’s unpaid losses. We find this approach to determining the proximate loss amount, on a per capita basis, to be reasonable but misapplied in the actual calculation. Since a total of 146 individuals generated a total of $1,224.697.04 in losses, Hagerman’s share should be 1/146 of that total or $8,388.31. The district court’s calculation overlooks the fact that some of the 146 defendants had already paid their restitution to the victim and cannot be counted on to make further contributions toward the unpaid loss balance. Counting them among the remaining contributors improperly reduced Hagerman’s share of the burden. Hagerman next contends that the district court abused its discretion in declining his request to hold an evidentiary hearing to resolve certain issues related to the court's restitution award. We have observed that: [I]n the context of contested issues regarding the propriety of a restitution award, . . . the sentencing procedures employed to resolve such disputes are within the district court's discretion so long as the defendant is given an adequate opportunity to present his App’x 37, 42 (2d Cir. 2009) (summary order). 8  position[.] The district court is not required, by either the Due Process Clause or the federal Sentencing Guidelines, to hold a full-blown evidentiary hearing in resolving sentencing disputes. All that is required is that the court afford the defendant some opportunity to rebut the Government's allegations. United States v. Sabhnani, 599 F.3d 215, 257-258 (2d Cir. 2010) (internal quotation marks and alterations omitted). Pursuant to 18 U.S.C. § 3664(d)(5), so long as the victim’s losses are ascertainable at least ten days before sentencing, and the documents supporting the victim’s losses are provided to the defendant within this time-frame, the district court may decide restitution at the sentencing hearing without holding a separate evidentiary hearing. See also Fed. R. Crim P. 32(i)(2) (“The court may permit the parties to introduce evidence on the [parties’] objections [to the probation officer’s presentence report].” (emphasis added)). As such, at the sentencing phase of a criminal proceeding, a defendant has no right to “a hearing at which to cross-examine his victims.” United States v. Morrison, 153 F.3d 34, 54 (2d Cir. 1998). Here, Hagerman contends that the exhibits submitted by the government and Vicky in support of a restitution award are not “reliable and accurate” because they are “unsworn” and are based on information “non-specific to Mr. Hagerman.” Pet’r’s Br. 48 (citing United States v. Pugliese, 805 F.2d 1117, 1124 (2d Cir. 1986) (sentencing court has “due process obligations . . . to consider only reliable and accurate information”)). Further, Hagerman requested a hearing to determine: (1) whether he actually viewed the images of Vicky, (2) whether his offense conduct proximately caused Vicky’s harms, (3) what portion of the damages should be attributed to (a) Vicky’s biological father, who sexually abused Vicky and distributed images of the abuse on the internet, (b) others that viewed the images, and (c) those viewers of the images who have sought to contact Vicky, and (4) what amount of counseling Vicky is entitled to. Hagerman thus contends that he “objected . . . with specificity” to Vicky’s and the government’s submissions 9 prior to sentencing, and that, accordingly, the statements made in those submissions cannot be relied upon unless substantiated by “sworn testimony subject to cross-examination.” We disagree that any further corroboration through an evidentiary hearing was required here. As an initial manner, § 3664 expressly provides that “[n]o victim shall be required to participate in any phase of a restitution order.” 18 U.S.C. § 3664(g)(1); see also United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978) (“Due process does not prevent use in sentencing of out-of-court declarations” by a person whose true identity is not disclosed “where there is good cause for the nondisclosure of [her] identity and there is sufficient corroboration by other means.”). The district court had determined by a preponderance of the evidence after careful review of the records submitted by the government that Vicky’s re-victimization by those who downloaded her images from the Internet was responsible for all of her recoverable losses. This is because she was recovering through therapy from her original abuse when she learned that her images were being distributed on the Internet. It was this startling discovery that “threw her world into chaos” and continues to haunt her even as she is now secure in her knowledge that her original perpetrator is in prison and cannot harm her again. The district court was persuaded by Vicky’s psychological reports and victim impact statements that her ongoing suffering is nearly exclusively the result of her re-victimization. Hagerman does not rebut these findings. More broadly, despite ample opportunity, Hagerman has never once indicated what evidence he would submit, or testimony he would elicit, at a restitution hearing. He has remained silent throughout, including: (a) his July 22, 2011 sentencing memorandum, submitted in anticipation of the sentencing hearing; (b) his counsel’s opportunity at the sentencing hearing to object to the PSR, which stated that the “net 10 amount of economic losses” suffered by Vicky for restitution purposes is “$975,917.64,” PSR ¶ 13; see App’x 76 (no objection when the district court expressly adopted all “the factual information contained in the Presentence Report”); (c) the two months in between the August 17 sentencing hearing and the district court’s November 30 restitution order, during which time Hagerman submitted nothing to the court relevant to restitution; and (d) his brief in the instant appeal, see Pet’r’s Br. 50-53. Moreover, many of the issues identified by Hagerman as needing to be further developed at a hearing are purely legal, not factual. Specifically, in contending that a hearing is necessary to resolve issues of causation — i.e., whether Hagerman proximately caused Vicky’s harm, and if so, how damages should be apportioned between the various perpetrators who caused Vicky harm — Hagerman does not identify any underlying unresolved factual disputes relating to these issues. Further, as to the issues not relating to causation, Hagerman did not proffer any evidence indicating that he had a fact-based disagreement with the information contained in Vicky’s submissions. In other words, Hagerman did not indicate that he would testify that he had not actually viewed the images, nor did he indicate that he had a fact-based objection to the forensic accounting of the monetary harm Vicky has suffered as a result of her victimization. Because Hagerman failed to proffer any evidence he would offer at a restitution hearing, and because he failed to identify any factual issues susceptible to resolution at a hearing, we conclude that the district court did not abuse its discretion in ordering restitution based on the parties’ submissions alone. See United States v. Pierre, 285 F. App’x 828, 829 (2d Cir. 2008) (summary order) (holding the “District Court did not abuse its discretion in choosing not to hold a hearing before ordering restitution in the amount of $618,312” where it gave defendant “the 11 opportunity to challenge the restitution amount” (internal quotation marks omitted)); United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir. 1996) (“All [the process] that is required [to award restitution] is that the court afford the defendant some opportunity to rebut the Government's allegations.” (internal quotation marks omitted)); see also United States v. Payne, 125 F.3d 845, 1997 WL 609128, at *4 (2d Cir. Oct. 3, 1997) (summary order) (holding no abuse of discretion in denying request for restitution hearing where “the district court afforded the appellant ample opportunity to object to the loss figures in the PSR and to present evidence in support of his position”). Finally, Hagerman contends that remand is necessary because the district court failed to consider his ability to pay restitution, and did not determine whether restitution would be payable immediately or according to a schedule of payments. Although the district cannot consider ability to pay in determining the amount of any restitution award, 18 U.S.C. §§ 2259(b)(4)(B), 3664(f)(1)(A), the court is obligated to set the defendant’s restitution payment schedule “in consideration of . . . the financial resources and other assets of the defendant,” 18 U.S.C. § 3664(f)(2); see United States v. Lucien, 347 F.3d 45, 53 (2d Cir. 2003) (“[T]he record must disclose some affirmative act or statement allowing an inference that [in determining the schedule of payments] the district court in fact considered the defendant's ability to pay.” (internal quotation marks omitted)). The district court here already recognized that it neglected to set a payment schedule, and sought leave from this Court to correct its mistake after Hagerman filed his noticed of appeal. Since we reverse on the ground that the district court incorrectly calculated the amount of harm attributable to Hagerman, however, there is no need to grant the district court’s request for leave to correct the order. When the district court 12 reconsiders the appropriate calculation of the restitution owed by the defendant on remand, the district court should also consider the defendant’s financial circumstances in setting a restitution payment schedule that accords with the “interest of justice.” 18 U.S.C. § 3572(d)(1). Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED, the restitution order is REVERSED, and the case is REMANDED for further proceedings consistent with this Order. FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK 13 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-4171 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDWARD JAIMAAL PRICE, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (4:16-cr-00006-JLK-1) Submitted: January 18, 2018 Decided: February 9, 2018 Before GREGORY, Chief Judge, and TRAXLER and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Joseph A. Sanzone, SANZONE & BAKER, PC, Lynchburg, Virginia, for Appellant. Rick A. Mountcastle, Acting United States Attorney, Thomas E. Duncombe, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Harrisonburg, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: After the district court denied Edward Jaimaal Price’s motion to suppress drug evidence, he entered a conditional guilty plea—pursuant to a written plea agreement—to possession with intent to distribute 28 grams or more of cocaine base, a violation of 21 U.S.C. § 841(a)(1) (2012). Price now appeals the district court’s order denying his motion to suppress. For the reasons that follow, we affirm the judgment of the district court. “When a district court has denied a motion to suppress, we review the court’s legal conclusions de novo and its factual findings for clear error[,] . . . view[ing] the evidence in the light most favorable to the government.” United States v. Hill, 852 F.3d 377, 381 (4th Cir. 2017) (citation omitted). “We owe particular deference to a district court’s credibility determinations, for it is the role of the district court to observe witnesses and weigh their credibility during a pre-trial motion to suppress.” United States v. Patiutka, 804 F.3d 684, 689 (4th Cir. 2015) (brackets and internal quotation marks omitted). Price first contends that the arresting officers violated his Fourth Amendment rights by seizing him at gunpoint without probable cause because there was insufficient evidence demonstrating that he was the fugitive the officers thought he was. A vehicle stop constitutes a seizure within the meaning of the Fourth Amendment, Whren v. United States, 517 U.S. 806, 809 (1996), and is permissible if the officer has “probable cause to believe that a traffic violation has occurred,” id. at 810, regardless of the officer’s subjective motivations, id. at 813-19. “[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle 2 without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977). Furthermore, we have acknowledged that “drawing weapons, handcuffing a suspect, . . . or using or threatening to use force does not necessarily elevate a lawful stop into a custodial arrest,” particularly if the “officers reasonably suspect[ ] that [the detainee is] armed and dangerous.” United States v. Elston, 479 F.3d 314, 320 (4th Cir. 2007) (internal quotation marks omitted). Similarly, officers may lawfully frisk a person during a traffic stop if they “harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327 (2009). “In determining whether such reasonable suspicion exists, we examine the totality of the circumstances to determine if the officer[s] had a particularized and objective basis for believing that the detained suspect might be armed and dangerous.” United States v. George, 732 F.3d 296, 299 (4th Cir. 2013) (internal quotation marks omitted). In particular, “[a] suspect’s suspicious movements [may] . . . be taken to suggest that the suspect may have a weapon.” Id. The district court found credible one officer’s uncontested testimony that Price was driving with an expired temporary license plate and, therefore, did not err in concluding that the officers lawfully stopped Price regardless of their subjective belief that he was the fugitive. The district court also found credible both officers’ testimony that, when they approached Price’s vehicle, Price was moving suspiciously, as if he were reaching under his seat, and that he did not comply with their orders to keep his hands up. The court, therefore, did not err in finding that the officers reasonably suspected Price of 3 being armed and dangerous and, therefore, that they lawfully removed Price from his vehicle, handcuffed him, and frisked him for weapons. Price further contends that the district court erred in finding that the officers searched him pursuant to his valid arrest for possession of marijuana, asserting that the officer who searched him did not testify that he smelled marijuana and that the officers found no marijuana. A warrantless arrest is valid so long as “there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “We have repeatedly held that the odor of marijuana alone can provide probable cause to believe that marijuana is present in a particular place.” United States v. Humphries, 372 F.3d 653, 658 (4th Cir. 2004). “Thus, if an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.” Id. at 659. The district court found credible one officer’s testimony that, upon opening Price’s car, he recognized the strong smell of marijuana and that the smell was even stronger on Price’s person. A third officer, who arrived at the scene later, corroborated that testimony. Furthermore, despite Price’s assertion otherwise on appeal, the presentence report—to which Price did not object—indicated that the officers found a small bag of marijuana in his pants pocket. Accordingly, in the absence of evidence that the searching officer did not smell the marijuana, it was reasonable for the district court to conclude that both arresting officers noticed the smell and that they were both therefore aware of facts that provided probable cause to arrest Price for the possession of marijuana. 4  The Supreme Court has long held that, upon a lawful warrantless arrest, the officers may conduct a full search of an arrestee’s person and personal items in his possession and control without any additional justification. United States v. Robinson, 414 U.S. 218, 234-35 (1973). Having concluded that the officers had probable cause to arrest Price for marijuana possession, the district court did not err in concluding that the search of Price’s person was a valid search pursuant to that arrest. Insofar as the district court denied Price’s motion to suppress because the search that led to the drug evidence was pursuant to a valid arrest, it did not err. Accordingly, we affirm. 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 5 

774 So.2d 254 (2000) Lucius J. WILLIAMS, Sr. v. RAVARE MASONRY CO. No. 00-00329-CA. Court of Appeal of Louisiana, Third Circuit. October 4, 2000. Rehearing Denied January 10, 2001. *255 George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, Louisiana, Counsel for Plaintiff-Appellant. Bradley J. Gadel, Alexandria, Louisiana, Counsel for Defendant-Appellee. Court composed of Judge HENRY L. YELVERTON, SYLVIA R. COOKS and MICHAEL G. SULLIVAN, Judges. COOKS, Judge. Lucius Williams appeals a judgment of the Office of Workers' Compensation, District 2, denying his claims for benefits, penalties, and attorney's fees. The workers' compensation judge found Williams failed to prove the alleged "unwitnessed" work-related accident occurred and that the alleged accident caused his medical condition. Williams contends the judge had no sound reason to disbelieve his account of the accident and erred by rendering a ruling solely based on credibility assessments. Williams maintains the corroborating evidence and circumstances of the accident and injury sufficiently prove by a preponderance of evidence that he was injured in an accident during the course and scope of his employment. Williams also contends the Louisiana United Business Association (LUBA) adjuster failed to meaningfully investigate his claim, and denied his claim without any factual information to support the refusal. As such, Williams contends sanctions and attorney's fees are warranted. We disagree and affirm the judgment for the following reasons. I. To establish entitlement to workers' compensation benefits, a claimant must prove by a preponderance of the evidence that an accident occurred during the course and scope of his employment; the accident caused his injuries; and the injury caused his disability. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La. 1979); Ceasar v. Crispy Cajun Restaurant, 94-30 (La.App. 3 Cir. 10/5/94); 643 So.2d 471, writ denied, 94-2736 (La.1/16/95); 648 So.2d 931. Once he has established the aforementioned elements, pursuant to La.R.S. 23:1221(1), a claimant must then show by "clear and convincing" *256 evidence that he is temporarily totally disabled. It is well established that a worker's testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. West, 371 So.2d at 1147; Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers' Compensation, Sec. 253 (2d Ed.1980). Corroboration of the worker's testimony may be provided by the testimony of fellow workers, spouses or friends. Id. Corroboration may also be provided by medical evidence. West, 371 So.2d at 1146. True, Louisiana courts consistently have interpreted the work-related accident requirement liberally, but the liberal construction of the statute does not relax the worker's burden of proof. Bruno v. Harbert Int'l. Inc., 91-1444 (La.1/17/92); 593 So.2d 357; Williams v. Regional Transit Auth., 546 So.2d 150 (La. 1989); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). The Office of Workers' Compensation judges' findings are subject to the same standard of review as are trial court judges' findings. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94); 630 So.2d 706. Whether claimant discharged his burden of proof is a factual determination not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Bruno 593 So.2d at 361; City of Eunice v. Credeur, 99-302 (La.App. 3 Cir. 10/13/99); 746 So.2d 146, writ denied granted in part and denied in part, 99-3249 (La.1/28/00); 753 So.2d 226. The appellate court must determine whether the testimony and evidence contained in the record establishes that a reasonable factual basis does not exist for the workers' compensation judge's findings and that the record establishes the findings were clearly wrong/manifestly erroneous. See Mart v. Hill, 505 So.2d 1120 (La.1987). In reaching this decision, "the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review...." See Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). However, the Louisiana Supreme Court in West, stated, "the appellate court is not required by [the manifest error/clearly wrong] principle to affirm the trier of fact's refusal to accept as credible uncontradicted testimony ... where the record indicates no sound reason for its rejection...." West, 371 So.2d at 1150; Ceasar, 643 So.2d at 473. Applying the foregoing principles of review, we conclude the judgment was neither clearly wrong nor manifestly erroneous. II. It is clear from his reasons for judgment, the workers' compensation judge fully rejected Williams' account of the alleged accident and subsequent disability. He noted several factors which cast doubt on Williams' story. First, the judge found a lack of corroborating testimony from both co-workers and Williams' supervisor to establish the alleged work-related accident occurred, noting Williams failed to timely report the alleged accident to his employer and treating physician. Next, the judge found the medical documentation presented by Williams to establish a link between the alleged accident and his injury was insufficient. Finally, he found Williams' testimony was not credible, surmising "these inconsistencies all indicate that Williams is not being truthful in his account of his accident." Williams testified that on June 30, 1998, he was employed by Ravare Masonry Co. as a laborer. The crew stopped working for a while that day because it was raining. When the rain stopped the crew returned to work. Shortly after, Williams alleged he slipped and did a "split" while carrying *257 a 16 foot scaffolding board up a slight incline. He felt a stinging sensation in his groin and hip area, but completed the day's work. On the drive home, Williams claims he mentioned to members of the crew that he might have hurt himself. But no one testified at trial that they witnessed the alleged accident, nor did anyone recall Williams mentioning any such incident or injury. On July 2, 1998, Williams arrived at Huey P. Long Medical Center complaining of hip and groin pain. At the time, Williams was taking "gout pills" for pain in his knees, which caused him to walk with a limp. The medical chart completed on that date revealed Williams reported "a hyper-abducted left leg two days ago." This finding Williams argues proves his injury resulted from a "split," which occurred at the time he alleged he slipped and did a split on the job. However, a radiology exam conducted on the same date shows Williams' left hip and pelvis evidenced chronic bilateral avascular necrosis with no signs of fractures nor dislocations of his joints.[1] Williams continued work with Ravare Masonry after the alleged injury for five days, but failed to report the incident directly to his employer; nor did he inform his supervisor of the July 2, 1998 hospital visit. When questioned by counsel at trial why he failed to report the accident at that time, Williams responded he felt the injury was not serious. From July 9th to July 21st Williams did not return to work. On July 22, 1998, Williams arrived ready to work and resumed his full duties until September 6, 1998, at which time he quit, complaining of continued pain. Williams contends his sporadic work pattern during July and August evidence his disability. The record reflects, however, Williams rarely logged a full forty-hour work week, even before the alleged injury. Sylvester Ravare testified Williams suffered from gout and an arthritic condition which caused him to miss work prior to the alleged accident. Aaron Simon, a co-worker, testified he recalled Williams complaining about pain in his hip and back on certain occasions. But Williams worked over forty hours with Ravare the last week before he decided to quit. On September 7, 1998, Williams returned to Huey P. Long Medical Center again complaining of hip and groin pain. The medical chart indicates Williams stated he pulled his groin muscle and did a split four months prior. The attending physician diagnosed Williams as suffering from a possible pulled groin muscle and avascular necrosis. Williams' radiology exam on this visit again indicated chronic avascular necrosis involving both femoral heads, without signs of fractures nor dislocations. Williams remained unemployed until March 1999, when he resumed working as a carpenter's helper for another employer. Dr. Rambach, an orthopaedic specialist, examined Williams in June 1999, and found he suffers primarily from avascular necrosis of the femoral heads. The doctor also noted a degenerative arthritic condition in his lower back. Dr. Rambach recommended Williams undergo tests to rule out sickle cell disease or other abnormal hemiglobin anemias. As noted by the workers' compensation judge, "even Dr. Rambach... was not completely sure that the avascular necrosis condition ... was causally related to the alleged June 30, 1998, `split.'" Further, Williams' medical history revealed an injury occurring in June 4, 1992 when he fell approximately eight feet from scaffolding. Williams injured his tail-bone, and suffered pain in his left leg and hip. Williams failed to disclose the prior injury to any of the treating physicians who examined him after the alleged work injury at issue. The first documented report of Williams' alleged work accident is found in a demand letter his attorney sent to Ravare dated September 21, 1998. The company reported the injury to Risk Management Services, the claims adjusting service for LUBA (Louisiana United Businesses Association) *258 self-insured fund on September 22, 1998. However, Williams testified he attempted to process his workers' compensation claim earlier that month but was not assisted by Ravare Masonry in obtaining the proper claim forms. Sylvester Ravare testified he was "stunned" to hear of the alleged accident because Williams had been working "all the time," and the accident supposedly occurred a couple months back. As noted, Aaron Simon testified he recalled Williams complaining about pain in his hip and back, but he never heard Williams mention a work-related accident. Simon also testified the workers at Ravare Masonry knew to report any work-related accident immediately, even if the resulting injury did not prevent them from continuing to work. III. After completely reviewing the record, we find the judge had sound reason to question the uncorroborated version of Williams' account. The alleged accident went unreported for over two months, while Williams continued to work at Ravare Masonry. Testimony indicated that each worker knew to report any work-related injury immediately to his supervisor. However, until September 1998, Williams never mentioned the occurrence of a work-related accident. Williams' supervisor and co-workers also testified he complained of hip and back problems and missed work because of "gout" and an unrelated arthritic condition prior to the alleged incident. The workers' compensation judge also had sound reasons to find the medical documentation submitted by Williams did not sufficiently link the alleged accident with his current medical condition. Although Williams may have slipped and "split" his legs, there is little in the record except Williams' testimony which establishes his medical abnormality resulted from or was aggravated by the alleged work event. Williams argues that the evidence scale should tip in his favor because "defendant failed to produce sufficient evidence to cast serious doubt upon [his] version of the work accident?" He suggests the Louisiana Supreme Court perhaps "envisioned a balancing test" when weighing the evidence in unwitnessed accident cases. "In other words," Williams postulates: "where the injured worker presents compelling corroborative evidence ..., a defendant insurer, in order to carry its burden, would have to produce equally compelling evidence to cast doubt. On the other hand, if plaintiff's version was not amply corroborated (for instance, the medical histories did not support a work injury, or after his unwitnessed injury, he did not miss any work or had no difficulty doing his work), then defendant would not have to produce substantial evidence to cast doubt." Williams argument, though masterfully creative, suffers from one fatal legal flaw-the plaintiff, not the defendant, still bears the burden of proof. Until the supreme court tells us what Williams argues it is thinking in silence, we must follow the court's instruction in West v. Bayou Vista Manor, Inc. Therefore, in order to find Williams' testimony alone sufficient, we must conclude no other evidence discredits or casts serious doubt upon his version, and his testimony is corroborated by the circumstances following the alleged incident. West, 371 So.2d at 1146. The corroborative evidence Williams presented was not so compelling nor was it left unrebutted by defendants. Williams' argument that we should impose sanctions against his employer and award attorney's fees is rendered moot by our decision to affirm the workers' compensation judge's ruling. DECREE For the foregoing reasons, the judgment of the Office of Workers' Compensation is affirmed. AFFIRMED. NOTES [1] The workers' compensation judge noted Dorland's Illustrated Medical Dictionary, 27th Edition indicates avascular necrosis is the direct result of a deficient blood supply.

Honorable Jack McLaughlin Opinion No. M- 961 Commissioner Bureau of Labor Statistics Re: Whether the provisions Austin, Texas of Article 5221(f), V.C.S., as amended require Mobile Home Dealers to pay an annual license fee of Dear Mr. McLaughlin: $50.00. In your recent letter to this office you pointed out that the 61st Legislature enacted legislation regulating the manufacture and sale of mobile homes. This legislation was codified as Article 5221(f), Vernon's Civil Statutes, and required all dealers and manufacturers of mobile homes to pay an annual license fee of $50.00 to your department. The 62nd Legislature amended Article 5221(f), and that Article as amended does not contain a requirement for the payment of the $50.00 license fee. In view of this, you have requested our opinion as to whether dealers and manu- facturers of mobile homes are still required to pay an annual license fee of $50.00 to your department. Article 5221(f), as originally enacted by the 61st Legislature, provided for the establishment of a uniform code of standards for the plumbing, heating, and electrical systems installed in mobile homes manufactured or sold in this State. The Article required that all dealers and manufacturers of mobile homes procure a license upon the payment of the $50.00 fee, and that compliance with the plumbing, heating, and electrical standards be evidenced by a seal placed on the mobile home by the manufacturer or dealer. The seals were to be obtained from your department at a cost of $3.00 to the dealer or the manufacturer. By House Bill 956, Acts 1971, 62nd Legislature, chapter 896, page 2765, Article 5221(f) was completely revised, and the scope of its application extended. In addition to pro- -4703-  . Honorable Jack McLaughlin, page 2 (M-961) viding standards for the installation of plumbing, heating, and electrical systems in mobile homes, the Article as amended also provides for uniform standards in require- ments for the body and frame design and construction of mobile homes. Instead of requiring that dealers and manu- facturers of mobile homes be licensed, the Article now provides for a system whereby manufacturers will be issued a certificate of acceptability upon certification that mobile homes will be manufactured in compliance with the established standards. Each mobile home manufactured and sold within the State must also bear a seal issued by the department which indicates that the mobile home was manu- factured in compliance with uniform standards. The Article as amended further makes it unlawful to manufacture or sell a mobile home within the State except in compliance with the standards established pursuant to the Article. The Article as amended makes no mention of a license for either a manufacturer or dealer. Section 11 pertains to fees and charges and reads as follows: Wet. 11. (a)The Board with the advice of the department shall esta- blish a schedule of fees to pay the cost incurred by the department for the work relating to the administra- tion and enforcement of this Act. ‘l(b) The Board shall set a fee for the issuance and annual renewal of certificates of acceptability which shall not exceed $100 per year. “(c) The Board shall also set a charge for the issuance of seals of approval which shall not exceed $3.00 per seal. l’(d) All fees shall be paid to the state treasury and placed in a special account for the use of the department in the administration and enforcement of this Act.” This is the only provision in the amended Article which relates to the payment of fees in connection with -4704- Honorable Jack McLaughlin, page 3 (M-961) the administration and enforcement of the Act. Although House Bill 956, does not contain a repealing clause, we are compelled to the conclusion that Article 5221(f) as amended is quite clearly intended to embrace the entire body of law on the subject of the regulation of the manu- facture and sale of mobile homes. It is a complete sub- stitute for the prior law on this subject and repeals the orior Act even though House Bill 956 contains no repeHling clause. Commercial Code Co. v. American Manu- Gsi?F%s;: 2 ~r:;2~f8~~l:~~~.~~~.~~~:2~g~~~~e~~~~. Civ.App. 1939, error ref.). You are therefore advised, that the fifty dollars ($50.00) license fee required of dealers and manufacturers of mobile homes under the provisions of Article 5221(f), Vernonls Civil Statutes, is no longer required under the provisions of that Article as amended by the House Bill 956, Acts 1971, 62nd Legislature, Chapter 896, page 2765. SUMMARY House Bill 956, Acts 1971, 62nd Legis- lature, Chapter 896, page 2765, completely revises and replaces the provisions of Article 5221(f), V.C.S., and the $50.00 license fee which that Article previously required of dealers and manufacturers of mobile homes is no longer required to be paid to the Bureau of Labor Statistics. Veii truly yours, Prepared by W. 0. Shultz Assistant Attorney General APPROVED: OPINION COMMITTEE -4705-  Hdnbrable Jack McLaughlin, page 4 (M-961) .. '..:.- Kerns Taylor, Chairman ...W. E./... ,Allen, I Co-Chairman Harriet Burke Malcolm Quick Ben Harrison Scott Garrison SAM MCDANIEL Acting Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant -4706- 

844 F.2d 795 Lyonsv.Eastern Airlines, Inc.* NO. 87-3316 United States Court of Appeals,Eleventh Circuit. MAR 28, 1988 1 Appeal From: M.D.Fla. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 23

32 F.2d 857 (1929) HUNTLEY, Collector of Internal Revenue, v. GILE et al. No. 5626. Circuit Court of Appeals, Ninth Circuit. May 27, 1929. *858 George Neuner, U. S. Atty., and Forrest E. Littlefield, Asst. U. S. Atty., both of Portland, Or., and C. M. Charest, Gen. Counsel, and George G. Witter and H. A. Cox, Sp. Attys., Bureau of Internal Revenue, all of Washington, D. C., for appellant. Charles E. McCulloch, of Portland, Or., Wm. H. Trindle, of Salem, Or., and Ivan F. Phipps and Carey & Kerr, all of Portland, Or., for appellees. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. DIETRICH, Circuit Judge. The appellees, plaintiffs below, brought this suit to recover $18,696.97 which they allege the appellant, collector, illegally compelled them to pay on account of income and excess profits tax for the fiscal year ending August 31, 1917. Their return was filed March 30, 1918, and the additional tax here in question was assessed in December, 1922. On March 23, 1923, they filed with the defendant a claim for the abatement of the assessment, which was disallowed by the Commissioner of Internal Revenue on May 23, 1924, and on September 11, 1924, they paid the assessment under compulsion of a warrant of distraint issued September 6, 1924. On January 30, 1925, they filed their claim for a refund of the amount so paid, which was disallowed on May 19 of the same year, and on March 17, 1926, they commenced this action. They set up (1) that in point of fact and law there was no basis for the assessment; and (2) that, when the distraint proceedings were instituted, the statute of limitations had run. Without considering the first contention, the court below sustained the second and accordingly gave them judgment as prayed. Appellant concedes that under the rule of Bowers v. New York & A. L. Co., 273 U. S. 346, 47 S. Ct. 389, 71 L. Ed. 676, the five-year period of limitation prescribed by section 250(d) of the Act of 1921 (42 Stat. 265) constituted a bar at the time the collection was made, and further that, the bar being complete at the time the 1924 act was passed (June 2, 1924), the collection was not authorized under section 278(e) of that Act (26 USCA § 1062 note). In short, it is conceded that, as the statutes stood at the time of the collection, the distraint proceedings were unlawful, and plaintiffs would be entitled to recover but for the provisions of sections 607 and 611 of the Revenue Act of 1928 (26 USCA §§ 2607, 2611), which appellant contends operated to disable plaintiffs to recover unless they show that upon the merits the assessment was invalid. By this section 607 it is declared that any tax assessed or paid after the expiration of the period of limitation properly applicable thereto "shall be considered an overpayment and shall be credited or refunded to the taxpayer if claim therefor" is seasonably filed; and section 611 is as follows: "If any internal-revenue tax (or any interest, penalty, additional amount, or addition to such tax) was, within the period of limitation properly applicable thereto, assessed prior to June 2, 1924, and if a claim in abatement was filed, with or without bond, and if the collection of any part thereof was stayed, then the payment of such part (made before or within one year after the enactment of this Act) shall not be considered as an overpayment under the provisions of Section 607, relating to payments made after the expiration of the period of limitation on assessment and collection." By appellees it is conceded that the payment here in question falls within all the descriptive requirements of this latter section, save possibly the qualifying condition, "if the collection of any part thereof was stayed"; but upon that point it is to be noted that, in the course of the trial, the following colloquy took place in open court between Mr. Littlefield, attorney for appellant, and Mr. McCulloch, attorney for appellees: "Mr. Littlefield: I think it is admitted, isn't it, Mr. McCulloch, that in that stipulation that you filed a claim of abatement? "Mr. McCulloch: Yes, your Honor, if there is any virtue in the section of the 1928 act with respect to filing a claim of abatement, the stipulation admits that we did file a claim in abatement and that collection was stayed." It is true that appellees did not thus in terms admit that the stay was effected by or ensued because of the pendency of the claim in abatement, but we are unable to escape the view that both sides intended to be understood as agreeing that the facts were such as to bring the case within the statutory condition, and that because of such understanding counsel for appellant refrained from offering evidence upon the point. While textually section 611 is open to construction, upon the whole we are left in no doubt that by it Congress intended to withhold from the taxpayer the right to have refunded money paid by him in the discharge of a valid tax, under the conditions therein stated, where the only objection which could be made to its collection was the expiration of the applicable period of limitation. Otherwise the section is without apparent meaning. To appellees' contention that effect may *859 be given to it by holding that it was intended to apply only to cases of voluntary payment, the answer is that not only does the language fail to intimate such a limitation, but to the contrary the entire section relates to assessments which the taxpayers by claims for abatement sought to escape and which therefore presumably they unwillingly paid. And, in reporting the bill which afterwards became the Revenue Act of 1928, the Ways and Means Committee made a statement explanatory of the conditions the proposed section 611 was designed to meet, which puts beyond all possibility of doubt the committee's conception of its purpose and intent. It was said: "Prior to the enactment of the Revenue Act of 1924, it was the administrative practice to assess immediately additional taxes determined to be due. Upon the assessment, taxpayers were frequently permitted to file claims in abatement with the Collector and thus delay the collection until the claim in abatement could be acted upon. If this practice had not been followed, undue hardship undoubtedly would have been imposed upon the taxpayer. It was supposed that there was no limitation upon the collection by distraint of the amount ultimately determined to be due. However, the Supreme Court has recently held in a case in which the period for assessment expired prior to the enactment of the 1924 Act, that the period for collection was limited to five years from the date on which the return was filed. Decisions upon claims in abatement are being made every day. Amounts have been paid, are being paid, by the taxpayer even though the statute of limitations may have run. Exceptionally large amounts are involved. Accordingly, it is of utmost importance to provide that the payments already made should not be refunded. In order to prevent inequality, it is also provided that the amounts not yet paid may be collected within a year after the enactment of the new Act. "Your Committee appreciates the fact that this provision will probably be subjected to severe criticism by some of the taxpayers affected. However, it must be borne in mind that the provision authorizes the retention and collection only of amounts properly due, and merely withdraws the defense of the statute of limitations. If it is determined that the amount paid is in excess of the proper tax liability, computed without regard to the statute of limitations, such excess will constitute an overpayment which may be refunded or credited as in the case of any other overpayment." Report No. 2, 70th Cong., 1st Sess., p. 34. Under a fair construction we are of the opinion that the section as enacted into law expresses this intent and accordingly that under the admitted facts plaintiffs are entitled to a refund only in case they show that the assessment is invalid upon the merits. The further contention made is that so construed the statute is invalid because it purports to deprive plaintiffs of a vested right. But no vested right accrues to the taxpayer out of the running of the period of limitation for the collection of a valid tax. Rafferty v. Smith, Bell & Co., 257 U. S. 226, 42 S. Ct. 71, 66 L. Ed. 208; United States v. Heinszen & Co., 206 U. S. 370, 27 S. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688; Collector v. Hubbard, 79 U. S. (12 Wall.) 1, 20 L. Ed. 272; Haight v. United States (C. C. A.) 22 F.(2d) 367; Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483; South & N. A. R. Co. v. Alabama, 101 U. S. 832, 25 L. Ed. 973; Beers v. Arkansas, 61 U. S. (20 How.) 527, 15 L. Ed. 991; West Side Belt R. Co. v. Pittsburgh Const. Co., 219 U. S. 92, 31 S. Ct. 196, 55 L. Ed. 107; Brushaber v. Union Pac. R. Co., 240 U. S. 1, 36 S. Ct. 236, 60 L. Ed. 493, L. R. A. 1917D, 414, Ann. Cas. 1917B, 713; Lynch v. Hornby, 247 U. S. 339, 343, 38 S. Ct. 543 (62 L. Ed. 1149). Inasmuch as pursuant to stipulation the cause was tried by the court without a jury and there was no determination of the question of the validity of the assessment and no findings were made in respect thereof, the judgment will be reversed with leave to both parties to introduce further evidence upon the question, if so advised, and with directions to the court to take further proceedings not inconsistent herewith, including the determination of such issue. Should an appeal be taken by either party from the judgment that shall be entered, it will be unnecessary for the appellant to reprint or otherwise bring up such parts of the record as are embraced in the printed transcript now on file in this court. Reversed.

633 F.Supp.2d 1119 (2009) The LEAGUE OF RESIDENTIAL NEIGHBORHOOD ADVOCATES, et al. v. CITY OF LOS ANGELES, et al. Case No. CV 03-04890 CAS (Ex). United States District Court, C.D. California. June 15, 2009. *1122 Leslie Werlin, Plaintiffs. Tayo Popoola, for Defendant. CHRISTINA A. SNYDER, District Judge. Proceedings: Plaintiffs Motion for Award of Attorneys' Fees (filed 5/8/2009) I. FACTUAL AND PROCEDURAL HISTORY This action arises out of a dispute that has lasted more than a decade. It has spawned numerous administrative, state, and federal court proceedings directed to the question of whether the members of Congregation Etz Chaim may conduct religious services at a house located at 303 South Highland Avenue ("the Highland property") in Los Angeles, California ("the City"). A. The Commencement and Settlement of the Congregation Etz Chaim Action The Highland property is located in an area that is zoned R-1 (primarily residential) pursuant to Los Angeles Municipal Code § 12.08. As a result, Congregation Etz Chaim applied to the City for a conditional use permit ("CUP") to operate a house of prayer at the Highland property. On October 16, 1996, the City's Zoning Administrator denied this application. The Zoning Administrator's decision was upheld by the Board of Zoning Appeals and sustained by the Los Angeles City Council. On July 10, 1997, Congregation Etz Chaim and the individual members thereof (collectively, "the Congregation") commenced an action against the City, CV 97-5042-CAS (the "Congregation Etz Chaim action") alleging that the City's denial of its application for a CUP violated federal and state law. Following the enactment of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc ("RLUIPA"), the Congregation filed a second amended complaint, alleging that, in addition to its other claims for relief, the City's actions violated RLUIPA. On September 27, 2001, the Congregation and the City entered into a written settlement agreement ("the Settlement Agreement") resolving this action. Subsequently, on February 1, 2002, the Court entered a Notice of Dismissal and Order ("the Dismissal Order") dismissing this case *1123 with prejudice pursuant to the terms of the Settlement Agreement. The Settlement Agreement provided that religious worship could take place at the Highland property subject to certain conditions. Dismissal Order, Ex. A (Settlement Agreement) § VI. B. The Instant Action On July 10, 2003, the League of Residential Neighborhood Advocates and individual Hancock Park homeowners (collectively, the "LRNA"), none of whom were parties to the Congregation Etz Chaim action, filed the instant action in this Court against Congregation Etz Chaim, the Rubin Family Exemption Trust, the City, then Mayor James Hahn, and City Attorney Rockard Delgadillo (collectively, "City defendants"). League of Residential Neighborhood Advocates v. City of Los Angeles, CV 03-4890 CAS (Ex). The LRNA sought (1) a declaration that the Settlement Agreement is invalid under federal and state law and (2) an injunction prohibiting use of the Highland property as a place for religious worship on the grounds that such use does not conform to applicable zoning laws and violates various provisions of the California and United States Constitutions. In an order dated September 15, 2003, the Court granted a motion by defendants Congregation Etz Chaim and the Rubin Family Exemption Trust to dismiss the LRNA's complaint with leave to amend. The Court stated that "[t]he complaint should be amended to allege the real question at issue, which is whether plaintiffs have standing to collaterally attack the settlement reached in the previous action, including whether the City had the power to settle the challenges posed to it in the previous action." The LRNA filed their first amended complaint on October 9, 2003, against Congregation Etz Chaim, Mayor James Hahn, and City Attorney Rockard Delgadillo ("the City defendants"). On December 22, 2003, the Court granted Congregation Etz Chaim's motion to dismiss the first amended complaint with prejudice. The Court stated in relevant part that: One basic and fundamental assumption underlies claims 1 through 9. The assumption is that the settlement agreement granted Congregation [Etz Chaim] a CUP without going through the procedures required by the ordinances of City and California statutory law before a CUP was granted. Plaintiff argues that the right of nearby residents to take part in the hearing process on the application for a CUP is a property right which cannot be evaded without violating the Due Process Clause and other constitutional provisions. The defect in plaintiff's argument is that the premise is wrong. The settlement agreement did not create a CUP. It was reached on a compromise basis with Congregation and City each giving up certain strongly held positions to obtain a settlement ... The City Charter, § 273(c), expressly allows City to settle litigation against it. This settlement agreement was negotiated thoroughly before Magistrate Judge Eick, was submitted to the City Council after final approval by the attorneys, was considered twice by the City Council, and approved. See December 22, 2003 Order at 5-6. The Court concluded that "the settlement agreement does not create a CUP within the meaning of the zoning acts," and therefore "all of the deficiencies alleged against it fail." December 22, 2003 Order at 6-7. The City defendants filed a motion for judgment on the pleadings on March 5, 2004. On April 22, 2004, the Court granted their motion with leave to amend, concluding that the "law of the case established by the December 22, 2003 Order [bars] any claim predicated on the theory that the Settlement Agreement is a de facto CUP." See April 22, 2004 Order at 8. *1124 The LRNA filed its second amended complaint ("SAC") on May 6, 2004. Rather than alleging that the Settlement Agreement was a "de facto CUP," the SAC alleged that the City granted plaintiffs "a contractual CUP or non-statutory contractual use permission." See, e.g., Second Amended Compl. ¶ 47. The first three claims of the SAC sought a declaration that the settlement was invalid based on (1) violations of the Due Process Clause of the Fourteenth Amendment of the United States Constitution; (2) violations of the Due Process Clause of Article I, Section 7 of the California Constitution; (3) violations of state law. The fourth claim of the SAC sought mandamus to compel enforcement of the City's zoning laws. The next two claims sought to enjoin the use of the Highland Property as a place for religious worship pursuant to 42 U.S.C. § 1983 on the basis of violations of (1) the Establishment Clause of the First Amendment to the United States Constitution; and (2) the Equal Protection Clause of the United States Constitution. Finally, the SAC also sought an injunction based on (1) the Establishment Clause of Article I, § 4 of the California Constitution; (2) the Equal Protection Clause of Article I, § 7 of the California Constitution; and (3) nonconforming use in violation of applicable zoning laws. On July 13, 2004, the Court granted with prejudice the City defendants' motion to dismiss the SAC. The Court held that because the Settlement Agreement was neither a CUP or a "de facto CUP," by entering into the Settlement Agreement, the City had not violated the Los Angeles Municipal Code or the California Government Code provisions governing the issuance of a CUP or the procedures for settling municipal litigation. The Court also rejected the LRNA's arguments that the Settlement Agreement constituted an impermissible delegation of City authority or that it violated their rights under the Fourteenth Amendment's Due Process or Equal Protection Clauses or the First Amendment's Establishment Clause. Plaintiffs thereafter appealed the Court's December 13, 2003 and July 13, 2004 orders. On May 13, 2006, the Ninth Circuit remanded the instant action to this Court for reconsideration of the July 13, 2004 order in light of the California Court of Appeals' decision in Trancas v. City of Malibu, 138 Cal.App.4th 172, 41 Cal. Rptr.3d 200 (2006). In Trancas, the court invalidated a city's decision to settle a lawsuit by granting the functional equivalent of a zoning variance without complying with statutory zoning procedures. Id. at 181-82, 41 Cal.Rptr.3d 200. On August 14, 2006, based on the Court's conclusion in its earlier orders that the Settlement Agreement was not a de facto CUP, the Court distinguished Trancas, and affirmed its July 13, 2004 order granting the City defendants' motion to dismiss the second amended complaint. The LRNA appealed again, and on August 21, 2007, the Ninth Circuit reversed. League of Residential Neighborhood Advocates v. City of Los Angeles, 498 F.3d 1052 (9th Cir.2007) ("LRNA"). The court pointed out that pursuant to Los Angeles Municipal Code §§ 12.08(A) and 12.24(T)(3)(b), the operation of a "house of worship" in an R-1 district requires the issuance of a CUP, and that before such a permit may be issued, there must be public notice and a hearing, factual findings, and an opportunity for appeal. Id. at 1055-56. The court stated that a federal settlement agreement cannot provide a means for state officials to evade state law. Id. at 1055 (citing Keith v. Volpe, 118 F.3d 1386, 1393 (9th Cir.1997) (holding that state officials "could not agree to terms which would exceed their authority and supplant state law")). Thus, a municipality cannot waive or consent to a violation of *1125 its zoning laws, and any agreement by the municipality to circumvent its zoning laws is "invalid and unenforceable." Id. at 1056. Because the Settlement Agreement allowed the Congregation to engage in congregational worship—a "conditional use" under the Los Angeles Municipal Code—without obtaining a CUP, the court held that the Settlement Agreement was invalid and unenforceable under California law. Id. at 1056-57. The court went on to state, however, that the City would not have to comply with its zoning laws if such compliance had led to or would result in a violation of federal law. Id. at 1057-58. Thus, the court held, upon properly supported findings that the Settlement Agreement is required to remedy an actual violation of federal law, the Settlement Agreement would be enforceable, notwithstanding its conflict with the City's zoning laws. Id. at 1058. But the Court had made no findings that federal law—in this case, RLUIPA— had been violated or would be violated. In the absence of such findings, the court concluded, because the Settlement Agreement provided for violations of the City's zoning laws, this agreement was invalid and unenforceable. Id. After the Ninth Circuit's decision, the LRNA moved in the Ninth Circuit for an award of attorneys' fees incurred on appeal pursuant to 42 U.S.C. § 1988. The City opposed the LRNA's motion. On May 13, 2008, the Ninth Circuit issued an order which stated, in its entirety "Appellants League of Residential Neighborhood Advocates, et al.'s motion for attorney fees in the amount of $116,319.90 is GRANTED." On April 24, 2009, in light of the Ninth Circuit's decision in this action, the Court entered judgment in favor of the LRNA and against defendants, finding the settlement agreement between defendants to be invalid and unenforceable under California law.[1] C. The Instant Proceedings On May 8, 2009, the LRNA filed the instant motion for award of attorneys' fees against defendant City of Los Angeles (the "City"). The City filed an opposition on June 1, 2009. A reply was filed on June 8, 2009. A hearing was held on June 15, 2009. After carefully considering the arguments set forth by the parties, the Court finds and concludes as follows. II. DISCUSSION Under 42 U.S.C. § 1988 ("§ 1988"), in an action brought under, inter alia, 42 U.S.C. § 1983, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs ..." "[S]uccessful plaintiffs should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Sethy v. Alameda County Water District, 602 F.2d 894, 897 (9th Cir.1979). "The defendant has the burden of showing special circumstances warrant a denial of fees and the defendant's showing must be a strong one." Herrington v. County of Sonoma, 883 F.2d 739, 743 (9th Cir.1989). The LRNA argues that it is entitled to an award of attorneys' fees and expenses incurred in relation to the district court proceedings, because (1) such an award is compelled by the law of the case doctrine and (2) as the prevailing party, it is entitled to attorneys' fees under 42 U.S.C. § 1988. *1126 "The law of the case doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case." Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir.1993). "The doctrine is a judicial invention designed to aid in the efficient operation of court affairs. Under the doctrine, a court is generally precluded from reconsidering an issue previously decided by the same court, or a higher court in the identical case. For the doctrine to apply, the issue in question must have been decided explicitly or by necessary implication in [the] previous disposition." Id. "[E]ven summarily treated issues become the law of the case." Leslie Salt Co. v. United States, 55 F.3d 1388, 1392 (9th Cir.1995). The LRNA argues that the law of the case doctrine extends to the Circuit's decision on plaintiffs motion for attorneys' fees. Mot. at 3. In other words, because the Ninth Circuit found that the LRNA was entitled to its attorneys' fees expended on the appeal under 42 U.S.C. § 1988, the LRNA is necessarily entitled to such fees incurred in relation to the district court proceedings. Reply at 1, citing Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir.1994) ("[t]he same standard is applied when analyzing requests for attorney fees at both the trial and appellate levels"). The City counters that the law of the case doctrine has no application here, because the Ninth Circuit did not decide on the merits the issue of fees in the district court proceedings. The City cites Liberty Mutual Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir.1982). In Liberty, the district court denied defendant's motion to amend an injunction and denied defendant's motion for costs. Id. at 440. On appeal, the Ninth Circuit reversed with regard to the motion to amend and granted defendant's motion for their costs on appeal, but was silent on the district court's denial of costs. Id. On remand in the district court, the court declined to award costs, finding that the original denial of costs in the district court had been affirmed by the Ninth Circuit, and an award of costs was therefore barred. Id. The Ninth Circuit rejected plaintiff's argument that its decision reversing the district court and remanding decided the issue of the award of costs. Id. at 441. The Liberty court held that "[l]ower courts are free to decide issues on remand so long as they were not decided on a prior appeal ... Thus, the law of the case would preclude the district court from reconsidering only issues decided explicitly or by necessary implication in this court's previous disposition." Id. at 441. The court further stated Although in its previous appeal the state contested the district court's denial of costs, our prior disposition awarded the state only its costs on appeal. The disposition was completely silent as to the issue of costs in the district court. Liberty argues that this silence amounts to an implicit denial of costs in the district court. There is no reason, however, why our earlier silence did not simply leave the matter of costs open for consideration by the district court on remand. Id. The City analogizes to Liberty Mutual Ins. Co. and argues that "the argument against the application of the law of the case doctrine is even stronger in this matter where the Ninth Circuit's motion panel was only confronted with the issue of fees and costs for the appellate work. The issue of attorney's fees in the district court for the trial work was neither before the Ninth Circuit nor decided by that court." Opp'n at 3; see also Mirchandani v. U.S., 836 F.2d 1223, 1225 (9th Cir.1988) ("district courts are not free to decide issues on remand that were previously decided either expressly or by necessary implication on appeal ... Such a rule applies, however, *1127 only with respect to issues previously determined by the appellate court. It has no application where no appellate decision had issued on the merits"). The LRNA replies by citing Burger King Corp. v. Pilgrim's Pride Corp., 15 F.3d 166, 169 (11th Cir.1994). In Burger King, the district court awarded fees under the Lanham Act following a ruling by the Eleventh Circuit that fees were appropriate at the appellate level. Defendant appealed the award of fees in the district court. In affirming, the Eleventh Circuit held that: this court explicitly held that [plaintiff] was entitled to recover attorney's fees when it granted [plaintiff's] petition for attorney fees on appeal. In reaching that decision, this court decided, through necessary implication, that this case was exceptional within the meaning of Section 35 of the Lanham Act. 15 U.S.C. § 1117(a). This implicit ruling makes exceptionality the law of the case, binding this court in the present appeal. Therefore, the law of the case dictates that [defendant] may not challenge the district court's authority to award attorney's fees, only the amount. Because [defendant] only challenged the basis for the award, not the amount of the award, we affirm the district court. Id. The Court finds that although, in awarding attorneys' fees in the appellate action, the Ninth Circuit did not directly address the question of whether the LRNA is entitled to attorneys' fees for work in the district court proceedings, the Ninth Circuit may have, by implication, made findings that are relevant to the issue of whether attorneys' fees are warranted. The Court is bound by any such findings as the law of the case. The Court therefore examines the specific elements of a request for attorneys' fees under § 1988. A. Prevailing Party Section 1988 provides that attorneys' fees are awarded to the prevailing party. A party is prevailing when it has "succeeded on any significant issue in the litigation which achieved some benefit the parties sought in bringing suit." Texas State Teachers Ass'n v. Garland Independent Sch. Dist., 489 U.S. 782, 791-792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). The Ninth Circuit has held that "even unadjudicated claims can support an award of attorneys' fees under § 1988 as long as those claims are substantial and were not alleged solely to support the fee award." Native Village of Venetie IRA Council v. Alaska, 155 F.3d 1150, 1152 (9th Cir.1998). "Therefore, the [requesting party] need only show that at least one of their claims falls within the remedial scheme of § 1983 and remained a sufficiently substantial claim throughout the litigation to trigger the fee-shifting provision of § 1988." Id.; see also Southwestern Bell Telephone Co. v. City of El Paso, 346 F.3d 541, 551 (5th Cir.2003) ("[o]ur precedent is clear that if [plaintiff] states a § 1983 claim based on the alleged violation of constitutional rights that supports federal question jurisdiction, that is sufficient to support the award of attorney's fees, even if the constitutional claim is avoided by the court. It is not necessary for [plaintiff] to prevail on the constitutional claim"). The Ninth Circuit has held that "for the purpose of qualifying a prevailing party, an unaddressed, fee-supporting claim supports an award of fees if it is both substantial and arises from a common nucleus of operative fact with a dispositive, non-fee-supporting claim addressed by the court." Gerling Global Reinsurance Corp. of Am. v. Garamendi, 400 F.3d 803, 808 (9th Cir. 2005) (emphasis added). "Claims arise from a common nucleus of operative fact where fee-supporting claims are so interrelated with non-fee claims that plaintiffs *1128 would ordinarily be expected to try them all in one judicial proceeding." Id. at 808-09. The LRNA argues that it is the prevailing party in this action for the purposes of § 1988. First, the LRNA argues that the law of the case requires the Court to find the LRNA to be the prevailing party, because the Ninth Circuit has awarded fees to the LRNA under § 1988, despite the fact that the LRNA prevailed in this action on the basis of its state law claim, rather than based on its § 1983 claims. Mot. at 4. The LRNA notes that it argued on appeal that its victory qualified it for a fee award because its state law claims and § 1983 claims arose out of a common nucleus of operative facts, and because its 1983 claims were substantial; the LRNA notes that while the City challenged the LRNA on these issues, the LRNA prevailed and was awarded its fee request in its entirety. Mot. at 4. Second, the LRNA argues that, even if the law of the case doctrine were not applicable, there is no doubt that the LRNA was the prevailing party in this action. Mot. at 6. First, the LRNA argues that the § 1983 claim arose "from a common nucleus of operative fact with the dispositive, non-fee-supporting claim addressed by the court" because all of the LRNA's claims arose out of the City's contractual grant of land use permission, and the Congregation's use of Highland Property pursuant to the Settlement Agreement. Mot. at 9. See Gerling, 400 F.3d at 808. Furthermore, the LRNA argues that the Court of Appeals recognized this Court's jurisdiction over the LRNA' state law claims, and that this recognition "is necessarily a holding that the LRNA's state law claims derive from a common nucleus of operative facts and are such that a plaintiff would ordinarily be expected to try them in one judicial proceeding." Mot. at 9, citing Trustees of Construction, etc. v. Desert Valley Landscape, 333 F.3d 923, 925 (9th Cir.2003) (explaining supplemental jurisdiction test); League of Residential Neighborhood Advocates v. City of Los Angeles, 498 F.3d 1052, 1055 (9th Cir.2007) ("[t]he district court had subject matter jurisdiction over the League's constitutional claims under 28 U.S.C. §§ 1331, 1343(a), and over its state claims under 28 U.S.C. § 1367(a)"). Furthermore, the LRNA argues that it raised "substantial federal constitutional claims" in this action Mot. at 10; see Gerling, 400 F.3d at 808. Specifically, a claim is substantial for purposes of a § 1988 fee request if it meets the "substantiality" test for purposes of federal question jurisdiction. See Southwestern Bell Telephone Co., 346 F.3d at 551 ("[a] claim is substantial if it supports federal question jurisdiction"). A claim is substantial unless it is "so insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be the ultimate resolution of the federal issues on the merits." Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir.1985). The LRNA argues that because the Ninth Circuit determined that this Court has jurisdiction over the LRNA's federal constitutional claims, the substantiality test is necessarily satisfied. Mot. at 10. Furthermore, the LRNA argues that the LRNA's § 1983 claims could not be considered to be "insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise completely devoid of merit ..." Southwestern Bell Telephone Co., 346 F.3d at 551.[2] *1129 The City incorporates by reference the arguments it made before the Ninth Circuit as to why the LRNA is not a prevailing party, namely: (1) the only issued litigated by the LRNA and decided by this Court and the Ninth Circuit was a limited issue of state law; (2) there is no common nucleus of operative facts between the state law issue and the federal claims on which it prevailed. However, the Court finds these arguments to be unavailing. The Ninth Circuit in this case necessarily determined that the LRNA was a prevailing party for the purpose of a fee award pursuant to § 1988. The Court is bound by this finding. Furthermore, even if the law of the case doctrine did not apply, the Court finds that the LRNA did raise substantial federal claims in this case, and the state and federal claims in this action necessarily arise from a common nucleus of operative facts: the Congregation's use of the Highland Property pursuant to the Settlement Agreement. B. Whether Fees are Unjust "Successful plaintiffs should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Sethy, 602 F.2d at 897. The "special circumstances" test is narrowly construed. See Herrington v. County of Sonoma, 883 F.2d 739, 743 (9th Cir. 1989). The Ninth Circuit generally examines two factors in determining whether a case involves "special circumstances" that would justify the denial of fees: "(1) whether allowing attorney fees would further the purposes of § 1988 and (2) whether the balance of the equities favors or disfavors the denial of fees." Gilbrook v. City of Westminster, 177 F.3d 839, 878 (9th Cir.1999). The City argues that awarding attorneys' fees would not further the purpose of § 1988, Opp'n at 6. First, the City argues that it is indisputable that this Court had a hand in the settlement agreement at the center of this case. Opp'n at 6. Furthermore, the City argues that "Judge Hupp would later reflect on, defend, and justify the settlement agreement at various hearings on motions to dismiss this action." Opp'n at 7, citing 12/22/03 Hearing Trans. at 392:7-14 (Judge Hupp: "[t]he city had its choice. They sat down and determined that their best interest and the best interest of its citizens was not to litigate this thing to the bloody end, but to use their power to settle litigation, to settle here in a way where both parties, gave up some strongly held beliefs in that contract, which is, of course the hallmark of a compromise settlement, and settled the litigation"). The City argues that the background of the settlement agreement "is a trenchant illustration of the City's good faith in settling with the Congregation" and that this good faith is a special circumstance justifying a denial of attorneys' fees. Furthermore, the City argues that the balance of equities favors a denial of attorneys' fees in this action. The City argues in particular that the LRNA "are not the innocent victims of the settlement agreement they are portraying themselves to be. They could (and should) have intervened [in the Congregation Etz Chaim action] but failed to do so." Opp'n at 8. The City argues that "[t]here is no doubt that had the League intervened in the underlying Congregation action, there would not have been a settlement." Opp'n at 9. Furthermore, the City argues that the LRNA has already been awarded *1130 $116,319.90 in attorneys' fees and costs by the Ninth Circuit, and that the balance of the equities renders a further award inappropriate. Opp'n at 10. In addition, The City argues that the Court brokered the settlement agreement and approved its language and substance, and therefore, this approval was the superseding cause of the alleged wrong to LRNA. Opp'n at 11, citing Stevenson v. Koskey, 877 F.2d 1435, 1438 (9th Cir.1989) ("federal courts turn to the causation factors developed in the common law of torts to supply the necessary causation factor in the civil rights field"); Egervary v. Young, 366 F.3d 238, 246 (3d Cir.2004) ("an intervening act of a third party, which actively operates to produce harm after the first person's wrongful act has been committed, is a superseding cause which prevents the first person from being liable for the harm which his antecedent wrongful act was a substantial factor in bringing about"); Murray v. Earle, 405 F.3d 278, 293 (5th Cir.2005) ("an intervening decision of an informed, neutral decision-maker `breaks' the chain of causation"). The LRNA counters that the City argued this issue to the Ninth Circuit and necessarily lost, and that, therefore, the law of the case dictates that fees are not unjust in this action. Mot. at 4. The Court agrees. The City raised similar arguments regarding its good faith, the LRNA's duty to intervene in the Congregation action, and the Court's role in the settlement agreement in the Ninth Circuit proceedings, and necessarily by implication lost on these arguments. See Pl's Ex. B (City Ninth Circuit Opp'n) at 10-13. Furthermore, even if the law of the case did not dictate such a finding, the City has failed to establish that an award of attorneys' fees would be unjust. First, the City's argument regarding its good faith is insufficient, given that "[t]here are several reasons ... for accepting the prevailing view that good faith by itself is not a special circumstance justifying a denial of attorney's fees." Teitelbaum v. Sorenson, 648 F.2d 1248, 1250 (9th Cir.1981).[3] Furthermore, the Court finds the City's argument regarding causation and the LRNA's failure to intervene to be unpersuasive and insufficient to satisfy the narrowly construed "special circumstances" test.[4]See Herrington, 883 F.2d at 743. C. Reasonableness of the Fees 1. Extent of LRNA's Success "The extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under § 1988." Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir.2003). The Court must consider first "whether the plaintiff failed to prevail on claims that were unrelated to the claims on which he succeeded. Claims are `unrelated' if they are `entirely distinct and separate' from the claims on which the plaintiff prevailed." Id. (internal citations omitted). Second, the Court must consider whether plaintiff achieved "a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award[.]" McCown v. *1131 City of Fontana, 565 F.3d 1097, 1103 (9th Cir.2009). However, "in a lawsuit where the plaintiff presents different claims for relief that `involve a common core of facts' or are based on `related legal theories,' the district court should not attempt to divide the request for attorney's fees on a claim-by-claim basis." McCown, 565 F.3d 1097 (9th Cir.2009). Instead, the Court should proceed to the second prong of the analysis "and focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. Success is measured not only by the amount of the recovery but also in terms of "the significance of the legal issue on which the plaintiff prevailed and the public purpose the plaintiff's litigation served." Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.1996); see also McCown, 565 F.3d 1097 ("in determining a reasonable fee award on remand, the district court should consider not only the monetary results but also the significant nonmonetary results [the plaintiff] achieved for himself and other members of society ... The Supreme Court has likewise indicated that when a decision has served the public interest by vindicating important constitutional rights an award of attorney's fees that is disproportionate to the actual damages may be appropriate"). The LRNA argues that "by succeeding on the central issue presented— obtaining a determination that the Settlement Agreement is invalid—they achieved an excellent result which has a substantial and far reaching public benefit. The result achieved is a significant victory for every citizen who depends, socially and financially, on the protection of zoning laws and the City's adherence to the rule of law." Mot. at 14, citing Wells Fargo Bank v. Town of Woodside, 33 Cal.3d 379, 386, 189 Cal.Rptr. 41, 657 P.2d 819 (1983) ("zoning regulations ... reflect the public's interest in controlling development to protect health and safety"); Golden Gate Water Ski Club v. County of Contra Costa, 165 Cal.App.4th 249, 259, 80 Cal.Rptr.3d 876 (2008) ("In the field of zoning laws, [the courts] are dealing with a vital public interest-not one that is strictly between the municipality and the individual litigant. All the residents of the community have a protectable property and personal interest in maintaining the character of the area as established by comprehensive and carefully considered zoning plans ..."). The City, however, argues that out of nine claims in the LRNA's SAC, the City succeeded on only one claim: the third claim seeking a declaratory judgment that the settlement was void under state law. Opp'n at 13. The City reiterates its argument that this third claim is unrelated to the federal constitutional claims brought by the LRNA, as well as its state statutory and constitutional claims. Opp'n at 13. Specifically, the City argues that if the LRNA had had to prove a § 1983 violation, it would have had to have proved a higher level of culpability on the part of the city, and that it could not have met this burden." Opp'n at 1.[5] Furthermore, the City argues that "[b]ecause the League's equal protection claim does not involve a suspect classification, the City's conduct `will survive constitutional scrutiny ... as *1132 long as it bears a rational relation to a legitimate state interest.'" Opp'n at 14, quoting Patel v. Penman, 103 F.3d 868, 875 (9th Cir.1996). The City argues that it is evident that the LRNA pursued these federal claims solely to support its fee request. Opp'n at 14-15. In addition, the City argues that the LRNA has obtained limited success, because "the decision hardly makes any historical or land mark impact. For one, the ruling does not vindicate any important constitutional right; it is confined to limited issue of state law. Similarly most decisions deemed insuring to the `public benefit' pertain to federal constitutional or statutory rights; this matter does not." Opp'n at 15., The Court, however, finds the City's arguments unpersuasive. As stated elsewhere herein, the federal and state claims herein were derived from the same nucleus of operative facts, and therefore "the court should not attempt to divide the request for attorney's fees on a claim-by-claim basis." See McCown, 565 F.3d 1097. Furthermore, the LRNA succeeded on the central issue presented: obtaining a determination that the Settlement Agreement is invalid. As the LRNA argues, "[p]laintiffs can not be punished because the Ninth Circuit observed its duty to avoid constitutional questions and decided the case on state law grounds." Reply at 16. 2. Lodestar "In the Ninth Circuit, the customary method of determining the permissible amount of attorneys' fees under § 1988 is the `lodestar' method." Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir.2006). The lodestar method "multiplies the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate." Id. After making that computation, the Court then assesses "whether it is necessary to adjust the presumptively reasonable lode-star figure on the basis of twelve factors." Id. The twelve factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the `undesirability' of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Id. However, only in rare instances should the lodestar figure be adjusted on the basis of these considerations. Harris v. Marhoefer, 24 F.3d 16, 18 (9th Cir.1994). The LRNA argues that its request for $352,011.40. is adequately supported. The most significant portion of the fees requested are for Leslie M. Werlin ("Werlin"), a civil litigator who has been in practice in Los Angeles since 1976 (589.65 hours at an hourly rate of $365), and Professor Marci A. Hamilton ("Professor Hamilton"), a member of the Pennsylvania bar admitted in 1990 and a law professor (98 hours at an hourly rate of $500). Furthermore, the LRNA requests fees for the work done by the following attorneys: David B. Van Etten (29.56 hours at an hourly rate of $350); Mitchell F. Ducey (136.61 hours at an hourly rate of $230); Amber Y. Sakai (12.1 hours at an hourly rate of $125); Deborah F. Birndorf (7.2 hours at an hourly rate of $240); Marc Paul Jacobs (2 hours at an hourly rate of $285); Sidney K. Kanazawa (.5 hours at an hourly rate of $300); Keith A. Sipprelle (.65 hours at an hourly rate of $280); Herbert M. Weiser (1.5 hours at an hourly *1133 rate of $250); Reen Furutani (Yuba) (.5 hours at an hourly rate of $150); Cris Armenta (9.5 hours at an hourly rate of $250); and Joan A. Wolff (3.5 hours at an hourly rate of $370). In addition, the LRNA seeks fees for the work of legal assistant Jeremy D. Krant (10.7 at an hourly rate of $115) and paralegal Glen A. Davis (.8 hours at an hourly rate of $145). The LRNA also seeks fees for the work of Darrel Menthe (13.7 hours at an hourly rate of $435) and Werlin (33 hours at an hourly rate of $365) in preparing the instant motion and reply, and for appearing at the June 15, 2009 hearing. The LRNA argues that the Ninth Circuit has already necessarily found the rates of Werlin, Hamilton, and Davis to be reasonable, because such rates were used in the calculation of the appellate attorneys' fees award, and their reasonableness is therefore the law of the case. Mot. at 16, n. 7. In addition, the LRNA submits a certified copy of the declaration of David Roberts ("Roberts"), a certified public accountant who published a survey of law firm compensation and benefits, which was submitted in Streisand v. Adelman, Los Angeles Superior Court Case No. SC0772. Roberts Decl. ¶ 1, 3. Roberts states that at a law firm composed of 76 or more attorneys located in Southern California "the average billing rate for; (a) an equity partner is $400; (b) a non-equity partner is $259; (c) a fourth year associate is $224; (d) a third year associate is $212; and (e) a second year summer associate is $138. The average billing rate for a legal assistant (exempt for overtime) with 11 to 20 years experience is $128 in the Century City/Beverly Hills area." Roberts Decl. ¶ 8. The LRNA also seeks $18,266.35 in expenses, including photocopying, facsimile, transcripts, legal research, parking, filing fees, messenger services, mileage, postage, delivery, telephone, and Professor Hamilton's travel expenses. Werlin Decl. at 10; see Dang v.Cross, 422 F.3d 800, 814 (9th Cir.2005) ("[u]nder § 1988, the prevailing party may recover as part of the award of attorney's fees those out-of-pocket expenses that `would normally be charged to a fee paying client'"). The City argues that the LRNA's fee request is excessive, because the LRNA incurred many fees on the federal constitutional and statutory claims, the continued pursuit of which "became unnecessary early in the lawsuit." Opp'n at 16. The LRNA counters that "[t]he relevant issue... is not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures." Reply at 17, quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992). The City further argues that the following aspects of the fee request are excessive: (a) the number of attorneys working on the case; (b) legal research in the amount of $5,743.95, where there is no breakdown as the issues researched; (c) the 98 hours billed by Professor Hamilton (arguing that it was unnecessary to have a constitutional law professor work on the relatively simple and narrow state law issue); and (d) Professor Hamilton's $3,931.35 in travel expenses. Opp'n at 16-17. The LRNA counters that Professor Hamilton worked on the federal constitutional issues, and appeared at hearings where all claims were at issue. Reply at 18-19. The LRNA further argues that prior to March 2004, there was no focus on state law issued in this case, and that state law issues did not come to the forefront until Trancas was decided in 2006. Reply at 19. The Court finds the hourly rates charged by the attorneys in this action and the total number of hours expended on the *1134 litigation to be reasonable and adequately supported by the accompanying evidence. The City presents only conclusory arguments, which do not provide any basis for determining that the LRNA should not be granted the full amount requested. III. CONCLUSION For the foregoing reasons, the Court GRANTS LRNA's motion for award of attorneys' fees. The Court hereby awards $352,011.40 in fees to the LRNA. IT IS SO ORDERED NOTES [1] On May 28, 2008, the Congregation filed a new application for a CUP with the City. On May 5, 2009, the Court dismissed the Congregation Etz Chaim action without prejudice on the ground that it was not prudentially ripe. [2] The LRNA acknowledges that this Court dismissed LRNA's § 1983 claim at the pleadings stage, but argues that this does not mean that the claim was insubstantial for the purposes of conferring jurisdiction. Mot. at 10, citing Mackey v. Pioneer Nat. Bank, 867 F.2d 520, 523 (9th Cir.1989) ("the ultimate lack of merit of the federal claim does not mean that the claim was insubstantial for purposes of conferring jurisdiction"). [3] The LRNA also argues that the City has failed to demonstrate it acted in good faith, given its decision to enter into the Settlement Agreement was made in City Council proceedings closed to the public. Reply at 7. [4] The LRNA also argues that the City's argument regarding causation are irrelevant, because the required causal connection for an award of attorneys' fees is that actual relief on the merits materially alter the relationship between the parties. See Bennett v. Yoshina, 259 F.3d 1097, 1100 (9th Cir.2001) ("to qualify as a `prevailing party' under 42 U.S.C. § 1988 a party must obtain a judicially sanctioned change in the legal relationship of the parties"). [5] To support this argument, the City cites Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1407 (9th Cir.1989) (overruled on other grounds by Armendariz v. Penman, 75 F.3d 1311 (9th Cir.1996)) ("To establish a violation of substantive due process, the plaintiffs must prove that the government's action was clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare ..."). However, the LRNA notes that it asserted a procedural due process claim, not a substantive due process claim. Reply at 15.

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER ON “MOTION OF OBJECTIONS TO AND RECONSIDERATION OF OPINION AND JUDGMENT” (INCLUDING AMENDMENTS) Appellate case name: Gerald E. Gilbert v. Texas Department of Criminal Justice, et al Appellate case number: 01-14-00795-CV Trial court case number: 76482-I Trial court: 412th Judicial District Court of Brazoria County Date motion filed: April 19, 2016 Party filing motion: Appellant It is ordered that the motion for rehearing is DENIED GRANTED. Judge’s signature: /s/ Sherry Radack Acting individually Acting for the Court Panel consists of: Chief Justice Sherry Radack, and Justices Higley, and Massengale Date: June 30, 2016 

4 P.3d 748 (2000) 168 Or. App. 624 ASHLAND DRILLING, INC., Darryl Baker, Richard Fujas, Elizabeth Fujas and Oregon Ground Water Association, Appellants, v. JACKSON COUNTY, Cliff S. Bentz, John Frewing, Anita Johnson, Nancy Leonard, Michael Jewett, Tyler Hansel, Commissioners of the Oregon Water Resources Commission, acting in their personal capacities, and Martha O. Pagel, Director, acting in her personal capacity, Respondents. (95-5149-E2; CA A101416) Court of Appeals of Oregon. Argued and Submitted December 21, 1998. Decided June 28, 2000. *749 *750 *751 *752 *753 Garry P. McMurry, Portland, argued the cause and filed the briefs for appellants. Steven R. Rinkle, Assistant County Counsel, argued the cause for respondent Jackson County. With him on the brief was Arminda J. Brown, Jackson County Counsel. Denise G. Fjordbeck, Assistant Attorney General, argued the cause for respondents Cliff S. Bentz, John Frewing, Anita Johnson, Nancy Leonard, Michael Jewett, Tyler Hansel, Commissioners of the Oregon Water Resources Commission, and Martha O. Pagel, Director of Oregon Water Resources Department. With her on the brief were Hardy Myers, Attorney General, and Michael G. Reynolds, Solicitor General. Before LANDAU, Presiding Judge, and DEITS, Chief Judge,[*] and WOLLHEIM, Judge. WOLLHEIM, J. Plaintiffs[1] appeal a judgment granting defendants' motions for summary judgment. Plaintiffs requested both declaratory and injunctive relief against the Water Resources Commission (state) and Jackson County (county) under the Declaratory Judgment Act, ORS 28.010, and under ORS 28.080. The trial court held that the Oregon Ground Water Act of 1955(Act) did not preempt two Jackson County ordinances and granted summary judgment in favor of the state and county. Plaintiffs appeal, asserting: (1) that the trial court erred in holding that ORS 537.769 does not expressly preempt Jackson County's ordinances; and (2) that the trial court erred in concluding that the ordinances are not inconsistent with, and thereby are not preempted by, the Water Resources Commission's statutory powers and administrative rules on the subject of water wells, well constructors and well testing. Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are disputed questions of material fact and whether the moving parties were entitled to judgment as a matter of law. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). On review of the record, there are no disputed issues of material fact. Because the trial court had no jurisdiction over plaintiffs' claims against the state defendants, we affirm the judgment in favor of the state. On the merits of plaintiffs' appeal against the county, we affirm in part, reverse in part, and remand for proceedings not inconsistent with this opinion. The Act was Oregon's first comprehensive and statewide ground water legislation. ORS 537.505 to ORS 537.795 and ORS 537.992. The Act established a system for the statewide appropriation of ground water by permit and charged the Water Resources Commission and Water Resources Department (collectively, the "commission") with administering that program and regulating ground water use. ORS 537.535. The Act exempts from the permit requirements, that apply to ground water appropriation, uses of ground water for some particular purposes, such as stock watering and other small domestic, commercial and industrial uses. ORS 537.545. The Act provides for the designation of critical ground water areas. ORS 537.730. It authorizes regulation of all wells, including otherwise exempt wells, if they are *754 found by the nature of their "construction, operation or otherwise" to be causing wasteful use of ground water, interfering with other wells or polluting ground or surface water. ORS 537.775. See also ORS 537.545(4) (if located in a ground water management area, "exempt" users must obtain ground water appropriation permit). This appeal primarily concerns whether the legislature intended to preempt local regulation of activities concerning ground water wells. The inquiry focuses on the Act's "start card" provisions, described in more detail below. Generally, the start card program, ORS 537.747 to ORS 537.795 and ORS 537.992, regulates the construction and inspection of ground water wells and regulates water well constructors. In 1989, the legislature enacted ORS 537.769, which provides: "The Legislative Assembly finds that ground water protection is a matter of statewide concern. No ordinance, order or regulation shall be adopted by a local government to regulate the inspection of wells, construction of wells or water well constructors subject to regulation by the Water Resources Commission or the Water Resources Department under ORS 537.747 to 537.795 and 537.992." In 1994, Jackson County adopted ordinance 94-89, codified as sections 00.040, 5.14, 16.020, 20.030, and 280.110(3) of the County's Land Development Ordinance (LDO), and ordinance 94-90, codified in chapter 1880 of the Codified Ordinances of Jackson County (JCC). Those ordinances both address ground water wells. The gravamen of plaintiffs' complaint against the state and the county rests on their assertion that either ORS 537.769 or the commission's statutory powers preempt those ordinances, either in whole or in part. The trial court granted defendants' motions for summary judgment, concluding that ORS 537.769 did not preempt local control over ground water wells. We begin with the state defendants. Generally, plaintiffs sought a judgment against the state declaring that the commission had failed to implement the start card program by failing to undertake specific enforcement and implementation actions. Plaintiffs also sought a mandatory injunction requiring the commission to implement ORS 537.769. Having found for both the state and county defendants on the preemption issue, the trial court did not address the state's two alternate arguments in its favor, that plaintiff's claims are barred by the exclusive remedy provision of the Administrative Procedures Act (APA), and, in the alternative, that plaintiffs' claims are not otherwise cognizable under the Declaratory Judgment Act because plaintiffs have requested specific relief that is committed to agency discretion by law. Plaintiffs argue that their claims were properly pleaded under the Declaratory Judgment Act, because it provides that the courts "shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed." ORS 28.010. Additionally, plaintiffs argue that their requests for injunctive relief were properly based on ORS 28.080, which provides that "[f]urther relief based on a declaratory judgment or decree may be granted whenever necessary or proper." We conclude that the trial court did not have jurisdiction to consider plaintiffs' claims against the state. We agree with the state's assertion that the claims should have been brought under the APA. We have held that "when APA review is available, APA jurisdiction is exclusive." Lake County v. State of Oregon, 142 Or.App. 162, 166, 920 P.2d 1115 (1996). That is a two-part requirement. First, we have held that plaintiffs must exhaust their administrative remedies before they may request judicial relief through the Declaratory Judgment Act. Isom v. P.G.E., 67 Or.App. 97, 102, 677 P.2d 59 (1984), rev. den. 297 Or. 272, 683 P.2d 92 (1984); Bay River v. Envir. Quality Comm., 26 Or.App. 717, 721, 554 P.2d 620, rev. den. 276 Or. 555 (1976). See also Lone Oak Racing, Inc. v. Oregon Racing Comm., 162 Or.App. 111, 122-23, 986 P.2d 596 (1999) (no jurisdiction under Declaratory Judgment Act where plaintiff failed to exhaust administrative remedy under APA). Accordingly, APA review is available where administrative remedies are available. Second, we have held that the APA "establishes a comprehensive *755 pattern for the judicial review of administrative decisions" and provides the "sole and exclusive means of obtaining judicial review." Bay River, 26 Or.App. at 720, 554 P.2d 620. Thus, when there is an administrative remedy, review of that remedy is exclusively under the APA. Lucas v. State of Oregon, 168 Or.App. 593, 597, 4 P.3d 745, 747 (2000). Accordingly, we must examine whether administrative remedies exist for the relief requested by plaintiffs in this declaratory relief action. In particular, plaintiffs seek a judgment stating that the commission has "failed and refused to implement the `Start Card' program" by: (1) failing to issue water resource statements pursuant to ORS 536.300 explaining its inspection program; (2) failing to advise local jurisdictions to avoid violating ORS 537.769; (3) failing to abate enforcement of the county's ordinances; and (4) fostering the development and adoption of local ordinances in violation of ORS 537.769. ORS 183.490 provides an administrative remedy for plaintiffs' action. That statute provides that "[t]he court may, upon petition as described in ORS 183.484, compel an agency to act where it has unlawfully refused to act or make a decision or unreasonably delayed taking action or making a decision." That statute facially pertains to an agency's nonfeasance in refusing to or delaying an act or in refusing to make or delaying a decision. See Bay River, 26 Or.App. at 722, 723, 554 P.2d 620 (ORS 183.490 is designed to review "an agency's failure to make an order on the merits" and therefore to compel an agency "to proceed with greater alacrity."); accord Mendieta v. Division of State Lands, 148 Or.App. 586, 598, 941 P.2d 582 1997), rev dismissed 328 Or. 331, 987 P.2d 510 (1999). Plaintiffs were required to proceed under ORS 183.490[2], and their action is barred by the APA. Even if ORS 183.490 does not apply to plaintiffs' case, plaintiffs' claims are also not cognizable under the Declaratory Judgment Act. Under the Declaratory Judgment Act, a court can declare what a statute means. See Clatsop County v. LCDC, 47 Or.App. 377, 379, 614 P.2d 612 (1980) (considering facial challenge to the constitutionality of statute under declaratory judgment jurisdiction). Under ORS 28.080, a court may require action to conform with that declaration. Here, plaintiffs have requested that a court declare that the Act requires the commission to enforce and implement the Act by (1) issuing water resources statements; (2) advising local jurisdictions to avoid violating ORS 537.769; (3) abating enforcement of the county's ordinances; and (4) discouraging the development of local ordinances. Plaintiffs are thus asking for a declaration that the commission has specific and mandatory responsibilities to act to preempt local regulation under ORS 537.769. We conclude, however, that the Act vests the commission with considerable discretion to enforce and implement the Act. While the commission "shall * * * [a]dminister and enforce the laws of the state concerning the water resources of this state," ORS 536.037, ORS 537.780 provides only that in the administration of the Act and the "start card" program, the commission "may" undertake particular implementation and enforcement actions. (Emphasis added.) Plaintiffs seek to have us override the legislature's delegation of discretion to the commission by declaring that the commission must undertake particular enforcement actions. That we cannot do. Courts will not interfere by declaratory judgment or injunctive relief with the discretionary power vested in an agency, unless some compelling reasons exist. Gurdane v. No. Wasco Co. P.U.D., 183 *756 Or. 565, 580, 195 P.2d 171 (1948). We do not assume that the commission "will, in the absence of an injunction, refuse to follow the law as we have stated it." Burke v. Children's Services Division, 288 Or. 533, 548, 607 P.2d 141 (1980). Again, even if the APA did not bar plaintiffs' claims, plaintiffs have not alleged any compelling reason for us to interfere in this case. For example, there is no indication that the agency is abrogating its duty to implement or enforce the Act that may warrant judicial interference. We would decline to interfere with the commission's discretionary choices in implementing the Act. Similarly, we would conclude that none of plaintiffs' claims is cognizable under the Declaratory Judgment Act, because the legislature has committed to the commission's discretion selection of implementation and enforcement actions. For the reasons discussed, we affirm the trial court's judgment in favor of the state defendants. We turn to the county defendants and plaintiffs' arguments that the county's ordinances are expressly or implicitly preempted by state law. We begin by describing the most relevant portions of the state statutes and local ordinances. The two county ordinances are almost identical. The ordinances impose a permit and fee requirement for the construction of wells in the county and impose well location requirements. The permit must be signed by the property owner or the owner's legally authorized representative. The county requires the filing of a "plot plan" after completion of the well a water quality test for each new and deepened well, and assesses a fee for that water quality test. The ordinances regulate certain aspects of well "flow" tests conducted in the county. In addition, the LDO contains deed notification requirements for final map or plat approval and authorizes the county to designate "areas of special concern" within areas where well water quantity and quality problems exist, "pursuant to a public hearing." LDO § 280.110(3). In general, the state's start card program (1) imposes a licensing requirement on those who construct ground water wells, ORS 537.747; (2) imposes a bond obligation on well constructors, ORS 537.753; (3) requires submission of a $75 fee and notice of imminent well construction (start card) before construction of the well by contracted, licensed well constructors, ORS 537.762; (4) requires all well constructors to submit a well log after completion of the well, ORS 537.765; and (5) requires a 10-year well "pump" test for all nonexempt use wells, ORS 537.772. The program also requires landowners to record information regarding a well in the deed to the property, ORS 537.788, and gives the commission various other implementation and enforcement powers, ORS 537.775 to ORS 537.787. In particular, ORS 537.780 enumerates the commission's powers and authority in the administration of the entire Act, including the start card program. As earlier described, ORS 537.769 prohibits local regulation of well inspection, well construction and well constructors that are subject to regulation by the commission under the start card program. ORS chapters 536 and 537 also provide the commission with a broad range of powers and responsibilities in the management of surface and ground water resources. In their complaint, plaintiffs sought a declaratory judgment that ordinance 94-89 and ordinance 94-90 are void, because ORS 537.769 expressly preempts them and vests exclusive control of water wells in the commission. Alternatively, plaintiffs sought a declaration that the ordinances are preempted to the extent they are inconsistent with the commission's statutory powers and administrative rules on the subject of water wells, well constructors, and well testing. Plaintiffs requested injunctive relief prohibiting enforcement of the ordinances. On appeal, plaintiffs assign error to the trial court's conclusion that the ordinances are not preempted in whole or in part by state law. We have considered whether this case comes within the circuit court's jurisdiction or is exclusively within the jurisdiction of the Land Use Board of Appeals, ORS 197.825, and we conclude that the circuit court had jurisdiction. See Scappoose Sand and Gravel, Inc. v. Columbia County, 161 *757 Or.App. 325, 330-32, 984 P.2d 876, rev. den. 329 Or 528 (1999). On the merits, plaintiffs raise a challenge to the facial validity of the county's enactments. Our first inquiry, therefore, is whether the challenged enactments are valid as written, as opposed to as applied. Advocates for Effective Regulation v. City of Eugene, 160 Or.App. 292, 299, 981 P.2d 368 (1999). Because there are no factual disputes, we focus on whether the prevailing party was entitled to judgment as a matter of law. Doe v. American Red Cross, 322 Or. 502, 505, 910 P.2d 364 (1996). In LaGrande/Astoria v. PERB, 281 Or. 137, 576 P.2d 1204 (1978), the Supreme Court articulated the framework under which we evaluate state preemption of local regulation. The question here is "whether the local rule in truth is incompatible with the legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive. It is reasonable to interpret local enactments, if possible, to be intended to function consistently with state laws, and equally reasonable to assume that the legislature does not mean to displace local civil or administrative regulation of local conditions by a statewide law unless that intention is apparent." Id. at 148-49, 576 P.2d 1204 (footnote omitted). That inquiry acknowledges the "home rule" authority of local governments[3] to enact reasonable regulation to further local interests in public health, safety, and welfare. City of Eugene v. Miller, 318 Or. 480, 491 n. 12, 871 P.2d 454 (1994). In general, where local governments have undertaken reasonably to regulate matters of local health, safety, and welfare, such regulation will be valid unless we determine that the local regulation conflicts with state law or is clearly intended to be preempted. Here, we focus first on whether the legislature clearly intended ORS 537.769 to preempt Jackson County's ordinances. See LaGrande/Astoria, 281 Or. at 148-49, 576 P.2d 1204. That intention is apparent if it is expressly or otherwise clearly manifested in the language of the statute; the scope of any preemption is also measured by the statutory language. See Boytano v. Fritz, 321 Or. 498, 505-07, 901 P.2d 835 (1995). If we find an express or otherwise clearly manifested intention that the state's legislation is to be exclusive, we need go no further. If we find no express or otherwise clear manifestation of preemption, we must examine whether the ordinances "cannot operate concurrently" with state law. LaGrande/Astoria, 281 Or. at 148, 576 P.2d 1204. The relevant question is whether the ordinances "conflict" with state law, i.e., that the local legislation prohibits what the state legislation permits or permits what the state legislation prohibits. Accord City of Portland v. Jackson, 316 Or. 143, 146-47, 850 P.2d 1093 (1993); Lindquist v. Clackamas County, 146 Or.App. 7, 12, 932 P.2d 1190 (1997). We begin with a presumption against preemption of local regulation. Indeed, "[w]e cannot simply `assume' that, by its silence, the legislature intended to permit conduct made punishable under an ordinance." Jackson, 316 Or. at 149, 850 P.2d 1093 (emphasis in original). Rather, "`we first must examine the ordinance and statutes that the parties claim are in conflict. Next, we determine what conduct the ordinance prohibits. Third, we look to see whether the applicable statute or statutes permit that conduct, either by an express legislative decision, by a decision apparent in the legislative history, or otherwise. If the ordinance prohibits conduct that the statute permits, the laws are in conflict and the ordinance is displaced under Article XI, section 2 [of the Oregon Constitution].'" City of Eugene v. Kruk, 128 Or.App. 415, 417, 875 P.2d 1190 (1994) (quoting Jackson, 316 Or. at 151, 850 P.2d 1093) (emphasis in Jackson ). The first question is whether ORS 537.769 expressly or otherwise clearly preempts the county's ordinances. We begin by considering whether that statute preempts all local regulation of ground water. We examine the text and context of the statute to determine the legislature's intent, and, if we find ambiguity, *758 we examine legislative history. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). We find that the text and context of the statute are clear, not ambiguous, and therefore we do not resort to legislative history. We have once before answered the question of whether the Act preempts all local regulation of ground water. In Water Resources Dept. v. City of Klamath Falls, 68 Or.App. 148, 151-52, 682 P.2d 779, rev. den. 297 Or. 781, 687 P.2d 796 (1984). We construed the Act in the context of the "broader statutory scheme involving ORS ch[apter] 536, governing the administration of water resources generally." We noted that ORS chapter 537 expresses "an overall public policy and interest in controlling the appropriation of ground water and set[ting] forth a [statewide] uniform system to effectuate that policy." Id. at 157, 682 P.2d 779. We noted also that ORS chapter 536 specifically permits concurrent regulation by local authorities that is consistent with state laws. Id. at 153, 682 P.2d 779. We therefore concluded that "[b]ecause the legislature could have, but did not, expressly manifest an intent to preclude any local regulation, * * * the state has not preempted the field, although we think it is clear that the legislature intended that state law, when implemented by the [Water Resources] director, be paramount, at least with respect to ground water. Accordingly, local authorities are free to adopt regulations which are not inconsistent with the state statutory scheme." Id. at 158, 682 P.2d 779. The legislature has since added ORS 537.769, which states, in part: "No ordinance, order or regulation shall be adopted by a local government to regulate the inspection of wells, construction of wells or water well constructors subject to regulation by the Water Resources Commission or the Water Resources Department under ORS 537.747 to 537.795 and 537.992." Accordingly, we consider whether ORS 537.769 provides the express manifestation, lacking in City of Klamath Falls, to prohibit all local regulation of ground water. The statute declares "[n]o ordinance, order or regulation shall be adopted by a local government to regulate" the specific topics. "Regulate" is defined as "to govern or direct according to rule * * *: to bring under the control of law or constituted authority * * *." Webster's Third New Int'l Dictionary, 1913 (unabridged ed 1993). Thus, regulations can prohibit or restrict activities or impose obligations that would not be present without that authority. ORS 537.769 regulates the power of local governments. By stating that "[n]o ordinance, order or regulation" may be adopted "to regulate," the statute places an absolute prohibition on some local regulation. However, that does not end the inquiry. The essence of the county's argument is that ORS 537.769 preempts only local regulation that conflicts with the statute; however, the legislature knows how to indicate such a meaning when it intends to include that limitation. Compare City of Portland v. Sunseri, 66 Or.App. 261, 265, 673 P.2d 1369 (1983) (legislation stating Liquor Control Act "shall be paramount and superior to and shall fully replace and supersede any and all municipal charter enactments or local ordinances inconsistent with it"); with State ex rel. Haley v. City of Troutdale, 281 Or. 203, 210, 576 P.2d 1238 (1978) (legislation stating "no municipality shall enact or enforce any ordinance, rule or regulation in conflict" with state building code). ORS 537.769 lacks any language expressly stating that local legislation is preempted only if it conflicts with state law. We are "not to insert what has been omitted, or to omit what has been inserted." ORS 174.010. The legislature has created a unique regulatory scheme in the Act. While ORS 537.769 expressly prohibits any local government regulation, that absolute prohibition is nevertheless limited to certain subjects—"the inspection of wells, construction of wells or water well constructors." (Emphasis added.) That prohibition is further narrowed to activities associated with those particular subjects that are also "subject to regulation by the * * * [commission] under ORS 537.747 to 537.795 and 537.992." (Emphasis added.) It *759 therefore is not tenable to argue that ORS 537.769 expressly prohibits all local regulation of ground water. Rather, we compare the prohibition with each of the various ordinances. Activities pertaining to well inspection, well construction, and water well constructors that are subject to regulation under the start card program fall within the express preemption. We therefore examine whether the activities regulated by the challenged local ordinances are also subject to regulation under the start card program as the regulation of well construction, well inspection or water well constructors. This approach gives effect to the legislature's express intention to avoid duplicative regulatory authority regarding those topics at the local level. See Advocates for Effective Regulation, 160 Or.App. at 299, 981 P.2d 368. If we find duplication, we must inquire no further and must conclude that the ordinance is expressly preempted by ORS 536.769. If we find no duplication, we then must undertake the second inquiry: whether the ordinance otherwise conflicts and is incompatible with the commission's statutory authority and its administrative rules on the subject of water wells, well constructors, and well testing. We address each of the challenged provisions separately. We first address plaintiffs' claims concerning the county's permit provisions. The county prohibits any "person" from "caus[ing] or allow[ing] construction or deepening of any water well without first obtaining a well drilling permit from Jackson County." LDO § 5.140.2; JCC § 1880.18. The permit is issued only to the land holder, easement holder, or to an authorized agent. The permit application must be accompanied by the appropriate fee.[4] Approval of the permit is contingent on compliance with the ordinances and with well location requirements. The permit fee is, by the county's own characterization, "for the act of locating and drilling a well." Thus it regulates the "construction of wells." Plaintiffs assert, and the county does not dispute, that the fee applies to the administrative expenses of the permit, county inspections, and water quality testing programs. The start card program assesses a similar fee. ORS 537.762(5). That fee accompanies the start card, is based on the act of well construction, and is thus a regulation of well construction. The state fee similarly goes to pay the administrative expenses of the commission, as well as to pay for the employment of well inspection personnel. ORS 537.763. Thus, the start card program, like the county program, assesses a fee on the act of constructing a well and applies the fee to similar kinds of expenses. We therefore conclude that the county's permit fee is expressly preempted as a regulation of well construction. We next consider plaintiffs' arguments that the county permit itself impinges on the state's exclusive power to regulate "construction of wells" under the start card program. By prohibiting any person from causing or allowing construction of a well until a permit is obtained and by requiring compliance with its ordinance provisions, the county regulates whether a well may be constructed.[5] The permit requirement is therefore a regulation of well construction. We conclude that the commission has been given exclusive authority over that form of regulation of well construction in the start card program. First, ORS 537.753(4) imposes a pre-construction permit requirement on owners who are constructing a well. Thus, the commission exercises authority over whether a well may be constructed in the owner-constructor circumstance. Because the county's pre-construction permit provisions apply to owner-constructors as well as to contracted, licensed well constructors (who are regulated under other provisions of the start card program), the county's provisions are expressly preempted by ORS 537.753(4) as a regulation of the construction of wells. To avoid confusion over the scope of the legislature's preemption, we examine the *760 Act's regulation of contracted, licensed water well constructors, and we conclude that a pre-construction permit requirement on contracted, licensed well constructors, while not expressly preempted, is inconsistent with state law. ORS 537.762 does not impose a permit requirement on well construction by contracted, licensed water well constructors. It requires a pre-construction report, or start card, but the commission has no approval authority. Rather, the report acts as notification that some activity regarding well construction has begun. The county argues that the state, in the instance of contracted, licensed well constructors, therefore does not regulate whether a well can be constructed by those well constructors as an initial matter.[6] However, under our second line of inquiry, we conclude that the county's construction permit requirement is inconsistent with state law, because the legislature purposefully omitted a permit requirement on the construction of wells by contracted, licensed well constructors. The legislature granted to the commission the authority to regulate the appropriation of ground water "through a system of registration, permits and adjudication." ORS 537.525(1); see also ORS 537.780(1)(h)(A) (empowering the commission to adopt rules governing permits). Thus, the commission has general authority to permit various activities and to adopt rules governing the administration of those permits. Yet, the fact that the legislature set up a comprehensive non-permit notification procedure in the start card program indicates its intention not to require permits for well construction from licensed well constructors. The county permit ordinance provisions are thus incompatible with state law and are preempted as a regulation of the construction of wells.[7] We next examine whether the county provisions regarding the location of ground water wells are regulations of "construction of wells" also subject to regulation under ORS 537.747 to ORS 537.795 and ORS 537.992. We conclude that they are. The county argues in essence that the term "construction" pertains only to the drilling, driving, jetting, boring, and digging of the hole and to the materials used in the well, not to the location of the well. We find no support for the county's argument in the text or context of the statute. Webster's Third New Int'l Dictionary at 489 defines "construction" as "the form or manner in which something has been put together." That definition is broad enough to encompass both the activities the county lists and the location for digging the well. ORS 537.775(3) also provides for the definition of well "setback[s] * * * in the well construction rules adopted by the commission," thus revealing the legislature's belief that well location requirements are indeed well construction regulations. In addition, ORS 537.775(3), in conjunction with ORS 537.762(1)(b), ORS 537.765(3)(b) and ORS 537.780(1)(c)(A), leaves little doubt that well location requirements are subject to regulation by the commission. ORS 537.762(1)(b) requires that the start card contain information about the "approximate location of the proposed well." The well log requirement, under ORS 537.765(3)(b), requires similar information. ORS 537.780(1)(c)(A) empowers the commission in the administration of those provisions to adopt and enforce standards for the construction of wells "necessary to protect the ground water resources." Indeed, the commission's "well construction standards" are designed to locate wells away from likely sources of contamination. See OAR XXX-XXX-XXXX *761 (well setback requirements from septic tanks, sewage disposal areas, hazardous waste sources, livestock operations, and others). ORS 537.775(3) specifically mandates compliance with those standards in the permanent abandonment of old wells due to water quality problems. The start card program has therefore specifically focused on construction standards in the form of well setback regulations that are necessary to protect ground water resources from contamination. Thus, the location of wells is subject to regulation under the start card program, and the county's well location provisions are expressly preempted as a regulation of well construction. We next consider the county's provisions requiring submission of a plot plan. The county requires that, within ten days after completion of the well, "the well constructor shall submit an accurate plot plan showing the location of the well and distances to property lines, septic tanks and drainfields, sewer lines, wells within 100 feet, and any other significant natural or constructed features." LDO § 5.140.3(h); JCC § 1880.19(h). We conclude that the county's plot plan submission requirement is expressly preempted as a regulation of well constructors, because it duplicates the start card program's well log requirement under ORS 537.765.[8] The county argues that its plot plan requirement requests different information than the state's well log and that the requirement is, therefore, neither incompatible nor duplicative of the authority vested in the commission through the start card program. We do not agree. While the county does request some different information, its focus is to ascertain the actual location of the well. The state's well log also requests well location information. The legislature chose to regulate the reporting requirements of water well constructors, and it also chose to require them to report the location of the well after construction. Thus, we conclude that the county regulates activities that are subject to regulation under the start card program, and the plot plan ordinance provisions are expressly preempted as a regulation of water well constructors. We also conclude that the county's well "flow" test ordinance provisions are expressly preempted. The county requires (1) that any person conducting a well "flow" test, including licensed water well constructors, be "authorized" by the county; (2) that the person conducting the test follow the well "flow" test procedures adopted by the county; and (3) that all authorized well yield testers submit copies of the well "flow" test to the county. LDO § 5.140.5; JCC § 1880.21. First, the state program clearly regulates the licensing of water well constructors. ORS 537.750. Further, in the administration of that licensing authority, ORS 537.780(1)(h)(A) empowers the commission to adopt standards for that license. Those standards can, and in fact do, require knowledge of well testing techniques. See OAR XXX-XXX-XXXX (licensed water well constructors are qualified to conduct well "pump" tests according to acceptable techniques). Because the county includes licensed well constructors in its authorization program and because that authorization program duplicates the authority of the commission to license water well constructors under the start card program, we conclude that the provisions are preempted as a regulation of water well constructors. Second, we note that the county's well "flow" test procedures are regulations on "inspection of wells."[9] We examine the well *762 log and well "pump" test requirements[10] in the start card program along with ORS 537.780 and conclude that those county regulations are preempted. Under the well log requirement, the commission requires information on water levels and water flow. ORS 537.765(3)(f-g). In the administration of those provisions, ORS 537.780(1)(c)(A) and ORS 537.780(1)(d) empower the commission to adopt standards for the maintenance of wells and thereby to "enforce uniform standards for the scientific measurement of water levels and of ground water flowing or withdrawn from wells." Under the "pump" test requirement, the commission requires the completion of such a test and the reporting of the test results, including information on certain parameters of the testing. Thus, well "flow" testing standards are subject to regulation under the start card program to ensure uniform measurement and reporting for the maintenance of wells. We conclude that the county's testing procedures are expressly preempted as a regulation of well inspection. We next examine the county's well "flow" test reporting provisions. Again, we note that the provisions are regulations on well inspection because they prescribe how the county is to receive information on an inspection of the function of a well. Similarly, the state's well "pump" test governs the receipt of information on an inspection of the function of a well. ORS 537.772 requires that the owner or operator conduct and report the results from its well pump test. Therefore, we conclude that the county's well "flow" test reporting provisions are expressly preempted as a regulation of well inspection. We next turn to the county's water quality testing provisions. We conclude that the county's provisions do not regulate well construction, well inspection or water well constructors. A water quality test is plainly not a regulation of well construction. In contrast to its well "flow" test provisions, the county's water quality testing provisions are not a regulation of the inspection of wells. ORS 537.515(9) defines a well, in part, as "any artificial opening or artificially altered natural opening * * * by which ground water is sought or through which ground water flows under natural pressure or is artificially withdrawn." Examining the flow of water through a well is necessarily an examination of the opening seeking to retrieve that water. An examination of the water's quality is a different matter, because it does not necessarily involve an examination of the function or make up of the well itself. Moreover, while the state imposes a regulation on well constructors requiring them to provide water samples to the commission upon its request, ORS 537.765(4) does not specify that well constructors provide those samples for water quality tests. In contrast, the county simply requires that the quality of water from new and deepened wells be tested by a certified laboratory, not by water well constructors, and that the results of those tests simply be submitted to the county. LDO § 5.140.4(a); JCC § 1880.20(a). Therefore, the county's water quality testing requirements do not impose regulations on water well constructors that are subject to the commission's statutory authority under the start card program. We conclude that the county's water quality testing provisions are not expressly preempted. Under our second line of inquiry, there is no reason to conclude that the water quality test requirement is incompatible with state law. The county requires each new and deepened well to be tested for total coliform bacteria, nitrate, arsenic, fluoride, sodium, and chloride. The results of the test must be submitted to the county, and they are available to the public and for use in ground water data analysis. LDO § 5.140.4; JCC § 1880.20. Plaintiffs present a list of state provisions with which the ordinances allegedly conflict: ORS 537.525; ORS 537.545(2); ORS 537.765(4). Again, ORS 537.765(4) requires only that a water sample be furnished by the well constructor to the commission upon its request. ORS 537.545(2) requires that any person using ground water for exempt purposes provide information on the ground water and its use *763 upon the commission's request. However, plaintiffs do not point to any statement or provision that indicates that the commission is the sole authority for testing ground water quality or that the legislature intended those measures to be the exclusive means for ensuring water quality. Additionally, ORS 537.525(11) contemplates that "[a]ll activities in the state that affect the quality or quantity of ground water shall be consistent with the state's ground water quality goal set forth in ORS 468B.155." Indeed, OAR XXX-XXX-XXXX expressly recognizes that the commission's water well construction standards "may not produce water of suitable quality for use as public, community, municipal, or public utility supplies. Regulations administered by other agencies may apply in addition to those in this Chapter." We conclude that the county's water quality test provisions, therefore, are not incompatible with state law. We similarly conclude that the county's water quality testing fee is not preempted. Like the water quality test provisions themselves, the water quality testing fee is not a regulation of well inspection, well construction, or water well constructors. In addition, plaintiffs have not identified any provision within the start card program that the county's water quality testing fee duplicates, nor is any apparent. Plaintiffs merely argue that the water quality testing fee is otherwise incompatible with the Act's provisions exempting certain water uses from the ground water appropriation permits. However, ORS 537.545, a provision to which ORS 537.769 does not refer, expressly contemplates commission regulation of those exempt use wells. That can include water quality regulation and may require costs incidental to that regulation. Plaintiffs have not identified how the county's water quality testing fee operates in conflict with the commission's regulatory authority over exempt use wells. Thus, plaintiffs have failed to demonstrate that the county's water quality testing fee ordinance provisions are preempted. We next reject plaintiff's arguments that the county's ordinance provision regarding deed notification is preempted. The county's deed notification requirement, LDO § 5.140.6, provides that sufficient evidence be supplied showing that the individual lots proposed for creation by partition or subdivision will have available a 2.5 gallon per minute supply of potable water. If that amount of water is not available, in order to receive county approval of the partition or subdivision, a restrictive covenant must be recorded in the deed description. However, only the applicant for map or plat approval by the county is required to comply. Likewise, the state requires only the owner of the property on which a well is drilled to record specific information in the property deed records. ORS 537.788. Thus, the county's regulations are not a regulation of water well constructors that are subject to regulation by the commission under the start card program. Nor are they duplicative regulatory authority over well construction or well inspection.[11] Finally, plaintiffs argue that the provision permitting the county, "pursuant to public hearing," to designate "lands within groundwater problem areas" as "areas of special concern" is incompatible with the Act. LDO § 280.110(3). In those designated areas, the ordinance requires the testing of "well capacity and water potability." Id. The ordinance next states that "greater care must be taken" where "potable water quality or quantity problems have occurred." Id. The ordinance further requires that the test results be submitted "in conjunction with land use or division permit applications, for parcels [so] designated * * *. Applications for land use permits or divisions shall be denied where minimum quantity and quality standards, as established in Section 5.140, are not satisfied unless mitigating measures acceptable to the County are proposed to ensure safe and adequate water supply." Id. (emphasis added). Plaintiffs point out that the Act permits the commission, by rule, to designate critical ground water areas if it finds water quantity *764 or quality issues. ORS 537.730 through ORS 537.740. The commission is empowered to impose several conditions necessary to protect the quality and quantity of ground water. ORS 537.735(3). Further, after designating by rule an area as a "critical ground water area, the commission may initiate a contested case proceeding to limit the use of ground water in the area * * *." ORS 537.742(1). Plaintiffs do not argue that, under the Act, the commission is the only government entity that can use the regulatory mechanism of designating land areas based on water issues. However, plaintiffs point out that ORS 537.780(2)(a) specifically prohibits the commission from restricting ground water use unless the rule is based on substantial evidence in the record to justify the imposition of restrictions. Plaintiffs argue only that the county's ability, under this ordinance, to designate such areas "pursuant to public hearing" without a requirement for substantial evidence derogates the policy embodied in ORS 537.780(2)(a). We might agree with plaintiffs if the county's ordinance were drawn to regulate the use of ground water. Indeed, in its contested case proceedings, the commission is empowered "to limit the use of ground water" by, among others, apportioning or reducing the permissible total withdrawal of water. ORS 537.742. The "substantial evidence" requirement of ORS 537.780(2)(a) likewise pertains to "rule[s] restricting ground water use." (Emphasis added.) Allowing local governments to restrict the use of ground water, without showing by substantial evidence that the restrictions are justified would derogate—"restrict the force of"—the Act. Webster's Third New Int'l Dictionary at 609. However, the county's ordinance is not directed at limiting the use of ground water, itself. Rather, it is included solely in the LDO, and it directly restricts only the use of land: again, only "[a]pplications for land use permits or divisions shall be denied where minimum quantity and quality standards * * * are not satisfied." (Emphasis added.) The fact that the restriction on the use of land is predicated on ground water quality or quantity concerns and that the land use decision may affect the actual use of ground water is not consequential because the only regulatory action the ordinance permits the county to undertake is to approve or deny a land use permit or land use division proposal. It simply does not authorize the county directly to restrict the use of ground water, and that is the only activity prohibited by ORS 537.780(2)(a) without "substantial evidence." In sum, we hold that the APA bars plaintiffs' claims against the state defendants. We hold that ORS 537.769 does not expressly preempt all local regulation of well construction, well inspection, and well constructors. We hold that the county ordinances' permit fee provisions, permit well location provisions, plot plan submission provisions, and well flow test provisions are expressly preempted by ORS 537.769. We further hold that the county ordinances' well construction permit provisions are preempted, in part expressly and also as incompatible with state law. And finally, we hold that the county ordinances' water quality test provision, water quality fee provisions, deed notification provisions, and "areas of special concern" provision are not preempted by state law. Judgment in favor of county reversed as to plaintiffs, other than Oregon Ground Water Association, with respect to ordinance 94-89 and ordinance 94-90 permit fee provisions, permit well location provisions, plot plan submission provisions, well flow test provisions, and well construction permit provisions; remanded with instructions to enter judgment in favor of plaintiffs, other than Oregon Ground Water Association, with respect to the latter provisions and dismissing claims of Oregon Ground Water Association for lack of standing and for further proceedings; otherwise affirmed. DEITS, C.J., concurring. In my opinion, it is doubtful that the legislature intended to preempt the authority of local governments to regulate groundwater wells in the manner that the county has attempted to do in Ordinances 94-89 and 94-90. As the state and county assert, the purpose of those local ordinances is a matter of legitimate local concern and the *765 ordinances involve objectives that are quite different from that of the state regulatory authority. Nonetheless, as the majority concludes, the text and context of ORS 537.769 do not provide a basis to limit the preemptive effect of the statute on local authority in the manner that the county desires. Accordingly, I must concur with the majority opinion with respect to plaintiffs' claims against the county defendants. NOTES [*] Deits, C. J., vice Warren, J., retired. [1] Oregon Ground Water Association (OGWA) is a named plaintiff. However, it is a trade association that merely "represents the interests of ground water users, well constructors, pump installation contractors, hydro-geologists, and well testers in Jackson County and the State of Oregon." In every case, we must examine whether a justiciable controversy exists, and a plaintiff's standing is germane to whether a justiciable controversy exists under ORS chapter 28. Lone Oak Racing, Inc. v. Oregon Racing Commission, 162 Or.App. 111, 118, 986 P.2d 596 (1999). Therefore, we must examine OGWA's standing even though no party has raised the issue. Id. In Oregon Taxpayers United PAC v. Keisling, 143 Or.App. 537, 544, 924 P.2d 853, rev den 324 Or. 488, 930 P.2d 852 (1996), cert den 520 U.S. 1252, 117 S.Ct. 2410, 138 L.Ed.2d 176 (1997), we held that "ORS 28.020 does not allow an organization to assert the rights of its members." OGWA seeks to do just that; therefore we hold that OGWA, as a named plaintiff, does not have standing. Darryl Baker and his company, Ashland Drilling, Inc., are licensed well constructors doing business in Jackson County, and Richard and Elizabeth Fujas are Jackson County well owners. When we refer to "plaintiffs," we refer only to these parties. [2] It is unclear from plaintiffs' pleadings or briefs whether plaintiffs' request that the state issue "water resources statements" is a request for the state to promulgate "rules" under the APA. If the water resources statements are "rules," ORS 183.390 would bar plaintiffs' prayer for the issuance of water resources statements under the Declaratory Judgment Act. Under ORS 183.390, a party may petition an agency to promulgate, amend, or repeal a rule. Within 30 days after submitting the petition, the agency must either issue an order denying the petition or initiate rulemaking procedures. If the agency refuses to act on that petition, ORS 183.490 would govern jurisdiction of the judicial remedy, not the Declaratory Judgment Act. See Bay River, 26 Or.App. at 723, 554 P.2d 620. In any event, plaintiffs' request regarding the water resources statements are barred by the exclusive remedy provision of the APA. [3] See Or Const, Art IV, § 1(5); Or Const, Art XI, § 2. [4] We address separately the fee assessed in conjunction with the county's water quality testing provisions. [5] We address the county's well location provisions separately below. [6] We note that the commission's enforcement authority, under ORS 537.762(4) and ORS 537.780(1)(b)(A), which may result in the prohibition of well construction, is distinct from an authority empowering the commission to approve, as an initial matter, the commencement of well construction. In addition, ORS 537.780(1)(h)(A) permits the commission to adopt rules governing permits in the administration of the entire Act. ORS 537.780(1)(h)(A) does not provide separate authority for imposing such permits on contracted, licensed well constructors. Compare ORS 537.753(4) (legislature granted the commission authority to permit the construction of wells by owner-constructors). [7] Because we hold that the county's permit provisions are preempted, we find it unnecessary to consider plaintiffs' arguments that the county permit signature provisions are preempted. Those provisions fall along with the permit provisions. [8] ORS 537.765 states, in part: "(1) * * * any person * * * constructing, altering, abandoning or converting a well, shall keep a log of each well constructed, altered, abandoned or converted and shall furnish a certified copy of the log to the Water Resources Commission within 30 days after the completion of the construction, alteration, abandonment or conversion. "* * * * * "(3) Each log required under subsection (1) of this section shall * * * show: [in part, name and address of well owner and constructor, location of the well, dates of construction, depth, diameter and type of well, kind and amount of casing, flow of water, static water level, kind and material of strata penetrated, and temperature of ground water.]" [9] The county defines a "flow test" as "procedure for pumping water from a well for a specified period of time to establish well yield and/or basic ground water quantity information." LDO § 00.040. [10] OAR XXX-XXX-XXXX(6) defines a well "pump" test as "[a] controlled procedure in which water is withdrawn from a well at a constant rate for a specified period of time and in which the water level in the well is measured at specified intervals before, during and after pumping." [11] Plaintiffs do not argue that the deed notification requirement is otherwise inconsistent with state law.

18‐2608 Thompson v. United States UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of November, two thousand nineteen. PRESENT: JOHN M. WALKER, JR., RICHARD J. SULLIVAN, Circuit Judges, ALISON J. NATHAN,* District Judge. _____________________________________ Addison Thompson, Plaintiff‐Appellant, * Judge Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting by designation. 1  v. 18‐2608 United States of America, United States Postal Service, Station Manager, Defendants‐Appellees. _____________________________________ FOR PLAINTIFF‐APPELLANT: Addison Thompson, pro se, New York, NY. FOR DEFENDANTS‐APPELLEES: Rachel L. Doud, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Defendants‐ Appellees United States of America, United States Postal Service, Station Manager. Appeal from a judgment of the United States District Court for the Southern District of New York (Katherine P. Failla, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. 2  Appellant Addison Thompson, proceeding pro se, appeals the district court’s judgment dismissing his complaint under Federal Rule of Civil Procedure 12(b)(1). Liberally construed, Thompson claimed that the United States, the United States Postal Service (“USPS”), and the Station Manager (collectively, the “Government”) violated his rights under the Visual Artists Rights Act (“VARA”), the Administrative Procedure Act (“APA”), and the Federal Tort Claims Act (“FTCA”) by damaging a mural project he created and removing it from a post office. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo the dismissal of a complaint pursuant to Rule 12(b)(1). See Lefkowitz v. Bank of N.Y., 528 F.3d 102, 107 (2d Cir. 2007). Dismissal of a complaint for lack of subject matter jurisdiction is proper “when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Contrary to Thompson’s assertion, a district court may dismiss a pro se complaint under Rule 12(b)(1) for lack of jurisdiction. See, e.g., Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002) (affirming Rule 12(b)(1) dismissal of pro se complaint); Posr v. Court Officer Shield # 207, 180 F.3d 409, 413–14 (2d Cir. 1999) (citing the liberal construction standard described 3 in Haines v. Kerner, 404 U.S. 519 (1972), but nevertheless affirming Rule 12(b)(1) dismissal of claims against state defendants because they were immune from suit). Haines does not dictate otherwise; it held that a pro se complaint must be construed liberally, but not that a pro se complaint could never be dismissed. Haines, 404 U.S. at 520.1 Here, the district court properly construed Thompson’s complaint liberally, attempting to find the strongest claims it suggested by considering several laws that could be relevant to his claims. I. VARA VARA, a provision of federal copyright law, is intended to protect an artist’s “moral rights,” including a right to protect the artwork from destruction. 17 U.S.C. § 106A; see Carter v. Helmsley‐Spear, Inc., 71 F.3d 77, 81–83 (2d Cir. 1995) (describing history and purpose of VARA). VARA “supplements general copyright protection,” and courts look to other provisions of federal copyright law to determine whether VARA applies to a particular case. Kelley v. Chi. Park Dist., 1Haines relied on the “no set of facts” pleading standard announced in Conley v. Gibson, 355 U.S. 41, 45–46 (1957). Conley has been overruled by the plausibility standard announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, Twombly did not affect Haines’s ruling about pro se pleadings, and we continue to construe pro se pleadings liberally. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017). 4 635 F.3d 290, 299 (7th Cir. 2011); see also Carter, 71 F.3d at 83. Further, VARA is expressly incorporated into the copyright law’s liability provision, which states: Anyone who violates any of the exclusive rights of . . . the author as provided in section 106A(a) [VARA] . . . is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity. 17 U.S.C. § 501(a) (emphasis added).2 The district court correctly held that the Government (including the USPS specifically) is not liable under VARA. Generally, “the United States, its agencies, and its employees (when functioning in their official capacities) are immune from 2 Although VARA is expressly incorporated into this provision of copyright law, it is not incorporated into 28 U.S.C. § 1498, which waives the government’s sovereign immunity to suits by copyright owners. See Kammeyer v. U.S. Army Corps of Eng’rs, No. EDCV 15‐ 869, 2015 WL 12765463, at *3–5 (C.D. Cal. Oct. 9, 2015). In any event, even if the § 1498 waiver applied, the district court would have lacked jurisdiction because § 1498 provides that copyright actions against the government must be brought in the Court of Federal Claims. 28 U.S.C. § 1498(b); see also Order at 6–7, Twitchell v. W. Coast Gen. Corp., No. 06‐ cv‐4857 (C.D. Cal. Feb. 8, 2008), ECF No. 122 (“Twitchell Order”). 5 suit based on the principle of sovereign immunity.”3 County of Suffolk v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010). In deciding whether the United States or its agencies are liable under a federal statute, courts conduct a two‐step inquiry and determine: (1) “whether there is a waiver of sovereign immunity for actions against the” United States or the agency in question and (2) whether the substantive provisions of the federal statute apply to the United States or the agency in question. USPS v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 743 (2004). At the first step, the district court correctly determined that the USPS has waived sovereign immunity. See 39 U.S.C. § 401(1); Flamingo, 540 U.S. at 744. Nevertheless, as the district court determined, VARA does not apply to the government or its agencies by the plain language of its liability provision. See 17 U.S.C. § 501(a) (defining “anyone” to include state entities but failing to mention federal entities); see also Flamingo, 540 U.S. at 744–48 (holding that a provision of antitrust law, which applied to any “person” including states and foreign 3 The USPS is an “independent establishment” of the Government and subject to sovereign immunity. U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 744 (2004). 6 governments, did not apply to the government or USPS).4 Thompson’s argument that VARA applies to the Government because the statute refers to “any State” and “anyone” is unavailing, as courts have consistently held that statutes applying to “state” actors and/or to “any person” do not apply to the federal government. See, e.g., Flamingo, 540 U.S. at 744–47; Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780–81 (2000) (holding that a statute that subjects “[a]ny person” to liability did not apply to sovereigns); United States v. Acosta, 502 F.3d 54, 60 (2d Cir. 2007) (noting that 42 U.S.C. § 1983, which provides a cause of action against “state actors,” does not provide relief against federal government actors). And the various cases Thompson cites do not suggest otherwise; they primarily focus on the merits of a VARA claim and, with the exception of Twitchell, do not concern federal 4 Congress partially overruled Flamingo’s holding when it passed the 2006 Postal Accountability and Enhancement Act (“PAEA”), which amended the Postal Reorganization Act so that the USPS could be sued under antitrust law in certain situations. 39 U.S.C. § 409(d)(2), (e)(1); see Tog, Inc. v. USPS, No. 12‐cv‐1946, 2013 WL 3353883, at *2 (D. Colo. July 3, 2013). The PAEA did not, however, specify that the USPS could be sued under VARA. And no other provision of law expressly holds that VARA applies to the USPS or the government. See 39 U.S.C. § 410(b) (outlining various federal laws that apply to the USPS). 7 defendants. 5 The Government and the USPS are therefore immune from Thompson’s claims under VARA, and the district court properly dismissed those claims. II. APA Under the APA, an agency may not act in a manner that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). The APA waives the sovereign immunity of the government and federal agencies.6 5 U.S.C. § 702. However, that waiver does not apply where “any other statute . . . expressly or impliedly forbids the relief which is sought.” Id. The Postal Reorganization Act expressly forbids suit against the USPS under the APA where the USPS acts within its powers. 39 U.S.C. § 410(a) (stating that certain federal laws, including the APA, do not “apply to the exercise of the powers of the Postal Service”); see also Mittleman v. Postal Regulatory Comm’n, 757 5Thompson does not cite to a particular order in Twitchell’s docket in support of his arguments. However, review of the available orders does not support his arguments; critically, in that case, the district court dismissed an artist’s VARA claim against the government based on sovereign immunity, holding that the FTCA’s waiver of immunity did not apply to VARA. See Twitchell Order at 6–7. 6 Significantly, “the APA does not waive sovereign immunity for money damages claims . . . [which] fall[] outside the scope of the APA.” Ward v. Brown, 22 F.3d 516, 520 (2d Cir. 1994). 8 F.3d 300, 305 (D.C. Cir. 2014) (collecting cases holding that the USPS is exempt from suit under the APA). Here, as the district court correctly held, the USPS’s actions in moving post office locations and taking down the artwork clearly fall within its enumerated power to “maintain buildings, facilities, equipment, and other improvements on any property owned or controlled by it.” 39 U.S.C. § 401(6). The district court thus lacked jurisdiction over any APA claim. III. FTCA The FTCA also provides a limited waiver of the government’s sovereign immunity for injuries arising from the tortious conduct of federal officers or agents acting within the scope of their office or employment. 28 U.S.C. § 1346(b)(1). Before bringing suit under the FTCA, a plaintiff must exhaust administrative remedies by filing a claim for monetary damages with the appropriate federal entity within two years of accrual of the injury. 28 U.S.C. § 2401(b); Phillips v. Generations Family Health Ctr., 723 F.3d 144, 147 (2d Cir. 2013). A plaintiff has properly exhausted an FTCA claim against the USPS when the U.S. Postal Service receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95, Claim for Damage or Injury, or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred 9  by reason of the incident. A standard Form 95 may be obtained from the local District Tort Claims Coordinator, the National Tort Center, or online at usa.gov (select Government forms). 39 C.F.R. § 912.5(a) (emphasis added). A district court lacks subject matter jurisdiction if the plaintiff failed to exhaust his FTCA claims. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005). Here, Thompson failed to allege proper exhaustion. Although he asserts that he communicated with USPS officials from 2013–2017, he never alleged that he sought money damages in any of those communications. Because Thompson discovered the removal and damage to the project in 2014 at the latest, the two‐ year period for exhaustion expired in 2016 and any tort claim resulting from that damage is “forever barred.” 28 U.S.C. § 2401(b). And, as the district court correctly determined, Thompson did not allege any extraordinary circumstance that might warrant tolling of the exhaustion period. Finally, Thompson’s argument on appeal that the Rehabilitation Act and the Americans with Disabilities Act (“ADA”) do not require exhaustion is inapposite; although the exhaustion requirement for a plaintiff raising discrimination claims arising under those statutes may be waived, those statutes have no bearing on the FTCA’s 10 exhaustion requirement.7 IV. New Claims For the first time on appeal, Thompson raises claims under the Rehabilitation Act, the ADA, and the Takings Clause of the Constitution. We decline to decline to consider those claims. See Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d Cir. 2016) (“It is a well‐established general rule that an appellate court will not consider an issue raised for the first time on appeal.” (cleaned up)). V. Leave to Amend Finally, the district court properly denied Thompson leave to file an amended complaint. Denials of leave to amend based on futility are reviewed de novo. Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011). Typically, a pro se plaintiff should be “grant[ed] leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated,” but leave to amend need not be granted where amendment would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal 7 ADA and Rehabilitation Act plaintiffs are required to exhaust their claims, although exhaustion is not jurisdictional under those statutes and may be waived. See Boos v. Runyon, 201 F.3d 178, 181–84 (2d Cir. 2000) (Rehabilitation Act); Zerilli‐Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80–81 (2d Cir. 2003) (ADA). 11 quotation marks and citation omitted). Here, the deficiencies of the complaint – lack of jurisdiction and failure to exhaust the FTCA claims within two years – could not be cured. We have considered all of Thompson’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court 12 

276 S.C. 143 (1981) 276 S.E.2d 529 Dennis H. McCALL, Appellant, v. A-T-O, INC., Respondent. 21412 Supreme Court of South Carolina. March 23, 1981. *144 George T. Sink, of Charleston, and Larry C. Brandt, Walhalla, for appellant. Harold A. Boney, of Dowling, Sanders, Dukes, Novit & Svalina, Beaufort, for respondent. March 23, 1981. GREGORY, Justice: This appeal is from an order vacating a default judgment in a personal injury case. We reverse and remand. Appellant was injured January 14, 1978 when he was asked to help unload steel he had delivered to respondent's construction site in Berkeley County. The Director of Industrial Relations for respondent's plant in Goose Creek, Paul G. Smith, immediately notified Waite Hill Services, Inc., a subsidiary of respondent in charge of litigation and claims and Traveler's Insurance Company of the injury and claim. On November 27, 1978, Travelers denied the accident was covered under either the respondent's workmen's compensation or general liability policies. The summons and complaint commencing this action were thereafter served upon Ms. Karen Payne, secretary to the president of respondent's construction equipment division on December 8, 1978. On that same day, Ms. Payne delivered the summons and complaint to the office of Mr. Smith, who directed his secretary, Ms. Carolyn Bird, to inform the corporate risk department of respondent at Willoughby, Ohio. Ms. Bird followed these instructions by telephoning the corporate risk department, and, at their direction, she forwarded a copy of the summons and complaint to them. On December 15, 1978, Ms. B.J. Leland of the corporate risk department directed Ms. Bird by telephone to forward copies of the summons and complaint to Travelers Insurance Co. and to Mr. Jack Mangus of Waite Hill Services in Atlanta. *145 Ms. Bird did not comply with these instructions on December 5, and since she was going on vacation the following week, she left written instructions for Mr. Smith, who was out of town on that date, to forward the copies of the summons and complaint to Travelers and Waite Hill Services. Upon his return to the office on December 19 or 20, Mr. Smith found the message but did not comply. Instead, he telephoned the corporate risk department to inform them he had already contacted Travelers and Waite Hill Services concerning the claim. Mr. Smith incorrectly assumed the instructions concerning the mailing of the summons and complaint to Travelers and Waite Hill Services were no longer valid. The corporate risk department incorrectly assumed Mr. Mangus of Waite Hill Services in Atlanta would take care of the matter. On January 5, 1979, the twenty-eighth day after service of the summons and complaint, counsel for appellant filed an affidavit of default dated January 3, 1979 and the trial judge signed the order for judgment by default. Notice of motion and motion to vacate the default judgment were filed on October 26, 1979. A hearing was held on February 5, 1980. The trial judge, on March 28, 1980, set aside the order of judgment by default and granted respondent the right to answer on the ground the conduct of Mr. Smith constituted excusable neglect. Appellant asserts the trial judge erred in holding respondent's failure to timely answer resulted from excusable neglect. We agree. The lower court's determination of motions to vacate default judgments will not be disturbed absent a showing of abuse of discretion. Stewart v. Floyd, ___ S.C. ___, 265 S.E. (2d) 254 (1980); Accord, Renney v. Dobbs House, Inc., ___ S.C. ___, 274 S.E. (2d) *146 290 (1981). An abuse of discretion arises in cases in which the judge was controlled by some error of law or where the order, based upon factual, as distinguished from legal, conclusions, is without evidentiary support. Id. Here, the factual situation is similar to that faced by this Court in Ledford v. Pennsylvania Life Ins. Co., 267 S.C. 671, 230 S.E. (2d) 900 (1976). There, the insurance company's attorney interpreted the insurance company official's letter referring the insured's file to local counsel and the local counsel's return acknowledgment to mean the local counsel was aware of the suit. This assumption was made despite the fact that the letters antedated the service of the summons and complaint by several weeks. This Court found the trial judge abused his discretion in vacating the default judgment on the basis of excusable neglect. Respondent seeks to distinguish Ledford by arguing that the layman in this case should be held to a lesser standard than the lawyer in that case. This Court has never held a layman to a lesser standard than attorneys. In Little v. Orkin Exterminating Co., 270 S.C. 305, 241 S.E. (2d) 909 (1978), the branch manager of Orkin mailed copies of the summons and complaint to Orkin's legal office in Atlanta but failed to send them by certified mail. The branch manager was a layman. This Court found the manager's conduct did not constitute excusable neglect and that the trial judge's vacation of the default judgment was improper. Here, Mr. Smith did even less than the manager in Little. He did not even forward the pleadings to his company's counsel. Respondent also argues Mr. Smith's lack of familiarity with legal proceedings constitutes excusable neglect. Renney v. Dobbs House, Inc., supra, disposes of this contention. There, this Court held failure to serve responsive pleadings within the statutory period because complainant used a different *147 method of service from that utilized in other proceedings did not constitute excusable neglect. We concluded the trial judge erred in vacating the default judgment for that reason. The trial judge's finding of excusable neglect is without evidentiary basis, thus an abuse of discretion. Therefore, we conclude the trial judge erred in vacating the default judgment. His order is reversed and the case remanded for re-entry of the default judgment and determination of the amount of damages in accordance with the procedures set forth in Howard v. Holiday Inns, Inc., 271 S.C. 238, 246 S.E. (2d) 880 (1978). Reversed and remanded. LEWIS, C.J., and LITTLEJOHN, NESS and HARWELL, JJ., concur.

