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308 So.2d 382 (1975) Fred McCOY v. TANGIPAHOA PARISH SCHOOL BOARD. No. 10123. Court of Appeal of Louisiana, First Circuit. February 10, 1975. Rehearing Denied March 10, 1975. Writ Refused April 24, 1975. *383 Joseph H. Simpson, Amite, for appellant. Hobart O. Pardue, Jr., Springfield, for appellee. Before LANDRY, BLANCHE and NEHRBASS, JJ. LANDRY, Judge. Defendant (School Board) appeals from judgment awarding Plaintiff (Appellee), a tenured school teacher, the difference between the salary of a principal and that of *384 a classroom teacher following Appellee's demotion from Principal, Midway Elementary School, Tangipahoa Parish, to classroom teacher upon closure of the school. Appellee has answered the appeal seeking damages for a frivolous appeal. We affirm the judgment declaring Appellee entitled to the difference in pay; we reject Appellee's demand for damages for frivolous appeal. The facts are virtually undisputed. Appellee is a tenured teacher in the Tangipahoa Parish School System, having been employed therein for more than 17 years. On July 2, 1969, Appellee held the position of Principal, Midway Elementary School, to which post Appellee was appointed eight years and six months previously. Midway School was closed July 2, 1969, pursuant to a Federal Court order rendered in an integration action brought against School Board. Following closure of the school, Appellee was demoted to the status of fourth grade classroom teacher without the benefit of a hearing. Upon his demotion, Appellee instituted proceedings in the Federal Court seeking reinstatement to the position of principal on the ground that his demotion was illegal in that it was motivated by racial discrimination. In his Federal Court action, Appellee did not seek any decree respecting compensation. On September 2, 1970, judgment was rendered in Appellee's Federal Court action denying Appellee's demand for reinstatement as principal. Appellee's appeal from said adverse judgment is presently pending in the Federal Court system. This present action was instituted by Appellee on March 19, 1973. The only relief sought by Appellee herein is that he be awarded the difference between the salary of principal and classroom teacher from July, 1969, to the present. On October 2, 1973, in an apparent effort to comply with LSA-R.S. 17:422, Edwin Newman, Superintendent of Schools, Tangipahoa Parish, wrote Henry Dunn, President, Tangipahoa Parish School Board, recommending Appellee's termination as principal, retroactive to July 2, 1969. Newman assigned as reasons for said recommendation, Appellee's lack of the required certificate of eligibility as principal, and also the closing of the Midway School by Federal Court order, which action allegedly abolished Appellee's job as principal. School Board filed herein Exceptions of Res Judicata, Lis Pendens, No Cause of Action and Prescription of Three Years pursuant to LSA-C.C. art. 3538, all of which were overruled below. The trial court rendered judgment in favor of Appellee in the sum of $12,096.22. On appeal School Board reurges all of its exceptions save that of Lis Pendens. Alternatively, School Board suggests a remand to fix the amount due Appellee because the record does not show with clarity the salary paid principals during the period involved herein. THE EXCEPTION OF RES JUDICATA We are in accord with School Board's contention that a final judgment of a Federal Court may form the basis of a plea of Res Judicata in the courts of this state, Harrell v. Rockett, La.App., 65 So.2d 670. It is elementary, however, that an exception of Res Judicata (the authority of the thing adjudged) must be predicated upon a final judgment. In this instance, it is conceded that the judgment of the United States District Court rejecting Appellee's demand for reinstatement as principal has been appealed by Appellee. Inasmuch as said judgment has been appealed, and consequently is not final because it is not presently executory, it does not constitute the basis of a plea of Res Judicata. THE EXCEPTION OF NO CAUSE OF ACTION This exception is based on the premise that Appellee's petition alleged Appellee to *385 be a tenured teacher, whereas Appellee is requesting payment of salary due a principal without alleging that Appellee is a tenured principal. In disposing of an exception of no cause of action, all well pleaded allegations of plaintiff's petition must be accepted as true. Leatherman et al. v. Parish of East Baton Rouge, La.App., 275 So.2d 806, and authorities therein cited. Allegations of a petition must be construed liberally in favor of plaintiff in disposing of an exception of no cause of action. LSA-C.C.P. art. 931. The crucial issue on trial of an exception of no cause of action is whether plaintiff has alleged facts entitling him to relief under any theory, rule of law or statute whatsoever. Consequently, a trial court may consider pertinent statutes and jurisprudence in deciding an exception of no cause of action. Leatherman, above. We find the allegation that Appellee is a tenured teacher suffices in this instance. Appellee was appointed principal in or about November, 1960. At the time of Appellee's said appointment, our jurisprudence was established to the effect that a teacher having served his initial three year probationary period, acquired tenure which attached to any subsequent position to which he was promoted and which followed him throughout his entire teaching career. See State ex rel. Bass v. Vernon Parish School Board, La.App., 194 So. 74 (1940); Charbonnet v. Jefferson Parish School Board, La.App., 188 So.2d 143 (1966), and Hayes v. Orleans Parish School Board, La.App., 225 So.2d 131 (1969). These same authorities held that once tenure is acquired, it is not necessary for a teacher to serve a three year probationary period in each successive position to which he might be promoted. We are cognizant that Act 494 of 1968 (effective July 31, 1968) amended LSA-R.S. 14:444, to provide a three year probationary period for each position to which a teacher might be promoted before permanent status may be achieved therein. It seems clear beyond doubt that Act 494 of 1968 was enacted to supercede the Bass, Charbonnet and Hayes decisions, above. However, Act 494 of 1968 is not retroactive. Hayes v. Orleans Parish School Board, above. Under the circumstances of this case, Appellee's allegation of tenure must be construed to encompass an allegation of tenure in the position which forms the basis of his demand for salary allegedly due. THE EXCEPTION OF PRESCRIPTION OF THREE YEARS In urging that Appellee's claims are barred insofar as concerns salary allegedly due for services rendered more than three years prior to filing of this action, School Board relies upon LSA-C.C. art. 3538 which, in pertinent part, reads as follows: "Art. 3538. The following actions are prescribed by three years: . . . . . . That for the salaries of overseers, clerks, secretaries, and of teachers of the sciences who give lessons by the year or quarter." We have been cited no case which has had occasion to interpret the foregoing codal provision with respect to the claim of a modern day school teacher. We begin our consideration of the problem by noting that prescriptive laws are in derogation of common rights and therefore must be strictly construed. Pelican State Associates, Inc. v. Winder, 253 La. 697, 219 So.2d 500; Georgia-Pacific Plywood Co. v. Miller, La.App., 94 So.2d 531. We note, however, Alexander Hamilton Institute v. Morrison, 8 La.App. 226, which held that the three year prescriptive period provided by Article 3538, above, does not apply to a claim for the balance due on a *386 written contract for a mail order correspondence course. We also note Hughes v. Grant Parish School Board, La.App., 145 So. 794, which held that LSA-C.C. art. 3534, which stipulates a period of one year's prescription on the claims of "masters and instructors in the arts and sciences for lessons which they give by the month", does not apply to a teacher who was employed for a term of 8 months. In this instance, Appellee does not seek compensation as a teacher, but as a principal. Article 3538, relied upon by School Board, makes no mention or reference to principals. It applies to "teachers ... who give lessons by the year or quarter." In this instance, the record shows that, as a principal, Appellee is paid by the year. There is, however, no showing that as a principal, Appellee gives lessons. Moreover, we judicially note that, as a general rule, the primary function of a principal is that of an administrator or executive rather than the giver of lessons. We hold, therefore, that Article 3538, sought to be invoked by School Board, is inapplicable herein. We further hold that plaintiff's claim for wages of a school principal is subject to the ten year prescriptive period provided for by LSA-C.C. art. 3544, which provides in effect that all personal actions not otherwise provided for, are prescribed by ten years. APPELLEE'S CLAIM FOR SALARY DIFFERENTIAL It is conceded that Appellee lacks a master's degree required by law as one of the qualifications of a principal. The record shows that Appellee's appointment as principal was made by the Parish Superintendent with full knowledge that Appellee had acquired only approximately 30 hours credit toward a master's degree which requires approximately 32 hours. It is also conceded that since appointed principal, Appellee has acquired additional hours credit toward his master's degree but, as of the time of trial, lacked approximately three or four hours to obtain said degree. The School Board contends it could legally remove Appellee from the position of principal without complying with the provisions of LSA-R.S. 17:442 and 443, because Appellee was not qualified to hold the position. Additionally, the School Board argues that Appellee's removal and demotion was necessary because closure of Midway School by Federal Court order abolished Appellee's job. It is also urged that, under the circumstances, Appellee's demotion was a legitimate exercise of the School Board's duty and authority to operate the school system in an economic and efficient manner, as authorized and sanctioned by Palone v. Jefferson Parish School Board, La.App., 297 So.2d 208. Alternatively, School Board maintains that it did comply with LSA-R.S. 17:442 when, on October 2, 1973, Superintendent Dunn wrote the School Board President recommending Appellee's discharge, retroactive to July 2, 1969. The fact that Appellee lacked the qualification of a master's degree does not necessarily mean he was subject to removal or dismissal without compliance with applicable Sections 442 and 443. We so find because tenure, as such, has nothing whatsoever to do with qualification or competency. The Teachers' Tenure Act protects a tenured teacher from removal, demotion or reduction in pay under any and all circumstances save those specified in the statute. An incompetent or unqualified teacher who has achieved tenure in a given position, may not be removed, demoted or otherwise affected without strict compliance with LSA-R.S. 17-443. State ex rel. Temple v. Vernon Parish School Board, La.App., 178 So. 176; State ex rel. DeBarge v. Cameron Parish School Board, La.App., 202 So.2d 34. In this instance, it is clear beyond doubt that Appellee achieved permanent status as principal. He was a member of the system for more than three years prior to his appointment as principal. Under authority of the Bass, Charbonnet and Hayes cases, above, he enjoyed tenure as a principal. *387 Assuming, solely for arguments sake, that three years service as principal was required for Appellee to acquire tenure status, it is clear beyond doubt that he had served as principal more than three years prior to his demotion and was therefore tenured in that capacity. Palone, above, heavily relied upon by School Board, is inapplicable to the case at hand. In essence Palone held that untenured assistant principals could be demoted in a system-wide change designed to promote efficency and reduce operating costs. In Palone, it was found that the action in question was not directed at a single individual, but was comprehensive in nature and constituted a legitimate exercise of the School Board's discretionary executive authority in the operation of the school system. We find no merit in the argument that compliance with LSA-R.S. 17:442 and 443 was unnecessary because the closure of Midway School by Federal Court order effectively abolished Appellee's position as principal of said school. Being tenured as principal, Appellee was entitled to transfer to some other position of equal dignity and pay. State ex rel. Parker v. Vernon Parish School Board, 225 La. 297, 72 So.2d 512; Hayes v. Orleans Parish School Board, La.App., 225 So.2d 131. If no comparable position were available to Appellee, nevertheless, Appellee was entitled to continuance of pay for the position of principal. Parker and Hayes, above. See also Dantone v. Tangipahoa Parish School Board, La.App., 279 So.2d 779. Neither do we find the action of the School Board falls within the ambit of Palane, above, in that Appellee's reduction and demotion in pay was a legitimate exercise of the School Board's discretionary executive power. In this instance, Appellee's reduction in pay was not part of a bona fide system-wide plan to achieve economy of operation. The action of which Appellee complains resulted from a Federally ordered school closure decreed in an action brought against the School Board to enforce compliance with integration guidelines laid down by recent Federal decisions designed to achieve racial balance in public schools. The closure did not result from voluntary action on the part of the School Board intended as an economy move. On the contrary, it resulted from the School Board's remission. In our judgment, reduction of a teacher's pay due to a condition created by the School Board's failure to perform its functions according to law would be patently in violation of the Teachers' Tenure Act. Finally, School Board urges that it complied with Section 442 in that Superintendent Dunn recommended Appellee's demotion in writing on October 2, 1973. We initially respond by observing that Section 442 is inapplicable herein inasmuch as Appellee was tenured at that time. Next, we note that said attempted demotion was clearly illegal insofar as it purported to be retroactive. We do not mean to imply that Appellee may not be lawfully removed or demoted on grounds of incompetency, ineligibility or for other lawful cause. Neither do we hold that Appellee's salary may not be reduced as the result of a bona fide exercise of the School Board's discretionary executive powers in a situation falling within the ambit of Palone, above. We simply hold that none of said situations have been established in this instance, and that, as a tenured member of the Tangipahoa Parish School System, Appellee's pay was illegally reduced. We do hold, however, that Appellee is entitled to the pay due a principal from July, 1969, including all subsequently accruing raises and increments in principals' salaries until such time as Appellee's rank and/or compensation may be legally reduced. Despite our admonition in Dantone, above, we are reluctant to award damages for frivolous appeal in this instance. We do so primarily because the record casts some doubt upon Appellee's eligibility as principal. We point out, however, that any *388 further disregard by School Board of the decision in Dantone, above, and the instant case, may well result in the imposition of such damages. We find no merit in School Board's argument that this matter should be remanded for determination of the amount due Appellee. Predicated upon School Board's salary schedules which appear of record, and in which no error has been shown by School Board, the trial court found that Appellee was entitled to judgment in the sum of $12,096.22, as of April 19, 1974. We find no error in this determination and fail to see that any useful purpose would be served by a remand of this matter. It is ordered, adjudged and decreed that the judgment of the trial court awarding Appellee judgment in the sum of $12,096.22, be and the same is hereby affirmed and amended to further decree Appellee's entitlement to the salary as principal until such time as Appellee may be legally demoted or his salary reduced according to law; all costs of these proceedings for which School Board may be legally cast, to be paid by School Board. Amended and affirmed.

211 F.2d 4 McCULLAGHv.HOUSTON CHRONICLE PUBLISHING CO. No. 14627. United States Court of Appeals Fifth Circuit. March 12, 1954. Rehearing Denied April 9, 1954. Bennett B. Patterson, Cole, Patterson, Cole & McDaniel, Houston, Tex., for appellant; Joseph Kirchheimer, John L. Russell, Houston, Tex., of counsel. Dwight H. Austin, Houston, Tex., for appellee; Liddell, Austin, Dawson & Huggins, Houston, Tex., of counsel. Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges. HOLMES, Circuit Judge. 1 This is a tort action instituted by appellant, a citizen of Great Britain, against the appellee, a corporate citizen of Houston, Texas, for damages sustained by her as the result of a news story and a caricature in the newspaper of appellee. The court sustained appellee's motion to dismiss on the ground that the petition failed to state a claim upon which relief could be granted. Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. 2 On January 22, 1951, the appellant, a dancing instructor, received a minor injury while riding as a passenger in a bus of the Houston Transit Company. Subsequently, she filed suit for personal injuries against said company, and the next day the Houston Chronicle, a daily newspaper with a wide circulation, carried on page one of its Sunday edition a story concerning the suit, along with a cartoon or caricature depicting the plaintiff dancing with an animated bus. The headlines of the column read as follows: "Asks $132,500 for `Unreasonable Jerk.' Bus Skips, Dancer Flips, Suit Nips." Appellant also complains of the following phraseology in the article: "A Houston Transit Company bus that did the boomps-a-daisy when it should have been doing a smooth waltz caused a 45-year-old English dancing teacher to file a $132,500 damage suit in federal court Saturday. The lady claimed she did a very ungraceful adagio flip half way up the aisle of a jerky bus * * *" The appellant seeks recovery based on a theory of libel and on a second theory that the article invaded her right of privacy. 3 Libel in Texas has an exclusive statutory definition. The statute, in substance, provides that libel is a defamation expressed in writing or drawing, tending to injure the reputation of one who is alive, thereby exposing him to public hatred, contempt, ridicule, or financial injury, or tending to impeach the honesty, integrity, or reputation of anyone. Article 5430 of Vernon's Ann.Texas Civil Statutes. The courts of Texas have construed said statute to mean that there can be no libel unless the publication claimed to be libelous be a defamation tending to injure or impeach the reputation of the person claimed to have been libeled. Snider v. Leatherwood, Tex.Civ. App., 49 S.W.2d 1107. The appellant does not allege that the article impeached or injured her reputation, and there is no allegation that it impeached her honesty, integrity, or virtue. She alleges only that such caricature and article were defamatory of her, held her up to ridicule, and were libelous because of such fact. 4 A careful examination of the publication complained of convinces us that it fails to contain anything that is defamatory or has a tendency to injure the appellant's reputation. It may be that she has been made the subject of some ridicule but, according to Texas law, this does not give rise to a cause of action for libel. Sweeney v. Caller-Times Pub. Co., D.C., 41 F.Supp. 163. 5 The law of Texas does not recognize a cause of action for a breach of a right of privacy. Some of the earlier Texas cases had inferred that such a cause of action might lie, but the Texas court in Milner v. Red River Valley Publishing Co., Tex.Civ.App., 249 S.W.2d 227, categorically denied the existence of a cause of action on this theory, and held that any right of this nature must arise under the libel statutes. The decisions of Texas courts have foreclosed any cause of action based on the invasion of privacy, and we are constrained to concur in the judgment of the court below. Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874; Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732; Harned v. E-Z Finance Co., Tex.Sup., 254 S.W.2d 81. Cf. O'Brien v. Pabst Sales Co., 5 Cir., 124 F.2d 167. 6 The judgment appealed from is affirmed. 7 Affirmed.

499 S.W.2d 917 (1973) WOMACK MACHINE SUPPLY COMPANY OF HOUSTON, Appellant, v. FANNIN BANK, Appellee. No. 816. Court of Civil Appeals of Texas, Houston (14th Dist.). September 12, 1973. Rehearing Denied October 3, 1973. Maurice Bresenhan, Jr., Albert H. Wingate, Saccomanno, Clegg, Martin & Kipple, Houston, for appellant. Russell Talbott, Barry N. Beck, Fulbright, Crooker & Jaworski, Houston, for appellee. *918 TUNKS, Chief Justice. "Womack Machine Supply Company of Houston" is the full and correct corporate name of a Texas corporation whose registered office and principal place of business are in Houston, Texas. That corporation will sometimes herein be called the Houston Corporation. "Womack Machine Supply Company" is the name of another Texas corporation whose registered office is in Dallas, Texas. That corporation will sometimes herein be called the Dallas Corporation. There is also a "Womack Machine Supply Company of San Antonio" and a "Womack Machine Supply Company of Louisiana." The Houston corporation is engaged in business as a distributor of fluid power equipment in the Houston area. Apparently the other companies are in the same kind of business in other areas. R. C. Womack owns the controlling share interest in each corporation. Each corporation has other and different shareholders. There is no parent-subsidiary relationship between the corporations. Each has a different set of officers, maintains separate records, has its own bank account and pays its own taxes. In 1966 the Houston Corporation employed one J. L. McIlwain as general office manager. McIlwain had a personal checking account at the Fannin Bank in Houston. His account was number 613-232. The Houston Corporation did not have an account at that bank. In December of 1967 McIlwain presented to someone at that bank a letter on a letterhead that read "Womack Machine Supply Co. Distributors of Fluid Power Equipment". The letter was as follows "December 4, 1967 Fannin Bank P.O. Box 20008 Houston, Texas 77025 Attn: Linda McCollum To Whom it may Concern: This letter is to certify that our employee, Mr. J. L. McIlwain, who is general office manager, is authorized to both cash and deposit checks made payable to Womack Machine Supply Company. Checks that are deposited are to be deposited to account # 613 232. Very truly yours, WOMACK MACHINE SUPPLY COMPANY /s/ R. C. Womack R. C. Womack President RCW/sa cc: J. L. McIlwain cc: Womack—Dallas" The purported signature of R. C. Womack was, in fact, a forgery. No one with authority to do so ever authorized McIlwain to cash or deposit to his own account checks made payable to either the Houston or the Dallas Corporation. During the period beginning in February, 1967 and ending in May, 1969 McIlwain falsely endorsed and either cashed at Fannin Bank or deposited to his account there about $18,000 worth of checks that belonged to his employer. The checks were given in payment for goods sold or commissions earned by the Houston Corporation. His employer discovered McIlwain's embezzlement in June, 1969. On August 18, 1969, Womack Machine Supply Company filed a motion to perpetuate the testimony of McIlwain and Glenn Harris, Jr., Vice-President of Fannin Bank. On March 25, 1970, suit was filed against Fannin Bank to recover the amount of the checks stolen. In the petition so filed it is recited, "Now comes Womack Machine Supply Company, hereinafter referred to as Plaintiff...." It also recites, "That Womack Machine Supply Company is a corporation duly organized and existing under the laws of the State of Texas and maintains a place of business at 4006 Dennis, Houston, Texas." The name of the plaintiff in the petition was the exact legal name of the *919 existing Dallas Corporation. That name was also used in several amended petitions. The case was tried to a jury. As the evidence was presented it became apparent that the cause of action, if any, proven belonged to the Houston Corporation and not to the Dallas Corporation. After both parties rested the plaintiff on December 7, 1972, requested and was given leave of court to file a trial amendment naming "Womack Machine Supply Company of Houston" as plaintiff. The defendant had already pleaded that all checks negotiated before March 25, 1968, were barred by the two-year statute of limitations. It requested and was given leave to file a trial amendment alleging that the entire cause of action of the Houston Corporation was barred by limitations. Issues were submitted to the jury and a verdict returned. The plaintiff moved for judgment on the verdict and the defendant made a similar motion together with an alternative motion for judgment n. o. v. The trial court rendered judgment for the defendant bank on its motion for judgment n. o. v. reciting that the Dallas Corporation had failed to prove a cause of action and the Houston Corporation's cause of action was barred by limitations. The plaintiff "Womack Machine Supply Company of Houston" has appealed. Most of the cases involving a pleading defect in the naming of a party involve the erroneous naming of a corporate party defendant. The error becomes significant when the wrong party has been sued and served, the correct party does not appear and participate and the statutory period of limitations has run on the cause of action before the error is discovered by the plaintiff. When that occurs, if there is actually existing a corporation with the name of the erroneously named defendant, it is held that the plaintiff sued the wrong party— not that he misnamed the correct party— and, that since the correct party defendant was not sued within the statutory limitation period, the limitation defense is good. See Stokes v. Beaumont, Sour Lake & Western Railway Co., 161 Tex. 240, 339 S.W.2d 877 (1960); Thomas v. Cactus Drilling Corporation of Texas, 405 S.W.2d 214 (Tex.Civ.App.—Austin 1966, no writ) and cases cited there. In Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707, 709 (1901) the Supreme Court set out the following test for the determination of the identity of a cause of action for limitation purposes: "(1) Would a recovery had upon the original bar a recovery under the amended petition? (2) Would the same evidence support both of the pleadings? (3) Is the measure of damages the same in each case? (4) Are the allegations of each subject to the same defenses?" In this case the latter three prongs of the test must all be answered in the affirmative. The real issue centers upon whether the Houston Corporation would have been barred by a recovery under the original petition. It appears from the record that the real party plaintiff was the Houston Corporation from the outset. The plaintiff's original petition stated the address of the plaintiff as 4006 Dennis, Houston, Texas. From the record it appears that the Houston Corporation was the only such entity doing business at this address. On December 17, 1970, attorneys for the appellee took the deposition of Mr. Neal Smith, who stated that he was General Manager and President of Womack Machine Supply Company of Houston, although he owned stock in the Dallas Corporation. The trial judge, in permitting appellant to file a trial amendment changing the name of the plaintiff, stated that: "... the entire pre-trial proceedings in the case show to the Court that that (Womack Machine Supply Company of Houston) was the intended plaintiff and that such was known to Defendant by the records of the case depositions, questions addressed in the Interrogatories, Answers to the Interrogatories, and other proceedings." (Parenthesis added) *920 Therefore, it is apparent that a recovery by the original plaintiff would have barred recovery by the amended plaintiff. Appellee cites a line of cases which draws a distinction between those cases in which the misnomer is that of a nonexistent entity and those in which it is that of an existing entity—in the former the action is not barred by limitations and in the latter it sometimes is. Stessel v. Bekins Van & Storage Company, 461 S.W.2d 434 (Tex.Civ.App.—San Antonio 1970, no writ); Thomas v. Cactus Drilling Corporation of Texas, 405 S.W.2d 214 (Tex. Civ.App.—Austin 1966, no writ); Krenek v. Epps Super Market No. 2, Inc., 377 S. W.2d 753 (Tex.Civ.App.—Austin 1964, no writ); Nail v. Wichita Falls & Southern Railroad Co., 294 S.W.2d 431 (Tex.Civ. App.—Fort Worth 1956, no writ); Cosand v. Gray Wolfe Co., 262 S.W.2d 547 (Tex. Civ.App.—Galveston 1953, no writ). These cases may be distinguished from the present case because they each involve the situation of a misnamed defendant. In this case suit was brought by a plaintiff under a misnomer. The rationale behind this difference was capably stated in Wisconsin Chair Co. v. I. G. Ely Co., 91 S.W. 2d 913, 914 (Tex.Civ.App.—Fort Worth 1936, no writ): "The purpose of the statutes of limitation is to prevent the assertion of stale demands, and to effect such purpose they are wholesome and should be applied. We find many cases in which defendants are sued in such a manner that the improper designation of their names will not serve to toll the statutes of limitations, but under our broad and equitable system, it is held that where such a defendant makes his appearance, a subsequent amendment, correctly naming the defendant, relates back to the institution of the suit and tolls the statute. (Citations omitted) If a defendant, who has been sued under the wrong name, makes his appearance for any purpose best known to him, and such appearance serves to toll the statutes of limitations, as applied to an amended petition, suing him in his correct name, how can it be justly said that, where a defendant is sued in his proper name by a plaintiff, whose name is incorrectly designated, and such defendant makes his appearance for the purpose of contesting the right of the misnamed plaintiff to recover against him, he may be heard to say that he can plead the statutes of limitations against the amended petition which substitutes the properly named plaintiff?" The Wisconsin Chair Co. case involved a fact situation similar to the facts of this case. The plaintiff in that case filed suit under a trade name and did not amend to change such to the true corporate name until after the limitation period had run. The Court held that the original petition tolled the statute of limitations and that the amended petition did not set out a new cause of action. We follow this decision and others which reached similar results. San Antonio & A. P. Ry. Co. v. D. M. Picton & Co., 111 S.W.2d 842 (Tex.Civ.App. —San Antonio 1937, writ ref'd); J. L. Jones & Co. v. Darden, 29 S.W.2d 479 (Tex.Civ.App.—Amarillo 1930, no writ); Howard v. Stahl, 211 S.W. 826 (Tex.Civ. App.—Amarillo 1919, no writ). The appellant also contends that the statute of limitations was tolled on August 18, 1969, the date the motion to perpetuate testimony was filed. We are unaware of any authority for the position that such an ancillary matter may toll limitations and hold, therefore, that the two-year period of limitation was not tolled until the filing of the plaintiff's original petition on March 25, 1970. It was stipulated that the bank paid $16,613.21 on the forged documents during the two years preceding that date. Both parties to this appeal devoted their entire briefs to the limitations question. On the basis of the discussion above we hold that the trial court erred in granting *921 Fannin Bank's motion for judgment n. o. v. based upon the two-year-statute of limitations. That, however, does not answer the questions as to the disposition to be made here of this case. The case was tried to a jury and a verdict returned, but the charge and the verdict were not included in the original transcript filed by the appellant. We would be unable to either render judgment in the case or determine whether the trial judge's error on the limitations question was material and harmful without knowing the effect of the jury's verdict. This Court has, therefore, under the authority of Tex.R.Civ.P. 428, directed that a supplemental transcript be certified and transmitted by the clerk of the trial court showing the charge and verdict. The jury found that the endorsements, which were by rubber stamp, on the plaintiff's checks which McIlwain cashed at the defendant bank were unauthorized; that the bank's reliance on those endorsements "was not in accordance with reasonable commercial standards applicable to businesses such as that of Defendant"; and that such conduct by the bank was a cause of plaintiff's loss. The jury found that the bank failed to determine McIlwain's lack of authority to cash the checks and relied on the letter of December 4, 1967, that in each of those matters the bank failed to act in accordance with reasonable commercial standards and that each was a cause of the plaintiff's loss. The jury found that the plaintiff failed to make adequate investigation of McIlwain's prior employment, failed to coordinate its inventory with invoices and failed to make timely inspection of its books. Each of such failures was found to be negligence and a contributing cause of McIlwain's unauthorized endorsements. This verdict and its evidentiary support is not challenged by either party to this appeal. We hold that it sustains a judgment for the plaintiff for $16,613.21, the amount of those checks wrongfully cashed during the two-year period preceding the filing of plaintiff's first original petition. Tex.Bus. & Comm.Code Ann. sec. 3.406 V.T.C.A. provides: "Negligence Contributing to Alteration or Unauthorized Signature Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee's or payor's business." The comments under this section include the following: "6. The section protects parties who act not only in good faith (Section 1-201) but also in observance of the reasonable standards of their business. Thus any bank which takes or pays an altered check which ordinary banking standards would require it to refuse cannot take advantage of the estoppel." The jury found that the defendant bank failed in three respects to act in accordance with the reasonable commercial standards in cashing the forged checks. Those findings are unchallenged. Because of such findings the plaintiff was not estopped by its negligence from recovery against the bank of its loss. Reversed and rendered.

220 Cal.App.3d 1286 (1990) 270 Cal. Rptr. 41 JONG T. HUANG, Petitioner and Appellant, v. BOARD OF DIRECTORS, ST. FRANCIS MEDICAL CENTER et al., Defendants and Respondents. Docket No. B037597. Court of Appeals of California, Second District, Division Seven. April 24, 1990. *1288 COUNSEL Robert D. Walker for Petitioner and Appellant. *1289 Weissburg & Aronson, Kenneth M. Stern and Patricia Y. Miller for Defendants and Respondents. OPINION LILLIE, P.J. Jong T. Huang, a licensed and practicing physician, appeals from a judgment denying his petition for writ of mandate (Code Civ. Proc., § 1094.5) to compel St. Francis Medical Center (hospital) to set aside its order suspending his medical staff privileges for six months and imposing conditions upon his resumption of staff privileges at the conclusion of the suspension. FACTUAL AND PROCEDURAL BACKGROUND Hospital Proceedings On February 23, 1987, Sandra Taylor, a registered nurse employed by the hospital, wrote a memorandum to Dr. Celso Chavez, chief of staff, stating that on February 23 she saw Dr. Huang examine a patient in the hospital lobby and that such conduct was "totally unacceptable medical practice." Nurse Taylor subsequently wrote another memorandum (to Dr. Chavez and Sister Elizabeth Keaveney, president of the hospital) complaining that Dr. Huang had threatened her, telling her that "something [was] going to happen to" her if she refused to retract the charge made in her first memorandum. On March 18, 1987, Nurse Taylor was served with process in a small claims court action brought against her by Dr. Huang to secure a judicial determination that he did not examine a patient in the lobby and to have Taylor's accusation that he did so removed from his file. At the hearing on the action (Mar. 26, 1987) Dr. Huang was told that small claims court was not the proper forum for resolution of the issue, and the matter was placed off calendar. On the evening of March 26, Dr. Huang attended a meeting of the hospital's medical executive committee at which he was allowed to give his version of the events about which Taylor had complained to the chief of staff and the hospital president. On March 27, 1987, the medical executive committee summarily suspended Dr. Huang's medical staff membership and clinical privileges at the hospital for six months at the conclusion of which he was required to provide evidence of having completed a behavior modification program approved by the medical executive committee, followed by two years' probation. Written notification of the medical executive committee's action, sent to Dr. Huang, stated that the suspension was imposed "as a result of *1290 the recurrence of your disruptive behavior for which you have previously been counselled and for the reason that your continued disruptive behavior severely impacts hospital operations and staff charged with the responsibility of insuring quality patient care delivery." Pursuant to the hospital's medical staff bylaws Dr. Huang requested a hearing on his summary suspension before a judicial review committee. In response to the request a judicial review committee of five physicians was appointed and Dr. Huang was given written notice of the charges against him, namely: (1) In July 1985 an ad hoc committee at the hospital found that Dr. Huang had exhibited inappropriate behavior toward the nursing staff and improperly examined patients in public rooms; the committee concluded that a 30-day suspension was warranted but instead placed Dr. Huang on probation; however, as indicated below, his conduct condemned in 1985 has continued. (2) On February 23, 1987, despite warnings not to do so, Dr. Huang examined a patient in the lobby of the hospital instead of in a treatment room or private area. (3) Beginning on or about February 23, 1987, and continuing until his suspension, Dr. Huang repeatedly verbally abused and threatened Nurse Taylor, who reported his improper examination of a patient to the chief of staff. (4) Dr. Huang's actions indicate behavioral and attitudinal problems which commenced prior to 1985 and reappeared in 1987; these problems require that he satisfactorily complete a behavior modification program before resuming practice at the hospital. The notice of charges concluded by stating that Dr. Huang's actions "demonstrate a substantial and imminent likelihood of significant impairment to the life, health and safety of patients in this facility, prospective patients and other persons...." At the hearing before the judicial review committee Nurse Taylor testified: On February 23, 1987, she saw a patient seated in a chair off the front lobby of the hospital; one of the legs of the patient's pants was rolled up over her knee and Dr. Huang was "bent over that knee." The same day Nurse Taylor wrote a memorandum to the chief of staff describing what she had seen. About a week later Dr. Huang telephoned Nurse Taylor at work. He was very angry, called her a troublemaker, and insisted that she retract the statements she made in the memorandum. He told her that if she did not, "something was going to happen to" her. The day after the telephone call, Dr. Huang threw open the door of Nurse Taylor's office, entered, and "started yelling." He told Nurse Taylor she had caused a lot of trouble and, pointing his finger in her face, added: "Something's going to happen to you"; he then walked out of the office and slammed the door. Nurse Taylor wrote a memorandum to the chief of staff and the hospital's president describing both the telephone call from Dr. Huang and his visit to her office. On two occasions after he came to Nurse Taylor's office Dr. Huang *1291 stood in the medical records department outside her office and looked at her; he did not say anything but "would just stand there and just look." Under questioning by Dr. Huang's counsel, Nurse Taylor admitted that when Dr. Huang told her something was going to happen to her he could have meant that he was going to file the small claims action against her. She further admitted that she was not injured in any way by Dr. Huang and that to her knowledge he never had attacked anyone at the hospital or damaged anyone's property. Dr. Huang testified: He did not make the statements attributed to him in the 1985 ad hoc committee report, including the statement that he agreed he had problems in his relations with the nursing staff. He did not examine a patient in the lobby of the hospital on February 23, 1987; he merely sat and listened to the patient's complaint. After he learned Nurse Taylor had accused him of examining a patient in the lobby he telephoned her. He tried to convince her that he did not examine a patient in the lobby and requested that she withdraw her complaint that he did; she refused. During the telephone conversation Dr. Huang did not tell Nurse Taylor that something would happen to her; he said he would do his best to have her complaint removed from his file, including taking legal action. Near the end of the call Dr. Huang assured Nurse Taylor that he was not angry at her and apologized for his tone of voice. Dr. Huang went to Nurse Taylor's office because he was curious to know who she was and wanted to try again to convince her to withdraw her complaint against him. He found the door of the office ajar. When he knocked on the door it opened and he entered. Nurse Taylor was very angry and accused him of entering her office without knocking. She asked him to leave and he left; he did not slam the door on his way out. Dr. Huang denied threatening Nurse Taylor or trying to scare her either during the telephone conversation or in her office. The judicial review committee rendered a written decision in which it found: Charge No. 1 (regarding the 1985 report of the ad hoc committee) is true; however, the facts reflected in the report do not support the decision of the medical executive committee to summarily suspend Dr. Huang because those facts do not demonstrate a substantial and imminent likelihood of significant impairment to the life, health and safety of patients, prospective patients or other persons in the hospital. Dr. Huang did not examine a patient in the lobby of the hospital on February 23, 1987, and did not thereafter verbally abuse and threaten Nurse Taylor. Dr. Huang's actions do not indicate behavioral and attitudinal problems which require correction. Based on these findings the judicial review committee concluded that the medical executive committee did not demonstrate by a preponderance of the evidence that its summary suspension of Dr. Huang's medical staff privileges was reasonable. *1292 The medical executive committee appealed the decision of the judicial review committee on the ground it was not supported by substantial evidence.[1] The appeal was heard by a quorum of the hospital's board of directors (appeal board). The appeal board made the following determinations: Dr. Huang made the statements attributed to him in the 1985 ad hoc committee report and his denial that he made those statements raises a question of his credibility. Substantial evidence supports the finding of the judicial review committee that Dr. Huang did not examine a patient in the hospital lobby. However, there is no substantial evidence to support the finding that Dr. Huang did not verbally abuse and threaten Nurse Taylor. The medical executive committee had a sufficient basis for summarily suspending Dr. Huang's medical staff privileges because of his repeated attempts to intimidate and threaten Nurse Taylor. Given Dr. Huang's questionable credibility it is inappropriate to place him back on the staff until he has completed a behavior modification course recommended by the medical executive committee. Based on its determinations the appeal board overruled the action of the judicial review committee and affirmed the action of the medical executive committee. Superior Court Proceedings Dr. Huang filed a petition for writ of mandate directing the hospital to set aside the decision of the appeal board. The petition alleged: The hospital acted unlawfully in suspending petitioner without first giving him a hearing and an opportunity to defend himself; in any event, summary suspension was improper based upon the charges lodged against petitioner; the appeal board improperly substituted its own findings of fact for those of the judicial review committee. The hospital answered denying the allegations. After a hearing the trial court issued a statement of decision wherein it determined that the summary suspension of petitioner was proper both procedurally and substantively. The court did not address petitioner's claim that the appeal board was without authority to make its own findings of fact. Instead, the court found there was substantial evidence to support the decision of the appeal board.[2] *1293 Judgment was entered denying the petition for writ of mandate. Petitioner appeals from the judgment. DISCUSSION I Petitioner contends the appeal board was without authority to reject the findings of the judicial review committee based on the board's reweighing of the evidence and evaluation of the credibility of witnesses. (1a) "[T]he law requires the hospital to exercise its discretion in conformity with procedural requirements of the staff bylaws and common law fair procedures." (Hackethal v. Loma Linda Community Hospital Corp. (1979) 91 Cal. App.3d 59, 67 [153 Cal. Rptr. 783].) The hospital's medical staff bylaws provide for appellate review of a decision of the judicial review committee. The bylaws describe the appellate review procedure in pertinent part as follows: "The proceeding by the Appeal Board shall be in the nature of an appellate review based upon the record of the hearing before the Judicial Review Committee. The Appeal Board may accept additional oral or written evidence only upon a showing that such evidence could have materially affected the decision of the Judicial Review Committee in the exercise of reasonable diligence...." (Italics added.) The medical executive committee appealed the decision of the judicial review committee on the ground the decision was unsupported by substantial evidence in the hearing record. No new evidence was presented at the hearing before the appeal board. The board rendered its decision based on the evidence before the judicial review committee and written and oral arguments by the medical executive committee and petitioner. (2) In reviewing the decision of a private hospital board, both the trial court and the appellate court review the administrative record to determine whether its findings are supported by substantial evidence in light of the entire record. (Code Civ. Proc., § 1094.5, subd. (d); Bonner v. Sisters of Providence Corp. (1987) 194 Cal. App.3d 437, 444 [239 Cal. Rptr. 530].) (3) Under the hospital's bylaws the appeal board is bound by the same standard of review. (4) "The substantial evidence rule provides that where a finding of fact is attacked on the ground it is not sustained by the evidence, the power of an appellate court begins and ends with a determination whether there is any substantial evidence, contradicted or uncontradicted, which supports the finding." (Kimble v. Board of Education (1987) 192 Cal. App.3d 1423, *1294 1427 [238 Cal. Rptr. 160].) The court must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference and resolving conflicts in support of the judgment. (Orange County Employees Assn. v. County of Orange (1988) 205 Cal. App.3d 1289, 1293 [253 Cal. Rptr. 584].) The court is without power to judge the effect or value of the evidence, weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. (Adamson v. Department of Social Services (1988) 207 Cal. App.3d 14, 20 [254 Cal. Rptr. 667].) Unless a finding, viewed in light of the entire record, is so lacking in evidentiary support as to render it unreasonable, it may not be set aside. (Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38 Cal. App.3d 14, 24 [112 Cal. Rptr. 872].) (5) While the appeal board's decision states that substantial evidence did not support judicial review committee finding No. 3 that on and after February 23, 1987, petitioner did not verbally abuse and threaten Nurse Taylor, it is clear from the decision that the appeal board did not apply the substantial evidence rule but instead impermissibly reweighed the evidence and rejected petitioner's testimony on the ground he was not credible. Thus, the decision states: "We believe it is clear that Dr. Huang inappropriately attempted to intimidate and threaten the nurse as was, in part, conceded by his counsel during oral argument. Moreover, we are cognizant of Dr. Huang's repeated denials of statements made to the investigating committee in 1985 and believe this severely calls into question his credibility when balanced against the credibility of the witnesses presented by the Medical Staff. We also believe that while Dr. Huang had a motive to not tell the truth we find that the nurse who was the subject of the threats had no such motive and therefore do not find Dr. Huang's denials to be credible. Consequently, we have determined that finding no. 3 of the Judicial Review Committee is not supported by substantial evidence and that the MEC proved the charge by a preponderance of the evidence at the hearing." The appeal board's attempt to set aside the judicial review committee's finding that petitioner did not verbally abuse and threaten Nurse Taylor fails because the board's action was not based on a lack of substantial evidence, but on impermissible application of its independent judgment in reviewing the record. (See Barrie v. California Coastal Com. (1987) 196 Cal. App.3d 8, 14 [241 Cal. Rptr. 477] [under independent judgment test trial court examines administrative record to see if in its view weight of the evidence supports agency's decision].) Accordingly, likewise invalid is the appeal board's further determination that petitioner's repeated attempts to intimidate and threaten Nurse Taylor furnished a substantial basis for the *1295 summary suspension of petitioner's staff privileges by the medical executive committee. The trial court's finding that substantial evidence supports the decision of the appeal board is meaningless. Under the hospital's bylaws the appeal board was required to conduct proceedings "in the nature of an appellate review," which meant that it was required to apply the substantial evidence test in reviewing the findings of the judicial review committee. Inasmuch as the appeal board did not comply with that requirement, its decision overruling the action of the judicial review committee and affirming the action of the medical executive committee cannot stand. II The trial court found that while the bylaws contain no such requirement, petitioner was given notice and an opportunity to make a statement to the medical executive committee before his medical staff privileges were suspended. The court further found the evidence established that petitioner threatened Nurse Taylor after he learned she had sent a memorandum to the chief of staff complaining of his conduct, and the medical executive committee therefore had reason to conclude that summary suspension was necessary to "`reduce a substantial and imminent likelihood of significant impairment of the life, health and safety' of employees of the hospital." (Original italics.) Petitioner attacks these findings. (1b) "`[A] private hospital may not deprive a physician of staff privileges without granting him minimal due process of law protection.' [Citations.] However, `[t]he common law requirement of a fair procedure does not compel formal proceedings with all the embellishments of a court trial ... nor adherence to a single mode of process. It may be satisfied by any one of a variety of procedures which afford a fair opportunity for an [affected party] to present his position.' [Citation.]" (Cipriotti v. Board of Directors (1983) 147 Cal. App.3d 144, 155-156 [196 Cal. Rptr. 367].) (6) The record shows, as the trial court found, that before petitioner was suspended he was allowed to present to the medical executive committee his version of the circumstances underlying Nurse Taylor's charges. Petitioner thus was afforded a pre-suspension hearing which met the standards of fair procedure. (See Tiholiz v. Northridge Hospital Foundation (1984) 151 Cal. App.3d 1197, 1203 [199 Cal. Rptr. 338].) The bylaws provide that a practitioner's medical staff privileges may be summarily suspended when the practitioner's conduct "appears to require that immediate action be taken to protect the life or well-being of a patient(s) or to reduce a substantial and imminent likelihood of significant *1296 impairment of the life, health [or] safety of any patient, prospective patient, or other person." The judicial review committee found that petitioner did not threaten and verbally abuse Nurse Taylor on and after February 23, 1987. As previously explained herein, the appeal board's decision rejecting that finding is invalid because the board's action was not based on the substantial evidence standard but on the board's independent assessment of the evidence. The judicial review committee finding, which remains dispositive, removes any valid basis for the medical executive committee's summary suspension of petitioner. DISPOSITION The judgment is reversed. Costs on appeal are awarded to petitioner. Johnson, J., and Woods (Fred), J., concurred. Respondents' petition for review by the Supreme Court was denied July 10, 1990. NOTES [1] The bylaws specify two grounds for appeal: (1) Substantial noncompliance with the procedures prescribed by the bylaws or applicable law which has created demonstrable prejudice to the appealing party; and (2) lack of substantial evidence in the hearing record to support the decision. While the medical executive committee purported to appeal on both grounds, the appeal board concluded that the committee waived the first ground by failing to argue it either in writing or orally. [2] We summarize only those allegations of the petition and that portion of the court's statement of decision which are relevant to petitioner's contentions on appeal.

550 N.W.2d 577 (1996) 216 Mich. App. 653 Brad Lee TRIERWEILER, a minor, by his Next Friend, Eileen G. TRIEWEILER, Plaintiff-Appellee, v. FRANKENMUTH MUTUAL INSURANCE COMPANY, Defendant-Appellant. Docket No. 179443. Court of Appeals of Michigan. Submitted March 19, 1996, at Lansing. Decided May 17, 1996, at 9:15 a.m. Released for Publication July 12, 1996. *578 Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P.C. by George T. Sinas and Steven A. Hicks, Lansing, for plaintiff. Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by James L. Borin and Anne K. Newcomer, Detroit, for defendant. Before HOLBROOK, P.J., and TAYLOR and NYKAMP,[*] JJ. TAYLOR, Judge. In this underinsurance-benefits case, defendant appeals as of right an order of the lower court granting summary disposition in favor of plaintiff pursuant to MCR 2.116(C)(10). We reverse and remand for entry of a judgment in favor of defendant. Plaintiff was a passenger in a farm tractor owned and operated by his father. A speeding, intoxicated driver smashed into the rear of the tractor, causing severe injuries to plaintiff. A civil lawsuit against the driver was settled for the driver's insurance policy limit of $50,000. Plaintiff was considered an insured person under an automobile insurance policy issued by defendant to his father. Plaintiff's injuries were far in excess of the $50,000 he obtained from the driver so he sought underinsurance benefits under his father's policy with defendant. Defendant denied that underinsurance coverage existed because the underinsured-benefits portion of the policy excluded coverage for anyone injured while occupying a "land motor vehicle" owned by a family member and not insured under the policy. As a consequence of defendant's position, plaintiff initiated suit. The parties agreed that plaintiff's entitlement to underinsurance benefits would be determined by the court through summary disposition. Plaintiff claimed that the definition of an "auto" found in the mandatory no-fault portion of the insurance policy, which excluded farm tractors, should control the definition given to "land motor vehicle" in the exclusionary language on which defendant was relying. Accordingly, plaintiff then concluded that a "land motor vehicle" would not include a farm tractor, and he was not excluded from securing benefits under the underinsurance portion of the policy. Defendant, on the other hand, argued that the exclusion was in a nonmandatory portion of the policy so that the no-fault act and its definitions did not apply, and the issue was only one of contract interpretation of the exclusion in the underinsurance agreement. Defendant then continued by arguing that there was no ambiguity in the contract and that the court should rule as a matter of law that a farm tractor is a "land motor vehicle" so that underinsurance coverage did not exist. Following argument, the court agreed with plaintiff's arguments and granted plaintiff's motion for summary disposition. We review de novo the trial court's ruling on a motion for summary disposition to determine whether the pleadings or the uncontroverted documentary evidence established that a party is entitled to judgment as a matter of law. MCR 2.116(I)(1); Asher v. *579 Exxon Co., U.S.A., 200 Mich.App. 635, 638, 504 N.W.2d 728 (1993). The existence of either circumstance merits a grant of summary disposition. Id. The insurance policy at issue is in two sections. Parts A through C pertain to coverages mandated by the no-fault act. In the definitions for parts A through C of the policy, "auto" is defined to mean "a motor vehicle or trailer required to be registered in this state, operated or designed for use on public roads" and specifically excludes farm tractors. This definition is consistent with the statutory definition of motor vehicle found in the no-fault act. M.C.L. § 500.3101(2)(e); M.S.A. § 24.13101(2)(e). As noted by defendant, the Legislature amended the definition of "motor vehicle" in the no-fault act in 1984 to specifically exclude farm tractors. State Farm Mutual Automobile Ins. Co. v. Wyant, 154 Mich.App. 745, 748, n. 2, 398 N.W.2d 517 (1986). Before the 1984 amendment of the definition of "motor vehicle," a tractor was considered a "motor vehicle" under the no-fault act. Pioneer State Mutual Ins. Co. v. Allstate Ins. Co., 417 Mich. 590, 339 N.W.2d 470 (1983). The policy language regarding underinsured-motorist coverage is found in the second section of the policy (part E). The exclusionary language relied on by defendant states as follows: A. We do not provide Underinsured Motorists Coverage for bodily injury sustained by any person: 1. While occupying, or when struck by, any land motor vehicle owned by you or any family member which is not insured for this coverage under this policy. The phrase "land motor vehicle" is not defined in the policy. In interpreting an insurance policy, this Court construes clear and unambiguous provisions according to the plain and ordinary meaning of the terms used in the policy. Id. A provision is ambiguous when its words may reasonably be understood in different ways. An ambiguous insurance policy is to be construed against the drafter and in favor of coverage. Id. Exclusionary clauses in insurance policies are strictly construed in favor of the insured. Auto-Owners Ins. Co. v. Churchman, 440 Mich. 560, 567, 489 N.W.2d 431 (1992). However, coverage under a policy is lost if any exclusion in the policy applies to an insured's particular claim. Id. Clear and specific exclusions must be given effect. Id. An insurance company should not be held liable for a risk it did not assume. Id. An insurer is free to define or limit the scope of coverage as long as the policy language fairly leads to only one reasonable interpretation and is not in contravention of public policy. Heniser v. Frankenmuth Mutual Ins., 449 Mich. 155, 161, 534 N.W.2d 502 (1995). Initially, we find that the trial court erred in looking to the no-fault act's definition of "motor vehicle" in determining that a "land motor vehicle" effectively excluded farm tractors. In Bianchi v. Automobile Club of Michigan, 437 Mich. 65, 68, 467 N.W.2d 17 (1991), the Court construed uninsured-motorist coverage and stated that, because this coverage is not required, the provisions of the no-fault act were not applicable. Thus, this Court looks to the policy language to determine if benefits are provided. Auto-Owners Ins. Co. v. Leefers, 203 Mich.App. 5, 10-11, 512 N.W.2d 324 (1993); Rohlman v. Hawkeye-Security Ins. Co., 442 Mich. 520, 525, 502 N.W.2d 310 (1993). The fact that the policy does not include a definition of "land motor vehicle" does not create an ambiguity. Group Ins. Co. v. Czopek, 440 Mich. 590, 596, 489 N.W.2d 444 (1992) (omitting from an insurance policy the definition of a word that has a common usage does not create an ambiguity within the policy). Indeed, the Legislature's decision to exclude farm tractors from the definition of "motor vehicle" in the no-fault act likewise suggests that, in its popular and ordinary sense, "motor vehicle" is understood to include farm tractors. Auto-Owners Ins. Co. v. Ellegood, 149 Mich.App. 673, 677, 386 N.W.2d 640 (1986). We further note that the exclusionary phrase defendant relies upon is "land motor vehicle" and not just "motor vehicle." The addition of the word "land" must be accorded meaning, Churchman, supra at 566, 489 *580 N.W.2d 431. Because a motor vehicle in the no-fault act is, by definition, a vehicle designed for use on public roads, the use of land as an adjective modifying motor vehicle in the underinsurance section of the policy must, by a plain reading, mean the vehicle anticipated was more than a vehicle that would travel only on roads. While most motor vehicles travel only on roads, farm tractors routinely travel on land that is not a highway. It is, therefore, entirely appropriate under principles of contract interpretation to consider a tractor a "land motor vehicle" even though a farm tractor is not an "auto" under the no-fault portion of the insurance policy. In Farm Bureau Mutual Ins. Co. v. Stark, 437 Mich. 175, 183, 468 N.W.2d 498 (1991), the Court said the phrase "land motor vehicle," found in a homeowner's insurance policy, taken and understood in its plain, ordinary, and popular sense, would include a moped and that a "land motor vehicle," simplistically described, is a vehicle with a motor that travels on land. Plaintiff contends that this language from Stark, supra, is inapplicable because the Court was construing a homeowner's policy and because the Stark policy contained a lengthy definition of "motor vehicle." While homeowner's insurance policies are different from automobile insurance policies, we find that Stark is applicable by analogy. A farm tractor has a motor and travels on land. Finally, we believe our conclusion that "land motor vehicle" must be read to include a farm tractor in this case is supported by the Supreme Court's peremptory reversal in Kozma v. Auto-Owners Ins. Co., 439 Mich. 977, 481 N.W.2d 715 (1992) (reversing the Court of Appeals unpublished decision, Docket No. 118208, issued July 26, 1991). In Kozma, the plaintiff sought uninsured-motorist benefits for injuries received while riding a motorcycle. The defendant denied coverage because the policy excluded coverage for any injury sustained while [riding] upon a motor vehicle unless a premium had been paid for such vehicle. "Motor vehicle" was defined in the no-fault portion of the policy to exclude motorcycles. The Court of Appeals used the definition of "motor vehicle" in the no-fault policy to determine that motorcycles were excluded from the uninsured-motorist benefit portion of the insurance policy. The Supreme Court reversed, stating: The plaintiff's motorcycle was a "motor vehicle" for purposes of the exclusionary provision of the insurance contract regarding uninsured motorist coverage. Accordingly, the plaintiff was not entitled to uninsured motorist coverage as a result of the accident in the case involving his motorcycle. [439 Mich. 977, 481 N.W.2d 715.] Accordingly, consistent with the above authorities and doctrines, we find that a "land motor vehicle" unambiguously includes farm tractors that have motors and travel across the land. Reversed and remanded for entry of a judgment in defendant's favor. NYKAMP, J., concurs. HOLBROOK, P.J., concurs in the result only. NOTES [*] Wesley J. Nykamp, 20th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

815 F.2d 79 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Stephen Wayne RAMSEY, Plaintiff-Appellant,v.P.W. KEOHANE, Warden, et al., Defendants-Appellees. No. 85-5951. United States Court of Appeals, Sixth Circuit. Jan. 20, 1987. Before KEITH, KRUPANSKY and GUY, Circuit Judges. ORDER 1 This pro se federal prisoner appeals from a district court judgment dismissing his habeas corpus petition filed under 28 U.S.C. Sec. 2241. 2 Upon review of the cause in light of the arguments raised by the parties in their respective appellate briefs, this Court concludes that the district court properly dismissed petitioner's action. For the most part, petitioner's claims challenging the accuracy of evidence relied upon by the Parole Commission in determining his presumptive parole date are simply not subject to judicial review. See Farkas v. United States, 744 F.2d 37 (6th Cir.1984). To the extent they are reviewable, we conclude that the Parole Commission's decision is based upon a rational basis and upon reliable hearsay evidence which has sufficient corroborating details to support the agency's action. 3 For these reasons, this panel unanimously agrees that oral argument is not necessary in this appeal. Rule 34(a), Federal Rules of Appellate Procedure. The district court's judgment is, accordingly, affirmed pursuant to Rule 9(d)(3), Rules of the Sixth Circuit.