21 Cal.App.3d 928 (1971) 98 Cal. Rptr. 914 LEONARD STILSON, Plaintiff and Respondent, v. MOULTON-NIGUEL WATER DISTRICT et al., Defendants and Appellants. Docket No. 10465. Court of Appeals of California, Fourth District, Division Two. December 8, 1971. *932 COUNSEL Rimel, Harvey & Logan, Rimel, Harvey & Helsing, Musick, Peeler & Garrett, Bruce E. Clark, Donald R. Gail and Lawrence E. Stickney for Defendants and Appellants. Levy & Van Bourg, Everett E. Demler and Thomas S. Mulligan for Plaintiff and Respondent. OPINION GABBERT, J. In this action to recover for personal injuries, defendants appeal from a judgment in favor of plaintiff Stilson. Plaintiff's employer, the American Bridge Division of the United States Steel Corporation (American Bridge), entered into a contract with appellant *933 Moulton-Niguel Water District (Moulton-Niguel) pursuant to which American Bridge was to construct large water tanks. Appellant Boyle Engineering Corp. (Boyle) served as supervising engineer for the project. During the course of construction of one of the tanks, plaintiff fell onto a steel floor from a 30-foot steel column on which he was working. Counsel for the defendants stipulated and the evidence produced during the trial shows that plaintiff's fall and consequent injuries were caused by the negligent manner in which American Bridge erected and supported the column on which plaintiff was working when the accident occurred. Plaintiff's motion for a directed verdict against Moulton-Niguel and Boyle on the issue of liability was granted, and the jury returned a verdict, limited to the issue of damages of $312,875.23, after deduction of workmen's compensation benefits paid. Defendants' motion for a new trial was granted, limited to the issue of damages, unless plaintiff consented to a remittitur of $75,000; plaintiff so consented, and judgment for the sum of $237,875.23 was entered. Plaintiff's motion for a directed verdict against Moulton-Niguel and Boyle on the issue of liability was based on several theories. Plaintiff contended that under the terms of the contract between American Bridge and the defendants, an agency relationship was created, as a matter of law, in which American Bridge was the agent of the defendants for the purpose of constructing the water tank in which plaintiff was injured. Accordingly, Moulton-Niguel and Boyle would incur liability for the stipulated negligence of their agent. Plaintiff further argued Moulton-Niguel and Boyle were his statutory employers (Lab. Code, § 6304), and violated their duties to provide a safe place of employment. (Lab. Code, § 6400 et seq.) Finally, plaintiff contended, even if an agency relation were not shown, Moulton-Niguel and Boyle bore the nondelegable duty to provide a safe place to work. (See Van Arsdale v. Hollinger, 68 Cal.2d 245 [66 Cal. Rptr. 20, 437 P.2d 508]; Rest. 2d Torts, §§ 413, 416.) Although the trial judge apparently based his grant of plaintiff's motion for a directed verdict on the existence of an agency relationship between Moulton-Niguel and Boyle, and American Bridge, neither party requested specific findings, and the court made none. (1) Accordingly, if the directed verdict on the issue of liability may be sustained upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. (Davey v. Southern Pacific Co., 116 Cal. 325, 329 [48 P. 117]; Snider v. Snider, 200 Cal. App.2d 741, 756 [19 Cal. Rptr. 709]; 3 Witkin, Cal. Procedure (1954) § 76, p. 2234.) "It is judicial action and not judicial reasoning which is the subject of *934 review." (El Centro Grain Co. v. Bank of Italy, etc., 123 Cal. App. 564, 567 [11 P.2d 650].) Appellants now appeal from the judgment on the single ground the directed verdict of liability against Moulton-Niguel and Boyle was error. As we shall discuss below, we conclude the record does not demonstrate, as a matter of law, an agency relationship existed between Moulton-Niguel and Boyle, and American Bridge, which would impose liability upon Moulton-Niguel and Boyle for the negligence of American Bridge. However, we are persuaded Moulton-Niguel was subject to the nondelegable duty to take special precautions to avoid the risk which led to Stilson's injuries. Since Moulton-Niguel failed to take such precautions, the directed verdict against it on the issue of liability was not erroneous. Finally, as we shall discuss, Boyle was subject to a duty to take special precautions to avoid the risk which led to Stilson's injury. Having breached that duty, the directed verdict against it on the issue of liability was not erroneous. The judgment should therefore be affirmed. Appellants first contend the evidence is insufficient to support a directed verdict on the issue of liability because it does not, as a matter of law, show the existence of an agency or employer-employee relationship between Moulton-Niguel and Boyle, and American Bridge. The contract between Moulton-Niguel and American Bridge contains the following provisions: "SECTION 3 — CONTROL OF THE WORK A. Authority of the Engineer — The Engineer shall have general supervision and direction of the work and may be represented on the work by duly authorized Resident Engineer or Assistant Engineer and by inspectors. The Engineer shall decide any and all questions which may arise as to the quality of acceptability of materials furnished and work performed, and as to the manner of performance and rate of progress of the work; all questions as to the interpretation of the plans and specifications; and all questions as to the acceptable fulfillment of the Contract on the part of the Contractor. .... .... .... .... ... F. Supervision by Contractor — The Contractor shall give efficient supervision to the work, using his best skill and attention, and shall provide and keep on the work at all times during its progress a competent superintendent and any necessary assistants, all of whom within reason shall be satisfactory *935 to the Engineer. All directions of the Engineer shall be given in writing and shall be received and obeyed by the superintendent in charge of the particular work, reference to which orders are given, and all such directions given to the superintendent shall be as binding as if given to the Contractor in person. .... .... .... .... ... H.... Any work done in the absence of the Engineer will be subject to rejection. "SECTION 4 — CONTROL OF MATERIALS A. Samples and Tests — At the option of the Engineer, the source of supply of each of the materials shall be approved by the Engineer before delivery is started and before such material is used in the work ... "SECTION 5 — PROSECUTION AND PROGRESS .... .... .... .... ... C. The Contractor shall employ none but competent foremen, laborers, and mechanics. If any subcontractor, superintendent, foreman, laborer, or other person employed on the work by the Contractor fails or refused [sic] to carry out the direction of the Engineer, or shall appear to the Engineer to be intemperate, incompetent, troublesome, or otherwise undesirable, he shall be discharged immediately on the requisition of the Engineer; and such person shall not again be employed on the work...." (2a) Appellants contend the contract was an insufficient basis to support a finding of an agency relationship between Moulton-Niguel and Boyle, and American Bridge. Appellants argue the contract granted Moulton-Niguel and Boyle only a general supervisory power over the work performed by American Bridge, and did not make them employers and principals of American Bridge. (3a) A major consideration in determining an agency relationship exists is whether an employer retains a right of control over one whom he employs not only as to the result of work done but also as to the mode of accomplishing the work. (McDonald v. Shell Oil Co., 44 Cal.2d 785, 788 [285 P.2d 902]; Green v. Soule, 145 Cal. 96, 99 [78 P. 337].) (4) Conversely, lack of control over the method and details of work tends to show an independent contractual relation rather than one of agency. (Green v. Soule, supra; Rogers v. Whitson, 228 Cal. App.2d 662, 671-672 [39 Cal. Rptr. 849].) *936 (5) Nevertheless, the control which an owner may exert in his general supervisory power over work done at his behest may be a broad general power of supervision without changing a relationship from employer-independent contractor to one of agency. "[T]he owner may retain a broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the independent contract — including the right to inspect [citation], the right to stop the work [citation], the right to make suggestions or recommendations as to details of the work [citation], the right to prescribe alterations or deviations in the work [citation] — without changing the relationship from that of owner and independent contractor or the duties arising from that relationship." (McDonald v. Shell Oil Co., supra, 44 Cal.2d 785, 790.) (6) The question whether an agency relationship has been created is normally a question of fact. (Thayer v. Pacific Elec. Ry. Co., 55 Cal.2d 430, 438 [11 Cal. Rptr. 560, 360 P.2d 56]; Hardin v. Elvitsky, 232 Cal. App.2d 357, 373 [42 Cal. Rptr. 748]; Housewright v. Pacific Far East Line, Inc., 229 Cal. App.2d 259, 265 [40 Cal. Rptr. 208].) Where a conflict in the evidence exists from which either conclusion could be reached as to the status of the parties, the question must be submitted to the jury. (Dahl-Beck Electric Co. v. Rogge, 275 Cal. App.2d 893, 900 [80 Cal. Rptr. 440]; Hardin v. Elvitsky, supra, 232 Cal. App.2d 357.) However, "... where but one inference can reasonably be drawn from the evidence ... the question of whether one is an employee or an independent contractor becomes one of law for the court. [Citation.]" (Burlingame v. Gray, 22 Cal.2d 87, 100 [137 P.2d 9]; Dahl-Beck Electric Co. v. Rogge, supra; Hardin v. Elvitsky, supra.) The factors to be considered in determining which relationship exists are numerous. (3b) As noted above, the most important factor of an agency or employee relationship is the right to control the manner and means of accomplishing the result desired. (City of Los Angeles v. Vaughn, 55 Cal.2d 198, 201 [10 Cal. Rptr. 457, 358 P.2d 913]; Green v. Soule, supra, 145 Cal. 96, 99; Housewright v. Pacific Far East Line, Inc., supra, 229 Cal. App.2d 259, 266; Hardin v. Elvitsky, supra, 232 Cal. App.2d 357.) "If the employer has the right to exercise complete control, an employer-employee relationship exists, whether or not that potential control is exercised with respect to all details." (City of Los Angeles v. Vaughn, supra.) (7) In this connection, the right to discharge an employee at will, without cause, is strong evidence of an employer's control. (City of Los Angeles v. Vaughn, supra; Housewright v. Pacific Far East Line, Inc., supra.) (8) Other factors to be considered are: (a) whether services *937 performed are a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required; (d) who supplies the instrumentalities, tools and the place of work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. (Empire Star Mines Co. v. Cal. Emp. Com., 28 Cal.2d 33, 43-44 [168 P.2d 686]; Housewright v. Pacific Far East Line, Inc., supra; Sparks v. L.D. Folsom Co., 217 Cal. App.2d 279, 284-285 [31 Cal. Rptr. 640]; Rest.2d Agency, § 220.) (2b) Viewed in light of the principles discussed above, we cannot conclude as a matter of law the contract created an agency relationship between Moulton-Niguel and Boyle, and American Bridge. (9) The contract must be interpreted, not only within the four corners of the instrument, but also by whatever extrinsic evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. (Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co., 69 Cal.2d 33, 37 [69 Cal. Rptr. 561, 442 P.2d 641, 40 A.L.R.3d 1373].) (10) Moreover, the actions of the parties after the contract is signed are relevant to the meaning of an ambiguous contract. (Crestview Cemetery Assn. v. Dieden, 54 Cal.2d 744, 752-754 [8 Cal. Rptr. 427, 356 P.2d 171].) (2c) The record demonstrates substantial evidence as to the practice and conduct of the parties during the construction of the tank which would support the conclusion appellants retained only a general supervisory power necessary to insure the proper completion of the work, and not control of the means by which the work was to be accomplished. In addition, the apparently unlimited power to discharge, contained in Section 5C of the contract, would be susceptible to interpretation in light of normal practices in the construction industry in addition to statutory limitations against arbitrary discharge. Accordingly, the question whether the relationship between Moulton-Niguel and Boyle, and American Bridge, was one of agency was one on which reasonable minds could differ.[1] Thus the directed verdict on the issue of liability may not be sustained on the basis of agency. The duties and liabilities of Moulton-Niguel were not, however, dictated solely by the general agency doctrine applying to employer and independent *938 contractor. (11a) Where an employer hires a contractor to do work which the employer should recognize as likely to create a peculiar risk of physical harm to employees of the contractor unless special precautions are taken, the employer is subject to the nondelegable duty to take such precautions. (Van Arsdale v. Hollinger, supra, 68 Cal.2d 245, 254-255; Woolen v. Aerojet General Corp., 57 Cal.2d 407, 410-411 [20 Cal. Rptr. 12, 369 P.2d 708]; Ferrel v. Safway Steel Scaffolds, 57 Cal.2d 651, 655-656 [21 Cal. Rptr. 575, 371 P.2d 311]; Widman v. Rossmoor Sanitation, Inc., 19 Cal. App.3d 734, 744-745 [97 Cal. Rptr. 52]; Walker v. Capistrano Saddle Club, 12 Cal. App.3d 894, 898-899 [90 Cal. Rptr. 912]; Kirk v. Kemp Bros., 12 Cal. App.3d 136, 140 [90 Cal. Rptr. 553]; Morehouse v. Taubman Co., 5 Cal. App.3d 548, 556 [85 Cal. Rptr. 308].) The duty and liability to an injured employee of an independent contractor may arise either under Restatement Second, Torts, section 413[2] (Woolen v. Aerojet General Corp., supra, 57 Cal.2d 407, 410-411) or section 416.[3] (Van Arsdale v. Hollinger, supra, 68 Cal.2d 245, 253-254.) Section 413 makes the employer of the independent contractor directly liable for his own negligence, while section 416 imposes a vicarious liability for the negligence of the independent contractor. Work of an independent contractor which has been characterized as creating a peculiar risk of physical harm absent special precautions includes eradicating white line markings on a street with the risk a motorist will injure a workman (Van Arsdale v. Hollinger, supra, 68 Cal.2d 245), repairing a metal tank from the inside by forcing buckled metal outward with the risk that the metal would spring inward and injure a workman (Ferrel v. Safway Steel Scaffolds, supra, 57 Cal.2d 651), painting the inside of a tank with the risk of an explosion because of inadequate ventilation (Woolen v. Aerojet General Corp., supra, 57 Cal.2d 407), building a concrete floor and wall, without railings, to a height of 10 feet with the risk that a workman might fall or be pushed from the wall (Morehouse v. Taubman Co., supra, 5 Cal. App.3d 548), backing a loaded truck on a *939 construction project without a warning device with the risk that a worker might be run down (Anderson v. L.C. Smith Constr. Co., 276 Cal. App.2d 436 [81 Cal. Rptr. 73]), relining the inside of a tank with the risk of an explosion because of inadequate ventilation (McDonald v. City of Oakland, 233 Cal. App.2d 672 [43 Cal. Rptr. 799]), and digging a trench without adequate bracing with the risk that a workman might be injured by a cave-in (Widman v. Rossmoor Sanitation, Inc., supra, 19 Cal. App.3d 734; Delgado v. W.C. Garcia & Associates, 212 Cal. App.2d 5 [27 Cal. Rptr. 613]). (12) The facts pertaining to Stilson's injury are undisputed. Construction of the tank in which plaintiff was injured required the erection of several 30-foot steel columns and the placing of girders across the top of the columns. Neither the appellants nor American Bridge raised any scaffolding, safety net, safety lines or ladders, or did anything else for the protection of the workers who had to work at the top of the columns in order to properly connect the girders thereto. Such work clearly created, and was recognized by appellants' witnesses as creating a high degree of risk of physical harm to the employees of American Bridge. Under these circumstances, Moulton-Niguel clearly bore the nondelegable duty to take the precautions necessary to avoid the high degree of physical risk. (Rest.2d Torts, §§ 413 and 416.) In light of the stipulation the negligence of American Bridge was the proximate cause of respondent's injuries, and in light of the uncontradicted testimony the work was hazardous and no safety precautions were taken to protect the workers working at the top of the steel columns, the directed verdict against Moulton-Niguel was not erroneous. (11b) Since a private person would be liable under these circumstances, so too is Moulton-Niguel as a public entity. (Gov. Code, § 815.4; Van Arsdale v. Hollinger, supra, 68 Cal.2d 245.)[4] (13a) Finally, appellant Boyle argues that even if American Bridge was a hirer of an independent contractor and liable for respondent's injuries on the theory of nondelegable duties, Boyle as a consulting engineer was not a hirer and thus may not be found liable for respondent's injuries. This argument is without merit. *940 Boyle was not merely an agent or a contractor providing engineering and supervisory services to Moulton-Niguel. Before the injuries to respondent, and at a time when Moulton-Niguel operated no facilities and had no employees, Boyle was named as general manager of Moulton-Niguel, with one Donald Piersall specifically named as Boyle's representative on the Moulton-Niguel board of directors. Piersall, as Boyle's representative and as manager of Moulton-Niguel, advised the board on operations of the district, including advice pertaining to funding the district operations by issuing revenue bonds, to the letting of contracts, and to the hiring and firing of employees. Piersall testified the Moulton-Niguel board knew nothing about the building of facilities necessary for their operation, and he, acting both as manager of the district and as a Boyle engineer and representative, was in charge of the entire Moulton-Niguel Water District. As a result of its participation with Moulton-Niguel, Boyle shared in the control of the planning and the actual construction of the tank in which respondent was injured. During the construction of the tank, Boyle administered the Moulton-Niguel contract, specifically concerning itself with progress payments, time and method of construction, and avoiding accidents, delays and injuries. Yet although the Boyle engineers understood the process of construction to be hazardous in the absence of precautions, and although the absence of safety lines, nets or scaffolding was known by the Boyle inspectors, Boyle failed to do anything toward providing respondent with a safe place to work. (14) Boyle unmistakably had control of the construction project, at least to the extent it could have required safety precautions. Hence the care required of Boyle must be measured by the hazard inherent in the construction work together with the ability to exercise supervisory control in order to prevent the construction work from causing injury to others. (Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 232 [282 P.2d 69].) (13b) The evidence is uncontradicted that Boyle failed to exercise its supervisory control with reasonable care to prevent known risks from causing injury. Therefore, Boyle is jointly and severally liable with Moulton-Niguel for respondent's injuries.[5] *941 The judgment is affirmed. Kerrigan, Acting P.J., and Kaufman, J., concurred. A petition for a rehearing was denied January 6, 1972, and appellants' petition for a hearing by the Supreme Court was denied February 3, 1972. NOTES [1] In view of our resolution of this issue, we need not resolve appellants' contention the trial court erred in failing to consider more than the written terms of the contract in deciding the legal import of the contract. [2] "One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer (a) fails to provide in the contract that the contractor shall take such precautions, or (b) fails to exercise reasonable care to provide in some manner for the taking of such precautions." [3] "One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise." [4] Respondent also suggests the directed verdict against Moulton-Niguel was proper on the theories Moulton-Niguel was a statutory employer with the nondelegable duty to provide a safe place of employment (Lab. Code, §§ 6304, 6400 et seq.; Alber v. Owens, 66 Cal.2d 790 [59 Cal. Rptr. 117, 427 P.2d 781]), Restatement Second, Torts, section 414 applies as a matter of law, and Moulton-Niguel is liable for the negligence of American Bridge in constructing the tank as the possessor of land. (O'Gan v. King City Joint Union High School Dist., 3 Cal. App.3d 641 [83 Cal. Rptr. 795].) In view of our disposition of the case, we need not reach these additional issues. [5] Respondent also suggests Boyle is liable for his injuries on the theories it was a joint venturer with Moulton-Niguel, it was a statutory employer (Lab. Code, § 6304), it was the "hirer-in-fact" of American Bridge and thus liable under Restatement Second, Torts, sections 413 and 416, and that, acting under public franchise, it was liable under Restatement Second, Torts, section 428. The record does not show "an understanding as to the sharing of profits and losses"; neither Boyle nor Moulton-Niguel was to share in the profits or losses that the other might realize or suffer. No joint venture could therefore have existed. (Connor v. Great Western Sav. & Loan Assn., 69 Cal.2d 850, 863 [73 Cal. Rptr. 369, 447 P.2d 609, 39 A.L.R.3d 224].) Whether Boyle was a statutory employer depends on the extent of control exercised, and is a factual determination for the trier of fact (Van Arsdale v. Hollinger, supra, 68 Cal.2d 245, 257) as is the question whether Boyle was the "hirer-in-fact" of American Bridge. Restatement Second, Torts, section 428 is not applicable under the circumstances here demonstrated.

187 P.3d 271 (2008) 163 Wash.2d 1039 MILLER v. ONE LINCOLN TOWER, LLC. No. 80623-3. Supreme Court of Washington, En Banc. June 5, 2008. Disposition of petition for review. Granted.

ELECTRONIC RECORD /6 75V* COA # 09-13-00582-CR OFFENSE: SEXUAL ASSAULT STYLE: semien, william paul COUNTY: Jefferson COA DISPOSITION: AFFIRM TRIAL COURT: Criminal District Court DATE: 11/19/2014 Publish: NO TC CASE #: 13-17919 IN THE COURT OF CRIMINAL APPEALS STYLE: SEMIEN, WILLIAM PAUL v. CCA#: /* 7SfH PRO SG Petition CCA Disposition: FOR DISCRETIONARY REVIEW IN CCA IS: DATE: JUDGE: DATE: $//2/*0/5 SIGNED: PC:. JUDGE: 7^0 CouU^ PUBLISH: DNP: MOTION FOR REHEARING IN CCA IS: JUDGE: ELECTRONIC RECORD 

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633 F.2d 205 N. L. R. B.v.District 1199, National Union of Hospital and Health CareEmployees RWDSU AFL-CIO 79-4212 UNITED STATES COURT OF APPEALS Second Circuit 5/22/80 1 N.L.R.B. ENFORCEMENT GRANTED

272 Cal.App.2d 155 (1969) 77 Cal. Rptr. 366 JOHN CLAYTON FRAHER et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. 34032. Court of Appeals of California, Second District, Division Five. April 21, 1969. *157 Marvin Gross for Petitioners. No appearance for Respondent. Evelle J. Younger, District Attorney, Harry Wood and Harry B. Sondheim, Deputy District Attorneys, for Real Party in Interest. ALARCON, J. pro tem.[*] Petitioners seek a peremptory writ of prohibition pursuant to Penal Code section 1538.5, subdivision (i) on the ground that the evidence obtained against them was the product of an unreasonable search and seizure. The petitioners sought to suppress certain evidence of narcotics seized after a search of petitioners' home. The evidence presented to the trial court at the special hearing pursuant to Penal Code, section 1538.5 revealed that Officer Figelski of the Los Angeles Police Department observed a report pinned on the bulletin board a couple of days prior to October 5, 1968, to the effect that sales of heroin were taking place from a particular address on Tarzana Drive, and *158 that a man, woman, and small child lived there. The officer presumed that the information contained in the report was from some anonymous complaint which had been called in. Figelski, in the company of two other officers, went to that address at 11:45 p.m. on October 5, 1968. So far as Figelski knew, there had been no police surveillance of the house. Upon looking through a front window, Figelski observed that the lights were on and that a man and woman were inside, apparently asleep. In an alcove located across the living room, he saw what appeared to be a portion of a water pipe of a type which he had previously encountered in connection with marijuana cases. This type of pipe is used to smoke marijuana. The pipe was resting on the third shelf of a bookshelf in the alcove, which was adjacent to an aquarium. Figelski knocked on the front door several times "fairly hard," and announced that he was a police officer. The door opened as a result of the force of the knocking, and Figelski directed the persons inside to wake up. Petitioner John Clayton Fraher came to the door. Prior to the arrival of Figelski at the address, no identification of the persons who resided there was obtained. Officer Figelski identified himself as a police officer, showed his badge, and said he would "like to talk to [petitioner] concerning a narcotics complaint." Fraher replied, "Sir, come on in," or "Sure, come on in." The appearance of the defendants did not suggest that either of them was "under the influence of anything." Figelski entered, and was promptly followed by one of the other officers. Figelski proceeded directly to the water pipe, picked it up, and smelled an order of marijuana. At this time it was seen that the hoses used with the pipe were not attached. He also observed what he concluded to be not recently burned marijuana debris in the bowl of the water pipe. At this time the petitioners were arrested for possession of marijuana, and a search was made of the house. Evidence consisting of narcotics other than the debris contained in the water pipe was seized pursuant to this search. It is the subsequently found evidence which is sought to be suppressed; there was insufficient debris to conduct a chemical analysis of the substance found in the water pipe. The officers had no warrant of arrest or search. PROBLEM The petitioners contend that no reasonable cause existed for their arrest prior to the seizure of the water pipe by Officer Figelski. They argue that if the water pipe and its contents *159 were products of an unreasonable search and seizure then the evidence which was seized after the arrest of the petitioners is inadmissible as a fruit of the previous alleged violation of the petitioners' constitutional rights. After a review of the evidence presented at the special hearing, pursuant to section 1538.5 of the Penal Code and the oral findings of the trial judge, we have concluded that the police had reasonable cause for the arrest of the petitioners prior to the seizure of the water pipe and, therefore, the searches and seizures which followed were reasonable under the Fourth Amendment. DISCUSSION [1a] Since Officer Figelski had no warrant for arrest or search we must look to the information available to him prior to the seizure of the water pipe to determine if there was reasonable cause for the arrest of the petitioners. Prior to going to the petitioners' residence, Officer Figelski had received information from an anonymous source that someone residing at the petitioners' home was selling heroin. [2] Reasonable cause for an arrest may be based on hearsay information and is not limited to evidence which would be admissible at a trial on the issue of guilt. (People v. Boyles, 45 Cal.2d 652 [290 P.2d 535].) However, if the information is obtained from an anonymous informer it cannot be considered as reasonable cause for an arrest unless other evidence is presented to the court to justify the conclusion that reliance on the information was reasonable. [3] Reliance on anonymous information may be justified by evidence obtained through the personal observations of the police. (Willson v. Superior Court, 46 Cal.2d 291 [294 P.2d 36].) Such independent evidence need not itself constitute reasonable cause to make an arrest. (People v. Prewitt, 52 Cal.2d 330 [341 P.2d 1].) In this case, acting on the anonymous information, Officer Figelski and his fellow officers went to the petitioners' residence to seek an interview concerning the reported narcotics violations. [4] It is not unreasonable police conduct to seek an interview with the person accused of criminal activity. (People v. Michael, 45 Cal.2d 751 [290 P.2d 852]; People v. Padilla, 240 Cal. App.2d 114 [49 Cal. Rptr. 340].) Officer Figelski observed the water pipe by looking through the front window of the petitioners' residence. [5] "[L]ooking through a window does not constitute an unreasonable search...." (People v. Martin, 45 Cal.2d 755, 762 [290 P.2d 855]; Bielicki *160 v. Superior Court, 57 Cal.2d 602, 607 [21 Cal. Rptr. 552, 371 P.2d 288]; People v. Garcia, 248 Cal. App.2d 284, 287 [56 Cal. Rptr. 217]; People v. Willard, 238 Cal. App.2d 292, 297 [47 Cal. Rptr. 734].) [1b] Officer Figelski was qualified as an expert in the investigation of narcotics cases on the basis of police academy training, academic studies at "L.A. Valley College," the reading of numerous text books on narcotics and apprenticeship under experienced officers in the field of narcotics. He also testified to making numerous arrests for narcotics violations. In addition, he has worked as an undercover officer during which time he not only purchased narcotics but also saw narcotics used and administered. After detailing his qualifications and experience, Officer Figelski was permitted to testify as an expert that the water pipe he observed through the front window was of the type used to smoke marijuana. At the end of the special hearing, the trial judge reviewed the evidence and made oral findings of fact prior to denying the petitioners' motion to suppress. The court expressly found that when Officer Fegelski first observed the water pipe through the front window he believed it was used for smoking marijuana.[1] The possession of any device, contrivance, instrument, or paraphernalia used for smoking marijuana is a crime. (§ 11555 of the Health & Saf. Code.)[2] [6] Whether an object is a device, contrivance, instrument or paraphernalia used for the smoking of marijuana is a question of fact. [7] To determine the existence of a fact the trier of fact may rely on the opinion testimony of expert witnesses concerning a subject matter which is sufficiently beyond common experience (Evid. Code, § 801) although the opinion embraces the ultimate issue to be decided. (Evid. Code, § 805.) Thus, on a trial for the possession of bookmaking paraphernalia a police officer with experience in the manner in which bookmaking is conducted *161 may testify that certain documents and materials constitute bookmaking paraphernalia. (People v. Hinkle, 64 Cal. App. 375 [221 P. 693]; People v. Newman, 24 Cal.2d 168 [148 P.2d 4, 152 A.L.R. 365]; People v. Cohn, 94 Cal. App.2d 630 [211 P.2d 375].) The opinion of a police officer, without medical training, that a minor appeared to be under the influence of narcotics has been held to be sufficient to establish the corpus delicti in a prosecution for the illegal furnishing of heroin to a minor where the officer qualified as an expert because of his special knowledge of the narcotics' field through training and field experience. (People v. Mack, 169 Cal. App.2d 825 [338 P.2d 25].) [1c] Here we are not called upon to decide whether a conviction for a violation of section 11555 of the Health and Safety Code could be sustained based solely on the testimony of Officer Figelski that in his opinion the water pipe was a device used for the smoking of marijuana. The narrow question presented by this petition is whether reasonable cause for the arrest of the petitioners existed from the moment Officer Figelski saw the water pipe because of his experience and training and his expert opinion that the water pipe was a device used for smoking marijuana. Section 836 of the Penal Code provides in pertinent part: "A peace officer may ... without a warrant, arrest a person: 1 Whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence." [8] Reasonable cause refers to "evidence which inclines the mind to believe, but leaves some room for doubt." (People v. Ingle, 53 Cal.2d 407, 413 [2 Cal. Rptr. 14, 348 P.2d 577].) Reasonable cause for an arrest need not be established by proof beyond a reasonable doubt. [9] If reasonable cause exists for an arrest the fact that the arrested person is later found not guilty of the specific charge for which he was arrested does not affect the legality of the arrest nor make unreasonable a search and seizure made as an incident to such arrest. (People v. Burgess, 170 Cal. App.2d 36 [338 P.2d 524]; Coverstone v. Davies, 38 Cal.2d 315 [239 P.2d 876].) [10] To determine if the police acted with reasonable cause "the court looks only at the facts and circumstances presented to the officer at the time he was required to act." (People v. Murphy, 173 Cal. App.2d 367, 377 [343 P.2d 273].) [11] Reasonable cause for an arrest may be based on the *162 opinion of the arresting officer that a crime is being committed in his presence based upon his prior experience and specialized training in the investigation of narcotics cases. (See People v. Harris, 62 Cal.2d 681, 683 [43 Cal. Rptr. 833, 401 P.2d 225].) Whether Officer Figelski testified truthfully that when he first saw the water pipe he believed that it was a type of device used for the smoking of marijuana is a matter of credibility which was resolved in the officer's favor by the trial judge. To warrant the rejection of Officer Figelski's testimony concerning his opinion, this court would have to find that it was inherently improbable or that its falsity was apparent. (People v. Huston, 21 Cal.2d 690 [134 P.2d 758].) [1d] There is substantial evidence in the record before us of the officer's qualifications, training, and experience to support the trial judge's conclusion that Officer Figelski had reasonable cause to arrest the petitioners for a violation of section 11555, after seeing the water pipe through the front window. The fact that the seizure of the water pipe occurred prior to the arrest of the petitioners does not make the arrest unlawful. [12] Where reasonable cause for an arrest exists, a search made as an incident to an arrest is not unreasonable merely because it precedes rather than follows the arrest. (People v. Torres, 56 Cal.2d 864 [17 Cal. Rptr. 495, 366 P.2d 823]; People v. Hammond, 54 Cal.2d 846 [9 Cal. Rptr. 233, 357 P.2d 289].) [1e] If the examination of the water pipe by the officer was a search then it was a reasonable search because reasonable cause existed for the arrest of the petitioners at the time the water pipe was seized. In view of our conclusion that reasonable cause existed prior to the touching or seizure of the water pipe, it is not necessary for this court to decide the interesting question as to whether the picking up of an object in plain view to smell it and look at it more closely is a search under the Fourth Amendment.[3] *163 Officer Figelski had reasonable cause to arrest the petitioners for a violation of section 11555 when the petitioner, John Clayton Fraher, came to the front door. Instead, Officer Figelski asked for and obtained an invitation to enter to talk about the narcotics complaint. Once lawfully inside the premises, and acting with reasonable cause to believe that a violation of section 11555 was occurring in his presence, it was not an unreasonable search for Officer Figelski to pick up and examine the water pipe which was in plain view in order to confirm or dispel his expert opinion that it was an object used for smoking marijuana. (See People v. Roberts, 47 Cal.2d 374, 378 [303 P.2d 721].) The odor of marijuana and the presence of burned marijuana debris in the water pipe confirmed his opinion that it was a device used for the smoking of marijuana. In Roberts, supra, the court held that the police had lawfully entered the premises in the belief that someone inside was in distress. Once inside, they observed a table model radio in plain view which fitted the description of property known by the police to have been stolen. The radio was picked up and turned over so as to note the serial number. The court found this conduct to be reasonable. "Under the circumstances, there appears to be no reason in law or common sense why one of the officers could not pick up the radio and examine it for the purpose of dispeling or confirming his suspicions. The fact that abuses sometimes occur during the course of criminal investigations should not give a sinister coloration to procedures which are basically reasonable." [13] The observation of marijuana debris which is insufficient to sustain a conviction is sufficient to constitute reasonable cause to make an arrest and to believe that a larger amount of marijuana may be present in close proximity to the debris. (See People v. Schultz, 263 Cal. App.2d 110 [69 Cal. Rptr. 293].) [14] The Fourth Amendment, as interpreted by the United States Supreme Court forbids only unreasonable police *164 conduct in making a search and seizure. "There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances," (Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 [75 L.Ed. 374, 51 S.Ct. 153]) and "on the total atmosphere of the case." (People v. Ingle, 53 Cal.2d 407, 412 [2 Cal. Rptr. 14, 348 P.2d 577].) The totality of the circumstances of this case, known to the police prior to the arrest, was sufficient to constitute reasonable cause to believe that a crime was being committed in their presence.[4] We can find no police misconduct of a constitutional dimension from the record before this court. The trial judge correctly denied the motion to suppress. The petition for a peremptory writ of prohibition is denied. The alternative writ heretofore issued is discharged. Stephens, Acting P.J., and Aiso, J., concurred. A petition for a rehearing was denied May 9, 1969, and petitioners' application for a hearing by the Supreme Court was denied June 18, 1969. NOTES [*] Assigned by the Chairman of the Judicial Council. [1] In summarizing his findings the trial judge stated: "... we must put ourselves in the shoes, more or less, of an officer who goes out to the scene where he believes to be a place where narcotics are sold, used, or possessed. He has information, anonymous, but as it turns out to be there is evidence of a sale or possession of narcotics or contraband. His state of mind then becomes one of suspicion. He approaches the defendant's home, sees in the window in his mind what he believes is a water pipe. To him a water pipe means just one thing. A water pipe is used for smoking contraband, marijuana, hashish, or some other illegal type of substance which is usually smoked." [2] "It is unlawful to possess an opium pipe or any device, contrivance, instrument or paraphernalia used for unlawfully injecting or smoking a narcotic." Health and Safety Code section 11555. [3] From the testimony of Officer Figelski, it would appear that only the exterior of the pipe was in open and plain view. The contents of the bowl were not viewed or smelled until the water pipe was picked up and examined. There was no testimony as to whether Officer Figelski could have viewed the interior of the bowl and smelled its contents without touching the water pipe. However, an examination of the photographic exhibits depicting the place where the water pipe was resting at the time it was first observed revealed that it would have been physically possible to view and smell the interior without touching the exterior of the water pipe. A search "implies some exploratory investigation or an invasion and quest, a looking for or seeking out ... for that which is concealed and that the object searched for has been hidden or intentionally put out of the way." (People v. West, 144 Cal. App.2d 214, 219 [300 P.2d 729]; Bielicki v. Superior Court, 57 Cal.2d 602, 605 [21 Cal. Rptr. 552, 371 P.2d 288].) "A search implies a prying into hidden places for something that is concealed, something that has been intentionally put out of the way." (People v. Alvarez, 236 Cal. App.2d 106, 112 [45 Cal. Rptr. 721].) The Fourth Amendment does not prohibit the seizure of evidence "which is readily visible" and "accessible" to the police. (People v. Roberts, 47 Cal.2d 374, 379 [303 P.2d 721].) [4] From these facts it might also be argued that the arrest of the petitioners was lawful on the grounds that the violation of section 11555 in the presence of the police also constituted sufficient independent corroboration of the anonymous informer's report as required by Willson v. Superior Court, 46 Cal.2d 291 [294 P.2d 36.]

188 Cal.App.2d 676 (1961) 10 Cal. Rptr. 607 THE PEOPLE, Respondent, v. MILTON KOOMER, Appellant. Docket No. 7216. Court of Appeals of California, Second District, Division Three. January 30, 1961. *677 Russell E. Parsons and Harry E. Weiss for Appellant. Stanley Mosk, Attorney General, and Elizabeth Miller, Deputy Attorney General, for Respondent. FORD, J. The appellant Milton Koomer and Freeman Earl Buck were accused of the crime of forgery. (Pen. Code, § 470.) The information contained two counts. The documents alleged to have been involved in each offense were described as "a certain credit card and credit slip." The appellant waived his right to trial by jury. The case of the prosecution was submitted on the transcript of the testimony given at the preliminary examination and the exhibits there received in evidence. The appellant did not testify in his own behalf. He was found guilty as charged. He has appealed from the judgment.[1] The sole contention made by the appellant is that, insofar as he is concerned, the corpus delicti was not established without the use of his statements to the police. It is, therefore, necessary to summarize the evidence. Paul Porter, assistant regional accounting manager for Standard Oil Company of California, testified that in the course of the preparation of new credit cards for customers toward the end of August, 1959, it was found that a number were missing, including a card in the name of Harry A. Turrell bearing a particular number. The equipment which was used to emboss the cards was leased from another company which furnished servicemen. One of such servicemen was Freeman Earl Buck, who was assigned to the repair service on the night shift for a period of time. The witness was shown a credit invoice (No. NO90508) in which the name of the customer was stated to be Harry A. Turrell; he identified the credit-card number on the invoice as being that assigned to Mr. Turrell. Gene Lowden testified that he was working at a service station on the corner of Vermont and Olympic in Los Angeles *678 on September 21, 1959. He recognized invoice NO90508 as being the invoice used when he sold three tires and a set of spark plugs to a customer on the evening of that day. That customer presented a credit card bearing the name Turrell and the witness used the card to imprint that name on the invoice. The customer, who was an elderly man, signed the invoice and took the merchandise with him. The witness could not identify anyone in the courtroom as having been the customer. Frank Ward testified that on October 6, 1959, while he was working at a service station, a man drove into the station and purchased gasoline and four tires. A credit card in the name of Harry A. Turrell was presented, which card was used to imprint the name of the customer on the invoice. The customer signed the invoice and took the merchandise away. However, before the tires were delivered to the customer, the witness telephoned the Standard Stations office and stated the name of the customer; he did so because the man did not want the tires mounted on his automobile whereas the company policy was that there should be no delivery of unmounted tires. Harry A. Turrell testified that he did not make or authorize the purchases of September 21 and October 6, 1959. He had not seen the defendants before the time of his testimony. The invoices did not bear his signature. Leonard Kamp,[2] a police officer for the city of Los Angeles, testified that on October 6, 1959, he received a call from the Security Office of the Standard Oil Company with respect to a person purchasing four unmounted tires under the name of Turrell. Police officers proceeded to the service station and observed a Studebaker automobile. They followed the automobile to a parking lot at the rear of a building on Vermont Avenue. The driver walked away from the car and, about one-half hour later, returned with the appellant. The two men took four tires which were wrapped in paper and entered the building. The witness then entered the front door of the premises, a bar, and placed the appellant and the other man under arrest. Underneath a counter the officers found several Standard Oil Company credit cards. The appellant stated that he had received these cards about two or three weeks before that day from a man by the name of Buck who was employed across the street in "possibly the Signal *679 or some oil company office." Buck had come into the bar on several occasions for dinner and beer. The appellant stated that he learned that Buck was involved in the servicing of equipment used in connection with credit cards; he asked Buck if he could have some of such cards and on about two or three occasions he was given the cards the officers found for which he gave Buck "maybe $15 or $20 and a few beers"; he thereafter gave a credit card to the other man, Potter, and received some merchandise. The witness then went downstairs into a store room and observed four tires which were wrapped in paper. The appellant said that these were tires that he had asked Potter to get for him with a credit card under the name of Turrell and to bring back to his place whereupon he would give him "maybe $20 or $30 for them"; the appellant intended to resell the tires. The officer then went further back into the storeroom and observed another tire which was wrapped in paper. The appellant said that the same person had given him that tire together with two other tires about two weeks prior to that time and that the other two tires were on the appellant's automobile. Later that night, at the police station when Buck was present, the appellant said that Buck was the person who had given him the credit cards. The officer testified that all of the appellant's statements were made freely and voluntarily. [1] Under the applicable law, the evidence clearly supported a determination by the trial court that on September 21, 1959, and again on October 6, 1959, the crime of forgery was committed by the man who, after presenting the credit card, signed the invoices. (People v. Morgan, 140 Cal. App.2d 796, 800 [296 P.2d 75]; cf. People v. Stevens, 175 Cal. App.2d 123, 127 [345 P.2d 582]; see People v. McKenna, 11 Cal.2d 327, 332-333 [79 P.2d 1065].) [2] The identity of the perpetrator of a crime is no part of the corpus delicti. (People v. Cullen, 37 Cal.2d 614, 624 [234 P.2d 1]; People v. Leary, 28 Cal.2d 740, 745 [172 P.2d 41]; People v. Whitsett, 160 Cal. App.2d 652, 657 [325 P.2d 529]; People v. Mainhurst, 67 Cal. App.2d 882, 884 [155 P.2d 843].) This rule is applicable in the present case where the position of the prosecution is that the accused was a guilty participant in each offense although he was not present at the place of its commission. (People v. Felt, 98 Cal. App.2d 137, 139 [219 P.2d 54]; People v. Cowling, 6 Cal. App.2d 466, 471 [44 P.2d 441].) [3] As this court said in People v. Johnson, 146 Cal. App.2d 302, at page 304 [303 P.2d 615]: "When the *680 corpus delicti is established by evidence other than extrajudicial statements of the defendant, the connection of the defendant with the crime may be proved by statements made by him. (People v. Mainhurst, 67 Cal. App.2d 882, 884 [155 P.2d 843].)" [4] Under section 31 of the Penal Code,[3] a person is a principal in a crime, although he does not directly commit the act constituting the offense, when he aids and abets in its commission or, not being present, advises and encourages its commission. (People v. Weitz, 42 Cal.2d 338, 349 [267 P.2d 295].) The evidence adequately supported the determination of the court that the appellant was a culpable participant in each of the crimes; he was a principal in each offense and punishable as such. (See People v. Keller, 165 Cal. App.2d 419, 429 [332 P.2d 174]; People v. Etie, 119 Cal. App.2d 23, 28 [258 P.2d 1069]; People v. Colton, 92 Cal. App.2d 704, 710 [207 P.2d 890]; People v. Cowan, 38 Cal. App.2d 231, 239 [101 P.2d 125]; People v. Smith, 96 Cal. App. 373, 378-379 [274 P.2d 451].) The judgment is affirmed. Shinn, P.J., and Vallée, J., concurred. NOTES [1] While it is stated in the notice of appeal that the appeal is from "the judgment and sentence," the judgment in a criminal case is the sentence; "sentence" is but another term for "judgment" under such circumstances. (People v. Carlson, 177 Cal. App.2d 201, 207 [2 Cal. Rptr. 177]; People v. Perkins, 147 Cal. App.2d 793, 797-798 [305 P.2d 932]; People v. Tokich, 128 Cal. App.2d 515, 519 [275 P.2d 816].) [2] The words hereafter quoted in the summary of the testimony of the witness Kamp are the words used by the witness. [3] Section 31 of the Penal Code is in part as follows: "All persons concerned in the commission of a crime ... whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission ... are principals in any crime so committed."

45 B.R. 959 (1985) In re STN ENTERPRISES, INC. d/b/a Atwater Arms, Debtor. Bankruptcy No. 84-98. United States Bankruptcy Court, D. Vermont. January 21, 1985. Joseph B. Collins, Springfield, Mass., for Wayne D. Wetzel, Jr. John R. Canney, III, and Holly K. Nelson, of Carroll, George & Pratt, Rutland, Vt., for debtor—defendant. Jerome I. Meyers, Norwich, Vt., for Creditors' Committee. MEMORANDUM OPINION ON MOTION OF WAYNE D. WETZEL, JR. FOR RELIEF FROM STAY CHARLES J. MARRO, Bankruptcy Judge. The Court has before it for determination the motion of Wayne D. Wetzel, Jr. for relief from stay filed September 27, 1984. FACTS The Debtor, STN Enterprises, Inc., was organized as a corporation on August 6, 1982 for the purpose of engaging in the purchase and sale of collectible firearms and related collectibles under the trade name of "Atwater Arms." Stephen T. Noyes was its president, sole stockholder and the driving force behind the corporate business. The corporation also conducted *960 an investment program which included the purchase of certain collections of antique firearms. Noyes died on May 5, 1984 as a result of injuries received in an automobile accident, and for several weeks prior thereto, the Debtor was having financial difficulties. These apparently precipitated the filing of a Petition for Relief on May 29, 1984 under Chapter 11 of the Bankruptcy Code. The Schedules show total liabilities of $12,989,844.35 and assets of $5,284,415.05. Included in the assets are Bennington firearms inventory and Greenwich firearms inventory, listed as an estimated market value without forced sale of $2,500,000.00 and $1,500,000.00, respectively. Wayne D. Wetzel, Jr. was employed as a consultant for the debtor d/b/a Atwater Arms from October 1983 until the death of Stephen Noyes on May 5, 1984. Prior to that time Wetzel had some experience in the purchase and sale of firearms and he had some transactions with the debtor from which he realized profits of $15,000.00 to $20,000.00 in 1982; $20,000.00 to $25,000.00 in 1983. Up to the date of hearing he had also received a profit of $20,000.00 to $25,000.00 in 1984. On January 19, 1984 Wetzel had a conversation with Noyes in the presence of Ed Pierce, who also had some association with Noyes during which Noyes informed Wetzel that he was recovering from an airplane crash in which he broke both legs and was close to death; that his circumstances as a result of the accident were unsettled as to the dealings of both Wetzel and Pierce with Atwater Arms; that he assumed that Wetzel would feel uncomfortable and that, in order to make Wetzel comfortable, he wanted to pledge to him some sort of security for the moneys he had advanced to Atwater Arms and that he would subsequently advance; that he had various items of inventory and that he would give to Wetzel an item or items which would secure his pledge; that it would take a couple of days for him to figure out the piece or pieces of inventory he wanted to give to Wetzel; that at a future date he might have a buyer for the item he delivered to Wetzel and, in that case, they could exchange the collateral. On January 30, 1984 Wetzel had a conversation with Noyes in Bennington, Vermont concerning the probability of Wetzel advancing funds to Noyes for the purchase of guns. At that time Wetzel informed Noyes that he could advance $75,000.00 which Noyes characterized as "fine" and indicated that he would be able to pay back to Wetzel the advance of $75,000.00 plus 25% in early April, 1984. Accordingly, Wetzel did loan to Atwater Arms the sum of $75,000.00 which was evidenced by two checks dated January 30, 1984 payable to Atwater Arms, one in the sum of $60,000.00 drawn by Wetzel against his Merrill Lynch Cash Management account and the other in the sum of $15,000.00 drawn on the Bank of New England, N.A. Both of these checks contained the memo 4/1/84 which apparently referred to the repayment date. On March 13, 1984 Wetzel paid over to Atwater Arms the sum of $78,750.00 as an investment in the so called Arid Zone purchase. This payment was evidenced by a check dated 3-13 1984 from S.T.N. Enterprises, Inc. D-B-A Atwater Arms in the sum of $78,750.00 payable to Wayne D. Wetzel, Jr. It represented a return of an investment of $75,000.00 which Wetzel had made with Atwater Arms plus a profit of $3,750.00. This check originally was endorsed by Wetzel for deposit in his acct. #XXXX-XXXX but this endorsement was crossed off by him and Wetzel substituted one reading: "Pay to the order of Atwater Arms for Arid Fore purchase." On March 17, 1984 Wetzel paid over to Atwater Arms the sum of $21,250.00 as an additional investment in the Arid Zone purchase. This payment was evidenced by a check in the sum of $21,250.00 dated 17 March 1984 payable to the order of Atwater Arms and drawn on Wetzel's Merrill Lynch Cash Management account. It carried the notation "For 4/10 deal-10% Arid Zone." On April 20, 1984 Wetzel paid over to Atwater Arms the sum of $10,000.00 for *961 the purchase as an investment of two Colt Commerative State guns (ME) and (MA). This payment was evidenced by a check dated 20 April 1984 in the sum of $10,000.00 payable to Atwater Arms and drawn on his "Danforth Enterprises D/B/A Bershire Investment Rarities" account with the Hudson National Bank of Hudson, Massachusetts. This check carried the notation "MA & ME guns." In addition Atwater Arms gave to Wetzel two separate receipts each for $5,000.00 and in his trade name "Bershire Investment Rarities". The receipts carried the notations: "For the purchase of one Colt Commerative State gun S/N." One of them had (ME) and the other (MA) as designations of the states so commemorated. As security for the loan of $75,000.00 made by Wetzel to Atwater Arms on January 30, 1984 Wetzel did on that date take possession from Atwater Arms of a Parker A1 Special rifle serial #226546 and Wetzel was in continuous possession of this firearm until April 30, 1984. This weapon had a value of $175,000.00 to $200,000.00. On April 26, 1984 Wetzel received a telephone message from Noyes that he had a prospective buyer for the Parker A1 special rifle and requested him to bring it back and Noyes would exchange it for other items in his inventory of similar value. Accordingly on Monday, April 30, 1984 Wetzel loaded the Parker A1 special in his car and, in accordance with instructions from Noyes, drove to Greenwich, Connecticut to pick up 15 or 20 arms for delivery to the place of business of Atwater Arms in Bennington, Vermont. On arrival at Bennington Wetzel delivered the guns he had picked up in Greenwich, Connecticut to Noyes, leaving the Parker A1 special in his car. Following a conversation with Noyes at his place of business during which Noyes reinterated that he wished Wetzel to be protected and that he would exchange a pair of cased colts for the Parker A1 special, Wetzel obtained the Parker from his car and delivered it to Noyes. At the same time Wetzel received in exchange a cased pair of deluxe engraved, ivory stocked, Colt Third Model Dragoons, Serial numbers 13128 and 13551. These weapons have a current value of from $160,000.00 to $180,000.00 and they are still in the possession of Noyes as security for the loan be made to Atwater Arms. On April 30, 1984 when Wetzel received the pair of colt dragoons in exchange for the Parker A1 Noyes asked him to type up U.C.C. forms. Wetzel did prepare them. They showed STN Enterprises D/B/A Atwater Arms of Bennington, Vermont as debtor and Wayne D. Wetzel, Jr. of Bolton, MA as secured party with the property covered described as "Cased Pair of deluxe engraved, ivory stocked Colt Third Model Dragoons S/N 13128 & S/N 13551." These financing statements were signed in behalf of Atwater Arms by Stephen T. Noyes as debtor and by Wayne D. Wetzel, Jr. as secured party. They were filed in the office of the Town Clerk of Bennington, Vermont on May 4, 1984 and apparently in the office of the Secretary of State on May 8, 1984. DISCUSSION Wetzel testified that all of the payments made by him to Atwater Arms on January 30, 1984, on March 13, 1984, on March 17, 1984 and on April 20, 1984 in the sums of $75,000.00, $78,750.00, $21,250.00 and $10,000.00, respectively, for a total of $185,000.00 constituted loans and he contends that he has a perfected security interest in the colt dragoons. A careful examination of Wetzel's testimony and the supporting documentation convinces the court that the only loan transaction was that of January 30, 1984 when Wetzel paid over to Noyes in behalf of Atwater Arms the sum of $75,000.00 evidenced by the two checks in the sums of $60,000.00 and $15,000.00. This was the only date on which Wetzel and Noyes had any conversation about a loan. At that time Wetzel clearly indicated to Noyes that he could lend him the sum of $75,000.00 as a limit. As part of the transaction Noyes set early April as a repayment date and *962 this is supported by the memo of "4/1/84" appearing upon the two checks. The notations on all of the other checks refer specifically to purchases. The endorsement on the check for $78,750.00 reads: "Pay to the order of Atwater Arms for Arid Fore purchase"; the memo on the $21,250.00 check reads: "4/10 deal — 10% — Arid Zone" and the $10,000.00 check carries the memo: "MA & ME guns." In addition the two receipts for those guns received by Wetzel from Atwater Arms and produced at the hearing by the debtor recite that the sum of $5,000.00 was paid by Wetzel "For the purchase of one Colt Commerative State gun S/N (ME)" and $5,000.00 for the purchase of a similar weapon with the same designation except that (MA) is substituted for (ME). The court observes that Wetzel has been a sophisticated investor in firearms for a number of years and that his dealings with the debtor for each of the years 1982, 1983 and 1984 resulted in a profit about $20,000.00 to $25,000.00; that the check of $78,750.00 which he received from the debtor and endorsed over to Atwater Arms on or about 3-14-84 represented an investment of $75,000.00 which he made on January 30, 1984 which was the very day on which he loaned to the debtor the sum of $75,000.00. The balance of $3,750.00 represented a profit over a period of less than 2 months. It also appears that Wetzel kept accurate and meticulous records of his transactions with the debtor and, in all probability, if all of the transactions hereinabove referred to had been intended as loans the checks and other documentation would have so reflected. In sum, the court concludes that the total amount loaned by Wetzel to the debtor was $75,000.00 on January 30, 1984. Having so determined it becomes necessary to decide whether Wetzel's claim of a perfected security interest to the extent of the amount of the loan is justified. The creditors' committee of creditors and the debtor contend that when Wetzel and the debtor agreed on April 30, 1984 for the substitution of possession in Wetzel of the colt dragoons for the Parker A1 rifle a new transaction resulted; that this broke the chain of possession and that Wetzel can only claim a security interest by possession in the colt dragoons as of April 30, 1984 well within 90 days prior to the filing of the debtor's petition for relief on May 29, 1984 with the result that a preference was created which the debtor may avoid. The court disagrees. It is universally held that the validity, nature and effect of liens are governed by the law of the state where the property is situated. Meyer v. United States, (1963) 375 U.S. 233, 238, 84 S.Ct. 318, 321, 11 L.Ed.2d 293; In re Spectra Prism Industries, Inc. (Bankr.Appellant Panel — 9th Cir. 1983) 28 B.R. 397, 399; In re Knox-Powell-Stockton Co. (9th Cir.1939) 100 F.2d 979. Porter v. Searle (10th Cir.1955) 228 F.2d 748; In re Air Vermont, Inc. (Bankr.D.Vt. 1984) 40 B.R. 323, 328. Under the Uniform Commercial Code as adopted in this state a security interest may be perfected either by the filing of proper financing statements in the required places 9A V.S.A. § 9-401 or by the taking of possession of the collateral by the secured party without filing. 9A V.S.A. § 9-305. In the case at bar Wetzel contends that by taking possession of the Parker A1 rifle on January 30, 1984 and substituting it, as per agreement with the debtor on April 30, 1984 for the colt dragoons he acquired a perfected security interest in the colt dragoons as of January 30, 1984. He argues further that it was the intention of both parties that he was to have a continuing security interest in collateral from its inception on January 30, 1984 to secure the loan he made to Atwater Arms. The admitted evidence supports his position. The language of § 9-305 of the U.C.C. is clear and unequivocal that a security interest is perfected by possession from the time possession is taken without relation back. See, In re Granite City Cooperative Creamery Association, Inc. (Bankr.D.Vt.1970) 7 U.C.C. Rep.Serv. 1083, 1087 affirmed (U.S. District Court — 1970) 8 *963 U.C.C. Rep.Serv. 393, (U.S. CCA2d Cir. 1971) 9 U.C.C. Rep.Serv. 102; Transport Equipment Co. v. Guaranty State Bank (10th C.C.A.1975) 17 U.C.C. 1, 7; Raleigh Industries of America, Inc. v. Tassone (Cal.Court of Appeal, 2nd Cir.1977) 141 Cal Rep. 641; 22 U.C.C. Rep.Serv. 1235, 1241. It is true that on April 30, 1984 by agreement of the parties the colt dragoons were substituted for the Parker A1 rifle. The exchange of possession occurred simultaneously. As a result of the exchange the debtor received a rifle worth from $175,000.00 to $200,000.00 for colt dragoons having a value of from $160,000.00 to $180,000.00. Hence, there was no diminution of the debtor's estate on April 30, 1984 but a net gain. As distinguished from a substitution of collateral in the possession of a debtor there is a paucity of cases dealing with the effect of substitution of such collateral subject to a security interest while in the possession of a secured party. The court observes that opposite results have been reached in two cases addressing this issue. In Leonard v. Dahlke Trailer Sales & Leasing Co. (U.S. District Court — D.Minn. 1982) 16 B.R. 366, 34 U.C.C.Rep.Serv. 1002 a repairman had acquired a mechanic's lien by possession of a trailer upon which he had made repairs and surrendered it to its owner without payment in exchange for another trailer which also needed repairs which he held for payment of repairs on the first trailer. He was paid within 90 days of the filing of a petition for relief by the owner. The court held that such payment constituted a preference voidable by the trustee. It reasoned that U.C.C. § 9-305 does not provide for the perfection of a possessory lien through possession of substitute collateral and the repairman's lien on the first trailer was extinguished when that trailer was returned to the owner. It is noted that this case involves a statutory mechanic's lien which requires the existence of possession in the repairman until payment is made while the instant case involves a consensual security interest. With the same type of lien as herein exists the 9th Circuit reached an opposite result. See In re Holiday Airlines Corp. — Danning v. World Airways, Inc. (U.S.C.C.A. — 9th Cir.1981) 647 F.2d 977, 31 U.C.C. Rep. Serv. 1172. In that case, pursuant to an agreement between the lessee of aircraft, Holiday Airlines Corporation, and World Airways, Inc., a creditor of Holiday, the latter became entitled to a lien to secure payment for supplied services and maintenance to an aircraft 971 delivered to World on December 7, 1974. The reasonable value of these services was $70,165.05. World continued in possession from December 7, 1974 until January 24, 1975 on which date all of Holiday's aircraft, including both 971 and 974 were in World's possession for servicing. To meet its schedule commitments Holiday needed to obtain the release of at least some of its aircraft but World would release none unless payment for services with respect to any aircraft released was made or adequate security to assure such payment was provided. To solve this problem it was agreed that World would surrender possession of aircraft 971 and Holiday would execute and deliver to World a chattel mortgage on aircraft 974 to secure the $70,165.05 owed with respect to aircraft 971. This was accomplished on January 24, 1975. However, possession of aircraft 971 was surrendered several hours before the chattel mortgage on aircraft 974 was executed and delivered. This chattel mortgage was recorded pursuant to 49 USC § 1403 on January 28, 1975. Aircraft 974 was sold immediately thereafter and World received payment on January 31, 1975 of the $70,165.05 due for servicing aircraft 971. The end for the purposes of this case came shortly thereafter. On February 13, 1975 Holiday filed under Chap. XI and subsequently was adjudicated bankrupt. The Ninth Circuit Court recognized that, inasmuch as World's lien on aircraft 971 lost its perfected status on January 24, 1975 when possession of this aircraft was surrendered to Holiday several hours before the Chattel mortgage on aircraft 974 was executed, it is possible to argue execution of the mortgage and payment of $70,165.05 *964 to World was in discharge of an antecedent debt and did cause a diminution of Holiday's estate. It could be pointed out that, rather than a mere substitution of security occurring, the proper characterization is that the chattel mortgage replaced the perfected security previously surrendered. This, in effect, is the same argument made by counsel for the creditor' committee who maintained that the substitution of the Parker A1 rifle for the Colt dragoons constituted two separate transactions. However, the Ninth Circuit rejected the foregoing argument and held that no preference was created. Its reasoning is cogently expressed 647 F.2d at 982, at 31 U.C.C.Rep.Serv. 1179 thus: "The replacement characterization exalts from over substance. A similar analysis, also employed to claim that the creation of a security interest amounted to a preference, has been rejected when, to secure a current advance, the instrument creating the previously agreed upon security interest was executed several days after the date of the advance. Dean v. Davis, 242 US 438, 37 S Ct 130, 61 L Ed 419 (1917). Substantial contemporaneity appears to be all that is required. Id. at 443, 37 S Ct at 131. The proper characterization, therefore, is that the events of January 24, 1975 constituted a substitution of one security for another. This did not amount to a preference where no diminution of the debtor's estate occurred. See 4 Collier on Bankruptcy, § 547.22 (1980). None such occurred here. We hold that the so-called `gap' on January 24, 1975 generated no preference." This court again points out that rather than a diminution in the estate of the debtor by the firearms' exchange there was a gain. The loan transaction involving $75,000.00 on January 30, 1984 was made pursuant to an agreement by the parties that Wetzel was to have a continuing security in firearms to secure the loan and the exchange of the cased pair of dragoons for the Parker A1 rifle was in fact a substitution of collateral. With these facts this case is on all fours with Holiday Airlines Corp. — Danning v. World Airways, Inc., supra, and the court agrees with the rationale of the 9th Circuit. Accordingly, this court concludes that Wetzel has a perfected security interest in the pair of Colt dragoons to the extent of the $75,000.00 loan made on January 30, 1984. Judgment, in accordance with this memorandum opinion, is this day being entered. JUDGMENT This action came on for hearing before the court and the issues having been duly tried and a decision having been rendered, IT IS ORDERED AND ADJUDGED: 1. The motion of Wayne D. Wetzel, Jr. for relief from stay is DENIED. 2. Wayne D. Wetzel, Jr. has a perfected security interest in the cased pair of deluxe engraved, ivory stocked Colt Third Model Dragoons, S/N 12128 & S/N 13551 now in his possession to the extent of his loan to the debtor i.e. $75,000.00 plus interest at the legal rate of 12% per annum from January 30, 1984 to the date of payment. 3. The sum of $110,000.00 representing the balance of the payments made by Wetzel to the debtor on March 13, 17 and April 20, 1984, plus interest at 12% per annum from these dates to May 29, 1984 shall constitute an unsecured claim and shall be so allowed as such in the general order allowing claims. 4. The parties shall by mutual agreement make arrangements to sell the aforesaid colt dragoons at the highest price obtainable and from the proceeds satisfy the security interest of Wetzel. In the event of their failure to reach such an agreement within 30 days they or either of them shall notify the court in which event the court shall determine the method of sale of these firearms.

636 F.2d 755 205 U.S.App.D.C. 47, 1980-81 Trade Cases 63,646 FEDERAL PRESCRIPTION SERVICE, INC. et al.,v.AMERICAN PHARMACEUTICAL ASSOCIATION, Appellant,William S. Apple et al.FEDERAL PRESCRIPTION SERVICE, INC. et al., Appellants,v.AMERICAN PHARMACEUTICAL ASSOCIATION et al. Nos. 80-1359, 80-1368. United States Court of Appeals,District of Columbia Circuit. Nov. 24, 1980. On Appellee's motion to set aside unsecured stay on appeal (D.C. Civil Action No. 77-1163). Geo. S. Leonard, Washington, D. C., was on appellee's motion to set aside unsecured stay on appeal. Paul L. O'Brien and Michael H. McConihe, Washington, D. C., were on appellant's response to motion to set aside stay pending appeal. Before ROBINSON, MacKINNON and MIKVA, Circuit Judges. Opinion for the Court filed by Circuit Judge MacKINNON MacKINNON, Circuit Judge. 1 After extensive pretrial proceedings in a suit by the Federal Prescription Service, Inc. (hereafter Federal) and several individual plaintiffs, charging violations of Section 1 of the Sherman Act, 15 U.S.C. § 1, the case was tried to the district court without a jury. Thereafter the court entered extensive findings of fact and conclusions of law denying any damages to the individual plaintiffs and awarding trebled damages of $102,000 in favor of Federal and against the American Pharmaceutical Association (hereafter American). Judgment accordingly was entered on February 14, 1980. On April 18 the district court granted American's motion for stay pending appeal, stating: 2 In view of the fact that both parties have appealed from the Judgment entered February 14, 1980, and that defendant has submitted financial statements demonstrating its continuing ability to satisfy the Judgment, no bond need be posted as security in this action.1 3 (Emphasis added.) Federal has now moved this court: 4 (a) to set aside the unsecured stay granted to the American Pharmaceutical Association by an order of the District Court, 5 (b) to dismiss the appeal for failure to file an appeal bond as required by Rule 7, F.R.A.P., 6 (c) alternatively, to require the Association to file a supersedeas bond in an amount sufficient to protect Federal against consequential injury including its loss of market interest, together with a sum adequate to cover its attorneys fees and costs which were left unresolved by the District Court. 7 The grounds for this motion are that (i) the April 18, 1980 order of the District Court is contrary to Rule 62(d) of the Federal Rules of Civil Procedure, and (ii) under the rule against unsecured appeals and the conclusions summarized in the Court's order of February 14, 1980, the granting of such a stay constituted an abuse of judicial discretion. These contentions are discussed in turn.2 8 I. THE AUTHORITY OF THE DISTRICT COURT TO ORDER UNSECURED STAY OF MONEY JUDGMENT 9 Federal contends that a supersedeas bond is an indispensable prerequisite to a stay on appeal from a money judgment by virtue of Fed.R.Civ.P. 62(d). This rule provides: 10 Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in (Rule 62(a), relating to injunctions and other specified forms of equitable relief). The bond may be given at or after the time of filing the notice of appeal.... The stay is effective when the supersedeas bond is approved by the court. 11 Although some authorities tend to support Federal's position that a supersedeas bond is required,3 we find more persuasive the contrary view that Rule 62(d) only operates to provide that an appellant in all cases may obtain a stay as a matter of right by filing a supersedeas bond, and does not prohibit the district court from exercising a sound discretion to authorize unsecured stays in cases it considers appropriate. Our view follows from an analysis of Rule 62(d) in conjunction with other relevant rules of federal procedure, and conforms to several authorities we consider to be persuasive: Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979) (court has discretion to require less than full supersedeas bond where judgment debtor presents adequate alternative assurances or where a full bond would mean undue financial burden and court can restrain judgment debtor's financial dealings to provide alternative form of security for judgment creditor); C. Albert Sauter Co. v. Richard S. Sauter Co., 368 F.Supp. 501, 520-21 (E.D.Pa.1973) (where execution of $1.5 million judgment following defendants' inability to post full supersedeas bond would render them insolvent and eliminate their firm as competitor, court would issue stay on appeal upon conditions, inter alia, that defendants place stocks and cash in escrow and post security bond of $100,000); Trans World Airlines v. Hughes, 314 F.Supp. 94 (S.D.N.Y.1970) (approved in material part at 515 F.2d 173, 177-78 (2d Cir. 1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976)) (where posting bond to cover $161 million judgment was "not practicable," court would exercise "inherent power in extraordinary circumstances to provide for form and amount for a stay pending appeal" and require a bond of only $75 million coupled with defendant's assurances that it would maintain a net worth treble the balance of the judgment); see In re Combined Metals Reduction Co., 557 F.2d 179, 193 (9th Cir. 1977) ("Under Fed.R.Civ.P. 62(d), an appellant may obtain a stay as a matter of right by posting a supersedeas bond acceptable to the court. Since no bond was posted, the grant or denial of the stays was a matter strictly within the judge's discretion."); Blackwelder v. Crooks, 151 F.Supp. 26, 28 (D.D.C.1957) ("The necessary implication (of Rule 62(d)) is that without giving supersedeas bond or unless otherwise ordered by the Court, the order is not stayed, even though an appeal is pending." (emphasis added)); Redding & Company v. Russwine Constr. Co., 417 F.2d 721, 727 (D.C.Cir.1969) ("a supersedeas bond undoubtedly may be appropriate in normal situations to protect an enforceable judgment" (emphasis added)). 12 Our only explicit guidance on the matter of supersedeas bonds appeared in former Fed.R.Civ.P. 73(d), 383 U.S. 1061-62 (1966), which provided that when an appellant entitled thereto desired a stay on appeal he could present to the court for its approval a supersedeas bond, fixed in an amount to satisfy the judgment in full, together with costs, interest, and damages for delay, in the event the appeal was dismissed or the judgment affirmed. The district court could, however, "fix( ) a different amount or order( ) security other than the bond" "after notice and hearing and for good cause shown." Id. at 1062.4 Although Rule 73 was among the rules abrogated and supplanted in 1968 by the Federal Rules of Appellate Procedure, see 389 U.S. at 1065-66, and although the appellate rule covering the subject matter of old Rule 73(d) (Fed.R.App.P. 8) does not repeat Rule 73(d)'s detail, the substance of Rule 73(d) retains vitality inasmuch as it had simply codified judicial practice. See Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979); 9 Moore's Federal Practice P 208.05 at 8-14 (2d ed. 1980). 13 We find in both former Rule 73(d) and in its successor, Fed.R.App.P. 8, a recognition of the district court's discretionary power to stay execution of a money judgment without requiring bond. First, former Rule 73(d)'s recognition that the district court has power to reduce the amount of bond or accept substitute security logically includes a power to dispense with formal security altogether, upon a showing of sufficient cause. This reading of former Rule 73(d) is suggested by the analogous practice under Fed.R.Civ.P. 65(c) ("Injunctions"), which provides in pertinent part: 14 (c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the appellant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred ... by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States.... (Emphasis added.) 15 Courts interpreting this language have concluded the district court has power not only to set the amount of security but to dispense with any security requirement whatsoever where the restraint will do the defendant "no material damage," Urbain v. Knapp Brothers Manufacturing Co., 217 F.2d 810, 816 (6th Cir. 1954), cert. denied, 349 U.S. 930, 75 S.Ct. 772, 99 L.Ed. 1260 (1955), where there "has been no proof of likelihood of harm," International Controls Corp. v. Vesco, 490 F.2d 1334, 1356 (2d Cir. 1974) (citing Ferguson v. Tabah, 288 F.2d 665, 675 (2d Cir. 1961)), and where the applicant for equitable relief has "considerable assets and (is) ... able to respond in damages if (defendant) does suffer damages by reason of (a wrongful) injunction," Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 782-83 (10th Cir. 1964). Given the similarity between former Rule 73(d) and Rule 65(c), these holdings compel the conclusion that the district court, in staying execution of a money judgment, has a discretion with respect to requiring the posting of security that is analogous to the widely recognized discretion that a district court granting temporary injunctive relief has with respect to the security requirement of Rule 65(c). See 9 Moore's Federal Practice P 208.06(1) at 8-18. 16 Federal argues that such a discretion is at odds with Rule 62(d) provision that "the appellant by giving a supersedeas bond may obtain a stay." We disagree. Beyond question, Rule 62(d) entitles the appellant who files a satisfactory supersedeas bond to a stay of money judgment as a matter of right. American Manufacturers Mutual Insurance Co. v. American Broadcasting Paramount Theatres, Inc., 385 U.S. 931, 87 S.Ct. 1, 17 L.Ed.2d 37 (1966) (Harlan, J., Circuit Justice). But the Rule in no way necessarily implies that filing a bond is the only way to obtain a stay. It speaks only to stays granted as a matter of right, it does not speak to stays granted by the court in accordance with its discretion. 17 A second reason to confine Rule 62(d) to stays obtained as a matter of right appears when we read the rule with two other rules on the same general subject: Fed.R.App.P. 8 ("Stay or Injunction Pending Appeal") and Fed.R.Civ.P. 62(g) ("Power of Appellate Court not Limited"). Rule 8(b) provides: 18 (b) Stay May be Conditioned on Bond.... Relief available in the court of appeals under this rule may be conditioned upon the filing of a bond or other appropriate security in the district court. (Emphasis added.) And Rule 8(a) provides: 19 Application for a stay of the judgment or order of a district court pending appeal, or for approval of a supersedeas bond, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal, must ... be made in the first instance in the district court (unless the application for the relief sought is "not practicable"). (Emphasis added.)5 20 Reading Rule 62(d) to make filing a supersedeas bond an indispensable prerequisite to a stay on appeal creates a potential conflict with the language of Rule 8(b), which implicitly recognizes the discretion of the appellate courts to issue stays not conditioned on bond. It would make little sense to require an appellant who could qualify for an unsecured stay from the appellate court to apply for it first in the district court, as Rule 8(a) requires, if Rule 62(d) made such an application an exercise in futility in every case by denying the district court the power to approve such a stay. That is, if the appellate court has power to issue an unsecured stay, as Rule 8(b) clearly implies, then the district court must have that power also, if Rule 8(a) is to make sense. Fed.R.Civ.P. 62(g) removes any doubt on this matter in favor of an interpretation that confines Rule 62(d)'s bond requirement to stays obtained as a matter of right. Rule 62(g) provides: 21 Power of Appellate Court Not Limited. The provisions in (Rule 62) do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal.... (Emphasis added.) 22 Even apart from the guidance provided by the language of former Rule 73(d) and by judicial interpretations of Rule 65(c), then, a reading of Rule 62(d) with other rules in pari materia convinces us that Rule 62(d) makes filing a supersedeas bond a condition precedent only if appellant seeks to obtain a stay as a matter of right; the Rule does not limit the district court's power to issue unsecured stays through an exercise of its sound discretion. Having concluded that the district court is authorized to issue an unsecured stay, we now consider whether the court abused its discretion in doing so here. II. PROPER EXERCISE OF DISCRETION 23 The purpose of the supersedeas bond is to secure the appellee from loss resulting from the stay of execution. Because the stay operates for the appellant's benefit and deprives the appellee of the immediate benefits of his judgment, a full supersedeas bond should be the requirement in normal circumstances,6 such as where there is some reasonable likelihood of the judgment debtor's inability or unwillingness to satisfy the judgment in full upon ultimate disposition of the case and where posting adequate security is practicable. In unusual circumstances, however, the district court in its discretion may order partially secured or unsecured stays if they do not unduly endanger the judgment creditor's interest in ultimate recovery.7 24 The elements of the situation here were as follows: (1) the damage award was $102,000, with action on the request for attorneys' fees and costs being deferred pending appeal because both parties had appealed on questions going to the merits (see note 1 supra ); (2) the documented net worth of the judgment debtor was $4.8 million, about 47 times the amount of the damage award; (3) the judgment debtor was a long-time resident of the District of Columbia, and there was no indication it had any intent to leave. In light of these factors, we cannot say the district court abused its discretion in granting a stay on appeal without requiring a supersedeas bond. 25 The motion is denied. 26 Order accordingly. 1 The Order of April 18, 1980 in its entirety provided: The Court has considered defendant's motion for stay pending appeal, plaintiff's opposition thereto, plaintiff's motion for costs and attorney's fees, and the entire record of this case. In view of the fact that both parties have appealed from the Judgment entered February 14, 1980, and that defendant has submitted financial statements demonstrating its continuing ability to satisfy the Judgment, no bond need be posted as security in this action. Further, because issues going to the merits of the Judgment will be raised by both parties on appeal, no action is appropriate at this time regarding plaintiff's motion for costs and attorney's fees. Accordingly it is hereby ORDERED that defendant's motion for stay pending appeal be, and the same hereby is granted, with interest continuing to run from date of Judgment; and it is further ORDERED that action on plaintiff's motion for costs and attorney's fees is deferred pending the outcome of the appeals taken in this action. April 18, 1980. (Emphasis added.) 2 Federal's request that we dismiss the appeal for failure to file an appeal bond need not detain us long. Although former Fed.R.App.P. 7 ordinarily required appellants to post a $250 cost of appeal bond, see 389 U.S. 1075 (1968), the new Rule 7, effective August 1979, leaves the requirement of an appeal bond to the district court's discretion: "The district court may require an appellant to file a bond or provide other security ... to ensure payment of costs on appeal" (emphasis added). We cannot dismiss American's appeal for failure to post a bond the district court chose not to require. Moreover, we cannot say the district court abused its discretion in dispensing with an appeal bond requirement given that both parties were appealing and that appellant was highly solvent 3 Fidelity & Deposit Co. v. Davis, 127 F.2d 780, 782 (4th Cir. 1942) (dictum) ("bond securing payment of money judgment must be given, if ... stay pending appeal is desired."); Markowitz & Co. v. Toledo Metropolitan Housing Auth., 74 F.R.D. 550, 551 (N.D.Ohio 1977) ("Fed.R.Civ.P. 62(d) requires posting of a supersedeas bond to stay execution of judgment. Only the United States is exempt from the bond requirement. Fed.R.Civ.P. 62(e)."); Slade v. Dickinson, 82 F.Supp. 416, 419 (W.D.Mich.1949) ("Under ... Rules 62(d) and 73(d) ... a party appealing from a judgment ... can stay proceedings ... only by furnishing a supersedeas bond"; to issue unsecured stay would "disregard the Federal Rules of Civil Procedure."). See Geddes v. United Financial Group, 559 F.2d 557, 560-61 (9th Cir. 1977) (district court erred in staying executions of money judgment for one year without attempting to justify stays under any provision of Rule 62); Gullet v. Gullet, 174 F.2d 531, 533 (D.C.Cir.1949) (district court did not err in holding appellant-husband in contempt for failing to make court-ordered support payments where husband did not obtain stay on appeal by filing supersedeas bond); Marcelletti & Son Constr. Co. v. Millcreek Township Sewer Auth., 313 F.Supp. 920, 928 (W.D.Pa.1970) (Rule 62 indicates policy against unsecured stays beyond time for filing motion for new trial); 11 C. Wright & A. Miller, Federal Practice & Procedure § 2905 at 329 ("(absent) stay obtained in accordance with Rule 62(d), the pendency of an appeal does not prevent the judgment creditor from acting to enforce the judgment."); 7 Moore's Federal Practice P 62.06 at 62-28 ("Under Rule 62(d), a party taking an appeal from a money judgment ... can stay proceedings to enforce that judgment pending appeal only by furnishing a supersedeas bond."); but see 9 id. P 208.06(1) at 8-18 (although Rule 62(d) "requires the giving of a supersedeas bond in some form," "it would (seem) that the court may stay execution of a judgment without requiring a bond (in absence of irreparable harm to appellee)") 4 Fed.R.Civ.P. 73(d) provided in full: (d) Supersedeas Bond. Whenever an appellant entitled thereto desires a stay on appeal, he may present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The bond shall be conditioned for the satisfaction of the judgment in full together with costs, interest, and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed, and to satisfy in full such modification of the judgment and such costs, interest, and damages as the appellate court may adjudge and award. When the judgment is for the recovery of money not otherwise secured, the amount of the bond shall be fixed at such sum as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay, unless the court after notice and hearing and for good cause shown fixes a different amount or orders security other than the bond. When the judgment determines the disposition of the property in controversy as in real actions, replevin, actions to foreclose mortgages or when such property is in the custody of the marshal or when the proceeds of such property or a bond for its value is in the custody or control of the court, the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay. A separate supersedeas bond need not be given, unless otherwise ordered, when the appellant has already filed in the district court security including the event of appeal, except for the difference in amount if any. 383 U.S. 1061-62 (emphasis added). 5 The Committee Note accompanying Fed.R.App.P. 8 states: "No reason appears why all questions related to supersedeas or the bond for costs on appeal should not be presented in the first instance to the district court in the ordinary case." See 9 Moore's Federal Practice P 208.01 at 8-6 (2d ed. 1980) 6 Poplar Grove Planting & Refining Co. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979); Redding & Company v. Russwine Constr. Co., 417 F.2d 721, 727 (D.C.Cir.1969) 7 See cases cited pp. 5-6 supra ; 9 Moore's Federal Practice P 208.06(1) at 8-18

50 F.3d 9 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Michael Ray SHIFFLETT, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Ernest Elwood SHIFFLETT, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Wendy Shifflett MCALLISTER, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.William Dale RALSTON, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Donald Millard SHIFFLETT, Claimant-Appellant,andMichael Ray SHIFFLETT, Defendant.UNITED STATES of America, Plaintiff-Appellee,v.Michael Ray SHIFFLETT, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Michael Ray SHIFFLETT, Defendant-Appellant. Nos. 93-5693, 93-5721, 93-5742, 93-5787, 94-1417, 94-5069, 94-5287. United States Court of Appeals, Fourth Circuit. Argued: December 8, 1994.Decided: March 23, 1995. Appeals from the United States District Court for the Western District of Virginia, at Charlottesville. James H. Michael, Jr., District Judge. (CR-91-33) W.D.Va. AFFIRMED IN PART AND REVERSED IN PART AND REMANDED. ARGUED: Marvin David Miller, Alexandria, VA; Edward Leigh Hogshire, Buck, Hogshire & Tereskerz, Lld., Charlottesville, VA; James P. Cox, III, Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., Charlottesville, VA, for Appellants. Thomas Ernest Booth, United States Department of Justice, Washington, DC, for Appellee. ON BRIEF: Frank A. Mika, Waynesboro, VA, for Appellant Michael Shifflett; Shanon S. Echols, Charlottesville, VA, for Appellant Ernest Shifflett; Denise Y. Lunsford, Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., Charlottesville, VA, for Appellant Ralston. Robert P. Crouch, Jr., United States Attorney, Jennie L.M. Waering, Assistant United States Attorney, Kenneth M. Sorenson, Assistant United States Attorney, United States Department of Justice, Washington, DC, for Appellee. Before MURNAGHAN and MICHAEL, Circuit Judges, and CURRIE, United States District Judge for the District of South Carolina, sitting by designation. OPINION PER CURIAM: 1 When one member of a family involves himself or herself in drug dealing, he or she often involves other family members as well. Michael Shifflett became a marijuana and cocaine dealer. His father, Ernest Shifflett, his sister, Wendy Shifflett McAllister, as well as his uncle, Donald Shifflett, are all here as appellants in a drug case involving numerous counts.1 One of Michael's associates, William Dale Ralston, is also an appellant here. Finding merit to several of appellants' claims, but no merit to others, we affirm in part, reverse in part, and remand in part. 2 Following a jury trial in the United States District Court for the Western District of Virginia, Michael Shifflett was convicted of conspiracy to distribute marijuana and cocaine, in violation of 21 U.S.C. Sec. 846; engaging in a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848; possession with intent to distribute marijuana, and possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(b)(1); two counts of money laundering, in violation of 18 U.S.C. Sec. 1956(a)(1); and conspiracy to obstruct justice, in violation of 18 U.S.C. Sec. 371. Michael was acquitted of Counts 6 and 7 of the indictment, both for money laundering. He was sentenced to a total of 300 months of imprisonment and five years of supervised release. The district court included in this total a 60 month concurrent sentence for Count 6. 3 Wendy Shifflett McAllister was convicted of conspiracy to obstruct justice, in violation of 18 U.S.C. Sec. 371, and making a false statement to government agents, in violation of 18 U.S.C. Sec. 1001. She was sentenced to 24 months of imprisonment and three years of supervised release. 4 Ernest Shifflett was convicted of conspiracy to obstruct justice, in violation of 18 U.S.C. Sec. 371, and obstruction of justice, in violation of 18 U.S.C. Sec. 1503. He was sentenced to 27 months of imprisonment, and two years of supervised release. 5 William Dale Ralston was convicted of drug distribution conspiracy, in violation of 21 U.S.C. Sec. 846. He was sentenced to 30 months of imprisonment, and three years of supervised release. 6 Donald Shifflett was acquitted of all substantive charges, but challenges on appeal the forfeiture of a pick-up truck to which he claims ownership rights. Under Count 14 of the indictment, the jury found that two parcels of property, two tractors, and the pick-up truck were either used to facilitate Michael Shifflett's narcotics crimes or were derived from proceeds of those crimes. The district court, without performing a proportionality review, ordered criminal forfeiture of these parcels and vehicles. 7 There are certain items which have been appealed which require attention at the outset. It was error, as the government has acknowledged, for the district court to sentence Michael under Count 6 for which he was acquitted. We thus reverse the entry of conviction and sentence that Michael received for this count. 8 We also must reverse Michael's conviction under Count 2 for running a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (the "CCE" statute). Viewing the evidence in the light most favorable to the government, and taking all reasonable inferences therefrom, see Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Guinta, 925 F.2d 758, 764 (4th Cir.1991), the evidence did not prove beyond a reasonable doubt that Michael organized, supervised, or managed five or more people as is required for a conviction under 21 U.S.C. Sec. 848. 9 This Circuit has held that the terms "organize," "supervise," and "manage," as used in the CCE statute, should be applied "in their ordinary sense as understood by the public or the business community." United States v. Butler, 885 F.2d 195, 200 (4th Cir.1989). We have thus held that the mere showing of a buyer-seller relationship, including the "fronting" of drugs, i.e., selling drugs on credit, does not alone establish organization, supervision, or management for purposes of the CCE statute. Butler, 885 F.2d at 201 (citing United States v. Apodaca, 843 F.2d 421, 426 (10th Cir.), cert. denied, 488 U.S. 932 (1988), and United States v. Possick, 849 F.2d 332 (8th Cir.1988)). In the instant case, the district court did not instruct the jury that proof of a mere buyer-seller relationship is insufficient to show supervision, management, or control, and a review of the record indicates that of the seven persons the government attempted to prove Michael to have organized, supervised, or managed, four were involved only in an ordinary buyer-seller relationship with Michael. 10 Viewed in the light most favorable to the government, the evidence at trial established that Michael sold and "fronted" drugs to at least seven people, many of whom resold the drugs. Of these seven people, Michael controlled two, Raymond Sipe and Jean Morris, as both of them acted as couriers under Michael's direction. Michael also may have "organized" Wilson Steppe, as Michael loaned Steppe money in order to post bond for one of Steppe's customers, and thus Michael organized Steppe in such a way as ultimately to maintain a customer base for Michael's narcotics. The remaining four people purchased drugs from Michael, sometimes on credit, at the prices Michael demanded. Michael told them how to contact him and gave one of them the name of a potential customer. Michael acted toward these four, in ordinary business terms, as a wholesaler acts toward retailers. And just as a wholesaler who sells at prices he or she sets, on credit or for cash, does not "organize, supervise, or manage" retailers, Michael did not organize, supervise, or manage these four. Thus, Michael was shown to have controlled or organized only three people, and as three are too few to establish guilt of a continuing criminal violation under the CCE statute, we reverse Michael's conviction and sentence under this count. 11 Furthermore, we must reverse and remand the district court's order of forfeiture of several parcels of land and vehicles under Count 14 of the indictment because the district court did not perform a proportionality or "instrumentality" review, despite Michael's request at sentencing that such a review be performed. The Supreme Court in Austin v. United States, 113 S.Ct. 2801, 2812 (1993), and Alexander v. United States, 113 S.Ct. 2766, 2775-76 (1993), announced that a forfeiture which is not proportional to the crime of conviction violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. Our Circuit has held that this rule applies to forfeitures of property which constitutes the proceeds of crime, as well as forfeitures of property which has been used to facilitate a crime. United States v. Borromeo, 1 F.3d 219, 221 (4th Cir.1993).2 In light of the complexity of the present case, we find it would be most appropriate for the district court, with its close familiarity with the facts, to conduct such a review here. Compare Borromeo, 1 F.3d at 221 (remanding for proportionality review), with United States v. Chandler, 36 F.3d 358, 366 (4th Cir.1994) (where the court of appeals itself performed a review), petition for cert. filed (U.S. Dec. 27, 1994). Consequently, we vacate and remand so that such a review may be performed by the district court before entry of a constitutional forfeiture order. 12 Otherwise, there is a plethora of points raised on appeal, none of which we find to have merit: 13 1. The district court's denial of Donald's motion, under 21 U.S.C. Sec. 853(n)(6), to amend its order forfeiting the pick-up truck, was not clearly erroneous. A forfeiture order will be amended under 21 U.S.C. Sec. 853(n)(6) (part of the CCE statute forfeiture provisions) only if the petitioner shows by a preponderance that his or her right to the property was "vested" or "superior to" the right of the criminal defendant at the time of the acts giving rise to forfeiture. A right which is known to the third party to be a sham or fraudulent is not a vested right for purposes of defeating forfeiture under the Racketeering Influenced and Corrupt Organizations (RICO) forfeiture provisions, S.Rep. No. 225, 98th Cong., 2d Sess. 209 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3392 n. 47. Because Congress intended for the courts to rely on RICO forfeiture provisions when interpreting the identical language of CCE forfeiture provisions, see S.Rep. No. 225 at 211-12, reprinted in 1984 U.S.C.C.A.N. at 3394-95 (in discussion of CCE criminal forfeiture statutory provisions, referring reader to discussions of RICO statutory provisions where the CCE and RICO provisions are identical), the same rule applies to criminal forfeiture under the CCE statute forfeiture provisions. 14 In forfeiture proceedings, findings of fact by a district court are reviewed only for clear error. See United States v. $10,694.00 U.S. Currency, 828 F.2d 233, 235 (4th Cir.1987) (applying clear error standard). In the instant case, the district court found as a matter of fact that Donald's title to the truck was a sham, and that Michael was the de facto owner of the truck because Michael paid for the truck and controlled it. This finding was not clearly erroneous in light of evidence that although Donald held title to the truck, Michael kept the truck at his home, was the sole operator of the truck, and customized the truck himself. Because Donald's right was a sham, Donald's interest in the truck was neither "vested" nor "superior to" Michael's right for purposes of defeating forfeiture, and Donald has shown no basis for amending the district court's forfeiture order. Forfeiture by Michael we have dealt with above. 15 2. Each element of a crime, including membership in a conspiracy, must be found beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); United States v. Rieves, 15 F.3d 42, 43-44 (4th Cir.), cert. denied, 114 S.Ct. 2679 (1994). Thus the district court's statement to the jury that only slight evidence was required to connect a particular defendant with a conspiracy, was erroneous. However, in light of the fact that the district court told the jury perhaps a dozen or more times that the elements of the crimes must be proven beyond a reasonable doubt, and only once placed the erroneous "slight evidence" standard before the jury, the error was harmless. As the jury acquitted several codefendants of conspiracy counts even though those codefendants were connected to the conspiracy by "slight evidence," it is clear that the jury applied the beyond a reasonable doubt standard and not the "slight evidence" standard, and therefore "the guilty verdict[s] actually rendered in this trial [were] surely unattributable to the error." Sullivan v. Louisiana, 113 S.Ct. 2078, 2081 (1993) (defining "harmless error" in constitutional error context).3 16 3. Contrary to appellants' contention, our review of the record reveals that the district judge instructed the jury on multiple conspiracies. The judge made clear that a defendant must be acquitted if not a member of the charged conspiracy, even if he or she belonged to another existing uncharged conspiracy. We have approved of the use of such an instruction before, see United States v. Camps, 32 F.3d 102, 104 (4th Cir.1994), petition for cert. filed (U.S. Nov. 8, 1994), and find no error in its use here. 17 4. We find no error in the district court's manner of informing trial counsel, prior to closing argument, of the jury instructions which would be given. Although the district court did not provide counsel a script of what it intended to say to the jury, provision of such a script is not required. The district court discussed all proposed instructions and its own additional instructions, including the fact that it would be giving a multiple conspiracy instruction. The purpose of Federal Rule of Criminal Procedure 30, " 'to require the district court to inform the trial lawyers in a fair way what the instructions are going to be in order to allow counsel the opportunity to argue the case intelligently to the jury,' " United States v. Horton, 921 F.2d 540, 547 (4th Cir.1990) (quoting United States v. Gaskins, 849 F.2d 454, 458 (9th Cir.1988)), cert. denied, 501 U.S. 1234 (1991), was met. The court also literally complied with Rule 30, as the court "inform[ed] counsel of its proposed action upon the requests[for particular jury instructions] prior to their arguments to the jury." F.R.Crim.P. 30. 18 Moreover, appellants have pointed to no specific argument which they did not make in their closing argument and which they would have made had the district court given them some unspecified additional information about the jury instructions prior to closing argument, and thus appellants have shown no prejudice. Because appellants have shown no prejudice, we find no grounds for reversal. See Horton, 921 F.2d at 547 (holding Rule 30 error reversible only if actual prejudice is shown); United States v. Burgess, 691 F.2d 1146, 1156 (4th Cir.1982) (same). 19 5. The use of special verdict forms requiring the jury to state whether each defendant's involvement in the drug conspiracy, if any, involved only cocaine, only marijuana, or both, was not erroneous whether or not the verdict forms had been requested by any of the defendants. Likewise, the use of special verdict forms for the obstruction of justice and false statements conspiracy was not in error. Whether or not the defendants requested the verdict forms is not controlling because, as a rule, special verdict forms may be used in conspiracy cases with multiple objectives. United States v. Davila, 964 F.2d 778, 783 (8th Cir.), cert. denied, 113 S.Ct. 438 (1992); United States v. Todd, 920 F.2d 399, 407 (6th Cir.1990). 20 Similarly, it was not erroneous for the district court to convict the defendants by use of the verdicts rendered by the jury on the special verdict forms. See Davila, 964 F.2d at 783; Todd, 920 F.2d at 407. The special verdicts are simply an aid to the district court in sentencing. See Todd, 920 F.2d at 407 (special verdict forms necessary to discover sentencing range for each defendant in multiple objectives conspiracy case). Properly, the district court only sentenced each defendant for the activity which was within the scope of his or her conspiratorial agreement. See United States v. Irvin, 2 F.3d 72, 75 (4th Cir.1993), cert. denied, 114 S.Ct. 1086 (1994). Activity within the scope of agreement was evidenced by the special verdicts rendered by the jury specifying not only whether each defendant was guilty of the conspiracy charged, but also which objectives of each conspiracy each defendant was involved in. Thus, entry of guilty convictions on the verdicts rendered by the jury was not in error. 21 6. Viewing the evidence in the light most favorable to the government, and taking all reasonable inferences therefrom, see Jackson, 443 U.S. at 319; Guinta, 925 F.2d at 764, we find that the evidence was sufficient to support the jury's guilty verdict as to Michael having been a member of the conspiracy to obstruct justice. Although the evidence of this conspiracy consisted primarily of overt acts by Wendy and Ernest to mislead law enforcement officers and the grand jury by false statements, knowledge of the conspiracy and voluntary membership in the conspiracy by Michael was thereby circumstantially shown: for Wendy and Ernest to have known what false statements to make to law enforcement in order to hide Michael's assets, Michael must have communicated to Wendy and Ernest information about how he had hidden his assets. As a defendant's participation in a conspiracy may be shown by circumstantial evidence indicating that he or she agreed with one or more others to commit a crime and only one overt act need be shown in furtherance of the agreement, see United States v. Kennedy, 32 F.3d 876, 886 (4th Cir.1994), cert. denied, 63 U.S.L.W. 3563 (U.S.1995); United States v. Chambers, 985 F.2d 1263, 1270 (4th Cir.), cert. denied, 114 S.Ct. 107 (1993), we affirm Michael's conviction of conspiracy to obstruct justice. 22 7. The admission of hearsay statements against Wendy, when she does not appear, even by a preponderance of the evidence, to have been part of the conspiracy of which the statements were in furtherance (the drug conspiracy), may have been in error, see F.R.E. 802 (hearsay generally inadmissible); cf. F.R.E. 801(d)(2)(E) (hearsay statement of coconspirator admissible when statement is during and in furtherance of the conspiracy), but their admission was harmless. The statements were made by Michael to his drug coconspirators, to the effect that Michael had the title to his house transferred to Wendy's name and he had given her $500 for it. Admission of this evidence was harmless beyond a reasonable doubt in light of the fact that overwhelming evidence supported the jury's verdict of obstruction of justice. Wendy was shown to have told law enforcement that she lent Michael $40,000, yet her income was shown to have been only $120.00 per week, at most, for her entire eight-year working life. The jury's conclusion that Wendy must have been lying to law enforcement about the loan is the rational conclusion anyone would reach from this evidence, as it is impossible to save $40,000 on such a small salary and simultaneously to pay any living expenses. We therefore find that the admission of Michael's statement, if erroneous, was harmless, and therefore cannot serve as a basis for overturning Wendy's conviction for conspiracy to obstruct justice. See F.R.Crim.P. 52(a) (to require reversal, admission of the evidence must have substantially prejudiced defendant's rights). 23 8. The evidence that Wendy had stated to public assistance personnel that she had no money was admitted not as character evidence, but to impeach her sister's statement that Wendy had saved money all of her life and that therefore it was possible that Wendy had accumulated the $40,000 which Wendy told law enforcement officers she had given to Michael. When a witness testifies to a fact as Wendy's sister did here, the opposing party may impeach the witness with evidence that contradicts that fact. See, e.g., United States v. Lopez, 979 F.2d 1024, 1034-35 (5th Cir.1992), cert. denied, 113 S.Ct. 2349 (1993). The evidence that Wendy's sister believed Wendy to be honest, despite Wendy's contradictory statements to law enforcement and welfare authorities regarding her finances, was admitted not to show Wendy's character, but to impeach Wendy's sister by showing bias. Evidence of bias on the part of a witness is almost always relevant and, absent undue prejudice, admissible. See United States v. Abel, 469 U.S. 45, 52 (1984). 24 It is irrelevant that the evidence above would not have been admissible to show Wendy's character under Rule 404 of the Federal Rules of Evidence; evidence admitted to impeach is not being used to show conduct in conformity with character. See F.R.E. 404 ("Evidence of a person's character ... [generally] is not admissible for the purpose of proving action in conformity therewith on a particular occasion...."); United States v. Perez-Garcia, 904 F.2d 1534, 1545 (11th Cir.1990) (evidence admitted to impeach need not satisfy exceptions to general rule that character evidence is inadmissible). 25 9. Viewing the evidence in the light most favorable to the government, and taking all reasonable inferences therefrom, see Jackson, 443 U.S. at 319; Guinta, 925 F.2d at 764, we find that the evidence was sufficient to support the jury's guilty verdict as to Wendy having been a member of the conspiracy to obstruct justice. There was proof of false statements by Wendy to law enforcement which had the effect of hiding Michael's wealth. As a defendant's participation in a conspiracy may be shown by circumstantial evidence indicating that he or she agreed with one or more others to commit a crime and only one overt act need be shown in furtherance of the agreement, see Kennedy, 32 F.3d at 886; Chambers, 985 F.2d at 1270, we affirm Wendy's conviction. 26 10. We find no abuse of discretion in the district court's denial of Ernest's motion to sever his trial from the trial of his codefendants. A coconspirator is only entitled to a severance if he or she has shown prejudice, see Zafiro v. United States, 113 S.Ct. 933, 937-38 (1993); F.R.Crim.P. 14, and Ernest has shown no prejudice here. Although Ernest claims that he was prejudiced because the jury may have convicted him for his association with the members of the drug conspiracy, when he was only charged as a member of the conspiracy to obstruct justice, the fact that the jury acquitted Donald makes clear that the jury evaluated the evidence against each codefendant separately. United States v. Riley, 991 F.2d 120, 125 (4th Cir.), cert. denied, 114 S.Ct. 392 (1993). Because the joinder of Ernest's trial with that of the others did not "compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence," Zafiro, 113 S.Ct. at 938, the district court did not err. 27 11. We find no reversible error in the district court's limits on voir dire. The Sixth Amendment right to an impartial jury extends only to the members of the venire who actually sat as jurors, not to members who were excused for cause or by peremptory challenge. See Ross v. Oklahoma, 487 U.S. 81, 85-86 (1988). Appellants only dispute on appeal their inability to examine members of the venire who never sat on the jury. 28 12. We find no abuse of discretion in the district court's admission of cocaine as physical evidence, despite the fact that the cocaine had not been made available earlier to the defense, and despite the fact that no witness could testify whether it was powder cocaine or base cocaine ("crack"). Rule 16 of the Federal Rules of Criminal Procedure permits defendants to inspect tangible evidence in the government's "possession, custody, or control." F.R.Crim.P. 16(a)(1)(C). The cocaine was in the possession and custody of the state, not of the federal government. Even if the federal government could be found to have had some "control" over the evidence, the defendants who objected to not having an opportunity to inspect the cocaine were given a lab report concerning it. Consequently, there was no prejudice, and any failure to permit inspection was harmless error. See United States v. Tibesar, 894 F.2d 317, 319 (8th Cir.), cert. denied, 498 U.S. 825 (1990) (holding that when there is no showing of prejudice, there is no abuse of discretion in refusing to exclude a previously undiscovered piece of evidence). Whether the cocaine was in powder or crack form was irrelevant. The conviction stands in either case, as conspiracy to distribute and possession with intent to distribute cocaine in some form were proven beyond a reasonable doubt. Sentencing proceeded on the assumption that powder cocaine and not crack cocaine was proven. The powder cocaine obviously resulted in a lesser sentence than the one which crack cocaine would have produced. See U.S.S.G. Sec. 2D1.1(c) (Drug Quantity Table). 29 13. The district court acted well within its discretion in permitting a prosecution witness to refresh his recollection using the prosecutor's notes from her prior conversation with the witness. Under the Federal Rules of Evidence, a recollection may be refreshed by anything, including a prosecutor's notes. 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence Sec. 612-15 (1994); Thompson v. United States, 342 F.2d 137, 140 (5th Cir.), cert. denied, 381 U.S. 926 (1965) ("The fact that a government agent instead of the witness prepared the statement [used to refresh recollection] is inconsequential."). The district court was likewise well within its discretion in admitting, on defense motion, the prosecutor's notes; the admission was clearly harmless to the defense because the contents of the notes were identical to the witness' testimony, thereby potentially damaging to the prosecution's case by implying that the witness merely read the notes and did not, in testifying, have a true recollection of what took place. 30 14. Admission of hearsay in a law enforcement report (a "DEA-6") which implied that Michael sold cocaine to one particular individual was harmless error, being merely cumulative of the fact established by voluminous other evidence of sales of cocaine from Michael to the same purchaser. See F.R.Crim.P. 52(a) (to require reversal, admission of the evidence must have substantially prejudiced defendant's rights). 31 15. We find no abuse of discretion in the district court's admission of charts summarizing evidence presented to the jury by an Internal Revenue Service tax expert, even though the charts contained some suppositions by the expert as to how Michael spent his drug profits. Charts summarizing evidence presented at trial may be admitted "if they are based upon and fairly represent competent evidence already before the jury." United States v. Porter, 821 F.2d 968, 975 (4th Cir.1987), cert. denied, 485 U.S. 934 (1988). The charts here fairly represented the expert's testimony, which was itself competent evidence. Questions about the weight of the evidence may be addressed by cross-examination and rebuttal evidence, but do not go to the chart's admissibility. Porter, 821 F.2d at 974-75. The expert witness was subject to cross-examination regarding the charts, and the district court instructed the jury that it was not required to find as true any of the figures on the charts. Thus the jury was free to accept or reject any suppositions by the expert contained in the charts, and admission of the charts was proper. 32 16. We find no reversible error in the district court's failure to require the government to give to the defense criminal records of prosecution witnesses William Ryan and James Wells until after the commencement of trial. Although information about prior convictions can be discovered prior to trial as Brady material, see United States v. Bagley, 473 U.S. 667, 676 (1985) ("Impeachment evidence ... falls within the Brady rule."), the lack of pre-trial discovery was harmless here, where sufficient evidence was placed before the jury as to the criminal histories of the witnesses involved (Ryan admitted his prior convictions on direct examination and evidence was placed before the jury that Wells had cooperated with law enforcement on prior occasions in order to receive leniency for prior crimes). Moreover, the particular convictions in which the defendants have claimed they were interested were all more than ten years old and thus too remote to be admissible, absent great probative value which has not been shown. See F.R.E. 609(b) (evidence of witness' conviction and sentence over ten years old not admissible unless probative value substantially outweighs prejudicial effect). 33 17. From the record before us, it is unclear whether the district court admitted testimony that one of the witnesses for the prosecution, Wells, told his uncle that he (Wells) would "say anything" against defendant Michael at trial. However, whether or not this statement was introduced at trial is irrelevant; the error, if any, was harmless beyond a reasonable doubt. Other evidence was presented regarding Well's veracity, including his prior record, his prior cooperation with law enforcement, and his immunity agreement with the government in this case, so that the jury had a sufficiently complete picture of Wells to make a credibility determination. Any more impeachment evidence would have been merely cumulative, and therefore its exclusion was harmless. See F.R.Crim.P. 52(a) (harmless error rule). 34 18. The refusal of the district court to admit expert testimony on the exact amount of reductions in sentences that government witnesses could receive in exchange for testifying was not an abuse of discretion. We have held before that where the jury is given information about the charges faced by a government witness in the cooperation agreement between the witness and the government, the district court does not abuse its discretion in refusing to admit evidence of a potential life sentence. United States v. Tindle, 808 F.2d 319, 328 (4th Cir.1986). This is because the district court has discretion to limit "potentially expansive, time-consuming cross-examination." Tindle, 808 F.2d at 328. The natural extension of our rule in Tindle is that when the actual agreement between the government and the cooperating witness is before the jury, the district court may admit or exclude, within its discretion, expert testimony regarding potential sentences and reductions in sentences. Often the better course will be, as here, to exclude the testimony, as a battle of defense and prosecution experts on an impeachment issue such as sentence reductions may needlessly consume time and divert the jury from the primary issues in the case, such that the probative value of the evidence of bias is substantially outweighed by its potential to confuse the jury and waste trial time. See F.R.E. 403; United States v. Jarabek, 726 F.2d 889, 902 (1st Cir.1984) ("The very slight probative value of such evidence on the issue of bias does not overcome the strong likelihood of confusion on the central issues in the case and undue delay in the trial."). 35 19. Nor was it an abuse of discretion to exclude evidence regarding the indirect financial incentives of law enforcement agencies to obtain convictions and concomitant forfeitures. The defendants proffered no evidence to show that the officer testifying in the instant case stood directly to benefit from the forfeitures, and thus the officer's interest in this case is far from the type of "direct, personal, substantial, pecuniary interest in reaching a conclusion against [a defendant]" which the Supreme Court has held may violate due process of law when such an interest is held by a judge, Tumey v. Ohio, 273 U.S. 510, 523 (1927). Nevertheless, there is an arguable slight benefit to officers from the use of forfeitures in funding law enforcement. See United States v. James Daniel Good Real Property, 114 S.Ct. 492, 502 n. 2 (1993). However, it was not an abuse of discretion to exclude this evidence, since the probative value of the evidence to impeach the credibility of the witness was substantially outweighed by the danger that a battle of the experts on the extent of law enforcement funding obtained from forfeitures would confuse the issues in the case, mislead the jury, and unduly waste trial time. F.R.E. 403; see also United States v. Stackpole, 811 F.2d 689, 694 (1st Cir.1987) (finding no abuse of discretion in excluding evidence of funding levels of Bureau of Alcohol, Tobacco, and Firearms where evidence would allegedly show that agents were under pressure to "frame" the defendant). 36 20. Finally, it was not erroneous for the district court to wait to enter a final order of forfeiture until after all third parties were given the opportunity to come forward with any claims on the property. See 21 U.S.C. Sec. 853(n). 37 Accordingly, Michael's convictions under Count 2 (the continuing criminal enterprise) and under Count 6 (for which the jury acquitted) are reversed, and Michael's case is remanded for resentencing in light of these reversals. Count 14 (forfeiture) is remanded for proportionality review by the district court before entry of an appropriate forfeiture order. All other counts are affirmed. 38 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN PART 1 Michael's mother, Margaret Shifflett, was also charged, but her trial was severed from the trial of the appellants here 2 It is of course a well established rule that a subsequent panel is not free to overrule a prior panel. See, e.g., North Carolina Utilities Comm'n v. F.C.C., 552 F.2d 1036, 1044 n. 8 (4th Cir.), cert. denied, 434 U.S. 874 (1977). It is possible that the recent opinion of United States v. Wild, 93-5630(L) (4th Cir.1995) might amount to an attempt to overrule the opinion of United States v. Borromeo, 1 F.3d 219 (4th Cir.1993). See Wild, slip op. at n. 11; id., slip op. at 15-16. However, examination of Wild indicates that the discussion in Wild of forfeitures of property constituting proceeds of criminal activity (i.e., property covered by 21 U.S.C. Sec. 853(a)(1)) is mere dicta, since that case concerned only property facilitating criminal activity (i.e., property covered by 21 U.S.C. Sec. 853(a)(2)). We must follow the holding of Borromeo. See, e.g., Hales v. Winn-Dixie Stores, Inc., 500 F.2d 836, 849 (1974) (dicta of prior panel need not be followed by subsequent panel) Of course, the distinction may be of no moment to the instant case, as it may well be that the property found forfeitable by the jury here was property used to facilitate criminal activity rather than property constituting the proceeds of criminal activity; so it appears from the cold record that may be the case, at least as to the pick-up truck, in light of the fact that the jury did not find a Jaguar car forfeitable, when that car apparently was not used to facilitate criminal activity yet was purchased in the same manner as the pick-up truck that the jury did find to be forfeitable. As to the parcels of land and the tractors, however, we have no indication of whether the jury found those items forfeitable as proceeds or as facilitating instrumentalities. The jury returned only a general verdict, finding those items forfeitable as either proceeds or instrumentalities, under 21 U.S.C. Sec. 853. On remand in the course of a thorough proportionality review, of course, the district court will make factual findings about the property. If some of the property is found to have been forfeited as proceeds, and our court is asked again to examine the issue, we will have the distinction between Borromeo and Wild squarely before us as a live issue, and will have the opportunity to decide whether Borromeo remains the law of this Circuit. Until that time, the issue is not ripe before us. If we should wish some day to overrule Borromeo and decide that proportionality review is never required for forfeitures of proceeds, then the issue facing us here will not arise; all district courts in the Fourth Circuit will certainly use special verdict forms so that the basis for a jury decision to forfeit property will be clear, and whether or not proportionality review is required by the district court will be decided. 3 For the same reason, the error was not plain. To find plain error, we must find actual prejudice to substantial rights. United States v. Olano, 113 S.Ct. 1770, 1776 (1993). Because it is clear that the jury used the beyond a reasonable doubt standard and not the slight evidence standard, actual prejudice has not been shown. Because the appellants did not object at trial to this instruction, our review is limited to plain error. See United States v. Brasseaux, 509 F.2d 157, 161-62 (5th Cir.1975) (upholding verdict despite slight evidence instruction where beyond a reasonable doubt instruction was given several times and instructions were not objected to at trial, because error was not plain)

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4522 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MEYKIUM A. SIRIAS RIVERA, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00200-JAB-16) Submitted: September 3, 2009 Decided: March 23, 2010 Before KING, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. R. Clarke Speaks, SPEAKS LAW FIRM, PC, Wilmington, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Meykium A. Sirias Rivera pled guilty pursuant to a plea agreement to one count of bulk cash smuggling, in violation of 31 U.S.C. § 5332(a)(1) (2006). The district court sentenced Rivera to 33 months’ imprisonment. He now appeals. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal. Rivera has filed a document we construe as a pro se supplemental brief. We affirm. To the extent that Rivera claims that his prosecution violated the Constitution’s prohibition against double jeopardy, this claim is meritless. The Double Jeopardy Clause of the Fifth Amendment protects a defendant against “a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” United States v. Martin, 523 F.3d 281, 290 (4th Cir.) (internal quotation marks omitted), cert. denied, 129 S. Ct. 238 (2008). Rivera, however, fails to point to any cumulative punishments or successive prosecutions in this case. Next, Rivera suggests that the district court violated his due process rights by imposing a sentence of imprisonment instead of ordering that he be deported. This claim is also without merit, as the district court had no authority to order 2 Rivera’s deportation. See United States v. Xiang, 77 F.3d 771, 772-73 (4th Cir. 1996). Finally, as to Rivera’s claim that trial counsel rendered ineffective assistance, this claim is more appropriately raised in a motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp. 2009), unless counsel’s alleged ineffectiveness conclusively appears on the record. See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). After review of the record, we find no conclusive evidence that counsel rendered ineffective assistance, and accordingly decline to consider the claim on direct appeal. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. * We therefore affirm the district court’s judgment. This court requires that counsel inform Rivera, in writing, of the right to petition the Supreme Court of the United States for further review. If Rivera requests that a petition be filed, but counsel believes that such a petition would be frivolous, then * Our review of the transcript of the guilty plea hearing leads us to conclude that the district court substantially complied with the requirements of Fed. R. Crim. P. 11 in accepting Rivera’s guilty plea and that the court’s omissions did not affect Rivera’s substantial rights. See United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Further, we discern no abuse of discretion by the court in imposing the 33- month sentence. See Gall v. United States, 552 U.S. 38, 41, 51 (2007). 3 counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Rivera. 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 4 

Affirmed and Memorandum Opinion filed April 10, 2003 Affirmed and Memorandum Opinion filed April 10, 2003.               In The   Fourteenth Court of Appeals ____________   NO. 14-02-00433-CR ____________   HAROLD BONNEY, Appellant   V.   THE STATE OF TEXAS, Appellee     On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 878,591     M E M O R A N D U M   O P I N I O N Appellant Harold Bonney pleaded guilty to burglary of a habitation and was sentenced to 45 years= confinement in the Institutional Division of the Texas Department of Criminal Justice, enhanced by two prior convictions.  Appellant raises four issues on appeal.  In his first three issues, he contends the trial court erred in denying his motion to suppress his oral confession on the following grounds: (1) the statement does not reflect that he knowingly, intelligently, and voluntarily waived his rights as required under Texas Code of Criminal Procedure article 38.22, section 3(a); (2) there is no evidence to support the trial court=s findings of fact and conclusions of law that appellant knowingly, intelligently, and voluntarily waived his rights; and (3) the confession was the product of improper inducements and deprivations.  In his fourth issue, appellant contends his sentence violates his constitutional right to be free from cruel and unusual punishment because it constitutes punishment for being a drug addict.  We affirm. FACTUAL BACKGROUND The complainant, Katherine Bacon, and her husband lived in the Creekstone Apartments.  Appellant=s former girlfriend, Gayla Constine, lived in the same apartment complex.  On May 22, 2001, while the Bacons were not home, appellant burglarized the Bacon=s apartment and stole televisions, jewelry, a camcorder, cameras, a VCR, and other possessions valued at approximately $4,000.00.  Appellant was arrested and charged with the offense of burglary of a habitation.  The indictment alleged two prior convictions for burglary of a motor vehicle and possession of a controlled substance. On May 30, 2001, Sgt. Harmon of the Houston Police Department conducted an audiotaped interview of appellant.  As reflected in the transcript of the recording, Harmon provided the following warnings at the outset of the interview: Harmon: You=re going to have to speak up, sir, so we can get it on tape. Bonney:  Yes. Harmon: All right, you understand I=m taping this conversation? Bonney: Yes. Harmon:  All right, sir.  I=m going to read this to you as I did before.  You have the right to remain silent and not make any statement at all and that any statement you make may be used against you and probably will be used against you in court.  Any statement you make may be used as evidence against you in court.  You have the right to have a lawyer present to advise you prior to and during any questioning.  If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning.  You have the right to terminate this interview any time you desire.  Okay, like I said, do you understand your statutory rights? Appellant:  Yes. Harmon:  Your legal rights, sir? Appellant:  Yes. Appellant then admitted to the burglary of the Bacons= home and another burglary at the Creekstone Apartments. At the hearing on appellant=s motion to suppress the oral statement, the trial court heard testimony from both  Harmon and appellant.  The trial court denied the motion, and filed the following relevant findings of fact:  5.         The defendant understood the rights set out in Paragraph 4 above [the article 38.22 statutory warnings], including that the statement may be used against him. 6.         The defendant intelligently, knowingly and voluntarily waived the rights set out in Paragraph 4 above. 7.         The defendant=s oral statement was not improperly induced or the product of overreaching on the part of law enforcement officials. 8.         The defendant was not threatened, assaulted, or coerced by anyone into making the statement. 9.         The defendant was not threatened with charges being filed against Gayla Constine to induce him into giving a statement. 10.       The defendant was not under the influence of alcohol or drugs at the time of the interrogation. 11.       The defendant=s decision to give a statement was not made as a result of intoxication or delusions from any alcohol or drugs that may have been consumed by the defedant prior to his arrest. 12.       No one made any promises to the defendant to induce him to make a statement.      13.       The defendant was not deprived of sleep or food by law enforcement officials prior to making the statement. 14.       The Court finds Sgt. Harmon to be a credible witness and finds true his testimony that he read the defendant the statutory warnings prior to the statement being given, that the defendant was not intoxicated or delusional, and that he did not threaten, coerce, nor promise the defendant anything in exchange for his statement. The trial court also entered conclusions of law reflecting its fact findings. After the trial court denied appellant=s motion to suppress the oral statement, appellant entered a guilty plea to the allegations in the indictment and a plea of true to the allegations in the enhancement paragraphs.  There was no agreed recommendation of punishment from the State.  The trial court found appellant guilty of the offense as alleged in the indictment, and after a punishment hearing, found the allegations in the enhancement paragraphs true.  The trial court sentenced appellant to 45 years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  This appeal followed. DISCUSSION I.       The Motion to Suppress At a hearing on a motion to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence and the trial court=s finding may not be disturbed on appeal absent a clear abuse of discretion.  Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993) (en banc).  In reviewing a trial court=s ruling on a motion to suppress, we afford almost total deference to the trial court=s determination of the historical facts that the record supports, especially when the trial court=s findings turn on an evaluation of a witness=s credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc).  However, we review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor.  Id. Appellant=s first three issues are directed to the trial court=s denial of his motion to suppress his oral recorded statement, and so will be addressed together.  Appellant contends the trial court erred in denying his motion to suppress because the recording does not reflect an express waiver of his rights, the evidence is contrary to and does not support the trial court=s findings of fact and conclusions of law that appellant knowingly, intelligently, and voluntarily waived his rights, and his confession was involuntary because it was the product of improper inducements and deprivations.  We address each in turn.   A.      No Express Waiver In appellant=s first issue, he contends that the trial court committed reversible error in denying his motion to suppress his oral recorded statement because the audiotape does not reflect that he knowingly, intelligently, and voluntarily waived his rights as required under article 38.22, section 3(a) of the Texas Code of Criminal Procedure.  Section 3(a) provides in relevant part: Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless: _ (2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning._ Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2003).  Section 2 provides as follows: No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that: (a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that: (1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial; (2) any statement he makes may be used as evidence against him in court; (3) he has the right to have a lawyer present to advise him prior to and during any questioning; (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (5) he has the right to terminate the interview at any time; and (b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section. Tex. Code Crim. Proc. Ann. art. 38.22, ' 2 (Vernon Supp. 2003). Specifically, appellant argues that, while he was asked if he understood his rights, he was not asked if he knowingly, intelligently, and voluntarily waived those rights.  However, the waiver provision of section 3(a)(2) does not require that the recording reflect an express waiver of the rights.  Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000); Etheridge v. State, 903 S.W.2d 1, 16B17 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 920 (1995). Here, it is undisputed that appellant received the warnings set out in section 2.  Moreover, the recording reflects appellant was given the warnings twice, once on the recording and once prior to the recording.  Appellant twice stated that he understood the warnings, and proceeded to give his statement.  He understood he was being recorded, and did not object.  There is nothing in the statement that indicates appellant did not knowingly, intelligently, and voluntarily waive his rights.  Additionally, at the hearing on appellant=s motion to suppress the statement, appellant admitted that Harmon read him his rights and he agreed to talk to him.  We therefore overrule appellant=s first issue. B.      The Trial Court=s Findings of Fact and Conclusions of Law In appellant=s second issue, he contends the trial court=s findings of fact and conclusions of law were clearly contrary to and unsupported by the record.  Appellant charges that the trial court merely Arubber stamped@ the findings and conclusions submitted by the State, and urges us to conduct a de novo review of the trial court=s determination.  Appellant does not specify which findings and conclusions are challenged, but the crux of appellant=s argument appears to be that the trial court=s findings and conclusions are unsupported because there is no evidence of an express waiver of his rights on the recording of his statement.  However, as we have already stated, there is no requirement of an express waiver on an oral recorded statement, and there is nothing in the recorded statement to indicate that appellant did not knowingly, intelligently, and voluntarily waive his rights.  We overrule appellant=s second issue. C.      The Voluntariness of the Statement In appellant=s third issue, he contends the trial court committed reversible error in denying his motion to suppress because his statement was the product of improper inducements and deprivations.  Specifically, he contends his statement was involuntary because he feared that his former girlfriend, Gayle Constine, would be charged with a crime if he did not confess, he had just ingested crack cocaine and was intoxicated, and he was physically exhausted and deprived of food while in custody. When the voluntariness of a confession is challenged, the trial court must make an independent determination in the absence of the jury as to whether the statement was voluntarily made.  Tex. Code Crim. Proc. Ann. art. 38.22, ' 6 (Vernon 1979); Jackson v. Denno, 378 U.S. 368, 380 (1964).  At this hearing, the State has the burden under the Fifth and Fourteenth Amendments of proving by a preponderance of the evidence that the confession was voluntary.  Lego v. Twomey, 404 U.S. 477, 489 (1972); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (en banc).  The statement of an accused may be used against him if it appears it was freely and voluntarily made without compulsion or persuasion.  Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979).  A statement is involuntary if there was official, coercive conduct of such a nature that any statement obtained was unlikely to have been the product of an essentially free and unconstrained choice.  Alvarado, 912 S.W.2d at 211.  Before a promise will render a confession inadmissible, it must be shown that the promise induced the confession.  Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (en banc).  In order to induce the confession, the promise must be (1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that a defendant would speak untruthfully in response thereto.  Id.  Voluntariness must be determined by considering the totality of the circumstances under which the statement was obtained.  Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997) (en banc).  Here, the trial court heard conflicting testimony regarding the voluntariness of appellant=s oral statement from appellant and Harmon.  As the sole fact‑finder and judge of the witnesses= credibility and weight of the evidence, the trial court is owed great deference, and its ruling will be overruled only if it is outside the bounds of reasonable disagreement.  Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996). Appellant testified he had used crack cocaine and consumed alcohol on the day of his arrest, he had not eaten or slept for three days and was not given food when he requested it, and he felt charges would be filed against Constine if he did not provide a statement.  He also testified he was upset and sad at the time, and he did not understand that providing a confession would be so harmful in court.  However, appellant admitted that Harmon did not tell him that Constine had done anything wrong or that he would file charges against her.  He also admitted that Harmon read him his rights, and he agreed to talk to Harmon.  Appellant testified that he did not know if fear that Constine might be charged with a crime, his intoxication, or his delusional state compelled him to give the statement, and he admitted that he probably would have given the statement anyway. Harmon testified that appellant agreed to give a statement, and at no time during the interview did appellant ask him to stop the interview.  Harmon further testified that he made no promises to appellant, did not coerce him, and did not deprive him of anything.  He also testified that appellant did not appear to be delusional or under the influence of drugs, and he did not smell alcohol on appellant=s breath.  While conceding that appellant possibly could have used drugs on the day of his arrest, Harmon attributed appellant=s sometimes slurred speech on the recording to his remorsefulness, noting that he was crying during the interview Viewing the evidence in its totality, the trial court=s findings of fact and conclusions of law are supported by the record; therefore, the trial court did not abuse it discretion in denying appellant=s motion to suppress.  See Dewberry v. State, 4 S.W.3d 735, 747B48 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000); Brimage v. State, 918 S.W.2d 466, 504 (Tex. Crim. App. 1996).  Appellant=s third issue is overruled. II.      THE SENTENCE In his fourth issue, appellant contends that his punishment of 45 years in prison violated his constitutional right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution because it effectively punishes him for his long-term addiction to drugs and alcohol.  However, appellant did not object in the trial court to the length of the sentence imposed.  Appellant has waived any error.  Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984); Solis v. State, 945 S.W.2d 300, 302 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d). We affirm the judgment of the trial court.         /s/        Leslie Brock Yates Justice         Judgment rendered and Memorandum Opinion filed April 10, 2003. Panel consists of Chief Justice Brister and Justices Yates and Edelman. Do Not Publish C Tex. R. App. P. 47.2(b).  

United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT ______ No. 06-6044NE ______ In re: * * Robert Edward Olsen, Sr. and, * Roselita Marie Olsen, * * Debtors. * * Robert Edward Olsen, Sr. and, * Appeal from the United States Roselita Marie Olsen, * Bankruptcy Court for the District of * Nebraska Debtors–Appellants, * * v. * * Habitat for Humanity, * * Objector–Appellee. * ______ Submitted: February 9, 2007 Filed: March 9, 2007 (Corrected March 14, 2007) ______ Before KRESSEL, Chief Judge, SCHERMER and VENTERS, Bankruptcy Judges. ______ KRESSEL, Chief Judge. 1  The debtors appeal from an interlocutory order denying confirmation of their plan. We granted the debtors leave to appeal and we reverse. Background On July 28, 1998, the debtors purchased their home from Habitat for Humanity. As part of the purchase, the debtors executed two promissory notes. Note 1 required the debtors to pay a principal sum of $35,773 without interest over 224 months. The monthly payment was $160 with a final payment of $93. Note 1 contained the provision that if any payment was not made within 10 days of the due date or if any default occurred under the deed of trust, then Habitat had the option to declare the entire balance of the loan immediately due and payable. Note 2 was a non-recourse note which required the debtors to pay Habitat $35,000. However, Note 2 did not require payment so long as the debtors 1) continued to live at the property, 2) timely paid the amounts due under Note 1, and 3) were not in default of the deed of trust. If the debtors met all of these requirements, then the amount due under Note 2 would gradually decline to zero on November 1, 2007. The debtors failed to make timely payments on the loan starting in September 1998 and have failed to make timely payments throughout their occupancy. Habitat claims that the debtors currently owe $36,113.28 in taxes, fees, and payments on Note 1 and $35,000 on Note 2. On August 17, 2005, the debtors filed their chapter 13 bankruptcy petition. Their home had been scheduled for a trustee sale on August 18, 2005. A month later, on September 13, 2005, the debtors filed their plan. The plan called for 36 payments of $250. The plan payments would be applied only to the arrearage under Note 1, and the debtors would make their current monthly payments under Note 1 directly to Habitat. The trustee and Habitat objected to the debtor’s plan and the bankruptcy court denied confirmation. 2  On December 30, 2005, the debtor filed an amended plan. The amended plan required 48 monthly payments of $250, from which the trustee would pay Habitat’s arrearage. The debtors would pay Habitat directly the current payments due under Note 1. Habitat again objected to the plan because the plan did not adequately compensate it for all amounts due under both Note 1 and Note 2. In particular, it did not provide for Note 2 at all. The confirmation hearing on the amended plan took place on March 22, 2006. On March 31, 2006 the court issued an order for an evidentiary hearing on the matter of whether the debtors could reinstate the original terms of Note 2 by curing the default on Note 1 through the bankruptcy plan. On May 24, 2005, the bankruptcy court denied confirmation of the debtors’ amended plan. The court held that the debtors are required to pay the full amount of Note 2 because it is a fixed obligation which became immediately due and payable when the debtors violated the conditions of the note. The court further held that the “fixing” of the obligation cannot be modified under 1322(b)(2) because this would constitute an impermissible modification of Note 2. The court granted the debtors until June 23, 2006 to file an amended plan which repaid both Note 1 and Note 2. On June 22, 2006, the debtor sought leave to appeal the interlocutory order denying confirmation. On July 13, 2006, we granted leave to appeal. Standard of Review We review the bankruptcy court’s factual findings for clear error and its conclusions of law de novo. Debold v. Case, 452 F.3d 756, 761 (8th Cir. 2006); Litzinger v. Litzinger (In re Litzinger), 340 B.R. 897, 903 (B.A.P. 8th Cir. 2006). The bankruptcy court’s interpretation of 1322(a) is a legal conclusion which we review de novo. 3  DISCUSSION “Cure” Means to Return to the Status Quo Ante. The parties argue about whether the amount owed under Note 2 is “locked -in” or “fixed” and whether the debtors may “de-accelerate” Note 2. These terms of art are not used in the bankruptcy code. Rather than deal with these terms, we go directly to the statute to see what it says. A chapter 13 plan may modify the rights of holders of secured claims, but the plan may not modify the rights of holders of claims that are secured only by an interest in the debtor’s principal residence. 11 U.S.C. § 1322(b)(2). However, there is an exception to the exception to the rule. Section 1322(b)(5) provides that “notwithstanding paragraph (2) of this subsection, [the plan may] provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due.” 11 U.S.C. § 1322(b)(5). Curing a default returns the situation to pre-default conditions and nullifies the consequences of that default. See Di Pierro v. Taddeo (In re Taddeo), 685 F.2d 24, 26- 27 (2d Cir. 1982). The common meaning of ‘cure’ is to remedy, restore, remove, or rectify, and as the term relates to defaults, ‘cure’ means to restore matters to the status quo ante. Ordinarily the means by which one cures a default is by paying all amounts due and owing; however, ‘cure’ is the end, not the means, and what the term refers to is the restoration of the way things were before the default. Thus the plain meaning of ‘cure,’ as used in § 1322(b)(2) and (5), is to remedy or rectify the default and restore matters to the status quo ante. In Re Clark, 738 F.2d 869, 872 (7th Cir. 1984)(citations omitted)(emphasis in original). 4  Note 1 provides that “[i]f any installment payment is not paid with [sic] 10 days after the due date, or any default occurs under the Deed of Trust securing this obligation, Promisee shall have the option to declare the entire unpaid balance hereof immediately due and payable.” Note 2 provides that: In the event (1) Promisor discontinues living at the Property, or (2) Promisor fails to timely pay Promisee all of the amounts due Promisee under said Promissory Note No. 1, or (3) Promisor is in default under said Deed of Trust securing this obligation, then and in any such event the amount of Promisor’s obligation hereunder shall be fixed at the amount indicated on the table above as of the date of the occurrence of any of the above described events and all such amounts under this note shall be immediately due and payable from Promisor to Promisee. According to the provision in Note 2, the amount due on Note 2 became fixed when the debtor defaulted on Note 1. However, Section 1322(b)(5) allows the debtor to cure the default on Note 1, return it to its status prior to the default and consequently “unfix” the amount due under Note 2. Although the debtors may cure the default on Note 2 and return to the status quo ante, their plan must still provide for Note 2. In addition, because the bankruptcy court denied confirmation on these grounds, it did not address a number of other issues regarding confirmation. CONCLUSION For the forgoing reasons, the judgment of the bankruptcy court is reversed. This case is remanded to the bankruptcy court for proceedings consistent with this opinion. 5 

85 F.3d 629 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Darvin LAWSON, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee. No. 95-3854. United States Court of Appeals, Sixth Circuit. May 13, 1996. 1 Before: SILER and BATCHELDER, Circuit Judges; CARR, District Judge.* ORDER 2 Darvin Lawson, proceeding pro se, appeals a district court judgment denying his motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 3 In 1993, Lawson pleaded guilty to interstate and foreign travel in aid of racketeering enterprises in violation of 18 U.S.C. § 1952. He was sentenced to 60 months of imprisonment. Lawson did not appeal his conviction or sentence. 4 In a very confusing motion to vacate, Lawson appears to have argued that: 1) his indictment did not state an offense because implementing regulations had not been promulgated for 21 U.S.C. §§ 841 and 846; 2) his indictment was invalid because it was not signed by the United States Attorney and because the grand jury either did not vote on the indictment or returned a negative vote; 3) counsel rendered ineffective assistance because he did not raise the above issues; and 4) the United States lacked jurisdiction over him under the doctrine set forth in Clearfield Trust Co. v. United States, 318 U.S. 363, 369 (1943). Upon review, the district court denied the motion as without merit. 5 Lawson has filed a timely appeal, essentially reasserting his same arguments. 6 Initially, we note that Lawson does not argue on appeal that the United States lacked jurisdiction over him under the Clearfield Trust doctrine. Consequently, this claim is considered abandoned and not reviewable on appeal. See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.1991), cert. denied, 503 U.S. 939 (1992). 7 Upon review, we conclude that the district court properly denied Lawson's motion to vacate. The record simply does not reflect an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. See Brecht v. Abrahamson, 113 S.Ct. 1710, 1722 (1933); United States v. Ross, 40 F.3d 144, 146 (7th Cir.1994) (per curiam). Moreover, it does not reflect a fundamental defect in the proceedings. See Reed v. Farley, 114 S.Ct. 2291, 2300 (1994); United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir.), cert. denied, 113 S.Ct. 2424 (1993). 8 Lawson is barred from seeking relief on his claims enumerated 1 and 2 above. These claims could have been but were not raised on direct appeal. Under these circumstances, in order to obtain review, Lawson must demonstrate cause and prejudice to excuse his failure to raise these claims on appeal. See United States v. Frady, 456 U.S. 152, 167-68 (1982); Ratliff v. United States, 999 F.2d 1023, 1025 (6th Cir.1993). Lawson has alleged no cause for his failure to raise these claims in a direct appeal from his conviction. 9 Further, he has not shown prejudice because his claims are without merit. The Attorney General is not required to promulgate regulations in order to render 21 U.S.C. §§ 841 and 846 effective. Further, the signature of an Assistant United States Attorney on an indictment is sufficient to indicate that the United States Attorney agrees with the action taken by the grand jury. See United States v. Walls, 577 F.2d 690, 696 (9th Cir.), cert. denied, 439 U.S. 893 (1978). In addition, Lawson has not presented any evidence in support of his claim that the grand jury either did not vote on the indictment or returned a negative vote. His mere speculation is insufficient to warrant § 2255 relief. See, e.g., United States v. Breitkreutz, 977 F.2d 214, 217 (6th Cir.1992) (the defendant has the burden of demonstrating abuse of process as a presumption of regularity attaches to grand jury proceedings); United States v. Castro, 908 F.2d 85, 89 (6th Cir.1990) (the defendant's bare assertions of government misconduct before the grand jury do not make the necessary showing of prosecutorial misconduct). 10 Finally, counsel rendered effective assistance. Lawson was not prejudiced by any failure of his counsel to raise these claims because the claims are without merit. See Strickland v. Washington, 466 U.S. 668, 687 (1984). 11 Accordingly, we hereby affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit. * The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation

[Cite as State v. Brown, 2013-Ohio-5854.] COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J : Hon. John W. Wise, J. -vs- : : DAVID BROWN : Case No. 2013CA008 : Defendant-Appellant : OPINION CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. CRB 1200633 JUDGMENT: Affirmed DATE OF JUDGMENT: December 20, 2013 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant CHRISTIE M. L. THORNSLEY JEFFREY G. KELLOGG 760 Chestnut Street 239 North 4th Street Coshocton, OH 43812 Coshocton, OH 43812 Coshocton County, Case No. 2013CA008 2 Farmer, J. {¶1} On October 21, 2012, appellant, David Brown, was charged with two counts of sexual imposition in violation of R.C. 2907.06(A)(1). Said charges arose from allegations that appellant touched the breasts of two different women in a public establishment. {¶2} A bench trial commenced on January 23, 2013. Appellant was found guilty as charged. By judgment entry filed February 25, 2013, the trial court sentenced appellant to thirty days on each count, to be served consecutively, suspended in lieu of specific conditions. The trial court designated appellant as a Tier I sex offender. {¶3} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶4} "THE TRIAL COURT ERRED BY CONVICTING THE APPELLANT DAVID BROWN ON INSUFFICIENT EVIDENCE." I {¶5} Appellant claims his conviction was against the sufficiency of the evidence. We disagree. {¶6} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks, 61 Ohio St.3d 259 (1991). "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). We Coshocton County, Case No. 2013CA008 3 note the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260. {¶7} Appellant was convicted of two counts of sexual imposition in violation of R.C. 2907.06(A)(1) which states the following: (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: (1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard. {¶8} "Sexual contact" is defined in R.C. 2907.01(B) as: "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." {¶9} Appellant argues there was no evidence that he touched either woman "for the purpose of sexually arousing or gratifying either person." As explained by our brethren from the Twelfth District in In Re: A.L., 12th Dist. Butler No. CA2005-12-520, 2006-Ohio-4329, ¶ 19-20: Coshocton County, Case No. 2013CA008 4 In determining whether sexual contact occurred, "the proper method is to permit the trier of fact to infer from the evidence presented at trial whether the purpose of the defendant was sexual arousal or gratification by his contact with those areas of the body described in R.C. 2907.01." State v. Cobb (1991), 81 Ohio App.3d 179, 185. "While the purpose of sexual arousal or gratification is an essential element of the offense of gross sexual imposition, there is no requirement that there be direct testimony regarding sexual arousal or gratification." State v. Meredith, Warren App. No. CA2004-06-062, 2005-Ohio-062, ¶ 13, citing, among others, In re Anderson, 116 Ohio App.3d at 443. Whether the touching or contact was performed for the purpose of sexual arousal or gratification is a question of fact to be inferred from the type, nature, and circumstances of the contact. Merideth, citing Anderson at 443-444, and State v. Mundy (1994), 99 Ohio App.3d 275, 289. In determining the defendant's purpose, the trier of fact may infer what the defendant's motivation was in making physical contact with the victim. Meredith, citing Mundy and Cobb. "If the trier of fact determines that the defendant was motivated by desires of sexual arousal or gratification, and that the contact occurred, then the trier of fact may conclude that the object of the defendant's motivation was achieved." Cobb, 81 Ohio App.3d at 185. Coshocton County, Case No. 2013CA008 5 {¶10} Geanna Starr testified she was at Alpha Bits & Bytes when appellant came in. T. at 23. She did not know him. Id. Appellant approached Ms. Starr, put his arm around her, and squeezed her left breast. T. at 24, 26, 29. The business owner, Adrian Padilla, and his employee, Faith Murphy, corroborated this testimony. T. at 17- 18, 29. Mr. Padilla testified he smacked appellant's hand and told him to keep his "f'ing hands off my customers." T. at 6, 9, 19. Ms. Starr "kind of opened up her eyes and she said like kind of a gasp." T. at 9. She testified she was shocked by appellant's actions. T. at 26. Appellant did not apologize or say anything to Ms. Starr. T. at 24-25. {¶11} Thereafter, appellant and Mr. Padilla went outside to talk. T. at 20. Ms. Murphy came outside. T. at 6, 29. She did not know appellant. T. at 32. Appellant performed a "Full Nelson/Half Nelson/Poke Nelson" joke on Ms. Murphy, whereupon he placed Ms. Murphy in wrestling holds and then thrust behind her for the "Poke Nelson." T. at 6, 20-21. Ms. Murphy broke away and went inside. T. at 6-7, 12, 21. Mr. Padilla again told appellant to keep his hands off of his customers. T. at 7. {¶12} After appellant reentered the establishment, he approached Ms. Murphy and placed his hand down her shirt and touched her breast without her permission. T. at 30-31. Mr. Padilla and Ms. Starr corroborated this testimony. T. at 7, 14, 22, 25. Ms. Murphy grabbed appellant's arm, pulled it out of her shirt, and yelled at him. T. at 30. She testified the contact was offensive. Id. {¶13} Appellant testified he put his arm around Ms. Starr and then "realized that it was not who I thought it was." T. at 39. He stated he apologized to her. Id. Appellant stated he "did not grab that lady's boob." T. at 55. He stated he merely Coshocton County, Case No. 2013CA008 6 placed his hand on her shoulder, "not anyplace inappropriate in any way, shape, form or fashion." T. at 40. {¶14} After appellant and Mr. Padilla went outside to talk, Ms. Murphy appeared and appellant performed the wrestling joke on her. T. at 42. Appellant testified he and Mr. Padilla were laughing and joking, and Mr. Padilla told appellant not to touch his customer's "like that." Id. {¶15} After appellant reentered the establishment, he placed his hand on Ms. Murphy’s shoulder. Id. Appellant denied having his hand down her shirt. T. at 43. {¶16} Appellant explained he was a "touchy person." T. at 50. He likes to hug people, shake hands, and pat people on the back. Id. Mr. Padilla described appellant as a "very flirtatious person" who thinks flirtation is a "physical touch." T. at 16. {¶17} All of the events occurred within a twenty minute period. T. at 19. Mr. Padilla testified he and appellant were friends and he did not have any "ax to grind" with appellant. T. at 7. {¶18} Based upon the testimony, there was sufficient evidence to establish that appellant touched the women's breasts, an erogenous zone as defined in R.C. 2907.01(B). The gravamen of this case is whether appellant knew the sexual contact was offensive or was reckless in that regard, and whether the sexual contact was for the purpose of sexual arousal or gratification. {¶19} After appellant touched Ms. Starr's breast, his hand was smacked away and he was told not to touch customers in such a manner. Thereafter, appellant touched Ms. Murphy's breast, and Ms. Murphy grabbed his arm and yelled at him. Neither woman knew appellant. It can certainly be presumed that it would be offensive Coshocton County, Case No. 2013CA008 7 to a woman to be touched on the breast by a stranger. In fact, Ms. Starr testified she was shocked and Ms. Murphy testified the touching was offensive. {¶20} The women did not know appellant nor encouraged his behavior. The trial court acknowledged appellant's testimony regarding his "touchy" nature and his desire to "shake hands," but noted one does not go up to a woman and "shake their breast." T. at 60. The trial court concluded there could be no purpose for appellant's actions other than sexual gratification. Id. As stated above, the trial court was permitted to infer the purpose of the touching. {¶21} Upon review, we find sufficient credible evidence to find appellant guilty of the two counts of sexual imposition. {¶22} The sole assignment of error is denied. Coshocton County, Case No. 2013CA008 8 {¶23} The judgment of the Municipal Court of Coshocton County, Ohio is hereby affirmed. By Farmer, J. Gwin, P.J. and Wise, J. concur. SGF/sg 11/26 

567 So.2d 540 (1990) Marilyn HYMOWITZ, Appellant, v. Jeanette DRATH, Appellee. No. 89-1508. District Court of Appeal of Florida, Fourth District. October 3, 1990. *541 Charles L. Curtis of Allsworth, Doumar, Cazel, Curtis & Cross, Fort Lauderdale, for appellant. Linda R. Spaulding of Conrad, Scherer & James, Fort Lauderdale, for appellee. WARNER, Judge. This appeal emanates from an order confirming an arbitration award entered in a business dispute. Because the arbitrators exceeded their statutory powers under section 682.13(1)(c), Florida Statutes (1987), we reverse. The appellee Drath contracted to purchase a half interest in appellant Hymowitz' jewelry business. The agreement reached was that Drath would pay $25,000 for the stock plus make loans to the corporation in the amount of $76,840.00. Drath paid $60,000 in cash and executed two promissory notes, one for $25,000 and one for $16,840. The $60,000 cash and the $16,840 note were considered loans to the corporation, and the $25,000 note was for the purchase of the stock. Hymowitz held the stock in escrow until the notes were paid in full. A shareholder's agreement was also executed which provided for arbitration of "any dispute or disagreement affecting management and/or business policies of corporation and/or disagreement which cannot be amicably resolved by the parties." Before the notes were paid, Hymowitz assigned the two notes to a third party. This event, plus Drath's discovery that Hymowitz had misrepresented the value of the corporation, prompted Drath to stop paying on the notes and file suit to compel arbitration. The complaint filed by Drath simply noted the assignment of the notes and that disagreements had arisen over the management of the corporation, and she requested arbitration. There are only two references in orders to arbitration in this record. The first is a one line note in an order appointing a receiver for the business which states "she [Drath] has substantial likelihood of prevailing on the merits and therefore am ordering arbitration." The second is part of an order on Defendant's Motion to Dissolve Temporary Injunction and to Vacate Order Appointing Receiver. In that order the court states "the request for arbitration will be GRANTED and the Arbitrator will determine the division of the inventoried assets." At the hearing which preceded this order Drath's attorney specifically represented that appellee was not seeking rescission of the entire contract. The parties proceeded to arbitration. However, there is nothing in the record to indicate what issues were submitted for arbitration other than the orders set forth above. The arbitrators found that the management of the business was deadlocked, and the business should be liquidated. In addition, the arbitrators also found that Hymowitz had made misrepresentations concerning the purchase of the business which affected the goodwill so that Drath would not have paid the $25,000 for goodwill. The arbitrators then ordered cancellation of both unpaid notes held by the third party. In addition, the arbitrators gave Drath a judgment for $124,000, which included $25,000 for loss of goodwill, $64,000 for what should have been the value of Drath's one-half interest in the business, and costs and attorney's fees. *542 Hymowitz moved to vacate or modify the award because the cancellation of the notes was in excess of the arbitrator's powers, and the award of damages was in excess of the amount Drath had invested in the company. Hymowitz' position was that cancellation of the promissory notes was tantamount to rescinding the contract. Since rescission disavows the contract, of which arbitration was a part, the arbitrators were without authority to negate the very contract which vested them with their authority. The trial court ultimately confirmed the award. While it acknowledged that since the notes had been assigned to a third person not a party to these proceedings, and the notes themselves could not be cancelled, nevertheless, Drath was still relieved of the debt, in accordance with the arbitrators' award. From the judgment, Hymowitz appeals. Hymowitz claims here, as she did in the trial court, that the arbitrators exceeded their powers when they cancelled the promissory notes which formed the underlying agreement whereby Drath purchased stock and became a shareholder in the corporation. What in essence the arbitrators did was to treat Drath as a full shareholder but cancelled her stock purchase obligation. The provision for payment, however, is a dependent covenant to the stock purchase agreement. See Pershing Industries, Inc. v. Shupnick, 325 So.2d 410 (Fla. 3d DCA 1976). Therefore, cancellation of the purchase money note amounted to a rescission of the stock purchase agreement itself. Pershing. Since the cancellation of the stock purchase agreement extinguishes Drath's position as a shareholder in the corporation, it of necessity also extinguishes the shareholder's agreement which contains the arbitration clause. In Borck v. Holewinski, 459 So.2d 405 (Fla. 4th DCA 1984), this court held that a party cannot arbitrate when what is sought is rescission of the contract itself. The effect of rescission is to render the contract abrogated and of no force and effect from the beginning. Restatement (First) of Contracts § 349 comment a (1932). If there is no contract, there can be no arbitration clause "of the contract." Borck at 405. In doing so, this court approved the reasoning of R.B.F. Management Co. v. Sunshine Towers Apartment Residences Ass'n, Inc., 352 So.2d 561 (Fla. 2d DCA 1977). We think it follows from Borck that where the parties arbitrate, the arbitrators exceed their powers if their award rescinds the very obligation which is the foundation of the contract from which they derive their authority. We thus hold that the arbitrators exceeded their powers when they cancelled the underlying obligation forming the foundation of the entire transaction. Therefore, the trial court erred in denying the appellant's motion to vacate, modify and correct award. We thus remand this case for further proceedings consistent with section 682.13(3) and 682.14, Florida Statutes (1987). LETTS and DELL, JJ., concur.

540 F.3d 231 (2008) Mr. Darrell COMBS; Mrs. Kathleen Combs, Appellants at No. 06-3090, v. HOMER-CENTER SCHOOL DISTRICT; Joseph F. Marcoline, in his official capacity as Superintendent of Homer-Center School District; Titusville Area School District; Bristol Township School District; Franklin Regional School District (D.C. Civil Action No. 04-cv-1599). Dr. Thomas Prevish; Timari Prevish, Appellants at No. 06-3091, v. Norwin School District, Richard Watson, in his official capacity as Superintendent of Norwin School District (D.C. Civil Action No. 04-cv-1670). Dr. Mark Newborn; Mrs. Maryalice Newborn, Appellants at No. 06-3092. v. Franklin Regional School District; Stephen Vak, in his official capacity as Superintendent of Franklin Regional School District (D.C. Civil Action 04-cv-1932). Mr. Thomas Hankin; Mrs. Babette Hankin, Appellants at No. 06-3093, v. Bristol Township School District; Regina Cesario, in her official capacity as Superintendent of Bristol Township School District (D.C. Civil Action 04-cv-1936). Mr. Douglas Nelson; Mrs. Shari Nelson, Appellants at No. 06-3094, v. Titusville Area School District; John D. Reagle, in his official capacity as Acting Superintendent of Titusville Area School District (D.C. Civil Action 05-cv-0070). Rev. Steven Weber; Mrs. Meg Weber, Appellants at No. 06-3095, v. DuBois Area School District; Sharon Kirk, in her official capacity as Superintendent of DuBois Area School District (D.C. Civil Action 05-cv-0203). Nos. 06-3090, 06-3091, 06-3092, 06-3093, 06-3094, 06-3095. United States Court of Appeals, Third Circuit. Argued November 6, 2007. Filed August 21, 2008. *232 Michael P. Farris, Esquire (Argued), James R. Mason, III, Esquire, Home School Legal Defense Association, Purcellville, VA, Attorneys for Appellants. Carl P. Beard, Jr., Esquire, Patrick J. Fanelli, Esquire, Andrews & Beard Altoona, PA, Attorneys for Appellee, Homer-Center School District. Christina Lane, Esquire, Andrews & Price, Pittsburgh, PA, Attorney for Appellees, Homer-Center School District, Titusville Area School District, Bristol Township School District, Franklin Regional School District, Stephen Vak, in his official capacity as Superintendent of Franklin Regional School District, Norwin School District, DuBois Area School District. Patricia K. Smith, Esquire, Knox McLaughlin Gornall & Sennett Erie, PA, Attorney for Appellees, Titusville Area School District, John D. Reagle, in his official capacity as Acting Superintendent of Titusville Area School District. *233 Paul N. Lalley, Esquire (Argued), Levin Legal Group, P.C. Huntingdon Valley, PA, Attorney for Appellees, Bristol Township School District, Regina Cesario, in her official capacity as Superintendent of Bristol Township School District. Michael L. Brungo, Esquire, Ronald R. Lucas, Jr., Esquire, Alfred C. Maiello, Esquire, Maiello Brungo & Maiello, LLP, Pittsburgh, PA, Attorneys for Appellees, Norwin School District, Richard Watson, in his official capacity as Superintendent of Norwin School District, DuBois Area School District, Sharon Kirk, in her official capacity as Superintendent of DuBois Area School District. Christopher C. Lund, Esquire, Dechert LLP Philadelphia, PA, Attorney for Amicus Curiae-Appellant, American Civil Liberties Union of Pennsylvania. Ann G. St. Ledger, Esquire, Office of Attorney General of Pennsylvania Department of Education, Harrisburg, PA, Attorney for Amicus Curiae-Appellee, Pennsylvania Department of Education. Sean A. Fields, Esquire, Pennsylvania School Boards Association Mechanicsburg, PA, Attorney for Amicus Curiae-Appellee, Pennsylvania School Boards Association. Jeffrey I. Pasek, Esquire, Cozen & O'Connor, Philadelphia, PA, Attorney for Amicus Curiae-Appellee, Jewish Social Policy Action Network. Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges. OPINION OF THE COURT PER CURIAM. At issue is whether certain parents who home-school their children must comply with the reporting and review requirements of Pennsylvania's compulsory education law. Compliance, the parents contend, would violate their sincerely held religious beliefs. The Commonwealth of Pennsylvania demurs, contending its compulsory education law neither substantially burdens the free exercise of religion nor transgresses neutral application to all citizens, and serves an important state interest in ensuring a minimal level of education for all children. Plaintiffs appeal from the grant of summary judgment for defendants in an action seeking declaratory relief and an injunction prohibiting enforcement of 24 Pa. Stat. Ann. § 13-1327.1 ("Act 169") and prosecution under Pennsylvania's compulsory education laws. Defendants are school districts in Pennsylvania and superintendents named in their official capacity.[1] Plaintiffs are six families who home-school their children.[2] The Commonwealth of Pennsylvania's education system, as enacted by the General Assembly, allows parents to satisfy the compulsory attendance requirement through "home education programs." Parents supervising the home education programs must provide instruction for a minimum number of days and hours in certain subjects and submit a portfolio of teaching logs and the children's work product for review. The local school district *234 reviews the home education programs for compliance with the minimum hours of instruction and course requirements and determines whether each student demonstrates progress in the overall program. The school district does not review the educational content, textbooks, curriculum, instructional materials, or methodology of the program. Parents, who home-school their children based on their sincerely held religious beliefs, have sued their respective school districts and school superintendents. Parents contend the Act 169 record-keeping requirements and the subsequent portfolio review place a substantial burden on their free exercise of religion. They seek an exemption from the Act 169 requirements and request declaratory and injunctive relief on the grounds that the provisions of Act 169 violate the First and Fourteenth Amendments of the Constitution of the United States and the Pennsylvania Religious Freedom Protection Act ("RFPA"), 71 Pa. Stat. Ann. §§ 2401-2407. I. Parents have home-schooled their children for many years. All six families are Christians, but of different denominations. They hold in common a religious belief that "education of their children, not merely the religious education, is religion" and that God has assigned religious matters to the exclusive jurisdiction of the family. Accordingly, because God has given Parents the sole responsibility for educating their children, the school districts' reporting requirements and "discretionary review" over their home education programs violate their free exercise of religion. In 2002, the Commonwealth of Pennsylvania passed the Religious Freedom Protection Act. The statute requires the Commonwealth to justify substantial burdens on religious free exercise with a compelling interest and a showing that the least restrictive means has been employed to satisfy that interest. Prior to the passage of the Religious Freedom Protection Act, many of the Parents complied with the Act 169 home education program requirements.[3] Pre-RFPA, there is no evidence that the school districts ever questioned or interfered with Parents' home education programs' educational content, methodology, curriculum, or materials. On some occasions, the school districts required Parents to supplement their logs and portfolios with additional information. But Parents are unable to identify an instance in which the school districts rejected any part of their home education program. Nevertheless, post-RFPA, Parents notified the school districts that Act 169 substantially burdens their free exercise of religion and sought an exemption from compliance.[4] The school districts refused to grant Parents an exemption from Act 169 and threatened or, in some cases, initiated criminal prosecutions for truancy. In response, Parents sued the school districts in various state and federal courts seeking declaratory and injunctive relief under the First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and RFPA. Ultimately, the cases ended up before the United States District Court for the Western District *235 of Pennsylvania, which consolidated the six cases for pre-trial and summary judgment purposes. Upon consent of the parties, discovery was limited to "threshold legal issues" such as whether Act 169 substantially burdened Parents' free exercise of religion under the RFPA and the proper standard of review for Parents' federal constitutional claims. The District Court engaged in two rounds of summary judgment motions. The first round addressed facial challenges to Act 169. Parents filed a consolidated motion for summary judgment and the school districts filed a consolidated opposition, but did not file a cross-motion for summary judgment. The District Court denied Parents' motion. Combs v. Homer Ctr. Sch. Dist., 2005 WL 3338885 (W.D.Pa. Dec.8, 2005). In the second round, the school districts filed a motion for summary judgment addressing both Parents' facial and "as applied" challenges to Act 169. The District Court granted the school districts' motion, concluding that (1) Parents failed to prove a "substantial burden" on the free exercise of religion, as defined by RFPA, Combs v. Homer Ctr. Sch. Dist., 468 F.Supp.2d 738, 771 (W.D.Pa.2006), and (2) Act 169 is a neutral law of general applicability, satisfying rational basis review,[5]id. at 777. As a result, the District Court did not decide issues of compelling governmental interest or least restrictive means.[6] II. A. The Pennsylvania Constitution mandates that the General Assembly "provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth." Pa. Const., Art. III, § 14. The General Assembly has carried out its constitutional charge by enacting the Public School Code. See 24 Pa. Stat. Ann. §§ 1-101 to 27-2702.[7] *236 The Public School Code requires "every child of compulsory school age having a legal residence in this Commonwealth . . . to attend a day school in which the subjects and activities prescribed by the standards of the State Board of Education are taught in the English language." 24 Pa. Stat. Ann. § 13-1327(a). "Compulsory school age" is defined as "the period of a child's life from the time the child's parents elect to have the child enter school, which shall be not later than at the age of eight (8) years, until the age of seventeen (17) years." Id. § 13-1326. See also 22 Pa.Code § 11.13 (2008). A student who "holds a certificate of graduation from a regularly accredited senior high school" satisfies the compulsory attendance requirement and is no longer of compulsory school age. 24 Pa. Stat. Ann. § 13-1326. The Pennsylvania General Assembly currently permits parents to choose among four alternative categories of education to satisfy the compulsory attendance requirement: (1) a public school with certain trade school options, id. § 13-1327(a);[8] (2) a private academic day school or private tutoring, id.;[9] (3) a day school operated by a "bona fide church or other religious body," id. § 13-1327(b);[10] or (4) a "home education program," id. § 13-1327.1. *237 Significant to this appeal, the Pennsylvania General Assembly permitted the fourth alternative in 1988. See Act 169 of 1988, P.L. 1321, No. 169, December 21, 1988, 24 Pa. Stat. Ann. § 13-1327.1. Under Act 169, a child instructed under a "home education program" satisfies the compulsory attendance requirement. Id. A home education program must satisfy the same minimum hours of instruction requirements and almost all of the same subject matter requirements as a school operated by a bona fide church or religious body.[11]Id. §§ 13-1327(b), 13-1327.1(c). Prior to the commencement of a home education program, and thereafter on August 1 of each year, the parent or guardian of the child must file an affidavit with the district superintendent setting forth: the name of the supervisor of the home education program who shall be responsible for the provision of instruction; the name and age of each child who shall participate . . .; the address and telephone number of the ... site; that such subjects as required by law are offered in the English language, including an outline of proposed education objectives by subject area . . .; and that the home education program shall comply with the provisions of this section. . . . Id. § 13-1327.1(b)(1).[12] The superintendent of the public school district of the child's residence is charged with ensuring that each child is receiving "appropriate education," which is defined by Act 169 as "a program consisting of instruction in the required subjects for the time required in this act and in which the student demonstrates sustained progress in the overall program." Id. § 13-1327.1(a). *238 In order to demonstrate to the superintendent that "appropriate education" is taking place, at the end of each public school year the supervisor of the home education program must submit a file with two types of documentation.[13] First, the file must contain a portfolio of records and materials: The portfolio shall consist of a log, made contemporaneously with the instruction, which designates by title the reading materials used, samples of any writings, worksheets, workbooks or creative materials used or developed by the student and in grades three, five and eight results of nationally normed standardized achievement tests in reading/language arts and mathematics or the results of Statewide tests administered in these grade levels. The department shall establish a list, with a minimum of five tests, of nationally normed standardized tests from which the supervisor of the home education program shall select a test to be administered if the supervisor does not choose the Statewide tests. At the discretion of the supervisor, the portfolio may include the results of nationally normed standardized achievement tests for other subject areas or grade levels. The supervisor shall ensure that the nationally normed standardized tests or the Statewide tests shall not be administered by the child's parent or guardian. Id. § 13-1327.1(e)(1). Second, the supervisor of the home education program must obtain an annual written evaluation of the child's work. Id. § 13-1327.1(e)(2). The supervisor may choose any person qualified under Act 169 to make the evaluation.[14] The evaluation measures: the student's educational progress. . . . The evaluation shall also be based on an *239 interview of the child and a review of the portfolio required in clause (1) and shall certify whether or not an appropriate education is occurring. Id. Based upon the entire file—the portfolio of records and materials and the third-party evaluation—the superintendent determines whether the home education program provides the child with an "appropriate education."[15] If the superintendent . . . determines, based on the documentation provided. . . that appropriate education is not taking place for the child in the home education program, the superintendent shall send a letter . . . to the supervisor of the home education program stating that in his opinion appropriate education is not taking place for the child in the home education program and shall return all documentation, specifying what aspect or aspects of the documentation are inadequate. Id. § 13-1327.1(i). Upon receipt of the letter, the supervisor has twenty days "to submit additional documentation demonstrating that appropriate education is taking place for the child in the home education program." Id. § 13-1327.1(j). If the additional documentation is not timely submitted, the home education program "shall be out of compliance" with the compulsory attendance requirements and the student must promptly enroll in either a public school, a nonpublic religious school, or a licensed private school. Id. If the superintendent concludes that a timely amended file still fails to demonstrate appropriate education, he or she will notify the supervisor of his or her determination. Further, the supervisor will be given a "proper hearing by a duly qualified and impartial hearing examiner" within thirty days. Id. § 13-1327.1(k).[16] "If the hearing examiner finds that the documentation does not indicate that appropriate education is taking place in the home education program," the student must be promptly enrolled in either a public school, a nonpublic religious school, or a licensed private academic school.[17]Id. § 13-1327.1(l). "The decision of the [hearing] examiner may be appealed by either the supervisor of the home education program or the superintendent to the Secretary of Education or Commonwealth Court [of Pennsylvania]." Id. § 13-1327.1(k). In practice, the school districts engage in a limited level of oversight. The school districts require a minimum of two contacts with the State during the calendar year—the submission of an affidavit at the beginning of the year and the submission of the portfolio and evaluation at the end of the year. Deposition testimony reveals that school officials do not check in on the progress of home education programs during the school year. Furthermore, all school officials deposed acknowledged that they never disagreed with or rejected an independent evaluator's assessment of the home education program. School officials *240 reviewed the disclosures for compliance with the statute and, if all the required disclosures were presented, the home education program would be approved. B. As noted, in 2002 the Pennsylvania General Assembly enacted the Religious Freedom Protection Act. 71 Pa. Stat. Ann. §§ 2401-2407. Titled "[a]n Act protecting the free exercise of religion; and prescribing the conditions under which government may substantially burden a person's free exercise of religion," Id. § 2401, the RFPA was based on two legislative findings: (1) Laws and governmental actions which are facially neutral toward religion, as well as laws and governmental actions intended to interfere with religious exercise, may have the effect of substantially burdening the free exercise of religion. However, neither State nor local government should substantially burden the free exercise of religion without compelling justification. (2) The General Assembly intends that all laws which it has heretofore enacted or will hereafter enact and all ordinances and regulations which have been or will be adopted by political subdivisions or executive agencies shall be construed so as to avoid the imposition of substantial burdens upon the free exercise of religion without compelling justification. Id. § 2402. Under RFPA, "an agency shall not substantially burden a person's free exercise of religion, including any burden which results from a rule of general applicability," id. § 2404(a), unless "the agency proves, by a preponderance of the evidence, that the burden" is "[i]n furtherance of a compelling interest of the agency" and is "[t]he least restrictive means of furthering the compelling interest," id. § 2404(b). The General Assembly provides definitions for several key terms in section 2404. First, "free exercise of religion" means "[t]he practice or observance of religion under section 3 of Article I of the Constitution of Pennsylvania."[18]Id. § 2403. Second, "person" is defined as "[a]n individual or a church, association of churches or other religious order, body or institution which qualifies for exemption from taxation under section 501(c)(3) or (d) of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. § 501)." 71 Pa. Stat. Ann. § 2403. Third, RFPA defines "substantially burden" as "[a]n agency action which does any of the following:" (1) Significantly constrains or inhibits conduct or expression mandated by a person's sincerely held religious beliefs. (2) Significantly curtails a person's ability to express adherence to the person's religious faith. (3) Denies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion. (4) Compels conduct or expression which violates a specific tenet of a person's religious faith. Id. RFPA allows a "person whose free exercise of religion has been burdened or likely *241 will be burdened in violation of [§ 2404]" to bring a claim in a judicial proceeding. Id. § 2405(a). Prior to bringing a claim, the "person" must notify the agency, describing the agency action and the manner in which it burdens religion. Id. § 2405(b). A "person" who "proves, by clear and convincing evidence, that the person's free exercise of religion has been burdened ... in violation of [§ 2404]" may receive declaratory or injunctive relief. Id. § 2405(f). Monetary damages are not available. Id. With limited exceptions, 71 Pa. Stat. Ann. § 2406(a)-(b), RFPA applies "to any State or local law or ordinance and the implementation of that law or ordinance, whether statutory or otherwise and whether adopted or effective prior to or after the effective date of this act," id. § 2406(a). Thus, RFPA applies to the Public School Code, 24 Pa. Stat. Ann. §§ 1-101 to 27-2702. III. We address Parents' federal constitutional claim. Parents contend Act 169 imposes a substantial burden on the free exercise of religion as protected by the First and Fourteenth Amendments.[19] The Commonwealth asserts Act 169 is a neutral law of general applicability that is rationally related to the legitimate governmental interest in ensuring a minimal level of education for all children. Applying rational basis review, the District Court concluded that "Act 169 passes constitutional muster as a neutral law of general applicability and effect." Combs, 468 F.Supp.2d at 777. Accordingly, the District Court denied Parents' motion for summary judgment as to the facial challenge to Act 169 as a violation of the First Amendment of the United States Constitution and granted the school districts' motion for summary judgment as to Parents' as-applied challenges. A. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 890, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court held "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); see also Smith, 494 U.S. at 879, 110 S.Ct. 1595 ("[T]he right to free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."). The District Court concluded that "Act 169 is a neutral law of general applicability to all Pennsylvania home schoolers and their home education programs, with no reference or special impact on religious practices...." Combs, 468 F.Supp.2d at 772. As a result, the District Court applied the rational basis test to Parents' challenge of Act 169 and upheld the provision. Id. at 777. In Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir.2004), we applied the standards for a neutral law of general applicability articulated by the Court in Hialeah. First, a law must be both facially and actually neutral. "A law is `neutral' if it does not target religiously motivated conduct *242 either on its face or as applied in practice." Blackhawk, 381 F.3d at 209; see also Hialeah, 508 U.S. at 534, 113 S.Ct. 2217 ("Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt."). Second, the government cannot advance its interests solely by targeting religiously motivated conduct. Instead, the regulation must be generally applicable. A law fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated. Blackhawk, 381 F.3d at 209; see also Hialeah, 508 U.S. at 543, 113 S.Ct. 2217 ("The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause."). Act 169 is a neutral law of general applicability. It neither targets religious practice nor selectively imposes burdens on religiously motivated conduct. Instead, it imposes the same requirements on parents who home-school for secular reasons as on parents who do so for religious reasons. Furthermore, nothing in the record suggests Commonwealth school officials discriminate against religiously motivated home education programs (e.g., denying approval of home education programs because they include faith-based curriculum materials). Parents contend Act 169 is not a law of general applicability and is tantamount to a licensing scheme for home-schooling. They cite Blackhawk, 381 F.3d at 209-10, for the proposition "that a statute with a waiver mechanism creates a regime of individualized, discretionary exemptions that triggers strict scrutiny." Parents Reply Br. at 8-9. Parents' depiction of Act 169 is mistaken and their reliance on Blackhawk is misplaced. As noted, there are four ways to fulfill the compulsory education requirement. None of the options is an exemption from the compulsory education law. All four require that a child be educated in the required subjects for the required period. Furthermore, all parents who choose the home education program alternative, whether for religious or secular reasons, are required to fulfill the Act 169 requirements. Parents cite no statutory waiver mechanism that gives the school districts the authority to waive or exempt some parents from the disclosure and review requirements. In Blackhawk, the Pennsylvania Wildlife Code contained specific statutory exemptions authorizing the director of the Game Commission to waive a permit fee "where hardship or extraordinary circumstance warrants." Id. at 205. Further, the court stated: "[w]e are not presented here with a neutral and generally applicable [provision] that is uniformly imposed without allowing individualized exemptions. Under Smith, such a scheme ... would not trigger strict scrutiny, and a person seeking to be excused [from the provision's requirements] on religious grounds would be unlikely to prevail." Id. at 212. Act 169 is a neutral law of general applicability and does not allow individualized exemptions. Blackhawk is distinguishable. Since Act 169 is a neutral law of general applicability, we will apply rational *243 basis review unless an exception to the Smith rule applies. "[R]ational basis review requires merely that the action be rationally related to a legitimate government objective." Tenafly Eruv Ass'n, Inc. v. Tenafly, 309 F.3d 144, 165 n. 24 (3d Cir.2002). "Under rational basis review, `a statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not that basis has a foundation in the record.'" Lighthouse Inst., 510 F.3d at 277 (quoting Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)). The Commonwealth has a legitimate interest in ensuring children taught under home education programs are achieving minimum educational standards and are demonstrating sustained progress in their educational program. See, e.g., Bd. of Educ. v. Allen, 392 U.S. 236, 245-47 & n. 7, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) ("[A] substantial body of case law has confirmed the power of the States to insist that attendance at private schools, if it is to satisfy state compulsory-attendance laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction.... [I]f the State must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular educational function."); Pierce v. Soc.'y of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (acknowledging the "power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils"). In Brown v. Board of Education, the Supreme Court noted the importance of education and the meaningful role the state plays in preparing a child for citizenship and adult life: Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Act 169's disclosure requirements and corresponding school district review rationally further these legitimate state interests. Accordingly, Act 169 survives rational basis review. B. Parents assert their claim falls within a "hybrid-rights" exception the Supreme Court discussed in Smith: The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, [310 U.S., at 304-307, 60 S.Ct. 900] (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause *244 he deemed nonreligious); Murdock v. Pennsylvania, [319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943) ] (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, [321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944) ] (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, [268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) ], to direct the education of their children, see Wisconsin v. Yoder, [406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ] (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school). Smith, 494 U.S. at 881, 110 S.Ct. 1595. Parents contend Act 169 substantially burdens both their free exercise of religion and their fundamental right as parents, under the Fourteenth Amendment, to direct the education and upbringing of their children. Accordingly, they invoke the hybrid-rights exception of Smith, seeking strict scrutiny review. Alternatively, Parents contend that, notwithstanding our hybrid-rights determination, Wisconsin v. Yoder remains good law and the same constitutional test applies here. 1. Although we have discussed the Smith hybrid-rights theory in prior opinions, its meaning and application remains an open question in our circuit. See Blackhawk, 381 F.3d at 207 (noting, while discussing Smith, "the Court did not overrule prior decisions in which `hybrid claims' ... had prevailed against `neutral, generally applicable laws,'" but deciding case on other grounds); Tenafly, 309 F.3d at 165 n. 26 (noting "[s]trict scrutiny may ... apply when a neutral, generally applicable law incidentally burdens" hybrid rights); Salvation Army v. Dep't of Cmty. Affairs, 919 F.2d 183, 200 (3d Cir.1990) (finding "[b]ecause the present controversy does not concern any state action directly addressed to religion, [The Salvation Army] cannot receive protection from the associational right derived from the free exercise clause"). We have never decided a case based on a hybrid-rights claim, let alone the type of a hybrid-rights claim invoked here — one based on the Free Exercise Clause and the companion right to direct a child's upbringing. Smith's hybrid-rights theory has divided our sister circuits. Some characterize the theory as dicta and others use different standards to decide whether a plaintiff has asserted a cognizable hybrid-rights claim. The United States Courts of Appeals for the Second and Sixth Circuits have concluded the hybrid-rights language in Smith is dicta. See Leebaert v. Harrington, 332 F.3d 134, 143 (2d Cir.2003) (citing Knight v. Connecticut Dep't of Pub. Health, 275 F.3d 156, 167 (2d Cir.2001)); Watchtower Bible & Tract Soc'y of New York, Inc. v. Stratton, 240 F.3d 553, 561-62 (6th Cir.2001), rev'd on other grounds, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002); Kissinger v. Bd. of Trs. of Ohio State Univ., Coll. of Veterinary Med., 5 F.3d 177, 180 (6th Cir.1993). Furthermore, the United States Court of Appeals for the Sixth Circuit views the hybrid-rights exception as "completely illogical," Kissinger, 5 F.3d at 180, and the United States Court of Appeals for the Second Circuit "can think of no good reason for the standard of review to vary simply with the number of constitutional rights that the plaintiff asserts have been violated," Leebaert, 332 F.3d at 144.[20] Accordingly, *245 when faced with a neutral law of general applicability, both appellate courts decline to allow the application of strict scrutiny to hybrid-rights claims and instead apply Smith's rational basis standard. See Leebaert, 332 F.3d at 144 ("`[A]t least until the Supreme Court holds that legal standards under the Free Exercise Clause vary depending on whether other constitutional rights are implicated, we will not use a stricter legal standard' to evaluate hybrid claims." (quoting Kissinger, 5 F.3d at 180)). The United States Courts of Appeals for the First Circuit and District of Columbia have acknowledged that hybrid-rights claims may warrant heightened scrutiny, but have suggested that a plaintiff must meet a stringent standard: the free exercise claim must be conjoined with an independently viable companion right. See Henderson v. Kennedy, 253 F.3d 12, 19 (D.C.Cir.2001) (rejecting the "hybrid claim" argument that "the combination of two untenable claims equals a tenable one"); E.E.O.C. v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C.Cir.1996) (finding that the EEOC's violation of the Establishment Clause triggered the hybrid-rights exception); Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 18-19 (1st Cir.2004) (citing Gary S. v. Manchester Sch. Dist., 241 F.Supp.2d 111, 121 (D.N.H.2003)) (affirming, for the same reasons, the district court's rejection of a hybrid-rights claim because the free exercise claim was not conjoined with an independently viable companion claim); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 539 (1st Cir.1995) (rejecting a hybrid-rights claim because "[plaintiff's] free exercise challenge is ... not conjoined with an independently protected constitutional protection").[21] This stringent approach requiring an independently valid companion claim has received criticism, most notably that such a requirement would make the free exercise claim superfluous. See Hialeah, 508 U.S. at 567, 113 S.Ct. 2217 (Souter, J., concurring) ("[I]f a hybrid claim is one in which a *246 litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in what Smith calls the hybrid cases to have mentioned the Free Exercise Clause at all."); Axson-Flynn v. Johnson, 356 F.3d 1277, 1296-97 (10th Cir. 2004) ("[I]t makes no sense to adopt a strict standard that essentially requires a successful companion claim because such a test would make the free exercise claim unnecessary. If the plaintiff's additional constitutional claim is successful, he or she would typically not need the free exercise claim and the hybrid-rights exception would add nothing to the case."). The United States Courts of Appeals for the Ninth and Tenth Circuits[22] recognize hybrid rights and require a plaintiff to raise a "colorable claim that a companion right has been violated." San Jose Christian Coll. v. Morgan Hill, 360 F.3d 1024, 1032 (9th Cir.2004); see also Axson-Flynn, 356 F.3d at 1297. They define colorable as "a fair probability or a likelihood, but not a certitude, of success on the merits." San Jose Christian Coll., 360 F.3d at 1032; Axson-Flynn, 356 F.3d at 1297. They characterize this fact-driven, case-by-case inquiry as "a middle ground between two the extremes of painting hybrid-rights claims too generously and construing them too narrowly." Axson-Flynn, 356 F.3d at 1295. A plaintiff cannot "simply invoke the parental rights doctrine, combine it with a claimed free-exercise right, and thereby force the government to demonstrate the presence of a compelling state interest." Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 700 (10th Cir.1998). Nor is one required to establish that the challenged law independently violates a companion constitutional right alone, without any recognition of the Free Exercise Clause. By requiring a "colorable claim" that a companion right has been violated, the United States Courts of Appeals for the Ninth and Tenth Circuits examine "the claimed infringements on the party's claimed rights to determine whether either the claimed rights or the claimed infringements are genuine." Swanson, 135 F.3d at 699. Thus, in order to trigger heightened scrutiny, a hybrid-rights plaintiff must show a fair probability or likelihood, but not a certitude, of success on the merits of his companion constitutional claim. In Smith, the Court asserted that the case before it "[did] not present ... a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right." 494 U.S. at 882, 110 S.Ct. 1595. The criterion applicable to a free exercise claim combined with a companion constitutional right was left undefined. See, e.g., Kissinger, 5 F.3d at 180 (noting that the Smith Court "did not explain how the standards under the Free Exercise Clause would change depending on whether other constitutional rights are implicated"). Since Smith, a majority of the Court has not confirmed the viability *247 of the hybrid-rights theory.[23] Until the Supreme Court provides direction, we believe the hybrid-rights theory to be dicta. 2. Even if we were to apply the approaches used by our sister circuits — "colorable" claim approach and independently viable claim approach — we would find Parents' arguments unconvincing. Under either approach, we must determine whether Parents can establish a hybrid-rights claim by asserting combined violations of the Free Exercise Clause and the companion right of a parent under the Fourteenth Amendment to direct a child's education. Parents have not presented an independent or colorable companion claim and, accordingly, cannot establish a valid hybrid-rights claim. "The Due Process Clause guarantees more than fair process.... The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 719-20, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). In Glucksberg, the Supreme Court articulated the fundamental rights protected by the Due Process Clause. Id. at 719-20, 117 S.Ct. 2258. Included in the list was the right "to direct the education and upbringing of one's children." Id. at 720, 117 S.Ct. 2258 (citing Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), and Pierce v. Soc'y of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)); see also Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) ("[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children."). Parents rely on three Supreme Court cases to generally identify a parent's constitutional right to direct a child's education. See Meyer v. Nebraska, 262 U.S. 390, 401-03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (holding state law prohibiting foreign language instruction violated the "power of parents to control the education of their own"); Pierce, 268 U.S. at 535-36, 45 S.Ct. 571 (holding state compulsory education law requiring students to attend solely public schools "unreasonably interferes with the liberty of parents ... to direct the upbringing and education of children under their control"); Wisconsin v. Yoder, 406 U.S. 205, 214, 234-36, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (finding a compulsory education system, as applied to the Amish, to violate the Free Exercise Clause and the "traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, `prepare (them) for additional obligations'"). But the particular right asserted in this case — the right to be free from all reporting requirements and "discretionary" state oversight of a child's home-school education — has never been recognized. Although Parents assert the fundamental nature of their general right, it is a limited one. We have noted "[t]he Supreme Court has never been called upon to define the precise boundaries of a parent's *248 right to control a child's upbringing and education. It is clear, however, that the right is neither absolute nor unqualified." C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3d Cir.2005). "The case law in this area establishes that parents simply do not have a constitutional right to control each and every aspect of their children's education and oust the state's authority over that subject." Swanson, 135 F.3d at 699.[24] Furthermore, [t]he Court has repeatedly stressed that while parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction, they have no constitutional right to provide their children with private school education unfettered by reasonable government regulation. Runyon v. McCrary, 427 U.S. 160, 178, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).[25] In addition to Yoder, discussed infra, Parents rely on Meyer and Pierce for foundational support. Read together, the cases evince the principle that the state cannot prevent parents from choosing a specific educational program — whether it be religious instruction at a private school or instruction in a foreign language. That is, the state does not have the power to "standardize its children" or "foster a homogenous people" by completely foreclosing the opportunity of individuals and groups to choose a different path of education. Brown, 68 F.3d at 533; see also Runyon, 427 U.S. at 177, 96 S.Ct. 2586 (stressing the "limited scope" of Meyer and Pierce). In the present case, Parents are given the freedom to choose a "different path of education" — home-schooling — subject only to the Act 169 requirements. The school districts do not have any role in selecting the program Parents wish to follow. Parents are unable to point to a single instance in which the school districts have limited or interfered with their religious teachings and/or materials. In her deposition, Shari Nelson acknowledged that her local school district never questioned or rejected her affidavits and did not interfere with her religious content choices. Mrs. Nelson noted she was never concerned that the local school district would reject her children's portfolio if it contained work product with a religious subject matter. Similarly, Maryalice Newborn acknowledged that her local school district never questioned the appropriateness of her home education program or its content. Parents nevertheless contend that the Commonwealth's "subjective" and "discretionary" review over the Act 169 disclosures violates their right to control their children's education. They insist any review *249 of the home education programs must be purely "objective." In other words, they contend the Commonwealth usurps the religious and parental rights of parents when an official makes a limited determination of whether a child has "sustained progress in the overall program." Parents have not articulated their definition of "objective" in their brief. When questioned during oral argument, Parents' counsel was unable or unwilling to provide a concrete explanation or example of an "objective" review. Furthermore, it is difficult to accept Parents' assertion that review of a child's educational progress can truly be objective. The grading of an essay, even on a pass/fail scale, will always be imbued with some element of subjectivity. As noted, there is no recognized right for parents to educate their children "unfettered by reasonable government regulation." Runyon, 427 U.S. at 178, 96 S.Ct. 2586. The Court in Pierce expressly acknowledged "`the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils.'" Id. (quoting Pierce, 268 U.S. at 534, 45 S.Ct. 571); see also Meyer, 262 U.S. at 402, 43 S.Ct. 625 (noting "[t]he power of the state to compel attendance at some school and to make reasonable regulations for all schools ... [was] not questioned" by the parties).[26] Furthermore, there is "a distinction between actions that strike at the heart of parental decision-making authority on matters of the greatest importance and other actions that ... are not of constitutional dimension." C.N., 430 F.3d at 184. Parents identify the general right to control the education of one's child. But Parents do not have a constitutional right to avoid reasonable state regulation of their children's education. Act 169's reporting and superintendent review requirements ensure children taught in home education programs demonstrate progress in the educational program. The statute does not interfere, or authorize any interference, with Parents' religious teachings and/or use of religious materials. Parents' claim under the Fourteenth Amendment is of insufficient constitutional dimension to state either an independently viable or colorable claim. Accordingly, under both the stringent and colorable hybrid-rights approaches of our sister circuits, Parents have not asserted a "hybrid-rights claim." 3. Parents also contend that, notwithstanding the different standards articulated by the circuits regarding hybrid-rights claims, they raise the same type of claim as the parents in Yoder. They contend that since Yoder is still good law, parents claiming a religious-parental exemption to a neutral law of general applicability get the benefit *250 of the traditional Free Exercise test. Parents assert that "it is beyond legitimate question that the same constitutional tests employed in Yoder must be used here to evaluate these Parents' religious-parental claims." Parents Br. at 27. In Yoder, the Court granted a religious-based exception to a regulation of general applicability. C.f. John E. Nowak & Ronald D. Rotunda, Constitutional Law § 17.6 (7th ed. 2004) ("Yoder stands out as the one instance in which the Court required the government to grant to persons who could not comply with the law due to their religious beliefs an exemption from a law regulating the conduct of all persons...."). But the unique burden suffered by the Amish, combined with the Supreme Court's limiting language, distinguish Yoder from this case. In response to objections by Amish citizens, the Yoder Court held that the First Amendment required a partial exemption from a Wisconsin compulsory high-school education law requiring children to attend public or private school until age 16. The Amish refused to send their children, ages 14 and 15, to school after completion of the eighth grade of schooling. The Court noted the Amish's "convincing showing:" the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State's enforcement of a statute generally valid as to others. Yoder, 406 U.S. at 235, 92 S.Ct. 1526. The Court applied a heightened level of scrutiny and found the State's interest lacking. Id. at 235-36, 92 S.Ct. 1526. Parents favor a broad reading of Yoder and insist that it applies to all citizens. But Yoder's reach is restricted by the Court's limiting language and the facts suggesting an exceptional burden imposed on the plaintiffs. In Yoder, the religious beliefs of the Amish were completely integrated with their community and "mode of life."[27]Yoder, 406 U.S. at 235, 92 S.Ct. 1526. As a result, compulsory attendance would "substantially interfer[e] with the religious development of the Amish child and his integration into the way of life of the Amish faith community." Id. at 218, 92 S.Ct. 1526. Accordingly, the Wisconsin law carried "a very real threat of undermining the Amish community and religious practice," id., and placed the continued survival of Amish communities in "danger," id. at 218 n. 9, 92 S.Ct. 1526. Compulsory attendance "prevented these Amish parents from making fundamental decisions regarding their children's religious upbringing and effectively overrode their ability to pass their religion on to their children, as their faith required." Parker, 514 F.3d at 99-100 (citing Yoder, 406 U.S. at 233-35, 92 S.Ct. 1526). Before applying a heightened level of scrutiny, the Court wanted to ensure that the "Amish religious faith and their mode of life are, as they claim, inseparable and interdependent." Yoder, 406 U.S. at 215, 92 S.Ct. 1526. Recognizing the exceptional nature of the Amish's showing, the Court held: "when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a `reasonable relation to some purpose within the competency of the State' is required to sustain the validity *251 of the State's requirement under the First Amendment." Id. at 233, 92 S.Ct. 1526; see also Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1067 (6th Cir.1987) ("Yoder rested on such a singular set of facts that we do not believe it can be held to announce a general rule...."). The United States Court of Appeals for the Second Circuit has interpreted the central underpinning of Yoder to be the "threat to the Amish community's way of life, posed by a compulsory school attendance statute." Leebaert, 332 F.3d at 144. In Leebaert, a parent alleged a violation of the First and Fourteenth Amendments because a school refused to excuse his son from a mandatory health and education course. While not questioning the sincerity of the parent's beliefs, the Second Circuit found the claims were not governed by Yoder. See id. (plaintiff did not allege that "his community's entire way of life is threatened;" plaintiff "does not assert that there is an irreconcilable Yoder-like clash between the essence of [plaintiff's] religious culture and the mandatory health curriculum that he challenges"); see also Brown, 68 F.3d at 539 (distinguishing Yoder because a one-time compulsory attendance at a health program did not threaten "their entire way of life"). In the pre-Smith case New Life Baptist Church Academy v. East Longmeadow, 885 F.2d 940 (1st Cir.1989), a religious school asserted a remarkably similar claim to Parents' claim. The New Life Baptist Church Academy refused to comply with state rules and procedures for determining the adequacy of the secular education provided by the school because it believed "it is a sin to `submit' [its] educational enterprise to a secular authority for approval." Id. at 941. Finding that "the weight of legal precedent is strongly against the Academy's position," id. at 950, the United States Court of Appeals for the First Circuit concluded that "this case differs significantly from [Yoder]," id. at 951.[28] It noted that the state's procedures do not threaten interference with religious practices, prayer, or religious teaching; and the record, while indicating a sincere religious scruple, does not suggest that enforcement of the [state] procedures would destroy a religious community's way of life. Nor does the record support the view that the Academy, left on its own, would provide "ideal" or even adequate secular education. All these factors make this case quite unlike Yoder. Id. (citations omitted). Similarly, the claim raised by the Amish parents in Yoder can be distinguished from the claim raised by Parents here. Act 169 does not threaten Parents' or their community's entire mode of life. Even though Parents are required to keep records and submit them for review, they are in complete control of the religious upbringing of their children. In fact, Parents are unable to point to even one occasion in which the school districts have questioned their religious beliefs, texts, or teachings. The dispute in Yoder involved an additional one or two years of education at public schools versus "vocational" education at home. The Amish allowed their children to attend public schools until eighth grade and sought only a partial *252 exemption from the state's compulsory school attendance law. Furthermore, the Court in Yoder assumed the state would regulate the Amish's home education to ensure the satisfaction of educational standards. See Yoder, 406 U.S. at 236, 92 S.Ct. 1526 ("The States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context, reasonable standards cannot be established concerning the content of the continuing vocational education of Amish children under parental guidance...."). In contrast, Parents request a full exemption from Act 169, seeking to administer their children's entire primary and secondary education without any review by the Commonwealth. They cite Yoder to challenge the government's authority to engage in the regulation and discretionary review of their home education programs.[29] Parents' claim is distinguishable from the Amish parents' claim in Yoder. C. Since Act 169 survives rational basis review and since Parents have failed to establish that an exception to Smith's neutral law of general applicability rule applies, Parents' federal constitutional claims fail. IV. In addition to their federal constitutional claims, Parents assert a state statutory claim under the Religious Freedom Protection Act, 71 Pa. Stat. Ann. §§ 2401-2407. In order to obtain relief under RFPA, Parents must prove by clear and convincing evidence that their "free exercise of religion has been burdened or likely will be burdened in violation of [§ 2404]."[30]Id. § 2405(f). If Parents satisfy this burden, the school districts are *253 required to prove, by a preponderance of the evidence, that Act 169 furthers a compelling interest and is the least restrictive means of furthering the interest. 71 Pa. Stat. Ann. § 2404(a)-(b). Thus, as a threshold matter, Parents must prove, by clear and convincing evidence, that their free exercise of religion has or will likely be "substantially burdened."[31] The District Court concluded Parents failed to establish by clear and convincing evidence that Act 169 substantially burdens their free exercise of religion. Combs, 468 F.Supp.2d at 771. It granted the school districts' motion for summary judgment on both the facial and as-applied challenges based on the RFPA. Id. Parents assert error, contending the District Court either failed to review or misapplied the actual text of the statute. Further, they argue that because the fourth definition of "substantially burden" is clear and unambiguous, the District Court improperly resorted to extraneous sources like legislative history and federal cases interpreting the federal Free Exercise Clause and the federal Religious Freedom Restoration Act. Parents invoke the fourth definition of "substantially burden" — "[c]ompels conduct or expression which violates a specific tenet of a person's religious faith." 71 Pa. Stat. Ann. § 2403. Parents contend Act 169 compels "conduct or expression" by requiring them to submit the content and records of their children's educational progress to the school districts. Because these submissions are subject to review and approval by the school districts, Parents contend Act 169 violates a "specific tenet" of their religious faith — that "education of their children, not merely the `religious education,' is `religion' and is assigned by God to the jurisdiction of the family." Parents Br. at 64. The construction and application of RFPA's fourth definition of "substantially burden" is an issue of first impression[32] and a matter of Pennsylvania law. As noted, the District Court's jurisdiction was based upon 28 U.S.C. §§ 1331, 1343(a)(3), 1367 and 1441. Because we affirm the District Court's grant of summary judgment on all of Parents' federal claims, only their state law claim remains. Under 28 U.S.C. § 1367(c), "district courts may decline to exercise supplemental jurisdiction" over a state law claim if "the claim raises a novel or complex issue of State law ... [or] the district court has dismissed all claims over which it has original jurisdiction." Id. Section 1367(c) provides courts "the discretion to refuse to exercise supplemental jurisdiction when `values of judicial economy, convenience, fairness, and comity' counsel that the district court remand state claims to a state forum." *254 Hudson United Bank v. LiTenda Mortgage Corp., 142 F.3d 151, 157 (3d Cir.1998) (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997)). A decision to remand under section 1367 "reflects the court's judgment ... that at the present stage of litigation it would be best for supplemental jurisdiction to be declined so that state issues may be adjudicated by a state court." Hudson United Bank, 142 F.3d at 158 (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Parents' only remaining claim involves the interpretation of a state statute on which there is no Pennsylvania precedent. Because all federal issues have been decided on summary judgment and since Parents' RFPA claim raises a novel and potentially complex issue of State law, we will decline to exercise supplemental jurisdiction over Parents' pendent state law claim. 28 U.S.C. § 1367(c).[33] V. For the foregoing reasons, we will affirm the District Court's grant of summary judgment in favor of the school districts on Parents' federal constitutional claims, vacate the District Court's holding regarding the pendent RFPA claim, and remand the case to the District Court with instructions to remand the RFPA claim to state court. SCIRICA, Chief Judge, concurring. Section 1367(c) provides: "The district courts may decline to exercise supplemental jurisdiction over a claim ... if (1) the claim raises a novel or complex issue of State law ... [or] (3) the district court has dismissed all claims over which it has original jurisdiction...." 28 U.S.C. § 1367(c). The District Court here exercised supplemental jurisdiction over Parents' state law Religious Freedom Protection Act claim. The claim was fully presented to and adjudicated by the District Court. I would decide the issue. As noted, in order to obtain relief under RFPA, Parents must prove by clear and convincing evidence that their free exercise of religion has been substantially burdened or likely will be substantially burdened. Id. § 2404, 2405(f). If Parents satisfy this burden, the school districts are required to prove, by a preponderance of the evidence, that Act 169 furthers a compelling interest and is the least restrictive means of furthering the interest. 71 Pa. Stat. Ann. § 2404(a)-(b). Thus, as a threshold matter, Parents must prove, by clear and convincing evidence, that their free exercise of religion has or will likely be "substantially burdened." Parents have made conflicting claims as to what conduct or review by the school districts constitutes a substantial burden. In their complaint, Parents challenge all state review of their home education programs.[34] But deposition testimony reveals *255 some variance by Parents on the permissible level of state oversight.[35] Nevertheless, in their District Court briefs, Parents again contended that "placing of authority in any state agency violates their sincerely held religious beliefs" and that "it is a specific tenet of their religious faith that the State lacks the jurisdiction over education and the family that Act 169 asserts." Parents Br. Opp'n to Def.'s Mot. Summ. J. at 9-10, Apr. 14, 2006.[36] At oral argument, however, Parents' counsel again shifted the focus of their claims and appeared to concede that the objectionable portion of Act 169 was not the record keeping, testing, or third party evaluation, but the school districts' independent, "discretionary" review of their children's educational progress. But assuming a proper concession, this possible alteration of the claim was not made before the District Court. I. As noted, the construction and application of RFPA's fourth definition of "substantially burden" is an issue of first impression. Because this is a matter of Pennsylvania law, "we must predict how the Pennsylvania Supreme Court, if faced with the identical issue, would construe the statute." Prudential Prop. & Cas. Ins. Co. v. Pendleton, 858 F.2d 930, 934 (3d Cir.1988).[37] *256 In construing the meaning of "substantially burden," the District Court relied on the plain language of the statute, the analysis of "substantially burden" in the "context of Free Exercise Clause and similar freedom of religion restoration acts," and the intent of the General Assembly to restore the "traditional (pre-Smith) free exercise of religion standards." Combs, 468 F.Supp.2d at 771. As noted, Parents contend the District Court either ignored or misapplied the plain language of the statute and improperly included legislative history and pre-Smith decisions in its analysis. II. Parents rely exclusively upon the RFPA's fourth definition of "substantially burden" — "an agency action which ... [c]ompels conduct or expression which violates a specific tenet of a person's religious faith." 71 Pa. Stat. Ann. § 2403. Parents contend they are compelled, under threat of truancy charges, to submit the portfolio of their children's work product to the school districts for discretionary review. Parents describe the act of turning over the portfolio for discretionary review as "conduct or expression." They point to the exercise of editorial judgment and creativity on the part of the home education supervisor as evidence of this expression.[38] Moreover, Parents assert a "specific tenet" based upon certain religious beliefs. First, Parents maintain their faith teaches that "education of their children, not merely the `religious education,' is `religion.'" Parents Br. at 64. Parents cite, inter alia, Deuteronomy 6:5-7(NIV) ("Love the Lord your God with all your heart and with all your soul and with all your strength. These commandments that I give you today are to be upon your hearts. Impress them on your children. Talk about them when you sit at home and when you walk along the road, when you lie down and when you get up."), Psalms 145:4(NIV) ("One generation will commend your works to another; they will tell of your mighty acts."), Ephesians 6:4(NIV) ("Fathers, do not exasperate your children; instead, bring them up in the training and instruction of the Lord."), and Proverbs 22:6 ("Train up a child in the way he should go and when he is old, he will not depart from it."), for the proposition that God has directly called upon them to home educate their children. Second, Parents contend God has assigned religious matters to the exclusive jurisdiction of the family, citing, inter alia, Luke 20:25 ("Then render to Caesar the things that are Caesar's, and to God the things that are God's."), Psalms 127:3(NIV) ("Sons are a heritage from the Lord, children a reward from him."), Matthew 7:6 ("Don't give what is holy to unholy people."), 1 Corinthians 10:31 ("Whatever you do, do it all for the glory of God."), 2 Timothy 2:15 ("Be diligent to present yourself approved to God."), 1 Thessalonians 2:4 ("We are not trying to please men but God, who tests our hearts."), and Acts 5:29 ("We must obey God rather than men."). Parents contend Act 169 replaces the headship of Christ over the family, and their headship over their children, with the headship of the state over the family, citing, inter alia, 1 Corinthians 11:3(NIV) ("Now I want you to realize that the head of every man is Christ, and the head of the woman is man, and the head of Christ is God."), Ephesians 5:23(NIV) ("For the husband is the head of the wife as Christ is *257 the head of the church, his body, of which he is the Savior."), and Ephesians 6:1(NIV) ("Children, obey your parents in the Lord, for this is right.").[39] As a result of this "specific tenet," Parents assert a sincerely held religious belief that the school districts have no authority to compel reporting or to engage in discretionary review of their home education program. The term "specific tenet" is not defined in the Religious Freedom Protection Act or 1 Pa. Cons.Stat. § 1991.[40] The Oxford English Dictionary defines "specific" as "precise or exact in respect of fulfilment, conditions, or terms; definite, explicit" and "exactly named or indicated, or capable of being so; precise, particular." 2 Oxford English Dictionary 2949 (Compact ed.1971); see also Merriam-Webster's Dictionary 1132 (9th ed.1990) (defining "specific" as "sharing or being those properties of something that allow it to be referred to a particular category" or as "free from ambiguity"). "Tenet" is defined as "[a] doctrine, dogma, principle, or opinion, in religion, philosophy, politics or the like, held by a school, sect, party, or person." 2 Oxford English Dictionary 3260 (Compact ed.1971); see also Merriam-Webster's Dictionary 1215 (9th ed.1990) (defining "tenet" as "a principle, belief, or doctrine generally held to be true; especially: one held in common by members of an organization, group, movement, or profession"). In the religious context, the term "specific tenet" is difficult to define.[41] Even though a religious concept may be stated generally, it may, in the believer's mind, be a specific religious tenet. At one end of the spectrum, specificity may be relatively straightforward and easy to identify because the "specific tenet" is observed as an outward manifestation of a particular religious belief. For example, in Fraternal Order of Police Newark Lodge No. 12 v. Newark, 170 F.3d 359 (3d Cir.1999), two Sunni Muslim officers successfully challenged an internal order requiring all police officers to shave their beards. Plaintiffs *258 articulated a religious commandment to grow and wear a beard. Id. at 360-61; see also Deveaux v. Philadelphia, No. 3103 Feb. Term 2005, 2005 WL 1869666, at *1-2 (Pa.Com.Pl. July 14, 2005) (granting a preliminary injunction preventing the city from suspending a practicing Muslim firefighter without pay for refusing to shave his beard). In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), a member of the Seventh-day Adventist Church challenged state unemployment compensation rules that conditioned the availability of benefits upon her willingness to work under conditions forbidden by her religion. The Court acknowledged that "the prohibition against Saturday labor is a basic tenet of the Seventh-day Adventist creed, based upon that religion's interpretation of the Holy Bible." Id. at 399 n. 1, 83 S.Ct. 1790. Furthermore, religious dietary laws would appear to qualify as specific tenets. In Williams v. Bitner, 455 F.3d 186 (3d Cir.2006), a Muslim inmate assigned to kitchen duty was disciplined for refusing to aid others in the consumption of pork. Citing the Koran ("He has forbidden you... the flesh of swine") and Chapter Eleven of Leviticus in the Old Testament, Williams averred that handling and serving pork would violate his religious faith. Id. at 187. Our court held that "prison officials must respect and accommodate, when practicable, a Muslim inmate's religious beliefs regarding prohibitions on the handling of pork" and affirmed the denial of qualified immunity. Id. at 194. See also DeHart v. Horn, 390 F.3d 262, 272-75 (3d Cir.2004) (discussing a Buddhist prisoner's Religious Land Use and Institutionalized Persons Act claim based upon his request for a special diet). At the other end of the spectrum are claims similar to Parents'. These claims cite more general and less obviously manifested concepts. This is not to undervalue these tenets which, as revelations, may be fundamental to one's religious beliefs. In these situations, however, it may be difficult to determine whether a litigant's citations to scripture or to general religious concepts articulate a "specific tenet." Also problematic in this analysis are religious tenets that may be viewed as both general and specific. See, e.g., Exodus 20:7 ("Thou shalt not take the name of the LORD thy God in vain, for the LORD will not hold him guiltless that taketh his name in vain."); Exodus 20:12 ("Honor thy father and thy mother that thy days may be long upon the land which the LORD thy God giveth thee."). Furthermore, the RFPA definition of "substantially burden" appears to create some tension between state and federal law. The United States Supreme Court has cautioned against making religious interpretations in the First Amendment context. See, e.g., Smith, 494 U.S. at 887, 110 S.Ct. 1595 ("Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim."); id. at 886-87, 110 S.Ct. 1595 ("It is no more appropriate for judges to determine the `centrality' of religious beliefs before applying a `compelling interest' test in the free exercise field, than it would be for them to determine the `importance' of ideas before applying the `compelling interest' test in the free speech field."); Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 715, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) ("Courts should not undertake to dissect religious beliefs ... because [the believer's] beliefs are not articulated with the clarity and precision that a more sophisticated person might employ."); id. at 716, 101 S.Ct. 1425 ("Courts are not arbiters of scriptural interpretation."). Additionally, the Religious *259 Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc to 2000cc-5, "does not permit a court to determine whether the belief or practice in question is `compelled by, or central to, a system of religious belief.'" Washington v. Klem, 497 F.3d 272, 277 (3d Cir.2007) (quoting 42 U.S.C. § 2000cc-5(7)(A)). Nevertheless, the Pennsylvania General Assembly's statutory definition of "substantially burden" appears to require courts to inquire into, inter alia, whether an activity is fundamental to a person's religion or whether a person is compelled to violate a specific tenet of their religious faith. See 71 Pa. Stat. Ann. § 2403 (defining substantially burden as "an agency action which ... [d]enies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion [or c]ompels conduct or expression which violates a specific tenet of a person's religious faith.").[42] Arguably, a violation of a general tenet might substantially burden one's religious faith. But that was not what the Pennsylvania General Assembly proscribed. The statutory language shifts the burden of establishing a compelling interest and least restrictive means to the state actor only after the violation of a specific tenet, which must mean something different from a general tenet. As noted, the dilemma is especially striking because, in the view of the believer, the violation of a general tenet may very well substantially burden one's religious faith. Nevertheless, given the normal usage of the term, it is difficult to see that Parents have cited a specific tenet that would prohibit reporting requirements and discretionary school district review of their children's educational progress. Instead, they reference general, but nonetheless important, religious tenets, see, e.g., Luke 20:25 ("Then render to Caesar the things that are Caesar's, and to God the things that are God's."); 2 Timothy 2:15 ("Be diligent to present yourself approved to God."), to assert that local school districts have no authority to conduct a limited review of their children's educational progress. In addition, under RFPA's fourth definition of "substantially burden," a party must establish a nexus between the specific tenet and the compelled violation, a nexus that Parents have not established here. Furthermore, the inconsistencies in Parents' complaints, depositions, briefs and appellate oral argument suggest the difficulty in identifying a specific tenet (as opposed to a general tenet) and its attendant consequences. In their complaints, briefs to the district court, and some deposition testimony, Parents asserted a "specific tenet" that the state "lacks the jurisdiction" over their children's education, i.e., that no level of state review would be permissible.[43]See Parents Br. Opp'n to Def.'s Mot. Summ. J. at 9-10, Apr. 14, 2006. But at oral argument, Parents implied that their asserted "tenet" might allow non-discretionary review of their home education programs. See also Parents Reply *260 Br. at 8 ("Parents do not contend that the government may not establish any standards to govern home education. Rather, the Parents' core objection ... is that their religious beliefs forbid them from submitting their religious education of their children to the discretionary review of a governmental official."). Yet it is problematic whether this interpretation of "non-discretionary" review would amount to any review at all. Based upon the plain language of the RFPA, Parents have failed to prove by clear and convincing evidence that they have been compelled or will likely be compelled to violate a specific tenet of their religious faith. Accordingly, Parents cannot sustain their cause of action under the Pennsylvania RFPA. III. Even finding the term "specific tenet" in the RFPA to be ambiguous, the decision would be the same. As noted, the purpose of statutory interpretation "is to ascertain and effectuate the intention of the General Assembly." 1 Pa. Cons.Stat. § 1921(a). Under section 1921(c), when a statute's words are ambiguous, the intention of the General Assembly "may be ascertained" by considering an array of factors.[44] The historical background and legislative history of Pennsylvania's RFPA places it in context and assists in interpreting the statute. Much of this depends on the development of federal First Amendment jurisprudence and its influence on Pennsylvania law. Prior to 1990, legislation and government regulation burdening the free exercise of religion was subject to the Sherbert test. See Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). Under this rule, if the government substantially burdened a person's constitutional free exercise rights, then it was required to justify the burden with a compelling state interest and with proof that the least restrictive means was employed. Id. at 402-04, 83 S.Ct. 1790. See also Jimmy Swaggart Ministries v. Bd. of Equalization of California., 493 U.S. 378, 384-85, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990) ("Our cases have established that `the free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.'" (quoting Hernandez v. Comm'r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989))). In 1990, the Supreme Court held that the Free Exercise Clause did not prohibit enforcement of a neutral law of general applicability supported by a rational basis. Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 890, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The Court concluded that the state could deny unemployment benefits due to work-related misconduct based upon an employee's religiously motivated ingestion and use of a drug; specifically, in that case, the ceremonial use of peyote. Id. Declining to apply the Sherbert balancing test, the Court noted that "the right of free exercise does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" *261 Id. at 879, 110 S.Ct. 1595 (quoting United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982)). Thus, Smith and its progeny "establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (citing Smith). The Smith Court noted that religious exemptions, while not constitutionally required, could be created through the political process. Smith, 494 U.S. at 890, 110 S.Ct. 1595 (citing several state statutes making "an exception to their drug laws for sacramental peyote use"). In 1993, Congress accepted the Court's invitation by enacting the Religious Freedom Restoration Act ("RFRA"), 107 Stat. 1488, 42 U.S.C. §§ 2000bb to 2000bb-4 (amended 2000). Congress sought to restore the compelling interest test articulated in Sherbert and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), "and to guarantee its application in all cases where free exercise of religion is substantially burdened." 42 U.S.C. § 2000bb. Applicable to "all Federal and State law," Pub.L. No. 103-141, § 6, 107 Stat. 1488, 1489 (1993), RFRA prohibited both the federal and state governments[45] from "substantially burden[ing] a person's exercise of religion" except through the least restrictive means of furthering a compelling interest. 42 U.S.C. § 2000bb-1. In 1997, the Supreme Court struck down RFRA as applied to the states[46] because RFRA exceeded the scope of Congress' enforcement power under section 5 of the Fourteenth Amendment. Boerne v. P.F. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). RFRA lacked a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520, 529-36, 117 S.Ct. 2157. In part a reaction to City of Boerne, Congress enacted the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to 2000cc-5, which addresses only land use regulations and the religious rights of institutionalized persons. Id. §§ 2000cc, 2000cc-1. RLUIPA prohibits both state and federal governments from imposing a "substantial burden" on the religious exercise of an institutionalized person unless it is the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc-1. Also, several states in addition to Pennsylvania passed their own religious freedom restoration or protection legislation.[47] Although there are differences among the various federal and state religious protection *262 statutes, most contain, at their core, the same fundamental structure and purpose. They recognize that neutral laws of general applicability may burden religious exercise as significantly as laws intended to interfere with religious exercise. The federal statutes, Pennsylvania's RFPA, and a majority of the state statutes also acknowledge the government need not justify every action having some effect on religious exercise. Under those statutes, only substantial burdens trigger heightened scrutiny.[48] RFPA's four definitions of "substantially burden" emphasize the importance of this threshold. See 71 Pa. Stat. Ann. § 2403 ("significantly constrains or inhibits"; "significantly curtails"; "denies ... a reasonable opportunity to engage in activities ... fundamental to the person's religion"; "violates a specific tenet of a person's religious faith.") (emphasis added). In our modern regulatory state, virtually all legislation (including neutral laws of general applicability) imposes an incidental burden at some level by placing indirect costs on an individual's activity. Recognizing this, legislatures have sought a balance between protecting free exercise of religion and preserving an effective police power. The federal government, Pennsylvania, and several other states have identified a substantiality threshold as the tipping point for requiring heightened justifications for governmental action.[49] Furthermore, by requiring proof of a "substantial burden" by clear and convincing evidence, Pennsylvania appears to have set a higher threshold than other religious restoration statutes. Compare 71 Pa. Stat. Ann. §§ 2404, 2405 (requiring "clear and convincing evidence" of substantial burden), with 42 U.S.C. § 2000cc-2(b) ("plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice ... substantially burdens the plaintiffs exercise of religion"), Warner, 887 So.2d at 1034 ("[T]he plaintiff bears the initial burden *263 of showing that a regulation constitutes a substantial burden...."), Diggs v. Snyder, 333 Ill.App.3d 189, 266 Ill.Dec. 478, 775 N.E.2d 40, 45 (2002) (requiring, under the Illinois Religious Freedom Restoration Act, plaintiff "to make a threshold showing" of substantial burden). As noted, Parents have not cited a specific tenet that would prevent adherence to the reporting requirements or prohibit discretionary School District review of their children's educational progress. Instead, they reference general, but important, religious tenets to support their claim that local school districts have no authority to conduct limited review of their home education programs. Such a broad interpretation of the term "specific tenet" would appear to read "specific" out of the statute. The occasion, necessity, and purpose of the RFPA do not support a finding, by clear and convincing evidence, that Parents are compelled or will likely be compelled to violate a specific tenet of their religious faith. Accordingly, Parents cannot prevail on their cause of action under the Pennsylvania RFPA. NOTES [1] We refer to Homer-Center School District, Joseph F. Marcoline, Norwin School District, Richard Watson, Franklin Regional School District, Stephen Vak, Bristol Township School District, Regina Cesario, Titusville Area School District, John D. Reagle, DuBois Area School District and Sharon Kirk collectively as the "school districts." [2] The "Parents" are Darrell and Kathleen Combs, Thomas and Timari Prevish, Mark and Maryalice Newborn, Thomas and Babette Hankin, Douglas and Shari Nelson, and Steven and Meg Weber. [3] Thomas and Babette Hankin have never complied with Act 169. [4] See 71 Pa. Stat. Ann. § 2405(b) (requiring, prior to bringing an action in court, the party to provide the agency with written notice); § 2405(d) (the agency "may remedy the substantial burden on the person's free exercise of religion" within 30 days of the written notice). Darrell and Kathleen Combs refused to submit the required affidavits and portfolios, thereby ceasing to comply with Act 169. [5] The District Court also rejected Parents' claims based upon the Establishment Clause of the First Amendment, the Due Process Clause of the Fourteenth Amendment and the Free Speech Clause of the First Amendment. Id. at 778. The Statement of Issues in Parents' brief only addresses claims under RFPA and the Free Exercise Clause. The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), 1367 and 1441. We have jurisdiction over the appeal under 28 U.S.C. § 1291. "We review a district court's grant of summary judgment de novo." Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 260 (3d Cir.2007) (citing Gottshall v. Consol. Rail Corp., 56 F.3d 530, 533 (3d Cir.1995)). Summary judgment is only appropriate if there are no genuine issues of material fact and the school districts are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "In reviewing the District Court's grant of summary judgment, we view the facts in a light most favorable to the nonmoving party[:]" Parents. Lighthouse Inst., 510 F.3d at 260. [6] In a dictum, the District Court stated: "Even if this Court were to apply a `hybrid rights' heightened or strict scrutiny test, however, Plaintiff's free exercise challenge to Act 169 on its face would still fail." Id. at 777. [7] As noted by the District Court, "[a]n educated citizenry has been recognized as critical to the success and well-being of the Nation and its people from the time of its creation." Combs, 468 F.Supp.2d at 740-41. Pennsylvania's commitment to public education is firmly rooted in its history. See id. at 741-43. In 1682, the "Great Law" passed by the First General Assembly of Pennsylvania "included a provision for the creation of schools across Pennsylvania." Id. at 742. Furthermore, the various Pennsylvania constitutions have included provisions for public education. Id. (citing the 1776 provisional Pennsylvania Constitution, the Pennsylvania Constitution of 1874, and Art. II, § 14 of the Pennsylvania Constitution in its current form). The current Pennsylvania Code describes the purpose of public education as "prepar[ing] students for adult life" and creating "self-directed, life-long learners and responsible, involved citizens." 22 Pa.Code. § 4.11(b) (2008). [8] A child may satisfy the compulsory attendance requirement by attending a public day school. 24 Pa. Stat. Ann. § 13-1327(a). "In lieu of such school attendance" any child fifteen years of age who receives approval of the district superintendent and the Secretary of Education, or any child sixteen years of age who receives approval of the district superintendent, may enroll in a trade or business school. Id. Attendance at either public day school or a trade or business school satisfies the mandate that "every parent, guardian, or other person having control or charge of any child or children of compulsory school age is required to send such child or children to a day school in which the subjects and activities prescribed by the standards of the State Board of Education are taught in the English language." Id. [9] A child may satisfy the compulsory attendance requirement by attending "an accredited or licensed private school," 22 Pa.Code § 11.32 (2008), "in which the subjects and activities prescribed by the standards of the State Board of Education are taught in the English language." 24 Pa. Stat. Ann. § 13-1327(a). "The certificate of any principal or teacher of a private school, or of any institution. . ." must "set[] forth that the work of said school is in compliance with the provisions of this act." Id. Also, regular daily instruction in the English language by a properly qualified private tutor satisfies the compulsory attendance requirement. Id. The Pennsylvania Administrative Code enumerates minimum hours of instruction and the required subjects at both the elementary and secondary school levels. 22 Pa.Code § 11.31 (2008). [10] A child may enroll in a day school "operated by a bona fide church or other religious body." 24 Pa. Stat. Ann. § 13-1327(b). The school must meet minimum standards for hours of instruction and teach the subjects enumerated in the statute. See id. ("[A] minimum of one hundred eighty (180) days of instruction or nine hundred (900) hours of instruction per year at the elementary level or nine hundred ninety (990) hours per year of instruction at the secondary level . . . ."); id. § 13-1327(b)(1) (requiring at the elementary school level, the following courses: "English, to include spelling, reading and writing; arithmetic; science; geography; history of the United States and Pennsylvania; civics; safety education, including regular and continuous instruction in the dangers and prevention of fires; health and physiology; physical education; music; and art"); id. § 13-1327(b)(2) ("At the secondary school level, the following courses [must be] offered: English, to include language, literature, speech and composition; science, to include biology and chemistry; geography; social studies, to include civics, economics, world history, history of the United States and Pennsylvania; a foreign language; mathematics, to include general mathematics and statistics, algebra and geometry; art; music; physical education; health and physiology; and safety education, including regular and continuous instruction in the dangers and prevention of fires."). Further, the principal must file a notarized affidavit with the Department of Education setting forth that the required subjects are offered in the English language, whether the school is a nonprofit organization, and that the school is otherwise in compliance with the provisions of the Public School Code. Id. § 13-1327(b). Although the statute requires religious schools to teach certain subjects, "[i]t is the policy of the Commonwealth to preserve the primary right and the obligation of the parent or parents . . . to choose the education and training for such child." Id. Thus, "[n]othing contained in this act shall empower the Commonwealth, any of its officers, agencies or subdivisions to approve the course content, faculty, staff or disciplinary requirements of any religious school referred to in this section without the consent of said school." Id. [11] Act 169 enumerates the following "minimum courses in grades nine through twelve" as a requirement for graduation from a home education program: four years of English; three years of mathematics; three years of science; three years of social studies; two years of arts and humanities. 24 Pa. Stat. Ann. § 13-1327.1(d). But, in contrast to § 13-1327(b), Act 169 leaves the decision whether to teach certain secondary level subjects—economics, biology, chemistry, foreign languages, trigonometry, or other age-appropriate courses as contained in 22 Pa.Code Ch. 4—to the discretion of the supervisor of the home education program. 24 Pa. Stat. Ann. § 13-1327.1(c)(2). [12] In addition, the affidavit must provide evidence that the child has been immunized and has received the health and medical services required for students of the child's age or grade level. 24 Pa. Stat. Ann. § 13-1327.1(b)(1). Further, "[t]he affidavit shall contain a certification to be signed by the supervisor that the supervisor, all adults living in the home and persons having legal custody of a child or children in a home education program have not been convicted of the criminal offenses enumerated in subsection (e) of section 111 within five years immediately preceding the date of the affidavit." Id. "Supervisor" is defined by Act 169 as "the parent or guardian or such person having legal custody of the child or children who shall be responsible for the provision of instruction, provided that such person has a high school diploma or its equivalent." Id. § 13-1327.1(a). [13] "In addition, if the superintendent has a reasonable belief that, at any time during the school year, appropriate education may not be occurring in the home education program, he may . . . require documentation . . . to be submitted to the district. . . ." 24 Pa. Stat. Ann. § 13-1327.1(h). [14] Act 169 permits evaluation by "a licensed clinical or school psychologist or a teacher certified by the Commonwealth or by a nonpublic school teacher or administrator." 24 Pa. Stat. Ann. § 13-1327.1(e)(2). "Any such nonpublic teacher or administrator shall have at least two years of teaching experience in a Pennsylvania public or nonpublic school within the last ten years." Id. Further, any nonpublic teacher or administrator or certified teacher must have the required "experience at the elementary level to evaluate elementary students or at the secondary level to evaluate secondary students." Id. A teacher or administrator who evaluates a portfolio at the elementary level (grades kindergarten through six) shall have at least two years of experience in grading any of the following subjects: English, to include spelling, reading and writing; arithmetic; science; geography; history of the United States and Pennsylvania; and civics. Id. § 13-1327.1(e)(1)(i). A teacher or administrator who evaluates a portfolio at the secondary level (grades seven through twelve) shall have at least two years of experience in grading any of the following subjects: English, to include language, literature, speech, reading and composition; science, to include biology, chemistry and physics; geography; social studies, to include economics, civics, world history, history of the United States and Pennsylvania; foreign language; and mathematics, to include general mathematics, algebra, trigonometry, calculus and geometry. Id. § 13-1327.1(e)(1)(ii). "[T]he term `grading' shall mean evaluation of classwork, homework, quizzes, classwork-based tests and prepared tests related to classwork subject matter." Id. § 13-1327.1(e)(1)(iii). "At the request of the supervisor, persons with other qualifications may conduct the evaluation with the prior consent of the district of residence superintendent. In no event shall the evaluator be the supervisor or their spouse." Id. § 13-1327.1(e)(2). [15] The superintendent may not rely upon the outline of proposed educational objectives provided at the beginning of the year when making his "appropriate education" determination. 24 Pa. Stat. Ann. § 13-1327.1(b)(1). [16] The "hearing examiner" "shall not be an officer, employe [sic] or agent of the Department of Education or of the school district or intermediate unit of residence of the child in the home education program." Id. § 13-1327.1(a). [17] In lieu of rendering a decision, the hearing examiner may "require the establishment of a remedial education plan mutually agreed to by the superintendent and supervisor of the home education program which shall continue the home education program." 24 Pa. Stat. Ann. § 13-1327.1(k). [18] Article I, Section 3 of the Pennsylvania Constitution provides: All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship. Pa. Const., Art. I, § 3. [19] The Free Exercise Clause applies to states and local governments through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). [20] Justice Souter, concurring in Hialeah, also criticized the hybrid-rights theory: [T]he distinction Smith draws strikes me as ultimately untenable. If a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule, and, indeed, the hybrid exception would cover the situation exemplified by Smith, since free speech and associational rights are certainly implicated in the peyote ritual. But if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in what Smith calls the hybrid cases to have mentioned the Free Exercise Clause at all. Hialeah, 508 U.S. at 567, 113 S.Ct. 2217 (Souter, J., concurring). [21] In Parker v. Hurley, 514 F.3d 87 (1 st Cir.2008), the United States Court of Appeals for the First Circuit rejected plaintiff parents' claims that they must be given prior notice by a public school and an opportunity to exempt their young children from reading books the parents find religiously repugnant. In discussing hybrid-rights claims, the court stated that the strength of the companion constitutional claim required to establish a hybrid situation remains unsettled in the First Circuit because the Brown opinion did not "explicitly" decide the issue. Id. at 98 n. 9. It also noted that "the parental rights claim asserted in that case was found to be so weak that it was not a colorable claim, much less an independently viable one." Id. The Parker court chose not to "enter[] the fray over the meaning and application of Smith's `hybrid situations' language," and instead "approach[ed] the parents' claims as the Court did in Yoder. In that case, the Court did not analyze separately the due process and free exercise interests of the parent-plaintiffs, but rather considered the two claims interdependently, given that those two sets of interests inform one other." Id. at 98. The court ultimately found that plaintiffs did not describe "a constitutional burden on their rights" and affirmed the district court's dismissal for failure to state a claim. Id. at 99. [22] Although the United States Court of Appeals for the Seventh Circuit has not definitively articulated its approach, it has approvingly quoted the United States Court of Appeals for the Ninth Circuit. See Civil Liberties for Urban Believers v. Chicago, 342 F.3d 752, 765 (7th Cir.2003) (quoting Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999)); but see id. (citing Brown, 68 F.3d at 539 and Kissinger, 5 F.3d at 180). The United States Court of Appeals for the Eighth Circuit has recognized the existence of hybrid rights but has not defined the contours of the analysis. See Cornerstone Bible Church v. Hastings, 948 F.2d 464, 474 (8th Cir. 1991) (reversing and remanding to district court to consider hybrid-rights claim). [23] As noted, Justice Souter, concurring in Hialeah, criticized the hybrid-rights theory. Hialeah, 508 U.S. at 566-67, 113 S.Ct. 2217 (Souter, J., concurring). Furthermore, in Boerne v. P.F. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Court noted, without further discussion or explanation, that Yoder "implicated" the right to free exercise of religion and the right of parents to control their children's education. Boerne, 521 U.S. at 514, 117 S.Ct. 2157. [24] Federal courts addressing the issue have held that parents have no right to exempt their child from certain subjects, reading assignments, community-service requirements or assembly programs they find objectionable. See, e.g., Parker, 514 F.3d at 107 (reading assignment); Leebaert, 332 F.3d at 144 (health education class); Herndon v. Chapel Hill-Carrboro City Bd. of Educ., 89 F.3d 174 (4th Cir. 1996) (community-service requirement); Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 461-62 (2d Cir. 1996) (community-service requirement); Brown, 68 F.3d at 539 (sexual education assembly); see also Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395-96 (6th Cir.2005) (finding that a parent "does not have a fundamental right to exempt his child from the school dress code"). [25] Parents who home-school their children may be subjected to standardized testing to ensure the children are receiving an adequate education. See Murphy v. Arkansas, 852 F.2d 1039, 1044 (8th Cir.1988) (upholding state standardized test requirement over home-schooling parents' First and Fourteenth Amendment objections). [26] In a different context, the Supreme Court stated: Since Pierce, a substantial body of case law has confirmed the power of the States to insist that attendance at private schools, if it is to satisfy state compulsory-attendance laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects of instruction. Indeed, the State's interest in assuring that these standards are being met has been considered a sufficient reason for refusing to accept instruction at home as compliance with compulsory education statutes. These cases were a sensible corollary of Pierce v. Society of Sisters: if the State must satisfy its interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools perform their secular education function. Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 245-47, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) (examining validity of a New York statute requiring school districts to purchase and loan textbooks to students enrolled in parochial schools). [27] This "mode of life" reference in Yoder has been interpreted to refer to a distinct community and way of life, not simply the centrality of one's belief to his or her faith. See Parker, 514 F.3d at 100. [28] As noted, New Life Baptist Church Academy was decided before Smith. Accordingly, the First Circuit applied the Sherbert test, New Life Baptist Church Acad., 885 F.2d at 944 (citing Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)), and analyzed Yoder within the "less restrictive alternative" context. New Life Baptist Church Acad., 885 F.2d at 948-52. Despite this, we find the First Circuit's discussion of Yoder to be informative. [29] In Duro v. Dist. Attorney, Second Judicial Dist., 712 F.2d 96 (4th Cir. 1983), plaintiffs, who home-schooled their children, alleged that the state compulsory school attendance law infringed upon their religious beliefs. The district court, relying heavily upon Yoder, found the state law unconstitutional as applied to the plaintiffs. The Fourth Circuit reversed, distinguishing Yoder. Duro, 712 F.2d at 98-99. [I]n Yoder, the Amish children attended public school through the eighth grade and then obtained informal vocational training to enable them to assimilate into the self-contained Amish community. However, in the present case, [plaintiff] refuses to enroll his children in any public or nonpublic school for any length of time, but still expects them to be fully integrated and live normally in the modern world upon reaching the age of 18. Id. at 98. Although Parents contend they can "readily demonstrate" that their children will be self-sufficient even if they do not submit their children's work on an annual basis to a government official for his review, Parents Br. at 31, their claim remains distinguishable. The Amish allowed their children to attend public schools until the completion of 8th grade. Therefore, the State was assured that the Amish children received a state approved education and the Court found an additional one or two years of compulsory formal education to be insufficient to overcome the Amish's interests. In this case, Parents seek to home-school their children for their entire primary and secondary education. [30] Section 2404 states: (a) General rule. Except as provided in subsection (b), an agency shall not substantially burden a person's free exercise of religion, including any burden which results from a rule of general applicability. (b) Exceptions. An agency may substantially burden a person's free exercise of religion if the agency proves, by a preponderance of the evidence, that the burden is all of the following: (1) In furtherance of a compelling interest of the agency. (2) The least restrictive means of furthering the compelling interest. Id. § 2404 (emphases added). [31] As noted, RFPA defines "substantially burden" as: An agency action which does any of the following: (1) Significantly constrains or inhibits conduct or expression mandated by a person's sincerely held religious beliefs. (2) Significantly curtails a person's ability to express adherence to the person's religious faith. (3) Denies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion. (4) Compels conduct or expression which violates a specific tenet of a person's religious faith. 71 Pa. Stat. Ann. § 2403. [32] In 2007, the Commonwealth Court of Pennsylvania interpreted the third definition of substantially burden — "[d]enies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion." Ridley Park United Methodist Church v. Zoning Hearing Bd. Ridley Park Borough (Ridley Park), 920 A.2d 953, 957-61 (Pa. Commw.Ct.2007). The court concluded that because "daycare is not a fundamental religious activity of a church," the Zoning Hearing Board erroneously applied RFPA. Id. at 960. [33] Shaffer v. Board of School Directors of Albert Gallatin Area School District, 730 F.2d 910 (3d Cir.1984), a pre-section 1367 decision, supports this conclusion. In Shaffer, we found that "where the underlying issue of state law is a question of first impression with important implications for public education in Pennsylvania, factors weighing in favor of state court adjudication certainly predominate." Id. at 913. [34] See, e.g., Combs Compl. ¶ 12 ("Mr. and Mrs. Combs' religious beliefs acknowledge that the civil government may require them to educate their children, but, according to their religious belief, the civil government lacks jurisdiction to approve or administratively supervise the education they provide."); Combs Compl. ¶ 14 ("It is a specific tenet of Mr. and Mrs. Combs' religious faith, rooted in their understanding of the Bible, that it would be sinful for them to engage in conduct or expression that would grant control over their children's education to the civil government."); Hankin Compl. ¶ 20 ("It is a specific tent of Mr. and Mrs. Hankin's religious faith, rooted in their understanding of the Bible, that it would be sinful for them to have any association with the public school system."). [35] See, e.g., Maryalice Newborn Dep. at 49, Aug. 30, 2005 ("Q: What level of state review would be acceptable to you? A: None."); Thomas Hankin Dep. at 55, Sept. 6, 2005, ("I personally believe that if the discretion of the school district were removed, there would be a lot less trouble religiously with my beliefs; that is, if I submitted to the school district a statement that said ... I am educating my children and this is what I'm teaching them this year."). [36] See also Parents Br. Opp'n to Def.'s Mot. Summ. J. at 10, Apr. 14, 2006 ("Because Plaintiffs believe that all education is inherently religious, Caesar has no jurisdiction over it at all."); id. at 11 (citing Herbert W. Titus, founding dean of Regent University School of Law, for the proposition that "[b]oth the Establishment and the Free Exercise clauses preclude the civil government from exercising jurisdiction over the education of the people."). [37] The Commonwealth's rules of statutory construction, codified at 1 Pa. Cons.Stat. §§ 1901-1978, "shall be observed, unless the application of such rules would result in a construction inconsistent with the manifest intent of the General Assembly." Id. § 1901. "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." Id. § 1921(a). Words and phrases are construed "according to their common and approved usage," whereas technical words which are defined will be construed according to their peculiar definitions. Id. § 1903. "When the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Id. § 1921(b). The Pennsylvania Supreme Court "has repeatedly recognized that rules of construction, such as consideration of a statute's perceived `object' or `purpose,' are to be resorted to only when there is an ambiguity." Commonwealth v. Taylor, 576 Pa. 622, 841 A.2d 108, 112 (2004). However, [w]hen the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: (1) The occasion and necessity for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) The object to be attained. (5) The former law, if any, including other statutes upon the same or similar subjects. (6) The consequences of a particular interpretation. (7) The contemporaneous legislative history. (8) Legislative and administrative interpretations of such statute. 1 Pa. Cons.Stat. § 1921(c). [38] I assume, without deciding, that Parents' actions are "conduct or expression" within the meaning of the RFPA. [39] The Previshes also cite the Catechism of the Roman Catholic Church. See, e.g., Catechism 2223 ("Parents have the first responsibility for the education of their children. They bear witness to this responsibility first by creating a home where tenderness, forgiveness, respect, fidelity, and disinterested service are the rule. The home is well suited for education in the virtues. This requires an apprenticeship in self-denial, sound judgment, and self-mastery — the preconditions of all true freedom. Parents should teach their children to subordinate the `material and instinctual dimensions to interior and spiritual ones.'"); Catechism 2229 ("As those first responsible for the education of their children, parents have the right to choose a school for them which corresponds to their own convictions. This right is fundamental. As far as possible parents have the duty of choosing schools that will best help them in their task as Christian educators. Public authorities have the duty of guaranteeing this parental right and of ensuring concrete conditions for its exercise."). [40] Section 1991 defines words and phrases for "any statute finally enacted on or after September 1, 1937." [41] The words "specific," "specificity," and "particularity" are familiar terms in Pennsylvania and federal procedural law, and in that context, denote a heightened pleading standard as opposed to a more general (notice) standard. See, e.g., Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 526 Pa. 541, 587 A.2d 1346, 1352 (1991) ("Both Rule 1019(b) of the Pennsylvania Rules of Civil Procedure and case law require that fraud be plead with specificity. The appellees' complaint does not rise to the level of specificity that we require." (citation omitted)); c.f. In re Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir.1999) (noting, in the Private Securities Litigation Reform Act ("PSLRA") fraud context, that the PSLRA "echoes precisely Fed.R.Civ.P. 9(b) and therefore requires plaintiffs to plead `the who, what, when, where, and how ....'" (citation omitted)). [42] As noted, in Ridley Park the Pennsylvania Commonwealth Court examined the third definition of "substantially burden" — "denies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion" — and concluded that while daycare "aided in carrying out the Church's religious mission, [it] is not a fundamental religious activity of a church." Ridley Park, 920 A.2d at 960. "For example, ministering to the sick can flow from a religious mission, but it is not a fundamental religious activity of a church because a hospital may be built to satisfy that mission." Id. [43] Although it is not entirely clear, I understand Parents' argument to mean that the natural consequence of their asserted specific tenet is that the state has no jurisdiction over home-schooling. [44] As noted, those factors include, but are not limited to: "(1) The occasion and necessity for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) The object to be attained. (5) The former law, if any, including other statutes upon the same or similar subjects. (6) The consequences of a particular interpretation. (7) The contemporaneous legislative history. (8) Legislative and administrative interpretations of such statute." 1 Pa. Cons. Stat. § 1921(c). [45] At the time of enactment in 1993, "Government" was defined as "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State." Pub.L. No. 103-141, § 5, 107 Stat. 1488, 1489 (1993). As amended, "Government" is defined as "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity." 42 U.S.C. § 2000bb-2(1). "Covered entity means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States." Id. § 2000bb-2(2). [46] RFRA continues to be enforced against the federal government. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (applying RFRA to regulations by the federal government under the Controlled Substances Act). [47] See Ariz.Rev.Stat. Ann. §§ 41-1493; Conn. Gen.Stat. § 52-571b; Fla. Stat. § 761.01 to 761.05; Idaho Code Ann. §§ 73-401 to 73-404; 775 Ill. Comp. Stat. 35/1 to 35/99; Mo. Ann. Stat. §§ 1.302 & 1.307; N.M. Stat. §§ 28-22-1 to 28-22-5; Okla. Stat. tit. 51 §§ 251 to 258; R.I. Gen. Laws §§ 42-80.1-1 to 42-80.1-4; S.C.Code Ann. §§ 1-32-10 to 1-32-60; Tex. Civ. Prac. & Rem.Code Ann. §§ 110.001 to 110.012; Va.Code Ann. §§ 57-1 to 57-2.02; Utah Code Ann. §§ 63L-5-101 to 63L-5-403; see also Ala. Const. Art I, § 3.01. The Pennsylvania RFPA became effective December 9, 2002. Missouri, Utah and Virginia passed legislation after 2002. [48] Alabama and Connecticut do not modify "burden." Ala. Const. Art I, § 3.01 ("Government shall not burden a person's freedom of religion...."); Conn. Gen.Stat. § 52-571b ("The state ... shall not burden a person's exercise of religion...."). Missouri, New Mexico, and Rhode Island prohibit the government from "restrict[ing] a person's free exercise of religion." Mo. Ann. Stat. § 1.302; N.M. Stat. §§ 28-22-3; R.I. Gen. Laws §§ 42-80.1-3. [49] To illustrate, for the purposes of RLUIPA, we recognize that a "substantial burden" exists where: 1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR 2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs. Washington v. Klem, 497 F.3d 272, 280 (3d Cir.2007). Under the Florida Religious Freedom Restoration Act, "a substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires." Warner v. Boca Raton, 887 So.2d 1023, 1033 (Fla.2004). "A plaintiff who claims that a governmental regulation constitutes a substantial burden must `prove that a governmental regulatory mechanism burdens the adherent's practice of his or her religion by pressuring him or her to commit an act forbidden by the religion or by preventing him or her from engaging in conduct or having a religious experience which the faith mandates.'" Id. at 1035 (citations omitted).