368 F.3d 49 Luis A. ACEVEDO-GARCIA et al., Plaintiffs, Appellees,v.Roberto VERA-MONROIG, Individually and as Mayor of Adjuntas; Municipality of Adjuntas; Irma M. Gonzalez-Delgado, Individually and as Personnel Director of Adjuntas, Defendants, Appellants. No. 03-2103. No. 03-2292. United States Court of Appeals, First Circuit. Heard May 5, 2004. Decided May 19, 2004. Jorge Martinez Luciano, with whom Johanna Emmanuelli and Law Offices of Pedro Ortiz Álvaraz, P.S.C. were on brief, for the Municipality of Adjuntas and the individual appellants in their official capacities. Luis Villares Sarmiento, with whom Sanchez-Betances & Sifre, P.S.C. was on brief, for the individual appellants in their personal capacities. Gael Mahony, with whom Pamela O'Brien, Holland & Knight LLP and Israel Roldan-Gonzalez were on brief, for appellees. Before SELYA, Circuit Judge; COFFIN, Senior Circuit Judge; and LYNCH, Circuit Judge. LYNCH, Circuit Judge. 1 In these appeals, we address the willful and longstanding efforts of a Puerto Rico municipality, its mayor, and its personnel director to obstruct and delay the payment of a $6.9 million jury award in a civil rights case. This is the fourth time this case has come before this court.1 2 In November 2001, a jury awarded verdicts totaling $6,956,400 against the Municipality of Adjuntas in Puerto Rico (the Town), its mayor, Roberto Vera-Monroig (Vera), and its personnel director, Irma Gonzalez-Delgado (Gonzalez). The jury found that the defendants had engaged in political discrimination in violation of the First Amendment when, after Vera won the 1996 mayoral election, they systematically laid off municipal employees who were members of the opposing political party. Cf. Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) (dismissal of a public employee based solely on political allegiance violates the First Amendment). The verdicts won by the twenty plaintiffs in this case — a subset of the 82 employees who sued the defendants after being terminated from career positions with the Town — included punitive damages awards of $300,000 against each of the two individual defendants in their personal capacities. This court upheld the verdicts in December 2003. Acevedo-Garcia v. Vera-Monroig (Acevedo-Garcia III), 351 F.3d 547, 577 (1st Cir.2003) (rehearing and rehearing en banc denied Feb. 17, 2004). 3 These appeals arise more than two years after the plaintiffs' first attempt to collect the judgment, which remains unpaid. Two questions are presented: (1) whether the district court erred when it required the Town to include a sum sufficient to satisfy the judgment in its 2003-2004 budget, and (2) whether the court improperly required the reinstatement of the twenty plaintiffs as a contempt sanction for the Town's failure to comply with that order. We affirm the district court's decision to issue the budget-inclusion order but vacate and remand for recalculation of the amount. As to the contempt sanction, we affirm the finding of contempt but vacate the reinstatement order and remand for consideration of alternative sanctions. I. 4 The jury returned verdicts for the plaintiffs on November 23, 2001, and the district court entered judgment accordingly on December 3, 2001. On December 20, the court awarded the plaintiffs an additional $96,300 in attorneys' fees and costs. A few months later, in March 2002, the court denied the plaintiffs' motion for reinstatement. The defendants did not file a motion to stay the judgment under Fed.R.Civ.P. 62. 5 On April 29, 2002, the plaintiffs made their first effort to execute on the judgment. From Vera and Gonzalez in their personal capacities, the plaintiffs sought immediate payment of the punitive damages awards; from the Town,2 they sought an order requiring the remaining judgment sum and attorneys' fees and costs to be included in the municipality's 2002-2003 budget. The plaintiffs' motion relied on 21 P.R. Laws Ann. § 4303(c), which requires municipalities in Puerto Rico to include outstanding court judgments in their annual budgets, and on Fed.R.Civ.P. 69, which provides that federal judgments shall be executed in accordance with local law. The defendants opposed the motion, arguing that they should be entitled to a stay of execution pending appeal without posting a bond or providing other security because, in light of the Town's recurring budget cycle, there was no risk that the plaintiffs would be unable to collect. 6 On May 16, 2002, the district court granted the plaintiffs' motion. Citing § 4303(c), it ordered the Town to include in its budget for the 2002-2003 fiscal year the sum of $6,956,400, plus the $96,300 fees and costs award, plus appropriate post-judgment interest. In addition, the court required Vera and Gonzalez to pay the punitive damages award immediately, but it permitted them to stay execution pending appeal by posting a $600,000 supersedeas bond. The Town sought an emergency stay of execution from this court. We granted only a temporary ten-day stay to allow the Town to post an appropriate bond or present its arguments for a longer stay to the district court.3 Acevedo-Garcia v. Vera-Monroig (Acevedo-Garcia II), 296 F.3d 13, 18 (1st Cir.2002) (per curiam). 7 The defendants returned to the district court, which generously allowed the Town extra time to develop its arguments. The Town urged the court to grant it a stay of execution pending appeal without any requirement for a supersedeas bond or other judgment security. It represented: 8 Due to the recurring nature of the Municipality's budget and its ability to obtain large scale financing from the Government Development Bank, it has the financial ability to pay the outstanding monetary judgment, shall the same be affirmed. 9 In response, the plaintiffs agreed to drop their objection to a stay of execution if the Town could provide proof that the Government Development Bank was prepared to loan the Town sufficient funds to cover the judgment. 10 On August 26, 2002, the district court accepted the defendants' argument, subject to the condition recommended by the plaintiffs. The court informed the Town that it would stay execution of the judgment if, by October 3, 2002, the Town could produce a certified letter of intent from the Government Development Bank guaranteeing Adjuntas a loan large enough to satisfy the judgment in the event the judgment were affirmed by this court.4 The court specified that the amount of the guaranteed loan had to be at least $6,356,400 (i.e., the full judgment amount minus the punitive damages awards). The court warned: "No extensions of time will be granted. Failure to abide by this order shall result in severe sanctions, including execution of judgment." 11 For whatever reason, the Town did not live up to its representations. The Government Development Bank turned down the Town's request for a loan, and the court was so informed on October 3, 2002. The Town offered no other security, though Vera and Gonzalez in their personal capacities complied with the court's order and posted a supersedeas bond to secure the punitive damages awards. One week later, plaintiffs petitioned for a writ of execution as to the Town. The Town did not respond, however, and the district court did not rule on the motion. And there matters sat. 12 Nearly four months later, on February 4, 2003, the plaintiffs renewed their motion with the district court. They asked the court to order the Town to include the judgment sum in its 2003-2004 budget, pointing out that although nearly nine months had passed since the court's first budget-inclusion order, Adjuntas had neither included the judgment in its 2002-2003 budget nor obtained the promised loan guarantee from the Government Development Bank. Again, there was no response from the Town. 13 On February 13, 2003, the district court granted the plaintiffs' motion. The court ordered the Town to include in its budget for fiscal year 2003-2004 the entire amount of the judgment ($6,956,400), plus the fees and costs award ($96,300), plus post-judgment interest. 14 The Town did not appeal this order. Nor did it comply. Nor, indeed, did it inform the district court of its failure to comply. It was the plaintiffs who finally brought the Town's noncompliance to the court's attention in a July 3, 2003 motion. The plaintiffs appended to their motion a "certification" issued by the Town's Director of Finance stating that the Town had not assigned "any entry of expenditure" to satisfy the judgment. They asked that the court order Vera, as mayor, to show cause why he should not be held in contempt of court. 15 The Town filed an opposition to the show cause order on July 11. It said that Vera had tried to include the judgment in the Town's 2003-2004 budget but was precluded from doing so under Article 19.013 of the Puerto Rico Autonomous Municipalities Act, 21 P.R. Laws Ann. § 4912, pursuant to which (according the Town) the municipality would be "automatically fined" for submitting a grossly unbalanced budget. The judgment sum, the Town said, exceeded the Town's entire expected income for the fiscal year. The Town attached a letter from Barbara M. Sanfiorenzo Zaragoza, Esq., the Puerto Rico Commissioner of Municipal Affairs, who stated that a sum as large as the judgment in this case could not be budgeted within a single fiscal year. The Town offered no alternative security. 16 Understandably unhappy with the defendants' noncompliance, the district court entered an order on July 18, 2003 holding the Town in contempt. As a sanction, the court ordered the Town to reinstate, on a staggered basis before the end of 2003, the twenty plaintiffs whose dismissals had been the basis for the original political discrimination suit. Defendants immediately appealed, and this court issued an unpublished order staying the reinstatement sanction. 17 On August 13, 2003, the defendants filed a motion in the district court to vacate not only the reinstatement order, but also the May 2002 and February 2003 budget-inclusion orders. The motion purported to rely on Fed.R.Civ.P. 59(e), 60(b), 62(c), and 62(f). Included in this motion was a request by Vera and Gonzalez in their personal capacities to set aside the portion of the May 2002 budget-inclusion order requiring them to post a supersedeas bond. The district court denied the motion without opinion. 18 These are the defendants' consolidated appeals from (1) the grant of the reinstatement sanction order; and (2) the denial of the defendants' August 13, 2003 motion to set aside the sanction and budget-inclusion orders. Vera and Gonzalez join the appeals in their personal capacities insofar as the district court denied their request to set aside the supersedeas bond requirement. II. A. Denial of Rule 62(f) Motion 19 We can dispense quickly with defendants' arguments under Fed.R.Civ.P. 62(f). The defendants devote much of their brief to the contention that the district court could not issue the budget-inclusion orders, and thus could not sanction the defendants for violating those orders, because the defendants were entitled to an automatic stay of execution under Rule 62(f). Under that rule, a judgment debtor is entitled to a stay of execution if, under state law, the judgment operates as a lien on the debtor's property and would have entitled the debtor to a stay if the action had been filed in state court. See Castillo v. Montelepre, Inc., 999 F.2d 931, 941-42 (5th Cir.1993). For reasons that need not be elaborated here, defendants assert that Puerto Rico law entitled them to a stay until the judgment became "firm and unappealable." 20 This issue is now moot. If Puerto Rico law did entitle defendants to a stay (a question we do not decide), that entitlement ended when this court affirmed the judgment on direct appeal. This court's mandate has now issued in Acevedo-Garcia III, and the time for seeking certiorari expired on May 17, 2004.5 21 We turn to the defendants' remaining arguments. 22 B. Defendants' Attack on the Budget Inclusion Orders 23 The defendants argue that the district court abused its discretion by refusing to vacate its budget-inclusion orders for two reasons. First, emphasizing that Fed.R.Civ.P. 69(a) restricts the process for executing on a federal judgment to those procedures allowed under local law, they argue that the budget-inclusion orders in this case were illegal under various provisions of Puerto Rico law. Second, the defendants say that even if the district court had the power to issue a budget-inclusion order, the court wrongly required the Town to include in its budget certain amounts actually owed by Vera and Gonzalez personally. 24 1. Vehicle of Attack: Defendants' Motion Under Rules 59(e) and 60(b) 25 The first question is whether defendants are entitled to challenge the budget-inclusion orders at all, given the procedural posture of this case. Plaintiffs point out that this is not an appeal from the budget-inclusion orders themselves but from the denial of the defendants' August 13, 2003 motion under Rules 59(e) and 60(b) to vacate those orders. Nothing in those rules, plaintiffs argue, permits the Town to dispute the merits of the February 2003 and May 2002 budget-inclusion orders so long after the fact. 26 As to Rule 59(e), the plaintiffs are plainly correct. The defendants' August 13 motion was not filed within 10 days of either budget-inclusion order. See Fed.R.Civ.P. 59(e) ("Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment."); Garcia-Velazquez v. Frito Lay Snacks Caribbean, 358 F.3d 6, 11 (1st Cir.2004) (district court lacks the power to grant an untimely Rule 59(e) motion). 27 Whether the defendants' motion was proper under Rule 60(b) is a harder question.6 The motion did not specify the paragraph of Rule 60(b) under which defendants sought relief, and defendants' appellate papers do not clarify the point. If the defendants meant that the district court's budget-inclusion orders were legal "mistake[s]" subject to correction under Rule 60(b)(1), their argument must fail. See Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir.1971) (a mistake of law is not a "mistake" within the meaning of Rule 60(b)(1)). Moreover, to the extent the defendants' motion challenged the May 2002 budget-inclusion order under Rule 60(b)(1), it was time-barred. See Fed.R.Civ.P. 60(b) (motions under Rule 60(b)(1) must be brought within one year of the challenged order or judgment); Claremont Flock Corp. v. Alm, 281 F.3d 297, 300 (1st Cir.2002). 28 Nevertheless, Rule 60(b)(6) provides more flexible time parameters, and there may have been extenuating circumstances. Thus, we will bend over backwards, give the defendants the benefit of the doubt, and accept Rule 60(b) as a proper vehicle for attacking the budget-inclusion orders. We review the district court's denial of the motion for abuse of discretion. United States v. $23,000 in U.S. Currency, 356 F.3d 157, 165 (1st Cir.2004). 29 2. Validity of the Budget-Inclusion Orders Under Rule 69(a) 30 There is no merit to the defendants' argument that the budget-inclusion orders were not "in accordance with the practice and procedure of the state in which the district court is held" under Rule 69(a). In fact, the Puerto Rico Autonomous Municipalities Act mandates that money judgments against a municipality be included in the municipal budget for the next fiscal year: 31 In the general budget draft resolution of each municipality, it shall be mandatory to include appropriations with sufficient credits for the following purposes, and in the order of priority provided below: 32 (a) Interest, amortizations and withdrawal from the municipal public debt; 33 (b) other statutory expenditures and obligations; 34 (c) payment of court judgments .... 35 21 P.R. Laws Ann. § 4303 (emphasis added). The same conclusion was reached by the district court, which specifically cited § 4303(c) in its May 2002 budget-inclusion order. 36 The Town acknowledges § 4303(c) but argues that the statute should not be literally enforced where, as the Town says is the case here,7 the judgment in question is so large that complying with § 4303(c) would make it impossible for the municipality to balance its budget. The Town says that other provisions of the Autonomous Municipalities Act require it to maintain a balanced budget, so it is not free to comply with § 4303(c) under the circumstances. 37 We are not persuaded. The Town relies on 21 P.R. Laws Ann. § 4301, which provides in relevant part: 38 The Mayor shall draft the balanced Budget Resolution Bill of income and expenditures of the municipality for each fiscal year, which he/she must present before the Municipal Assembly together with a budget message, no later than the 15th of May of each year.... 39 (emphasis added). For purposes of these appeals, we will accept the Town's representation that § 4301 requires the mayor to submit a balanced budget to the municipal assembly. But nothing in this or any other provision cited by the Town8 suggests that the balanced-budget requirement excuses a municipality from complying with the "mandatory appropriation" rules in § 4303. On the contrary, § 4303 itself outlines some of the expenditures that the mayor must consider "[i]n order to estimate the resources to draft and balance the budget." Id. Under § 4303, the mayor has no discretion to decline to fund court judgments-their inclusion in the budget is "mandatory." The defendants' suggestion to the district court that the Town would be "automatically fined" for including the judgment in its budget borders on willful misrepresentation.9 40 Statutory arguments aside, there is no necessary tension between the requirement that the mayor submit a balanced budget and the command in § 4303(c) that court judgments be promptly paid. After all, the Town was prepared to pay the entire judgment in October 2002 by securing a loan from the Government Development Bank — a loan that, presumably, the Town would have repaid over a period of years consistent with its budgetary obligations under Puerto Rico law. Although that loan was turned down for reasons not in the record, the Town has made no effort to show that alternative forms of financing (bonds, private lenders, etc.) are unavailable. Cf. 21 P.R. Laws Ann. § 4051(h) (municipalities have the power to "[c]ontract loans ... and incur debts in the form of borrowings, bond issues or notes"). In the plaintiffs' words, the Town's "responsibility is to fund payment of the judgment, and to do so by whatever financing means will accomplish appropriate objectives of the [Town], including balancing the budget." 41 The Town's remaining arguments based on Puerto Rico law are also unavailing. The Town says that the budget-inclusion orders are inconsistent with Puerto Rico law prohibiting the attachment or garnishment of public funds. But a court does not "attach" public funds by ordering that future budgets take account of a court judgment, as the Puerto Rico Supreme Court has recognized. See Librotex, Inc. v. P.R. Aqueducts & Sewer Auth., 138 D.P.R. 938, 942-43, 1995 WL 905903 (P.R.1995) (direct attachment of the funds of a public agency was impermissible, but an equitable order requiring the judgment to be included in the agency's next budget cycle was acceptable). The Town further argues that the budget-inclusion orders in this case were tantamount to a supersedeas bond requirement, and under Puerto Rico law, municipalities are exempt from such requirements. See P.R. R. Civ. P. 69.6(a). The analogy fails: Puerto Rico law not only permits but requires municipalities to include court judgments in their annual budgets. § 4303(c). Moreover, by defendants' logic, virtually any form of judgment security required of a municipality would be tantamount to a supersedeas bond and, thus, precluded by Puerto Rico law. We do not think that Puerto Rico law so insulates municipalities from their judgment creditors. 42 We hold that the district courts' budget-inclusion orders were consistent with Puerto Rico law and, accordingly, not in violation of Rule 69(a).10 3. Amount of the Budget-Inclusion Order 43 Defendants' second argument is that the district court abused its discretion in the amount that it ordered the Town to include in its budget. The February 2003 budget-inclusion order required the Town to include the entire judgment ($6,956,400) in its 2003-2004 budget. The Town says that, at a minimum, the court should have reduced this sum by $600,000, the amount of the punitive damages awards against the individual defendants in their personal capacities. Cf. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) (municipalities are immune from punitive damages in § 1983 suits). 44 Defendants appear to be correct. We say "appear to be" because there are ambiguities in the record concerning the calculation and breakdown of the judgment. The parties have not directly addressed this issue in their briefs. We note that in the plaintiffs' first motion to execute on the judgment, they sought an order compelling the Town alone to pay $6,406,400 plus fees, costs and interest. It is unclear how plaintiffs derived that number. The district court, in its various orders, attributed to the Town a somewhat lower sum: $6,356,400, which is the total judgment of $6,956,400 minus the $600,000 in punitive damages. Not surprisingly, the defendants employ the district court's numbers in their appellate papers, but they too filed papers in the district court using the $6,406,400 number. Neither party offers an explanation for the $50,000 difference. Perhaps it reflects an estimate of the interest owed — we cannot tell. 45 To make matters more confusing, the defendants say that $1.5 million of the judgment attributed to the Town was actually an award of due-process damages against Gonzalez personally. But that is far from clear on the record before us. Certain language in the district court's judgment does suggest (though it does not explicitly state) that due process damages were assessed against Gonzalez in her personal capacity. Yet elsewhere the court treats the $1.5 million award against Gonzalez as a liability of the Town. This issue is plainly relevant to the budget-inclusion order, as it affects the amount of the Town's liability, and we are surprised that none of the parties has addressed it explicitly.11 46 Given the gaps in the record, we will remand to the district court to reconsider the proper amount of the budget-inclusion order. If the $6,956,400 sum in the February 2003 budget-inclusion order included the punitive damages awards, then defendants are correct and the sum should be reduced. Similarly, the Town is not liable for other damages awarded solely against the individual defendants in their personal capacities, if any. We note that the Town remains liable for the $96,300 in fees and costs awarded by the district court. In addition, the Town is liable for post-judgment interest, and at least an initial portion of that award should be calculated and included in the next budget-inclusion order as a specific sum. We are confident that the district court, with the assistance of the parties, will be able to work through these details on remand.12 47 C. The Contempt Finding and Reinstatement Sanction Order 48 Defendants also appeal what they call the "Reinstatement Contempt Sanction Order." It is not clear to us whether the defendants are attempting to appeal from the finding of contempt itself or, as they more clearly argue, from the district court's choice of reinstatement as a sanction. 1. Contempt Finding 49 To the extent defendants challenge the contempt finding itself, we reject their arguments. Defendants contend, for example, that the district court had no jurisdiction to issue the reinstatement sanction order because the plaintiffs had earlier appealed the district court's March 8, 2002 denial of reinstatement, and that appeal was still pending before this court at the time. It is true that the filing of a notice of appeal divests the district court of jurisdiction over matters related to the appeal. United States v. Brooks, 145 F.3d 446, 456-57 (1st Cir.1998); United States v. Distasio, 820 F.2d 20, 23 (1st Cir.1987). But that principle has no bearing on a court's power to hold a party in contempt for violating a court order related to execution on a judgment. The federal rules contemplate that, absent a stay, a victorious plaintiff may execute on the judgment even while an appeal of that judgment is pending. See, e.g., Fed.R.Civ.P. 62. If a party violates an unstayed execution order, the fact that the underlying judgment is on appeal does not deprive the district court of its normal contempt powers. 50 Similarly, the contempt finding was valid even if defendants are correct that they should have received an automatic stay of the May 2002 budget-inclusion order under Rule 62(f).13 Defendants argue that because (in their view) they were entitled to a Rule 62(f) stay, the budget-inclusion order should never have issued, so there was no basis for holding them in contempt. This argument fails. It is well-settled that a party is not free to violate a court order simply because it believes (correctly or not) that the order is invalid. Walker v. City of Birmingham, 388 U.S. 307, 320-21, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); In re Providence Journal Co., 820 F.2d 1342, 1346 (1st Cir.1986). 51 We affirm the district court's finding of contempt. 2. Reinstatement Order 52 The district court's choice of sanction, however, is a different matter. The court required the Town to reinstate all twenty plaintiffs, not at the plaintiffs' request or as relief to which they were entitled on the merits, but solely as a sanction for the Town's failure to comply with the court's budget-inclusion order. The court did so notwithstanding the fact that, in March 2002, the court itself had concluded that ordering reinstatement on the facts of this case would be "unreasonably burdensome" on the Town. 53 The plaintiffs do not now defend the reinstatement order; in fact, they have filed a motion in the district court to vacate the reinstatement order and impose alternative sanctions. Because no party wishes the present reinstatement order to continue in effect, we vacate it.14 We do so to permit the district court to hear arguments on alternative sanctions. Plaintiffs have reserved the right to seek entry of a new reinstatement order by the district court, if need be, and the defendants have likewise reserved the right to object to any such order. We entrust the matter to the discretion of the district judge. 54 We add this. The defendants have now had nearly thirty months since the district court's December 2001 judgment to plan how to meet their obligations should the judgment be affirmed. They have not done so. On the contrary, they have engaged in what appears to be a deliberate strategy of obstruction and delay. The consequences of defendants' initial illegality and continuing irresponsibility should fall on them. If there are ramifications under Puerto Rico law for the defendants' failure to meet their obligations under federal law, so be it — it is not the function of the federal courts to extricate defendants from a mess of their own making. Had defendants applied themselves with diligence to addressing the problem, rather than engaged in willful blindness, we doubt this matter would be before us for the fourth time. III. 55 The district court's denial of the defendants' August 13, 2003 motion is affirmed, but the amount of the budget-inclusion order is vacated. The matter is remanded to the district court for entry of a budget-inclusion order that (i) excludes any amounts solely owed by Vera or Gonzalez personally, (ii) includes the $96,300 fees and costs award, and (iii) includes an appropriate and specific sum as an initial award of post-judgment interest. The district court's finding of contempt is affirmed, but the reinstatement sanction is vacated and the matter is remanded to the district court for consideration of alternative sanctions. 56 Costs of these appeals are awarded to plaintiffs. 57 So ordered. Notes: 1 See Acevedo-Garcia v. Vera-Monroig (Acevedo-Garcia III), 351 F.3d 547 (1st Cir.2003); Acevedo-Garcia v. Vera-Monroig (Acevedo-Garcia II), 296 F.3d 13 (1st Cir.2002) (per curiam); Acevedo-Garcia v. Vera-Monroig (Acevedo-Garcia I), 204 F.3d 1 (1st Cir.2000). 2 For convenience, we refer to the municipality and the individual defendants in their official capacities collectively as the "Town." 3 Vera and Gonzalez also sought a stay without the need to post a supersedeas bond. We upheld the bond requirementAcevedo-Garcia II, 296 F.3d at 18. 4 The court noted that the Government Development Bank had been willing to provide such a letter to another municipality in a similar political discrimination case 5 Nor does defendants' Rule 62(f) argument help them in their challenge to the district court's finding of contempt. Even if we assume, for argument's sake, that defendants were entitled to a stay under Rule 62(f), that fact has no bearing on the validity of the contempt orderSee infra Part II.C.1. 6 We bypass the plaintiffs' argument that the Town cannot rely on Rule 60(b) because it could have appealed the budget-inclusion orders directlyCf. Parrilla-Lopez v. United States, 841 F.2d 16, 20 (1st Cir.1988) ("Rule 60(b) may not be used as a substitute for an appeal."). We are not certain that the budget-inclusion orders were in fact immediately appealable, either as final orders, 28 U.S.C. § 1291, or under the collateral-order doctrine, see United States v. Billmyer, 57 F.3d 31, 34-35 (1st Cir.1995). In the end, it does not matter, as we do not rest our conclusion on the defendants' failure to appeal. 7 According to the Town, the judgment in this case exceeds its entire annual budget. Papers filed by the Town in the district court indicate that Adjuntas had revenues in 2002-2003 of slightly over $6 million 8 The Town also cites 21 P.R. Laws Ann. § 4371, which declares a "public policy" that municipalities maintain a "fair and equal balance" between fiscal resources and economic obligations; § 4356, which limits unapproved emergency spending to 5% of the authorized budget in a given year; and § 4354(b), which bars municipalities from entering contracts requiring future payments in amounts exceeding appropriations. None of these provisions offers any reason to read an exception into the unambiguous terms of § 4303(c) 9 The Town told the district court that it would be "automatically" fined under 21 P.R. Laws Ann. § 4912 for submitting a "grossly unbalanced budget." That statute does permit the Commissioner of Municipal Affairs to levy a fine against any municipality or municipal employee who "[v]iolates the provisions of law and the regulations governing the administration of the municipality's general operating budget." But § 4912 isdiscretionary, not mandatory. See id. ("The Commissioner may impose and collect an administrative fine...." (emphasis added)). The maximum fine under § 4912 is only $5,000. Id. And it is far from clear that the Town would "violate []" Puerto Rico law by including the judgment in its budget — on the contrary, it seems more likely that the Town would violate Puerto Rico law by failing to do so. See § 4303(c). 10 We likewise hold that the district court did not err in denying the individual defendants' request, as part of the defendants' August 13, 2003 motion, to be released from the supersedeas bond requirement. Vera and Gonzalez offered no basis for that request in the district court. To the extent the motion was predicated on Rule 62(f), the issue is now moot for the reasons explained above. If there was another basis for their objection to the bond requirement, Vera and Gonzalez have waived it by failing to argue the point on appealSee Smilow v. S.W. Bell Mobile Sys., Inc., 323 F.3d 32, 43 (1st Cir.2003). 11 We are also surprised that counsel for Gonzalez in her personal capacity joined in the defendants' joint brief, if in fact (as that brief asserts) the Town's position is that Gonzalez is individually liable for the $1.5 million in due-process damages. The conflict of interest between the Town and Gonzalez on this issue is apparent 12 This remand is not a license to defendants to attack the merits of the judgment. Even before this court, defendants have asserted a series of arguments that are not defenses to execution but rather attacks on the amount of the damages awarded. For example, the Town argues that Puerto Rico law provides a damages cap for municipalities and that this damages cap should apply in § 1983 actions in federal court. It is far too late in the day for these arguments, which should have been raised during the merits phase of this case. Defendants would be well-advised to refrain from reiterating them on remand 13 Again, we take no view as to whether defendants were entitled to such a stay 14 The plaintiffs ask in their brief that we simply continue this court's earlier stay of the reinstatement order. We deny that request

NO. 07-12-00177-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 16, 2012 _____________________________ KELLY DON FARRAR, Appellant v. THE STATE OF TEXAS, Appellee _____________________________ FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY; NO. 21,964-C; HONORABLE ANA ESTEVEZ, PRESIDING _____________________________ Memorandum Opinion _____________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant Kelly Don Farrar pled guilty in 2011 to four counts of endangering a child and was sentenced to twenty-four months confinement and a $500 fine on each count, suspended for three years. On October 25, 2011, the State filed a motion to revoke appellant’s probation. After a hearing, the court found appellant had violated his probation and sentenced him to his original punishment. In challenging those convictions, he claims he received ineffective assistance of counsel. We disagree and affirm the judgments.  It is appellant’s burden to prove that his counsel was deficient and that the deficiency caused prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). Furthermore, he must do so by a preponderance of the evidence, Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999), and there is a strong presumption that counsel’s conduct falls within a wide range of reasonably professional assistance. Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006). Here, appellant alleged that counsel was ineffective for failing to convey to the State his acceptance of a plea offer prior to the revocation proceeding. The matter was addressed via a hearing upon defense counsel’s motion to withdraw. According to appellant’s own testimony, he was unhappy with his counsel because the latter allegedly failed to accept a plea offer of fifteen months. The fifteen-month offer had been relayed from defense counsel to appellant, and appellant responded by directing his attorney to see if he could “get a lower offer.” Counsel did as directed but met with no success. Instead, he was told by the Randall County District Attorney that the State did not want “to proceed with anything here in Randall County until Lubbock County messed with their charges.” Thereafter, defense counsel told appellant that no lower offer from the State was forthcoming, to which appellant supposedly replied that: “if fifteen months was the best [he] was going to get, that [he] would rather take that than… bring it to trial and risk getting twenty-four months.” Defense counsel then inquired of the State, shortly before the hearing, whether the fifteen-month offer stood, and the State responded no. Instead, it offered appellant 2 a jail term of sixteen months. The offer was rejected, and appellant opted to proceed with the revocation hearing. In view of the foregoing, we make the following observations. The first pertains to the harm or prejudice aspect of the Strickland test. The harm alluded to by appellant involved his having received the maximum sentence of twenty-four months once the decision to revoke probation was made. This sentence is attributable to defense counsel, or so the argument goes. Yet, he says nothing about his rejection of the sixteen-month offer made by the State at the hearing. Instead of accepting it and thereby avoiding the “risk [of] getting twenty-four months” by submitting to “trial,” he decided to submit to trial. Thus, it cannot be said that the conduct attributed to his attorney resulted in the sentence ultimately levied. Our second observation is the tenor of appellant’s own testimony. He posits before us that his testimony was the only evidence before the trial court since his counsel was never sworn as a witness. Assuming, arguendo, that the proposition is correct, it does him no good. 1 This is so because appellant’s own words authorized the trial court to rule as it did. Again, he testified that he 1) informed counsel to inquire into the possibility of a lower offer, and 2) had been told both that no “counteroffer” was forthcoming and that the State would not proceed with the Randall County charges until those in Lubbock County were addressed. The State choosing not to proceed with the Randall County charges hardly connotes that the fifteen-month offer remained available when appellant deigned to accept it. Rather, it suggests the contrary. And, no one can dispute that legal counsel is forbidden from accepting a plea offer for his client unless 1 We think it appropriate to extend appellant’s premise to include any comments uttered by the prosecutor as well for they too were unsworn. It would seem inconsistent to consider unsworn comments from the prosecutor when we supposedly must ignore like comments from defense counsel. 3 and until the client actually accepts it. So, if there was no offer that could be accepted when appellant finally decided to accept it, counsel’s supposed failure to accept the non-existing offer is not improper conduct. Third, as factfinder, the trial court was free to assess appellant’s credibility when making its decision. See Mazratian v. State, 961 S.W.2d 353, 358 (Tex. App.–Houston [1st Dist.] 1997, no pet.) (stating that a trial court possesses broad discretion in assessing the credibility of the witnesses and in weighing the evidence). Because of that, it could well have discredited appellant’s testimony that he did not reject the fifteen- month offer. Appellant’s issue is overruled, and the judgments are affirmed. Brian Quinn Chief Justice Do not publish. 4 

Third District Court of Appeal State of Florida Opinion filed June 28, 2017. THIS OPINION IS NOT FINAL UNTIL DISPOSITION OF ANY FURTHER MOTION FOR REHEARING AND/OR MOTION FOR REHEARING EN BANC. ANY PREVIOUSLY-FILED MOTION FOR REHEARING EN BANC IS DEEMED MOOT. ________________ No. 3D15-1062 Lower Tribunal No. 14-3721 ________________ MP, LLC, Appellant, vs. Sterling Holding, LLC, etc., et al., Appellees. An Appeal from the Circuit Court for Miami-Dade County, Jennifer D. Bailey, Judge. Joel S. Perwin, P.A., and Joel S. Perwin; Heller Waldman, P.L., and Glen H. Waldman and Jason Gordon, for appellant. Duane Morris LLP, and Harvey W. Gurland, Jr., for appellee TD Bank, N.A. Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.  Judge Fernandez did not participate in oral arguments.  ON MOTION FOR REHEARING ROTHENBERG, J. We grant the appellant’s motion for rehearing, withdraw our opinion filed on December 21, 2016, and substitute the following opinion in its place.1 The trial court granted TD Bank, N.A.’s (“TD”) motion to dismiss MP, LLC’s (“MP”) claims against TD based on the conclusion that the complaint fails to allege sufficient facts to support MP’s claims against TD. Because the facts alleged are more than sufficient to withstand dismissal, we reverse. Although MP has sued multiple defendants, its claims against TD are contained in Counts II and VII for civil conspiracy; Count IV for violation of Florida’s RICO Act statute; and Count X for aiding and abetting another defendant’s breach of its fiduciary duties to MP. Before addressing the allegations, it is important to note that TD is the successor in interest to Mercantile Bank (“Mercantile”), and because they represent one entity, they will be referred to either as “the Bank” or, when appropriate, the specific bank will be identified. 1 The appellant, MP, LLC, filed a motion for rehearing en banc of the original panel opinion. Pursuant to this Court’s Internal Operating Procedures, when a motion for rehearing en banc is unaccompanied by a motion for rehearing, the motion for rehearing en banc is treated as including a motion for rehearing which must be ruled upon by the panel. Wade v. State, 57 So.3d 993, 994 (Fla. 3d DCA 2011); see also Romero v. State, 870 So. 2d 816, 818 (Fla. 2004) (“By treating motions for rehearing en banc as including motions for rehearing, the Third District adheres to the spirit of Florida Rule of Appellate Procedure 9.040(d), which is to ‘disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.’”). 2  The operative complaint alleges as follows. While Mercantile was negotiating its takeover by TD, Mercantile realized that it needed to shore up its portfolio of non-performing loans in order to maximize the sales price and to avoid governmental scrutiny. Thus, the complaint alleges that Mercantile conspired with the four majority members (“the Majority Members”) of Sterling Holding, LLC (“Sterling”) and other entities owned by the Majority Members of Sterling (“the Non-Sterling Entities”) without the knowledge and to the detriment of the plaintiff, MP, which was a Minority Member of Sterling. At the time of the alleged conspiracy, the breakdown of Sterling’s membership interests was as follows: Arriaga Enterprises owned a 25% interest; Howard Family Partners owned a 25% interest; Raffaele Williams owned a 25% interest; Scott Weinberg owned a 12.5% interest (combined, “the Majority Members of Sterling”); and MP owned a 12.5% interest. MP claims that in early 2010, when Mercantile was being sold to TD, the Non-Sterling Entities were in financial trouble or in default of their loans with Mercantile and that these loans were the largest non-performing loans in Mercantile’s portfolio. Thus, MP claims that Mercantile conspired with the Non-Sterling Entities and the Majority Members of Sterling (who all had membership interests in the Non-Sterling Entities) to cross-collateralize these non-performing loans with solvent property owned by Sterling. 3  To consummate the transaction, MP’s signature was required. However, because the Majority Members of Sterling and Mercantile believed that MP would never agree to the dilution of Sterling’s interest to benefit the Bank and the Non- Sterling Entities, which MP had no interest in, and that MP would most likely move to enjoin the transaction and draw unwanted attention and scrutiny, MP was not told about the transaction, which closed in April 2010. In addition to not informing MP about the transaction, the complaint alleges that the Sterling defendants created fraudulent documents omitting MP as a member of Sterling, and the Bank, which had full knowledge of MP’s membership interest in Sterling, accepted these fraudulent documents and consummated the cross- collateralization. MP further alleges that in January 2014, the Bank declared a technical default of its loans to Sterling and the Non-Sterling Entities for failure to obtain the requisite insurance and to escrow two months of property taxes. Because Sterling’s loan could not be carved out from the properties owned by the Non- Sterling Entities due to the cross-collateralization, a short sale was conducted and MP’s 12.5% interest in Sterling was rendered worthless. The trial court dismissed with prejudice MP’s fifth amended complaint based on: (1) MP’s failure “to narrow its legal theories to those most likely to sustain legal analysis under the facts”; (2) the trial court’s inability to “identify in 4 this repeated effort at pleading, any duty to MP which TD Bank breached”; (3) MP’s failure to plead any facts demonstrating the Bank’s actual knowledge that the documents it relied on, and which failed to reflect MP’s existence, were false; (4) MP’s failure to plead the elements of conspiracy as to the Bank; and (5) MP’s failure to allege any facts demonstrating any action taken by the Bank to defraud MP. The trial court essentially found that if any fraud, conspiracy, or wrongdoing took place, it was without the Bank’s knowledge and participation. As will be demonstrated below, the complaint clearly and repeatedly alleged the Bank’s actual knowledge and participation in the alleged wrongdoing. The dissent agrees with the trial court that the Bank’s alleged wrongdoing is not actionable in tort. While we agree that generally the relationship between a lender and a borrower is contractual and thus does not normally extend the duties past what are contractually required, in this case, MP has alleged that the Bank conspired with the Sterling defendants to commit tortious acts against MP, and that the Bank itself committed tortious acts against MP for its own benefit. While we recognize that the allegations are just that – allegations, they are sufficiently pled to withstand dismissal for failure to state a cause of action. STANDARD OF REVIEW Because the trial court was ruling on a motion to dismiss the complaint, rather than on a motion for summary judgment, the trial court was “required to 5 ‘treat the factual allegations of the complaint as true and to consider those allegations in the light most favorable to the plaintiffs.’” Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 734-35 (Fla. 2002) (quoting Hollywood Lakes Section Civil Ass’n v. City of Hollywood, 676 So. 2d 500, 501 (Fla. 4th DCA 1996)). Whether the allegations in the complaint are sufficient to state a cause of action is an issue of law, which we review de novo. Siegle, 819 So. 2d at 734. THE ALLEGATIONS I. Counts II and VII, Civil Conspiracy The elements of a claim for civil conspiracy are: “(a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997). There is no requirement that each co-conspirator commit acts in furtherance of the conspiracy; it is sufficient if each conspirator knows of the scheme and assists in some way. Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So. 2d 1157, 1160 (Fla. 3d DCA 2008). The trial court found that the complaint failed to allege that the Bank was a part of the conspiracy, caused any harm, or had an independent duty to MP. Instead, the trial court found that the allegations in the complaint only show that 6 the Bank was a passive and unknowing conduit for the alleged wrongdoings of the Non-Sterling Entities and the Majority Members of Sterling. Based on the following allegations taken from the operative complaint, the trial court’s findings are clearly incorrect. The complaint clearly alleges that the Bank had actual knowledge as to each conspiracy A. The general allegations related to the conspiracy alleged in Count II Paragraph 47 of the complaint alleges that prior to the April 2010 loan closing, a Credit Approval Request Memo was prepared. Paragraph 48 alleges that under the “Ownership/Management Composition” section of this memo, a breakdown of the ownership of each Sterling entity was provided, and in this breakdown, MP was listed as holding a 12.5% membership interest. Paragraph 49 states that “[a]s a consequence of the 2010 Memo, which was prepared prior to the execution of the April 2010 transaction, the Bank was without question aware of MP’s interest in Sterling and purposefully colluded to ram through the transaction to MP’s significant detriment without its otherwise required signature.” (emphasis added). Besides purposefully keeping MP out of the loop, paragraph 51 alleges: To further the scheme of reducing the loan ratios, Mercantile failed to include certain insurance required by the mortgage covenants in the mortgage payment for the loans. By doing so, Mercantile was able to make it further appear that the debt to income ratios of Sterling and the Non-Sterling Entities were within an acceptable range so that regulators would not require additional reserves, and Mercantile could 7  give the appearance that one of its largest loan portfolios was performing so that TD would proceed with the acquisition of Mercantile. The next several paragraphs explain that to effectuate the cross- collateralization, Mercantile required that each of Sterling’s members sign off on the new obligation. The complaint then details the scheme that was allegedly orchestrated to hide MP’s membership interest by falsifying the documents. Paragraph 60 specifically alleges that at the closing of the loan modification, sworn representations were made omitting MP’s membership interest in Sterling, and states: “Of course, not only did Arriaga, Howard, Weinberg and Williams [the Majority Members of Sterling] know this was false, but so did . . . the Bank . . . .” (emphasis added). Paragraphs 71 and 72 also specifically allege the Bank’s knowledge: 71. As for Mercantile’s knowledge of the fraud, beyond that which is evident by the 2009 [loan modification review] and the 2010 Memo, MP’s managing member met Nachman with Lozano [the Bank’s loan officer] a short time prior to the loan modification which closed on April 2010. Lozano was well-aware, as the loan officer who processed the loan modification of the loan on Palmetto Gardens, that MP was in fact a member of Sterling and held a 12.5% membership interest in Sterling. 72. . . . Notwithstanding that knowledge, Lozano on behalf of the Bank, participated in and manipulated matters on Mercantile’s side to make sure that the closing went through to the benefit of among others, Mercantile. (emphasis added). 8  B. The specific allegations related to the conspiracy alleged in Count II Count II realleges paragraphs 1 through 123 and then specifically lays out the allegations regarding the alleged scheme by the Bank and others to falsify the documents and omit MP’s interests as a member of Sterling in order to preclude MP from objecting to the loan modification, cross-collateralization, and other actions for the benefit of the co-conspirators. Paragraphs 135 and 136 allege that there was an agreement by the Majority Members of Sterling (who also had membership interests in the Non-Sterling Entities) to omit MP as an owner of Sterling from the documents required by the Bank for the loan modification and cross-collateralization. Paragraph 137 specifically alleges that the Bank and the Bank’s loan officer, Lozano, were part of the agreement to remove MP’s name as an owner of Sterling from these documents “while knowing that MP was in fact an owner of Sterling.” Further, paragraph 141 alleges: TD, as successor in interest to Mercantile, took actions in furtherance of the conspiracy through Lozano, who was an employee of Mercantile, by facilitating the refinancing and/or modification of the loan for Palmetto Gardens with knowingly fraudulent documents excluding MP’s existence, despite having direct knowledge that MP was a member of Sterling, and by accepting loan documents that intentionally omitted MP as a member of Sterling and falsely stated the membership interest of Sterling, in order to bring the loans back into balance so the sale to TD could close. (emphasis added). As this recitation of the allegations clearly demonstrates, Count II of the 9 operative complaint sets forth more than sufficient allegations to satisfy the pleading requirements of civil conspiracy as it relates to the Bank. Contrary to the trial court’s order, MP has sufficiently alleged that the Bank actually knew that the documents it relied on, and which failed to reflect MP’s existence, were false. The complaint alleges that the Bank was not merely a passive conduit to the conspiracy and fraud allegedly committed by the Majority Members of Sterling; rather, the Bank was a willing and active participant in the scheme to keep MP in the dark in order to maximize the sales price of Mercantile to TD by shoring up Mercantile’s portfolio. C. The general allegations related to the conspiracy alleged in Count VII The conspiracy alleged in Count VII involves the short sale of Palmetto Gardens Industrial Park (“Palmetto Gardens”), which was purchased by Sterling in 2005 with approximately $10.5 million in loans. Paragraph 22 alleges that this was a successful venture that produced a positive yearly cash flow. On or about June 29, 2009, Sterling entered into a promissory note, mortgage, and security agreement with the Bank in the amount of $14.4 million (Paragraph 24). The operative complaint further alleges that to consummate the refinancing, the Majority Members of Sterling entered into a cross-collateralization of the Palmetto Gardens property with other obligations in which the Majority Members of 10 Sterling had an interest, without MP’s knowledge or consent, thereby encumbering MP’s sole interest in Sterling. Paragraph 203 of Count VII alleges that SAA, the management company for Sterling, and the Non-Sterling Entities entered into an agreement whereby SAA would not pay insurance premiums or pay the escrowed property taxes to TD in order to trigger a default of the loan documents, and would fail to cure the default, for among other reasons, to trigger the cross collateralization of Palmetto Gardens, which was cash flow positive, and could be utilized to get the members of Sterling other than MP out from under the debt on the Non-Sterling Entities. Paragraph 204 alleges that in January 2014, TD declared the anticipated technical default of the Palmetto Gardens loans. Count VII further alleges that when MP learned of the Bank’s declaration of default, it filed a lawsuit against the alleged conspirators, which, at that point, did not include the Bank. Shortly thereafter, the alleged conspirators and the Bank conspired to sell Palmetto Gardens at a short sale at a greatly reduced price, allowed two of the Majority Members of Sterling (Arriaga and Howard) to retain an under- the-table interest in Palmetto Gardens, and ensured that SAA be retained by the new owner to act as the management company for the property. Paragraphs 212 alleges that as part of the conspiracy, the Bank agreed to release all of the guarantors from millions of dollars in guarantees, even though the properties were sold at a discount, without requiring the guarantors to produce financial statements 11 in order to determine their ability to cover the loans or cure the defaults. Paragraph 217 alleges that the Bank entered into this agreement with the other alleged conspirators to avoid the allegations of wrongdoing against it in this lawsuit and to eliminate the bad debt it was carrying. And, as already articulated, the complaint alleges that the Bank was able to commit this conspiracy by knowingly accepting falsified documents omitting MP’s membership interest so that the cross-collateralization could be accomplished in the first place. As these allegations are more than sufficient to withstand dismissal for failing to satisfy the pleading requirements of civil conspiracy as it relates to the Bank, the trial court erred by dismissing Counts II and VII of the fifth amended complaint. II. Count IV, Violation of the Florida Racketeer Influenced and Corrupt Organization Act To survive a motion to dismiss Count IV, alleging a violation of the Florida Racketeer Influenced and Corrupt Organization Act (“RICO”), MP was required to plead the following elements: (1) the existence of an enterprise, which [the Bank] was employed by or associated with in committing the crimes, (2) a pattern of racketeering activity, and (3) at least two ‘incidents’ of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission, or that are otherwise interrelated by distinguishing characteristics and are not isolated incidents. Shimek v. State, 610 So. 2d 632, 634-35 (Fla. 1st DCA 1992) (citing Boyd v. 12 State, 578 So. 2d 718 (Fla. 3d DCA 1991)). In dismissing the operative complaint, the trial court concluded that the complaint failed to sufficiently allege the Bank’s knowledge that the documents it was relying on, when it cross-collateralized the Non-Sterling Entities non- performing loans with solvent property owned by Sterling, were fraudulent. As already addressed in detail, the complaint clearly and unequivocally has alleged that the Bank was a knowing and willing conspirator with full knowledge of the falsity of the documents it relied on to accomplish the cross-collateralization, and the benefits it expected as a result of its participation in the alleged conspiracy. We, therefore, turn to the elements MP was required to plead in support of its RICO claim. A. The existence of an enterprise which the Bank was employed by or associated with in committing the crimes As previously addressed, the operative complaint alleges that the Bank conspired with the Majority Members of Sterling and the Non-Sterling Entities to cross-collateralize the largest non-performing loans, and in some cases, loans which were in default, in Mercantile’s portfolio prior to the sale of Mercantile to TD. To accomplish this goal, it is alleged that Mercantile conspired with the Majority Members of Sterling to allow the Bank to cross-collateralize Sterling’s healthy and profitable properties with other defaulting and non-performing loans owed by the Non-Sterling Entities, in which the Majority Members of Sterling 13 each had a financial interest. And to accomplish this cross-collateralization without drawing any attention, it is alleged that, with the Bank’s knowledge and consent, fraudulent documents omitting MP’s interest in Sterling were prepared by Sterling’s Majority Members and were used by the Bank. This was done because MP, which held no interest in the Non-Sterling Entities, surely would have objected to and would have attempted to block the transaction, which would have drawn attention to the weaknesses in Mercantile’s portfolio. Thus, the complaint sufficiently alleged the existence of and the Bank’s participation in the RICO enterprise. B. A pattern of racketeering activity To establish a “pattern of racketeering activity,” MP was required to plead facts establishing a continuing course of conduct or a “series of related predicates extending over a substantial period of time,” State v. Lucas, 600 So. 2d 1093, 1094 (Fla. 1992) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241-43 (1989)), which is commonly referred to as “continuity.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1265 (11th Cir. 2004). In Lucas, the Florida Supreme Court held that predicate events occurring over a six-month period were sufficient to prove continuity. Lucas, 600 So. 2d at 1093. MP has alleged that the wrongful predicate acts took place over a period of many months. The complaint alleges that the conspiracy, including the 14 falsification and the acceptance of the falsified documents, took place in April 2010, and the refinancing was effectuated shortly thereafter. In January 2014, the Bank declared a technical default of the loans for Palmetto Gardens (the property owned by Sterling) and the Non-Sterling properties due to the failure to maintain insurance and escrow property taxes. (Paragraph 109). After the default was filed, MP filed the instant lawsuit against the alleged conspirators, except for the Bank, and put the Bank on notice that it might be added to the lawsuit. The complaint alleges that, thereafter, the Majority Members of Sterling, the Bank, and SAA, the management company, “entered into an agreement to use the excuse of the technical default to enter into a contract for a short sale to a buyer who was all too familiar with Arriaga and Howard” (Paragraph 112); sold the properties at a reduced price (Paragraph 118); and released the guarantors from their personal guarantees for the Palmetto Gardens property without even attempting to determine if the guarantors had sufficient assets to satisfy the loan deficiency (Paragraph 121). The purpose of this agreement was to allow the Bank and the Majority Members of Sterling to eliminate the debt on the Non-Sterling properties and to hopefully avoid allegations of wrongdoing by MP (Paragraph 122). Therefore, because the alleged predicate acts spanned not just months, but years, the continuity or pattern of racketeering activity requirement was adequately pled. C. The final element—The existence of at least two incidents of racketeering conduct 15  The third and final element which must be pled when alleging a RICO violation is the existence of “at least two ‘incidents’ of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission, or that are otherwise interrelated by distinguishing characteristics and are not isolated incidents.” Shimek, 610 So. 2d at 635. For the sake of brevity, we will not repeat the allegations already articulated, which include at least two acts: (1) the falsification and use of falsified documents to facilitate the plan to cross- collateralize Sterling’s healthy property with underperforming loans owed by the Non-Sterling Entities, in which the Majority Members of Sterling each held a financial interest; and (2) the creation of a technical default on the Sterling and Non-Sterling properties, which enabled the Bank to sell the properties and eliminate the bad debt associated with the non-performing Non-Sterling Entities loans. The intent of the co-conspirators was the same: financial gain. The purpose, result, and method of commission were all interrelated: to keep MP out of the loop in order to facilitate the cross-collateralization without drawing any attention, and to subsequently use the healthy Sterling properties to allow the Majority Members of Sterling to eliminate their bad debts with the Bank and to allow the Bank to remove these bad debts from its books. Because the elements of RICO were all pled in the operative complaint, the 16 trial court erred by dismissing Count IV based on MP’s failure to sufficiently plead a cause of action. III. Count X, Aiding and Abetting Another Defendant’s Breach of its Fiduciary Duty to MP The trial court’s order failed to articulate the grounds upon which it dismissed Count X. We will, therefore, state the elements of aiding and abetting the breach of another’s fiduciary duty, which admittedly is an uncommon, and yet not an unheard of cause of action, see Pearlman v. Alexis, No. 09-20865-CIV, 2009 WL 3161830, *5 (S.D. Fla. Sept. 25, 2009) (noting that Florida law recognizes the tort of aiding and abetting a breach of another’s fiduciary duty); Williamson v. Answer Phone of Jacksonville, Inc., 118 So. 2d 248, 250 (Fla. 1st DCA 1960) (reversing the trial court’s order dismissing Williamson’s complaint, in which she alleged that the telephone company had changed a classification title “for the purpose of aiding and abetting [the other] defendants—in the accomplishment of their intention and purpose to defraud the public and injure the plaintiff.”), and then examine the allegations contained in the operative complaint to determine whether MP satisfied the pleading requirements. To establish a cause of action for aiding and abetting another defendant’s breach of its fiduciary duty to the plaintiff, the plaintiff must allege: “(1) a fiduciary duty on the part of the wrongdoer; (2) a breach of fiduciary duty; (3) 17 knowledge of the breach by the alleged aider and abettor; and (4) the aider and abettor’s substantial assistance or encouragement of the wrongdoing.” S&B/BIBB Hines PB 3 Joint Venture v. Progress Energy Fla., Inc., 365 Fed. Appx. 202, 207 (11th Cir. 2010) (applying Florida law); Pearlman, 2009 WL 3161830 at *5. The Eleventh Circuit Court of Appeal, interpreting Florida law in Perlman v. Wells Fargo Bank, N.A., 559 Fed. Appx. 988, 993 (11th Cir. 2014), and Lawrence v. Bank of Am. N.A., 455 Fed. Appx. 904, 907 (11th Cir. 2012), specifically held that when a claim of aiding and abetting is asserted against a bank, the knowledge element can only be satisfied if the plaintiff pleads facts demonstrating that the bank had actual knowledge of the underlying wrongs committed. See also Wiand v. Wells Fargo Bank, N.A., 938 F. Supp. 2d 1238, 1244 (M.D. Fla. 2013). Count I specifically alleges that as the managing member of Sterling, Arriaga owed a fiduciary duty to each of the members of Sterling, including MP, and paragraph 127 lists eleven ways in which Arriaga breached his fiduciary duty to MP. Paragraph 129 also alleges that Howard Law Offices, the firm that represented Sterling in the 2010 loan modification and cross-collateralization, and Howard individually, owed a fiduciary duty to Sterling, including MP, and that Howard Law Offices and Howard breached that duty by preparing documents omitting MP’s membership interest in Sterling and misrepresenting Sterling’s membership interests. Thus, the first two elements were clearly alleged in the 18 operative complaint. The third and fourth elements: the Bank’s knowledge of the breach of fiduciary duties owed to MP by Arriaga, Howard Law Offices, and Howard, and the Bank’s substantial assistance or encouragement of their wrongdoings, were also painstakingly pled in MP’s complaint. It was, therefore, error for the trial court to dismiss Count X of MP’s complaint. CONCLUSION The trial court’s dismissal of MP’s complaint was based on its inaccurate reading of the operative complaint and consideration of the elements relevant to each cause of action. Although the trial court’s dismissal was based primarily on MP’s failure to allege knowledge on the part of the Bank, the operative complaint clearly and repeatedly alleged the Bank’s actual knowledge of and willing participation in the alleged wrongdoing. The trial court therefore erred by dismissing MP’s complaint. Reversed; remanded. FERNANDEZ, J., concurs. 19  MP, LLC v. Sterling Holding, LLC, etc., et al. 3D15-1062 SCALES, J. dissenting. I respectfully dissent and would not grant MP, LLC’s motion for rehearing in this case. While the majority opinion is compelling, and contains an excellent outline of the facts and causes of action alleged by MP, LLC, I would affirm the trial court’s dismissal of MP, LLC’s claims against TD Bank, N.A. because I am not persuaded that a commercial lender owes the alleged underlying duties to a minority member of one of the lender’s borrowers. Indeed, if true, the alleged actions of TD’s predecessor, Mercantile Bank, might border on the unethical; but I agree with the trial court that such actions are 20 simply not actionable in tort. In my view, the duties Mercantile, a commercial lender, owed to participants in the commercial transaction with Mercantile’s borrower, Sterling Holding, LLC, are specified in the parties’ written loan documents. See generally Silver v. Countrywide Home Loans, Inc., 760 F. Supp. 2d 1330, 1339 (S.D. Fla. 2011) (“[T]here is no tort duty to process loans competently. The relationship [between bank and borrower] is contractual; there is either a breach of that contract or not.”) In my view, under the facts of this case, Mercantile owed no common law tort duties to its borrower, Sterling, much less to MP, LLC, a minority member of Sterling. See, e.g., Watkins v. NCNB Nat’l Bank of Fla., 622 So. 2d 1063 (Fla. 3d DCA 1993). I am particularly concerned that the majority opinion imposes previously unrecognized obligations on commercial lenders to police the internal corporate governance of their borrowers. From a practical perspective, the majority’s reversal seems to entangle lenders in borrowers’ internal disputes. Not only might such entanglements deter lenders from making otherwise prudent loans, but to impose such duties on lenders might encourage an uncomfortable level of bank- meddling into the strictly internal affairs of borrowers. I would deny rehearing. 21 22 