790 F.2d 89 Warner Bros., Inc.v.ITC 85-2107 United States Court of Appeals,Federal Circuit. 1/10/86 ITC Affirmed

468 B.R. 361 (2012) In re Robbyn Dale MATTSON and Renee Diane Mattson, Debtors. Robbyn Dale Mattson; Renee Diane Mattson, Appellants, v. David M. Howe, Chapter 13 Trustee, Appellee. BAP No. WW-11-1478-JuHKi. Bankruptcy No. 10-50455. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted March 23, 2012. Decided April 5, 2012. *363 Matthew J.P. Johnson, Esq. argued for appellants Robbyn Dale Mattson and Renee Diane Mattson; Michael G. Malaier, Esq. argued for appellee, David M. Howe, Chapter 13 Trustee. Before: JURY, HOLLOWELL, and KIRSCHER, Bankruptcy Judges. OPINION JURY, Bankruptcy Judge. Chapter 13[1] above-median debtors, Robbyn Dale Mattson and Renee Diane Mattson ("Debtors"), moved to modify their confirmed plan under § 1329 due to their post-confirmation increase in income. Debtors proposed to increase plan payments and shorten the term of their plan from five years to three years. The chapter 13 trustee and appellee, David M. Howe, objected to the shortened term, contending that Debtors were above-median and required to contribute their increased income to a five year plan. The bankruptcy court granted Debtors' motion to increase their payments under the plan, but denied their request to shorten the term. The court held that in addition to satisfying the good faith requirement under § 1325(a)(3), which applies to modified plans by reference in § 1329(b)(1), Debtors also had to show a substantial, unanticipated change in their circumstances since the time of confirmation and that their proposed modification correlated to their change in circumstances. The bankruptcy court found that Debtors' proposed reduction in the term of their plan did not correlate with their change in circumstances (i.e., the increase *364 in their income), nor did they offer any justification for reducing the length of their plan payments. This appeal followed. Although the reasoning of the bankruptcy court for denying the shortened term deviates from our precedent, for the reasons stated below we nevertheless AFFIRM. I. FACTS The facts in this appeal are not in dispute and are adequately summarized in the bankruptcy court's published decision, In re Mattson, 456 B.R. 75 (Bankr. W.D.Wash.2011). We incorporate the relevant facts below and supplement them when needed. On December 21, 2010, Debtors filed their chapter 13 petition. Their schedules listed assets including a house, four vehicles, various funds in bank accounts, personal and household furnishings and over $83,000 in a retirement account, most of which were exempted. Debtors' Schedule F listed $163,367 in unsecured debt. Schedule I showed that Debtors were employed by the Camas School District. Ms. Mattson was a teacher, earning an average of $3,067 per month; Mr. Mattson was listed as a "substitute janitor" from which he had no earnings yet per month and also showed an average $1,200 per month from operation of a business. Debtors' combined average monthly income totaled $4,267 per month. Debtors' Schedule J reflected expenses of $4,117 per month, leaving a monthly net income of $150 per month. Schedule I stated that Mr. Mattson had just been hired as a substitute janitor within a week before the bankruptcy filing, and while he had not commenced work yet, he anticipated getting $16.50 per hour for what work he would be given. That was expected to reduce his other income from "operation of a business." Mr. Mattson's businesses were not identified in the schedules, but the bankruptcy court noted that the case was filed as "f/d/b/a Robbyn D. Mattson Insurance" and "d/b/a East County Battery Doctors." Debtors' Statement of Financial Affairs Number 18 identified prior businesses as "insurance sales" and "reconditioning/sales of automotive batteries." Schedule I further noted that Mr. Mattson also earned approximately $2,760 a year coaching sports but this income was excluded from Schedule I as it was only for two months of the year and would not be available during an average month. Debtors' Form B22C indicated they were above-median debtors and reflected a projected disposable income of $253 per month, although the Form B22C also noted that it didn't accurately reflect Debtors' projected income because it reflected the income from Mr. Mattson's previous job and his seasonal income. Looking to the prior six-month period, Debtors argued, showed a substantially higher amount than their average income would be going forward, given Mr. Mattson's lower income from the new job and the unavailability of the seasonal income. Debtors filed a chapter 13 plan which proposed a $150 per month payment for 60 months, for total payments of $9,000. Those payments went to Debtors' attorney and unsecured creditors, who were expected to receive 2% on their claims. Debtors proposed to pay directly the secured creditors on their home and one vehicle. The bankruptcy court confirmed Debtors' plan by order entered on March 2, 2011. Just over two and a half months later, on May 24, 2011, Debtors filed amended Schedules I and J. On amended Schedule I, Mr. Mattson was now listed as a "janitor" (rather than substitute) and the average *365 monthly income for both Debtors had increased to a total of $5,936 per month. Ms. Mattson's income had increased slightly more than $400 a month, and Mr. Mattson's income had doubled, to over $2450 per month. The amended Schedule J listed higher expenses totaling $4,906 per month, nearly $800 per month higher than the original schedule. While the amended Schedule J no longer reflected business operation expenses of $288 per month, indicating Debtors' apparent abandonment of Mr. Mattson's previous business, expenses in nearly every other category increased. Some of the increases reflected potentially expected changes due to Mr. Mattson's increase to full time employment as a janitor (increases in transportation and clothing, for example). However, the amended Schedule J also included increased expenses in other areas (for example, electricity and heating fuel for Debtors' home, home maintenance, food, medical and dental expenses, vehicle maintenance and licensing, and recreation and entertainment). In total, though, the amended Schedule I and Schedule J showed an overall increase in monthly excess income to $1,030 per month. Approximately three weeks after the amended schedules were filed, or just over three months after the plan had been confirmed, Debtors filed their amended plan and a motion for modification on June 15, 2011. In their motion to modify, Debtors stated that modification was necessary because their income had increased. Under the amended plan and motion, Debtors' plan would be modified to provide for increased payments of $900 per month in June 2011 and then $1,000 per month beginning with the July 2011 payment and the term of the plan would be reduced from 60 to 36 months. Debtors' amended plan proposed to pay their attorney and unsecured creditors, who would receive a payout increasing from $4,000 to $30,000. The chapter 13 trustee objected to Debtors' motion, arguing that Debtors should be required to pay the increased $1,000 monthly payment for the confirmed commitment period of 60 months. Under the originally filed means test, from which Debtors had increased their income, Debtors had a positive monthly disposable income of $253 per month. Given the positive disposable income figure, the trustee argued, Debtors were not permitted under the Ninth Circuit's decision in Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008), to seek a deviation from the 60 month commitment period and Debtors cited no authority in their motion which would allow them to do so. The trustee maintained that because Debtors' income had increased there was no reason why Debtors could not make payments for 60 months. Lastly, the trustee argued that Congress clearly intended that above-median debtors propose and complete a 60 month plan. Debtors replied that they were not bound to any predetermined commitment period because income based calculations under § 1325(b) were not applicable to modifications under § 1329 under our holding in Sunahara v. Burchard (In re Sunahara), 326 B.R. 768 (9th Cir. BAP 2005). Debtors argued that as long as their proposed amended plan was filed in good faith and met the other requirements of chapter 13 incorporated into § 1329, they could reduce the duration of the plan, without consideration of the applicable commitment period in the confirmed plan. Debtors also cited other bankruptcy court decisions in the Ninth Circuit which they contended authorized the debtor to amend his or her plan to less than 60 months. In re Hall, 442 B.R. 754, 760-61 (Bankr.D.Idaho 2010); In re Ewers, 366 B.R. 139, 143 (Bankr.D.Nev.2007). *366 After a hearing on July 5, 2011, the matter was submitted and the bankruptcy court issued its published opinion. In it, the court decided that a predictable test for crafting and reviewing plan modifications was preferable to the good faith analysis espoused in In re Sunahara. Accordingly, the court held that, in addition to the Sunahara good faith analysis, plan modification under § 1329 also requires the moving party to show that there has been a substantial change in the debtor's circumstances after confirmation "which was unanticipated or otherwise could not be taken into account at the time of the confirmation hearing, and that the change in the plan correlate[s] to the change in circumstances." In re Mattson, 456 B.R. at 82 (emphasis in original). In light of this standard, the bankruptcy court found that Debtors' proposed modification to shorten the term of their plan did not correlate with the change in circumstances—their increased income. Id. The bankruptcy court also addressed the relevance of the applicable commitment period to plan modifications. The court found that § 1329(c), which states that a plan "modified under this section may not provide for payments over a period that expires after the applicable commitment period under section 1325(b)(1)(B)," suggested that the applicable commitment period did not go away with modification, but was fixed at confirmation. Id. at 83. In other words, "[t]he plan may be extended by the Court for good cause, though not beyond five years, but the applicable commitment period from § 1325(b) cannot be altered." Id. However, the bankruptcy court did not accept the trustee's position that, unless a debtor proposed to pay the unsecured creditors in full, the length of the plan could not be reduced under § 1329(a)(2). The court acknowledged that a debtor's financial circumstances may change in a way that justified a reduction in plan length as demonstrated by In re Ewers, 366 B.R. 139.[2] The bankruptcy court entered the Memorandum Decision on August 26, 2011. Debtors timely appealed. II. JURISDICTION The bankruptcy court had jurisdiction over this proceeding under 28 U.S.C. §§ 1334 and 157(b)(2)(L). We have jurisdiction under 28 U.S.C. § 158. III. ISSUE Whether the bankruptcy court abused its discretion in denying Debtors' request to shorten the term of their plan from five years to three years. IV. STANDARDS OF REVIEW Modification under § 1329 is discretionary. In re Sunahara, 326 B.R. at 772; Powers v. Savage (In re Powers), 202 B.R. 618, 623 (9th Cir. BAP 1996). A bankruptcy court abuses its discretion if it applies the wrong legal standard or its findings are illogical, implausible or without support in the record. TrafficSchool.com, *367 Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir.2011). While the bankruptcy court's decision whether to allow modification is reviewed for abuse of discretion, whether the bankruptcy court was correct in its interpretation of the applicable statutes is reviewed de novo. Towers v. United States (In re Pac.-Atlantic Trading Co.), 64 F.3d 1292, 1297 (9th Cir.1995). Whether a plan modification has been proposed in good faith by the debtor is a question of fact, and the bankruptcy court's findings on that issue are reviewed for clear error. Downey Sav. & Loan Ass'n v. Metz (In re Metz), 820 F.2d 1495, 1497 (9th Cir.1987). A factual finding is clearly erroneous if it is illogical, implausible, or without support in inferences that can be drawn from the facts in the record. United States v. Hinkson, 585 F.3d 1247, 1262-63 (9th Cir.2009) (en banc). We may affirm on any ground supported by the record. Siriani v. Nw. Nat'l Ins. Co. (In re Siriani), 967 F.2d 302, 304 (9th Cir.1992). V. DISCUSSION Chapter 13 plan modification is governed by § 1329. Section 1329(a) provides for post-confirmation plan modifications under four delineated circumstances, two of which are relevant here: At any time after confirmation of the plan but before the completion of payments under such plan, the plan may be modified, upon request of the debtor..., to— (1) increase ... the amount of payments on claims of a particular class provided for by the plan; (2) extend or reduce the time for such payments[.] When a debtor's proposed modifications fall within one or both of these provisions, the bankruptcy court must then decide whether the proposed modification complies with § 1329(b)(1). That section states: "[s]ections 1322(a), 1322(b), and 1323(c) of this title and the requirements of § 1325(a) of this title apply to any modification under subsection (a) of this section." The statute's reference to § 1325(a) means that the plan as modified must be proposed in good faith under § 1325(a)(3). In this Circuit, bankruptcy courts make good faith determinations under § 1325(a)(3) on a case-by-case basis, after considering the totality of the circumstances. See Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1224-25 (9th Cir.1999); 550 W. Ina Rd. Trust v. Tucker (In re Tucker), 989 F.2d 328, 330 (9th Cir.1993); Goeb v. Heid (In re Goeb), 675 F.2d 1386, 1390 & n. 9 (9th Cir.1982); see also Smyrnos v. Padilla (In re Padilla), 213 B.R. 349, 352 (9th Cir. BAP 1997). Notably missing from § 1329 is any express requirement that a substantial and unanticipated change in the debtor's financial circumstances is a threshold requirement to overcome the res judicata effect of a confirmed plan under § 1327(a).[3] However, *368 concerns over the finality of a confirmed plan led to the judicially developed substantial and unanticipated change test to inform the court on the initial question of whether the doctrine of res judicata prevented modification of a confirmed plan. See Murphy v. O'Donnell (In re Murphy), 474 F.3d 143, 149 (4th Cir.2007). The Fourth Circuit, which is the only Court of Appeals to apply the substantial and unanticipated change test, explained the multi-step analysis for plan modification using the test: [W]hen a bankruptcy court is faced with a motion for modification pursuant to § 1329(a)(1) or (a)(2), the bankruptcy court must first determine if the debtor experienced a substantial and unanticipated change in his post-confirmation financial condition. This inquiry will inform the bankruptcy court on the question of whether the doctrine of res judicata prevents modification of the confirmed plan. If the change in the debtor's financial condition was either insubstantial or anticipated, or both, the doctrine of res judicata will prevent the modification of the confirmed plan. However, if the debtor experienced both a substantial and unanticipated change in his post-confirmation financial condition, then the bankruptcy court can proceed to inquire whether the proposed modification is limited to the circumstances provided by § 1329(a). If the proposed modification meets one of the circumstances listed in § 1329(a), then the bankruptcy court can turn to the question of whether the proposed modification complies with § 1329(b)(1). Id. at 150 (citing Arnold v. Weast (In re Arnold), 869 F.2d 240, 243 (4th Cir.1989)). The First, Fifth and Seventh Circuits have rejected this approach and do not impose on parties seeking to modify a confirmed plan the threshold requirement of the substantial unanticipated change test. See Barbosa v. Soloman, 235 F.3d 31, 41 (1st Cir.2000), Meza v. Truman (In re Meza), 467 F.3d 874, 878 (5th Cir.2006), and In re Witkowski, 16 F.3d 739, 746 (7th Cir.1994) all holding that no change in circumstances is required. The Ninth Circuit has not directly ruled on the issue but in Anderson v. Satterlee (In re Anderson), 21 F.3d 355, 358 (9th Cir.1994) suggested in dicta that the substantial and unanticipated change test applies.[4]See Pak v. eCast Settlement Corp. (In re Pak), 378 B.R. 257, 268 (9th Cir. BAP 2007). Although dicta from the Ninth Circuit is persuasive, we are bound only by the Ninth Circuit's holdings and not by the court's election, whether express or implied, to leave open particular legal questions.[5] However, in interpreting a statute, *369 we have been instructed to follow the plain meaning rule and apply a statute according to its terms unless to do so would lead to absurd results. Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). As a consequence, we have traditionally taken a plain meaning approach to statutory interpretation questions. For this reason, in In re Powers, Max Recovery, Inc. v. Than (In re Than), 215 B.R. 430, 435 (9th Cir. BAP 1997), and McDonald v. Burgie (In re Burgie), 239 B.R. 406, 409 (9th Cir. BAP 1999), we held that the res judicata doctrine did not apply to plan modifications and, therefore, the substantial and unanticipated change test was unnecessary as a threshold requirement because the plain language of § 1329 did not support this judicially created requirement.[6]See also Ledford v. Brown (In re Brown), 219 B.R. 191, 195 (6th Cir. BAP 1998) (same). Despite our not adopting the substantial and unanticipated change test as a prerequisite to plan modification, we have held, as did the Seventh Circuit in In re Witkowski, that the bankruptcy court may consider a change in circumstances in the exercise of its discretion. In re Powers, 202 B.R. at 623. In the end, in evaluating plan modifications, it may make little practical difference whether the bankruptcy court applies the substantial and unanticipated change test as a threshold requirement or uses it as a discretionary tool.[7] In light of this background, and the purpose behind the substantial and unanticipated change test, we conclude that to the extent the bankruptcy court applied the test it was harmless error given that Debtors did experience a substantial and unanticipated change in their post-confirmation income. Thus, even under the Fourth Circuit's more stringent standard, the doctrine of res judicata did not prevent Debtors from modifying their plan under § 1329(a)(1) or (2).[8] Nevertheless, the bankruptcy court was still required to determine whether Debtors' proposed modification to reduce the term of their plan complied with § 1329(b)(1) and its cross reference to the good faith requirement under § 1325(a)(3). *370 In this regard, the bankruptcy court acknowledged our holding in In re Sunahara that § 1329(b)(1) does not reference or otherwise incorporate the provisions concerning the disposable income test and applicable commitment period contained in § 1325(b).[9]See also In re Hall, 442 B.R. at 761 (holding because § 1329 does not include any reference to § 1325(b), even though § 1329 includes specific reference to other Code sections, the requirements of § 1325(b) should not be applicable to § 1329 modifications).[10] As a result, if a debtor's plan modification was challenged, he or she need not show that all of their projected disposable income was devoted to making plan payments under the modified plan. In re Sunahara, 326 B.R. at 781-82. However, as the bankruptcy court aptly observed, In re Sunahara did not leave a wide open field for modifications to be approved. In re Mattson, 456 B.R. at 79; see also Barbosa, 235 F.3d at 41 (noting that "as a practical matter, parties requesting modifications of Chapter 13 plans must advance a legitimate reason for doing so"); In re Powers, 202 B.R. at 622 ("Although a party has an absolute right to request modification between confirmation and completion of the plan, modification under § 1329 is not without limits."); In re Meeks, 237 B.R. 856, 859-60 (Bankr. M.D.Fla.1999) ("[T]he Debtors need not demonstrate a substantial, unanticipated change in circumstances in order to modify their confirmed chapter 13 plan. However, neither can Chapter 13 debtors simply modify their plans willy nilly."). The Sunahara Panel held that [I]mportant components of the disposable income test are employed as part of a more general analysis of the total circumstances militating in favor of or against the approval of modification, without requiring tortured and illogical statutory interpretations (where the outcome differs depending upon which party is seeking modification, whether a certain party has objected, or whether `extraordinary circumstances' exist, etc.). 326 B.R. at 781. Thus, the Panel instructed the bankruptcy court to "carefully consider whether modification has been proposed in good faith." Id. (citing § 1325(a)(3)). We reasoned that a good faith determination necessarily requires an assessment of a debtor's overall financial condition including, without limitation, the debtor's current disposable income, the likelihood that the debtor's disposable income will significantly increase due to [greater] income or decreased expenses over the remaining term of the original plan, the proximity of time between confirmation of the original plan and the filing of the modification motion, and the risk of default over the remaining term of the *371 plan versus the certainty of immediate payment to creditors. Id. at 781-82; see also In re Grutsch, 453 B.R. at 427 ("`The good faith requirement of § 1325(a)(3) fills the gap that would otherwise exist, allowing all parties to object to inappropriate payment terms— whether excessive or inadequate—in a proposed modification.'"). Here, the bankruptcy court believed that the good faith test lacked predictability and therefore added the requirements of the substantial and unanticipated change test and that the change in the plan correlate to the change in circumstances. 456 B.R. at 82. We conclude that the bankruptcy court's second requirement—that the proposed modification correlate to Debtors' change in circumstances—necessarily implicates a good faith analysis. See In re Savage, 426 B.R. 320, 324 & n. 3 (Bankr.D.Minn.2010) (in order to comply with the "good faith" requirement of § 1325(a)(3), "the required change in financial circumstances should be directly resonant with the nature of the proposed modification").[11] Indeed, we view the bankruptcy court's correlation requirement as simply another factor that may be considered under the totality of circumstances approach to a good faith analysis in this Circuit. We emphasize, however, that no single factor is determinative of the lack of good faith. Contrary to the bankruptcy court's belief that the good faith test lacks predictability, we continue to accept that a good faith analysis under § 1325(a)(3), although not an exact science, adequately guides the exercise of the court's discretion for deciding plan modification issues. [O]ur reliance in Sunahara on the § 1325(a)(3) good faith standard is vulnerable to criticism that it introduces a level of subjectivity that could yield disparate results. That subjectivity, however, is constrained by settled law of the circuit that good faith is to be assessed through the matrix of whether the plan proponent `acted equitably' taking into account `all militating factors' in a manner that equates with the `totality' of circumstances. Fridley v. Forsythe (In re Fridley), 380 B.R. 538, 543 (9th Cir. BAP 2007) (citation omitted). Thus, the Fridley Panel dismissed the argument that adopting the reasoning in In re Sunahara would license "circumvention of § 1325(b) by the ploy of confirming a plan that complies with § 1325(b) and then promptly modifying the plan in a manner that does not comply with § 1325(b). Such a stratagem plainly would be an unfair manipulation of the Bankruptcy Code, which is a factor named in Goeb as indicative of a plan proponent not acting equitably and, hence, not in good faith." Id. The "settled law" in this Circuit referred to by In re Fridley demonstrates that the good faith test under § 1325(a)(3) is neither ill-defined nor does it lack a predictable base. In In re Goeb, the Ninth Circuit set forth a generalized test for good faith that includes consideration of the substantiality of proposed plan payments; whether the debtor has misrepresented facts in the plan; whether the debtor has unfairly manipulated the Bankruptcy *372 Code; and whether the plan is proposed in an equitable manner. 675 F.2d at 1390. At the very least, these factors direct attention away from the amorphous good faith concept, bringing relevant facts to the foreground. Moreover, the standards set forth in In re Goeb offer a solid framework for evaluating a variety of circumstances, which is consistent with the discretionary aspect of plan modifications. At bottom, determinations of good faith are made on a case-by-case basis, after considering the totality of the circumstances. Id. Finally, bankruptcy courts are not free to ignore the concept of good faith in plan modifications given that § 1329 specifically references § 1325(a) and its good faith requirement. The bankruptcy court's holding and the facts of this case fit within a conventional good faith analysis. The burden of establishing that a plan is submitted in good faith is on the debtor. Fid. & Cas. Co. of N.Y. v. Warren (In re Warren), 89 B.R. 87, 93 (9th Cir. BAP 1988); see also In re Hall, 442 B.R. at 758 (moving party bears the burden of showing sufficient facts to indicate that modification of debtors' confirmed chapter 13 plan is warranted). Further, the bankruptcy court has an independent duty to determine whether a chapter 13 plan is proposed in good faith. Villanueva v. Dowell (In re Villanueva), 274 B.R. 836, 841 (9th Cir. BAP 2002). Here, the record shows Debtors failed to meet their burden of proving that the shortened term of their plan was made in good faith under the Goeb standards. Those standards clearly require more than a showing of Debtors' subjective good faith. Simply put, Debtors' contribution of a portion of their increased income to their plan for a three year period does not amount to per se good faith. Indeed, the bankruptcy court considered whether Debtors' proposal was made in good faith in light of the relevant militating factors. The court found Debtors were not retiring, leaving the employment market or changing jobs in some other way nor did they contend they had health issues. Debtors do not dispute these findings on appeal nor do they point to any facts in the record which showed they would be unable to continue their increased payments beyond the 36 month period that they proposed. Although the doctrine of res judicata did not prevent Debtors from shortening the term of their plan, they advanced no legitimate reason for doing so under the circumstances. As a consequence, in light of Debtors' increased income, allowing them to shorten the term for their plan would be an inequitable result under In re Goeb. See also In re Stitt, 403 B.R. 694, 703 (Bankr.D.Idaho 2008) (noting that the "good faith requirement of § 1325(a)(3) gauges the overall fairness of a debtor's treatment of creditors under a plan"). In addition, Debtors' proposed modification to shorten the term of the plan when their income significantly increased is inconsistent with the overall policies of chapter 13 and the enactment of BAPCPA, which "has been read to tighten, not loosen, the ability of debtors to avoid paying what can reasonably be paid on account of debt." In re Kamell, 451 B.R. 505, 508 (Bankr.C.D.Cal.2011). As the bankruptcy court aptly noted, "there is clearly more that could—in `good faith'— be paid to their creditors." In re Mattson, 456 B.R. at 79. Finally, we emphasize that the continued absence from § 1329(b)(1) of any reference to § 1325(b) is conclusive as to whether a debtor may modify his or her plan to reduce the term below the applicable commitment period required for an original plan. "Congress is presumed to act intentionally *373 and purposefully when it includes language in one section of the Bankruptcy Code, but omits it in another section." In re Ewers, 366 B.R. at 143. Congress, aware of the function of the means test in chapter 13 relating to confirmation of original plans, did not amend § 1329(b)(1) to incorporate § 1325(b). As noted by the bankruptcy court in In re Ewers, "BAPCPA added the term [applicable commitment period] in § 1329(c), which deals with the maximum length of a modified plan, obviously as a conforming amendment.... `Three years' in § 1329(c) was switched to `the applicable commitment period under section 1325(b)(1)(B),' no doubt, to be harmonious with § 1325(b)." Id. at 143. Having taken the opportunity to amend § 1329(c), Congress's decision not to amend § 1329(b) may be seen as deliberate. Therefore, the plain language of § 1329(a)(2), which authorizes modifications to extend or reduce the time for payments under the plan, continues to control. As the bankruptcy court correctly acknowledged, a debtor's circumstances may justify a reduction in plan length. Mattson, 456 B.R. at 83 (citing In re Ewers, 366 B.R. 139).[12] In the end, the appropriateness of any particular modification is subject to the court's discretion, as limited by § 1329. VI. CONCLUSION For the reasons stated, we conclude that the bankruptcy court did not abuse its discretion in denying Debtors' proposed modification to shorten the term of their plan. Accordingly, we AFFIRM. NOTES [1] Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and "Rule" references are to the Federal Rules of Bankruptcy Procedure. [2] In Ewers, the debtors' income went down when they retired after confirmation of their plan. They moved to reduce the term of their plan from five years to three years. The bankruptcy court held that the term of a modified plan is not restricted to the applicable commitment period that was first established under § 1325(b). The court found that the debtors' chapter 13 plan may be modified to a three-year plan without paying their unsecureds in full, if the plan otherwise satisfied the requirements of § 1329(b), which included the requirement of good faith under § 1325(a). In the end, the bankruptcy court allowed the trustee to provide further briefing on the issue of the debtors' good faith with respect to the timing of their retirement. [3] Section 1327(a) addresses the finality of chapter 13 plan confirmation orders: "The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan." We have observed that "`[t]he purpose of § 1327(a) is the same as the purpose served by the general doctrine of res judicata. There must be finality to a confirmation order so that all parties may rely upon it without concern that actions which they may thereafter take could be upset because of a later change or revocation of the order....'" Great Lakes Higher Educ. Corp. v. Pardee (In re Pardee), 218 B.R. 916, 923 (9th Cir. BAP 1998), aff'd 193 F.3d 1083 (9th Cir.1999). We use the term res judicata in its generic sense to encompass the claim preclusion and issue preclusion doctrines. [4] In In re Anderson, which was not a plan modification case, the Ninth Circuit stated that the trustee can request a modification under § 1329(a), but bears "the burden of showing a substantial change in debtor's ability to pay since the plan was confirmed and that the prospect of that change had not already been taken into account at the time of confirmation." 21 F.3d at 358. [5] For this same reason, we are not convinced that the Supreme Court's dicta in Ransom v. FIA Card Servs., N.A., ___ U.S. ___, 131 S.Ct. 716, 178 L.Ed.2d 603 (2011) fares any better. The issue in Ransom also was not about plan modification but whether the debtor was entitled to a car-ownership deduction for purposes of the means test when he owned his car free and clear. The Supreme Court held that the debtor was not entitled to a deduction expense for a vehicle which he did not have. The court further held that "[t]he appropriate way to account for unanticipated expenses like a new vehicle purchase is not to distort the scope of a deduction, but to use the method that the Code provides for all Chapter 13 debtors (and their creditors): modification of the plan in light of changed circumstances." Id. at 730. [6] We are bound by these prior decisions. Ball v. Payco-Gen. Am. Credits, Inc. (In re Ball), 185 B.R. 595, 597 (9th Cir. BAP 1995) (holding that the Panel is bound by decisions of prior Panels). [7] As the bankruptcy court in In re Klus, 173 B.R. 51, 58 (Bankr.D.Conn.1994) noted: There may be little practical difference between those two positions. The plain language of subsection (3) of § 1329(a) requires a post-confirmation change in circumstances, i.e. payment on the claim outside of the plan. While subsections (1) and (2) contain no such requirement, the significance of that fact is limited by § 1329(b)(1), which requires that the modified plan comply with § 1325(a). If, for example, a creditor seeks to modify the plan to increase payments to the unsecured creditor class under § 1329(a)(1), the modification cannot be approved unless the debtor has the ability to make the increased payments. See § 1325(a)(6). If the debtor has satisfied the obligation to use all disposable income to fund the plan, see § 1325(b), the creditor's modification will be disapproved unless there has been a post-confirmation improvement in the debtor's financial circumstances. Conversely, any effort by the debtor to reduce payments is circumscribed by the good faith requirement of § 1325(a)(3).... [8] Whether Debtors should have been allowed to modify their plan by increasing plan payments under § 1329(a)(1) is not at issue in this appeal. [9] Section 1325(b)(1) states: If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan— (A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or (B) the plan provides that all of the debtor's projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan. [10] Although there is a split of authority on this issue, the majority of courts hold that post-confirmation modifications are not governed by § 1325(b). In re Grutsch, 453 B.R. 420, 424 & n. 14 (Bankr.D.Kan.2011) (collecting cases). [11] Similar to the bankruptcy court here, the bankruptcy court in In re Savage required that any modification that would reduce a debtor's payment obligations and creditors' distribution rights to be supported by a material, adverse change in the debtor's financial circumstances, that took place after the confirmation of the original plan. 426 B.R. at 324. Recently, the Eighth Circuit Bankruptcy Appellate Panel in Johnson v. Fink (In re Johnson), 458 B.R. 745, 749 (8th Cir. BAP 2011) has cited with approval the holdings in In re Savage and In re Mattson. [12] Although the trustee cites Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008), we do not find this decision persuasive for purposes of this appeal. As the bankruptcy court in In re Stitt observed, "while Kagenveama guides bankruptcy courts in interpreting certain new terms in the Code, it does not require them to retreat from the pointed, case-by-case analysis used to determine whether a plan has been proposed in good faith as formulated in its earlier decisions." 403 B.R. at 702.

Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 7-18-2006 In Re: Cendant Corp Precedential or Non-Precedential: Precedential Docket No. 04-1410 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "In Re: Cendant Corp " (2006). 2006 Decisions. Paper 660. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/660 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 2006 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 04-1410 IN RE: CENDANT CORPORATION SECURITIES LITIGATION Sheldon Danuff, SKAT Capital LP and Joel D. Zychick, Appellants On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 98-cv-01664) District Judge: Honorable William H. Walls Argued March 9, 2006  Before: AMBRO and BECKER,* Circuit Judges, and STAGG,** District Judge (Filed July 18, 2006) William J. Bailey, Esquire Huntington Carver, LLP 312 Kinderkamack Road Westwood, NJ 07675 James S. O’Brien, Jr., Esquire (Argued) Leah D. Weitzen, Esquire Pryor Cashman Sherman & Flynn LLP 410 Park Avenue New York, NY 10022 Counsel for Appellants * This case was argued before the panel of Judges Ambro, Becker, and Stagg. Judge Becker died before the filing of this Opinion. It is filed by a quorum of the panel. 28 U.S.C. § 46(d). ** Honorable Tom Stagg, Senior District Judge for the Western District of Louisiana, sitting by designation. 2 Max W. Berger, Esquire Daniel L. Berger, Esquire Jeffrey N. Leibell, Esquire Bernstein Litowitz Berger & Grossmann LLP 1285 Avenue of the Americas New York, NY 10019 Leonard Barrack, Esquire Gerald J. Rodos, Esquire Jeffrey W. Golan, Esquire (Argued) Barrack, Rodos & Bacine 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Counsel for Appellees OPINION OF THE COURT AMBRO, Circuit Judge Sheldon Danuff, SKAT Capital, and Joel Zychick (collectively, “Appellants”) challenge a District Court order rejecting their claims for compensation under a plan of allocation for a class action settlement. At the threshold, this case requires us to decide whether Appellants’ notice of appeal was timely filed. Under the rules of civil and appellate 3 procedure, the notice was timely filed only if the District Court’s order ruling against Appellants was not a “separate document” within the meaning of Federal Rule of Civil Procedure 58. To determine whether the order satisfied the separate-document requirement, we must resolve two subsidiary questions: (1) whether Rule 58 mandates that a district court issue two distinct documents when disposing of a case, and (2) whether a lengthy recitation of facts and procedural history prevents an order from complying with the separate-document requirement. While we reject the contention that the separate- document rule requires two separate documents, we hold that a lengthy discussion of facts and procedural history precludes an order from complying with Rule 58. Because the final order in this case was not a separate document that triggered the typical 30-day appeal period, Appellants’ seemingly late notice of appeal fits in the safe harbor Rule 58 and Federal Rule of Appellate Procedure 4(a)(7) provide, and was timely filed; we thus have jurisdiction over the case. As to the merits, we determine that Appellants are not entitled to compensation under the terms of the allocation plan. Accordingly, we affirm. I. Factual and Procedural Background The relevant facts are undisputed. Appellants held common stock in Getko Group, which was acquired by CUC 4 International (“CUC”); CUC then merged with another company, HFS Incorporated, to form Cendant Corporation (“Cendant”). As a result of these combinations, Appellants received stock in Cendant in exchange for their stock in Getko. CUC’s accounting irregularities spawned a securities class action suit, filed on behalf of all persons or entities who purchased or otherwise acquired publicly traded securities of Cendant and CUC and who were injured thereby. A Plan of Allocation of Net Settlement Fund (the “Plan”), which was previously approved by this Court, In re Cendant Corp. Litig., 264 F.3d 201 (3d Cir. 2001), was crafted to resolve all potential claims. As members of the plaintiff class certified by the District Court, Appellants were entitled to seek compensation from the Net Settlement Fund under the terms of the Plan for losses sustained by holding Cendant (previously CUC) stock during the period from May 31, 1995, to August 28, 1998 (the “Class Period”). This case arises from the claims administrator’s determination that Appellants were not entitled to any compensation. At issue is the Plan’s so-called “netting provision,” which ensures that claimants only recover for net losses. All three Appellants sold a substantial share of their Cendant holdings during the Class Period—but before the public disclosure of Cendant’s accounting irregularities—when the stock price was artificially inflated due to the accounting irregularities; they also 5 sustained considerable losses on securities held after those irregularities were disclosed. Each Appellant, with the possible exception of SKAT, made a net gain; and SKAT reaped a net gain unless its losses are computed on the basis of the date on which its shares became freely tradeable (September 6, 1995) rather than the date on which its shares were acquired (June 27, 1995). Processing Appellants’ claims on the basis of the date of acquisition, the claims administrator found that Appellants did not merit compensation under the Plan because the profits they made by selling stock at artificially inflated prices cancelled out any losses they suffered on stock held after the irregularities were disclosed. The District Court held a hearing to consider the objections of class members whose claims had been rejected. At the hearing, Appellants argued that the netting provision should not have been applied to their claims because the part of the Plan that governs their compensation does not provide for losses to be offset by gains. The District Court rejected this contention, noting that Appellants’ argument was at odds with the commonsense principle embedded in the Plan: “If there were a net impact of the fraud upon [a] claimant’s holding as a benefit[,] then there is little reason to compensate . . . [such claimant] for any losses.” App. 30. On August 19, 2003, the District Court issued an order granting the class lead plaintiffs’ motion to adopt the claims administrator’s recommendation to reject all disputed claims 6 (the “Order”). It was entered on the docket on August 21, 2003. Appellants thought that the District Court had not satisfied the separate-document requirement of Rule 58, and were apparently under the impression that they could not appeal the Order until a complementary judgment was separately entered.1 Hence, on January 14, 2004, Appellants filed a motion for entry of judgment on the Order. Appellants now claim that this motion was rendered moot on January 19, 2004, when they say entry of judgment was effected by operation of law pursuant to Federal Rule of Civil Procedure 58(b)(2)(B), and they appealed within 30 days thereafter (February 13, 2004). We address two questions. First, we determine whether Appellants filed a timely notice of appeal. As noted above, this requires us to decide whether the District Court’s Order satisfied the separate-document rule. Second, assuming Appellants’ notice of appeal was timely filed, we determine whether Appellants are entitled to compensation under the Plan. II. Jurisdiction: Separate-Document Rule A. Background Federal Rule of Appellate Procedure (“FRAP”) 4—in 1 This impression was incorrect. See Fed. R. App. P. 4(a)(2) (allowing parties to file a notice of appeal of a decision or order “before [its] entry”). 7 conjunction with Federal Rule of Civil Procedure 58—sets out the mechanism for determining when the time to appeal begins. FRAP 4(a)(1)(A) requires (with exceptions irrelevant here) that notices of appeal be filed “within 30 days after the . . . order appealed from is entered.” Thus, Appellants typically would have had 30 days from the entry of the Order to appeal. Under FRAP 4(a)(7)(A)(ii), however, “if Federal Rule of Civil Procedure 58(a)(1) requires a separate document” to put the parties on notice that the time to appeal has started, the appeal period begins on the earlier of (1) when that separate document is entered or (2) when 150 days have run from the entry of the Order in the docket. Because certain exceptions in Rule 58 do not apply here, the general requirement of Rule 58 governed: “[e]very judgment2 . . . must be set forth on a separate document,” Fed. R. Civ. P. 58(a)(1). To know whether Appellants’ appeal was 2 Although Rule 58(a)(1) refers to a “judgment,” Federal Rule of Civil Procedure 54(a) provides that “‘[j]udgment’ as used in these rules includes a decree and any order from which an appeal lies.” Fed. R. Civ. P. 54(a) (emphasis added). Also, the separate-document requirement applies to partial dispositions such as the Order before us—it was certified as final by the District Court under Federal Rule of Civil Procedure 54(b). See Fed. R. Civ. P. 58(a)(1) (not including Rule 54(b) certification orders in list of exceptions to separate- document requirement); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 363 (2d Cir. 2003). 8 timely, we must determine which date in Rule 4(a)(7)(A)(ii) applies to begin the appeal period: August 21, 2003, or January 19, 2004. If the former, Appellants’ appeal—filed on February 13, 2004—was too late; if the latter, the appeal was timely. The answer depends on whether the District Court’s Order qualifies as a separate document. Both Rule 58 and Rule 4 were amended in 2002. Before 2002, if a district court did not enter a separate judgment, the appeal period never started—and thus theoretically never ended. After the amendments, the lack of a separate document only gives the potential appellant another 150 days. The situation for potential appellants is now more certain, but the touchstone of the separate-document requirement remains: a judgment separate from an opinion or decision. We face the question whether the Order issued by the District Court (after an oral ruling) meets the separate-document requirement when it contains an extensive factual and procedural background discussion. B. Analysis Appellants assert that the Order was not a separate document in the way required by Rule 58(a)(1). Instead, they claim that judgment was entered by operation of law on January 19, 2004, pursuant to Rule 58(b)(2)(B) (providing that a judgment entered in the civil docket and subject to Rule 9 58(a)(1), but not set forth in a separate document, will be deemed “entered . . . when 150 days have run from entry in the civil docket . . . [August 21, 2003]”). (One hundred fifty days from August 21, 2003, is January 19, 2004.) Appellants filed their notice of appeal almost six months after the Order was entered but less than 30 days from the date on which Appellants claim the judgment was entered by operation of law. Whether their notice of appeal was timely filed thus depends on whether the Order was a separate document within the meaning of Rule 58(a). If it was, Appellants’ notice of appeal was not timely filed and their appeal must be dismissed. Our Court’s application of Rule 58(a) is controlled by Local Union No. 1992, IBEW v. Okonite Co., 358 F.3d 278, 285 (3d Cir. 2004). There we held that an “order’s denomination as an ‘order,’ rather than a ‘judgment,’ does not mean that it fails to satisfy the separate document requirement.” Id.3 Instead, we explained that an order will be treated as a separate document if it meets three criteria: first, the order must be self-contained and separate from the opinion; second, the order must note the relief granted; and third, the order must omit (or at least substantially 3 Some of our sister Circuits are divided on this point. Compare Kanematsu-Gosho, Ltd. v. M/T Messiniaki Aigli, 805 F.2d 47, 49 (2d Cir. 1986) (per curiam) (holding that a document must be denominated a “judgment” in order to satisfy Rule 58), with United States v. Johnson, 254 F.3d 279, 285 n.7 (D.C. Cir. 2001) (“The fact that the page is labeled ‘Order’ rather than ‘Judgment’ is not relevant.”). 10 omit) the District Court’s reasons for disposing of the parties’ claims. See id. (noting, by way of qualification as to the third criterion, that some “courts of appeals have found that including a bit of analysis does not run afoul of the separate judgment requirement,” but reserving judgment on that issue). The Order satisfies the first criterion. The whole document—not just the last page—is presented as an “order,” rather than an opinion, and this designation is confirmed by the docket. The Order is “self-contained” in the sense that it is not stapled or otherwise attached to an opinion or memorandum. Indeed, the only “opinion” that the District Court offered was its oral ruling on May 16, 2003.4 4 The District Court made clear that its oral ruling was the only opinion it would make available. See App. 27 (“I’m not going to spend time, gentlemen, crafting an opinion because frankly the issues are so uncomplicated that those who dislike the decision can order the [transcript] and take the appeal.”). In addition, at the end of the May 16 hearing the District Court suggested that its forthcoming order was the only document needed to get the appeals process started. See App. 30 (“So, those claims are denied. You can send in the order and I will sign it [and] then you can take your appeals.”). While it may seem counterintuitive, the fact that the parties knew, or should have known, that the Order was intended to serve as a final judgment does not make it compliant with Rule 58. See Gregson & Assocs. Architects v. Gov’t of the Virgin Islands, 675 F.2d 589, 592 (3d Cir. 1982) (applying separate-document 11  Appellants argue that the Order is not “separate from” the District Court’s prior oral ruling because it is the sole document issued by the District Court that purports to dispose of Appellants’ claims. The only authority they cite for this proposition is Miller v. Marriott International, 300 F.3d 1061 (9th Cir. 2002), where the Ninth Circuit held that, “because the dismissal order provide[d] the basis for the entry of judgment,” it is but a single document, and “one document, by definition, cannot also constitute a separate document.” Id. at 1064. While on its face Miller seems logical, we decline to follow it for several reasons. Rule 58 does not expressly state that the “separate document” must be distinct from another document (as opposed to an oral decision on the record). And we cannot discern any value that would be furthered by finding a two-document rule implicit in the text. Hence, the Rule is most reasonably read to mean only that the judgment must be set forth in a document that is independent of the court’s opinion or decision, regardless whether that opinion takes written form. Notably, Miller is at odds with every other authority we have found, including earlier Ninth Circuit precedent. In United requirement and holding that notice of appeal was timely filed because 30-day period never began to run, even though appellant correctly “believed that the order was the final judgment”). Put simply, Rule 58 is a touch-the-base requirement that lays perception aside. 12 States v. Schimmels (In re Schimmels), 85 F.3d 416 (9th Cir. 1996), for example, that Court held that a short order satisfied the separate-document requirement even though the “order was not followed by an additional document entering judgment.” Id. at 421.5 The Court observed: The separate judgment rule does not always require the filing of two separate documents. . . . [W]hen a court enters a short order that clearly constitutes a final decision, that short order meets the separate judgment rule. Similarly, if a court grants a summary judgment without writing an opinion or memorandum, then the order granting summary judgment is enough to meet the separate document requirement. . . . The separate judgment rule requires that the court enter a judgment or an order—it does not require that a court enter an initial memorandum or opinion. Id.; see also Pac. Empls. Ins. Co. v. Domino’s Pizza, 144 F.3d 1270, 1278 (9th Cir. 1998) (“[U]nder Rule 58, a district court is 5 Schimmels applied Bankruptcy Rule 9021, which contains a separate-document rule “identical to Federal Rule of Civil Procedure 58.” 85 F.3d at 420. 13 not even required to file two separate documents.”); Laidley v. McClain, 914 F.2d 1386, 1390 (10th Cir. 1990) (holding that a summary judgment order met the separate-document requirement and that the rule thus did “not require that two documents be used instead of one”), superseded by rule on other grounds; United States v. Perez, 736 F.2d 236, 238 (5th Cir. 1984) (per curiam) (holding that a district court order did not violate separate-document requirement of Rule 58, as “[t]he mere fact that the first sentence of the order adopts the magistrate’s report and recommendation . . . does not require that two documents be used by the district court rather than one”), superseded on other grounds as recognized in Kadelski v. Sullivan, 30 F.3d 399, 402 (3d Cir. 1994); United States v. Clearfield State Bank, 497 F.2d 356, 358–59 (10th Cir. 1974) (rejecting as “unfounded” the argument that “two documents are required in all cases,” and holding that Rule 58 was satisfied where no opinion was written because the “order granting summary judgment [was] itself a separate document”). In short, the Order satisfies the first of the three criteria set forth in Okonite for a separate document to exist under Rule 58(a) because it was a “self-contained” document that was separate from the District Court’s oral opinion. The second criterion set out in Okonite is also met, as the 14 Order does state the relief granted.6 That leaves the third criterion—omission of reasoning. As noted above, our Court has yet to rule whether an order that includes a modicum of analysis may satisfy the separate- document rule. See Okonite, 358 F.3d at 285. We need not resolve this question now, as the prefatory “whereas” clauses of the Order contain only facts, procedural history, and summary conclusions—not reasoning. Hence, the practical question we must decide is not whether a little bit of reasoning is acceptable, but whether a protracted recitation of facts and procedural history precludes the Order from serving as a “separate document” under Rule 58(a)(1). The aim of the separate-document requirement suggests that a lengthy description of facts and procedural history takes an order outside the realm of Rule 58(a). As the Supreme Court has explained, the “sole purpose of the separate-document requirement . . . was to clarify when the time for appeal . . . begins to run.” Bankers Trust Co. v. Mallis, 435 U.S. 381, 384 (1978) (per curiam). Clarification was needed because, prior to the adoption of the separate-document rule, 6 The Order reads: “Lead Plaintiffs’ motion for an Order adopting the Claims Administrator’s recommendation to reject all disputed Claims as set forth in Exhibits A and B hereto is GRANTED. All such Claims, as set forth in Exhibits A and B hereto[,] are rejected.” 15 court clerks would often enter judgments in the civil docket on the basis of opinions or memoranda “containing some apparently directive or dispositive words.” Id. (internal quotation marks omitted). If the opinion or memorandum on which an entry was based did not contain all the elements of a judgment, or if the judge later signed a formal judgment, it then became “a matter of doubt whether the purported [initial] entry of a judgment was effective” for purposes of starting the appeals period. Id. at 385 (internal quotation marks omitted). The addition of the separate-document requirement to Rule 58 was intended to “‘eliminate[] these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum . . . .’” Id. (quoting Fed. R. Civ. P. 58 advisory committee notes on 1963 amendments) (emphasis added). The goal of Rule 58(a) is to impose a clear line of demarcation between a judgment and an opinion or memorandum. The question thus becomes whether an extensive recitation of facts and procedural history is as fatal, for separate- document purposes, as an extensive recitation of legal reasoning and analysis. Facts—and conclusions of law—may be either stated orally at the close of evidence or written in an opinion or memorandum. Fed. R. Civ. P. 52(a). Neither are to appear in the Rule 58 judgment. Cf. id. A lengthy overview of background information, while not setting out the basis for a 16 decision as much as does legal reasoning, nevertheless partakes more of a judicial opinion or memorandum than it does of a judgment. Just as for legal reasoning, the purpose of providing such a factual overview is not to lay out the relief granted, but to offer context in which the court’s decision may be understood. Because of the purpose of Rule 58—to eliminate uncertainty—and because a putative judgment containing an extensive factual discussion might look to a party more like an opinion than a judgment, the mechanical application of Rule 58 does not, we believe, contemplate judgments containing extensive factual recitations to be separate documents. Our conclusion that the separate-document requirement does not allow for an extended presentation of facts and procedural history is supported by Model Forms 31 and 32 of the Federal Rules of Civil Procedure (“Judgment on Jury Verdict” and “Judgment on Decision by the Court”). See Fed. R. Civ. P. 58 advisory committee notes on 2002 amendments. Added as part of the 2002 amendment to Rule 58, these forms are intended to facilitate mechanical application of the Rule by providing examples of qualifying documents. We note the contrast between the Forms’ brief statements of the terms of the judgments and the extended recitation of factual and procedural history in the Order before us. The proposition that an extended presentation of facts and procedural history runs afoul of the separate-document requirement also finds support in the case law. See, e.g., 17 Diamond v. McKenzie, 770 F.2d 225, 230 n.10 (D.C. Cir. 1985) (per curiam) (holding that a three-page order containing two sentences on the case’s procedural posture and three sentences summarizing the court’s conclusions transformed the order into a “combined decision and order”). Indeed, we do not know of any authority holding that facts and procedural history should be treated differently than reasoning for purposes of determining whether an order satisfies the separate-document requirement. In all cases of which we are aware, the court’s analysis has focused on the extent to which the order includes material not traditionally found in a judgment, regardless whether that material consists of facts, history, or reasoning. See, e.g., Schimmels, 85 F.3d at 422 (holding that an order denying a motion for reconsideration satisfied the separate-document requirement where “[t]he order contains only a one-sentence recitation of the procedure, documents, and arguments considered by the court in denying the motion. There is no explanation of the reasoning of the court.”). Here, the District Court issued a six-page Order, five pages of which were devoted to expounding the background of the case. Significantly, this overview was not needed to state the relief granted. See Fed. R. Civ. P. 58 advisory committee notes on 2002 amendments (“It is easy to prepare a separate document that recites the terms of the judgment without offering additional explanation or citation of authority.” (emphasis added)). Nevertheless, the overview and the judgment were both set out in the same document. In these circumstances, the 18 Order does not satisfy the separate-document requirement. After all, “the rule is designed to simplify and make certain the matter of appealability.” Bankers Trust Co., 435 U.S. at 386 (internal quotation marks omitted). That goal would be thwarted by foreclosing an appeal where a party was reasonably in doubt whether a final order complied with the formalities of Rule 58(a). See United States v. Indrelunas, 411 U.S. 216, 221–22 (1973) (per curiam) (“[T]he separate document provision . . . [is] a mechanical change that must be mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered.” (internal quotation marks omitted)); see also id. at 219 (emphasizing that the purpose of the separate-document requirement was “to remove uncertainties as to when a judgment is entered”).7 7 Attempting to show that the Order satisfies the separate- document requirement, Appellees note that in its last paragraph the document is twice referred to as a “Final Order.” See Appellees’ Letter Brief dated March 10, 2004, at 3. But this fact does not help their cause, as an order or judgment may be final without complying with the formalities of Rule 58. See Shalala v. Schaefer, 509 U.S. 292, 303 (1993) (“Since the District Court’s April 4 remand order was a final judgment, a ‘separate document’ of judgment should have been entered.” (citation omitted)); id. at 303 n.6 (“By entering a . . . remand order, the District Court did enter a judgment; it just failed to comply with the formalities of Rule 58 in doing so.” (emphasis in original)); Diamond, 770 F.2d at 229 (holding that the fact that a document was a “‘final order of the Court’” does not resolve the Rule 58 19  ***** In sum, Appellants’ notice of appeal was only timely if the Order was not a separate document within the meaning of Rule 58(a). The Order was not because it contained an extended discussion of facts and procedural history. This discussion raised doubt to Appellants whether a final judgment had been entered. Doubt is exactly what the separate-document requirement was designed to avoid. See Bankers Trust Co., 435 U.S. at 386 (“[Rule 58] should be interpreted to prevent loss of the right of appeal, not to facilitate loss.” (internal quotation marks omitted)); Diamond, 770 F.2d at 230 (“It is precisely this kind of uncertainty about whether the District Court intended to enter a final order that warrants the mechanical application of Rule 58.”). Our decision here is designed to make the mechanical application of Rule 58 easier, and more simple, for judges and parties. For judges, the separate judgment should be as minimal as possible to comply with Rule 58’s requirements, and should include little more.8 (See, for example, Forms 31 and 32 of the problem, since the “question whether an order is a final order is separate from the question whether a separate document setting forth the judgment has been properly entered”). 8 Indeed, we cannot resist observing that the spare simplicity of a Rule 58 separate judgment (as bare-boned as “Defendant’s motion for summary judgment is denied.”) seems to many of us 20 Federal Rules of Civil Procedure. In fact, the District Court’s language quoted in our footnote 6 is all that the Court needed.) For parties, these minimal judgments make clear when the time to appeal is at hand.9 In this context, Appellants were entitled to consider January 19, 2004, as the “magic date” to begin their appeal period. Filing that appeal on February 13, 2004, was thus timely. III. Merits Because the notice of appeal was timely filed, we now reach the merits. We must decide whether the District Court erred in granting lead plaintiffs’ motion to adopt the claims counter to the custom of “talking orders” that explain in detail the context and reasons for a ruling (thus avoiding the need for an accompanying opinion). 9 We note, however, that Appellants took the wrong course in their uncertainty. When parties are in doubt about whether the separate judgment rule has been met, they should file a notice of appeal. A too-late appeal is fatal, but a too-early appeal provides safety, as a premature appeal becomes effective on the entry of the judgment or order, Fed. R. App. P. 4(a)(2). Here, an early appeal would have avoided all dangers (including the possibility that we might have held the Order to have satisfied the separate-document requirement). 21 administrator’s recommendation to reject all disputed claims, including that of Appellants. The backdrop for these rejections is as follows. Appellants were denied any payment from the settlement, which they claim to be an error. Their principal contention (although the different Appellants each have different individual arguments) is that the District Court improperly “netted” their gains on the sale of Cendant stock against the losses calculated under the Plan. This netting of gains and losses left them with no payments due under the Plan. Section IV of the Plan gives specific calculations of allowed loss amounts for each share held to the end of the Class Period.10 But Section V(B) does two things. First, it matches stock acquisitions with subsequent stock sales on a first-in-first- out basis—the matching provision. Second, it subtracts all stock-sale profits from any losses to reduce claimant recoveries—the netting provision. We quote Section V(B) in full (adding emphasis to show the matching and netting provisions): For Class Members who made multiple purchases, acquisitions or sales during the Class Period, the earliest subsequent sale shall be 10 Appellants are not entitled to any compensation for the shares they sold before April 15, 1998. 22  matched with the earliest purchase and chronologically thereafter for purposes of the Claim calculations. PLEASE NOTE: ALL PROFITS SHALL BE SUBTRACTED FROM ALL LOSSES ON ALL TRANSACTIONS OF CUC AND CENDANT PUBLICLY-TRADED SECURITIES DURING THE CLASS PERIOD TO DETERMINE THE NET CLAIM OF EACH CLASS MEMBER. IF A CLASS MEMBER MADE A NET PROFIT, THE VALUE OF HIS, HER OR ITS CLAIM SHALL BE ZERO. Appellants all want some recovery based on the shares they held to the end of the Class Period (10,790 shares for Danuff; 2,103,196 shares for SKAT; and 56,250 shares for Zychick). Each Appellant made some profits on the stock they sold during the Class Period. And the District Court found that—based on the netting provision—those profits outweighed any losses Appellants had on the shares they continued to hold, thus giving them no recovery. Appellants make three arguments in opposition to the Plan’s netting provision. First, all assert that the “general” netting provision of the Plan does not apply to any of them because their “specific” loss calculations are governed solely by another Plan section, which does not contain a netting provision. 23 Second, Danuff and SKAT claim that the netting provision does not apply to them because they did not engage in “multiple transactions” that trigger netting. Third, SKAT contends that, even if deemed subject to the netting provision, it was entitled to compensation because it did not reap a net gain. We address each claim in turn.11 A. Whether netting provision applies to Appellants? Appellants first claim that the netting provision in Section V(B) of the Plan does not apply to them because the Plan elsewhere provides that their losses should be calculated solely on the basis of the methodology set forth in Plan Section IV. As Section IV carves out a “specific” rule for Cendant stock obtained in exchange for the stock of acquired companies (such as Getko), Section V’s general provisions, they argue, do not apply to them. We disagree. Although the specific usually controls the general in contract construction, we are to construe a contract as a whole. Capitol Bus Co. v. Blue Bird Coach Lines, Inc., 478 F.2d 556, 560 (3d Cir. 1973). Both provisions apply to the pool of claimants; they simply have different functions. Section IV 11 The District Court’s interpretation of the Plan is reviewed de novo. See In re Orthopedic Bone Screw Prods. Liab. Litig., 350 F.3d 360, 364 (3d Cir. 2003). 24 covers all claimants, dividing potential claims into five categories; its five corresponding parts calculate the loss amount for each kind of claim. But the loss amount is not the same as the net claim. Section V applies to all claimants who sold stock acquired during the Class Period or who made profits on Cendant stock sales. Section V does not change the way that losses are calculated, but it provides that those losses should be offset by any profits to arrive at the net claim amount. Both provisions are specific within their spheres. Section IV is specific to loss amounts (as the title “SPECIFIC LOSS AMOUNTS” indicates), and Section V is specific to net claims (by reducing loss amounts for claimants who have made profits on Cendant stock sales). Moreover, because Section IV governs the loss calculation of every claim, accepting Appellants’ argument would rob Section V of any effect. The text of the netting provision of the Plan’s Section V(B) (quoted above) is the only part of the Plan printed in all caps, and its language could not be more explicit (“ALL PROFITS SHALL BE SUBTRACTED FROM ALL LOSSES”). Yet Appellants not only fail to offer a valid basis for arguing that the netting provision does not apply to them, and they also fail to explain why the Plan might be crafted to compensate shareholders who reaped a net profit. Section V(B)’s matching provision is also part of the Plan’s general purpose, designed to apply to every claimant who sold shares during the Class Period. Complementing Section 25 V(B) is Section II(B). It describes how loss amounts will be calculated in general and provides that, “[i]n calculating the Loss Amount for each claim, a sale of a security during the Class Period will be matched first against those securities in the opening position [i.e., held before the Class Period], and then matched chronologically against each purchase or acquisition of that security made during the Class Period.” Plan § II(B) (emphasis in original). This makes clear that matching will be performed for each claimant, where that claimant sold any shares. Appellants’ interpretation is thus objectionable for three reasons: it violates the principle that a legal text should be interpreted to give effect to every provision, see Capitol Bus Co., 478 F.2d at 560 (“A contract is to be considered as a whole, and, if possible, all its provisions should be given effect . . . .”); it departs from the unambiguous terms of the Plan; and it carves out an unexplained and inexplicable exception to the netting provision. B. Whether Danuff and SKAT escape the netting provision because they did not engage in multiple transactions? Two Appellants, Danuff and SKAT, argue that the netting provision does not apply to them because they did not engage in multiple transactions. In support of this claim, they note that “both Appellants made but one sale of a portion of his 26 [its] shares, holding the remaining shares beyond the end of the Class Period.” In other words, Danuff and SKAT contend that, because they made only one sale, they were involved in only one transaction. The assumption underlying this argument is that the initial acquisition of their shares was not a transaction within the meaning of Section V(B).12 This assumption is invalid for three reasons. First, the text of the provision does not exclude an initial acquisition from the phrase “purchases, acquisitions or sales.” Given that an initial acquisition is a type of acquisition, the text of the Plan would seem to favor its inclusion. Second, excluding the initial acquisition does not accord with the purpose of the netting provision—to make sure that the calculation of compensable losses is offset by profits, many of which were reaped because of artificially high share prices attributable to fraudulent accounting practices. That aim is no less on point when a claimant has only made one sale during the Class Period. Thus, it makes no sense to think that the netting provision is not triggered by the sales executed by Danuff and SKAT. 12 Danuff and SKAT do not argue that the term “multiple” means more than two. “Multiple” is commonly defined as “more than one.” See The American Heritage Dictionary of the English Language 1186 (3d ed. 1992). 27  Third, if Section V(B)’s matching provision applies to Danuff and SKAT, its netting provision also applies to them. As noted above, Section V(B)’s matching provision applies to each claimant who acquired securities during the Class Period and then sold securities during the Class Period. See also Plan § II(B). Danuff and SKAT both acquired CUC securities during the Class Period. The deemed date of acquisition was the effective date of the Getko–CUC acquisition: June 27, 1995. Plan § IV(B)(2)(a). Danuff and SKAT sold some of these securities during the Class Period. Thus, they are subject to Section V(B)’s matching provision. There is no sensible reason, therefore, that they would not be subject to Section V(B)’s netting provision as well. Significantly, they do not identify any interest that would be served by restricting the reach of the netting provision to claimants who have made more than one sale. Nor do they explain the anomaly their interpretation would yield: for example, a claimant who sold 500 shares on one occasion would not be subject to the netting provision, but a claimant who sold 250 shares on two separate occasions would, even though both sold a total of 500 shares. In sum, the text and purpose of the netting provision are both at odds with the interpretation urged by Danuff and SKAT. C. Whether SKAT had a net loss or gain under the 28 Plan? Finally, Appellants argue that SKAT’s sale of its Cendant stock during the Class Period should have no effect on its recovery for losses from the stock it held until the end of the Class Period. In any event, they argue, even if netting does apply, it did not realize a net gain and should receive some money from the settlement. As for the first argument, the plain language of the netting provision controls. It reads: “All profits shall be subtracted from all losses on all transactions of CUC and Cendant publicly-traded securities during the Class Period to determine the net claim of each Class Member. If a Class Member made a net profit, the value of his, her or its claim shall be zero.” Plan § V(B) (capitalization altered). SKAT made a sale during the Class Period, and that sale resulted in some profits. Under the netting provision, this profit must be set off against SKAT’s losses to determine its net claim. SKAT’s stock sales do have an effect on its recovery for losses from unsold stock. Meeting the second argument requires some arithmetic. SKAT describes itself as having a $3,188,385 profit from its sale and a $3,407,178 loss under Section IV(B)(2). Thus, it argues that it had a net loss (and consequently a payable claim). The principal problem with SKAT’s calculations is that it used 29 September 6, 1995,13 as the acquisition date. As noted above, the correct acquisition date is June 27, 1995. See Plan § IV(B)(2)(a). SKAT sold 261,129 shares on January 20, 1998, at $34.88 each—for a total of $9,108,180. The stock price on June 27, 1995, was $18.44. SKAT’s January 20, 1998 sale thus represented a $4,292,961 profit—that is, 261,129 multiplied by the share-price difference ($16.44) between the correct acquisition date (June 27) and the sale date (January 20, 1998). So we know SKAT’s profits ($4,292,961). Under the netting provision, we must subtract these profits from all losses on Cendant securities transactions. Plan § V(B). If SKAT is left with a net profit, it does not get a payout from the Plan. Id. Now we must calculate SKAT’s losses on Cendant stock. The Plan provides that, for holders of Cendant stock acquired in a business acquisition (like the Getko–CUC merger), we multiply the number of unsold shares held by SKAT (2,103,196) by the Plan’s defined per-share loss amount. Id. § IV(B)(2)(a). This per-share loss amount is based on the amount of artificial inflation (from the accounting irregularities) built into Cendant’s share price. Id. § III. The Plan provides a specific per-share loss amount for each acquisition date in the Class Period. Id. tbl.A. The per-share loss amount for June 27, 1995, is $0.66. 13 SKAT’s brief misstates this as “September 6, 2004.” 30 Multiplying $0.66 times 2,103,196 gives us $1,388,109—SKAT’s losses on Cendant stock. Netting SKAT’s profit ($4,292,961) and its loss ($1,388,109) gives SKAT almost $3 million in net profit. The bottom line: SKAT’s profit far outweighs its loss amount. Thus, it is not entitled to any payout. IV. Conclusion In sum, we reach two conclusions. As to jurisdiction, we hold that Appellants filed a timely notice of appeal on February 13, 2004. The District Court’s final order failed to comply with the separate-document requirement of Federal Rule of Civil Procedure 58. Lengthy recitation of facts and procedural history prevents an order from serving as a separate document within the meaning of the Rule. Because the District Court’s order did not satisfy Rule 58, the time limit for filing an appeal did not start to run until January 19, 2004, when entry of judgment was effected by operation of law. As to the merits, we conclude that none of Appellants’ three arguments is meritorious. First, Sections IV and V of the Plan are not mutually exclusive provisions; thus, Appellants are not exempt from the netting provision of Section V(B) simply because the method of computing their loss amount is set out in Section IV. Second, Danuff and SKAT err in asserting that they did not engage in multiple transactions; because the initial 31 acquisition of Cendant stock counts for purposes of the multiple transactions provision, any subsequent sale suffices to trigger the netting provision. Finally, SKAT is not entitled to compensation under the Plan because, under its terms, SKAT reaped a net gain rather than a net loss. We thus affirm the judgment of the District Court. 32 

28 F.3d 971 Ashley Hunt GREENWOOD, Petitioner-Appellant,v.FEDERAL AVIATION ADMINISTRATION, Respondent-Appellee. No. 93-70003. United States Court of Appeals,Ninth Circuit. Submitted March 17, 1994*.Decided June 28, 1994. Michael J. Harrington, Sacramento, CA, for petitioner-appellant. Jerome P. Jones, Jr., F.A.A., Washington, DC, for respondent-appellee. On Petition for Review of an Order of the Federal Aviation Administration. Before: D.W. NELSON, BOOCHEVER, and BEEZER, Circuit Judges. Opinion by Judge BOOCHEVER. BOOCHEVER, Circuit Judge: 1 Petitioner-appellant, Ashley Greenwood, challenges the suspension and nonrenewal of his designation as a pilot examiner by the Federal Aviation Administration ("FAA"). The only issues properly raised are claimed due process violations, and we find that Greenwood's procedural due process rights were not violated. Accordingly, we affirm. BACKGROUND 2 Ashley Greenwood was a designated pilot examiner for fourteen years pursuant to Sec. 314(a) of the Federal Aviation Act ("FA Act"), 49 U.S.C. app. Sec. 1355(a) (1988), which allows the FAA to delegate to an examiner the authority to test pilots and to issue pilot certificates. The pilot examiner designation ("PED") is a one-year designation, renewable at the discretion of the Secretary of Transportation. A PED can be revoked, terminated, not renewed or suspended at any time and for any reason deemed appropriate by the Secretary. 49 U.S.C. app. Sec. 1355(a). The FAA has, however, developed internal procedures to guide the suspension, nonrenewal, or termination of a PED. See FAA Order 8700.1, Sec. 9 (1989). 3 On May 13, 1992, Greenwood was informed that his PED was temporarily suspended pending an investigation of an incident that had occurred on April 12, 1992, during an FAA "flight check" test of Greenwood. During the test, Greenwood's decision to perform an unrequired maneuver had resulted in a hard landing. Greenwood was informed that if he wanted to discuss the matter, he should contact FAA Inspector Howard Manning. Greenwood and Manning met several days later; Manning counselled Greenwood, and Greenwood acknowledged his judgment error and the deficiency in his technique and standards which led to the flight check incident. Greenwood agreed to submit a written explanation of the incident. The suspension of Greenwood's testing authority was then lifted, less than a week after it was imposed, but Manning's report indicated that he had decided to recommend that Greenwood's PED not be renewed when it expired on May 31, 1992. 4 In response to the counselling, Greenwood wrote to Manning explaining the flight check incident. He also stated in his explanatory letter that he believed that he was not being recommended for renewal because of his age. Manning and Greenwood discussed the April flight check incident again, and Greenwood decided to apply for renewal of his PED despite Manning's recommendation against renewal. His application for renewal was submitted on May 27, 1992, only four days prior to the automatic expiration date of the PED instead of the required sixty days. 5 On May 29, Greenwood took a flight check test for renewal of the PED with Inspector Rick Mayfield. He did not pass that test, based on a failure to demonstrate adequate performance, and the Oakland Flight Standards District Office declined to renew the PED. Greenwood then wrote to the FAA on June 13, 1992, for information concerning the agency's intentions regarding the renewal of his PED. On June 30, 1992, the FAA Flight Standards Division concurred in the decision of the Oakland office not to renew Greenwood's PED. 6 Greenwood was informed in writing on August 14, 1992, that his application for renewal of his PED was disapproved. He was offered an opportunity to submit an application for reinstatement of the PED, which he refused. He then wrote to FAA Administrator Thomas Richards, asking him to investigate the disapproval. On November 4, 1992, Thomas Accardi, Director of the FAA Flight Standards Service, wrote to Greenwood stating that he had received a report of the information relevant to Greenwood's situation and that he agreed with the decision of the regional director not to renew the PED. Accardi's reasons included Greenwood's demonstrated lack of competence for renewal, and his failure to complete an appropriate application for reinstatement of designation. Greenwood was again offered the opportunity to reapply and be retested for reinstatement of the PED. He did not accept and instead appealed the agency's decision directly to this court, pursuant to 49 U.S.C. app. Sec. 1486(a) (1988). DISCUSSION 7 Greenwood raises numerous issues for our consideration. He challenges the FAA's decision not to renew his PED as arbitrary and capricious; he claims his due process rights were violated both when his PED was suspended and when it was not renewed; he claims that Sec. 314 of the FA Act is unconstitutional; he challenges the agency's renewal procedures, alleging that they were promulgated in violation of the Administrative Procedure Act ("APA"); he claims his PED was not renewed in violation of APA procedures for protection of licenses; and finally, he claims that the FAA violated his fifth amendment right to equal protection by discriminating against him on the basis of his age. We address each of these claims in turn. I. Substantive Review 8 Greenwood argues that the FAA's decisions to suspend and not to renew his PED were arbitrary and capricious. We cannot review these contentions, however, because we lack jurisdiction to review the merits of an FAA decision to suspend or not to renew a PED. See Adams v. FAA, 1 F.3d 955, 956-57 (9th Cir.1993) (per curiam) (court of appeals has no jurisdiction to review decision not to renew a PED because there is "no judicially-manageable standard by which [it can] review the FAA administrator's decision"), cert. denied, --- U.S. ----, 114 S.Ct. 690, 126 L.Ed.2d 657 (1994).1 II. Due Process Requirements 9 Greenwood argues that his procedural due process rights were violated when the FAA suspended and then decided not to renew his PED. We have jurisdiction to review this claim. See 49 U.S.C. app. Sec. 1486(a) (court of appeals has exclusive jurisdiction to review any order issued by the Board or Secretary of Transportation under the statutory provisions of the Federal Aviation Program); Green v. Brantley, 981 F.2d 514, 516 (11th Cir.1993) (constitutional challenge to FAA order terminating PED is reviewed exclusively by court of appeals); Webster v. Doe, 486 U.S. 592, 603-04, 108 S.Ct. 2047, 2053-54, 100 L.Ed.2d 632 (1988) (in the absence of very explicit language from Congress precluding review of constitutional claims, judicial review of colorable constitutional claims is available, even where statutory claims are otherwise committed to agency discretion). 10 To be entitled to procedural due process, a party must show a liberty or property interest in the benefit for which protection is sought. Morrissey v. Brewer, 408 U.S. 471, 480-81, 92 S.Ct. 2593, 2599-2600, 33 L.Ed.2d 484 (1972). If the party establishes that such an interest exists, a court determines what process was due and whether the party was actually afforded such process. Id. at 481-82, 92 S.Ct. at 2600-01. Here, Greenwood claims that he had both a property and a liberty interest in the PED and that he was therefore entitled to due process in connection with the temporary suspension of his PED and its nonrenewal. A. Temporary Suspension 11 Although our inquiry normally would begin with a determination of whether Greenwood had either a property or liberty interest in the current PED at the time it was suspended, we need not make such a determination here because it is clear that, in any event, Greenwood was afforded due process. But see White v. Franklin, 637 F.Supp. 601, 610 (N.D.Miss.1986) (PED qualifies as protected property interest entitled to procedural due process if terminated during its one-year period of duration). 12 The suspension of Greenwood's PED was a temporary measure, taken after an incident which resulted in concern about the safety of Greenwood's technique and standards and his judgment as a designated pilot examiner. Greenwood was informed in writing that the PED was being temporarily suspended pending investigation of the flight check incident. He was given the name of a person to contact with questions. He was then allowed to explain the situation, and the suspension was lifted, all within a period of less than a week. This was adequate process under the circumstances, even if Greenwood had a property or liberty interest in the current PED. See Mathews v. Eldridge, 424 U.S. 319, 332-35, 96 S.Ct. 893, 901-03, 47 L.Ed.2d 18 (1976) (extent of due process required depends upon particular interests affected). See also Reid v. Engen, 765 F.2d 1457, 1463 (9th Cir.1985) (written notice and informal conference prior to suspension of pilot certificate for 120 days satisfied due process requirements). Although the notice and opportunity to discuss the suspension came after the suspension was imposed rather than prior to it, the suspension was a necessary safety measure, and the notice, counselling, and removal of the suspension followed promptly. Cf. 5 U.S.C. Sec. 558(c) (1988) (APA provision allowing suspension of license without prior notice and opportunity to be heard when public health, interest, or safety so requires). We therefore find that Greenwood received adequate procedural due process as to the temporary suspension of his PED. B. Nonrenewal 13 Greenwood also claims that his procedural due process rights were violated when the FAA made its decision not to renew his PED. We hold that Greenwood did not have a property or liberty interest in a renewed PED, and thus he was not entitled to procedural due process prior to nonrenewal. 14 "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Property interests are not created by the Constitution, "they are created and their dimensions are defined by existing rules or understandings that stem from an independent source." Id. 15 In Roth, a professor was not rehired after a one-year term at a state university. The decision to rehire an untenured, one-year appointee was committed by state law to the complete discretion of university officials. The Court thus held that Roth had no legitimate claim of entitlement to reemployment. Id. at 578, 92 S.Ct. at 2709. If the nonrenewal of his contract had imposed a stigma, the action might have been a deprivation of a liberty interest requiring a hearing, but the mere discharge of an untenured professor imposed no such stigma. Id. at 573-74, 92 S.Ct. at 2707-08. 16 Greenwood's situation is similar to that of the plaintiff in Roth. The decision to renew a PED is left to the complete discretion of the granting agency, the FAA. Each holder of a PED must apply for renewal each year, and there is no "right" to automatic renewal. Thus, each year that he held the PED, Greenwood had to apply for renewal and pass a test, and even then, he was not assured that the PED would be renewed. Any expectation that the PED would be renewed was therefore a unilateral expectation on Greenwood's part, not a valid claim of entitlement. 17 Moreover, no authority from this circuit requires a finding that the renewal of the PED is a protected property interest, although Greenwood cites two cases from this circuit which he claims support his assertion. In G.S. Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 900-03 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2927, 124 L.Ed.2d 678 (1993), we found that under state law an engineer had a protected property interest in an entirely different kind of certificate, an FAA design modification certificate, which was transferrable, licensable, and nonexpiring, unlike the PED. In the other cited case, Brady v. Gebbie, 859 F.2d 1543, 1548 (9th Cir.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989), we stated that "[w]here state employees serve at the will of the appointing authority, ... there is no ... reasonable expectation of continued employment, and thus no property right." Brady 's finding that state employees did not have property interests in their jobs does not support Greenwood's claim that he has such an interest in the renewal of his PED. 18 We conclude that Greenwood did not have a property interest in a renewed PED. 19 Neither does Greenwood have a liberty interest in a renewed PED. Greenwood claims that he had a liberty interest because he was deprived of his choice of occupation and his reputation was adversely affected. In Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir.1990), cert. denied, 499 U.S. 905, 111 S.Ct. 1104, 113 L.Ed.2d 214 (1991), we held that because the plaintiff did not have a cognizable property interest in her security clearance, "there [was] no liberty interest in employment requiring such clearance." Id. Similarly, because Greenwood does not have a protected property interest in the renewed PED, we hold that he has no liberty interest in employment requiring the use of a PED. 20 Furthermore, the nonrenewal did not "deprive[ ] [Greenwood] of the right to earn a living. [He] has only been deprived of the ability to pursue employment requiring a [PED]." Id. The agency's action did not deprive Greenwood of a career (he is a professionally certified commercial pilot and flight instructor). He simply can no longer pursue a certain line of business with the government. 21 Greenwood also alleges that he has a liberty interest because his reputation was adversely affected by the non-renewal of the PED. There is no evidence in the record of this adverse effect, nor is there evidence that the FAA purposefully stigmatized him with the dismissal. When a government employee is fired and that firing is accompanied "by a 'charge against him that might seriously damage his standing and associations in his community,' " then a due process right to a hearing might be triggered. See Owen v. City of Independence, 445 U.S. 622, 633 n. 13, 100 S.Ct. 1398, 1406 n. 13, 63 L.Ed.2d 673 (1980) (quoting Roth, 408 U.S. at 573, 92 S.Ct. at 2707). If, however, the government simply declines to reemploy someone, without making any accompanying charges of dishonesty, immorality, or the like, that act alone normally is not sufficient to impose a stigma that would trigger due process protections. Roth, 408 U.S. at 575, 92 S.Ct. at 2708 ("It stretches the concept too far to suggest that a person is deprived of 'liberty' when he simply is not rehired in one job but remains free as before to seek another."). We therefore find that Greenwood did not have a liberty interest in the renewal of the PED. 22 Because we find that Greenwood had neither a property nor a liberty interest in a renewed PED, he was not entitled to procedural due process in the renewal process. Accordingly, his claim that his due process rights were violated by the FAA's actions fails. III. Statutory Challenge 23 Greenwood next argues that Sec. 314 of the FA Act is unconstitutional. The basis of this argument, however, is difficult to decipher. We cannot discern from Greenwood's brief whether he means to allege that the congressional grant of discretion to the FAA is overbroad and therefore unconstitutional, whether he means to assert that the statute is unconstitutional because it precludes judicial review of FAA decisions concerning PEDs, or whether his claim is based on some entirely different ground. 24 Moreover, Greenwood presents no authorities to support his claims from which we might glean the direction of his challenge to the statute. Nor were his arguments elucidated by his reply brief. In addition, because this argument is raised for the first time on appeal, there is no information from the agency proceedings concerning this claim. 25 We might otherwise consider a challenge to the constitutionality of a statute even though it was not presented to the agency. See Reid, 765 F.2d at 1460-61 (court can review an issue not raised to the agency because agency lacked power or jurisdiction in situations "typified by challenges to the constitutionality of the statute"). Nevertheless, we cannot do so here. We review only issues which are argued specifically and distinctly in a party's opening brief. Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.1986). We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim, particularly when, as here, a host of other issues are presented for review. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (per curiam). As the Seventh Circuit in Dunkel stated aptly: "[j]udges are not like pigs, hunting for truffles buried in briefs." Id. 26 Accordingly, Greenwood's challenge to the constitutionality of Sec. 314 of the Federal Aviation Act is waived due to his failure to present a specific, cogent argument for our consideration. IV. Administrative Procedure Act Violations 27 Greenwood argues that his rights under the APA were violated when the FAA suspended and then did not renew his PED. He claims both that the FAA's internal procedures for handling PED suspensions and renewals were promulgated in violation of the APA, and that his PED was a "license" under the APA, which was not renewed in violation of APA procedures. Greenwood did not raise these claims before the agency, and thus he has waived his right to raise these claims on appeal from the agency's decision. See Howard v. FAA, 17 F.3d 1213, 1216 (9th Cir.1994) (no review of objection to an order of the National Transportation Safety Board unless raised to the agency, absent reasonable grounds for the failure to raise the objection); Reid, 765 F.2d at 1462 (court will not consider constitutional assertion that a procedural error resulted in an excessive sanction since assertion was not raised before the agency); Tiger Int'l, Inc. v. Civil Aeronautics Board, 554 F.2d 926, 936 n. 18 (9th Cir.) (when holding company did not argue to the Board that it was constitutionally required to hold a hearing before entering its order, company was not allowed to raise such an argument on appeal from the order), cert. denied, 434 U.S. 975, 98 S.Ct. 532, 54 L.Ed.2d 467 (1977). 28 Although there is some suggestion in the record that the FAA did not follow its own internal review procedures in the renewal process, Greenwood did not specifically and distinctly argue this matter in his opening brief. We therefore do not consider this matter on review. Miller, 797 F.2d at 738. V. Age Discrimination 29 Finally, Greenwood asks us to declare that his Fifth Amendment equal protection rights were violated because the primary reason his PED was suspended and not renewed was his age. 30 We do not address this issue because it is not properly developed for review by this court. Our jurisdiction to review agency orders under 49 U.S.C. app. Sec. 1486(a) "depends on the adequacy of the administrative record," because the review must be sufficiently informed to permit a fair evaluation of the claims. Southern Cal. Aerial Advertisers' Ass'n v. FAA, 881 F.2d 672, 676 (9th Cir.1989). 31 A sufficient administrative record is one that permits an informed judicial evaluation of the issues raised. Id. A limited agency record may preclude review of substantive claims. Id. Here, we cannot review Greenwood's age discrimination claim because the only information in the record is Greenwood's own assertions in letters to the FAA that he believes the agency's motivation was his age. 32 Moreover, Greenwood asks us to declare that his equal protection rights were violated on the basis of "evidence which will be developed later in the District Court actions," and his assertion that "[it] will be shown later [that] ... discussion [by the FAA] focused on Petitioner's age." Greenwood thus acknowledges that he has yet to make a showing of any kind on his equal protection claim. Not only is the record inadequate for review, there is not even a decision from the agency or any other adjudicator for us to review. We therefore do not consider this issue. CONCLUSION 33 Although Greenwood raises many issues for our consideration, only the question whether his due process rights were violated is properly before us. We decline to decide whether Greenwood had any protected interest in the current PED when it was suspended, because adequate process was afforded him under the circumstances. Moreover, because Greenwood had no property or liberty interest in a renewed PED, he was not entitled to procedural due process when the agency made its decision not to renew. Accordingly, the decision of the FAA is AFFIRMED. * The panel unanimously finds this case suitable for submission without oral argument pursuant to Fed.R.App.P. 34(a) and 9th Cir.R. 34-4 1 Although Adams only addressed the nonrenewal of a PED, the FAA's suspension of a PED is pursuant to the same congressional grant of discretionary authority to the Secretary which left us without any judicially manageable standard to review PED renewal decisions in Adams

FILED April 13, 2018 Carlos D. Silveti v. Ohio Valley Nursing Home, Inc., No. 17-0746 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS WALKER J., dissenting. OF WEST VIRGINIA The majority’s application of West Virginia Code § 23-4-8(c) and (e) (2017) is a well-intended, but misguided, effort to see that a workers’ compensation claimant is reimbursed for his $37 lunch at Outback Steakhouse, consumed during a six-hour trip to undergo an independent medical examination (IME). However, it voids the Insurance Commissioner’s interpretation of the term “reasonable,” found in § 23-4-8(c)—an interpretation that is consistent with the statute’s plain language and ordinary construction. Accordingly, I would affirm the Board of Review’s decision that Mr. Silveti’s down-under repast is not a reasonable travel expense that is reimbursable under § 23-4-8(c). When a workers’ compensation claimant must appear for an IME,1 West Virginia Code § 23-4-8(c) obligates the party requiring the medical examination to “reimburse the claimant for loss of wages and reasonable traveling expenses as set forth in [§ 23-4-8(e)] and other expenses in connection with the examination or examinations.”2 The Legislature specified in § 23-4-8(e) that a “claimant’s traveling expenses include, at a minimum, reimbursement for meals, lodging and milage.” Reading subsections (c) and (e) in para materia,3 it is apparent that the Legislature did not mandate that a claimant receive 1 See W. Va. Code § 23-4-8(a) (2017). 2 Id. § 23-4-8(c) (emphasis added). 3 See Syl. Pt. 2, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) (“In ascertaining legislative intent, effect must be given to each part of 1 reimbursement for every meal expense incurred in the course of travel to an IME. Rather, under subsection (c), the claimant is entitled to reimbursement only for his reasonable meals. Thus, the Legislature made plain in § 23-4-8(c) that some meals, consumed during travel to or from an IME, would not be reimbursable. The Legislature defined “traveling expenses” for purposes of West Virginia § 23-4-8(c). It did not define “reasonable,” the adjective that controls which “traveling expenses” are reimbursable, however. The Insurance Commissioner, acting on the authority delegated to him by the Legislature,4 filled in this gap with West Virginia Code of State Rules § 85-1-15.1. That rule states that, “[i]n determining the reasonableness of such expenses, the responsible party shall utilize the travel regulations for State employees as a guide, unless specific provisions to the contrary are otherwise contained herein.”5 The State employee travel regulations provide that “[m]eal expenses are reimbursable for travel requiring overnight lodging.”6 the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.”). 4 See W. Va. Code § 33-2-10(b) (2017) (Insurance Commissioner may “promulgate rules necessary to discharge his or her duties relating to workers’ compensation insurance . . . .”). 5 W. Va. C.S.R. § 85-1-15.1 (emphasis added). 6 Id. § 148-NA-4.3. 2  Thus, the Insurance Commissioner’s regulation provided claimants, insurers, self-insured employers, and third-party administrators with a binary rule to determine when a claimant’s meal was a “reasonable travel expense,” and, therefore, reimbursable. If the meal was consumed in the course of travel requiring overnight lodging, then the meal was a reasonable travel expense and reimbursable. If it was consumed during a trip that did not require overnight lodging, then the meal was not a reasonable travel expense and not reimbursable. Considering that the Legislature made plain in West Virginia Code § 23-4-8(c) that some meals, consumed during travel to or from an IME, would not be reimbursable, I fail to see how the de facto rule that will emerge from the majority’s opinion7 differs in any substantive way from the Insurance Commissioner’s. Both rules result in the reimbursement of some meals and the denial of others. Thus, if the Insurance Commissioner’s rule contravenes the plain language of § 23-4-8(c), as the majority concludes it does, then the majority’s de facto rule does, as well. Moreover, one wonders how much time Mr. Silveti spent consuming his post-IME meal. Forty-five minutes? Ninety minutes? Based on the majority’s opinion, it appears that Mr. Silveti’s time at table is included in the six hours of travel time. This 7 That is, a claimant must be reimbursed for meals consumed during travel to attend an IME that lasts six hours or more. 3 inclusion creates a perverse incentive for a claimant to extend the length of his or her meal (and, likely, increase its expense), so to extend the duration of his trip and the probability that his meal will be considered a reasonable traveling expense and reimbursable. Looking forward, the majority suggests that West Virginia Code of State Rules § 148-NA-4.1 will dispel any confusion as to which meal expenses are reasonable and which are not. That regulation says: “Meal expense reimbursement is based on the temporary duty location and is not to exceed the maximum per diem established by the federal government.” I fear this regulation will prove less than helpful, however, as the appropriate per diem rate depends on a traveler’s “temporary duty location,” a term that is not defined in the Code of State Rules.8 In sum, West Virginia Code of State Rules § 85-1-15.1 is the Insurance Commissioner’s interpretation of the term “reasonable” found in West Virginia Code § 23- 4-8(c). For the reasons outlined above, I do not agree with the majority that § 85-1-15.1 is inconsistent with the plain meaning and ordinary construction of § 23-4-8(c). Therefore, I 8 The term “temporary duty location” appears twice in the West Virginia Code of State Rules. First in the rule under discussion, here, West Virginia Code of State Rules § 148-NA-4.1, then in § 153-0-5.1. Section 153-0-5.1 sets out procedures for in-state and out-of-state department travel by the employees of the West Virginia Secretary of State. That section is identical to § 148-NA-4.1 and does not define “temporary duty location.” 4 would defer to the Insurance Commissioner’s rule and the Board of Review’s application of it, and I respectfully dissent. 5 

7 F.Supp.2d 79 (1998) I.V. SERVICES OF AMERICA, INC., Plaintiff, v. INN DEVELOPMENT & MANAGEMENT, INC., et al., Defendants. Civil Action No. 96-30144-MAP. United States District Court, D. Massachusetts. May 13, 1998. *80 Francis A. Miniter, Joseph D. Uradnik, Miniter & Associates, Hartford, CT, for I.V. Services of America, Inc. Patrick J. Riley, Eric P. Finamore, Riley, Burke & Donahue Danvers, MA, for Inn Development & Management, Inc. Edward S. Rooney, Jr., Lyne, Woodworth & Evarts, Boston, MA, for ReliaStar. MEMORANDUM REGARDING REPORT & RECOMMENDATION OF APRIL 16, 1998 ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 27 & 30) PONSOR, District Judge. Upon de novo review, this court hereby adopts the Report and Recommendation of Judge Neiman dated April 16, 1998. The Motion for Summary Judgment of the defendant Inn Development & Management, Inc. (Docket No. 27) is hereby allowed and the portion of the Motion for Summary Judgment of the defendant ReliaStar seeking judgment against the plaintiff (Docket No. 30) is also allowed. The portion of ReliaStar's motion seeking summary judgment as to the cross-claim of IDM is hereby denied as moot. As the well-reasoned memorandum of Magistrate Judge Neiman demonstrates, the undisputed facts confirm that plaintiff was on notice of the defendant's denial of benefits no later than May of 1991. Despite a three-year limitation period clearly set forth in the applicable contract, and by the most analogous law, plaintiff waited until 1995 before even attempting to obtain a copy of the Plan and until August of 1996 before bringing this lawsuit. This was simply too late. Plaintiff's counsel's vigorous and resourceful efforts to overcome the hurdle established in the limitations provision are unavailing. A separate order will issue. REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 27 and 30) and DEFENDANT RELIASTAR'S MOTION FOR SUMMARY JUDGMENT ON IDM'S CROSS CLAIM (Docket No. 30) NEIMAN, United States Magistrate Judge. I.V. Services of America, Inc. ("Plaintiff"), has sued both Inn Development Management Inc. ("IDM") and ReliaStar Insurance Co. ("ReliaStar") (collectively "Defendants") pursuant to the Employee Retirement Income Security Act of 1974, ("ERISA"), 29 U.S.C. § 1001 et seq. In essence, Plaintiff, a provider of intravenous services, seeks payment for services rendered to Sheila Daly ("Daly"), a former IDM employee and beneficiary of its health plan. Daly herself is not a party to this action. Plaintiff alleges that it is owed $120,947.30 and pursues its claim based on an assignment of benefits executed in its favor by Daly. IDM and ReliaStar have filed separate motions for summary judgment against Plaintiff. ReliaStar has also filed its own motion for summary judgment against IDM seeking a declaration that it is entitled to contractual indemnification in the event liability is found. All three motions have been referred to the court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the reasons which follow, the court recommends that both Defendants' motions for summary judgment against Plaintiff be allowed and, as a result, that ReliaStar's motion *81 for summary judgment against IDM be denied as moot. I. SUMMARY JUDGMENT STANDARD In accord with Fed.R.Civ.P. 56(c), summary judgment will be granted if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Magee v. United States, 121 F.3d 1, 3 (1st Cir.1997). Once the moving party has demonstrated that no genuine issue of material fact exists, the burden is on the opposing party to contradict the demonstration by coming "forward with specific provable facts which establish that there is a triable issue." Aponte Matos v. Toledo Davila, 135 F.3d 182, 186 (1st Cir.1998). A genuine issue is one which a reasonable fact finder could resolve in favor of the nonmoving party. Id. Not every genuine factual conflict, however, necessitates a trial. "It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared." Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir.1997) (internal quotations omitted). The facts are to be viewed in a light most favorable to the non-movant. See Dykes v. Depuy, Inc., 140 F.3d 31, 36 (1st Cir. 1998). II. FACTUAL BACKGROUND In 1990, Plaintiff provided intravenous services to Daly, as ordered by her physician, for Lyme disease. (ReliaStar Exhibit I.) At the time, Daly worked at the Sheraton Hotel in Mansfield, Massachusetts, which was owned and managed by IDM. (Complaint ¶¶ 7, 16.) Prior to providing services, Plaintiff received a "Benefits Assignment Form" from Daly, the specifics of which are described below. On May 14, 1990, Plaintiff made its initial claim for benefits under the IDM medical plan ("Plan") that covered Daly. (ReliaStar Exhibit I; Finamore Aff. I, Attach. A.) IDM's self-funded Plan provided medical benefits to all qualified IDM employees. (Gilley Aff., Attach. A.) The Plan paid benefits if the treatment or service was "medically necessary," that is, "required for the diagnosis or treatment for the sickness or accidental injury and commonly and customarily recognized as appropriate throughout the doctor's profession." (Gilley Aff., Attach. A.) Pursuant to the Plan, if benefits were denied, the claimant had to request an appeal "at any time during the 60 day period following receipt of the notice of the denial of the claim." (Id.) Moreover, "[l]egal action must be taken within 3 years after the date proof of loss must be submitted. If the Planholder's state requires longer time limits than these, the Plan will comply with the state time limits." (Id.) IDM's health benefit Plan was administered by ReliaStar pursuant to an Administrative Services Only agreement ("ASO") executed on May 1, 1988.(Id.) The ASO provided that IDM was the Plan Sponsor for purposes of ERISA. As Plan Sponsor, IDM was responsible for all interim and final claim denials. ReliaStar would not be liable for payments made under the Plan and was to be held harmless and indemnified for all such claims. ReliaStar could be liable for a breach of due care in performance of its administrative duties. Those duties included such functions as investigating and processing claims. The ASO provided that IDM was to be copied on all correspondence, including claim denials. Daly's treatment consisted of intravenous antibiotic treatments which, according to her treating physician, were to last six to eight weeks. Instead, the treatment spanned April through August of 1990, (Finamore Aff. II, Attach. E, G.), even when Daly repeatedly tested negative for Lyme disease. (ReliaStar Exhibit J.) Claiming that Daly's treatments were not "medically necessary," ReliaStar requested information regarding Daly's ongoing medical treatment on May 31, July 25, August 15 and October 15, 1990. (Finamore Aff. I, Attach. D.) Information was sent in response to these requests on June 8, August 27 and November 6. (Id., Attach. B, E, G.) ReliaStar claims, however, that the documentation was incomplete and, in any case, was ambiguous and at times contradictory regarding Plaintiff's diagnosis. (See ReliaStar Exhibit J.) *82 In letters sent both to Daly and Plaintiff's president, Maureen Teachman ("Teachman"), on April 19 and May 13, 1991, ReliaStar acknowledged that it had paid Plaintiff $9,246.66, for the first four weeks of therapy, but refused to pay the rest. (Finamore Aff. I, Attach. C.) Teachman later testified that she was aware of the denial of benefits based, at least, upon the letter of May 13, 1991. (Teachman Dep. (Pl.Exhibit B.) at 76.) Several telephone calls were made by Daly and Teachman to ReliaStar at the time of the denial in May of 1991. However, no formal appeals process pursuant to the Plan was undertaken by either one. (Daly Dep. (Pl.Exhibit A) at 69-70; Teachman Dep. (Pl.Exhibit B) at 76-77.) Plaintiff claims it was unaware of the appeals process. In turn, Teachman asserts that she requested copies of the health care policy from ReliaStar on August 10, 1995, but was refused a copy. (Teachman Dep. at 79.) Teachman never requested a copy of the policy at any prior time. (Id.) Plaintiff also claims to have requested a copy of the Plan from IDM, which request was allegedly ignored. (Id.) At some time after the denial, Daly filed a complaint with the Massachusetts Commissioner of Insurance, whose investigation was inconclusive. One final set of facts: at the time that ReliaStar and IDM entered into the ASO, the two parties also entered into an Aggregate Excess Risk Insurance Policy. (Gilley Aff., Attach. B.) Pursuant to that policy, IDM was insured against excess claims made against its self-funded plan. (Id.) ReliaStar would pay IDM benefits, subject to a deductible, for claims which exceeded a certain amount for each calendar year. (Id.) IDM was not informed of the dispute over Daly's claim until after the time limit for presentation of a claim under the Aggregate Excess Risk policy had expired. (Gilley Aff. ¶¶ 7, 12.) According to IDM's president, IDM may have chosen to submit Plaintiff's claim under the Aggregate Excess Risk Policy if it had been so advised. (Id. at ¶ 11.) IDM also maintains that the only correspondence it received regarding the instant claim was a copy of the May 13, 1991, denial letter sent to Daly. (Gilley Aff. ¶ 6.) III. DISCUSSION The Employee Retirement Income Security Act governs employee benefit plans and has a comprehensive enforcement scheme. In pertinent part, the enforcement provisions provide that a "participant" or "beneficiary" may bring a civil 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." 29 U.S.C. § 1132(a)(1)(B). See Waters Corp. v. Millipore Corp., 140 F.3d 324, (1st Cir. 1998). A civil action may also be brought "by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title," that is, for breach of fiduciary duty. 29 U.S.C. § 1132(a)(2). Finally, a civil action may be brought "by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a)(3). Regulatory enforcement is grounded in this language and is even more complex, providing various causes of action for a myriad of violations. See, generally, 29 C.F.R. § 2560.502 et seq. In the present matter, Plaintiff asserts several violations of the ERISA statutory scheme, most specifically Defendants' failure (a) to provide adequate notice of denial of benefits, (b) to properly consider evidence of Daly's disease, both in violation of ERISA section 503, 29 U.S.C. § 1133, and (c) to pay benefits in violation of ERISA sections 404 and 502, 29 U.S.C. § 1104 and § 1132. A. Standing Defendants jointly pursue several arguments for judgment as a matter of law. At the threshold is Defendants' assertion that Plaintiff lacks standing to pursue its claim. Defendants contend that no express cause of action for medical providers exists under ERISA and, because no implied right of action may be construed from Congressional silence, Franchise Tax Bd. of State of *83 Cal. v. Construction Laborers Vacation Trust for S.Cal., 463 U.S. 1, 24-25, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), that summary judgment is warranted. As indicated, various enumerated parties may maintain civil enforcement actions under ERISA. Most particularly, a participant, beneficiary or fiduciary may bring an action to recover benefits due under an ERISA health plan. 29 U.S.C. §§ 1002(7), (8). A health care provider, however, is not an enumerated party for the purposes of 29 U.S.C. § 1002, nor is it generally considered a participant or beneficiary under the plan, 29 U.S.C. § 1132(a)(1)(B). Although there is a split in the circuits as to whether an unenumerated party, such as a health care provider, nonetheless has independent statutory standing to sue under ERISA, Hermann Hosp. v. MEBA Med. Benefits Plan, 845 F.2d 1286, 1287-88 (5th Cir.1988), it appears that, in this circuit, the list of parties to which a jurisdictional grant has been explicitly given is exclusive. See Kwatcher v. Mass. Serv. Emp. Pension Fund, 879 F.2d 957, 964 (1st Cir.1989). This exclusivity, however, does not foreclose the possibility that a health care provider may obtain derivative standing to proceed under ERISA as an assignee of health care benefits from a plan participant or beneficiary. See Tarr v. State Mut. Life Assurance Co. of Am., 913 F.Supp. 40, 45 (D.Mass.1996) (citing cases). Granted, ERISA incorporates a "complex and extensive" provision which prohibits the assignment of a participant's pension benefits. Misic v. Bldg. Serv. Emp. Health & Welfare Trust, 789 F.2d 1374, 1376 (9th Cir.1986). The legislative history of that anti-assignment provision reveals Congress's explicit intent to secure an individual's retirement income. See H.R.Rep. No. 807, 93d Cong., 2d Sess., at 8 (1976), reprinted in 1974 U.S.C.C.A.N. 4670, 4676. In contrast, however, ERISA is silent with respect to the assignment of health benefits, a Congressional silence which may well speak volumes. See Mass Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147-48, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985); Hermann, 845 F.2d at 1289; Misic, 789 F.2d at 1374. While the First Circuit has not yet considered the question, the weight of persuasive authority militates in favor of permitting a health care provider to exercise derivative standing when assigned a claim for reimbursement for medical services rendered. Although the court is not prepared to suggest that a health care provider becomes a statutory "beneficiary" upon receipt of such an assignment, see Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1278 (6th Cir.1991); Kennedy v. Connecticut General Life Ins. Co., 924 F.2d 698, 700 (7th Cir.1991); Misic, 789 F.2d at 1377, the court does believe that standing to sue for unpaid benefits may be derived from an assignment and that such standing is wholly consistent with ERISA's broad scope. See Cagle v. Bruner, 112 F.3d 1510, 1515 (11th Cir.1997).[1] "ERISA is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans." Andrews-Clarke v. Travelers Ins. Co., 984 F.Supp. 49, 56 (D.Mass.1997) (internal citations omitted). A prohibition against an assignment of health benefits would work to the detriment of a participant or beneficiary and would frustrate ERISA's distinct goal to protect covered individuals. If anything, a health services assignment "transfer[s] 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." Hermann, 845 F.2d at 1286. Thus, "[a]n assignment to a health care provider facilitates *84 rather than hampers the employee's receipt of health benefits. These factors comprise sufficient evidence of Congress' intention to allow the assignment of health benefits." Id. at 1289-90. It follows from Congress' desire to protect individual employees that health care benefits, unlike pension payments, should be assignable. See Tarr, 913 F.Supp. at 45-46. An assignee with derivative standing may generally assert whatever rights the assignor possessed. See Hermann Hosp., 845 F.2d at 1289; see also Lifetime Med. Nursing Servs., 730 F.Supp. at 1195. The assigned rights are also limited by the terms of the assignment itself, see Tarr, 913 F.Supp. at 45 and, as with any other contract, a court can determine its scope. Nichols v. Cadle Co., 139 F.3d 59, 62-64 (1st Cir. 1998); Hermann Hosp. v. MEBA Med. and Benefits Plan, 959 F.2d 569 (5th Cir.1992); Fashion House, Inc. v. K mart Corp., 892 F.2d 1076 (1st Cir.1989); Lawrence-Lynch Corp. v. Department of Envtl. Management, 392 Mass. 681, 467 N.E.2d 838, 839 (Mass. 1984). Having undertaken the task, the court doubts, as did the court in Tarr, that the pro forma "Benefits Assignment Form" confers all of Daly's rights as a plan participant, as Plaintiff claims. (See IDM Exhibit A (Docket No. 29).) If anything, the actual assignment is limited in scope in several ways. Thus, to the extent Plaintiff wishes to stand in Daly's shoes, they are borrowed shoes at best. First, Daly herself remains obligated to pay any unpaid medical bills. The express language of the assignment provides as follows: "I have been advised that should my medical insurance program not make payment in full, for charges incurred, or if I am not covered by an insurance plan, that I will be responsible for any unpaid portions." Being obligated, Daly perforce retained all of her rights as a plan participant to make direct claims against Defendants for any breach of their fiduciary duties. Second, Daly only authorized "direct payment to [Plaintiff] ... for durable medical equipment, nutritional solutions and other intravenous medications, supplies and professional services provided by [Plaintiff] or its affiliates," as well as "any other equipment or supplies prescribed by my physician for the period of medical necessity." No further rights were assigned. In fact, the assignment fails to provide Plaintiff with an express right to sue for payment. The court nonetheless finds that the assignment, although it accomplishes little else, does enable Plaintiff to sue for services rendered. An assignment to receive payment of benefits necessarily incorporates the right to seek payment. As Plaintiff argues, the right to receive benefits would be hollow without such enforcement capabilities. As the First Circuit recently opined, "Congress intended the federal courts to construe the Act's jurisdictional requirements broadly in order to facilitate the enforcement of its remedial provisions." Vartanian v. Monsanto Co., 14 F.3d 697, 702 (1st Cir.1994). In sum, the court believes that, as a result of the assignment, Plaintiff has standing to sue Defendants in order to seek payment for medical services provided Daly. B. Statute of Limitations Defendants also seek summary judgment on statute of limitations grounds. In essence, Defendants assert that Plaintiff's action is barred by a three year limitations period. In response, Plaintiff asserts that the court should apply the six-year ERISA limitation set out at 29 U.S.C. § 1113, a period of time which would enable Plaintiff's action to survive. In the alternative, Plaintiff argues that the six-year limitations period applicable to Massachusetts contract actions should be adopted. Finally, Plaintiff maintains that even a three year statute of limitations would pose no bar because the statute must be tolled for the period of time Defendants "concealed" the Plan. To begin with, the court does not believe that the limitations period in 29 U.S.C. § 1113 applies to the instant matter.[2]*85 This section of the statute only provides an express time period in which to file suit to enforce fiduciary duties under ERISA. Although Plaintiff makes reference to such a claim, the heart of Plaintiff's complaint is a claim for the value of services provided Daly and allegedly due under the Plan. Section 1113 has not been held, nor does the court believe it to be, applicable to such causes of action. Cf. Wright v. Southwestern Bell Tel. Co., 925 F.2d 1288, 1290 (10th Cir.1991) (reversing district court decision applying section 1113 limitations period to a section 1132 claim for benefits because such claims do "not involve fiduciary responsibility regarding financial solvency or accountability as contemplated by § 1113."). Moreover, the court has already determined that the assignment itself limits Plaintiff to a claim for unpaid benefits. Congress, however, has failed to establish a statute of limitations in ERISA for a participant's, or for that matter a health care provider's, cause of action to recover payment for services rendered. Vernau v. Vic's Market, Inc., 896 F.2d 43, 45 (3d Cir. 1990). See also Trustees of the Local Union No. 17 Sheet Metal Workers' Apprenticeship Fund v. May Eng'g Co., Inc., 951 F.Supp. 346, 348 (D.R.I.1997); Giuffre v. Delta Air Lines, Inc., 746 F.Supp. 238, 240-41 (D.Mass. 1990). In such instances, "[i]t is the usual rule that ... a court `borrows' or `absorbs' the local time limitation most analogous to the case at hand." Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 355, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). This well established practice has it roots in the Rules of Decision Act, 28 U.S.C. § 1652. Id. The sole exception to this general rule is when a state limitations period would frustrate the overall policy of the federal law. Lampf, 501 U.S. at 356, 111 S.Ct. 2773. As this court has previously explained, three factors should be considered in order to determine the most analogous state limitations period. Siniscalchi v. Shop-Rite Supermarkets, Inc., 903 F.Supp. 182, 188 (D.Mass.1995). First, how close an analogy can be drawn between the chosen state statute and the federal law under which a plaintiff proceeds. Second, how close are the policy implications behind the selected state statute and the federal law. Third, how well do the practicalities of the chosen statute apply to the federally based litigation. Plaintiff maintains that the Massachusetts six year statutory limitations period for contract claims should be adopted by analogy because the "gist of the action" is contractual. See M.G.L. ch. 260 § 2 ("Actions of contract, other than those to recover for personal injuries, founded upon contracts or liabilities, express or implied, ... shall, except as otherwise provided, be commenced only within six years next after the cause of action accrues."). Indeed, it is undisputed that other federal courts have applied state statutes of limitations for contract actions to claims for payments of medical benefits under ERISA. See Lumpkin v. Envirodyne Indus., Inc., 933 F.2d 449, 465 (7th Cir.1991); Wright, 925 F.2d at 1288. Defendants, on the other hand, claim that the most analogous statute is M.G.L. ch. 175 § 108, because it governs any "policy of accident and sickness insurance" issued by an insurer in the Commonwealth. In applicable part, the statute provides that "[n]o such action [at law or in equity to recover under the policy,] shall be brought after the expiration of three years after the time written proof of loss is required to be furnished." M.G.L. ch. 175 § 108(3)(a)(11). At first blush, the more specialized statute governing insurance benefits would appear to provide the better analogy. Cf. Johnson v. State Mut. Life Assurance Co. of Am., 942 F.2d 1260 (8th Cir.1991) (en banc) (action to *86 recover benefits is more like an action on a contract for the payment of money than a generalized contract statute) (overruling Fogerty v. Met. Life Ins. Co., 850 F.2d 430 (8th Cir.1988)). Accordingly, the three year statute of limitations set out at M.G.L. ch. 175 § 108 would seem most analogous to ERISA health benefit claims. Subparagraph 11, for example, regulates the actions of an insurer vis-a-vis a medical provider and speaks directly to the non-payment of benefits. M.G.L. ch. 175 § 108(11). This insurance analogy fades upon closer analysis. As Defendants themselves make clear, the Plan is self-funded. Thus, rather than providing benefits to its employees through an insurance company, for which a fixed rate is paid by the employer to the company, IDM pays claims out of its own assets. ReliaStar, unlike an insurance company qua insurance company, is simply the administrator of the plan. The self-funded health plan at issue, therefore, reflects a more direct contractual relationship between IDM and its employees than an insurance program. This distinction between "self-funded" plans and "insured" plans has proven significant in other contexts as well. For example, in Bergin v. Wausau Ins. Companies, 863 F.Supp. 34, 36 (D.Mass.1994), the court found that the self-funded plan at issue could not be deemed an insurance program regulated by the state for purposes of ERISA preemption. The Supreme Court similarly acknowledged "a distinction between insured and uninsured plans, leaving the former open to indirect regulations while the latter are not." FMC Corp. v. Holliday, 498 U.S. 52, 60, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990). This court too has drawn the distinction between a self-funded plan and an insurance plan when finding ERISA preemption inapplicable to the particular plan at issue. See Cellilli v. Cellilli, 939 F.Supp. 72, 77 (D.Mass.1996). As to the first prong of the analysis, therefore, the most analogous state statute of limitations is that applicable to contracts. A six year statute of limitations is also consistent with ERISA's goal of ensuring that governed plans inure to the benefit of covered individuals. Finally, six years is more than sufficient time in which to commence an action, thereby decreasing the likelihood of forum shopping. Cf. Siniscalchi, 903 F.Supp. at 188.[3] Unfortunately for Plaintiff, the court's inquiry does not end here, for the Plan at issue contains its own limitations period. As indicated, the Plan requires a claimant to request an appeal "at any time during the 60 day period following receipt of the notice of the denial of the claim." In addition, a claimant must commence legal action "within 3 years after the date proof of loss must be submitted." Only "[i]f the Planholder's state requires longer time limits than these" (emphasis added), must the Plan comply with the state time limit. There is no question that Massachusetts law does not require a longer time period. See Salcedo, No. 96-11567 at *5. At best, the six year contractual limitations period has been chosen by analogy. Moreover, the law is settled in this circuit, based in Massachusetts law, that contracting parties may agree upon a shorter limitations period as long as it is reasonable. Hays v. Mobil Oil Corp., 930 F.2d 96, 100 (1st Cir.1991) (approving a one year contractual limitations period for unfair and deceptive business practices). See generally B.H. Glenn, Validity of Contractual Time Period, Shorter than Statute of Limitations, for Bringing Action, 6 A.L.R.3d 1197 (1966); see also Vickers v. Boston Mutual Life Insurance Co., 135 F.3d 179 (1st Cir. 1998) (because federal ERISA law is still in a "formative stage," the court can rely on such "common-sense cannons of contract interpretation and borrow the best reasoned concepts from state law") (citations and internal quotes omitted); L & A United Grocers, Inc. v. Safeguard Ins. Co., 460 A.2d 587, 590 (Me.1983). ("In the absence of statutory regulations to the contrary, an insurance contract *87 may validly provide for a limitations period shorter than that provided in the general statute of limitations, unless the interval allowed is unreasonably short.") (citations omitted). Here, the Plan admits of no ambiguity. See Berkshire Mut. Ins. Co. v. Burbank, 422 Mass. 659, 664 N.E.2d 1188, 1190 (Mass.1996) (to create a valid and enforceable contract the express language of the contract must be clear and unambiguous). Compare Salcedo at *7. A claimant has three years within which to commence suit. Moreover, the limitations period is reasonable, courts having often concluded that a contract which provides three years for a claim of this type is sufficient. Salcedo, No. 96-11567 at *5-6. See also Brandywine One Hundred Corp. v. Hartford Fire Ins. Co., 405 F.Supp. 147, 151 (D.De.1975) (approving a one year contractual limitations period). Still, faced with a three year contractual limitations period, Plaintiff argues that Defendants failed to issue proper notice of denial in compliance with 29 U.S.C. § 1133 and regulations promulgated thereunder. 29 C.F.R. § 2560.503-1(f). Plaintiff also asserts that Defendants failed to provide a copy of the health care plan to either Daly or Plaintiff. These arguments, however, are offered primarily in support of Plaintiff's claim that Defendants' conduct made the exhaustion of administrative remedies unnecessary. See Curry v. Contract Fabricators Inc. Profit Sharing Plan, 891 F.2d 842, 846 (11th Cir. 1990); McLean Hosp. Corp. v. Lasher, 819 F.Supp. 110, 125 (D.Mass.1993); DePina v. Gen. Dynamics Corp., 674 F.Supp. 46, 50 (D.Mass.1987). For purposes here, the court has not deemed Plaintiff's "failure" to exhaust its administrative remedies as a bar to its ability to seek judicial relief. Thus, the court agrees that, at least with respect to the requirement that a notice of denial include "[a]ppropriate information as to the steps to be taken if the participant or beneficiary wishes to submit his claim for review," 29 C.F.R. § 2560.503-1(f)(4), Defendants failed to issue such a denial in this case. To the extent these same arguments are targeted at the statute of limitations itself, however, they prove unavailing. There is no genuine factual dispute that Plaintiff and Daly were aware that medical benefits had been denied. Thus, there can be no dispute that Plaintiff's claim accrued at least in May of 1991, when both Daly and Plaintiff were "in possession of the critical facts that they ha[d] been hurt and who ha[d] inflicted the injury." United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Defendants' failure to abide by certain notice requirements in the federal regulations, while excusing Daly, and in turn Plaintiff, from exhausting administrative remedies, does not excuse Plaintiff from seeking judicial relief in a timely fashion. In a series of letters during 1990, ReliaStar specifically requested additional information from Plaintiff in order to evaluate Daly's claim for coverage. (See Finamore Aff. (Docket No. 35) at Exhibits A, B, C, D, E, F and G.) ReliaStar made clear that the "[l]ack of sufficient information may cause us to deny a just liability." (See Id. at Exhibit F.) Then, on April 19, 1991, ReliaStar, in a letter to Daly, a copy of which was sent to Plaintiff, stated that "[t]he balance of the expenses from May 11, 1990 to August 14, 1990 have been denied as the records did not provide documentation of continued medical necessity of the IV therapy." (Id. at Exhibit H.) Shortly thereafter, in a letter dated May 13, 1991, after Daly herself had a conversation with a ReliaStar representative, ReliaStar again denied coverage, this time explaining its decision in greater detail. The letter concluded: We regret our benefit determination could not be more favorable; however, we must administer the plan as it is written. Our decision was based on information in our file which lacked documentation indicating the medical necessity for the continued IV therapy. Further, this treatment is not commonly and customarily recognized as appropriate throughout the doctor's profession. (Id. at Exhibit I.) Again, a copy of this letter was sent to Plaintiff.[4] *88 The evidence presented demonstrates beyond any doubt that Daly had actual knowledge of the denial of her benefits in April and then again in May of 1991. (See also Daly Dep. (Docket No. 29) at Exhibit E.) The president of Plaintiff corporation was also aware of the denial of benefits at the time. (See Id. at Exhibit F.) Indeed, at her deposition, Plaintiff's corporate president acknowledged that a certain copy of the May 13, 1991 letter reflected her own handwritten notes of her conversation with a ReliaStar representative shortly after the denial. Plaintiff acknowledges the import of these facts in its complaint before the court.[5] Hanging on by a thread, Plaintiff goes on to assert that the limitations period must be tolled under M.G.L. ch. 260 § 12 because of "Defendants' acts of concealment in failing to give a copy of the health care plan to Ms. Daly and refusing to provide it to Plaintiff." (Pl.Mem. (Docket No. 38) at 26.) In pertinent part, M.G.L. ch. 260 § 12 provides an exception to the accrual of a cause of action in contract if a defendant "fraudulently conceals the cause of such action from the knowledge of the person entitled to bring it." "[T]he period of limitations [is] not tolled ... unless the defendant concealed the existence of a cause of action through some affirmative act done with the intent to deceive." Frank Cooke, Inc. v. Hurwitz, 10 Mass.App.Ct. 99, 406 N.E.2d 678, 683 (Mass.App.Ct.1980). See also Shane v. Shane, 891 F.2d 976, 986 (1st Cir.1989); Janigan v. Taylor, 344 F.2d 781, 783-84 (1st Cir.1965). In pursuing this claim of concealment, Plaintiff attempts to shift the burden to Defendants, arguing that "Defendants failed to establish that they ever gave a copy of [the Plan] to Ms. Daly." (Pl.Mem. at 23.) That attempt must fail. First, with respect to M.G.L. ch. 260 § 12 itself, a plaintiff bears the burden of providing evidence from which it may reasonably be inferred that a defendant concealed the cause of action. Quigley v. Unum Life Ins. Co., 688 F.Supp. 80, 83-84 (D.Mass.), aff'd without opinion, 887 F.2d 258 (1st Cir.1989). Moreover, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As this court has previously noted, once a defendant has interposed a defense regarding a limitations period, it is the plaintiff's burden at summary judgment to allege sufficient facts that would allow it to overcome the defense. O'Rourke v. Jason, Inc., 978 F.Supp. 41, 47 (D.Mass.1997) (citing Newburgh v. Florsheim Shoe Co., 200 F.Supp. 599, 604 (D.Mass. 1961); Mendes v. Roche, 317 Mass. 321, 58 N.E.2d 148 (Mass.1944); Smith v. Pasqualetto, 146 F.Supp. 680 (D.Mass.1956), vacated on other grounds, 246 F.2d 765 (1st Cir. 1957)). In the instant case there is simply no evidence of concealment. Even when viewed in a light most favorable to Plaintiff, the evidence hardly describes an affirmative act of concealment on the part of Defendants. Daly's deposition, regarding her receipt of the Plan, is equivocal at best. If anything, Daly's testimony supports an assumption that she received a copy of the Plan during her employment with IDM.[6] *89 As to its own claims, Plaintiff vaguely maintains that between 1991 and 1995 it made efforts to resolve the claim administratively. (Teachman Dep. at 76-77.) What the record shows, however, is that Plaintiff made no effort to obtain a copy of the Plan until 1995, well after three years from the initial denial of Daly's claim for benefits. (See Id. at 79.) Had it not chosen to sit on whatever rights it had, Plaintiff may well have been able to seek judicial relief in a timely fashion. Neither does the more general doctrine of equitable tolling apply here. First, the doctrine is reserved for "exceptional cases" only. Chico-Velez v. Roche Prod., 139 F.3d 56, 59 (1st Cir.1998). As the Supreme Court explains: We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (footnotes and internal citations omitted). Those cases where the doctrine is invoked are characterized by affirmative conduct by the party against whom it is employed. Kelley v. National Labor Relations Board, 79 F.3d 1238, 1247 (1st Cir.1996). In the case at bar, no such evidence with respect to the applicable time period has been adduced. Applying the Plan's three year limitations to the case at bar, the court finds that the action accrued at the time of the denial of benefits which was, at the latest, May 13, 1991. Plaintiff either knew or should have known that, as of that date, it needed to assert any rights assigned to it by Daly or run the risk of losing them. While sympathetic to Plaintiff's quest to obtain payment, the court finds those efforts belated and ineffective. Accordingly, the court will recommend that summary judgment be allowed as to both Defendants.[7] IV. CONCLUSION For the foregoing reasons, the court recommends that both IDM's motion for summary judgment (Docket No. 27) and that part of ReliaStar's motion seeking judgment against Plaintiff (Docket No. 30) be ALLOWED. The court also recommends that that part of ReliaStar's motion for summary judgment as to IDM (Docket No. 30) be DENIED as moot.[8] April 16, 1998. NOTES [1] See also Lutheran Medical Center v. Contractor's Health Plan, 25 F.3d 616, 619 (8th Cir.1994); Hermann Hosp., 845 F.2d at 1289 (5th Cir.); Protocare of Metropolitan N.Y. v. Mutual Ass'n Admr's, Inc., 866 F.Supp. 757 (S.D.N.Y.1994); HCA-Health Services of N.H. v. Tennford Weaving Co., No. 93-624-JD, 1994 WL 575744, at *3 (D.N.H. Oct. 20, 1994); Lifetime Med. Nursing Servs., Inc. v. New England Health Care Employees Welfare Fund, 730 F.Supp. 1192 (D.R.I.1990). But see Michael A. deFreitas, Right of Provider of Health or Medical Services, as Assignee of Claim under ERISA (Employment Retirement Income Security Act of 1974), To Maintain Action Against Plan Payor, 133 A.L.R. Fed 109 (1996) (citing cases in which a health care provider as an assignee had no right to sue because health care provider was not an enumerated party in 29 U.S.C. § 1132(a)(1)(B)). [2] In pertinent part, the cited statute provides as follows: No action may be commenced under this subchapter with respect to a fiduciary's breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part, after the earlier of — (1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation, or (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation; except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation. 29 U.S.C. § 1113. [3] The court notes as well that, pursuant to § 108(8), the provisions of ch. 175 § 108, the insurance statute, apparently do not apply to "any blanket or group policy of insurance." This particular exclusion caused the court in Salcedo v. John Hancock Mut. Life Ins. Co., No. 96-11567 (D.Mass. Feb. 20, 1998), to reject, at least initially, the three year limitations period in M.G.L. ch. 175 § 108(3)(a)(11) in favor of the six year contract limitations period. [4] The letter also explained that certain surgical expenses, amounting to $3,317.20, were paid in error. ReliaStar indicated, however, that it was "not going to actively seek reimbursement of this overpayment amount." (Finamore Aff. at Exhibit I.) [5] Plaintiff's complaint alleges that "by letter dated April 19, 1991, Defendant ReliaStar informed Daly and [Plaintiff] that after an additional review by its medical consultants, Defendant ReliaStar denied long term treatment for Daly..." (Complaint ¶ 34.) Paragraph 38 of the complaint similarly alleges that "Defendant ReliaStar reiterated its position by letter dated May 13, 1991." [6] Let me ask you now, at the time that you started working or at some time when you worked for the Sheraton, do you remember ever getting some written information about the health insurance that you — that was covering you from the people at the Sheraton? A. I — I don't remember. I don't remember specifically. If you want me to remember a detailed time, I don't remember. Q. No, no, my question is just whether you remember getting — A. Usually when we had different insurances and they would change or whatever, they would usually have like a meeting and talk to us about it or they would give us literature on it. Usually that's how it would work. Q. Let me show you this document, which is Exhibit 18 at Maureen Teachman's deposition [the Plan], and just ask you whether you ever recall seeing that document before. A. I don't know, this is kind of big. I don't know if I recall this. Q. Okay. A. You know? I do recall IDM Development & Management, Inc., I do recall that. Because that was one of the companies that was involved at the Sheraton within the ten years or whatever years I worked there. Q. Okay. And but as you sit here today, you don't know one way or another whether you saw that document? A. You know, I'd imagine — I would imagine. Yeah, I don't recall. Q. Just want to know what you remember. A. Yeah. It's just like I said, we had so many people — you know, I would get what I was supposed to get, you know, and that's it. (Pl.Mem. at Exhibit A.) [7] Given its recommendation, the court finds it unnecessary to resolve whether ReliaStar acted in its capacity as a fiduciary, a functional fiduciary or in some capacity as a co-fiduciary with IDM. See Beddall v. State Street Bank and Trust Company, 137 F.3d 12 (1st Cir.1998). [8] The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party's objections within ten (10) days after being served with a copy thereof.

119 Ariz. 352 (1978) 580 P.2d 1206 A.L. McCORMICK and Barbara McCormick, husband and wife, d/b/a McCormick Trailer, Appellants, v. Louis L. ORNSTEIN, Appellee. No. 2 CA-CIV 2688. Court of Appeals of Arizona, Division 2. March 23, 1978. Rehearing Denied April 26, 1978. Review Denied June 6, 1978. Robert C.C. Heaney, Tucson, for appellants. Feldman, Wolin & Lahr, P.C. by Herbert E. Lahr and Paul B. Bartlett, Tucson, for appellee. OPINION HOWARD, Judge. The issue in this case is whether appellee had the right to rescind his contract for the *353 purchase of a custom-made trailer. The facts considered in the light most favorable to supporting the judgment are as follows. Ornstein contracted with McCormick for the construction of a custom built trailer to be used in Ornstein's wholesale nuts, bolts and fasteners business to bring merchandise to the door of the customer. McCormick knew the purpose of the trailer and also that Ornstein was going to equip the interior with bins and racks for carrying the merchandise. On May 9, 1975, Ornstein took delivery of the trailer with McCormick's permission and without paying the balance that was due. When he road tested it he discovered that it was "fishtailing" and difficult to control. He brought it back the next day to McCormick who discovered there had been a mistake in the size of the coupler on the trailer. This was corrected by placing a new ball on the trailer hitch that was attached to Ornstein's truck. Ornstein took the trailer to be painted. In the meantime he called the Department of Motor Vehicle and was informed that he needed a statement of origin to have the trailer registered. He asked McCormick to supply him with the necessary documentation. The trailer was painted on May 15, 1975 and Ornstein took it back to his premises. He attempted to put in the custom-made racks and bins but found they did not fit because the inside of the trailer was not square. While he was attempting to install the racks and bins it rained and the trailer leaked "like a sieve". He discovered that there were holes where the sides of the trailer met the roof. When he first picked up the trailer Ornstein noted that the roof did not have the A.J. Bayer coping and drip cap that McCormick had agreed to install, but McCormick told him that the company which made the coping was no longer in business and that he had taken care of it another way. Ornstein again road-tested the trailer but it still swayed and there was a feeling that the truck was being lifted off its front wheels. He spoke to McCormick many times on the telephone explaining the difficulties he was having but received no offer from McCormick to make any corrections. On May 27, 1975, Ornstein went to McCormick with a check for $750 in his pocket which he believed to be the balance due. He again complained about the deficiencies but McCormick refused to take any corrective action. Ornstein came to the conclusion that the best thing to do was to pay McCormick the balance, get the statement of origin and take the trailer elsewhere for repair. At that time he thought the trailer was capable of being repaired. McCormick wanted an additional $800 over and above the contract price for lengthening the trailer. Ornstein refused to pay for the extra length because he did not authorize it or understand why it was necessary. He left and tore up the $750 check. On June 18, 1975, Ornstein filed a complaint with the Department of Motor Vehicle in which he stated he would pay the balance of the original contract price upon receipt of the statement of origin. When he filed this complaint he was still under the impression that the trailer could be repaired. On the same day an inspector from the Motor Vehicle Division came out to look at the trailer, shook his head and walked away. At some unspecified time, Ornstein was informed by a person who did repairs that the trailer should be junked. On June 18, 1975, Ornstein sent a written notice of rescission to McCormick. McCormick refused to refund the $3,200 that Ornstein had paid him and this suit followed. At trial, Ornstein's expert witness stated that there were many defects which made the trailer "unroadable". In his opinion the trailer posed a safety hazard to anyone hauling it and to the general public using the roads and highways. In addition to the unacceptable workmanship he was of the opinion that the welding throughout was done in such a fashion that it was unpredictable and a failure in the welds could occur. He also found that the wiring was *354 improperly protected and the wheels were not on the same plane. According to him, even if the wheels were realigned, the wells redone, and the wiring repaired, there would be an overload on the truck hauling it when it was filled with merchandise. He felt that it would be necessary to start from the beginning, the design stage, in order to correct the defects and that consequently it was not merely a matter of making repairs. The trial court granted Ornstein judgment in the sum of $3,200 and awarded McCormick $211.14 on a $2,084.99 counterclaim. The trial court, in ruling in favor of Ornstein, found that McCormick had breached the implied warranty of merchantability under A.R.S. Sec. 44-2331(B)(1); that Ornstein was permitted to reject the trailer under the provisions of A.R.S. Sec. 44-2364; that the rejection was made within a reasonable time and that by reasonably notifying McCormick and by holding the trailer with reasonable care at McCormick's disposition for a time sufficient to permit McCormick to remove the trailer, Ornstein made a rightful and effective rejection pursuant to A.R.S. Sec. 44-2365. Appellants contend A.R.S. Sec. 44-2331(B)(1) is not applicable; that Ornstein accepted the trailer and did not effectively revoke his acceptance within a reasonable time; that he waived any right of rescission because he did not return the trailer for repair; that he did not return the trailer and that he failed to prove damages were an inadequate remedy. They also contend the court erred in failing to award the entire amount of their counterclaim. Appellants assert that A.R.S. Sec. 44-2331 applies only to goods for resale and that the applicable statute is A.R.S. Sec. 44-2332. A.R.S. Sec. 44-2331 states in part: "§ 44-2331. Implied warranty: merchantability; usage of trade A. Unless excluded or modified (§ 44-2333), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the service for value of food or drink to be consumed either on the premises or elsewhere is a sale. B. Goods to be merchantable must be at least such as: 1. Pass without objection in the trade under the contract description; and 2. In the case of fungible goods, are of fair average quality within the description; and 3. Are fit for the ordinary purposes for which such goods are used; and 4. Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and 5. Are adequately contained, packaged, and labeled as the agreement may require; and 6. Conform to the promises or affirmations of fact made on the container or label if any. * * *" A.R.S. Sec. 44-2332 states: "Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under § 44-2333 an implied warranty that the goods shall be fit for such purpose. Added Laws 1967, Ch. 3, § 5." Appellants have cited to us no authority to support their construction of A.R.S. Sec. 44-2331 and the very language of the statute belies their contention. The nature and scope of the implied warranty of merchantability is a concept relating to the overall quality rather than fitness for a particular purpose. Sylvia Coal Company v. Mercury Coal & Coke Company, 151 W. Va. 818, 156 S.E.2d 1 (1967). We believe *355 the evidence demonstrates that the implied warranty of both statutes was breached.[1] A.R.S. Sec. 44-2369 states that acceptance of goods occurs when the buyer "1. After a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; ..." (Emphasis added). Contrary to the trial court's conclusions, we believe that Ornstein accepted the trailer on May 27, 1975 when he offered to pay the balance of the written contract price on the assumption that he could have the trailer repaired. However, A.R.S. Sec. 44-2371 allows the revocation of the acceptance. It states: "A. The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it: 1. On the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or 2. Without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances. B. Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it. C. A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them. Added Laws 1967, Ch. 3, § 5." The record demonstrates that when Ornstein accepted the trailer he did so under the assumption that minor repairs could cure the defects. He did not know of the structural defects in the welding and design and could not have known of them without the aid of an expert. There is no doubt that the value of the trailer to him was substantially impaired. Thus A.R.S. Sec. 44-2371(A) applies and his revocation was timely under subsection B. Ornstein was neither required to return the trailer to McCormick for repairs nor was he required to deliver it to McCormick after the letter of rescission. A.R.S. Sec. 44-2371(C) states: "A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them." After his revocation Ornstein had no further obligations with regard to the trailer. A.R.S. Sec. 44-2365(B)(3). Appellants then had the burden to secure the trailer. Ornstein did not have to return the trailer to McCormick for repairs as a prerequisite to a valid revocation. The burden to undertake to cure the defects was upon McCormick. A.R.S. Sec. 44-2356. It was not incumbent upon Ornstein to prove that damages were an inadequate remedy before he had a right to rescission. A.R.S. Sec. 44-2390 states: "A. Where ... the buyer . . justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract ..., the buyer may cancel ..." Having effectively revoked and canceled the contract Ornstein was entitled to recover all sums that he had paid appellants, to-wit $3,200. Since the contract was canceled appellants were not entitled to payment for the "extras". Affirmed. RICHMOND, C.J., and HATHAWAY, J., concur. NOTES [1] See A.R.S. Sec. 44-2334 for the cumulation of warranties express or implied.

641 F.Supp.2d 92 (2009) 2009 DNH 094 Glen GIDLEY v. Anthony OLIVERI and Juan Valerio. Civil No. 07-cv-31-JL. United States District Court, D. New Hampshire. June 25, 2009. *93 Eric N. Shor, Thomas W. Aylesworth, Nutter McClennen & Fish LLP, Boston, MA, for Glen Gidley. Catherine M. Costanzo, Devine Millimet & Branch PA, Manchester, NH, for Anthony Oliveri and Juan Valerio. ORDER JOSEPH N. LAPLANTE, District Judge. When the Salem Police Department brought charges against Salem Manufactured Homes, LLC, its only identifiable officer or affiliate, Glen Gidley, was "booked" at the police station and issued a summons. He sued the officers involved, claiming false arrest and false imprisonment in violation of both the federal and state constitutions, as well as state common law torts. The defendants assert the qualified immunity defense, which is the main focus of the parties' cross motions for summary judgment. This court has jurisdiction under 28 U.S.C. §§ 1332 (federal question) and 1367 (supplemental jurisdiction). After oral argument, the court grants the defendants' motion for summary judgment on all counts. The defendants are entitled to qualified immunity on the federal claims under 42 U.S.C. § 1983 because the booking-and-summons of Gidley did not implicate a clearly established Fourth Amendment right such that a reasonable police officer would have understood that the procedure violated it. I. APPLICABLE LEGAL STANDARD Summary judgment is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In making this determination, the "court must scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party's favor." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003). *94 Both parties have moved for summary judgment on the federal civil rights claims under § 1983 (Counts 1 and 2). "Cross motions simply require [the court] to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Littlefield v. Acadia Ins. Co., 392 F.3d 1, 6 (1st Cir. 2004). Because only the defendants have moved for summary judgment on the remaining state law claims, however, the court regards the plaintiff, Gidley, as the "nonmovant," and will indulge all reasonable inferences in his favor. See Mulvihill, 335 F.3d at 19. II. BACKGROUND[1] On November 12, 2004, Melissa Leclair went to the Salem Police Station to complain that her vehicle had been damaged a few days earlier by debris from the uncovered load of a dump truck. Defendant Officer Anthony Oliveri was assigned to take and handle her complaint. Ms. Leclair reported, both verbally and through written statements she and her mother provided, that on November 9, 2004, she was driving east on Route 111 in Salem behind a commercial dump truck. Her mother accompanied her in the passenger seat. Debris from the dump truck's uncovered load, including dirt, rocks and a tennis ball, struck her vehicle, damaging her hood and cracking her windshield. There is conflicting evidence regarding her own vehicle's and the truck's rate of travel, as well as whether their speeds were conveyed by Ms. Leclair to Officer Oliveri, but it is undisputed that Officer Oliveri did not consider the truck's speed when proceeding with his investigation and preparation of the criminal complaint at issue. Possibly as a result of Ms. Leclair's flashing her "high beams" at the truck, its driver pulled over, allowing her to pass, at which point Ms. Leclair's mother noted the truck's license plate number and the words "Salem Manufactured Homes" emblazoned on the side. Ms. Leclair reported to Officer Oliveri that she had telephoned Salem Manufactured Homes to seek redress for the damages to her vehicle, and the receptionist there informed her that the company's "owner" was plaintiff Glen Gidley. The receptionist told Ms. Leclair that none of the company's trucks had traveled on that stretch of Route 111 on the date she had reported (Ms. Leclair had mistakenly provided the wrong date). When she further told Ms. Leclair to submit her claim to her insurance company, Ms. Leclair decided to report the matter to the police. Neither Gidley nor anyone else from the company returned Ms. Leclair's call or otherwise contacted her. Officer Oliveri inspected Ms. Leclair's vehicle, noting the cracked windshield and dents on the hood. He also confirmed, based on the license plate number provided by Ms. Leclair, that the truck was registered to Salem Manufactured Homes. Ms. Leclair also provided a damages estimate. Officer Oliveri was familiar with Salem Manufactured Homes and Gidley, in part because Gidley was involved in a romantic, cohabitative relationship with the former wife of Oliveri's brother, Richard Oliveri, also a Salem police officer. Gidley does not allege, and there is no evidence to suggest, that Officer Oliveri's assignment to handle the Leclair complaint was anything other than coincidental. The same is *95 true of Officer Valerio's eventual involvement.[2] Concerned about the appearance of impropriety, but not about his ability to objectively investigate the complaint, Officer Oliveri immediately asked his supervising sergeant to assign another officer to the matter. The sergeant declined to remove Officer Oliveri from the case and told him: "Conduct yourself professionally and do your job." Rather than immediately continuing with a criminal investigation, and while Ms. Leclair was still at the station writing out a statement, Officer Oliveri telephoned Salem Manufactured Homes in an attempt to resolve her property damage claim. The same Salem Manufactured Homes receptionist (who later testified that Officer Oliveri was polite to her), challenged Ms. Leclair's account based on the initial mix up regarding the date of the incident. She also declined to provide Officer Oliveri with any assistance or information, including the identity of the truck driver. Officer Oliveri reviewed New Hampshire's "spillage" statute[3] and learned that it allowed for the prosecution of both "a natural person" and "any other person," i.e., a corporation or other business organization. See N.H.Rev.Stat. Ann. § 266:72, III (Supp.2008). Not having identified the driver of the truck (and thus unable to charge him individually), but not knowing how to initiate a prosecution against an entity like Salem Manufactured Homes, Officer Oliveri sought advice from prosecutor Donald Blaszka. At that time, Blaszka, a 1999 graduate of Suffolk University Law School and member of the New Hampshire Bar since 2000, had over four years experience as an Assistant Rockingham County Attorney. His responsibilities included handling Salem cases and assisting the Salem Police Department. Responding to Officer Oliveri's request for advice in bringing a charge against a limited liability company, Assistant County Attorney (ACA) Blaszka advised him to obtain an arrest warrant based on a complaint charging the company, Salem Manufactured Homes "care of" its "owner," Gidley.[4] ACA Blaszka advised Officer Oliveri *96 that "the laws of the arrest were that since it didn't occur in his presence, he would have to seek an arrest warrant, fill out an affidavit, and go before a Justice of the Peace." He further advised that "if there's an arrest warrant that has been obtained, he need[ed] to go execute it." ACA Blaszka's advice was based on the confluence of the following factors: (1) a violation charge against a natural person— which unlike a misdemeanor charge, would not have required an arrest or warrant— was not possible because the truck driver had not been identified; thus, a misdemeanor against Salem Manufactured Homes was the only available charge; (2) a Rockingham County Attorney's Office policy, the existence of which is undisputed, generally required arrests in misdemeanor prosecutions; (3) a New Hampshire statute limiting the permissibility of warrantless misdemeanor arrests to circumstances not present here;[5] (4) precedent provided by a Rockingham County prosecution against a corporation, in which the superior court ordered corporate officers to appear in court for arraignment and to personally post bail in order to secure the corporation's presence at court proceedings;[6] and (4) approval provided by his supervisor, a more senior county prosecutor, ACA Patricia Conway. ACA Blaszka then advised Officer Oliveri to telephone the New Hampshire Secretary of State's office to confirm that Gidley was the "owner" of Salem Manufactured Homes. Officer Oliveri's understanding of the information he received over the telephone from the Secretary of State's Office was that Gidley was, in fact, the "owner" of Salem Manufactured Homes, as reported to him by Ms. Leclair based on the company receptionist's statement to her. The Secretary of State's Office later informed the company's criminal defense attorney, in writing, that it would have been unable to confirm Gidley's "ownership" over the phone (because the term "owner" has no legal meaning in the context of a limited liability company (see n. 4, supra), and would have been limited to disclosing the company's members or managers (the only one of which known to the Secretary of State was Gidley)).[7] *97 A Justice of the Peace, whose impartiality Gidley does not challenge, found that Officer Oliveri's arrest warrant application and affidavit established probable cause, and the warrant issued. Officer Oliveri arranged with Salem Manufactured Homes' counsel, Thomas Morgan, Esq., for Gidley to appear at the Salem Police Station at a time convenient for Gidley.[8] When Gidley appeared with the company's counsel at the Salem police station, Officer Oliveri again asked his shift commander to assign a different officer to the booking procedure, and further asked that Mr. Gidley be issued a summons and released, rather than being brought before the bail commissioner.[9] This time, Officer Oliveri's requests were granted. The other defendant in this case, Officer Juan Valerio, conducted the "booking-and-summons" procedure, which included the taking of photographs and fingerprints, as well as the elicitation of basic biographical information such as Gidley's date of birth and social security number. No bail commissioner was asked to determine the conditions of any custody or set bail, and a summons to appear in court was issued— like the warrant—to the company "in care of" Gidley. Attorney Morgan accompanied Gidley into the interior of the police station (though not the booking area), and they left when the booking-and-summons procedure was completed. Prior to administering the booking-and-summons procedure, Office Valerio did not undertake an independent review of the criminal complaint or accompanying affidavit to independently determine whether it established probable cause. Soon after the charges against Salem Manufactured Homes were initiated, a local newspaper, The Salem Observer, published a notice about the case. Apparently based on a notation in the Salem Police Department's "blotter,"[10] the notice said that Gidley had been arrested "on a warrant for illegal dumping." This notice— the basis of Gidley's defamation claim— was incorrect in two respects: (1) that Gidley (as opposed to Salem Manufactured Homes) had been charged, and (2) that the charge was "illegal dumping" (as opposed to spillage). Through Attorney Morgan, Salem Manufactured Homes eventually moved to dismiss the case. After requesting and receiving additional time to consider its position, the state, through ACA Blaszka, did not object and the case was dismissed.[11] *98 III. ANALYSIS A. The federal civil rights claims (Counts 1 and 2) Counts 1 and 2, Gidley's claims under § 1983, allege false arrest and false imprisonment in violation of his rights under the Fourth Amendment to the Constitution, which protects individuals from, inter alia, unreasonable seizures.[12]See U.S. CONST. amend. IV.[13] As to these claims, the defendants claim an entitlement to qualified immunity. The court agrees; the defendants are entitled to that immunity first, because the booking-and-summons procedure here did not implicate a "clearly established" right. Second, a reasonable police officer would not have known that the procedure violated the Fourth Amendment. In cross-moving for summary judgment, the parties have "abjure[d] any claim that a trialworthy factual dispute exists" as to the § 1983 claims. See Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.2004). "This posture is important because, in the absence of a genuine issue of material fact, a defendant's right to qualified immunity presents a question of law." Id. (citing Rivera v. Murphy, 979 F.2d 259, 261 (1st Cir.1992)). An affirmative defense placing the burden of proof on the defendants, Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), "[t]he doctrine of qualified immunity provides a safe harbor for public officials acting under the color of state law who would otherwise be liable under 42 U.S.C. § 1983 for infringing the constitutional rights of private parties." Whitfield v. Melendez-Rivera, 431 F.3d 1, 6 (1st Cir.2005) (citing Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The doctrine "provides defendant public officials an immunity from suit and not a mere defense to liability." Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir.2009). "[T]he qualified immunity inquiry is a two-part test. A court must decide: (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was `clearly established' at the time of the defendant's alleged violation."[14]Maldonado, 568 F.3d at 269. *99 While Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), held that the implication vel non of a constitutional right "must be the initial inquiry," 533 U.S. at 201, 121 S.Ct. 2151, the Supreme Court did away with that rigid requirement in Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). There, the Court concluded that "while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory." Id. at 818. District courts now "have discretion to decide whether, on the facts of a particular case, it is worthwhile to address first whether the facts alleged make out a violation of a constitutional right." Maldonado, 568 F.3d at 270. Exercising that discretion to pass on the question of whether Gidley's complaint makes out a violation of a constitutional right, the issue is whether the right was "clearly established" at the time of the defendants' alleged misconduct. "[T]he second, `clearly established' step of the qualified immunity analysis . . . has two aspects. One aspect of the analysis focuses on the clarity of the law at the time of the alleged civil rights violation." Id. "The other aspect focuses more concretely on the facts of the particular case and whether a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights." Id. 1. Clearly established right "Public officials are . . . entitled to qualified immunity unless the facts establish that their conduct violated a constitutional right that was `clearly established' at the time of the violation." Whitfield, 431 F.3d at 6. While the booking-and-summons procedure involved here is one corporate or company officers would prefer to avoid should their companies be prosecuted, a Fourth Amendment right to be free of it was not clearly established such that a reasonable police officer would have been on notice of it. The appropriate New Hampshire procedure for proceeding was unclear, and constitutional precedential authority unavailable. "To overcome qualified immunity, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Maldonado, 568 F.3d at 269, (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). To Gidley, the analysis "boils down to a straightforward, undisputed truth—[he] was arrested, detained, and prosecuted for a crime of which [sic] he was never accused of committing." He cites black letter Fourth Amendment law for a proposition that is essentially a truism: that an arrest must be supported by probable cause that the arrestee, and not some other person, committed an offense. "The operation of [the qualified immunity] standard, however, depends substantially upon the level of generality at which the relevant `legal rule' is to be identified." Anderson, 483 U.S. at 639, 107 S.Ct. 3034. Of course, it is true, at the highest level of generality, that the arrest of a person without probable cause "violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of `clearly established law' were to be applied at this level of generality, it would bear no relationship to the `objective legal reasonableness'" required under the second component *100 of the qualified immunity test. Id. at 639, 107 S.Ct. 3034. Viewed in light of this Supreme Court guidance, this case presents a much narrower, more discrete scenario: the submission of a limited liability company officer, in a misdemeanor prosecution of the company,[15] at a time and under circumstances convenient to him, to police identification procedures commonly referred to as "booking,"[16] followed by the issuance of a summons for the company to appear in court.[17] It was by no means "clearly established" that the Fourth Amendment prohibited what Gidley experienced here—the fingerprinting, photographing, and routine non-investigatory questioning for purely administrative purposes, of the only identifiable natural person with an ownership interest in a business organization in a criminal prosecution against the entity. Gidley advances what he describes as a "fundamental and firmly rooted tenet of the United States justice system . . . that a corporation cannot be arrested and imprisoned in either civil or criminal proceedings."[18] As the defendants point out, however, "this is not so much a tenet or principle as an obvious fact" that follows from the existence of a corporation as a legal fiction. "A corporation, which is a jural person acting only through its agent, cannot, of course, be physically arrested." 1 R. McNamara, New Hampshire Practice, Criminal Practice and Procedure § 8.25 at 179 (4th ed. 2003). Physically arresting a limited liability company would be, as the New Hampshire Supreme Court put it in the context of pinpointing the physical location of a corporation, "like trying to handcuff a shadow." New Hampshire v. Luv Pharmacy, Inc., 118 N.H. 398, 404, 388 A.2d 190 (1978). Thus, to bring a corporation into court to answer a criminal charge, the common law allowed the service of a summons upon the corporation's principal officer. 10 William Meade Fletcher, Fletcher Cyclopedia of Corporations, § 4962, at 739 (rev. ed. 2001). New Hampshire law, however, "provides no specific procedure for ensuring that *101 corporate criminal defendants will be forthcoming to answer for a crime." 1 McNamara, supra § 8.25 at 179. The approach chosen by Officer Oliveri, which, significantly, was based on advice affirmatively sought from and provided by a county prosecutor assigned to the Salem Police Department, see infra at Part III.A.2., was to seek issuance of a complaint against the limited liability company "in care of" the defendant, and to arrange through the company's defense counsel for Gidley, the company's only identifiable officer and asset owner, to appear, accompanied by counsel, at the Salem police station to undergo a standard booking-and-summons procedure. In substance, this procedure closely resembles the approach used at common law: rather than being summoned to appear in court, Gidley was requested to appear—via discussions with his company's counsel—at the local police station.[19] As the Fourth Circuit Court of Appeals aptly put it, "[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992) (citing Anderson, 483 U.S. at 639-40, 107 S.Ct. 3034). Here, Officer Oliveri was operating in just such a gray area, and he did not "guess" at all, let alone badly guess; he sought advice of counsel. Even assuming— without deciding because it is by no means clear—that Officer Oliveri made a "bad guess" as to the least burdensome procedure for securing the attendance in court of a limited liability company charged with a crime, see infra at Part III.A.2., it cannot be said that established authority prohibited the method he chose. "[T]he salient question is whether the law at the time of the alleged violation gave the defendant fair warning that his particular conduct was unconstitutional." Maldonado, 568 F.3d at 269 (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). The law provided no such fair warning to Officer Oliveri. Indeed, it endorsed one method—without foreclosing others—that is substantially similar to the one he employed. "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful." Hope, 536 U.S. at 741, 122 S.Ct. 2508. It is true that "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Id. at 741, 122 S.Ct. 2508. It bears noting, however, that none of the players in this drama—neither the Salem police officers assigned to the case, nor the county prosecutor responsible for advising the Salem Police Department, nor his superior in the Rockingham County Attorney's Office, nor the Justice *102 of the Peace who reviewed the affidavit and issued the warrant (all of whom were aware that the complaint charged a company "in care of" its officer, and not a natural person, with a crime)—identified a constitutional infirmity in the submission of a company officer to routine criminal processing. Moreover, there is no evidence in the summary judgment record that Attorney Morgan, a demonstrably able criminal defense lawyer who successfully secured the dismissal of the charge, raised any objection, constitutional or otherwise, to Gidley's booking at the Salem police station. Attorney Morgan, who according to Gidley was representing both this company's interests and his own, accompanied Gidley to the station and remained on the premises during the procedure accompanying Gidley into the interior of the station, beyond the waiting area. While the apparent approval of these individuals—including the attorneys and the issuing magistrate—is not itself dispositive of the qualified immunity issue, see respectively, Cox, 391 F.3d at 35, and Malley v. Briggs, 475 U.S. 335, 344, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), it strongly suggests the absence of any "clearly established" law prohibiting the procedure undertaken by Officer Oliveri. Buttressing the fact that New Hampshire law does not expressly provide a method for initiating criminal process against a corporation or other jural person to ensure its presence in court, none of the litigants here provided the court with constitutional authority prohibiting or authorizing the method used in this case (other than Gidley's citation to the Fourth Amendment itself—or inapposite decisions that apply its protections at an impermissibly high level of generality for this analysis, see Anderson, 483 U.S. at 639, 107 S.Ct. 3034). Nor has the court's independent research revealed any such authority. Thus, it cannot be said that the state of the law gave Officer Oliveri fair warning that his conduct was unconstitutional. See Maldonado, 568 F.3d at 269-70. Even if Gidley's complaint makes out the bare allegation of a constitutional violation, then, the right he asserts was not "clearly established." 2. Reasonable defendant's understanding of conduct Even assuming, arguendo, that the booking-and-summons procedure as applied to an officer of a limited liability company to answer for its crime implicated a clearly established right, there is no reason to believe, based either on the evidence in the record or common sense, that the officers would or should have understood that their actions violated Gidley's constitutional rights. This "other aspect [of the qualified immunity doctrine] focuses more concretely on the facts of the particular case and whether a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights." Maldonado, 568 F.3d at 269. "It is important to emphasize that this inquiry `must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (further internal quotation marks omitted)). Here again, the plaintiff operates at too high a level of generality, "alleging violation of extremely abstract rights," Anderson, 483 U.S. at 639, 107 S.Ct. 3034, that "the Fourth Amendment is violated if the warrant is not supported by probable cause," and that the officers "need only to have read the preamble to the form of the affidavit/application [broadly defining probable cause]." First, however, not satisfied to limit his challenge to the booking-and-summons *103 procedure, Gidley pushes even further, arguing that even the underlying prosecution against the company was baseless: "there was insufficient evidence upon which Oliveri could have reasonably concluded that probable cause existed for the charge against Salem Manufactured Homes." But his argument mischaracterizes the spillage statute, suggesting it applies only when "an uncovered vehicle leaks material while traveling on a way, and the speed of the vehicle is not `less than 30 miles per hour.'" This completely reads paragraph I out of the statute; that paragraph prohibits and criminalizes the operation on a public way of any vehicle not loaded in such a way as to prevent spillage, regardless of whether its load is covered. N.H.Rev.Stat. Ann. § 266:72, I; see also § 266:72, V (exempting ¶ I from the speed requirement).[20] Simply put, Paragraph I prohibits spillage from a loaded vehicle, regardless of speed, while Paragraph II prohibits operating a vehicle with an uncovered load at a speed of 30 m.p.h. or greater, regardless of spillage. When the spillage statute is properly read, then, Officer Oliveri's affidavit unquestionably established probable cause for a ¶ I charge against Salem Manufactured Homes. First, the spillage statute expressly contemplates the criminal prosecution of corporate entities and the like, providing that offenders "shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person." Id. § 266:72, III. Probable cause to obtain an arrest warrant exists when police have knowledge of facts and circumstances grounded in reasonably trustworthy information and sufficient in themselves to warrant a belief by a prudent person that an offense has been committed. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); see also Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The affidavit set forth the accounts of two eyewitnesses to the spillage in question, cited physical evidence (a dented hood and cracked windshield) that corroborated the eyewitness accounts, and connected the spillage to the company through eyewitness accounts that the truck bore the company's name, as well as Oliveri's own research confirming that the truck was registered to the defendant company. It further contained a sufficient evidentiary basis for Gidley's alleged "ownership" of the defendant company—although this was irrelevant to the probable cause determination—through statements of the company's receptionist to the complainant-victim and Officer Oliveri himself. Gidley eventually conceded at oral argument that, under the applicable statutory variant of the spillage statute, set forth in ¶ I of § 266:72, the existence of probable cause is not a difficult question. Probable cause to support the corporate misdemeanor charge existed. Gidley's real challenge, of course, is to the booking-and-summons procedure as applied to an officer of the prosecuted limited liability company. Here, "the operative *104 inquiry is not whether the defendant's actions actually abridged some constitutional right, but, rather, whether those actions were obviously inconsistent with that right." Cox, 391 F.3d at 31 (emphasis in original) (internal citations omitted); see also Malley, 475 U.S. at 341, 106 S.Ct. 1092 (qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law."); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (officials are immune unless "the law clearly proscribed the action" they took). In light of an arrest warrant from a neutral and detached magistrate for the company "care of" Gidley, and a discussion with the company's defense attorney to arrange Gidley's booking, the idea that any reasonable officer would have understood that procedure to violate Gidley's clearly established rights under the Fourth Amendment is fanciful, to say the least. See Malley, 475 U.S. at 344-45, 106 S.Ct. 1092. This conclusion is buttressed by the fact, alluded to previously in the discussion of the abstract right implicated supra at Part III.A.1., that upon realizing he did not know how to effect the misdemeanor arrest of a limited liability company like Salem Manufactured Homes, Officer Oliveri sought the advice of the prosecutor assigned to the Salem Police Department. See Cox, 391 F.3d at 31. "Reliance on advice of counsel alone does not per se provide defendants with the shield of immunity." Sueiro Vázquez v. Torregrosa de la Rosa, 494 F.3d 227, 235 (1st Cir.2007). Or, stated in the context of this case, "the mere fact that an officer secures a favorable pre-arrest opinion from a friendly prosecutor does not automatically guarantee that qualified immunity will follow." Cox, 391 F.3d at 35. But Cox established the rule in this circuit that consultation with counsel is "one factor, among many, that enters into the totality of the circumstances relevant to the qualified immunity analysis," and that such consultation has significance at two levels: "both the fact of a pre-arrest consultation," and "the purport of the advice received." Id. Here, both factors further support a conclusion of objective reasonableness.[21] First, the fact that Officer Oliveri affirmatively sought out ACA Blaszka's advice, coupled with his attempt to resolve the situation short of an enforcement action through two telephone calls to Salem Manufactured Homes, suggests a good faith attempt to proceed reasonably. The point is further demonstrated by Officer Oliveri's arrangement, through Salem Manufactured Homes's counsel, of a booking-and-summons procedure at a time convenient for Gidley, rather than executing the arrest warrant through a physical arrest of Gidley at his home, office, or in a public place. Second, Officer Oliveri followed ACA Blaszka's advice. While a procedure other than the booking-and-summons utilized here, such as the issuance of an information and service of the information with a summons might have been preferable in retrospect, that was not the advice Officer Oliveri received. Furthermore, the advice was itself objectively reasonable, taking into consideration the spillage statute's applicability to non-natural persons such as business entities, the New Hampshire statute applicable to misdemeanor arrests, the County Attorney Office's policy requiring such misdemeanor arrests, and the consultation with a more senior supervisory county prosecutor. See Sueiro Vázquez, 494 F.3d at 236 ("This case does not involve advice from private counsel, who may have financial *105 incentives to provide exactly the advice the client wants.") It is also noteworthy that ACA Blaszka advised that the warrant and its execution were required under the law. See id. (advice from counsel that challenged conduct was required by Puerto Rican law contributed to finding of reasonableness). It is not this court's function to determine whether ACA Blaszka's advice set out the best, or most airtight, possible course of action; "a reviewing court must determine whether the officer's reliance on the prosecutor's advice was objectively reasonable." Cox, 391 F.3d at 35. Given the totality of the circumstances, Gidley's argument that no reasonable police officer would have believed the advice conformed to the Constitution is unpersuasive. Thus, even if this case involved a right clearly established under Supreme Court or First Circuit authority, but see Part III.A.1, supra, there is no basis to conclude that a reasonable officer would have understood that the conduct at issue here violated that right. Maldonado, 568 F.3d at 269-70. These facts, viewed alongside and through the lens of the applicable law, do not permit a finding that Officers Oliveri and Valerio,[22] or any other reasonable officer, would have understood that this conduct violated a clearly established constitutional right of the plaintiff. Accordingly, the defendants have established their right to qualified immunity. The defendants are granted summary judgment on the federal civil rights claims in Counts 1 and 2. B. The state law claims The parties, understandably, devoted the majority of their briefing to the § 1983 claims, which left little space, under the page limits imposed by the local rules,[23] for addressing Gidley's five common law tort claims. Fortunately, because they involve many of the same issues as the civil rights claims, little additional analysis is necessary. 1. State law false arrest, false imprisonment, and malicious prosecution Three of the claims—false arrest, false imprisonment, and malicious prosecution— are closely related to each other, and to the § 1983 claims set forth in Counts 1 and 2, because they involve the very same conduct: investigating and prosecuting Salem Manufactured Homes, and administering the booking-and-summons procedure to its officer, Gidley. While these three common law torts have different elements under New Hampshire law, the argument Gidley advances simplifies matters. He argues[24] that, in the context of this case, all three of these criminal procedure-based torts boil down to one question: whether the officers purposely arrested, detained, and prosecuted Gidley for a crime he was never accused of committing. *106 For all the reasons set forth above, supra Part III.A.-the lack of clear guidance under New Hampshire law, see 1 McNamara, supra § 8.25 at 179, the lack of a clearly established constitutional right implicated by the booking-and-summons procedure, the advice of counsel (both in its pursuit and in its substance), Officer Oliveri's attempts to disassociate himself from the process, and the objective reasonableness of the administration of the procedure itself—eliminate the existence of any genuine issues of material fact, entitling the defendants to summary judgment as a matter of law on these claims. An element-by-element analysis of the criminal justice-related torts, though unnecessary in light of Gidley's argument as set forth above, leads to the same conclusion. A successful malicious prosecution claim requires, among other things, a lack of probable cause for the charge.[25]See Paul v. Sherburne, 153 N.H. 747, 749, 903 A.2d 1011 (2006). ACA Blaszka's advice to Officer Oliveri, after receiving a full account of his investigation so far, conclusively establishes probable cause in this context. See Hogan v. Robert H. Irwin Motors, Inc., 121 N.H. 737, 739, 433 A.2d 1322 (1981) (citing, inter alia, Restatement (Second) of Torts § 666(1) (1977)). While Oliveri could not avail himself of this rule unless he sought Blaszka's advice in good faith, see Restatement (Second) of Torts § 666(1)(a), there is no evidence to the contrary here—only conjecture based on Gidley's relationship with Oliveri's former sister-in-law and a few incidents of mildly harassing conduct, see note 2, supra. That is insufficient to overcome summary judgment, particularly in light of Oliveri's repeated efforts to recuse himself from the case. Indeed, even if there were a triable issue as to the defendants' malice, that alone would not be sufficient to create a triable issue as to probable cause, because "[a]n improper purpose of the accuser in initiating . . . the proceeding is not evidence that he did not have probable cause to do so." Restatement (Second) of Torts § 669A(1). Similarly, Gidley cannot prevail on his state-law false arrest and false imprisonment claims, because the defendants had lawful authority to arrest him (if that is in fact what they did) in the form of a valid warrant for Salem Manufactured Homes "care of" Gidley. See Welch v. Bergeron, 115 N.H. 179, 181, 337 A.2d 341 (1975). 2. Infliction of emotional distress The defendants are also entitled to judgment as a matter of law on Gidley's common law emotional distress claims. First, as Gidley conceded at oral argument, he cannot prevail on his claim for negligent infliction of emotional distress because he lacks the requisite expert testimony that he suffered physical manifestations of such distress brought on by the defendants' conduct. See, e.g., O'Donnell v. HCA Health Services of N.H., Inc., 152 N.H. 608, 611-12, 883 A.2d 319 (2005). Second, assuming that this deficiency would not likewise be fatal to Gidley's claim for intentional infliction of emotional distress, he cannot succeed on that claim anyway because he cannot show that the defendants' conduct was "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Mikell v. Sch. Admin. Unit No. 33, 158 N.H. 723, 729, 972 A.2d 1050 *107 (N.H.2009) (quoting Restatement (Second) of Torts § 46 cmt. d, at 73 (1965)). Again, Officer Oliveri simply initiated an investigation prompted by a citizen complaint; attempted to resolve the complaint informally with a call to Gidley's company; and, when that failed, sought the advice of a county prosecutor as to what to do next. And Officer Valerio simply subjected Gidley to a booking procedure as contemplated by the warrant. These actions—even if technically illegal, which, as explained at length supra, is a tricky question in its own right—are at a considerable remove from the extreme and outrageous behavior necessary to impose liability for intentional infliction of emotional distress. See, e.g., Konefal v. Hollis/Brookline Coop. Sch. Dist., 143 N.H. 256, 261, 723 A.2d 30 (1998) (noting that "outrageous conduct" contemplates "a great deal more" than simply "illegal and reprehensible conduct").[26] 3. Defamation As to defamation, the defendants are granted summary judgment for precisely the reason they advance. Although the Salem Observer's "police blotter" notice certainly contained inaccurate information—it suggested that Gidley himself had been arrested, and that the charge was "illegal dumping"—there is no evidence whatsoever connecting those published inaccuracies to statements or other information-conveying conduct by the defendant officers. Without that evidentiary connection, the defamation claim fails, entitling the defendants to summary judgment. See Duchesnaye v. Munro Enterprises, Inc., 125 N.H. 244, 250, 480 A.2d 123 (1984); see generally Kassel v. Gannett Co., 875 F.2d 935, 938 (1st Cir.1989). IV. CONCLUSION With due deference to Gidley and the zeal of his counsel's advocacy, the court cannot concur with the argument that this case—involving a misdemeanor prosecution for the spillage of dirt and pebbles from a dump truck—"goes straight to the heart of the integrity of our nation's criminal justice system." (Plaintiff's opposition to summary judgment memorandum, p. 1). All told, it is probably something less momentous than that. "Qualified immunity serves not only as a defense to liability but also as an entitlement not to stand trial or face the other burdens of litigation." Cox, 391 F.3d at 29 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). "Seen in this light, many of the benefits of qualified immunity are squandered if an action is incorrectly allowed to proceed to trial." Id. The defendants are entitled to the benefits of the doctrine.[27] The defendants' motion for summary judgment[28] is GRANTED and the plaintiff's cross-motion for summary judgment[29] is DENIED. All other pending motions are DENIED AS MOOT. The *108 clerk is instructed to enter judgment for the defendants and close the case. SO ORDERED. NOTES [1] Because only Counts 1 and 2, which contain but are not limited to federal civil rights claims, are the subject of summary judgment motions by both parties, and only the defendants have moved for summary judgment on the remaining claims, the court regards Gidley as the "nonmovant," and states the facts in the light most favorable to him. Id. [2] Gidley alleges a "pattern of harassment" by both defendant officers and Officer Richard Oliveri prior to the investigation of the Leclair complaint. The court, applying the summary judgment standard, infers in the plaintiff's favor that these events, which appear to be a short series of juvenile, somewhat annoying encounters not initiated or escalated by Gidley, actually took place. The parties agreed at oral argument, however, that the "harassment events" have no bearing on the § 1983 claims. [3] New Hampshire's "spillage" statute provides: 266:72 Spillage of Material I. No vehicle shall be driven or moved on any way unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction or water or other substance may be sprinkled on a way in cleaning or maintaining such way. * * * III. Any person who violates the provisions of this section shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person. Any person shall be liable to the state or town for any damage done to the way by spillage. N.H.Rev.Stat. Ann. 266:72 (Supp.2008). The statute was amended in 2004 and 2006 in ways not relevant to this case. Paragraph V of the statute contains exceptions applicable to paragraph II and II-a, including one rendering those paragraphs inapplicable to vehicles traveling under 30 miles per hour. Id. at § 266:72, V(c). The 30 m.p.h. minimum does not apply to paragraph I. [4] Gidley's role as the "owner" of Salem Manufactured Homes was the subject of much discussion during the investigation and prosecution of the company, and the debate continued during this litigation. The issue does not strike the court as particularly controversial. In truth, limited liability companies under New Hampshire law do not have "owners" per se. They have "members," the only individuals with any interest in the companies' profits, distributions, or assets, see N.H.Rev. Stat. Ann. § 304-C:1, X (2005); see also id. § 304-C:38-46, and "managers" who must be chosen by the members in the manner provided in the limited liability company agreement, and whose responsibilities are limited to those set forth in the agreement. See N.H.Rev.Stat. Ann. § 304-C:1, IX; see also N.H.Rev.Stat. Ann. § 304-C:31, I. Regardless of these distinctions under New Hampshire law, there appears to be no question, based on all of the documentary and testimonial evidence in the record, that Gidley was the company's sole member and sole manager. At his deposition, Gidley identified himself as both a manager and member of the company, and was unable to identify any other members. Salem Manufactured Homes' receptionist identified Gidley to Ms. Leclair, and at her deposition, as the company's "owner." In layman's terms, a member of an LLC— especially a sole member—is the company's "owner." [5] N.H.Rev.Stat. Ann. § 594:10. This provision requires arrest warrants in support of misdemeanor arrests committed outside the presence of a public officer; it does not, however, require arrest warrants in all misdemeanor prosecutions. [6] State v. Sun Ho Restaurants, Inc., Rockingham County Superior Court # 2000-S-1161, 1162, 1163 (N.H.2000). The court records manifesting these procedures are part of the summary judgment record. [7] The court previously struck the Secretary of State's correspondence from the summary judgment record based on the defendants' well-taken foundational objection, see Fed. R.Civ.P. 56(e); Brown v. Town of Seabrook, 2008 DNH 196, 8-10, 2008 WL 4844213 (D.N.H.2008), but in the spirit of viewing the evidence in the light most favorable to the plaintiff, see Part I, supra, the court will consider it. Regardless, even taking Gidley's view that Officer Oliveri did not receive confirmation of Gidley's ownership status, the issue is irrelevant. The record reveals no more appropriate affiliate or officer of the company to undergo the booking-and-summons procedure described infra. [8] The time originally suggested by Officer Oliveri was not convenient for Gidley, so Officer Oliveri and Attorney Morgan agreed to a different time. [9] A bail commissioner decides whether, and under what conditions, an arrestee is detained in custody or released pending arraignment in court. N.H.Rev.Stat. Ann. § 597:18 (2003). [10] There is no evidence that either defendant entered, or had any role in entering, the information in the police blotter. [11] Attorney Blaszka, who is no longer a prosecutor, testified that the state agreed to the dismissal because he was not in a position to prove that Gidley was the "owner" of Salem Manufactured Homes. Leaving aside the issue of whether the term "owner" has any meaning in the context of a limited liability corporation, see supra n. 4, the rationale for this decision is lost on the court. Unlike a violation prosecution against the truck driver involved, see N.H.Rev.Stat. Ann. § 266:72, III, a misdemeanor case against the company did not require proof of any affiliation with the company on Gidley's part, or, for that matter, proof of the identity of any natural person. [12] In his summary judgment memorandum, Gidley cites Pena-Borrero v. Estremeda, 365 F.3d 7 (1st Cir.2004), for the proposition that false arrest and false imprisonment are properly treated as components of a single Fourth Amendment violation. After confirming his position at oral argument, the court will approach the issue as Gidley suggests, treating the federal claims in Counts 1 and 2, for summary judgment purposes, as a single challenge to the booking-and-summons procedure under the Fourth Amendment, see id. at 13 n. 8, rather than separately analyzing the concepts of, and distinctions between, "arrest" and "imprisonment" under the facts of this case. The separate elements of false arrest and false imprisonment will be addressed only in the court's analysis of the state common law claims also asserted in Counts 1 and 2. See infra Part III.B.1. [13] "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Id. The Fourth Amendment applies to the states through the Fourteenth Amendment. [14] While the First Circuit Court of Appeals has frequently articulated this inquiry as a three-part test, the additional step amounts to a distinction without a difference. The court of appeals has expressly abandoned the three-step analysis in favor of the two-part test set forth above. Maldonado, 568 F.3d at 268-69. [15] It can not be seriously questioned—and has not been in this case—that what took place was a prosecution of Salem Manufactured Homes, and not of Gidley himself. The warrant named the company as arrestee, listed its address (not Gidley's), and alleged a misdemeanor (not a violation), which by operation of law eliminated the possibility that the defendant was a natural person, subject only to a violation charge. See N.H.Rev.Stat. Ann. § 266:72, III. [16] When used as a verb in the context of law enforcement, to "book" is "to enter the name and tentative charge against (a person) usually in a police register." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 253 (Merriam-Webster, Inc. 2002). It is an "administrative step," and customarily "involves entry of the person's name, the crime for which the arrest was made, and other relevant facts on the police `blotter' and which may also include photographing, fingerprinting and the like." BLACK'S LAW DICTIONARY 166 (5th ed. 1979). It does not, in and of itself, involve detention or custodial interrogation, either customarily or under the facts of this case. [17] It is unclear whether the summons required Gidley to personally appear in court, or if some other corporate employee would have sufficed. As the only member and manager of Salem Manufactured Homes, Gidley was the most likely candidate for that as well. Gidley does not actually challenge this aspect of the procedure under § 1983, however (his malicious prosecution claim lies under state law) so the question need not be addressed here. [18] It bears pointing out again here that in this "corporate" prosecution of a limited liability company, there was never any chance that Gidley could be personally sentenced or otherwise punished, much less imprisoned. See note 15, supra. [19] Indeed, "[p]rosecutors in New Hampshire have generally relied upon the statutes that govern service of civil process upon corporations to provide corporations with notice of criminal charges." 1 McNamara, supra § 8.25 at 179. While this precise process was not utilized in this case, the deposition testimony of both Officer Oliveri and Assistant County Attorney Blaszka strongly suggests that they were trying to approximate a summons-like procedure, as opposed to a physical arrest accompanied by the imposition of pre-arraignment custody or bail conditions. (See Oliveri deposition, p. 65 ("He was released on a summons.")); id. at 65-66 (describing the summons-without-bail procedure Oliveri requested of his supervising sergeant); Blaszka deposition, p. 62. ("I didn't tell [Officer Oliveri] to go slap the cuffs on somebody, but I did mention that if there's an arrest warrant that has been obtained, he needs to go execute it or have someone from the department execute it. . . . I don't recall, specifically, that I told him to go arrest Mr. Gidley, because an officer can either issue an old style summons or he can physically arrest the person. . . . They could actually arrest somebody, book them, process them and not call the bail commissioner.. . .")). [20] For reasons that are lost on the court, both parties have devoted significant portions of their summary judgment memoranda to the speed the truck was traveling when Ms. Leclair's vehicle was pelted with its debris, and whether Officer Oliveri investigated or considered the issue of the truck's speed. The speed issue is a red herring. The arrest warrant affidavit purported to establish probable cause under N.H.Rev.Stat. Ann. § 266:72, the spillage statute, and made no reference to any paragraph or statutory variant of that offense. Although the truck's load was uncovered, potentially allowing for a prosecution under ¶ II of the statute, which requires that the truck be traveling at least 30 miles per hour, N.H.Rev.Stat. Ann. § 266:72, V(c), the affidavit also established probable cause under ¶ I of the spillage statute, which requires no such proof of speed. See id. § 266:72, I. [21] To his credit, Gidley's counsel informed the court at oral argument that when the case was initially put into suit, he was unaware of ACA Blaszka's involvement. [22] Although the focus of the court's analysis has been Officer Oliveri's conduct, it goes without saying that if he is entitled to qualified immunity, Officer Valerio, whose entire involvement began and ended with the booking-and-summons procedure itself, is also so entitled. At oral argument, Gidley maintained that the decision by the court of appeals in Wilson v. City of Boston, 421 F.3d 45 (1st Cir.2005), supported a claim against Valerio on the theory that Wilson requires an officer to independently verify whether probable cause exists before executing an arrest warrant. Wilson comes nowhere near endorsing such a radical break when examining Fourth Amendment law; in fact, Wilson ruled that qualified immunity protected an official who mistakenly believed that a warrant to arrest the plaintiff existed. Id. at 58-59. [23] LR 7.1(a)(3). [24] Gidley advanced this argument forcefully, albeit ultimately unsuccessfully, at oral argument. [25] It also requires, obviously, a prosecution of the plaintiff himself, which does not seem to be the case here, since it was Salem Manufactured Homes, not Gidley personally, who was charged. See note 15, supra. [26] Furthermore, though the defendants have not challenged Gidley's proof on this point, there is no suggestion that Gidley suffered "severe emotional distress" from his ordeal, which would independently doom this claim. See Konefal, 143 N.H. at 261, 723 A.2d 30. [27] Nothing in this ruling should be read to support the idea that, as a general proposition, New Hampshire law or the United States Constitution countenance the arrest and detention of company officers in criminal prosecutions of corporations, limited liability companies, and the like. Preferable procedures were described supra. The ruling here is that on these facts, and under the applicable law, the defendants are entitled to qualified immunity. [28] (Document no. 12). [29] (Document no. 14).

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT DEC 15, 2008 No. 08-11109 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ Agency No. A79-056-587 EFENDY LIE, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals _________________________ (December 15, 2008) Before TJOFLAT, ANDERSON and BLACK, Circuit Judges. PER CURIAM:  Efendy Lie, a citizen and native of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming the immigration judge’s (“IJ”) denial of asylum, withholding of removal and United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”) relief. Lie concedes that the BIA correctly dismissed his asylum claim as untimely. Therefore, we will not further discuss that claim. The Government argues that Lie waived his challenge to the BIA’s denial of CAT relief and any argument that he was entitled to relief based on past persecution by not arguing those issues in his brief. The Government also contends that Lie has waived any argument that the BIA erred by making an adverse credibility determination by not arguing the issue on appeal. The Government asserts that because the IJ denied Lie’s application for relief based on the adverse credibility determination, and the BIA affirmed, Lie’s petition should be dismissed because the adverse credibility determination is dispositive. When an appellant fails to offer argument on an issue, that issue is abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). A passing reference to an issue in a brief is insufficient to properly raise that issue. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989). An alien who arrives in or is present in the United States may apply for relief from removal. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1284-85 (11th 2 Cir. 2005). The asylum applicant carries the burden of proof. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). However, an adverse credibility determination by the BIA may be sufficient in itself to support the denial of an application for relief from removal. Forgue, 401 F.3d at 1287. Lie has waived any argument that the BIA erred by making an adverse credibility determination or by denying CAT relief because Lie did not argue either issue in his brief. However, the BIA did not rest its decision solely on the adverse credibility determination, so we will address the BIA’s denial of withholding of removal on the merits as well. On appeal, Lie argues that an applicant who shows a clear probability of persecution may not be deported. Lie states that he testified at his asylum hearing about the suffering he endured as a Chinese Christian in predominately Muslim Indonesia, including attacks by other children where he was bruised, his nose bled, and his ear was cut. Lie asserts that the situation in Indonesia is unstable, and it is more likely than not that he will face further attacks from native Indonesians if forced to return. He asserts, therefore, that the BIA erred by deny him withholding of removal. We review only the BIA’s decision because the BIA did not adopt the IJ’s opinion or reasoning. Al Najjar, 257 F.3d at 1284. When considering a petition to review a BIA final order, we review legal issues de novo. Mohammed v. Ashcroft, 3 261 F.3d 1244, 1247 (11th Cir. 2001). The BIA’s factual findings are reviewed under the substantial evidence test. Al Najjar, 257 F.3d at 1283. Under the substantial evidence test, we must affirm the BIA’s decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. at 1284. “To reverse a factual finding by the BIA, we must find not only that the evidence supports a contrary conclusion, but that it compels one.” Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001). The fact that evidence in the record also may support a conclusion contrary to the administrative findings is not enough to justify a reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). An alien may qualify for withholding of removal by either by (1) showing past persecution on a protected ground or (2) showing “it is more likely than not that [the petitioner’s] life or freedom would be threatened on account of a statutorily protected factor if returned to [the country of removal].” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006). Protected grounds are race, religion, nationality, membership in a particular social group, or political opinion. Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004). If an alien shows past persecution, a rebuttable presumption of future persecution arises. Tan, 446 F.3d at 1375. The alien bears the burden of proof to show that it is more likely than not that the alien will be persecuted or tortured. Sepulveda, 401 F.3d at 1232. 4 Persecution is an “extreme concept” that requires “more than a few isolated incidents of verbal harassment or intimidation.” Id. at 1231. Mere harassment “does not amount to persecution.” Id. Additionally, even after making an adverse credibility determination, the IJ still must consider other evidence produced by the applicant. Forgue, 401 F.3d at 1287. Lie’s claim that the BIA erred by denying withholding of removal is without merit. The BIA only needed to consider the supporting evidence, not Lie’s testimony, because it had accepted the IJ’s adverse credibility determination. The Country Report and Religious Freedom Report show that Indonesia has made significant progress in reducing racial and religious discrimination. Further, Lie’s brother and sisters live in Indonesia without incident. Substantial evidence supports the BIA’s conclusion that Lie is not at risk of future persecution because the evidence shows Indonesia’s racial and religious progress, and Lie’s family is living in Indonesia without incident. Even considering Lie’s testimony, the BIA did not err by denying relief because Lie did not establish past persecution. Lie testified that other children had injured him on two separate occasions, causing a nosebleed and a serious cut on his ear. After the incident where Lie’s ear was cut, the school principal expelled the offenders from the school. Lie suffered no other serious incidents. The incidents that he cited do not amount to persecution because they are not extreme. In one 5 incident, Lie’s most serious injury was a nosebleed, and in the other, the authorities acted directly to punish those responsible. Therefore, the BIA did not err by denying withholding of removal because substantial evidence supports the BIA’s conclusion that Lie did not meet his burden of proof. Accordingly, Lie’s petition for review of the BIA’s decision is denied. DENIED. 6 

838 F.2d 1209Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Walter Henry Joseph GRIFFIN, Petitioner-Appellant,v.Edward W. MURRAY, Director, Virginia Department ofCorrections, Respondent-Appellee. No. 87-7767. United States Court of Appeals, Fourth Circuit. Submitted: Dec. 30, 1987.Decided: Feb. 5, 1988. Before DONALD RUSSELL and K.K. HALL, Circuit Judges, and BUTZNER, Senior Circuit Judge. Walter Henry Joseph Griffin, appellant pro se. Robert Quentin Harris, Office of Attorney General, for appellee. PER CURIAM: 1 A review of the record and the district court's opinion discloses that this appeal from its order refusing habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 is without merit. Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument, and dismiss the appeal on the reasoning of the district court. Griffin v. Murray, C/A No. 87-253-N (E.D.Va. Nov. 9, 1987). DISMISSED

FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 2/5/2015 2:28:00 PM DEBBIE AUTREY Clerk 

908 F.2d 975 Unpublished DispositionNOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Donald E. HUNZIKER and Joan E. Hunziker, Plaintiffs-Appellants,v.GERMAN-AMERICAN STATE BANK, an Illinois Corporation, JamesSchneiderman, Jeff Sibley, James Butler, Francis X. Mahoney,Peter D. McClanathan, Oefelein, Rundall, Mr. Clark, C.Roberts, Schmelzle & Kroeger Law Offices, Glenn Borneman,Bill Lomax, Ted Long, Vail Nortridge, Marsden Wilhelms andW.L. Kroeger, Defendants-Appellees. No. 88-3160. United States Court of Appeals, Seventh Circuit. Submitted June 20, 1990.*Decided July 10, 1990.Rehearing and Rehearing En Banc Denied Sept. 4, 1990. Before RICHARD D. CUDAHY, FRANK H. EASTERBROOK and DANIEL A. MANION, Circuit Judges. ORDER 1 The Hunzikers appeal the district court's decision in their civil rights claims against an Illinois circuit judge, a county sheriff and three of his deputies, the German-American State Bank, and its employees and attorney. Hunziker v. German-American State Bank, 697 F.Supp. 1007 (N.D.Ill.1988). For the reasons stated below, we affirm. I. 2 The procedural history is set forth succinctly in the district court's decision. 697 F.Supp. at 1008-09. We recite only those facts germane to the appeal. 3 The Hunzikers defaulted on a loan of $290,000 in February 1985. The bank, learning that the Hunzikers had sold livestock in which it had a security interest, began ex parte replevin proceedings against the Hunzikers. Ill.Stat. chap. 110, Sec. 19-106 (exception to notice and hearing requirement for replevin actions). Judge Mahoney issued a writ of replevin permitting the bank to seize the Hunzikers' secured property and set the hearing for entry of the order for April 15, 1985. Sheriff Oefelein and his deputies seized the property on April 11, 1985. 4 The Hunzikers attempted to remove the case to federal court the day of the hearing. The district court denied leave to remove; the order was hand-delivered to the state circuit court that day. Judge Mahoney held a hearing on the issue of whether the bank could immediately sell the livestock, based on the bank's emergency motion. The judge granted Mr. Hunziker's motion for a continuance in order to obtain an lawyer on the larger issue of whether the writ properly issued. After a second continuance requested by the Hunzikers' counsel, the court considered the propriety of the ex parte proceedings and motions by the Hunzikers' counsel. In August, the bank agreed to accept the sale proceeds in lieu of payment in full of the defaulted loans; the Hunzikers waived their right to sue the bank. The Hunzikers moved the court to accept this handwritten settlement agreement, which had been signed by all parties on August 2, 1985. After a hearing, Judge Mahoney drafted a final judgment order, and held a second hearing about the settlement agreement in November 1985.1 The parties accepted the terms of the order and it was entered. A month later, the Hunzikers filed several motions to have the settlement set aside and the paragraph releasing the bank from liabilities stricken. When these motions were denied, the Hunzikers appealed.2 Before the state appellate court handed down its decision, the Hunzikers filed an action against the appellees pursuant to 42 U.S.C. Secs. 1983, 1985, and 1986, as well as Fed.R.Civ.P. 60(b). 5 The district court dismissed the Secs. 1985 and 1986 claims for failure to state a colorable action based on race, sex, religion or political loyalty, and dismissed the claims against Judge Mahoney on the basis of judicial immunity, pursuant to Fed.R.Civ.P. 12(b)(6). Hunziker, 697 F.Supp. at 1011-12. The district court granted summary judgment in favor of the sheriff and deputies based on their qualified immunity, and in favor of the bank and its privies based on the principle of res judicata. Id. at 1013-15. The Hunzikers timely appealed. II. 6 A. Judicial Immunity and the Rule 12(b)(6) Dismissal3 7 We review de novo the district court's dismissal for failure to state a claim upon which relief could be granted. Gregory v. Nunn, 895 F.2d 413, 414 (7th Cir.1990); Villegas v. Princeton Farms, Inc, 893 F.2d 919, 924-25 (7th Cir.1990). If Judge Mahoney can claim judicial immunity, a Rule 12(b)(6) dismissal is appropriate. See Williams v. Faulkner, 837 F.2d 304, 307 n. 5 (7th Cir.1988), aff'd sub. nom. Nietzke v. Williams, 491 U.S. ---, 109 S.Ct. 1827 (1989) (citing Williams v. Goldsmith, 701 F.2d 603 (7th Cir.1983) (per curiam)). 8 The Hunzikers allege that Judge Mahoney was not entitled to judicial immunity when he heard the replevin action ex parte and signed the replevin order.4 A judge is only immune from damages due to judicial actions, not ministerial or administrative actions. See Forrester v. White, 484 U.S. 219, 228-29 (1988); Stump v. Sparkman, 435 U.S. 349 (1978); Eades v. Sterlinske, 810 F.2d 723, 725-26 (7th Cir.1987), cert. denied, 484 U.S. 1874 (1988). Holding a hearing and signing orders are judicial functions and Judge Mahoney is immune from damages resulting from these actions.5 9 However, the Hunzikers aver that Judge Mahoney acted outside his jurisdiction and so cannot properly avail himself of the affirmative defense of immunity. The Hunzikers assert that Judge Mahoney lacked jurisdiction because the complaint was not properly signed by an attorney, but by the bank president. But irregularities in following state procedures do not divest a court of its jurisdiction. Stump, 435 U.S. at 359. 10 The Hunzikers additionally allege that Judge Mahoney lacked jurisdiction to hold the April 15th hearing because they had attempted to remove the replevin action to federal court. The state appellate court found that the circuit court retained jurisdiction as the federal court declined to permit removal. This issue is therefore res judicata for our purposes. Henry v. Farmer City State Bank, 808 F.2d 1228, 1234 (7th Cir.1986), and cases cited therein. Judge Mahoney therefore did not act outside his jurisdiction when he ruled on April 15th that the bank could sell the livestock; he is immune. 11 B. Immunity of the Sheriff and Deputies and Summary Judgment 12 We also review the district court's granting of summary judgment de novo. See International Broth. of Boilermakers v. Local D354, 897 F.2d 1400, 1406 (7th Cir.1990); Puckett v. Soo Line R.R. Co., 897 F.2d 1423, 1425 (7th Cir.1990). The sheriff and deputies are properly awarded summary judgment if there are no material issues of fact and they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Whetstine v. Gates Rubber Co., 895 F.2d 388, (7th Cir.1990) (citations omitted). 13 The Hunzikers argue that the sheriff and deputies deprived them of property without due process when they took possession of the secured chattels on the basis of the writ of replevin. The district court found this court's reasoning in Henry controlling. "[S]heriffs and other court officers who act in reliance on a facially valid court order are entitled to quasi-judicial immunity from suit for Sec. 1983 damages." 808 F.2d at 1239; see also Dellenbach v. Letsinger, 889 F.2d 755, 762 n. 7 (7th Cir.1989) (citing Henry, 808 F.2d at 1238). The Hunzikers assert that the writ was not facially valid because the attached bond was unsecured; we disagree. The writ itself was proper, and the state court later (in June 1985) required the bank to secure the bond. The sheriff, who accepted the original bond and his deputies were entitled to quasi-judicial immunity; summary judgment was proper. 14 C. Summary Judgment for the Bank and its Officers and Employees 15 The district court found that these defendants were entitled to summary judgment on the principle of res judicata. The principle, and the related principle of collateral estoppel, are applicable to Sec. 1983 actions. Allen v. McCurry, 449 U.S. 90 (1980); Farmer v. Lane, 864 F.2d 473, 476 (7th Cir.1988) (citing Allen and other cases). As explained in LaSalle Nat'l Bank of Chicago v. DuPage County, 856 F.2d 925 (7th Cir.1988), and Henry, 808 F.2d at 1235, if the same issues were raised or could have been raised in the state proceedings, then the issues are res judicata as between the parties common to both the state and federal proceedings. 16 When the Hunzikers entered into a settlement, they waived a final trial on the merits of the replevin action, where they could have raised the issue of fraud.6 In October 1985, the Hunzikers raised some of their current constitutional claims concerning the ex parte hearing. The motion addressing these claims was denied, and the Hunzikers later waived the issues by affirming the settlement agreement and relinquishing their right to further adjudication of the case. See Torres v. Rebarchak, 814 F.2d 1219, 1223 (7th Cir.1987) (applying Illinois law, res judicata "applies even if the dismissal was the result of a settlement or compromise between the parties") (citations omitted). 17 The additional defendants can also avail themselves of a res judicata defense. In Henry, this court permitted the defendants in the federal action (bank officers, directors, attorneys, and employees, as here) to successfully allege res judicata based on their privity to the bank that was a named party to the state foreclosure action. 808 F.2d at 1235 n. 6. The same reasoning applies here; the district court properly granted summary judgment to the remaining defendants. D. Disposition of Other Motions 18 We review the district court's denial of the Hunzikers' motions for discovery and to amend their complaint for abuse of discretion. Dole v. Local 1942, IBEW, 870 F.2d 368, 371 (7th Cir.1989) (discovery); Jones v. Pismos, 882 F.2d 1277, 1285 (7th Cir.1989) (complaint amendment). The inquiry is " 'whether any reasonable person could agree with the district court.' " Geitz v. Lindsey, 893 F.2d 148, 151 (7th Cir.1990) (quoting Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1266 (7th Cir.1988)). 19 The Hunzikers claim that the court should have permitted discovery on the issue of a conspiracy and the attempted removal of the replevin action to federal court, without specifying why the court should have done so. We find no abuse of discretion in the record. The Hunzikers also assert that the court abused its discretion in denying their motion to amend the complaint because the amended complaint "did not raise new claims for relief and merely extended detail to earlier allegations." The district court described the original complaint as "not a model of clarity ... interspers[ing] theories for relief throughout a long (48 pages), contentious, and often picturesque narrative of the facts underlying their case." Hunziker, 697 F.Supp. at 1010 n. 4. No abuse of discretion occurred in the court's denial of the Hunzikers' Fed.R.Civ.P. 15(a) motion.7 III. 20 For the foregoing reasons, the decision of the district court is hereby 21 AFFIRMED. * After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Rule 34(a), Fed.R.App.P.; Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record 1 At that time, the Hunzikers, appearing pro se, submitted a motion objecting to entry of final judgment in favor of the bank. They urged that they had been denied fourth, fifth, ninth, and fourteenth amendment rights (substantive and procedural due process and equal protection); that the replevin statute violated due process pursuant to Fuentes v. Shevin, 407 U.S. 67 (1972); that they were misrepresented by their attorney; and that the judgment was due to error or fraud perpetrated on the court by the bank. However, the judge denied this motion when the Hunzikers admitted in open court that they had signed the handwritten agreement and did want it enforced 2 Eventually, they petitioned the Supreme Court, denied certiorari. Hunziker v. German-American State Bank, 485 U.S. 1011 (1988) 3 The Hunzikers do not appeal the district court's dismissal of their Secs. 1985 and 1986 claims 4 A majority of the Hunzikers' appellate brief is dedicated to decrying the concept of judicial immunity and explaining the Supreme Court's erroneous reliance on English common law and American legislative history to justify applying the doctrine to Sec. 1983 cases. We decline to address the Hunzikers' contentions concerning the concept of judicial immunity 5 The Hunzikers also contend that because they did not receive notice and an opportunity to be heard, the judge violated their due process rights. See Fuentes v. Shevin, 407 U.S. 67, 96-97 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970). The Hunzikers are attacking the Illinois statute which creates an exception for prior notice and an opportunity to be heard in replevin actions, since Judge Mahoney acted pursuant to this statute. Ill.Stat. chap. 110, Sec. 19-106. Because the Hunzikers made and then waived this argument in state court, it is res judicata. See Henry v. Farmer City State Bank, 808 F.2d 1228, 1234 (7th Cir.1986) (citing Illinois cases concerning res judicata ) 6 They attempted to raise a particular issue of fraud based on the fact that the bank did not loan money, but credit, in their motion to reconsider or vacate the settlement agreement. In the district court, they raised the issue that Mr. Hunziker's signature was forged on one of the security agreements. This issue, too, could have been raised in the Illinois proceedings and is barred 7 The Hunzikers lastly allege that the district court denied their access to the courts by not allowing them to submit additional filings. The claim is without merit, particularly considering the numerous filings that the district court did accept. See Hunziker, 697 F.Supp. at 1010 n. 4

423 F.Supp. 1245 (1976) UNITED STATES of America ex rel. Jacques TIRADO, Petitioner, v. Roy F. BOMBARD, Superintendent, Green Haven Correctional Facility, Respondent. No. 76 Civ. 2180-CSH. United States District Court, S. D. New York. December 3, 1976. *1246 Jacques Tirado, pro se. Louis J. Lefkowitz, Atty. Gen. of N.Y., New York City by Asst. Atty. Gen. David L. Birch, Brooklyn, N.Y., of counsel, for respondent. MEMORANDUM AND ORDER HAIGHT, District Judge: Petitioner Jacques Tirado is now serving a prison term of eight to twenty-five years, imposed by Justice Rosenberg, Supreme Court, New York County. Sentence followed a January 9, 1973 conviction by a jury on the charges of possession of a dangerous drug in the second degree, and criminally using drug paraphernalia in the second degree. The conviction was affirmed, People v. Tirado, 47 A.D.2d 193, 366 N.Y.S.2d 140 (1st Dept. 1975) (Murphy, J., dissenting). The Court of Appeals affirmed in a memorandum, 38 N.Y.2d 955, 384 N.Y. S.2d 151, 348 N.E.2d 608 (1975), on the majority opinion by Justice Stevens. Petitioner now seeks relief by writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 2254. He alleges four distinct grounds for declaring his conviction and subsequent custody to have been obtained by violation of the United States Constitution. First, Tirado alleges that his Fourth Amendment rights were violated by an insufficient affidavit submitted in support of the warrant application, and by the failure of the People to establish the reliability of the informant who supplied the information used to obtain the warrant. Petitioner further alleges that the warrant was in essence based on hearsay, and that his motion to suppress the evidence, held before Justice McQuillan, should have been granted. Second, Petitioner alleges that certain of his statements, made to arresting officers, were erroneously admitted at trial. He maintains that he was not given the notice of use required by the New York Criminal Procedure Law. *1247 Petitioner's third point is his allegation that the admission into evidence, at trial, of $38,765 in cash constituted undue prejudice. His fourth and final allegation is that the instructions by the trial judge as to joint possession, given to the jury while they were deliberating, and upon their request for additional information as to the nature of possession, constituted error which would require a new trial. ISSUES I. Petitioner's Fourth Amendment Claims The Petitioner alleges claims which, if true, would constitute violations of the Fourth Amendment. These claims go to the validity of the affidavit underlying the search warrant issued for his apartment, as well as going to the sufficiency of the warrant itself. Petitioner contends that because of these defects, his original suppression motion should have been granted, and the drugs and cash should have been excluded from trial. This court cannot evaluate the factual and legal allegations which Petitioner Tirado advances in support of his Fourth Amendment claims. Such evaluation here is precluded by the recent decision of the Supreme Court in Stone v. Powell, ___ U.S. ___, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), which held: "Where the state has provided opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 96 S.Ct. 3037, 3052. In a footnote to the above passage, the Court explained that its holding does not mean that a federal court lacks jurisdiction over a Fourth Amendment claim, but only that a federal court's application of the exclusionary rule is limited to instances were there has been first, a Fourth Amendment violation, and second, denial of a full and fair opportunity to litigate that matter in a state court. 96 S.Ct. 3037, 3052 n. 37. Petitioner makes no showing of such a denial of a constitutionally sufficient opportunity. On the contrary, after Petitioner was unsuccessful in his suppression hearing, he further litigated the claim before the Appellate Division and the Court of Appeals. Accordingly, this court may not consider Petitioner's Fourth Amendment claim. II. Admission of Defendant's Statements to Arresting Officers Petitioner also alleges that certain of his statements, made to police officers during the course of his arrest and booking, were erroneously admitted at trial. He argues that under the New York Criminal Procedure Law, notice must be given when such statements by a defendant are used against him at trial. The basis of the notice requirement is to allow a defendant the opportunity to challenge the voluntariness of a statement made to law enforcement officials, when the statement pertains to the charged offense. C.P.L. Sec. 60.45 states that: "Evidence of a written or oral confession, admission, or other statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made." Subsection (2) of C.P.L. Sec. 60.45 defines an involuntarily made statement. Further, C.P.L. Sec. 710.30 sets forth clear rules of notice to a defendant whose statements were made to public servants and are then sought to be admitted at trial, as is the case with Petitioner. Sec. 710.30(2) requires that notice of the People's intent to introduce the statements be served upon the defendant before trial, and that the defendant be given reasonable opportunity to move for a pre-trial suppression hearing. However, subdivision (3) of C.P.L. Sec. 710.30 states that in the absence of such notice, no evidence of such statements made by defendant to public servants may be admitted at trial "unless he [the defendant] has, despite the lack of such notice, moved to suppress such evidence and such motion has been denied." In the instant case, that is *1248 precisely what transpired. The suppression hearing court found the statements to be voluntary, after Petitioner had argued his motions on that matter. The purpose of the notice requirement is to prevent a defendant from being taken by surprise and being forced to litigate the issue of voluntariness for the first time, at the trial. When the question has been decided by a pre-trial suppression hearing, the unnotified defendant was not prejudiced, particularly since even if unsuccessful at the hearing, he may re-litigate the voluntariness at trial. In addition, it is apparent that Petitioner has failed to present this question to the New York Court of Appeals. He has not exhausted his state remedies, and, as a matter of policy, this concept of exhaustion relates to the appropriate exercise of the power which federal courts possess over review of state criminal proceedings. Fay v. Noia, 372 U.S. 391, 420, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). 28 U.S.C. § 2254(b), which applies to state prisoners seeking federal habeas corpus relief, requires that an applicant exhaust the remedies available in the state courts. Accordingly, even if Petitioner's claim had greater surface substance, the fact remains that he has not pursued the available state appellate procedures. On that basis as well, I reject this contention. III. The Introduction of the Cash at Trial Petitioner alleges that the introduction at trial of $38,765 in cash, over his objections, was unconstitutional since it was so prejudicial and inflammatory as to deny him due process of law. I find that there was no undue prejudice, and that the probative value of the evidence outweighed any existing prejudice. The testimony accompanying the cash was admitted only to show that Petitioner had the financial ability to possess thirteen ounces of cocaine, and for that limited purpose it was properly admissible. However, even if the cash had been introduced to demonstrate that Petitioner's wealth represented "ill-gotten gains", the admission would have nonetheless been proper. As the Second Circuit held in United States v. Jackskion, 102 F.2d 683, 684 (2d Cir. 1939), cert. denied, 307 U.S. 635, 59 S.Ct. 1032, 83 L.Ed. 1517 (1939): "It is the general view that where a defendant is on trial for a crime in which pecuniary gain is the usual motive, evidence of the sudden acquisition of money by the defendant is admissible, even though the source of the money is not traced." The court went on to note that even if the introduction of the evidence—bank accounts—was erroneous, reversal was not required if other evidence proved the defendant's guilt beyond a reasonable doubt. A recent decision by this circuit held that: "The possession of large amounts of unexplained cash in connection with evidence of narcotics trafficking on a large scale is similar to the possession of special means, such as tools or apparatus, which is admissible to show the doing of an act requiring those means." United States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir. 1975), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). Thus, the introduction of the cash at Petitioner's trial did not constitute error, and is not violative of due process. IV. The Trial Court's Charge to the Jury When Justice Rosenberg charged the jury, he included in the charge an explanation of the meaning of "constructive possession" and the rules concerning circumstantial evidence. The Petitioner did not object to these charges. The jury, while deliberating, sent the court a note asking if the sole fact that narcotics were present in Tirado's apartment constituted possession. The court replied that it did not, and then repeated its charge as to constructive possession and circumstantial evidence. The jury later requested another rereading of the original charge. As part of its response to this request, the trial court instructed the jury as to joint possession, in addition to repeating the earlier explanations of physical and constructive possession. Petitioner's counsel objected, arguing that it was *1249 error to charge as to joint possession, since possession may be either constructive or joint, but not both. This objection was denied, since as a statement of law, it was incorrect. People v. Murphy, 276 N.Y. 612, 12 N.E.2d 602 (1938). Petitioner's appeals through the New York state courts, as well as his habeas corpus application here, have stressed an argument somewhat different than that raised at trial. Petitioner alleges that as a result of the supplemental charge as to joint possession, his conviction should be deemed to have been obtained in violation of the Constitution. Petitioner argues that he had a right to be tried on the indictment, and that the charge of joint possession caused the jury to consider a new crime, of which Petitioner had neither notice nor opportunity to refute. The first issue which must be resolved is whether to apply federal or state law in determining the existence of any error, and the consequences which attach should error be found. Petitioner alleges that the jury charge at issue denied him his Constitutional rights to due process and to a fair trial. In Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), the Supreme Court established the Constitutional standard which a federal court should apply when considering a habeas corpus application alleging error in a state jury charge. The Court stated that the question which the federal court must ask is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, supra, at 147, 94 S.Ct. at 400. The Court explained that a federal court should permit a state court conviction to stand unless the challenged instruction violated some right which is guaranteed to the defendant by the Fourteenth Amendment. The Court further stated that it is not enough that the instruction is "undesirable, erroneous, or even `universally condemned'." The conviction will not be deemed violative of the Constitution unless the erroneous charge so infected the entire trial that the resulting conviction violates due process. See Cupp v. Naughten, supra, 146-47, 94 S.Ct. 396. In determining whether or not the erroneous charge "infected" the trial to such an extent that the Constitution was violated, the Court stated that: "A single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge." Cupp v. Naughten, supra, 146-47, 94 S.Ct. at 400. Looking to the context of the overall charge, and recognizing that "a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge", Cupp v. Naughten at 147, 94 S.Ct. at 400. I find that Justice Rosenberg's supplemental charge as to joint possession did not violate the Constitution. If it was an error at all, it was an error of state procedure. The charge as to the joint possession cannot be deemed to have so infected the entire trial as to render the conviction violative of due process, since the elements to be proven, and the People's burden of proof, remained the exact same whether the possession was joint or exclusive. The jury in either case had to find beyond a reasonable doubt that Petitioner had dominion and control over what he knew to be contraband. Accordingly, the "infection" of the entire trial, which is necessary to raise the alleged error to a Constitutional claim, is absent, and state law shall be applied in determining whether the alleged error would be reversible or harmless. New York state law distinguishes between errors which are Constitutional and non-Constitutional, as well as between errors which are harmless and those which are reversible. People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975). Having already decided that the challenged jury charge is not a Constitutional violation, the only issue left to determine is whether the alleged error, if it actually were error, would be harmless or reversible. The Supreme Court position is *1250 quite clear that the application of a state harmless error rule is a state question where it involves only errors of state procedure or state law. Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The New York state harmless error rule, set forth in People v. Crimmins, supra, is that reversal is not required in a non-Constitutional error, if the quantum and nature of the proof, excising the error, overwhelmingly and logically compel the conclusion that an honest and well-intentioned jury would have almost certainly convicted the defendant. Crimmins, 36 N.Y.2d at 241-42, 367 N.Y.S.2d 213, 326 N.E.2d 787. Even if the proof of guilt was overwhelming, the conviction could be reversed by a state appellate court if there was a "significant probability" that the jury would have acquitted the defendant but for the error. Crimmins at 242, 367 N.Y.S.2d 213, 326 N.E.2d 787. I have found that if there was error at all, it was to be resolved by state law, and the New York state courts have affirmed the denial of Petitioner's initial objection to the joint possession charge. Thus, the Petitioner is not presenting a federal question, but rather, a state question, and the decision of the state courts shall be presumed to be correct, absent extenuating circumstances which are not alleged by this Petitioner. See 28 U.S.C. § 2254(d) and Chapman v. California, supra. Petitioner also alleges that there was insufficient evidence to support his conviction, aside from any error as to the jury charge. However, the question of insufficient evidence to sustain a conviction is not a proper question for federal habeas corpus relief, absent a complete lack of evidence. United States ex rel Clark v. Zelker, 321 F.Supp. 1085 (S.D.N.Y.1971), United States ex rel Griffin v. Martin, 409 F.2d 1300 (2d Cir. 1969). Accordingly, Petitioner cannot argue that the state court should have reversed the conviction regardless of any error. The application for writ of habeas corpus is denied. It is So Ordered.

139 Cal.App.3d 58 (1983) 188 Cal. Rptr. 503 RALPH LLOYD BUTCHER III, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; CYNTHIA LYNN FORTE, Real Party in Interest. Docket No. 29076. Court of Appeals of California, Fourth District, Division Two. January 11, 1983. *59 COUNSEL Parker, Stanbury, McGee, Babcock & Combs, Robert J. Moss and Robert A. Walker for Petitioner. No appearance for Respondent. Memel, Jacobs, Pierno & Gersh, Stanley K. Jacobs and Theresa M. Marchlewski for Real Party in Interest. OPINION TROTTER, J.[*] This case involves a unique and interesting issue: whether the "spouse" in a nonmarital cohabitation arrangement may state a cause of action for loss of consortium when the other "spouse" is injured by a third party. FACTS Paul Forte was walking across the street when he was allegedly struck by Ralph Butcher's Volkswagen. Paul suffered a fractured neck, forearm and leg, and a severe cerebral contusion. Paul sued Butcher for personal injuries. Cindy Forte sued as Paul's wife for loss of consortium with Paul. *60 In pretrial discovery, Butcher learned that Cindy and Paul did not have a valid legal marriage, although Cindy testified at her deposition that she and Paul had a "common law" marriage. Paul and Cindy began living together on September 11, 1969. Since that time, Cindy has used the name Forte. At the time of the accident, March 28, 1981, Paul and Cindy had been living together as husband and wife for 11 1/2 years. They had two children together, filed joint income tax returns, and maintained joint savings and checking accounts. Paul acknowledges and refers to Cindy as his wife. Cindy testified that she and Paul had a common law marriage, and she considered them to be married as of September 11, 1969. Upon learning that there had been no valid legal marriage between Cindy and Paul, Butcher moved for summary judgment on Cindy's claim for loss of consortium. After argument, the trial court denied the motion for summary judgment. Defendant Butcher now petitions this court for a writ of mandate to compel the trial court to grant the motion for summary judgment. DISCUSSION 1. Theory of Consortium Cause of Action (1) Butcher argues that there can be no claim for loss of consortium without a valid legal marriage because the right to consortium grows out of the marriage. The notion that a valid legal marriage is a prerequisite to the cause of action for loss of consortium has its origin in the common law view that the wife was more or less a servant or chattel of the husband, and that therefore he was entitled to an independent cause of action if the wife were injured, since the tortfeasor would have damaged the husband's property rights in the services and society of the wife. (See, e.g., Chicago, B. & Q.R. Co. v. Honey (8th Cir.1894) 63 F. 39.) The theory of the cause of action for loss of consortium has changed, however, since its early common law statement of proprietary entitlement. The wife is no longer a chattel or servant. The element of loss of services is no longer the essence of the cause of action. The real damage is to what may be called a relational interest. An interference with the continuance of the relation, unimpaired, may be redressed by a tort action. (Prosser, Torts (4th ed. 1971) § 124, p. 873.) There are many evidences of a shift from the proprietary entitlement theory of consortium to a relational interest theory. First were the cases which finally allowed the wife as well as the husband to state a claim for loss of consortium. *61 The rule that the husband alone had such a cause of action has "no other justification than that of history.... The loss of `services' is an outworn fiction, and the wife's interest in the undisturbed relation with her consort is no less worthy of protection than that of the husband." (Prosser, supra, § 125, pp. 894-895.) The cases cited by Butcher for the proposition that a valid legal marriage is a prerequisite to a cause of action for loss of consortium involve injuries which occurred before the marriage. While some of the cases simply couple the chattel notion with a sort of caveat emptor doctrine (the husband takes the wife "as is," and cannot recover for the premarital injury (Georgia Northern Ry. Co. v. Sharp (1917) 19 Ga. App. 503 [91 S.E. 1045]; Booth v. Baltimore & O.R. Co. (1915) 77 W. Va. 100 [87 S.E. 84]), other cases seem to recognize the relational interest involved. For example, in Donough v. Vile (1947) 61 Pa. D. & C. 460, the wife had been injured before the marriage. The court held that the husband had no cause of action for loss of consortium. "Damages for the loss of consortium are intended to compensate for an injury done to the connubial relationship. It would therefore appear that where the marriage relationship does not exist at the time of the tort, a cause of action cannot be created by a marriage subsequent thereto." (Id., at pp. 461-462.) This is no more than to state that the cause of action protects the parties' relational interest, and if the relationship did not exist at the time of the tort, a fortiori it could not be injured. In fact, application of this principle to all of the premarital injury cases would lead to the same result in each case. If the injury occurs before the relationship is established, when the parties are engaged, or acquainted, or perhaps total strangers to one another, then the interest in continuing the relationship undisturbed has not been injured. While limiting the type of relationship recognized to a legal marriage, the court in Sawyer v. Bailey (Me. 1980) 413 A.2d 165, at page 167 stated that "the law is concerned with the protection of the `relational' interests of married persons and recognizes as an actionable tort any interference, intentional or negligent, with the continuation of the relation of husband and wife, such as the right to damages for the loss of consortium of either one of the spouses." (Italics in original.) The court further recognized that "as a common law court we have the power to grant a new cause of action for the redress of rights, or, as requested by the plaintiff in the instant case, to expand the cause of action for the recovery of damages for loss of consortium in a tortious injury case so as to encompass parties who are engaged to marry at the time of the tortious incident and who thereafter do marry. [¶] ... We recognize that the plaintiff had an inchoate expectation that third persons would use reasonable care in relation to the person of his fiancee so that his prospective marital rights would not be infringed. Although our society regards it of the highest primacy that a remedy be *62 afforded for the redress of wrongs caused by tortious conduct [citation], nevertheless, we discern countervailing policy factors which persuade us to confine consortium rights to cases where the tortious injury occurred while the parties were married, one to the other." (Ibid.) Thus, while refusing to extend the doctrine beyond the bounds of legal marriage for policy reasons, courts have clearly recognized and redefined the theory of the tort to be an interference with the continuation of the relational interest. 2. Policy Arguments We next address the argument that, even recognizing an unmarried person's interest in the continuation of the relationship with the nonmartial partner (Sawyer v. Bailey, supra, 413 A.2d 165), policy reasons dictate limiting those interests to the legally married. Recent cases speak in terms of judicial line-drawing; whether the line should be drawn to include or exclude the interest of a nonmarital cohabitant. Some policy considerations which would arguably limit recognition of the relational interest to legally married couples are: (a) lack of precedent for extending the cause of action to unmarried couples, (b) the injury to the unmarried partner is too indirect, (c) the damages would be too speculative, (d) there is a danger of double recovery, (e) the cause of action would be extended to other classes of plaintiffs, and (f) public policy favors marriage. The argument that recovery for loss of consortium in a nonmarital relationship breaks new ground and is without precedent, or that it should be left to legislative action "[i]n effect ... is a request that courts abdicate their responsibility for the upkeep of the common law. That upkeep it needs continuously, as this case demonstrates." (People v. Pierce (1964) 61 Cal.2d 879, 882 [40 Cal. Rptr. 845, 395 P.2d 893].) "In California as in other jurisdictions of Anglo-American heritage, the common law `is not a codification of exact or inflexible rules for human conduct, for the redress of injuries, or for protection against wrongs, but is rather the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice and adopted by common consent for the regulation and government of the affairs of men.... [¶] The inherent capacity of the common law for growth and change is its most significant feature. Its development has been determined by the social needs of the community which it serves. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society, and adapting itself to the gradual change of trade, commerce, arts, inventions, and *63 the needs of the country.'" (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 393-394 [115 Cal. Rptr. 765, 525 P.2d 669]; 15A Am.Jur.2d, Common Law, §§ 1, 3, pp. 594-596, 597-598.) "This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law." (Hurtado v. California (1884) 110 U.S. 516, 530 [28 L.Ed. 232, 237, 4 S.Ct. 111, 118].) "But that vitality can flourish only so long as the courts remain alert to their obligation and opportunity to change the common law when reason and equity demand it: `The nature of the common law requires that each time a rule of law is applied, it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.' (Fns. omitted.) (15[A] Am.Jur.2d, Common Law, [§ 3], p. [599].) Although the Legislature may of course speak to the subject, in the common law system the primary instruments of this evolution are the courts, adjudicating on a regular basis the rich variety of individual cases brought before them." (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 394.) At the time the first case extended the cause of action to wives as well as husbands, there was utterly no precendent for such an expansion. As the court stated in Hitaffer v. Argonne Co. (D.C. Cir.1950) 183 F.2d 811, at pages 812-813: "[W]e are not unaware of the unanimity of authority elsewhere denying ... recovery under these circumstances.... But after a careful examination of these cases we remain unconvinced that the rule which they have laid down should be followed.... On the contrary, after piercing the thin veils of reasoning employed to sustain the rule, we have been unable to disclose any substantial rationale on which we would be willing to predicate a denial of [an] action for loss of consortium [in these circumstances]." (Italics in original; Hitaffer v. Argonne Co., supra, 183 F.2d 811, 812-813, overruled on other grounds in Smither and Company, Inc. v. Coles (D.C. Cir.1957) 242 F.2d 220.) The Michigan Supreme Court in Montgomery v. Stephan (1960) 359 Mich. 33 [101 N.W.2d 227, 235], rejected a long line of precedents denying the wife's cause of action, stating that the old rule was "out of harmony with the conditions of modern society. They do violence to our convictions and our principles. We reject their applicability. The reasons for the old rule no longer obtaining, the rule falls with it. The obstacles to the wife's action were judge-invented and they are herewith judge-destroyed." *64 The New York Court of Appeals in Millington v. Southeastern Elevator Co. (1968) 22 N.Y.2d 498 [293 N.Y.S.2d 305, 239 N.E.2d 897], stated: "`We act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice.... Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule.'" (At p. 313.) When it is determined that the common law or judge-made law is unjust or out of step with the times, we should have no reluctance to change it. (City of Glendale v. Bradshaw (1972) 108 Ariz. 582 [503 P.2d 803, 805].) The law is not, nor should it be, static. It must keep pace with changes in our society since it was never intended for the doctrine of stare decisis to be cast in iron. (Gates v. Foley (Fla. 1971) 247 So.2d 40, 43.) This brief review of authorities enforces our view of the common law as an ever-changing malleable body of law distinguished by its ability to adapt to changing times and issues. With these general principles in mind, we next look at the state of applicable precedent in California. Rodriguez v. Bethlehem Steel Corp. (1974) supra, 12 Cal.3d 382, was the first case to allow a wife's claim for loss of consortium. As pointed out above, Rodriguez placed special emphasis on the capacity of the common law to grow and change. The court went on to hold that the prior rule of the common law, denying the wife's right to claim for loss of consortium, no longer had any justification. In Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441 [138 Cal. Rptr. 302, 563 P.2d 858], the California Supreme Court was faced with the claim of a child for loss of parental consortium. The court denied recovery for loss of consortium in the parent-child context, largely because the spousal relationship is different in kind from the parent-child or other relationships, and to avoid the hopeless task of limiting tortfeasor liability if every foreseeable relationship were covered. In Tong v. Jocson (1977) 76 Cal. App.3d 603 [142 Cal. Rptr. 726], the parties became engaged in September and began living together in November. The wife was injured after they had been living together for about three months. They were married within one month after the injury. The court denied the husband's claim for loss of consortium based on the premarital injury to the wife. The court relied on the language of Borer that "`[S]omewhere a line must be drawn,'" and then stated simply that "Plaintiff and Gale were not married at the time of the vehicle accident. Under the facts of the case before us, an action for loss of consortium cannot be maintained." (Id., at p. 605.) *65 Most recently, the Third District decided Etienne v. DKM Enterprises, Inc. (1982) 136 Cal. App.3d 487 [186 Cal. Rptr. 321]. In that case a couple had been cohabiting in California for eight years. They made occasional visits to Texas. The husband was injured and the wife claimed loss of consortium on the basis that the couple had a valid common law marriage under Texas law. The court held that occasional visits to Texas did not meet the requirements of the Texas common law marriage statute, and that there is no common law marriage under California law. The court denied the wife's claim for loss of consortium on those grounds. Butcher argues that these California precedents require that the cause of action for loss of consortium be restricted to validly married persons. We disagree. Rodriguez in particular emphasizes the duty of the courts to adapt the common law to changed circumstances where justice requires. The California Supreme Court specifically rejected the arguments against the wife's cause of action that injury to the wife was too remote, that the measure of damages was too speculative, or that allowing the claim would open the floodgates to everyone related to the victim. These are the same arguments advanced against the unmarried cohabitant's claim, and are equally unpersuasive in that context, as we shall discuss hereafter. Borer emphasized that the spousal relationship was different from the parent-child relationship or other types of relationships. In contrast, the relationship of unmarried cohabitants bears every resemblance to the spousal relationship, including the sexual aspect absent from other relationships, except that the relationship has not been solemnized by a formal marriage ceremony. Tong is strictly limited to its facts. The couple was engaged, not yet married, and had been living together only a short time. Despite the added element of cohabitation, at the time of accident the relationship was of such a short duration that the court could not say the relationship had become sufficiently established to recognize the relational interest. The Tong court relied heavily on the language of Borer that a line must be drawn to limit liability. However, the court's reliance on Borer was misplaced, since the key to the Borer court's analysis was the crucial distinction between an action for loss of sexual consortium and an action for loss of parental consortium. Moreover, the problem of multiple actions in a case of parental consortium would not be present in the context of loss of consortium between spousal or cohabiting parties. Finally, in Etienne, the court and the parties presumed for the purpose of that case that a valid marriage was required, and the court confined its discussion to a determination of the issue of whether the parties were validly married. The *66 court simply did not address the issue, and did not state any reasons to support a rule that a valid marriage is a prerequisite to stating a cause of action for loss of consortium. Thus, our review and analysis of the existing California cases compel us to conclude no precedent exists for the conclusion that an unmarried cohabitant may not state a claim for loss of consortium. The issue has not been directly addressed and we refuse to extend Tong beyond its stated facts. In fact, in terms of precedent, only one case has ever directly addressed the issue of loss of consortium with respect to unmarried cohabitants. That case is Bulloch v. United States (D.N.J. 1980) 487 F. Supp. 1078, and there the court allowed the cohabitant wife's claim for loss of consortium. In Bulloch, the cohabitants had been married for 20 years and were divorced. Shortly after the divorce was final, they agreed that they would reconcile and resume living together. Before they began living together again, the husband was injured. When he was discharged from the hospital, he moved back into the family home and the wife took care of him. From the time the husband moved back into the family home, the couple held themselves out as husband and wife. The federal court, purporting to apply New Jersey state law, held that the wife could maintain a cause of action for loss of consortium. The major factors weighing in the court's decision were: (1) that the policy of tort law is to compensate for injury, and that reward or punishment for a person's marital status is not relevant in assessing tortfeasor liability, (2) increasing court criticism of the traditional common law view of nonmarital relations, (3) public policy implications of two New Jersey cases that cohabitation should not be penalized, (4) similarities between the cohabitant's claim and the cases allowing the wife's right to sue for loss of consortium, (5) the similarities between cohabitation and marriage, and the dissimilarities of spousal-type relationships and other relationships like the parent-child relationship, and (6) the strong evidence of a nearly 30-year relationship upon which the court could evaluate the claim. Although Bulloch is open to criticism for ignoring some prior New Jersey cases and as an inaccurate attempt to predict the direction state law would take, nevertheless, many of the reasons given by the Bulloch court are persuasive in finding that an unmarried cohabitant may state a cause of action for loss of consortium. The court accurately assessed the policy of tort law to compensate for injury and redress wrongs. Moreover, after cases like Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal. Rptr. 815, 557 P.2d 106] and Ekalo v. Constructive Serv. Corp. of Am. (1965) 46 N.J. 82 [215 A.2d 1], the general trend of the law has been to criticize and to change the traditional common law view of nonmarital relations. The court's reasoning that the nonmarital cohabitation relationship *67 is similar to the spousal relationship, and is different from other relationships like the parent-child relationship, is both accurate and logical. We turn next to the argument that the noninjured spouse or partner suffers too indirect or too remote an injury. This same argument was addressed and rejected in the cases which allowed the wife's cause of action for loss of consortium. As the New York Court of Appeals stated in Millington v. Southeastern Elevator Co., supra, 293 N.Y.S.2d 305, at page 308: "Disparagingly described as `sentimental' or `parasitic' damages, the mental and emotional anguish caused by seeing a healthy, loving companionable mate turned into a shell of a person is real enough. To describe the loss as `indirect' is only to evade the issue. The loss of companionship, emotional support, love, felicity and sexual relations are real injuries.... There may not be a deterioration in the marital relationship, but it will certainly alter it in a tragic way. Even in the case of a husband the `sentimental' damages may predominate over the loss of support or material element. Thus to describe these damages as merely parasitic is inaccurate and cruel." The suffering of an unmarried spouse may be no less real. In the instant case, Cindy Forte must care for Paul, who was severely injured. Her claim is for the loss of companionship, emotional support, love, felicity, and sexual relations with this man, with whom she had lived for nearly 12 years, and with whom she has continued to live since the accident. As the California Supreme Court pointed out in rejecting the indirect injury argument in Rodriguez, supra, 12 Cal.3d 382, the critical question is foreseeability. The court, citing Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], emphasized that "The defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous. [Citation.] The foreseeable risk need not be of an actual physical impact, but may be of emotional trauma alone. [Citation.] ... [¶] Applying these rules to the facts alleged, we were of the opinion in Dillon that `Surely the negligent driver who causes the death of a young child may reasonably expect that the mother will not be far distant and will upon witnessing the accident suffer emotional trauma.' [Citation.] By parity of reasoning, we conclude in the case at bar that one who negligently causes a severely disabling injury to an adult may reasonably expect that the injured person is married and that his or her spouse will be adversely affected by that injury. In our society the likelihood that an injured adult will be a married man or woman is substantial, clearly no less than the likelihood that a small child's mother will personally witness an injury to her offspring. And the probability that the spouse of a severely disabled person will suffer a personal loss by reason of that injury is equally substantial." (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 399-400, fn. omitted.) *68 One who negligently causes a disabling injury to an adult may also reasonably expect in our contemporary society that the injured person may be cohabiting with another without benefit of marriage. In Drew v. Drake (1980) 110 Cal. App.3d 555 [168 Cal. Rptr. 65], the First District Court of Appeal denied recovery for an alleged negligent infliction of emotional distress by a de facto spouse who had witnessed the death of her housemate. Justice Poche dissented, stating: "Foreseeability of the risk is the issue. The formula for resolution given by the California Supreme Court in Dillon v. Legg" is controlling. The dissent further pointed out that the majority opinion in effect held "that unchurched male/female relationships cannot be close and that the tortfeasor could not foresee that his victim would have a close relationship with a person to whom she was not formally married. [¶] Giving full credit to the rarified air at the appellate level the conclusion reached here today is nevertheless astonishing: my majority colleagues have determined the incidence of cohabitation without benefit of clergy in contemporary California society to be so rare that it can be characterized as `unexpected and remote.' [¶] I do not believe that this no marriage-no recovery rule is what the California Supreme Court meant when it ordered the courts of this state to carefully analyze on a case-by-case basis what the ordinary person should have foreseen. (Dillon v. Legg, supra.) [¶] This insistence on adherence to an older morality as the key to the courtroom was discarded shortly after the close of the Spanish Inquisition and is clearly not the law of this state." (Drew v. Drake, supra, 110 Cal. App.3d 555, 558-559, dis. opn. of Poche, J.; fns. omitted.) We adhere to the view that the courts must determine on a case-by-case basis what an ordinary person may reasonably foresee. The incidence of cohabitation without marriage in the United States increased by 800 percent between 1960 and 1970. (Comment, Consortium Rights of the Unmarried: Time for a Reappraisal (1981) 15 Family L.Q. 223, 224.) The injury to the de facto spouse, like the injury to a legally married spouse, is real, direct, and foreseeable. We believe that, in the conditions of modern society, the possibility that an adult may be cohabiting with another is neither unexpected nor remote; in short, it is reasonably foreseeable. The arguments that the damages are too speculative, or that there is a danger of double recovery, were also raised and rejected in the cases allowing the wife's cause of action for loss of consortium. The fact that damages are for emotional rather than strictly economic injury should be no bar to recovery, as the court and jury have always been able to award damages for pain and suffering, and other noneconomic losses. The danger of double recovery may be reduced or eliminated by the expedients of joining both spouses in the action and giving instructions so that the noninjured spouse will recover only for his or her own damages and not include medical *69 costs or other items awarded in the other spouse's personal injury action. (Hitaffer v. Argonne Co., supra, 183 F.2d 811, 819; Montgomery v. Stephan, supra, 359 Mich. 33 [101 N.W.2d 227, 231]; Annot., 36 A.L.R.3d 900.) The arguments of speculativeness of damages or double recovery are no more applicable here than in the wife's cause of action cases. It is further argued that if the cause of action is not restricted to legally married couples, there will be no limit to liability, and the cause of action would be unduly extended to brothers, sisters, aunts, cousins, coworkers, other friends and relatives. This "floodgates" argument was addressed specifically in Borer v. American Airlines, Inc., supra, 19 Cal.3d 441. There, the court held that, although the relationship to the injured person must be foreseeable in order to state a claim for loss of consortium, not every foreseeable relationship is covered. An injured person foreseeably has children, parents, brothers, sisters, aunts, uncles, cousins, in-laws, friends, colleagues, and other acquaintances who could foreseeably be affected by the injury. However, the spousal relationship is different in kind from any of these other relationships. If these other relationships were recognized, then the limit of tortfeasor liability would depend on such fortuitous circumstances as the number of children or siblings or other relatives an injured person may have, without regard to the level of culpability. (E.g., Patricia Borer had nine children. Other persons may have two, twelve, or none. This is not a proper basis upon which to determine the level of tortfeasor liability.) If the limits of liability were extended so far, the social costs would be dramatically increased in terms of higher insurance premiums, or in the form of more people running risks without insurance because of the higher premiums. For these reasons of social policy, the Borer court declined to extend the cause of action for loss of consortium to the parent-child relationship. The crux of the Borer case is the distinction between a spousal relationship and the other relationships mentioned. However, as we noted earlier, the relationship of unmarried cohabitants possesses every characteristic of the spousal relationship except formalization. The sexual aspects of the relationship, which distinguish the spousal relationship from the parent-child or other relationships mentioned in Borer, are present in the relationship of unmarried cohabitants. Thus, if a proper test can be formulated for evaluating unmarried cohabitation relationships, there is no reason why a de facto spouse could not state a claim for loss of consortium without affecting the policy or the result in Borer. The final argument is that public policy favors marriage over unmarried cohabitation relationships as shown by the workers' compensation death benefit statute and the wrongful death statutes. It is argued that those statutes which limit recovery to "heirs" as defined by the Probate Code, and cases applying them, evidence an intent or policy that the right to recover in consortium cases *70 be limited to validly married spouses. However, the right to recover under the workers' compensation or wrongful death laws is wholly statutory, while the cause of action for loss of consortium is judge-made law. If defendant's argument is taken to its logical conclusion, the cause of action for loss of consortium would be defined by the legislative scheme under the workers' compensation and wrongful death statutes, and would include claims by children, parents, siblings, and others. These claims are plainly not allowed. (Borer v. American Airlines, Inc., supra, 19 Cal.3d 441; Suter v. Leonard (1975) 45 Cal. App.3d 744 [120 Cal. Rptr. 110] [the fact that wrongful death statutes authorize an award to a child for death of a parent does not compel the conclusion that the child may similarly recover for negligent injury to a parent].) Since the Legislature has not defined consortium rights by statute, the implication is rather that the statutory definitions employed in the workers' compensation and wrongful death statutes are not applicable to the cause of action for loss of consortium. It is therefore left to us in common law tradition to construct a standard whereby such relationships may be evaluated so that a remedy be afforded for the redress of wrongs inflicted by tortious conduct. 3. The Standard Obviously, cohabitation arrangements may be of many kinds, ranging from a "one-night stand" to and including relationships which have endured as long as or longer than most marriages. To allow all cohabitants to recover would pose severe practical problems in terms of limiting liability. One standard which may be used to evaluate the cohabitation relationship is that the relationship must be both stable and significant. If the plaintiff can show that the relationship meets both of these criteria, then he or she will have demonstrated the parallel to the marital relationship which will enable the court to find the elements of consortium and the damage to the relational interest. Evidence of the stability and significance of the relationship could be demonstrated by the duration of the relationship; whether the parties have a mutual contract; the degree of economic cooperation and entanglement; exclusivity of sexual relations; whether there is a "family" relationship with children. While the particular items of evidence will vary from case to case, and some of these suggested criteria may be absent, and other different ones present, the plaintiff will bear the burden of demonstrating both that the relationship is stable and that it has those characteristics of significance which one may expect to find in what is essentially a de facto marriage. *71 In the case before us, however, we need not determine the effect of such evidence since we are concerned only with the denial of a summary judgment motion. "It is now well established in California that a party moving for summary judgment must establish that the opposing party's action or any portion thereof is without merit. (Kelleher v. Empresa Hondurena De Vapores S.A. (1976) 57 Cal. App.3d 52 [129 Cal. Rptr. 32].) [¶] It is further clear that if the moving party fails to sustain its burden that the claims are made entirely without merit on any legal theory, the adverse party is not required to demonstrate the validity of the claims by the filing of counterdeclarations or affidavits. In Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal. App.3d 331, at page 339 [138 Cal. Rptr. 670], the court stated: `When the moving party is the defendant the latter must conclusively negate a necessary element of the plaintiff's case and demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial.'" (Draper Mortuary v. Superior Court (1982) 135 Cal. App.3d 533, 535-536 [185 Cal. Rptr. 396].) Petitioner has failed to carry its burden in light of the facts stated in depositions filed in opposition to the motion, and we hold that an unmarried cohabitant may state a cause of action for loss of consortium by showing that the nonmarital relationship is both stable and significant. The petition for writ of mandate is denied, to permit the cause of action to go forward on the merits. The alternative writ is discharged. Morris, P.J., and McDaniel, J., concurred. NOTES [*] Assigned by the Chairperson of the Judicial Council.

Case: 19-20058 Document: 00515408530 Page: 1 Date Filed: 05/07/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-20058 FILED May 7, 2020 Lyle W. Cayce SUN COAST RESOURCES, INCORPORATED, Clerk Plaintiff - Appellant v. ROY CONRAD, Defendant - Appellee Appeals from the United States District Court for the Southern District of Texas Before WIENER, HIGGINSON, and HO, Circuit Judges. JAMES C. HO, Circuit Judge: There is a time for punishment and a time for grace. Roy Conrad believes this is the former. Having won on appeal, he now asks us to sanction Sun Coast Resources, Inc., for pursuing a frivolous appeal. The sentiment is understandable. So we provide this brief explanation why we deny his motion. As we’ve explained, arbitration can be an efficient way to resolve disputes—or a weapon for the economically powerful. See Sun Coast Res., Inc. v. Conrad, 956 F.3d 335, __ (5th Cir. 2020) (citing DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 477 (2015) (Ginsburg, J., dissenting)). Regardless, Conrad dutifully agreed to arbitrate this dispute, as so many employers insist employees do as a condition of employment.  Case: 19-20058 Document: 00515408530 Page: 2 Date Filed: 05/07/2020 No. 19-20058 But then, Conrad won what perhaps Sun Coast did not but should have anticipated in light of the plain language of its arbitration agreement: a clause construction award from the arbitrator allowing him to proceed with class arbitration. See id. at __. In response, Sun Coast not only challenged the award in district court, but then pursued a meritless appeal—an appeal premised on a theory not only contradicted by the plain language of the arbitration agreement, but one that Sun Coast had forfeited “not once, but twice” by failing to present the issue to either the arbitrator or the district court. Id. at __. But here’s the real problem: Sun Coast denied that it forfeited the issue, claiming it cited a Third Circuit precedent (Opalinski) to the arbitrator. But Sun Coast failed to disclose that there are actually two Opalinski decisions from the Third Circuit—and that the one cited by Sun Coast was not the one that (arguably) might have avoided forfeiture. See id. at __. And then, to top it all off, after we announced that no member of our panel saw any need to hear oral argument in this obviously meritless appeal, Sun Coast responded with a remarkable motion insisting on oral argument. Counsel wrongly claimed that “oral argument is the norm rather than the exception,” and that our court would be guilty of “cafeteria justice” if we denied the motion—ignoring the established federal circuit practice of sparing parties the expense of having counsel prepare for argument in the overwhelming majority of appeals. See id. at ___ & n.1. We subsequently denied Sun Coast’s motion as well as its appeal. Id. at __. We turn now to Conrad’s motion for sanctions. Federal Rule of Appellate Procedure 38 confers broad discretion on federal courts of appeals to award sanctions in any appeal the court determines to be “frivolous.” See FED. R. APP. P. 38 (“If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the 2  Case: 19-20058 Document: 00515408530 Page: 3 Date Filed: 05/07/2020 No. 19-20058 court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”). So courts have broad power under Rule 38 to sanction inadvertently as well as intentionally frivolous and vexatious appeals. See, e.g., Coghlan v. Starkey, 852 F.2d 806, 811, 814 (5th Cir. 1988) (per curiam) (“An appeal is frivolous if the result is obvious or the arguments of error are wholly without merit. . . . [H]arassment of appellants, delay, and other ill practice are not required elements.”); Hill v. Norfolk & W. Ry. Co., 814 F.2d 1192, 1202 (7th Cir. 1987) (“[P]roof of intentional or even negligent misconduct . . . is not a prerequisite to imposing sanctions under Rule 38.”). See also 28 U.S.C. § 1927 (authorizing courts to impose “excess costs, expenses, and attorneys’ fees” on attorneys who “unreasonably and vexatiously” multiply proceedings). That said, the case for Rule 38 sanctions is strongest in matters involving malice, not incompetence. See, e.g., Coghlan, 852 F.2d at 814 (“Bad faith may aggravate the circumstances justifying sanctions.”); Hill, 814 F.2d at 1202 (calling “intentional or negligent misconduct . . . an added reason for a sanction under Rule 38”). And our decision on Sun Coast’s appeal was careful not to assume the former. As to the merits of its appeal—including the company’s failure to disclose that it cited Opalinski II rather than Opalinski I to the arbitrator—we observed that “[t]he best that may be said for Sun Coast is that it badly misreads the record.” 956 F.3d at __. As to its demand for oral argument, we stated that “Sun Coast’s motion misunderstands the federal appellate process in more ways than one.” Id. at __. In sum, we found incompetence, not malice. Perhaps Sun Coast earnestly (if mistakenly) believed it had a valid legal claim to press. Or perhaps it was bad faith—maximizing legal expense to drive a less-resourced adversary to drop the case or settle for less. See id. at __ (“[A]nother tactic powerful economic interests sometimes use against the less 3  Case: 19-20058 Document: 00515408530 Page: 4 Date Filed: 05/07/2020 No. 19-20058 resourced is to increase litigation costs in an attempt to bully the opposing party into submission by war of attrition.”) (citing DIRECTV, 136 S. Ct. at 476 n.3 (Ginsburg, J., dissenting)). Or perhaps its decisions were driven by counsel. See, e.g., Gurule v. Land Guardian, Inc., 912 F.3d 252, 262 (5th Cir. 2018) (Ho, J., concurring) (discussing churning by attorneys). But we must resolve the pending motion based on facts and evidence— not speculation. We sympathize with Conrad, for he has endured unfortunate delay and expense in the enforcement of his rights, and those of his class members, under the Fair Labor Standards Act. But we conclude that this is a time for grace, not punishment. We hope that there will not be any further unnecessary delay in these proceedings—and that Conrad can take some comfort that we have warned Sun Coast about its behavior. We exercise our discretion not to grant sanctions under Rule 38 in this case and accordingly deny Conrad’s motion. 4 

856 F.Supp. 33 (1994) Kambiz BAZAZI v. Leo MICHAUD, individually; Leo Michaud, d/b/a Plymouth Martial Arts Academy; James Shortridge. No. CV-93-70-SD. United States District Court, D. New Hampshire. April 19, 1994. *34 Edward M. Van Dorn, Jr., Hanover, NH, for plaintiff. Wilfred J. Desmarais, Jr., Manchester, NH, for defendant. ORDER DEVINE, Senior District Judge. Plaintiff Kambiz Bazazi brings this diversity action against defendants Leo Michaud, individually; Leo Michaud, d/b/a Plymouth Martial Arts Academy (Academy), and James Shortridge alleging claims for battery, negligence, breach of duty to warn, breach of implied warranty, and misrepresentation. These claims are related to injuries allegedly suffered by plaintiff in the course of a sparring match at the Academy between plaintiff and defendant Shortridge. In its order of March 2, 1994, this court noted, apparently erroneously, that the instant case was stayed because of bankruptcy proceedings, and instructed the clerk of court to statistically close the case. This court further stated, "should further proceedings become necessary, any party may move to reopen." The parties now seek to reopen the case based on the February 28, 1994, order of Judge George C. Paine II of the United States Bankruptcy Court for the Middle District of Tennessee lifting the automatic stay provisions to permit Bazazi to proceed with his personal injury claim against Michaud. The court herewith grants the joint motion to reopen. Now before the court is plaintiff's motion for judgment on the pleadings, which the court construes as a motion to strike certain of defendants' affirmative defenses pursuant to Rule 12(f), Fed.R.Civ.P. Defendants object to said motion. Plaintiff seeks an order striking the following affirmative defenses set forth in defendants' answer to the original complaint: 1. That plaintiff assumed the risk of injury by participating in a karate class. 2. That plaintiff assumed the risk of injury by conducting himself in an aggressive and dangerous manner during the sparring match in which he alleges he was injured. .... 4. That plaintiff was engaged in mutual combat. 5. That plaintiff was acting outside the scope of "James" consent and that plaintiff was committing assault and battery at the time of his alleged injury. In New Hampshire, the defense of assumption of the risk has been supplanted by the doctrine of comparative fault set forth at New Hampshire Revised Statutes Annotated *35 (RSA) 507:7-d (Supp.1993).[1]See England v. Tasker, 129 N.H. 467, 470, 529 A.2d 938, 940 (1987) ("The assumption of the risk doctrine ... has little vitality today in light of the trend towards comparative negligence. See, e.g., RSA 507:7-d (Supp.1986)."). The court herewith grants the motion to strike defenses nos. 1 and 2. Defendants have not presented, nor has the court discovered, any New Hampshire tort cases involving the defense of mutual combat. Accordingly, and considering the similarity of the mutual combat defense and the defense of assumption of the risk, the court finds that RSA 507:7-d (Supp.1993) also supplants the defense of mutual combat. The court herewith grants the motion to strike defense 4. Plaintiff argues, "Though [defense] no. 5 may state a defense or justification of a battery, it is not recognized as a defense to Plaintiff's negligence, breach of warranty, and misrepresentation claims." Plaintiff's Motion at 2. "The plaintiff's consent to the contact with his person will prevent liability for a battery." 6 Am.Jur.2d Assault and Battery § 155 (Supp.1994) (citing Restatement (Second) of Torts § 13, cmt. d (1965)). The court herewith denies plaintiff's motion to strike defense no. 5 insofar as it states the defense of consent to plaintiff's claim for battery. Based on RSA 507:7-d, the court finds that defense no. 5 is inapplicable to plaintiff's claims for negligence and misrepresentation. The relationship, if any, between plaintiff's breach of warranty claim and defense no. 5 has not been sufficiently briefed.[2] The court herewith grants the motion to strike defense no. 5 as to plaintiff's claims for negligence and misrepresentation and denies said motion as to plaintiff's claim for breach of warranty. Conclusion For the reasons stated herein, the court (1) grants the joint motion to reopen (document 25) and (2) grants plaintiff's motion to strike (document 24) as to defenses nos. 1, 2, and 4, and as to defense no. 5 insofar as said defense pertains to plaintiff's claims for negligence and misrepresentation. The court denies the motion to strike as to defense no. 5 insofar as said defense pertains to plaintiff's claims for battery and breach of warranty. The court reminds the parties that any issues raised in plaintiff's motion which remain may be addressed in their requests for jury instructions. SO ORDERED. NOTES [1] RSA 507:7-d provides: Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff's legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant, but the damages awarded shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict. The burden of proof as to the existence or amount of fault attributable to a party shall rest upon the party making such allegation. [2] The court notes that plaintiff has thus far failed to specify any authority for such a claim.

354 F.Supp. 1000 (1973) UNITED STATES of America v. Francis Harry BROWN et al. Crim. No. 72-519. United States District Court, E. D. Pennsylvania. February 20, 1973. *1001 Richard M. Meltzer, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff. F. Emmett Fitzpatrick, Jr., Philadelphia, Pa., for defendant. MEMORANDUM AND ORDER DITTER, District Judge. This case comes before the court on defendant's motion for dismissal of the indictment for lack of a speedy trial. Defendant, Francis Harry Brown, was arrested on September 29, 1971, and charged with violations of 18 U.S.C. Sections 371, 500 and 641, offenses relating to the theft of some 9500 blank U.S. Postal Money Orders. He was not indicted until September 15, 1972. It is Brown's contention that as a result of the delay of approximately one year between arrest and indictment he has suffered such substantial prejudice as to necessitate a dismissal of the indictment for lack of a speedy trial. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set out some of the considerations to be taken into account on an "ad hoc" basis when determining Sixth Amendment speedy trial issues: (1) defendant's assertion of his right; (2) the length of the delay; (3) the prejudice to the defendant; and (4) the reason for the delay. See also United States ex rel. Stukes v. Shovlin, 464 F.2d 1211, 1214 (3rd Cir. 1972). I will consider each of these factors as it relates to this case. 1. Defendant's assertion of his right to a speedy trial. Defendant has fulfilled any obligation which may be his in this respect. *1002 A timely pre-trial motion asserting his right is the basis for this opinion. Although it might be argued that Brown should have inquired as to the status of his case subsequent to his arrest, as a practical matter it would be unusual for a defendant in a criminal case to do so. I conclude therefore that the defendant has not acquiesced to the delay nor waived his right to have the charges against him disposed of promptly. 2. The length of the delay. Defendant was arrested on September 29, 1971, and indicted September 15, 1972. While the length of the delay is the least conclusive of the four factors identified in Barker, a hiatus of 50 weeks requires evaluation of the reasons advanced by the defendant to show prejudice and those stated by the prosecution by way of explanation for not proceeding with greater speed. 3. Prejudice to the defendant. The primary prejudice which Brown alleges is the intervening death of one Marvin "Babe" Chuvian whom Brown asserts would have been able to testify in his behalf. Chuvian was allegedly extensively involved in the criminal activities for which Brown was indicted. Brown further asserts that because of the delay several of his co-defendants are fugitives.[1] The thrust of this argument is that if Chuvian and these co-defendants were available, they would provide testimony which would be helpful to defendant's case. The prejudice that results from the death or disappearance of witnesses is one that is recognized in Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d 101. However, the degree of harm must be evaluated in each instance. For example, the death of a character witness whose only testimony would be to show past good reputation cannot be equated with the death of an alibi witness whose testimony, if accepted, provides an absolute defense. In the instant case, the defendant would have me believe that if Chuvian had lived he would have exculpated Brown by inculpating himself. I consider this possibility to be highly speculative at best. It can be argued with equal force that Chuvian would have provided evidence against Brown. In my experience, one co-defendant is more likely to testify against another than to shoulder all the blame so that the other may go free. Thus, while I recognize that Brown may have been prejudiced by Chuvian's death, I find it necessary to balance this possibility against the reasons advanced by the government to explain the delay. 4. The reason for the delay. At a hearing held in connection with this motion, the government presented evidence to show that the time following the defendant's arrest and before his indictment was used to investigate the extent of the crime and persons who might have been involved. Numerous individuals from several states were interviewed and statements taken from them. Informers were contacted. In addition, there were documents that had to be examined, fingerprints to be analyzed, and handwriting exemplars prepared for comparison. Attempts were made to recover the stolen money orders not yet cashed or otherwise accounted for. Even now, the investigation is not complete. The defendant cites United States v. Hanna, 347 F.Supp. 1010 (D.Del.1972), in which an indictment was dismissed on Sixth Amendment grounds. However, that case is readily distinguishable on its facts. In Hanna, the government used the threat of an indictment, over an eleven month period, to compel the defendant to testify against a third person in a different prosecution in another federal court. Thus, the delay was entirely *1003 for the benefit of the government and could not "be justified when balanced against the defendant's right to a speedy trial guaranteed by the Sixth Amendment." 347 F.Supp. at 1013. The dismissal of an indictment is a severe remedy. It means that a defendant who may be guilty of a serious crime will go free without having been tried: Barker v. Wingo, 407 U.S. at 522, 92 S.Ct. at 2188, 33 L.Ed.2d 101. In the instant case, dismissal is not warranted when the possible prejudice to the defendant is balanced against the government's need to investigate fully the events in question. I conclude Brown has not been denied his Sixth Amendment right to a speedy trial. See United States v. Taylor, 469 F.2d 284 (3rd Cir. 1972); United States ex rel. Stukes v. Shovlin, 464 F.2d 1211 (3rd Cir. 1972). NOTES [1] This may have been true at the time of the hearing on this motion, February 5, 1973. However, by February 15, 1973, two of the co-defendants, Joseph Dunham and Albert Speer, were in custody. M. B. Terrell was already in custody so that only Paul Seldon is still a fugitive.

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 13-2196 ________________ UNITED STATES OF AMERICA v. BAHADIR YAHSI, Appellant ________________ Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 2-11-cr-00353-001) District Judge: Honorable Jose L. Linares ________________ Submitted Under Third Circuit LAR 34.1(a) November 19, 2013 Before: AMBRO, and SMITH, Circuit Judges and O’CONNOR,* Associate Justice (Ret.) (Opinion filed: December 11, 2013) ________________ OPINION ________________ * Honorable Sandra Day O’Connor, Associate Justice (Ret.) for the Supreme Court of the United States, sitting by designation. AMBRO, Circuit Judge I. Appellant Bahadir Yahsi is a Turkish citizen living in the United States. From 2009 until his arrest in 2011, he engaged in numerous drug transactions with a Government cooperator, Mile Petkovski.1 In January 2012, a grand jury returned a five- count second superseding indictment charging Yahsi with: conspiracy to distribute and to possess with intent to distribute oxycodone and ecstasy, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846; distribution and possession with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2; and three counts of distribution and possession with intent to distribute ecstasy, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. The drug trafficking charges are classified as “aggravated felonies” under the Immigration and Nationality Act (“INA”) and mandate permanent removal. See 8 U.S.C. § 1182(a)(9)(A); id. § 1227(a)(2)(A)(iii); Moncrieffe v. Holder, 133 S. Ct. 1678, 1683 (2013). Yahsi filed a motion to dismiss the second superseding indictment on double jeopardy grounds, arguing that the conspiracy count of the indictment was identical to a conspiracy charged by the State of New Jersey.2 The District Court denied the motion, 1 In 2009, Petkovski pleaded guilty to an unrelated conspiracy to distribute ecstasy and agreed to cooperate with the Government. He subsequently communicated with Ilkay Guner, a former acquaintance and alleged drug dealer, who connected Petkovski with Yahsi. 2 In December 2010, a New Jersey state grand jury returned an indictment charging Yahsi and 26 other individuals with drug-trafficking offenses, including two counts alleging that, from February through April 2010, Yahsi conspired with others to distribute 2 and a panel of our Court affirmed on interlocutory appeal. We explained that Yahsi could not meet his prima facie burden of making a non-frivolous showing of double jeopardy because the charged conspiracies took place in different locations, there is a one- month gap and thus no temporal overlap between the two conspiracies, there cannot be significant overlap in personnel because only one potentially overlapping individual (besides Yahsi himself) has been identified, and the overt acts cannot be the same since they occurred at different times. United States v. Yahsi, 490 F. App’x 476, 477 (3d Cir. 2012). Concluding the conspiracies to be separate offenses, we did not address whether the dual sovereignty doctrine would also preclude Yahsi’s claim of double jeopardy. Following this Court’s decision, Yahsi offered to plead guilty, though to misdemeanor offenses rather than to the felonies charged in the second superseding indictment. Through counsel, Yahsi acknowledged the automatic immigration consequences for the felonies charged and sought to plead to lesser offenses to avoid mandatory removal. The Government rejected Yahsi’s plea offers. He argues on appeal that, under Padilla v. Kentucky, 559 U.S. 356 (2010), the Government had a duty to negotiate in good faith toward a disposition that did not require removal, which it violated by rejecting his plea offers without explanation. After a December 2012 trial, the jury found Yahsi guilty of all five counts. He next moved for a judgment of acquittal and argued, among other things, that the conspiracy charge in the second superseding indictment violated his double jeopardy oxycodone and ecstasy in Clifton, New Jersey. United States v. Yahsi, 490 F. App’x 476, 477 (3d Cir. 2012). 3 right not to be charged again for the same offense for which punishment had already been imposed. The District Court denied the motion, explaining that our Court previously held that the two conspiracies were separate offenses, and, moreover, as a separate sovereign the federal government was entitled to prosecute Yahsi for offenses arising out of the same events that gave rise to the New Jersey prosecution. Yahsi now renews his argument that the conspiracy charge violates double jeopardy. In preparation for sentencing, the probation office calculated a Guidelines range of 51 to 63 months. Yahsi challenged this at his sentencing hearing and argues that he deserved a downward adjustment for “acceptance of responsibility,” despite going to trial, because he had offered to plead guilty to lesser charges. The District Court rejected this argument, explaining that the Government was not required to “give you the plea you want,” and that Yahsi was convicted after a “hard fought trial.” The Court imposed a 51- month term of imprisonment. Yahsi appeals that sentence and argues that the District Court erred when it failed to reduce his sentence for “acceptance of responsibility.”3 II. Yahsi first argues that, under the Supreme Court’s decision in Padilla, 559 U.S. at 374-75, the prosecutor was obligated to plea bargain in good faith toward a plea that did not require removal, or at least explain to the District Court why such a plea could not be reached. Neither Padilla nor any other authority imposes such an obligation on prosecutors. See Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“[T]here is no 3 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 4 constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.”); United States v. Santtini, 963 F.2d 585, 596 n.4 (3d Cir. 1992). While the immigration consequences to Yahsi are significant, the prosecutor was not required to entertain a plea to lesser charges solely because Yahsi would be removed if convicted of the crimes charged in the second superseding indictment. Yahsi also claims that the conspiracy charged in the second superseding indictment should have been dismissed because it is for the same underlying offense as a prior New Jersey state conviction and violates double jeopardy. The District Court twice rejected this argument, and our Court has also denied the claim on interlocutory appeal.4 The law is settled that “a federal prosecution arising out of the same facts which had been the basis of a state prosecution is not barred by the double jeopardy clause.” United States v. Pungitore, 910 F.2d 1084, 1105 (3d Cir. 1990) (collecting cases); see also Heath v. Alabama, 474 U.S. 82, 88-89 (1985). Regardless whether the offenses overlap, the state and federal prosecutions here could not give rise to double jeopardy. See Pungitore, 910 F.2d at 1105. Finally, Yahsi contends that the District Court erred in refusing to grant a two- level reduction for “acceptance of responsibility” because he only went to trial after the prosecution refused his plea offer.5 Section 3E1.1 of the United States Sentencing 4 We exercise plenary review over claims of double jeopardy. United States v. Aguilar, 849 F.2d 92, 95 (3d Cir. 1988). 5 “We review factual findings underlying the denial of a Sentencing Guidelines reduction for acceptance of responsibility for clear error, and reverse only if we are left with a 5 Guidelines provides that a district court may reduce a defendant’s offense level by two levels where he “clearly demonstrates acceptance of responsibility for his offense . . . .” U.S. Sentencing Guidelines Manual § 3E1.1 (2012). Although “[c]onviction by trial . . . does not automatically preclude a defendant from consideration for such a reduction,” its application is “rare.” Id. cmt. n.2. The defendant in those cases typically goes to trial “to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct),” and the district court’s determination whether the defendant accepted responsibility is “based primarily upon pre-trial statements and conduct.” Id.; see also United States v. DeLeon- Rodriguez, 70 F.3d 764, 767 (3d Cir. 1995). The District Court did not clearly err when it determined that this case is not among those “rare” situations where a downward adjustment is warranted. Indeed, the record reflects that Yahsi contested his guilt throughout the trial and during sentencing. Further, as the Court correctly found, Yahsi’s offer to plead to offenses lesser than those charged in the second superseding indictment did not demonstrate his acceptance of responsibility for the crimes charged. See, e.g., United States v. McNeal, 29 F. App’x 377, 382 (7th Cir. 2002); United States v. Makes Room For Them, 49 F.3d 410, 416 (8th Cir. 1995). The District Court was well within its discretion to deny the reduction. * * * * * As there was no error by the District Court, we affirm. definite and firm conviction that a mistake has been committed.” United States v. Lessner, 498 F.3d 185, 199 (3d Cir. 2007). 6 

893 So.2d 583 (2004) RTM GENERAL CONTRACTORS, INC., Appellant, v. G/W RIVERWALK, LLC, a Delaware Limited Liability Company, as General Partner of Riverwalk Apartments, LP, a Delaware Limited Partnership; Affirmative Equities, Inc., a New York Corporation, as General Partner of Affirmative Equities Company LP, a Delaware Limited Partnership; and General Accident Insurance Company of America, a Pennsylvania Corporation n/k/a Onebeacon Insurance Company, Appellees. No. 2D03-3073. District Court of Appeal of Florida, Second District. August 18, 2004. Rehearing Denied February 1, 2005. Rosemary Hanna Hayes and Tina L. Caraballo of Hayes & Associates, Orlando, for Appellant. A.J. Stanton, Jr., and Tara C. Early of Stanton & Gasdick, P.A., Orlando, for Appellees. SALCINES, Judge. RTM General Contractors, Inc. (RTM), appeals from a summary final judgment which awarded damages for a fraudulent lien to G/W Riverwalk, LLC (Riverwalk), *584 in the amount of $245,243.[1] We affirm. In July 1998, RTM and Riverwalk entered into three contracts for renovations to Riverwalk's property. RTM filed a construction lien for the unpaid amounts it alleged was owed to it for those renovations. In October 1998, RTM filed a single count lawsuit against Riverwalk to foreclose its construction claim of lien.[2] Riverwalk filed an answer, affirmative defenses, and two-count counterclaim with the trial court. In its counterclaim, Riverwalk alleged that RTM had breached the construction contracts and that RTM had filed a fraudulent lien. The parties were sent to arbitration and disputes arose concerning whether the matter should proceed in arbitration. Ultimately, the trial court entered an order lifting a stay of arbitration. Riverwalk appealed that nonfinal order. This court found that the decision concerning whether the matter was arbitrable required an evidentiary hearing to determine whether the construction contracts were valid. Thus, we reversed and remanded "for further evidentiary proceedings as to the validity of the agreements." Riverwalk Apts., L.P. v. RTM Gen. Contractors, Inc., 779 So.2d 537, 540 (Fla. 2d DCA 2000) ("RTM I"). Mandate issued on January 9, 2001. On remand, the trial court conducted the mandated evidentiary hearing on October 10-11, 2002. The trial court entered a written order setting forth factual findings which led it to conclude that the contracts were null, void, and unenforceable in that RTM allowed another party, DeVore and Associates, to use its contractor's license in conjunction with the Riverwalk construction project in violation of a Florida statute which criminalizes such conduct. See § 489.127(4)(b), Fla. Stat. (1997). The trial court further found that the claim of lien filed by RTM was unenforceable, willfully included amounts not owed to RTM, and was fraudulent. RTM appealed that nonfinal order.[3] This court affirmed that nonfinal order without opinion. RTM Gen. Contractors v. G/W Riverwalk, LLC, 840 So.2d 241 (Fla. 2d DCA 2003) ("RTM II"). A timely motion for rehearing and rehearing en banc was denied by this court, and mandate issued on March 18, 2003. After prevailing in that appeal, Riverwalk proceeded on its motion for summary judgment. In its motion, Riverwalk asserted that RTM could not enforce its claim of lien in light of the trial court's determination that the operative contracts between RTM and Riverwalk were null, void, and unenforceable. Riverwalk also asserted that it was entitled to various damages as a result of the fraudulent lien. The trial court entered a summary final judgment on June 13, 2003, in favor of Riverwalk and against RTM. It is that summary final judgment from which RTM brings this appeal. In this appeal, RTM asks this court to revisit the nonfinal order previously reviewed and affirmed by this court in RTM II. RTM urges this court to reverse that decision claiming that new facts have come *585 to light, new law requires such a reversal and/or manifest injustice will occur if we do not reverse our prior decision.[4] Each of RTM's assertions is simply factually incorrect or totally immaterial. Further, although an appellate court is not necessarily bound to give preclusive effect to the law of the case where the prior decision was based upon review of an interlocutory order on a different issue, see Arch Southeast Communications, Inc. v. Abraham Communications, Inc., 702 So.2d 556 (Fla. 2d DCA 1997), the present case involves an interlocutory order which was subject to review on the dispositive issues now before this court.[5] Thus, we find the present case to be distinguishable from Arch, where the issue of the validity of the underlying oral agreements was not raised until after the appellate court's affirmance of the denial of a motion to compel arbitration. In the present case, the validity of the agreements was litigated in the trial court. This court affirmed the trial court's legal conclusion that the contracts were null, void, and unenforceable, and we have been presented with no viable argument by RTM to reverse this court's prior decision in RTM II in the present appeal. Affirmed. CASANUEVA, J., Concurs. CANADY, J., Concurs specially with opinion. CANADY, Judge, Specially concurring. I concur with the majority's decision to affirm. In my view, however, the summary judgment can be affirmed simply on the basis that our earlier decision in RTM II established as the law of the case that the contracts between Riverwalk and RTM were unenforceable. Although our decision in RTM II was a per curiam affirmance without opinion, that decision necessarily determined that the subject contracts were unenforceable. In addition, RTM has failed to present a sufficient argument to support the conclusion that *586 application of the law of the case will result in a manifest injustice. See Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 105-06, 108 (Fla.2001); Klak v. Eagles' Reserve Homeowner's Ass'n, 862 So.2d 947 (Fla. 2d DCA 2004). NOTES [1] The damages equaled the amount of RTM's claim of lien. [2] By stipulation, RTM's complaint was amended to reflect that Riverwalk had executed a transfer of lien bond and that both Riverwalk and its surety were liable under the bond for the amount of RTM's lien. The final judgment provided for the discharge of lien transfer bonds filed by Onebeacon Insurance Company. We affirm that portion of the final judgment without discussion. [3] That order was immediately appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) as an order determining a party's entitlement to arbitration. [4] Among the purported new facts, RTM maintains that Russ DeVore's subsequent licensure as a general contractor on June 19, 2000, cured the violation. First, we note that this was not a new fact. DeVore was licensed on June 19, 2000, long before the evidentiary hearing which took place in October 2002, and the affirmance of the order (entered in regard to the evidentiary hearing) in RTM II. Second, and more importantly, we note that the issue of DeVore's licensure is immaterial. The construction contracts were entered into by RTM and Riverwalk. RTM, a "certified or registered contractor," performed none of the construction work on Riverwalk's property and instead knowingly allowed DeVore and Associates to use RTM's construction license in the performance of all the services and work associated with the Riverwalk project. See § 489.127(4)(b), Fla. Stat. (1997). Neither DeVore nor DeVore and Associates was RTM's employee or subcontractor. Neither DeVore nor DeVore and Associates was registered, certified, or qualified to "engage in the business, or act in the capacity of, a contractor" at the time RTM allowed them to use its license. See id. Thus, RTM violated section 489.127(4)(b), a violation of which can result in criminal penalties, when it knowingly allowed DeVore or DeVore and Associates to use its certification or registration number. The pertinent inquiry concerns not DeVore's violations, but rather RTM's violations. DeVore's subsequent licensure, which arguably cured DeVore's violation of section 489.128, Florida Statutes (1997), did not cure RTM's violation of section 489.127(4). Third, we note that neither DeVore nor DeVore and Associates has ever been a party to this action. [5] RTM argues that the issue of Russ DeVore's licensure was not previously litigated. Because the status of DeVore's licensure was immaterial in regard to the contract between RTM and Riverwalk, to which DeVore was not a party, this issue affords RTM no relief in this appeal.