Fourth Court of Appeals San Antonio, Texas OPINION No. 04-12-00866-CR Larry DIEKEN, Appellant v. The STATE of Texas, Appellee From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 11-1564-CR Honorable Gary L. Steel, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Catherine Stone, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice Delivered and Filed: April 16, 2014 AFFIRMED Appellant Larry Dieken pled guilty to aggravated assault with a deadly weapon, and the jury assessed punishment at life imprisonment and a fine. The trial court imposed the sentence, appointed appellate counsel, and ordered Dieken to pay attorney’s fees for his court-appointed trial counsel. Dieken appealed. His court-appointed appellate counsel filed an Anders brief, and Dieken filed a pro se brief. We agree with Appellant’s court-appointed counsel there are no arguable issues on appeal pertaining to Dieken’s conviction, but we separately address the trial  04-12-00866-CR court’s order for Dieken to reimburse the county for his court-appointed attorney’s fees. We affirm the trial court’s judgment. BACKGROUND Appellant Larry Dieken was indicted for first degree aggravated assault with a deadly weapon causing serious bodily injury to a household member. Dieken pled guilty before the jury, and the jury assessed punishment at confinement in the Texas Department of Criminal Justice— Institutional Division for a term of life and a fine of $10,000.00. The trial court orally ordered the punishment assessed by the jury and further ordered Dieken to pay all fines and court costs. Subsequently, the trial court signed two orders on the same day: (1) a written judgment of conviction assessing costs including $524.50 for attorney’s fees; and (2) an order appointing appellate counsel to represent Dieken on appeal. Appellate counsel filed an Anders brief asserting the record contains no arguable errors to attack the conviction, see Anders v. California, 386 U.S. 738, 744 (1967), but challenging the trial court’s order requiring Dieken to pay the attorney’s fees for his court-appointed trial counsel. Before we address the attorney’s fees question, we consider whether Dieken has any arguable issues on the merits of his conviction. NO ARGUABLE ISSUES ON CONVICTION Dieken’s court-appointed appellate attorney filed a brief containing a professional evaluation of the record in accordance with Anders procedures; counsel also filed a motion to withdraw. See id. In counsel’s brief, counsel raises no arguable appellate issues on the conviction or sentence, and necessarily concludes this appeal is wholly frivolous. Counsel’s brief meets the Anders requirements. See id.; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). As required, counsel provided Dieken with a copy of the brief and counsel’s motion to withdraw, and informed Dieken of his right to review the record and file a pro se brief. See Nichols v. State, 954 S.W.2d 83, 85– -2-  04-12-00866-CR 86 (Tex. App.—San Antonio 1997, no pet.); see also Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). In his pro se brief, Dieken complains about the jury selection process, ineffective assistance of counsel, alleged defects in the clerk’s and reporter’s records, and other issues. After reviewing the record, counsel’s brief, and Dieken’s pro se brief, we conclude there is no reversible error and, except for the question of attorney’s fees, the appeal is wholly frivolous. See Anders, 386 U.S. at 744; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (citing Anders and allowing appellate courts to not address every issue raised if, after reviewing the record, the court finds no reversible error). Therefore, we turn to the question of attorney’s fees. ATTORNEY’S FEES Dieken challenges the assessment of $524.50 in attorney’s fees as part of the costs imposed in the judgment. He asserts the trial court twice found him indigent for purposes of trial, he was presumed to remain indigent, the trial court again found him indigent for purposes of this appeal, and there is no evidence to show he was able to pay the court-appointed trial attorney’s fees. A. Applicable Law “A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2014); accord Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Fulmer v. State, 401 S.W.3d 305, 318 (Tex. App.—San Antonio, pet. ref’d), cert. denied, 134 S. Ct. 436 (2013). On the other hand, [i]f the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, . . . the court shall -3-  04-12-00866-CR order the defendant to pay . . . as court costs the amount that it finds the defendant is able to pay. TEX. CODE CRIM. PROC. ANN. art. 26.05(g); accord Mayer, 309 S.W.3d at 556. “[T]he defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees.” Mayer, 309 S.W.3d at 556. If the trial court imposes court-appointed attorney’s fees as part of court costs, an appellant may challenge the imposition for the first time on appeal by raising a sufficiency of the evidence issue. Id.; Fulmer, 401 S.W.3d at 318. We review the record to determine whether the trial court could have reasonably determined the appellant’s financial circumstances experienced a material change and the appellant was able to pay the court-appointed attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); McFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App. 2010). We view the evidence in the light most favorable to the judgment. Mayer, 309 S.W.3d at 557. B. Analysis For the first time on appeal, Dieken contends there is insufficient evidence of his ability to pay attorney’s fees. See id. at 556; Fulmer, 401 S.W.3d at 318. Before we review the evidence, we first consider the definition of indigence. 1. Definition of Indigence A criminal defendant who asserts he is “without means to employ counsel of my own choosing,” may petition the court to appoint counsel to represent him at the county’s expense. TEX. CODE CRIM. PROC. ANN. art. 26.04(o) (providing oath of indigence language); id. art. 26.05(f) (requiring counties to pay indigents’ costs and attorney’s fees). On the defendant’s request and affidavit, the court determines whether the defendant has the means to hire counsel—or in abbreviated form, whether the defendant is “indigent.” Id. art. 26.04(m). Courts’ determinations that a defendant is indigent or not indigent may suggest that indigence is a binary condition. See, -4-  04-12-00866-CR e.g., Wiley, 410 S.W.3d at 317 (referring to defendants who were “declared indigent” or “found indigent”); Mayer, 309 S.W.3d at 557 (same). Several statutory provisions also use seemingly “either-or” language. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 26.04(l), (m), (o) (referring to “whether a defendant is indigent”); id. art. 26.04(p) (referring to “a determination of indigency or nonindigency”). But the statute controlling reimbursement of court-appointed attorney’s fees expressly contemplates a middle ground—a defendant who is able to pay for a portion of his legal services: 1 If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (emphasis added); see Wiley, 410 S.W.3d at 317 (citing the statutory provision). Article 26.05(g) authorizes a court to determine that a defendant is able to pay a portion of the costs of his legal services but is unable to pay the balance. TEX. CODE CRIM. PROC. ANN. art. 26.05(g). The statute clarifies the definition to show indigence is not merely a binary condition—either too poor to afford any counsel at any time (indigent), or rich enough to retain counsel at all stages of the case (not indigent). Id. Instead, indigence—a measure of whether a defendant is able to pay for legal services—is a spectrum that includes financial circumstances where the defendant is able to pay for part, but not all, of the legal services provided. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); cf. McFatridge, 309 S.W.3d at 6 (distinguishing indigence for purposes of a free record and indigence for appointing counsel: “A defendant can be found indigent for one purpose without being found indigent for the other.”). 1 “[C]osts of legal services provided” include attorney’s fees for court-appointed counsel. TEX. CODE CRIM. PROC. ANN. art. 26.05(a), (e), (g). -5-  04-12-00866-CR 2. Material Change, Ability to Pay The defendant’s ability to pay may also change over time, and the court may reconsider any earlier indigence determination. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Whitehead v. State, 130 S.W.3d 866, 876 (Tex. Crim. App. 2004) (“The question of indigence is subject to reconsideration if the defendant’s financial status changes and, at least in the case of appointed counsel, the defendant can be required to reimburse the cost of legal services if it is later determined that he is able to do so.” (footnote omitted)); cf. Sturdivant v. State, No. 01-12-00089- CR, 2013 WL 1972179, at *21 (Tex. App.—Houston [1st Dist.] May 14, 2013), judgment vacated on other grounds, 411 S.W.3d 487 (Tex. Crim. App. 2013) (finding a material change in appellant’s financial circumstances and ordering her to pay for the legal services provided in full). For example, if a defendant is indicted, is found able to pay for retained counsel (“not indigent”), but suffers a serious financial setback, the defendant may move the court to reconsider its earlier determination. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Whitehead, 130 S.W.3d at 876. On the other hand, if a defendant is initially found “indigent,” but receives a financial windfall before the judgment is signed, the statute expressly contemplates that the State may move for reconsideration. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Whitehead, 130 S.W.3d at 876; cf. Sturdivant, 2013 WL 1972179, at *21. If the trial court grants the motion and determines the defendant is financially able to reimburse the county for all or part of the legal services it provided, the trial court is obligated to order the defendant to do so. TEX. CODE CRIM. PROC. ANN. art. 26.05(g); see Wiley, 410 S.W.3d at 317; Whitehead, 130 S.W.3d at 876. We turn now to the evidence. 3. Relevant Evidence On May 31, 2011, the trial court determined that Dieken was “too poor to employ counsel for his defense in this cause” and appointed counsel to represent him. From that date, Dieken was -6-  04-12-00866-CR “presumed to remain indigent . . . unless a material change in [Dieken’s] financial circumstances occur[red].” See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Wiley, 410 S.W.3d at 317; Mayer, 309 S.W.3d at 557. In a bond reduction hearing on September 27, 2011, Dieken testified that when he was working full-time, his take-home pay was about $9,300 per month, but he has not worked since his arrest because he has been continuously incarcerated. On November 9, 2011, the trial court again found Dieken was “too poor to employ counsel,” granted the first appointed counsel’s motion to withdraw, and appointed a replacement attorney. During an April 18, 2012 hearing on Dieken’s motion to reduce bail, Dieken testified about his financial circumstances. He testified he had a 401(k) retirement account valued at about $2,000 that he was trying to liquidate, and he might receive funds from an insurance claim. He asked the court to dismiss his second court-appointed attorney because he was going to “get my own lawyer.” On May 8, 2012, George Carroll filed a notice of appearance; the notice stated “Larry Dieken[] retained George Carroll.” In the May 22, 2012 hearing on Dieken’s motion for continuance, retained counsel advised the court that Dieken hired him, and a third party would pay on Dieken’s behalf for a forensic psychiatrist to examine Dieken. The trial court granted retained counsel’s motion to substitute, but did not make an oral or written finding that (1) Dieken’s financial circumstances experienced a material change or (2) Dieken had the ability to pay his court-appointed trial counsel’s fees. After the trial concluded, the court’s written judgment imposed court costs including $524.50 in attorney’s fees for Dieken’s court-appointed trial counsel. 4. Sufficient Evidence To impose the attorney’s fees on Dieken, the trial court had to find, either expressly or implicitly, that a material change occurred and Dieken had the ability to pay $524.50 for his court- appointed attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Wiley, 410 S.W.3d at -7-  04-12-00866-CR 317; Mayer, 309 S.W.3d at 556. It did not make an express written or oral finding, 2 and we must determine whether the evidence reasonably supports such an implicit finding. See Mayer, 309 S.W.3d at 557 (sufficiency review); cf. McFatridge, 309 S.W.3d at 5–6, 9 (reiterating the appellate review process for an indigence determination and requiring “the trial court’s determinations [to be] reasonably supported by the evidence”). The trial court heard testimony and received documents that reasonably supported its determination. See McFatridge, 309 S.W.3d at 9. Dieken testified he had a 401(k) account he was trying to liquidate, and he might receive funds from an insurance claim. Dieken’s retained counsel presented a motion to substitute which expressly stated that Dieken retained counsel, and counsel stated on the record in open court that Dieken hired him. Retained counsel also advised the court that a third party had agreed to pay—on Dieken’s behalf—the expert psychiatrist’s fee. We conclude the trial court’s implicit determinations that (1) a material change occurred sometime after it found Dieken indigent and before Dieken retained counsel, and (2) Dieken was able to pay the $524.50 in court-appointed attorney’s fees are reasonably supported by the evidence. See Mayer, 309 S.W.3d at 556 (required findings); McFatridge, 309 S.W.3d at 9 (reasonable support in evidence). Further, the trial court’s order appointing appellate counsel, signed the same day as the judgment, is not inconsistent with the ordered attorney’s fees; the trial court could have found Dieken was able to pay $524.50 in trial attorney’s fees but unable to pay attorney’s fees to appeal. See McFatridge, 309 S.W.3d at 6. Viewing the evidence in the light most favorable to the judgment, see Mayer, 309 S.W.3d at 557, we conclude the trial court did not err in ordering Dieken to pay $524.50 in attorney’s fees. We overrule Dieken’s complaint about the imposition of court-appointed attorney’s fees. 2 The statute does not require an express finding, but a clear, written finding or an unequivocal oral pronouncement on the record in open court is preferred. Cf. TEX. CODE CRIM. PROC. ANN. art. 26.05(g). -8-  04-12-00866-CR CONCLUSION Having reviewed the record and the briefs, we conclude there are no arguable issues on appeal pertaining to Dieken’s conviction. To support its judgment, the trial court necessarily— albeit implicitly—found Dieken’s financial circumstances experienced a material change and he was able to pay $524.50 for court-appointed attorney’s fees. Viewing the evidence in the light most favorable to the judgment, we conclude the evidence reasonably supports the trial court’s order imposing $524.50 in attorney’s fees. See Mayer, 309 S.W.3d at 557. We affirm the trial court’s judgment and grant appellate counsel’s motion to withdraw. 3 See Nichols, 954 S.W.2d at 85–86; Bruns, 924 S.W.2d at 177 n.1. Patricia O. Alvarez, Justice PUBLISH 3 No substitute counsel will be appointed; if Appellant desires to take further action in this case, he must either retain counsel or act through self-representation. If Appellant seeks additional review by this court, Appellant may file a motion for rehearing or motion for en banc reconsideration. See TEX. R. APP. P. 49.1, 49.7. If Appellant seeks further review by the Texas Court of Criminal Appeals, he must file a petition for discretionary review. Any petition for discretionary review must be filed within thirty days from (1) the date of this opinion or (2) the date the last timely motion for rehearing or en banc reconsideration is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3(a). The mailing address for the court is as follows: Court of Criminal Appeals P.O. Box 12308 Austin, Texas 78711-2308 Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4. -9- 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HAROLD STANLEY JACKSON, : : Plaintiff, : Civil Action No.: 19-1487 : v. : Re Document No.: 24 : STARBUCKS CORPORATION, : : and : : DAN WHITE-HUNT : : Defendants. : MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO STRIKE I. Introduction This matter comes before the Court on the Defendant’s motion to strike allegations contained in paragraphs 3, 4, 12, 14, 40–58 of Plaintiff’s amended complaint. Starbucks Corp. Mot. to Strike Portions of the First Am. Compl. (“Mot. Strike”), ECF No. 24, ¶ 1. Plaintiff Harold Stanley Jackson initiated this action after an incident that occurred on April 24, 2018, at a Starbucks store located in Washington, DC. Plaintiff has filed a suit against Defendants Starbucks and store manager Dan White-Hunt alleging negligence, battery, race discrimination, and personal appearance discrimination. See First Am. Compl. (“First Am. Compl.”), ECF No. 22, ¶ 1. Starbucks moves to strike the aforementioned allegations from the complaint, claiming that “they are inflammatory and unnecessary for Plaintiff to state his claim, and thus prejudicial to defendant.” Mot. Strike ¶ 1. 1 For the reasons that follow, the Court will deny the Defendant’s motion to strike. II. Factual and Procedural Background 2 On April 24, 2018, Plaintiff, wearing a dark winter coat with the hood over his head, entered the Starbucks store located at 2130 H Street, NW, headed towards the register, picked up two retail items, and began walking towards the end of the line. See First Am. Compl. ¶ 1. The Starbucks cashier then communicated to Plaintiff that he “was not supposed to touch” the items and that he had to pay for them. Id. ¶¶ 1, 19; see also Starbucks Corp. Mem. Supp. Mot. to Strike (“Mot. Strike Mem.”), ECF No. 24-1, ¶ 3. The interaction with the cashier consequently led Plaintiff to ask to speak to a manager. First Am. Comp. ¶ 21. Soon after, Plaintiff had a conversation with Defendant, Mr. White-Hunt, who was the manager of the store. Id. ¶ 23. After a brief encounter with Mr. White-Hunt, Plaintiff walked toward the end of the checkout line to purchase the items. First Am. Compl. ¶¶ 1, 2. However, as Mr. Jackson headed to the end of the line, another Starbucks employee, Richard Washington, approached him and pushed him. First Am. Compl. ¶ 28. Plaintiff subsequently fell and suffered a seizure. Id. Plaintiff further contends that he was subjected to unfair treatment by the Defendants based on his race (Black) and his physical appearance when an employee told him that he could not pick up and hold the retail items with the insinuation that Plaintiff intended to steal the items. See First Am. Compl. ¶ 63, 86. The amended complaint describes Mr. Jackson as “appear[ing] physically in a 1 The other Defendant in this suit, Dan White-Hunt, has not filed a motion or any response to the Amended Complaint. 2 As the Court is denying the Defendant’s motion to strike portions of the Plaintiff’s first amended complaint, the relevant facts are drawn from Plaintiff’s first amended complaint and Defendant’s memorandum supporting the motion to strike. The Court assumes factual allegations in the complaint are true for the purposes of this motion to strike. 2 manner that some might interpret as being indigent, homeless, or otherwise belonging to a protected group of vulnerable people in our society.” Id. ¶ 78. On April 22, 2019, Plaintiff filed a complaint against Defendants, Starbucks Corporation and Mr. White-Hunt, in the Superior Court of the District of Columbia. See Notice of Removal, Superior Court Complaint, ECF No. 1-4, 8. Defendant Starbucks removed the case to this Court on May 21, 2019. Notice of Removal, ECF No. 1. Plaintiff asserts four claims. Count one is a negligence claim against Starbucks and Mr. White-Hunt. Count two is a battery claim against Starbucks and Mr. White-Hunt. Counts three and four are racial discrimination, and physical appearance discrimination claims pursuant to the D.C. Human Rights Act, D.C. Code § 2- 1402.31, and 42 U.S.C. § 1981, both against Starbucks. See First Am. Compl. ¶¶ 64–89. This Court has original jurisdiction over the claim of discrimination in violation of 42 U.S.C. § 1981 and supplemental jurisdiction over Plaintiff’s remaining claims pursuant to 28 U.S.C § 1367(a). See Notice of Removal, ECF No. 1. As noted, Starbucks seeks to strike the allegations contained in paragraphs 3, 4, 12, 14, 40-58 of the complaint (the “disputed allegations”). Mot. Strike ¶ 1. The disputed allegations involve descriptions of other incidents involving racial and physical appearance discrimination that have occurred in other Starbucks stores, as well as a brief discussion of the societal dangers and implications of implicit bias theory. Specifically, paragraphs 3–4, 12–14, 40–41, and 58 contain a narrative of a separate, recorded incident in Philadelphia that occurred two weeks prior to the incident in this case and generated national attention and discussion about racial discrimination. See First Am. Compl. ¶¶ 3–4, 12-14, 40, 41, 58. Paragraph 4 also asks a rhetorical question in response to the Philadelphia incident: “How does Starbucks treat its brown and black customers when the cameras are off?” Id. ¶ 4. Paragraphs 42-55 generally explain the 3 concept of implicit bias but do not mention or refer to Starbucks or Mr. White-Hunt. See id. ¶¶ 42–55. Paragraphs 56 and 57 further provide separate examples of discriminatory treatment of Starbucks customers by Starbucks employees in other stores. See id. ¶¶ 56–57. III. Legal Standard Federal Rule of Civil Procedure 12(f) provides in part that “the court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). In considering a motion to strike, the Court “will draw all reasonable inferences in the pleaders favor and resolve all doubts in favor of denying the motion to strike.” Nwachukwu v. Karl, 216 F.R.D. 176, 178 (D.D.C. 2003). A court has broad discretion in considering a motion to strike but granting such a motion is a drastic remedy. Fed. Trade Comm’n v. Cantkier, 767 F. Supp. 2d 147, 159-60 (D.D.C. 2011); Uzlyan v. Solis, 706 F. Supp. 2d 44, 51 (D.D.C. 2010). As a result, motions to strike are disfavored. Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981) (per curiam). Motions to strike are also disfavored when irrelevant allegations provide some context or utility to the complaint. See NCB Mgmt. Servs., Inc. v. F.D.I.C., 843 F. Supp. 2d 62, 72 (D.D.C. 2012) (holding that allegations that are not directly relevant nevertheless “provide helpful context about the history of the parties’ dispute”); Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 224 F.R.D. 261, 264 (D.D.C. 2004) (“If any other factual statements made . . . supported or otherwise gave context or utility to these statements, then the Court would be less likely to strike them.”). Consequently, because courts view motions to strike with such disfavor, many courts “will grant such motions only if the portions sought to be stricken are prejudicial or scandalous.” Nwachukwu, 216 F.R.D. at 178. Thus, motions to strike are typically granted when the 4 allegations are “indefensible and wholly inappropriate” and undermine the dignity of the Court. Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C. 2003); cf. Sec. and Exch. Comm’n v. Gulf & W. Indus., Inc., 502 F. Supp. 343, 345 (D.D.C. 1980) (granting a motion to strike where striking a clearly frivolous affirmative defense would avoid wasting court resources). IV. Analysis Defendant Starbucks moves to strike allegations (paragraphs 3, 4, 12, 14, and 40–58) contained in Plaintiff’s amended complaint pursuant to Federal Rule of Procedure 12(f). Mot. Strike ¶ 1. Starbucks first contends that the disputed allegations “are intended solely to generate sympathy toward the Plaintiff, prejudice Starbucks, and improperly bolster Plaintiff’s case.” See Mot. Strike Mem. ¶ 9. Plaintiff contends that the challenged allegations provide “helpful context” of similar mistreatment of Black customers in Starbucks stores. See Opp’n to Mot. to Strike (“Opp’n Mot. Strike”), ECF No. 25, ¶ 8. As explained above, courts will generally only grant a motion to strike if the material at issue is “scandalous.” Nwachukwu, 216 F.R.D. at 178. “Scandalous” material “generally refers to any allegation that unnecessarily reflects on the moral character of an individual.” Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C. 2003) (internal citations omitted). However, allegations that cast a party in a merely “derogatory light [are] insufficient to warrant the striking of allegations from a complaint.” Uzlyan, 706 F. Supp. 2d at 58. Therefore, an allegation is not “scandalous” unless it suggests a needlessly cruel and damaging depiction of a party. See Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 224 F.R.D. 261, 263 (D.D.C. 2004) (striking immaterial, inflammatory, and impugning allegations). Here, the Defendant has failed to demonstrate that the disputed allegations in Plaintiff’s amended complaint are “scandalous” or that they undermine the dignity of the Court. Defendant 5 contends that the description of a separate incident in Philadelphia, the examples of discrimination in Starbucks stores, and the rhetorical question in paragraph 4 are irrelevant and solely seek to prejudice Defendant. See Mot. Strike Mem ¶ 10. But a pleading may depict the defendant in a negative or even disparaging manner without necessarily making allegations scandalous enough to be removed through a motion to strike. See Uzlyan, 706 F. Supp. 2d at 58 (“In the absence of pejorative adjectives characterizing the facts alleged or other colorful language, the fact that a Plaintiff’s allegations may cast the defendant in a ‘derogatory light’ is insufficient to warrant the striking of allegations from a complaint.”). When courts in this district have struck material from a pleading, it has involved scandalous material that only served to unreasonably and brazenly comment on the moral character of a party. For example, the court in Jackson v. H.R. Nicholson Co. struck references that included unsupported speculation that the defendant was involved in a conspiracy to commit genocide and to eliminate an unspecified ethnic, racial, or religious group. 545 F. Supp. 762, 764 (D.D.C. 1982). Similarly, in Wiggins v. Philip Morris, Inc., the court granted a motion to strike a description of the defendant’s employee as a “renegade employee” whose alleged abuse of narcotics drove his malice toward Plaintiff, which resulted in Plaintiff’s termination. The court found that these allegations were “simply irrelevant as to Plaintiff’s civil rights causes of action against [defendant]” because they were not directed at a party in the suit and were therefore “irrelevant and prejudicial.” 853 F. Supp. 457, 457-8 (D.D.C. 1994). In contradiction to Wiggins and Jackson, all the disputed allegations in this case are more explanatory than scandalous. Additionally, unlike Wiggins, there is no injurious mention of a third party not involved in this suit. 6  More specifically, the allegations mentioning the Philadelphia incident (paragraphs 3-4, 12-14, 40-41, and 58) do not make disparaging or inflammatory accusations against either Defendant. Starbucks itself has commented publicly on the Philadelphia incident as the incident has gained wide media attention. See First Am. Compl. ¶ 3; Starbucks Corp. Reply in Further Supp. of its Mot. to Strike Portions of the First Am. Compl. (“Reply”), ECF No. 27, ¶ 4. The rhetorical question (paragraph 4), even if leading and somewhat irrelevant, fails to meet the threshold for scandalous material that threatens the dignity of the Court because it is neither inflammatory nor insulting. See Pigford, 215 F.R.D. at 3 (striking unsubstantiated accusations of “contempt for ‘lawyers of color’” and “racist attitude”). Furthermore, paragraphs 56 and 57 provide two summarized examples of Starbucks employees’ experiences of making biased judgments against their customers based on the customers' physical appearance or race. First Am. Compl. ¶ 56–57. These are summaries of short audio excerpts posted on Starbucks’ public website and used as learning tools for company- wide training. See Reply ¶ 1, n.2. 3 Starbucks argues that this use of information it publicly shared is prejudicial. However, the Court fails to see how the examples could rise to the level of “scandalous” or “impertinent,” considering that Starbucks posted them on their own website and advertises them as a means of being more transparent about discrimination in its stores. Again, the Court will not strike allegations simply because they may generate sympathy for a Plaintiff if the allegations are not actually scandalous. The Court can simply disregard this material if it is irrelevant, and it is unlikely to have any significant impact on the case going forward. 3 This material was easily retrievable from Starbucks’ website. The Third Place: Our Commitment, Renewed, Starbucks Stories & News (May 30, 2018), https://stories.starbucks.com/stories/2018/thethirdplace/. 7  Defendant also contends that all of the disputed allegations are irrelevant and unnecessary to resolve Plaintiff’s claims. Mot. Strike Mem. ¶ 7. However, courts will only strike allegations as irrelevant if “it is clear that the allegations in question can have no possible bearing on the subject matter of the litigation” or if “it can be shown that no evidence in support of the allegation would be admissible.” Cobell v. Norton, 224 F.R.D. 1, 2 (D.D.C. 2004). Here, some of the disputed allegations could become relevant as this case progresses through discovery as Starbucks has not established that the disputed allegations have no possible bearing to this litigation. Even if it had, though, relevance is not the standard for a motion to strike, and irrelevant information may remain in a complaint so long as it is not scandalous or prejudicial.. See NCB Mgmt. Servs., Inc., 843 F. Supp. 2d at 72 (rejecting a motion to strike irrelevant allegations that did not generate confusion or undue prejudice but did provide helpful context); Patton Boggs, LLP v. Chevron Corp., 791 F. Supp. 2d 13, 22 (D.D.C. 2011) (recognizing in a motion to strike that it is common practice “for parties to provide the court with a certain amount of background information that is not directly relevant to the merits of the claim or motion at issue. . . . ensur[ing] that the court understands the context in which the dispute arose”). The allegations about implicit bias (paragraphs 42-55) do not directly relate to Plaintiff’s claims. However, none of these allegations discuss or mention the Defendants and are therefore not directly prejudicial. They deal with extraneous concerns that can simply be ignored if irrelevant. See Patton Boggs, LLP, 791 F. Supp. 2d at 22 (“[N]one of the allegedly extraneous allegations . . . are potentially prejudicial . . . rather, they deal with matters that the Court simply need not consider in resolving the motion”). Regarding all the disputed allegations, the Court reminds the parties that matters alleged at the pleading stage must still meet the relevance standard before discovery can be compelled. 8 See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and is proportional to the needs of the case. . .”). And even if information concerning the disputed allegations were discoverable, this says nothing about whether such evidence would be admissible. These are matters for another day. Nevertheless, the Court finds that it is unnecessary to strike the disputed allegations at the pleadings stage. See also Makuch v. FBI, No. Civ. A. 99-1094 RMU, 2000 WL 915767 at * 1 (D.D.C. Jan. 7, 2000) (“[S]o long as the complaint states a claim and is otherwise legally sufficient, the efforts of the parties and the attention of the court are better spent on the substantive merits of the action rather than the contents of the pleadings”). Accordingly, the Court finds that the Defendant has failed to demonstrate that the disputed allegations are scandalous, detract from the dignity of the Court, or otherwise meet the standard required by Fed. R. Civ. P. 12(f). Thus, the Court will deny the Defendant’s motion to strike. Therefore, it is hereby ORDERED that Starbucks Corporation Motion to Strike (ECF No. 24) is DENIED. A separate order is contemporaneously filed. Dated: July 7, 2020 RUDOLPH CONTRERAS, United States District Judge 9 

37 A.3d 1230 (2011) FLICK v. INLAND WESTERN DUNCANSVILLE HOLLIDAY. No. 1946 WDA 2010. Superior Court of Pennsylvania. October 12, 2011. Quashed.

497 S.E.2d 392 (1998) 230 Ga. App. 640 YOH et al. v. DANIEL et al. No. A97A2175. Court of Appeals of Georgia. February 18, 1998. *393 Bandy & Stagg, Lawrence A. Stagg, Ringgold, for appellants. Sawyer & Sawyer, Horace K. Sawyer, Ringgold, for appellees. BEASLEY, Judge. Edward and Alison Yoh reneged on their contract to sell their residence to Frank and Julie Daniel, even though the Daniels (with the consent of the Yohs) had substantially improved the home in anticipation of the sale. The Daniels then received their earnest money back, which cancelled the contract. A jury awarded the Daniels $6,250 in general damages and $5,000 in attorney fees based on claims of unjust enrichment, quantum meruit, and conversion. 1. The Yohs first claim they were entitled to a new trial "because the actual damages awarded by the jury were greater than the damages testified to and presented as evidence at trial." We have often upheld jury awards exceeding the highest amount testified to at trial. Piedmont Builders v. Fullerton[1] upheld a verdict that was 25 percent more than the highest monetary estimate that could form the basis for damages. As stated, "[t]he jury ... is not bound by the exact limits of the evidence.... The jury may consider the nature of the property involved and any other facts or circumstances within their knowledge, and a verdict which exceeds or falls short of the value testified to will be sustained where there are sufficient facts in evidence from which they may draw a legitimate conclusion, and the verdict is not palpably unreasonable under all the evidence so as to be excessive as a matter of law."[2] Following the same reasoning, we upheld a jury verdict in Hogan v. Olivera[3] that was $2,865 more than the highest estimate.[4] The Daniels presented evidence (a) they purchased materials amounting to $2,000 to improve the house; (b) the Yohs had converted $1,000 in oriental rugs stored by the Daniels at the house; and (c) the Daniels had labored over 100 hours in improving and extensively cleaning the house. The jury had pictures and a detailed description of the work done or to be done. This evidence in toto authorized the jury to award the value of improvements to the house,[5] even if it exceeded the cost of the materials and labor. The Yohs argue the jury could not award the Daniels the value of their labor *394 because they testified they were not seeking their labor costs. But the Yohs misapprehend the measure for damages. "The unjustly enriched party should pay for its gain. [Cit.]"[6] 2. The Yohs' contend there was no legal basis for an award of attorney fees. This ignores the conversion claim for the oriental rugs the Yohs had taken or given away. Even though a conversion count was not separately set forth in the original complaint or in the pretrial order, the allegations and the evidence supported such a claim. Based on the evidence presented, the court, with no objection, announced this theory as a basis for recovery and later so instructed the jury, again with no exception.[7] A conversion claim is an intentional tort which will carry an award of attorney fees.[8] 3. The Yohs claim the court erred in not granting their motion for directed verdict on the quantum meruit and unjust enrichment claims. They argue the Daniels failed to show an anticipation of compensation. But there was evidence the parties anticipated there would be compensation. OCGA § 9-2-7 sets forth the statutory presumption that "[o]rdinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof."[9] The Yohs, who authorized the Daniels to improve the house, accepted the improvements by moving back in and living there. The Yohs were aware the Daniels were improving the house beyond the minimum required by the lender. The Daniels improved the house with the intention of personally benefiting therefrom and not as a gratuity to the Yohs. Furthermore, unlike quantum meruit, a claim for unjust enrichment does not require a showing of the anticipation of compensation. Quantum meruit relies on an implied promise of compensation.[10] This is in essence an implied contract.[11] Unjust enrichment differs. "Even if no express or implied contract arose between the parties, an obligation to pay arises upon the theory of unjust enrichment where a benefit has been conferred upon the party sought to be held liable for the value, which is analogous to quantum meruit in that the duty to pay arises out of the receipt of a benefit. A party cannot receive and retain the benefit of another's labor without the duty to pay for the reasonable value of such work."[12] Thus, Regional Pacesetters v. Halpern Enterprises[13] held a jury could find unjust enrichment where the plaintiff had improved the leased premises believing it had a five-year extension on its lease. Whether defendant "induced plaintiff to expend sums of money which unjustly inured to [defendant's] benefit is indeed a question of material fact" for the jury.[14] Because an implied contract is not necessary for unjust *395 enrichment, a showing of an expectation of compensation is not required.[15] The trial court did not err in refusing to grant a directed verdict. 4. Pursuant to OCGA § 5-6-6, the Daniels moved for damages for frivolous appeal. The Yohs never disputed they had unilaterally breached the real estate contract. The Daniels brought this action to recover for the improvements to the Yohs' house in anticipation of the sale and to recoup for items stolen by the Yohs. It does not appear that there was any valid reason for the Yohs to anticipate reversal of the trial court's judgment. We conclude that this appeal was brought only for purposes of delay. The Daniels' motion for ten percent damages for frivolous appeal is granted.[16] The clerk is directed to enter ten percent damages upon the remittitur. Judgment affirmed. SMITH, J., concurs. McMURRAY, P.J., concurs in the judgment only and dissents in part. McMURRAY, Presiding Judge, concurring in the judgment only and dissenting in part. While I agree that the judgment in this case should be affirmed, I cannot agree with all that is said in the majority's opinion and thus concur in the judgment only. Furthermore, I respectfully dissent to the majority's imposition of a penalty upon appellants. In my view, it has not been established that this appeal is wholly frivolous. Moreover, such an endeavor as exercised by the majority serves only to inflict a chill upon the appeal process and thus impedes justice. NOTES [1] 157 Ga.App. 126, 276 S.E.2d 277 (1981). [2] (Citations omitted.) Id. at 127(1), 276 S.E.2d 277. [3] 141 Ga.App. 399, 401-405(1)(d), 233 S.E.2d 428 (1977). [4] See Dept. of Transp. v. Driggers, 150 Ga.App. 270, 257 S.E.2d 294 (1979) (upholding verdict $4,333 more than highest estimate). [5] See Regional Pacesetters v. Halpern Enterprises, 165 Ga.App. 777, 782-783(2), 300 S.E.2d 180 (1983) (defendant must pay value of unjust enrichment). [6] White v. Arthur Enterprises, 219 Ga.App. 124(1), 464 S.E.2d 225 (1995); see Watson v. Sierra Contracting Corp., 226 Ga.App. 21, 28(c), 485 S.E.2d 563 (1997) (look from perspective of recipient). [7] See OCGA § 9-11-15(b) (pleadings are amended to conform to the evidence); Fruin-Colnon Corp. v. Air Door, 157 Ga.App. 804, 806(2), 278 S.E.2d 708 (1981) (evidence of new claim, received without objection, amends pleadings to include claim). [8] Stargate Software Intl. v. Rumph, 224 Ga.App. 873, 878(4), 482 S.E.2d 498 (1997). [9] See Watson, supra, 226 Ga.App. at 28, 485 S.E.2d 563. [10] Fortner v. McCorkle, 78 Ga.App. 76, 80(2), 50 S.E.2d 250 (1948) ("`from all the facts and circumstances it can reasonably be inferred that it is in the contemplation of the parties that the services are to be paid for'"); see Smith Dev. v. Flood, 198 Ga.App. 817, 820(3)(b), 403 S.E.2d 249 (1991) (services rendered gratuitously do not give rise to an implied promise). [11] Watson, supra, 226 Ga.App. at 28, 485 S.E.2d 563. [12] (Citations omitted.) Id.; see White, supra 219 Ga.App. at 124(1), 464 S.E.2d 225 ("The unjust enrichment doctrine provides that a party shall not be allowed to profit or enrich itself inequitably at another's expense."). [13] 165 Ga.App. at 782-783(2), 300 S.E.2d 180. [14] Id. at 783, 300 S.E.2d 180. [15] See also Ga. Tile Distrib. v. Zumpano Enterprises, 205 Ga.App. 487, 488-489(1), 422 S.E.2d 906 (1992) ("there is no inherent inconsistency in concluding that no contractual agreement was reached but one party has benefited at the expense of another who must in fairness be compensated"). [16] See Cunningham v. Tara State Bank, 212 Ga. App. 470, 471, 442 S.E.2d 18 (1994).

711 F.2d 1059 Slancov.United Counties Carpenters Dist. Council 82-3115, 82-3634, 82-3709 UNITED STATES COURT OF APPEALS Sixth Circuit 5/27/83 N.D.Ohio AFFIRMED

FILED NOT FOR PUBLICATION DEC 08 2009 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT DONALD JEROME GREEN, No. 08-16663 Plaintiff - Appellant, D.C. No. 2:06-cv-02107-FCD- GGH v. M. SHARP, MEMORANDUM * Defendant - Appellee. Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Jr., District Judge, Presiding Submitted November 17, 2009 ** Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges. Donald Jerome Green, a California state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that a prison guard violated his Eighth Amendment rights by failing to protect him from * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). tk/Research another inmate. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm. The district court properly granted summary judgment because Green did not raise a triable issue as to whether the prison guard knew that inmate Frazier posed a substantial risk of serious harm to Green. See Farmer v. Brennan, 511 U.S. 825, 837-39 (1994) (holding that a prison official cannot be found liable for deliberate indifference unless the official knows of and disregards an excessive risk to inmate health or safety). Green’s remaining contentions are unpersuasive. AFFIRMED. tk/Research 2 08-16663 

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD D. POMEROY, No. 18-35860 Petitioner-Appellant, D.C. No. 3:18-cv-00061-TMB v. MEMORANDUM* STATE OF ALASKA, Respondent-Appellee. Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding Submitted November 18, 2019** Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges. Former Alaska state prisoner Richard D. Pomeroy appeals pro se from the district court’s judgment dismissing his petition for a writ of error coram nobis. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for lack of jurisdiction, United States v. Monreal, 301 F.3d 1127, 1130 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (9th Cir. 2002), and we affirm. The district court properly dismissed Pomeroy’s petition challenging his Alaska state conviction for assault because coram nobis relief is not available in federal court to attack a state court conviction. See Hensley v. Municipal Court, 453 F.2d 1252, 1253 n.2 (9th Cir. 1972) (“Coram nobis lies only to challenge errors occurring in the same court.”), rev’d on other grounds, 411 U.S. 345 (1973). Pomeroy’s motion to waive the jurisdictional requirement is denied. AFFIRMED. 2 18-35860 

658 P.2d 999 (1983) 104 Idaho 328 STATE of Idaho, Plaintiff-Respondent, v. Anthony Carmen GALAVIZ, Defendant-Appellant. No. 14062. Court of Appeals of Idaho. February 8, 1983. Douglas R. Whipple of Herman E. Bedke, Burley, for defendant-appellant. David H. Leroy, Atty. Gen. by Lynn E. Thomas, Sol. Gen., and Lance D. Churchill, Deputy Atty. Gen., for plaintiff-respondent. *1000 SWANSTROM, Judge. Anthony Carmen Galaviz and a companion committed two armed robberies in the city of Burley on July 23, 1978. Apprehended that day with a pistol and the stolen money in his possession, Galaviz later pled guilty to both counts of robbery. After reviewing the presentence report, which indicated that Galaviz, then twenty-two years of age, had a prior juvenile and misdemeanor record, the district court sentenced him to two five-year concurrent terms for the robberies on September 1, 1978. In addition, pursuant to I.C. § 19-2520, the court imposed a three-year term, to be served consecutively, for Galaviz's use of a firearm during the crimes.[1] Nearly two years later, Galaviz filed a motion in the district court under Idaho Criminal Rule 35 to correct what he claimed was an illegal sentence. Galaviz based his claim on the Double Jeopardy Clause of the Fifth Amendment, asserting that the court illegally had exacted multiple penalties by imposing the two five-year terms for armed robbery and the additional sentence for the use of a firearm. Galaviz also asserted that the imposition of an enhanced sentence under I.C. § 19-2520 violated I.C. § 18-301. Finally, Galaviz challenged his sentence on due process grounds, contending that the information charging him with armed robbery did not give proper notice of the state's intention to rely on I.C. § 19-2520 for enhancement of his sentence. Galaviz contended that the lack of notice deprived him of the basis for making a knowing and intelligent decision to plead guilty to the charges. The district judge conducted a hearing and considered each of the issues raised by Galaviz. After the court entered its order denying Galaviz's motion, this appeal was taken and the same issues are raised again. We affirm the order of the district court. I The Fifth Amendment's Double Jeopardy Clause applies to the states through the Fourteenth Amendment. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The guarantee against double jeopardy encompasses three distinct constitutional protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Galaviz contends that by imposing an "additional" sentence for his use of a firearm the district court violated the third of these guarantees. Galaviz predicates this argument upon the language of the judgment of conviction. After imposing a five-year term for each count of robbery, the judgment continues: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant receive an additional three (3) years pursuant to I.C. § 19-2520 for the use of a firearm in the commission of the aforesaid crimes, said term to run consecutive to Counts I & II. Galaviz argues that the use of the word "additional" in this paragraph shows that he was illegally sentenced twice for the same underlying offense. Our Supreme Court has noted that I.C. § 19-2520 does not define or create a separate offense, but is merely a sentence enhancing statute that comes into play after a defendant is convicted of one of the enumerated *1001 offenses. State v. Cardona, 102 Idaho 668, 670, 637 P.2d 1164, 1166 (1981). In recent years many state and federal courts have had occasion to address constitutional challenges to statutes which, like I.C. § 19-2520, provide for enhanced sentences for felonies committed with the aid of firearms or other deadly weapons. In each case such statutes have survived arguments that the imposition of enhanced penalties violates the constitutional prohibition against multiple punishments. See e.g., May v. Sumner, 622 F.2d 997 (9th Cir.1980); Cordova v. Romero, 614 F.2d 1267 (10th Cir.1980); State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980); People v. Henry, 14 Cal. App.3d 89, 91 Cal. Rptr. 841 (1970); State v. Davison, 614 P.2d 489 (Mont. 1980); Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975); State v. Gabaldon, 92 N.M. 230, 585 P.2d 1352 (N.M.App. 1978); State v. Foster, 91 Wash.2d 466, 589 P.2d 789 (1979). The rationale the courts generally have adopted, in upholding enhanced penalty statutes, is that the statutes do not provide for multiple penalties but rather provide for a single more severe penalty when an offense is committed with a deadly weapon. In May v. Sumner, supra, for example, the appellant's punishment on each of two counts of robbery was enhanced pursuant to Cal.Pen.Code § 12022.5 because the jury found that he had used a firearm during the commission of both crimes. Rejecting a double jeopardy attack on the statute, the court concluded: The double jeopardy clause does not limit the legislature's power to impose sentences for a given crime. It is uncontested that the California legislature could have created a single offense which provided one sentence for simple robbery, a greater sentence for robbery with a deadly weapon, and a still greater sentence if the deadly weapon were a firearm. California chose to accomplish this result by two statutes instead of one. To strike down the scheme adopted by California in this case would "operate not as a substantive or penological restriction, but as a literary critique of the legislature." Cordova v. Romero, supra at 1269, quoting Note, Twice in Jeopardy, 75 Yale L.J. 262, 302 (1965). 622 F.2d at 999. The U.S. Supreme Court recently has laid to rest any doubt about the result reached in the cases cited above. In Missouri v. Hunter, ___ U.S. ___, 103 S.Ct. 673, 74 L.Ed.2d ___ (1983), the Supreme Court reversed a decision by the Missouri Supreme Court, which had held that Hunter could not be convicted in the same trial of both robbery in the first degree and armed criminal action, where the same acts of the defendant had been used to convict him of each charge. The U.S. Supreme Court upheld Missouri statutes which provided cumulative punishment for two separate crimes arising out of the same criminal conduct. The Court held that where the cumulative punishment is within the legislature's intent, it does not violate the Double Jeopardy Clause of the Fifth Amendment. At page 678 of 103 S.Ct., the Supreme Court said: With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. At page 678 of 103 S.Ct., the Court summarized its holding as follows: Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306] a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial. The Idaho legislature has chosen to fix different penalties for the crime of robbery — a lesser penalty where the crime is committed without the use of a deadly weapon, and a greater one where a deadly weapon is involved. The legislature has adopted two statutes rather than one to accomplish this result. *1002 The Idaho legislature clearly has intended to authorize the courts, under I.C. § 19-2520, to impose additional punishment for robbery where that crime is accomplished with use of a firearm. The penalty actually imposed upon Galaviz was well within the limits intended by the legislature. Consequently we hold that the sentence in this case did not violate the Double Jeopardy Clause of the Fifth Amendment. II We next consider Galaviz's contention that imposing a five-year sentence for robbery under I.C. § 18-6503 and an additional, consecutive three-year term under § 19-2520 violated § 18-301 of the Code.[2] In State v. Horn, 101 Idaho 192, 197, 610 P.2d 551, 556 (1980), our Supreme Court said: Idaho's multiple punishment statute, I.C. § 18-301, exceeds the scope of the constitutional constraints on double jeopardy. Under § 18-301 a defendant cannot be punished twice for the same act, rather than the same crime. If defendant's single action creates liability under two criminal statutes, defendant can only be punished under one statute. See State v. Brusseau, 96 Idaho 558, 532 P.2d 563 (1975). [Emphasis original.] It is important to note, however, that this statement by the court was part of a discussion as to whether the defendant Horn could be convicted for two crimes, robbery and kidnapping, arising out of one criminal episode. Although Horn had been convicted of each crime, the district judge imposed a sentence only for robbery. On appeal the Supreme Court upheld both convictions and the sentence. In our view, I.C. § 18-301 prohibits double punishment where a single act results in the commission of two or more crimes as defined by the legislature. Here there was only one crime — the robbery. As noted above, the legislature did not define or create any separate offense by enacting I.C. § 19-2520; it simply provided enhanced punishment where certain existing crimes were committed by use of firearms. Moreover, to the extent that there is any conflict between § 18-301 and § 19-2520, the latter statute is a more recent, special enactment. It specifically applies to the particular circumstances of this case. As such, under well-established principles of statutory construction, it must be controlling over the older and more general statute. See Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979); State v. Roderick, 85 Idaho 80, 375 P.2d 1005 (1962). See also People v. Henry, 14 Cal. App.3d 89, 91 Cal. Rptr. 841 (1970). We hold that § 18-301 is not a bar to the imposition of the enhanced sentence in this case. III Finally, we turn to the contention that the prosecutor's information in this case failed to inform Galaviz of the state's intention to seek enhanced punishment under I.C. § 19-2520. Our Supreme Court has stated that a criminal information must "properly inform an accused of the exact nature of the charge against him, so that (1) the accused has the means to prepare a proper defense, and (2) he can protect himself against subsequent prosecution based on the commission of the same acts." State v. McKeehan, 91 Idaho 808, 814, 430 P.2d 886, 892 (1967). Not only is this specificity requirement statutory, but it is also rooted deeply in constitutional guarantees. See State v. Gumm, 99 Idaho 549, 551, 585 P.2d 959, 961 (1978). The Fourteenth Amendment to the United States Constitution requires that an accused be given notice of the specific charge against him and be given "a chance to be heard in a trial of the issues raised by that charge." Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). *1003 The information filed against Galaviz contains two counts, both of which clearly and unequivocally accuse him of the crime of robbery and set forth the essential facts of the crimes. Both counts also specify that Galaviz used a pistol in commission of the crimes. As earlier noted, I.C. § 19-2520 does not define a separate substantive offense. It is intended only to provide for an enhanced penalty after the accused has been convicted of the underlying offense. Because the statute does not create a substantive offense, it was not necessary for the information to refer specifically to the statute. In State v. Angus, 581 P.2d 992 (Utah 1978), the Utah Supreme Court addressed an argument similar to the one Galaviz has made here. We have no disagreement with the proposition that fairness and due process of law require that the information against [the accused] be sufficient to clearly state the charge and bring him within the statutory penalty therefor. But his argument that the information must specifically set forth that the enhancement of penalty would be imposed if he was convicted is without merit. The punishment for a crime is not and has never been considered a part of the pleading charging a crime. The information is sufficient if it alleges either: (1) that the defendant is being charged under the enhancement statute, or (2) that a firearm was used in the commission of the offense charged in the information. The trial by jury is to determine the guilt or innocence of the defendant. After conviction, the penalty to be imposed is an entirely separate proposition to be determined by the court as a matter of law on the basis of the penalty prescribed by the statutes. 581 P.2d at 995; accord, State v. Davison, 614 P.2d 489, 497 (Mont. 1980). We agree with the view expressed by the courts in Angus and Davison. Moreover, in this case, the district judge specifically found that, at Galaviz's arraignment and before the guilty plea was entered, Galaviz had been advised by his own attorney, as well as by the court, that the penalty enhancement statute would apply. When the defendant's plea was taken, the judge again discussed I.C. § 19-2520 with Galaviz to determine that he understood the possible consequences of his plea. We uphold the judge's conclusion that Galaviz was fully aware of the enhanced penalty provisions of I.C. § 19-2520 before he entered his guilty plea, and that Galaviz made a knowing and intelligent decision to plead guilty. The judgment of conviction and sentences are affirmed. WALTERS, C.J., and BURNETT, J., concur. NOTES [1] Idaho Code § 19-2520 provides in part: Any person convicted of a violation of ... [enumerated felonies], or 18-6501 (robbery defined), Idaho Code, who carried, displayed, used, threatened, or attempted to use a firearm or other deadly weapon while committing the crime, shall, in addition to the sentence imposed for the commission of the crime, be imprisoned in the state prison for not less than three (3) nor more than fifteen (15) years. Such additional sentence shall run consecutively to any other sentence imposed for the above cited crimes. At the time relevant to Galaviz's convictions, this statute applied to felonies involving firearms only, not other deadly weapons. [2] Idaho Code § 18-301 states: An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.

354 F.3d 796 Reba HEBERT, Appellee,v.SBC PENSION BENEFIT PLAN, Non Bargained Program by and through the Plan Sponsor and Administrator SBC Communications, Inc., Appellant. No. 02-3671. No. 03-1072. United States Court of Appeals, Eighth Circuit. Submitted: September 12, 2003. Filed: January 12, 2004. Rehearing and Rehearing En Banc Denied: February 19, 2004*. Richard J. Pautler, argued, St. Louis, Missouri (Lewis R. Mills, on the brief), for appellant. Justin D. Pulikkan, argued, Kansas City, Missouri (Steven H. Mustoe, on the brief), for appellee. Before WOLLMAN, HEANEY, and RILEY, Circuit Judges. RILEY, Circuit Judge. 1 Reba Hebert (Hebert) was employed by Southwestern Bell Telephone Company (SW Bell), a subsidiary of SBC Communications, Inc. (SBC). Hebert sued the SBC Pension Benefit Plan (SBC Plan), seeking to add three years to her term of employment in calculating her benefits under the SBC Plan based on an amendment of the benefit plan by her prior employer, Pacific Telesis Group (PTG). SBC is the SBC Plan sponsor and administrator. The district court granted summary judgment to Hebert, concluding SBC abused its discretion in interpreting the SBC Plan. The district court also awarded Hebert attorney fees. SBC appeals, asserting it did not abuse its discretion in interpreting the SBC Plan, and the district court erred in awarding attorney fees. We reverse, vacate the district court's attorney fees award, and remand for entry of summary judgment for the SBC Plan. I. BACKGROUND 2 In 1971, Hebert began working for American Telephone & Telegraph (AT & T) in St. Joseph, Missouri. AT & T offered the Bell System Pension Plan to its employees. In the early 1980s, federal antitrust litigation split AT & T into independent companies. The division to which Hebert was assigned became PTG. Each independent company adopted a pension plan, and the Bell System Pension Plan assets were divided among the newly formed pension plans. To ensure the portability of employee benefits, the new companies entered into the Divestiture Interchange Agreement of January 1, 1984, and the Mandatory Portability Agreement of January 1, 1985 (Portability Agreements), which govern the recognition of pension benefits of certain employees who move between the newly created independent companies. 3 In 1990, PTG offered management employees a retirement incentive, the Management Retirement Opportunity Amendment (MRO Amendment). The MRO Amendment provided each employee a minimum benefit enhancement, adding three years to an employee's term of employment in calculating the employee's minimum pension benefit (three MRO years). Hebert accepted the MRO Amendment. In November 1990, Hebert resigned from PTG with 18 years, 7 months, and 13 days of actual service. Two days after leaving PTG, Hebert became employed by SW Bell, another newly created independent company formed by AT & T's breakup, and transferred her pension benefits under the Portability Agreements to the SBC Plan. 4 In 1999, Hebert contemplated retirement and requested SBC, acting as plan administrator, to calculate Hebert's SBC pension benefits. When calculating Hebert's pension benefits, SBC used paragraph 8.2.1(b) of the SBC Plan, and did not include the three MRO years. SBC did include the three MRO years in an alternative calculation under paragraph 8.2.1(a), although this calculation produced lower benefits. Hebert appealed the calculation to the SBC Plan Review Committee (Review Committee), asserting her term of employment should be increased by three years. The Review Committee denied Hebert's request. 5 Hebert filed this suit against the SBC Plan, asserting SBC abused its discretion by not including the three MRO years in calculating Hebert's pension benefits under paragraph 8.2.1(b). The district court granted summary judgment to Hebert, concluding SBC abused its discretion in interpreting the SBC Plan because SBC's interpretation (1) rendered language in the SBC Plan internally inconsistent by assigning different meanings to the term "all-service credit" and (2) contradicted the SBC Plan's clear language. The district court also awarded Hebert attorney fees. SBC appeals the district court's grant of summary judgment and award of attorney fees. II. DISCUSSION A. SBC's Interpretation of the SBC Plan 6 We review a district court's summary judgment de novo. Interstate Cleaning Corp. v. Commercial Underwriters Ins. Co., 325 F.3d 1024, 1027 (8th Cir.2003). We will affirm a district court's grant of summary judgment if the record demonstrates no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Interstate Cleaning, 325 F.3d at 1027. 7 Because it is undisputed "[the SBC Plan] gives [SBC] discretionary authority to determine eligibility for benefits or to construe the terms of the plan," we review the denial of benefits for an abuse of discretion, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), and reverse SBC's decision only if it is arbitrary and capricious, Brumm v. Bert Bell NFL Ret. Plan, 995 F.2d 1433, 1437 (8th Cir.1993). We uphold SBC's interpretation of the SBC Plan if it is reasonable. Id. SBC's interpretation "is not unreasonable merely because the reviewing court disagrees with it." Fletcher-Merrit v. NorAm Energy Corp., 250 F.3d 1174, 1180 (8th Cir.2001). 8 This controversy involves SBC's interpretation of paragraph 8.2.1 of the SBC Plan, which states as follows: 9 If the [SBC Plan] provides for the computation of monthly pension benefits in a different manner than that provided under [the PTG Plan], [Hebert's] monthly pension benefit under [the SBC Plan] shall equal the greater of 10 (a) the sum of 11 (1) the monthly pension benefit determined for all service credit included in [Hebert's] Pension Service Credit under [the PTG Plan], in accordance with the provisions of such plan ..., plus 12 (2) the monthly pension benefit determined for all periods of Pension Calculation Service [Hebert] was covered by [the SBC Plan], or 13 (b) the monthly pension benefit determined for all service credit included in [Hebert's] Pension Service Credit under [the PTG Plan] and all Pension Calculation Service during which [Hebert] was covered by [the SBC Plan], in accordance with the provisions of the Plan. 14 (Emphasis added). Both parties agree paragraph 8.2.1(b) provides Hebert with the greatest amount of pension benefits, regardless whether the three MRO years are included in paragraph 8.2.1(b)'s calculation. 15 SBC interpreted paragraph 8.2.1(a) to include Hebert's three MRO years in computing Hebert's benefits. However, SBC interpreted 8.2.1(b) not to include Hebert's three MRO years in computing Hebert's benefits. SBC based its differing interpretations on how the "in accordance" phrases are used in paragraphs 8.2.1(a)(1) and 8.2.1(b). 16 To determine if SBC's interpretation of paragraph 8.2.1 is reasonable, we consider five factors: (1) whether SBC's interpretation is consistent with the SBC Plan's goals; (2) whether SBC's interpretation renders any of the SBC Plan's language internally inconsistent or meaningless; (3) whether SBC's interpretation conflicts with ERISA's substantive or procedural requirements; (4) whether SBC has consistently interpreted the words at issue; and (5) whether SBC's interpretation is contrary to the SBC Plan's clear language. Finley v. Special Agents Mut. Benefit Ass'n, 957 F.2d 617, 621 (8th Cir. 1992). The above factors need not be examined in any order as each factor presents us with a discrete inquiry. Hutchins v. Champion Int'l Corp., 110 F.3d 1341, 1344 (8th Cir.1997). 17 SBC's interpretation does not render any of the SBC Plan's language internally inconsistent or meaningless and is not contrary to the SBC Plan's clear language. Under paragraph 8.2.1(a)(1), a portion of Hebert's pension benefit and Pension Service Credit are determined "in accordance with the provisions of such plan." The phrase "in accordance with the provisions of such plan" refers to the PTG Plan as modified by the MRO Amendment. Under the PTG Plan's MRO Amendment, for the purpose of computing benefits, Hebert's "term of employment shall equal [Hebert's] term of employment as of [Hebert's] MRO Effective Date increased by three years." Thus, for computing Hebert's benefit under paragraph 8.2.1(a)(1), Hebert receives the full benefit of the three extra MRO years. 18 Two interpretations arguably exist regarding the calculation of Hebert's PTG Pension Service Credit under paragraph 8.2.1(b), because a comma separates the phrase "in accordance with the provisions of the Plan" from the remainder of the sentence. The phrase "in accordance with the provisions of the Plan" clearly refers to the SBC Plan. Under one interpretation, the phrase "in accordance with the provisions of the Plan" could modify the phrase "[Hebert's] Pension Service Credit under the [PTG Plan]." Under this interpretation, SBC looks to the SBC Plan's Pension Service Credit definition to determine whether Hebert's three MRO years are used to calculate her benefits under the SBC Plan, and the Pension Service Credit clearly does not include the three extra MRO years. Under another interpretation, the phrase "in accordance with the provisions of the Plan" could modify the term "monthly pension benefit." Under this interpretation, the phrase simply specifies the SBC Plan's formula is used to calculate benefits, while Hebert's Pension Service Credit under the PTG Plan would be calculated by referring to the PTG Plan. SBC adopted the first interpretation of paragraph 8.2.1(b). We conclude SBC's interpretation is reasonable and logical. 19 Two other reasons reveal SBC's interpretation is reasonable. First, the SBC Plan's drafters could have included the modifier "in accordance with the PTG Plan" after the Pension Service Credit in paragraph 8.2.1(b), as the drafters did in paragraph 8.2.1(a)(1). Second, the PTG Plan does not define Pension Service Credit. Without such a definition, it would be difficult to determine Hebert's Pension Service Credit in calculating Hebert's benefits under the SBC Plan. 20 We now turn to SBC's application of the SBC Plan's Pension Service Credit definition to Hebert. Under the SBC Plan, a service credit must be recognized for eligibility, accrual, and vesting to be a Pension Service Credit. SBC asserts the three MRO years do not qualify as a Pension Service Credit because the three MRO years were not recognized, inter alia, for vesting. The MRO Amendment contains no provision stating whether the three MRO years can be used to vest an employee's pension. With the MRO Amendment's silence on the vesting of the three MRO years, we cannot conclude SBC's interpretation rendered terms of the MRO Amendment or the SBC Plan internally inconsistent with or contradictory to the clear language of the MRO Amendment or the SBC Plan. 21 We conclude the remaining Finley factors do not suggest SBC abused its discretion. Aside from conclusory or circular arguments, nothing before us suggests SBC's interpretation is inconsistent with the SBC Plan or its goals. Finally, no contention exists that SBC's interpretation violates ERISA. Paragraph 8.2.1(a) preserves Hebert's benefits under the PTG Plan by giving her the full benefits accorded her under the PTG Plan, including the three MRO years, plus any benefits accrued under the SBC Plan. Paragraph 8.2.1(b) actually provides Hebert greater benefits, because of the larger multiplier used under paragraph 8.2.1(b) of the SBC Plan.1 B. Attorney Fees 22 We review a district court's award of attorney fees for an abuse of discretion. Fletcher-Merrit, 250 F.3d at 1181. In determining whether attorney fees should be awarded in an ERISA suit, a court considers the following factors: 23 (1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorneys' fees; (3) whether an award of attorneys' fees against the opposing parties could deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys' fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal [question] regarding ERISA itself; and (5) the relative merits of the parties' positions. 24 Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th Cir.1984) (per curiam); see Brown v. Aventis Pharm., Inc., 341 F.3d 822, 828-29 (8th Cir.2003). "An abuse of discretion occurs when the district court `commits a clear error of judgment' in weighing the relevant factors." Fletcher-Merrit, 250 F.3d at 1181 (citations omitted). 25 Weighing the relevant factors: first, SBC's reasonable interpretation of the SBC Plan does not constitute culpable conduct; second, SBC's ability to pay the attorney fees is not sufficient to support an award of attorney fees when the other factors weigh against an attorney fees award, see id.; third, the award would not deter any culpable conduct; fourth, Hebert never sought to benefit other participants and beneficiaries and never sought to resolve a significant legal issue specific to ERISA; and fifth, SBC's position had merit. Given our holding that SBC's interpretation is reasonable, we vacate the award of attorney fees. III. CONCLUSION 26 For the foregoing reasons, we reverse the district court's grant of summary judgment to Hebert, vacate the district court's award of attorney fees, and remand for entry of summary judgment in favor of SBC. Notes: * Chief Judge Loken took no part in the consideration or decision of this matter 1 SBC does not receive a windfall, because Hebert's benefits under paragraph 8.2.1(b) are greater than the benefits she would receive under paragraph 8.2.1(a), using the three extra MRO years

2 Ill. App.3d 837 (1972) 277 N.E.2d 769 GEORGE A. RUSSOW et al., Plaintiffs-Appellants, v. LEON A. BOBOLA et al., Defendants-Appellees. No. 71-24. Illinois Appellate Court — Second District. January 11, 1972. *838 *839 *840 Ostrom & Johnson, of Glen Ellyn, for appellant. Donovan, Dichtl, Atten, Mountcastle & Roberts, of Wheaton, Robert A. Cox and Delbert S. Lyle, both of Glen Ellyn, for appellee. Affirmed in part, reversed in part and remanded. Mr. JUSTICE SEIDENFELD delivered the opinion of the court: This action arises from the sale of a house by the defendant Bobolas to the plaintiff Russows. The plaintiffs seek rescission of the deed and punitive damages, alleging that the defendants fraudulently misrepresented and concealed material information of water and flooding conditions in connection with the sale. In September of 1967 the Russows went to the office of Glenshire, Inc. seeking to purchase a home, and were taken to the Bobola home by Glenshire employee Barbara Wiggins, formerly Barbara Swanson. The listing agreement for the sale of this house named Harold Dato, the president of Glenshire, Inc., as the broker. After five visits to the home, plaintiffs purchased it. Since then the basement and garage have flooded to depths of 30 to 50 inches on ten occasions. Glenshire, Inc., alleged with Dato to be the agent of the Bobolas, was dismissed as a party defendant some five months prior to trial on the ground that no cause of action was stated against it. The trial court hearing the case without a jury found for the remaining defendants at the close of the plaintiffs' evidence. Plaintiffs appeal from both orders. They also contend that the court erred in denying them leave to amend and in disallowing testimony concerning their attorneys fees and expenses. At the trial, testimony established that during the twenty-five months that the Bobolas owned the house, it had twice flooded approximately thirty inches. Glenshire employees were informed in both instances, and Harold Dato may have had personal knowledge of one such incident. However, no mention of the floods was made during the five times plaintiffs visited the house prior to the consummation of the sale. In fact, shortly before the sale, the Bobolas had washed off and painted over all of the water marks left by the floods. While plaintiffs never inquired whether the house flooded, they did ask whether the drain outside the garage was adequate. Mr. Russow says Mr. Bobola answered that it was; while Mrs. Russow says Bobola answered that it was not, but that there was another large sewer across the way, and that there was talk that more sewers would be installed. • 1 In ruling on the motion to dismiss at the close of the plaintiffs' evidence, the evidence presented, together with all reasonable inferences, must be considered in the light most favorable to the plaintiffs, and if there is any substantial evidence tending to prove the plaintiffs' allegations, *841 the motion must be denied. City of West Frankfort v. Fullop (1955), 6 Ill.2d 609, 617. • 2, 3 Fraud has been said to comprise anything calculated to deceive, including all acts, omissions and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another (Majewski v. Galling (1959), 17 Ill.2d 92, 99.) This deception may consist of a single act or combination of circumstances, suppression of truth or suggestion of what is false, direct falsehood or innuendo, speech or silence, look or gesture. People v. Gilmore (1931), 345 Ill. 28, 46; Citizens Savings & Loan Ass'n v. Fischer (1966), 67 Ill. App.2d 315, 322. The trial court found that there was insufficient evidence on which to base an action for misrepresentation against any of the defendants. It appears from his remarks at the time the decision was rendered that the court felt that the only affirmative statement of whether or not the drain was adequate was actually an expression of opinion rather than fact and that the plaintiffs relied on their own judgment when they purchased the home rather than upon any statement or silence by the defendants. • 4-6 We cannot agree that this is a proper assessment of the involvement of the Bobolas. What is determinative as to the Bobolas is not merely what they said, but what was left unsaid under the particular combination of circumstances in the record. While silence in a business transaction does not generally amount to fraud, mere silence is quite different from concealment. Silence accompanied by deceptive conduct or suppression of material facts results in active concealment, and it then beomes the duty of a person to speak. In such case, if a party to a contract of sale does not disclose the whole truth, having the requisite intent to deceive, this amounts to fraud equally with an affirmative falsehood. (Forest Preserve Dist. v. Christopher (1943), 321 Ill. App. 91, 105, 106; Leonard v. Springer (1902), 197 Ill. 532, 538; Kohl v. Lindley (1866), 39 Ill. 195, 201.) The Bobolas not only failed to tell the plaintiffs that the house had flooded twice, but washed and painted away all water marks which were visible after the floods, thus leaving no indication that the house had problems of this nature. This conduct tended to mislead the plaintiffs and substantially affected their power to make a knowledgeable judgment in purchasing the house. In addition, the statement by Bobola, in answer to a question by Mrs. Russow as to the reasons for the sale, that he would be moving to the East after he had qualified for a bonus at his place of employment, when in fact he admitted that he at no time intended to go to New York, seemed also calculated to deceive the purchasers. Moreover, Bobola's answer as to the adequacy of the drain indicated that the drainage system was adequate, when in fact he *842 knew the drainage to be inadequate by reason of the two floods he had experienced. While it is true that the plaintiffs had a duty of inquiry regarding the premises and are chargeable with all knowledge which an examination conducted with ordinary care would provide, the matter undisclosed here is of such a nature that it would not be readily apparent from an inspection of the property. (See Hustad v. Cerny (1926), 321 Ill. 354, 359; Halla v. Chicago Title & Trust Co. (1952), 412 Ill. 39, 46.) There is sufficient evidence of active concealment by the Bobolas to require reversal of the trial court's order granting their motion to dismiss at the close of the plaintiff's evidence. • 7 Of course, this is not to say that the defendants are guilty of fraud, but only that there is sufficient evidence in the record to preclude a dismissal at this stage of the proceedings. Should the court then find these defendants guilty of fraudulent conduct, it must grant that relief necessary to do equity, which may include an award of damages if rescission is no longer practical under the circumstances of this case. See Industrial Nat. Gas Co. v. Sunflower Nat. Gas. Co. (1947), 330 Ill. App. 343, 361-362; Pritchard v. Wilcox (1942), 314 Ill. App. 132, 139. • 8 In contrast, Harold Dato made no statement regarding the flooding or drainage of the house, and took no active steps to conceal the situation. There is controversy over whether he even knew water had entered the house. Plaintiffs have not presented sufficient evidence to require Dato to defend a charge of fraud. • 9-12 Plaintiffs contend that the motion judge erred in dismissing Glenshire on the pleadings and also erred in refusing to reinstate it as a party defendant on the day of trial. We cannot agree with either contention. First, in our view the record does not present sufficient evidence to require Glenshire to defend a charge of fraud. No Glenshire employee made any statement as to flooding or drainage, and Barbara Wiggins' silence fell far short of active concealment. In any event, we cannot say that the trial court abused its discretion by denying the motion, when it was not made until more than five months after the order of dismissal was entered, and on the day of trial. (Brockob Const. Co. v. Trust Co. of Chicago (1955), 6 Ill. App.2d 565, 570.) Nor can we say that the motion judge erred in dismissing Glenshire on the pleadings. A motion to dismiss admits facts well pleaded, but not conclusions of law or fact unsupported by allegations of specific facts upon which such conclusions rest. (Pierce v. Carpentier (1960), 20 Ill.2d 526, 531.) Plaintiffs' second amended complaint states that the Bobolas contracted with Harold Dato and Glenshire to become Bobolas' agents in the sale of the house. But Exhibit A, attached to the complaint, sets forth the agency contract, and lists only Dato as the real estate broker. Glenshire's name is not present. Such complaint *843 does not sufficiently allege an agency relationship between the Bobolas and Glenshire, and Glenshire was properly dismissed as a party defendant. • 13 The court also did not abuse its discretion in denying the motion of the plaintiffs to amend as the case was called for trial and at the close of the plaintiffs' case. Again, the trial judge was acting within his discretion in denying the amendment because of the delay. Moreover, since we have found that Dato was not liable in fraud, the amendment charging that Glenshire was his agent would serve no purpose. • 14, 15 We affirm that portion of the order of the court below which resulted in the dismissal of Count II of the amended complaint, which charged wilful and wanton misconduct. We find no basis in the record for awarding punitive damages against any defendant. Likewise, the court did not err in refusing to allow evidence of plaintiffs' attorneys fees and expenses and in denying their offer of proof in that regard. In the absence of any applicable statute, and none has been shown, there is no basis for the allowance of attorneys fees and costs in this litigation. When an award of punitive damages is authorized, expenses and attorneys fees may be considered in estimating the amount of damages but are not allowable in addition to the sum assessed as exemplary damages. (See Ritter v. Ritter (1943), 381 Ill. 549, 553-556; Boss v. Coe Inv. Co. (1964), 45 Ill. App.2d 417, 423, 424.) See also House of Vision, Inc. v. Hiyane (1969), 42 Ill.2d 45, 51.) Our conclusion that the record does not support exemplary damages precludes the assessment of attorneys fees and costs as an element of punitive damages. That portion of the judgment below which dismisses the complaint as against the defendants, Harold E. Dato and Glenshire, Inc., is affirmed. That portion of the order below which dismisses the complaint as to Count II of the second amended complaint is also affirmed. The portion of the judgment which dismisses plaintiffs' complaint against the defendants Leon A. Bobola and Raphaela Bobola at the close of all of the evidence offered by the plaintiff is reversed. To this extent the cause is remanded for further proceedings consistent with this opinion. Affirmed in part, reversed in part and remanded with directions. MORAN, P.J., and ABRAHAMSON, J., concur.

546 F.2d 423 U. S.v.Curry No. 75-2104 United States Court of Appeals, Fourth Circuit 11/8/76 1 E.D.N.C. AFFIRMED

66 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.UNITED STATES of America, Plaintiff-Appellee,v.Victor MANZO-FIGUEROA, Defendant-Appellant. No. 94-10575. United States Court of Appeals, Ninth Circuit. Submitted Sept. 11, 1995.*Decided Sept. 14, 1995. 1 Before: BEEZER and THOMPSON, Circuit Judges and QUACKENBUSH, District Judge.** ORDER 2 Victor M. Manzo-Figueroa appeals his conviction of illegal reentry after deportation subsequent to a conviction for commission of an aggravated felony in violation of 8 U.S.C. Sec. 1326(b)(2). He argues that because he was not provided with due process at his deportation hearing the district court erred in failing to suppress evidence of the hearing. In this circuit, a defendant who is seeking to exclude evidence of a deportation order must demonstrate both a deprivation of due process and prejudice. United States v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992) (en banc). Manzo-Figueroa does not contend that he was prejudiced by the denial of due process and instead urges us to ignore circuit precedent and conclude that a showing of prejudice is not required. Because we may not do so, see Nichols v. McCormick, 929 F.2d 507, 510 n. 5 (9th Cir.1991), we affirm. 3 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4 ** The Honorable Justin L. Quackenbush, Senior United States District Judge for the Eastern District of Washington, sitting by designation

In the United States Court of Appeals For the Seventh Circuit No. 00-2188 United States of America, Plaintiff-Appellee, v. Ramon L. Cruz, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99-CR-205--Charles N. Clevert, Judge. Argued November 15, 2000--Decided November 30, 2000 Before Posner, Easterbrook, and Kanne, Circuit Judges. Posner, Circuit Judge. The defendant was sentenced to 75 months in prison for possession with intent to distribute 156 grams of heroin. 21 U.S.C. sec. 841(a)(1). He challenges his sentence on the ground that he was eligible for a sentencing discount as a minor or minimal participant in the conduct that resulted in his arrest and conviction. See U.S.S.G. sec. 3B1.2. The defendant carried the 156 grams by train from New York to Milwaukee, where he was arrested. It appears that he was part of a larger operation; he may indeed have been only a courier; but no one else involved in his offense was arrested, and as a result he was charged only with possession with intent to distribute the 156 grams; nor was any other aspect of the larger operation of which his transportation of the heroin may have been a part deemed relevant conduct affecting his sentence. When no conduct of other participants in a criminal scheme is attributed to a defendant for purposes of sentencing, our cases hold that he is not entitled to a sentencing discount because he is a minor or minimal participant in some larger criminal activity of which the conduct for which he is being punished is a part. E.g., United States v. Almanza, 225 F.3d 845, 846 (7th Cir. 2000); United States v. Hamzat, 217 F.3d 494, 497 (7th Cir. 2000); United States v. Isienyi, 207 F.3d 390, 392 (7th Cir. 2000). This is the view of most of the other circuits as well, as noted in United States v. Almanza, supra, 225 F.3d at 846. Cruz asks us to reexamine our position, noting that two other circuits reject it. United States v. Snoddy, 139 F.3d 1224, 1230-31 (8th Cir. 1998); United States v. Demers, 13 F.3d 1381, 1385-86 (9th Cir. 1994). But these decisions have been discussed and either distinguished or rejected in the cases in our court cited above, and so they provide no basis for overruling those cases. In any event we think our position is correct. An example will show why. Imagine two defendants, each a courier for a drug ring. One of the drug rings is very large, is in fact international in scope. The other is very small, is in fact entirely local. Defendant A, who is part of the large ring, possesses 156 grams of heroin with intent to distribute. Defendant B, who is part of the small ring, possesses 156 grams of heroin with intent to distribute. Both are charged just with that possession, and in sentencing the judge gives no weight to the activities of the other members of the ring. Nevertheless, on Cruz’s submission, A should receive a lighter sentence than B because he is part of the larger ring, implying that the other participants are bigger fry relative to him than the other participants in B’s conspiracy are relative to B. We cannot see the logic of that position. The defendants’ conduct is identical, and they are being punished just for that conduct and not for the conduct of anyone else. To differentiate their punishment on the basis of activity unrelated to their culpability would be arbitrary. Indeed, to punish more lightly the participant in the more serious conspiracy strikes us as downright perverse. Affirmed. 