813 F.2d 384 Dwayne T. MINGS, Petitioner,v.DEPARTMENT OF JUSTICE, Respondent. Appeal No. 86-1277. United States Court of Appeals,Federal Circuit. March 5, 1987. Thomas J. Griffith, Lubbock, Tex., argued, for petitioner. With him on the brief was George E. Gilkerson, Lubbock, Tex. Tamra Phipps, of the Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for respondent. With her on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, and Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C. Before FRIEDMAN, Circuit Judge, BALDWIN, Senior Circuit Judge, and ARCHER, Circuit Judge. FRIEDMAN, Circuit Judge. 1 The petitioner challenges a decision of the Merit Systems Protection Board (Board) sustaining his removal from the Immigration and Naturalization Service of the Department of Justice (agency), on the grounds that the petitioner (1) used insulting and abusive language concerning agency employees and others in a letter to an agency official, and (2) made an implied threat to change his testimony in a suit against the agency unless the agency hired his son, 30 M.S.P.R. 424. We affirm. 2 * The petitioner was employed as a border patrol agent in Lubbock, Texas. Effective May 17, 1985, he was removed from his position, based on four charges. After a hearing, the presiding official of the Board sustained two of these charges and affirmed the removal. The full Board refused to review that decision. 3 The first sustained charge involved the petitioner's use of insulting and abusive language toward agency employees and others in a letter, dated November 16, 1984, that the petitioner wrote on official stationery to James H. Smith, who was then an assistant district director for investigations. The letter strongly criticized the agency's form I-293, which the border patrol used nationwide to notify aliens of hearings, hearing dates, and hearing locations. The letter first asserted that "[t]he I-293 is the poorest example of an official document, and could only have been designed by those desiring to further the give-away [sic] of the U.S. to hispanics." The letter then stated: 4 All the I-293 accomplishes is to give an illegal alien more time to become further entrenched and hinder the Service efforts in removing him. So why are investigators and border patrol agents passing out I-293 forms? I'll tell you why--those officers are either Catholic, and have not studied the history of those countries that are predominently Catholic (all of them are corrupt, backward, beggarly countries) or they are too damned incompetent to break the aliens off their lies, and too damned lazy to process the aliens! 5 If someone's feelings get hurt, tough! My country is worth more than some Catholic's pride. The truth is--I have to smuggle the illegal aliens by my own Catholic Chiefs, District Directors, etc., etc. in order to get them out of the United States. 6 .... 7 There are many persons in this service who need to be challenged where their loyalty lies; with the United States?? 8 (Grammar, punctuation and spelling are as in original.) 9 The Board found that the petitioner's letter contained insulting and abusive language disparaging Catholics, Hispanics and agency employees, and that the agency could reasonably apprehend that the petitioner's attitude would adversely affect his ability to act impartially in performing his duties as a law enforcement agent. The Board ruled that the first amendment did not bar disciplinary action against the petitioner based upon the letter, since the letter related only "peripherally to a matter of public concern," and was likely to have a seriously disruptive impact on agency operations. 10 The second sustained charge was that the petitioner made an implied threat to change his testimony in a pending case to coerce the agency to hire the petitioner's son. This charge was based on a conversation that the petitioner had with Michael Creppy, a Department of Justice attorney who represented the agency in the trial of Ortega v. Rowe. Ortega was a class action suit against the agency brought by aliens who alleged that local jails in which they were confined were unsafe and unsanitary. The petitioner met with Mr. Creppy on September 29, 1984. At this time, the petitioner had already testified as a witness for the government in the Ortega case, but there was a possibility that he would later be called as a witness for the plaintiffs. 11 According to the presiding official, Mr. Creppy testified at the Board hearing that during his conversation with the petitioner, the petitioner informed him that his son had recently failed the oral portion of the border patrol examination and attempted to show Mr. Creppy a folder of jobs with the agency that the petitioner's son had applied for and had not received. Mr. Creppy further testified that the petitioner "stated that he was going to let the judge know the true conditions of the jail." 12 The petitioner gave a different version of his conversation with Mr. Creppy. According to the petitioner, he made contact with Mr. Creppy in order to inform Mr. Creppy that he believed that his earlier testimony in the Ortega case had been viewed as unfavorable to the government, and that the agency had refused to hire his son in retaliation for this testimony. The petitioner denied threatening to alter his testimony in the Ortega case. 13 In sustaining the charge that the petitioner had used an implied threat in an attempt to coerce a government official, the presiding official found Mr. Creppy to be a "credible" witness who testified in a "direct and forthright manner," but that the petitioner's testimony was implausible and inconsistent. II 14 The petitioner challenges the Board's decision sustaining his removal on three grounds. First, he contends that his May 16, 1984 letter to the assistant director of the agency was protected by the first amendment and could not be a basis for his removal. Second, he argues that substantial evidence does not support the Board's finding that he made an implied threat to change his testimony in an effort to secure employment for his son. Finally, the petitioner claims that the agency failed to establish a causal nexus between his removal and the efficiency of the service, and that the penalty imposed was grossly disproportionate to the misconduct involved. 15 A. First Amendment Protection. On several occasions the Supreme Court has considered the scope of the first amendment protection applicable to speech by public employees. See, e.g., Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Although the Court has recognized that a public employee has a constitutionally protected interest in freedom of expression, see Connick, 461 U.S. at 142, 103 S.Ct. at 1687, the Court has ruled that in determining the measure of that right, the employee's interest must be balanced against the need of government officials for "wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Id. at 146, 103 S.Ct. at 1690. Accordingly, the determination of the free speech rights of government employees involves: 16 a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. 17 Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. Accord Connick, 461 U.S. at 142, 103 S.Ct. at 1687; Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 414, 99 S.Ct. 693, 695, 58 L.Ed.2d 619 (1979); Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977). 18 Applying the Supreme Court's balancing test requires a two-part analysis. It is necessary to determine (1) whether an employee's statement addressed a matter of public concern and, if so, (2) whether the interest of the governmental agency in promoting the service it performs outweighs the employee's interest as a citizen. Brown v. Department of Transp., FAA, 735 F.2d 543, 546 (Fed.Cir.1984). 19 1. Matter of Public Concern. The petitioner wrote a letter to an agency director, on agency stationery, in which he criticized the agency's nationwide use of form I-293 to notify aliens of their hearing rights. The petitioner did not confine his comments to the alleged deficiencies of the form, however, but instead used the letter as a vehicle for a personal diatribe against Hispanics, Catholics, and the competency of the agency's border patrol. 20 The first amendment "does not require a public office to be run as a roundtable for employee complaints over internal office affairs." Connick, 461 U.S. at 149, 103 S.Ct. at 1691. Accordingly, where speech involves only internal agency grievances rather than matters of "political, social, or other concern to the community," the speech does not involve matters of public concern. Id. at 146, 103 S.Ct. at 1690 (speech did not involve matter of public concern where employee distributed a questionnaire to other employees regarding agency transfer procedures); see also Fiorillo v. Department of Justice, 795 F.2d 1544, 1550 (Fed.Cir.1986) (speech did not involve matter of public concern where prison guard released damaging statements about prison to the press); Roseman v. Indiana Univ., 520 F.2d 1364, 1367-68 (3d Cir.1975), cert. denied, 421 U.S. 921, 96 S.Ct. 1128, 47 L.Ed.2d 329 (1976) (speech did not involve matter of public concern where university faculty member made critical remarks regarding the chairman of her department). 21 We agree with the Board that under this standard the petitioner's letter touched only tangentially, if at all, on matters of public concern. The letter did not discuss the general problem of the rights of illegal aliens, but merely criticized the form the agency used to notify aliens of their hearing rights. Like the questionnaire regarding office management that the assistant district attorney distributed in Connick and the statements that the prison guard made regarding prison policies in Fiorillo, the petitioner's personal dissatisfaction with and attack upon form I-293 is more appropriately classified as an internal agency grievance than a matter of public interest. 22 The fact that the petitioner's letter was directed to an agency official rather than to the public at large would not preclude a finding that the letter addressed a matter of public concern. See Givhan, 439 U.S. at 413, 99 S.Ct. at 695. The petitioner's use of internal agency channels to vent his dissatisfaction with a specific agency form, however, buttresses the conclusion that the letter did not address a matter of general public interest. Since the petitioner's letter related to an internal agency grievance rather than a " 'matter of legitimate public concern' upon which 'free and open debate is vital to informed decision-making by the electorate,' " Connick, 461 U.S. at 145, 103 S.Ct. at 1689 (quoting Pickering, 391 U.S. at 571-72, 88 S.Ct. at 1736), the agency properly relied on the letter as a basis for the petitioner's removal. 23 Moreover, in determining whether the letter addressed a matter of public concern, the entire document must be considered. See id. 461 U.S. at 147-48, 103 S.Ct. at 1690; see also Fiorillo, 795 F.2d at 1550 ("It is the nature of the whole communication that must be reviewed to determine whether it is a matter of 'public concern.' "). Viewed as a whole, the letter was not merely a sharp criticism of form I-293, but also expressed the petitioner's racial and religious prejudice. The petitioner's attitude toward Catholics and Hispanics reflected his personal views rather than a matter of general public concern. Cf. Fiorillo, 795 F.2d at 1550 (prison guard released damaging statements about prison for personal reasons rather than out of a desire to inform the public). 24 Where an "employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest," a federal court may not, "absent the most unusual circumstances ... review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Connick, 461 U.S. at 147, 103 S.Ct. at 1690. No such "most unusual circumstances" exist in this case. 25 2. Balance of Interests. Even assuming arguendo that the petitioner's letter did address a matter of public concern, the agency would be precluded from relying upon the letter as a basis for removal only if the petitioner's free speech interest outweighed the interest of the agency in promoting the efficiency of the public service it performs. Brown, 735 F.2d at 546; see also Connick, 461 U.S. at 140, 150, 103 S.Ct. at 1686, 1691. Although in certain first amendment cases "particularized balancing [of competing interests] is difficult," Connick, 461 U.S. at 150, 103 S.Ct. at 1692, in the present case the potentially disruptive effect that the letter could have on agency operations substantially outweighed whatever public interest the letter addressed. 26 The letter reflected virulent anti-Hispanic and anti-Catholic bias and accused the petitioner's superiors and fellow employees of incompetence. Approximately half of the border agents with whom the petitioner worked were Hispanic. Many of the agency's employees were Catholic. In that situation, the continued presence of an employee who had expressed a hostile attitude toward a large number of his coworkers and toward his supervisors would be likely to have a disruptive effect upon the operation of the agency, as the agency itself feared. 27 Moreover, since 98 percent of the aliens apprehended in the area where the petitioner worked were Hispanic, the petitioner's strong bias against that nationality raised a serious question concerning the petitioner's ability to perform his duties as a border patrol agent in a fair and unbiased manner. A law enforcement officer who has this attitude toward the persons he is charged with apprehending is likely to show little respect for their rights. 28 The petitioner contends, however, that the agency's mere apprehension that his continued employment would create disruption of and impede its operation is insufficient to justify his removal on the basis of the letter. According to the petitioner, the agency must show that its efficiency was actually diminished. The Supreme Court has rejected this contention. See Connick, 461 U.S. at 151-52, 103 S.Ct. at 1692 (sustaining dismissal of employee even where there was no demonstration that the employee's ability to perform her job was actually diminished). An employer has no obligation "to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." Id. at 152, 103 S.Ct. at 1692; see also Fiorillo, 795 F.2d at 1551 (potential of harm from the employee's speech need only be "reasonably apprehensible"). Cf. Monsanto v. Quinn, 674 F.2d 990, 999 (3d Cir.1982) (stronger showing of harm required where employee's speech touched on matters of substantial public importance). 29 B. Implied Threat to Change Testimony. The Board also found that the petitioner made an implied threat to change his testimony in a pending case in an effort to induce the agency to hire his son. As noted, see supra pp. 386-87, there was conflicting testimony about this incident. The Justice Department lawyer in charge of the case testified that the petitioner had made such an implied threat. The petitioner denied making the threat and gave a different version of the conversation. 30 The presiding official found the lawyer to be "an extremely credible witness," who "testified in a direct and forthright manner" and whose "testimony was consistent with prior written statements regarding the incident." He further found that, "[i]n contrast, [the petitioner's] testimony was not credible" and was "inconsistent." The presiding official therefore concluded that the lawyer's testimony was "more credible" than that of the petitioner. We have no basis upon which we properly could reverse that credibility determination. DeSarno v. Department of Commerce, 761 F.2d 657, 661 (Fed.Cir.1985); see also Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed.Cir.1986) (credibility determinations by presiding officials are "virtually unreviewable"). In view of that credibility determination, substantial evidence supports the Board's finding that the petitioner made an implied threat to change his testimony in an attempt to induce the agency to hire his son. 31 C. Efficiency of the Service. Under 5 U.S.C. Sec. 7513 (1982), an employee may be removed only for such cause as will promote the efficiency of the service. This "nexus" limitation requires the agency to show by a preponderance of the evidence that the employee's misconduct is likely to have an adverse effect upon the agency's functioning. White v. United States Postal Serv., 768 F.2d 334, 335-36 (Fed.Cir.1985); Brown, 735 F.2d at 547. 32 The Board's finding that the petitioner's removal would promote the efficiency of the service was a factual finding which we sustain because it is supported by substantial evidence. See White, 768 F.2d at 336. As discussed previously, see supra part II A, the petitioner's bias against and intolerance of Catholics and Hispanics and his critical attitude regarding his superiors and co-workers cast grave doubts on the petitioner's ability to discharge his duties as a border patrol in a fair and impartial manner. 33 Moreover, the petitioner's implied threat to Mr. Creppy impaired his credibility and his ability to function effectively as a border patrol agent. The record shows that border patrol agents are frequently required to testify in court proceedings concerning aliens. In view of the petitioner's threat to change his testimony on one occasion, his reliability as a witness in future cases has been seriously impaired. 34 D. Validity of the Penalty of Removal. The petitioner's final challenge concerns the validity of the penalty of removal. The petitioner had approximately eighteen years of prior service with the agency, and had received excellent performance ratings. In addition, many individuals with whom the petitioner had worked testified that they believed the petitioner to be an excellent representative of the border patrol. Moreover, although the agency originally brought four charges against the petitioner, the Board sustained only two of them. In light of these mitigating factors, the petitioner contends that the penalty of removal was grossly disproportionate to the misconduct found. 35 This court has held that it will not disturb a choice of penalty within the agency's discretion unless the severity of the agency's action appears totally unwarranted in light of all the factors. DeWitt v. Department of the Navy, 747 F.2d 1442, 1445 (Fed.Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1759, 84 L.Ed.2d 822 (1985). There "exists a great reluctance on the part of the courts to become enmeshed in the disciplinary process and, accordingly, great deference is accorded to the sound discretion of the agency in such matters." See Weston v. Department of Housing and Urban Dev., 724 F.2d 943, 949 (Fed.Cir.1983). 36 In reviewing the propriety of the agency's penalty of removal, the presiding official recognized that the petitioner had had a long tenure with the agency and that only two of the original charges against him were sustained. Nonetheless, the presiding official found that the petitioner was unfit to occupy his "unique position of trust" as a law enforcement agent in light of the fact that he had expressed bias toward Catholics and Hispanics and had threatened to change his testimony at trial. On the basis of our review, the sanction of removal "in light of the circumstances and a consideration of [the appropriate mitigating] factors does not bespeak a result which is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Id. at 950. CONCLUSION 37 The decision of the Merit Systems Protection Board sustaining the petitioner's removal is affirmed. 38 AFFIRMED.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Criminal No. 08-0118-5 (PLF) ) EDWARD TYRONE FARLEY, ) ) Defendant. ) ____________________________________) OPINION AND ORDER The matters before the Court are defendant Edward Tyrone Farley’s pro se motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the United States Sentencing Guidelines [Dkt. No. 212], and his pro se motion seeking various forms of relief under Rule 60(d) of the Federal Rules of Civil Procedure [Dkt. No. 214]. The United States opposes both motions. Upon careful consideration of the parties’ written submissions, the relevant legal authorities, and the entire record in this case, the Court will deny both motions. 1 1 In connection with the pending motions, the Court has reviewed the following filings, including the exhibits attached thereto: the Indictment [Dkt. No. 3]; the January 6, 2009 Plea Agreement (“Plea”) [Dkt. No. 104]; the June 23, 2009 Presentence Investigation Report (“PSR”) [Dkt. No. 162]; the June 30, 2009 Judgment (“Judgment”) [Dkt. No. 167]; Mr. Farley’s Letter Motion for Retroactive Reduction of Sentence [Dkt. No. 202]; Mr. Farley’s Motion for Retroactive Application of Sentencing Guidelines Under 18 U.S.C. § 3582 (“Section 3582 Mot.”) [Dkt. No. 212]; Mr. Farley’s Motion Pursuant to Rule 60(d) of the Federal Rules of Civil Procedure For Minor Role Reduction Under Amendment 794 (“Rule 60 Mot.”) [Dkt. No. 214]; the October 3, 2017 Probation Memorandum (“Probation Mem.”) [Dkt. No. 215]; United States’ Consolidated Opposition to Section 3582 Motion and Rule 60 Motion (“Opp’n”) [Dkt. No. 216]; and December 27, 2017 Memorandum Opinion and Order (“Dec. 27, 2017 Mem. Op. & Order”) [Dkt. No. 217].  I. BACKGROUND In January 2009, Mr. Farley entered a plea of guilty pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure to one count of conspiracy to possess with intent to distribute and to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1). See Plea ¶ 1. As part of the plea agreement, Mr. Farley acknowledged responsibility for at least one kilogram, but less than three kilograms, of heroin. See id. ¶ 2. The presentence investigation report prepared by the Probation Office reflected a base offense level of 32, plus a three-level enhancement for Mr. Farley’s role as a supervisor or manager in the criminal activity, for an adjusted offense level of 35. See PSR ¶¶ 32, 35. Because Mr. Farley qualified as a career offender under Section 4B1.1 of the Sentencing Guidelines, however, the presentence investigation report set an adjusted offense level of 37 and a criminal history category of VI. See id. ¶¶ 38, 55. Mr. Farley received a three-level downward adjustment for acceptance of responsibility, resulting in a total offense level of 34. See id. ¶¶ 39-40. With a total offense level of 34 and a criminal history category of VI, Mr. Farley’s guidelines sentencing range was 262 to 327 months. See id. ¶ 108. In making its own independent guidelines determination, as required by law, the Court agreed with the calculations made by the Probation Office. In the Rule 11(c)(1)(C) plea agreement, however, Mr. Farley and the United States agreed to a below-guidelines sentence of 180 months. See Plea ¶ 3. On June 30, 2009, Judge James Robertson accepted the plea and imposed a sentence of 180 months’ imprisonment. See Judgment at 2. 2  II. DISCUSSION A. Section 3582 Motion Based on Amendment 782 Mr. Farley moves for a reduction in his sentence under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the drug quantity tables in the Sentencing Guidelines, an amendment which was made retroactive by Amendment 788. See Section 3582 Mot. at 1-2. Amendment 782 reduced by two levels the base offense levels for certain controlled substance offenses. See U.S.S.G. app. C, amends. 782 (reduction), 788 (making Amendment 782 retroactive). The United States opposes the requested sentence reduction on the ground that Mr. Farley’s offense level was determined by his designation as a career offender under Section 4B1.1 of the Sentencing Guidelines – the career offender guideline – rather than by drug quantity. See Opp’n at 6-8. Mr. Farley, in turn, challenges his designation as a career offender on the ground that his prior controlled substance offenses are too dated to constitute valid career offender predicate offenses. See 3582 Mot. at 3-4. Under 18 U.S.C. § 3582(c)(2), the Court may modify a sentence when the defendant was sentenced to a term of imprisonment based on a sentencing range that subsequently has been lowered by the Sentencing Commission. See Dillon v. United States, 560 U.S. 817, 819 (2010). Any sentence modification under Section 3582(c)(2) must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. at 821 (quoting 18 U.S.C. § 3582(c)(2)). The Court must first determine whether the defendant is eligible for a sentence modification under Section 3582(c)(2), and then determine, in its discretion, whether a reduction in the sentence is warranted considering the factors enumerated in 18 U.S.C. § 3553(a). See United States v. Butler, 130 F. Supp. 3d 317, 319-20 (D.D.C. 2015), aff’d sub nom. United States v. Jones, 846 F.3d 366 (D.C. Cir. 2017). To be eligible for a sentence modification under 3 Section 3582(c)(2), a defendant must show that he was initially sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” and that the modification is “consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see Hughes v. United States, 138 S. Ct. 1765, 1773, 1775 (2018); Koons v. United States, 138 S. Ct. 1783, 1786-87 (2018); Dillon v. United States, 560 U.S. at 819. The policy statement applicable to this case – Section 1B1.10 of the Sentencing Guidelines – provides that a sentence reduction “is not consistent with this policy statement and therefore is not authorized by Section 3582(c)(2)” if the relevant amendment “does not have the effect of lowering the defendant’s applicable guideline range.” See U.S.S.G. § 1B1.10(a)(2)(B). For a defendant who qualifies as a career offender, the “applicable guideline range” referenced in Section 1B1.10 is the range provided by the career offender provision of the Sentencing Guidelines, not the drug quantity tables. See United States v. Akers, 892 F.3d 432, 434 (D.C. Cir. 2018) (citing United States v. Berry, 618 F.3d 13, 18 (D.C. Cir. 2010)). Here, Amendment 782 does not have the effect of lowering Mr. Farley’s “applicable guideline range” because he was designated as a career offender under the Sentencing Guidelines. His career offender designation resulted in an offense level of 37 and a criminal history category of VI, regardless of the quantity of drugs that he acknowledged in his plea agreement. See U.S.S.G. § 4B1.1. He then received a three-level downward adjustment for acceptance of responsibility, resulting in a total offense level of 34. See PSR ¶¶ 39-40. Because of Mr. Farley’s designation as a career offender, the drug quantity guidelines played no role in determining Mr. Farley’s sentence. See United States v. Akers, 892 F.3d at 434. Mr. Farley’s “applicable guideline range” therefore remains unchanged by the revised drug quantity tables 4 under Amendment 782: his offense level remains 34, his criminal history category remains VI, and his applicable guidelines sentencing range remains 262 to 327 months. Because Amendment 782 has no impact on Mr. Farley’s applicable guidelines sentencing range, he is not eligible for the requested sentence modification under Section 3582(c)(2). See, e.g., United States v. Akers, 892 F.3d at 434 (affirming district court’s determination that career offender was not eligible for sentence reduction based on Amendment 782); United States v. Perez, No. 09-0293, 2017 WL 3446757, at *2 (D.D.C. Aug. 9, 2017); United States v. King-Gore, No. 12-0023-01, 2016 WL 10951263, at *2 (D.D.C. Apr. 19, 2016); United States v. Clipper, 179 F. Supp. 3d 110, 117 (D.D.C. 2016). Mr. Farley challenges his designation as a career offender on the ground that his prior controlled substance offenses are too dated to constitute valid career offender predicate offenses. See Section 3582 Mot. at 3-4. This argument is unavailing. A defendant is a career offender under Section 4B1.1 of the Sentencing Guidelines if: (1) he was at least eighteen years old at the time he committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) he has at least two prior felony convictions of either a crime of violence or a controlled substance offense. See U.S.S.G. § 4B1.1(a). Under Section 4A1.2(e)(1) of the Sentencing Guidelines, the career offender designation may be applied if the sentences for the two prior felony convictions “exceed[] one year and one month” and were “imposed within fifteen years of the defendant’s commencement of the instant offense,” and any “prior sentence of imprisonment exceeding one year and one month, whenever imposed, . . . resulted in the defendant being incarcerated during any part of such fifteen-year period.” Id. § 4A1.2(e); see id. § 4B1.2, application note 3. 5  Applying those factors here, Mr. Farley was approximately 45 years old in April 2007 when the instant conspiracy offense began, the instant conviction is for felony conspiracy heroin distribution, and Mr. Farley has two prior felony convictions for cocaine distribution. See PSR ¶¶ 3, 20, 38, 48-49. The sentences for the two prior felony convictions were imposed in May 1992 and August 1992, respectively, and each sentence exceeded one year and one month. See id. ¶¶ 48-49. Because Mr. Farley committed the instant offense beginning in April 2007, the sentences for these 1992 felony convictions were imposed “within fifteen years of the defendant’s commencement of the instant offense.” See U.S.S.G. § 4A1.2(e). In addition, in view of the fact that Mr. Farley was released on parole in July 2006 for both 1992 felony convictions, see PSR ¶¶ 48-49, he was subject to a “prior sentence of imprisonment exceeding one year . . . whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.” See U.S.S.G. § 4A1.2(e). Accordingly, the 1992 felony convictions are appropriate predicate offenses for Mr. Farley’s career offender designation. See United States v. Clipper, 179 F. Supp. 3d at 117 (rejecting challenge to career offender designation raised in Section 3582(c)(2) motion). Mr. Farley therefore is not eligible for a sentence modification based on a retroactive application of Amendment 782. B. Rule 60 Motion Mr. Farley seeks two forms of relief pursuant to Rule 60 of the Federal Rules of Civil Procedure. See Rule 60 Mot. 2 2 Mr. Farley brings his motion under Rule 60(d) of the Federal Rules of Civil Procedure, which permits parties to bring an equitable “independent action” for relief from judgment. See FED. R. CIV. P. 60(d)(1); see also Brodie v. Dep’t of Health & Human Servs., 951 F. Supp. 2d 108, 114-15 (D.D.C. 2013). For the reasons that follow, however, it does not matter whether the Court considers the motion under Rule 60(d) or 60(b). 6  First, Mr. Farley seeks a sentence reduction based on Amendment 794 to Section 3B1.2 of the Sentencing Guidelines, the provision that permits a downward offense level adjustment if the defendant was a minimal or minor participant in the criminal activity. Second, he challenges the three-level increase to his offense level for his role as a supervisor or manager in the criminal activity. Because Mr. Farley is proceeding pro se in this matter, the Court will consider these requests in light of the two methods through which a district court may modify a previously-imposed sentence: (1) a motion brought under 18 U.S.C. § 3582(c)(2); and (2) a motion brought under 28 U.S.C. § 2255. See United States v. Pletnyov, 47 F. Supp. 3d 76, 78 (D.D.C. 2014) (“Regardless of how a [pro se] prisoner styles his motion, a court must review the motion based on its substance.”) (quoting United States v. Akers, 519 F. Supp. 2d 94, 95 (D.D.C. 2007)). For the reasons that follow, neither provision entitles Mr. Farley to the relief he requests. 1. Request for Minimal or Minor Role Sentencing Adjustment Pursuant to 18 U.S.C. § 3582(c)(2) Mr. Farley requests a reduction in his offense level based on Amendment 794 to Section 3B1.2 of the Sentencing Guidelines, the provision that permits a downward offense level adjustment if the defendant was a minimal or minor participant in the criminal activity. See Rule 60 Mot. at 1-2, 5-6. To the extent that Mr. Farley seeks a sentence modification in light of a subsequent change to the Sentencing Guidelines regarding minimal or minor participants in criminal conduct, the Court will construe this request as a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). See, e.g., United States v. Amaya-Ortiz, 296 F. Supp. 3d 21, 24 (D.D.C. 2017) (construing pro se defendant’s request for relief pursuant to Amendment 794 as a motion for sentence modification under Section 3582(c)(2)); United States v. Henriquez, 305 F. Supp. 3d 123, 124-25 (D.D.C. 2018) (same). 7  Mr. Farley is not eligible for a sentence modification under Section 3582(c)(2) because the Sentencing Commission has not given Amendment 794 retroactive effect. Section 1B1.10(d) of the Sentencing Guidelines lists the amendments that the Sentencing Commission has determined should be given retroactive effect. See United States v. Williams, 495 F. App’x 96, 97 (D.C. Cir. 2013) (citing Dillon v. United States, 560 U.S. at 826). Amendment 794 is not included in that list. Although some courts have held that Amendment 794 is a clarifying amendment and thus retroactively applicable on direct review, see United States v. Quintero-Leyva, 823 F.3d 519, 522-23 (9th Cir. 2016), no court to date has held that Amendment 794 is retroactively applicable on collateral review. Because the Sentencing Commission has not designated Amendment 794 as one that should be applied retroactively, Mr. Farley is not entitled to a sentence modification under 18 U.S.C. § 3582(c)(2). See United States v. Amaya-Ortiz, 296 F. Supp. 3d at 26-27 (declining to apply Amendment 794 retroactively on collateral review because it was not listed as eligible for retroactive effect in Section 1B1.10(d) of the Sentencing Guidelines). Even if Amendment 794 were retroactively applicable on collateral review, Mr. Farley would not be entitled to relief because a guidelines calculation based on amended Section 3B2.1 would not change Mr. Farley’s applicable guidelines sentencing range under the Sentencing Guidelines. Mr. Farley’s offense level was determined by his designation as a career offender pursuant to Section 4B1.1 of the Sentencing Guidelines. For the same reasons discussed in connection with Mr. Farley’s Section 3582(c)(2) motion based on Amendment 782, see supra at 4-5, the application of the minimal or minor role adjustment would not affect his applicable career offender guidelines sentencing range. Mr. Farley thus is not eligible for relief under Section 3582(c)(2) based on a retroactive application of Amendment 794. 8  2. Challenge to Supervisor or Manager Sentencing Enhancement Pursuant to 28 U.S.C. § 2255 Mr. Farley challenges the three-level increase to his offense level for his role as a supervisor or manager in the criminal conduct. See Rule 60 Mot. at 1-2, 5-6. He argues that the application of the supervisor or manager sentencing enhancement under Section 3B1.1 of the Sentencing Guidelines “fails to take into account [his] role in the relevant conduct.” See id. at 1-2. To the extent that Mr. Farley challenges the legal basis of his sentence based on the application of the supervisor or manager sentencing enhancement, the Court will construe this claim as a motion to vacate, set aside, or correct Mr. Farley’s sentence pursuant to 28 U.S.C. § 2255. See, e.g., United States v. Akers, 519 F. Supp. 2d at 95 (construing pro se Rule 60(b) motion as a successive Section 2255 motion); United States v. Tchibassa, 762 F. Supp. 2d 3, 7 (D.D.C. 2011); Prepetit v. United States, 639 F. Supp. 2d 49, 50-51 (D.D.C. 2009). The Court notes that prior to considering this portion of Mr. Farley’s Rule 60 motion and construing it as his first Section 2255 motion, the Court issued the following warning to Mr. Farley pursuant to United States v. Castro, 540 U.S. 375 (2003): Mr. Farley is hereby notified that if the Court treats his challenge to the supervisor/manager enhancement in his Rule 60(d) motion [Dkt. No. 214] as his first Section 2255 motion, any subsequent Section 2255 motion will be subject to the restrictions on “second or successive” motions. [United States v. Castro, 540 U.S. at 383]. In such case, Mr. Farley will not be permitted to file any further motions challenging his conviction or sentence unless the U.S. Court of Appeals for the District of Columbia Circuit authorizes him to file such a motion. The Court of Appeals will not authorize him to file a second or successive Section 2255 motion unless the motion contains: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found Mr. Farley guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the U.S. Supreme Court, that was previously unavailable. See 28 U.S.C. § 2255(h). The motion will be subject 9  to a one-year period of limitations that requires dismissal unless the motion is filed within one year of the latest of the dates listed in Section 2255(f). Based on the consequences that may result if the Court recharacterizes this claim as a Section 2255 claim, the Court hereby affords Mr. Farley the opportunity either (1) to withdraw his claim challenging the supervisor/manager enhancement, or (2) to amend it so that it contains all of the claims that he believes he may have to challenge his conviction or sentence. See Dec. 27, 2017 Mem. Op. & Order. Mr. Farley did not respond to this Castro warning. Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the court to vacate, set aside, or correct the sentence if the prisoner believes that the sentence was imposed “in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). But the Court must first determine whether the motion is timely, because the statute imposes a one-year statute of limitations on such motions. Untimely motions, absent equitable tolling, are time-barred and must be dismissed. See United States v. Hayes, 255 F. Supp. 3d 216, 219 (D.D.C. 2017). The one-year limitations period runs from the latest of: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f). 10  Mr. Farley was sentenced on June 30, 2009 and did not appeal his sentence or conviction. He did not file the instant collateral attack motion until September 18, 2017, which is more than one year after his conviction became final. See e.g., United States v. Amaya-Ortiz, 296 F. Supp. 3d at 24 n.3; Danson v. United States, No. 10-0051, 2017 WL 6209823, at *3 (D.D.C. Dec. 7, 2017); United States v. Hayes, 255 F. Supp. 3d at 219. The circumstances that trigger the one-year limitations period at a later date do not apply here. Mr. Farley does not assert any rights “newly recognized by the Supreme Court.” See 28 U.S.C. § 2255(f)(3). Nor does he suggest that governmental action prevented him from making these claims earlier or that any facts supporting his claims only recently came to light. See id. § 2255(f)(2), (4). Mr. Farley’s motion therefore is untimely. Although Mr. Farley’s motion is time-barred under the plain language of the statute, there are two potential avenues through which his Section 2255 motion could be considered on the merits: (1) equitable tolling; and (2) a credible showing of actual innocence. See United States v. Allen, 241 F. Supp. 3d 101, 105 (D.D.C. 2017). Equitable tolling can extend the one-year limitations period if a defendant establishes two elements: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way that prevented timely filing.” See United States v. McDade, 699 F.3d 499, 504 (D.C. Cir. 2012) (internal quotation marks and citations omitted); see also United States v. Peterson, 916 F. Supp. 2d 102, 106 (D.D.C. 2013). Here, Mr. Farley has not shown that he has been pursuing his rights diligently, nor has he alleged any extraordinary circumstance that prevented him from filing his motion in a timely manner. While the Court acknowledges that Mr. Farley is incarcerated and is proceeding pro se in this matter, Mr. Farley has not attempted to explain why he waited until September 11 2017 – eight years after his conviction became final – to file this collateral attack challenging the application of the supervisor or manager sentencing enhancement. See United States v. Lawson, 608 F. Supp. 2d 58, 62 (D.D.C. 2009) (holding that “failure to meet the statutory deadline due to pro se representation is not a circumstance in which it is appropriate to toll the statute of limitations”); see also United States v. Cicero, 214 F.3d 199, 203 (D.C. Cir. 2000) (“The prisoner’s ignorance of the law or unfamiliarity with the legal process will not excuse his untimely filing, nor will a lack of representation during the applicable filing period.”). Because the Court is not persuaded that Mr. Farley has diligently pursued his rights or that any extraordinary circumstances stood in the way of his doing so, Mr. Farley does not qualify for equitable tolling. See United States v. Allen, No. 03-0557-1, 2016 WL 4099037, at *2 (D.D.C. Aug. 2, 2016). Mr. Farley also has failed to establish a credible showing of actual innocence to overcome the one-year limitations period. The Supreme Court has held that “actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of limitations.” See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). But this standard is demanding: “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” See id. at 386-87 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Mr. Farley fails to identify any new evidence unavailable to him at the time of his plea to establish his actual innocence sufficient to pass through this gateway. Mr. Farley argues that although the presentence investigation report “alleged that he advised co-defendant ‘Shannon,’. . . Shannon also supplied [Mr. Farley] with heroin quantities.” See Rule 60 Mot. at 12 5-6. He further argues that he “had no occasion to supervise or manage Shannon’s activities in this case” and did not give her orders, but rather provided only advice on whom to trust. See id. at 9. There is no suggestion, however, that these allegations constitute “new evidence” that was unavailable at the time of the plea. Mr. Farley thus has failed to demonstrate a “credible showing of actual innocence [to] allow [him] to pursue his constitutional claims” despite the passage of the one-year limitations period. See McQuiggan v. Perkins, 569 U.S. at 392; see also United States v. Allen, 2016 WL 4099037, at *2. The Court will deny Mr. Farley’s Section 2255 motion as time-barred. III. CONCLUSION For the foregoing reasons, it is hereby ORDERED that Mr. Farley’s pro se motion [Dkt. No. 212] to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the Sentencing Guidelines is DENIED; and it is FURTHER ORDERED that Mr. Farley’s pro se motion [Dkt. No. 214] seeking relief under Rule 60 of the Federal Rules of Civil Procedure is DENIED. SO ORDERED. ________________________ PAUL L. FRIEDMAN United States District Judge DATE: October 4, 2018 13 

9 B.R. 394 (1981) In re INDEPENDENCE LAND TITLE CORPORATION OF ILLINOIS, Debtor. Jay A. STEINBERG, Trustee in Bankruptcy, Petitioner, v. The NATIONAL BANK AND TRUST COMPANY OF SYCAMORE, Respondent. No. 80 B 3675. United States Bankruptcy Court, N.D. Illinois, E.D. March 4, 1981. *395 Jay A. Steinberg, Chicago, Ill., for trustee. Minnihan, Smith & Brown, Sycamore, Ill., for Bank. MEMORANDUM AND ORDER ROBERT L. EISEN, Bankruptcy Judge. This matter came to be heard on the trustee's application to avoid a lien on a motor vehicle. The National Bank and Trust Company of Sycamore contends the lien is valid and perfected while the trustee contends the lien is null and void as a preference. The court having researched the issues presented and being fully advised in the premises makes the following findings of fact and conclusions of law. FINDINGS OF FACT 1. In February 1980 the debtor assigned its interest in the car to Mr. Wade, President of the debtor corporation. 2. Mr. Wade, as President of the debtor, endorsed the back of the certificate of title, thereby assigning the car to himself individually. Mr. Wade took possession of the car but failed to send the certificate of title to the Secretary of State for the issuance of a new certificate of title. 3. On March 18, 1980 the debtor applied to the Bank for a loan so that the debtor could repurchase the car from Mr. Wade. a. On March 18, 1980 the debtor and the Bank executed an installment note and a Motor Vehicle Security Agreement whereby the parties attempted to grant the Bank a security interest in the car. b. On March 18, 1980 the debtor gave Mr. Wade the loan proceeds. c. On March 18, 1980 Mr. Wade gave the Bank the certificate of title which showed the debtor as the owner and then showed the assignment of ownership from the debtor to Mr. Wade. d. On March 18, 1980 there was no room on the back of the certificate of title for further assignments so the Bank, with Mr. Wade's cooperation, mailed the certificate of title to the Secretary of *396 State requesting a new certificate of title showing Mr. Wade as the car's owner. 4. On March 27, 1980 the debtor filed a petition under Chapter 11. 5. On or about April 24, 1980 the Bank received the new certificate of title showing Mr. Wade as the car's owner. 6. On or about May 15, 1980 Mr. Wade endorsed the new certificate of title thereby assigning the car to the debtor. 7. The Bank subsequently sent the certificate of title, as assigned, to the Secretary of State requesting a new certificate of title showing the debtor as the owner and the Bank as the lienholder. 8. On June 5, 1980 the Secretary of State issued a certificate of title indicating the debtor's and the Bank's respective interests in the car. ISSUE Does the transfer fall within an exception to the trustee's avoiding powers? DISCUSSION The Bank contends it has a valid and perfected security interest in the car. The trustee contends the transfer is voidable as a preference. The Bank does not deny that the transfer created a preference voidable under 11 U.S.C. § 547(b). The Bank, however, does contend that the transfer falls within an exception to the trustee's avoiding powers. The exceptions to the trustee's avoiding powers appear in 11 U.S.C. § 547(c) which states that: The trustee may not avoid under this section a transfer — 1. to the extent that such transfer was (a) intended by the debtor and creditor . . . to be a contemporaneous exchange for new value given to the debtor; and (b) in fact a substantially contemporaneous exchange; * * * * * * 3. of a security interest in property acquired by the debtor — (a) to the extent such security interest secures new value that was — * * * * * * and (b) that is perfected before 10 days after such security interest attaches. Section 547(c)(1) will be referred to as the "substantially contemporaneous exchange" exception and § 547(c)(3) will be referred to as the "enabling loan" exception. The Bank argues in the alternative that either the transfer comes within the "substantially contemporaneous exchange" exception or that it comes within the "enabling loan" exception. The first issue considered is whether the creation of the security interest was "substantially contemporaneous" with the giving of the loan. The transfer in question is the giving of the security interest in exchange for the loan. 11 U.S.C. § 101(40). The transfer is made when the security interest is perfected. 11 U.S.C. § 547(e)(2). This court holds that the transfer was not perfected until subsequent to May 15, 1980 at the earliest. The Illinois Vehicle Code holds that a security interest in a car is perfected when the certificate of title is delivered to the Secretary of State with an application containing the name and address of the lienholder as well as the required fee. S.H.A., Ch. 95½, § 3-202(b). The debtor did not have rights in the car until May 15, 1980 so it was impossible for the Bank to perfect a security interest before that date. 11 U.S.C. § 547(e)(3). Contemporaneous is defined as "originating, arising or being formed or made at the same time . . ." Webster's Third International Dictionary, Unabridged (1961). The Bank submits no case authorities holding that a two-month gap between a loan and the perfection of a security interest constitutes a "substantially contemporaneous exchange." The court therefore finds that the exchange was not substantially contemporaneous and thus not within the exception to the trustee's avoiding power set forth in § 547(c)(1). The court cites In re Kelley, Bkrtcy., 3 B.R. 651; C.C.H. ¶ 67,688, p. 78,217 (E.D.Tenn.1980) and In re Poteet, Bkrtcy., 5 B.R. 631 (E.D.Tenn.1980) in support of the instant holding. As the Poteet court stated: *397 Delayed perfection of the security interest thus resulted in a transfer avoidable by the trustee as preferential. Id. at 636. Alternatively, the Bank contends that the transfer is within the "enabling loan" exception of § 547(c)(3). The Bank contends that the security interest first attached on May 15, 1980 when the debtor acquired rights in the collateral S.H.A. c. 26, § 9-203. Then the Bank contends the security interest was perfected within 10 days of attachment. S.H.A. ch. 95½, § 3-202(b). Section 547(e) of the Bankruptcy Code determines when a transfer is made for the purposes of the preference section of the Code. The Code states that: For the purposes of this section, a transfer is not made until the debtor has acquired rights in the property transferred. 11 U.S.C. § 547(e)(3). For the purposes of the preference section, the transfer was not made until May 15, 1980. Thus the transfer was a post-petition transaction. The loan was made March 18, 1980 and the Chapter 11 petition was filed March 27, 1980. The certificate of title showing the debtor as owner and the Bank as lienholder was not issued until June 5, 1980. The court holds that the transaction was not within the "enabling loan" exception to the trustee's avoiding powers, 11 U.S.C. § 547(c)(3), and as further support states that: (a) . . . the trustee may avoid a transfer of property of the estate — (1) that occurs after the commencement of the case; and * * * * * * (2)(B) that is not authorized under this title or by the court. 11 U.S.C. § 549. The transfer occurred after the case was commenced and it was not authorized by the Code or the Court. It is therefore concluded that the disputed transaction is not within either the "substantially contemporaneous exchange" or the "enabling loan" exceptions to the trustee's avoiding power. Furthermore, the transaction may be avoided pursuant to 11 U.S.C. § 549. WHEREFORE, IT IS HEREBY ORDERED that the lien of the National Bank and Trust Company of Sycamore on the 1978 Dodge Magnum, Serial No. XS22K8R206107, owned by the debtor is null and void and that possession of the car is hereby awarded to the trustee.

37 F.3d 1485 Air Products and Chemicals, Inc.v.Secretary of Labor, Mine Safety and Health Administration,Federal Mine Safety and Health Review Commission NO. 93-3646United States Court of Appeals,Third Circuit. Aug 18, 1994 1 Appeal From: F.M.S.H.R.C. 2 REVIEW DENIED.

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 10/26/2018 10:13 AM CDT - 82 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. SHAULL Cite as 301 Neb. 82 State of Nebraska, appellee, v. Steven D. Shaull, appellant. ___ N.W.2d ___ Filed September 14, 2018. No. S-17-943.  1. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged to be excessive, an appellate court must deter- mine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal prin- ciples in determining the sentence to be imposed.  2. Judgments: Appeal and Error. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence. Appeal from the District Court for Lancaster County: Lori A. M aret, Judge. Affirmed. Joseph D. Nigro, Lancaster County Public Defender, John C. Jorgensen, and Sarah L. Burghaus, Senior Certified Law Student, for appellant. Douglas J. Peterson, Attorney General, and Joe Meyer for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Heavican, C.J. INTRODUCTION Steven D. Shaull was convicted of theft by deception and sentenced to 2 years’ imprisonment and 12 months’ postrelease  - 83 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. SHAULL Cite as 301 Neb. 82 supervision. He appeals from the conditions set by the district court. We affirm. FACTUAL BACKGROUND On June 29, 2017, Shaull was charged by amended infor- mation with theft by deception, a Class IV felony pursuant to Neb. Rev. Stat. § 28-518 (Reissue 2016), in connection with the fraudulent sale of a vehicle engine through an online auction service. Shaull, a resident of Anaheim, California, received $11,500 for the engine from a resident of Lancaster County, Nebraska, but never delivered the engine. An investi- gation showed that Shaull sold, but failed to deliver, the same engine to individuals in multiple states. Shaull was extradited to Nebraska and eventually pled no contest to theft by deception. As noted, Shaull was sen- tenced to 2 years’ imprisonment and 1 year of postrelease supervision. That supervision was subject to 20 conditions, which are set forth in the district court’s order of postrelease supervision. At the sentencing hearing, Shaull’s counsel, citing to State v. Phillips,1 which was at the time pending with this court, objected to the terms of postrelease supervision. Counsel specifically argued that because Shaull was to be extradited to Kentucky to face charges there, the conditions specific to remaining in Nebraska were not feasible. Counsel also argued that the imposition of various fees was error, because Shaull was indigent. Counsel’s objections were noted and overruled. Shaull appeals. ASSIGNMENT OF ERROR Shaull assigns that the district court abused its discre- tion in failing to impose terms and conditions of postrelease supervision that (1) could be served by Shaull while he was  1 State v. Phillips, 297 Neb. 469, 900 N.W.2d 522 (2017).  - 84 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. SHAULL Cite as 301 Neb. 82 incarcerated in another state and (2) were reasonably related to his rehabilitation. STANDARD OF REVIEW [1,2] Where a sentence imposed within the statutory limits is alleged to be excessive, an appellate court must determine whether the sentencing court abused its discretion in consider- ing and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.2 An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.3 ANALYSIS On appeal, Shaull assigns that the district court erred by imposing terms and conditions for his postrelease supervision that were not related to his rehabilitation and that could not be met, because he would be serving that term of postrelease supervision in the custody of another state’s criminal jus- tice system. Postrelease supervision is a relatively new concept in Nebraska. Both Neb. Rev. Stat. §§ 28-105 and 29-2204.02 (Supp. 2017) authorize the imposition of postrelease super- vision as part of a determinate sentence. Section 28-105(5) provides that “[a]ll sentences of post-release supervision shall be served under the jurisdiction of the Office of Probation Administration and shall be subject to conditions imposed pur- suant to section 29-2262 and subject to sanctions authorized pursuant to section 29-2266.02.” Neb. Ct. R. § 6-1904(A) (rev. 2016) provides the process to undertake when imposing a sentence of postrelease supervi- sion. According to that rule:  2 Id.  3 Id.  - 85 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. SHAULL Cite as 301 Neb. 82 In cases requiring a determinate sentence pursuant to Neb. Rev. Stat. § 29-2204.02, the court shall, at the time a sentence is pronounced, impose a term of incarceration and a term of post-release supervision pursuant to Neb. Rev. Stat. § 29-2204.02(1), and shall enter a separate post-release supervision order that includes conditions pursuant to Neb. Rev. Stat. § 29-2262. The court shall specify, on the record, that conditions of the order of post-release supervision may be modified or eliminated pursuant to Neb. Rev. Stat. § 29-2263(3). Our case law generally provides that a conviction and sen- tence in a criminal case is a final, appealable order.4 And we held in State v. Phillips that a term of postrelease supervision ordered alongside a determinate sentence is final.5 Section 6-1904(A) requires the conditions to be imposed upon the defendant at the time of sentence. Subsections (B) and (C) of § 6-1904 provide that prior to an individualized release date (45 days for inmates incarcerated with the Department of Correctional Services and 30 days if in the county jail), the “court shall receive a post-release supervision plan” and “shall consider modification to the post-release supervision order, upon application and recommendation, based upon the post- release supervision plan from the probation office.” In the case of inmates within the Department of Correctional Services, the “plan shall be collaboratively prepared by the Office of Probation Administration and the Department of Correctional Services to provide information regarding performance and programming while incarcerated, an updated risk/needs assess- ment, along with a community needs and service assessment.” And subsection (D) of § 6-1904 provides that “the court shall, if applicable, modify the post-release supervision order” within  4 See, generally, State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).  5 State v. Phillips, supra note 1.  - 86 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. SHAULL Cite as 301 Neb. 82 30 days (Department of Correctional Services inmates) or 15 days (county jail). The imposition of conditions at the time of sentencing is done to guide a defendant to needed services during incar- ceration. And our rule provides that conditions may need to be modified upon a defendant’s “performance and programming while incarcerated.”6 On appeal, Shaull assigns that the district court erred in imposing conditions to his postrelease supervision (1) that he cannot comply with because he will be incarcerated out of state and (2) that do not bear a reasonable relationship to the purposes of postrelease supervision—namely leading a law- abiding life. We do not address Shaull’s second argument, because a review of the record reveals that no objection was made to any of the conditions of employment on the basis that they did not bear a reasonable relationship to the purposes of his supervi- sion. As such, Shaull has waived such objections. We turn then to Shaull’s first argument. Shaull argues that he will be unable to comply with the conditions of his postrelease supervision, because he will be extradited to another state once he finishes serving his term of imprisonment in Nebraska. While counsel argued that Shaull would be extradited, that action had not taken place at the time of sentencing. Nor was there any evidence presented that such extradition was a cer- tainty. In the event such extradition takes place, we observe that the conditions of postrelease supervision are modifiable upon motion of the defendant or on the court’s own motion.7 Thus, if Shaull were to be extradited, he could seek a modifi- cation to those terms with which he feels he would be unable to comply.  6 § 6-1904(B).  7 Neb. Rev. Stat. § 29-2263(3) (Supp. 2017); § 6-1904.  - 87 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. SHAULL Cite as 301 Neb. 82 We review the imposition of a sentence for an abuse of discretion. The sentence and conditions imposed are within the statutory limits.8 We have reviewed the presentence report and further conclude that the sentence and conditions are not otherwise an abuse of discretion.9 Shaull’s arguments on appeal are without merit. CONCLUSION The sentence of the district court is affirmed. A ffirmed.  8 § 28-105.  9 See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). 

16 F.3d 380 62 USLW 2483, 29 U.S.P.Q.2d 1550 In re Brian W. BAIRD, Art F. Diaz, William H. Dickstein andCharles M. Seymour. No. 93-1262. United States Court of Appeals,Federal Circuit. Jan. 19, 1994. John A. Brady, Lexmark Intern., Inc., Lexington, Kentucky, argued, for appellant. Adriene B. Lepiane, Asst. Sol., Office of the Sol., Arlington, VA, argued, for appellee. With her on the brief were Fred E. McKelvey, Sol. and Richard E. Schafer, Associate Sol. Before MICHEL, PLAGER and LOURIE, Circuit Judges. LOURIE, Circuit Judge. 1 Applicants Brian W. Baird, Art F. Diaz, William H. Dickstein, and Charles M. Seymour (collectively Baird)1 appeal from the October 15, 1992 decision of the U.S. Patent and Trademark Office (PTO) Board of Patent Appeals and Interferences, Appeal No. 92-0860, affirming the examiner's final rejection of claims 1-5 of application Serial No. 07/333,524, entitled "Flash Fusible Toner Resins," as unpatentable on the ground of obviousness under 35 U.S.C. Sec. 103 (1988). We reverse. BACKGROUND 2 Baird's application is directed to a flash fusible toner comprising a polyester of bisphenol A and an aliphatic dicarboxylic acid. Synthesis of the toner compositions involves the acetylation of bisphenol A and the reaction of that product with an aliphatic dicarboxylic acid selected from the group consisting of succinic acid, glutaric acid, and adipic acid. The application discloses that toners containing bisphenol A have optimal characteristics for flash fusing including, inter alia, high thermal stability and low critical surface energy. 3 Claim 1, the only claim at issue, reads as follows: 4 1. A flash fusible toner comprising a binder resin which is a bisphenol A polyester containing an aliphatic di[carboxylic] acid selected from the group consisting of succinic acid, glutaric acid and adipic acid. 5 Claim 1 stands rejected as obvious over U.S. Patent 4,634,649 to Knapp et al., which relates to developer compositions comprised of, inter alia, the polymeric esterification product of a dicarboxylic acid and a diphenol of the following generic formula: 6 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 7 wherein R is selected from substituted and unsubstituted alkylene radicals having from about 2 to about 12 carbon atoms, alkylidene radicals having from 1 to 12 carbon atoms and cycloalkylidene radicals having from 3 to 12 carbons atoms; R' and R" are selected from substituted and unsubstituted alkylene radicals having from 2 to 12 carbon atoms, alkylene arylene radicals having from 8 to 12 carbon atoms and arylene radicals; X and X' are selected from hydrogen or an alkyl radical having from 1 to 4 carbon atoms; and each n is a number from 0 (zero) to 4. 8 Col. 4, lines 16-38. The Knapp formula contains a broad range of variables and thus encompasses a large number of different diphenols, one of which is bisphenol A, which is shown in Baird's application as having the following structure: 9 NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE 10 Knapp also discloses that the dicarboxylic acids have the general formula: 11 HOOCR" 'n3 COOHwherein R" ' is a substituted or unsubstituted alkylene radical having from 1 to 12 carbon atoms, arylene radicals or alkylene arylene radicals having from 10 to 12 carbon atoms and n3 is a number of less than 2. 12 Col. 5, lines 6-14. Twenty typical dicarboxylic acids are recited, including succinic acid, glutaric acid, and adipic acid, the dicarboxylic acids recited in claim 1. 13 The examiner rejected claim 1 as obvious on the ground that Knapp specifically discloses as components of his esters the three dicarboxylic acids recited in claim 1 and a generic formula which encompasses bisphenol A. Recognizing that bisphenol A is defined when certain specific variables are chosen, the examiner reasoned that bisphenol A "may be easily derived from the generic formula of the diphenol in [Knapp] and all the motivation the worker of ordinary skill in the art needs to arrive at the particular polyester of the instant claim[ ] is to follow [that formula]." 14 The Board upheld the examiner's rejection. It rejected Baird's argument that there was no motivation for one to select bisphenol A from Knapp and summarily concluded that "the fact that [the claimed] binder resin is clearly encompassed by the generic disclosure of Knapp ... provides ample motivation for the selection of [the claimed composition]." Slip op. at 3. The Board's decision was affirmed on reconsideration. DISCUSSION 15 The only issue before us is whether the record supports the Board's conclusion that, in view of the teachings of Knapp, the claimed compounds2 would have been obvious to one of ordinary skill in the art. We review an obviousness determination by the Board de novo, while we review underlying factual findings for clear error. In re Beattie, 974 F.2d 1309, 1311, 24 USPQ2d 1040, 1041 (Fed.Cir.1992). 16 Baird does not dispute the fact that the generic diphenol formula of Knapp encompasses bisphenol A. Nor does Baird dispute that Knapp specifically discloses the three dicarboxylic acids recited in claim 1. Rather, Baird argues that there is no suggestion in Knapp to select bisphenol A from the vast number of diphenols covered by the generic formula and that the Board thus erred in concluding that the claimed compounds would have been obvious. 17 What a reference teaches is a question of fact. Beattie, 974 F.2d at 1311, 24 USPQ2d at 1041. The fact that a claimed compound may be encompassed by a disclosed generic formula does not by itself render that compound obvious. In re Jones, 958 F.2d 347, 350, 21 USPQ2d 1941, 1943 (Fed.Cir.1992) (rejecting Commissioner's argument that "regardless [ ] how broad, a disclosure of a chemical genus renders obvious any species that happens to fall within it"). Jones involved an obviousness rejection of a claim to a specific compound, the 2-(2'-aminoethoxy)ethanol salt of 2-methoxy-3,6-dichlorobenzoic acid (dicamba), as obvious in view of, inter alia, a prior art reference disclosing a genus which admittedly encompassed the claimed salt. We reversed the Board's rejection, reasoning that the prior art reference encompassed a "potentially infinite genus" of salts of dicamba and listed several such salts, but that it did not disclose or suggest the claimed salt. Id. 18 In the instant case, the generic diphenol formula disclosed in Knapp contains a large number of variables, and we estimate that it encompasses more than 100 million different diphenols, only one of which is bisphenol A. While the Knapp formula unquestionably encompasses bisphenol A when specific variables are chosen, there is nothing in the disclosure of Knapp suggesting that one should select such variables. Indeed, Knapp appears to teach away from the selection of bisphenol A by focusing on more complex diphenols, including 2,2-bis(4-beta-hydroxyethoxyphenyl)propane, 2,2-bis(4-hydroxypropoxyphenyl)propane, and 2,2-bis(4-hydroxyisopropoxyphenyl)propane. Col. 4, lines 51-64. Knapp teaches that in preferred diphenols, R has 2 to 4 carbon atoms and R' and R"' have 3 to 4 carbon atoms, and in "optimum" diphenols, R is an isopropylidene radical, R' and R" are selected from the group consisting of propylene and butylene radicals, and n is one. Col. 4, lines 38-47. Knapp further states that the diphenol in the preferred polyester material is 2,2-bis(4-hydroxyisopropoxyphenyl)propane. Col. 5, lines 36-38. Fifteen typical diphenols are recited. None of them, or any of the other preferred phenols recited above, is or suggests bisphenol A. 19 The Commissioner repeatedly emphasizes that many of the diphenols specifically enumerated in Knapp are derivatives of bisphenol A. He argues that Knapp thus suggests the selection of bisphenol A itself. We disagree, because, according to the specification, the diphenol in the esters of claim 1 can only be bisphenol A, not a bisphenol A derivative. While Knapp may suggest certain complex bisphenol A derivatives, it does not describe or suggest bisphenol A and therefore does not motivate the selection of bisphenol A. 20 "[A] reference must be considered not only for what it expressly teaches, but also for what it fairly suggests." In re Burckel, 592 F.2d 1175, 1179, 201 USPQ 67, 70 (CCPA 1979). Given the vast number of diphenols encompassed by the generic diphenol formula in Knapp, and the fact that the diphenols that Knapp specifically discloses to be "typical," "preferred," and "optimum" are different from and more complex than bisphenol A, we conclude that Knapp does not teach or fairly suggest the selection of bisphenol A. See In re Bell, 991 F.2d 781, 26 USPQ2d 1529 (Fed.Cir.1993) (DNA sequence would not have been obvious in view of prior art reference suggesting a nearly infinite number of possibilities and failing to suggest why among all those possibilities one would seek the claimed sequence). A disclosure of millions of compounds does not render obvious a claim to three compounds, particularly when that disclosure indicates a preference leading away from the claimed compounds. CONCLUSION 21 The Board clearly erred in finding that Knapp would have provided the requisite motivation for the selection of bisphenol A in the preparation of the claimed compounds. Accordingly, the decision of the Board affirming the rejection of claim 1 as obvious over Knapp is reversed. COSTS 22 No costs. REVERSED 1 The real party in interest is Lexmark International, Inc 2 Since the toner, the resin, and the polyester compounds appear to be treated in the Board opinion and patent application as synonymous, and the PTO has premised its obviousness rejection on the obviousness of the compounds, we will treat this case accordingly

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ GAMECASTER, INC., Appellant, v. DREAMWORKS ANIMATION SKG, INC., Appellee. ______________________ 2014-1380 ______________________ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in reexamination No. 95/000,493. ______________________ JUDGMENT ______________________ PATRICK F. BRIGHT, Wagner, Anderson & Bright, P.C., of Glendale, California, argued for appellant. CHARLES S. BARQUIST, Morrison & Foerster LLP, of Los Angeles, California, argued for appellee. On the brief were MARC A. HEARRON, of Washington, DC and CHRISTOPHER B. EIDE, of Palo Alto, California. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (PROST, Chief Judge, BRYSON and WALLACH, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT January 8, 2015 /s/ Daniel E. O’Toole Date Daniel E. O’Toole Clerk of Court 

556 F.2d 687 77-2 USTC P 9474 William GELLER and Doris Geller, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 787, Docket 76-4248. United States Court of Appeals,Second Circuit. Argued April 6, 1977.Decided June 10, 1977. 1 Irwin Geller, New York City, for petitioners-appellants. 2 Myron C. Baum, Acting Asst. Atty. Gen., Gilbert E. Andrews, William A. Friedlander, and Sharon A. Calegari, Attys., Tax Div., Dept. of Justice, Washington, D. C., for respondent-appellee. 3 Before OAKES, Circuit Judge, HOLDER, District Judge,* and WYZANSKI, Senior District Judge.** WYZANSKI, Senior District Judge: 4 Taxpayers, William and Doris Geller, who, as husband and wife, filed joint federal income tax returns, appeal from the August 18, 1976 order of the United States Tax Court deciding that there are deficiencies in income taxes due from both of them in specified amounts for the years 1965 and 1966 and that for the same years there are additions to the tax, pursuant to Section 6653(b) of the Internal Revenue Code of 1954, due from William Geller. 5 The principal questions are (1) whether in either 1965 or 1966 or both years William Geller made "a false or fraudulent return with the intent to evade tax", or a "willful attempt to evade tax", so that, pursuant to Section 6501(c)(1) or (2) of the Internal Revenue Code of 1954, assessments and proceedings with respect to such year or years are not governed by the 3 year period of limitation provided in Section 6501(a) of the Code, and (2) whether in either 1965 or 1966 or both years, any part of any underpayment of the tax required to be shown on a return was due to the fraud of Dr. Geller so that "there shall be added to the tax (due from him) an amount equal to 50 percent of the underpayment", in accordance with Section 6653(b) of the Code. 6 The facts found by the Tax Court are to the following effect. 7 In each of the years 1965 and 1966 Dr. and Mrs. Geller filed a joint federal income tax return reporting that they owed no tax. In the first of those years they reported that their sole taxable income was from his practice of medicine which was overbalanced by his business deductions. In the second of those years they reported that their sole taxable income was from his practice of medicine and that, after business deductions, their gross profit was only $3,092.15. In neither year did taxpayers show income from dividends, securities transactions, or any source other than from Dr. William Geller's medical practice. 8 Before either of the taxable years now under scrutiny, that is to say in 1953 and 1954, Dr. Geller had filed federal tax returns upon the basis of which he was convicted of the crime of willful evasion of tax, and which led to his making in 1964 a compromise settlement of the government's civil claims. In support of that settlement, Dr. Geller filed on Form 433 statements of financial condition asserting that he had assets of only $650 and liabilities, (not including federal income taxes,) of $30,000 and that from 1956 through 1963 he did not have sufficient income to require him to file federal income tax returns. 9 In the years 1965 and 1966 the ones now in issue Dr. and Mrs. Geller in their tax returns made no reference to the "2377 Creston Corporation" or to any receipts therefrom. That corporation had been incorporated in 1950 by Dr. Geller, his wife, and her sister, Regina Strasfeld. They had become the sole directors and shareholders of that corporation. It was located at the taxpayers' residence, 135 Ridge Street, New York City. The corporation engaged in the real estate business and securities trading. 10 In 1965 that corporation filed a federal corporate income tax return, signed by appellant William Geller as president, in which it reported $117,184.19 gross income from the installment sale of a building sold by it in a prior year, and $70,859.70 income from dividends before the dividends-received deduction. 11 In 1966 that corporation again filed a federal income tax return, again signed by William Geller. It reported no installment income, but a taxable loss of $10,224.09. 12 For both 1965 and 1966 the 2377 Creston Corporation corporate income tax returns were prepared by Mason S. Greenland, an accountant, from figures supplied by Dr. Geller. Dr. Geller did not give Greenland books of original entry, but merely total figures of alleged income and expenses. The corporate returns for 1965 and 1966 showed balance sheets of the corporation indicating that its assets in cash which had been $242,622.70 on December 31, 1964 had been reduced by the end of 1965 to $12,128.48 and by the end of 1966 to zero. Among the liabilities, however, long term mortgages and notes were also reduced from $210,072.86 at the end of 1964, to $52,282.86 in 1965, to zero in 1966. Without explanation, surplus reserves which stood at $143,592.24 on December 31, 1964 were stated as being "zero" as of December 31, 1965 and again as of December 31, 1966. 13 In its 1965 return the corporation showed that it paid compensation of $7,000 to Murray L. Geller, (the 24 year old son of taxpayers), as secretary, and of $5,200 to Irwin Geller, (the 21 year old son of taxpayers), who is referred to as "president" (despite other documents which indicate that his father, Dr. Geller, was president). In its 1966 return the corporation showed no compensation of officers. 14 On June 17, 1965 Dr. Geller personally opened with the firm of Merrill Lynch, Pierce, Fenner & Smith a brokerage account in the name of "Wolf Geller". (Appellants' brief in this Court virtually concedes that this was a name used by Dr. Geller as though it were his own; and that he intended to have the account benefit him and not any other person known to him.) Dr. Geller gave as Wolf Geller's address 318 East 149th Street, Bronx, New York, which was the business address of Morris Geller, Dr. Geller's brother. Dr. Geller informed the brokers that his own net worth was $150,000. 15 There was deposited in the aforesaid brokerage account $203,612.78 in 1965 and $24,151.25 during 1966. Among the 1965 deposits were four checks totalling $15,067.19, each of which was drawn upon an account of 2377 Creston Corporation in a different savings institution from which Dr. Geller had been authorized by the corporation to make withdrawals. Each check bore the successive endorsements of "William Geller", "Wolf Geller", and "Merrill Lynch, Pierce, Fenner & Smith". 16 For the account they had in the name of Wolf Geller, Merrill Lynch, pursuant to telephone orders from Dr. Geller, bought in 1965 bearer bonds costing $203,992.38, and in 1966 bearer bonds costing $24,151.25. Those bonds had been issued by agencies of the State of New York, and the coupon interest payable on them was exempt from federal and state personal income taxes payable by New York individual taxpayers. On at least six occasions Merrill Lynch delivered by hand some of those bonds to Dr. Geller who was accompanied by either his son or another young man. On other occasions Merrill Lynch mailed some of those bonds to "Wolf Geller" at the address of Dr. Geller's brother. 17 The Commissioner determined that Dr. Geller had fraudulently underreported his income and that Dr. and Mrs. Geller had understated their taxable income by $203,612.78 in 1965 and by $24,151.25 in 1966. Those are the exact cost prices of the bonds delivered or mailed by Merrill Lynch to Dr. Geller or Wolf Geller. 18 After adjusting for deductions, the Commissioner determined that the taxpayers' additional normal tax liabilities were $111,123.57 for 1965 and $5,598.89 for 1966, with additions only in the case of Dr. Geller of $55,561.79 for 1965 and $2,799.45 for 1966, claimed to be due, in accordance with Section 6653(b) of the Internal Revenue Code of 1954, on account of his frauds. 19 The taxpayers having sought review in the Tax Court, that tribunal made ultimate findings of fact that in 1965 the taxpayers received, but failed to report, income of $203,612.78 and in 1966 of $24,151.25, and that Dr. Geller fraudulently omitted income on his 1965 and 1966 federal income tax returns, with an intent to evade the tax. 20 In an opinion accompanying the order, Judge Quealy of the Tax Court ruled (1) that it had not been arbitrary for the Commissioner to have determined that the unexplained deposits in the account at Merrill Lynch in the name of Wolf Geller were income of Dr. Geller, (2) that inasmuch as the Commissioner's determination was supported by evidence and was neither arbitrary nor unreasonable, a presumption of correctness attaches to the Commissioner's determination, (3) that the Commissioner's notice of deficiency adequately informed Dr. Geller of the basis for the proposed determination, (4) that Dr. Geller did not point to any evidence which the Commissioner obtained through illegal acts, (5) that the Commissioner had not withheld from Dr. Geller evidence helpful to his case, (6) that the Merrill Lynch records were admissible as business records, (7) that the Tax Court did not believe the testimony of Dr. Geller that (a) in Merrill Lynch transactions he acted as his brother's agent or that the brokerage account was for his brother's account, or (b) that "Wolf Geller" was the name of a genuine person or the Hebrew name of Dr. Geller, or (c) that all the bonds were mailed by Merrill Lynch and were not delivered by hand to Dr. Geller personally in six instances, and (8) that the evidence affirmatively showed that Dr. Geller's activities were conducted with fraudulent intent, as, for instance, when he attempted to conceal his deposits to the brokerage account, when he opened the account in a name other than the one which he normally used, and when he failed to keep records of the sources of his deposits. The Tax Court judge concluded that Dr. Geller "fraudulently understated his income with the intention of evading taxes. Accordingly, the statute of limitations does not bar the assessment, and . . . (Dr. Geller) . . . is liable for the addition to tax under Section 6653(b)" of the Internal Revenue Code of 1954. The Tax Court also accepted as correct the Commissioner's determinations of amounts of underreporting of income by Dr. and Mrs. Geller. 21 On August 18, 1976 the Tax Court issued its order that there were due from Dr. and Mrs. Geller deficiencies of $111,123.57 for 1965 and $5,598.89 for 1966, and were due from Dr. Geller additions to tax, pursuant to Section 6653(b) of the Internal Revenue Code of 1954 of $55,561.79 for 1965 and $2,799.45 for 1966. 22 In their appeal to this Court the taxpayers contend that (I) the Tax Court erroneously applied a presumption of correctness in favor of the Commissioner's determination that the disputed deposits were income to them, (II) the Commissioner failed to bear his burden of proof by clear and convincing evidence, (III) the Tax Court's finding of fraud is inconsistent with (a) the likelihood that Dr. Geller foresaw that because of his prior detected wilful evasions of federal income taxes the Internal Revenue Service would carefully examine corporate returns signed by him, (b) the facts that the Merrill Lynch account showed the name of the customer as Wolf Geller and the customer's address as the business office of Dr. Geller's brother and it was to that address that the bonds were mailed, and (c) the fact that the living expenses of Dr. Geller were "extremely moderate", (IV) the Commissioner made a "less than rudimentary" investigation into the ownership of the bonds, and (V) the Tax Court improperly cited "Exhibit S for identification", a memorandum not admitted in evidence, and makes an unsupported statement that Dr. Geller refused to meet with the Commissioner's agents in connection with an inquiry into his individual tax liability. 23 The taxpayers pray that because of the Commissioner's supposed failure to prove fraud, and failure to perform his investigative duties, the decision of the Tax Court should be reversed, with a direction to enter decision for the taxpayers on the ground that the three-year period of limitations fixed by Section 6501 of the Internal Revenue Code of 1954 barred the Commissioner's assessments. 24 On the basis of our examination of the record we affirm the order of the Tax Court on the ground that there is, without the aid of any presumption, clear and convincing evidence of the fact, and the amount, of the fraud of the taxpayer Dr. William Geller. As will appear, our reasoning differs from that of the Tax Court, but is, nonetheless, wholly consistent with the Commissioner's determinations and with the presentation of the case. 25 We do not pause over the possibly improper but certainly non-prejudicial references in Judge Quealy's opinion to "Exhibit S for identification" and to the alleged uncooperativeness of Dr. Geller in the investigation of his taxes. We look at the record as a whole which has a constant drum beat of fraud to which our ears are not deaf. 26 Dr. Geller, even according to admissions in his own counsel's brief, was shown to be a man who, despite the fact that in 1965 and 1966 he was making no money from his profession as a doctor, had no acknowledged outside income, and in the previous year, 1964, had filed, in order to compromise federal income tax liabilities of $170,414.67, Form 433 wherein he stated that he had assets of only $650 and liabilities, not including federal income taxes, of $30,000, was living at an "extremely moderate" standard. Thus, it is plain that, by his own account, Dr. Geller must have been using moneys from either charity, gifts, non-reportable income, or non-reported income. 27 Among those possible sources the last was directly pointed to by the accusatory finger of fact. Dr. Geller personally received, by hand delivery from Merrill Lynch, on six separate occasions, bearer bonds issued by agencies of the State of New York, and carrying interest coupons which when paid would not constitute taxable income, under either federal or state law. Merrill Lynch mailed similar bonds to "Wolf Geller" at the address of Dr. Geller's brother. Certainly those bonds were not charitable gifts from Merrill Lynch. Nor were they bought from deposits made with Merrill Lynch by some good Samaritan. In each case the bonds had been purchased by Merrill Lynch for an account listed under the name of "Wolf Geller". That name had been furnished to Merrill Lynch by Dr. Geller when he personally opened the account with Merrill Lynch and gave them a statement of his own net worth. 28 The only deposits to that account which were fully traced were four checks, totalling $15,067.19. Each of those checks was drawn upon a savings institution in which there was an account in the name of 2377 Creston Corporation, a corporation for which Dr. Geller was authorized to act. Each check was endorsed in the names of Dr. Geller as authorized agent for that corporation, "Wolf Geller", and Merrill Lynch. Moreover it is an irresistible inference that it was Dr. Geller who deposited with Merrill Lynch for the "Wolf Geller" account all the other sums credited to that account, and which, together with the aforesaid checks, totalled $203,612.78 in 1965 and $24,151.25 in 1966. 29 It is not necessary for the Commissioner, or for the Tax Court, or for us to know in detail how, where, why, and when Dr. Geller got the funds he deposited in the brokerage account. According to his own statement on Form 433 he had no assets in 1964. We need not indulge in the absurd hypothesis that a relative or friend gave him, or that on the sidewalks of New York he found, more than $200,000. It is transparent that he received from somewhere taxable income which he deposited in the brokerage account. 30 However, if we were required to trace the source, the record would be adequate. 31 In 1965 and 1966 there was an unexplained decline of $143,592.24 in the surplus reserves and a partially unexplained decline in the cash assets of 2377 Creston Corporation, an entity created by, controlled by, and acting obviously as an alter ego of, Dr. Geller, and as nothing else whatsoever. Dr. Geller was president, and he, his wife, and his sister-in-law were the sole shareholders, of 2377 Creston Corporation, and he and his 24 and 21 year old sons were the only officers. That corporation in 1964 had assets of $471,732.60 and liabilities of only $210,072.86 for long term mortgages and notes, as well as liabilities for common stock, surplus reserves, and earned surplus. On December 31, 1966 it had assets of only $145,227.20 and no liabilities whatsoever aside from common stock and earned surplus. Thus it is transparent that Dr. Geller took funds from 2377 Creston Corporation, deposited them in the "Wolf Geller" account at Merrill Lynch, and ordered Merrill Lynch to buy bearer bonds of what is commonly called a "tax-exempt" type. 32 But, plain as is what were the sources of the deposits to the Merrill Lynch account, what is far more significant is what were the withdrawals from that account. Clear and convincing is the evidence that the bonds in that account were delivered to Dr. Geller, often under a pseudonym, sometimes in person, sometimes by mail. Those bonds were income to him. The receipt of them under a pseudonym was part of a fraudulent scheme. The omission of reference in the tax return to those bonds which represented such a large part of the income of Dr. Geller could be due only to fraud. And the amount of the underreporting is clearly established by the cost of the bonds. 33 Each link in the Commissioner's determination, and, for that matter, in the Tax Court's opinion, has a tight grip upon each successive member of the chain. In this iron linkage, no gossamer threads of presumption as to the fact of, or the size of, the fraud are required. Dr. Geller has been caught dollar by dollar in his fraudulent scheme. 34 The suggestion in the taxpayers' brief that when the evidence clearly and convincingly proves a taxpayer's fraud there remains some obligation upon the Commissioner to pursue every possible lead to see if he can exculpate the taxpayer can perhaps be best described in the present context as "presumptuous". The question raised by appellants, as to whether a public officer who detects a person making statements when the officer is persuaded are not merely false but made with knowledge of their falsity must then undertake a search for evidence that the detected person has a possible basis for exculpation, is preposterous. To quote an oft-repeated phrase of Chief Justice Edward Douglas White "to state the question is to give the answer". If there is a way "out of blame" it is the errant taxpayer who must find the avenue of escape from the corner in which he has been caught. 35 Judgment enforcing the Tax Court's August 18, 1976 order. * Chief Judge for the District of Vermont, sitting by designation ** Senior District Judge for the District of Massachusetts, sitting by designation

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-20-00060-CV In the Interest of S.T., a Child From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2018-CI-15371 Honorable Mary Lou Alvarez, Judge Presiding PER CURIAM Sitting: Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice Delivered and Filed: April 22, 2020 DISMISSED FOR LACK OF JURISDICTION On March 10, 2020, the trial court clerk filed a notification of late record, stating that the appellant had failed to pay or make arrangements to pay the fee for preparing the clerk’s record. In response, we ordered appellant to provide written proof to this court on or before March 26, 2020, that either (1) the clerk’s fee had been paid or arrangements had been made to pay the clerk’s fee; or (2) appellant was entitled to appeal without paying the clerk’s fee. We warned that if appellant failed to file an appropriate response within the time provided, this appeal would be dismissed. See TEX. R. APP. P. 37.3(b) (allowing dismissal of appeal if clerk’s record is not filed due to appellant’s fault); see also TEX. R. APP. P. 42.3(c) (allowing dismissal of appeal if appellant fails to comply with an order of this court). Appellant failed to file an appropriate response. Therefore, we dismiss this appeal. See TEX. R. APP. P. 37.3(b); see also TEX. R. APP. P. 42.3(c). PER CURIAM 

UNITED STATES, Appellee v. Hector R. GONZALEZ Jr., Airman First Class U.S. Air Force, Appellant No. 03-0394 Crim. App. No. 34691 United States Court of Appeals for the Armed Forces Argued October 19, 2005 Decided February 1, 2006 ERDMANN, J., delivered the opinion of the court, in which GIERKE, C.J., and CRAWFORD, EFFRON, and BAKER, JJ., joined. Counsel For Appellant: Captain John N. Page III (argued); Colonel Carlos L. McDade, Colonel Beverly B. Knott, Major Terry L. McElyea, Major Sandra K. Whittington, and Captain Jennifer K. Martwick (on brief). For Appellee: Major Jin-Hwa L. Frazier (argued); Lieutenant Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and Major John C. Johnson (on brief); Captain Matthew J. Mulbarger. Military Judge: Kirk R. Granier This opinion is subject to revision before final publication. United States v. Gonzalez Jr., No. 03-0394/AF Judge ERDMANN delivered the opinion of the court. Airman First Class Hector Gonzalez pled guilty to wrongful possession of marijuana in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a (2000). Gonzalez pled not guilty to wrongful use of ecstasy and carrying a concealed weapon in violation of Articles 112a and 134 of the UCMJ, respectively. 10 U.S.C. §§ 912a, 934 (2000). He was convicted on all of the charges and sentenced to a bad-conduct discharge, 148 days of confinement, forfeiture of all pay and allowances and a reduction in grade to E-1. The convening authority approved the sentence and the findings and sentence were affirmed by the United States Air Force Court of Criminal Appeals in an unpublished opinion. United States v. Gonzalez, No. ACM 34691, 2003 CCA LEXIS 57, 2003 WL 827254 (A.F. Ct. Crim. App. Feb. 28, 2003). On appeal, this court set aside the Air Force court’s decision and remanded for reconsideration of a specified issue. United States v. Gonzalez, 59 M.J. 159 (C.A.A.F. 2003). Following the Air Force court’s ruling on remand, United States v. Gonzalez, No. ACM 34691, 2004 CCA LEXIS 198, 2004 WL 1944723 (A.F. Ct. Crim. App. Aug. 17, 2004), this court again granted review. Where the Government fails to disclose discoverable material pursuant to a specific request, “the appellant will be entitled to relief unless the Government can show that 2 United States v. Gonzalez Jr., No. 03-0394/AF nondisclosure was harmless beyond a reasonable doubt.” United States v. Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004). We have previously held that the Government’s failure to turn over a Brooks Laboratory Discrepancy Report was error under Rule for Courts-Martial (R.C.M.) 701(a)(2)(B). United States v. Jackson, 59 M.J. 330, 335 (C.A.A.F. 2004). We have also held that the Government’s failure to turn over the Discrepancy Report is to be treated as prejudicial error where the other available evidence does not constitute “independent evidence of illegal drug use.” Id. Where there is sufficient independent evidence of illegal drug use, the Government’s error may be treated as harmless. We granted review in this case to determine if there was sufficient independent evidence that Gonzalez had wrongfully used ecstasy. We also considered whether defense counsel was ineffective in failing to discover that that the Discrepancy Report was not provided.1 We find that the Government’s failure to turn over the report was erroneous, but that the error was 1 We granted review of the following issues: WHETHER BRADY v. MARYLAND, 373 U.S. 83 (1963), AND R.C.M. 701 REQUIRED THE GOVERNMENT TO DISCLOSE EVIDENCE REGARDING AN AUGUST 2000 BROOKS LAB ANALYTICAL FALSE POSITIVE URINALYSIS RESULT AND PREJUDICIALLY ERRED IN FAILING TO DO SO. WHETHER THE COURT OF CRIMINAL APPEALS ERRED ON REMAND WHEN IT FOUND NO INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE COUNSEL FAILED TO DISCOVER EXCULPATORY EVIDENCE REGARDING AN AUGUST 2000 BROOKS LAB ANALYTICAL FALSE POSITIVE URINALYSIS RESULT. 3 United States v. Gonzalez Jr., No. 03-0394/AF harmless beyond a reasonable doubt. We also find that that Gonzalez was not denied effective assistance of counsel. BACKGROUND Agents from the Air Force Office of Special Investigations (OSI) called Gonzalez into their office for questioning after a pacifier believed to belong to Gonzalez was found at the Central Quarters (CQ) desk in Gonzalez’s dormitory. The Military Training Leader who found the pacifier knew that Gonzalez had no children and that pacifiers are considered drug paraphernalia associated with ecstasy use. During the OSI interview Gonzalez admitted to sucking on the pacifier found at the CQ desk and attending at least one “rave” party. He claimed that he innocently ingested ecstasy at that rave and he expressed familiarity with the effects of ecstasy. Gonzalez consented to a search of his dormitory room, his car and a rental car. The search uncovered two more pacifiers and more than a dozen fliers advertising raves. Gonzalez also consented to a urinalysis, which was positive for ecstasy,2 and the observer from his drug test testified that Gonzalez behaved oddly during the test, stating that he was “excited” and “talkative” and that “his eyes were a little 2 There was testimony at trial that the metabolites found in Gonzalez’s urine could not have been the result of the alleged innocent ingestion incident, which had allegedly occurred sixteen days earlier. 4 United States v. Gonzalez Jr., No. 03-0394/AF glassy.” Several months later, Gonzalez’s car was searched as he tried to enter Sheppard Air Force Base because Security Forces had reason to believe that Gonzalez had stolen a gun. The search turned up a weapon, as well as a baggie of marijuana. Gonzalez’s urine sample was tested by the Air Force Drug Testing Laboratory at Brooks Air Force Base in early September 2000. Aware that the Government would rely heavily on the results of his drug test, Gonzalez made several discovery requests for background information relevant to the drug-testing program at the Brooks Lab. He asked for reports created at or written about the Brooks Lab, particularly those concerning inspections, “false positives” and “false negatives”, contamination, misplacement and mishandling of samples, and any testing, processing or administrative errors. He also asked for reports written in the month Gonzalez’s sample was tested as well as several preceding and following months. In response the Government produced quality assurance monthly inspection reports for June through October 2000. The Government also produced five months of quality control monthly reports, including a report dated August 10, 2000, which included the annotations “BQC Unacceptable – 1,” and “Technician Error – 1”. The Government also produced fourteen discrepancy 5 United States v. Gonzalez Jr., No. 03-0394/AF reports, including five from August 2000 and one from September 2000.3 The Government did not, however, produce an August 2, 2000 Discrepancy Report, which explained that on July 31, 2000 the lab had improperly identified a negative “blind quality control” specimen as positive for cocaine metabolites. That report also explained that no conclusion could be drawn about what caused the false positive result and that all lab personnel were encouraged to “pay closer attention” to their tasks. The false positive quality control sample was processed by the lab one month before Gonzalez’s sample was tested and at least one of the employees who handled the misidentified quality control sample also handled Gonzalez’s sample. It is of some significance that the Discrepancy Report which was not produced was the only one that described a false positive result. The others produced by the Government concerned ten incidents where the intralaboratory chain of custody was broken –- including several instances of employees forgetting to properly sign or annotate the chain of custody sheet, one where a chemist failed to perform an “in-run prime” 3 A discrepancy report is generated any time the Quality Assurance section of the Brooks Lab determines that there was some deviation from standard procedures or some problem with a quality control sample. The report identifies each individual who handled the specimen in question, reaches a conclusion about the cause and impact of the error and makes a recommendation about how similar problems can be avoided in the future. 6 United States v. Gonzalez Jr., No. 03-0394/AF when restarting the equipment after a mechanical failure, one instance of unacceptable chromatography, and two incidents of improperly performed extractions. At trial, Lieutenant Colonel Dale Haak, an Army Drug Testing Program Manager and expert in forensic toxicology and biochemistry, testified concerning the results of Gonzalez’s drug test, as well as the Brooks Lab quality control procedures. He testified about the difference between internal and external, and open and blind quality controls. He testified that Brooks Lab has never misanalyzed an external quality control sample and that there was no error with regard to the controls run in the same batch as Gonzalez’s sample. On cross-examination, however, Haak testified that internal blind quality control samples come back with incorrect results approximately two percent of the time. DISCUSSION I. Failure to Produce August 2 Discrepancy Report Rule for Courts-Martial 701 (a)(2)(B) requires the Government, upon request, to turn over “results or reports . . . of scientific tests or experiments” that are “material to the preparation of the defense.” When a defendant makes a specific request for discoverable information, it is error if the Government does not provide the requested information, and “the appellant will be entitled to relief unless the Government can 7 United States v. Gonzalez Jr., No. 03-0394/AF show that nondisclosure was harmless beyond a reasonable doubt.” Roberts, 59 M.J. at 327. Harmless beyond a reasonable doubt is a high standard, but it is not an impossible standard for the Government to meet. See Neder v. United States, 527 U.S. 1, 18 (1999) (“To set a barrier so high that it could never be surmounted would justify the very criticism that spawned the harmless-error doctrine in the first place: ‘Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.’”) (quoting R. Traynor, The Riddle of Harmless Error 50 (1970)); United States v. Vazquez-Rivera, 407 F.3d 476, 489-90 (1st Cir. 2005) (describing harmless beyond a reasonable doubt as “an extremely difficult, but not impossible, standard to meet”). We have previously held that the Government’s failure to turn over the August 2 Discrepancy Report should be treated as prejudicial error where the other available evidence does not constitute “independent evidence of illegal drug use.” Jackson, 59 M.J. at 335. There is no dispute in this case that Gonzalez made a specific request for documents concerning the operations and accuracy of the Brooks Lab. It is equally clear that the Government did not produce the August 2 Discrepancy Report. The Government’s failure to provide the Discrepancy Report violated Gonzalez’s right to discovery under R.C.M. 701(a)(2)(B). 8 United States v. Gonzalez Jr., No. 03-0394/AF Jackson, 59 M.J. at 335. Thus, there was error and the burden is on the Government to show that it was harmless beyond a reasonable doubt. With respect to prejudice, this case differs from our prior cases due to the level and character of the independent evidence of illegal drug use. See Jackson, 59 M.J. at 335; see also United States v. Israel, 60 M.J. 485, 486 (C.A.A.F. 2005). In addition to the positive drug test, the prosecution introduced independent evidence of drug use including evidence that Gonzalez had drug paraphernalia associated with ecstasy both in his car and at his work station, and that he had sucked on at least one of the pacifiers.4 Gonzalez also admitted that he attended at least one rave party and had fliers for thirteen rave parties in his car. Although drug use is not a necessary element of a rave, the two are often linked.5 4 Pacifiers are linked to ecstasy because they alleviate the involuntary tightening of the jaw muscles and grinding of the teeth that can be caused by ecstasy use. See McClure v. Ashcroft, 335 F.3d 404, 407 (5th Cir. 2003). 5 Merriam-Webster’s Collegiate Dictionary defines a rave as “a large overnight dance party featuring techno music and usu[ally] involving the taking of mind-altering drugs.” Merriam-Webster’s Collegiate Dictionary 1033 (11th ed. 2004); see also Nat’l Drug Intelligence Center, U.S. Dep’t of Justice, Information Bulletin: Raves, Prod. No. 2001-L0424-004 (Apr. 2001), available at http://www.prevlink.org/clearinghouse/catalog/drugs/club_drugs/r aves.pdf (last visited Feb. 1, 2006) (“While techno music and light shows are essential to raves, drugs such as MDMA . . . [ecstasy], ketamine, GHB . . . , Rohypnol, and LSD . . . , have become an integral component of the rave culture.”); United 9 United States v. Gonzalez Jr., No. 03-0394/AF Gonzalez also admitted to prior drug use and to possession. He told investigators that he innocently ingested ecstasy at a rave he attended and testified that he was familiar with its effects. The observer at Gonzalez’s drug test testified that he behaved oddly during the test and that he was “excited” and “talkative” and that “his eyes were a little glassy.” Additionally, Gonzalez pled guilty to possessing marijuana. We have taken into account the available independent evidence that Gonzalez used ecstasy and weighed that evidence against the claimed error. Although the missing Discrepancy Report may have raised some questions about the accuracy of the testing process at the Brooks Lab, we also considered that Gonzalez’s urine sample was subjected to four different tests, each of which showed positive for ecstasy use. When the missing report is balanced with the evidence arrayed against Gonzalez, the scales tip strongly in favor of Gonzalez’s conviction. Thus, we conclude that the Government’s error in failing to produce the Discrepancy Report was harmless beyond a reasonable doubt. States v. Price, No. ACM 33503, 2001 CCA LEXIS 103, at *10, 2001 WL 322121, at *3 (A.F. Ct. Crim. App. Mar. 30, 2001) (defining a rave as “a dance or music party at which drugs are known to be readily available”); People v. Fitzner, No. 233210, 2002 Mich. App. LEXIS 1885, at *1 n.2 2002 WL 31947943, at *1 n.2 (Mich. Ct. App. Dec. 3, 2002) (“a ‘rave’ party is marked by dancing, music and drugs, often in an abandoned warehouse and typically ‘after hours’”). 10 United States v. Gonzalez Jr., No. 03-0394/AF Our finding of harmlessness is further supported by testimony elicited at trial concerning internal blind quality control error rates at the Brooks Lab. Although the August 2 Discrepancy Report was not produced, defense counsel had sufficient information to attack the reliability of the laboratory testing process. During the cross-examination of Haak, defense counsel elicited testimony that approximately two percent of internal blind aliquots are reported as false positives or with other incorrect results. Thus, while the Government’s failure to produce the Discrepancy Report remains error, the evidence the defense would have introduced if it had the Discrepancy Report would have been to some degree cumulative of the overall false positive rate already in evidence. In addition, Gonzalez was tried by a military judge sitting alone. The expert testimony provided by Haak was of a type that is regularly considered by military judges. Accordingly, it is unlikely that the missing Discrepancy Report would have had a substantial impact on the military judge’s ruling in light of the four different positive test results that were also in evidence. II. Ineffective Assistance of Counsel Servicemembers are guaranteed the right to effective assistance of counsel at trials by court-martial. United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005) (citing United States 11 United States v. Gonzalez Jr., No. 03-0394/AF v. Knight, 53 M.J. 340, 342 (C.A.A.F. 2000)). Gonzalez alleges that he received ineffective assistance of counsel because his counsel failed to determine, based on the documents produced by the Government, that the August 2 Discrepancy Report existed and had not been produced. Under Strickland v. Washington, 466 U.S. 668, 687 (1984), Gonzalez must show both that his counsel’s performance was deficient and that the deficiencies were so serious as to deprive him of a fair trial. An appellant “who seeks to relitigate a trial by claiming ineffective assistance of counsel must surmount a very high hurdle.” United States v. Saintaude, 61 M.J. 175, 179 (C.A.A.F. 2005) (quoting United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997) (quotation marks omitted)). There is a presumption that counsel provided adequate professional service. United States v. Garcia, 59 M.J. 447, 450 (C.A.A.F. 2004). This presumption is rebutted only by “a showing of specific errors made by defense counsel that were unreasonable under prevailing professional norms.” Davis, 60 M.J. at 473 (citing United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001)). In addition, even where counsel made an error, the error must have been so prejudicial “as to indicate a denial of a fair trial or a trial whose result is unreliable.” Davis, 60 M.J. at 473 (citing United States v. Dewrell, 55 M.J. 131, 133 (C.A.A.F. 2001)). As we have previously explained, 12 United States v. Gonzalez Jr., No. 03-0394/AF this court applies a three-prong test to determine if the presumption of competence has been overcome: (1) Are the allegations true; if so, “is there a reasonable explanation for counsel’s actions?”; (2) If the allegations are true, did defense counsel’s level of advocacy fall “measurably below the performance . . . [ordinarily expected] of fallible lawyers?”; and (3) If defense counsel was ineffective, is there a “reasonable probability that, absent the errors,” there would have been a different result? Garcia, 59 M.J. at 450 (citing United States v. Grigoruk, 56 M.J. 304, 307 (C.A.A.F. 2002)). Where the case can be resolved by addressing the third prong -- the question of prejudice -- first, the court need not determine whether counsel’s performance was deficient. United States v. Quick, 59 M.J. 383, 386 (C.A.A.F. 2004) (citing Strickland, 46 U.S. at 697). Applying the Grigoruk three-prong test, we find that Gonzalez did not receive ineffective assistance of counsel because there is no reasonable probability that the missing Discrepancy Report would have produced a different result. As we noted above, there was enough independent evidence that Gonzalez used ecstasy that the Government’s failure to turn over the report was harmless error. For the same reasons, we cannot say that if defense counsel had read all of the materials that were produced, drawn all reasonable inferences and conclusions from the materials and made further inquiry into the meaning of 13 United States v. Gonzalez Jr., No. 03-0394/AF the notations “BQC Unacceptable – 1” and “Technician Error – 1,” any additional documents that might have been produced by the Government would have changed the outcome of this case, especially in light of the fact that it was a bench trial. As Gonzalez has not established that his counsel’s performance prejudiced the outcome of his case, he has not established that his Sixth Amendment right to counsel was violated. DECISION The decision of the Court of Criminal Appeals for the United States Air Force is affirmed. 14 

644 F.2d 880 Murdockv.Sutton 79-6803 UNITED STATES COURT OF APPEALS Fourth Circuit 2/3/81 1 E.D.N.C. AFFIRMED

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________________ No. 12-2767 _________________ NIZAR AL-SHARIF, Appellant v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES _________________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 10-cv-01435) District Judge: Honorable Claire C. Cecchi __________________ Argued before Original Panel on June 13, 2013 Submitted Sua Sponte En Banc on August 15, 2013 Before: McKEE, Chief Judge, RENDELL, AMBRO, FUENTES, SMITH, FISHER, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SCIRICA and VAN ANTWERPEN, Circuit Judges.  (Filed: August 19, 2013) Thomas E. Moseley [ARGUED] Suite 2600 One Gateway Center Newark, NJ 07102-0000 Attorneys for Plaintiff-Appellant Bradley B. Banias Timothy M. Belsan [ARGUED] United States Department of Justice Office of Immigration Litigation Room 6417 P.O. Box 868 Ben Franklin Station Washington, DC 20001 Michael Campion Kristin L. Vassallo Office of United States Attorney 970 Broad Street Room 700 Newark, NJ 07102-0000 Attorneys for Defendant-Appellee _____________________ OPINION OF THE COURT ___________________ HARDIMAN, Circuit Judge. 2  Nizar Al-Sharif applied for United States citizenship, but his application was denied because he had been convicted of conspiracy to commit wire fraud, which the United States Citizenship and Immigration Services (USCIS) determined to be an aggravated felony. Al-Sharif contested the denial in the District Court, which entered summary judgment in favor of USCIS. In this appeal, Al-Sharif argues that he is entitled to citizenship because, under our decision in Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004), his conviction was not for an aggravated felony. After oral argument before a panel of this Court, we elected sua sponte to hear the case en banc in order to determine whether Nugent remains good law. For the reasons discussed below, we hold that it does not, and will affirm the judgment of the District Court. I Al-Sharif is a lawful permanent resident of the United States. In 1992, he and others arranged to connect callers in Israel to callers in countries with no direct phone service to Israel, for a fee, by routing the calls through an apartment in New Jersey. Al-Sharif rented the apartment and set up phone service there using a false name and Social Security number. Afterwards, he abandoned the apartment without leaving a forwarding address or paying the phone bill. As a result of this scheme, Al-Sharif pleaded guilty in 1993 to conspiracy to commit wire fraud in violation of 18 U.S.C. § 371, with a stipulation that his fraud caused a loss to the victim of between $120,000 and $200,000. He was sentenced to six months’ home confinement and five years’ probation, and was ordered to pay $128,838 in restitution to the phone company. 3  In 2004, Al-Sharif applied to become a naturalized citizen of the United States. On his application, he truthfully disclosed his conviction for conspiracy to commit wire fraud.1 As a result, his application was denied by USCIS. In the view of USCIS, Al-Sharif’s conviction was for an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(M)(i), which precluded him, under 8 U.S.C. § 1101(f)(8), from demonstrating “good moral character,” as required for naturalization under 8 U.S.C. § 1427(a)(3). Al-Sharif sought review in the District Court, arguing that his conviction was not an “aggravated felony” for naturalization purposes. The District Court disagreed, and granted summary judgment to USCIS. Al-Sharif filed this timely appeal. II2 A Section 1101(a)(43) of Title 8 lists several categories of offenses that are considered “aggravated felon[ies]” for immigration purposes. In particular, § 1101(a)(43)(G) makes any “theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at 1 In 2006, the Government charged Al-Sharif with deportability as a result of his conviction; however, an immigration judge granted Al-Sharif a waiver of deportation. 2 The District Court had jurisdiction under 8 U.S.C. § 1421(c). We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s summary judgment de novo. Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 257 (3d Cir. 2012). 4 least one year” an aggravated felony, and § 1101(a)(43)(M)(i) makes any “offense” that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” an aggravated felony.3 Although some of these categories of aggravated felonies can overlap, each category is separate from the others, and a particular conviction may constitute an aggravated felony under multiple sections of § 1101(a)(43). See Bobb v. Att’y Gen., 458 F.3d 213, 217–18 (3d Cir. 2006) 3 We note that Al-Sharif was convicted of conspiracy, which is an aggravated felony under 8 U.S.C. § 1101(a)(43)(U). However, because § 1101(a)(43)(U) only applies to “an attempt or conspiracy to commit an offense described in this paragraph,” we must review the underlying substantive offense to determine whether it is “an offense described in this paragraph.” See In re S-I-K-, 24 I. & N. Dec. 324, 326 (BIA 2007) (requiring the government to prove that “at least one of the unlawful acts that was the object of the conspiracy was an offense” described in another paragraph of § 1101(a)(43)); see also Nijhawan v. Att’y Gen., 523 F.3d 387, 399 (3d Cir. 2008) (looking to the underlying object of the conspiracy to determine if the alien committed an aggravated felony). Because the language of the statute and In re S-I-K- require an examination of the elements of the substantive offense when analyzing whether a conspiracy is an aggravated felony, USCIS correctly based its denial of Al- Sharif’s naturalization application on § 1101(a)(43)(M)(i), which deals with fraud. This approach is in accord with that of many of our sister circuits. See, e.g., Conteh v. Gonzales, 461 F.3d 45, 57 (1st Cir. 2006); Kamagate v. Ashcroft, 385 F.3d 144, 152–53 (2d Cir. 2004). 5 (explaining that forgery can be an aggravated felony under both § 1101(a)(43)(M)(i) and § 1101(a)(43)(R)). In his plea agreement, Al-Sharif stipulated that his conspiracy to commit wire fraud caused a loss of more than $10,000. Nevertheless, he argues that Nugent dictates that he is not an aggravated felon because his offense was a hybrid theft/fraud offense and he was not sentenced to at least one year in prison. In Nugent, an alien was convicted in Pennsylvania state court of theft by deception in violation of 18 Pa. Cons. Stat. § 3922 for passing a bad check worth $4,831, and was sentenced to a period of six to twenty-three months’ imprisonment. 367 F.3d at 163, 169. We found that the alien’s offense was both a “theft offense” as defined in § 1101(a)(43)(G), id. at 174, and an offense “involving fraud or deceit” as defined in § 1101(a)(43)(M)(i), id. at 177. As a result, we held that “to qualify as an aggravated felony under the INA [the alien’s offense] must meet the requirements of Section 1101(a)(43)(M)(i), loss to the victim of more than $10,000, in addition to Section 1101(a)(43)(G), term of imprisonment of at least one year.” Id. at 174–75 (emphasis added). This theory—that an alien convicted of an offense that is both a “theft offense” and an offense “involv[ing] fraud or deceit” is an aggravated felon only if he satisfies both the loss threshold of § 1101(a)(43)(M)(i) and the imprisonment threshold of § 1101(a)(43)(G)—has since become known as the “hybrid offense” theory. See Bobb, 458 F.3d at 215. In the nine years since this Court adopted the hybrid offense theory in Nugent, we have never found another hybrid offense. See Matter of Garcia-Madruga, 24 I. & N. Dec. 436, 6 439 n.4 (BIA 2008).4 Rather, in Bobb, we declined to find that an offense that was both “relat[ed] to . . . forgery,” as defined in § 1101(a)(43)(R), and “involve[d] fraud or deceit,” as defined in § 1101(a)(43)(M)(i), was a hybrid offense. 458 F.3d at 226. In doing so, we explicitly limited Nugent to “classificational schemes in which one classification is entirely a subset of another.” Id. The hybrid offense theory, Bobb explained, could not apply to “separate universal classifications which intersect, but which have separate and independent elements.” Id. While our holding in Bobb reaffirmed the basic premise of the hybrid offense theory, it raised a serious question about the theory’s scope. When read literally, Bobb’s statement that the hybrid offense theory is “restricted to classificational schemes in which one classification is entirely a subset of another” seems to suggest that the hybrid offense theory would not even apply to § 1101(a)(43)(G) and § 1101(a)(43)(M)(i) because the classification “theft offense” is not entirely a subset of “an offense . . . involv[ing] fraud or deceit.” This conclusion, and the rule that “no subsequent panel overrules the holding in a precedential opinion of a previous panel,” Covell v. Bell Sports, Inc., 651 F.3d 357, 4 Other than Bobb, the only cases from our Circuit that discuss Nugent’s hybrid offense theory are a handful of not precedential opinions. See Familia v. Att’y Gen., 507 F. App’x 234, 238–39 (3d Cir. 2012); Minaya v. Att’y Gen., 453 F. App’x 168, 173–74 (3d Cir. 2011); Hatkewicz v. Att’y Gen., 350 F. App’x 667, 671 (3d Cir. 2009); Mirat v. Att’y Gen., 184 F. App’x 153, 155–56 (3d Cir. 2006). Each refused to extend the hybrid offense theory to the relevant statute of conviction. 7 363–64 (3d Cir. 2011) (quoting 3d Cir. I.O.P. 9.1), raised the question of what, exactly, remained of Nugent following Bobb. Following Bobb, our Court has struggled with the applicability of the hybrid offense theory to fraud conspiracy cases, such as this one. Two panels of our Court issued not precedential opinions finding that fraud conspiracies were not hybrid offenses by analyzing the elements of the conspiracies, rather than the substantive fraud offenses. See Familia v. Att’y Gen., 507 F. App’x 234, 238–39 (3d Cir. 2012); Minaya v. Att’y Gen., 453 F. App’x 168, 173–74 (3d Cir. 2011). In addition, no other court of appeals has adopted Nugent’s hybrid offense theory. Only a handful of published opinions from our sister Circuits have dealt with the hybrid offense theory. See, e.g., Magasouba v. Mukasey, 543 F.3d 13, 15 (1st Cir. 2008); Martinez v. Mukasey, 519 F.3d 532, 539 (5th Cir. 2008); Soliman v. Gonzales, 419 F.3d 276, 280 (4th Cir. 2005). These Circuits have all avoided applying the theory by disposing of the cases on other grounds. See Magasouba, 543 F.3d at 15 (“Nugent has been restricted to classificational schemes in which one classification is entirely a subset of another. As previously mentioned, that is not the case here.” (internal quotation marks and citation omitted)); Martinez, 519 F.3d at 539 (“Our court has not decided whether an offense may properly be characterized as a hybrid fraud/theft offense, which must meet the requirements of both subsections (G) and (M)(i).”); Soliman, 419 F.3d at 280 (4th Cir. 2005) (“Because we are able to resolve Soliman’s petition for review by finding that Soliman’s conviction was not for a theft offense under Subsection (G), we need not reach and address her alternative contention with respect to imputing Subsection (M)(i)’s minimum threshold requirement 8 to Subsection (G).”). For its part, the Board of Immigration Appeals (BIA) has declined to follow the hybrid offense theory. See Garcia-Madruga, 24 I. & N. Dec. at 440 n.5 (“That [theft and fraud may be coextensive] does not mean, however, that we subscribe to the Nugent court’s holding that in such an instance the elements of both aggravated felony branches must be demonstrated.” (emphasis in original)). The Supreme Court too has recently issued an opinion casting further doubt upon the hybrid offense theory. In Kawashima v. Holder, 132 S. Ct. 1166 (2012), the Court stated that: “The language of [§ 1101(a)(43)(M)(i)] is clear. Anyone who is convicted of an offense that ‘involves fraud or deceit in which the loss to the victim or victims exceeds $10,000’ has committed an aggravated felony.” Id. at 1173 (emphasis added). Read literally, this statement conflicts with Nugent, as the hybrid offense theory leaves open the possibility that someone convicted of an offense “involv[ing] fraud or deceit in which the loss to the victim or victims exceeds $10,000” has not committed an aggravated felony. This is exactly what Al-Sharif argues here: that, although his offense falls within the definition of § 1101(a)(43)(M)(i), it is not an aggravated felony because it is also a “theft offense” that did not result in at least one year of imprisonment. Mindful of this history, we now overrule Nugent’s hybrid offense theory because it has been rejected by other courts and conflicts with the plain language of the statute. B We do not overturn our precedents lightly. “[P]recedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course 9 that is sure error.” Citizens United v. FEC, 558 U.S. 310, 362 (2010). However, stare decisis “is not an inexorable command.” Payne v. Tennessee, 501 U.S. 808, 828 (1991). “[W]hen governing decisions are unworkable,” they may be overturned. Id. at 827. This is particularly true “if the precedent is particularly recent and has not generated any serious reliance interests,” Morrow v. Balaski, --- F.3d ----, 2013 WL 2466892, at *16 (3d Cir. Jun. 14, 2013) (en banc) (Smith, J., concurring), or if the precedent has “sustained serious erosion from our recent decisions,” Lawrence v. Texas, 539 U.S. 558, 576 (2003). Here, the hybrid offense theory “has not generated any serious reliance interests.” In the nine years since we have adopted it, it has been applied by no Court of Appeals, including our own. Rather, it has “sustained serious erosion from . . . recent decisions.” We have greatly limited its applicability, see Bobb, 458 F.3d at 226, the BIA has declined to follow it, see Garcia-Madruga, 24 I. & N. Dec. at 440 n.5, and the Supreme Court’s dicta in Kawashima has cast substantial doubt upon it. See IFC Interconsult, AG v. Safeguard Int’l Partners, LLC, 438 F.3d 298, 311 (3d Cir. 2006) (“[W]e pay due homage to the Supreme Court’s well- considered dicta as [lighthouses] that guide our rulings.”). On its merits, the hybrid offense theory cannot easily be reconciled with the text of the statute. “[W]hen [a] statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Sebelius v. Cloer, 133 S. Ct. 1886, 1896 (2013). The language of § 1101(a)(43) is plain. Each of its subparagraphs lays out a separate aggravated felony and there is no indication in the statute that an offense must satisfy multiple subparagraphs in 10 order to be an aggravated felony. Thus, an offense that “involves fraud or deceit in which the loss to the victim exceeds $10,000” is an aggravated felony under § 1101(a)(43)(M)(i) regardless of whether it also meets the requirements of some other subparagraph. As the Supreme Court recently emphasized in Kawashima: “The language of [§ 1101(a)(43)(M)(i)] is clear. Anyone who is convicted of an offense that ‘involves fraud or deceit in which the loss to the victim or victims exceeds $10,000’ has committed an aggravated felony . . . .” 132 S. Ct. at 1173 (emphasis added). The hybrid offense theory conflicts with the Supreme Court’s textual interpretation insofar as it implies that at least some fraud offenses with losses exceeding $10,000—namely, those that are also theft offenses and for which the offender was not sentenced to at least a year of imprisonment—are not aggravated felonies.5 Therefore, we now overrule that theory. Having held that Nugent is no longer the law of this Circuit, we hold that Al-Sharif was properly deemed an aggravated felon under § 1101(a)(43)(M)(i). Wire fraud is clearly an offense “involv[ing] fraud or deceit,” see Doe v. Att’y Gen., 659 F.3d 266, 274–75 (3d Cir. 2011), and Al- Sharif’s plea agreement stipulated that he caused a loss of between $120,000 and $200,000—well in excess of the $10,000 threshold for a fraud to be considered an aggravated felony. Thus, Al-Sharif’s offense was an aggravated felony 5 We also note that, under the hybrid offense theory, a defendant who is convicted of an offense that is both theft and fraud receives more favorable treatment than a defendant who is convicted of either theft or fraud alone. This incongruity reinforces further our holding that the hybrid offense theory is inconsistent with the statute. 11 and the District Court properly entered summary judgment in favor of USCIS. III Al-Sharif raises two additional arguments, but neither is persuasive. First, he argues that the 1996 aggravated felony definitions, which reduced the loss threshold at which fraud becomes an aggravated felony, do not apply to him. We rejected a nearly identical argument in Biskupski v. Attorney General, 503 F.3d 274 (3d Cir. 2007), where we held that the 1996 aggravated felony definitions applied retroactively to crimes committed before 1996, so long as the “orders or decisions of the [immigration judge] or BIA which apply the ‘aggravated felony’ definitions” were issued after the 1996 amendments. Id. at 283. Here, USCIS denied Al- Sharif’s naturalization application in 2009, long after the 1996 amendments took effect. Although USCIS and not an immigration judge or the BIA was making that determination, our reasoning in Biskupski still applies because, until USCIS issued a final decision, Al-Sharif “remain[ed] the subject of administrative adjudication and ha[d] not established any right to the benefit he [wa]s seeking to obtain by his application.” Id. (internal quotation mark and alteration omitted). Second, Al-Sharif argues that the rule of lenity, which requires courts to “constru[e] any lingering ambiguities in deportation statutes in favor of the alien,” see INS v. Cardoza- Fonseca, 480 U.S. 421, 449 (1987), applies to him. However, 8 U.S.C. § 1101(a)(43) is unambiguous. Section 1101(a)(43)(M)(i) is clear that an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” is an aggravated felony. Therefore, Al-Sharif is not 12 entitled to relief under the rule of lenity. See Kawashima, 132 S. Ct. at 1175–76 (declining to apply rule of lenity because § 1101(a)(43)(M) was “clear enough”); Muscarello v. United States, 524 U.S. 125, 138–39 (1998) (rule of lenity only applies if there is a “grievous ambiguity or uncertainty in the statute”). IV For the foregoing reasons, we hold that the hybrid offense theory of Nugent no longer remains good law and the District Court did not err when it held that Al-Sharif was not entitled to citizenship by virtue of his 1993 conviction for conspiracy to commit wire fraud. Accordingly, we will affirm the judgment of the District Court. 13 

717 F.2d 1409 19 ERC 1705, 230 U.S.App.D.C. 352, 13Envtl. L. Rep. 20,888 SIERRA CLUB, Appellant,v.R. Max PETERSON, in his official capacity as Chief Foresterof the United States Forest Service, Department ofAgriculture, et al. No. 82-1695. United States Court of Appeals,District of Columbia Circuit. Argued Feb. 16, 1983.Decided Sept. 13, 1983.As Amended Sept. 28, 1983. Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-01230). Karin P. Sheldon, Denver, Colo., for appellant. Claire L. McGuire, Atty., Dept. of Justice, Washington, D.C., with whom Robert L. Klarquist, Washington, D.C., was on the brief for appellees, U.S.A. R. Brooke Jackson, Denver, Colo., with whom John F. Shepherd, Denver, Colo., was on the brief for appellees, Wexpro Company, et al. Gerry Levenberg, Washington, D.C., was on the brief for Bill J. Maddon, et al. Before WRIGHT and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge MacKINNON. MacKINNON, Senior Circuit Judge: 1 In proceedings in the district court, the Sierra Club challenged the decision by the United States Forest Service (Forest Service) and the Department of the Interior (Department) to issue oil and gas leases on lands within the Targhee and Bridger-Teton National Forests of Idaho and Wyoming. The plaintiff alleged that the leasing program violated the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321 et seq. (1976), because no Environmental Impact Statement (EIS) was prepared prior to the action. On cross-motion for summary judgment the district court upheld the decision to issue the leases without preparing an EIS. Sierra Club v. Peterson, No. 81-1230 (D.D.C. March 31, 1982). The plaintiff appeals from a portion of the judgment and we reverse the decision of the district court. I. 2 The land originally involved in this dispute encompassed a 247,000 acre roadless area in the Targhee and Bridger-Teton National Forests of Idaho and Wyoming, known as the Palisades Further Planning Area. In its most recent Roadless Review and Evaluation, RARE II,1 the Forest Service designated this entire area as a Further Planning Area and consequently, the land may be considered for all uses, including oil and gas exploration, as long as its potential wilderness quality is preserved. 3 In 1980, the Forest Service received applications for oil and gas leases in the Palisades Further Planning Area.2 After conducting an Environmental Assessment (EA), the Forest Service recommended granting the lease applications, but with various stipulations attached to the leases. Because the Forest Service determined that issuance of the leases with the recommended stipulations would not result in significant adverse impacts to the environment, it decided that, with respect to the entire area, no Environmental Impact Statement was required at the leasing stage. 4 The leasing program approved by the Forest Service divides the land within the Palisades Further Planning Area into two categories--"highly environmentally sensitive"3 lands and non-highly environmentally sensitive lands. The stipulations attached to each lease are determined by the particular character of the land. All of the leases for the Palisades contain "standard"4 and "special"5 stipulations. These stipulations require the lessee to obtain approval from the Interior Department before undertaking any surface disturbing activity on the lease, but do not authorize the Department to preclude any activities which the lessee might propose. The Department can only impose conditions upon the lessee's use of the leased land. 5 In addition, a No Surface Occupancy Stipulation (NSO Stipulation) is attached to the leases for lands designated as "highly environmentally sensitive." This NSO Stipulation precludes surface occupancy unless and until such activity is specifically approved by the Forest Service. 6 For leases without a No Surface Occupancy Stipulation, the lessee must file an application for a permit to drill prior to initiating exploratory drilling activities. The application must contain a surface use and operating plan which details the proposed operations including access roads, well site locations, and other planned facilities. On land leased without a No Surface Occupancy Stipulation the Department cannot deny the permit to drill; it can only impose "reasonable" conditions which are designed to mitigate the environmental impacts of the drilling operations. See Joint Appendix (JA) at 86a.II. 7 Following an unsuccessful administrative challenge to the decision to issue all the leases in accord with the Forest Service's plan, the Sierra Club sought declaratory and injunctive relief in the United States District Court for the District of Columbia. The Sierra Club argued that leasing land within the Palisades without preparing an EIS violated NEPA. The federal defendants6 responded that because of the finding of "no significant impact" contained in the Environmental Assessment, it was not necessary to prepare an EIS. 8 The district court upheld the finding of "no significant impact" and the decision to lease without preparing an EIS. The court based its decision upon the conclusion that the lease stipulations were valid and that the government could thereby "preclude any development under the leases." Sierra Club v. Peterson, No. 81-1230, slip op. at 12 n. 5 (D.D.C. March 31, 1982). The court granted the federal defendants' motion for summary judgment, stating that "[t]he stipulations included in the leases ... will effectively insure that the environment will not be significantly affected until further analysis pursuant to NEPA." Id. at 13-14. 9 The Sierra Club appeals only that portion of the district court's judgment which involves lands leased without a No Surface Occupancy Stipulation. The Sierra Club concedes that the Department retains the authority to preclude all surface disturbing activities on land leased with a NSO Stipulation until further site-specific environmental studies are made. By retaining this authority, the Department has insured that no significant environmental impacts can occur from the act of leasing lands subject to the NSO Stipulation. 10 Approximately 80% of the Palisades was designated as highly environmentally sensitive and, therefore, leased with the NSO Stipulation. Only the remainder, approximately 28,000 acres, is at issue in this appeal. As to this smaller area, the Sierra Club contends that the Department cannot preclude surface disturbing activities, including drilling, on lands leased without the NSO Stipulation. The Department has only retained, Sierra Club asserts, the authority to "condition" surface disturbing activities in an effort to "mitigate" any environmental harm which might result from the activities. Thus, some surface disturbing activities may result from the act of issuing leases without NSO Stipulations on lands within the 28,000 acres. Appellant asserts, therefore, that the finding of "no significant impact" and the decision not to prepare an EIS, insofar as land leased within this smaller area is concerned, was improper. Because on these leases the Secretary cannot preclude surface disturbing activity, including drilling, the Sierra Club argues that the decision to lease is itself the point of irreversible, irretrievable commitment of resources--the point at which NEPA mandates that an environmental impact statement be prepared. We agree. III. 11 The National Environmental Policy Act (NEPA) requires preparation of an Environmental Impact Statement whenever a proposed major federal action will significantly affect the quality of the human environment. 42 U.S.C. Sec. 4332(2)(C) (1976). To determine the nature of the environmental impact from a proposed action and whether an EIS will be required, federal agencies prepare an environmental assessment. 40 C.F.R. Sec. 1501.4(b) & (c) (1982). If on the basis on the Environmental Assessment the agency finds that the proposed action will produce "no significant impact" on the environment, then an EIS need not be prepared. Id. at Sec. 1501.4(e). 12 An agency's finding of "no significant impact" and consequent decision not to prepare an EIS can only be overturned if the decision was arbitrary, capricious, or an abuse of discretion. Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 681 (D.C.Cir.1982); Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1002 (D.C.Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599 (1980). Judicial review of an agency's finding of "no significant impact" is not, however, merely perfunctory as the court must insure that the agency took a "hard look" at the environmental consequences of its decision. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). 13 Cases in this circuit have employed a four-part test to scrutinize an agency's finding of "no significant impact." The court ascertains 14 (1) whether the agency took a "hard look" at the problem; 15 (2) whether the agency identified the relevant areas of environmental concern; 16 (3) as to the problems studied and identified, whether the agency made a convincing case that the impact was insignificant; and 17 (4) if there was an impact of true significance, whether the agency convincingly established that changes in the project sufficiently reduced it to a minimum. 18 Cabinet Mountains Wilderness, supra, 685 F.2d at 682. Applying the foregoing test to this agency decision, we are satisfied that the agency has taken the requisite "hard look" and has "identified the relevant areas of environmental concern." However, in our opinion, the finding that "no significant impact" will occur as a result of granting leases without an NSO Stipulation is not supportable on this record. 19 The finding of "no significant impact" is premised upon the conclusion that the lease stipulations will prevent any significant environmental impacts until a site-specific plan for exploration and development is submitted by the lessee. At that time, the federal appellees explain, an appropriate environmental analysis, either an Environmental Assessment or an EIS, will be prepared. In bifurcating its environmental analysis, however, the agency has taken a foreshortened view of the impacts which could result from the act of leasing. The agency has essentially assumed that leasing is a discrete transaction which will not result in any "physical or biological impacts." The Environmental Assessment concludes 20 that there will be no significant adverse effects on the human environment due to oil and gas lease issuance. Therefore, no environmental impact statement will be prepared. The determination was based upon consideration of the following factors ... (a) few issued leases result in active exploration operations and still fewer result in discovery or production of oil or gas; (b) the act of issuing a lease involves no physical or biological impacts; (c) the cumulative environmental effect of lease issuance on an area-wide basis is very small; (d) effects of lease activities once permitted will be mitigated to protect areas of critical environmental concern by appropriate stipulations including no-surface occupancy; (e) if unacceptable environmental impacts cannot be corrected, activities will not be permitted; and (f) the action will not have a significant effect on the human environment. 21 Finding of No Significant Impact, Environmental Assessment, JA at 26-27. The conclusion that no significant impact will occur is improperly based on a prophecy that exploration activity on these lands will be insignificant and generally fruitless. 22 While it may well be true that the majority of these leases will never reach the drilling stage and that the environmental impacts of exploration are dependent upon the nature of the activity, nevertheless NEPA requires that federal agencies determine at the outset whether their major actions can result in "significant" environmental impacts. Here, the Forest Service concluded that any impacts which might result from the act of leasing would either be insignificant or, if significant, could be mitigated by exercising the controls provided in the lease stipulations. 23 Even assuming, arguendo, that all lease stipulations are fully enforceable, once the land is leased the Department no longer has the authority to preclude surface disturbing activities even if the environmental impact of such activity is significant. The Department can only impose "mitigation" measures upon a lessee who pursues surface disturbing exploration and/or drilling activities. None of the stipulations expressly provides that the Department or the Forest Service can prevent a lessee from conducting surface disturbing activities.7 Thus, with respect to the smaller area with which we are here concerned, the decision to allow surface disturbing activities has been made at the leasing stage and, under NEPA, this is the point at which the environmental impacts of such activities must be evaluated. 24 NEPA requires an agency to evaluate the environmental effects of its action at the point of commitment. The purpose of an EIS is to insure that the agency considers all possible courses of action and assesses the environmental consequences of each proposed action. The EIS is a decision-making tool intended to "insure that ... environmental amenities and values may be given appropriate consideration in decisionmaking ...." 42 U.S.C. Sec. 4332(2)(B). Therefore, the appropriate time for preparing an EIS is prior to a decision, when the decisionmaker retains a maximum range of options. Environmental Defense Fund v. Andrus, 596 F.2d 848, 852-53 (9th Cir.1979). Accord, Port of Astoria v. Hodel, 595 F.2d 467, 478 (9th Cir.1979) (NEPA requires that an EIS be prepared "at an early stage when alternative courses of action are still possible...."); Scientists' Inst. for Public Information, Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1094 (D.C.Cir.1973) (In determining when to prepare an EIS the agency must ascertain to what extent its decision embodies an "irretrievable commitment" of resources which precludes the exercise of future "options."). An EIS is required when the "critical agency decision" is made which results in "irreversible and irretrievable commitments of resources" to an action which will affect the environment. Mobil Oil Corp. v. F.T.C., 562 F.2d 170, 173 (2d Cir.1977). On the facts of this case, that "critical time," insofar as lands leased without a NSO Stipulation are concerned, occurred at the point of leasing. 25 Notwithstanding the assurance that a later site-specific environmental analysis will be made, in issuing these leases the Department made an irrevocable commitment to allow some surface disturbing activities, including drilling and roadbuilding. While theoretically the proposed two-stage environmental analysis may be acceptable, in this situation the Department has not complied with NEPA because it has sanctioned activities which have the potential for disturbing the environment without fully assessing the possible environmental consequences. 26 The Department asserts that it cannot accurately evaluate the consequences of drilling and other surface disturbing activities until site-specific plans are submitted. If, however, the Department is in fact concerned that it cannot foresee and evaluate the environmental consequences of leasing without site-specific proposals, then it may delay preparation of an EIS provided that it reserves both the authority to preclude all activities pending submission of site-specific proposals and the authority to prevent proposed activities if the environmental consequences are unacceptable. If the Department chooses not to retain the authority to preclude all surface disturbing activities, then an EIS assessing the full environmental consequences of leasing must be prepared at the point of commitment--when the leases are issued. The Department can decide, in the first instance, by which route it will proceed. IV. 27 The National Environmental Policy Act requires federal agencies to evaluate the environmental consequences of their actions prior to commitment to any actions which might affect the quality of the human environment. If any "significant" environmental impacts might result from the proposed agency action then an EIS must be prepared before the action is taken. 28 In this case, the Department failed to fully assess the environmental consequences of its decision to issue leases without NSO Stipulations on the 28,000 acres in question. To comply with NEPA, the Department must either prepare an EIS prior to leasing or retain the authority to preclude surface disturbing activities until an appropriate environmental analysis is completed. If the Department retains the authority to preclude all surface disturbing activities pending submission of a lessee's site-specific proposal as well as the authority to refuse to approve proposed activities which it determines will have unacceptable environmental impacts, then the Department can defer its environmental evaluation until such site-specific proposals are submitted. If, however, it is unable to preclude activities which might have unacceptable environmental consequences, then the Department cannot issue leases sanctioning such activities without first preparing an EIS. 29 Because we find that the Department did not comply with the requirements of the National Environmental Policy Act when it leased the 28,000 acres of non-highly environmentally sensitive lands within the Palisades, we reverse the judgment of the district court and remand the case for further proceedings not inconsistent with this opinion. 30 Judgment accordingly. 1 Two Roadless Area Review and Evaluations (RARE I and II) were conducted by the Forest Service to evaluate undeveloped areas within National Forests in order to recommend appropriate areas to Congress for designation as part of the National Wilderness Preservation System. See Wilderness Act, 16 U.S.C. Sec. 1131 et seq. (1976) As a result of RARE II, areas studied by the Forest Service were classified as either Wilderness, Non-wilderness or Further Planning Areas. Further Planning Areas, such as the Palisades, are lands which require additional, more intensive study before the Forest Service can recommend Wilderness or Non-wilderness status to Congress. Until a decision is reached on the ultimate status of the land, its present character is to be maintained. 2 The Mineral Leasing Act of 1920, 30 U.S.C. Sec. 226 (1976), authorizes the leasing of lands owned by the United States for the purpose of oil and gas exploration and development 3 "Highly environmentally sensitive" areas are defined in the Environmental Assessment as those areas "with definable environmental characteristics which would be irreversibly altered by exploration activities." Environmental Assessment for Oil and Gas Exploration in the Palisades Further Planning Area, Joint Appendix (JA) at 150. These areas include lands necessary for the protection of threatened or endangered wildlife species; lands with slope gradients of more than 40%; lands with regionally unique plant or animal species; and lands with significant cultural resources. Id 4 The "standard" stipulations include the Stipulation for lands under jurisdiction of the Department of Agriculture, 3109-3 (JA at 85), the Surface Disturbance Stipulation, 3109-5 (JA at 86a), and the Forest Service Supplement to Form 3109-3 (JA at 87) 5 "Special" stipulations include the Further Planning Area Stipulation, the Coordination Exploration Stipulation: Standard and Jackson Hole Area and others which are specially designed to protect particular environmental concerns. See, e.g., JA at 89-100 6 The lessees were allowed to intervene as defendants in the district court proceedings. The "Wexpro" intervenors include Wexpro Co., Sun Exploration and Production Co., Anschutz Corp., and Champlin Petroleum Co. These companies hold the majority of the leases on the Idaho portion of the Palisades. The "Maddox" intervenors include Bill J. Maddox, Ruth Maddox, Kenneth F. Cummings, A.W. Fleming and Co., and Placid Oil Co. These individuals and enterprises are also lessees of the lands at issue Both groups of intervenors participated in this appeal. 7 We do not agree with the district court's unsupported conclusion that the Secretary can preclude "any development" under the lease. Sierra Club, supra, slip op. at 12 n. 5. In addition to the fact that the lease stipulations themselves do not expressly permit preclusion, when questioned on this point at oral argument, counsel for the government stated: The government has never contended that we would preclude all development. We did in fact contend before the district court ... that in the Conditional No Surface Occupancy areas, those that are highly sensitive, we could preclude development. In response to the court's question as to whether the agency could refuse to approve a lessee's plan to build an access road (a surface disturbing activity) during exploration, counsel for the government stated: There's a very fine line between preclusion and strict control. The agency has retained strict control. They have the authority. They have the right to put certain conditions on road building. [The government has] never contended that we could preclude all exploration and all development in these non-highly sensitive areas. Furthermore, counsel for the Sierra Club asserted without contradiction that the government could not deny an application for a permit to drill, but could only enforce the lease stipulations to control and/or mitigate any environmental damage which result from the drilling. We conclude from the language of the lease stipulations, the briefs of the parties, and the statements of counsel at oral argument that once the land is leased the Secretary cannot preclude surface disturbing activities, in either the exploratory or the development stage, on the 28,000 acres here in question.

United States Court of Appeals Fifth Circuit F I L E D December 1, 2003 In the Charles R. Fulbruge III United States Court of Appeals Clerk for the Fifth Circuit _______________ m 03-40051 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS NEFTALI CARAPIA-HERNANDEZ, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Southern District of Texas m L-02-CR-316-ALL _________________________ Before SMITH, BARKSDALE, and CLEMENT, a felony. We have reviewed the briefs, Circuit Judges. pertinent portions of the record, and the ap- plicable authorities and have heard the argu- PER CURIAM:* ments of counsel. Carapia-Hernandez’s waiv- er of counsel was knowing and voluntary. Neftali Carapia-Hernandez claims his prior uncounseled misdemeanor conviction of illegal Accordingly, we have no need to address entry cannot be used to enhance his current the other issues presented on appeal. The illegal entry conviction from a misdemeanor to judgment of conviction and sentence is AFFIRMED. * Pursuant to 5TH CIR. R. 47.5, the court has deter- mined 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. 

In the United States Court of Appeals For the Seventh Circuit No. 13-3207 ARIAN WADE, Plaintiff-Appellant, v. JAMES COLLIER, JR., et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10-cv-06876 — Virginia M. Kendall, Judge. ARGUED SEPTEMBER 18, 2014 — DECIDED APRIL 17, 2015 Before WOOD, Chief Judge, and POSNER and MANION, Circuit Judges. MANION, Circuit Judge. Arian Wade, a former police officer for the Village of Maywood, was prosecuted in Illinois state court for criminal drug conspiracy. After a jury acquitted him, he sued three other Maywood police officers and the Village alleging violations of his federal equal protection rights and asserting a state law claim for malicious prosecution. The 2 No. 13-3207 district court granted the defendants summary judgment and Wade appeals. We affirm. I. On August 22, 2004, Hosie Thurman, a drug dealer and high-level gang member, attempted to bribe Maywood police officers Dwayne Wheeler, Weldon Cobos, and Theodore Yancy. Thurman offered to pay them between one and two thousand dollars a week in exchange for leaving his drug dealers alone. The officers did not accept Thurman’s bribe and instead reported it to Maywood Police Chief James Collier, who, in turn, suggested they involve the Cook County State’s Attorney’s Office. Officer Wheeler contacted the State’s Attorney’s Office and informed them of Thurman’s attempted bribe. The State’s Attorney’s Office also learned during the summer of 2004 that an individual arrested by Maywood police had told the officers that Thurman had some police officers on his payroll. The State’s Attorney’s Office started an undercover operation dubbed Operation Pocket Change. They directed Officers Wheeler and Yancy to work undercover to gather evidence against Thurman and his associates. As part of this investigation, Officers Wheeler and Yancy pretended to be dirty cops and accepted from Thurman weekly payments of $1,200 in exchange for leaving his sellers (Torrance Coats and Harrison Collins, among others) alone. No. 13-3207 3 The State’s Attorney’s Office obtained a warrant for a pen register1 to monitor Thurman’s cell phone. This information revealed numerous contacts between Thurman and Maywood Police Officer Arian Wade. The State’s Attorney’s Office then obtained authorization for a wiretap to record calls to and from Thurman’s cell phone. After learning that Wade was communicating with Thurman, the Operation Pocket Change team decided to “tickle the wire” to see if Wade would provide information to Thurman. In early December 2004, the Operation Pocket Change team agreed that Lieutenant Donald Mobley would announce during a roll call at which Wade was present that officers should stay clear of an area in which Thurman’s dealers were known to engage in illegal activities. The area was near his grandmother’s house. (This fact is important as will be seen shortly.) The Operation Pocket Change team had not agreed on a specific date in December for the announcement to be made. However, on December 9, 2004, Officer Wheeler, as he ex- plained in his deposition, told Officer Mobley by telephone to make the announcement that day. Officer Mobley testified he then went to the afternoon roll call, confirmed that Wade was present, and then told the officers to stay out of a certain area 1 “A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the phone is released.” United States v. Hankton, 432 F.3d 779, 782 n.5 (7th Cir. 2005) (internal quotation omitted). Typically, a pen register is “installed at a central telephone facility and records on a paper tape all numbers dialed from the line to which it is attached.” Id. (internal quotation omitted). 4 No. 13-3207 of the city (which was part of Thurman’s territory) because an outside law enforcement agency was conducting an operation there. Officer Mobley testified that after making the announce- ment, he called Officer Wheeler and informed him he had made the roll call announcement. Officer Mobley also told Chief Collier that he had done so. Chief Collier likewise testified that Officer Mobley had informed him of the roll call announcement, although at the time of his deposition (several years later), Chief Collier could not remember the date. Maurice Macklin, an investigator for the State’s Attorney’s Office, testified that on December 9, 2004, one of the Maywood police officers had called the Operation Pocket Change wire room and informed the team that the roll call announcement had been made and that Wade was present for the announce- ment. At the time of his deposition, Investigator Macklin could not recall which officer had made the call. Officer Wheeler also testified in his deposition that Officer Mobley had called the wire room and told the Operation Pocket Change team that he had made the roll call announcement, although Officer Wheeler could not remember who took Officer Mobley’s call. Investigator Macklin testified that after he had learned that Officer Mobley had made the roll call announcement, he listened to the telephone calls intercepted from Thurman’s cell phone and heard, real-time, Wade call Thurman and warn him that “Granny’s house was hot.” Similarly, Assistant State’s Attorney Catherine Hufford testified that while listening to the intercepted telephone calls she received word that Officer Mobley had made the roll call announcement, although Hufford did not remember which No. 13-3207 5 investigator relayed this information to her. However, she remembered that after being informed that Officer Mobley had made the roll call announcement, the team waited to hear what calls would be made to Thurman’s phone. Hufford further testified that later that same day, she heard the recording of Wade’s call to Thurman in which he warned Thurman that an outside patrol was in the area and it was hot around Granny’s house. Wade admitted calling Thurman on December 9, 2004, after roll call and telling him “lot of people around grannys until about 7,” and after Thurman said “say again,” he repeated “a lot of people around grannys until about 7.” Thurman then said “you say it’s gonna be hot around grannys,” and Wade said “yeah, it is already.” Thurman then said “I’m a lay low then.” After getting off the phone with Wade, Thurman called one of his sellers and told him that “over there by my granny’s house it’s suppose to be hot around the area. You be cool. You don’t even really go over there.” Wade called and warned Thurman that Granny’s house was hot about 90 minutes after Officer Mobley had called the wire room to inform the team that he had made the roll call announcement. Yet Wade claims that he did not hear the announcement. Rather, he claims he made up the tip in an attempt to garner favor with Thurman and eventually turn him into a confidential informant. The investigators recorded many other calls between Wade and Thurman. Of particular significance was a call Wade made to Thurman on December 13, 2004. During this call, Wade informed Thurman that Coats (one of Thurman’s sellers) had 6 No. 13-3207 “a problem.” Thurman asked if Coats had been pulled over, and after some reluctance, Wade said “yeah,” but that he did not know by whom. At the time of Wade’s call, a surveillance team was operating in the area and noted that Wade had stopped down the block from where Coats had been pulled over. Wade called Thurman back a few minutes later and told Thurman that they had “got him” and were searching his vehicle. Thurman then asked Wade if it was someone local. After Wade said no, Thurman said, “so you can’t do nothing,” and Wade said “no.” After hanging up, Thurman called Wade right back and asked if anyone was with Coats and Wade said he could not tell. Following these exchanges, Assistant State’s Attorney (“ASA”) Daniel Reedy obtained a warrant for Wade’s arrest, as well as a warrant to search his home. A search of Wade’s home computer uncovered a fraudulent arrest warrant for Thurman. After Thurman was arrested, he told ASA Reedy that Wade helped him rob one of his suppliers by pretending to arrest him and seizing the supplier’s drugs. Wade later gave those drugs to Thurman and also provided him with the fake warrant. Thurman testified at Wade’s criminal trial that he (Thurman) later showed the warrant to his supplier to bolster the believability of his arrest. Officers recovered a hard copy of the fraudulent arrest warrant during the search of Thurman’s home. Later, the State’s Attorney’s Office obtained a grand jury indictment against Wade, Thurman, and some of Thurman’s dealers for criminal drug conspiracy. Wade pleaded not guilty to the state criminal charges. Wade moved to suppress the evidence seized during the search of his home, arguing that the No. 13-3207 7 search warrant application contained deliberate and material misrepresentations of fact. Specifically, Wade argued that the search warrant application falsely claimed that the roll call announcement was made on December 9, 2004. In making this argument, Wade pointed to three different memoranda which purported to document the roll call announcement. One memo was dated December 15 and stated that the announcement had been made on December 13. The other two memos stated that the roll call announcement had been made on December 9, but one was dated December 9 and the other January 19, 2005. All three memos listed a different roster of police officers as those present during the roll call announcement, but all three memoranda listed Wade as being present during the announcement. Wade argued that these memos established that the announcement was made on December 13 and not December 9 and that the officers altered the memorandum to frame him. The state court denied Wade’s motion based on testimony from the officers, and the case proceeded to trial. A jury later acquitted Wade. After he was acquitted, Wade sued Officers Collier, Mobley, and Wheeler, as well as the Village of Maywood. He alleged a violation of his federal equal protection rights and a state malicious prosecution claim. The gist of his lawsuit is that the defendants lied to the State’s Attorney’s Office about making the roll call announcement on December 9, 2004, and that this lie caused his wrongful prosecution (and also caused him to be treated differently than other officers who communi- cated with drug dealers). The district court granted the defendants’ motion for summary judgment and Wade appeals. 8 No. 13-3207 II. A. Malicious Prosecution We begin with Wade’s malicious prosecution claim. Under Illinois law, to state a malicious prosecution claim, Wade must show “(1) the commencement or continuation of an original criminal or civil proceeding by the defendants; (2) termination of the proceeding in his favor; (3) the absence of probable cause; (4) the presence of malice on the defendants’ part; and (5) damages.” Swearnigen-El v. Cook County Sheriff’s Dept., 602 F.3d 852, 863 (7th Cir. 2010). It is well established that the existence of probable cause forms a complete defense to a malicious prosecution claim. Logan v. Caterpillar, 246 F.3d 912, 926 (7th Cir. 2001). Further, “[u]nder Illinois law, a grand jury indictment is prima facie evidence of probable cause.” Swearnigen-El, 602 F.3d at 863. In this case, the grand jury indictment of Wade is prima facie evidence of probable cause. Id. Wade argues the grand jury indictment does not establish probable cause because the defendants lied to the State’s Attorney’s Office about announc- ing on December 9, 2004, during the roll call that officers should stay clear of Thurman’s territory. Wade maintains that the grand jury’s indictment was based on that false informa- tion and thus the indictment does not establish probable cause. See Freides v. Sani-Mode Mfg. Co., 211 N.E.2d 286, 289 (Ill. 1965) (noting that a grand jury’s presumption of probable cause “may be rebutted by other evidence, such as proof that the indictment was obtained by false or fraudulent testimony before the grand jury … or other improper or fraudulent No. 13-3207 9 means”); see also Fabiano v. City of Palos Hills, 784 N.E.2d 258, 276 (Ill.App. 2002). Wade’s argument fails for two reasons. First, the evidence, read in the light most favorable to Wade, does not establish a genuine issue of material fact concerning his assertion that the defendants lied about Mobley making the roll call announce- ment on December 9. Wade claims that a factual issue exists concerning the date of the announcement based on the memorandum dated December 15, which stated that the roll call announcement had been made on December 13. Wade seems to argue that since the defendants had access to the recordings from the wire tap, after hearing the content of his December 9 call to Thurman, they conspired to falsely claim that Mobley’s roll call announcement had been made on December 9. Wade’s theory is that while he had called Thur- man on December 9 and told him to stay clear of Granny’s house, he did not get that information from any roll call announcement, but merely made it up in an attempt to gain Thurman’s confidence and thereby turn him into an informant. And, Wade continues, the defendants’ lie and the alteration of the memorandum to state that the roll call announcement had been made on December 9 made his innocent police work seem “nefarious.” Appellee’s Reply Brief 6. Lieutenant Mobley testified that the December 13 date contained in the memoranda was a mistake. Under other circumstances, the conflicting memoranda might create a genuine issue of material fact, but they do not in this case. Investigator Macklin and ASA Hufford both testified that on December 9, the team was told that the roll call announcement had been made and that Wade was present for the announce- 10 No. 13-3207 ment. About ninety minutes later, Investigator Macklin and ASA Hufford heard Wade’s call to Thurman wherein he passed on the warning to Thurman. Wade does not claim that anyone from the State’s Attorney’s Office was part of the alleged conspiracy, nor is there any evidence to call into question their testimony. Of course, the State’s Attorney’s Office’s staff were not in the roll call room when the announce- ment was made, but Wade’s theory is metaphysically impossi- ble. Under Wade’s theory, it was after hearing his December 9 call to Thurman that the defendants decided to frame Wade by telling the State’s Attorney’s Office that the roll call announce- ment had been made on December 9, thereby making his tip to Thurman look nefarious. But Mobley called the wire room on December 9 to inform the Operation Pocket Change team that he had made the roll call announcement before Wade called Thurman, and thus before the defendants could possibly have heard the warning call. Under these circumstances, the disparity in the memoranda does not create a genuine issue of material fact concerning the date of the roll call announcement.2 2 Wade also suggests in passing that Officer Mobley never made an announcement at roll call directing officers to stay out of Thurman’s territory. But he offers no evidence to support such a theory. In his own affidavit he merely claims that while in the December 9 “roll call, I did not hear Officer Mobley state that there was an outside agency conducting an operation in the area of 100 block of 10th and 11th Ave.” He also attested: “I was present at the December 13, 2004 roll call. I have never paid attention to whether Commander Mobley made a statement regarding police activity.” Conversely, in addition to their own testimony, the defendants presented evidence from another officer (one not involved in Operation (continued...) No. 13-3207 11 Moreover, even if we disregard the grand jury indictment and the evidence concerning the roll call announcement, including Wade’s subsequent call to Thurman, the remaining evidence established probable cause to charge Wade. Probable cause is a complete bar to a malicious prosecution claim. Logan, 246 F.3d at 926. Probable cause is merely the “probability or substantial chance [that] criminal activity exists; it does not require the existence of criminal activity to be more likely true than not true.” Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012). And “[t]his is an objective inquiry; we do not consider the subjective motivations of the officer.” Id. at 247. In this case, there was substantial evidence that Wade conspired with Thurman. The State’s Attorney’s Office had evidence that Thurman attempted to bribe three Maywood police officers and already had other Maywood officers on his payroll. The pen register run by the State’s Attorney’s Office showed extensive contacts between Wade and Thurman and the wire tap recorded multiple conversations between Wade and Thurman, including several calls where they arranged to meet in person, one call in which Thurman asked Wade to help him purchase a bullet-proof vest, and another call in which Wade warned Thurman that Coats had been pulled over and was having his car searched. This last call was particularly damning because Wade told Thurman he did not know the 2 (...continued) Pocket Change) that Officer Mobley came into roll call and instructed the shift to stay out of a specific area. While that officer could not remember the date the announcement was made, his testimony confirms that such an announcement was made and the other evidence establishes that the announcement was made on December 9. 12 No. 13-3207 officers involved and therefore could not do anything about it. Additionally, the Operation Pocket Change team discovered no contacts between Thurman and other Maywood police officers, other than the extensive contacts between Wade and Thurman (and Thurman and the undercover officers). Taken together, this evidence established a “substantial chance” that Wade was involved in a criminal conspiracy with Thurman. Thayer, 705 F.3d at 246. Finally, there was the fraudulent warrant for Thurman’s arrest discovered on Wade’s computer and in Thurman’s home. This fraudulent warrant corroborated Thurman’s claim that Wade had helped him rob one of his suppliers by pretend- ing to arrest Thurman and that Wade gave him the faux warrant to bolster the legitimacy of his arrest in the eyes of his supplier. Because there was probable cause to charge Wade, and even more evidence to continue to prosecute him, the district court properly granted the defendants summary judgment on his malicious prosecution claim.3 B. Class-Of-One Equal Protection Claim Wade also presented a class-of-one equal protection claim under 42 U.S.C. § 1983. There are two main problems with Wade’s equal protection claim. First, Wade’s equal protection claim is merely a reframing of his malicious prosecution claim. 3 The defendants argue extensively on appeal that they, as police officers, could not be liable for malicious prosecution because the prosecutors were the ones who decided to charge Wade. However, because probable cause supported the charging of Wade, there is no need for us to decide whether the defendants’ conduct was sufficient to constitute “the commencement or continuation of the criminal claim.” Swearnigen-El, 602 F.3d at 863. No. 13-3207 13 Wade claims the defendants treated him differently from other officers who communicated with known drug dealers in that he was charged criminally and they were not. Where an equal protection claim is merely a rewording of a malicious prosecu- tion claim, dismissal of the equal protection claim is appropri- ate. See Vukadinovich v. Bartels, 853 F.2d 1387, 1391–92 (7th Cir. 1988). Second, Wade cannot show “that the defendants intention- ally treated [him] differently from others similarly situated to [him] for no other reason.” Williamson v. Curran, 714 F.3d 432, 449 (7th Cir. 2013).4 “The persons alleged to have been treated more favorably must be identical or directly comparable to the plaintiff in all material respects.” Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010). None of the individuals Wade points to was similarly situated. For instance, he first argues that Officers Yancy and Wheeler were similarly situated “because they provided inside information to Hosie Thurman and were not the subject of a criminal prosecution.” Appel- lant’s Brief at 26. But Officers Yancy and Wheeler were working undercover and hand-in-hand with the State’s Attorney’s Office in connection with Operation Pocket Change and provided the information to Thurman as part of the investigation. Next, Wade points to Maywood Police Officer Valerie Hastings as someone he believes is similarly situated 4 In this circuit there is a split concerning whether a plaintiff must also prove animus or improper motive for class-of-one claims. See Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887 (7th Cir. 2012) (en banc). However, we need not reach that issue in this case because Wade’s equal protection claim fails for other reasons. 14 No. 13-3207 but treated differently. Wade claims that Hastings had also given information to a drug dealer but that rather than being prosecuted, she was merely fired. There are two problems with Wade’s reliance on Hastings as a comparator. First, Wade does not support his argument concerning Hastings with record evidence. Before the district court, Wade attempted to file redacted documents discussing Hastings’s situation, but the district court ordered him to file the original, unredacted documents. Wade did not file those documents, but instead provided the court with “courtesy copies.” Because he did not file the documents with the district court, they never became part of the record and this court denied Wade’s motion to supplement the record on appeal. Second, Wade’s own description of Hastings’s situation distinguishes her case from Wade’s. Wade claims that Hastings provided information to a drug dealer named Brian Daviston. The district court found Hastings’s situation different because her call to Daviston had not been recorded. That is true but there is an even more material difference: There was evidence that Thurman already had police officers on his payroll and at the time that Wade disclosed information to Thurman, the State’s Attorney’s Office was undertaking a criminal investigation to discover the identity of the corrupt cops. Wade does not claim that Daviston, like Thurman, had police officers on his payroll and that the State’s Attorney’s Office was involved in the investi- gation at the time Hastings purportedly passed on the informa- tion. All of these differences render Hastings not comparable to Wade. Finally, Wade claims that Officer Wheeler treated officers involved in an earlier (June 2006) undercover opera- tion, dubbed “Operation Double Trouble,” more favorably by No. 13-3207 15 not seeking criminal prosecution of any officers who had contacted narcotics dealers during the course of that under- cover operation. But Wade does not point to any specific officer who was treated differently and instead merely claims the “Appellees failed to disprove” that other officers had not contacted drug dealers during Operation Double Trouble. Appellant’s Brief at 28. However, it is Wade and not the defendants who bears the burden of proof and to survive summary judgment, Wade must identify an individual who was similarly situated but treated differently, without a rational reason. See Fares Pawn, LLC v. Indiana Dept. of Fin. Instit., 755 F.3d 839, 845 (7th Cir. 2014). He has not done so. Accordingly, the district court properly granted the defendants summary judgment on Wade’s class-of-one equal protection claim.5 One loose end before closing. Throughout this discussion we have referred to the defendants jointly because Wade’s 5 Wade’s class-of-one equal protection claim likely also could not withstand the logic of Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008). In Engquist, “the Supreme Court held that public employees cannot bring class-of-one claims against their public employers because the theory is ‘simply a poor fit’ in the employment context, which necessarily ‘involve[s] discretionary decisionmaking based on a vast array of subjective, individu- alized assessments.’” Fares Pawn, 755 F.3d at 848 (quoting Engquist, 553 U.S. at 603, 605). In United States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008), we applied Engquist’s logic to reject a class-of-one equal protection claim based on the government actor’s exercise of prosecutorial discretion. Similarly, Wade’s class-of-one equal protection claim is not a good fit in the context of a harm caused by the State’s Attorney’s Office’s exercise of its prosecuto- rial discretion. But see Hanes v. Zurick, 578 F.3d 491, 495 (7th Cir. 2009). 16 No. 13-3207 malicious prosecution and equal protection claims cannot succeed. But, in reality, Mobley was the sole defendant responsible for making the roll call announcement and it was Mobley who informed the other defendants that he had done so. Had Wade presented sufficient evidence that Mobley had lied about making the roll call announcement, Wade would still need to establish a basis for holding Officers Collier and Wheeler, as well as the City of Maywood, liable. However, because there is no basis for liability for anyone, we did not explore this issue. III. Conclusion The district court properly granted the defendants sum- mary judgment on Wade’s claims. Wade’s malicious prosecu- tion claim fails because probable cause supported his prosecu- tion. Wade cannot succeed by merely reframing that claim as a class-of-one equal protection claim. Nor is an equal protec- tion claim well-suited to a case involving prosecutorial discretion, such as this one. Added to these defects is Wade’s failure to identify a similarly-situated individual who was treated more favorably. For these and the foregoing reasons, we AFFIRM. 

37 A.3d 1221 (2011) COM. v. MARQUEZ. No. 2941 EDA 2010. Superior Court of Pennsylvania. October 3, 2011. Reversed and Remanded.

262 B.R. 91 (2001) In re RJW LUMBER COMPANY, Debtor. Raymond A. Carey, Plaintiff, v. Flintridge Lumber Sales, Inc., Defendant. Bankruptcy No. 98-13417. Adversary No. 00-1204. United States Bankruptcy Court, N.D. California. March 19, 2001. *92 Douglas B. Provencher, Law Offices of Provencher and Flatt, Santa Rosa, CA, for debtor. Edward G. Myrtle, Office of United States Trustee, San Francisco, CA, for Linda Ekstrom Stanley, United States Trustee. Stephen P. Arnot, Philip M. Arnot, Inc., Eureka, CA, for Raymond A. Carey, trustee. ALAN JAROSLOVSKY, Bankruptcy Judge. Memorandum of Decision Debtor RJW Lumber Company filed a Chapter 11 petition on September 10, 1998, and its plan of reorganization was confirmed in 1999. RJW was unable to effectuate the plan, and the case was converted to Chapter 7 on September 8, 2000. Plaintiff Raymond Carey is the Chapter 7 trustee. In this adversary proceeding, he seeks to recover a prepetition preference paid to defendant Flintridge Lumber Sales, Inc. Flintridge has moved the court for summary judgment on two grounds. First, it argues that confirmation of the plan is res judicata as to this adversary proceeding. Second, it argues that the right to bring the action vested with the debtor upon confirmation and did not revest in the Chapter 7 trustee upon conversion. I. Res Judicata The court is not convinced of the merits of the res judicata argument for two reasons. First, the plan contains the following language: Confirmation of the Plan effects no settlement, compromise, waiver, or release of any Cause of Action unless the Plan or Confirmation Order specifically and unambiguously so provides. The nondisclosure or nondiscussion of any particular Cause of Action is not and shall not be construed as a settlement, compromise, waiver, or release of such Cause of Action. *93 Notwithstanding dicta in In re Kelley, 199 B.R. 698, 704 (9th Cir. BAP 1996), the court sees no basis in law for ignoring this express language. It is part of the judgment rendered by the court; if res judicata applies, it must apply equally to all parts of the judgment.[1] Moreover, the court doubts that res judicata prevents a Chapter 7 trustee from recovering preferences in a case converted from Chapter 11 after confirmation of a plan, even if there had been no reservation of rights in the plan. In order for res judicata to apply, the parties must be identical. A Chapter 7 trustee has the duty, under § 704(1) of the Bankruptcy Code to collect and liquidate property of the estate. Neither a debtor in possession or a Chapter 11 trustee has such a duty. See §§ 1106(a)(1), 1107(a). As a court of equity, this court is very reluctant to apply a technical legal doctrine to reach an inequitable result. The purpose of preference avoidance is the equitable distribution of an insolvent debtor's estate. Res judicata should not be applied to thwart the equitable goals of the Bankruptcy Code. II. Vesting Some courts have taken the technical position that conversion of a failed Chapter 11 to Chapter 7 is pointless because there is no mechanism for returning property to the estate upon conversion. For this reason, the court usually makes such a provision in its confirmation order. The court did not do so in this case. However, the court does not believe that the Bankruptcy Code should be interpreted as making conversion meaningless. Congress specifically made both inability to effectuate substantial confirmation of a confirmed plan and material default by a debtor with respect to a confirmed plan grounds for conversion of a Chapter 11 case to Chapter 7. 11 U.S.C. § 1112(b)(7), (8), (9). These provisions make no sense if there is no point to Chapter 7 administration. See In re Smith, 201 B.R. 267, 274 (D.Nev.1996), aff'd 141 F.3d 1179 (9th Cir.1998). The far better view, consistent with an integrated interpretation of the Code, is that upon conversion the Chapter 7 estate consists of all remaining assets held for the benefit of creditors. In re Consolidated Pioneer Mortgage Entities, 248 B.R. 368, 379-83 (9th Cir. BAP 2000).[2] In this case, the right to recover a preference was preserved and remains available for the benefit of creditors. The Code must be interpreted as allowing the Chapter 7 trustee to exercise it. For the foregoing reasons, the motion to dismiss will be denied, and Flintridge shall file an answer within 20 days. Counsel for *94 Carey shall submit an appropriate form of order. NOTES [1] Kelly did not involve a blanket reservation of rights. The only attempt at a blanket reservation the court can find which has been specifically held ineffective is vague language that "all causes of action which the debtor may choose to institute shall be vested with the debtor." In re Hooker Investments, Inc., 162 B.R. 426, 433 (Bkrtcy.S.D.N.Y.1993). The language used by the debtor in this case was far more specific. No creditor could be "sandbagged" in this case into thinking that confirmation waived any claims against it. [2] While Pioneer may be distinguishable on its facts as Flintridge here argues, it nonetheless stands for the correct proposition that property revests in the Chapter 7 estate unless the Chapter 11 plan unambiguously provided to the contrary. Thus, where property has been sold pursuant to the plan it cannot be recovered by the Chapter 7 trustee. However, where property has not been transferred or hypothecated, such that it can be administered by the Chapter 7 trustee without infringing on the rights of third parties, it becomes property of the estate upon conversion.

401 So.2d 976 (1981) Joseph HORDE v. Gerald FOUCHA and Vanguard Underwriters Insurance Company. No. 81-C-1310. Supreme Court of Louisiana. June 12, 1981. Denied.

940 F.2d 1539 Unpublished DispositionNOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.O.D. WOOLSEY, Plaintiff-Appellant,v.DEPARTMENT OF CORRECTIONS, Mark McKinna, Darryl Fish, EdClodfelter, Leroy Mathews, Charles Watson, LarrySpurlock, Bill Murray, Ben Johnson, andFrank Gardner, Defendants-Appellees. No. 91-1119. United States Court of Appeals, Tenth Circuit. Aug. 1, 1991. Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit Judges. ORDER AND JUDGMENT* BRORBY, Circuit Judge. 1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument. 2 Mr. Woolsey, a state prisoner, appeals the denial of relief under his pro se Sec. 1983 claim for damages. 3 Mr. Woolsey was an inmate and was transferred to another prison. Mr. Woolsey was not allowed to take his hobby materials with him and the prison stored them in a storage locker. The storage room was broken into by a person or persons unknown who stole most of Mr. Woolsey's property. Approximately $1,200 of his property remained while $6,203 worth of his property was taken. 4 Mr. Woolsey states he filed suit in state court in 1984 and this suit was dismissed for failure to file timely notice. According to Mr. Woolsey, the court ordered the prison authorities to transfer Mr. Woolsey's remaining property to his new prison and in 1987 this was done. Mr. Woolsey charges the property was ordered destroyed upon its arrival. 5 Mr. Woolsey then filed this pro se action seeking compensation under 42 U.S.C. Sec. 1983. Mr. Woolsey asked for damages in the amount of $116,203. Defendants filed a motion asking the complaint be dismissed for failure to state a claim. After referring the case to a magistrate judge and considering Mr. Woolsey's objections, the district court dismissed the action reasoning adequate state post deprivation remedies exist for the intentional deprivation of private property. The district court also rejected Mr. Woolsey's claims for the loss of his property which were grounded upon due process and cruel and unusual punishment. 6 In his pro se appeal to this court, Mr. Woolsey advances the same arguments made to the district court and contends he followed state procedures, was denied relief, and the federal courts should grant relief. He also asserts his state court claim was wrongly decided and argues this fact has resulted in his deprivation of various Constitutional rights. 7 Mr. Woolsey, as so many other pro se appellants, misperceives the use and purpose of Sec. 1983. Section 1983 does not exist to right every wrong--it creates no enforceable rights. Section 1983 serves only to ensure an individual has a cause of action for violation of the Constitution and federal laws. Courts have held, in this type of case, that the existence of the alternative state remedy supplies "due process" and thus there is no "deprivation" by the state. Accordingly, in Parratt v. Taylor, 451 U.S. 527 (1981), where an inmate sued a warden under Sec. 1983 over the loss of a hobby kit, the Court held the existence of a state tort claims procedure supplied due process and no federal claim could be presented. Parratt applied only to a negligent taking. Subsequently, in Hudson v. Palmer, 468 U.S. 517 (1984), the Parratt principle was extended to intentional taking. Thus, Mr. Woolsey has no claim. 8 As Mr. Woolsey's cruel and unusual punishment claim has no merit, the judgment of the district court is AFFIRMED for substantially the same reasons therein set forth. * This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

189 Kan. 581 (1962) 370 P.2d 100 THE STATE OF KANSAS, Appellee, v. MYRON R. HARKNESS, Appellant. No. 42,840 Supreme Court of Kansas. Opinion filed April 7, 1962. Jack E. Dalton, of Jetmore, argued the cause, and was on the briefs for the appellant. Tom Smyth, county attorney, argued the cause, and William M. Ferguson, attorney general, was with him on the briefs for the appellee. The opinion of the court was delivered by ROBB, J.: This is an appeal by defendant from a conviction of the offense of driving an automobile on the highways of the state of Kansas while his operator's license was suspended and revoked by the motor vehicle department of the state highway commission, and from the trial court's order overruling his motion for new trial. On July 13, 1961, complaint was filed by the county attorney of Ness county charging that on or about June 17, 1961, defendant unlawfully drove and operated a certain motor vehicle, namely, a 1961 Ford country sedan bearing 1961 Kansas license number NS-2162, upon a public highway while his operator's license was suspended and revoked by the vehicle department of the state of Kansas. A full jury trial was had and after the introduction of evidence, the trial court instructed the jury. We should perhaps pause to note that defendant's third and fourth contentions of error in regard to such instructions cannot be considered by this court on appeal for the reason that all of the instructions were not brought before us either in the abstract or in the counter abstract. The jury returned a verdict of guilty and the trial court entered judgment accordingly under G.S. 1961 Supp., 8-262, and this appeal followed. The statute in pertinent part reads: *582 "(a) Any person who drives a motor vehicle on any public highway of this state at a time when his privilege so to do is canceled, suspended or revoked shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment for not more than six (6) months and there may be imposed in addition thereto a fine of not more than five hundred dollars ($500)." The record before us explains how it was discovered that defendant had driven his automobile. He reported to his insurance company that while he had been driving his car approximately four miles east and seven miles south of Ness City the car caught fire and he wanted to file a claim to recover on his insurance policy. During the trial an exhibit marked No. 3 was admitted into evidence over the objection of defense counsel. One of the grounds for the objection was that the exhibit was improperly certified and defendant urges that same point here as reversible error. The exhibit now before us consists of six sheets of photostat reproductions of certain documents which have all been stapled together. The first, or top sheet, appears to be a letterhead of the motor vehicle department of the state highway commission dated July 24, 1961, and bears the heading "CERTIFICATE." In the body thereof L.A. Billings, superintendent of the motor vehicle department of the state highway commission certified that the attached photostat copies of "Letters of Revocation" and "Abstracts of Convictions" relative to Myron Russell Harkness were true and correct copies of the originals on file in the records of the department. His signature affixed thereto was verified by a notary public. The second attached sheet of the exhibit had a state highway commission heading with "Vehicle Department" printed thereunder and beneath this the title read "ORDER OF SUSPENSION OF PRIVILEGES TO OPERATE MOTOR VEHICLE IN KANSAS" and in the body appeared the following: "NUMBER 106 "TO MYRON R. HARKNESS _________________________________________________ "NESS CITY, KANSAS _________________________________________________ _________________________________________________ "LICENSE SURRENDER ON PREVIOUS CHARGE" The license was suspended on March 14, 1960, and could not be reinstated until September 30, 1961. The third sheet was likewise on a state highway commission motor vehicle department form and was entitled, "ABSTRACT OF RECORD OF CONVICTION." It showed: *583 Date of offense, March 2, 1960 Date of hearing, March 14, 1960 Date of sentence, March 28, 1960 Nature of offense committed, driving while license suspended and revoked. The signature of Clyde E. Burns, city judge of Ness City, was at the bottom thereof and this judge suspended and revoked the license of defendant (NS-1861) for the year 1960. We should perhaps explain at this point that sheet 2 in the exhibit is a copy of the notice sent to defendant based on this abstract of the record of conviction. Sheet 3 also contains a notation written in ink describing defendant's station wagon and then written beneath are these words: "Check pink sheet for registration." The fourth sheet, like the second, appears to be a copy of a notice sent to Myron Russell Harkness wherein he was ordered to surrender his license because it had been revoked from September 30, 1959, due to his having been convicted in the police court of Eureka, Kansas, of driving under the influence of intoxicating liquor. This interpretation is further borne out by a letter dated October 12, 1959, (sheets 5 and 6) in regard to the same offense which had been sent from the motor vehicle department to Myron Russell Harkness. It showed that his driver's license had been revoked at that time and that under no circumstances could he drive his car until a new driver's license had been issued. Defendant admits that under the certificate (sheet 3) the abstract of record of conviction was probably properly certified, as was the letter dated October 12, 1959, from the department to Harkness (sheets 5 and 6). It is apparent the sheets attached to the certificate are in reverse order to the sequence in which the incidents occurred. Technically speaking, it would probably have been better for the superintendent of the motor vehicle department to have certified each sheet rather than stapling them together and making one overall certification. At least there could then have been no question whatsoever that the certificate covered each and every page. However, the five sheets were all properly stapled securely to the certificate and since the two orders of suspension of privileges to operate a motor vehicle (sheets 1 and 3) are notices to Harkness of the status of his operator's license, we are unable to say that their inclusion was in any way prejudicial to the substantial rights of the defendant in this case so long as the record actually certified to and the admissions of the parties was sufficient, competent, substantial *584 evidence for the jury to find and conclude that defendant's driver's license was suspended and revoked at the time he was driving the car immediately prior to the time it was destroyed by fire. Defendant argues that because certain evidence was allowed in the case as to previous convictions, an inference of his guilt was created with the jury so as to prejudice the jury against him. We think this contention is not well taken for the reason that the crimes of which he had been convicted involved only infractions of the law causing his license to operate a motor vehicle on the highways of the state to be suspended or revoked. In order to show proper sequence of circumstances and conditions prior to the date defendant was charged, June 17, 1961, it was necessary to prove that his license had been revoked and for what reasons. This was part of the burden of the state in the prosecution of an offense of this kind and were we to follow defendant's theory, the statute (G.S. 1961 Supp., 8-262 [a]) would be made meaningless and therefore of no force and effect. A current Missouri license in defendant's possession is of no benefit whatsoever to him under G.S. 1961 Supp., 8-258, which, in substance, provides that while a driver's license is suspended and revoked under our act, a resident or nonresident cannot use a driver's license issued by a foreign jurisdiction to operate a motor vehicle in this state. We can find nothing in the record whereby defendant has sustained the burden which devolves upon him to make it affirmatively appear that his substantial rights have been prejudicially affected (G.S. 1949, 60-3317) and for that reason we are constrained to hold that the trial court did not err in any of the particulars complained of. Judgment affirmed. FATZER, J., dissenting: One of the defendant's specifications of error was that the district court erred in overruling his motion for a directed verdict and for discharge at the close of the state's case in chief. While it is with reluctance that I reach the conclusion the district court erred in the matter specified, I am of the opinion, for reasons hereafter stated, the motion should have been sustained and the defendant discharged. The parties concede that the state was required to prove two essential elements of the crime charged: First, that the defendant *585 was in fact operating a motor vehicle upon a public highway in Ness county; and second, that while so operating the motor vehicle his license to operate the same was suspended and revoked by the motor vehicle department. (G.S. 1961 Supp., Ch. 8, Art. 2.) There appears to be no question as to the sufficiency of the evidence to establish the first element of the offense, but in proof of the second element the state relied solely upon exhibit No. 3, which was received in evidence over the repeated objection of the defendant. In my opinion, that evidence was irrelevant, incompetent and prejudicial, and wholly failed to establish the second element of the offense; hence, the district court was not warranted in submitting the case to the jury. Exhibit No. 3, consisted of five separate pages, each on the letterhead or printed forms of the motor vehicle department. The first page was entitled "CERTIFICATE," executed by the superintendent of the motor vehicle department, in which he certified that the following attached photostatic copies of "Letters of Revocation "Abstracts of Convictions" pertaining to the defendant were true and correct copies of the original documents on file in that department. It is assumed that exhibit No. 3 was admitted in evidence pursuant to G.S. 1949, 60-2854, and G.S. 1961 Supp., 60-2854a (see also G.S. 1949, 67-224), however, it is noted that the superintendent's certificate did not certify to the attached photostatic copy of "ORDER OF SUSPENSION OF PRIVILEGES TO OPERATE MOTOR VEHICLE IN KANSAS" entered April 12, 1960, and for that reason the instrument should not have been admitted in evidence. Moreover, all parts of the exhibit other than those certified to by the superintendent were likewise inadmissible (MacRae v. Piano Co., 64 Kan. 580, Syl. ¶ 2, 68 Pac. 54; State v. Hall, 187 Kan. 323, 325, 356 P.2d 678; State v. Loyd, 187 Kan. 325, 326, 356 P.2d 825.) Page 2 of the exhibit was entitled "ORDER OF SUSPENSION OF PRIVILEGES TO OPERATE MOTOR VEHICLE IN KANSAS and was an order entered by the superintendent on March 14, 1960, and approved by him on April 12, 1960, suspending the defendant's privilege to operate a motor vehicle as a result of his conviction on March 14, 1960, in the city court of Ness City on a charge of driving while his license was suspended. That order suspended the defendant's license from April 12, 1960, until September 30, 1961, or for a *586 period of one year, five months, and eighteen days, pursuant to G.S. 1961 Supp., 8-256 and 8-262, and was in effect on June 17, 1961, the date the defendant was alleged to have committed the offense in question. Page 3 of the exhibit was entitled "ABSTRACT OF RECORD OF CONVICTION," and consisted of three paragraphs and the abstract of conviction. The first paragraph referred to G.S. 1949, 8-5,131, and recited that every justice of the peace or judge or clerk of a court shall within ten (10) days after the conviction or forfeiture of bail of a person charged with violation of the laws regulating traffic on highways, and the operation of vehicles thereon, or other provisions of the following section, or manslaughter or other felony in the commission of which a vehicle was used, shall immediately forward to the superintendent of the motor vehicle department, abstract of record of the person so convicted properly certified by such officer. The failure, refusal or neglect of any judicial officer to comply with any requirements of the act shall constitute a misconduct in office and shall be ground for removal therefrom. The second paragraph contained directions to the court in which a conviction was had to recover the operator's license from the person convicted of an offense requiring AUTOMATIC SUSPENSION of license, for the purpose of forwarding the license, together with the abstract, to the superintendent for suspension. The third paragraph stated that a judicial officer cannot suspend a license, he can only recommend such action, and that the superintendent under the law is the only person who can suspend a license. Thereafter followed the abstract of the defendant's conviction. It recited that he was charged in the city court of Ness City on March 2, 1960, with driving a motor vehicle while his license was suspended; that he entered a plea of guilty to that offense on March 14, 1960, and that on March 28, 1960, he was sentenced to the county jail for 30 days and fined one hundred dollars and costs. As will be noted, the abstract of conviction was the evidence upon which the superintendent acted in suspending the defendant's license for one year, five months and eighteen days, effective April 12, 1960, as set forth on page 2 of the exhibit. Page 4 of the exhibit was an order entered and approved by the superintendent on October 12, 1959, entitled, "ORDER OF REVOCATION OF PRIVILEGES TO OPERATE MOTOR VEHICLE IN KANSAS" suspending the defendant's privilege to operate a motor vehicle as a result of *587 his conviction in the police court in Eureka, Kansas, for driving a motor vehicle while under the influence of intoxicating liquor. That order suspended the defendant's license from September 30, 1959, for one year, or until September 30, 1960 (G.S. 1961 Supp., 8-256 [a]). As will be noted, that order was in effect when the defendant was convicted in the city court of Ness City, but it had expired on June 17, 1961, when the offense here in question was alleged to have been committed. The record indicates that the superintendent suspended the defendant's license for a six-months' period commencing April 12, 1960, but he also used the order entered October 12, 1959, as a result of the defendant's Eureka conviction, to extend the period of suspension of the defendant's license for one year, that is, for six months plus one year, or until September 30, 1961, pursuant to G.S. 1961 Supp., 8-262 (b), which provides: "The department upon receiving a record of the conviction of any person under this section upon a charge of driving a vehicle while the license of such person was suspended shall extend the period of such suspension for additional like period...." Page 5 of the exhibit was a letter written to the defendant at Ness City on October 12, 1959, advising him of his conviction in Eureka on September 30, 1959; that pursuant to the statute now cited as G.S. 1961 Supp., 8-254, his license was revoked and was not subject to renewal or restoration except in the form of an application for a new license, which would not be granted for at least one year from the date of revocation (September 30, 1959); that he was required to surrender the registration certificate and license tags of all vehicles registered in his name as the owner unless proof of financial responsibility was immediately filed, and conditions for compliance with proof of financial responsibility were outlined. It further recited that under no circumstances should he drive a motor vehicle until a new driver's license had been issued and he had complied fully with the requirements showing proof of financial responsibility. Time does not permit an extended review of our statutes relating to the suspension or revocation of an operator's or chauffeur's license. The two terms are defined in G.S. 1961 Supp., 8-234, and mean different things, but it is unnecessary here to differentiate between the two. Conviction of offenses described in G.S. 1961 Supp., 8-254, requires the motor vehicle department to forthwith *588 revoke the license upon proof of the conviction. Section 8-255 authorizes the department to suspend the license of an operator or chauffeur without preliminary hearing upon a showing by its records or other evidence that the operator has committed an offense or has been convicted of the different types of offenses therein described. It further provides that upon suspending or revoking the license of any person the department shall immediately notify the licensee, in writing, and upon his request, shall afford him an opportunity for a hearing in the county of the licensee's residence as early as practicable within 20 days after receipt of the request. The department may either rescind its order of suspension or, for good cause shown, may extend the suspension of the license, or revoke the same. Section 8-256 deals with the period of suspension or revocation, and section 8-259 gives the person whose license has been suspended or revoked by the department, except where the revocation was mandatory under section 8-254, the right to appeal to the district court in the county wherein he resides and to take testimony and examine the facts whether he is entitled to his license, or it is subject to suspension or revocation. (Lee v. State, 187 Kan. 566, 358 P.2d 765.) Section 8-260 deals with the unlawful use of a license, and section 8-262, the one under which the defendant was here charged, makes it unlawful to drive while the license is suspended or revoked. It is obvious from the foregoing sections that the only manner in which an operator's or chauffeur's license may be suspended or revoked is by an order of the motor vehicle department. Hence, the only instrument in exhibit 3 which was competent to prove the second element of the offense charged was the "ORDER OF SUSPENSION OF PRIVILEGES TO OPERATE MOTOR VEHICLE IN KANSAS" approved April 12, 1960, and, as we have seen, it was not certified to by the superintendent and was inadmissible under the statutes and our decisions heretofore referred to. It should have been excluded on the basis of the defendant's objections. The order of the superintendent of April 12, 1960, suspending the defendant's license was authorized by law (G.S. 1961, 8-255), and in the absence of an appeal to the district court pursuant to G.S. 1961 Supp., 8-259, it became final and binding upon the defendant until it expired, and was not subject to collateral attack in a subsequent criminal action for his driving a motor vehicle during the period of suspension of his license. In my opinion, the *589 "ABSTRACT OF RECORD OF CONVICTION" in Ness county on March 14, 1960, was irrelevant and prejudicial because it had served its purpose at the time of trial and was then immaterial. It was the evidence upon which the superintendent entered the order of April 12, 1960, suspending the defendant's license for the 17 months-plus period, and should not have been included in the abstract nor admitted in evidence. Likewise, the "ORDER OF REVOCATION OF PRIVILEGES TO OPERATE MOTOR VEHICLE IN KANSAS" entered October 12, 1959, suspending the defendant's license for one year from September 30, 1959, was immaterial. As previously indicated, that order had expired on the date here in question, although it formed the basis of the superintendent's action on April 12, 1960, extending the period of suspension of the defendant's license until September 30, 1961 (G.S. 1961 Supp., 8-262). Moreover, the letter of October 12, 1959, was highly prejudicial, immaterial and incompetent as to whether the defendant's license had been suspended or revoked on June 17, 1961. At most, this record discloses that someone in the motor vehicle department gathered up some papers, stapled them together, and prepared a certificate for the superintendent to sign, which was wholly inadequate and improper for admission in evidence. The plain simple facts are that the certificate needed to only include the "ORDER OF SUSPENSION OF PRIVILEGES TO OPERATE MOTOR VEHICLE IN KANSAS" entered April 12, 1960. Exhibit No. 3 was the only evidence tending to prove that the defendant's license was suspended or revoked, and because of its irrelevancy, incompetency, defective certification and prejudicial nature it should not have been admitted. The state's evidence failed to establish a prima facie case, and the defendant's motion for a directed verdict should have been sustained. I would reverse the judgment with direction to discharge the defendant (G.S. 1949, 62-1716). SCHROEDER, J., dissenting: There is a break in the chain of evidence necessary to sustain a conviction in this case. The link necessary to establish that the appellant was operating his vehicle, while his operator's license was suspended or revoked, was the "Order of Suspension of Privileges to Operate Motor Vehicle in Kansas," dated April 12, 1960. This order suspended his privilege to operate motor vehicles in Kansas from March 14, 1960, *590 and stated that his license could not be reinstated before "9-30-61." While a copy of this order was attached to the certificate of the Superintendent of the Motor Vehicle Department, it was not certified as being one of the documents attached. As such, it was incompetent as evidence in the trial of the case over appellant's objection. The complaint was filed July 13, 1961, charging appellant with an offense on the 17th day of June, 1961. The letter of revocation (certified) shows only revocation for one year for driving while under the influence of intoxicating liquor for conviction on September 30, 1959. The Abstract of Record of Conviction (certified) shows suspension of driver's license for offense of "Driving while license Suspended & Revoked," conviction 3-2-60, hearing 3-14-60, and sentence 3-28-60. No other material date is shown by this document. One year from 3-28-60 would be 3-28-61, long prior to the date of the alleged offense herein. (See, G.S. 1949, 8-256.) Thus, the order dated April 12, 1960, was necessary in proof. It is respectfully submitted that the judgment of conviction should be reversed and a new trial granted.

Aurora Loan Servs., LLC v Chirinkin (2016 NY Slip Op 00139) Aurora Loan Servs., LLC v Chirinkin 2016 NY Slip Op 00139 Decided on January 13, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on January 13, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. LEONARD B. AUSTIN SHERI S. ROMAN BETSY BARROS, JJ. 2014-03522 (Index No. 13579/11) [*1]Aurora Loan Services, LLC, respondent, vNelli Chirinkin, et al., appellants, et al., defendants. Lester & Associates, P.C., Garden City, NY (Roy J. Lester and Gabriel R. Korinman of counsel), for appellants. McCabe, Weisberg & Conway, P.C., New Rochelle, NY (Keith Ferguson, Mark Golab, and Jordan M. Smith of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendants Nelli Chirinkin and Alexei Chirinkin appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered February 7, 2014, which, after settlement conferences pursuant to CPLR 3408, denied their motion, inter alia, to restore the action to the mortgage foreclosure settlement conference part calendar. ORDERED that the order is affirmed, with costs. The defendants Nelli Chirinkin and Alexei Chirinkin (hereinafter together the defendants) failed to demonstrate that the plaintiff did not negotiate in good faith during the foreclosure settlement conferences (see CPLR 3408). There is nothing in the record to support the claim that the plaintiff engaged in conduct that improperly hindered the settlement process or needlessly prevented the parties from reaching a mutually agreeable resolution (see Flagstar Bank, FSB v Titus, 120 AD3d 469, 470; Wells Fargo Bank, N.A. v Van Dyke, 101 AD3d 638, 638; cf. U.S. Bank N.A. v Smith, 123 AD3d 914, 916; US Bank N.A. v Sarmiento, 121 AD3d 187, 204-205). Contrary to the defendants' contention, the plaintiff did not violate CPLR 3408 by refusing to lower the principal or the interest rate or by rejecting the terms of the defendants' counteroffer (see Bank of Am., N.A. v Lucido, 114 AD3d 714, 715-716; Wells Fargo Bank, N.A. v Van Dyke, 101 AD3d at 638). Accordingly, the Supreme Court properly denied the defendants' motion, inter alia, to restore the action to the mortgage foreclosure settlement conference part calendar. DILLON, J.P., AUSTIN, ROMAN and BARROS, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

21 F.3d 1121 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Jacqueline GORDON and George Gordon, Plaintiffs-Appellants,v.Teresa STANLEY; Tulsa County Jail; Stanley Glanz, Sheriff;Bill Reeves, Captain; Donald Cherry, Lieutenant; RedWakefield, Lieutenant; Robbie Moore, Nurse; Bill Thompson,Undersheriff; Jane Cook, Matron; Denise Conley, Matron;Dr. Ronald Barnes; Ed Smittle, Sergeant; Lance Ransey,Deputy; Deputy Hlyton; Vent Jeffries, Deputy; PhillipAdams, Deputy; Jack Seales, Lieutenant; Joe Wagner,Sergeant; Jim Helms; Ernestine Turwell, Deputy; John DoesA through E, Defendants-Appellees. No. 93-8120. United States Court of Appeals, Tenth Circuit. April 4, 1994. Before SEYMOUR, Chief Judge, McKAY, and BALDOCK, Circuit Judges. ORDER AND JUDGMENT1 SEYMOUR 1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument. 2 Ms. Jacqueline Gordon and her husband, George Gordon, brought this pro se action alleging that during two separate arrests of Ms. Gordon, various defendants associated with the City of Tulsa violated her federal civil rights. Ms. Gordon's claims against the Tulsa County Jail and the other defendants include: infliction of cruel and unusual punishment, sexual harassment, false imprisonment, deliberate indifference to medical needs, genocide, denial of equal protection and due process under the law, denial of religious free exercise, religious discrimination, racial discrimination and violations of federal prison standards. Mr. Gordon claims that these violations resulted in a loss of consortium. Following a non-jury trial, the district court judge made extensive findings of fact and conclusions of law. Based on these findings and conclusions, the court dismissed all of the Gordons' claims. 3 On appeal, the Gordons argue that the district court erred in its assessment of the facts and application of the law. They do not include in the record on appeal any portion of the trial transcript. Under Fed. R.App. P. Rule 10(b)(2), "[i]f an appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding." When an appellant does not designate a trial transcript "as part of the record on appeal, an appellate court cannot review the district court's factual findings and must accept them as correct." Trujillo v. Grand Junction Regional Center, 928 F.2d 973, 976 (10th Cir.1991). 4 Indigent appellants proceeding in forma pauperis may obtain a transcript of district court proceedings in accordance with 28 U.S.C. 753(f) if they can show that a substantial question is at issue. The Gordons did not proceed in forma pauperis, however, nor did they make any request for a transcript. Because the Gordons did not file a transcript as part of the record on appeal, they waive any "claims concerning the sufficiency of the evidence." United States v. Vasquez, 985 F.2d 491, 495 (10th Cir.1993). 5 We review de novo the Gordon's claim that the district court erred in applying the law to the findings of fact. After thoroughly reviewing the briefs and the record in this case, we conclude that the district court applied the proper law. We AFFIRM the judgment substantially for the reasons stated in the district court's opinion. 1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

382 F.Supp. 556 (1974) UNITED STATES of America v. Steve POND and David G. Fanelli. No. 73 Cr. 1145. United States District Court, S. D. New York. September 30, 1974. *557 Paul J. Curran, U. S. Atty. by Nicholas Figueroa, Asst. U. S. Atty., New York City, for plaintiff. Joseph J. Zedrosser, New York City, Legal Aid Society, for defendant Pond. Arthur W. Baily, New York City, for defendant Fanelli. MEMORANDUM OPINION PIERCE, District Judge. The defendants herein have been charged in a two count indictment with conspiracy to violate federal narcotics laws and with illegal possession of approximately 77 pounds of marijuana. Pursuant to Rule 41 of the Fed.R.Crim. P. both defendants have moved to suppress the evidence on the ground that it was seized under a defective search warrant. Defendant Pond has also moved to suppress post-arrest statements on various alternative grounds. An evidentiary hearing was held relating to these matters. A. Motion to Suppress the Evidence It appears that a search warrant was issued by a Magistrate on December 6, 1973 based upon the affidavit of George Sweickert, a Special Agent for the Drug Enforcement Administration (DEA). The affidavit alleged that the affiant had received his information from another agent in California. The California agent had reported that he in turn had received information from an unnamed source to the effect that one Bill Pond had checked for transportation aboard a train at the San Diego Amtrak station a blue-gray suitcase and a footlocker containing a large quantity of marijuana. The informant claimed to have been certain that he had detected the odor of marijuana emanating from the baggage. In addition, the affidavit recited that based on his "past experience, skills and the indicators developed such as the disproportionate ratio of baggage weight to size" the informant had concluded that a large quantity of marijuana was being transported on the train. The informant also relayed a description of defendant Pond, the clothes he was wearing, the numbers of the baggage claims tickets he had received, and the estimated time of arrival of the train in New York City. All this information was contained in the affidavit. In addition, paragraph six of the affidavit *558 set forth allegations tending to establish the grounds for belief in the sources' reliability. See copy of affidavit below.[1] On the next day, armed with this search warrant, several DEA agents proceeded to Penn Station where the train was scheduled to arrive. A warrant for Pond's arrest had also been obtained. Two of the agents stationed themselves in the baggage claim area at Penn Station in New York City where they posed as baggage claim employees. One of these agents executed the warrant by opening the footlocker. The blue-gray suitcase was not opened. Other agents observed Pond as he alighted from the train from San Diego. Pond was met at the station by co-defendant Fanelli and both were followed as they walked together to the baggage claim counter. Pond was carrying a maroon suitcase with white trim not mentioned in the search warrant. Apparently when Pond reached the baggage claim counter he presented his claim stubs and collected the blue-gray suitcase and the footlocker. Pond and Fanelli then left the train station with Pond carrying the footlocker and Fanelli the two suitcases. Shortly thereafter, they were both arrested. All three items of luggage were then taken to the DEA offices where they were opened. The footlocker proved to contain 19 bricks of marijuana and the maroon and blue-gray suitcases, 12 and 13 bricks of the same substance, respectively. The bricks had each been wrapped in red and brown paper and were also enclosed in plastic material. Shortly after the hearing commenced the Court ruled that the affidavit in support of the search warrant was legally *559 sufficient on its face to support a finding of probable cause for the issuance of the search warrant. The standards employed in making this ruling were those enunciated by the Supreme Court in the so-called "two-prong" test in Aguilar v. United States, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Under this test an affidavit based solely on the hearsay report of an unindentified informant must disclose the facts on which the informant relied to base his conclusions that the drugs were where he claimed them to be and the circumstances from which it was concluded that the informant was reliable. Id. at 114, 84 S.Ct. 1509, 12 L.Ed. 2d 723. The Sweickert affidavit revealed that the informant had smelled the marijuana and had also used another "indicator", i.e., the disproportionate ratio of baggage weight to size to buttress his conclusion that the baggage contained marijuana. This particular informant was not unknown to the authorities and he had proven his reliability on a number of other occasions in the past. It was averred that the informant had an acute sense of smell which had "been invariably accurate in the past detection of marijuana in similar circumstances" to those in this case. Two specific examples were cited to reaffirm the informant's reliability. Having read this affidavit "in a commonsense and realistic fashion" United States v. Harris, 403 U.S. 573, 577, 91 S.Ct. 2075, 2079, 29 L.Ed.2d 723 (1971) citing United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) this Court concluded that the Aguilar requirements had been met. Faced with this ruling, the defendants' attack necessarily centered on the accuracy of the statements contained in the affidavit. In this regard, this Court was more than liberal in proceeding to a hearing on this issue without requiring the defendants to make an initial showing of the existence of falsehood in the affidavit or other imposition on the Magistrate. United States v. Dunnings, 425 F.2d 836, 840 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970). Be that as it may, it soon appeared early at the hearing that there was at least some minimal basis for the defendants' position. Thus Special Agent McCravy (the California agent) testified that contrary to what the affidavit indicated he had not been told that the informant had partially based his conclusion that there was marijuana in the baggage on the disproportionate ratio of baggage weight to size. Subsequent efforts by the government to offset this testimony were, in this Court's opinion, unsuccessful. A reading of the transcript of the hearing discloses that the discrepancy between this testimony and the allegations in the affidavit was not resolved. Accordingly, I find that there was indeed a misrepresentation in the affidavit and, in the absence of contrary testimony, that the defendants have shown that the informant had not in fact based his report on the disproportionate ratio of baggage weight to size as alleged in the affidavit. However, there has been no evidence that the misrepresentation was intentional. On the contrary, I find that at the most it was negligently made. The other allegations of misrepresentation— concerning the agents' basis for giving credence to the informant's report— the Court finds without merit as not supported by the evidence adduced during the hearing. Having found a misrepresentation, the issue presented is whether the misrepresentation is of such a character that the search warrant must be invalidated. In its recent decision in United States v. Gonzalez, 488 F.2d 833, 837-838 (2 Cir. 1973) the Second Circuit discussed the standards to be applied when a discrepancy in a supporting affidavit to a search warrant has been established. The Court noted that three other circuits have held that "when the truthfulness of the facts underlying a warrant has become suspect, the warrant will be set aside and the evidence derived from it suppressed where there is a showing *560 that the affiant has made a material and knowing misstatement in the affidavit." Id. at 837. The Court also took note of other variations on the standard. Thus, under a stricter view, the warrant should be set aside if a material misrepresentation is negligently made. In Gonzalez the Court was not constrained to adopt one particular test since it found the misrepresentation to have been non-material and negligently made. Nevertheless, this Court feels that the Gonzalez decision points the way to a proper resolution of the question presented here. The pivotal issue in this case is whether the misrepresentation or the misstatement in the affidavit was "material", that is, whether it was of such a nature that were it not found in the affidavit, no finding of probable cause could be made and the warrant could not have been issued. I find that the affidavit supports a finding of probable cause absent the allegation as to the ratio between the baggage weight and size. In this Court's view, under the circumstances of this case and given the informant's prior experience and record of performance, the sense of smell was sufficient to make the necessary probable cause finding. I therefore find that the misrepresentation was not material. The defendants have maintained that in this Circuit the rule is that the accurate detection through smell of narcotics or alcohol, without more, is insufficient to support the issuance of a search warrant. This Court does not agree with that reading of the cases. In Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932) a warrantless search based on the odor of whiskey alone was held invalid. In United States v. Kaplan, 89 F.2d 869 (2d Cir. 1937), an early Second Circuit case dealing with this issue, the Court following Taylor held that an arrest without a warrant that was based merely on the smell of whiskey emanating from the defendant's premises was legally insufficient. However, the Court noted that "the officer could have applied for a warrant which . . . might then have been valid." Id. at 871. Subsequent cases such as Cheng Wai v. United States, 125 F.2d 915 (2d Cir. 1942) and United States v. Kronenberg, 134 F.2d 483 (2d Cir. 1943) also dealt with warrantless arrests. However, in these two cases, the Court found that there was more than the sense of smell to give the agents reasonable cause to believe that a crime was being committed. In Cheng Wai the defendant was observed making preparations prior to smoking opium and in Kronenberg he was seen disposing of a paper bag under suspicious circumstances. In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) the Supreme Court was again faced with the issue. There the officers, having smelled the odor of opium coming from the defendant's hotel room, proceeded to knock on the door and arrest her without a warrant. The Supreme Court held the arrest invalid noting that "[a]t the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a warrant." Id. at 13, 68 S.Ct. at 368. The Court went on to say: "If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character." Id. The last Second Circuit case this Court has been able to find dealing with this issue is United States v. Lewis, 392 F.2d 377, cert. denied, 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968). In Lewis a search warrant had been issued which in part stated that a "strong mash or alcohol odor" had been detected "from cracks in and around [defendant's] door". Id. at 378 n.1. The lower court had upheld the warrant remarking that while it might be the better practice *561 for the Commissioner to require proof of the affiant's ability to recognize the odor "the detection of odors may be sufficient for the issuance of a warrant." United States v. Lewis, 270 F.Supp. 807, 811 (S.D.N.Y.1967) (Mansfield, J.). The Second Circuit affirmed stating: "While an odor by itself does not justify a search without a warrant, sufficient probable cause for issuance of a search warrant is shown when a sufficiently qualified person smells the distinctive odor of a forbidden substance emanating from the premises of a person previously convicted of an alcohol violation." 392 F.2d at 379 (citations omitted). It seems clear to this Court from these cases that while it is true that the detection of drugs or alcohol odors, without more, will not justify an arrest or a search without a warrant, it may well support the issuance of such a warrant. "`[P]robable cause' which would justify the issuance of a search warrant is much less than the `probable cause' required to legally arrest without a warrant." Miller v. Sigler, 353 F.2d 424, 427 (8th Cir. 1965), cert. denied, 384 U.S. 980, 86 S.Ct. 1879, 16 L.Ed.2d 690 (1966), relying on Johnson v. United States, supra. The intervention of a judicial officer adds a new dimension to the proceedings. See United States v. Kaplan, 89 F.2d 869, 871 (2d Cir. 1937); United States v. Rellie, 39 F.Supp. 21, 22 (E.D.N.Y.1941). The defendants' reliance on United States v. Condrick, 73 Cr. 226 (S.D.N.Y., filed Nov. 9, 1973) (Tenney, J.) is misplaced since in that case no warrant was initially issued. What disturbed the Court there was the fact that a warrant was not obtained although the officers had ample time to do so. Such is not the case here. The more troubling issue presented in this case is raised by the fact that the person who detected the odor was not the one who swore to the affidavit. Both Johnson, supra, and Lewis, supra, premised their observations on the fact that the individual who was to appear or had appeared before the Magistrate had presumably himself smelled the odors. In the instant case the informant relayed the information to the California agent who in turn gave the information to the New York agent who then came before the Magistrate. Clearly, the affidavit was based on hearsay evidence. This, however, is not fatal. As observed in Jones v. United States, 362 U.S. 257, 272, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960); "[A]s hearsay alone does not render an affidavit insufficient, the Commissioner need not have required the informants or their affidavits to be produced, . . . so long as there was a substantial basis for crediting the hearsay." In this case such a "substantial basis" would exist if there is some indication that the informant was competent to smell the contraband. And while it would be preferable if the informant appeared before the Magistrate, the realities of these situations, as here, would appear to dictate that this cannot always occur. Mindful of the Second Circuit's admonition that "[o]ne of the best ways to foster increased use of warrants is to give law enforcement officials the assurance that when a warrant is issued in a close case, its validity will be upheld" United States v. Lewis, 392 F.2d at 379, this Court holds that a "substantial basis" was provided to the Magistrate upon which he could independently conclude that the informant was qualified to detect the marijuana aroma. Here, the Magistrate was told that the informant had an acute sense of smell and that he had proven himself reliable under similar circumstances in past cases. He was given two specific instances in which the informant had demonstrated his competence. Given the fact that in this case the informant was about 3,000 miles away and that the train was due to arrive the next day, this Court deems the information given sufficient to support the issuance of the warrant. Much was made during the hearing of the improbability that a person *562 could have smelled the aroma of the marijuana substance given the fact that the bricks were securely wrapped in the manner noted above. The Court considers this issue to be wide of the mark of the critical area of inquiry raised by the motion to suppress. The Court is concerned not with whether the informant could in fact smell the aroma of the marijuana emanating from the baggage in question, but rather with whether the agents had accurately reported to the Magistrate the basis for the informant's conclusion and the reasons for the belief that the informant was reliable. In this Court's judgment, were it to be otherwise, every application for a search warrant based on the observations of an absent informant could lead to a mini-trial concerned with the testimonial capabilities of that individual. This would be an unwelcome and unwarranted development. The motions to suppress the evidence in the footlocker and the blue-gray suitcase on the ground that the search warrant was invalid are denied. As indicated above the officers also seized and searched a suitcase that was not mentioned in the search warrant. A motion to suppress this evidence has also been made. At the commencement of the hearing the Court denied this motion but upon reflection has reassessed its ruling. While it is true that an item not identified in a search warrant may properly be seized if it is reasonably related to the purpose of the search, I believe that this principle is not applicable here. United States v. Pacelli, 470 F. 2d 67 (2d Cir. 1972), cert. denied, 410 U.S. 983, 93 S.Ct. 1501, 36 L.Ed.2d 178 (1973) instructs us that for such a seizure to be valid it must appear that during the course of a lawful search the officer inadvertently came upon other incriminating evidence, contraband, instrumentalities of crime or the like which would be valid objects for seizure and which were reasonably related to the purpose of the search. This is in substance the so-called "plain-view" doctrine. Applying its terms to the situation here, I find as an insurmountable obstacle the hard fact that the contraband here was simply not in plain view. It was contained in a suitcase which might well have contained the personal effects of the defendant or simply some other articles not subject to seizure. While it is true that the circumstances may well have led the officers to suspect that the maroon suitcase also contained contraband, such a suspicion, in this Court's view, is insufficient to support a warrantless search. Accordingly, I conclude that the contraband seized from the maroon suitcase with white trim must be suppressed. B. Other Motions Other motions by the defendants to suppress small quantities of marijuana seized from their persons and to suppress post-arrest statements are denied since the record indicates that they are without merit. Pond was given the Miranda warnings immediately after his arrest and at least twice again thereafter. Fanelli also received his warnings at the time of his arrest. In this connection the Court notes that the government has indicated that it will not introduce at trial any post-arrest statements, if any, made by Fanelli. The allegations by Pond that he was threatened at the DEA office in that he was told that he was fortunate that he was apprehended by federal rather than state agents since state penalties were much higher the Court finds not to have been threatening. There is no testimony at all in the record to support Pond's further charge that he was told that unless he cooperated he would be turned over to the state authorities. Finally, the bald assertion, unsupported by any other allegations, that the five hour delay in bringing Pond before a Magistrate after his arrest was in and of itself unreasonable is totally unpersuasive. In short, having taken into consideration all the factors enumerated in 18 U.S.C. § 3501 this Court finds that *563 the post-arrest statements attributed to Pond were voluntarily given. C. Conclusion The motions to suppress the evidence contained in the maroon suitcase are granted. Defendants' other motions are denied. The Court notes that the validity of Fanelli's arrest is still an open question. This matter will be inquired into prior to any disposition of the case. So ordered. NOTES [1] The supporting affidavit read as follows: I am a Special Agent of the Federal Drug Enforcement Administration, Department of Justice. I have been notified by Special Agent ED McCRAVY, D.E.A. of the San Diego office that a reliable source has informed him: 1. That a white male in possession of a large amount of marijuana has boarded AMTRAK Train #40 (The Broadway Limited) at San Diego bound for Penn Station, New York, New York, (via Chicago, Illinois) scheduled to arrive here on Friday, 12-7-73 at 10 a. m. 2. That the marijuana was carried aboard said train in a blue gray suitcase and a foot locker bearing psychedelic (sic) colors or symbols, and weighing approximate 50 and 35 pounds respectively. 3. That said baggage was checked aboard said train at the San Diego Amtrak office on 12-4-73 by a passenger identified as BILL POND. 4. That said Bill Pond is described as white male, approximately 25 years of age, 6'1", weighing approximately 200 pounds, long blond hair, having a beard. At the time of boarding the train he was described as wearing denim pants, green pull-over shirt, brown jacket and moccasin type shoes. 5. That said Bill Pond checked the said two pieces of baggage and was given baggage receipt tags Nos. 977-017 and 977-018 for the footlocker and suitcase respectively. 6. That said source of this information has proven himself reliable in the past based upon approximately 40 cases leading to over 70 arrests and an aggregate recovery of marijuana in excess of 2000 pounds. That said source relies among other things, on an acute sense of smell which has been invariably accurate in the past detection of marijuana in similar circumstances as those at present. That he detected marijuana under similar circumstances about five weeks ago, and that among his many instances of detection there was one seizure of over 120 pounds of marijuana at Penn Station, N.Y.C. within the past year that was contained in a foot locker and a suitcase under similar conditions as those here. 7. That the source is certain he has detected the aroma of marijuana emanating from the aforementioned baggage and that based on his past experience, skills and the indicators developed such as a disproportionate ratio of baggage weight to size, he has concluded that a large amount of marijuana is being transported on said train. 8. Additionally your affiant based on his experience has knowledge that San Diego, California, is a convenient transfer point for smugglers of marijuana from Mexico, the border of which is but a short distance from San Diego. /s/ George Sweikert Special Agent

103 F.3d 122 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.Tolliver QUACO, Defendant-Appellant. No. 96-7259. United States Court of Appeals, Fourth Circuit. Submitted: Nov. 7, 1996.Decided: Nov. 20, 1996. Tolliver Quaco, Appellant Pro Se. Cathleen Ann Tutty, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee. E.D.Va. DISMISSED. Before RUSSELL and WIDENER, Circuit Judges, and PHILLIPS, Senior Circuit Judge. PER CURIAM: 1 Appellant seeks to appeal the district court's order denying his motion filed under 28 U.S.C. § 2255 (1994), amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. United States v. Quaco, No. CR-90-275-A-A (E.D.Va. July 9, 1996). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. 2 DISMISSED.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MATTHEW ERIC REID, ) ) Appellant, ) ) v. ) Case No. 2D18-2535 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed January 4, 2019. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Michelle Sisco, Judge. Matthew Eric Reid, pro se. PER CURIAM. Affirmed. See McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013); Doby v. State, 25 So. 3d 598 (Fla. 2d DCA 2009); Steward v. State, 931 So. 2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002); Jackson v. State, 640 So. 2d 1173 (Fla. 2d DCA 1994). CASANUEVA, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur. 

766 F.Supp.2d 651 (2011) UNITED STATES of America v. Esteban NUNEZ-BETANCOURT, Defendant. No. 7:10-CR-00069-FL-L. United States District Court, E.D. North Carolina, Southern Division. February 4, 2011. *652 Jennifer E. Wells, U.S. Attorney's Office, Raleigh, NC, for United States of America. *653 ORDER LOUISE W. FLANAGAN, Chief Judge. This matter comes before the court on defendant's motion to suppress (DE # 18), to which the government has responded and to which response defendant has filed a reply. Pursuant to 28 U.S.C. § 636(b)(1), United States Magistrate Judge William A. Webb entered a memorandum and recommendation ("M & R") wherein he recommended that the court deny defendant's motion to suppress. Defendant timely filed an objection to the M & R, and the government responded. In this posture, the issues raised are ripe for ruling. For the reasons that follow, defendant's motion to suppress is denied. STATEMENT OF THE CASE Defendant was originally charged in a two-count indictment returned by the grand jury on June 16, 2010. In the superceding indictment, dated August 26, 2010, the grand jury charged defendant on three counts: (1) conspiracy to distribute and possession with intent to distribute five hundred (500) grams or more of a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) illegal reentry of an alien having been previously deported in violation of 8 U.S.C. § 1326; and (3) being an illegal alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) and 924. On August 20, 2010, defendant filed the instant motion to suppress, seeking to exclude certain physical and testimonial evidence. The government filed a response in opposition on September 3, 2010, to which defendant replied on September 13, 2010. Pursuant to 28 U.S.C. § 636(b)(1), the matter was referred to the magistrate judge. On October 1, 2010, the parties appeared before the magistrate judge for an evidentiary hearing. The magistrate judge issued his M & R on November 15, 2010, 2010 WL 5764468 wherein it was recommended that defendant's motion to suppress be denied. Defendant filed an objection to the M & R on November 26, 2010, to which the government responded on December 9, 2010. On December 30, 2010, the court on its own initiative, in giving its attention to the significant issues raised by defendant's motion to suppress but noting defendant's heavy reliance on out of circuit precedent, suggested that defendant file a supplemental memorandum supported by Fourth Circuit precedent. Defendant's supplemental memorandum was filed on January 12, 2011. The government was given until January 24, 2011, to file a response, but did not do so. On December 7, 2010, defendant filed a motion for discovery (DE #48). Defendant's arraignment is currently set for February 15, 2011, before the undersigned. STATEMENT OF FACTS The investigation leading to defendant's arrest originated with a confidential tip. In February 2010, Special Agent Thomas Swivel ("Agent Swivel") of Immigration and Customs Enforcement ("ICE") interviewed a cooperating federal defendant in South Carolina regarding possible drug activity at a trailer located at 519 Old Baggett Road in Nakina, Columbus County, North Carolina. (Def.'s Ex. 7) The cooperating defendant stated that the trailer was used by Hispanic drug dealers as a prostitution house as well as a stash house and distribution point of "large amounts" of cocaine. (Id.) Soon thereafter, the Columbus County Sheriffs Office began conducting surveillance on the property. (Id.) On March 1, 2010, at approximately 3:00 p.m., Detective Kevin Norris ("Detective Norris"), Detective Justin Worley ("Detective Worley"), and Lieutenant Steven Worthington ("Lieutenant Worthington"), all of *654 the Columbus County Sheriffs office, drove to the property to conduct surveillance and observed two vehicles, a Nissan Sentra and a Jeep Cherokee, parked in the driveway. (Def.'s Ex. 2) Although the officers had conducted surveillance between ten and twenty times on the property, this was the first time they had observed any cars there. (Id.) Detectives Worley and Norris approached the trailer and knocked on the door, while Lieutenant Worthington remained in the service vehicle. (Mot. to Supp. Hr'g Tr. p. 9-10) Defendant answered the door. (Tr. p. 15) Defendant informed the officers that he resided at the trailer. (Def.'s Ex. 2) The officers explained that they had reason to believe narcotics were being stored at the residence and requested consent to search. (Def.'s Ex. 1) Defendant refused consent to search the residence. (Id.) The officers asked if anyone else was inside the residence, and defendant informed them that his friend Norberto Nunez-Aguirre ("Nunez-Aguirre") was inside. (Id.) Asked if they had valid identification, both defendant and Nunez-Aguirre provided Mexican identifications, North Carolina identifications, and Florida identifications (Id.) The officers determined that neither man had valid driver's licenses. (Id.) Defendant also informed officers that he was in the United States illegally. (Tr. p. 19-20) Thereafter, at approximately 3:20 p.m., the officers left the residence but maintained surveillance of the residence from a concealed location. (Def.'s Ex. 1) Approximately ten minutes later, at 3:30 p.m., the officers saw the Jeep Cherokee with two male occupants leaving the residence. (Id.) Based on their knowledge that neither of the two men at the residence had a valid driver's license, the officers conducted a traffic stop at 3:31 p.m. (Id.) The officers verified that the two men in the vehicle were the same men from the residence, and further determined that the driver, Nunez-Aguirre, had no driver's license. (Id.) Nunez-Aguirre consented to a search of the vehicle, during which search the officers discovered $30,000.00 in United States currency, in $100.00 and $50.00 denominations, wrapped in clear plastic and hidden under the rear seat of the vehicle. (Def.'s Ex. 2). Both defendant and Nunez-Aguirre were handcuffed, but were told they were not under arrest. (Resp. in Opp'n, p. 5) At approximately 4:00 p.m., the officers contacted Agent Swivel to inform him of the traffic stop and to request immigration checks for the subjects. (Def.'s Ex. 2) Agent Swivel was able to determine over the telephone that Nunez-Aguirre was a previously deported alien, but was unable to determine defendant's immigration status over the telephone. (Id.) Accordingly, Agent Swivel requested that the officers continue to detain defendant until Agent Swivel could arrive on the scene, so Agent Swivel could personally interview defendant. (Id.) Agent Swivel testified that he spoke with the officers on the telephone until approximately 4:30 p.m., and then immediately left his office in Wilmington. (Tr. p. 26) He arrived at the scene at approximately 6:45 p.m. (Id.) The government has submitted evidence showing that the trip from Wilmington to the residence at 519 Old Baggett Road in Nakina is approximately ninety (90) miles with no direct route. (Resp. in Opp'n, Ex. 1) Shortly after Agent Swivel arrived on the scene, he interviewed defendant in Spanish, without advising defendant of his Miranda rights. (Def.'s Ex. 2) During the interview, defendant informed Agent Swivel that he was in the United States illegally and that he had twice been deported. (Id.) Based on the biographical information provided by defendant, Agent Swivel was *655 able to confirm that defendant had been previously deported. (Id.) Defendant further informed Agent Swivel that he had only lived at the residence for a week or two, and that he did not know to whom the currency in the vehicle belonged. (Id.) Agent Swivel asked defendant's consent to search the residence but also informed defendant that he did not have to consent; however, defendant gave consent to search the residence. (Id.) Agent Swivel then read the consent form to defendant in Spanish, and again explained that he had the right to refuse consent. (Id.) Again, defendant consented to the search, and signed the consent form at approximately 8:30 p.m. (Id.; Def.'s Ex. 5) When Agent Swivel asked defendant if there were any narcotics, contraband, currency, or firearms in the residence, defendant stated that detectives would find a firearm belonging to defendant hidden beneath some clothing in a laundry basket. (Def.'s Ex. 2) At 8:40 p.m., officers conducted a search of the residence and discovered a Smith and Wesson .22 caliber handgun, which was determined to have been stolen after officers conducted a record check of the serial number. (Id.) Additionally, officers discovered a fraudulent Permanent Resident Card and a Social Security Card bearing defendant's name. (Id.) Officers completed the search of the residence at approximately 9:10 p.m., and at that time arrested defendant for possession of a stolen firearm. (Id.) After defendant was arrested, he was transported to the Columbus County Sheriffs Office. (Id.) At some point after arriving there, defendant was advised of his Miranda rights in Spanish using a pre-printed form, after which defendant waived his right to counsel and agreed to speak to the officers, although there is a discrepancy as to exactly when this occurred. The ICE investigation report states that the interview began at approximately 9:10 p.m., and suggests that defendant signed the waiver form before the interview began. (Def.'s Ex. 3) The consent form itself states that defendant signed the document at 10:07 p.m. (Def.'s Ex. 4) After waiving his rights and agreeing to be interviewed, defendant was interrogated by Agent Swivel. (Def.'s Ex. 3) During the course of the interrogation, defendant informed Agent Swivel that he was in the United States illegally and that he had twice been deported. (Id.) Defendant stated that a friend had given him the firearm, that he had been in possession of it for approximately two months, and that he did not know it was illegal for him to possess it. (Id.) Defendant stated that he did not know to whom the money in the car belonged. (Id.) Agent Swivel terminated the interview at approximately 10:45 p.m. (Id.) Defendant is now charged in a three-count indictment with: (1) conspiracy to distribute and possession with intent to distribute five hundred grams or more of a mixture and substance containing a detectable amount of methamphetamine; (2) possession of a firearm by an alien illegally and unlawfully in the United States; and (3) illegal reentry. Defendant has moved to suppress the physical evidence gained during the search of the residence as well as statements he gave during the interrogations. DISCUSSION A. Standard of Review These issues are before the court with benefit of the magistrate judge's thoughtful analysis. The district court reviews de novo those portions of a magistrate judge's M & R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a *656 party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Absent a specific and timely filed objection, the court reviews only for "clear error," and need not give any explanation for adopting the M & R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). B. Analysis To aid the analysis of the issues at hand, it is helpful to identify the separate occurrences of March 1, 2010, which trigger constitutional inquiry. First, at 3:00 p.m., county law enforcement officers conducted a "knock and talk" at the trailer. Then, at 3:30 p.m., the same officers conducted a traffic stop of the car in which defendant was a passenger, after witnessing the driver commit a traffic violation. Shortly thereafter, defendant was placed in handcuffs and was detained at the request of Agent Swivel. At approximately 6:45 p.m., Agent Swivel arrived and some time thereafter interviewed defendant without giving him Miranda warnings, during which interview defendant made statements regarding his immigration status and his possession of a firearm, and gave consent to search his residence. At 8:40 p.m., officers conducted a search of defendant's residence pursuant to defendant's consent, during which search the firearm was discovered. At 9:10 p.m., defendant was formally arrested and transported to the sheriffs office where officers advised defendant of his Miranda rights, obtained a waiver of those rights, and interviewed defendant again. Defendant moves to suppress all evidence seized by law enforcement during the search of defendant's residence, as well as statements made by defendant during interrogations with law enforcement. In support of his motion to suppress, defendant argues that his detention following the traffic stop was unlawful in that it exceeded the permissible scope of an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Defendant further argues that he was "in custody" for purposes of Miranda when he was first interviewed by Agent Swivel, and therefore that the failure to properly advise defendant of his Miranda rights prior to the interview amounted to a constitutional violation. Accordingly, defendant argues that the consent given to search his trailer was tainted by his illegal arrest and interrogation. In response, the government argues that defendant's detention following the traffic stop was a lawful investigative detention supported by reasonable suspicion under Terry. Accordingly, the government argues that Miranda warnings were not required prior to the first interview with Agent Swivel, and therefore that defendant's consent to search the trailer was valid. The magistrate judge reasoned that defendant's detention following the traffic stop was a valid investigative detention under Terry conducted pursuant to reasonable suspicion. On these grounds, the magistrate judge concluded that Miranda warnings were not required and that defendant's consent to search his residence was valid. The magistrate judge accordingly recommended that defendant's motion to suppress be denied. Defendant objected to the M & R on several grounds. First, defendant argues that the detention following the traffic stop was not lawful because it was not *657 supported by reasonable suspicion. Second, defendant argues that the sheriffs officers had no authority to detain defendant pending investigation of suspected federal immigration violations. Third, defendant argues that the officers did not have reasonable suspicion that defendant was involved in drug trafficking. Fourth, defendant argues that the detention following the traffic stop was not lawful because it was too long in duration and also because the manner of the detention was too invasive. Lastly, defendant argues that the detention was transformed into a full custodial arrest by the length and manner of the detention. The court reviews de novo those portions of a magistrate judge's M & R to which specific objections are filed. 28 U.S.C. § 636(b). It is worthwhile to first mention that defendant lodges no challenge to the legality of the "knock and talk" encounter at defendant's trailer, as he acknowledges that brief, consensual and noncoercive interactions with law enforcement do not trigger the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (noting that an "encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature"). Defendant concedes as well that the traffic stop itself was lawful. A temporary detention of individuals during a traffic stop does constitute a seizure for Fourth Amendment purposes, no matter how brief the detention or how limited its purpose. Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). However, an officer's observation of a traffic violation constitutes sufficient justification for a police officer to detain the vehicle for as long as it takes to perform the traditional incidents of a routine traffic stop. United States v. Foreman, 369 F.3d 776, 781 (4th Cir.2004). Because the officers in this case knew that neither man in the car had a valid driver's license, the officers were justified in conducting the traffic stop. The constitutional issues begin, according to defendant, with the defendant's detention following the traffic stop. Around 3:40 p.m., officers conducted a consent search of the vehicle and discovered the hidden $30,000.00 in United States currency. At that time, defendant was placed in handcuffs. Officers contacted Agent Swivel to inform him of the incident and to request immigration status reports on both defendant and Nunez-Aguirre. Because Agent Swivel was unable to confirm defendant's immigration status over the telephone, Agent Swivel requested that officers continue to detain defendant until he could arrive from Wilmington, which was approximately ninety (90) miles away and with no direct route. Agent Swivel began the trip shortly after hanging up the telephone around 4:30 p.m., and arrived on the scene around 6:45 p.m., interviewing defendant shortly after his arrival. Defendant argues that his detention after the traffic stop was unlawful because it was not supported by reasonable suspicion. It is well-established that during a routine traffic stop, such as the one here, an officer may briefly detain the driver and passengers in order to perform the traditional incidents of a routine traffic stop, such as request a driver's license and vehicle registration, run a computer check, and issue a citation. Foreman, 369 F.3d at 781. "Any further investigative detention, however, is beyond the scope of the Terry stop and, therefore, illegal unless the officer has a reasonable suspicion of other criminal activity or the individual consents to the further detention." Id. Defendant's detention beyond the routine traffic stop, therefore, is justifiable only if supported by reasonable suspicion of other criminal activity. *658 The Supreme Court's holding in Terry explains that reasonable suspicion exists where a police officer has a reasonable belief that criminal activity is afoot. Terry, 392 U.S. at 30, 88 S.Ct. 1868. The Supreme Court has since explained that the reasonable suspicion standard is not precisely articulable, but rather is a "commonsense, nontechnical conception" that deals with "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Ornelas v. U.S., 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Accordingly, the reasonable suspicion standard is not readily "reduced to a neat set of legal rules," but is simply a "particularized and objective basis for suspecting the person stopped of criminal activity." Id. at 695-96, 116 S.Ct. 1657. Whether reasonable suspicion existed is to be determined based on the events which occurred leading up to the stop, and then the decision whether those historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion. Id. at 696, 116 S.Ct. 1657. The defendant's prolonged detention was properly supported by reasonable suspicion on two separate grounds. First, the officers had reasonable suspicion that defendant was involved in drug trafficking. The officers were investigating on a confidential tip that the trailer on Old Baggett Road was being used as a stash house by Hispanic drug dealers. During the "knock and talk" at the trailer, officers learned that defendant lived in the trailer. Shortly after conducting the "knock and talk" and questioning defendant about illegal drugs, the officers observed defendant and Nunez-Aguirre driving away although neither had a valid driver's license. Finally, during a consent search of the vehicle, officers discovered $30,000.00 in United States currency hidden under the back seat, which was packaged in a manner consistent with the smuggling of drug proceeds. These facts and the inferences drawn from them, taken together, certainly created reasonable suspicion that defendant was involved in drug trafficking. See U.S. v. Branch, 537 F.3d 328, 337 (4th Cir.2008) (explaining that reasonable suspicion exists where factors, taken together, could produce a reasonable suspicion of criminal activity). Secondly, the officers certainly had reasonable suspicion that defendant was an illegal alien, inasmuch as defendant told the officers he was in the United States illegally, produced only Mexican identification cards, and did not have a valid driver's license. Because the officers had reasonable suspicion that defendant was involved in drug trafficking and that he was an illegal alien, the investigative detention of defendant following the traffic stop is valid. Defendant next argues that the investigative detention, which lasted for several hours and during which time defendant was held in handcuffs, was too lengthy to be justified as an investigative detention under Terry. In some cases, a detention which was lawful at its inception may become unconstitutional by virtue of its duration, such that "if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop." U.S. v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). The Supreme Court, however, has repeatedly declined to establish a bright-line rule for determining the appropriate length of a detention. See Id. at 685-86, 105 S.Ct. 1568 (explaining that "common sense and ordinary human experience must govern over rigid criteria"). Rather, in determining whether a detention is too long in duration to be justified as an investigative stop, the appropriate question is "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, *659 during which time it was necessary to detain the defendant." Id. at 686, 105 S.Ct. 1568. A court making this assessment should consider whether the police are acting in a swiftly developing situation, and should balance the law enforcement objectives against the invasion of defendant's Fourth Amendment interests. Id. The question is whether the detention lasted longer than was necessary, given its purpose. Branch, 537 F.3d at 336 (4th Cir.2008) (citing Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Defendant's detention, although somewhat lengthy, was not too long in duration to be justified as an investigative stop when considering the surrounding circumstances. Officers had reasonable suspicion that defendant was in the United States illegally. After Agent Swivel was unsuccessful in determining defendant's immigration status over the telephone, officers agreed to detain defendant until Agent Swivel could arrive. Agent Swivel departed almost immediately, and interviewed defendant shortly after arriving on scene. It was necessary for officers to detain defendant in the meantime in order to preserve the status quo until defendant's immigration status could be confirmed. The officers were diligent and not dilatory in pursuing this means of investigation, which was likely to, and in fact did, confirm their suspicions quickly. Obvious exigencies, including Agent Swivel's need to personally interview defendant in order to correctly identify him, as well as the distance Agent Swivel had to travel to conduct the interview, necessitated a longer period of detention to determine defendant's immigration status. See U.S. v. Diaz-Quintana, 596 F.Supp.2d 1273, 1280 (D.N.D.2009) (finding that twenty-four (24) hour detention pending investigation of defendant's immigration status was lawful where exigencies required a longer period of detention). The detention is therefore properly justified as an investigative detention under Terry. Defendant next argues that the length of the detention coupled with the use of handcuffs rendered the seizure so intrusive that it was transformed into a full custodial arrest which was unsupported by probable cause and therefore unlawful. Detective Worley testified that after the hidden currency was discovered in the vehicle, defendant was handcuffed "for officer's safety." (Tr. Detention Hr'g, at 9-10). The officers had reasonable suspicion that defendant was involved in drug trafficking. The Fourth Circuit has recognized that reasonable police officers recognize "the close relationship between drugs and guns and the possible danger inherent in a drug transaction." U.S. v. Davis, 383 Fed.Appx. 269, 273 (4th Cir.2010). Furthermore, the Supreme Court has emphasized that the safety of law enforcement officers is a weighty interest, and has explained that officers conducting a Terry stop are authorized to "take such steps as are reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop." U.S. v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The officers were justified in handcuffing defendant for their own safety while waiting for Agent Swivel to arrive. Not only was the use of handcuffs justified, but the use of handcuffs is not sufficient to transform the Terry stop into a custodial arrest requiring probable cause. The Fourth Circuit has held that it is not the degree of restriction of an individual's liberty that transforms a Terry stop into a custodial arrest, but rather the duration of the stop. See Davis, 383 Fed.Appx. at 274. Indeed, a "brief but complete restriction of liberty is valid under Terry." U.S. v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995). For those reasons, officers' actions *660 to restrain a suspect, including "drawing weapons, handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or threatening to use force," are not sufficient to transform a Terry stop into a custodial arrest. Davis, 383 Fed.Appx. at 274. Because, as already explained, defendant was detained for no longer than necessary to complete the purposes of the stop, the complete restriction of defendant's liberty during that period does not elevate the detention to a custodial arrest. Defendant's final argument against the legitimacy of the detention involves an attack on the Columbus County Sheriffs officers' authority to temporarily detain defendant on suspicion of violating federal immigration laws. Defendant argues that "the [d]etectives were without authority to detain persons for immigration enforcement." (Def.'s Mot. to Supp., 13). Generally, federal agents are authorized to interrogate or arrest persons believed to be violating immigration laws. See 8 U.S.C. § 1357(a). Under certain circumstances, state and local law enforcement officers may become authorized to perform immigration officer functions. See 8 U.S.C. § 1357(g)(1). This program, popularly known as the 287(g) program, permits the deputizing of local law enforcement officers to perform immigration enforcement activities pursuant to a written agreement. Id.; see also U.S. v. Sosa-Carabantes, 561 F.3d 256, 257 (4th Cir. 2009). Defendant argues that because there was no such agreement in this case, the local officers had no authority to simply detain defendant at the request of Agent Swivel. Defendant's argument is without merit, as § 1357 itself recognizes that an agreement is not required for local law enforcement officers to cooperate with federal authorities "in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." 8 U.S.C. § 1357(g)(10); see also Santos v. Frederick County Board of Commissioners, 2010 WL 3385463, *3, n. 9 (D.Md.2010) (observing that officers not participating in the 287(g) program are still permitted to assist in the enforcement of federal immigration laws). The court is explicitly not determining whether the officers had the authority to interrogate or arrest defendant, as that issue is not before the court. Rather, the court merely concludes that the officers' temporary investigative detention at the request of Agent Swivel was not unwarranted. For the reasons enumerated above, the investigative detention of defendant pending confirmation of his immigration status was constitutionally valid. Accordingly, Miranda warnings were not required prior to defendant's first interview with Agent Swivel. It is well-recognized that Miranda warnings are not required when a suspect is not in custody, but rather temporarily detained under Terry. See U.S. v. Sullivan, 138 F.3d 126, 130 (4th Cir.1998). Further, the Fourth Circuit has recognized that restrictions on liberty such as the use of handcuffs, placing a suspect in a patrol car, and drawing weapons, do not necessarily amount to a custodial arrest for Miranda purposes. U.S. v. Leshuk, 65 F.3d 1105, 1109-10 (1995). Because defendant was merely temporarily detained pursuant to a lawful Terry stop, Miranda warnings were not required. It follows that defendant's consent to search his residence was not tainted by an unlawful detention or questioning. For the foregoing reasons, defendant's objections to the M & R are overruled, and defendant's motion to suppress is denied. CONCLUSION Upon de novo review of those portions of the magistrate judge's M & R to which specific objections have been filed, and upon considered review of those portions *661 of the M & R to which no such objection has been made, the court concludes that defendant's objections to the M & R shall be overruled. Defendant's motion to suppress (DE # 18) is accordingly DENIED.