4 N.Y.3d 836 (2005) PEOPLE v. WEIR Court of Appeals of the State of New York. March 31, 2005. Application in criminal case for leave to appeal denied. (Graffeo, J.).

992 So.2d 1034 (2008) SUCCESSION OF Kenneth Eugene CARROLL. No. 2008-C-1631. Supreme Court of Louisiana. October 24, 2008. Denied.

Citation Nr: 1132132 Decision Date: 08/31/11 Archive Date: 09/07/11 DOCKET NO. 08-13 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran, M. M. and A. M. ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active service from January 1966 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case has previously come before the Board. In January 2010, the matter was remanded to the agency of original jurisdiction (AOJ) for additional development. The case has been returned to the Board for further appellate review. The Veteran was afforded a hearing before a hearing officer at the RO in September 2008. A transcript of the hearing has been associated with the claims file. FINDING OF FACT The competent and probative evidence does not establish a peripheral neuropathy in the lower extremities. CONCLUSION OF LAW Peripheral neuropathy of the lower extremities was not incurred or aggravated during service and may not be presumed to have been incurred by such service, and is not proximately due to or the result of service-connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Criteria Service connection may be granted for disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. 38 C.F.R. §§ 3.303, 3.304 (2010). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than the ones listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson' disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (2010); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Initially, the Board finds substantial compliance with the January 2010 remand. The Veteran was afforded a VA examination, additional treatment records have been associated with the claims file, to the extent possible, and the claim was readjudicated. Thus, the Board will proceed with a decision in regard to the matter on appeal. The Veteran asserts he has a peripheral neuropathy of the lower extremities as a result of service. Having reviewed the record, the Board finds service connection is not warranted. In this case, the Board finds the competent and probative evidence does not establish the Veteran has or has had a peripheral neuropathy of the lower extremities at any time during the relevant period. Absent a current disability, service connection is not warranted. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The July 2010 VA examiner specifically stated that there is no convincing evidence of a peripheral neuropathy of the lower extremities. Rather, the results of EMG (electromyogram) and NCV (Nerve conduction study) were remarkable for prolonged F waves and long duration high amplitude changes consistent with lumbar stenosis. The Board notes that while an October 2006 record states peripheral neuropathy in the feet was diagnosed in 2006, no objective findings accompany the statement. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). In addition, the April 2007 VA examination report reflecting a diagnosis of diabetes mellitus, type II, with "numbness feet" does not establish a diagnosis of peripheral neuropathy. The Board notes that a June 2005 VA record notes no focal weakness or numbness, and an October 2006 VA record reflects degenerative disc disease, cellulitis of the foot and osteoarthritis in multiple sites, disorders for which the Veteran is not service connected. In addition, on examination of the feet in July 2007, the examiner reported that pulses in the feet were palpable, with no feet ulcers or leg edema noted, and monofilament sensation was noted to be intact. Further, no leg edema was reported in January 2008. In addition, Social Security Administration (SSA) records reference arthritis of the spine, anxiety and schizophrenia, as well as service-connected diabetes mellitus, and an August 2010 VA record reflects tardive dyskinesia. The July 2010 VA examiner noted that given the Veteran's stiffness and complaints of fatigue, consideration should be given as to reevaluation of his medication, namely Risperdone. Regardless, the competent objective evidence does not establish a peripheral neuropathy of the lower extremities. In this case, the Board finds the objective evidence, to include clinical test results, along with the competent and probative 2010 VA opinion, does not establish that the Veteran has or has had a peripheral neuropathy of the lower extremities at any time during the relevant period. Rather, the greater weight of this evidence demonstrates that he does not currently have peripheral neuropathy of the lower extremities. Thus, service connection is not warranted under any theory of entitlement, to include on a presumptive basis as a result of exposure to Agent Orange during service in Vietnam, or secondary to service-connected disability, to include service-connected diabetes mellitus, type II. A determination as to whether the Veteran has current disability related to service or service-connected disability requires competent evidence. The Veteran is competent to report his symptoms to include numbness in the feet. As a layman, however, his opinion alone is not sufficient upon which to base a determination as to diagnosis and/or a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that the Veteran in this case in not shown to have medical expertise. In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009), the Federal Circuit stated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Instead, under section 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: a layperson is competent to identify the medical condition; the layperson is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson reaffirms the holdings in Jandreau and Buchanan that VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. This does not mean, however, that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence. The Court has specifically indicated that lay evidence may establish the existence of a current disorder capable of lay observation, to specifically include varicose veins, tinnitus, and flat feet. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); and Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In this case, the Board has accorded more probative value to the competent and probative July 2010 VA medical opinion to the effect that the Veteran does not have peripheral neuropathy of the lower extremities. The examiner reviewed the claims file, and provided a rationale for the opinion based on objective findings, reliable principles, and sound reasoning. The preponderance of the evidence is against the claim of entitlement to service connection for a peripheral neuropathy of the lower extremities, and there is no doubt to be resolved. Consequently, the benefits sought on appeal are denied. ORDER Service connection for peripheral neuropathy of the lower extremities is denied. REMAND The Veteran asserts entitlement to a psychiatric disorder. Having reviewed the evidence, the Board finds further development is necessary. Initially, the Board notes that while the April 2011 supplemental statement of the case states that VA treatment records show no current treatment for paranoid schizophrenia, an August 2010 VA treatment record associated with the claims file following the Board's January 2010 remand, shows a diagnosis of chronic schizophrenia with medications noted to include Risperdone. In addition, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that a claim for service connection for one psychiatric disorder should be addressed as encompassing any other psychiatric disorder which may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In this case, the Board finds the Veteran's claim for service connection for a psychiatric disorder includes a claim for service connection for PTSD and/or related symptoms. In that respect, in a September 2008 statement, a family member stated that the Veteran had posttraumatic stress disorder (PTSD) as a result of service, noting that upon his return, he awoke from nightmares screaming and had panic attacks. In addition, a February 2006 VA treatment record notes the Veteran's history of having problems upon returning from Vietnam, at which time he began hearing voices. In an August 2007 statement in support of the claim, the Veteran asserted that studies have shown that anxiety has been related to exposure to Agent Orange and that he has anxiety as a symptom of schizophrenia. In addition, testimony at hearing in September 2008 is as follows: Veteran: I was in Vietnam for 27 months. Representative: Twenty-seven months? Veteran: Yes sir. I extended right up to my ETS date. Representative: And you told me that during that time, you we[r]e under mortar fire and rocket attacks? Veteran: Yes sir, rocket attacks and mortar attacks. Representative: And sniper attacks? Veteran: When the rockets and mortar attacks let up, we would get a 50 caliber machine gun in the back of the jeep and drive out to the perimeter of the compound that I was on, and get in to our sand bag bunkers. It was usually one to five o'clock in the morning when we got hit. And we were supposed to fire on anything that came along that road. And you couldn't tell what it was. But we did get fired back upon. But as far as I know, nobody was ever hurt. Representative: Okay. Now, the[r]e was a fellow soldier that was hit by a helicopter blade? Veteran: Yes sir. [A] good friend of mine, and I can't recall his name right now. He worked on the over night crew on a Chinook helicopter that we had. He worked as a mechanic. And I was the unit supply sergeant, one of the supply sergeants in the supply room. And he used to come in every day and talk to me for 10 to 15 minutes just to pass time. And one night, he was working on a helicopter. And I guess that he forgot that the blade was turning, and he raised up, and the blade hit him in the head and knocked his safety helmet off and knocked him 20 feet, killing him instantly. And I heard about it the next morning, and I wanted to go view the body and bi[d] him farewell, so to speak. They had a media hospital right there on the post. And there was a sergeant in charge of our supply room who outranked me and wouldn't give me permission to go. So, I didn't go. And later on, he told me, you can go now. You can go see him now. And I said, yes, you tell me that after they have already flown him out. And he just had a smile on his face. And I called him a SOB even though he outranked me. And he jumped up and went to the first sergeant's office orderly room. And they called me down there and told me, you need to watch what you say around him because you know more about that supply room than he does. And he would like to see you out of there. So I didn't get a chance to bid my friend goodbye or anything. And they just [f]lew him off, and that was it. Representative: Now, what base was this on? Where were you located? Veteran: [V]ung Tau. It was on the end of the peninsula out in the South China Sea, 50 miles from [Saigon]. Representative: Do you know about what month and year this might have happened? Veteran: I went over the[r]e in January of 1967, and I would say that it was at least a year later. Representative: Okay. So, somewhere in 1968 probably? Veteran: Yes. It was in 1968 or the first part of 1969 because I came back in May of 1969. Transcript at 4-5 (2008). The AOJ has not attempted to verify the claimed in-service stressors, and the Veteran's 201 personnel file is not associated with the claims file. In addition, the Board notes that while the December 2006 rating decision reflects the AOJ's determination that the Veteran did not engage in combat with the enemy via notation of combat code "1", his DD Form 214 shows that he served in Vietnam, that his last duty assignment was "24th CMB AVIATION BN", and that his decorations and awards include a Vietnam Campaign Medal. Section 1154(b) aids a combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Regardless, for purposes of verification of an in-service event, the United States Court of Appeals for Veterans Claims (Court) has held that a veteran only needs to offer independent evidence of an event that is sufficient to imply his or her personal exposure. Suozzi v. Brown, 10 Vet. App. 307 (1997); see also Pentecost v. Principi, 16 Vet. App. 124 (2002). The Board notes that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2009); a link, established by medical evidence, between current symptoms and an in-service stressor; and, credible supporting evidence that the claimed in-service stressor occurred. 38 U.S.C.A. § 1154 (West 2002); 38 C.F.R. § 3.304(f) (2010). The Board further notes that, effective July 12, 2010, VA has amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) to the effect that if the claimed stressor is associated with the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Accordingly, the case is REMANDED for the following action: 1. Associate the Veteran's 201 personnel file with the claims file. 2. After completion of the above to the extent possible, schedule the Veteran for a VA examination with a psychiatrist to determine the nature and etiology of identified psychiatric disorders, to include schizophrenia. The claims file must be available in for review in conjunction with the examination and the examiner's attention should be directed to this remand. All necessary tests should be accomplished. The AOJ should request that the examiner express an opinion as to whether psychosis had an onset during service or within the initial year after separation and/or an opinion expressed in terms of whether it is "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood) that any psychiatric symptoms/disorders identified at any time during the appeal period are attributable to in-service disease or injury, to include exposure to Agent Orange, or otherwise related to service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. In light of the above, the claim should be readjudicated. The AOJ should ensure all directives in this remand have been accomplished, to the extent possible, to include review of any medical opinion obtained for completeness and to make certain that a response to all questions posed has been provided, and if not, further development should be undertaken in that regard. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the Veteran afforded a reasonable opportunity in which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4207 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEO ANTONIO SMITH, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:08-cr-00101-1) Submitted: May 13, 2010 Decided: June 7, 2010 Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Samuel D. Marsh, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leo Antonio Smith pled guilty without a plea agreement to distributing cocaine base (crack), in violation of 18 U.S.C. § 841(a)(1) (2006). The district court imposed a thirty-four- month sentence, an upward variance from the sentencing guidelines range of ten to sixteen months. On appeal, Smith challenges the sentence, claiming that the district court imposed a substantively unreasonable sentence and that the district court should have used a beyond a reasonable doubt standard to justify an upward variance. He also questions whether the district court erred by failing to append a written statement of reasons to its written judgment. We affirm. A sentence is reviewed for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). This review requires consideration of both the procedural and substantive reasonableness of a sentence. Id.; see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After determining whether the district court properly calculated the defendant’s advisory guideline range, this court must decide whether the district court considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding that, while the “individualized assessment 2 need not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular case . . . and [be] adequate to permit meaningful appellate review”). Properly preserved claims of procedural error are subject to harmless error review. Lynn, 592 F.3d at 576. If the sentence is free of significant procedural error, the appellate court reviews the substantive reasonableness of the sentence. Id. at 575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). In this case, we conclude that the district court did not err in varying upward to a sentence of thirty-four months. The court considered testimony from eleven witnesses and based its decision on Smith’s extensive pending state criminal charges, propensity for violence toward women, bond violations, drug use, and gunplay. The court analyzed Smith’s behavior within the framework of the § 3553(a) factors and determined that the above sentence was necessary to promote respect for the law, protect the public, and deter Smith’s criminal conduct, as well as the criminal conduct of others. We further find that the district court correctly relied on a preponderance of the evidence standard when considering the facts underlying its decision for an upward variance. See United States v. Morris, 429 F.3d 65 (4th Cir. 2005). In the context of factual proof at sentencing, this court relies on a preponderance of the evidence standard. 3  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 

Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 1-25-2008 Ali v. Mcanany Precedential or Non-Precedential: Non-Precedential Docket No. 06-3283 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Ali v. Mcanany" (2008). 2008 Decisions. Paper 1706. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1706 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 06-3283 _________ IMANUEL BASSIL ALI, Appellant v. JOHN MCANANY, Nurse Supervisor; TAMMY HOFFMAN, Nurse; LT. HAYWOOD; CPT. HALL, RHU Commander; DENISE HELVERDING, Nurse; SHARON D’ELETTO, Grievance Coordinator; L.S. FOLINO, Superintendent _________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 06-cv-00096) District Judge: Hon. Donetta W. Ambrose __________________________ Submitted under Third Circuit LAR 34.1(a) on August 16, 2007 Before: BARRY, CHAGARES and ROTH, Circuit Judges (filed: January 25, 2008 )  _________ OPINION _________ PER CURIAM Appellant, Imanuel Bassil Ali, proceeding pro se and in forma pauperis, appeals an order of the United States District Court of Western Pennsylvania dismissing Ali’s civil rights claims. For the reasons stated below, we will affirm the District Court’s order in part, vacate in part, and remand for further proceedings. Ali, an inmate at the State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania, filed suit under 42 U.S.C. § 1983 alleging violations of the First, Eighth, and Fourteenth Amendments of the United States Constitution. The defendants named in his original and amended complaints are prison nurses Tammy Hoffman and Denise Helverding, Nurse Supervisor John McAnany, Corrections Officers Lt. Haywood and Capt. Hall, Grievance Coordinator Sharon D’Eletto, and Superintendent L.S. Folino. In January 2004, while incarcerated at SCI-Greene, Ali was ordered to undergo a blood extraction procedure for the purpose of providing the Commonwealth with a DNA sample. He alleges that difficulties arose during the course of this procedure because he is afflicted with a medical condition known as rolling veins. According to Ali, Hoffman made two attempts to draw blood by puncturing Ali’s right arm and left hand with a hypodermic needle. After these attempts failed, Hoffman allegedly recommended the use of an oral swab to obtain a DNA sample and stated to those present that no further attempts should be made to 2 draw blood. McAnany allegedly disregarded Hoffman’s advice and tried two more times to draw blood. The second attempt was successful. As a result of the repeated attempts to draw blood, Ali claims that he suffered from severe pain and that visible injuries developed in the area of his puncture wounds. He claims that McAnany violated the Eighth Amendment’s prohibition against cruel and unusual punishment and that Hoffman, Lt. Haywood and Capt. Hall also violated the Eighth Amendment by failing to intervene on Ali’s behalf during the procedure. He also asserts an Eighth Amendment claim against Helverding for failing to process his sick call request slips, and against D’Eletto and Folino for not appropriately responding to his grievances regarding the medical care he was receiving for his injuries.1 The Pennsylvania Department of Corrections, acting on behalf of McAnany, Haywood, Hall, Helverding, D’Eletto and Folino, filed a motion to dismiss Ali’s Eighth Amendment claims for failure to state a claim upon which relief may be granted; Hoffman filed a separate motion to dismiss. The Magistrate Judge assigned to the case issued a Report and Recommendation (“R&R”) advising the District Court to grant the motions to dismiss. Over Ali’s objections, the District Court issued an order adopting the R&R in its entirety. Ali timely appeals that decision.2 1 On appeal, Ali also challenges the constitutionality of the prison’s policy calling for the use of a hypodermic needle rather than a swab kit to obtain a DNA sample. We will not address this claim because he did not assert it in his amended complaint. 2 The order being appealed did not dispose of Ali’s First Amendment claims. Ali has since successfully moved to withdraw his First Amendment claims, thereby rendering the District Court’s order final and appealable. See Aluminum Co. of Am. v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir. 1997) (“Even if the appeals court would have lacked jurisdiction 3  Our review of the District Court’s judgment is plenary. Curay-Cramer v. Ursuline Acad., 450 F.3d 130, 133 (3d Cir. 2006). We must liberally construe a complaint filed by a pro se litigant. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Furthermore, we must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff.” Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). First, we address Ali’s claim against Helverding, who is identified in the amended complaint as the nurse responsible for collecting sick call slips from inmates residing in the restricted housing unit at SCI-Greene. Ali claims that Helverding “exercised deliberate indifference to Ali’s serious medical needs by continually refusing to accept/process his sick call slips bearing his true surname in conjunction with his commit name and number.” Amend. Compl. ¶ 29. Ali allegedly submitted a sick call slip to Helverding the day after the blood extraction requesting medical attention for “excruciating pain, swelling, inflam[m]ation, and skin breakage” in the area of his puncture wounds. Amend. Compl. ¶¶ 16-17. He waited two days for a response before submitting a second sick call slip. Helverding then allegedly informed Ali that the first request was discarded because he signed the document with the surname “Ali” rather than his name of commitment and that she would not process the second request for the same reason. Ali maintains that both slips bore his at the time an appeal was filed, the court has jurisdiction if, as a result of subsequent events, there are no longer any claims left to be resolved by the district court.”). We therefore have jurisdiction under 28 U.S.C. § 1291. 4 name of commitment in addition to “Ali,” and that Helverding had previously processed sick call requests containing both surnames. We conclude that the amended complaint states a cognizable Eighth Amendment claim against Helverding. A prison official violates the Eighth Amendment by denying or delaying reasonable requests by an inmate for medical treatment, provided the challenged conduct constitutes deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987). The allegations in the amended complaint indicate that Ali was suffering from a serious medical need at the time he presented the sick call slips to Helverding. See Spruill, 372 F.3d at 235-36. The allegations also suggest that Helverding deliberately and arbitrarily refused to process Ali’s requests for medical attention. In addressing the claim against Helverding, the Commonwealth does not cite to any prison regulations that indicate that the form of Ali’s requests was improper. Nor does the Commonwealth address the allegations regarding Helverding’s prior acceptance of sick call slips bearing both of Ali’s surnames. We therefore do not find support in the record for the Magistrate Judge’s determination that Ali, rather than Helverding, was responsible for the delay in receiving medical care. As to the allegations against the remaining defendants, we conclude that the amended complaint fails to state a claim upon which relief may be granted. First, the District Court correctly ruled that the amended complaint does not state a congizable Eighth Amendment 5 claim against McAnany. An Eighth Amendment violation occurs where a prison official unnecessarily and wantonly inflicts pain on an inmate in a manner that offends contemporary standards of decency. See Hudson v. McMillian, 503 U.S. 1, 8 (1992). The Eighth Amendment is always violated “when prison officials maliciously and sadistically use force to cause harm.” Id. at 9. The facts set forth in the original and amended complaints indicate that McAnany made two attempts at obtaining a blood sample with a hypodermic needle and that he ceased engaging in the offending conduct after his second attempt at drawing blood proved successful. Because these allegations do not give rise to a reasonable inference that McAnany inflicted the two puncture wounds for the purpose of causing Ali harm, we conclude that the District Court correctly granted the motion to dismiss as to McAnany. Next, Ali argues that Hoffman, Haywood, and Hall acted improperly during the blood extraction by failing to “intervene immediately to protect Ali from further injury by McAnany.” Amend. Compl. ¶ 28. According to Ali, these parties had a duty to intervene analogous to the duty of corrections officers to take reasonable steps to protect an inmate from excessive force inflicted by another officer. See Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). As we noted in Smith, such a duty only arises where an officer is presented with a “reasonable and realistic opportunity to intervene.” Id. We reject the claims against Haywood and Hall because Ali has not pled facts indicating that these defendants had a reasonable and realistic opportunity to protect Ali from the force inflicted by McAnany. Specifically, there is no indication that the officers witnessed the alleged misconduct, had 6 reason to know that excessive force was being used, or could have reasonably prevented further harm through their intervention. The claim against Hoffman is also subject to dismissal because she is not a corrections officer and thus did not have a duty to intervene under the rule acknowledged in Smith. Ali also claims that D’Eletto and Folino violated the Eighth Amendment by not immediately responding to his administrative grievance challenging the adequacy of the medical care he was receiving for his injuries. In the grievance, which is attached to the amended complaint, Ali admits that a physician’s assistant examined the injuries on two occasions. Because Ali was clearly under medical care at the time he submitted the grievance, D’Eletto and Folino did not exhibit deliberate indifference in violation of the Eighth Amendment by failing to issue a suitable response to the grievance. See Spruill, 372 F.3d at 236; Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993). For the foregoing reasons, we will affirm the judgment in part, vacate the judgment in part, and remand to the District Court for further proceedings consistent with this opinion.3 3 Ali has filed a motion to dismiss Hoffman’s brief as untimely. Inasmuch as Hoffman’s brief was filed in accordance with this Court’s scheduling order, we deny the motion. Ali has also filed a motion requesting this Court to convert the motion to dismiss into a reply brief. We grant this motion. 7 

966 So.2d 971 (2007) WYNN v. STATE. No. SC07-1646. Supreme Court of Florida. September 6, 2007. Decision without published opinion. Rev. dismissed.

987 So.2d 656 (2006) JENNIFER PENROD TAYLOR v. JOSHUA DALE TAYLOR. No. 2040512. Court of Civil Appeals of Alabama. April 7, 2006. Decision without opinion. Reh. denied.

704 N.W.2d 177 (2005) STATE of Minnesota, Respondent, v. Todd SKIPINTHEDAY, Appellant. No. A04-1293. Court of Appeals of Minnesota. September 27, 2005. *179 Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Michelle Dietrich, Redwood County Attorney, Redwood County Courthouse, Redwood Falls, MN, for respondent. John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, Minneapolis, MN, for appellant. Considered and decided by KALITOWSKI, Presiding Judge; SHUMAKER, Judge; and MINGE, Judge. OPINION GORDON W. SHUMAKER, Judge. Appellant challenges his sentence on three counts of being an accomplice after the fact. Appellant argues that there were not multiple victims of his three offenses, even if there were multiple victims for the offenses committed by the principals, and that because the conduct was part of a single behavioral incident, appellant could be sentenced on only one count. Because we hold that the victims of the principal offenses are not victims of appellant's crimes, the single-behavioral-incident rule applies and appellant can receive only one sentence for his three convictions. We affirm in part, reverse in part, and remand. FACTS On July 12, 2003, appellant Todd Skipintheday, James Mata, Itanca Henry, and Kimberley Berry drove from Minneapolis to the Redwood Falls area. Skipintheday brought a bag of clothing into which Mata put a pistol and ammunition. The group obtained a motel room in Morton, where they initially left the pistol. They retrieved the pistol later when they decided to go to a party where they knew members of the Native Mob street gang would be present. Mata and Henry were members of the Native Gangster Disciples, a rival gang. At the party, Henry and Mata argued with Hunter Parker, Michael O'Brien, and Jarvis Wabasha. Ultimately, Parker, O'Brien, and Wabasha were shot. Wabasha died from his wounds. Skipintheday was present during the arguments and shootings but did not participate in them. After the shootings, Henry, Mata, Berry, and Skipintheday fled in a car that Berry drove. Skipintheday yelled to her, "Let's get out of here. We got to go." And he advised her that, "You didn't see anything." Skipintheday noticed that Mata had a pistol different from the one he had brought to the party. The police stopped the fleeing car. Skipintheday removed the ammunition from the pistol and hid it and the gun in separate locations in the car. When the police questioned Skipintheday, he denied involvement in the shootings and any gang connections, and he misidentified Itanca Henry as Robert Henry to protect him from an outstanding federal arrest warrant. The state charged Skipintheday with several crimes relating to the shootings. *180 He entered a plea agreement under which he pleaded guilty to being an accomplice after the fact to first-degree murder, attempted second-degree murder, and first-degree assault for the benefit of a gang. Each charge related to a different victim. The remaining charges were to be dismissed, and there was no agreement as to sentencing. In his plea, Skipintheday admitted that he hid the gun and ammunition and that he gave false statements to the police with the intention of aiding those who had done the earlier shootings. Because these accomplice-after-the-fact crimes were not ranked under the Minnesota Sentencing Guidelines, the district court assigned the following rankings: (1) assault in the first degree for the benefit of a gang — Level VII; (2) murder in the first degree — Level VIII; and (3) attempted murder in the second degree — Level VIII. The court then sentenced each crime consecutively because each involved a separate victim. The sentences were for 48 months, 52 months, and 48 months respectively, for a total of 148 months. On appeal, Skipintheday challenges the propriety of consecutive sentencing and of the enhanced sentence for a crime committed for the benefit of a gang. ISSUES 1. Appellant pleaded guilty to being an accomplice after the fact to first-degree murder, attempted second-degree murder, and first-degree assault, involving three separate victims and arising out of the same behavioral incident. The court imposed three consecutive sentences under the multiple-victim exception to the single-behavioral-incident rule. Did the court properly determine that the victims of the principal crimes were also victims of the after-the-fact crimes? 2. Was it proper for the court to enhance a sentence on the ground that the crime was for the benefit of a gang without allowing appellant to have the facts supporting the enhancement determined by a jury? ANALYSIS A district court's sentencing decision will be overturned on appeal only if there has been a clear abuse of the court's discretion. State v. Schmit, 601 N.W.2d 896, 898 (Minn.1999). Skipintheday argues that the district court abused its discretion in various respects in imposing consecutive sentences. He contends that his crimes constituted a single behavioral incident to which no exception applies; that his crimes were not crimes against persons but were against the administration of justice; and that the court improperly determined that he committed accomplice after the fact to an assault committed for the benefit of a gang. He argues that his sentences should be vacated and the matter remanded for resentencing. 1. Single Behavioral Incident When a person's conduct constitutes more than one criminal offense, he may be punished for only one of the offenses. Minn.Stat. § 609.035, subd. 1 (2002). The purpose of the statute is to limit punishment to a single sentence when a single behavioral incident results in the violation of multiple criminal statutes. State v. Brown, 597 N.W.2d 299, 305 (Minn.App.1999), review denied (Minn. Sept. 14, 1999). Skipintheday pleaded guilty to being an accomplice after the fact to three crimes. An accomplice after the fact is someone who, among other things, intentionally aids a criminal by concealing evidence *181 of a crime, providing misleading information about a crime, or otherwise obstructing the investigation or prosecution of a crime. Minn.Stat. § 609.495, subd. 3 (2002). Skipintheday admitted that, after the shootings, he made false statements to the police and he hid Mata's pistol and ammunition. He admitted that he did these things intentionally to aid the participants in the shootings. It is clear that Skipintheday's after-the-fact conduct constituted a single behavioral incident. The state concedes this, and the district court did not find otherwise. Thus, Skipintheday is entitled to a single sentence unless an exception to Minn.Stat. § 609.035 (2002) applies. 2. Multiple-Victim Exception The courts have created an exception to Minn.Stat. § 609.035 which allows the imposition of multiple sentences despite the existence of a single behavioral incident if the offenses involve multiple victims. State v. Bertsch, 689 N.W.2d 276, 286 (Minn.App.2004). The district court applied this exception in sentencing Skipintheday because each count to which he pleaded guilty involved a separate victim. Skipintheday argues that the multiple-victim exception does not apply because none of the victims of the shootings were directly harmed by Skipintheday's after-the-fact conduct. The state contends that no authority requires direct harm before a person may be classified as the victim of a crime. We do not see the concept of "victim" as turning on whether harm is direct or indirect. Absent a statutory or caselaw definition of the word, we turn to a common lexical meaning: A victim is a person harmed by a crime, tort, or other wrong. Black's Law Dictionary, 1561 (7th ed.1999). Applying that definition, the harm to O'Brien, Parker, and Wabasha occurred when the crimes against them occurred. And those crimes were completed before Skipintheday did the acts that constituted his crimes. None of the shooting victims were harmed any further, either directly or indirectly, by Skipintheday's after-the-fact conduct. Thus, there were no personal victims of Skipintheday's crimes, and, therefore, there could not be multiple victims of his crimes. Rather, we agree with Skipintheday's argument that his crimes were against the administration of justice and not against specific persons. The plain sense of section 609.495, subd. 3, is that certain after-the-fact conduct offends the justice system by thwarting the detection, investigation, or prosecution of a crime. Harm to a victim is inflicted when a crime is committed against that victim. That is so whether or not the perpetrator is ever apprehended or prosecuted or convicted. And that harm is addressed through the specific criminal penalties provided in the statute defining the crime that was committed against the victim. Although personal harm to a crime victim cannot be undone by the mechanisms of the law, the core value of justice can be vindicated if the criminal is punished for his nefarious act. Section 609.495, subd. 3, addresses the harm that may be done to society as a whole when after-the-fact conduct obstructs or burdens the vindication of the core value of justice. We note also that a person can be liable for the crimes of another if the person was an accomplice of the other. Minn.Stat. § 609.05, subd. 1 (2002). But the supreme court has held that an accessory after the fact is not an accomplice of the principal. State v. Swyningan, 304 Minn. 552, 555, 229 N.W.2d 29, 32 (1975). See also State v. Leja, 660 N.W.2d 459, 466 (Minn.App. 2003) (holding that it is impossible as a matter of law for a principal to also be *182 guilty of being an accomplice after the fact), rev'd on other grounds, 684 N.W.2d 442 (Minn.2004); State v. Sullivan, 77 N.J.Super. 81, 90, 185 A.2d 410, 415 (1962) (stating "[a]n accessory after the fact `cannot be charged, or punished as the principal offender. His offense is distinctly his own, and he is liable to a different punishment.. . .'") (citation omitted); People v. Hartford, 159 Mich.App. 295, 299, 406 N.W.2d 276, 278 (1987) (a defendant may not be convicted of the principal offense of murder and as an accessory after the fact to the same murder). Because there were no personal victims of Skipintheday's after-the-fact crimes and because he cannot be held liable for the crimes that did involve multiple victims, the district court erred in imposing separate sentences for the offenses to which Skipintheday pleaded guilty. 3. Crimes Against Persons The state argues that the crimes to which Skipintheday pleaded guilty were crimes against persons and therefore may be sentenced consecutively. See Minn. Sent. Guidelines II.F. But because we have concluded that separate sentences were not permissible, we need not determine whether they were properly made consecutive. In any event, we would apply the multiple-victim exception and would reject the state's argument on that basis. 4. Sentencing Issues a. Crime Subject to Sentencing Because we have determined that Skipintheday's three crimes arose out of a single behavioral incident to which the multiple-victim exception does not apply, the district court may properly impose only one sentence, even though all three convictions may stand. See State v. Papadakis, 643 N.W.2d 349, 358 (Minn.App. 2002) (when criminal conduct arises from a single behavioral incident, multiple convictions are permissible but multiple sentences are not). Although Minn.Stat. § 609.035 does not specify which of the multiple convictions is to be sentenced, sentencing policy contemplates that the court will sentence the conviction that carries the highest penalty: The policy underlying [Minn.Stat. § 609.305] appears to be that where the statute is applicable and defendant is convicted of multiple offenses, as a practical matter a single sentence will necessarily take into account all violations, and imposing up to the maximum punishment for the most serious offense will include punishment for all offenses. State v. Johnson, 273 Minn. 394, 399, 141 N.W.2d 517, 522 (1966). Presuming that the district court will impose a sentence that reflects this policy, the most serious offense is that of accomplice after the fact to murder in the first degree. But see State v. Alt, 529 N.W.2d 727, 731 (Minn.App.1995) (referring to Minn.Stat. § 609.035, the court of appeals said: "We conclude that the statute was not intended to limit the trial court's discretion in choosing the conviction on which to impose sentence."). b. Severity Level In the sentencing of a felony in Minnesota, the district court must impose the presumptive sentence for that crime under the Minnesota Sentencing Guidelines unless there are substantial and compelling reasons to depart from that sentence. Minn. Sent. Guidelines II.D. The presumptive sentence is the product of calculating the offender's criminal-history score and applying the severity level of the crime according to a sentencing grid. Id., II.C. *183 But here the crime of accomplice after the fact has not been given a severity-level ranking. Minn. Sent. Guidelines cmt. II. A.03. Thus, it was within the district court's discretion to determine an appropriate severity level. For the crime of accomplice after the fact to murder in the first degree, the district court assigned a severity level of VIII out of a possible 11 severity levels. In doing so, the district court relied on the guidance provided in State v. Kenard, 606 N.W.2d 440 (Minn. 2000). The district court made a thorough analysis of the gravity of the conduct underlying the unranked offense, the similarity of ranked offenses, the conduct and severity level assigned to other offenders for this offense, and the severity level assigned to others who have engaged in similar conduct. See id. The district court considered in detail the culpability of Skipintheday, reviewed other caselaw on the issue of sentencing this unranked offense, and applied statistical factors to determine the general pattern of sentences pertinent to the issue before it. The district court's thoughtful consideration of the ranking issue in the context of the purposes of the sentencing guidelines and its rational application of the principles underlying the guidelines to the crime to be sentenced, amply demonstrate that the district court did not abuse its discretion in concluding that the appropriate severity level for accomplice after the fact to first-degree murder is level VIII. c. Benefit-of-a-Gang Enhancement Of the three crimes to which Skipintheday pleaded guilty to being an accomplice after the fact, only the assault was charged as being committed for the benefit of a gang. However, Skipintheday was not charged with after-the-fact conduct for the benefit of a gang. See generally State v. Chuon, 596 N.W.2d 267, 270 (Minn.App.1999) (holding crime committed for the benefit of a gang is a substantive criminal offense), review denied (Minn. Aug. 25, 1999). Nevertheless, the district court applied a 12-month enhancement to the after-the-fact assault conviction. The state concedes that it was improper for the district court to add the enhancement, but argues that the court could nevertheless consider gang-related conduct in ascertaining the severity level of the unranked after-the-fact crime. The state asks for a remand for that purpose. We have determined that the district court's severity ranking of the only crime as to which it can properly impose a sentence was within the district court's discretion. And no enhancement of that sentence would be proper because Skipintheday would have a right to have a jury decide the facts supporting that enhancement. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). DECISION The district court erred in imposing three sentences for acts that were part of a single behavioral incident and in enhancing one sentence for a crime committed for the benefit of a gang. Those sentences are reversed. The district court properly exercised its discretion in assigning a severity level to the most serious of the three crimes and that determination is affirmed. The matter is remanded for resentencing on a single count. Affirmed in part, reversed in part, and remanded.

NUMBER 13-08-00643-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG IN THE INTEREST OF H.M.P. AND B.R.P., CHILDREN On appeal from the 267th District Court of Victoria County, Texas. MEMORANDUM OPINION Before Justices Yañez, Benavides, and Vela Memorandum Opinion by Justice Yañez Appellant, J.C., appeals the termination of her parental rights to her two children, H.M.P. and B.R.P. (1) By three issues, J.C. contends: (1) the evidence is legally and factually insufficient to support the trial court's finding that she committed three statutory grounds for termination; (2) the evidence is factually insufficient to support a finding by clear and convincing evidence that termination of J.C.'s parental rights was in the best interest of the children; and (3) "the trial court erred in its conservatorship determinations." We affirm. I. Background On January 24, 2007, J.C. took her two-month-old daughter, B.R.P., to the hospital because J.C found three nails in B.R.P.'s diaper. X-rays of B.R.P. were taken, and the doctor discovered that two nails remained in B.R.P.'s digestive tract. Fortunately, B.R.P. "passed" the nails without suffering any injury. (2) Based on this incident, a referral was made to the Texas Department of Family and Protective Services (TDFPS) alleging physical abuse and neglectful supervision. (3) On September 19, 2007, TDFPS filed an original petition for protection of a child, for conservatorship, and for termination in suit affecting the parent-child relationship requesting that (1) the children be removed from the parents' home, (2) TDFPS be appointed the temporary sole managing conservator of the children, and (3) if reunification with J.C. was not possible, termination of the parent-child relationship. The children were removed, and the trial court appointed TDFPS as temporary sole managing conservator. On November 6, 2007, in its temporary order following an adversary hearing, the trial court ordered J.C. to: (1) perform the requirements outlined in TDFPS's original service plan or any amended service plans filed with the trial court during the pendency of the suit; (2) "attend and cooperate fully in counseling sessions at Child-Family-Adult Counseling to address the specific issues that led to the removal of the children from the home"; (3) attend and successfully complete parenting classes; (4) "submit urine or saliva samples, at times to be determined by [TDFPS], for analysis by a drug testing laboratory"; and (5) pay child support in the amount of twenty dollars per month. On November 30, 2007, in a status hearing order, the trial court ordered that "the permanency plans and recommendations for the children, set out in the service plans filed with the [trial court], are approved and adopted by the [trial court] as if set out verbatim in this order." The trial court advised the parents, J.C. and M.P., that "progress under the service plan will be reviewed at all subsequent hearings, including a review of whether the parties have acquired or learned any specific skills or knowledge in the service plan." Under the terms of the service plan, J.C. was required, among other things, to: (1) "attend, participate in, and successfully complete" parenting classes; (2) "attend and cooperate fully in counseling services with [sic] to address the specific issues that led to the removal of her children and to address any additional issues that rise from the psychological evaluation"; (3) "appear at Mid-Coast Family Services and submit to and cooperate fully in the preparation of a drug and alcohol dependency assessment"; (4) "appear at the office of Dr. Michelle Moran and submit to and cooperate fully in the preparation of a psychc [sic]"; (5) pay child support; (6) participate in Battering Intervention & Prevention ("BIP") with Mid-Coast Family Services; and (7) "submit to random drug screenings performed by the caseworker or any other employee of [TDFPS]." In a permanency plan and permanency progress report filed with the trial court on February 26, 2008, TDFPS documented that although J.C. had not completed all the services in the plan, she was "eager to begin services" and had set up an appointment for parenting classes. It was further noted that J.C. had completed an alcohol and drug assessment, a psychological examination, and one random drug test. However, J.C. had not started parenting classes or individual counseling as ordered by the trial court. On March 7, 2008, in its permanency order, and in its March 7, 2008 permanency hearing order, the trial court found that J.C. had not "demonstrated adequate and appropriate compliance with the service plan." In a permanency plan and progress report filed on July 3, 2008, TDFPS stated that J.C. had completed her drug and alcohol assessment, and recommended that J.C. participate in out-patient treatment, parenting classes, random drug testing, and if she continued testing positive for drugs, inpatient treatment. According to the report, J.C. had submitted two random drug tests; the lab was unable to complete the first test and the second test was negative. On March 21, 2008, when the caseworker asked J.C. to perform a drug test, J.C. refused and admitted that she had used marihuana. Since that date, J.C. had refused to take any more drug tests. J.C. had neither completed nor participated in the BIP program, individual counseling, and parenting classes. On July 11, 2008, in a permanency hearing order, the trial court found that J.C. had "not demonstrated adequate and appropriate compliance with the service plan" and ordered J.C. to pay child support in the amount of $224 per month. The trial court set the suit for trial on August 26, 2008; a continuance was granted, and a bench trial was held on September 17-18, 2008. After hearing evidence, the trial court ordered the termination of J.C.'s parental rights to H.M.P. and B.R.P., appointed M.P. possessory conservator, and appointed TDFPS permanent managing conservator. The trial court found by clear and convincing evidence that termination of J.C.'s relationship with H.M.P. and B.R.P. was in the children's best interest and that J.C. had violated section 161.001 of the family code by: (1) knowingly placing or knowingly allowing the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; (2) failing to support the children in accordance with mother's ability during a period of one year ending within six months of the date of the filing of the petition; and (3) failing to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the children who were in the permanent or temporary managing conservatorship of TDFPS for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children. (4) J.C. filed a motion for new trial that was overruled by operation of law. This appeal ensued. II. Sufficiency of the Evidence By her first issue, J.C. contends that the evidence is legally and factually insufficient to support the trial court's findings that she violated subsections D, F, and O of section 161.001 of the family code. By her second issue, J.C. contends that the evidence is factually insufficient "for the trial court to conclude by clear and convincing evidence that termination of [J.C.'s] parental rights was in the best interest of the children." A. Applicable Law and Standard of Review Before terminating the parent-child relationship, the trial court must find that the parent committed an act prohibited by section 161.001(1) of the Texas Family Code and that termination is in the child's best interest. (5) Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent. (6) Therefore, termination of the parent-child relationship must be supported by clear and convincing evidence. (7) This intermediate standard falls between the preponderance of the evidence standard of civil proceedings and the reasonable doubt standard of criminal proceedings. (8) It is defined as the "measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." (9) In reviewing the legal sufficiency of the evidence supporting parental termination, we must "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." (10) We must assume that the trier of fact, the trial court in this case, resolved disputed facts in favor of its finding, if it was reasonable to do so. (11) We must also consider undisputed evidence, if any, that does not support the finding. (12) In a factual sufficiency review, "[w]e must determine whether, on the entire record, a fact-finder could reasonably form a firm conviction or belief that the parent violated a provision of section 161.001(1) and that the termination of the parent's parental rights would be in the best interest of the child." (13) Under this standard, we consider whether the "disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." (14) B. The Evidence Amy Phlaum, a caseworker with TDFPS, testified that she was briefly involved in J.C.'s case when TDFPS removed the children. Phlaum stated that because the children were able to acquire the nails that B.R.P. swallowed, there was a question of whether there was negligent supervision. There were also other referrals to TDFPS dealing with domestic violence in the family in another county. (15) TDFPS was unable to contact the family in that county because the family moved from county to county. (16) Eventually, TDFPS made contact with J.C., and Phlaum and her supervisor, Gretchen Johnson, met with J.C. on September 18, 2007 at the Victoria TDFPS office. At the meeting, services were offered to J.C., including, among other things, counseling, parenting classes, and alcohol-drug assessment intervention. By the end of the meeting, it was apparent that J.C. was not interested in the services that were offered. (17) Phlaum stated: [I]nitially, [J.C.] expressed being willing to do services, then as the contact progressed, she basically said that she would only do services if it was under a provider or under someone that she wanted to initiate it with. Then ultimately she said that she didn't want to do services at all and that we needed to contact her attorney. However, J.C. did not provide the name of her attorney. Phlaum testified that J.C. was belligerent, angry, and when TDFPS asked J.C. to perform a drug test, J.C. indicated that the drug test was not necessary because she would test positive for marihuana. J.C. claimed that she had last smoked marihuana two weeks earlier. TDFPS determined that the children were at risk and they were removed from the parents' custody. On cross-examination, Phlaum stated that TDFPS decided to remove the children because: (1) J.C. refused to comply with the service plan; (2) J.C.'s temper escalated and she became "out of control"; and (3) J.C. was not going to be able to take her psychotropic medication until November 8, 2007, which raised a concern about her mental state. (18) Phlaum testified that a parent's refusal of services alone is not a ground to remove the children and that the decision to remove the children is based on the parents' "track record of everything that led up to that point and [the caseworkers'] concerns, substantial concerns with regard to risk to the children." According to Phlaum, the family was difficult to locate; however, once TDFPS located the family, the children were removed on September 20, 2007. Sonia Cantu Gonzales, a caseworker with TDFPS, testified that she was assigned to this case on March 5, 2008. According to Gonzales, M.P. had completed most of the requirements of his service plan, except for three more sessions of BIP, and J.C. had completed her psychological examination and her drug and alcohol assessment. (19) However, J.C. had not completed the other requirements of her service plan. Gonzales testified that although she informed J.C. that under the terms of the trial court's temporary managing conservatorship order, J.C. was required to submit to random drug testing, J.C. continued to refuse to take the drug tests. According to Gonzales, J.C. stated that she would not take the drug tests because she had been using marihuana. (20) On one occasion, Gonzales had a drug test in her hand and asked J.C. to complete it; J.C. "grabbed" the drug test from Gonzales's hand and said, "Give me the f-ing test." Then J.C. yelled profanities and screamed at M.P. When J.C. calmed down, she told Gonzales that she had been "using" and that she did not understand "what was the big deal because she wasn't using in front of her children." Gonzales interpreted J.C.'s comment as meaning that it was okay to use drugs so long as she did not do it in front of the children. J.C. did submit to three random drug tests; however, beginning on March 21, 2007, she refused further testing. On July 11, 2008, at a permanency hearing, the trial court ordered J.C. to undergo a cheek swab test and complete a hair follicle test. Both tests were positive for marihuana, and when Gonzales discussed the results of the test with J.C., she admitted that she had smoked marihuana. Gonzales testified that J.C. missed her scheduled visitation with her children "maybe, a few times." J.C. notified Gonzales that she would not be present on one occasion because she did not want to see M.P., and on another occasion, J.C. explained that she did not have a ride. According to Gonzales, J.C. was originally ordered to pay child support in the amount of twenty dollars per month, but she did not pay anything during those months. Then on July 11, 2008, the trial court ordered support in the amount of two hundred twenty four dollars; J.C. paid six hundred five dollars and ninety cents of the total amount due leaving a balance of two hundred ninety two dollars and ten cents. Gonzales stated that there had been difficulty with J.C. at the visitations, including an incident when J.C. arrived at the visitation site, alone and crying. J.C. told Gonzales that she had been in an argument with M.P. and that he was not going to come to the visitation. J.C. informed Gonzales that she had slapped M.P. in the parking lot and that a man had witnessed the incident. M.P. arrived while J.C. was with the children, and he joined the visit. Gonzales "walked out" briefly and approximately five minutes later, M.P. walked out of the room and J.C. followed saying, "I can't believe you're going to leave. You're leaving. Look, he's leaving." Gonzales told J.C. not to yell in front of the children and that if M.P. wanted to leave, she should let him. When the visitation ended, a man that Gonzales believed worked at "Gulf Bend" came into the office and stated that M.P. and J.C. were arguing outside in the parking lot and that he saw J.C. "hitting [M.P.] in the face." (21) On another occasion, J.C. told the children that when they went home with her, she would take them to the beach. A case worker assistant asked J.C. not to make those types of promises to the children for fear of giving the children "false hope" that they would return home. J.C. "proceeded to get mad--why, why and . . . was kind of yelling again at that time." Gonzales also observed on one visitation that B.M.P. was "digging into J.C.'s purse" and while J.C. talked with H.M.P., J.C. did not notice that B.M.P. had taken out cigarettes from the purse. Finally, Gonzales saw that H.M.P. had a small earring in her mouth, and J.C. was asked to tell H.M.P. to remove the earring from her mouth. J.C. responded, "[W]ell she's not going to swallow it." Based on her observations, Gonzales stated it was her opinion that J.C. does not recognize inappropriate or potentially dangerous situations with the children. Stacy Marthiljohni, a case supervisor for "Golden Crescent CASA," testified that although she informed J.C. at one of the status hearings that J.C. needed to maintain contact with her, J.C. failed to do so. According to Marthiljohni, J.C.'s location was difficult to determine because she moved "back and forth;" however, J.C. had recently contacted Marthiljohni, and she visited J.C.'s home. Marthiljohni stated that the home was being remodeled and had ample space for the children. At the time, J.C. was living with a man who, according to Marthiljohni, "had a previous CPS case in Harris County." Marthiljohni stated that she observed J.C. exhibit inappropriate behavior in front of the children, such as confronting staff members, including Marthiljohni, and arguing with M.P. On one occasion, Marthiljohni, who was sitting across the room from J.C., told J.C. that she was an advocate for the children; J.C. responded, "Well, what are you f-ing doing in my face." Marthiljohni stated, "[T]his has been the most belligerent case that I have ever had to be on." On another occasion, Marthiljohni heard J.C. "cussing and yelling up and down the hallway because [M.P.] was leaving." J.C. stated, "Why are you f-ing leaving?" The children were upset and crying when they overheard this. Marthiljohni testified that it was CASA's recommendation that the trial court terminate J.C.'s parental rights to B.R.P. and H.M.P. and that there should be a "no contact" order because Marthiljohni was "concerned for the children's emotional well-being and health." Marthiljohni explained that termination was in the children's best interest because: [J.C.] has been unstable in maintaining her emotions around the children. She's been vulgar to me at a time when the children were present. They were in the same hallway. They were right down the hallway and she was yelling and cussing and that was on August 21[, 2008]. I have concerns with when I'm observing her in the visits sometimes she's not paying attention to both children. I have serious concerns with her ability to parent. . . . . I've had several conversations with [J.C.] and talked about the need to comply with services. She has not completed counseling. She's not completed parenting. She's not completed homemaker. There are a lot of things that she hasn't done that are not complicated services and they're at no cost to her. . . . To me that's a concern. . . . . [J.C.] has had continued drug use. She did test--well, she admitted to using in March and then she refused to test, refused to test, refused to test, and then boom, in July [2008] when she had to take the test outside of the courtroom, she took the test, threw a fit when she had to take the test and was cussing and was pretty upset outside. She took the test and then she had to take the hair follicle later that day. She did comply with those, but it was only because it was court-ordered. . . . . [J.C. tested] [p]ositive for marijuana. On August 21, [2008] she admitted, after she had cussed me out, she admitted that she had used marijuana three days prior and she admitted in front of [Gonzales] also. This was at the CPS office. . . . . [J.C.] had used marijuana during [H.M.P.'s] birth. Dr. Moran, psychologist for TDFPS, testified that she received a referral to perform a psychological examination of J.C. The referral indicated that "the initial concern was for the welfare of the child when she was found to have swallowed [some] nails." Dr. Moran stated that she was informed that "it was possible for an infant to swallow the nails due to a sucking reflex and . . . there was some suspicion that maybe [H.M.P.] had picked them up and maybe put them in [B.R.P.'s] mouth in an attempt to feed her." (22) In her psychological evaluation, Dr. Moran documented that the referral from TDFPS indicated that H.M.P. "had been found holding nails in her hand, and there were nails in her room as well." Dr. Moran considered the incident an "extremely dangerous" situation for B.R.P. During the psychological examination, J.C. indicated that she was undergoing psychiatric treatment and taking prescription medication because she had been diagnosed with bipolar disorder and post-traumatic stress disorder. J.C. admitted to Dr. Moran that there were periods of time when "she did not follow the doctor's orders and did not reliably take her medication." J.C. told Dr. Moran that her parents had abused drugs and that when she moved to her grandparents' home, "she had difficulty adjusting to the positive environment." J.C. stated that she began using marihuana and other drugs when she was a teenager and had "significant behavior problems at school and at home." J.C.'s behavioral problems when she was a student included: (1) noncompliance with authority; (2) difficulty maintaining self-control when angry; and (3) angry outbursts. (23) J.C.'s grandparents sought psychiatric treatment for J.C. At the age of sixteen, J.C. left her grandparents home and moved in with a boyfriend. Dr. Moran opined that J.C. is in need of ongoing psychiatric treatment and that although J.C. had received some treatment, "she really did not have . . . total symptom control." Dr. Moran believed that J.C. has "a tendency to have manic thought processes" and "some difficulties focusing her train of thought at that time." It was Dr. Moran's opinion that J.C. needed domestic violence classes, "parent training[,] and counseling" because J.C. needed to better understand her errors in judgment, such as her dysfunctional relationships and unstable living arrangements. J.C. also needed to establish employment. According to Dr. Moran, J.C., although "well-intentioned[,] had not yet achieved stability, more than a year, a year and a half nearly after [TDFPS] initially became involved and that was of concern to [Dr. Moran] given that [J.C.] was well aware that her children's custody depend[ed] upon her stabilizing her life in each of these areas . . . sobriety, psychiatric stability, stable relationships, stable home, et cetera." Due to J.C.'s unwillingness to make and maintain the necessary changes over a significant period of time, Dr. Moran was not "willing" to risk giving J.C. sole custody of the children; therefore, Dr. Moran recommended that joint custody be given to J.C. and M.P. J.C. acknowledged to Dr. Moran that she had used marihuana, but claimed that she had been sober since October 2007 and assured Dr. Moran that she would continue to maintain sobriety. J.C. was "aware that any recidivism into drug use would be considered an egregious form of instability and could result in termination of her parental rights" and that substance abuse caused a risk to her children. Dr. Moran stated that if someone with J.C.'s background and symptoms had lied about "sobriety from the use of marihuana," there would be "a dangerous risk to young children placed in [her] care." Dr. Moran elaborated, "[I]n particular with the psychiatric problems that [J.C.] has--use of any kind of illegal drugs or alcohol in combination with the psychotropic [medication] is inadvisable. It could present a risk to [J.C.'s] safety as well." When the children's attorney ad litem asked Dr. Moran if her recommendation would be affected if she knew that J.C. had tested positive for drugs on multiple occasions, Dr. Moran stated, Yes. It really would because [J.C.] acknowledged to me that part of the reason she believes she did not achieve system control as a teenager, even though her grandparents had her undergoing psychiatric treatment, was that she continued to use illegal drugs while taking or not regularly taking her medications. I had very much hoped that that knowledge would lead to a change in her adult behavior and help her recognize that this psychiatric disorder is extremely serious and needs to be managed in a very structured [manner], fashioned under medical opinion[,] and if I find that she has not been doing that and has been interfering with her brain chemistry through illegal drugs, which she herself posed a problem before, it raises very serious concern about any change that she states she had made. Dr. Moran opined that J.C. would require psychiatric treatment throughout her lifetime to ensure that she lives "a stable and drug-free lifestyle." Delores Tucker, who provides "parenting-homemaking services," testified that J.C. and M.P. had attended individual parenting sessions with her that included lessons in basic child development, behavior management, how to "follow-up" with the TDFPS service plan, and activities for parents and children. According to Tucker, J.C. and M.P. attended one session in February together, but thereafter, each parent attended individual sessions. (24) J.C. did not receive a certificate of completion and attended only five sessions where Tucker focused on helping J.C. "follow-through" on the service plan. Tucker stated, "I really had more concern with [J.C. following through on the service plan] versus how she was going to manage . . . the kids." During this period of time, Tucker was aware that J.C. was refusing to take the drug tests required by the service plan. Tucker identified plaintiff's exhibit 3 as M.P.'s certificate of completion of parenting class after thirteen sessions. Tammy Harger, the BIP program coordinator for "Mid Coast Family Services," testified that M.P. has attended twenty-one BIP sessions and at the time of the hearing, needed three more sessions; J.C. stopped attending the class on July 22, 2008 after attending ten sessions. By that time, J.C. had been offered eighteen sessions and had been "discontinued" from the class due to lack of attendance. J.C. had only paid forty dollars for two sessions; however, Tucker explained that she would not have excluded J.C. from attending classes even if she did not make the required payments. (25) Amy Faust, a licensed professional counselor, testified that she counseled both J.C. and M.P. The sessions were once a week with each parent individually. M.P. has attended all of his scheduled sessions except for one, when he had to leave town. (26) According to Faust, J.C. has attended three sessions; J.C. "no-showed for a session, meaning she missed a session without calling to cancel" and after missing a few more sessions, J.C. stopped contacting Faust. Based on her contact with J.C. and the reference materials supplied by TDFPS, Faust believed that J.C. needed "[s]ome parenting [classes], some substance abuse counseling perhaps, some relationship issues [counseling]." Faust stated that she had worked with M.P. on parenting skills, communication skills, relationship skills and stress and anxiety issues. Based on her experience with M.P., Faust believed that he had a grasp of the issues and was making progress on those issues. According to Faust, "[M.P.] learned some new things [regarding parenting]. . . .  [H]e looks at the concept of parenting from a little bit different perspective. . . .  [T]he idea of protecting his children . . . has changed a little bit. He's starting to see that they [the children] don't need just physical protection, but that they need emotional and mental protection as well." Faust stated that the children would be joining the counseling sessions with M.P. if he continued to progress. M.P., as a witness for TDFPS, testified that he pleaded guilty to assaulting J.C.; however, he claimed that he did not cause her physical injury. According to M.P., he had been "abused" by J.C. on numerous occasions and that during the "fights," he defended himself from her. M.P. understood, after completing BIP, that a man should not hit a woman. According to M.P., J.C smoked marihuana and there were instances where he smelled the faint scent of the drug in the bathroom. M.P. claimed that he observed J.C. under the influence of marihuana when he arrived home from work. M.P. stated, "I would come home and smell [marihuana] and it would start an argument. There's even been a time when I came home a little earlier. She was on the porch, had her joint in her hand. At that time I took it from her hand, ripped it up and threw it on the ground and called the cops." M.P. stated that he called the police because he did not want drugs around his children. M.P. testified that he was aware that J.C. smoked marihuana when she was alone with the children and that on those occasions, J.C. appeared "real relaxed." However, M.P. did not want to state that the children were ever harmed by J.C.'s use of marihuana. M.P. recalled that the family was at a restaurant, and H.M.P. was refusing to walk back to the table from the restroom. H.M.P. sat on the floor, and J.C. pulled H.M.P. by the hair back to her seat. H.M.P. sat at the table and cried; H.M.P. was not allowed to leave the table again. According to M.P., J.C. would sleep a lot during the day, and when he would go home for lunch, the children would be awake, while J.C. slept on the couch. M.P. also claimed that J.C. would yell "very loudly" at the children. J.C. testified that she has bipolar disorder and takes two hundred milligrams of "Lamictal." J.C. stated, the medication is "supposed to help me slow down my manic part. To help me--it wasn't supposed to rid the manic part because you just can't rid it. It was just supposed to level me." J.C. explained that she "had no reason" for not completing the parenting classes but that she did not have a phone and it was difficult for her to contact Tucker because she had to borrow her neighbor's phone. J.C. indicated that she was supposed to complete the BIP classes but that she stopped attending because she "lost her transportation" when M.P. moved out of the home. J.C. claimed that although she asked Gonzales to "get out of [her] face" in a "rude tone," she never used profane language. J.C. admitted that she has tested positive for marihuana, but claimed that she was sober when her children were born. J.C. explained that during her pregnancy, when she lived in Jewett, "CPS" was monitoring her and testing her for drugs. J.C. tested positive for marihuana when H.M.P. was born, but according to J.C., H.M.P. did not test positive for the drug. (27) J.C. stated that she was sober during her entire pregnancy with B.R.P. According to J.C., she began smoking marihuana again due to depression, but that she never smoked the drug "in front" of her children. J.C. stated that the smell of marihuana in the house was caused by her smoking it on the front porch of the home. She stated, "I would have a gate, a baby gate, and our couches were stationed--because we had an old house--on the sides so the only thing they would get in--the room was closed--was in the living room. They couldn't get through our house. I would sit outside and I would take a couple of tokes from a joint and then I would come inside my--usually [B.R.P.] was either having toys on the carpet playing around. I mean, I did bad for smoking it while they were there, but I never smoked it in front of them." (28) On cross-examination, J.C. clarified that the smell of marihuana drifted into the house because she left the door open with the child's gate attached. J.C. stated that during the past year that TDFPS had been involved in the case, she had refused to take three drug tests and had informed TDFPS that two of the tests were unnecessary because she would test positive for marihuana. J.C. claimed that although she refused to take the drug tests required by TDFPS, she went to the health department and took drug tests that were negative; however, J.C. did not bring documentation of the negative results to court. J.C. acknowledged that the trial court ordered her to take a cheek swab and hair follicle drug test and that she tested positive for marihuana. When asked by the children's guardian ad litem if she understood that she was not supposed to use any drugs to get her children back, J.C. responded, "Yes." J.C. agreed that marihuana use alters her state of mind; however, when asked if an altered state of mind could affect her care of the children, J.C. responded: Some people it's different. Not everybody is the same smoking. It's bad either way you look at it, yes, but some people it affects them differently. . . . . Some people it relaxes them. Some people, you know, there's different, you know, there's different things that marijuana can do, you know, because it's a chemical getting into your brain and people has [sic] different chemicals in their brain, therefore, it can affect somebody way worse than it could affect somebody--just mellow. I mean, there's different ways it could affect a person's ability or anything. . . . . When I meant mellow, I don't mean in a comastoke, [sic] you know, in a trance. I don't mean in a como, [sic] like, you know, like in a state where you're just like duh. I meant like relaxed as if, okay, you hear kids screaming or they want a toy or they're hungry or nothing. It would make me not so jumpy, or not so, you know, I would do what I got to do--I clean, you know, everything. I was quiet with my kids. I played with my kids. I mean it wasn't right that I was on the drug, but I wasn't pulling out my hair, screaming, yelling, hitting, nothing like that; nothing like that, but . . . I was under the influence. J.C. further stated, "[I]t wasn't that I smoked a whole joint. I took a couple of hits and it was--I was a little bit impaired, but it wasn't to the point where I am sitting on the floor and my kids are running around with a dirty diaper or anything." When asked if she was concerned that the children may have been inhaling second hand smoke from her "joint," J.C. responded: They weren't because--no, they weren't because the gate was there and where I smoked, our house, the front door was right here, like the front door was right here and our porch was, I'm going to say the length of this room and I would be on the corner where there's trees and bushes and it would go, I mean there. I mean it was, everything was just closed. I had a house in front of me. I had a house beside me. It was me and I would sit there. My kids couldn't, I mean my kids was [sic] at the thing and I could pop my head in and I could see them, but it was never where I'm sitting like five feet. It was always at least, I'd there be [sic] and the gate would be like, I mean the door would be right here. J.C. admitted that she would sometimes interact with her children immediately after using marihuana. J.C. acknowledged that she was ordered to pay child support in the amount of twenty dollars per month and that she did not pay "much" of that amount because she was "giving it to her sister, Carrie," who had been given possession of the children. J.C. stated, "I should have read my papers correctly--and it did state because showing, you are showing me a piece of paper that we have to send it to the [TDFPS], I mean the Attorney General. . . ." After the amount of child support was increased to $224 per month, J.C. made a payment of approximately $650. C. Section 161.001(1)(O) In order for a court to terminate parental rights under section 161.001(1)(O), the court must find by clear and convincing evidence that the parent "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child." (29) J.C. does not dispute that at the time of trial, the children had been in the temporary managing conservatorship of TDFPS for not less than nine months as a result of the children's removal under Chapter 262 for abuse or neglect. J.C. also concedes that testimony "indicated that a court order was in place" and that she "violated a court order by refusing a drug test." However, J.C. argues that based on this evidence, "it is impossible to determine if [she] failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of her children" because there is "no evidence relating to specific court orders." We disagree. Although TDFPS did not offer the trial court's orders into evidence, it asked the trial court to take judicial notice of the trial court's own file in the cause. (30) A trial court may take judicial notice of its own orders, records, and judgments rendered in cases involving the same subject matter and between practically the same parties. (31) J.C. did not object to TDFPS's request for the trial court to take judicial notice of its file, which contained several of its orders involving the same subject matter and the same parties. TDFPS acknowledges that the record does not reflect that the trial court ruled it would take judicial notice of its file; however, a trial court need not announce that it is taking judicial notice. (32) Moreover, [j]udicial notice is mandatory when a party requests the court do so and the party supplies the court 'with the necessary information.'" (33) In this case, the trial court had the necessary information, its own file, and TDFPS requested for the trial court to take judicial notice of that file; therefore, judicial notice of the court's file was mandatory. (34) Thus, the trial court's orders requiring J.C. to comply with the service plan, attend parenting classes, pay child support, and submit to random drug tests were properly before the trial court. In its temporary order following the adversary hearing, the trial court notified J.C. and M.P. that they were required to complete the actions ordered by the trial court to "obtain the return of the children" and that "failure to fully comply with [the] orders may result in the restriction or termination of [their] parental rights." At the termination hearing, J.C. admitted that she had not complied with the service plan, attended parenting classes, or submitted to random drug tests. Furthermore, the trial court could have reasonably believed Gonzales's testimony that J.C. failed to comply with the trial court's orders requiring J.C. to submit to random drug tests and pay child support. (35) After viewing the evidence in the light most favorable to the finding, we conclude that there was legally sufficient evidence for a reasonable trier of fact to form a firm belief or conviction that J.C. failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the children. (36) Furthermore, after examining the entire record, we conclude that the evidence was factually sufficient to support the trial court's finding that J.C. violated section 161.001(1)(O). We overrule J.C.'s first issue. D. Best Interest By her second issue, J.C. contends that the evidence is factually insufficient to show by clear and convincing evidence that termination of J.C.'s parental rights was in the best interest of H.M.P. and B.R.P. J.C. argues that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding based on the following: (1) "this is not a case where [J.C.] intentionally abused her children or treated them horribly"; (2) it is undisputed that J.C. loves her children and did not knowingly cause them harm; (3) a review of all of the evidence "suggested that the physical and emotional needs of the children were being met before they were removed"; (4) there was no physical or emotional abuse; (5) the "nail incident" was a "random accident precipitated by [M.P.'s] carelessness in leaving nails accessible to the children"; (6) J.C. provided for B.R.P.'s medical care; (7) J.C. "attempted to protect her children by leaving [M.P.] when he became abusive"; (8) there was a general consensus among the caseworkers and family that J.C. interacted well with [the children] and they loved her"; (9) J.C. missed "very few" visitations with the children and she acted appropriately; (10) J.C. has committed to changing and improving her life; (11) the abusive relationship with M.P. has ended and the children "will no longer be subject to the arguments between" J.C. and M.P.; (12) J.C. has acknowledged her mistakes; (13) J.C. has raised the children since their birth; (14) the evidence does not show that J.C. "has caused the children any physical, emotional or developmental problems"; (15) J.C. provided for the children's physical and emotional needs; (16) "several witnesses testified that [J.C.] had the ability to manage and interact well with the children"; (17) although J.C. did not complete parenting classes, Tucker stated that J.C. "grasped the parenting skills and was good at managing the kids"; (18) although J.C. did not comply with the service plan, "she did try"; (20) J.C.'s "plans for the children and the stability of the proposed placement weigh in favor of reversing complete termination; (21) J.C. "tried to show at the hearing that she was no longer using marijuana"; (22) Dr. Moran recommended joint custody; and (23) J.C. has made an effort to improve her life. When considering whether parental termination is in the child's best interest, the following non-exhaustive list of factors should be considered: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parenting abilities of the parties seeking custody; (5) the programs available to assist the parties seeking custody; (6) the plans for the child by the parties seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions committed by the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions committed by the parent. (37) The party seeking parental termination is not required to prove all nine factors. (38) Furthermore, when the department or another government agency is the petitioner, subsection 263.307(a) of the Family Code provides that "the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." (39) Subsection (b) then lists thirteen factors that the court, the department, or other authorized agencies should consider in determining whether a parent is "willing and able to provide the child with a safe environment." (40) In our review of the trial court's termination order, we will likewise give consideration to these factors to the extent applicable. (41) 1. Desires of the children Both children were under the age of five at the time this case was tried. However, the record reflects that the children's behavior was better when J.C. and M.P were not with the children, and that after completing parenting classes and attending counseling sessions, M.P. had a better understanding of how to redirect the children's behavior, especially, H.M.P., who by all accounts, was a very active toddler. Furthermore, there was evidence that J.C. was not capable of redirecting H.M.P.'s behavior and in some instances, instigated H.M.P.'s inappropriate behavior. (42) Marthiljohni testified that she observed H.M.P. spitting in J.C.'s face at one of the visitations and that although there was not a "fight," J.C. and H.M.P "would fight back and forth between each other." 2. Present and future physical and emotional needs of the children J.C. suffers from bipolar disorder and has admitted that she does not always take her medication or follow the recommendations of the doctors concerning her condition. Furthermore, although Dr. Moran testified that it is dangerous for a person with J.C.'s medical needs to use marihuana, J.C. continues to insist that she uses it to "relax." It appears from the record that J.C. does not appreciate the danger of using a mind-altering drug while caring for her children, especially in light of her medical condition. Marthiljohni testified that J.C. "has been unstable in maintaining her emotions around the children" and has been "vulgar" and acted inappropriately by yelling and screaming in front of the children. B.R.P. swallowed five nails while in J.C.'s care. Marthiljohni stated that her understanding of the event was that H.M.P. acquired the nails while in J.C.'s care, and believed that both J.C. and M.P. were responsible for the incident, because M.P. left the nails in a bowl on the table and J.C. was at home with the children when it happened. Marthiljohni understood that M.P. was at work when B.R.P. actually swallowed the nails. Dr. Moran stated that H.M.P. was discovered holding nails in her hand, and J.C. testified that she found the nails in B.R.P.'s diaper. According to J.C., she would smoke marihuana while caring for her children. Gonzales stated that J.C. did not notice when B.R.P., who was standing right next to J.C., took cigarettes out of J.C.'s purse. From this evidence, the trial court could have reasonably inferred that J.C. was not properly supervising the children when H.M.P. fed the nails to B.R.P. Marthiljohni stated that CASA recommended that J.C.'s parental rights be terminated because she is concerned for the emotional well-being and health of the children. Phlaum testified that there had been referrals made regarding J.C. and M.P. in other counties in Texas and that TDFPS had unsuccessfully attempted to make contact with J.C. and M.P. regarding those referrals because the family was "moving about." J.C. testified that TDFPS had investigated her parenting ability because J.C. had tested positive for marihuana when she was pregnant with H.M.P., and there is evidence in the record that H.M.P. suffered from a lung condition when she was born and had also tested positive for marihuana. (43) 3. Present and future emotional and physical danger to the child J.C. had a history of placing herself in environments where the children observed physical abuse. According to M.P., when the children were in J.C.'s home, J.C. physically abused him and he physically abused J.C. Furthermore, before visiting the children, J.C. attacked M.P. in the parking lot. At the time of trial, J.C. lived with a man who had a history with CPS; J.C. was not aware of why this man had been referred to CPS or whether he had been cleared of any allegations. J.C. engaged in illegal drug use even after being informed that she would not be reunited with the children. J.C. testified that although she smoked marihuana, she never did so in front of the children; however, she also stated that she was not negatively affected by the drug because it only "relaxed" her and did not put her in a "trance." J.C. believed that she was capable of supervising the children despite the fact that she had been smoking marihuana. J.C.'s continued drug use and inability to recognize its dangers weigh strongly in support of finding that termination was in the children's best interest. (44) A parent's engaging in illegal drug activity after agreeing not to do so in a service plan for reunification with her children is sufficient to establish clear and convincing proof of voluntary, deliberate, and conscious conduct that endangered the well-being of her children. (45) M.P. stated that he called the police when he smelled marihuana in their home, and it is reasonable to infer that he would continue to contact authorities if J.C. continued using drugs. Moreover, conduct that subjects a child to a life of uncertainty and instability because of the probability that its parent or parents will be jailed because of illegal conduct thereby leaving the child alone, endangers the child's physical or emotional well-being. (46) 4. Parental abilities of the person(s) seeking custody The evidence shows that J.C. is unable to provide a safe and stable home for the children. There was evidence that J.C. is not employed, and she is unable to provide housing for her children without her new boyfriend's assistance. The boyfriend works a full-time job; however, according to J.C., they could not afford housing in Victoria, which J.C. claimed caused her inability to complete her service plan, attend parenting classes and seek counseling. According to the evidence presented, J.C. constantly moved from county to county with the children. J.C. was unable to supply TDFPS with a stable address during the pendency of the proceedings, and although there is evidence that there is ample room for the children at J.C.'s current residence, she was living at her boyfriend's home. Without employment, J.C. is not able to afford her own home. Marthiljohni testified that she has "serious concerns with [J.C.'s] ability to parent" the children, and Gonzales stated that she believed that J.C. does not recognize inappropriate or dangerous situations regarding her children. H.M.P., a three-year-old child, has exhibited tantrums, and J.C. has not been able to provide adequate redirection. The evidence shows that H.M.P. did not exhibit the inappropriate behavior when J.C. and M.P. were absent. H.M.P. and B.R.P. have witnessed J.C.'s physical and verbal altercations with M.P. and others. M.P. testified that J.C. pulled H.M.P. across the floor by her hair when she was not able to deal with H.M.P.'s behavior at a restaurant. J.C. does not recognize the danger posed by smoking marihuana while caring for two young children. Dr. Moran testified that had J.C. told her she was still using marihuana; Dr. Moran would not have recommended reunification with the children. 5. Available assistance programs J.C. has not completed any of the available assistance programs. At her first meeting with caseworkers, J.C. indicated that she was not willing to comply with the service plan, and in fact, did not comply with most of its requirements. Further, she failed to keep her counseling appointments, indicating a lack of willingness to participate in the available assistance. J.C. also refused to attend outpatient drug treatment as recommended. Tucker testified that if the parent does not contact her, appointments for parenting classes are not scheduled, but that J.C. had only scheduled five appointments with her from March 1, 2008 through August 1, 2008. According to Tucker, J.C. had "somewhat" grasped the requirements presented in the parenting classes she attended, but when Tucker did visit with J.C., the focus of the meeting was not on parenting skills but on assisting J.C. with "follow[ing] through" with her service plan. J.C.'s counselor, Faust, testified that she met with J.C. on three occasions, but that J.C. then failed to attend several scheduled appointments and was eventually dropped as a client. In plaintiff's exhibit 4, Faust's counseling progress reports regarding J.C. and M.P., Faust documented that J.C. had not "yet accepted responsibility for her contribution to the events that resulted in the removal of her children, and seems to blame [M.P.] for the mistakes that brought the two of them to counseling." Faust also stated that J.C.'s missed appointments "present[ed] a concern in regards to her commitment to treatment, and that J.C.'s "lack of accountability adds concerns regarding and [sic] inability to succeed in treatment." According to Faust's assessment, J.C. did not "appear committed to treatment," and in the only session attended in the month of May 2008, J.C. "denied both having run out of medicine that is meant to treat bipolar symptoms, and that she continues to use marijuana." Faust noted that J.C. "appeared untruthful and guarded and conveyed an air of manipulation" and that J.C. did "not speak to her children [or] indicate any discomfort in being separated from them." The report indicates that J.C. showed "no earnest interest in additional feedback or information." Faust noted that she was concerned for the safety of the children "as [J.C.] express[ed] no concern for their well-being and indicat[ed] no discomfort regarding the lack of time she spends with them." In a progress report dated August 14, 2008, Faust recommended "reunification with [M.P.] and the children" and "that the children have limited, if any, contact with [J.C.] based on reported lack of responsibility on [J.C.'s] part." Faust documented that "[r]eported behaviors by [J.C.] at the CPS office present[ed] a great concern regarding the safety and well-being of the children should they continue to be in the presence of [J.C.]." 6. Plans for the children by those individuals or by the agency seeking custody TDFPS has been appointed permanent managing conservator of the children and M.P. has been appointed possessory conservator. The evidence shows that M.P. is in compliance with the terms of his service plan, and has completed parenting classes and counseling. J.C. has not followed through with court-ordered counseling or with outpatient drug treatment. J.C. stated that she did not have a reason for not attending parenting classes, except that she did not have a phone. From the first meeting with TDFPS, J.C. indicated that she was unwilling to cooperate with caseworkers or complete the requirements of her service plan. M.P. has complied with the requirements of the service plan, has completed parenting classes, and is continuing to complete the rest of the requirements necessary for reunification with his children. Based on all of the evidence presented, and applying the best-interest factors, we conclude that the trial court could reasonably have formed a firm conviction or belief that termination of J.C.'s parental rights would be in the children's best interest. Accordingly, we overrule J.C.'s second issue. Because "[o]nly one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest," (47) we need not address J.C.'s remaining issues on appeal pertaining to sections 161.001(1)(D) and 161.001(1)(F) of the family code. (48) III. Conservatorship Determination In her third issue, J.C. argues that the trial court erred by not appointing her as a joint co-possessory conservator pursuant to section 153.191 of the family code because the trial court did not find that "her parental possession of access would endanger the physical or emotional welfare of the children." (49) Section 153.191 mandates that the trial court appoint a "parent" possessory conservator "who is not appointed as a sole or joint managing conservator unless [the trial court] finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child" (50) Here, J.C.'s parental rights were terminated by court order divesting her of "all legal [parental] rights and duties." (51) Moreover, the term "parent," as defined by the family code, "does not include a parent to whom the parent-child relationship has been terminated." (52) Thus, section 153.191 is inapplicable because J.C.'s parental rights have been terminated. Therefore, having determined that the evidence is sufficient to support termination of J.C.'s parental rights, we conclude that the trial court did not err by not appointing J.C. as co-possessory conservator. (53) Finally, because M.P. does not appeal the trial court's determination that he be appointed possessory conservator, and J.C. may not complain about errors that do not harm her or that only influence other's rights, (54) we cannot conclude that the trial court erred in appointing M.P. possessory conservator. (55) We overrule J.C.'s third issue. IV. Conclusion We affirm the trial court's judgment. ______________________ LINDA REYNA YAÑEZ, Justice Delivered and filed the 7th day of January, 2010. 1. To protect the privacy of the minor children, we refer to the parties by their initials. See Tex. Fam. Code Ann. §109.002(d) (Vernon 2008); Tex. R. App. P. 9.8(b)(2). 2. The nails were one and one-half inches in length. 3. There is nothing in the record indicating who made the referral. 4. See Tex. Fam. Code Ann. § 161.001(D), (F), (O) (Vernon Supp. 2009). 5. Tex. Fam. Code Ann. § 161.001; id. § 153.002 (Vernon 2008); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). 6. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.-Corpus Christi 2006, no pet.). 7. In re J.L., 163 S.W.3d at 84; In re D.S.P., 210 S.W.3d at 778. 8. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.-Fort Worth 2006 pet. denied); Porter v. Tex. Dep't of Protective & Regulatory Servs., 105 S.W.3d 52, 57 (Tex. App.-Corpus Christi 2003, no pet.). 9. Tex. Fam. Code Ann. § 101.007 (Vernon 2008); see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 10. In re J.L., 163 S.W.3d at 85 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). 11. Id. 12. Id. 13. In re M.C.T., 250 S.W.3d 161, 168 (Tex. App.-Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d at 28). 14. In re J.F.C., 96 S.W.3d at 266; In re M.C.T., 250 S.W.3d at 168 (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)). 15. On cross-examination, Phlaum stated that the domestic violence included an instance where M.P. hit J.C. and other instances where both M.P. and J.C. "exchanged blows." 16. According to Phlaum, the movement of the family "was a situation where [the family] seemed to be going back and forth. At some point they were in Graham [County] and [then they] were back in Victoria. It was hard for the CPS personnel in those locations to be able to keep up with the family and where they were at the time." 17. Phlaum testified that if J.C. had complied with the service order on September 2007, the children probably would not have been removed. 18. We note that J.C. has been diagnosed with bipolar disorder requiring psychiatric treatment. 19. M.P. had never tested positive on a random drug test. 20. On cross-examination by J.C.'s attorney, Gonzales stated that J.C. had only one negative drug test result. 21. Gonzales stated that she was aware that M.P. had been charged with two counts of assault against J.C. and that he pleaded guilty to one count of assault and was on probation at the time of the termination hearing. 22. H.M.P. was two at the time of the incident. 23. According to Dr. Moran, J.C.'s current behavior is similar to her behavior as a student. 24. It appears from the record that J.C. and M.P. began individual counseling after they separated. 25. Each session costs twenty dollars. 26. M.P. had been attending counseling with Faust on a weekly basis since March 11, 2008 until the date of the termination hearing on September 17, 2008. The last session with M.P. was on September 17. 27. Dr. Moran noted in the psychological evaluation that H.M.P. "was born testing positive for marijuana." 28. Dr. Moran noted in J.C.'s psychological examination that J.C. was observed to have a very short attention span, with distractibility, an elevated activity level, with constant fidgeting, impulsive responding, and driven motor movements. Her speech was rapid and pressured. . . .  [J.C.'s] thoughts were not consistently goal-directed, and she introduced a number of irrelevant or tangetially-related details that contributed to run-on speech that required frequent redirection to the topic at hand, and her clinical presentation, even when seen on medication, bore substantial symptoms of mania. We note that at the termination hearing, J.C.'s responses to questions lacked coherence and there are many details of her answers that we are unable to decipher. 29. Tex. Fam. Code Ann. § 161.001(1)(O). 30. See Tex. R. Evid. 201(b) (providing that judicial notice may be taken upon request at any stage of the proceedings of any adjudicative fact which "is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"). 31. In re Shell E&P, Inc., 179 S.W.3d 125, 130 (Tex. App-San Antonio 2005, orig. proceeding) ("The trial judge was entitled to take judicial notice of his own prior order entered in a related case between substantially the same parties.") (citing Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (Tex. 1961)); Sierad v. Barnett, 164 S.W.3d 471, 481 (Tex. App.-Dallas 2005, no pet.); Brown v. Brown, 145 S.W.3d 745, 750 (Tex. App.-Dallas 2004, pet. denied); Bryan v. Blue, 724 S.W.2d 400, 402 (Tex. App.-Waco 1986, no writ); Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726 (Tex. App.-Corpus Christi 1996, writ denied). 32. Sierad, 164 S.W.3d at 481. We note that during redirect examination of Gonzales, the attorney for TDFPS stated that the trial court had taken judicial notice of its file, and J.C. did not object. 33. Brown, 145 S.W.3d at 750 (citing Tex. R. Evid. 201(d)). 34. See id. 35. In the Interest of T.N., 180 S.W.3d 376, 382-83 (Tex. App.-Amarillo 2005, no pet.) (providing that the trier of fact "may freely choose to believe all, part, or none of the testimony espoused by any particular witness"). 36. See In re J.L., 163 S.W.3d at 85. 37. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). 38. See In re C.H., 89 S.W.3d at 27 (providing that these considerations are not exhaustive, "or that all such considerations must be proved as a condition precedent to parental termination") (emphasis in original); In re J.R.S., 232 S.W.3d 278, 284 (Tex. App-Fort Worth 2007, no pet.) ("These factors are not exhaustive; some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate."). 39. Tex. Fam. Code Ann. § 263.307(a) (Vernon 2008). 40. Id. § 263.307(b). Those factors enumerated in section 263.307(b) include, among others, the following: (1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; . . . . (6) the results of psychiatric, psychological, or developmental evaluations of the child, parents, other family members, or others who have access to the child's home; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; . . . . (10) the willingness and ability of the child's family to seek out and accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time. . . . Id. 41. See In the Interest of R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In the Interest of S.N., 272 S.W.3d 45, 50-51 (Tex. App.-Waco 2008, no pet.); In re T.N.F., 205 S.W.3d 625, 632-33 n.3 (Tex. App.-Waco 2006, pet. denied). 42. In addition to the instances described above, Gonzales testified that after J.C. visited with the children and M.P. began his visit with the children, the children had been crying for "awhile." After the children "settled down," as J.C. walked out of the building, J.C. "put her face to the wall [of the room where the children were visiting with M.P.] and screamed, "bye [H.M.P.]" Marthiljohni testified that when J.C. encountered M.P. while visiting the children separately, J.C. would make inappropriate, "ugly" comments in front of the children to M.P. as he walked by her. Marthiljohni also stated that in the last visit she observed, J.C. acted "very juvenile" in her interaction with H.M.P. and it appeared as if J.C. was attempting to upset or set H.M.P. off. This interaction disturbed Marthiljohni. According to Marthiljohni, after J.C. took some earrings away from H.M.P., H.M.P. began crying and hitting J.C., and J.C. was unable to redirect H.M.P. 43. See Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.-Dallas 1995, no writ) ("The use of drugs during pregnancy may be conduct which endangers the physical and emotional well-being of the child.") (citing In re Guillory, 618 S.W.2d 948, 951 (Tex. Civ. App.-Houston [1st Dist.] 1981, no writ)). 44. See Toliver v. Tex. Dep't of Family & Protective Servs., 217 S.W.3d 85, 98 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ("Evidence of narcotics use and its effect on a parent's life and her ability to parent may establish that the parent has engaged in an 'endangering course of conduct.'"); see also Latham v. Dep't of Family & Protective Servs., 177 S.W.3d 341, 348 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (concluding that evidence of drug use by the parent coupled with continuing use even though the parent was aware that her parental rights were in jeopardy may establish an endangering course of conduct). 45. In the Interest of T.N., 180 S.W.3d at 383 (citing Robinson v. Tex. Dep't of Protective & Regulatory Servs., 89 S.W.3d 679, 686-87 (Tex. App.-Houston [1st Dist.] 2002, no pet.)). 46. Id. 47. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). 48. See Tex. R. App. P. 47.1; Perez v. Tex. Dep't of Protective & Regulatory Servs., 148 S.W.3d 427, 434 (Tex. App.-El Paso 2004, no pet.); In re L.M., 104 S.W.3d 642, 647 (Tex. App.-Houston [1st Dist.] 2003, no pet.); see also In re C.C., No. 13-07-00541-CV, 2009 Tex. App. LEXIS 2239, at *24 (Tex. App.-Corpus Christi Apr. 2, 2009, no pet.) (mem. op.). 49. See Tex. Fam. Code Ann. § 153.191 (Vernon 2008). 50. Id. 51. See Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008). Moreover, former parents do not have standing to invoke a court's continuing jurisdiction over managing conservatorship issues nor do they have a right to visitation. In re Lambert, 993 S.W.2d 123, 132 (Tex. App.-San Antonio 1999, orig. proceeding). 52. Tex. Fam. Code Ann. § 101.024 (Vernon 2008). 53. Moreover, J.C. cites to no authority, and we find none, requiring a trial court to make a separate finding that parental possession or access would endanger the physical or emotional welfare of the children after termination of the parent-child relationship. 54. See In re D.C., 128 S.W.3d 707, 713 (Tex. App.-Fort Worth 2004, no pet.) (concluding that mother had no standing on appeal to raise issue concerning service by publication on unknown biological father who did not appeal); In re B.B., 971 S.W.2d 160, 163 (Tex. App.-Beaumont 1998, pet. denied) (providing that mother could not appeal termination of father's parental rights when father did not appeal), disapproved of on other grounds, In re C.H., 89 S.W.3d at 26 (disapproving formulation of standard of review). 55. See Tex. Fam. Code Ann. § 153.006 (a) (Vernon 2008) ("If a managing conservator is appointed, the court may appoint one or more possessory conservators."); id. § 263.404 (Vernon 2008) ("The court may render a final order appointing the department as managing conservator of the child without terminating the rights of the parent of the child. . . .); see also id. § 153.005 (Vernon 2008) ("A managing conservator must be a parent, a competent adult, an authorized agency, or a licensed child-placing agency.").