16-4022-cr (L) United States v. Brooks UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of November, two thousand eighteen. PRESENT: JOHN M. WALKER, JR., PIERRE N. LEVAL, CHRISTOPHER F. DRONEY, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee-Cross-Appellant, v. 16-4022-cr (L), 16-4288-cr (XAP) LOIS BROOKS, A/K/A STACKS, Defendant-Appellant-Cross-Appellee. _____________________________________ FOR APPELLEE-CROSS-APPELLANT: NOAH SOLOWIEJCZYK, (Daniel B. Tehrani, Assistant United States Attorneys, on the brief) for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY. 1 FOR DEFENDANT-APPELLANT- ANDREW MARK ST. LAURENT, CROSS-APPELLEE: Harris, St. Laurent & Chaudhry LLP, New York, NY. Appeal from the United States District Court for the Southern District of New York (Buchwald, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED and REMANDED in part. Defendant-Appellant-Cross-Appellee, Lois Brooks ("Brooks"), appeals from the district court’s judgment of conviction entered on November 17, 2016, following her guilty plea. On appeal, Brooks contends that her guilty plea was not knowing and voluntary. Appellee-Cross-Appellant, the United States of America (the "Government"), appeals Brooks's three year term of supervised release because it is less than the statutory mandatory minimum term of five years. For the reasons explained below, we affirm the district court's acceptance of the guilty plea and judgment of conviction but we vacate the district court's sentence insofar as it set the duration of supervised release and remand to the district court for a new sentencing hearing on the supervised release term. We assume the parties’ familiarity with the facts and record of prior proceedings, which we briefly summarize as necessary to explain our decision. We then turn to the merits of this appeal. I. Brooks's Guilty Plea and Sentence On December 1, 2014, Brooks was charged by a criminal complaint with sex trafficking of a minor. Brooks was arrested on December 8, 2014, subsequently waived indictment, and was charged through an information of conspiracy to engage in sex trafficking in violation of 18 U.S.C. § 1594(c), sex trafficking of a minor victim in violation of 18 U.S.C. § 1591(a) and (b)(2), use of interstate commerce to promote unlawful activity in violation of 18 U.S.C. § 1952(a)(3), and sex trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a), (b)(1), and (b)(2). On June 28, 2016, Brooks pleaded guilty to a superseding information pursuant to a plea agreement with the United States Attorney's Office for the Southern District of New York. Brooks pleaded guilty to the two counts in the superseding information: conspiracy 2 to commit sex trafficking of a minor in violation of 18 U.S.C. § 1594(c), and the use of interstate commerce to promote unlawful activity in violation of 18 U.S.C. § 1952(a)(3). The parties stipulated in the plea agreement and plea proceeding to a Sentencing Guidelines range of 87 to 108 months' imprisonment. At the beginning of the plea hearing, Brooks informed the district court that she was being treated for "mood disorder and bipolar depression" and that she was on medication for those conditions but could not identify the particular medication because it had "changed a lot." The district court then asked Brooks if the medication had an effect on her "ability to understand and have conversations with people," and she answered that it did not. The district court also asked Brooks to alert the court if she was having difficulty understanding the court. Following a recitation by the government of the elements of both charges, Brooks indicated that she understood them and that she was waiving various rights, which the district court had reviewed with her. Brooks also stated before the district court that she had read and understood the plea agreement, discussed it with her lawyer, and that her plea was voluntary. Brooks acknowledged that the plea agreement included a stipulated Guidelines range of between 87 and 108 months’ imprisonment. Brooks then gave her own account of her conduct, which supported the counts of conviction, and admitted to transporting a 17-year-old for the purpose of having her engage in a commercial sex act. The district court accepted the plea, concluding that Brooks understood its charges and consequences, that it was made knowingly and voluntarily, and that there was a factual basis to support the plea. Brooks's lawyer subsequently submitted a sentencing memorandum on her behalf to the district court, which discussed the difficult circumstances of her life, including the sexual and physical abuse that she suffered as a child, her time spent as a sex worker, her kidnapping by a rival pimp and his accomplices, and her subsequent cooperation with law enforcement to prosecute her kidnappers. Brooks's memorandum also noted that she had been assessed with a full-scale IQ of 78 in 1994 and that later tests, in which she scored a 70 and 77, had placed her in the range of borderline developmental disability, she had tested in the "extremely low range" of nonverbal reasoning, and she “was diagnosed with attention deficit/hyperactivity disorder, learning disorder, dysthymic disorder . . . , and borderline intellectual functioning.” A. 65. The memo also included information related to her suspected prenatal alcohol and drug exposure, history of lead poisoning, and seizure disorder. Brooks moved to withdraw her guilty plea after judgment was entered, but the district court converted that motion to a petition under 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel. That petition was denied by the district court and the claim of ineffectiveness of counsel is not before us in this appeal. 3  Brooks was sentenced by the district court on November 16, 2016. The district court imposed a non-Guidelines sentence of 48 months’ incarceration. The district court also entered a forfeiture order and placed Brooks on supervised release for three years following her imprisonment. Brooks challenges on appeal the knowing and voluntary nature of her plea. The Government has filed a cross appeal, arguing that the district court was required to impose a five-year mandatory minimum period of supervised release. II. Voluntariness of the Guilty Plea To satisfy due process, Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir. 2005), a district court may only accept a guilty plea where there is "an affirmative showing that it was intelligent and voluntary," Boykin v. Alabama, 395 U.S. 238, 242 (1969). "Rule 11 [of the Federal Rules of Criminal Procedure] sets forth requirements for a plea allocution and is designed to ensure that a defendant's plea of guilty is a voluntary and intelligent choice among the alternative courses of action open to the defendant." United States v. Andrades, 169 F.3d 131, 133 (2d Cir. 1999) (internal quotation marks and citations omitted). Under Rule 11, after a defendant is sentenced, a guilty plea may be set aside on direct appeal or collateral attack. Fed. R. Crim. P. 11(e). "To successfully challenge a guilty plea conviction based on a Rule 11 violation, a petitioner must establish that the violation constituted a 'constitutional or jurisdictional' error, or establish that the error resulted in a 'complete miscarriage of justice,' or in a proceeding 'inconsistent with the rudimentary demands of fair procedure.'" Zhang v. United States, 506 F.3d 162, 168 (2d Cir. 2007) (quoting United States v. Timmreck, 441 U.S. 780, 783 (1979)). We evaluate whether a plea is knowing and voluntary by looking to the "totality of the relevant circumstances" under which the plea is taken. Hanson v. Phillips, 442 F.3d 789, 798 (2d Cir. 2006). In order to withdraw a guilty plea, a "defendant must raise a significant question about the voluntariness of the original plea." United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997). Brooks maintains that her guilty plea was not knowing and voluntary because of her borderline intellectual disability, complex history of mental illness, and her likely exposure to alcohol before birth, and lead paint during her early childhood.1 Brooks argues that 1 To the extent that Brooks is also arguing that her psychiatric medications provide a basis for a finding that the plea agreement was involuntary, we reject that argument as well. The district court, during the plea 4 testimony developed during a subsequent 28 U.S.C. § 2255 hearing does provide such a basis. In relevant part, that hearing included testimony from a forensic social worker called by Brooks2 that "there were indications and signs and symptoms as well as documentation in the records that" Brooks suffered from "intellectual and cognitive impairments." Supp. A. at 10. She also testified that Brooks's cognitive condition would require her defense counsel to "be[] very clear and careful in how [he] was explaining" the plea agreement and her options, and explained that "[i]t meant that there were things that she needed to hear repeatedly and needed to be broken down in the most basic terms and repeated multiple times to make sure that she understood what was involved." Id. While the district court denied the § 2255 application, it did find the social worker's testimony credible. Brooks argues that, based on this testimony, she could not have understood the legal concepts explained in the plea colloquy unless they were explained to her in basic terms multiple times and thus her guilty plea could not have been knowing and voluntary. Brooks asks this Court to remand to the district court for an evidentiary hearing on the voluntariness of Brooks's plea. We need not reach the question of whether the social worker’s testimony is admissible on appeal because we conclude that, even considering this evidence, the district court did not err in accepting the plea as knowing and voluntary.3 Though Brooks has borderline developmental disabilities, the record reflects that she understood the trial judge’s questions during the plea colloquy and the district court made sure Brooks knew she should notify the court if she had any questions. See United States v. Powell, 249 F. Supp. 3d 617, 624-25 (EDNY 2017) (finding a person with a borderline intellectual disability can knowingly and voluntarily plead guilty). Brooks also described her criminal conduct to the district court, which indicated her understanding of the charges she was facing. agreement, asked Brooks whether the medications impacted her ability to understand the proceedings. A. 47. Brooks confirmed that they did not. Id. The district court complied with Rule 11's requirements regarding the use of psychiatric drugs. United States v. Rossillo, 853 F.2d 1062, 1067 (2d Cir. 1988). Moreover, Brooks's confirmation at the hearing that she was entering the plea voluntarily and that she understood her rights further undermines these claims. 2 The witness, Melissa Lang, had been retained by Brooks as a “mitigation specialist” for her sentencing hearing. 3 Brooks has filed a motion asking us to take judicial notice of, and supplement the record on appeal with, the district court’s decision as to her § 2255 petition. Dkt. No. 59. She also requests that we supplement the record with testimony provided in connection with her petition. Id. We now grant her motion but, for the reasons explained, find that the supplemented record does not affect our conclusion. 5  Moreover, at the plea hearing, her counsel stated that he did not have any reason to believe Brooks ought not to plead guilty, A. 59; see United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) ("A failure by trial counsel to indicate that the defendant had any difficulty in assisting in preparation or in comprehending the nature of the proceedings provides substantial evidence of the defendant's competence.") (internal quotation marks omitted), and Brooks had a lengthy discussion with the social worker related to the implications of her guilty plea and her concerns regarding the length of a potential prison sentence. Taken together, the evidence shows that Brooks had a "rational as well as actual understanding of the proceedings against [her]," Godinez v. Moran, 509 U.S. 389, 396 (1993), and that her guilty plea was knowing and voluntary. We affirm the district court’s acceptance of Brooks’s guilty plea. III. The Supervised Release Term The Government's cross-appeal contends that the district court erred in sentencing Brooks to three years of supervised release because the mandatory minimum term of supervised release for a violation of 18 U.S.C. § 1594(c) is five years under 18 U.S.C. § 3583(k). The Government concedes that it did not raise this objection until after the written judgment was issued by the district court, and thus it is reviewed under a plain error standard. Appellee Br. 26. To establish plain error, the Government must show "(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Tarbell, 728 F.3d 122, 126 (2d Cir. 2013) (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)). In this instance, there was clearly an error that was plain. In relevant part, 18 U.S.C. § 3583(k) provides, "the authorized term of supervised release . . . for any offense under section . . . § 1594(c) . . . is any term of years not less than 5, or life." This mandatory minimum term of five years supervised release was included in the plea agreement and discussed at the plea hearing. Because the district court sentenced Brooks to a 3 year term of supervised release, it plainly erred. Having found plain error, we turn to the question of whether the Government's substantial rights were affected. Because Brooks's term of supervised release was two years shorter than was required by statute, the Government argues that its substantial rights were 6 affected. We have previously found that errors in imposing mandatory minimums, when they affect a defendant's sentence, do affect that defendant's substantial rights. United States v. Sanchez, 773 F.3d 389, 392-93 (2d Cir. 2014). We conclude, too, that when there is an error in applying a mandatory minimum to a defendant such that they receive a sentence shorter than mandated, the Government’s substantial rights are similarly affected. Finally, the Government argues that because mandatory minimums were intended by Congress to apply to all defendants convicted of the crimes for which the minimums exist, the failure to apply the mandatory minimum period of supervised release affects the "fairness, integrity or public reputation" of the proceeding. Brooks does not offer an argument to the contrary. We agree with the Government that the fairness of the proceeding has been affected by the district court’s error. As such, we vacate the part of the sentence that sets the duration of supervised release and remand to the district court for resentencing with further consideration of the mandatory minimum sentence of five years supervised release. For the reasons stated above, we AFFIRM in part and VACATE and REMAND in part the district court's judgment for further consideration of the supervised release sentence in light of this summary order. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 7 

395 A.2d 92 (1978) Paul J. HARVEY, Appellant, v. UNITED STATES, Appellee. Nos. 11213, 12693. District of Columbia Court of Appeals. Argued September 14, 1978. Decided November 28, 1978. Rehearing and Rehearing En Banc Denied March 7, 1979. *93 Thomas C. Devlin, Washington, D. C., appointed by this court, for appellant. David S. Krakoff, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Peter E. George, Bernard J. Panetta, II, and Richard W. Goldman, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee. Before GALLAGHER, NEBEKER and MACK, Associate Judges. MACK, Associate Judge: Following a jury trial, appellant was found guilty of second-degree burglary (D.C.Code 1973, § 22-1801(a)); armed robbery (id. §§ 22-2901, -3202); assault with intent to kill while armed (id. §§ 22-501, -3202); and malicious disfigurement (id. § 22-506). On appeal, he assigns as error 1) the trial court's refusal to suppress lineup and subsequent in-court identifications which occurred after an allegedly suggestive confrontation; 2) his reindictment to include additional charges; 3) the fact that the grand jury which reindicted him heard only hearsay evidence through the reading of the first grand jury minutes; 4) a purportedly impermissible inference in the prosecutor's closing argument; and 5) the denial of his motion for a new trial on the basis of ineffective assistance of counsel.[1] We affirm. Because appellant's argument primarily focuses on the allegedly suggestive pretrial confrontation, we will recount, at some length, the evidence bearing upon identification. THE ROBBERY At approximately 6:15 p.m. on September 30, 1975, Mrs. Mary Turner was cleaning offices on the second floor of the Department of Agriculture. She kicked open the door to a darkened room and saw the head of a man rising from behind the desk. She screamed for help and backed approximately forty feet down a hallway. Due to the energy crisis, every other light was out in the hallway. However, Mrs. Turner was directly under the light in front of the elevator when her assailant grabbed her and dragged her back into the darkened room. Mrs. Turner saw the face of her assailant from the time he dragged her from the hall back into the office.[2] The assailant then proceeded to beat her with an iron pipe and robbed her of her wallet. Finally, he made his escape through the halls and stairways of the building. *94 A fellow worker, Mr. Reggie Patterson, chased the assailant for approximately twenty minutes. Although the assailant had his back to Mr. Patterson during the chase, he confronted Mr. Patterson twice. Mr. Patterson was approximately eight feet from the assailant when he pulled a pipe from his sleeve and told Mr. Patterson to stay away from him. Mr. Patterson maintained his distance but continued to pursue him into another wing of the building where the assailant picked up a bottle and threw it at him hitting him on the wrist. During the chase, John English, another cleaning employee, saw the assailant on the other side of a glass door and then viewed him as he pushed the door open and ran by him. Mr. English joined the chase until the assailant threatened Mr. Patterson with the pipe. Finally, two other employees also encountered the assailant. Milton Coles, the supervisor of the cleaning crew, saw the side of assailant's face from a distance of approximately ten feet but lost sight of him when he immediately turned the corner. Janice Melvin saw the assailant as he ran past her nearly pushing her into a bucket of scrub water. She testified she saw his face for approximately five or ten seconds as he glanced at her while running. IDENTIFICATION On October 5, 1975 Mr. Patterson identified a photograph of appellant after being shown over 700 slides. On December 5, 1975 Mrs. Turner sat with Mr. Patterson and Mr. English outside the lineup room of the police department waiting for the other witnesses to arrive for the lineup.[3] They were approximately fifty feet from the elevator when the door of the elevator opened and Mr. Coles emerged from the elevator. As he walked toward them they saw the appellant, who had been released on his own recognizance, step off the crowded elevator. Mrs. Turner and Mr. English immediately identified the appellant. At this point there is some conflict in the testimony. Mrs. Turner testified that she was the only one who said anything and no one else saw the appellant. She stated that she said, "Look" and Mr. Patterson said "I know who it is, I don't have to look. I can smell him a mile away." Mrs. Turner then testified that Mr. Coles asked her what she was looking at and when she told him it was her attacker, Mr. Coles turned to look but the appellant had gone into another room. However, Mr. Patterson testified that he told Mrs. Turner "There's my man" and they both tried to attract Mr. Coles' attention to him but were unsuccessful.[4] Mr. English did not hear either one say anything until Mrs. Turner told Mr. Coles that he had been on the same elevator as her attacker. It is clear however that neither Mr. Coles nor Ms. Melvin saw the appellant in this encounter in the police station hall. The officers directing the lineup explained the procedure to be followed to each witness who then individually viewed the lineup and was kept separate from those who were yet to see it. Each of the five witnesses made a positive identification of the appellant in the lineup and also an in-court identification at the time of trial. I. Appellant's contentions stem from the trial court's refusal to suppress a lineup and subsequent in-court identification which occurred after a confrontation between the witnesses and appellant in the hallway of the police station outside the lineup room. Appellant argues that this hallway confrontation irreparably tainted the witnesses' subsequent identifications and under the "totality of circumstances test" the lineup *95 and in-court identifications are not reliable. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Cureton v. United States, D.C.App., 386 A.2d 278 (1978), this court recently considered the ramifications of a spontaneous identification, resulting from an inadvertent encounter of a handcuffed defendant in a police department elevator following a lineup. We held that [T]he introduction of an in-court or out-of-court identification made under conditions similar to those of the instant case will be found to comply with the mandates of due process provided (1) the confrontation is inadvertent, accidental, or unplanned, (2) the identification is spontaneous and positive, (3) the police and prosecution did not intend that an identification be attempted, (4) no one pointed out the accused to the witness, and (5) the witness is cross-examined fully at trial concerning the basis of the identification. [Id. at 288 (footnote omitted).] Initially, appellant attempts to distinguish this case on the basis that the spontaneous identification occurred prior to the lineup and thus the lineup was influenced by the inadvertent encounter. In Cureton,[5] we cited decisions of six federal circuit courts of appeal[5a] collectively supporting the conclusion that a later in-court identification of the defendant subsequent to a spontaneous pretrial recognition was not barred on due process grounds even though no untainted identification preceded the challenged confrontation (as in Cureton).[6] We perceive no difference in analysis as to the admissibility of an in-court identification after an allegedly suggestive encounter as in Cureton and the admissibility of a lineup and in-court identification after an allegedly suggestive encounter. The facts of this case demonstrate that it is precisely the situation where the standards which emerge from Cureton should be applied. Furthermore, the most recent Supreme Court case in this area, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d *96 140 (1977), involved the suggestive presentation of a single photograph for identification to an undercover police officer prior to the in-court identification. The Supreme Court held that the pretrial photographic identification was admissible in the face of a due process challenge if "under the totality of the circumstances" the identification was reliable. Id. at 113-14, 97 S.Ct. at 2252. The standards articulated in the Cureton decision were based on the reliability analysis[7] involved in Manson v. Brathwaite, supra. Therefore, if the Cureton standards are satisfied, the introduction of this evidence comported with the requirements of due process. Application of the five factor analysis to the facts of this case persuades us that due process was not offended by the admission at trial of the testimony involving the lineup identification and the witnesses' subsequent in-court identification. There is no dispute in the record that the hallway confrontation was not planned but was accidental and inadvertent. Mrs. Turner, Mr. Patterson and Mr. English testified that they spontaneously and positively recognized appellant immediately after he descended from a crowded elevator. Unlike the situation in United States v. Matlock, 491 F.2d 504 (6th Cir.), cert. denied, 419 U.S. 864, 95 S.Ct. 119, 42 L.Ed.2d 100 (1974); Mock v. Rose, 472 F.2d 619 (6th Cir. 1972), cert. denied, 411 U.S. 971, 93 S.Ct. 2165, 36 L.Ed.2d 693 (1973) and United States v. Hamilton, 469 F.2d 880 (9th Cir. 1972), there was nothing about the defendant's appearance or condition at the time of the out-of-court identification, such as being in prison garb or handcuffed, to suggest that he was a defendant in a criminal prosecution.[8] The elevator was open to the public and the appellant had been released on his own recognizance. The identification by the witnesses of the appellant departing from a crowded elevator stemmed from the witnesses' spontaneous recognition of the appellant based on their observations at the time of the robbery. The appellant never contended that the government intended the confrontation in the hallway to occur. Not one of the witnesses testified that appellant was pointed out by anyone to him or her as a defendant in the robbery case or even connected with the case in any way.[9] Finally, appellant's counsel cross-examined each witness fully at the suppression hearing and trial concerning the basis of the identification.[9a] II. The appellant's second contention is that the second indictment should be dismissed because of the prosecutor's misuse of the plea bargaining procedure. In an indictment filed January 7, 1976, the appellant *97 was charged with second-degree burglary (D.C.Code 1973, § 22-1801(a)); robbery (id. § 22-2901); armed robbery (id. §§ 22-2901, -3202); and assault with a dangerous weapon (id. § 22-502). On March 31, 1976, after an evidentiary hearing, appellant's motion to suppress identification was denied. At the suppression hearing the prosecutor on the record informed the appellant that if he entered a plea of guilty to the indictment the government would not seek reindictment on the additional counts of assault with intent to kill and mayhem and would not file an information advising the court that the appellant, if convicted, was subject to life imprisonment as the result of two prior felony convictions.[10] D.C.Code 1973, § 22-104a. The appellant rejected the government's offer and was subsequently reindicted by a grand jury which considered only the minutes of the first grand jury proceeding.[11] A superseding indictment filed April 21, 1976 additionally charged appellant with assault with intent to kill (D.C.Code 1973, § 22-501); assault with intent to kill while armed (id. §§ 22-501, -3202); and malicious disfigurement (id. § 22-506). The government filed two informations advising the court that the appellant was subject to life imprisonment if convicted of this offense, as a result of having been previously convicted of two felonies, and to an increased penalty for being on pretrial release in an unrelated case at the time of commission of the instant offense (D.C.Code 1973, § 23-1328). The jury found appellant guilty of second-degree burglary, armed robbery, assault with intent to kill while armed and malicious disfigurement, the last two being the result of the superseding indictment. Appellant was sentenced to concurrent terms of incarceration of five to fifteen years on the burglary and assault with intent to kill while armed charges, fifteen years to life imprisonment on the armed robbery charge and three to nine years for malicious disfigurement. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) a state prisoner was indicted for uttering a forged check, the penalty being a maximum ten year sentence. The prosecutor advised the defendant that if he pleaded guilty to the charge, he would not seek reindictment under the state criminal recidivist statute which would subject the defendant to a life sentence. The Supreme Court held that the due process clause was not violated when a state prosecutor carries out a threat made during plea negotiations to have the defendant reindicted on more serious charges, on which he is plainly subject to prosecution, if he does not plead guilty to the offenses with which he was originally *98 charged. Id. at 364-65, 98 S.Ct. 663. Although Bordenkircher disposes of appellant's claim, we emphasize the fact that there are constitutional limits imposed on the exercise of discretion by the prosecutor in what charges to file or bring before a grand jury. Id. As Judge McCree in writing for a unanimous panel of the Sixth Circuit noted "the prosecutor initially `makes a discretionary determination that the interests of the state are served by not seeking more serious charges'."[12] This is not to state that one may not be reindicted, or that a new information may not be filed before trial. However, we believe the better practice is to bring all the charges in the original indictment unless there are compelling reasons for bringing the new or additional charges, e. g., newly discovered evidence.[13]Cf. Wynn v. United States, D.C. App., 386 A.2d 695, 697-98 (1978). III. Appellant's final contention is that the government's closing argument to the jury concerning the whereabouts of a volunteer assignment book was improper and prejudicial. During cross-examination by the prosecutor an alibi witness, Rev. Marie Carter, was asked about a sign-in book for volunteers at appellant's place of employment and why she did not bring it to court after being requested by the prosecution. After the prosecution's second request, Rev. Carter agreed to bring the book back for the afternoon session but was unable to find it. At the close of the evidence the prosecutor asked for a missing records jury instruction. The government intended to argue that the failure of the defense to produce the book allowed an inference that the book would disclose that the appellant had not signed in on the date of the robbery. The trial judge refused to give this instruction and stated that the book was not peculiarly available to the defense. After completion of the trial, the government and defense made closing arguments. Towards the end of the prosecutor's closing argument, the prosecution urged: PROSECUTOR: Ladies and gentlemen, I have a few documents in this case, — Rev. Carter's calendar, the sheet that Mr. Harvey supposedly gave to Mr. Bailey, the transportation log. Does it appear anywhere on any of those sheets of paper that Mr. Harvey was there on September 30, 1975? Look for yourselves. I submit to you that it doesn't. There was some mention of a volunteer assignment book and whether Mr. Harvey's name appears in that, we don't know. That book couldn't be found. In Givens v. United States, D.C.App., 385 A.2d 24 (1978) we held that the procedure of obtaining an advance ruling from the court on a missing witness inference must be followed or it is reversible error to argue to the jury that it can draw an adverse inference from the defendant's failure to produce a witness. See Gass v. United States, 135 U.S.App.D.C. 11, 19, 416 F.2d 767, 775 (1969). However, this case is distinguishable from Givens, supra. Here the prosecutor stated that "the book couldn't be found" but did not go the additional step as in Givens to suggest that the absence of the book [witness] implied guilt on the part of the defendant. We find that the prosecution complied with the Gass rule and did not commit reversible error. Affirmed. NEBEKER, Associate Judge: I concur in the result but not in the dicta and personal views of my colleagues respecting the footnoted "hope" based on "a matter of policy", that the government should continue the "traditional method" of presenting "live witnesses" to the grand *99 jury, supra note 11, and that the government initially must present and, presumably, the grand jury must indict on all charges. I find it unnecessary and of doubtful value to suggest, contrary to established precedent, that witnesses must retestify in the event of a superseding indictment. A major interest my colleagues ignore is that of witnesses to or victims of crime who make all too many trips to the courthouse anyway. I see no value in suggesting that that burden on them be increased by reappearance before the grand jury. Given the informal basis upon which an indictment can be based,[*] there is no reason in "policy" to require witnesses with firsthand knowledge to reappear before a grand jury in order to have a valid superseding indictment. The policy of victim and witness accommodation as well as that of efficiency also augur against a requirement that all known charges be included in the first charging document. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), implicitly recognized the danger and impracticality of initially bringing all available charges when it speaks of "the very premises that underlie the concept of plea bargaining itself" and the evil of such practice since it "could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged." Id. at 365, 98 S.Ct. at 669. Since this case "would be no different if the grand jury had indicted [appellant for all other charges] from the outset, and the prosecutor had offered to drop [some charges] as part of the plea bargain", id. at 361, 98 S.Ct. at 666, there is no useful purpose in the suggestion of the majority and no validity to the assertion that the "better practice" is to include all known charges in the first charging document. NOTES [1] Where the issue presented is a post-trial claim of ineffective assistance of counsel, the test we have adopted is that of Angarano v. United States, D.C.App., 312 A.2d 295 (1973), rehearing en banc denied, 329 A.2d 453 (1974), relying on Bruce v. United States, 126 U.S.App. D.C. 336, 379 F.2d 113 (1967). We conclude appellant has not demonstrated "gross incompetence of counsel which has in effect blotted out the essence of a substantial defense." See also Monroe v. United States, D.C.App., 389 A.2d 811 (1978). [2] At the suppression hearing, on direct examination, Mrs. Turner testified that from the time she kicked open the door and the time she was pulled back into the room was approximately two or three seconds. At trial, Mrs. Turner testified that the time which passed between the time she kicked open the door and the moment when her assailant dragged her back into the room was approximately three or four minutes. The trial court held that the appellant's attorney had not impeached her on prior inconsistent statements. [3] Mr. Patterson at the suppression hearing testified on direct that prior to the arrival of Mr. Coles, he was outside the lineup room with Mrs. Turner and Mr. English. On cross-examination and at trial, Mr. Patterson testified that Ms. Melvin was also there at the time. However, Mrs. Turner, Mr. English and Mr. Coles testified that Ms. Melvin was not there and did not arrive until after Mr. Coles arrived. Ms. Melvin confirmed their testimony. [4] Mrs. Turner denied the fact that Mr. Patterson pointed to the appellant. [5] Cureton v. United States, supra at 287. [5a] United States v. Colclough, 549 F.2d 937, 940-41 (4th Cir. 1977) (spontaneous recognition following an accidental confrontation outside the courtroom; accused not in custody); United States v. Massaro, 544 F.2d 547, 550 (1st Cir. 1976), [cert. denied, 429 U.S. 1052, 97 S.Ct. 766, 50 L.Ed.2d 769 (1977)] (spontaneous recognition following a chance meeting in a courthouse hallway; fact accused in custody not apparent); United States v. Jewett, 520 F.2d 581, 582 (1st Cir. 1975) (inadvertent hallway confrontation prior to preliminary hearing; identification solicited by the prosecutor; strong evidence of accused's guilt); United States v. Matlock, 491 F.2d 504, 505 (6th Cir.), cert. denied, 419 U.S. 864, 95 S.Ct. 119, 42 L.Ed.2d 100 (1974) (chance encounter when accused was twice escorted in handcuffs through a room in which identification witnesses were awaiting trial); United States v. Davis, 487 F.2d 112, 122 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974) (witness observes defendants in custody outside the courtroom prior to trial); Mock v. Rose, 472 F.2d 619 (6th Cir. 1972), cert. denied, 411 U.S. 971, 93 S.Ct. 2165, 36 L.Ed.2d 693 (complainant spontaneously identified the accused upon observing him in custody in a station house hallway; the viewing was accidental and the suspect was not exposed for purposes of identification); United States v. Hamilton, 469 F.2d 880, 882-83 (9th Cir. 1972) (witness spontaneously identifies accused upon observing him in handcuffs in courthouse corridor just prior to trial); United States v. Hardy, 448 F.2d 423, 424 (3rd Cir. 1971) (witness' chance viewing of accused sitting with a codefendant in the courtroom prior to the commencement of trial); Griff v. Fitzharris, 451 F.2d 151, 152-53 (9th Cir. 1971) (spontaneous identification following an unarranged confrontation prior to preliminary hearing); United States v. Jackson, 448 F.2d 963, 965 (9th Cir. 1971), cert. denied, 405 U.S. 924, 92 S.Ct. 970, 30 L.Ed.2d 796 (1972) (spontaneous identification made when witnesses sitting in spectator's section viewed accused during pretrial hearing; confrontation not arranged by the prosecution; witnesses discussed their identifications among themselves; witnesses previously unable to identify the accused from a photographic array); United States v. Pollack, 427 F.2d 1168, 1169 (5th Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 63, 27 L.Ed.2d 62 (1970) (witness recognizes accused after unexpected meeting in courthouse corridor; witness previously unable to identify accused from a single photograph shown on the day of the hallway confrontation). [6] However, one of the witnesses, Mr. Patterson, did identify a photograph of appellant prior to the encounter in the hallway. [7] Cureton v. United States, supra at 285 states: The factors to be considered in an evaluation of the reliability of an admittedly suggestive identification were set out in Neil v. Biggers, supra, 409 U.S. at 199-200, 93 S.Ct. 375, and cited with approval in Manson v. Brathwaite, supra at 97 S.Ct. 2253. These include (1) the opportunity of the witness to view the criminal during the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. [8] In the three cases cited these factors were not found to be so unduly suggestive as to render inadmissible the identification testimony of the witness. [9] On appeal, we must view the evidence in the light most favorable to the prevailing party below. Crawley v. United States, D.C.App., 320 A.2d 309, 312 (1974); Saunders v. United States, D.C.App., 317 A.2d 867, 868 (1974). Even accepting appellant's version of the facts in that Mr. Patterson pointed out the appellant to Mrs. Turner and Mr. English was looking in Mr. Patterson's direction at the time, the Sixth Circuit under similar facts allowed the identification testimony. United States v. Matlock, supra. The court based its decision on the independent origin of the identification of the defendant which made the inadvertent encounter non-prejudicial to the defendant. Id. at 506. Both Mrs. Turner and Mr. English based their identification of the appellant on a clear recollection of the appellant's appearance at the time of the robbery and a sufficient opportunity at that time to acquire facts to make an identification. Accord, Griff v. Fitzharris, 451 F.2d 151, 152 (9th Cir. 1971). [9a] We have examined a photograph of the lineup and find no suggestivity in its makeup. [10] The suppression hearing transcript states: THE PROSECUTOR: I would just merely make one suggestion at this time, and that is that Mr. Harvey at the moment stands charged in a four-count indictment with second degree burglary, armed robbery, robbery, and assault with a dangerous weapon. I would inform counsel, on the record, that if Mr. Harvey enters a plea of guilty to the indictment at the next status hearing on April 7, 1976, the Government will not seek reindictment adding the additional counts of assault with intent to kill and mayhem and will not file life papers. However, the Government will not waive allocution under any circumstances. If the defendant does not enter his plea on April 7, 1976, then the Government will seek a reindictment of assault with intent to kill and mayhem, file life papers and there will be no plea accepted except for the entire indictment. [11] The third contention of the appellant is that the second indictment should be dismissed because it was based exclusively on a transcript of sworn testimony before the first grand jury. The manner of submitting this testimony has been sanctioned in our decision in United States v. Wagoner, D.C.App., 313 A.2d 719, cert. denied, 419 U.S. 1052, 95 S.Ct. 630, 42 L.Ed.2d 647 (1974). See also Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). However, purely as a matter of policy, we hope that the government would continue the traditional method of evidence through live witnesses. See United States v. Wagoner, D.C. App., 321 A.2d 211 (1974) (Gallagher, J., dissenting from denial of rehearing en banc). This would decrease the risk of dismissal for the improper use of hearsay. See United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972) (dismissal required where there is deception of the grand jury or a high probability that the grand jury would not have indicted if presented with first-hand testimony). [12] This was cited in Justice Blackmun's dissenting opinion in Bordenkircher as support for his position that the prosecutor ought to be able to justify the increase in charges on some basis other than discouraging a defendant from the exercise of his right to a trial. 434 U.S. at 367, 98 S.Ct. 663 at 670. [13] This practice keeps the indictment procedure visible to the public so that it can judge whether the policy being followed is a fair one. Bordenkircher v. Hayes, supra at 368-69, 98 S.Ct. 663 n.2 (Blackmun, J., dissenting). [*] See, e. g., United States v. Calandra, 414 U.S. 338, 344-45, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974) ("the validity of an indictment is not affected by the character of the evidence considered"); United States v. Dionisio, 410 U.S. 1, 15, 93 S.Ct. 764, 772, 35 L.Ed.2d 67 (1973) (grand jurors "may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge"). See also United States v. Washington, D.C.App., 328 A.2d 98 (1974), reversed in part on other grounds, United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977).

708 N.W.2d 95 (2006) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Bruce HUFFMAN, Defendant-Appellant. Docket No. 129042, COA No. 252315. Supreme Court of Michigan. January 12, 2006. On order of the Court, the motions to admit James N. Horwood, Peter J. Hopkins, Tillman L. Lay and Eugene Volokh pro hac vice are GRANTED. The motion for leave to file a brief amicus curiae is GRANTED. The application for leave to appeal the May 10, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. CAVANAGH and KELLY, JJ., would grant leave to appeal.

84 F.3d 437 F.D.I.C.v.Smith* NO. 95-2397 United States Court of Appeals,Eleventh Circuit. Apr 18, 1996 1 Appeal From: M.D.Fla., No. 94-00141-CIV-T-25A, Appealing after remand 61 F.3d 1552 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

740 F.2d 962 Mungov.Patterson 83-6681 United States Court of Appeals,Fourth Circuit. 7/25/84 1 M.D.N.C. AFFIRMED

737 N.W.2d 751 (2007) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marlin Devon HOLLAND, Defendant-Appellant. Docket No. 133777. COA No. 275108. Supreme Court of Michigan. September 10, 2007. On order of the Court, the application for leave to appeal the February 22, 2007 order of the Court of Appeals is considered, and it is DENIED, because the defendant's motion for relief from judgment is prohibited by MCR 6.502(G).

32 So.3d 628 (2010) BROADNAX v. STATE. No. 2D08-5042. District Court of Appeal of Florida, Second District. March 5, 2010. Decision Without Published Opinion Affirmed.

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JUNE 22, 2009 No. 08-14661 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket Nos. 03-20335-CV-SH, 00-00933 CR-SH RAUL ESPINOSA, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (June 22, 2009) Before CARNES, HULL and WILSON, Circuit Judges. PER CURIAM: Raul Espinosa appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. After review, we affirm. I. BACKGROUND Following a jury trial, Espinosa was convicted of money laundering and sentenced to a term of 189 months’ imprisonment. Espinosa’s conviction was affirmed on direct appeal. His conviction became final on February 13, 2003, with the expiration of the time for filing a petition for certiorari. On February 14, 2003, Espinosa filed his counseled § 2255 motion, raising claims that his trial counsel was ineffective at trial and sentencing. At an evidentiary hearing on December 12, 2005, Espinosa also argued that his trial counsel had been ineffective prior to trial by failing to communicate with him regarding, inter alia, the government’s discovery information, the facts of the case, potential defense witnesses or a defense theory. After the hearing, the magistrate judge directed Espinosa to prepare a supplemental memorandum outlining his specific claims and the government to file a response. In his supplemental memorandum, filed on January 3, 2006, Espinosa identified six pretrial ineffective assistance claims. Specifically, he alleged that his trial counsel: (1) did not discuss the indictment, charges or sentencing options with him; (2) met with him only a few brief times; (3) did not discuss with him a defense theory, trial strategy or factual or legal defenses; (4) did not inform him of 2 his right to testify; (5) did not prepare him for a pre-trial McLain hearing;1 and (6) did not review the government’s discovery material. The magistrate judge’s report (“R&R”) recommended denying Espinosa’s § 2255 motion. With respect to Espinosa’s six pretrial ineffective assistance claims identified in his January 3, 2006 supplemental memorandum, the magistrate judge concluded that only one–the failure to inform Espinosa of his right to testify–was raised in the original § 2255 motion. The magistrate judge found that the other five pretrial ineffective assistance claims were newly raised claims that did not relate back to the claims in his § 2255 motion. Because the newly raised claims were in the January 3, 2006 supplemental memorandum and that supplemental memorandum was not filed within the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations, the magistrate judge concluded the new claims were time-barred. As for the preserved pretrial ineffective assistance claim, the magistrate judge concluded that Espinosa had not shown any prejudice with respect to his trial counsel’s failure to inform him of his right to testify. The magistrate judge also 1 Under United States v. McLain, a defendant must be informed if a criminal investigation against his attorney creates a potential conflict of interest. 823 F.2d 1457, 1463-64 (11th Cir. 1987), overruled on other grounds as recognized by United States v. Watson, 866 F.2d 381, 385 n.3 (11th Cir. 1989). Espinosa’s trial counsel had been indicted on state racketeering, fraud and theft charges. At the McLain hearing, Espinosa indicated that he wished to keep his trial counsel. 3 found that Espinosa had failed to show any ineffective assistance with respect to his trial or sentencing. Over Espinosa’s objections, the district court adopted the R&R and denied Espinosa’s § 2255 motion. Espinosa filed this appeal. We granted a certificate of appealability (“COA”) on the following issue: Whether the district court erred in finding that appellant’s argument, raised in his post-evidentiary hearing brief, that his counsel was ineffective for failing to discuss with him possible defenses, a defense theory or trial strategy prior to trial did not relate back to his 28 U.S.C. § 2255 motion and was thus, untimely.2 II. DISCUSSION The AEDPA established a one-year statute of limitations for § 2255 motions. 28 U.S.C. § 2255(f); Davenport v. United States, 217 F.3d 1341, 1343 (11th Cir. 2000). When a petitioner files a timely § 2255 motion, and then later files an untimely amended or supplemental motion that raises additional claims, the untimely claims are barred by the statute of limitations unless they “relate back” to the original motion under Federal Rule of Civil Procedure 15(c). Davenport, 217 F.3d at 1344. A claim “relates back” if it “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). 2 Thus, the district court’s rulings on Espinosa’s other ineffective assistance claims are not before us. 4  The United States Supreme Court has cautioned that the “conduct, transaction, or occurrence” language of Rule 15(c) should not be defined “at too high a level of generality,” because doing so would defeat Congress’s intent to impose a strict time limit on claims for post-conviction relief. Mayle v. Felix, 545 U.S. 644, 661-62, 125 S. Ct. 2562, 2573-74 (2005) (quotation marks omitted). Thus, an amended pleading relates back to an original pleading only if both pleadings “state claims that are tied to a common core of operative facts.” Id. at 664, 125 S. Ct. at 2574. Similarly, this Court has held that “the untimely claim must have arisen from the same set of facts as the timely filed claim, not from separate conduct or a separate occurrence in both time and type.” Davenport, 217 F.3d at 1344 (quotation marks omitted). “[W]hile Rule 15(c) contemplates that parties may correct technical deficiencies or expand facts alleged in the original pleading, it does not permit an entirely different transaction to be alleged by amendment.” Dean v. United States, 278 F.3d 1218, 1221 (11th Cir. 2002).3 Here, the district court did not abuse its discretion in finding that the pretrial ineffective assistance claims raised in Espinosa’s supplemental memorandum did 3 In the § 2255 context, we review the district court’s legal conclusions de novo and its findings of fact for clear error. Mamone v. United States, 559 F.3d 1209, 1210 (11th Cir. 2009). We review a district court’s application of Rule 15(c) for abuse of discretion. Davenport, 217 F.3d at 1343 n.4. 5 not relate back to his original § 2255 motion filed on February 14, 2003.4 Espinosa’s § 2255 motion alleged that his trial counsel made an improper opening statement, failed to object to Rule 404(b) evidence, conducted unnecessary, improper and ineffective cross-examinations and failed to object to the presentence investigation report. In other words, the conduct, transaction or occurrences set out in the original § 2255 motion related to trial counsel’s performance during specific moments of the trial and at sentencing. With the exception of his counsel’s failure to advise him of his right to testify at trial, the § 2255 motion made no mention of any pretrial conduct. Indeed, Espinosa’s counseled § 2255 motion’s contention that his counsel was unprepared was made only in the context of claims that his trial counsel’s performance at trial and sentencing was deficient. Thus, the newly raised pretrial ineffective assistance claims are not “tied to a common core of operative facts” with the trial and sentencing ineffective assistance claims and do not relate back under Rule 15(c). See Mayle, 545 U.S. at 664, 125 S. Ct. at 2574. And, his supplemental memorandum does not merely provide specifics to a claim previously made in Espinosa’s original § 2255 motion, but raises new claims. Accordingly, the district court did not abuse its discretion in ruling that the 4 Although Espinosa argues that the government waived any argument with respect to the timeliness of his pretrial ineffective assistance claims by not objecting at the evidentiary hearing, this argument is outside the scope of the COA, and, therefore, we do not consider it. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). 6 new claims in the supplemental memorandum did not relate back to the original § 2255 motion under Rule 15(c)(1)(B). AFFIRMED. 7 

987 So.2d 660 (2006) OTIS HOWZE v. FOSTER WHEELER CONSTRUCTORS & CO. No. 2050270. Court of Civil Appeals of Alabama. June 30, 2006. Decision without opinion. Dismissed for lack of prosecution.

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT SEPTEMBER 14, 2012 No. 09-12105 JOHN LEY ________________________ CLERK D. C. Docket No. 06-00218-CR-T-N UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GEORGE HOEY MORRIS, a.k.a. Johnny Ray Fortune, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Alabama _________________________ (September 14, 2012) Before ANDERSON and EDMONDSON, Circuit Judges, and EDENFIELD,* District Judge. * Honorable B. Avant Edenfield, United States District Judge for the Southern District of Georgia, sitting by designation. PER CURIAM: On direct appeal, Defendant challenges his conviction and 120-month imprisonment sentence for making a false statement in an application for a passport, in violation of 18 U.S.C. § 1542. Briefly stated, Defendant contends that he was incompetent to proceed pro se at sentencing and that he could not have voluntarily and knowingly waived his right to counsel. Defendant also contends that proceeding pro se violated his due process rights; and that his counsel were ineffective. The District Court committed no error in finding and concluding -- based in part on a reliable psychiatric report and on Defendant’s own acts -- that Defendant was competent and that Defendant knowingly and voluntarily waived his right to counsel at sentencing. Furthermore, each of Defendant’s ancillary contentions is without merit. We affirm Defendant’s conviction and sentence. BACKGROUND Highly specific facts drive the outcome of this case. So, we set forth the facts in detail. We highlight especially Defendant’s sometimes-competent and 2 sometimes-incompetent status at the different stages of trial and the acts of Defendant’s many different lawyers. A federal grand jury indicted Defendant for making a false statement in an application for a passport. The judge appointed Jon Carlton Taylor to represent Defendant at trial. Defendant waived his right to testify at trial, but revealed during a colloquy with the court that he suffered from Post-traumatic Stress Disorder (“PTSD”).1 Defendant also revealed that he was taking different medications.2 Taylor and the government’s lawyer -- Susan Redmond -- knew of no reason to question Defendant’s competence to waive his right to testify at trial. And Defendant himself explicitly raised no issue about his competence. The District Court found Defendant competent to waive his right to testify. The jury convicted Defendant. After the guilt phase, but before sentencing, Defendant retained Susan G. James to represent him. James entered an appearance as Defendant’s lawyer on 15 December 2006. The District Court granted Taylor’s motion to withdraw as 1 Defendant served in the United States Army during the Vietnam War and received an honorable discharge. 2 The Presentence Investigation Report (“PSI”) also indicated that Defendant took various psychotropic medications and had earlier been hospitalized on several occasions for mental- health reasons. The District Court took judicial notice of the fact that the psychotropic medications prescribed to Defendant were commonly used to treat schizophrenia and bipolar disorder. 3 counsel. Based on Defendant’s PTSD and a determination of 100% disability by the Veterans Administration, James moved the court (on 26 February 2007) for psychiatric testing of Defendant. James filed a renewed motion for psychiatric testing on 18 May 2007. The motion cited, among other things, Defendant’s “bizarre” behavior, that Defendant chewed his fingernails off, and that Defendant forwarded to the District Court a child-pornography book called “Virgin Bride.net.” Defendant apparently authored the book. James also noted that she believed Defendant was seemingly obsessed with issues not pertinent to his case and that Defendant seemed incapable of focusing on issues pertinent to his sentencing. The same day -- 18 May 2007 -- James filed a motion to withdraw as counsel. At a 21 May 2007 hearing, James suggested that Defendant had also forwarded her a copy of his book that may have contained child pornography, which may have put James in violation of the law and raised other ethical concerns. The District Court granted James’s motion to withdraw; and over Defendant’s objection, the court reappointed Taylor as defense counsel. The District Court construed Defendant’s objections as a motion to appoint new and 4 different counsel, which the court denied.3 Taylor reiterated concerns about Defendant’s competency to go through sentencing. Taylor noted what he perceived to be a change in Defendant’s behavior in the months since trial. On 17 July 2007, the District Court granted Defendant’s motion for psychiatric examination to determine Defendant’s competency for sentencing. The District Court wrote that “it is possible that between trial and sentencing, [Defendant] has slipped from competency to incompetency.” The District Court appointed Dr. Guy Renfro to perform a psychological evaluation of Defendant, and the court continued to a later date Defendant’s sentencing hearing.4 On 12 December 2007, Taylor moved to withdraw as Defendant’s lawyer because Defendant had filed a complaint against Taylor with the Alabama bar as well as a lawsuit in federal court. Defendant, in turn, informed the court that Defendant could not work with Taylor. Defendant also contended that the government had caused James, his earlier lawyer, to withdraw. The District Court granted Taylor’s motion to withdraw on 11 January 2008. 3 During June and July 2007, Defendant also made a series of pro se motions and submissions to the District Court. The District Court denied all of the motions. 4 The District Court continued the date of the sentencing hearing on several additional occasions to allow Dr. Renfro more time to complete an evaluation and produce a report. In the months between the court’s ordering of a psychological evaluation and when the court adjudged Defendant competent to undergo sentencing, Defendant repeatedly filed pro se motions and objections. 5  The District Court received Dr. Renfro’s psychological evaluation of Defendant on 14 January 2008. The report noted that Defendant exhibited signs of anxiety and delusional thoughts of a conspiracy against Defendant by various law enforcement agents, politicians, and lawyers. The report provided a diagnosis of PTSD, bipolar disorder with psychotic features, and an inflated sense of self- worth (along with hypothyroidism and COPD). Although the report estimated that Defendant possessed above-average intelligence and possessed a rational understanding of the legal process, the report concluded that delusions of persecution prevented Defendant from functioning at a sentencing hearing. The report recommended Defendant receive treatment and undergo additional evaluation. On 16 January 2008, the District Court appointed lawyer Richard K. Keith to represent Defendant. On 17 January 2008, Daniel G. Hamm accepted appointment as Defendant’s lawyer. The District Court then granted Keith’s motion to withdraw. On 2 May 2008, the District Court found Defendant to be incompetent for sentencing. Pursuant to 18 U.S.C. § 4241(d)(1), the court ordered the Attorney General to hospitalize Defendant to determine whether a substantial probability existed that Defendant would become competent -- and therefore become able to 6 undergo sentencing -- in the foreseeable future. Defendant was moved to the Federal Medical Center in Butner, North Carolina (“the Center”). The Center provided the court with status updates on Defendant’s condition throughout Defendant’s stay at the facility. The Center completed a psychiatric evaluation of Defendant in September 2008; the evaluation was filed in the District Court on 6 October 2008. The evaluation concluded -- like Dr. Renfro’s report had concluded -- that Defendant was mentally incompetent to understand the nature and consequences of the sentencing proceedings and also unable to assist in his own defense. But the evaluation also predicted that with additional hospitalization and treatment, Defendant’s competency to be sentenced might be restored. Based on the Center’s evaluation, on 21 October 2008, the District Court again found Defendant to be incompetent and therefore unable to be sentenced. The court also found, however, that a substantial probability existed that Defendant would in the foreseeable future attain the competence necessary to be sentenced. In February 2009, the Center completed another psychiatric evaluation of Defendant. The Center concluded that Defendant was competent to stand trial, able to understand the nature and consequences of the proceedings against him, 7 and able to assist properly in his own defense. Briefly stated, the February 2009 evaluation reiterated some of Defendant’s past mental health issues and noted Defendant’s genuine distress. But the February 2009 evaluation also concluded that Defendant was not delusional or psychotic and did not suffer from severe mental disease or defect. Instead, the principal diagnosis in this report was malingering.5 The February 2009 evaluation also noted an impression that Defendant possessed antisocial personality traits. On 16 April 2009, the District Court held a hearing on Defendant’s motion to dismiss counsel,6 Defendant’s competency to be sentenced, and Defendant’s sentencing. This hearing is central to this appeal. At the hearing, Defendant complained that Hamm did not pursue Defendant’s case aggressively enough.7 Defendant insisted upon representation from his previous lawyer, James. The court informed Defendant that James was 5 The February 2009 evaluation utilizes the American Psychiatric Association’s definition of “malingering”: “Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as . . . evading criminal prosecution[.]” 6 Defendant filed a pro se motion seeking to dismiss lawyer Hamm. Briefly stated, in the motion Defendant contended that he had retained James to represent him, that he had been “medicated to the point of virtual incompetency” at the hearing where James sought to withdraw, that the government engaged in misconduct, and that Hamm’s service as Defendant’s lawyer weakened claims Defendant might have against the government and James. 7 Hamm said that Defendant called Hamm from jail and indicated that Defendant wished to represent himself. When Hamm went to the jail, though, Defendant refused to meet. 8 no longer Defendant’s lawyer. The court asked Defendant if he wished to represent himself. Defendant responded that he did not wish to proceed pro se; Defendant insisted that James was his retained lawyer. Defendant remained largely uncooperative and insisted that Hamm was not aggressive enough and that James was his true lawyer. The court noted that “I have a history of knowing [Defendant]. I do know that [Defendant] tends to misrepresent things, and I do know that he tends to vary in his representations.” The court further noted that Defendant was “an incredibly difficult client.” At this point, the court denied Defendant’s motion to dismiss Hamm as counsel. The court then turned to Defendant’s competency to be sentenced. The court asked the parties if any evidence existed to supplement the Center’s February 2009 evaluation (which had found Defendant to be competent). The parties reported that no additional evidence existed.8 Explicitly citing the Center’s February 2009 evaluation, the District Court found Defendant to be competent. 8 Defendant made a reference to additional medical reports but stated that these reports were stolen. The government lawyer (Redmond) and Hamm also mentioned other medical records to which Defendant might have been referring. Hamm and Redmond also relayed their belief that Defendant might be referencing competency-related medical reports prepared pre-trial for the guilt-phase: years in the past. According to the District Court, in the light of the Center’s February 2009 evaluation finding Defendant competent, any guilt-phase records would have no bearing on Defendant’s competency at the 16 April 2009 post-trial hearing. So, the District Court declined to inquire further about other records. 9  The District Court then went on with sentencing. The court recognized Defendant’s pro se-filed objections to the PSI and ordered a brief recess so that Defendant could review the PSI with Hamm, Defendant’s appointed lawyer. After the recess, Hamm informed the court that Defendant refused to speak with Hamm about the PSI. The court engaged Defendant in a colloquy. Defendant insisted upon having James serve as his lawyer and advanced allegations of government misconduct. Stating that Defendant “clearly doesn’t want to be represented by Mr. Hamm and [Defendant] doesn’t want to represent himself either,” the court provided the parties with our decision in United States v. Garey.9 Noting Garey’s discussion of a procedure through which to handle situations like Defendant’s, the court ordered a brief recess for the parties to review Garey. The court reconvened and proceeded -- citing Garey -- with sentencing. The court advised Defendant of his rights and sought to determine whether Defendant wished to waive his right to counsel. Defendant refused to answer many of the court’s questions but repeatedly referenced his desire to be represented by James. Defendant at one point stopped answering entirely and just stared down at the table. 9 540 F.3d 1253 (11th Cir. 2008) (en banc). We will discuss Garey more. 10  Although Defendant insisted that he did not waive his right to a lawyer (specifically, James), the District Court construed Defendant’s acts as a knowing and voluntary waiver of the right to counsel: “I find that the defendant, through his actions, has knowingly and voluntarily waived his right to counsel in that he has refused to represent himself admittedly, but he has also refused to have Mr. Hamm represent him.” Having found Defendant competent, the District Court proceeded with Defendant representing himself at sentencing. Although Hamm was no longer Defendant’s counsel for sentencing, the court also did appoint Hamm as “advisory” or standby counsel. After allowing Defendant to make arguments, the court addressed objections to the PSI. Defendant offered arguments about, for example, why some enhancements should not apply and why a prior conviction should not be counted. The court calculated that the Sentencing Guidelines range would be 188-235 months of imprisonment, but a 120-month statutory maximum applied; so, the Guidelines range was 120 months’ imprisonment. The court imposed a sentence of 120 months of imprisonment, a 3-year term of supervised release, and a $100 special assessment fee (in addition to special conditions). Defendant appeals. 11  DISCUSSION Defendant’s Competency to Waive the Right to Counsel Defendant contends that the District Court committed reversible error in allowing Defendant to waive his right to counsel at sentencing. Briefly stated, Defendant contends he was incompetent to represent himself and that the District Court “erroneously required [Defendant] to proceed pro se at sentencing,” in violation of the Supreme Court’s decision in Indiana v. Edwards.10 Even if we assume arguendo -- without expressly deciding -- that a higher standard might govern the issue of competence to waive counsel and proceed pro se at trial or sentencing (as opposed to the Dusky11 standard governing the issue of competence to stand trial with counsel), we need not articulate any precise standard for the former; the record here amply supports the district court’s conclusion (under any reasonable standard) that Defendant was competent to waive counsel and proceed to sentencing as he did. This conclusion is especially 10 128 S. Ct. 2379 (2008). 11 80 S. Ct. 788 (1960) (per curiam). 12 true in the light of the fact that Defendant did not preserve this issue below and thus our review is for plain error. Defendant’s statements demonstrated Defendant’s ability to understand and to communicate objections and arguments to the court. For example, Defendant filed objections to the PSI in which he offered mitigating factors and challenged factual assertions. And Defendant also coherently argued objections to the court about why certain enhancements did not apply and why a prior conviction should not count for criminal history purposes. Significantly, the district court had before it a thorough psychiatric evaluation that indicated that Defendant had the ability to communicate thoughts in a clear and concise manner, that he had an understanding of the convictions and the penalties he faced, as well as a good knowledge of legal concepts and the evidence against him, and that Defendant was malingering. Thus, we cannot conclude that the district court committed reversible error in determining that Defendant was competent to waive counsel and to proceed to sentencing with only standby counsel.12 12 Edwards does not require a different result. While Edwards says many things about competency, Edwards decides a different question focused on the right of a defendant to represent himself: whether a court may lawfully require a criminal defendant who -- although competent to stand trial -- suffers from severe mental illness to proceed with counsel, despite the defendant’s request for self-representation. Edwards, 128 S. Ct. at 2385-88. No holding in Edwards controls this case. 13 Knowing, Intelligent, and Voluntary Waiver of Counsel Whether a defendant’s waiver of counsel was knowing and voluntary is a mixed question of law and fact that we review de novo. Garey, 540 F.3d at 1268. On direct appeal, the government bears the burden of proving a valid waiver. Id. A waiver of the right to counsel must be knowing and voluntary, and the validity of a waiver depends upon the particular facts and circumstances of a case. Id. at 1266. Broadly speaking, all criminal defendants have the right to counsel. But defendants do not have an unqualified right to counsel of their choice; and absent good cause to dismiss a court-appointed lawyer, an indigent defendant must accept the appointed lawyer or proceed pro se. Id. at 1263-64. A defendant who rejects his court-appointed lawyer and also refuses to proceed pro se “may waive his right to counsel by his uncooperative conduct, so long as his decision is made with knowledge of his options and the consequences of his choice.” Id. at 1266. “[W]hen confronted with a defendant who has voluntarily waived counsel by his conduct and who refuses to provide clear answers to questions regarding his Sixth Amendment rights, it is enough for the court to inform the defendant unambiguously of the penalties he faces if convicted 14 and to provide him with a general sense of the challenges he is likely to confront as a pro se litigant.” Id. at 1267.13 We conclude that, in this case, a competent Defendant knowingly and voluntarily waived his right to counsel. Defendant refused to allow a court- appointed lawyer to represent him, refused to proceed pro se, and refused to engage the District Court in a meaningful discussion about his right to counsel. Instead, Defendant repeatedly insisted upon representation by lawyer James. But James was entirely out of the case: James already had asked for and received permission to withdraw. After finding Defendant competent based on both the Defendant’s own acts and on a thorough psychiatric evaluation of Defendant, the District Court cited our decision in Garey and informed Defendant -- in detail -- of the possible penalties he faced and the dangers of self-representation. The District Court also informed Defendant that lawyer Hamm was available to serve as counsel,14 and Defendant 13 We have identified several factors that are important in determining whether a waiver is knowing and voluntary. United States v. Kimball, 291 F.3d 726, 730-31 (11th Cir. 2002) (per curiam). On the facts of this case, the Kimball factors support the finding and conclusion that Defendant’s waiver was knowing and voluntary. 14 After finding a knowing and voluntary waiver of counsel, the District Court appointed Hamm to serve as standby counsel. 15 was warned of the consequences of Defendant’s refusal to cooperate with the court. Defendant then, nevertheless, refused to cooperate with the court. Under Garey and in the light of the Kimball factors, the District Court properly found and concluded that, through Defendant’s uncooperative conduct, Defendant knowingly and voluntarily waived his right to counsel. “A dialogue cannot be forced[.]” Garey, 540 F.3d at 1266. By his acts, Defendant validly waived his right to counsel at sentencing. Due Process Apart from the pro-se-representation issue, Defendant contends that his supposed mental incompetence rendered his sentencing “fundamentally unfair,” in violation of the Fifth Amendment’s guarantee of due process. We review the scope of constitutional rights de novo. United States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005) (per curiam). Where a defendant -- as here -- makes no objection before the district court, we review only for plain error. United States v. Olano, 113 S. Ct. 1770, 1776-79 (1993). Due process requires that criminal defendants be afforded the opportunity to present favorable evidence. United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 16 2004). And “[t]he rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.” Chambers v. Mississippi, 93 S. Ct. 1038, 1045 (1973). Defendant contends that his supposed incompetency deprived him of the opportunity to present fully his case. We reject Defendant’s due-process-related contentions: Defendant was competent to waive his right to counsel, and Defendant knowingly and voluntarily waived his right to counsel. The record reflects that the District Court provided Defendant the opportunity to offer relevant evidence. No -- no (plain or otherwise) -- error exists on this record. Defendant’s due-process-related claims fail. Ineffective Assistance of Trial Counsel Whether a criminal defendant’s counsel was ineffective represents a mixed question of law and fact that we review de novo. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). “We will not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record.” Id. 17  We find this record to be insufficiently developed for us to be able to consider Defendant’s ineffective assistance of counsel claims on this direct appeal. For example, the record reflects no evidence about whether Defendant’s counsel had reason to question Defendant’s competence to stand trial on the question of Defendant’s guilt. We decline to address Defendant’s ineffective assistance of counsel claims in this direct appeal. Issues Raised Only in Defendant’s Pro Se Brief In addition to his lawyer-filed brief with this Court, Defendant also raised some distinct claims in a pro se-brief filed earlier in this Court. Each of Defendant’s pro se-claims is without merit. Defendant contends that the District Court erred by not granting Defendant’s change-of-venue request. We review denial of a change-of-venue request only for abuse of discretion. United States v. Campa, 459 F.3d 1121, 1143 (11th Cir. 2006) (en banc). Defendant did not (and cannot) carry the “extremely heavy” burden that we explicated in Campa. See id. The District Court did not abuse its discretion in denying Defendant’s change-of-venue motion. 18  Defendant contends also that the District Court erred by not sua sponte ordering a competency hearing before trial or at least before verdict. The law requires a competency hearing only when information exists raising a “bona fide doubt” about a defendant’s competency. See Watts v. Singletary, 87 F.3d 1282 (11th Cir. 1996). Here, in the light of all the record evidence, the District Court committed no error by not sua sponte ordering a competency hearing before trial or at least before verdict. Defendant’s remaining allegations in his pro se-brief to this Court largely involve allegations of lawyer ineffectiveness and of government and court misconduct. As discussed above, this record is insufficiently developed for us to address ineffective-assistance-of-counsel arguments in this direct appeal. And Defendant’s arguments about government and court misconduct are unsupported by record evidence and demonstrate no reversible error. CONCLUSION In the light of the facts of this case, we AFFIRM Defendant’s conviction and sentence. AFFIRMED. 19 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-8185 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LYNN GARY SMITH, a/k/a Eastside, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:03-cr-00093-F-1) Submitted: May 28, 2009 Decided: June 3, 2009 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Lynn Gary Smith, Appellant Pro Se. Anne Margaret Hayes, Rudolf A. Renfer, Jr., Assistant United States Attorneys, Robert Jack Higdon, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lynn Gary Smith appeals the district court’s order granting his motion to reduce his sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Smith, No. 7:03-cr-00093-F-1 (E.D.N.C. Oct. 2, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

310 A.2d 120 (1973) STATE HIGHWAY BOARD v. JAMAC CORPORATION and Rosalind A. Feuer et al. No. 84-72. Supreme Court of Vermont, Rutland. October 2, 1973. *121 Abatiell & Abatiell, Rutland, for Jamac Corp. Dick, Hackel & Hull, Rutland, for Rosalind A. Feuer. Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ. BARNEY, Justice. The potential allocation of damages from highway condemnation brought a boundary dispute into focus. Thereupon the highway board brought this equitable declaratory judgment action to determine the precise extent of its obligation to compensate each landowner. The lower court, in response to the petition, went ahead to hear evidence and make findings, and determined the boundaries on all sides of the disputed piece, even though the highway taking did not dislocate every bound. The piece of land involved is a small parcel conveyed from the midst of a larger holding that entirely surrounds it. The Jamac Corporation, the grantor, still retains such of the surrounding lands not taken for highway purposes. This corporation originally conveyed the parcel to Lake Tanners, Inc. That corporation represented a business operation conducted by David Feuer. Before this litigation arose, this same parcel had been reconveyed to David Feuer's wife and children. All of these members of the Feuer family are defendants. David Feuer conducted the negotiations in connection with the purchase of the parcel with James S. Abatiell, president and principal stockholder of Jamac Corporation. *122 The parcel itself has pretty much the shape of a block "L", with the top of the "L" headed easterly. It is variously claimed to be from six to ten acres in size. The highway taking passes along the southerly side, converting the "L" to an "I", and also crosses the easterly portion of the parcel in a north-south direction. The dispute centers around the exact shape of the parcel, with the Feuers contending for the full block "L", and the Jamac Corporation clipping corners from the lower left or northeasterly corner and both sides of the top or easterly extension of the "L". The deed description reads as follows: "Commencing at a point in the west side of the MacRae Road so-called, said point being north of the three-story packing house at the first telephone pole, and running thence westerly past the water tower so-called, to a stake in the gulley, thence running southerly to an old dead apple tree situated south westerly of the water spring, thence running easterly to a stake on the knoll about three hundred (300) feet west of the private road, thence running northerly to the private road south of the barn, thence running easterly across the said MacRae Road in a line with the telephone pole with the transformer, to an old dead apple tree situated about thirty (30) feet south from the private road running past the No. 2 packing house, thence north to a stake, thence westerly to the place of beginning, supposed to contain about six (6) acres more or less. Being a part of the same land and premises deeded to Jamac Corporation by John E. Wells and wife by their deed dated June 6, 1946, and recorded in the land records of the Town of Castleton in Book 43 at page 559, to which deed reference is hereby had. Subject to any and all rights, easements and privileges of record." A sketch of the property being conveyed, not to scale, prepared at the time of the sale, was introduced into evidence, and showed the shape of the property as the block "L" above mentioned. Also, two surveys were in evidence that were claimed to illustrate the positions of each side. One was the Rice survey, prepared at the joint expense of grantor and grantee just after the original sale, and the other was the Spencer survey, prepared near the time of litigation, and taking into account the original sketch. The two surveys yielded different acreages, the Rice survey being 72/3 acres and the Spencer survey 101/10 acres. The lower court found that the Spencer survey represented the grant agreed to and deeded between the parties, and determined the boundaries from it. The Jamac Corporation, after some equivocation, rested its claim on the Rice survey, and has appealed. The first question relates to the right of the trial court to give relief beyond the bounds of the actual highway taking. The original complaint by the highway board requested just that relief. No responsive pleading challenging or objecting to that prayer was filed by defendant Jamac, or any other defendant. In view of the interrelationship of the boundaries and the extent of the taking as compared to the whole parcel, the petition was not unreasonable. More important, the action is in the nature of an interpleader, and properly equitable, supporting resolution of the whole controversy as an equitable action. Cabot v. Hemingway, 115 Vt. 321, 323, 58 A.2d 823 (1948). Moreover, the state, as stakeholder of damages, also has an interest as a succeeding title-holder whose property interests as against all defendants need consistent resolution. See Price v. Rowell, 121 Vt. 393, 399, 159 A.2d 622 (1960). Under these circumstances, Jamac's challenge to the trial court's equitable jurisdiction will not prevail. Jamac also contends that the passage of fifteen years has settled the boundary question in favor of its claim. Under the provisions of V.R.C.P., 8(c), this defense is available only if properly pleaded, *123 which was not done here. Furthermore, the testimony reveals that the dispute between the parties as to the boundaries was first "unfurled" by Jamac to its grantee at a time less than fifteen years before this action. Percival v. Fletcher, 121 Vt. 291, 297, 155 A.2d 737 (1959). The remaining questions are evidentiary. The defendant Jamac challenges the findings generally as being unsupported and contrary to the evidence. The issue thus raised must, of course, be resolved on the basis that this Court must accept the findings of the lower court if there is any evidence fairly and reasonably tending to support them. Leno v. Meunier, 125 Vt. 30, 34, 209 A.2d 485 (1965). The evidence must be taken in the light most favorable to the prevailing party, and construe the findings so as to support the judgment, if possible. Lane Construction Corp. v. State, 128 Vt. 421, 428, 265 A.2d 441 (1970). The Spencer survey, adopted by the trial court as the accurate description of the parcel conveyed, admittedly encompasses a little more than ten acres. The descriptive language in the deed refers to the parcel as "supposed to contain about six (6) acres more or less." Although quantity may be of some use in selecting between claimed boundaries, it is regarded as the least reliable of all descriptive particulars. Parrow v. Proulx, 111 Vt. 274, 280, 15 A. 2d 835 (1940). It is the practice to take note of possible variations between the quantity call and the land actually conveyed by the boundaries described in the deed by use of such phrases as "more or less" or "about." In this deed the language was even more strongly conditional, and indicates its much lesser significance as an expression of the intention of the parties. The contention of Jamac would elevate this phrase into a governing call the circumstances clearly do not warrant. The Jamac position also challenges the sketch made at the time of the land sale as having any proper weight with respect to the agreement between the parties. But this Court finds the lower court quite rightly, under the testimony in the case, viewed this sketch as evidence of the nature and shape of the parcel intended to be conveyed. In so doing, the court was in part construing the extent of the grant against the grantor, who drew the deed, and in favor of the grantee. This was proper. deNeergaard v. Dillingham, 123 Vt. 327, 332, 187 A.2d 494 (1963). Indeed, the language of the deed may well be taken to favor the Spencer survey, rather than the Rice survey. The language of the call "thence running easterly across said MacRae Road in a line with the telephone pole with the transformer, to an old dead apple tree situated about thirty (30) feet south from the private road running past the No. 2 packing house," suggests a straight line, as found in the sketch and on the Spencer survey, rather than a line changing direction at the telephone pole as on the Rice survey. Similarly, the beginning call at a point in the west side of MacRae Road is for a line running "westerly". The closing call from the northeast corner calls for a line running "westerly" to a point of beginning. There is nothing to suggest that the bearing line of those two calls are different, or that that northerly boundary is anything other than a straight line running "westerly", as shown on the sketch and the Spencer survey. This view of the evidence in the case is not overcome by the specific monuments indicated on the Rice survey. As the findings point out, except where the Spencer and Rice surveys concur, the evidence did not establish that the points on the ground, even if they could be found, that the Rice survey used, were monuments of the deed. The evidence did not disclose who placed the marking stakes used by Rice, who made his survey in the absence of both parties. The findings also report that when Feuer challenged the survey as *124 not being in accordance with the sketch, Abatiell assured him that he would straighten it out. It should be noted here that the property was formerly a commercial orchard with many old apple trees, and that at the time of the Spencer survey, the easterly end of the property had been substantially cleared and bulldozed by highway contractors, so that any monuments in that area were unidentifiable. However, in view of all the evidence, the findings of the trial court had ample support. A question also arose as to the admission of the field book of the surveyor Rice. He had deceased some time before this litigation began. It was not offered at the original hearing, but at a second hearing asked for by Jamac under V.R.C.P., 59. This rule relates to the granting of a new trial, or reopening the judgment and taking further evidence on a matter tried by court. The defendants Feuer objected to the additional evidence in that it did not, in their view, meet the test of newly discovered evidence. Although we construe Rule 59 as having a somewhat broader scope than that test, which is more fittingly applied to V.R.C.P., 60, we do not accept the Jamac proposition that Rule 59 is a mere device for putting additional evidence before the trial court. Its purpose is, in line with most discretionary privileges of a trial court, directed at preventing a miscarriage of justice and allowing corrective action to that end to be taken promptly at the trial court level before review. Thus, the presentation of new evidence need not be allowed the merely dilatory, and ought not to be allowed to the prejudice of another party. At least two sufficient reasons appear in the record for supporting the trial court's ruling excluding the field book. The first is that David Feuer who actually negotiated the purchase of the parcel for Lake Tanners, Inc., and who walked the boundaries, knew the sketch and rejected the Rice survey earlier, died prior to the second hearing. The grantees then had no one who had been present to represent their interests. Additionally, when the field book was offered, it was tendered on the basis that the information in it would correspond to the information appearing on the Rice survey, already on exhibit in the case. It literally would have added nothing new of substance to the case. Thus, even though there might have been no error in receiving it, its belated production at the second hearing, in the light of the death of the only defendant with personal knowledge of the agreed-to bounds, together with its merely cumulative contribution to the evidence in the case, fully justified the exclusionary ruling of the court. No error appears. Judgment affirmed.

Case: 17-12092 Date Filed: 06/25/2018 Page: 1 of 22 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-12092 ________________________ D.C. Docket No. 7:15-cv-00121-WLS AUTAUGA QUALITY COTTON ASSOCIATION, Plaintiff - Appellant, versus TIM L. CROSBY, MARISA D. CROSBY, BRANDON CROSBY, SKYLER CROSBY, Defendants - Appellees. ________________________ Appeal from the United States District Court for the Middle District of Georgia ________________________ (June 25, 2018) Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges. NEWSOM, Circuit Judge:  Case: 17-12092 Date Filed: 06/25/2018 Page: 2 of 22 This is a case about cotton. B. B. King once called cotton “a force of nature”—“[t]here’s a poetry to it,” he wrote, “hoeing and growing cotton.” 1 Here, the poetry of the hoeing and growing has given way to a nasty little feud over the selling. Specifically, Autauga Quality Cotton Association, a cooperative that pools and markets farmers’ cotton, claims that the individual owners of one of its former member entities—together, the Crosbys—breached a marketing agreement, and “betray[ed]” the organization, when they failed to deliver their promised cotton for the 2010 crop year. Most significantly for present purposes, Autauga contends that as a remedy for the Crosbys’ breach it is entitled to liquidated damages pursuant to the marketing agreement’s terms. We must determine whether, under Alabama law, the provision that Autauga seeks to enforce is a valid liquidated-damages clause or, instead, an impermissible penalty. We hold that the provision imposes a penalty and is therefore void and unenforceable. I A Appellant Autauga is a not-for-profit cotton-marketing association based in Central Alabama. Its mission is to provide price stability to both farmers and consumers by pooling the cotton grown by its more than 1,000 members and then marketing it for sale. Association members pledge all of the cotton that they grow 1 B. B. King with David Ritz, Blues All Around Me 57 (HarperCollins 1996). 2  Case: 17-12092 Date Filed: 06/25/2018 Page: 3 of 22 on certain farms to Autauga, which then, based on the members’ representations, sells both commodity futures and physical product to consumers. After the cotton is harvested and ginned, Autauga delivers it to the buyers and remits the sale proceeds (minus its own operating expenses) to its members. This arrangement is memorialized in a marketing agreement between Autauga and each association member. Appellees are a family of South-Georgia cotton farmers and partners in Crosby, Crosby, Crosby, Crosby (CCCC). Before the kerfuffle that resulted in this litigation, CCCC had been a member of (and sold a lot of cotton through) Autauga for many years. In their capacities as partners in CCCC, Tim and Marisa Crosby entered into the operative marketing agreement with Autauga in 2007. Their children, Skyler and Brandon Crosby, joined CCCC—and the marketing agreement—the following year. Under the agreement’s terms, CCCC was obligated to sell to Autauga all cotton grown on farms listed on a separately-executed “Farm Verification Form.” (Association members are free to sell cotton grown on farms not listed on the verification form outside Autauga’s marketing pool.) The agreement contemplated that CCCC would submit a new verification form each year, but didn’t specify a deadline for doing so. Importantly, per the agreement’s language, the previous year’s verification form would continue to apply until a new form was filed. In 3  Case: 17-12092 Date Filed: 06/25/2018 Page: 4 of 22 2009—the year before the crop year in question here—CCCC (through an intermediary) submitted its verification form in late October. In that form, CCCC pledged to market through Autauga all cotton grown on more than 2,000 acres of land spread across 22 farms. (For the 2009 crop year, CCCC’s pledge resulted in it marketing more than 4,000 bales through Autauga.) Because CCCC never submitted a verification form for the 2010 crop year, its 2009 form governed its 2010-crop-year obligations. The agreement allows a grower to “sign out” of the marketing arrangement entirely by executing a certified notice by a particular date before the beginning of the crop year. 2 On March 8, 2010, Autauga informed its members that the “sign- out” deadline for the 2010 crop year would be March 26. It’s undisputed that the Crosbys never executed a “sign-out” notice, although, as it turns out, Tim Crosby had earlier executed contracts to sell essentially all of CCCC’s 2010-crop-year cotton—some 4,000 bales—to an organization outside the association, Cargill Cotton. On April 8 and August 24, 2010, Autauga sent letters to its members requesting that they submit farm verification forms as soon as possible, but didn’t specify a hard deadline. When it still hadn’t received CCCC’s verification form by November 2010, Autauga contacted Tim Crosby by phone, and Tim reported that 2 The parties agree that the “sign-out” notice and the farm verification form are “separate and distinct concept[s]” under the agreement. 4  Case: 17-12092 Date Filed: 06/25/2018 Page: 5 of 22 CCCC would be selling most if its 2010-crop-year cotton directly to Cargill. By December, CCCC had delivered more than 4,000 bales of 2010 cotton to Cargill. CCCC never delivered any of its pledged 2010 cotton to Autauga. In May 2011, Autauga’s attorney sent a demand letter to CCCC explaining that the Crosbys’ failure to deliver the cotton pledged in their 2009 verification form breached the marketing agreement 3 and that, as a result, Autauga was entitled to liquidated damages. In relevant part, the agreement’s liquidated-damages provision provides as follows: In the event of a breach by the Grower of any material provision of this Marketing Agreement, particularly as to the delivery or marketing of committed cotton other than through the Association, the Association shall, upon proper action instituted by it, be entitled to an injunction to prevent further breach and to a decree for specific performance hereof, according to the terms of this Agreement. If and to the extent that the equitable relief described above is not available, 4 the Association shall be entitled to receive for every breach of this agreement for which such equitable relief is unavailable, liquidated damages in an amount equal to the difference between (a) the price of such cotton on the New York futures market during the period beginning with the date of breach or default by the Grower (taking into account the grade, staple, and micronaire of such cotton) and ending with the final delivery by the Association of cotton sold during that year, and (b) the highest price per pound received by the Association for the membership cotton (of the same or nearest grade, staple, and micronaire) sold by it from the same year’s crop. The May 2011 letter didn’t demand a specific liquidated-damages sum; 3 Although the Crosbys continue to dispute that they breached the agreement, they acknowledge that breach is not an issue on appeal. See Oral Arg. Tr. at 23:02. 4 In its complaint, Autauga asserted that “[e]quitable or injunctive relief in this case is not available [because CCCC] already sold the pledged cotton on the open market.” 5  Case: 17-12092 Date Filed: 06/25/2018 Page: 6 of 22 rather, it stated that Autauga hoped to avoid a lawsuit and urged CCCC to “take prompt action to resolve this matter in a way that satisfies [Autauga].” Nearly three years later, Autauga’s attorney sent a second letter that, for the first time―and purporting to use the formula set out in the agreement—calculated the liquidated damages to be $1,305,397. The second letter included an offer to settle for less if the Crosbys paid within 30 days; otherwise, it said, Autauga would be “forced to initiate a lawsuit.” B The Crosbys didn’t pay, and Autauga sued. Claiming that the Crosbys had breached the marketing agreement by failing to deliver their pledged cotton for the 2010 crop year, Autauga asserted that it was entitled to liquidated damages. Having initially calculated the liquidated-damages sum to be $1,305,397, Autauga increased the amount to $1,340,225 when it filed its complaint—and then later revised it upward to $1,660,857, and then upward again to $1,712,846, and then downward to $1,696,610. Following discovery, the Crosbys sought summary judgment on the ground that the agreement’s liquidated-damages provision is an unenforceable “penalty” clause under Alabama law.5 The district court agreed and granted summary judgment, concluding that the provision imposes a 5 The agreement’s “Controlling Law” provision states that it is “to be governed by the law of the State of Alabama” and that its terms and provisions “shall be construed and interpreted in accordance with the laws of the State of Alabama.” 6  Case: 17-12092 Date Filed: 06/25/2018 Page: 7 of 22 penalty―rather than reasonably estimating probable loss―and is therefore void. Autauga timely appealed to this Court. II On appeal, Autauga asserts that the agreement’s liquidated-damages provision is enforceable for three reasons: (1) because it isn’t a penalty clause under the usual common-law rules prevailing in Alabama; (2) because the usual rules should bend to a public policy that demands “liberal enforcement” of liquidated-damages provisions in cooperative agreements; and (3) because, usual rules aside, Alabama’s Agricultural Code explicitly authorizes liquidated-damages clauses in mutual farming associations’ marketing contracts. We consider Autauga’s arguments in turn.6 A The general common-law rules regarding liquidated damages are well- settled. Under Alabama law, bona fide liquidated-damages provisions—which prescribe “a sum to be paid in lieu of performance”—are enforceable, but “penalty” clauses—which impose “a security for the performance of the agreement or … a punishment for default”—are void. Camelot Music, Inc. v. Marx Realty & Imp. Co., 514 So. 2d 987, 990 (Ala. 1987). The trick, of course, is distinguishing 6 We review a district court’s order granting summary judgment de novo, taking all the evidence, and drawing all reasonable inferences, in favor of the non-moving party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). 7  Case: 17-12092 Date Filed: 06/25/2018 Page: 8 of 22 between the two. Helpfully, Alabama courts have identified three essential markers of a valid liquidated-damages provision: “First, the injury caused by the breach must be difficult or impossible to accurately estimate; second, the parties must intend to provide for damages rather than for a penalty; and, third, the sum stipulated must be a reasonable pre-breach [estimate] of the probable loss.” Id. If any one of these three criteria isn’t satisfied, “the clause must fail as a penalty.” Milton Const. Co. v. State Highway Dep’t, 568 So. 2d 784, 790 (Ala. 1990), overruled on other grounds by Ex parte Alabama Dep’t of Transp., 978 So. 2d 17, 23 (Ala. 2007). The marketing agreement here prescribes the following liquidated-damages formula: [T]he difference between (a) the price of [the pledged but undelivered] cotton on the New York futures market during the period beginning with the date of breach or default by the Grower (taking into account the grade, staple, and micronaire of such cotton) and ending with the final delivery by the Association of cotton sold during that year, and (b) the highest price per pound received by the Association for the membership cotton (of the same or nearest grade, staple, and micronaire) sold by it from the same year’s crop. The Crosbys insist that the formula can’t survive Camelot’s three-part test. They attack the formula as unreasonable and punitive, criticizing its ambiguity and the grossly disproportionate results that it produces. We agree. Faithful application of Camelot requires us to conclude that the provision at issue here is an unenforceable penalty rather than a valid liquidated-damages clause. 8  Case: 17-12092 Date Filed: 06/25/2018 Page: 9 of 22 1 To begin, Camelot’s first prong is easily satisfied―the injury caused by the Crosbys’ alleged breach is “difficult or impossible to accurately estimate.” 514 So. 2d at 990. Indeed, although Autauga devotes the bulk of its briefing to arguing prong one, the Crosbys don’t even dispute that it is met. The problem for Autauga isn’t prong one, but rather prongs two and three. 2 Camelot’s second prong―whether the parties “intend[ed] to provide for damages rather than for a penalty,” id.―weighs heavily against enforceability. We find two pieces of evidence particularly indicative of an intent to penalize rather than to compensate. First, there is the text of the agreement itself. As a benchmark for measuring damages—i.e., as the top number in what amounts to a subtraction equation—the liquidated-damages provision’s formula uses the “highest price per pound received” by Autauga for cotton at any time during the relevant crop year, no matter how small the amount. That “highest price” factor certainly doesn’t evidence an intent to reasonably estimate Autauga’s actual loss. Indeed, so far as we can tell, it bears no necessary (or even probable) relationship to actual loss, or to the real world more generally. Why the “highest price,” as opposed to the “average,” “median,” or even “lowest”? That question seems to us to answer 9  Case: 17-12092 Date Filed: 06/25/2018 Page: 10 of 22 itself—in order to pump up the prescribed damages and thereby maximally deter breaches of the agreement. Second, Autauga’s own damages expert confirmed what the agreement itself indicates when he repeatedly testified during his deposition—both on direct and on cross—that the liquidated-damages provision’s formula was intended not to estimate actual loss, but rather to discourage breach. Asked point-blank initially, “What purpose does th[e] formula serve?” he answered, three separate times, “there’s a disincentive for a farmer … to not perform and not deliver his cotton,” “it’s a disincentive to not perform, to breach the contract,” and “it’s a disincentive for anybody to breach the contract.” Deposition of John Mitchell at 200–02. When asked later if he wanted to clarify or add any nuance, Autauga’s expert doubled down: Q: “I know you said that this formula is supposed to be a disincentive. But is it also supposed to approximate some loss to Autauga Quality Cotton Association?” A: “Yeah. I wouldn’t agree with that. I would say it should have some attempt toward making Autauga whole, but I don’t know that it is trying to approximate actual loss.” Id. at 272. Finally, asked by Autauga’s own lawyer, the expert reiterated that the liquidated-damages provision is “not a make-Autauga-whole” remedy, but rather a “disincentive for a farmer to not perform.” Id. at 397. The evidence thus strongly indicates that the agreement’s liquidated- 10  Case: 17-12092 Date Filed: 06/25/2018 Page: 11 of 22 damages provision was designed to deter breaches, not to estimate and compensate losses. Under longstanding Alabama law, a provision that is intended to serve as a disincentive to breach or a security for performance is void as a penalty. Milton, 568 So. 2d at 791. Accordingly, the formula fails Camelot’s second factor. 3 The formula also fails the third Camelot criterion because “the sum stipulated” isn’t “a reasonable pre-breach [estimate] of the probable loss.” 514 So. 2d at 990. As an initial matter, the liquidated-damages provision is fatally ambiguous. From the “highest price” benchmark—just discussed—the formula subtracts “the price of [the promised but undelivered] cotton on the New York futures market during the period beginning with the date of breach or default by the Grower … and ending with the final delivery by the Association of cotton sold during that year.” In at least two respects, this latter factor—i.e., the bottom number in the equation—is so vague as to amount to an ink blot. For starters, what “price of [] cotton on the New York futures market”? That price—like the price of any commodity—will fluctuate constantly, even throughout an individual trading day. There is no single, identifiable “price.” To paper over that conspicuous difficulty, Autauga assumes that the formula should be understood to refer to the average price during the specified period; on that assumption, Autauga says, the formula 11  Case: 17-12092 Date Filed: 06/25/2018 Page: 12 of 22 works just fine. The problem is that the word “average” appears nowhere in the provision, and Autauga has offered no convincing explanation why we should engraft the term “average”―as opposed to some other measure of value, such as median—onto the provision’s plain language. To make matters worse, although the formula requires that the “price” be determined, in part, by reference to the “date of breach,” it never defines that term—and perhaps not surprisingly, in offering a wide variety of damages calculations, see supra at 6, Autauga has used as many as eight different breach dates, each presumably tied to some different alleged act or omission of CCCC. A formula plagued with such pervasive ambiguity doesn’t—and can’t—provide a reasonable pre-breach estimate of probable loss. Finally, and separately, as explained by the Alabama Supreme Court in Milton, Camelot’s third prong requires a hindsight comparison of actual harm to the damages prescribed by the contract. 568 So. 2d at 791. In this case, that comparison yields a grossly disproportionate number. Autauga is a non-profit association that recoups only its operating and marketing expenses before distributing earnings to its members. Here, the Crosbys (as members of the association) would have received the bulk of any sales revenue from their cotton. But the liquidated-damages sum that Autauga is seeking―now calculated to be $1,696,610―is more than 80% of the total sales value of CCCC’s entire 2010 crop 12  Case: 17-12092 Date Filed: 06/25/2018 Page: 13 of 22 ($2,092,015.89) and nearly three times CCCC’s 2010 net earnings ($592,015.89). The liquidated-damages figure vastly exceeds anything that Autauga could even possibly have lost as a result of the Crosbys’ alleged breach. See Southpace Properties, Inc. v. Acquisition Group, 5 F.3d 500, 505–06 (11th Cir. 1993) (invalidating a liquidated-damages clause under Alabama law after determining, following hindsight review, that the damages were disproportionate and unreasonable). Because the agreement’s liquidated-damages formula doesn’t remotely prescribe a “reasonable pre-breach [estimate] of the probable loss,” Camelot, 514 So. 2d at 990, it fails Camelot’s third criterion. * * * Put simply, there’s just no evidence that the liquidated-damages formula here bears any relation to Autauga’s probable loss. By contrast, the contractual language, Autauga’s own expert’s testimony, and the grossly disproportionate sum that Autauga claims combine to demonstrate that the agreement’s liquidated- damages provision was intended as “a security for the performance of the agreement or as a punishment for default”―precisely what Alabama courts have forbidden. Id. Accordingly, under the usual common-law rules, the liquidated- damages clause is a void and unenforceable penalty. 13  Case: 17-12092 Date Filed: 06/25/2018 Page: 14 of 22 B Not so fast, Autauga says—the usual common-law rules, it asserts, don’t (or shouldn’t) apply to cooperative marketing associations. Instead, Autauga contends—cobbling together cases and commentary spanning nearly a century— liquidated-damages provisions in cooperative marketing agreements are entitled to “liberal enforcement” due to the unique qualities of cooperative organizations. The success (and even survival) of these associations depends on every member’s compliance, Autauga emphasizes—which, the argument goes, has led courts to adopt a more permissive attitude toward liquidated-damages clauses in cooperative marketing contracts. When “properly” construed under this “policy of liberal enforcement,” Autauga says, the liquidated-damages provision here is reasonable and valid. The problem is that, upon inspection, the authorities that Autauga cites provide no meaningful support for its liberal-enforcement argument. Among Alabama cases, Autauga primarily relies on Ex parte Baldwin Cty. Producers’ Corp., 83 So. 69 (Ala. 1919), and Warren v. Alabama Farm Bureau Cotton Ass’n, 104 So. 264 (Ala. 1925). But those decisions are doubly irrelevant here. First, neither involved liquidated damages; Baldwin held that a provision in a marketing association’s bylaws requiring members to pay 3% of their gross sales to the cooperative didn’t impermissibly “restrain[] trade,” 83 So. at 71, and Warren 14  Case: 17-12092 Date Filed: 06/25/2018 Page: 15 of 22 similarly held that a specific-performance provision in a marketing agreement didn’t “restrain[] trade,” 104 So. at 268–69. Second, the provisions at issue in both cases—the gross-receipts clause in Baldwin and the specific-performance clause in Warren—were expressly authorized by state statute, which, as explained in detail below, the liquidated-damages provision in Autauga’s marketing agreement isn’t. See Baldwin, 83 So. at 71; Warren, 104 So. at 267. Presumably in an effort to pad its conspicuously thin Alabama-based authority, Autauga turns to cases from other jurisdictions. But those cases, too— even if we were inclined to look beyond Alabama’s borders to make an Erie-guess about the content and meaning of Alabama law—are likewise distinguishable. Olson v. Biola Co-op. Raisin Growers Ass’n, 204 P.2d 10 (Cal. 1949), and United Dairymen of Arizona v. Rawlings, 177 P.3d 334 (Ariz. Ct. App. 2008), for instance, both involved statutes that explicitly authorized liquidated-damages provisions in cooperative marketing agreements. See Olson, 204 P.2d at 13 (stating that “an important [statutory] exception to the general rule on the remedy of liquidated damages prevails in the case of a nonprofit cooperative marketing association”); United Dairymen, 177 P.3d at 340 (concluding that a liquidated- damages provision was per se enforceable based on statutory language providing that such provisions “shall be” enforced). Rio Grande Valley Sugar Growers, Inc. v. Campesi, 592 S.W.2d 340 (Tex. 1979), is likewise off-point. There, the 15  Case: 17-12092 Date Filed: 06/25/2018 Page: 16 of 22 Supreme Court of Texas held only that a cooperative-marketing-association statute, which provided that an association’s bylaws may fix liquidated damages, didn’t prohibit the association’s general right to contract for such damages in the absence of the bylaws’ express authorization. 592 S.W.2d at 342–43. Although the court noted the importance of liquidated-damages provisions in cooperative marketing agreements, it also (and importantly) indicated that the usual common- law rules governed enforceability, even of provisions expressly permitted by statute. Id. at 342 n.2. In short, none of the authorities that Autauga has mustered in support of its “liberal enforcement” argument provides any firm basis for disregarding (or diluting) Alabama’s general common-law rules. C Finally, Autauga asserts that it is entitled to avail itself of an Alabama statute—Ala. Code § 2-10-65—that seems to broadly authorize at least some marketing associations to enforce liquidated-damages provisions. Autauga is wrong. Its argument is belied by the Alabama Code’s clear text and structure. Chapter 10 of Alabama’s Agricultural Code, see Ala. Code § 2-10-1 et seq., establishes rules and regulations governing marketing cooperatives and associations. As the Alabama Supreme Court has explained, Chapter 10 comprises four articles, “which are as follows: Article 1, General Provisions (§2-10-1); 16  Case: 17-12092 Date Filed: 06/25/2018 Page: 17 of 22 Article 2, Marketing Associations Generally (§§ 2-10-20 through 2-10-35); Article 3, Incorporated Marketing Associations (§§ 2-10-50 through 2-10-74); and Article 4, Mutual Farming or Trucking Associations (§§ 2-10-90 through 2-10-108).” Flav-O-Rich, Inc. v. City of Birmingham, 476 So. 2d 46, 49 (Ala. 1985). Articles 1 and 2, the Court said, “are intended to apply to all cooperatives and associations formed under any of these sections.” Id. By contrast, “Articles 3 and 4 set forth separate and distinct schemes for the formation of cooperatives and associations.” Id. Section 2-10-65―contained in Article 3―expressly authorizes the marketing associations to which it applies to execute contracts “fix[ing], as liquidated damages, specified sums to be paid by the member … to the association upon the breach by him of any provision of the marketing contract regarding the sale or delivery or withholding of products” and, further, broadly states that “any such provisions shall be valid and enforceable in the courts of this state.” Ala. Code § 2-10-65. Notably―and significantly here―Article 4 doesn’t include a comparable provision. Autauga asserts that even though it was organized under Article 4―its marketing agreement expressly states that it is “a cooperative association for mutual farming and trucking organized under Title 2-10-90 et seq., Code of Alabama 1975”—it should nonetheless enjoy the protection of Article 3’s Section 17  Case: 17-12092 Date Filed: 06/25/2018 Page: 18 of 22 2-10-65. No way. Autauga’s argument is foreclosed by plain statutory text. By its terms, Section 2-10-65 authorizes “association[s]” to enforce contractual liquidated-damages provisions. And critically, Section 2-10-50—which is also contained in Article 3—defines the term “association” to mean “[a]ny corporation organized under this article.” Ala. Code § 2-10-50 (emphasis added). Because Autauga wasn’t organized under “this article”―i.e., Article 3―Section 2-10-65 doesn’t apply to it. Period, paragraph, end of story. Under Alabama law, when “the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” Ex Parte Ankrom,152 So. 3d 397, 410 (Ala. 2013). To be clear, Autauga could have elected to organize under Article 3 rather than Article 4. But it didn’t. At oral argument, Autauga explained that it affirmatively chose Article 4 over Article 3 in order to take advantage of certain tax benefits available under the former. See Oral Arg. Tr. at 26:51. That’s fine and all, but it underscores what the Alabama Supreme Court has said about Articles 3 and 4—namely, that they are “separate and distinct.”7 Flav-O-Rich, 476 7 As its sole case-law authority for the proposition that the boundary between Articles 3 and 4 can be disregarded, Autauga cites State v. Franklin Cty. Co-op., Inc., 464 So. 2d 120 (Ala. Civ. App. 1985), in which an intermediate appellate court permitted an Article 3 association to obtain a licensing-fee exemption based on language in an Article 4 provision. But the Franklin court never explained—at all—why the Article 4 provision applied. The Alabama Supreme Court has warned that silence cannot “justifiably support judicial intrusion into legislative matters” and that “[a]rguments based on what courts do not say, logically speaking, are generally unreliable and should not be favored by the judiciary ….” Ex parte James, 836 So. 2d 813, 818 (Ala. 2002). 18  Case: 17-12092 Date Filed: 06/25/2018 Page: 19 of 22 So. 2d at 49. Life is full of choices. In choosing Article 4 over Article 3 for its tax advantages, Autauga lost out on Article 3’s liquidated-damages authorization. Alas, Autauga must take the bitter with the sweet. Autauga’s assertion that Articles 3 and 4 should be read “in pari materia” can’t overcome the clear statutory language and structure that are so dead-set against it. In fact, when properly understood and applied, the in pari materia rule boomerangs back around to undermine Autauga’s position. Contrary to Autauga’s contention, the in pari materia canon doesn’t require a court to ignore (or render permeable) the boundaries between two separate but related statutes. Rather, under Alabama law, “[w]here statutes are in pari materia”―meaning they “deal with the same subject,” which Articles 3 and 4 undoubtedly do―“they should be construed together to ascertain the meaning and intent of each.” League of Women Voters v. Renfro, 290 So. 2d 167, 169 (Ala. 1974). When Articles 3 and 4 are so construed, what jumps out, at least for purposes of this case, is their differing treatments of liquidated-damages provisions: Article 3 expressly authorizes their enforcement; Article 4 doesn’t. So, to the extent that there is any inference to be drawn from the sort of comparison that the in pari materia rule entails, it cuts decisively against Autauga’s position. Cf., e.g., Dees v. Coaker, 51 So. 3d 323, 330 (Ala. Civ. App. Moreover, and in any event, Franklin’s ipse dixit contradicts the Alabama Supreme Court’s clear—and subsequent—statement that Articles 3 and 4 are “separate and distinct.” Flav-O- Rich, 476 So. 2d at 49. 19  Case: 17-12092 Date Filed: 06/25/2018 Page: 20 of 22 2009) (citing Russello v. United States, 464 U.S. 16, 23 (1983), for the proposition that where a legislature “includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the legislature] acts intentionally and purposely in the disparate inclusion or exclusion”). Finally, Autauga retreats to the quintessential last hope of lost causes— “public policy.” Article 4 associations, it says, shouldn’t be denied Section 2-10- 65’s protections because the policy behind enforcing liquidated-damages provisions is the same regardless of the legal form that the association takes. Whether or not that’s true, Autauga’s argument fails because it contravenes (as already explained) the clear statutory text and structure, as well as longstanding Alabama Supreme Court precedent emphasizing that “[t]he Legislature is endowed with the exclusive domain to formulate public policy in Alabama, a domain upon which the judiciary shall not trod.” Cavalier Mfg., Inc. v. Jackson, 823 So. 2d 1237, 1248 (Ala. 2001), overruled on other grounds by Ex parte Thicklin, 824 So. 2d 723 (Ala. 2002); see also Boles v. Parris, 952 So. 2d 364, 367 (Ala. 2006) (“[I]t is well established that the legislature, and not this Court, has the exclusive domain to formulate public policy in Alabama.”). Had the Legislature wanted Section 2- 10-65 to apply to Article 4 associations, it could easily have said so. It’s certainly not our place—particularly as a federal court sitting in diversity—to speculate 20  Case: 17-12092 Date Filed: 06/25/2018 Page: 21 of 22 whether the Alabama Legislature might have secretly intended (or might even today prefer) a different rule. If the Legislature thinks we’ve gotten it wrong, it is of course free to “enact appropriate legislation to modify the statute and yield a different result in subsequent cases.” Ex parte Jackson, 614 So. 2d 405, 408 (Ala. 1993). Okay by us. But we “will not”—under Alabama law, cannot—“make such a modification for it.” Id. So Autauga’s statutory argument fares no better than its common-law contentions. Autauga attempts to add language where none exists and create conflict where none is present. The statutory text and structure—as well as their implications for this case—are clear: Section 2-10-65 applies only to cooperatives organized under Article 3; Autauga wasn’t organized under Article 3; ergo, Autauga can’t avail itself of Section 2-10-65’s protection. III In the end, neither Autauga’s “liberal-enforcement” argument nor its statutory argument allows it to evade application of Alabama’s common law rules. And under those rules, Autauga’s liquidated-damages provision is plainly a penalty―rather than a reasonable estimate of probable loss―and is therefore void and unenforceable. 8 8 Because we find that no “substantial doubt exists about the answer” to the questions of Alabama law that this case presents, Forgione v. Dennis Pirtle Agency, Inc., 93 F.3d 758, 761 21  Case: 17-12092 Date Filed: 06/25/2018 Page: 22 of 22 AFFIRMED. (11th Cir. 1996) (per curiam), we decline Autauga’s request that we certify those questions to the Alabama Supreme Court. 22 

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-1082 NORTH CAROLINA COURT OF APPEALS Filed: 5 August 2014 SYLVESTER LOVING, Plaintiff, v. Cumberland County No. 12 CVS 7501 FRANCO WEBB and CORE COMPUTER TECHNOLOGIES, LLC, Defendants. Appeal by defendants from judgment entered 17 May 2013 by Judge Gale M. Adams in Cumberland County Superior Court. Heard in the Court of Appeals 5 February 2014. The Law Office of Bryce D. Neier, by Bryce D. Neier, for defendant-appellant. No brief was filed for plaintiff. BRYANT, Judge. Where defendant pursued a counterclaim seeking an equitable remedy and argued before the trial court that the court had authority to impose an equitable remedy, defendant’s argument to the contrary will not be heard on appeal. Where the trial court ordered defendants to refund plaintiff the amount he paid above the cost of the goods received, the trial court acted within its  -2- authority pursuant to principles of equity. Accordingly, we affirm the trial court’s judgment. Plaintiff Sylvester Loving ran an accounting business and taught classes instructing clients on the use of accounting software. Defendants Franco Webb and Core Computer Technologies, LLC, were engaged in the business of selling, installing, and servicing computer equipment. On 23 May 2012, plaintiff agreed to purchase from defendants computer equipment, including a “quad core” server (Agreement I). Plaintiff paid $3,851.97 for the equipment. On 24 May 2012, plaintiff agreed to purchase additional computer equipment, including fifteen computer workstations, from defendants for a total price of $9,277.34 (Agreement II). That same day plaintiff made a down payment of $6,395.50.00. The agreements and down payments were documented in invoices (Invoice I, dated 23 May 2012, and Invoice II, dated 24 May 2012). The equipment was to be installed before plaintiff began teaching classes in September 2012. On 21 June 2012, pursuant to Agreement I, defendants delivered to plaintiff’s business a server, but plaintiff alleged that he received a “dual core CPU server rather than the quad core server, contracted for.” In addition, plaintiff  -3- alleged that he never received any of the equipment contracted for pursuant to Agreement II. On 22 August 2012 plaintiff filed a complaint against defendants in Cumberland County Superior Court. Plaintiff stated a claim for unfair and deceptive trade practices in violation of section 75-1.1 alleging that defendants failed to respond to plaintiff’s messages, failed to deliver the contracted for goods, and failed to refund plaintiff’s payments. Plaintiff sought compensatory damages in excess of $10,000.00, requested that his damages be trebled, and “such other and further relief the Court deems just, fit and proper.” On 31 October 2012, defendants answered plaintiff’s complaint and counterclaimed. Defendants alleged that in accordance with Agreement I, they delivered to plaintiff a quad core server but that the $3,851.97 plaintiff paid them was a down payment on a total purchase price of $5,135.96, leaving an outstanding balance of $1,283.99. Defendants further admitted that pursuant to Agreement II, they agreed to sell plaintiff additional computer equipment, including fifteen computer workstations, for a price of $9,277.34. Plaintiff’s down payment of $6,395.50 for Agreement II left an outstanding balance of $2,881.84. Defendants admitted that they never  -4- delivered any equipment in accordance with Agreement II as “Plaintiff failed to pay the balance owed under [Agreement I] and Defendants demanded payment in full on [Agreement I] before any further equipment would be delivered . . . .” In their counterclaims, defendants sought recovery on the theory of unjust enrichment and quantum meruit. Defendants alleged that they delivered the equipment and accessories ordered by plaintiff under Agreement I but that plaintiff failed to pay the total amount owed. Defendants further alleged that plaintiff was unjustly enriched in excess of $2,283.99 “which represents the balance owed on [payment under Agreement I] of $1,283.99 and $1,000.00 in labor fees.” This matter was heard in a bench trial before the Cumberland County Superior Court on 6 May 2013, the Honorable Gale M. Adams, Judge presiding. Following plaintiff’s presentation of evidence in support of his sole claim for unfair and deceptive trade practices, defendants moved for a directed verdict. The trial court granted defendants’ motion at the close of all the evidence “based on a finding that there was no unfair and deceptive trade practice.” In a judgment entered 17 May 2013, the trial court found that there was an agreement between the parties for plaintiff to  -5- purchase from defendant Webb computer equipment, including a “quad core” server, for a total purchase price of $5,135.96 (Agreement I). Plaintiff had paid defendants $3,851.97, leaving an outstanding balance of $1,283.99. The court also found there was a second agreement between the parties for plaintiff to purchase additional computer equipment, including fifteen workstations, for a price of $9,277.34 (Agreement II), and that plaintiff paid defendants $6,395.50, leaving an outstanding balance of $2,881.84. However, defendant Webb never delivered any product or service pursuant to Agreement II. The trial court made the following findings of fact: 17. That based on [] Defendants’ counterclaims, [] Plaintiff has been unjustly enriched in the amount of $1283.99 since he has enjoyed the benefit and possession of the equipment delivered pursuant to [Agreement I]. . . . 19. The amount of $1283.99 should be deducted from the $6395.50 already paid to [] Defendants pursuant to [Agreement II] and the balance of $5111.51 should be returned to plaintiff. The trial court awarded plaintiff $5,112.51, with interest from the date of judgment. Defendants appeal. ____________________________________  -6- On appeal, defendants argue that the trial court abused its discretion and committed reversible error by entering judgment against defendants in the amount of $5,112.51. Defendants contend the trial court properly dismissed plaintiff’s sole claim for unfair and deceptive trade practices, but absent any surviving claim on plaintiff’s behalf, the court lacked authority to award plaintiff damages. More specifically, defendants contend that because the evidence at trial proved the parties entered into express contracts with remedies at law available to them for disputes, the trial court was without authority to impose an equitable remedy. We disagree. The rule is, that an appeal ex necessitate follows the theory of the trial. Having tried the case upon one theory, the law will not permit the defendant to change its position, or to swap horses between courts in order to get a better mount in the [appellate courts]. The theory upon which a case is tried must prevail in considering the appeal, and in interpreting a record and in determining the validity of exceptions. Gorham v. Ins. Co., 214 N.C. 526, 531, 200 S.E. 5, 8 (1938) (citation and quotations omitted); see also Dent v. Mica Co., 212 N.C. 241, 242, 193 S.E. 165, 166 (1937) (holding the defendant could not argue on appeal that the contract at issue was not binding when the defendant argued at trial that no contract existed).  -7- First, we look to the theory defendants presented to the trial court. In their counterclaim, defendants sought recovery for the outstanding balance due from plaintiff as to Agreement I. Defendants raised one counterclaim, “unjust enrichment/quantum meruit,” and made the following assertions: 14. Defendant’s [sic] delivered to Plaintiff computer equipment and accessories as specified in Business Proposal 1. 15. That Plaintiff has failed to pay for the equipment and services and labor provided him in Business Proposal 1. 16. That Plaintiff has been unjustly enriched at Defendants [sic] expense in excess of $2,283.99, which represents the balance owed on Business Proposal 2 of $1283.99 and $1000.00 in labor fees. 17. That the fees owed under Business Proposal 2 represents the measure of recovery for reasonable services rendered by Defendants to Plaintiff. At trial, defendants consistently argued that the exchanges between plaintiff and defendants were business proposals and not formalized contracts. [Defense counsel:] And, Judge, again, as I talked at the close of the plaintiff's evidence, what we have here is a situation wherein there were two receipts, business proposals, one to deliver the server and then the second one dealing with the  -8- workstations. . . . So what this really comes down to is [as to plaintiff’s claim] I don't think the elements of unfair and deceptive trade practice are met here, at most. Even assuming arguendo if he had filed a claim for unjust enrichment or quantum meruit, again, as a trier of fact, you have to determine whether those elements are met. The problem here is that you don't have that before you because, on the one hand, you don't have a contract for which a claim would be filed for breach of contract so you don't have that present so that's off the table. You don't have a claim from the plaintiff for quantum meruit or unjust enrichment, so that is not before the Court. . . . So again, assuming arguendo that it was an issue of unjust enrichment or quantum meruit on the plaintiff's side, that's not before the Court. He hasn't pled that. My client has pled the issue of, hey, he's still got the equipment and there are still monies that are offset. . . . That's what I would contend to the Court. (Emphasis added). Defendants advocated for a finding that no actual contract existed between the parties: “you don't have a contract for which a claim would be filed for breach of contract.” Furthermore, defendants presented the trial court with a counterclaim for unjust enrichment / quantum meruit seeking to  -9- recover the outstanding balance plaintiff owed as to the first “business proposal.” And, in closing arguments, defendants pointed out that plaintiff did not seek recovery on the theory of unjust enrichment or quantum meruit: “He [, plaintiff,] hasn't pled that. My client has pled the issue of, hey, [plaintiff]’s still got the equipment and there are still monies that are offset.” In its 17 May 2013 judgment, the trial court found “[t]hat based on the Defendants’ counterclaims, [] Plaintiff had been unjustly enriched in the amount of $1283.99 since he has enjoyed the benefit and possession of the equipment delivered pursuant to the May 23, 2012 invoice.” In their brief to this Court and contrary to the arguments made before the trial court, defendants now state that “[t]he evidence at trial proved express contracts in any scenario as between the parties.” If taken as true, that the evidence proves express contracts existed, the equitable remedy of unjust enrichment would not be available to resolve this dispute. See Pritchett & Burch, PLLC v. Boyd, 169 N.C. App. 118, 124, 609 S.E.2d 439, 443 (2005) (“Only in the absence of an express agreement of the parties will courts impose a quasi contract or a contract implied in law in order to prevent an unjust  -10- enrichment.”). We find defendants’ stance on appeal to be inconsistent with and even in direct contravention of the argument defendants presented before the trial court. Therefore, defendants will not be allowed to contend on appeal what they directly advocated against before the trial court. See Gorham, 214 N.C. at 531, 200 S.E. at 8 (“Having tried the case upon one theory, the law will not permit the defendant to change its position, or to swap horses between courts . . . . The theory upon which a case is tried must prevail in considering the appeal, and in interpreting a record and in determining the validity of exceptions.”); see also Fabrikant v. Currituck Cnty., 174 N.C. App. 30, 48, 621 S.E.2d 19, 31 (2005) (holding the plaintiffs’ argument on appeal was precluded where the plaintiffs induced the challenged outcome at trial by giving the court the option to pursue it); Frugard v. Pritchard, 338 N.C. 508, 512, 450 S.E.2d 744, 746 (1994) (under the doctrine of invited error, “a party may not complain of action which he induced.”). Thus, defendants will not be heard to contend the trial court lacked the authority to impose an equitable remedy. We next consider defendants’ argument that the trial court lacked authority to award plaintiff the amount he paid  -11- defendants above the cost of the goods defendants provided where plaintiff had no surviving claims. “[W]hen equitable relief is sought, courts claim the power to grant, deny, limit, or shape that relief” as necessary to achieve equitable results. Sara Lee Corp. v. Carter, 351 N.C. 27, 36, 519 S.E.2d 308, 314 (1999) (citations and quotations omitted). A well-known maxim is “[o]ne who seeks equity must do equity.” Creech v. Melnik, 347 N.C. 520, 529, 495 S.E.2d 907, 913 (1998). “In fashioning an equitable remedy, the conduct of both parties must be weighed by the trial court.” Kinlaw v. Harris, 364 N.C. 528, 533, 702 S.E.2d 294, 297 (2010). In Jefferson Standard Life Insurance Co. v. Guilford County, our Supreme Court explained that a person who seeks equity cannot “strike down only those transactions which are unfavorable to him and preserve from a like fate those from which he would take an advantage.” 226 N.C. 441, 448, 38 S.E.2d 519, 524 (1946). “Because the fashioning of equitable remedies is a discretionary matter for the trial court, we review such actions under an abuse of discretion standard.” Kinlaw, 364 N.C. 532— 33, 702 S.E.2d 297. “Under the abuse-of-discretion standard, we review to determine whether a decision is manifestly unsupported by reason, or so arbitrary that it could not have been the  -12- result of a reasoned decision.” Mark Grp. Int’l, Inc. v. Still, 151 N.C. App. 565, 566, 566 S.E.2d 160, 161 (2002) (citation omitted). In its judgment, the trial court made the following conclusion of law: 3. That although [] Plaintiff was unjustly enriched in the amount of $1283.99, he has already paid an excess amount of $6395.50 pursuant to the May 24, 2012 invoice, from which $1283.99 can be deducted for [] Defendants, leaving a balance of $5,111.51 owed to the Plaintiff. In accordance with this conclusion, the trial court awarded plaintiff $5,111.51 to be recovered from defendants. The trial court’s decision ordering defendants to refund plaintiff the sum of $5,111.51 based on defendants’ unjust enrichment claim is consistent with the principles of equity. The trial court, when asked to fashion an equitable remedy, considered the entire matter before it, including the conduct of both parties and both transactions before the court, in order to shape the relief as necessary to achieve equitable results. See Creech, 347 N.C. at 529, 495 S.E.2d at 913. Therefore, we hold that the trial court acted within its authority and discretion to fashion this remedy pursuant to principles of equity. See  -13- Guilford Cnty., 226 N.C. at 448, 38 S.E.2d at 524. Accordingly, we affirm the trial court’s judgment. Affirmed. Judges STEPHENS and DILLON concur. Report per Rule 30(e). 

967 S.W.2d 493 (1998) Calvin Joseph REYNOLDS, Appellant, v. The STATE of Texas, Appellee. No. 01-96-00779-CR. Court of Appeals of Texas, Houston (1st Dist.). April 9, 1998. Robert G. Tanner, Houston, for Appellant. John B. Holmes, Dan McCrory, Houston, for Appellee. Before COHEN, WILSON and HEDGES, JJ. OPINION HEDGES, Justice. A jury found appellant guilty of driving while intoxicated (DWI) and assessed punishment at a fine of $300 and 180 days in jail, probated for one year. On appeal, appellant contends that the trial court erred (1) in denying his motion to suppress, (2) in giving an incomplete charge, and (3) in including an extraneous instruction in the charge. We affirm. *494 FACTS On December 22, 1995, Houston Police Department (HPD) Officer Walsh stopped appellant after noticing that appellant was speeding and was unable to maintain a single lane of traffic. Walsh smelled alcohol on appellant, noticed that his eyes were bloodshot, his speech was slurred, and his balance was unstable. After appellant failed the standard field sobriety tests, Walsh arrested him. Appellant refused a breath test. At an administrative license revocation hearing, the administrative law judge entered a finding of fact that the Department of Public Safety did not prove that there was a reasonable suspicion to stop appellant and declined to suspend appellant's license. At his trial for DWI, appellant filed a motion to suppress based on the administrative law judge's determination. The trial court denied the motion. WAIVER At the outset, we note that the State contends that appellant has waived all of his points of error because the record on appeal does not include the reporter's record of the closing arguments during the guilt innocence phase and the reporter's record of the punishment phase. We hold that the record is sufficient for us to address the merits of appellant's points of error. MOTION TO SUPPRESS In point of error one, appellant contends that the trial court erred in denying his motion to suppress, based on the administrative law judge's finding that the police had no reasonable suspicion to stop him. He argues that the doctrine of collateral estoppel barred the trial judge from relitigating the issue decided by the administrative law judge: that the officer had no legal basis to stop appellant. He contends that based on that finding, the trial judge had no choice but to grant the motion to suppress. We disagree. We hold that the State is not collaterally estopped from relitigating the issue of reasonable suspicion to stop at the suppression hearing in the criminal prosecution. State v. Brabson, 966 S.W.2d 493 (Tex.Crim.App. 1998). We overrule point of error one. INCOMPLETE CHARGE In point of error two, appellant contends that the trial court erred in giving an incomplete charge under Tex.Code Crim. P. Ann. art. 38.23 (Vernon Supp.1998). Appellant concedes that the trial court correctly charged the jury that it should not consider evidence obtained from appellant's stop if no reasonable suspicion existed. His complaint is that the charge was incomplete because it did not include certain introductory language from article 38.23. Review of alleged jury charge error requires that an appellate court make a two-fold inquiry: (1) whether error exists in the jury charge, and (2) whether sufficient harm was caused by the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim.App.1994). Appellant requested the following instruction based on article 38.23(a): You are instructed that no evidence obtained by an officer or other persons in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. The trial court denied his request and instead included the following instruction in the charge: You are further instructed that an officer is permitted, however, to make a temporary investigative detention of [a] motorist if the officer has a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, that the person detained is connected with such activity, and that there is some indication that the activity is related to crime or a criminal offense. ... Now, bearing in mind these instructions, if you find from the evidence that on the occasion in question police officer J.P. WALSH did not have a reasonable suspicion *495 to believe that the defendant, CALVIN JOSEPH REYNOLDS, was either driving at a speed greater than thirty-five (35) miles per hour on a portion of roadway with a posted speed limit of thirty-five (35) miles per hour or had failed to drive as nearly as practical entirely within a single lane immediately preceding the Defendant's stop and detention by the officer, or if you have a reasonable doubt thereof, you will disregard any and all evidence obtained as a result of the defendant's arrest by Officer J.P. WALSH and you will not consider such evidence for any purpose whatsoever. Further, since you will have no further evidence to consider, you shall return a verdicr [sic] of "Not Guilty." These instructions are sufficient to comport with the requirements of article 38.23(a). The jury was clearly instructed that it had to find that the officer had reasonable suspicion to stop appellant before it could consider any evidence obtained as a result of the stop. The trial court did not err in charging the jury. Appellant erroneously relies on Hutch v. State, 922 S.W.2d 166, 169 (Tex.Crim.App. 1996), for the proposition that the trial court should have included in the charge the statutory language contained in article 38.23. In Hutch, the Court of Criminal Appeals held that the application paragraph in the charge included a clearly erroneous statement of the law. Hutch, 922 S.W.2d at 172. The erroneous charge happened to include the article 38.23(a) language that appellant requested and did not obtain. Nowhere in Hutch, however, does the court require that the specific article 38.23 language appellant requested be mandatorily included in the charge. We overrule point of error two. EXTRANEOUS INSTRUCTION In point of error three, appellant contends that the trial court erred in instructing the jury that appellant's failure "to drive as nearly as practical within a single lane" could constitute possible grounds for reasonable suspicion to stop him. He argues that this instruction is not supported by the evidence because Officer Walsh limited his basis for the stop to appellant's "traveling over the posted speed limit." Appellant ignores Walsh's earlier testimony, in which he states that in addition to observing appellant speeding, he also observed appellant crossing into other lanes at times. Based on this evidence, the trial court properly included the instruction on maintaining a single lane of traffic. We overrule point of error three. We affirm the judgment of the trial court. WILSON, J., concurring. COHEN, J., dissenting. WILSON, Justice, concurring. The United States Supreme Court defined collateral estoppel in Ashe v. Swenson: "It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) (emphasis added). While probable cause to arrest is an issue of ultimate fact in a license revocation case, it is not an issue of ultimate fact in a driving while intoxicated (DWI) case. Neaves v. State, 767 S.W.2d 784, 786-87 (Tex. Crim.App.1989). We followed Neaves in Holmberg v. State, 931 S.W.2d 3, 4-5 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In Holmberg, we observed that probable cause to arrest is not an element of DWI; rather, it is part of a suppression hearing. Id. at 5. We reasoned that because a motion to suppress evidence is merely a specialized objection to the admissibility of evidence, there are no double jeopardy consequences to such a ruling. Id. Our holding was that collateral estoppel did not preclude a DWI prosecution after a finding against the State on the ultimate fact issue of probable cause in a license revocation hearing because probable cause is not an ultimate fact issue in a DWI prosecution. Id. The dissenting opinion's position in this case is based on the concept that probable cause is an ultimate fact issue in a motion to suppress hearing. This position conflicts with the notion that a motion to suppress is merely a specialized objection to the admissibility of evidence. See Galitz v. State, 617 *496 S.W.2d 949, 952 n. 10 (Tex.Crim.App.1981); Montalvo v. State, 846 S.W.2d 133, 137-38 (Tex.App.—Austin 1993, no pet.). A ruling on the admissibility of evidence is a preliminary question, not an issue of ultimate fact. See Tex. R. Crim. Evid. 104 (entitled "Preliminary Questions" and dealing with questions of admissibility). As in Neaves, the fact that probable cause is not an issue of ultimate fact in a DWI prosecution is dispositive of appellant's collateral estoppel claim without examining matters such as whether the State had a full and fair opportunity to litigate the issue in the first proceeding. 767 S.W.2d at 786. Accordingly, I would hold that appellant's collateral estoppel claim fails because even though probable cause is a determinative issue in a suppression hearing, it is not an ultimate issue of fact. Therefore, while I join the majority opinion's reliance on State v. Brabson, 966 S.W.2d 493 (Tex.Crim.App.1998), this concurring opinion expresses an additional reason for overruling point of error one. COHEN, Justice, dissenting. I disagree with the majority concerning point of error one. I would sustain it and hold that the trial judge erred by not granting appellant's motion to suppress based on collateral estoppel. For several reasons, I believe that this case is not controlled by State v. Brabson, 966 S.W.2d 493 (Tex.Crim.App.1998). Eight months before Brabson, the court decided State v. Aguilar, 947 S.W.2d 257 (Tex.Crim. App.1997). In Aguilar, the Court of Criminal Appeals stated that "the Court of Appeals was correct in finding that the doctrine of collateral estoppel might, in principle, bar the State from relitigating fact issues found in a previous administrative license revocation proceeding...." Id. at 261. Although Brabson generated four opinions, only the dissenting opinion mentioned Aguilar. Thus, despite the holding in Brabson, Aguilar has not been distinguished or overruled, at least expressly. Because the statement quoted above from Aguilar was obviously important to Texas law, because the Brabson holding rests on at least one basis that had nothing to do with the issues in Aguilar, and because I doubt that a Court of Criminal Appeals intent on rapidly abandoning Aguilar would not do so expressly, I would decline to hold that Aguilar was implicitly overruled in Brabson. One reason for the Brabson holding was that the controlling statute did not authorize the administrative law judge to make the finding on probable cause to arrest that Brabson then sought to use as a collateral estoppel bar. At 496. As the Brabson court noted, that statute has now changed. The new statute, which controls this case, authorizes the administrative law judge to find whether "reasonable suspicion or probable cause existed to stop or arrest the person." Brabson, at 497 n. 6 (citing Tex. Transp. Code Ann. § 724.042(1) (Vernon Pamph. 1998)). It is hardly surprising for Brabson to hold that if an administrative law judge makes unauthorized findings, those unauthorized findings will not constitute a collateral estoppel bar. See Church v. State, 942 S.W.2d 139, 140 (Tex.App.—Houston [1st Dist.] 1997, pet. ref'd) (refusing to give collateral estoppel effect to a finding of fact that was outside the ALJ's power to adjudicate). That has no bearing on this case, of course, because this administrative law judge had authority to find that police lacked reasonable suspicion to stop appellant. The Brabson court held, however, that this did not matter because the legislature has so stated. The court noted that "the legislature has expressly provided that the determination of the administrative judge `does not preclude litigation of the same or similar facts in a criminal prosecution.' See TEX. TRANSP. CODE ANN. § 724.048(a)(3) (Vernon Pamph. 1998)...." At 497 n. 6. Section 724.048(a)(3) is the same as the statute in State v. Aguilar, 947 S.W.2d at 261 n. 5. It is also the same as the now repealed TEX. REV.CIV. STAT. ANN. art. 6687b-1, § 5(d),[1] which this Court declared unconstitutional in Arnold v. State, 920 S.W.2d 704, 708 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd). I *497 believe these statutes are all unconstitutional for the same reason. When, as here, we are dealing with an issue of constitutional law, "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803). The Brabson court held that these statutes are valid, citing United States Supreme Court authority that "Congress may provide by statute that common-law collateral estoppel principles do not apply to findings of administrative agencies acting in a judicial capacity." Brabson, at 497 n. 6. I doubt that that principle controls this case. I doubt that we are dealing here with commonlaw collateral estoppel that Congress or the Texas Legislature may declare inapplicable. In Aguilar, the court said it was dealing with collateral estoppel as "given effect through the double jeopardy clause...." Aguilar, 947 S.W.2d at 259. Contra Brabson, at 495 n. 2. Yet another basis for the Brabson holding is that the issue of probable cause for arrest is not an ultimate fact, and therefore, a finding of no probable cause could not generate a collateral estoppel bar. At 497. I agree that in Brabson, probable cause was not an ultimate fact before the administrative law judge; it was not even an issue within his power to decide. But the opposite is true here. It was an ultimate issue here because the statute changed and authorized the administrative law judge to decide it. Probable cause was also an ultimate issue at appellant's motion to suppress hearing, although not an element of the driving while intoxicated (DWI) offense. I have always assumed that we limited collateral estoppel to findings of ultimate fact in order to guarantee that we barred relitigation only of issues actually litigated in the first proceeding. If that is our policy, it was followed in this case. The administrative law judge found an ultimate fact in the hearing before him.[2] The final basis for the Brabson opinion concerns me the most. It is that collateral estoppel does not apply because the Texas Department of Public Safety and the Dallas County District Attorney are not "the same parties." At 496. I believe they are not parties at all. They are different parts of the executive branch of the State of Texas.[3] The Brabson opinion states that an underlying principle of collateral estoppel is that "a party should have an opportunity to litigate an issue of ultimate fact" and "the Dallas County District Attorney had no opportunity to litigate the issue of probable cause for appellee's arrest in the administrative proceeding...." At 496 n. 4. The Dallas County District Attorney did not have that opportunity. The Dallas County District Attorney is simply that, a lawyer. His client, the State of Texas, was the party, and it had notice and motive to aggressively prosecute the issue of ultimate fact in the license revocation proceeding, just as it might do by and through its lawyer, the Dallas County District Attorney, in the DWI case. The concurring opinion in Brabson elaborates on this theme. It emphasizes that Texas is big and its government decentralized. This is surely true, as it is of almost every other state. In fact, only authority from other states, not from Texas, is cited for this proposition in Brabson. Such a holding is, in my opinion, at least questionable under Waller v. Florida, 397 U.S. 387, 394-95 90 S.Ct. 1184, 1188-89, 25 L.Ed.2d 435 (1970). I would follow Aguilar, sustain the first point of error, reverse the judgment, and remand the cause. NOTES [1] Act of Jan. 19, 1993, 73rd Leg., R.S., ch. 866, § 1, 1993 Tex. Gen. Laws 3516, 3517. [2] The Court of Criminal Appeals has stated that collateral estoppel applies to evidentiary facts, as well as to ultimate facts. Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App.1981) ("Facts so established in the first trial may not be used in the second trial as ultimate or as evidentiary facts."). That statement seems broader than the holding in Dedrick, which concerned the ultimate fact of identity. Id. at 336 n. 1. Moreover, such a holding regarding evidentiary facts would be doubtful. See Grady v. Corbin, 495 U.S. 508, 521-22, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990) (inquiry is what conduct the State must prove, not the evidence it will use), overruled by United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993). [3] Contra State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 928 (Tex.Crim.App.1994) (plurality opinion).

966 N.E.2d 213 (2012) BAILEY v. STATE. No. 82A05-1108-CR-398. Court of Appeals of Indiana. March 29, 2012. BAKER, J. Disposition of Case by Unpublished Memorandum Decision Affirmed. DARDEN, J., concurs. BAILEY, J., concurs.

197 Ga. App. 489 (1990) 398 S.E.2d 807 WHATLEY v. THE STATE. A90A1259. Court of Appeals of Georgia. Decided November 6, 1990. John E. Sawhill III, for appellant. Stephen F. Lanier, District Attorney, H. Harold Chambers, Jr., Leigh E. Patterson, Assistant District Attorneys, for appellee. CARLEY, Chief Judge. Appellant was tried before a jury and found guilty of the following crimes: conspiracy to traffick in cocaine; trafficking in cocaine; and, use of a communications facility in the commission or facilitation of trafficking in cocaine. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts. 1. Appellee's motion to dismiss this appeal is denied. 2. Although appellant filed a pre-trial motion to suppress, his enumeration of error challenging the denial of that motion has not been supported either by citation of authority or by argument. Accordingly, this enumeration of error is deemed to have been abandoned pursuant to Rule 15 (c) (2) of this court. 3. Several of appellant's enumerations of error relate to an alleged violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) occasioned by the State's failure to disclose two pre-trial statements that had been made by a co-indictee. It appears, however, that neither statement of the co-indictee is exculpatory of *490 appellant. One is clearly inculpatory and the other is merely non-inculpatory in that appellant's name was not specifically mentioned therein. However, even assuming that either of the co-indictee's two statements could be considered exculpatory of appellant, there was no Brady violation because both were disclosed at trial. "[T]he mandate of Brady is not violated when the `material is (made) available to the defendant during trial, since Brady does not require a pre-trial disclosure of the materials. (Cits.)' [Cit.]" Assad v. State, 195 Ga. App. 692, 693 (1) (394 SE2d 617) (1990). 4. A Spanish-speaking co-indictee was called as a witness for the State and testified on direct and cross-examination through an interpreter. Subsequently, appellant sought to recall the co-indictee for further cross-examination. Contrary to appellant's assertions, the trial court did not refuse to allow the co-indictee to be recalled. The trial court merely informed appellant that, if the co-indictee was to be recalled, he would have to be reaccompanied by an interpreter. "The use of an interpreter, and the extent to which the examination will be allowed to proceed through him must necessarily lie within the sound discretion of the trial judge." Hensley v. State, 228 Ga. 501 (1) (186 SE2d 729) (1972). 5. On cross-examination of a witness for the State, appellant elected to pursue the topic of the issuance of judicial authorization for a wiretap. The District Attorney began his redirect examination of the witness by making the following comment: "[W]e've already had a motion to suppress hearing on this particular. . . ." Appellant objected to this comment and moved for a mistrial. The trial court denied the motion but gave curative instructions. On appeal, appellant enumerates the denial of his motion for mistrial as error. A defendant is entitled to have a hearing on his motion to suppress conducted outside the presence of the jury. However, appellant has cited no authority for the proposition that the jury is, under no circumstances, to be informed that a motion to suppress has been made and a hearing held. This court has previously held that, under circumstances similar to those which exist in the instant case, the challenged comment of the District Attorney would not be grounds for either a mistrial or curative instructions. Sims v. State, 165 Ga. App. 881, 883 (5a) (303 SE2d 60) (1983); Arnold v. State, 155 Ga. App. 581, 582 (3) (271 SE2d 714) (1980). In any event, the trial court did give curative instructions in the instant case and appellant did not thereafter renew his motion for mistrial. Accordingly, this enumeration of error is clearly without merit. Glass v. State, 181 Ga. App. 448 (2) (352 SE2d 642) (1987). 6. Since appellant was charged with conspiring with others to traffick in cocaine, it obviously was not error for the trial court to charge on constructive as well as actual possession. The jury was otherwise *491 adequately instructed that appellant could not be found guilty based upon proof of possession of the cocaine by his co-indictees unless he had conspired with them to traffick in that cocaine. 7. Since appellant was convicted of trafficking in cocaine, his conviction and sentence for conspiracy to traffick in cocaine cannot stand. Hardin v. State, 172 Ga. App. 232, 234 (1) (322 SE2d 540) (1984). The judgments of conviction and sentences for trafficking in cocaine and the use of a communications facility in the commission or facilitation of trafficking in cocaine are affirmed. The judgment of conviction and sentence for conspiracy to traffick in cocaine are reversed. Judgments affirmed in part and reversed in part. McMurray, P. J., and Sognier, J., concur.

671 S.W.2d 679 (1984) Pink TURNER, Jr., Appellant, v. The STATE of Texas, Appellee. No. 05-83-00580-CR. Court of Appeals of Texas, Dallas. May 9, 1984. *680 James K. Johnson, Lawrence B. Mitchell, Dallas, for appellant. Henry Wade, Dist. Atty., Tom Streeter, Asst. Dist. Atty., Dallas, for appellee. Before STEPHENS, VANCE and ALLEN, JJ. ALLEN, Justice. Pink Turner, Jr. appeals his conviction for aggravated robbery in which the court assessed his punishment at twenty years in the Texas Department of Corrections. Turner contends that the trial court erred in overruling his challenge for cause of a prospective juror in violation of TEX.CODE CRIM.PROC.ANN. art. 35.16(a)(8), Act of June 2, 1969, ch. 412, § 3, 1969 Tex.Gen. Laws 1364, amended by Act of May 17, 1983, ch. 134, § 2, 1983 Tex.Gen.Laws 619 (currently TEX.CODE CRIM.PROC.ANN. art. 35.16(a)(9)) (Vernon Supp. 1966-1983). We disagree with the appellant's contention, and therefore, we affirm the judgment of the trial court. During voir dire of the jury panel, appellant's counsel, Jim Johnson, read to the prospective jurors a list of witnesses and requested that they raise their hand if they recognized any of them. Venireman John Arnette recognized the name Jim Bilgere as being the name of a person he knew. The record shows that Arnette had known Jim Bilgere as a participant in the athletic program at his church. Arnette, in answer to questions asked by appellant's counsel Johnson, said that as of that moment he considered Bilgere to be a truth teller. Johnson challenged Arnette for cause. Arnette was examined extensively by the attorneys as well as by the court, with the end result being the court's overruling the challenge. At the time the court overruled the appellant's challenge to Arnette and at the conclusion of voir dire, appellant's counsel requested that the court grant appellant an additional peremptory challenge. The requests were denied. Further, after both the State and defendant had exercised peremptory challenges and before the jury was seated, the appellant again requested that the court grant him an additional peremptory challenge contending that appellant had been compelled to exercise a peremptory challenge on venireman John Arnette who should have been excused by the court for cause, and that due to the use of this peremptory challenge the appellant was being forced to take juror Carl Christian, a juror objectionable to appellant, who appellant would strike if the court granted the additional challenge. The court denied the request. These facts place appellant within the rule laid down in Wolfe v. State, 147 Tex.Crim. 62, 178 S.W.2d 274 (1944), and followed in Hernandez v. State, 563 S.W.2d 947, 948 (Tex.Crim.App.1978) (en banc), which declares that if it can be shown that a venireman was challengeable for cause and that the overruling of the challenge deprived appellant of a peremptory challenge he would have used to strike a named juror who was objectionable to appellant, for whatever reason, the court's refusal to grant appellant an additional peremptory challenge would require a reversal. We must now decide whether the court erred in overruling appellant's challenge for cause of venireman Arnette. TEX.CODE CRIM.PROC.ANN. art. 35.16(a)(8) (currently art. 35.16(a)(9)) requires that a prospective juror be dismissed for cause "if he has a bias or prejudice in favor of or against the defendant." The ruling on challenges for cause is a function of the trial judge. When bias or prejudice is not established as a matter of law, the trial court has discretion to determine whether bias or prejudice actually exists to such a degree that a prospective juror is disqualified and should be excused. Anderson v. State, 633 S.W.2d 851 (Tex. Crim.App.1982). However, when a prospective juror is shown to be biased as a matter of law, he must be excused when challenged, even if he states he can set bias *681 aside and provide a fair trial. Williams v. State, 565 S.W.2d 63 (Tex.Crim.App.1978). Therefore, we can only overturn the ruling of the trial judge if, in light of all the answers given by a prospective juror, bias as a matter of law has been established. Anderson, 633 S.W.2d at 854. The "bias" complained of here consists of Arnette's acquaintance with Jim Bilgere, one of the State's witnesses, through athletic activities at his church. Although such knowledge may be the source of existing bias, "The mere fact that a juror knows a witness and is on friendly relations with him is not sufficient basis for disqualification." Anderson, 633 S.W.2d at 853; Allbright v. Smith, 5 S.W.2d 970 (Tex.Comm'n App. 1928, judgmt adopted). Arnette expressed no bias for or against the appellant Pink Turner, Jr. When appellant's attorney Johnson asked Arnette, "Do you feel at this point that the Jim Bilgere that you know is a truth-teller?" Arnette answered "at this moment, yes." In the lengthy examination of the venireman by both the court and counsel we note the following questions and answers in the record: MR. JOHNSON: And would you say that you would then, because of that feeling, then place the burden upon the Defendant to come in and show that he was not a truth-teller? MR. ARNETTE: I'm not looking for anybody to come in and say whether he is a truth-teller or not. I'm going to listen to the facts and determine for myself. You can't make a decision for me. You can't put it in my mind he's a truth-teller or not. THE COURT: Could you listen to the testimony if he is called by either side and determine in your own mind whether or not that person is credible and whether or not you want to believe what he said? MR. ARNETTE: Yes. THE COURT: Would you treat him the same as you would any other witness and listen to the facts that he testifies to and weigh them the same as anyone else? MR. ARNETTE: That's all I have to go by is the facts and I would weigh them just like anyone else. MR. JOHNSON: Mr. Arnette, I think you can understand why I would ask that you relate your relationship to the Prosecution witness—because of the possibility there may be a friendship established between you or some family relationship. Do you feel that because of your relationship in the church that you folks attend that you would have a tendency to be quicker to believe him and give him more credibility and more weight to his testimony than you would any other witness? MR. ARNETTE: I can't tell you for sure. I mean I've never had that happen, so you're asking me to make a prejudgment. I am saying I will or I started to say I feel like I can make a decision, whether it be Jim or anyone else that I wouldn't know in a fair, honest, open-minded way in the trial on the facts that I've heard. I will make my own decision on that.... all I can say is that I'm not going to believe or disbelieve until somebody opens their mouth and tells me the facts. MR. JOHNSON: Okay. Now, getting all that aside, do you feel like—still feel like that because you know and have a personal relationship with this fellow, either from your church or a social standpoint or whatever it may be, playing sports with him that you already believe now as you stand here right now that the man is a truth-teller? MR. ARNETTE: Yes. MR. JOHNSON: We would submit the juror. THE COURT: Would you listen to his testimony and weigh his testimony and determine, based on what he says, whether or not you want to believe what he has to say in this case? MR. ARNETTE: Would I believe it? THE COURT: Would you listen to him and weigh his testimony as you would any other witness in this case? MR. ARNETTE: Yes. *682 THE COURT: You see, the point is that it isn't right that one side or the other would go in with a witness where you're going to believe them no matter what they say. MR. ARNETTE: I understand what you're getting to and I'm telling you no matter what they say, I'm not going to believe—I see his point. I believe Jim to be a truth-teller now because he has never lied to me. I can't take—I don't have anything else to go by. THE COURT: Okay. MR. ARNETTE: But, because of the case or not, I'm going in believing yes, that he is a truth-teller and until I know—until something else is said. THE COURT: You would listen to his testimony and weigh it as he has said? MR. ARNETTE: Right. If I believe he's not telling the truth, then I can say and I would say I don't believe he's telling the truth, then I can say and I would say I don't believe he's telling the truth, I think he's lying. But, I don't know that until I hear. THE COURT: You're telling me you could listen to the testimony and determine in your own mind the credibility of that testimony and determine whether or not you want to believe it and the weight you would give to it? MR. ARNETTE: Yes. No bias as a matter of law has been established in this case. The trial record sufficiently supports the trial court's finding that Arnette was not disqualified for bias and prejudice, and its denial of the challenge for cause was not error. Likewise, no error is shown by the trial court's refusal to grant appellant's request for an additional peremptory challenge. We affirm the judgment of the trial court.

65 F.3d 161 Melvin P. Deutschv.U.S. Department of Justice, U.S. District Court for EasternDistrict of New York, Robert C. Heinemann NO. 95-3063 United States Court of Appeals,Third Circuit. July 31, 1995 Appeal From: W.D.Pa., No. 94-cv-00256J, Smith, J. 1 AFFIRMED.