106 F.3d 389 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.Lawrence W. CAMPBELL, Petitioner-Appellant,v.STATE of South Carolina; Attorney General of The State ofSouth Carolina, Respondents-Appellees. No. 96-6580. United States Court of Appeals, Fourth Circuit. Submitted Jan. 23, 1997.Decided Jan. 31, 1997. Appeal from the United States District Court for the District of South Carolina, at Columbia. William B. Traxler, Jr., District Judge. (CA-95-271-3-21BC) Lawrence W. Campbell, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, Columbia, SC, for Appellee. Before RUSSELL, WILKINS,* and WILLIAMS, Circuit Judges. PER CURIAM: 1 Lawrence W. Campbell seeks to appeal the district court's order denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. July 1996, Pamplet 2). We have reviewed the record and the district court's opinion accepting the recommendation of the magistrate judge and find no reversible error. Accordingly, we deny a certificate of probable cause to appeal; to the extent that a certificate of appealability is required, we deny such a certificate. We dismiss the appeal on the reasoning of the district court. Campbell v. South Carolina, No. CA-95-271-3-21BC (D.S.C. Mar. 27, 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. DISMISSED * Judge Wilkins did not participate in consideration of this case. The opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d)

Order Michigan Supreme Court Lansing, Michigan October 11, 2013 Robert P. Young, Jr., Chief Justice Michael F. Cavanagh Stephen J. Markman 147175 Mary Beth Kelly Brian K. Zahra Bridget M. McCormack David F. Viviano, Justices TOWNSHIP OF RICHMOND, Plaintiff-Appellee, v SC: 147175 COA: 304444 Macomb CC: 2006-001054-CZ RONDIGO, L.L.C., 2006-004429-CZ Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the March 5, 2013 judgment of the Court of Appeals is considered, and it is DENIED, there being no majority in favor of granting leave to appeal or taking other action. YOUNG, C.J. and VIVIANO, J., would grant leave to appeal. MARKMAN, J. (dissenting). I respectfully dissent. In my judgment, the Court of Appeals erred by holding that defendant could not receive attorney fees and costs pursuant to MCR 286.473b absent compliance by defendant’s farm or farm operation with “generally accepted agricultural and management practices” (GAAMPs). MCR 286.473b states: In any nuisance action brought in which a farm or farm operation is alleged to be a nuisance, if the defendant farm or farm operation prevails, the farm or farm operation may recover from the plaintiff the actual amount of costs and expenses determined by the court to have been reasonably incurred by the farm or farm operation in connection with the defense of the action, together with reasonable and actual attorney fees. [Emphasis added.]  2 MCL 286.473(1) states in part: A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture. The Court of Appeals held that “the plain language of MCL 286.473(1) expressly conditions [Right to Farm Act] immunity from characterization as a nuisance on a farm’s or a farm operation’s conformance to [GAAMPs].” Richmond Twp v Rondigo, LLC, unpublished opinion per curiam of the Court of Appeals, issued March 5, 2013 (Docket No. 304444), p 6. I disagree. The provision in MCL 286.473(1) that a GAAMPs- compliant farm or farm operation is immune from characterization as a “nuisance” constitutes one way, but not the only way, in which a defendant farm or farm operation can prevail in a nuisance action and thus receive costs under MCL 286.473b. Furthermore, MCL 286.473b states that a defendant farm or farm operation that prevails in any nuisance action in which that defendant is alleged to be a nuisance is entitled to expenses. MCL 286.473b contains no language limiting the award of fees and costs to defendants who are compliant with GAAMPs. Simply, if a farm or farm operation is not compliant with GAAMPs but prevails in a nuisance action, nothing in MCL 286.473b suggests that the farm or farm operation cannot receive costs. Because there was no dispute that defendant’s composting activity constituted a “farm or farm operation,” and because defendant prevailed in the litigation of the township’s failed nuisance claims pertaining to defendant’s composting activities, defendant should have been permitted to recover costs and expenses reasonably incurred “in connection with the defense of the action, together with reasonable and actual attorney fees.” MCL 286.473b. Accordingly, I would reverse this portion of the judgment of the Court of Appeals and award attorney fees and costs to defendant. ZAHRA, J., did not participate because he was on the Court of Appeals panel at an earlier stage of the proceedings. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. October 11, 2013 s1008 Clerk 

917 So.2d 194 (2005) MLECKA v. SIKES. No. SC05-1031. Supreme Court of Florida. November 18, 2005. Decision without published opinion. Mand. denied.

930 F.2d 475 6 Indiv.Empl.Rts.Cas. 593 Catherine TANKS, Plaintiff-Appellant,v.GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY, Defendant-Appellee. No. 90-3494. United States Court of Appeals,Sixth Circuit. Argued March 21, 1991.Decided April 12, 1991. Alan Belkin (argued), Shapiro, Turoff, Gisser & Belkin, Cleveland, Ohio, for plaintiff-appellant. Lee J. Hutton (argued), David A. Posner, Andrew C. Meyer, Duvin, Cahn & Barnard, Cleveland, Ohio, for defendant-appellee. Before MILBURN and BOGGS, Circuit Judges, and GILMORE, District Judge*. MILBURN, Circuit Judge. 1 Plaintiff-appellant Catherine Tanks appeals the district court's grant of summary judgment for defendant-appellee Greater Cleveland Regional Transit Authority (GCRTA) in this civil rights action brought under 42 U.S.C. Sec. 1983 challenging GCRTA's drug testing policy. For the reasons that follow, we affirm. I. 2 The district court's opinion is reported. See Tanks v. Greater Cleveland Regional Transit Auth., 739 F.Supp. 1113 (N.D.Ohio 1990). The facts, which are not in dispute, are adopted in part from the district court's opinion. 3 The GCRTA provides public transportation services for approximately 240,000 people daily in Northeastern Ohio. On a typical business day, the GCRTA has over 550 buses in operation. In February 1986, the GCRTA implemented an "Alcohol and Drug Abuse Policy" ("drug policy") designed to detect employees who were using alcohol or drugs on the job, and to deter them from doing so. The drug policy was adopted in response to the widespread problem of alcohol and drug abuse in society in general, and at the GCRTA in particular. 4 The drug policy lists several circumstances under which employees are required to submit to toxicological testing for the presence of alcohol and drugs. One set of circumstances, applicable to bus drivers and rail operators, lists eight separate types of accidents, the occurrence of which will result in drug testing. Included among this list is the occurrence of an accident involving a fixed object. All GCRTA employees received a copy of the drug policy, and the policy was also posted at the four garages which service GCRTA buses. Under the drug policy, employees who test positive for cocaine or other hard drugs are terminated. 5 On September 11, 1986, Catherine Tanks was employed as a bus driver by GCRTA, and she was working a "swing run," whereby she would drive a bus during the morning peak traffic hours, go home for several hours, and return to work to drive during the late afternoon peak traffic hours. After completing her morning run, Tanks struck a stationary pole while driving her bus into a GCRTA garage. Tanks was aware of the drug policy, and she understood that hitting a fixed object was one of the circumstances which required an employee to have a drug test. Tanks reported the accident, and she agreed to accompany GCRTA Zone Supervisor, Edward Butler, to a Southgate Medical Laboratory facility for testing. 6 At the laboratory, Tanks provided blood, saliva and urine samples. The urine specimen was analyzed for the presence of various psychoactive substances, and initial testing revealed a positive showing of cocaine. Pursuant to established procedures, the laboratory ran a second confirming test on Tanks' urine, employing the gas chromatography/mass spectrometry (GC/MS) test, which provides a "fingerprint" of the molecular structure of the metabolites contained in the urine. The GC/MS test revealed the presence of the cocaine metabolite in Tanks' urine. Accordingly, the laboratory contacted James Clark, the Assistant Director of Bus Transportation for the GCRTA, and advised him that Tanks' urine specimen tested positive for cocaine. The following day, September 17, 1986, Tanks was terminated pursuant to the requirements of GCRTA's drug policy. 7 On June 30, 1988, Tanks filed the present action under 42 U.S.C. Sec. 1983 alleging that GCRTA, a governmental entity, violated her Fourth Amendment right to be free from an unreasonable search by requiring her to submit to a drug test following her accident on September 11, 1986. Tanks also asserted that her subsequent discharge was unconstitutional because it was based on the unconstitutional search. 8 After a period of discovery, GCRTA filed a motion for summary judgment on May 1, 1989, asserting that the material facts in the case were not in dispute and that it was entitled to judgment as a matter of law. Tanks filed a brief in opposition to the motion for summary judgment, with no supporting affidavits. On April 25, 1990, the district court granted GCRTA's motion for summary judgment, holding that GCRTA's drug policy was reasonable and did not violate Tanks' constitutional rights as a matter of law. 9 This timely appeal followed. The principal issue on appeal is whether the GCRTA violated Tanks' constitutional rights by requiring her to submit to a drug test after the bus she was driving collided with a stationary object. II. 10 Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This court reviews a grant of summary judgment de novo. Pinney Dock and Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). Because there is no genuine dispute as to the material facts in this case, one of the parties is entitled to a judgment as a matter of law. See Eberhard Foods, Inc. v. Handy, 868 F.2d 890, 891 (6th Cir.1989). 11 In granting summary judgment for GCRTA, the district court was guided by the Supreme Court's recent decisions in Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). We shall look to those decisions for guidance in analyzing the present case. 12 In Skinner, the Court upheld the constitutionality of Federal Railroad Administration ("FRA") regulations which mandated or authorized drug testing of train crews following certain accidents. The Court initially recognized that the collection and testing of blood and urine specimens constituted a search under the Fourth Amendment, the reasonableness of which was subject to Fourth Amendment analysis. Skinner, 109 S.Ct. at 1413. The Court stated that the reasonableness of a particular practice "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 1414. 13 The Court next determined that the Fourth Amendment did not require a pre-test warrant because the FRA regulations provided little discretion in determining who to test, the testing was conducted for administrative rather than criminal purposes, and the warrant requirement would add little to the certainty and regularity of the process. Id. at 1415-16. The Court then noted that a search performed without a warrant must generally be based on "probable cause to believe that the person to be searched has violated the law." Id. at 1416-17. The Court added that "[w]hen the balance of interests precludes insistence on a showing of probable cause, we have usually required 'some quantum of individualized suspicion' before concluding that a search is reasonable." Id. However, the Court emphasized that "a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable." Id. 14 In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. 15 Id. Thus, to determine the reasonableness of the drug testing in Skinner, the Court balanced the intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. 16 Under this analysis, the Court determined that the intrusions on privacy to collect blood, breath, and urine samples under the FRA regulations were limited. The Court noted that although the urine test raised greater privacy concerns than did the blood and breath tests, the FRA regulations reduced the intrusiveness of the collection process in that the samples were collected in a medical environment by personnel unrelated to the employer through procedures often encountered in the context of a regular physical examination. Id. at 1418. 17 The Court also determined that the employees covered by the FRA regulations had a diminished expectation of privacy because the railroad industry is pervasively regulated "to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees." Id. at 1418. The Court noted that railroad employees have long been a principal focus of regulatory concern because a locomotive "becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs." Id. at 1419. Thus, the Court concluded that the testing procedures under the FRA regulations posed "only limited threats to the justifiable expectations of privacy of covered employees." Id. 18 In contrast, the Court concluded that "the government interest in testing without a showing of individualized suspicion is compelling." Id. The Court observed that "employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others." Id. The Court explained that the post-accident testing regulations supply an effective means of deterring employees engaged in safety-sensitive tasks from using controlled substances or alcohol in the first place:By ensuring that employees in safety-sensitive positions know they will be tested upon the occurrence of a triggering event, the timing of which no employee can predict with certainty, the regulations significantly increase the deterrent effect of the administrative penalties associated with the prohibited conduct, concomitantly increasing the likelihood that employees will forgo using drugs or alcohol while subject to being called for duty. 19 Id. at 1420 (citation omitted). The Court concluded "that the compelling government interests served by the FRA's regulations would be significantly hindered if railroads were required to point to specific facts giving rise to a reasonable suspicion of impairment before testing a given employee." Id. at 1421. 20 At the conclusion of its opinion, the Court provided a concise summary of its ruling: 21 In light of the limited discretion exercised by the railroad employers under the regulations, the surpassing safety interests served by toxicological tests in this context, and the diminished expectation of privacy that attaches to information pertaining to the fitness of covered employees, we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired. 22 Id. at 1422. Thus, the Court held that the drug testing required under the FRA regulations was reasonable within the meaning of the Fourth Amendment. 23 On the same day the Court announced its decision in Skinner, it issued a decision in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), holding that the United States Customs Service's suspicionless drug testing of employees applying for promotion to positions involving interdiction of illegal drugs or requiring them to carry firearms was reasonable under the Fourth Amendment. Employing the same balancing analysis used in Skinner, the Court concluded that the government's "compelling interests in safeguarding our borders and the public safety outweigh the privacy expectations of employees who seek to be promoted to positions that directly involve the interdiction of illegal drugs or that require the incumbent to carry a firearm." Id. 109 S.Ct. at 1396. 24 In the present case, the district court used the balancing analysis of Skinner and Von Raab to determine whether GCRTA's drug testing of Tanks violated her constitutional rights. The district court noted that Tanks does not challenge the constitutionality of GCRTA's entire drug policy, but only particular provisions of the policy. The district court balanced the GCRTA's interest in testing its drivers following a collision with a stationary object against the intrusiveness of the drug testing and its impact on Tanks' Fourth Amendment rights. The district court held that GCRTA's testing of Tanks was reasonable under the Fourth Amendment, notwithstanding the absence of probable cause or some level of individualized suspicion. We agree. 25 If justified by needs other than law enforcement, drug testing "need not necessarily be supported by a warrant, probable cause, or any level of particularized suspicion." National Fed'n of Federal Employees v. Cheney, 884 F.2d 603, 608 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990). Under the analytical framework of Skinner and Von Raab, we must balance the governmental interests furthered by the drug testing against the privacy interests of the tested employee. The warrantless drug testing of Tanks following her collision with the stationary pole was reasonable under the circumstances of this case. 26 The GCRTA, a governmental entity, had a compelling interest in testing Tanks pursuant to its drug testing policy. As a bus driver, Tanks was responsible for safely transporting passengers through the streets of Greater Cleveland. A bus driver's duties are "fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." Skinner, 109 S.Ct. at 1419. Other courts have recognized that the safe operation of public transportation systems is a compelling governmental interest. Transportation Workers' Union v. Southeastern Pa. Transp. Auth., 884 F.2d 709, 712 (3rd Cir.1989); Jones v. McKenzie, 833 F.2d 335, 340 (D.C.Cir.1987), vacated sub nom. Jenkins v. Jones, 490 U.S. 1001, 109 S.Ct. 1633, 104 L.Ed.2d 149 (1989), replaced, 878 F.2d 1476 (D.C.Cir.1989). 27 Recognizing its responsibility to protect the safety of its passengers and the general public by ensuring that its drivers do not operate buses while under the influence of alcohol or drugs, GCRTA implemented a drug testing policy to detect and deter drug use by its employees. By requiring drivers to undergo drug testing after certain specified accidents, GCRTA's drug policy supplied "an effective means of deterring employees engaged in safety-sensitive tasks from using controlled substances or alcohol in the first place." Skinner, 109 S.Ct. at 1419. A collision with a fixed object is "a triggering event, the timing of which no employee can predict with certainty." Id. at 1420. Therefore, GCRTA's post-accident testing policy is reasonably related to the compelling governmental interest in protecting public safety. 28 Tanks argues that the district court ignored the fact that the drug testing resulted from a minor accident which caused minimal property damage and no personal injuries. Tanks is apparently arguing that since the accident was minor and did not result in personal injury to anyone, the drug testing was unreasonable. We reject this argument. "The public safety rationale adopted in Von Raab and Skinner focused on the immediacy of the threat." Harmon v. Thornburgh, 878 F.2d 484, 491 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990) (emphasis in original). Testing drivers after a fault-based accident involving minor property damage and no personal injuries promotes public safety by determining the cause of the accident. See Skinner, 109 S.Ct. at 1420. Moreover, it provides an opportunity for intervention before greater harm occurs. See Harmon, 878 F.2d at 491. 29 In this case, the immediacy of the threat and the need for intervention were particularly great because Tanks was working a "swing run" on the day of the accident and would be returning to drive in the afternoon peak traffic hours. This consideration lends additional weight to GCRTA's contention that it had a compelling interest in protecting public safety by testing Tanks after her collision with the stationary pole. 30 The compelling government interest in protecting public safety must be weighed against the privacy interests implicated by GCRTA's drug testing of Tanks. Tanks had a diminished expectation of privacy by virtue of her employment in a safety-sensitive position, the performance of which was dependent upon her health and fitness. See Skinner, 109 S.Ct. at 1418. GCRTA drivers can be barred from driving when their health affects their ability to drive safely. For example, a driver may be barred from driving due to high blood pressure, being overweight, or being on prescription medication. National Fed'n of Federal Employees v. Cheney, 884 F.2d 603, 613 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990) (reduced privacy expectations by requirement to report any illness or incident resulting from use of prescription drugs). GCRTA bus drivers are required to undergo biannual physical examinations which include eye exams and the provision of a urine sample, which is tested for drugs and alcohol. Similar intrusions have been held to diminish privacy expectations. See Skinner, 109 S.Ct. at 1418; Von Raab, 109 S.Ct. at 1397; Cheney, 884 F.2d at 613. Under these circumstances, Tanks could not reasonably expect to keep private from her employer information bearing directly on her fitness to perform her job. Von Raab, 109 S.Ct. at 1394. 31 The testing procedures employed in this case posed only limited threats to Tanks' justifiable expectations of privacy. The samples of blood, saliva and urine taken from Tanks were collected in a laboratory environment by a medical technician under conditions very similar to a regular physical examination. Skinner, 109 S.Ct. at 1418. Moreover, as the Court indicated in Skinner, "blood tests do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity." 109 S.Ct. at 1417. While urine tests do raise greater privacy concerns, the procedure used in Tanks' case reduced the intrusiveness of the collection process in that she was not required to produce the sample under direct observation of a monitor. Id. Therefore, we hold that the testing of Tanks posed only limited threats to her justifiable expectations of privacy. 32 Tanks argues that the district court failed to fully consider her privacy expectations "in this factual situation," and that the district court ignored the manner in which the GCRTA has disparately applied its mandatory drug policy. Tanks states that in a grievance arbitration between GCRTA and Amalgamated Transit Union Local 286, AFL-CIO, the union presented three separate bus accidents involving moving vehicles occurring in August 1986, August 1988, and November 1989, which did not result in drug testing of the drivers. Tanks also asserts that the arbitrators determined that GCRTA disparately applied its drug testing policy. 33 Tanks argues that it was unfair for the GCRTA to subject her to drug testing after she "grazed" a pole in a garage when it did not test other drivers involved in more serious accidents. Tanks contends that the disparate application of the drug policy "could cause employees to misconstrue the level of their legitimate expectations of privacy," and asserts that the undisputed fact that she knew the drug policy was in effect does not determine whether her expectations of privacy were reduced in an atmosphere where the policy was disparately applied. 34 Although Tanks argues about disparate treatment, she is not asserting an equal protection claim under the Fourteenth Amendment. Rather, she is arguing that GCRTA's disparate application of the drug policy is a factor which the district court failed to consider in determining her privacy expectations. GCRTA asserts that this argument should be rejected because it is being raised for the first time on appeal. GCRTA also contends that Tanks failed to produce any evidence to support her claim of disparate application. GCRTA notes that in Tanks' brief to this court she cites for the first time an arbitration decision in which she claims the arbitrators found that GCRTA disparately applied its drug testing policy. However, the arbitration concerned another GCRTA employee. Moreover, the arbitration decision was not part of the district court record, and Tanks did not attach a copy of the decision to her brief. 35 Although GCRTA argues that Tanks has raised the disparate application argument for the first time on appeal, Tanks arguably raised the issue under a liberal reading of her memorandum in opposition to GCRTA's motion for summary judgment. See J.A. at 77-78. However, Tanks failed to submit any evidence of GCRTA's alleged disparate application of its drug testing policy. In fact, Tanks submitted no evidence in support of her brief in opposition to GCRTA's motion for summary judgment. On appeal, the only evidence of disparate application of the drug testing policy cited by Tanks is the arbitration decision. However, this evidence cannot be considered because it was not part of the district court record. Accordingly, we hold that the district court did not err by failing to consider how Tanks' privacy expectations were affected by the alleged disparate application of the drug testing policy because there was no evidence that GCRTA disparately applied its policy. 36 In sum, the toxicological testing of Tanks following her collision with a fixed object was reasonable because GCRTA's compelling interest in protecting public safety outweighed Tanks' diminished expectations of privacy. Therefore, the toxicological testing did not violate Tanks' Fourth Amendment rights, and her discharge after testing positive for cocaine was not unconstitutional. III. 37 For the reasons stated, we AFFIRM the granting of summary judgment by the district court. * Honorable Horace W. Gilmore, United States District Judge for the Eastern District of Michigan, sitting by designation

NO. 12-13-00332-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN RE: § SAMUEL EARL LEE, JR., § ORIGINAL PROCEEDING RELATOR § MEMORANDUM OPINION In this original proceeding, Relator, Samuel Earl Lee, Jr., seeks a writ of mandamus directing the trial court to rule on his “11.05 habeas.” We deny the petition. BACKGROUND Relator alleges that on September 10, 2013, he filed an “11.05 Writ of Habeas Corpus Application.”1 The purpose of the application was to request a free copy of the trial record, or a loan of the record, for use in preparing a postconviction application for writ of habeas corpus. In response, he received a form for an “11.07 application for a Writ of Habeas Corpus” and a letter from the trial court clerk instructing that “[t]he form must be filled out properly and signed.” Relator did not complete the form, and the record does not indicate that he had any further communication from the clerk. 1 This is an apparent reference to Texas Code of Criminal Procedure, Article 11.05.  AVAILABILITY OF MANDAMUS2 Generally, mandamus is appropriate in a criminal case when a relator shows that he has no adequate remedy at law to redress his alleged harm, and what he seeks is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). It is well settled that consideration of a motion that is “properly filed and before a court” is a ministerial act. See, e.g., State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding) (op. on reh’g). Thus, in appropriate cases, mandamus may issue to compel a trial court to rule on a motion. See In re Keeter, 134 S.W.3d 250, 252 (Tex. App.– Waco 2003, orig. proceeding). But to be entitled to mandamus relief for a trial court’s failure to rule on a motion, a relator must establish that the trial court (1) had a legal duty to rule on the motion; (2) was asked to rule on the motion; and (3) failed to do so. Id. In this case, Relator has not established that the trial court was asked to rule on the motion or failed to do so after the request. And in light of the trial court clerk’s response to Relator’s “11.05 Writ of Habeas Corpus Application,” there is at least a possibility that the “application” has not been called to the trial court’s attention. Therefore, Relator has not shown that he is entitled to mandamus relief. Accordingly, we deny Relator’s petition for writ of mandamus. All pending motions are overruled as moot. SAM GRIFFITH Justice Opinion delivered September 24, 2014. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 2 Article 11.05 identifies the Texas courts that are empowered to issue or grant a writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.05 (West 2005). It does not create a procedure for obtaining habeas relief. See id. Relator’s conclusion to the contrary is misplaced. Generally, a request for a free record to be used in preparing a postconviction habeas application is made by motion. See, e.g., Poole v. State, No. 14-14-00081-CR, 2014 WL 1268617, at *1 (Tex. App.–Houston [14th Dist.] Mar. 27, 2014, no pet.) (mem. op., not designated for publication) (attempted appeal from denial of motion to obtain free record for use in pursuing postconviction habeas relief); In re Rodriguez, No. 10-13-00201-CR, 2013 WL 3481950, at *1 (Tex. App.–Waco July 11, 2013, orig. proceeding). Therefore, we construe Relator’s “11.05 Writ of Habeas Corpus Application” as a motion for a free record. 2  COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT SEPTEMBER 24, 2014 NO. 12-13-00332-CR SAMUEL EARL LEE, JR., Relator v. HON. CHRISTI J. KENNEDY, Respondent ORIGINAL PROCEEDING ON THIS DAY came to be heard the petition for writ of mandamus filed by SAMUEL EARL LEE, JR., who is the defendant in Cause No. 4-93-1229, pending on the docket of the 114th Judicial District Court of Smith County, Texas. Said petition for writ of mandamus having been filed herein on November 1, 2013, and the same having been duly considered, because it is the opinion of this Court that a writ of mandamus should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby DENIED. Sam Griffith, Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. 

548 F.2d 353 Guttelmanv.Stewart*# No. 75-4474 United States Court of Appeals, Fifth Circuit 2/24/77 1 S.D.Fla. AFFIRMED * Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir., 1970, 431 F.2d 409 # Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966.

255 Ga. 699 (1986) 342 S.E.2d 308 THE TRAVELERS INSURANCE COMPANY v. BLAKEY. 42999. Supreme Court of Georgia. Decided April 24, 1986. Greene, Buckley, DeRieux & Jones, Daniel A. Angelo, Newton M. Galloway, for appellant. Orr & Kopecky, Wilbur A. Orr, for appellee. PER CURIAM. This case involves a contract of medical insurance. The facts are set out in the opinion of the Court of Appeals, Travelers Ins. Co. v. Blakey, 177 Ga. App. 1 (1) (338 SE2d 451) (1985), and will be repeated or supplemented herein only as necessary. The dispute between the parties concerns the interpretation of a group policy's definition of the term "covered medical expenses." The policy defined that term as including "physician's or surgeon's services for a surgical procedure and other medical care and treatment. ..." (Emphasis supplied.) The trial court submitted the construction of the emphasized language to the jury, and the Court of Appeals affirmed that ruling, holding as follows: "Appellant argues that the language of the policy is unambiguous and as such was to be construed by the trial court. OCGA § 13-2-1. Looking at the entire provision, we agree with appellee that the policy language is ambiguous, there being more than one way it could have been construed, and that, accordingly, it was within the province of the jury to construe it. [Cits.]" Travelers Ins. Co. v. Blakey, supra, 177 Ga. App. at 2. (Emphasis supplied.) We granted certiorari to determine "[w]hether or not the construction of a written contract is the responsibility of the court, or within the province of a jury." The foregoing language of the Court of Appeals is premised on a two-step procedure: first, the trial court determines whether a contract is ambiguous, and second, if the court finds that it is ambiguous, *700 then the question of its construction is submitted to the jury. However, as has been recognized and well-stated in numerous earlier decisions of the Court of Appeals, the process of contract construction actually is composed of three steps. See, e.g., Ga. Farm Bureau Mut. Ins. Co. v. Burnett, 167 Ga. App. 480 (2) (306 SE2d 734) (1983); Colonial Penn Ins. Co. v. Hart, 162 Ga. App. 333 (3) (291 SE2d 410) (1982); Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874 (3) (285 SE2d 566) (1981). Thus, in Transamerica Ins. Co. v. Thrift-Mart, Inc., id. at 880-881, the Court of Appeals opined that "`"[t]he construction of a contract is a question of law for the court. Where any matter of fact is involved (as the proper reading of an obscurely written word), the jury should find the fact." [Cit.] Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains. [Cits.] Insurance policies being contracts, the decisions have held that the matter of construction is for the court. [Cits.]' American Cas. Co. v. Crain-Daly Volkswagen, 129 Ga. App. 576, 579 (200 SE2d 281) (1973). `The rules of law set forth in the Code with respect to the construction of contracts are framed for the guidance and direction of the courts. Except in cases where the meaning of obscurely written words is involved, and where there is evidence tending to show that the meaning of such words was differently understood in one way or another by the parties to the contract, it is ... improper for the court to give the jury any instruction with regard to the manner in which the contract should be construed. [Cits.]' California Ins. Co. v. Blumburg, 101 Ga. App. 587, 591 (115 SE2d 266) (1960)." (Emphasis supplied.) Inasmuch as the Court of Appeals' decision in the case sub judice does not expressly acknowledge the principle that even ambiguous contracts are to be construed by the court unless an ambiguity remains after application of applicable rules of construction, we therefore vacate the judgment of the Court of Appeals and remand this case for reconsideration in light of this opinion. Judgment vacated and remanded. All the Justices concur, except, Hunt, J., not participating.

FILED United States Court of Appeals Tenth Circuit February 4, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT KENDRA COBB, Plaintiff-Appellant, v. No. 09-3079 (D.C. No. 5:07-CV-04119-JAR) MICHAEL J. ASTRUE, Commissioner (D. Kan.) of Social Security, Defendant-Appellee. ORDER AND JUDGMENT * Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges. Kendra Cobb appeals from a district court judgment affirming a decision by the Commissioner of Social Security to deny her applications for disability insurance benefits (DIB) and supplemental security income (SSI). Ms. Cobb raises two issues regarding an administrative law judge’s (ALJ) credibility finding: (1) that the ALJ failed to specify which parts of her testimony he * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. credited and which parts he rejected and (2) the ALJ applied an erroneous legal standard evidenced when he stated that Ms. Cobb’s ability to perform activities of daily living (ADLs) “to any degree suggests that she retains some capacity to perform activities such as sitting, standing, walking and functioning in a work environment,” Admin R. at 29 (emphasis added). Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. Background 1 Ms. Cobb was 38 years old at the time of the Commissioner’s decision. She completed high school, attended two years of college, and has past relevant work experience as a sales clerk, general clerk, cashier-checker, and book sorter. Ms. Cobb claimed disability stemming from injuries sustained in a single-car rollover accident in December 2002 in which she fractured a number of spinal discs and two ribs, including a compression fracture at the T3 level accompanied by mild kyphosis, or hunchback. She was discharged from the hospital after several days, agreeing with a neurologist’s nonsurgical option that she spend six weeks in a cervical collar and three months in a back brace. She was prescribed Flexeril, Motrin, and Lortab. In April 2003, she attended four sessions of physical therapy and showed improvement, reporting that she felt remarkably 1 Because the issues in this appeal are confined to the ALJ’s credibility finding, our summary of the medical evidence excludes that to which the ALJ gave no weight. -2- better and was able to walk a mile, but she elected to forego any further sessions because of her improvement and for financial reasons. Thereafter, she was seen sporadically through December 2005 by a variety of doctors. She tried acupuncture with poor results. X-rays and MRIs generally showed a moderately severe compression fracture at the T3 level accompanied by accentuated kyphosis without spinal cord abnormalities. Exams indicated good range of motion (ROM), except in her cervical spine and neck, with some pain on thoracic extension and flexion; normal reflexes; and good strength in all extremities. She generally presented without signs of distress and moved about the examining room and table easily. Surgery was discussed but largely ruled out. A one-time epidural steroid injection in the T3-4 region was considered to provide temporary relief, but there is no indication in the record that Ms. Cobb ever received one. A permanent 25-pound limitation on lifting was considered reasonable, and she was advised to avoid stooping. She treated pain with ibuprofen. One physician considered her to be at maximum medical improvement in June 2004. A Physical Residual Functional Capacity Assessment form completed by nonexamining state agency physicians in August 2004 indicated that Ms. Cobb could lift and/or carry 20 pounds occasionally and 10 pounds frequently; could stand and/or walk for about 6 hours in an 8-hour workday; could -3- sit for about 6 hours in an 8-hour workday; and should not perform work above her head due to limitations on reaching. Meanwhile, in March 2004, Ms. Cobb filed her benefits applications and completed a form describing her ADLs dated April 15, 2004. She reported sleeping 8 hours a night, taking Tylenol P.M. on occasion and ibuprofen for pain. She stated she spent between 30 and 60 minutes cooking meals 10-12 times a week; 10-15 minutes doing a load of laundry 5 times a week; 1-2 hours cleaning the house; 1-2 hours paying bills; 2 hours a week grocery shopping; 2-3 hours a night watching television; 2-3 hours a week reading; 7-14 hours a week using a computer; 1 hour a week attending church; 1 hour a week visiting with friends and relatives; and up to 1.5 hours a week dining out, seeing movies, or attending medical appointments. She wrote: “Don’t do much lifting. Hurt a lot when standing or walking for any length of time. Hurt when cooking [and] doing dishes for any length of time. Hurt when doing paperwork any length of time.” Admin. R. at 144. In December 2005, Ms. Cobb had the first of two hearings before the ALJ. She testified that she had a lot of nerve problems, numbness, and tingling, and a lot of pain if she uses her arms or bends or twists for any length of time. She stated that if she were to lift 5 or 10 pounds for 2 or 3 minutes, her pain level would be a 5 or 6 on a 10-point scale with a lot of tingling. Depending on the -4- pain level when she stopped lifting the weight, she would have to wait anywhere from 10 to 60 minutes before being able to resume, and then would have to stop and rest again after a matter of minutes. She testified that she experienced tingling and burning, presumably in her upper back, when standing in a fixed position for 10 or 15 minutes or when walking any length of time, but she estimated she could walk for up to an hour. She admitted being able to sit for about 6 hours in an 8-hour day in a high-backed chair. Regarding her ADLs, she testified that she vacuums or dusts once a week and cooks, but cooking for a 30-60 minute period triggers severe upper-back cramps. She went grocery shopping once or twice a week but leans on the cart for support and can only shop for an hour before needing a break. If she pushes herself too hard one day, she needs the next day to rest and recover. At the conclusion of the hearing, the ALJ referred Ms. Cobb for an additional consultative examination, which was performed in February 2006 by Dr. James Shafer, who had examined her in June 2004. As in the previous exam, Dr. Shafer noted that she was in no apparent distress, had normal gait and station, and moved easily in the examining room without any assistive device. She had good ROM in her back and neck, and Dr. Shafer could detect no weakness. He completed a medical source statement, finding that she could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand about 6 hours in an -5- 8-hour workday; sit about 6 hours in an 8-hour workday; and push and pull no more than 40-50 pounds with her arms. He limited her to only occasional climbing. In July 2006, Ms. Cobb saw Dr. Raymond Grundmeyer for a neurological evaluation. She reported her pain at level 3 and explained that her pain increases with activity and improves with counter-pressure and heat. She described difficulty sleeping and was taking ibuprofen for pain. On exam, Dr. Grundmeyer found her cranial nerves intact. Motor exam revealed 5/5 in upper and lower extremities bilaterally. Her reflexes were +2 in all extremities, her gait was normal, and she was able to heel-toe walk without difficulty. Her straight-leg raise and Romberg tests were negative. She had limited range of motion in her cervical spine. Dr. Grundmeyer reviewed an MRI from November 2005 and recommended further radiological studies in order to determine whether she might benefit from thoracic fusion and instrumentation. On August 15, 2006, the ALJ held a second hearing. Ms. Cobb testified that her condition had stayed about the same since the first hearing, and that she recently had the MRI that Dr. Grundmeyer recommended and was awaiting a report. The ALJ took the testimony of a vocational expert (VE). In response to a number of hypothetical questions limiting a claimant to light work with an -6- assortment of postural and manipulative limitations, the VE identified a number of jobs Ms. Cobb could perform, including some of her past work. In a written decision, the ALJ found that Ms. Cobb had not engaged in substantial gainful activity since her alleged onset date and that her T3 fracture was a severe impairment but did not meet or medically equal the criteria for a presumptively disabling impairment, see 20 C.F.R. Pt. 404, Subpt. P, App’x 1. Moving to step 4 of the 5-step sequential process used to evaluate DIB and SSI claims, see Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (describing the process), the ALJ found that Ms. Cobb had the RFC to perform light work, specifically that she could lift/carry 20 pounds occasionally and 10 pounds frequently, and she could sit 6 hours and stand or walk 6 hours in an 8-hour workday. But she could do no continuous reaching, including overhead; was limited to occasional climbing, but never on ladders, ropes, or scaffolds; and her ability to push/pull was limited to 40-50 pounds. In reaching this RFC finding, the ALJ adopted the RFC findings of the state-agency medical consultants as well as Dr. Shafer’s climbing and push/pull limitations. The ALJ also found Ms. Cobb’s statements regarding the intensity, persistence, and limiting effects of her symptoms “not entirely credible.” Admin. R. at 25. The ALJ stated that her ability to perform ADLs “to any degree suggests that she retains some capacity to perform activities such as sitting, -7- standing, walking and functioning in a work environment.” Id. at 29 (emphasis added). The ALJ further found that Ms. Cobb’s statements regarding the severity of her pain were inconsistent with the objective medical evidence and observed that she “sat through two hearings with no pain behavior observed such as no unusual posturing or stiffness, no apparent difficulty turning her head and she walked in and out of the room normally.” Id. The ALJ concluded that Ms. Cobb could perform her past relevant work as it is performed in the national economy. In the alternative, the ALJ found that she had transferable skills enabling her to perform other work that exists in significant numbers in the national economy and therefore was not disabled under the framework of Medical-Vocational Rule 202.22. After the Appeals Council affirmed the ALJ’s decision, Ms. Cobb appealed to the district court. A magistrate judge recommended that the case be reversed because the ALJ’s observation that Ms. Cobb’s performance of ADLs “to any degree,” id., was not a valid basis for finding her not fully credible and because the ALJ failed to explain what parts of her testimony he found not credible. The Commissioner filed objections, which the district court sustained, thereby affirming the Commissioner’s decision in its entirety. This appeal followed. Discussion -8-  “We review the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). “Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence. However, findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (alteration, quotations, and citation omitted). On appeal, Ms. Cobb first argues that the ALJ erred in failing to specify which parts of her testimony he did not fully credit. We reject this argument. An ALJ generally is required to explain what parts of a claimant’s testimony he does not accept and why. McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002). The district court reasoned that despite the ALJ’s failure to explicitly specify which portions of Ms. Cobb’s testimony he found “not entirely credible,” Admin. R. at 25, it was apparent from the decision read as a whole—the ALJ did not fully credit her assertion that her pain precluded her from standing and walking for “any length of time,” id. at 144, 377, or her hearing testimony that she could stand for only 10-15 minutes at a time, but the ALJ did accept her claim that she could sit for 6 hours in a high-backed chair. -9-  This reading is supported by the fact that the ALJ relied on the finding of the state-agency medical consultants that Ms. Cobb could stand and/or walk for 6 hours in an 8-hour day and by the ALJ’s observations of Ms. Cobb’s lack of distress at her hearings. Also, as the district court noted, the ALJ observed that in April 2003, she reported walking one mile, and that in June 2004, just two months after completing her ADL report stating that she “[h]urt a lot” when standing and walking for “any length of time,” id., she told Dr. Shafer that she could walk 30-60 minutes at a time. The court also pointed to the ALJ’s discussion of Dr. Shafer’s objective findings in June 2004 and February 2006, which were generally benign except for Ms. Cobb’s claim of upper back pain. Thus, we agree with the district court that the ALJ’s credibility finding was summary, but taking the decision as a whole, it is clear enough what portions of Ms. Cobb’s testimony he credited and what portions he did not, and why, without “violating the general rule against post hoc justification of administrative action recognized in SEC v. Chenery Corp., 318 U.S. 80 (1943),” Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). We next consider Ms. Cobb’s second argument, that the ALJ applied an erroneous legal standard when stating that Ms. Cobb’s ability to perform ADLs “to any degree suggests that she retains some capacity to perform activities such as sitting, standing, walking and functioning in a work environment,” Admin. R. -10- at 29 (emphasis added). Minimal or sporadic performance of ADLs (i.e., performing ADLs “to any degree”) are generally insufficient to support an adverse credibility finding. Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993). But the district court calculated that Ms. Cobb’s self-reported ADLs consisted of 31-54 hours per week of activities primarily performed seated, and 7-14 hours per week of activities primarily performed standing. The extent of Ms. Cobb’s ADLs set this case apart from Thompson and the other cases she relies on, where minimal or sporadic performance of ADLs was held to be an insufficient basis for an adverse credibility finding. See Reed v. Barnhart, 399 F.3d 917, 919, 923 (8th Cir. 2005) (limited ability to do crafts, household chores, and grocery shopping); Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir. 2004) (television watching); Thompson, 987 F.2d at 1489-90 (minimal ADLs such as visiting neighbors and doing light housework). Moreover, the ALJ did not state that Ms. Cobb’s performance of ADLs “to any degree” meant that she had the RFC “to do sustained work activities in an ordinary work setting on a regular and continuing basis,” which generally “means 8 hours a day, for 5 days a week, or an equivalent work schedule,” Social Security Ruling 96-8p, 1996 WL 374184, at *2 (1996). The ALJ simply found that her ability to perform ADLs “to any degree suggests . . . some capacity” to function in a work environment. Admin. R. at 29 (emphasis added). As such, we consider the statement relatively -11- benign. Accordingly, we do not think that the ALJ’s use of the phrase “to any degree” suggests that the ALJ applied an erroneous legal standard when determining whether Ms. Cobb’s ADLs undermined the credibility of her claimed limitations. For the foregoing reasons, we conclude that substantial evidence supports the ALJ’s credibility finding and that the ALJ applied the correct legal standards. The judgment of the district court is AFFIRMED. Entered for the Court Paul J. Kelly, Jr. Circuit Judge -12- 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) RODNEY BELLE, SR., ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0726 (PLF) ) TEMECULA/RIVERSIDE/SAN DIEGO ) SUPERIOR COURT COMMISSIONER & ) PRESIDING JUDGE/JUSTICE, et al., ) ) Defendants. ) __________________________________________) MEMORANDUM OPINION On March 31, 2011, the Court dismissed a complaint filed in a separate case by the plaintiff in this matter, Rodney Belle, Sr., against most or all of the same defendants that are named in the instant litigation. See Belle v. Temecula/Riverside/San Diego Superior Court/Nevada Township Commissioners & Presiding Judges, Civil Action No. 10-0616, Order (D.D.D. Mar. 31, 2011). Like the complaint dismissed in Civil Action No. 10-0616, Mr. Belle’s complaint in this case is largely incoherent and presents no comprehensible theory of the defendants’ legal liability. See id., Memorandum Opinion at 1-3 (D.D.C. Mar. 31, 2011). The Court therefore will dismiss the complaint sua sponte pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Boritz v. United States, 685 F. Supp. 2d 113, 126 (D.D.C. 2010) (sua sponte dismissal appropriate where plaintiff’s claims are such that he “cannot possibly win relief” (quoting Best v. Kelly, 39 F.3d 328, 331 (D.C. Cir. 1994)) (internal quotation marks omitted)). An Order consistent with this Memorandum Opinion shall issue this same day. SO ORDERED. /s/_______________________________ PAUL L. FRIEDMAN United States District Judge DATE: April 5, 2011 

247 F.2d 781 Mary W. WALSH, Appellant,v.NATIONAL SAVINGS & TRUST COMPANY et al., Appellees. No. 13510. United States Court of Appeals District of Columbia Circuit. Argued April 12, 1957. Decided May 29, 1957. Petition for Rehearing In Banc Denied June 20, 1957. Mr. Dean F. Cochran, Washington, D. C., for appellant. Mr. John Lord O'Brian, Washington, D. C., for appellee Grace Dexter Burgher and certain other appellees and for appellee Lee Mitchell and certain other appellees. Mr. Hugh B. Cox and Mrs. Virginia G. Watkin, Washington, D. C., were also on the brief for appellee Lee Mitchell and certain other appellees. Mr. O. R. McGuire, Washington, D. C., for appellees Rutherford and Snodgrass. Messrs. Arthur P. Drury, John M. Lynham and John E. Powell, Washington, D. C., entered appearances for appellee National Savings & Trust Co. Before PRETTYMAN, WILBUR K. MILLER, and WASHINGTON, Circuit Judges. PRETTYMAN, Circuit Judge. This appeal is a sequel to the appeal in Walsh v. National Savings and Trust Company, decided by this court in 1956.1 The action was one for instructions brought by trustees under a trust. Our present appellant, Mary W. Walsh, contended that the trust had terminated and that she was entitled to the full corpus of the trust. Contingent remainder beneficiaries of the trust contended that the trust estate remained in existence and, under the terms of the trust, was to remain in existence until twenty years after the death of Mary W. Walsh, so long as any lineal descendant of the trustor should survive, Mary W. Walsh receiving the income for life. This court agreed with the latter contention. Thereafter the appellee remaindermen moved the District Court for an order allowing compensation from the trust for their attorneys. That court granted the motion in part, holding in a memorandum that the contingent remaindermen were the defenders of the life of the trust and that they bore the entire burden of the defense of the life of the trust. The court was of the opinion that under the general principle that a trust estate should bear the expenses of its administration the trust estate in the case at bar should bear the expense of reasonable counsel fees for the successful defenders of the life of the trust. This appeal followed. We are of opinion that the view of the District Court was reasonable. The action was in substance an effort on the part of Mary W. Walsh to terminate the trust. The remaindermen who defended the trust acted not only in their own behalf but in behalf of any then-unborn lineal descendant of the trustor. So the contest was not purely a contest between two parties as to which should receive the corpus of the trust. Under the circumstances it is an equitable conclusion that the corpus of the trust should bear the costs incurred for its preservation. In an opinion dealing with a fund created for other members of a class solely through the operation of stare decisis, Mr. Justice Frankfurter stated: 1 "Plainly the foundation for the historic practice of granting reimbursement for the costs of litigation other than the conventional taxable costs is part of the original authority of the chancellor to do equity in a particular situation. * * * As in much else that pertains to equitable jurisdiction, individualization in the exercise of a discretionary power will alone retain equity as a living system and save it from sterility."2 2 These equitable principles are applicable in suits which involve the construction of trusts.3 An attorney who creates, increases, preserves or protects a trust fund, with an accompanying benefit to all who are entitled to participate in the trust, is entitled to receive his fee from the corpus of the trust.4 On the other hand it is also true that a litigious party or one who seeks a construction in bad faith is not entitled to costs out of the corpus.5 Between these extremes lies the large body of cases which call into play the chancellor's discretion as to whether or not some or all of the costs of litigation should be charged to the corpus of the trust. The case at bar is in this area. 3 We adhere to our decisions in Caine v. Payne, Abbott, Puller & Myers v. Peyser, and Thomas v. Peyser,6 holding merely that in the circumstances of the case at bar the award of attorneys' fees out of the trust corpus was within the equitable powers of the District Court. 4 Affirmed. Notes: 1 97 U.S.App.D.C. 337, 231 F.2d 496 2 Sprague v. Ticonic Bank, 307 U.S. 161, 166-167, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) 3 In re Atwood's Trust, 227 Minn. 495, 35 N.W.2d 736, 9 A.L.R.2d 1126 (1949). See, in particular, Annot., 9 A.L.R.2d 1132, at 1184-1189 4 Caine v. Payne, 89 U.S.App.D.C. 260, 191 F.2d 482 (1951); Abbott, Puller & Myers v. Peyser, 75 U.S.App.D.C. 162, 124 F.2d 524 (1941); Thomas v. Peyser, 73 App.D.C. 155, 118 F.2d 369 (1941) 5 In re Atwood's Trust, supra note 3; Cleveland v. Second Nat. Bank & Trust Co., 149 F.2d 466 (6th Cir.1945), certiorari denied, 326 U.S. 775, 66 S.Ct. 231, 90 L.Ed. 468 (1945) 6 All supra note 4 5 WILBUR K. MILLER, Circuit Judge (dissenting). 6 I do not agree that the action brought by the trustees for a construction of the trust instrument "was in substance an effort on the part of Mary W. Walsh to terminate the trust." The trustees were in doubt as to how to interpret the declaration of trust and were unwilling to take the responsibility of resolving their doubt. In these circumstances, they very properly sought judicial guidance. 7 Mary W. Walsh did not initiate the litigation, and neither attacked the integrity of the declaration of trust nor sought to terminate the trust contrary to its terms. She merely tried to induce the courts to agree with her interpretation of it, just as the contingent remaindermen argued for the adoption of their contrary view. Meanwhile the trustees looked on, with the trust fund securely in their possession, ready to retain or distribute it as directed. The fund had already been created and was intact at the original amount. It was not in need of preservation or protection by others than the trustees. The latter simply awaited judicial direction; the controversy was solely between the antagonistic parties. 8 It may be the trustees filed the action because of the conflicting contentions of Mrs. Walsh and the contingent remaindermen as to the trustor's intention. If so, the fact serves to point up the adversary nature of the proceeding. Certain it is that in the trial court and in this court they were antagonists, each taking a selfish position which was unfavorable to the other. 9 The remaindermen's success did not redound to her benefit but rather to her prejudice. Allowance of their attorneys' fees out of the corpus will further prejudice her by curtailing the income from the trust which she is entitled to receive as long as she lives. 10 I agree that "An attorney who creates, increases, preserves or protects a trust fund, with an accompanying benefit to all who are entitled to participate in the trust,1 is entitled to receive his fee from the corpus of the trust." But that is not this case, as the majority concede. I also agree that "a litigious party or one who seeks construction in bad faith is not entitled to costs out of the corpus." But this case does not fall in that category, as my brothers admit. 11 They find, however, "[b]etween these extremes" a twilight zone where the chancellor has discretion to allow from the trust fund the attorney's fees of a party who did not in any way create, increase, preserve or protect the fund. I doubt the existence of such an area in which the majority say lies a "large body of cases," and I note they cite no authority for it. It seems to me that the chancellor's discretion is exhausted when he determines whether the claimant meets the test of Caine v. Payne, 1951, 89 U.S.App.D.C. 260, 191 F.2d 482. 12 In citing the Caine case to support the first of the two "extremes": that one who creates, increases, preserves or protects a trust fund to the benefit of all concerned is entitled to costs from the corpus, my brothers of the majority overlook the fact that in the Caine opinion we held the converse or negative of that proposition. We said one who did not create, increase, preserve or protect the trust fund for all beneficiaries is not entitled to have his attorney paid from the fund. Thus the true test was established. 13 The Caine case is so factually similar to the situation here that I think its holding is dispositive of the case before us. I quote from the Caine opinion: 14 "National Savings and Trust Company sued for construction of the residuary cause of a will under which it was trustee. The residuum was in the trustee's possession, ready for distribution. Appellant and appellees were opposing claimants. As such, they were joined as defendants. The controversy was solely between the two parties. The District Court adjudged in favor of the present appellees. This court reversed, deciding in favor of the present appellant. Caine v. Payne, 1950, 86 U.S.App.D.C. 404, 182 F.2d 246 [20 A.L.R.2d 823]. Upon remand of the case, the District Court allowed the attorney for present appellees (the losing group in this court) an attorney's fee of $1,000 out of the estate. This appeal is from that order. 15 "In our opinion the court erred. The attorney's services contributed nothing to the estate. They did not create, enhance, preserve, or protect the estate in any way. The property was in actual possession of the trustee, awaiting distribution as the court should direct. The claims of the opposing parties were wholly antagonistic. Each faction had its own attorney, who was bound to serve only the selfish interests of those he represented. Under such circumstances there is no justification for allowance of a fee out of the estate. [Cases cited.]" 16 The foregoing so closely fits this case both factually and legally that, mutatis mutandis, it would serve as an opinion in this appeal. Although the majority say they adhere to our decision in Caine v. Payne, it seems to me they depart from it and in effect overrule it. I would reverse on the authority of the Caine case. Notes: 1 My emphasis

618 F.2d 118 Whitlock, In re 78-1972 UNITED STATES COURT OF APPEALS Ninth Circuit 4/4/80 1 C.D.Cal. AFFIRMED

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 12 2016, 8:21 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE Dale W. Arnett Meeks Cockerill Winchester, Indiana Winchester, Indiana IN THE COURT OF APPEALS OF INDIANA Larry D. Rittenhouse and February 12, 2016 Linda C. Rittenhouse, Court of Appeals Case No. 68A01-1507-MI-1014 Appellants-Defendants, Appeal from the Randolph v. Superior Court The Honorable Peter D. Haviza City of Winchester, Trial Court Cause No. 68D01-1011-MI-649 Appellee-Plaintiff Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016 Page 1 of 10  Case Summary [1] The Rittenhouses, who own real property that was platted by Silas Colgrove in 1870, filed first a complaint and then a motion for summary judgment against the City of Winchester, claiming ownership of a portion of Meridian Street. Finding no merit to the Rittenhouses’ contention that a prior railroad right-of- way precluded Colgrove from platting an easement for Meridian Street, and that a class-action declaratory judgment cited as support by the Rittenhouses does not pertain to the property at issue in this matter, we find the Rittenhouses have failed to demonstrate a genuine issue of material fact. We further conclude that although the Rittenhouses may have a fee interest in a portion of what is now Meridian Street, subsequent to the railroad right-of-way the Colgrove Plat gave to Winchester an easement for public-street purposes— Meridian Street—the dimensions of which can be determined by looking at Mumma’s Addition in conjunction with Colgrove’s Addition. Thus the City of Winchester has an easement on the disputed property. [2] We affirm. Facts and Procedural History [3] This case was initiated in November 2010, when Larry Rittenhouse filed a complaint against the City of Winchester requesting a judgment declaring that the Rittenhouses are the rightful owners of certain real estate, orders to quiet title and prohibit condemnation of the real estate for a period of two years, and Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016 Page 2 of 10  damages. See Appellants’ App. p. 155. Specifically the real estate of which the Rittenhouses are claiming ownership is presently a platted, paved city street called Meridian Street in Winchester, Indiana. [4] The real estate in question has a long and complicated history. In January 1856, Andrew Aker received a deed for certain real property, which included what is now Lots 6,13,14, and 15 of Colgrove Addition and 100 feet to the east of the lots. A document signed by Aker, dated July 11, 1856, gave the Cincinnati and Fort Wayne Railroad a right-of-way across 100 feet east of the lots; the right-of-way was for fifty feet on either side of the railroad track. Aker had the privilege of using and cultivating any part of the one-hundred feet not needed by the railroad “for the construction, repair, or use of the [rail]road.” Id. at 158. [5] Later in November 1868, Aker and his wife, Hannah, conveyed to Silas Colgrove by warranty deed what is now Lots 6,13,14, and 15 and up to the centerline of the railroad subject to the conveyance of the right-of-way granted by Aker to the railroad. In May 1870 Colgrove platted the Colgrove Addition, including Lots 6, 13, 14, and 15. The plat of Colgrove Addition platted subdivision streets as follows: “All the lines of the Streets, Alleys, & Lots have the same bearings of the lines of Streets, Alleys & Lots in said Mumma’s Addition.” Id. at 33, 124. The contemporaneous Colgrove Addition plat map, see id. at 17, together with the contemporary map of John Mumma’s Addition, see id. at 17, shows Meridian Street immediately to the east of Lots 6,13,14, and 15. While no railroad easement is shown on the contemporaneous subdivision Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016 Page 3 of 10 plat, the original deed granted the railroad right-of-way immediately to the east of the lots in Colgrove Addition and is shown on an earlier plat, see id. at 16. Therefore, Meridian Street was platted on the railroad’s right-of-way. Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016 Page 4 of 10 [6] Sometime in the mid-1980s the railroad abandoned its easement and, shortly thereafter, the City of Winchester paved the western-most portion of the easement. For over forty years the paved portion of North Meridian Street adjacent to Lots 6, 13, 14, and 15 in the Colgrove Addition has been in its present location and used by the public as a right-of-way. See id. at 80-81, 86- 87. [7] Larry Rittenhouse filed a complaint in November 20101, and thereafter the City of Winchester filed a counterclaim. Rittenhouse claimed that he owed fee simple ownership of the abandoned railroad easement east of Lots 6, 13, 14, and 15. Both parties then filed motions for partial summary judgments, and responses to the same. In June 2015, the trial court issued a summary declaratory judgment, finding that the Meridian Street easement existed at the same time as the railroad right-of-way, that the Meridian Street easement was subservient to the railroad right-of-way, and that the Rittenhouses have the fee interest in the property subject to the still-existing Meridian Street easement. The Rittenhouses now appeal. Discussion and Decision [8] On appeal the Rittenhouses appeal the trial court’s grant of summary judgment in favor of the City of Winchester, contending first that the railroad’s right-of- 1 Linda Rittenhouse was added as a necessary third party in December 2012. Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016 Page 5 of 10  way was granted before Colgrove took possession; consequently, Colgrove had no legal authority to plat an easement for a street on railroad property. Second the Rittenhouses argue that the Firestone v. American Premier Underwriters, Inc. (formerly known as the Penn Central Corp.), Cause No. 06C01-9912-CP-379, from the Boone Circuit Court gives them ownership of the disputed property. [9] When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Wise v. Hays, 943 N.E.2d 835, 839-40 (Ind. Ct. App. 2011). All facts established by the designated evidence and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Wise, 943 N.E.2d at 840. [10] The Rittenhouses argue first that Colgrove could not plat Meridian Street on railroad property because the railroad’s right-of-way was granted before Colgrove took possession. In support of this argument, the Rittenhouses cite Indiana Code section 8-3-15-1, which provides as follows: The use by the public (of the) right of way or depot grounds of any railroad in this state by riding, driving or walking thereon, shall not ripen into a right to continue to do so even though it has been so used for a period of twenty (20) years or more; nor shall such use be evidence of a grant to do so except where such use is made across such ground to connect a street or highway on each side thereof, and except where a court of competent jurisdiction has adjudged the existence of a street or highway. Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016 Page 6 of 10  The Rittenhouses also cite to Murphey v. Inter-Ocean Cas. Co., 98 Ind.App. 668, 186 N.E. 902, 903 (1933), in which this Court relied on the above-cited statute in order to find: “In view of this statute, a railroad right of way cannot become a public highway by reason of the continuous use thereof by the general public as a way of travel.” We find both of these authorities inapposite, however, because Meridian Street did not come about merely through public use of the railroad right-of-way. Instead, Meridian Street was a subsequent easement, given by Colgrove to the town (now city) of Winchester when he platted the Colgrove Addition. [11] The evidence shows that in 1856, Aker gave the railroad a right-of-way of fifty feet on either side of the tracks across a portion of the disputed property, but he retained the right to use and cultivate any part of the one-hundred feet that the railroad did not need. See Appellants’ App. p. 158. Then, in 1870, Colgrove, to whom Aker had conveyed the property, platted and recorded the Colgrove Addition, including Lots 6, 13, 14, and 15. The contemporaneous map of Colgrove’s Addition, see id. at 17, clearly shows Meridian Street located immediately east of Lots 6, 13, 14, and 15 in line with Meridian Street in Mumma’s Addition. The bare-bones, hand-drawn map attached to the 1870 description of Colgrove’s Addition to the town of Winchester, see id. at 161, shows Meridian Street and the railroad easements co-existing in the same location. [12] Thus, we conclude that there were, historically, two easements on this property: Meridian Street was an easement subsequent to the railroad right-of-way, Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016 Page 7 of 10  covering 82 feet of that right-of-way. The street was platted to run across the same property as the railroad right-of-way but, as a subsequent easement, could not and did not interfere with the first easement—the railroad right-of-way. This is supported by what ultimately occurred, as described by Rittenhouse himself: as soon as the railroad abandoned its easement in the mid-1980s and the tracks were removed, the City of Winchester paved over the western-most portion of the now-vacant and abandoned railroad right-of-way, which it was entitled to do by virtue of its long-standing easement. See id. at 154-55. In sum, while it may be true that the Rittenhouses maintain a fee interest in some portion of the property immediately adjacent to their lots, it is also the case that Winchester has had an interest in a public-street easement since 1870, when Colgrove platted his addition to the town (now city) of Winchester, and platted Meridian Street. [13] As a final matter, the Rittenhouses contend that the Firestone case resolves this dispute. The entirety of their argument to this effect is as follows: The “Firestone” case specifically states it is a class action that includes “all owners of land in the State of Indiana next to or over which Penn Central Corporation has had a right-of-way for railroad purpose . . . .” [internal citation omitted]. [Firestone] does not state that an adjacent landowner has to point to out [sic] any specific section to claim their rights to the railroad property. Appellants’ Br. p. 8. First, it is far from clear that the “Settlement Corridors” at issue in Firestone—described as “approximately 733 miles of former Penn Central railroad corridor in the State of Indiana[,]” Appellants’ App. p. 49—are Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016 Page 8 of 10  even the same railroad corridors that are adjacent to the Rittenhouses’ property. Further, confusingly, the Rittenhouses are listed as members of the Class in Exhibit A2, but the Tax Map does not list the lots in question here, listing instead “40 Lot No NE 29-20-14.20 A.” Id. at 57. Finally, Paragraph 8 of Firestone specifically states that it is not within the scope of that decision to resolve title disputes between individual persons which may occur as a result of conveyances of portions of the Settlement Corridors, and such disputes must be resolved by the individual parties concerned. See id. at 52. Thus, the Rittenhouses have failed to demonstrate that the Firestone decision is somehow relevant to or governs this dispute. [14] For the reasons set forth above, we find the Rittenhouses have failed to raise a genuine issue of material fact. Wise, 943 N.E.2d at 839-40. Because the evidence shows that the City of Winchester has had an easement for Meridian Street in this location since Colgrove platted his addition in 1870, any fee interest the Rittenhouses may have in this property is immaterial. [15] Affirmed. 2 From the Firestone decision: Exhibit A identifies the adjoining landowners as recorded in the Randolph County property tax records, who are members of the Class, as well as, where available, the tax record address for each of the adjoining landowner properties, the tax parcel and map numbers of the properties, and the nature of title held by APU to that portion of the Randolph County Corridors adjacent to each such property. Appellants’ App. p. 50. Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016 Page 9 of 10 Bailey, J., and Crone, J., concur. Court of Appeals of Indiana | Memorandum Decision 68A01-1507-MI-1014 | February 12, 2016 Page 10 of 10 

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/06/2020 08:05 AM CST - 185 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 Millard R. Seldin, individually and as Trustee of the Millard R. Seldin Revocable Trust, dated October 9, 1993, et al., appellants and cross-appellees, and Scott A. Seldin, individually and as Trustee of the Seldin 2002 Irrevocable Trust, dated December 31, 2002, appellant, cross-appellant, and cross-appellee, v. Estate of Stanley C. Silverman et al., appellees, cross-appellants, and cross-appellees. Theodore M. Seldin, individually and as Trustee of the Amended and Restated Theodore M. Seldin Revocable Trust, dated May 28, 2008, et al., appellees, cross-appellants, and cross-appellees, v. Millard R. Seldin, individually and as Trustee of the Millard R. Seldin Revocable Trust, dated October 9, 1993, et al., appellants and cross-appellees, and Scott A. Seldin, individually and as Trustee of the Seldin 2002 Irrevocable Trust, dated December 31, 2002, appellant, cross-appellant, and cross-appellee. ___ N.W.2d ___ Filed March 6, 2020. Nos. S-19-310, S-19-311. 1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. 2. Judgments: Arbitration and Award: Federal Acts: Appeal and Error. In reviewing a decision to vacate, modify, or confirm an arbi- tration award under the Federal Arbitration Act, an appellate court is  - 186 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 obligated to reach a conclusion independent of the trial court’s ruling as to questions of law. However, the trial court’s factual findings will not be set aside on appeal unless clearly erroneous. 3. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion. 4. ____: ____. When an attorney fee is authorized, the amount of the fee is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. 5. Pleadings: Judgments: Appeal and Error. A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose deci- sion will be upheld in the absence of an abuse of that discretion. 6. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in mat- ters submitted for disposition. 7. Arbitration and Award: Federal Acts: Contracts. Arbitration in Nebraska is governed by the Federal Arbitration Act if it arises from a contract involving interstate commerce; otherwise, it is governed by Nebraska’s Uniform Arbitration Act. 8. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it. 9. Arbitration and Award: Federal Acts: Jurisdiction: Notice. The Federal Arbitration Act’s notice requirements are jurisdictional, and fail- ure to strictly comply deprives the district court of authority under the Federal Arbitration Act to vacate the arbitration award. 10. Arbitration and Award: Federal Acts: Notice. The Federal Arbitration Act’s notice requirements are satisfied if the notice provided complies with Nebraska’s statutory notice requirements. 11. Arbitration and Award: Federal Acts: Legislature. The Federal Arbitration Act favors arbitration agreements and applies in both state and federal courts. It also preempts conflicting state laws and fore- closes state legislative attempts to undercut the enforceability of arbitra- tion agreements. 12. Arbitration and Award: Motions to Vacate. When arbitration has already occurred and a party seeks to vacate, modify, or confirm an award, an extraordinary level of deference is given to the underlying award itself. 13. Arbitration and Award: Federal Acts: Motions to Vacate. The Federal Arbitration Act sets forth four grounds under which a court may vacate an arbitration award, and in the absence of one of these grounds, the award must be confirmed.  - 187 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 14. Arbitration and Award: Federal Acts: Motions to Vacate: Proof. A party seeking to vacate an award for misconduct under 9 U.S.C. § 10(a)(3) (2018) of the Federal Arbitration Act must show that he or she was deprived of a fair hearing. 15. Arbitration and Award: Federal Acts. Under 9 U.S.C. § 10(a)(2) (2018) of the Federal Arbitration Act, evident partiality exists where the nondisclosure at issue objectively demonstrates such a degree of partiality that a reasonable person could assume that the arbitrator had improper motives. 16. Arbitration and Award: Federal Acts: Motions to Vacate. Under the Federal Arbitration Act, courts lack authority to vacate or modify arbitration awards on any grounds other than those specified in 9 U.S.C. §§ 10 and 11 (2018) of the Federal Arbitration Act. 17. Arbitration and Award: Federal Acts: Motions to Vacate: Public Policy. Under the Federal Arbitration Act, a court is not authorized to vacate an arbitration award based on public policy grounds because public policy is not one of the exclusive statutory grounds set forth in 9 U.S.C. § 10 (2018) of the Federal Arbitration Act. 18. Arbitration and Award: Federal Acts: Contracts: Proof. Pursuant to 9 U.S.C. § 10(a)(4) (2018) of the Federal Arbitration Act, a court is authorized to set aside an arbitration award where the arbitrator exceeded his or her powers. However, it is not enough to show that the arbitrator committed an error—or even a serious error. The analysis is whether the arbitrator (even arguably) interpreted the parties’ contract, not whether he or she got its meaning right or wrong. 19. Attorney Fees. Attorney fees shall be awarded against a party who alleged a claim or defense that the court determined was frivolous, inter- posed any part of the action solely for delay or harassment, or unneces- sarily expanded the proceeding by other improper conduct. 20. Actions: Attorney Fees: Words and Phrases. A frivolous action is one in which a litigant asserts a legal position wholly without merit; that is, the position is without rational argument based on law and evidence to support the litigant’s position. The term frivolous connotes an improper motive or legal position so wholly without merit as to be ridiculous. 21. Actions. Any doubt about whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in question. 22. Appeal and Error. An appeal or error proceeding, properly perfected, deprives the trial court of any power to amend or modify the record as to matters of substance. 23. Arbitration and Award: Federal Acts: Contracts. Under the Federal Arbitration Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms.  - 188 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 24. Arbitration and Award. An evident material mistake is an error that is apparent on the face of the record and would have been corrected had the arbitrator known at the time. 25. Attorney Fees: Appeal and Error. Ordinarily, an improper calcula- tion of attorney fees would require a remand in order to reconfigure the award. However, when the record is sufficiently developed that a reviewing court can apply the law to the facts and calculate a fair and reasonable fee without resorting to remand, that route is available to the appellate court. 26. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. 27. Judgments: Appeal and Error. Generally, under the acceptance of ben- efits rule, an appellant may not voluntarily accept the benefits of part of a judgment in the appellant’s favor and afterward prosecute an appeal or error proceeding from the part that is against the appellant. 28. ____: ____. The acceptance of the benefits rule does not apply when the appellant has conceded to be entitled to the thing he or she has accepted and where the appeal relates only to an additional claim on his or her part. 29. Judgments: Proof: Appeal and Error. In asserting that the accept­ ance of benefits rule precludes an appeal, the burden is on the party asserting the rule to demonstrate that the benefits of the judgment were accepted. Appeals from the District Court for Douglas County: J Russell Derr, Judge. Affirmed as modified. Jason M. Bruno and Robert S. Sherrets, of Sherrets, Bruno & Vogt, L.L.C., for appellants. Bartholomew L. McLeay, of Kutak Rock, L.L.P., for appel- lee Scott A. Seldin, individually. Robert L. Lepp and Mathew T. Watson, of McGill, Gotsdiner, Workman & Lepp, P.C., L.L.O., and Sean K. McElenney, of Bryan, Cave, Leighton & Paisner, L.L.P., for Omaha Seldin appellees. Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 189 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 Heavican, C.J. I. INTRODUCTION This is an appeal from a judgment of the district court for Douglas County, confirming an arbitration award of $2,997,031 under the Federal Arbitration Act (FAA)1 and awarding attor- ney fees as a sanction under Neb. Rev. Stat. § 25-824 (Reissue 2016). II. BACKGROUND These two cases arose out of an arbitration between family members designated as the “Omaha Seldins” and the “Arizona Seldins.” The term “Omaha Seldins” refers to the following individuals, entities, and trusts: Theodore M. Seldin, indi- vidually and in his capacity as trustee of the Amended and Restated Theodore M. Seldin Revocable Trust, dated May 28, 2008; Howard Scott Silverman as trustee of the Amended and Restated Stanley C. Silverman Revocable Trust, dated August 26, 2006; Silverman Holdings, LLC, a Nebraska lim- ited liability company; SCS Family, LLC, a Nebraska limited liability company; TMS & SNS Family, LLC, a Nebraska limited liability company; Sarah N. Seldin and Irving B. Epstein, as trustees of the Theodore M. Seldin and Sarah N. Seldin Children’s Trust, dated January 1, 1995; Uri Ratner as trustee of the Stanley C. Silverman and Norma R. Silverman Irrevocable Trust Agreement (2008), dated April 10, 2008; John W. Hancock, Irving B. Epstein, and Randall R. Lenhoff as trustees of the Theodore M. Seldin and Sarah N. Seldin Irrevocable Trust Agreement (2008), dated May 12, 2008. The term “Arizona Seldins” refers to the following individ­ uals, entities, and trusts: Millard R. Seldin, individually and as trustee of the Millard R. Seldin Revocable Trust, dated October 9, 1993; Scott A. Seldin, individually and as trustee of the Seldin 2002 Irrevocable Trust, dated December 13, 2002; Seldin Real Estate, Inc., an Arizona corporation; Kent Circle Investments, LLC, an Arizona limited liability company; 1 9 U.S.C. §§ 1 through 16 (2018).  - 190 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 and Belmont Investments, LLC, an Arizona limited liabil- ity company. For a period of more than 50 years, the parties held joint ownership interests as the Seldin Company in numerous enti- ties located in the Omaha, Nebraska, area. The three princi- pals of the Seldin Company were Millard; Millard’s younger brother, Theodore; and Millard’s brother-in-law, Stanley C. Silverman. The Seldin Company’s principal place of busi- ness was Omaha. However, in 1987, Millard began relocating the business operations from Omaha to Scottsdale, Arizona. Theodore and Stanley co-owned the company, and they agreed to manage the jointly owned properties through management agreements. In 2007, the Arizona Seldins (specifically Millard and Millard’s son, Scott) began to question how Theodore and Stanley were managing the jointly owned properties. In 2010, the Arizona Seldins terminated the management agreements and the parties entered into an agreement to separate their joint interests in real estate assets through a bidding process. The “Separation Agreement” included a provision whereby the parties agreed to resolve all “Ancillary Claims” exclusively through binding arbitration before arbitrator Stefan Tucker with the Venable, LLP, law firm in Washington, D.C. In case of Tucker’s inability to serve as arbitrator, the agreement named a Venable partner as his successor. If both Tucker and the successor were unable to serve as arbitrator, the agreement provided that Venable’s managing partner was responsible for identifying a substitute successor. The agreement also included provisions defining the scope of arbitration, as well as a provi- sion that the “Commercial Division Rules” of the American Arbitration Association (AAA) would govern. After the bidding process was completed, the parties began arbitration before Tucker in October 2011. While the arbitra- tion was ongoing, the Arizona Seldins filed three lawsuits in the district court for Douglas County regarding their claims or, alternatively, seeking to remove Tucker as arbitrator. The dis- trict court dismissed the lawsuits and compelled the Arizona  - 191 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 Seldins back to arbitration after finding the FAA governed the arbitration provision in the agreement. The Arizona Seldins then filed a demand with the AAA, seeking to disqualify Tucker as the arbitrator. The AAA denied the request; how- ever, Tucker subsequently resigned and neither the succes- sor arbitrator nor Venable was willing to participate in the arbitration. The parties agreed to select an arbitrator through the AAA, and Eugene R. Commander (hereinafter arbitrator) was appointed. Arbitration resumed in October 2013. Due to the number of claims, each involving several independent causes of action and affirmative defenses, the arbitrator proposed bifurcating each claim to address liability and damage claims in separate hearings when necessary. The parties agreed to the proposal, and a schedule of hearings was adopted. After extensive discovery was conducted, 11 evidentiary hearings took place over a span of 14 months. Pursuant to the separation agreement, the hearings took place in Omaha. During the 53 days of hearings, 58 fact and expert witnesses testified and 1,985 exhibits were admitted into evidence. As permitted by the AAA’s rules,2 the arbitrator issued 12 separate interim awards at the end of hearings in which determinations of liability or damages had been made. The parties agreed that these interim awards were not considered final awards and that a final award would be issued after the arbitration had closed. The parties also agreed that the entities and individuals that made up each of the two parties were jointly and severally liable for any award issued by the arbitrator. At some point during the arbitration proceedings, the Arizona Seldins asserted that the Omaha Seldins’ lack of tender of one of its assets, Sky Financial Securities, LLC (Sky Financial), was a defense to damages under the Arizona Securities Act. Sky Financial is an Arizona limited liability company, cre- ated as part of a plan to acquire and operate a chain of pizza 2 American Arbitration Association, Commercial Arbitration Rules and Mediation Procedures R-37 at 24 (Oct. 1, 2013).  - 192 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 restaurants in numerous states. In response, the Omaha Seldins requested that the arbitrator take possession of Sky Financial as a form of interpleader so as to permit the award of the asset to the appropriate party after a determination was made. The Arizona Seldins did not object to the procedure, and when asked whether the assignment as a form of interpleader was acceptable to both sides, the Arizona Seldins stated, “Yes.” The Omaha Seldins then tendered Sky Financial to the arbitrator by assignment. In one of the interim awards, the arbitrator determined that the Arizona Seldins had breached their fiduciary duties and engaged in securities law violations relating to Sky Financial. After finding that none of the affirmative defenses raised by the Arizona Seldins were meritorious, the arbitrator awarded the Omaha Seldins $1,962,528 in damages for their lost corporate opportunities claims, as well as an additional $3,135,681 in recessionary damages for the securities violation claims. On April 12, 2017, the arbitration was officially closed. On April 27, the arbitrator issued a final net award in favor of the Omaha Seldins and against the Arizona Seldins in the amount of $2,997,031, plus postaward simple interest. The final award incorporated each of the prior interim awards issued and found the Arizona Seldins jointly and severally liable for the entire amount. On May 23, 2017, the Omaha Seldins filed a motion to con- firm the final award in district court. Opposing confirmation, the Arizona Seldins filed a motion seeking to modify, correct, and/or vacate the award. The Arizona Seldins argued, summa- rized, that the arbitrator (1) engaged in misbehavior regarding assignment of the Sky Financial asset, and thus the Omaha Seldins lacked standing after the assignment; (2) failed to provide a reasoned award on three of the Arizona Seldins’ key affirmative defenses; (3) exceeded his power in awarding legal fees and expenses to the Omaha Seldins, because the separa- tion agreement precluded the award of attorney fees; and (4) materially miscalculated the amount of prejudgment interest by applying the incorrect interest rate or, alternatively, exceeded  - 193 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 his power in awarding damages that included the calculated amount of prejudgment interest. Scott, one of the Arizona Seldins, sought further and sepa- rate relief. Scott argued that with regard to the Sky Financial claims, the arbitrator made an “evident material mistake in the description of ‘Respondents’” and made an award on mat- ters not submitted to him. Scott alternatively argued that the arbitrator exceeded his power or imperfectly executed it, by issuing an award of liability against Scott on those claims. In addition, Scott filed multiple applications seeking to vacate, confirm, and/or modify some of the interim awards in com- panion cases CI 16-7509, CI 16-8394, CI 17-506, CI 17-651, and CI 17-3637. The district court held that the interim awards were nonfinal arbitration orders and dismissed the applications. On May 3, 2018, the district court issued an order sustain- ing the Omaha Seldins’ motion to confirm the arbitration award and overruling the Arizona Seldins’ motion to vacate the award. The district court also awarded the Omaha Seldins an amount equal to the attorneys’ fees and costs [the Omaha Seldins] incurred in resisting [the Arizona Seldins’] application seeking vacation or modification of the Final Award and in seeking dismissal of the vari- ous applications (Case Nos. CI 16-7509; CI 16-8394; CI 17-506; CI 17-651; and CI 17-3637) . . . Scott . . . filed seeking to modify, vacate, or confirm the Arbitrator’s Interim Awards [under Neb. Rev. Stat. “§ 25-834”]. The district court had mistakenly referred to the statute autho- rizing the sanction as Neb. Rev. Stat. § 25-834 (Reissue 1995), instead of § 25-824. On July 30, 2018, the Omaha Seldins offered into evi- dence affidavits with attached fee statements from two law firms, demonstrating the amount of fees incurred on behalf of the Omaha Seldins in resisting the Arizona Seldins’ motion to vacate and in seeking dismissal of Scott’s interim award applications. The affidavits established that the law firm of McGill, Gotsdiner, Workman & Lepp, P.C., L.L.O. (McGill),  - 194 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 had incurred $131,184.45 in fees and that the law firm of Bryan Cave Leighton Paisner LLP (Bryan Cave) had incurred $211,676.50 in fees, both on behalf of the Omaha Seldins. The exhibit containing the McGill firm’s statement of fees had been redacted for privilege purposes. At a subsequent hearing, the Omaha Seldins offered an unredacted version of the McGill firm’s fee statement, which the court received into evidence under seal. On February 28, 2019, the district court issued its order denying the Arizona Seldins’ and Scott’s motions to alter or amend. In the same order, the district court awarded the Omaha Seldins attorney fees in the amount of $131,184.45. On June 3, 2019, the Omaha Seldins filed a motion for order nunc pro tunc, requesting that the district court modify the amount of attorney fees to include Bryan Cave’s fees of $211,676.50, for a total award of $342,860.95. After a hear- ing on the motion, in a written order dated August 26, 2019, the district court denied the Omaha Seldins’ motion for order nunc pro tunc. In its order, the district court stated that it had “clearly intended to award attorney fees to [the Omaha Seldins] in an amount, as stated in the Court’s Order of February 28, 2019, equal to the attorney fees and costs incurred,” but denied the motion after concluding that “[a]n Order Nunc Pro Tunc [could not] be used to enlarge the judgment or substantially amend[] the judgment even though said judgment was not the order intended.” On May 11, 2018, Scott filed a motion to alter or amend the district court’s May 3 order. Scott argued that the award of attorney fees and costs was beyond the amount permitted as damages and that the arbitrator’s award of attorney fees was improper. The motion further asserted that the order had refer- enced § 25-834 as authorizing the sanction against the Arizona Seldins, but that § 25-834 is unrelated to an award of attorney fees and had been repealed by the Legislature in 2002. The Arizona Seldins also filed a motion to alter or amend the order. The motion incorporated Scott’s arguments and additionally asserted that the district court failed to specifically  - 195 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 address some of the Arizona Seldins’ prior arguments, includ- ing whether the final award violated the automatic bankruptcy stay, whether the final award violated Nebraska’s public policy and resulted in a massive windfall to the Omaha Seldins, and whether the arbitrator engaged in evident partiality. On February 28, 2019, the district court issued a 13-page order detailing its findings and overruling both motions to alter or amend the May 3, 2018, order. The February 28, 2019, order included a nunc pro tunc modification, substituting § 25-824 for the references to § 25-834 in the previous order. When discussing the sanction ordered against the Arizona Seldins, the district court noted that its May 3, 2018, order had “repeatedly identified the absence of rational factual or legal basis to support [the Arizona Seldins’] theories of modifying or vacating the Final Award.” The district court articulated that “[w]hat should have been a fairly simple procedure, [the Arizona Seldins] literally turned into a re-litigation of the Arbitration itself.” The Arizona Seldins appeal the district court’s order con- firming the award and the district court’s order of sanctions under § 25-824. Scott, individually, filed a cross-appeal assert- ing that the final award against him should be modified, cor- rected, or vacated by law and that the district court abused its discretion in imposing sanctions and overruling his motion to alter or amend. The Omaha Seldins also filed a cross-appeal, challenging the amount of attorney fees and costs ordered by the district court and the district court’s denial of the Omaha Seldins’ motion for order nunc pro tunc. The Arizona Seldins subsequently filed a motion to dismiss the Omaha Seldins’ cross-appeal, claiming the Omaha Seldins’ registration of the district court’s judgment with an Arizona state court constituted an acceptance of the benefits of the judgment and, thus, pre- cluded them from appealing the judgment. We granted the parties’ petition to bypass the Nebraska Court of Appeals, and the two cases, S-19-0310 and S-19-0311, have been consolidated for purposes of oral argument and disposition.  - 196 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 III. ASSIGNMENTS OF ERROR The Arizona Seldins’ assignments, renumbered and restated, are that the district court erred in (1) failing to vacate the Sky Financial award because the award was secured through mis- behavior by the arbitrator; (2) failing to vacate the final award because the Sky Financial award violates Nebraska public pol- icy by creating a massive windfall for the Omaha Seldins; (3) confirming the arbitrator’s award of attorney fees because the award exceeded the scope of the separation agreement, which expressly prohibited an award of attorney fees; (4) awarding sanctions under § 25-824; and (5) excluding evidence of the Omaha Seldins’ acting contrary to the separation agreement and the award by currently seeking additional damages in other litigation for the same Sky Financial investment. Scott’s assignments of error on cross-appeal, summarized, are that the district court erred in (1) failing to modify or cor- rect an evident material mistake in the description of respond­ ents in the final award relating to him; (2) failing to vacate the final award on the ground of arbitrator misbehavior; (3) fail- ing to vacate the final award on the ground that the arbitrator exceeded his authority in regard to the claims bar date; and (4) imposing sanctions pursuant to § 25-824 and denying Scott’s motion to alter or amend the district court’s order regarding the sanctions. The Omaha Seldins assign on cross-appeal that the district court erred in (1) denying their motion for order nunc pro tunc and (2) failing to award the Omaha Seldins their reason- able attorney fees and costs incurred. While not specifically assigned as error, the Omaha Seldins also assert that the Arizona Seldins’ public policy argument is time barred. IV. STANDARD OF REVIEW [1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.3 3 J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 (2017).  - 197 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 [2] In reviewing a decision to vacate, modify, or confirm an arbitration award under the FAA, an appellate court is obligated to reach a conclusion independent of the trial court’s ruling as to questions of law.4 However, the trial court’s factual findings will not be set aside on appeal unless clearly erroneous.5 [3,4] On appeal, a trial court’s decision awarding or deny- ing attorney fees will be upheld absent an abuse of discretion.6 When an attorney fee is authorized, the amount of the fee is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.7 [5] A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.8 [6] A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in mat- ters submitted for disposition.9 V. ANALYSIS 1. Appeal Is Governed by FAA [7] Prior to addressing the arbitration issues raised by the parties on appeal, we must determine which law governs—the Uniform Arbitration Act (UAA)10 or the FAA. Arbitration in Nebraska is governed by the FAA if it arises from a contract involving interstate commerce; otherwise, it is governed by the 4 Ronald J. Palagi, P.C. v. Prospect Funding Holdings, 302 Neb. 769, 925 N.W.2d 334 (2019). 5 Id. 6 White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013). 7 Rapp v. Rapp, 252 Neb. 341, 562 N.W.2d 359 (1997). 8 Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014). 9 Id. 10 See Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016 & Cum. Supp. 2018).  - 198 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 UAA.11 The district court determined that the issues presented in this case were governed by the FAA. We agree. Arbitration that arises from a contract involving interstate commerce is governed by the FAA.12 Because this case arose from a com- mercial dispute involving properties and companies located in multiple states, the arbitration agreement clearly involves inter- state commerce and thus is governed by the FAA. 2. Motion to Vacate Was Timely [8] Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it.13 The Omaha Seldins claim the Arizona Seldins are precluded from seeking modification or vacatur of the final award on public policy grounds because this argument was not raised within 3 months of the final order being issued as required by § 12 of the FAA. [9] Section 12 of the FAA sets forth the specific service requirements for motions to vacate, modify, or correct an award and requires notice of an application seeking judicial vacatur to “be served upon the adverse party or his attorney within three months after the award is filed or delivered.” This court has held that these notice requirements are jurisdictional and that failure to strictly comply deprives the district court of authority under the FAA to vacate the arbitration award.14 And, where the district court lacks jurisdiction, this court lacks jurisdiction.15 The relevant portion of § 12 provides: Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his 11 Garlock v. 3DS Properties, 303 Neb. 521, 930 N.W.2d 503 (2019). 12 Aramark Uniform & Career Apparel v. Hunan, Inc., 276 Neb. 700, 757 N.W.2d 205 (2008). 13 State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018). 14 See Karo v. Nau Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017). 15 State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999).  - 199 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 attorney within three months after the award is filed or delivered. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court. If the adverse party shall be a nonresi- dent then the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court. [10] Thus, the FAA’s notice requirements are satisfied if the notice provided complies with Nebraska’s statutory notice requirements. Neb. Rev. Stat. § 25-910 (Reissue 2016) requires that the notice be in writing and provides that it shall state (1) the names of the parties to the action or proceeding in which it is to be made, (2) the name of the court or judge before whom it is to be made, (3) the place where and the day on which it will be heard, (4) the nature and terms of the order or orders to be applied for, and (5) if affidavits are to be used on the hearing, the notice shall state that fact. It shall be served a reasonable time before the hearing. The record reflects that the final arbitration award was issued on April 27, 2017. The Arizona Seldins moved to mod- ify, correct, or vacate the award on July 25. On the same day, the Arizona Seldins provided the other parties with notice of the motion via U.S. mail and electronic mail. While the motion did not specifically assert the Arizona Seldins’ public policy argument, the notice included each of the five requirements set forth in § 25-910 and was provided within 3 months of the final order being issued. The Arizona Seldins’ notice complied with Nebraska’s statutory notice requirements; thus, the notice requirements under § 12 of the FAA were satisfied. The public policy argument was timely raised, and therefore, this court has jurisdiction over the claim.  - 200 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 3. Claims by Arizona Seldins and Scott (a) Arbitrator Misbehavior In their first assignment of error, the Arizona Seldins claim the district court erred in failing to vacate the Sky Financial award because the award was secured through misbehavior by the arbitrator. On cross-appeal, Scott also asserts that the arbi- trator’s acceptance of Sky Financial constituted misconduct. Scott further asserts that the Arizona Seldins could not have accepted or consented to the interpleader because the transfer abrogated the Omaha Seldins’ interest in Sky Financial and thus the interpleader never existed. Scott also claims that the interpleader procedure was not disclosed or explained and that he “should not be bound by a secret interpleader procedure of which he was never informed since he had no need for concern regarding any securities claim at the time the purported inter- pleader was first proposed for that purpose.”16 [11,12] Congress enacted the FAA to provide for “expe- dited judicial review to confirm, vacate, or modify arbitration awards.”17 The FAA favors arbitration agreements and applies in both state and federal courts.18 It also preempts conflict- ing state laws and “‘foreclose[s] state legislative attempts to undercut the enforceability of arbitration agreements.’”19 When arbitration has already occurred and a party seeks to vacate, modify, or confirm an award, “‘“an extraordinary level of deference” [is given] to the underlying award itself.’”20 The U.S. Supreme Court has instructed that under the FAA, a court 16 Brief for appellee Scott on cross-appeal at 24. 17 Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U.S. 576, 578, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008). 18 Preston v. Ferrer, 552 U.S. 346, 128 S. Ct. 978, 169 L. Ed. 2d 917 (2008). 19 Id., 552 U.S. at 353 (quoting Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984)). 20 SBC Advanced v. Communications Workers of America, 794 F.3d 1020, 1027 (8th Cir. 2015).  - 201 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 may vacate an arbitrator’s decision “‘only in very unusual circumstances.’”21 [13] The FAA sets forth four grounds under which a court may vacate an arbitration award, and in the absence of one of these grounds, the award must be confirmed.22 These grounds are as follows: (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and mate- rial to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.23 Both the Arizona Seldins and Scott claim the arbitra- tor engaged in misbehavior by accepting ownership of Sky Financial. We reject this claim because the Arizona Seldins expressly agreed to the transfer of Sky Financial during the arbitration proceedings, and there is no evidence that the arbi- trator engaged in misconduct by accepting the transfer. The Omaha Seldins attempted to “tender” Sky Financial as a form of interpleader after the Arizona Seldins asserted that a lack of tender is a defense under the Arizona Securities Act in regard to damages. The Omaha Seldins transferred ownership of Sky Financial to the arbitrator “‘for purposes of effectuat- ing the relief to be awarded.’” The relief contemplated was the 21 Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 568, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013). 22 Hall Street Associates, L. L. C., supra note 17. 23 9 U.S.C. § 10(a).  - 202 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 award of the asset to the appropriate party after a determination had been made. At the time the assignment was made, the following collo- quy occurred: ARBITRATOR: Well, I’m in uncharted waters here. I guess my first question is why would the assignment come to me? [Counsel for the Omaha Seldins]: It’s largely in the sense of an interpleader. Is this to be — I mean, it empha- sizes the point which is the impossibility, to whom do we tender, do we tender to Millard, do we tender to Sky Financial, to whomever it is that it is deemed you think, to the extent it isn’t impossible and excused by impos- sibility, you’re welcome to determine to whomever it should be tendered. .... ARBITRATOR: Well, the only way I know how to deal with this right now is to consider this an act of interplead- ing these interests to me. I’m not an officer of the court, but I do have jurisdiction over this matter, so for the time being, at least, I’ll accept them. With that understanding in mind. Is that acceptable to both sides? [Counsel for the Arizona Seldins]: Yes. [14] “A party seeking to vacate an award for misconduct under § 10(a)(3) must show that he [or she] was ‘deprived of a fair hearing.’”24 When a party “‘who contests the merits of an arbitration award in court fails to first present the challenges on the merits to the arbitrators themselves, review is compressed still further, to nil.’”25 Here, the district court noted that the Arizona Seldins appeared to have consented to the arbitra- tor’s acceptance of the assignment as a form of interpleader. 24 Brown v. Brown-Thill, 762 F.3d 814, 820 (8th Cir. 2014) (quoting Grahams Service Inc. v. Teamsters Local 975, 700 F.2d 420 (8th Cir. 1982)). 25 Medicine Shoppe Intern. v. Turner Investments, 614 F.3d 485, 489 (8th Cir. 2010) (quoting Intern. Broth. v. Hope Elec. Corp., 380 F.3d 1084 (8th Cir. 2004)).  - 203 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 We agree. Not only did the Arizona Seldins not object to the assignment at the time it was made, but they agreed that the transfer as an act of interpleading was acceptable after the purpose of the procedure was explained. By consenting to the assignment, the Arizona Seldins waived the argument that the arbitrator’s acceptance of the transfer constituted miscon­ duct. And, the record clearly refutes Scott’s claim that the intended interpleader was not disclosed or explained. [15] Furthermore, while the Arizona Seldins’ attempt to invoke the grounds set forth in § 10(a)(3) of the FAA by using the term “misconduct,” their argument focuses only on the arbitrator’s possible partiality as the purported owner of Sky Financial. Under § 10(a)(2), a court may vacate an award for the arbitrator’s “evident partiality.” However, this is a “‘heavy burden’”26 because the standard “‘is not made out by the mere appearance of bias.’”27 “Evident partiality exists where the non-disclosure at issue ‘objectively demonstrate[s] such a degree of partiality that a reasonable person could assume that the arbitrator had improper motives.’”28 The Arizona Seldins assert that the arbitrator’s taking actual possession of Sky Financial without first securing mutual con- sent of the parties in writing and making it part of the record disqualified him as an interested party under Neb. Rev. Stat. § 24-739 (Reissue 2016). Section 24-739 provides, in relevant part, that a judge shall be disqualified in any case in which he or she is a party or interested except by mutual consent of the parties, which mutual consent is in writing and made part of the record. The Arizona Seldins contend that § 24-739 applies to arbitra- tors as well as judges per this court’s instruction that “‘judges 26 Williams v. National Football League, 582 F.3d 863, 885 (8th Cir. 2009) (quoting Choice Hotels Intern. v. SM Property Management, 519 F.3d 200 (4th Cir. 2008)). 27 Id. 28 Id. (quoting Dow Corning Corp. v. Safety National Cas. Corp., 335 F.3d 742 (8th Cir. 2003)).  - 204 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 and arbitrators are subject to the same ethical standards.’”29 However, this court has expressly rejected a “judicial ethics” standard when analyzing the FAA’s requirement of “evident partiality.” In Dowd v. First Omaha Sec. Corp.,30 we held that “‘“evident partiality” within the meaning of 9 U.S.C. § 10 will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.’” Here, the record contains no evidence that the arbitrator engaged in misconduct or partiality by accepting the assignment of Sky Financial. Rule R-37(a) of the AAA rules, which was incorporated into the parties’ separation agreement, provides that “[t]he arbitrator may take whatever interim measures he or she deems necessary, including injunctive relief and meas­ures for the protection or conservation of property and disposition of perishable goods.” Moreover, the Arizona Seldins’ argument that the arbitrator’s acceptance of Sky Financial constituted misconduct is confuted by their express acceptance of the pro- cedure. This argument is without merit. (b) Public Policy In their second assignment of error, the Arizona Seldins assert that the district court erred in failing to vacate the final award because the Sky Financial award violates Nebraska public policy by creating a massive windfall for the Omaha Seldins. The Arizona Seldins argue that the Omaha Seldins profited substantially from Sky Financial and that the award of damages results in a double recovery and windfall for the Omaha Seldins in violation of public policy. The Arizona Seldins further assert that a court may refuse to enforce an arbitration award on the ground that it is contrary to public 29 See brief for appellants at 24 (quoting Barnett v. City of Scottsbluff, 268 Neb. 555, 684 N.W.2d 553 (2004)). 30 Dowd v. First Omaha Sec. Corp., 242 Neb. 347, 358, 495 N.W.2d 36, 43 (1993) (quoting Morelite Const. v. N.Y.C. Dist. Council Carpenters, 748 F.2d 79 (2d Cir. 1984)).  - 205 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 policy. In making this assertion, the Arizona Seldins rely on this court’s prior holding in State v. Henderson.31 In Henderson, a Nebraska State Patrol officer had been ter- minated based on his membership in a Ku Klux Klan-affiliated organization. An arbitrator determined that the State Patrol had violated the officer’s constitutional rights because his affilia- tion with the organization was not “‘just cause’” for termina- tion.32 The arbitrator issued an award ordering the officer to be reinstated.33 The district court vacated the award after conclud- ing that the officer’s reinstatement violated Nebraska public policy, and this court affirmed the judgment.34 Unlike the present case, Henderson was governed by Nebraska’s UAA.35 However, this court found none of the UAA’s statutory bases for vacating an award applied.36 Noting that the applicable provisions in the UAA and the FAA were similar, the majority, in a 4-to-2 decision, relied on three U.S. Supreme Court cases applying the FAA when holding that an arbitration award could be vacated on public policy grounds.37 The majority in Henderson held that a court may refuse to enforce an arbitration award that is contrary to a public policy when the policy is explicit, well defined, and domi- nant. The majority concluded that Nebraska has “an explicit, well-defined, and dominant public policy” that “the laws of Nebraska should be enforced without racial or religious dis- crimination” and that the arbitrator’s decision reinstating the officer violated this public policy because the policy “incor- porates, and depends upon, the public’s reasonable perception 31 State v. Henderson, 277 Neb. 240, 762 N.W.2d 1 (2009). 32 Id. at 242, 762 N.W.2d at 3. 33 Id. 34 Id. 35 See §§ 25-2601 to 25-2622. 36 Henderson, supra note 31. 37 Id.  - 206 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 that the laws are being enforced without discrimination.”38 The dissent argued that the U.S. Supreme Court’s narrow public policy exception did not bar judicial enforcement of the award and that the majority was doing precisely what the Supreme Court had prohibited in Paperworkers v. Misco, Inc.39: engag- ing in factfinding, which is the arbitrator’s function, not the appellate court’s.40 [16] Prior to 2008, a circuit split existed on whether courts could apply nonstatutory standards when reviewing arbitra- tion awards under the FAA. Many courts had been relying on language in the 1953 case of Wilko v. Swan,41 which indicated courts could vacate an award made in “manifest disregard” of the law. In Hall Street Associates, L. L. C. v. Mattel, Inc.,42 the U.S. Supreme Court resolved the split and held that under the FAA, courts lack authority to vacate or modify arbitration awards on any grounds other than those specified in §§ 10 and 11 of the FAA.43 The Court was explicit that [o]n application for an order confirming the arbitration award, the court “must grant” the order “unless the award is vacated, modified, or corrected as prescribed in sec- tions 10 and 11 of this title.” There is nothing malleable about “must grant,” which unequivocally tells courts to 38 Id. at 263, 762 N.W.2d at 16-17. 39 See Paperworkers v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987). 40 Henderson, supra note 31 (Stephan J., dissenting). See, also, Misco, Inc., supra note 39, 484 U.S. at 44, 45 (criticizing federal Court of Appeals’ conclusion that machine operator had ever been or would be under influence of marijuana while he was on job from fact that marijuana was located in his car as “an exercise in factfinding” that “exceeds the authority of a court asked to overturn an arbitration award”). 41 Wilko v. Swan, 346 U.S. 427, 436, 74 S. Ct. 182, 98 L. Ed 168 (1953). 42 Hall Street Associates, L. L. C., supra note 17. 43 See John M. Gradwohl, Arbitration: Interface of the Federal Arbitration Act and Nebraska State Law, 43 Creighton L. Rev. 97 (2009).  - 207 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 grant confirmation in all cases, except when one of the “prescribed” exceptions applies.44 Pointedly, the Eighth Circuit Court of Appeals has explained that prior to 2008, “a court could vacate arbitration awards on grounds other than those listed in the FAA.”45 However, “Hall Street, resolving a circuit split, held that ‘the text [of the FAA] compels a reading of the §§ 10 and 11 categories as exclusive.’”46 [17] Because the U.S. Supreme Court’s decision in Hall Street Associates, L. L. C. abrogated public policy as grounds for vacating an arbitration award under the FAA, we reject the Arizona Seldins’ argument. We hold that under the FAA, a court is not authorized to vacate an arbitration award based on public policy grounds because public policy is not one of the exclusive statutory grounds set forth in § 10 of the FAA. We also clarify that Henderson was governed by the UAA–-not the FAA–-and expressly disapprove of any language in Henderson that could be construed as authorizing courts to vacate awards on public policy grounds under the FAA.47 Because public policy is not a ground for vacating an arbi- tration award under the FAA, we need not address the merits of the Arizona Seldins’ argument that the purported windfall in favor of the Omaha Seldins is contrary to public policy. (c) Arbitrator’s Award of Fees and Costs In their third assignment of error, the Arizona Seldins argue that the district court erred in confirming the arbitrator’s award of attorney fees because the award exceeded the scope of the separation agreement. 44 Hall Street Associates, L. L. C., supra note 17, 552 U.S. at 587 (quoting 9 U.S.C. § 9). 45 Medicine Shoppe Intern., supra note 25, 614 F.3d at 489. 46 Id. 47 Henderson, supra note 31.  - 208 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 [18] Pursuant to § 10(a)(4) of the FAA, a court is authorized to set aside an arbitration award where the arbitrator exceeded his or her powers. However, “‘[i]t is not enough . . . to show that the [arbitrator] committed an error—or even a serious error.’”48 The analysis is “whether the arbitrator (even argu- ably) interpreted the parties’ contract, not whether he got its meaning right or wrong.”49 “Because the parties ‘bargained for the arbitrator’s construction of their agreement,’ an arbitral decision ‘even arguably construing or applying the contract’ must stand, regardless of a court’s view of its (de)merits.”50 In the final award, the arbitrator ordered the parties to pay their own attorney fees, expenses, and costs arising from the arbitration proceedings, “[e]xcept as specifically provided in Supplemental Interim Award Claim 16,” which awarded $1,001,051 in attorney fees and costs to the Omaha Seldins as a partial measure of the damages caused by securities viola- tions related to Sky Financial. The Arizona Seldins assert that the award of attorney fees exceeded the scope of the separa- tion agreement because the agreement expressly prohibited such an award. This assertion is based on a provision of the separation agreement, which states: In General: Except as otherwise provided in this Agreement, each Party shall bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions con- templated hereby. No party shall be required to pay to the other Party any commissions, penalties, fees or expenses arising out of or associated with any of the transactions contemplated by this Agreement. 48 Oxford Health Plans LLC, supra note 21, 569 U.S. at 569 (quoting Stolt- Nielsen S. A. v. AnimalFeeds Int’l. Corp., 559 U.S. 662, 130 S. Ct. 1758, 176 L. Ed. 2d 605 (2010)). 49 Oxford Health Plans LLC, supra note 21, 569 U.S. at 569. 50 Id., 569 U.S. at 569 (quoting Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000)).  - 209 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 In “Supplemental Interim Award Claim 16,” the arbitrator interpreted the parties’ agreement regarding the award of fees and costs and found that the agreement did not preclude an award of fees and costs incurred in prosecuting the lost corpo- rate opportunity and securities violations claims related to Sky Financial. The arbitrator concluded that the agreement’s “trans- actions contemplated” language referred to the transactions and process contemplated by the parties in separating their joint ownership interests in the jointly owned properties and entities and not ancillary claims. The arbitrator’s conclusion was based, in part, on the loca- tion of the provision within the separation agreement, and on another provision which stated: “Cooperation. The Parties acknowledge and agree that the transactions contemplated by this Agreement are intended to permit the Omaha Seldins, on the one hand, and the Arizona Seldins, on the other hand, to separate their joint ownership of the Properties.” In addition, the arbitrator found that the rules of the AAA, which the par- ties had incorporated into the separation agreement, authorized the award of attorney fees and costs under circumstances such as those presented here. We hold that the arbitrator did not exceed his authority under the separation agreement by issuing the award of fees and costs. In the parties’ separation agreement, the parties each agreed to resolve their disputes relating to severing their jointly owned properties through final and binding arbitration. By entering into the agreement, the parties bargained for the arbi- trator’s construction of that agreement. The arbitrator construed the agreement as permitting the award of attorney fees for the parties’ ancillary claims. The Sky Financial claim was an ancil- lary claim, and thus, the arbitrator did not exceed his authority in awarding costs and fees related to that claim. The Arizona Seldins’ third assignment of error is without merit. (d) Sanctions Under § 25-824 In their fourth assignment of error, the Arizona Seldins argue that the district court erred in awarding sanctions against  - 210 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 them under § 25-824. Scott individually asserts on cross- appeal that the district court abused its discretion in impos- ing sanctions against Scott for filing the various applica- tions in CI 16-7509, CI 16-8394, CI 17-506, CI 17-651, and CI 17-3637 and in overruling his motion to alter or amend the district court’s order. Section 25-824(2) provides that in any civil action commenced or appealed in any court of record in this state, the court shall award as part of its judgment and in addition to any other costs otherwise assessed reasonable attorney’s fees and court costs against any attorney or party who has brought or defended a civil action that alleges a claim or defense which a court deter- mines is frivolous or made in bad faith. [19-21] We have stated that attorney fees shall be awarded against a party who alleged a claim or defense that the court determined was frivolous, interposed any part of the action solely for delay or harassment, or unnecessarily expanded the proceeding by other improper conduct.51 A frivolous action is one in which a litigant asserts a legal position wholly without merit; that is, the position is without rational argument based on law and evidence to support the litigant’s position.52 The term “frivolous” connotes an improper motive or legal posi- tion so wholly without merit as to be ridiculous.53 Any doubt about whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in question.54 In seeking to modify or vacate the final award, the Arizona Seldins asserted four arguments. As previously summarized, these arguments were that the arbitrator (1) engaged in mis- behavior relating to the assignment of the Sky Financial 51 Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (2019). 52 TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010). 53 Id. 54 Id.  - 211 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 property, (2) failed to provide a reasoned award on three affirmative defenses raised by the Arizona Seldins related to the Sky Financial claims, (3) exceeded his power in award- ing legal fees and expenses to the Omaha Seldins, and (4) materially miscalculated the prejudgment interest when award- ing damages. In its May 3, 2018, order, the district court entered judgment in favor of the Omaha Seldins and against the Arizona Seldins under § 25-824. When evaluating the Arizona Seldins’ claim that the arbitrator engaged in misbehavior, the district court noted that the Arizona Seldins appeared to have consented to the assignment of Sky Financial, they had presented no evi- dence demonstrating the arbitrator had improper motives when accepting the assignment of Sky Financial, and their argument “conflicts with the facts and the law.” With regard to the argument that the arbitrator had failed to provide a reasoned award in relation to the Arizona Seldins’ affirmative defense involving the claims bar date, the district court found this argument lacked merit and “mischaracterize[d]” the significance of the relation-back doctrine under Fed. R. Civ. P. 15. In doing so, the district court called attention to the arbitrator’s written findings and awards relating to the Sky Financial claim, which consisted of 60 pages and contained multiple paragraphs explaining the arbitrator’s reasoning when rejecting the defense. The district court also rejected the argument that the arbitra- tor exceeded his power when awarding legal fees and expenses. Recognizing that the cases cited by the Arizona Seldins when asserting this argument either did not support their argument or were not relevant, the district court found the arbitrator had correctly interpreted and applied the separation agreement when awarding the fees and costs. The district court characterized the Arizona Seldins’ argu- ment that the arbitrator had materially miscalculated the pre- judgment interest as “misleading” and “fundamentally mis- placed.” Noting that allegations of an arbitrator’s legal error  - 212 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 are not reviewable, the district court found that the Arizona Seldins had failed to identify any “‘mathematical error’” in the arbitrator’s calculations. The court recognized that in making this assertion, the Arizona Seldins were attempting to chal- lenge the merits of the final award by arguing that the arbitra- tor had committed legal error. Addressing Scott’s individual claims, the district court found there was no legal basis for Scott’s challenge of the interim awards as the parties had agreed that the arbitrator’s interim awards were nonfinal. Further, each of the 12 interim awards included the following statement: “The parties understand this Interim Award is not a final appealable arbitration award, but it will be part of the law of the case moving forward.” Still, Scott proceeded to file lawsuits seeking to modify, vacate, and/or confirm five of these awards. In addition to finding the interim applications frivolous, the district court found Scott’s argument that he should not be held jointly and severally liable to be “misleading.” Reviewing the record and arguments in this case, we agree with the district court in that “[w]hat should have been a fairly simple procedure, [the Arizona Seldins] literally turned into a re-litigation of the Arbitration itself.” The district court issued the § 25-824 sanction after repeatedly finding the absence of rational factual or legal bases to support the Arizona Seldins’ theories of modifying or vacating the final award. We hold that the district court did not abuse its discretion in awarding attor- ney fees and costs under § 25-824. We also reject Scott’s claim that the district court abused its discretion in overruling his motion to alter or amend the district court’s order and judgment. Scott argues that his argu- ments were not ridiculous and that the applications regarding the interim awards “were filed only in an ‘abundance of cau- tion’ and sought an ‘immediate stay’ to minimize any action by the parties or the district court.”55 55 Brief for appellee Scott on cross-appeal at 34.  - 213 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 In support of his argument, Scott first cites In re Chevron U.S.A., Inc.,56 in which the Texas Court of Appeals held that an arbitrator’s interim awards were sufficiently final for purposes of confirmation and vacation. The district court specifically rejected this argument in its February 28, 2019, order. The district court noted that In re Chevron U.S.A., Inc. lacked evi- dence demonstrating that the parties or arbitration panel had agreed or intended the interim decision to be nonfinal and non- appealable. The district court also recognized that the Arizona Seldins had “not cited to a case where an interim award that both the parties and the Arbitrator intended to be non-final was treated as a final, appealable arbitration award.” Scott also cites American Intl. Specialty Lines Ins. Co. v. Allied Capital Corp.57 However, that case is clearly distin- guishable from the facts presented here as the parties had specifically requested that the arbitration panel make a final determination on one of the issues. We hold that the district court did not abuse its discretion in finding Scott’s interim applications to be frivolous and order- ing sanctions accordingly. (e) Evidence of Omaha Seldins’ Claims in Arizona State Court In their fifth assignment of error, the Arizona Seldins argue that the district court erred in excluding evidence of the Omaha Seldins’ acting contrary to the separation agreement and the award by currently seeking additional damages in other litiga- tion for the same Sky Financial investment. [22] This court has held that “‘[a]n appeal or error proceed- ing, properly perfected, deprives the trial court of any power to amend or modify the record as to matters of substance[.]’”58 56 In re Chevron U.S.A., Inc., 419 S.W.3d 329 (Tex. App. 2010). 57 American Intl. Specialty Lines Ins. Co. v. Allied Capital Corp., 167 A.D.3d 142, 86 N.Y.S.3d 472 (2018). 58 Samardick of Grand Island-Hastings, Inc. v. B.D.C. Corp., 183 Neb. 229, 231, 159 N.W.2d 310, 313 (1968).  - 214 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 An appeal is taken by filing a notice of appeal and depositing the required docket fee with the clerk of the district court.59 The Arizona Seldins filed their notice of appeal in these cases on March 27, 2019. On July 5, the Arizona Seldins filed a motion in the district court seeking to supplement the bill of exceptions and/or to reopen the record. The Arizona Seldins claimed that after the arbitration award had been confirmed, the Omaha Seldins filed a complaint in an Arizona state court alleging the same or similar claims regarding Sky Financial that had been arbitrated in these cases. The Arizona Seldins sought to supplement the record with evidence of the newly filed Arizona cases for purposes of this appeal. The district court overruled the motion on the ground that perfection of an appeal deprives the trial court of any power to amend or modify the record as to matters of substance. We hold that the district court did not err when overruling the motion to supplement the record. Because the Arizona Seldins had perfected their appeal prior to the filing of the motion, the district court did not have jurisdiction to supple- ment the record with evidence of the Omaha Seldins’ purported filings. The Arizona Seldins’ fifth assignment of error is with- out merit. (f) Description of “Respondents” Scott individually asserts on cross-appeal that the district court erred in failing to modify or correct an evident material mistake in the description of “Respondents” in the final award relating to Scott. Scott argues that the parties agreed Scott had not personally violated any securities laws and, therefore, he cannot be jointly and severally liable on the Sky Financial award. In the Arizona Seldins’ motion to modify or vacate the arbitration award, Scott individually asserted that the arbitra- tor had made a material mistake in the final award relating to the description of “Respondents.” In its May 3, 2019, order 59 See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018).  - 215 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 overruling the motion, the district court found the final award had properly provided that Scott was jointly and severally liable for all damages awarded. Classifying Scott’s argument as misleading, the district court recognized that although the parties agreed Scott had not violated any securities laws, he usurped corporate opportunities relating to Sky Financial. The district court also noted that Scott’s liability was not based on common-law principles of joint and several liability, but on his contractual liability as set forth in the parties’ separa- tion agreement. Scott attempts to invoke § 11(a) of the FAA, which permits a court to modify or correct an award “[w]here there was an evident material miscalculation of figures or an evident mate- rial mistake in the description of any person, thing, or property referred to in the award.” [23,24] Under the FAA, “arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms.”60 “An evident material mistake is an error that is appar- ent on the face of the record and would have been corrected had the arbitrator known at the time.”61 In the present case, the definition of which individuals and entities comprised each party was set forth in the separation agreement and in the first case management order. Throughout the arbitration proceedings, the individuals and entities com- prising the Omaha Seldins and the Arizona Seldins agreed to joint and several liability for any award entered against the Omaha Seldins or the Arizona Seldins, respectively. Scott entered into a binding agreement to arbitrate all claims relating to the separation of the parties’ jointly owned proper- ties, and he is included in the definition as one of the individ­ uals comprising the Arizona Seldins. Scott also agreed to joint and several liability for all awards issued against the 60 Henry Schein v. Archer and White Sales, ___ U.S. ___, 139 S. Ct. 524, 529, 202 L. Ed. 2d 480 (2019) (citing Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 130 S. Ct. 2772, 177 L. Ed. 2d 403 (2010)). 61 94 Am. Jur. Trials 211, § 96 at 359 (2004).  - 216 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 Arizona Seldins. According to the terms of the separation agreement, Scott is jointly and severally liable for all awards issued. We hold that the district court did not err in overruling Scott’s motion. (g) Claims Bar Date Scott individually asserts that the district court erred in failing to vacate the final award relating to the Sky Financial claim because the claim was untimely and the arbitrator exceeded his powers by permitting the Omaha Seldins to bring the claim. Again, §§ 10 and 11 of the FAA set forth the exclu- sive grounds for vacating or modifying an arbitration award.62 “‘[S]o long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his author- ity,’ the award should be confirmed.”63 The separation agreement contains a provision stating that “reasonable amendments to Claims in pending actions shall be allowed in the Mediator’s discretion based on discovery, admissions, interim decision, and other developments in the prosecution of the Claim, consistent with the Federal Rules of Civil Procedure.” On December 3, 2013, the arbitrator granted the Omaha Seldins leave to amend their claims on or before December 6, “in the interests of justice and economy.” Scott complains that the parties’ agreed-upon claims bar date was July 2, 2012, and that the Omaha Seldins’ Sky Financial claim was untimely because it was filed on November 14, 2014. Scott argues that the arbitrator exceeded his powers by granting leave to amend because under Fed. R. Civ. P. 15, he was required to apply the relation-back doctrine when assess- ing the timeliness of the claim. Rejecting this argument, the district court found that the arbi- trator interpreted the separation agreement when concluding 62 See Hall Street Associates, L. L. C., supra note 17. 63 Beumer Corp. v. ProEnergy Services, LLC, 899 F.3d 564, 565 (8th Cir. 2018) (quoting Medicine Shoppe Intern., supra note 25).  - 217 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 leave to amend should be granted and that the arbitrator’s deci- sion was consistent with Fed. R. Civ. P. 15(a)(2). That section provides that “[t]he court should freely give leave [to amend] when justice so requires.”64 The district court also found that this argument mischaracterized the significance of “relation back” under Fed. R. Civ. P. 15 because the amended plead- ing did relate back to a claim that had originally been filed on October 9, 2011, prior to the parties’ claims bar date. We hold that the district court did not err in rejecting this claim. Scott does not argue that the arbitrator was not interpret- ing the separation agreement; rather, he argues that the arbitra- tor “was required to apply the ‘relation-back’ method of review under the [Federal Rules of Civil Procedure], before allowing the Sky Financial Claim to be brought after the Claims Bar Date.”65 The record clearly demonstrates the arbitrator was construing the separation agreement when he concluded that leave should be granted. The arbitrator’s decision to grant the leave is not grounds to vacate the award. This argument is without merit. 4. Omaha Seldins’ Cross-Appeal On cross-appeal, the Omaha Seldins argue they are enti- tled to reasonable attorney fees and costs in the amount of $342,860.95. Alternatively, the Omaha Seldins seek a determi- nation that the district court erred in denying their motion for order nunc pro tunc. In determining the amount of a cost or attorney fee award under § 25-824(2), Neb. Rev. Stat. § 25-824.01 (Reissue 2016) states that “the court shall exercise its sound discretion.” In its May 3, 2018, order, the district court entered judg- ment in favor of the Omaha Seldins for an amount equal to the attorney fees and costs incurred in resisting the Arizona Seldins’ application seeking vacation or modifica- tion of the final award and in seeking dismissal of the various 64 Fed. R. Civ. P. 15(a)(2). 65 Brief for appellee Scott on cross-appeal at 33.  - 218 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 applications filed by Scott. After the judgment was issued, the Omaha Seldins submitted evidence demonstrating that it had incurred $342,860.95 in fees and costs: $211,676.50 by the Bryan Cave law firm and $131,184.45 by the McGill law firm. However, when calculating the amount of fees to be awarded, the district court neglected to include the Bryan Cave law firm’s fees of $211,676.50. Although intending to include the fees from both law firms, the district court’s order included only the McGill law firm’s fees for a total amount of $131,184.45. The Omaha Seldins filed a motion for order nunc pro tunc, seeking an order substituting $342,860.95 for the total amount of fees incurred. In a written order, the district court stated that it had “clearly intended to award attorney fees to Petitioners in an amount, as stated in the Court’s Order of February 28, 2019, equal to the attorney fees and costs incurred.” But the court denied the motion after concluding that “[a]n Order Nunc Pro Tunc [could not] be used to enlarge the judgment or substan- tially amend[] the judgment even though said judgment was not the order intended.” Pursuant to the May 3, 2018, order, the Omaha Seldins are entitled to their judgment for “an amount equal to the attor- neys’ fees and costs [the Omaha Seldins] incurred in resisting [the Arizona Seldins’] application seeking vacation or modifi- cation of the Final Award and in seeking dismissal of the vari- ous applications [filed by Scott].” The district court’s error in calculating the amount of the award resulted in the Omaha Seldins’ being unfairly deprived of their right to $211,676.50 in fees incurred by the Bryan Cave law firm. Thus, the district court abused its discretion in determining the overall amount of the award. [25] Ordinarily, an improper calculation of attorney fees would require a remand in order to reconfigure the award.66 However, when the record is sufficiently developed that a 66 Cedars Corp. v. Sun Valley Dev. Co., 253 Neb. 999, 573 N.W.2d 467 (1998).  - 219 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 reviewing court can apply the law to the facts and calculate a fair and reasonable fee without resorting to remand, that route is available to the appellate court.67 Here, a remand is not required because the Omaha Seldins presented evidence demonstrating the amount of fees incurred, and we find these fees to be reasonable. Further, a remand would serve only to needlessly prolong this litigation and further undermine the finality of the arbitration award. We conclude that the Omaha Seldins are entitled to a total fee award of $342,860.95. Accordingly, we order the Arizona Seldins to pay the Omaha Seldins an additional $211,676.50 for fees incurred by the Byran Cave law firm on behalf of the Omaha Seldins. [26] Because we order the payment of $211,676.50, we do not reach or address the issue of whether the district court erred in denying the Omaha Seldins’ motion for order nunc pro tunc. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.68 5. Arizona Seldins’ Motion to Dismiss Cross-Appeal The Arizona Seldins, along with Scott and Millard, filed a joint motion to dismiss the Omaha Seldins’ cross-appeal on the ground that the Omaha Seldins’ registration of the district court’s judgment with an Arizona state court consti- tuted a voluntary acceptance of the benefits of the judgment and, thus, prevents the Omaha Seldins from prosecuting their cross-appeal. The Omaha Seldins maintain that they have not attempted to collect upon the judgment entered on February 28, 2019, and that the registration of the judgment was merely a procedural act taken for purposes of collecting on the judgment when collection was permitted. 67 Id. 68 Selma Development v. Great Western Bank, 285 Neb. 37, 825 N.W.2d 215 (2013).  - 220 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 [27-29] Generally, under the acceptance of benefits rule, an appellant may not voluntarily accept the benefits of part of a judgment in the appellant’s favor and afterward prosecute an appeal or error proceeding from the part that is against the appellant.69 However, the rule does not apply when the appel- lant has conceded to be entitled to the thing he or she has accepted and where the appeal relates only to an additional claim on his or her part.70 In asserting that the acceptance of benefits rule precludes an appeal, the burden is on the party asserting the rule to demonstrate that the benefits of the judg- ment were accepted.71 Here, the Omaha Seldins agree with the judgment, except for seeking an additional recovery of attorney fees that were mistakenly omitted from the district court’s judgment. Further, the Arizona Seldins have presented no evidence demonstrat- ing the Omaha Seldins have accepted the benefits of the judgment. We hold that the Omaha Seldins’ mere registration of the judgment does not preclude their cross-appeal for the recovery of additional fees and costs. This argument is with- out merit. VI. CONCLUSION The FAA provides that a court must confirm an arbitra- tion award unless grounds exist for vacating or modifying the award under § 10 or § 11 of the FAA.72 Because neither the Arizona Seldins nor Scott have demonstrated any such grounds exist, the parties are bound by their agreement to arbitrate and the arbitrator’s construction of that agreement. We hold that the district court did not err in confirming the arbitration award and denying the motions to vacate and/ or modify the award, nor did it err in denying the Arizona 69 Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006). 70 Id. 71 See 5 Am. Jur. 2d Appellate Review § 543 (2018). 72 Hall Street Associates, L. L. C., supra note 17.  - 221 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports SELDIN v. ESTATE OF SILVERMAN Cite as 305 Neb. 185 Seldins’ motion to supplement the record. We further hold that the district court did not abuse its discretion when awarding attorney fees in favor of the Omaha Seldins or when deny- ing Scott’s motion to alter or amend the court’s May 3, 2018, order. We conclude that the Omaha Seldins’ registration of the district court’s judgment does not preclude the Omaha Seldins’ cross-appeal. Finally, we hold that the Omaha Seldins are entitled to reasonable attorney fees and costs incurred in confirming the arbitration award and resisting the various applications filed by the Arizona Seldins and Scott and that the district court abused its discretion when failing to include the Bryan Cave law firm’s fees in its calculation of the amount of fees to be awarded. Accordingly, we (1) affirm the district court’s confirmation of the arbitration award, (2) affirm the district court’s denial of the Arizona Seldins’ and Scott’s motions to vacate and/or modify the award, (3) affirm the district court’s denial of the Arizona Seldins’ motion to supplement the record, (4) affirm the district court’s award of sanctions under § 25-824, (5) over- rule the Arizona Seldins’ motion to dismiss the Omaha Seldins’ cross-appeal, and (6) sustain the Omaha Seldins’ cross-appeal and order the fee judgment in favor of the Omaha Seldins be increased to $342,860.95. Affirmed as modified. Miller-Lerman, J., not participating. 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-40983 Conference Calendar DANIEL JOHNSON; SAMUEL G. NEWTON; LARRY DOUGLAS, Plaintiffs-Appellants, versus DAVID STACKS, Senior Warden, individually and in his official capacity; J.E. ALFORD, former Senior Warden and presently Regional Director, individually and in his official capacity; GARY JOHNSON, Director of Texas Department of Criminal Justice, Institutional Division, individually and in his official capacity; WAYNE SCOTT, Executive Director, individually and in his official capacity; TERESA MCKNIGHT, Correctional Officer, individually and in her official capacity; JEREMIAH DAVIS, Correctional Officer, individually and in his official capacity; JAMES DEFRANCE, Correctional Officer, individually and in his official capacity, Defendants-Appellees. -------------------- Appeals from the United States District Court for the Eastern District of Texas USDC No. 9:01-CV-56 -------------------- December 11, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges. PER CURIAM:* Daniel Johnson, Texas prisoner #274157, Samuel G. Newton, III, Texas prisoner #477341, and Larry Douglas, Texas prisoner #504213, appeal from the denial of their motions for a preliminary injunction against what they allege is retaliation by * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 01-40983 -2- prison officials. The denial of their motions was not an abuse of discretion. Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). Johnson, Newton, and Douglas have not carried their “heavy burden” of showing that they likely will prevail on the merits of their claims. See Enter. Int’l v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985). We express no opinion on the ultimate determination of the claims of Johnson, Newton, and Douglas on their merits. The requests for mandamus relief and to expedite the appeal are DENIED. We note that Newton and Douglas were added as plaintiffs through Johnson’s amendment of right. See FED. R. CIV. P. 15(a). Additionally, we note that the district court has yet to rule on the magistrate judge’s recommendation that Johnson’s claims be dismissed for failure to exhaust administrative remedies. AFFIRMED. 

Case: 12-11100 Document: 00512202660 Page: 1 Date Filed: 04/09/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 9, 2013 No. 12-11100 Summary Calendar Lyle W. Cayce Clerk ABDEL ELTAYIB, Plaintiff-Appellant v. CORNELL COMPANIES INC; GEO GROUP, INC.; DAVID JUSTICE; STEVE MCDANIEL; JOHN FARQUHAR; JOHN DOE #1; JOHN DOE #2; JOHN DOE #3; HARLEY LAPPIN; DONNA MELLENDICK; GLENN BALINAO; LOUIE ESCOBELL; FEDERAL BUREAU OF PRISONS, Defendants-Appellees Appeals from the United States District Court for the Northern District of Texas USDC No. 1:10-CV-296 Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM:* Abdel Eltayib, formerly federal prisoner # 13882-050, appeals the dismissal of a civil rights complaint he filed while imprisoned at Big Spring Correctional Center (BSCC). Eltayib relied mainly on 42 U.S.C. § 1983, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Defendants included Cornell Companies, Inc. (Cornell) and GEO * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 12-11100 Document: 00512202660 Page: 2 Date Filed: 04/09/2013 No. 12-11100 Group, Inc. (GEO), private corporations that were or are managing BSCC. Eltayib also named several former or current employees of Cornell or GEO at BSCC, and he sued Federal Bureau of Prisons (BOP) director Harley Lappin, BOP privatization administrator Donna Mellendick, and the BOP. Cornell, GEO, and their employees are not subject to suit as state actors under § 1983. BSCC is a federal prison and “§ 1983 applies to constitutional violations by state, rather than federal, officials.” Evans v. Ball, 168 F.3d 856, 863 n.10 (5th Cir.1999) (emphasis added), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003). In addition, Cornell, GEO, and their employees cannot be liable as private actors under Bivens. See Minneci v. Pollard, 132 S. Ct. 617, 626 (2012); Correctional Services Corp. v. Malesko, 534 U.S. 61, 63-64 (2001). The BOP itself also cannot be sued under Bivens. Malesko, 534 U.S. at 72. The Bivens claims against BOP defendants Lappin and Mellendick, were properly dismissed because they cannot be vicariously liable and because Eltayib failed to allege facts that would show that their “own individual actions . . . violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). In support of his Fifth Amendment Equal Protection claim, Eltayib asserts that the district court erred because the defendants had “policies . . . to transfer [a] certain class of inmates to private facilities.” He does not identify this “certain class” or explain why it was wrong to send anyone to a privately managed prison. His amorphous conclusion of discrimination fails to show that the district court erred by dismissing this claim. See Sossamon v. Lone Star State of Texas, 560 F.3d 316, 336 (5th Cir. 2009). Although Eltayib concedes that his request for a transfer is moot in light of his release from prison, he argues that the court erred by dismissing as moot his request for injunctive relief seeking the immediate cessation of all prisoner transfers to BSCC. He does not offer any basis for the district court to make such a sweeping order. Except for the limited purpose of correcting proven 2  Case: 12-11100 Document: 00512202660 Page: 3 Date Filed: 04/09/2013 No. 12-11100 constitutional violations, federal courts are neither empowered nor equipped to second-guess prison administrators or to engage in prison management. Ruiz v. Estelle, 679 F.2d 1115, 1126 (5th Cir. 1982) (and cases cited therein), vacated in part on other grounds 688 F.2d 266 (5th Cir. 1982). This contention is frivolous. The district court did not abuse its discretion by dismissing Eltayib’s state- law claims because it properly dismissed any federal claims that might have supported supplemental jurisdiction. See Noble v. White, 996 F.2d 797, 799-800 (5th Cir. 1993). Eltayib’s vague and conclusional assertions also fail to establish diversity jurisdiction. See St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1254 (5th Cir. 1998). Because Eltayib raises no relevant, nonfrivolous challenge to the dismissal of his claims, the judgment of the district court is AFFIRMED. Eltayib’s motion for the appointment of counsel is DENIED. 3 

Case: 11-10799 Document: 00511823859 Page: 1 Date Filed: 04/17/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED April 17, 2012 No. 11-10799 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MICHAEL CHRISTOPHER WARD, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:08-CR-56-1 Before JONES, Chief Judge, and JOLLY and SMITH, Circuit Judges. PER CURIAM:* The Federal Public Defender appointed to represent Michael Christopher Ward has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Ward has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 11-10799 Document: 00511823859 Page: 2 Date Filed: 04/17/2012 No. 11-10799 counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2 

301 So.2d 541 (1974) Clarence HUNTER, Jr. v. STATE of Alabama. SC 754. Supreme Court of Alabama. October 3, 1974. Parker, Wilkinson & Purvis, Birmingham, for appellant. William J. Baxley, Atty. Gen., Mary Lee Stapp, Jamie L. Pettigrew, Asst. Attys. Gen., for the State. BLOODWORTH, Justice. After a jury trial in the Circuit Court of Jefferson County, appellant, Clarence *542 Hunter, Jr., was adjudged guilty of being the father of three illegitimate children born to Ms. L______. Following separate verdicts of paternity, the trial judge entered a judgment thereon and ordered appellant to pay support for the children. The appeal is from this judgment. Two issues are presented to us by this appeal: whether the trial court properly charged the jury that defendant had the burden of proof as to the statute of limitations; and, whether the trial court properly sustained objection to defendant's question to the children's mother as to whether she had hired a special prosecutor. We have concluded the trial judge was in error in both instances and reverse and remand. We now proceed to deal with these two issues. Tit. 27, § 12(9), Code of Alabama 1940 (Recompiled 1958), provides: "§ 12(9). Limitation on paternity proceedings. —Proceedings under this chapter shall not be brought after the lapse of two years from the birth of the child, unless in the meantime, the reputed father has legally acknowledged paternity or has supported said child." The appellant properly raised this issue as to the statute of limitation, for the undisputed evidence shows (and the original complaint shows on its face) that two of the children were born more than two years prior to the filing of the original complaint. The jury was orally charged by the trial judge that before it could decide the ultimate issue of paternity, it must first determine whether the defendant had supported the two children before the expiration of two years from the birth of the children and within two years prior to the filing of the complaint. The appellant finds no fault with these instructions. However, the trial judge went further, and with respect to the burden of proof as to such issue, charged the jury, viz.: "The burden of proof is on the defendant to satisfy you as to the statute of limitations and the burden of proof is on the State to prove to your reasonable satisfaction with reference to the first child, the paternity of the first child as it respects the former husband of Ms. L______ and I just repeat that the law presumes innocence in`this case." "Now ladies and gentlemen, I said it was a little complicated and it is. I have prepared, or have had prepared, forms of verdict which you all will take out with you in this case. In the case of J______ and in the case of T______, you are going to be asked a question, and it is written out here; in the case of T______, who is the oldest child, the question is did the defendant support the minor child, T______ L______, before the expiration of two years from the birth of said child and within two years before filing the Complaint on July 31, 1973. Now this question which you are going to take out with you, this—the defendant is asserting the statute of limitations. In so asserting, the burden of proof is on the defendant to reasonably satisfy you from the evidence that he did not support these two children within the time set forth in this question here." [Our emphasis.] Appellant, out of the presence of the jury,[1] duly excepted to those portions of the oral charge dealing with the burden of proof. The basis of appellant's contention is that the second clause of the statute [Tit. 27, § 12(9)] carves out an exception to the two-year period of limitation; and, thus, the plaintiff-state had the burden of proving (in the instances of the two children) that its case against appellant fell within this exception. With this contention we must agree. *543 Although this Court has never directly passed on this issue, the correctness of appellant's contention is implicit in the construction placed by this Court, and the then Court of Appeals, on the corresponding section of the now repealed "bastardy" statute [Tit. 6, § 7, Code of Alabama 1940 (Recompiled 1958)]. With the exception that it lengthens the period of limitation from one year to two years, the limitation provisions of the paternity statute [the "DeGraffenreid Act"] are identical with like provisions of the older "bastardy" statute. [See comparison of the two statutes by Judge Cates for the then Court of Appeals, in Ward v. State, 42 Ala.App. 529, 170 So.2d 500 (1964).] It is the rule of our cases that he who has the burden of proof on an issue will lose if no evidence is presented on such issue or if the evidence is equally balanced. Lester v. State, 270 Ala. 631, 121 So.2d 110 (1960); Ex parte State of Alabama (Vaughn v. State), 293 Ala. 365, 304 So.2d 6, [M.S., September 12, 1974]. In Roszell v. State, 19 Ala.App. 462, 98 So. 35 (1923), the Court of Appeals held, in an appeal from a bastardy proceeding, viz.: "In the instant case the complaint made November 25, 1921, upon which the warrant of arrest was issued, which brought the defendant into court, was the commencement of a new prosecution against the defendant. There was no evidence that the defendant had contributed to the support of the bastard child or that he had acknowledged its paternity. The complaint of March 19, 1918, was not introduced in evidence on the hearing before the justice of the peace, and did not come into the trial until the case reached the circuit court. The defendant made appropriate objection at every stage of the proceedings before the justice of the peace and in the circuit court. Having been put to trial in the justice court on the complaint made November 25, 1921, the defendant was entitled to the general affirmative charge on his plea of statute of limitations of one year. Section 6370, Code 1907." Of like import is Crawford v. State, 25 Ala.App. 417, 147 So. 686 (1933), similarly a "bastardy" case, wherein it was held: "* * * The child was born December 3, 1930, more than twelve months before the beginning of the prosecution. The evidence tended to prove that the defendant recognized his responsibility for the pregnancy of prosecutrix, before the birth of the child, but not afterwards." * * * * * * "The prosecution in this case having been begun more than twelve months after the birth of the child, and the defendant not having, after the birth of the child and within twelve months of the beginning of the prosecution, acknowledged or supported the child, the defendant was entitled to be discharged." See also, Stanford v. State, 27 Ala.App. 543, 176 So. 315 (1937), cert. den., 234 Ala. 544, 176 So. 316 (1937). In each of these decisions, it affirmatively appeared that the action had been brought after the lapse of the statutory period. In each case, no evidence was adduced that the putative father had or had not supported the child within a year [the then statutory limitation] before the bringing of the action. If, as the State contends, the burden of proof as to this issue rests with the appellant, then in each of these cases cited, the defendant would not have been entitled to be discharged on a mere showing of the running of the statutory period. Rather, he would have been put to proving the "negative," that he had "not supported" the child after the running of the one-year bar. The statute itself by the use of the words "unless in the meantime" carves out the exception or saving provision which tolls the running of the period of limitation. *544 We have held that when it affirmatively appears that a cause of action is time barred, the plaintiff has the burden of proof to show any special circumstances existing which would prevent the running of the statute. Tarlton v. Tarlton, 262 Ala. 67, 77 So.2d 347 (1955); Woods v. Sanders, 247 Ala. 492, 25 So.2d 141 (1946); Hall v. Hulsey, 271 Ala. 576, 126 So.2d 217 (1961); Thompson v. Collier, 170 Ala. 469, 54 So. 493 (1911); Smith v. Duvall, 201 Ala. 425, 78 So. 803 (1918); Knight v. Clements, 45 Ala. 89 (1871); Land v. Craig, 271 Ala. 580, 126 So.2d 221 (1961). This Court has held, in a suit on a note brought after the expiration of the statutory period, that the plaintiff has the burden of proving part payment to remove the bar of the statute. Knight v. Clements, supra; Thompson v. Collier, supra; Land v. Craig, supra. We can perceive of no good reason why the same burden of proof should not apply as to the instant statute of limitations, particularly in view of the wording of the statute to which we have already alluded. Therefore, we hold that the trial court erred in charging the jury that the defendant had the burden of proving that he did not support the two children before the expiration of two years from the birth of the children and within two years of the bringing of the action. The cause is due to be reversed and remanded with respect to the judgment as to the two children born more than two years before the bringing of the action. The second issue arose out of the cross-examination of the chief complaining witness, Ms. L______, mother of the children, when counsel for appellant asked her the following question: "Q (BY MR. PARKER) Ms. L______, did you hire Ms. Miglionico as special prosecutor in this case?" * * * * * * "THE COURT: I sustain the objection. Do not answer." The sustaining of this objection is assigned as error. In a long line of criminal cases, in this Court and in the Court of Appeals, it has been held competent for defendant to show the amount paid or promised to a special prosecutor employed by a witness to prosecute defendant because it directly relates to the question of the witness' bias or interest. The refusal to allow such question has been held to be reversible error. Dickey v. State, 197 Ala. 610, 73 So. 72 (1916); Ham v. State, 21 Ala.App. 103, 105 So. 390 (1925); Hembree v. State, 20 Ala.App. 181, 101 So. 221 (1924); Davidson v. State, 19 Ala.App. 77, 95 So. 54 (1923). In these cases, the threshold question as to whether the witness had employed a special prosecutor was asked without objection. Clearly, if the amount paid such prosecutor is admissible to show bias and refusal thereof is held to be reversible error, it should be self-evident that the initial inquiry as to employment of a special prosecutor is likewise admissible and is error to reverse if disallowed. In Wells v. State, 292 Ala. 256, 292 So.2d 471 (1973), this Court recently held it was error to refuse to permit cross-examination of a witness as to whether she had initiated a prosecution against defendant for another offense. The State does not question the correctness of the rule, but contends it is applicable only to criminal cases, and does not apply in the case before us as it is a civil proceeding. Tit. 27, § 12(2) ["DeGraffenreid Act"] provides: "The rules of civil procedure shall govern in such proceedings." However, a bastardy suit has long been regarded as neither strictly civil nor strictly criminal, but as partaking of the nature of *545 both. It is said to be quasi-criminal in character. See cases collected at 3A Ala.Dig., Bastards. Paternity proceedings must be initiated by complaint "under oath" in a court having power to "try and punish parents" [Tit. 27, § 12(1)]. After a complaint is filed, a warrant is issued for the defendant's arrest and he may be confined in jail or admitted to bail pending trial [Tit. 27, § 12(2)]. The circuit solicitor [now district attorney] is required to appear and "prosecute" and if the proceedings go against the accused, he is "found guilty" [Tit. 27, § 12(3), 12(4)]. Moreover, "The proceeding shall be entitled in the name of the state of Alabama against the accused as the reputed father." [Tit. 27, § 12(1)] In the context here applicable, relating to the bias or prejudice of a witness, a paternity suit is sufficiently analogous to a criminal proceeding to bring to bear the rule applicable in criminal cases. The mother of an illegitimate child is usually the principal witness against the defendant. Additionally, the statute provides that the support payments, awarded after a guilty verdict, may be paid directly to the mother. [Tit. 27, § 12(4)] In the case before us, the testimony given by the mother and that given by appellant-defendant were in irreconcilable conflict. The mother claimed the appellant virtually lived with her and fathered all three of her illegitimate children while the appellant claimed but a casual acquaintance with the mother and emphatically denied ever having had sexual intercourse with her at all. In such a situation, credibility (as affected by the possible bias or prejudice of the mother) would seem to be a critical issue. We hold that the trial court erred to reversal in sustaining the State's objection to the question propounded to the mother as to whether she had hired a special prosecutor because it relates to the possible bias or interest of the witness. The judgment of the trial court is reversed and remanded. Reversed and remanded. MERRILL, COLEMAN, HARWOOD, McCALL, FAULKNER and JONES, JJ., concur. HEFLIN, C. J., and MADDOX, J., concur in the result. NOTES [1] We note that this procedure is in accord with Rule 51, A.R.C.P. Our former practice required exception to the oral charge to be taken in open court before the jury retired. See cases collated at. Trial, Vol. 18A, Ala.Dig.

978 So.2d 81 (2006) MICHAEL LINDSEY v. STATE. No. CR-05-0771. Court of Criminal Appeals of Alabama. June 23, 2006. Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed.

150 Cal.App.2d 435 (1957) FRANK H. DEA, Appellant, v. DOLORES M. DAVY, Respondent. Civ. No. 22162. California Court of Appeals. Second Dist., Div. Two. Apr. 24, 1957. Anderson, Adams & Bacon for Appellant. Earl D. Reese for Respondent. ASHBURN, J. Appeal from judgment of nonsuit in action to recover a real estate broker's commission. On September 23, 1955, defendant owner signed an authorization for plaintiff broker to sell her "Trailer Park" for a price of $76,500, with a down payment of $15,000. On October 4, 1955, defendant signed a new "Owner's Statement" setting forth the terms upon which she would dispose of her property. The terms of sale included in this writing are substantially different from those of September 23d and we look to the later one as a basis for determining whether the agent performed such acts as would entitle him to collect a commission. The instrument of October 4 essentially provides for a lease *436 for three years with an option to purchase at the expiration of that period. The price is fixed at $76,500, and the body of the seller's authorization says: "I agree to the following $6000.00 Cash--$650.00 per month rental for three years or a total of $29,400.00 has been paid: At that time buyer may exercise his option to purchase, the $29,400.00 to be then considered as a down payment. Price to be the same as previous listing. Renter to pay taxes, insurance and upkeep. Owner to pay loans until such time as renter exercises option. Owner to pay Dea Realty Company ($1000.00) one thousand dollars at time above arrangement is made and the balance of commission ($2825.00) twenty eight hundred and twenty five dollars. When buyer exercises option to purchase. At that time buyer to pay ($3000.00) in cash, three thousand dollars, making a total of $32,400.00 to be applied against total purchase price. At time option is executed buyer to purchase subject to existing trust deeds, as paid down at that time, and seller to execute a purchase price trust deed to buyer for any difference there may be at that time, said trust deed to be payable at the rate of 1% per month including 6% interest." There is no mention of a policy of title insurance [fn. 1] and no reference to an escrow; no indication that payment of the $6,000 is to be deferred at all. That sum, plus the cash rentals and $3,000 payable upon exercise of the option, aggregate $32,400, the full amount of cash to be paid. There appears to be no occasion to bring down title until that time arrives, and certainly no indication in the writing that it would be done sooner, or that the "$6,000 cash" payment should be held in escrow awaiting that event or any other one. Plaintiff procured from one Cuthill and wife a written offer dated October 21, 1955, a "Deposit Receipt," signed by the broker and the buyers, which acknowledges payment of $600 as a deposit on account of the purchase price, and says: "Balance of ($5400.00) fifty four hundred dollars to be deposited in escrow within thirty days from date. Rents to be pro rated outside of escrow. Possession when deal comes out of escrow." The other terms square with the owner's authorization except that the printed portions call for a policy of title insurance, a return of the deposit in event of failure of seller to perfect title within a reasonable time, and further says: *437 "Seventh--Place of escrow__________." It also provides "that the property is sold subject to approval of the owner." This approval was never forthcoming. The owner did not execute the deposit agreement and refused to sign escrow instructions when presented to her. [1] This deposit receipt, with its provision for cash payment of $600 and deposit of $5,400 in escrow (instead of $6,000 in cash), amounted to a rejection of defendant's terms and the making of a new proposal which defendant declined to accept. Hence the broker failed to perform. The case of Andrews v. Waldo, 205 Cal. 764, 770 [272 P. 1052], is in point. Appellant relies on an asserted custom to handle the agreed down payment in the manner of the deposit receipt. His proof on that subject fell short of the goal. After testifying to same he said, on cross-examination: "Q. Mr. Dea, is it not a fact that this custom you spoke of, that the listing agreements which real estate brokers use, provide that an escrow will be opened in a reliable escrow company? A. Yes. Q. And isn't it a fact that these escrow agreements also provide that a policy of title insurance would be deposited in escrow by a reliable title insurance company? A. Yes. Q. Then isn't it a fact that the reason these escrows are opened is because the contract so provides? A. Yes." [2] The Andrews case, supra, says, at page 770: "But by express code provision stipulations which are necessary to make a contract conformable to usage are implied only in respect to matters concerning which the contract manifests no contrary intention. (Civ. Code, 1655.) In other words, where the known usage and the contract are in conflict the contract prevails." That is the situation at bar. The court properly granted a nonsuit. Judgment affirmed. Moore, P. J., and Fox, J., concurred. NOTES [fn. 1] 1. The first authorization did contain an agreement to furnish satisfactory policy of title insurance, but this provision was not incorporated in the document of October 4, either expressly or by reference.

Fourth Court of Appeals San Antonio, Texas July 31, 2017 No. 04-17-00249-CR EX PARTE COBY STEWART, Appellant From the County Court at Law No. 15, Bexar County, Texas Trial Court No. 486896 The Honorable Robert Behrens, Judge Presiding ORDER Before the Court is appellant’s motion for extension of time to file a brief and motion to supplement the appellate record. Appellant’s motion for extension of time is GRANTED. Appellant’s motion to supplement the record is DENIED as moot. _________________________________ Irene Rios, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 31st day of July, 2017. ___________________________________ Luz Estrada Chief Deputy Clerk 

376 U.S. 191 (1964) COX v. KANSAS. No. 453, Misc. Supreme Court of United States. Decided February 17, 1964. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF KANSAS. Petitioner pro se. William M. Ferguson, Attorney General of Kansas, for respondent. PER CURIAM. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Kansas for further consideration in light of Douglas v. California, 372 U. S. 353, and Daegele v. Kansas, 375 U. S. 1.

46 F.3d 1143 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.Larry J. OLSON, Plaintiff-Appellant,v.Charles CRAGIN; Daniel J. Stein; U.H. Ang, M.D.,Defendants-Appellees. No. 94-35390. United States Court of Appeals, Ninth Circuit. Submitted Dec. 19, 1994.*Decided Jan. 11, 1995. Before: SNEED, D.W. NELSON and TROTT, Circuit Judges. 1 MEMORANDUM** 2 Larry J. Olson appeals pro se the district court's dismissal of his claim against Board of Veterans' Appeals officials for denying him additional disability benefits. The district court dismissed Olson's complaint for lack of subject matter jurisdiction and failure to state a claim under Fed.R.Civ.P. 12(b)(6). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm. 3 We review de novo a district court's dismissal for lack of subject matter jurisdiction, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937 (1990), and for failure to state a claim upon which relief can be granted, Everest and Jennings v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994). 4 The United States as a sovereign may not be sued without its consent. United States v. Testan, 424 U.S. 392, 399 (1976). Any governmental waiver of immunity must be expressed unequivocally. United States v. Mitchell, 445 U.S. 535, 538 (1980). The district court is without jurisdiction to review Veterans Administration ("VA") benefits determinations. 38 U.S.C. Sec. 511(a).1 Section 511(a) provides: 5 The Secretary [of Veterans Affairs] shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.... Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by action in the nature of mandamus or otherwise. 6 Id. Section 511(a) does not bar judicial review of "constitutional attacks on legislation governing the provision of VA benefits." Rosen v. Walters, 719 F.2d 1422, 1423 (9th Cir.1983). Nevertheless, because the determination of veterans benefits is exclusively within the province of the VA, an attempt to challenge the allocation of benefits under the guise of a constitutional attack will not be permitted. Tietjen v. United States Veterans Admin., 884 F.2d 514, 515 (9th Cir.1989); Rosen, 719 F.2d at 1423. Thus, whether the district court has jurisdiction over Olson's action rests on "whether [the action] challenges a decision of the Administrator on a question of law or fact concerning a benefit provided by a law administrated by the Veterans Administration, or instead challenges the constitutionality of an Act of Congress." Tietjen, 884 F.2d at 515 (internal quotations omitted). 7 Olson contends that the defendants violated his due process rights by fraudulently denying him an increase in his service-connected benefits. Because Olson essentially seeks to challenge the VA's decision denying his application for benefits, the district court properly dismissed Olson's complaint for lack of jurisdiction. See 38 U.S.C. Sec. 511(a); Rosen, 719 F.2d at 1425. 8 Olson further alleges that the defendants are liable in their individual capacities under Bivens2 for the alleged constitutional violations that occurred during the course of his benefits determination proceedings. This contention lacks merit. We lack jurisdiction over Olson's due process claim seeking damages for procedural violations that allegedly occurred during his benefits determination proceedings because such determinations are "exclusively within the province of the VA." See Tietjan, 884 F.2d at 515. Accordingly, we refuse to assume jurisdiction over Olson's claims by way of a Bivens action. See id.; see also Sugrue v. Derwinski, 26 F.3d 8, 12 (2nd Cir.1994) (challenges to benefits determinations under Bivens not available because of "comprehensive remedial structure to address disputes regarding disability ratings and benefits claims by veterans"). 9 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Formerly 38 U.S.C. Sec. 211(a) 2 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 391 (1971)

900 F.2d 260 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.William C. STEVENHAGEN, et al. Plaintiffs-Appellants,v.James J. HELMS, et al. Defendants-Appellees. No. 89-3636. United States Court of Appeals, Sixth Circuit. April 18, 1990. Before BOYCE F. MARTIN, Jr. and NATHANIEL R. JONES, Circuit Judges, and JOHN FEIKENS, Senior District Judge.* PER CURIAM. 1 William and Mary Stevenhagen appeal the summary judgment against them in the amount of $39,376.09 and seek to avoid a judicial lien on their residence in this bankruptcy action. 2 James Helms won a judgment of $133,829.13 in an action against the Stevenhagens and Andy and Katherince Slabaugh in Ohio Summit County Common Pleas Court. The liability to Helms of the Slabaughs and the Stevenhagens stemmed from a loan that Helms had made to finance a real estate deal. When the real estate deal failed, the property that was the basis of the deal was insufficient collateral to cover the entire loan. 3 Helms entered into a partial settlement of the judgment with the Slabaughs, accepting assets totalling $103,000 in exchange for a total release for the Slabaughs. Because the Stevenhagens had filed for bankruptcy, Helms sought approval for the remainder of the judgment as a claim against them in bankruptcy court. 4 The bankruptcy court granted summary judgment on the claim for the remainer of the state court judgment, but held that the debt was dischargeable in the bankruptcy settlement. The bankruptcy court then refused to avoid the lien that Helms had filed against the Stevenhagens' home, relying on In re Peck, 55 B.R. 752 (N.D.Ohio 1985). The district court affirmed the judgments of the bankruptcy court. 5 Helms admits that any personal obligation of the Stevenhagens for the $39,376.09 claim was discharged by the bankruptcy proceedings. Thus, the only real issue on appeal is whether the lien on the Stevenhagens' home should have been avoided. 6 Whether the lien may be avoided is governed by 11 U.S.C. Sec. 522(f), which provides: 7 Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is-- 8 (1) a judicial lien; ... 9 Subsection (b) of section 522 has been superceded in Ohio by the state law provision, Ohio Rev.Code Sec. 2329.66. In re Peck, 55 B.R. 752 (N.D.Ohio 1985). Under Ohio Rev.Code Sec. 2329.66, a debtor may hold property exempt only from execution, garnishment, attachment, or sale to satisfy a judgment or order. Peck, 55 B.R. at 755. Cf. In re Owen, 877 F.2d 44 (11th Cir.1989) (debtor could not avoid judicial lien on homestead property where state had opted out of federal exemptions and superceding state law exemptions allowed judicial lien to be enforced). 10 In this case, the bankruptcy court correctly found that the Stevenhagens's home was not protected by an exemption under Ohio law. Thus, Helms's judicial lien is still enforceable under 11 U.S.C. Sec. 522(f). Although the Stevenhagens' debt to Helms has been discharged, the discharge does not affect a creditor's right to enforce liens against property of the estate. Estate of Lellock v. Prudential Ins. Co., 811 F.2d 186 (3d Cir.1987). 11 The Stevenhagens rely on Matter of Shields, 24 B.R. 219 (Bankr.S.D.Ohio 1982), to argue that the lien may be avoided because the property has been abandoned by the trustee and is no longer part of the estate. This reliance is unfounded because in Shields, the lien was unperfected at the time the property was abandoned. Here, there is no contention that the lien was unperfected. 12 The judgment of the district court is affirmed. * The Honorable John Feikens, Senior United States District Judge for the Eastern District of Michigan, sitting by designation

380 P.2d 943 (1963) Linda HINES, a Minor by her Father, Next Friend and Natural Guardian, Oscar Lee Hines, and Dependent School District No. 21, Grant County, Oklahoma, Plaintiffs in Error, v. INDEPENDENT SCHOOL DISTRICT NO. 50, GRANT COUNTY, Oklahoma, Defendant in Error. No. 40003. Supreme Court of Oklahoma. April 16, 1963. Drennan & Drennan, Medford, for plaintiffs in error. John L. Pollard, Medford, for defendant in error. *944 DAVISON, Justice. This is an appeal by Linda Hines, a minor, and Department School District No. 21, Grant County, Oklahoma (plaintiffs below) from an order and judgment sustaining the demurrer of Independent School District No. 50, Grant County, Oklahoma (defendant below) to plaintiffs' amended petition. The parties will be referred to by name or as they appeared in the lower court. Plaintiffs' action sought equitable relief in the nature of a mandatory injunction to approve Linda's application to transfer from her Oklahoma school district (plaintiff School District No. 21) to School District No. 20, Caldwell, Kansas, in order that she could attend high school in Caldwell, Kansas. The lower court sustained the demurrer to the amended petition on the ground that it did not state a cause of action. The petition of plaintiffs and the judgment of the trial court are founded upon the provisions of 70 O.S. 1961 §§ 8-1, 8-2, and 8-3. Plaintiffs' amended petition alleged that Linda was 15 years of age and lived with her parents in plaintiff School District No. 21, Grant County, and that during the school term 1961-1962 Linda would be a sophomore (grade 10) in high school, which grade was not offered by said District No. 21; that her residence was within the high school transportation area served by the defendant, with the high school located at Deer Creek, Oklahoma, but that her residence was 2 miles (by all-weather road) from Caldwell, Kansas, and 23 miles from Deer Creek in dry weather and 30 miles from Deer Creek in wet weather by all-weather road, and that the topography was such that her best interests could not be served by attending high school in Deer Creek. It was further alleged that the mailing address of Linda and her family was R.F.D., Caldwell, Kansas, and that their telephone service, town activities, trading, church attendance and home-town connections were with and centered around Caldwell, Kansas, and was where Linda was active in Rainbow; that Linda had attended Caldwell High School for a prior year of high school work, and had planned her curriculum for continued attendance, where she participates in school activities and where all her friends attend; that if required to attend school in Deer Creek she would be required to ride a bus and miss after-school activities and lose valuable studying time, and that she suffers from bus riding sickness, and that in wet weather the Deer Creek buses often do not run. The amended petition further alleged that plaintiff District No. 21 had approved Linda's application for transfer to Caldwell School District No. 20; that defendant had not granted a hearing on notice, had refused to approve the transfer because of a policy of defendant not to approve any out of state transfers, and had returned the application with the explanation that no out of state transfers could be granted by defendant; that the State Board of Education, after reviewing the application, had returned the same for completion and approval by *945 defendant; and that the plaintiff School District No. 21, is a self-supporting school district, receives no funds from the State of Oklahoma, and is ready, willing and able to pay the transfer fees of Linda. It was further alleged that the defendant unreasonably, arbitrarily, unlawfully and capriciously refused and failed to consider the best interests of Linda, as required by law; that because of the attitude, bias and prejudice of the board of the defendant, it would be fruitless to remand the matter to defendant for hearing; and that Linda has exhausted all her administrative remedies, has no adequate remedy at law, and will be irreparably damaged unless the court exercises its equitable powers and finds it is to the best interests of Linda to grant her transfer to Caldwell, Kansas, School District No. 20. There are further allegations that 70 O.S. 1961 § 8-1 et seq., are, as to Linda and her application for out of state transfer, discriminatory and unconstitutional. Our conclusion makes it unnecessary to consider the sufficiency of such allegations. Under 70 O.S. 1961 § 8-1, it is provided in part that a child, residing in a school district maintaining a school within the district, that does not offer the grade the child is entitled to pursue, is entitled to be transferred to a district which offers such grade, and for payment by the residence district to the transfer district of the amount of the per capita cost of the latter district. The next Section 8-2, provides in part for applications for transfers within the state to be filed with the County Superintendent of Schools and for applications for transfers to school districts in another state to be filed with the State Board of Education. As to those applications filed with and determined by the Superintendent there is provision for appeal to the district court, but there is no such provision relative to applications filed with the State Board of Education. In Section 8-3, it is provided inter alia, that the County Superintendent shall grant transfers if the residence district does not offer the required grade, or if the topography of the residence district or health of the child is such that the best interests of the child cannot be served by attendance in the child's residence district, or if the school board of the residence district determines the child's best interest will be served by such transfer, and that: "* * * Provided a child may be transferred by the State Board of Education to a school district in another state, if the board of education of the school district in which the child resides and the board of education of the high school district in whose transportation area the child resides determines that, the best interests of the child will be best served by such transfer. No transfer shall be granted for any reason not hereinbefore specified. No child shall be transferred under the provisions of this Article to a school district other than the one designated in the application for his transfer." Under the provisions of the above quoted statute the approval or lack of approval of the transfer by the board of education of the defendant was required to be based upon a determination of how the best interests of the child will be best served. The allegations of the amended petition negates any such determination but state the action of the defendant was based on a policy of denying any out of state transfers. Such alleged action was not in accordance with the statute. Furthermore, we are of the opinion that the allegations are sufficient to state that the transfer to the Caldwell High School will best serve the best interests of Linda. We base this conclusion mainly upon the great difference between the distances she would have to travel in attending the respective high schools and the consequential loss of time, inconvenience and uncertainty of regular attendance connected with attending the Deer Creek High School and the alleged fact that she is subject to bus sickness. The fact that her residence school district has approved the transfer *946 to Caldwell and the other alleged facts also support the conclusion that her best interests would be served by such transfer. In Moore v. Porterfield, 113 Okl. 234, 241 P. 346, we stated: "As a general rule, where public officials are intrusted with discretionary power in certain matters, an exercise of such discretion will not be controlled by injunction, but injunction may be issued in a case of a gross abuse of discretion, where it appears that such action was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. * * *" See also Joachim v. Board of Education of Walters, 207 Okl. 248, 249 P.2d 129. We believe the allegations of the amended petition state facts rendering the refusal to approve the transfer clearly untenable and unreasonable and a manifest abuse of discretion. Defendant argues in support of the trial court's action that the amended petition does not allege facts sufficient to support the conclusion that Linda will be irreparably damaged. This tenders the question of what damages would arise by reason of the wrongful denial of the application for transfer. We do not know of any rule or measure of damages by which the detriment or loss to Linda's best interests in securing an education may be measured. The detriment would be intangible and conjectural. In Baker v. Lloyd, 198 Okl. 512, 179 P.2d 913, 915, 171 A.L.R. 217, this court held that injury or detriment is irreparable when it is incapable of being fully compensated for in damages or where the measure of damages is so speculative that it would be difficult if not impossible to correctly arrive at the amount of the damages. See also 43 C.J.S. Injunctions § 23, p. 447. Defendant also urges as grounds for sustaining the demurrer that there is a defect of parties defendant in that the State Board of Education was not made a defendant. The defendant cites no authority as to the necessity of making that Board a defendant. The answer to this contention is that the amended petition reflects that such Board returned the application only for the purpose of completion and approval by the defendant as required by the statute, supra. The purpose of this action is to comply with such requirement to secure approval of the application. The proceedings had not progressed to the point which would require the State Board of Education to be made a necessary party. The judgment of the lower court is reversed and the matter is remanded for further proceedings consistent with the views herein expressed. BLACKBIRD, C.J., HALLEY, V.C.J., and JOHNSON, WILLIAMS, JACKSON, IRWIN and BERRY, JJ., concur.

737 F.2d 134 Elliot W. TAYLOR, Plaintiff, Appellant,v.Robert J. GALLAGHER, et al., Defendants, Appellees. No. 84-1098. United States Court of Appeals,First Circuit. Argued May 7, 1984.Decided June 25, 1984. Eric I. Zucker, Boston, Mass., with whom Gary R. Greenberg, and Goldstein & Manello, Boston, Mass., were on brief, for appellant. Joseph D. Steinfield, Boston, Mass., with whom Hill & Barlow, Boston, Mass., was on brief, for Robert J. Gallagher. Before COFFIN and BREYER, Circuit Judges, and PETTINE,* Senior District Judge. COFFIN, Circuit Judge. 1 Plaintiff Elliott Taylor appeals from an award of summary judgment in a malpractice action against attorney Robert Gallagher, who had represented Taylor in litigation against International House of Pancakes (IHOP). Taylor's complaint against Gallagher alleged negligence, breach of fiduciary duty, and breach of contract. 2 The essential facts are not in dispute. Taylor owned two IHOP franchises and in the early 1970's had a dispute with IHOP concerning money owed IHOP under the franchise agreements. On March 15, 1974, the parties entered into an agreement under which Taylor paid IHOP $5,000 and signed a promissory note for $35,000, an amount representing a preliminary determination of Taylor's indebtedness to IHOP as of December 9, 1973. The parties also agreed to submit the issue of Taylor's indebtedness prior to December 9, 1973, to arbitration and to substitute the arbitrators' determination of Taylor's indebtedness as of December 9, 1973, if any, for the promissory note figure of $35,000. The March 15, 1974, agreement also obligated Taylor to pay on a current basis all open account indebtedness arising on or after December 10, 1973. The agreement gave IHOP judgments for possession of both of Taylor's franchises, but the judgments were to be stayed so long as Taylor remained in compliance with the terms of the agreement. 3 In January 1975, IHOP took possession of one of Taylor's franchises and gave notice that it intended to take possession of the other. Gallagher filed suit on Taylor's behalf in Worcester Superior Court to enjoin IHOP from taking possession. IHOP counterclaimed in three counts: two counts claiming recovery for Taylor's open account indebtedness incurred since December 10, 1973, and the third count claiming approximately $17,000, the amount allegedly remaining due on the $35,000 promissory note. The superior court appointed a master. 4 In December 1976, the arbitrators found that the net amount owed by Taylor to IHOP as of December 9, 1973, equalled $13,025.23. Under the March 15, 1974, agreement, this figure should have replaced the $35,000 amount in the promissory note. On February 14, 1977, Gallagher had the arbitral award confirmed in a separate action in superior court. The next day the master in Taylor's suit against IHOP filed a report essentially adverse to Taylor on each of IHOP's three counterclaims. 5 Gallagher then filed two motions, with accompanying briefs and attachments, that attempted to convince the superior court to substitute, pursuant to the parties' March 15, 1974, agreement, the arbitral award for the $35,000 promissory note. The present suit focuses on the adequacy vel non of Gallagher's attempts to bring the arbitral award and its significance to the attention of the superior court. 6 Gallagher filed the first motion, a "Motion for Leave to File Supplemental Pleading--Answer to Counterclaim", on February 23, 1977. The supplemental pleading alleged overpayment on the modified promissory note as a further defense to IHOP's third counterclaim. The superior court denied this motion on April 15, 1977. 7 A year later, on May 1, 1978, Gallagher filed a "Motion for Judgment". The proposed judgment would have dismissed IHOP's third counterclaim and awarded Taylor a sum equivalent to his alleged overpayments on the promissory note. The superior court denied this motion on May 9, 1978. Soon thereafter, the court entered judgment in favor of IHOP as recommended by the master. 8 Taylor then retained a new attorney, Douglas Moxham of Hale & Dorr, for his appeal from the superior court judgment. On appeal, Taylor (through Moxham) did not challenge the superior court's failure to substitute the arbitral award for the $35,000 promissory note. The appeals court affirmed, Taylor v. International Industries, Inc., 8 Mass.App. 865, 398 N.E.2d 501 (1979), and the Supreme Judicial Court denied further appellate review. 379 Mass. 928 (1980). 9 Undaunted, Taylor (through Moxham) filed a motion for relief from judgment in the superior court, arguing that the superior court record "did not include reference to an arbitration award and judgment". The court denied this motion, and Taylor again appealed. While the appeal was pending, Taylor, who by this time had replaced Moxham with another attorney, filed the instant action against Gallagher in federal district court. The state appellate court summarily affirmed the denial of Taylor's motion for relief from judgment and assessed double costs and 12% interest against Taylor. 10 Taylor's main criticism of Gallagher's performance in the original superior court action concerns Gallagher's failure explicitly to mention the arbitral award on the face of either the supplemental pleading or the proposed judgment. Taylor argues that in Gallagher's two attempts to notify the superior court of the arbitral award, Gallagher did "no more than briefly note" in accompanying memoranda the existence or outcome of the arbitration. 11 If by "briefly noted" Taylor means that Gallagher noted the arbitral award only in a brief, then Taylor may have a point. But Taylor's factual claims and legal analysis otherwise have no merit, as an examination of the superior court record amply demonstrates. In briefs accompanying both motions, Gallagher clearly explained the significance of both the arbitral award and the promissory note under the March 15, 1974, agreement. In both briefs, Gallagher noted the amount of the arbitral award and stated, "It is this figure [$13,025.23] which should be substituted for the $35,000.00 note." Gallagher attached to his briefs copies of the arbitrators' decision and of the separate superior court judgment confirming the arbitrators' award. 12 Despite Gallagher's efforts, the superior court entered judgment for IHOP in an amount that did not reflect the arbitrators' decision. While the record contains no explanation of why the superior court ignored the arbitrators' decision, we suppose that if Gallagher's performance had been so egregiously inadequate as to cause the superior court to treat Taylor unjustly, then Taylor's new attorney Moxham would have mentioned the arbitral award in Taylor's first appeal. But he did not. The state appellate court found Taylor's second appeal, which focused on the superior court's lack of recognition of the arbitral award, to be frivolous.1 13 In the present action, the district court held, in granting Gallagher's motion for summary judgment, that "these facts reveal no genuine issue of material fact for a jury to resolve". We agree. Taylor's conclusory (mis)characterizations of Gallagher's submissions to the superior court do not suffice to raise genuine issues of material fact that would preclude summary judgment against Taylor. See Over the Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d 816, 819-20, (1st Cir.1980) (citing cases). 14 Given the absence of genuine, material factual issues, summary judgment is appropriate where, as here, only one inference can be drawn from the facts. See, e.g., Wallace v. Shade Tobacco Growers Agricultural Ass'n, 642 F.2d 17, 20 (1st Cir.1981); O'Neill v. Dell Publishing Co., 630 F.2d 685, 690 (1st Cir.1980). Taylor argues that the district court usurped the jury's role in determining that the facts presented by Taylor could not prove malpractice. Taylor contends that a malpractice suit "requires a determination as to reasonableness, which determination must be left to the jury and is therefore wholly inappropriate for resolution by summary judgment". 15 Although a court may not weigh the evidence or make credibility determinations in granting summary judgment, the court may end a suit before trial if the court determines that, taking the facts and reasonable inferences therefrom in the light most favorable to the non-moving party, no reasonable juror could find for that party. E.g., O'Neill v. Dell Publishing Co., 630 F.2d at 690; Manganaro v. Delaval Separator Co., 309 F.2d 389, 392-93 (1st Cir.1962). Summary judgment is inappropriate in negligence actions only if genuine issues of material fact exist or if reasonable jurors could draw different inferences from agreed facts. See Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th Cir.1970). If the facts of this case admitted of more than one inference regarding the reasonableness of Gallagher's actions, then the issue of reasonableness should have gone to the jury. However, on the record before us, we see no facts that could reasonably contradict the inference that Gallagher acted with skill and diligence in apprising the superior court of the arbitral award and its significance. Taylor may not create the possibility of conflicting inferences through wishful thinking about how a sympathetic jury might justify ordering Gallagher to compensate Taylor for the superior court's alleged oversight. 16 Under the circumstances, the district court did not err in denying Taylor's request for discovery. A court may grant summary judgment despite an opposing party's claim that discovery would yield additional facts where the opposing party has not alleged specific facts that could be developed through such discovery. See, e.g., Santoni v. Federal Deposit Insurance Corp., 677 F.2d 174, 179 (1st Cir.1982); Neely v. St. Paul Fire & Marine Insurance Co., 584 F.2d 341, 344 (9th Cir.1978). Taylor did not show, through a Rule 56(f) affidavit or otherwise, how discovery could have breathed life into his claim. 17 In this appeal, Taylor understandably has attempted to shore up his malpractice claim by faulting not merely Gallagher's failure to bring the arbitral award to the superior court's attention, but also Gallagher's tardiness in doing so. However, Taylor is the tardy one: He did not mention in his complaint the timeliness of Gallagher's submission of claims to arbitration or of Gallagher's attempts to bring the arbitral award to the superior court's attention. Taylor made only a passing reference to timeliness in his 19-page memorandum in opposition to Gallagher's motion for summary judgment. Taylor's affidavit made no mention of timeliness. In sum, the record on which the district court awarded summary judgment did not adequately present Taylor's current argument that Gallagher moved too slowly in asserting Taylor's rights in the superior court. See Over the Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d at 818-19 (summary judgment appropriate where opposing party was unable "to point to specific facts that were properly asserted in its affidavits and supporting materials which, if established at trial, would entitle it to prevail ..."). 18 The judgment of the district court is affirmed. Costs to appellees. * Of the District of Rhode Island, sitting by designation 1 The appellate court awarded double costs and interest on the amount of the judgment against Taylor, thus implying that the appeal was frivolous. See Mass.R.App.P. 25

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES v. Senior Airman ROBERT S. BOERS United States Air Force ACM 38855 7 September 2016 Sentence adjudged 8 April 2015 by GCM convened at Kadena Air Base, Okinawa, Japan. Military Judge: Gregory O. Friedland (sitting alone). Approved Sentence: Bad-conduct discharge, confinement for 12 months, forfeiture of all pay and allowances, and reduction to E-1. Appellate Counsel for Appellant: Major Thomas A. Smith and Captain Virginia M. Bare. Appellate Counsel for the United States: Major Jeremy D. Gehman and Gerald R. Bruce, Esquire. Before MAYBERRY, SPERANZA, and JOHNSON Appellate Military Judges OPINION OF THE COURT This opinion is issued as an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. JOHNSON, Judge: At a general court-martial composed of a military judge sitting alone, Appellant was found guilty, in accordance with his pleas, of two specifications of attempting to commit lewd acts upon a child, and of resisting apprehension by a special agent of the Air Force Office of Special Investigations, in violation of Articles 80 and 95, UCMJ, 10 U.S.C. §§ 880, 895.1 The court sentenced Appellant to a bad-conduct discharge, confinement for 12 months, forfeiture of all pay and allowances, and reduction to E-1. The convening authority approved the sentence as adjudged. Before us, Appellant requests relief for unreasonable delay in the post-trial processing of his case. Finding such relief is not warranted in this case, we affirm the findings and sentence. Background Appellant’s court-martial concluded on 8 April 2015 at Kadena Air Base, Okinawa, Japan. The convening authority took action on the case 79 days later, on 26 June 2015. The wing legal office received the signed action from the convening authority’s staff judge advocate on 29 June 2015, but the wing legal office did not receive the signed promulgating order until over a week later. On 10 July 2015, the wing legal office put the completed record of trial into the mail from Japan to the Military Justice Division, Air Force Legal Operations Agency, located at Joint Base Andrews, Maryland, where it was received on 28 July 2015. The record of trial was docketed with this court the following day, 29 July 2015, 33 days after the convening authority’s action. Post-trial Processing Delay In United States v. Moreno, our superior court established a presumption of unreasonable post-trial delay when the convening authority does not take action within 120 days of the completion of trial, and when the record of trial is not docketed with the service court within 30 days of the convening authority’s action. 63 M.J. 129, 142 (C.A.A.F. 2006). Appellant asserts we should grant meaningful relief because the 33 days that elapsed between action and docketing with this Court exceeded the Moreno standard by three days. There are two phases to our analysis of whether Appellant is entitled to relief. First, we determine whether the delay in this case amounts to a denial of Appellant’s due process right to speedy post-trial review and appeal. Id. at 135. Next, even if we find no due process violation, we also consider whether this court should exercise its power under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to grant relief for excessive post-trial delay. United States v. Tardif, 57 M.J. 219, 224-25 (C.A.A.F. 2002). Our superior court has identified four factors to consider in determining whether post-trial delay amounts to a violation of due process rights: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to a timely review; 1 Pursuant to Appellant’s pretrial agreement with the convening authority, one specification of attempting to commit a sexual act on a child in violation of Article 80, UCMJ, 10 U.S.C. § 880, was withdrawn and dismissed at trial. 2 ACM 38855 and (4) prejudice to the appellant. Moreno, 63 M.J. at 135 (citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005); United States v. Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004)). “No single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding.” Moreno, 63 M.J. at 136 (citing Barker v. Wingo, 407 U.S. 514, 533 (1972)). However, where an appellant has not shown prejudice from the delay, there is no due process violation unless the delay is so egregious as to “adversely affect the public’s perception of the fairness and integrity of the military justice system.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). In the instant case, although the delay between action and docketing with this court was facially unreasonable per Moreno, Appellant does not allege any prejudice from that delay, and we find none. Balancing the other factors, we do not find the delay so egregious as to undermine the appearance of fairness and integrity within the military justice system. Therefore, we find no due process violation. Next we consider whether Article 66(c), UCMJ, relief pursuant to Tardif is appropriate. 57 M.J. at 224–25. We are guided by factors enumerated in United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016), with no single factor being dispositive. These factors include the length of the delay, the reasons for the delay, evidence of harm to Appellant or the justice system caused by the delay, and evidence of institutional neglect. Id. We are mindful of our superior court’s admonition that “delay in the administrative handling and forwarding of the record of trial and related documents to an appellate court—is the least defensible of all [post-trial delays] and worthy of the least patience.” United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990). In this case, the 33 days that elapsed between action and docketing exceeded the Moreno standard, but only by three days. As noted above, the trial-to-action phase of the processing was accomplished in a relatively expeditious 79 days, far below the 120-day Moreno standard. Although we recognize Moreno did not establish a trial-to-docketing time standard, and although efficiency in one phase of the process does not necessarily excuse neglect in another phase, on the whole Appellant’s case has not been subjected to severe post-trial delay. As for the reasons for the delay, the majority—18 days—of the delay between action and docketing occurred when the record of trial was traveling through the mail from Okinawa, Japan to Maryland. The Government asserts that such delays are typical in mailing material from Japan to the United States. We recognize that geography may impact the amount of time required to deliver a record of trial so that it may be docketed with this court. However, this is merely one factor among several to be considered in our case-by- case analysis of potential Article 66(c), UCMJ, relief for post-trial delay. Indeed, awareness of such conditions underscores the need for vigilance in those parts of the process that are more directly under the Government’s control. We are not inclined, and do not encourage the Government, to view a relatively long mail transit period as a rationalization for violating the Moreno standards. The affidavit of the then-Chief of 3 ACM 38855 Litigation at Kadena Air Base offered by the Government does not provide a thorough or compelling explanation for other periods of the post-action delay in this case, such as the delay between action and delivery of a signed promulgating order to the wing legal office. In another case, such imprecise accounting could contribute to a different result. However, turning to the remaining factors, in this case we discern no particular harm to either Appellant or the justice system, nor are we presented with evidence of systemic institutional neglect. Considering all the circumstances together, we do not find relief appropriate. Conclusion The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence are AFFIRMED. FOR THE COURT LEAH M. CALAHAN Clerk of the Court 4 ACM 38855 

125 F.3d 1287 97 Cal. Daily Op. Serv. 7453, 97 Daily JournalD.A.R. 12,013UNITED STATES of America, Plaintiff-Appellee,v.Gerald C. BARNES, aka Gerald Charles Barnes; Gerald Barnes;Jerald C. Barnes; Jerald Charles Barnes; Jerry C. Barnes;Jerry Donald Barnes; Jerry Barnes; Jerald CharlesBarnbaum; Jerald Barnbaum; Gerald Barnbaum; GeraldBirnbaum; "Doc" Barnes, Defendant-Appellant. No. 96-50611. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 8, 1997.Decided Sept. 18, 1997. Korey House, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant. Daniel A. Saunders, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, Presiding. D.C. No. CR-96-00443-JSL-(01). Before: BROWNING, BRUNETTI, and TROTT, Circuit Judges. BRUNETTI, Circuit Judge: 1 Appellant Gerald Barnes appeals the sentence imposed by the district court following his guilty plea for charges stemming from his fraudulent impersonation of a medical doctor. Appellant contends that the district court misapplied the United States Sentencing Guidelines ("Guidelines") to his case. Except for the court's application of the Guidelines' amount of loss provision, we affirm the decision. Accordingly, we remand for recalculation of the loss suffered by the victims and resentencing of Appellant. I. Facts 2 The facts in this case are undisputed. Appellant, a trained pharmacist, was born Jerald Barnbaum; he later changed his name to Gerald Barnes. In 1976, after his indictment for mail fraud in Illinois, Appellant's pharmaceutical license was revoked. He subsequently moved to Southern California and began to practice medicine, although he had never attended medical school nor received a medical license. To impersonate a trained physician, Appellant fraudulently obtained documents pertaining to the qualifications of a legitimately licensed doctor, also named Gerald Barnes. He then used these documents to acquire medical positions. 3 The media has written extensively about Appellant's conduct over the past two decades, and the details are not relevant to this decision and need not be recounted. See, e.g., Kenneth B. Noble, Doctor's Specialty Turns Out to Be Masquerade, N.Y. Times, Apr. 17, 1996, at A1; John Carlova, "A Loaded Gun Waiting to Go Off", Medical Economics, Jan. 21, 1985, at 56. Appellant's prior malfeasance resulted in three convictions for practicing without a license and at least one patient's death. 4 In October 1991, after his release from state custody, Appellant obtained employment as a medical doctor with a medical clinic in the Los Angeles area. Over the next five years, he worked at six area medical clinics and doctor's groups and received a salary from his employers for examining and treating patients. In short, Appellant fraudulently represented himself as Doctor Gerald Barnes. 5 In April 1996, Appellant was indicted for his fraudulent actions. In May, the grand jury issued a thirty-one count superseding indictment charging Appellant with mail fraud in violation of 18 U.S.C. § 1341, distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1), and use of a Drug Enforcement Administration registration issued to another person in violation of 21 U.S.C. § 843(a)(2). In June, Appellant entered into an agreement with the government, pleading guilty to counts covering each of the three charges. In October, the district court sentenced Appellant to 150 months in prison. Appellant timely appealed. II. Discussion A. Standard of Review 6 We review the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Robinson, 94 F.3d 1325, 1327 (9th Cir.1996). The district court's application of the Sentencing Guidelines to the facts is reviewed for abuse of discretion. Id. Factual findings underlying the sentencing decision are reviewed for clear error. Id. B. Calculating the Amount of Loss 7 Appellant contends that the district court erred under U.S.S.G. § 2F1.1 in calculating the amount of loss due to his fraud. The Sentencing Guidelines provide a base offense level of six for offenses involving fraud and deceit. See U.S.S.G. § 2F1.1(a). The Guidelines increase this level incrementally based upon the amount of monetary loss attributable to the fraud. See U.S.S.G. § 2F1.1(b)(1). The government and the probation officers calculated losses by using the total amount of billings attributable to Appellant's services. Here, the district court found that Appellant's fraud resulted in a loss of more than $2,500,000 but less than $5,000,000. Although the district court failed to specify the exact amount of loss it found, the court stated at the sentencing hearing that it agreed with the government's valuation of loss. In various documents, the government listed a total loss ranging from $3,496,323.10 to 5,551,167. Because the court increased Appellant's offense level by thirteen steps, we know that it found between $2,500,000 and $5,000,000 in losses. See U.S.S.G. § 2F1.1(b)(1)(n) & (o). Appellant takes issue with the court's evaluation of the total loss caused by his actions and the resulting sentence. 8 Under the Sentencing Guidelines, loss is "the value of the money, property, or services unlawfully taken." U.S.S.G. § 2F1.1, comment. (n.7). When the government seeks an upward adjustment of the offense level it bears the burden of proving loss by a preponderance of the evidence. United States v. Joetzki, 952 F.2d 1090, 1096 (9th Cir.1991). Although "the loss need not be determined with precision" and a "reasonable estimate" is enough, mere speculation is insufficient. U.S.S.G. § 2F1.1, comment. (n.8). 9 Here, the district court used the "recision method" to calculate the total loss caused by Appellant's fraud. In doing so, the court calculated the amount necessary to refund the total charges billed by Appellant's employers for all patients Appellant treated or examined. The court, however, ignored any benefit which Appellant may have provided to the clinics. 10 Because the loss caused by Appellant's employment at Bio-Medics presents the only real issue, we will concentrate on that calculation. From October 1991 through June 1994, Appellant worked part-time at the Bio-Medics plasma center, which sells donated plasma to third parties. During his employment, Appellant performed physical examinations on potential blood donors and reviewed and signed quarterly lab reports containing the results of tests performed on the donated plasma. The government estimated that Appellant's work accounted for $4,214,655 of the center's gross revenues during his tenure. Appellant received $181,989 in total wages for this work. It is important to note that no Bio-Medics customers demanded a refund for monies paid for plasma donated by people examined by the Appellant. In addition, the clinic billed neither the plasma donors nor their insurance companies for the physical examination or the blood tests performed by Appellant or any other employee. Apparently, Appellant's fraudulent actions resulted in no harm to either patients or plasma customers. In short, absent his total salary, Appellant's fraud imposed no monetary loss upon the clinic, donors, or customers. 11 Despite this evidence of Appellant's satisfactory, albeit illegitimate service, the district court accepted the government's valuation of loss, which was based on the revenue generated by Appellant's services. The court found that the total loss to Bio-Medics exceeded $4,000,000. This approach, however, runs counter to established precedent. 12 In United States v. Maurello, 76 F.3d 1304 (3d Cir.1996), the Third Circuit closely examined the Guidelines as applied to an analogous situation. There, the court assessed the amount of damage caused by a disbarred attorney who continued to provide legal services to clients. See Maurello, 76 F.3d at 1308-13. The court rejected the government's argument that Maurello should be liable for "every dollar paid to defendant during his illegitimate practice" despite the satisfactory nature of some services. Instead, it held that 13 [a] client who obtains a satisfactory contract, settlement, or verdict has received something of value, irrespective of whether the lawyer was licensed at the time. 14 * * * 15 [T]he victim has sustained no loss because he has received the services for which he bargained, despite the fact that he has received them from a person who was not legally authorized to offer them. 16 Id. at 1311-12. To determine the amount of loss, the court remanded the case to the trial court to ascertain which of the dissatisfied clients' complaints were legitimate and the total loss attributable to those complaints. Id. at 1313. It cautioned, however, that "[t]o the extent that the unauthorized services provided by defendant have not harmed their recipients, but to the contrary have benefitted them, we conclude that defendant's base offense level should not be enhanced." Id. at 1312.1 In light of the extensive precedent acknowledging that value may be rendered even amid fraudulent conduct, the district court erred in failing to award Appellant credit for the value of the services he provided satisfactorily. 17 On remand, the district court must review the record to determine if any loss resulted from Appellant's employment at Bio-Medics. In employing Maurello's framework, our review reveals no such loss. In situations like this case, "the victim has sustained no loss because he received the services for which he bargained, despite the fact that he has received them from a person who was not legally authorized to offer them." Maurello, 76 F.3d at 1312. Based on our analysis, the record fails to show that Bio-Medics, donors, or recipients suffered from Appellant's work. Thus, we remand to the district court to determine if Appellant's fraud created a loss for any victim associated with Bio-Medics. Absent such a finding, the court may not use any monetary figure stemming from Bio-Medics to enhance Appellant's sentence. 18 In remanding to the district court for recalculation of the total loss, we do not adopt Appellant's theory that the determination must be limited to the total salary he received during the course of his fraud. Appellant has certainly wrought considerable havoc through his forays into the practice of unlicensed medicine. The district court should consider that upward departure may be warranted where "the loss determined under subsection (b)(1) does not fully capture the harmfulness and seriousness of the conduct." U.S.S.G. § 2F1.1, comment. (n. 10). As the Third Circuit has noted, "the district court is free to reconsider on remand whether the properly calculated 'loss' significantly over-- or understates the gravity of the crime, and therefore whether departure from the normal sentencing range is appropriate." Maurello, 76 F.3d at 1313 (quotations omitted). 19 As to the services rendered by Appellant at the various medical groups, we do not take issue with the district court's use of the recision method. Unlike the consumers of the plasma from Bio-Medics, Appellant's clinic patients paid for the express purpose of seeing a licensed medical doctor. Although some of his work may not have been harmful, we cannot say that Appellant provided any form of satisfactory service to these unsuspecting patients. Consequently, the district court correctly valued their total loss as the full amount billed to them for Appellant's treatment. 20 C. Abuse of A Position of Trust or Use of Special Skill 21 The Appellant also maintains that the district court erred in imposing a two-level enhancement under U.S.S.G. § 3B1.3 for abuse of a position of trust or use of a special skill. He argues that this provision does not apply to an individual such as himself, who does not legitimately occupy a position of trust. 22 Section 3B1.3 provides for a two-level increase 23 [i]f the defendant abused a position of public or private trust or used a special skill in a manner that significantly facilitated the commission or concealment of the offense. 24 Appellant contends that because he was not in fact a medical doctor, he could not have occupied a position of trust. We reject this contention. 25 Our precedent soundly refutes Appellant's argument. We have stated that "[f]or purposes of section 3B1.3, a position of trust, if any, must be established from the perspective of the victim." United States v. Hill, 915 F.2d 502, 506 n. 3 (9th Cir.1990). Because Appellant does not argue that his employers and patients failed to perceive him as anything but a doctor, section 3B1.3 applies. We do not read the Guidelines as mandating that one must actually hold a position of authority in order to qualify for the enhancement. We will not create such a requirement now. 26 Further, Appellant's argument contradicts his previous assertion that the value of the services provided to his employers and patients should offset our calculation of the total loss. Appellant now argues that his unlicensed status insulates him from the type of liability imposed on a real physician. It was, of course, Appellant's ability to dupe his employers and patients which made his crime such a serious offense. Appellant's abuse of the fundamental trust between doctor and patient is precisely the sort of behavior to which section 3B1.3 is directed. 27 Our conclusion is supported by out-of-circuit holdings. The First Circuit applied this enhancement to a defendant who impersonated a psychologist. United States v. Gill, 99 F.3d 484, 488-89 (1st Cir.1996). In Gill, the court stated that 28 the guideline could be taken to refer only to one who legally or legitimately occupied a position of trust, presumably the usual case. But the threat that animates the guideline may as easily be present where the position is occupied by an imposter. That threat ... is that wrongdoer's position facilitates the crime, reduces the chance of detection, or both. 29 Id. at 489. The Tenth Circuit has echoed this conclusion. See United States v. Queen, 4 F.3d 925, 929 (10th Cir.1993) (holding that defendant who impersonated investment adviser/broker qualified for the 3B1.3 enhancement because victim's perception as such created opportunity for his fraud). 30 In holding that an imposter may abuse his assumed position of trust, we also expressly reject Appellant's primary case, United States v. Echevarria, 33 F.3d 175, 181 (2d Cir.1994) (holding that enhancement is applied only to those who legitimately hold position of trust). As noted above, we will not subject the Guidelines to such a strained and narrow interpretation. 31 In conclusion, Appellant certainly employed a "special skill not possessed by members of the general public" in perpetrating his fraud. Accordingly, we affirm the district court's two-level enhancement for abuse of position of trust or use of special skill. D. Obstruction of Justice 32 Appellant argues that the district court erred in applying a two-level enhancement for obstruction of justice. Appellant failed to inform the probation officer about a fourth marriage, which ended in divorce prior to his then-current fifth marriage. He contends that the misrepresentation and omissions regarding his background were not material and therefore could not serve as a basis for application of the enhancement. 33 Section 3C1.1 requires a two-level increase 34 [i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the ... sentencing of the instant offense. 35 The adjustment is appropriate where a defendant provides "materially false information to a probation officer in respect to a presentence or other investigation." U.S.S.G. § 3C1.1, comment. (n.3(h)). Information is material if it "would tend to influence or affect the issue under determination." Id. at comment. (n.5). 36 We have held that "for purposes of the obstruction adjustment, it is irrelevant whether justice is actually obstructed or impeded. It is sufficient that the conduct in question has the potential for obstruction of the investigation, prosecution, or sentencing of the instant offense." United States v. Draper, 996 F.2d 982, 986 (9th Cir.1993). Here, the district court found that Appellant omitted the information because he had been subject to a temporary restraining order due to violent conduct toward his former spouse. His former wife also indicated that Appellant owed her $50,000 in unpaid spousal support. At the sentencing hearing, the court stated: 37 What we have as to the wife who was not disclosed is allegations by her of physical violence and ... deception. 38 * * * 39 Those allegations simply seem to me to be additive to the overall picture. And I don't find it easy to believe that this is an innocent mistake that somebody forgot to mention ... so one thinks that there was probably a purpose for that. 40 Thus, the district court found that Appellant's omission was conscious, material, and had the potential to impede sentencing. 41 The district court's interpretation of Appellant's deceit falls well within its broad discretion over sentencing enhancement. See United States v. Magana-Guerrero, 80 F.3d 398, 400-01 (9th Cir.1996) (holding that court did not err in inferring from probation officer's testimony that defendant had lied about prior aliases and that this was sufficient basis for imposing obstruction of justice enhancement). Accordingly, we affirm the enhancement for obstruction of justice. 42 E. Psychological Harm and Severe Emotional Distress to Patients Caused by Appellant's Fraud 43 Finally, Appellant claims that the district court erred in applying a two-level upward departure based upon severe emotional trauma and other nonmonetary harm to victims resulting from his scheme. He contends that the district court failed to "make any findings regarding the applicability of the departure to the facts of this case or why it chose a two-level upward departure." He also argues that the facts of this case were "not sufficiently atypical to warrant an upward departure." 44 As we noted, the Sentencing Guidelines contemplate an upward departure where the loss determined under section 2F1.1(b)(1) does not "fully capture the harmfulness and seriousness of the conduct." U.S.S.G. § 2F1.1, comment. (n.10(a)). The notes refer to cases where "the fraud caused or risked reasonably foreseeable, substantial non-monetary harm" or "the offense caused reasonably foreseeable, physical or psychological harm or severe emotional trauma." U.S.S.G. § 2F1.1, comment. (n.10(a) & (c)). 45 Here, the Appellant's claims are meritless. First, the district court specifically noted that it agreed with the government concerning the trauma enhancement. The government presented its arguments in the pleadings addressing the sentencing factors. It based its position on numerous letters submitted by the Appellant's victims concerning the emotional and physical impact of his fraud. Thus, the court made its decision in light of copious explanatory material provided by the government. Accordingly, no need existed for the court to explain its ruling further. 46 Appellant also fails to provide legal support for his argument that the harms resulting from his crime were not sufficiently atypical to warrant such a departure. Accordingly, we deem the argument waived. See Seattle School Dist., No. 1 v. B.S., 82 F.3d 1493, 1502 (9th Cir.1996) (holding that party waives issue when it "present[s] no explanation in support of its contention of error."). Further, this court finds Appellant's conduct to be most exceptional in its callous disregard for both the physical and mental well-being of his victims. Accordingly, we affirm the district court's two-level enhancement for psychological harm and emotional distress. III. CONCLUSION 47 Because we find that the district court erred in calculating the amount of loss suffered by Appellant's victims, we remand for redetermination on that issue and resentencing. We affirm the remainder of the district court's sentencing decisions. 48 VACATED IN PART AND REMANDED FOR RESENTENCING. 1 The Third Circuit's comprehensive examination of the Guidelines is consistent with our more general precedent. See United States v. Harper, 32 F.3d 1387, 1393 (9th Cir.1994) (remanding "equity-skimming" case where court valued loss as the full market fair value of the property acquired, not the actual economic value obtained); see also United States v. Rutgard, 108 F.3d 1041, 1064 (9th Cir.1997) (remanding Medicare case where the district court failed to give defendant credit for medical services which were justified by medical necessity); United States v. Licciardi, 30 F.3d 1127, 1134 (9th Cir.1994) (remanding to credit defendant for the value of goods actually delivered)

No. 113,881 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. DERRICK BUELL, Appellant. SYLLABUS BY THE COURT 1. A legal challenge to the classification of a prior burglary adjudication can be raised for the first time on appeal. 2. A defendant's admission to each of the elements of a criminal offense in conjunction with a guilty plea is in no way an admission that the sentencing factors used to increase his or her sentence were proved beyond a reasonable doubt. 3. While a defendant may specifically waive the right to have a jury decide sentence- enhancing factors, a waiver of the trial jury, standing alone, does not effectively waive the defendant's right to have a jury decide facts which increase his or her sentence beyond the statutory maximum. 4. The Kansas Sentencing Guidelines Act (KSGA) provides that criminal sentences are essentially based on two controlling factors: the criminal history of a defendant and 1 the severity level of the crime committed, with person crimes having a greater impact. A defendant's criminal history score is calculated by tabulating the offender's prior convictions, with A being the highest score and I being the lowest. Prior convictions or juvenile adjudications are classified as either misdemeanors or felonies, person or nonperson, with some exceptions. The more extensive a defendant's criminal history and/or the greater the severity level of the crime, the lengthier the guideline sentence. 5. K.S.A. 2015 Supp. 21-6811(e) is applicable to scoring and classifying out-of-state burglary convictions or adjudications because the language in that portion of the statute plainly defines out-of-state convictions or adjudications as those occurring in other state systems. 6. Under K.S.A. 2015 Supp. 21-6811(e), a prior out-of-state conviction or adjudication is classified as a misdemeanor or felony based upon how the convicting state classifies the crime. A prior out-of-state conviction or adjudication is classified as person or nonperson by referring to comparable Kansas offenses in effect at the time the defendant committed the underlying crime. If there is no comparable Kansas offense, then the out-of-state conviction or adjudication is scored as a nonperson offense. 7. In evaluating what is a comparable offense under the KSGA, the essential question is whether the offenses are similar in nature and cover similar conduct. In making this comparison, the elements of each out-of-state conviction or adjudication do not need to be identical to the elements of a Kansas offense for them to be comparable. Offenses may be comparable even when the out-of-state statute encompasses some acts not necessarily encompassed by the Kansas statute. 2 8. The comparable Kansas offense for a Florida burglary under K.S.A. 2015 Supp. 21-6811(e)(3) is the Kansas version of burglary. 9. The element of intent is irrelevant to the determination of whether an out-of-state burglary conviction or adjudication should be properly classified as a person or nonperson felony because the only material difference between person felony burglary and nonperson felony burglary in Kansas is whether the burglary was committed in a dwelling. 10. The Descamps categorical and noncategorical approach is to be utilized in determining whether a defendant's out-of-state burglary conviction or adjudication should be classified as a person or nonperson crime, i.e., whether the out-of-state burglary involved a dwelling. See Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). 11. In the present case, the defendant's two 2002 juvenile adjudications for burglary in the state of Florida were properly classified as person felonies as the Florida burglary statute is divisible, with one or more of the elements containing burglary in a dwelling, and because the defendant admitted the burglaries were committed in a dwelling. Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed June 24, 2016. Affirmed. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. 3  Jodi Litfin and Kyle Edelman, assistant district attorneys, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee. Before POWELL, P.J., ARNOLD-BURGER, J., and BURGESS, S.J. POWELL, J.: Derrick Buell appeals from his sentences for robbery and attempted kidnapping, arguing the district court erred in classifying his 2002 Florida juvenile adjudications of burglary of a dwelling and burglary of a dwelling while armed as person offenses. Buell claims that by doing so, the district court violated his constitutional rights as articulated in Apprendi and Descamps. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND In February 2015, pursuant to a plea agreement, Buell pled guilty to robbery and attempted kidnapping. According to the presentence investigation report (PSI), Buell's criminal history included two 2002 Florida juvenile adjudications, one labeled as burglary of a dwelling and one labeled as burglary of a dwelling while armed. At his sentencing, Buell objected to the classification of the adjudication for burglary of a dwelling while armed as a person felony, arguing there was no comparable Kansas offense because of the different intent requirements of burglary in Florida and Kansas. After examining the Florida charging document and a deposition, the district court overruled this objection. Buell did not object before the district court to the classification of his adjudication for burglary of a dwelling as a person felony. Accordingly, the district court scored Buell's criminal history as A and sentenced him on both counts to a total of 122 months' imprisonment with 24 months' postrelease supervision. Buell timely appeals. 4  DID THE DISTRICT COURT INCORRECTLY CLASSIFY BUELL'S PRIOR FLORIDA JUVENILE ADJUDICATIONS WHEN CALCULATING BUELL'S CRIMINAL HISTORY SCORE? On appeal, Buell argues the district court erred in classifying both of his 2002 Florida burglary juvenile adjudications as person offenses. Specifically, Buell argues the district court had to make improper factual determinations in order to find these Florida burglaries comparable to Kansas' burglary statute, violating his rights under the Sixth and Fourteenth Amendments to the United States Constitution as articulated by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). In response, the State makes a number of arguments: First, the issue is not properly preserved for appeal; second, Buell waived his right to a jury at sentencing and, therefore, there was no error in the district court's failure to submit any facts to a jury; and third, the district court did not err in calculating Buell's criminal history score. We will address each argument in turn. A. Preservation The State first argues the issue was not properly preserved for appeal because Buell's failure to object to the inclusion of his Florida adjudication for burglary of a dwelling in calculating his criminal history score was a de facto admission that the prior adjudication was comparable to Kansas' burglary statute to make it a person felony. The State is correct that, in general, a party's failure to raise an issue below precludes appellate review. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). However, the State's argument falls short for two reasons. First, Buell did object to the classification of his Florida adjudication for burglary of a dwelling while armed as a person felony before the district court; second, as to the other Florida adjudication, our Supreme Court has recently held that a "legal challenge to the classification of [a] prior 5 burglary adjudication can be raised for the first time on appeal." State v. Dickey, 301 Kan. 1018, 1021, 350 P.3d 1054 (2015). To this, the State argues that Dickey was wrongly decided. However, we are "duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position." State v. Belone, 51 Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. ___ (September 14, 2015). As there is no such indication from our Supreme Court that it is departing from Dickey, we are bound to follow it. Therefore, Buell may raise this argument for the first time on appeal. B. Waiver of Right to Jury at Sentencing The State next argues that Buell waived his right to a jury trial at sentencing. Specifically, the State argues that because Buell waived his right to a jury trial, he also waived his right to have a jury determine the existence of facts beyond those to which he pled that increased his sentence. See State v. Williams, 259 Kan. 432, 436, 913 P.2d 587 (1996). However, our Supreme Court has rejected this argument in the context of upward departure sentences. "[A] defendant's admission to each of the elements of the criminal offense in conjunction with a guilty plea '"is in no way an admission that the sentencing factors used to increase [his or her] sentence were proved beyond a reasonable doubt."'" State v. Horn, 291 Kan. 1, 10, 238 P.3d 238 (2010) (quoting State v. Cody, 272 Kan. 564, 565, 35 P.3d 800 [2001]). While a defendant may specifically waive the right to have a jury decide sentence-enhancing factors, "[a] waiver of the trial jury, standing alone, does not effectively waive the defendant's right to have a jury for the upward durational departure sentence proceeding." 291 Kan. at 11. Accordingly, we reject the State's contention that Buell's jury trial waiver constituted a waiver of his right to require each fact used to enhance his sentence beyond the statutory maximum to be proven to a jury beyond a reasonable doubt. 6 C. Calculation of Criminal History Score Having dispensed with the State's procedural roadblocks, we now turn to the merits of Buell's appeal: whether the district court improperly made findings of fact in order to classify Buell's prior Florida burglary adjudications as person felonies, thereby increasing his sentence beyond the statutory maximum. The question presented involves the interpretation of three statutes: (1) K.S.A. 2015 Supp. 21-6811, part of the Kansas Sentencing Guidelines Act (KSGA); (2) K.S.A. 2011 Supp. 21-5807, the Kansas burglary statute in effect at the time Buell's current crime of conviction (robbery) was committed; and (3) Fla. Stat. § 810.02 (2002), the Florida burglary statute. "Whether a prior conviction should be classified as a person or nonperson offense involves the interpretation of the KSGA. Interpretation of a statute is a question of law over which appellate courts have unlimited review." State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015). Our analysis begins with the KSGA. The KSGA provides that criminal sentences are essentially based on two controlling factors: the criminal history of the defendant and the severity level of the crime committed, with person crimes having a greater impact. See K.S.A. 2015 Supp. 21-6804(c); State v. Vandervort, 276 Kan. 164, 178, 72 P.3d 925 (2003), overruled in part on other grounds by Dickey, 301 Kan. 1018. A defendant's criminal history score is calculated by tabulating the offender's prior convictions to generate a criminal history score, with A being the highest and I being the lowest. See K.S.A. 2015 Supp. 21-6803(d); K.S.A. 2015 Supp. 21-6804(a). Prior convictions or adjudications are classified as either misdemeanors or felonies, person or nonperson, with some exceptions. See K.S.A. 2015 Supp. 21-6810; K.S.A. 2015 Supp. 21-6811. The more extensive the defendant's criminal history and/or the greater the severity level of the crime, the lengthier the guideline sentence. See K.S.A. 2015 Supp. 21-6804(a). 7  1. Classification of Buell's Florida burglary adjudications falls under K.S.A. 2015 Supp. 21-6811(e). Because Buell's 2002 Florida burglary juvenile adjudications are at issue, two sections of K.S.A. 2015 Supp. 21-6811 are possibly applicable in determining if his prior burglary adjudications were properly classified. K.S.A. 2015 Supp. 21-6811(d) governs the classification of prior burglary convictions and adjudications but does not address prior out-of-state convictions and adjudications. K.S.A. 2015 Supp. 21-6811(e) governs the classification of prior out-of-state convictions and adjudications but does not address prior burglary convictions and adjudications. Both Buell and the State assert that K.S.A. 2015 Supp. 21-6811(e) is applicable, which is consistent with Kansas Supreme Court precedent but contrary to some more recent opinions emanating from our court. See State v. O'Connor, 299 Kan. 819, 822, 326 P.3d 1064 (2014) (using K.S.A. 21-4711[e], the prior codification of K.S.A. 2015 Supp. 21-6811[e], to classify a prior Florida burglary adjudication); State v. Williams, 299 Kan. 870, 873-75, 326 P.3d 1070 (2014) (same, classifying prior Ohio aggravated burglary conviction). But see State v. Mullens, 51 Kan. App. 2d 1114, 1117, 360 P.3d 1107 (2015) (using K.S.A. 2014 Supp. 21-6811[d] to classify prior Texas burglary adjudication); see also State v. Smith, No. 113,297, 2016 WL 1391767, at *6-7 (Kan. App. 2016) (unpublished opinion) (utilizing K.S.A. 2014 Supp. 21-6811[d] to determine comparability of South Carolina burglary statute); State v. Gonzales, No. 107,798, 2016 WL 299042, at *7 (Kan. App. 2016) (unpublished opinion) (utilizing K.S.A. 2014 Supp. 21-6811[e] to determine comparability of Arizona burglary statute), petition for rev. filed February 22, 2016; State v. Hill, No. 112,545, 2015 WL 8590700, at *3-6 (Kan. App. 2015) (unpublished opinion) (utilizing both K.S.A. 2014 Supp. 21-6811[d] and [e] to determine comparability of Missouri burglary statute), petition for rev. filed January 6, 2016. As both parties agree that K.S.A. 2015 Supp. 21-6811(e) is applicable, and because the plain language of the subsection applies to convictions from "other state 8 systems," we will use K.S.A. 2015 Supp. 21-6811(e) in scoring Buell's Florida burglary adjudications. The relevant portion of K.S.A. 2015 Supp. 21-6811(e) provides: "(1) Out-of-state convictions and juvenile adjudications shall be used in classifying the offender's criminal history. "(2) An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction: (A) If a crime is a felony in another state, it will be counted as a felony in Kansas. .... "(3) The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime. "(4) Convictions or adjudications occurring within . . . other state systems . . . are considered out-of-state convictions or adjudications. "(5) The facts required to classify out-of-state adult convictions and juvenile adjudications shall be established by the state by a preponderance of the evidence." Subsection (e) requires out-of-state convictions or adjudications to be used in calculating a defendant's criminal history score. Whether the out-of-state conviction or adjudication is to be classified as a misdemeanor or felony depends upon the convicting jurisdiction. Then, the out-of-state conviction or adjudication must be classified as a person or nonperson crime, and this is done by referring to the comparable Kansas offense in effect at the time the defendant committed his underlying crime. If there is no comparable Kansas crime, then the out-of-state adjudication is scored as a nonperson offense. 9  2. Buell's Florida burglary adjudications are felonies. In accordance with K.S.A. 2015 Supp. 21-6811(e)(2), our first task is to determine whether Buell's Florida adjudications for burglary are properly classified as misdemeanors or felonies. This is done by examining how Florida classifies Buell's two adjudications. Unfortunately, the record on appeal does not contain the journal entries of Buell's Florida adjudications; we simply have the PSI, which lists them as "burglary of a dwelling" and "burglary of a dwelling while armed." Buell never challenged their classification as felonies before the district court, and he does not challenge the felony classification of these adjudications before us. Moreover, Buell appears to concede that his conviction for "burglary of a dwelling while armed" falls under Fla. Stat. § 810.02(2)(b) (2002), which classifies such a burglary as a "felony of the first degree." As for Buell's other Florida adjudication for "burglary of a dwelling," Buell also appears to concede this adjudication falls under Fla. Stat. § 810.02(3)(b) (2002), which classifies such a burglary as a "felony of the second degree." Thus, Buell's Florida burglary adjudications were properly classified as felonies by the district court. 3. Buell's Florida burglary adjudications are person crimes. Having determined that both Florida adjudications are felonies, our next task is to classify them as person or nonperson. According to the KSGA, we do this by referring to the comparable Kansas offenses in effect at the time the current crime of conviction was committed. K.S.A. 2015 Supp. 21-6811(e)(3). It is well established that in evaluating what is a comparable offense under the KSGA, "[t]he essential question is whether the offenses are similar in nature and cover similar conduct." State v. Martinez, 50 Kan. App. 2d 1244, 1249, 338 P.3d 1236 (2014). We are to look for the Kansas offense that is the "closest approximation" or most "comparable." Vandervort, 276 Kan. at 179. In making this comparison, the elements of each out-of-state crime do not need to be identical to the elements of a Kansas crime for them to be comparable. 276 Kan. at 179. Offenses may be 10 comparable "even when the out-of-state statute encompassed some acts not necessarily encompassed by the Kansas statute." State v. Riolo, 50 Kan. App. 2d 351, 356-57, 330 P.3d 1120 (2014), rev. denied 302 Kan. ___ (June 30, 2015). With respect to the Florida burglary statute, our Supreme Court has already specifically answered the question of what Kansas crime is comparable: "Obviously, the comparable Kansas offense for a Florida burglary would be our version of burglary." O'Connor, 299 Kan. at 823. The Kansas burglary statute in effect at the time Buell committed his current crimes states in relevant part: "(a) Burglary is, without authority, entering into or remaining within any: (1) Dwelling, with intent to commit a felony, theft or sexual battery therein; (2) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein; or (3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexual battery therein. .... "(c)(1) Burglary as defined in: (A) Subsection (a)(1) is a severity level 7, person felony; (B) subsection (a)(2) is a severity level 7, nonperson felony; (C) subsection (a)(3) is a severity level 9, nonperson felony. (2) Aggravated burglary is a severity level 5, person felony." K.S.A. 2011 Supp. 21-5807. It appears Buell was adjudicated under Fla. Stat. § 810.02(3)(b) (2002) for burglary of a dwelling and under Fla. Stat. § 810.02(2)(b) (2002) for burglary of a dwelling while armed. Fla. Stat. § 810.02 (2002) states in pertinent part: "(1)(a) . . . 'burglary' means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. 11  .... "(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender: .... (b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon[.] .... "(3) Burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a: (a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains. (b) Dwelling, and there is not another person in the dwelling at the time the offender enters or remains." However, Buell contends that the Kansas burglary statute is not comparable. Ignoring O'Connor and relying instead on Apprendi and Descamps, he argues the Florida burglary statute is not comparable as it criminalizes a broader range of conduct than the Kansas burglary statute because the intent required to commit burglary in Florida is broader than in Kansas. The Florida statute criminalizes conduct in which a person enters into or remains in a dwelling with the intent to commit an offense therein, whereas the Kansas burglary statute criminalizes conduct in which a person enters into or remains within a dwelling with the intent to commit a felony, theft, or sexual battery. Fla. Stat. § 810.02(1)(a) (2002); K.S.A. 2011 Supp. 21-5807(a). Buell argues that because of this, the district court should have found his Florida burglary adjudications not to be comparable to any Kansas crime and scored them as nonperson felonies as required by K.S.A. 2015 Supp. 21-6811(e)(3). Buell complains the district court engaged in unconstitutional factfinding when scoring his Florida burglary adjudications as person felonies instead. We disagree. 12  "Under Apprendi, '[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' 530 U.S. at 490. The policy rationale behind Apprendi is that a court violates the United States Constitution if it invades the jury's territory by finding facts at sentencing. See Shepard v. United States, 544 U.S. 13, 25, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (plurality opinion) ('[T]he Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence.'). A narrow exception exists for judicial factfinding regarding the existence of a prior conviction because of the procedural safeguards which attach to such a fact. Apprendi, 530 U.S. at 488. As a result, in the typical case under our sentencing guidelines, tabulating a defendant's prior convictions to determine the criminal history score, which usually has the effect of increasing a defendant's sentence, does not violate a defendant's jury trial rights. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002)." Dickey, 301 Kan. at 1036. Buell correctly points out that when the district court is required to rely on facts outside of the mere fact of a prior conviction, then Apprendi is implicated. In Descamps, 133 S. Ct. 2276, the United States Supreme Court held that a defendant's prior conviction for burglary under California law could not be counted as a predicate offense for burglary under the federal Armed Career Criminal Act (ACCA), which increases the sentences of defendants who have three prior convictions for violent felonies. Unlike the ACCA's "general burglary" definition, the California burglary statute at issue did not require unlawful entry as do most burglary laws; it provided that a "person who enters" certain locations "with intent to commit grand or petit larceny or any felony is guilty of burglary." Cal. Penal Code Ann. § 459 (West 2010). The Descamps Court stated that the sentencing court would have had to look at Descamps' prior burglaries in order to determine whether he did break and enter or merely shoplifted in order to count the prior burglaries for ACCA purposes. The Court held that such an inquiry raised Sixth 13 Amendment concerns because it required the sentencing court to invade the jury's factfinding territory. See 133 S. Ct. at 2281-87. To determine whether a prior conviction qualified as a sentence enhancer under the ACCA, the Descamps Court held that a sentencing court must use one of two approaches—the categorical approach or the modified categorical approach. 133 S. Ct. at 2281-84, 2287; see also Dickey, 301 Kan. at 1036-39 (detailed discussion of categorical versus modified categorical approaches). Under the categorical approach, the sentencing court is to simply "compare the elements of the statute forming the basis of the defendant's conviction with the elements of the 'generic' crime." 133 S. Ct. at 2281. If the elements of the prior conviction are the same as or narrower than the elements of the corresponding crime under the ACCA, then the prior conviction may be counted as a predicate offense for sentence enhancement purposes under the ACCA. 133 S. Ct. at 2281, 2283. The modified categorical approach applies when the statute defining the elements of the prior offense in state law is broader than the corresponding generic offense as defined in the ACCA. Descamps, 133 S. Ct. at 2281, 2283-84. However, this approach may only be utilized when the prior conviction involves a "divisible statute," meaning a statute which comprises multiple, alternative versions of the crime, at least one of which matches the elements of the generic offense. 133 S. Ct. at 2281-82, 2284-85. In such an instance, the sentencing court is permitted to look beyond the elements in the statutes and examine limited extra-statutory materials to determine "which of a [prior] statute's alternative elements formed the basis of the defendant's prior conviction." Descamps, 133 S. Ct. at 2284. Such extra-statutory materials include charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from a bench trial. Johnson v. United States, 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010). 14  Our Supreme Court in Dickey, a case which involved how to properly score a pre- KSGA Kansas burglary as either a person or nonperson crime, explicitly adopted the Descamps categorical/modified categorical approach in "determining whether a prior burglary conviction should be classified as a person or nonperson felony under the KSGA." 301 Kan. at 1039. The court ultimately held that although the pre-KSGA Kansas burglary statute under which Dickey had previously been convicted was divisible, as it had "multiple, alternative versions of the crime, none included an element requiring that the structure burglarized be a dwelling." 301 Kan. at 1039. Therefore, it was constitutionally impermissible to classify Dickey's prior burglary adjudication as a person crime because to do so would have required judicial factfinding beyond merely identifying the statutory elements. 301 Kan. at 1039-40. In our view, Buell's reliance on Descamps and its categorical/modified categorical approach is inapplicable for the reasons he states. First, under the KSGA, there need not be matching elements for an out-of-state offense to be comparable to a Kansas offense. Williams, 299 Kan. at 873. Our Supreme Court's holding in O'Connor, 299 Kan. at 823, reflects that the comparability between the Florida definition of burglary and the Kansas definition of burglary is obvious despite their differing elements. Moreover in Williams, the defendant made an argument similar to the one Buell makes before us: because Ohio's burglary statute did not require the same specificity of intent as the Kansas burglary statute, they were not comparable. Our Supreme Court rejected this argument, holding that in determining the comparability of an out-of-state offense with a Kansas offense, there need not be a review "of the identicalness of the elements of the crimes identified in the out-of-state and in-state statutes." 299 Kan. at 875. While it is true that O'Connor and Williams predate Dickey, it is significant in our view that Dickey did not overrule O'Connor or Williams, nor did it reject the long-standing comparability approach utilized in these cases. See 301 Kan. at 1039; State v. Moore, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 113,545, this day decided), slip op. at 18 (Dickey did not adopt "identical or 15 narrower rule" because doing so would have required overruling prior caselaw establishing that comparable offenses do not have to be identical). The requirement that crimes merely be comparable differs from the federal ACCA, which "intended that the enhancement provision be triggered by crimes having certain specified elements, not by crimes that happened to be labeled 'robbery' or 'burglary' by the laws of the State of conviction." Taylor v. United States, 495 U.S. 575, 588, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990). In fact, we observe that the categorical approach existed before Apprendi and was created by the federal courts to apply the enhancement provisions in the ACCA. 495 U.S. at 588. Only later was this approach, and its modified version, recognized as suitable to prevent Apprendi violations. Descamps, 133 S. Ct. at 2288. That difference is exposed in the present case because without any impermissible judicial factfinding and in accordance with K.S.A. 2015 Supp. 21- 6811(e)(2), we have already determined that Buell's Florida burglary adjudications were felony crimes simply because the state of Florida classified them as such and, without matching elements, our Supreme Court has already declared the Kansas burglary statute to be comparable to Florida's burglary statute. Second, the Descamps rubric is not applicable because intent is irrelevant in the next step of the KSGA analysis. Remember that under Apprendi, 530 U.S. at 490, it is impermissible to rely on a fact that has not been proven to enhance a defendant's punishment beyond the statutory maximum. See State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001) (maximum punishment is that authorized by jury's verdict). It is undisputed that Buell's Florida burglary adjudications were felonies. As the lowest form of a felony under the KSGA is a nonperson felony (noncomparable out-of-state felonies are nonperson felonies too), a finding that the Florida burglary statute is comparable to the nonperson form of the Kansas burglary statute does not run afoul of Apprendi, even if we assume factfinding was required because it does not enhance Buell's sentence. 16  The only way to enhance Buell's punishment is to classify his Florida burglaries as person felonies because having two person felonies in his criminal history increases Buell's criminal history score, thereby increasing the sentencing range for his crimes. Disregarding aggravated burglary, in Kansas only one element separates a person felony burglary from a nonperson felony burglary—whether the burglary was committed in a dwelling. K.S.A. 2011 Supp. 21-5807(c)(1)(A). Other than a burglary committed with the intent to commit the theft of a firearm, which is a higher severity level nonperson felony, the level of intent required of nonperson burglary is the same as person burglary. Thus, intent is irrelevant to the enhancement of Buell's punishment and employing Descamps' categorical or noncategorical approach to ferret out intent is simply unnecessary. Therefore, contrary to Buell's argument and consistent with Dickey, use of the modified categorical approach as described in Descamps is required when examining whether a dwelling was involved in Buell's Florida burglary convictions in order to prevent any improper judicial factfinding. See Dickey, 301 Kan. at 1039. However, unlike the burglary statute forming the basis for Dickey's prior juvenile burglary adjudication which did not contain an element requiring the structure burglarized to be a dwelling, Florida's burglary statute is divisible, and the provisions under which Buell was convicted do contain alternative elements which include burglarizing a dwelling. See 301 Kan. at 1039; Fla. Stat. § 810.02 (2002). Moreover, because Buell has already conceded that his Florida burglaries were committed in dwellings, the district court was not required to examine the "limited class of documents to determine 'which of a statute's alternative elements formed the basis of the defendant's prior conviction[s].'" 301 Kan. at 1038 (quoting Descamps, 133 S. Ct. at 2284). Accordingly, the district court was correct when it classified Buell's two 2002 Florida juvenile burglary adjudications as person felonies. Affirmed. 17 

380 S.E.2d 772 (1989) 324 N.C. 544 STATE of North Carolina. v. Vincent Brady ALLEN. No. 169P89. Supreme Court of North Carolina. June 8, 1989. Vincent Brady Allen, pro se. Thomas G. Meacham, Jr., Asst. Atty. Gen., for the State. ORDER Upon consideration of the petition filed by Defendant in this matter for a writ of certiorari to review the decision of the North Carolina Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals: "Denied by order of the Court in conference, this the 8th day of June 1989."

Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 1-23-2006 USA v. Cartwright Precedential or Non-Precedential: Non-Precedential Docket No. 04-1605 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Cartwright" (2006). 2006 Decisions. Paper 1733. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1733 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.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 04-1605 UNITED STATES OF AMERICA v. JEROME CARTWRIGHT, Appellant ________________________________ On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. No. 01-cr-00190) District Judge: Honorable Petrese B. Tucker _______________________________________ Submitted Under Third Circuit LAR 34.1(a) January 18, 2006 Before: ROTH, FUENTES and BECKER, Circuit Judges (Filed: January 23, 2006) OPINION BECKER, Circuit Judge. Jerome Cartwright appeals from the sentence imposed following his conviction by a jury on drug and firearms charges. The sentence of 144 months was calculated in part on the basis of a two level increase in his base offense following a judicial finding that Cartwright has obstructed justice. Cartwright challenges the sentence under United States v. Booker, 125 S. Ct. 738 (2005), inasmuch as these findings were not made by a jury or admitted by the defendant. Having determined that the sentencing issues that Cartwright raises are best determined by the District Court in the first instance, we will vacate the sentence and remand for resentencing in accordance with Booker. See United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc). 2 

396 F.3d 1074 UNITED STATES of America, Plaintiff-Appellee,v.Elvira CHARLEY, Defendant-Appellant. No. 03-10579. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 7, 2004. Filed February 3, 2005. COPYRIGHT MATERIAL OMITTED Patrick E. McGillicuddy, Phoenix, AZ, for the defendant-appellant. Paul K. Charlton, United States Attorney, District of Arizona, Michael T. Morrissey, Chief, Appellate Section, and Joan G. Ruffennach, Assistant United States Attorney, Phoenix, AZ, for the plaintiff-appellee. Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CR-02-00081-1-EHC. Before: D.W. NELSON, KLEINFELD, and GOULD, Circuit Judges. GOULD, Circuit Judge. 1 A federal jury convicted Elvira Charley of three counts of first degree murder in violation of 18 U.S.C. §§ 1111, 1153(a), and three counts of using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c), (j). Charley appeals her conviction alleging that the district court erred in denying motions to suppress her statements to law enforcement officers because the statements were obtained in violation of her rights under the Fourth and Fifth Amendments.1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 2 * On the tragic morning of January 1, 2002, Elvira Charley shot three of her six children to death with a .22 caliber semi-automatic rifle, as they slept in the Charley family home located on the Navajo Indian Reservation in Klagetoh, Arizona. When the children were dead, Charley covered their bodies with blankets and went to the home of her aunt, Minnie Begay. After visiting with the Begays for more than an hour, Charley left, telling those present that she was going home to "check on her kids." 3 Charley later returned to the Begay residence with one of her remaining children, and then left again to make phone calls. She first called her estranged husband and told him that she had shot their three older children. After hanging up with her husband, Charley called the police dispatcher and asked for police assistance because, as she said, she had "done something bad." She gave the dispatcher directions to the Begay residence and asked the dispatcher to send someone quickly. 4 Charley then went back to the Begay residence and gave her children's birth certificates to one of her cousins saying, "take care of my kids, here [is] all the information you need." Charley did not explain why she needed someone to care for her children. When the police arrived, Charley began hugging her relatives, saying, "I'm sorry ... I wasn't strong enough." 5 Sergeant Wallace Billie and Peter Lincoln, an Emergency Medical Technician ("EMT") from the local fire department, were among the government officers dispatched to the Begay residence. Upon his arrival at the Begay home, Sergeant Billie observed Charley crying and hugging another female. Charley then handed Sergeant Billie the keys to her house, stating "that she'd done something very bad, and that she needed [Sergeant Billie] to check on her children." Charley also told Sergeant Billie that he was "going to have to put [her] away for a long time." 6 Several of Charley's relatives who were present at the Begay residence began asking Sergeant Billie what was going on. Sergeant Billie asked EMT Lincoln to escort Charley from the house so that Sergeant Billie could talk to Charley's relatives and explain what was happening. 7 While waiting for Sergeant Billie outside the Begay residence, Charley initiated a conversation with EMT Lincoln, whom she had known in a personal capacity for about twenty years. Charley addressed EMT Lincoln as "Peter" and volunteered that she had done "something very bad." Charley further told EMT Lincoln that she had killed her children and that the bodies were still at her house. 8 When Sergeant Billie came out to his patrol car, he told Charley, "You're not under arrest. You're being detained. I need to take you to your house and find out what's going on." She replied, "You're going to have to take me away for a long time." Sergeant Billie placed Charley in the patrol car and she gave him directions to her house. When Sergeant Billie asked for permission to enter Charley's house, Charley responded, "Yes," urging him to hurry because the children were inside. 9 After finding the lifeless bodies of three of Charley's children inside the house, Sergeant Billie secured the scene, and proceeded to question Charley as she sat in his patrol car. The district court found that Charley received Miranda warnings before the interrogation began and that Charley "knowingly and voluntarily waived her rights and made statements" to Sergeant Billie. According to Sergeant Billie, Charley was coherent and did not appear to be under the influence of drugs or alcohol at this time. Moreover, there was no language barrier, and Charley was not handcuffed, threatened, or abused in any way. During the interview by Sergeant Billie in his car, Charley admitted to killing her children as they slept, and described the manner and order in which she had shot them. When the questioning ended, Sergeant Billie arrested Charley and escorted her to the tribal jail. 10 Charley made several unsolicited statements regarding her children to the booking personnel at the tribal jail as they were taking down her medical information. For example, she said, "Poor things. They had no choice. I could not take care of them." When asked if she had ever considered killing herself, Charley responded, "no," but further remarked, "[b]ut now I killed my own kids." 11 Charley was interviewed on the evening of January 1, 2002, by Special Agent Bradley Purscell of the FBI. Agent Purscell prefaced the interview by reading Charley the standard FBI advice of rights form. Charley reviewed and signed the form, telling Agent Purscell that she understood her rights and wished to waive them. The interview was conducted in English, with no language problems. Agent Purscell reported that Charley seemed coherent and did not appear to be under the influence of drugs or alcohol. Agent Purscell did not abuse or threaten Charley to make her talk. 12 During the session with Agent Purscell, Charley again admitted to shooting her three oldest children while they slept. She described the manner and order in which she had shot them, and told Purscell how she had covered the children's bodies with their blankets because she could not stand the sight of their blood. She also said, "you know what, I brought them into this world, and I took them from it, but they will always be with me." 13 Charley was arraigned in tribal court on January 2, 2002, for endangering the welfare of minors and for criminal homicide. Charley then told the tribal court that she wanted to consult with a lawyer before pleading to the tribal court charges against her.2 The tribal court entered a default plea of not guilty and scheduled a pretrial conference for Charley to attend at a later date after she had secured an attorney. 14 On January 3, 2002, Agent Purscell escorted Charley to her initial appearance in federal district court. During this trip, Agent Purscell again interviewed Charley. Before commencing this second interview, Agent Purscell again read Charley the Miranda warnings, and Charley again waived her rights by executing a written waiver. The responsive information that Charley gave in this second interview was substantially the same as the information she had given Agent Purscell on January 1, 2002. 15 Charley was subsequently indicted on three counts of first degree murder in violation of 18 U.S.C. §§ 1111, 1153(a), and three counts of use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c), (j). After her indictment, Charley filed motions to suppress the statements that she had made to law enforcement personnel on January 1, 2002, and on January 3, 2002. The district court conducted hearings on the motions to suppress, took the motions under advisement, and then denied them both. 16 In a seven-day trial, the government presented evidence including Charley's statements to Sergeant Billie and Agent Purscell which had not been suppressed.3 The jury found Charley guilty on all counts, three of first degree murder and three for firearm use in the murders. The district court then provisionally sentenced Charley to six consecutive life terms under 18 U.S.C. § 4244, and we consider in this opinion whether the district court committed reversible error in denying Charley's motions to suppress. II 17 We review Charley's motions to suppress de novo. United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.2004) (en banc). The determination of whether a seizure exceeds the bounds of an investigatory Terry stop and becomes an arrest is also reviewed de novo. United States v. Miles, 247 F.3d 1009, 1012 (9th Cir.2001). Charley's briefing on these issues is unclear. But her principal argument appears to be that the district court erred in declining to suppress the statements she made to Sergeant Billie on January 1, 2002, because, she argues that those statements were the fruits of an illegal arrest made without probable cause in violation of the Fourth Amendment. Charley also contends that she was entitled to suppression of the incriminating statements she made to FBI Agent Purscell on January 3, 2002, because, she argues, those statements were obtained in violation of her Fifth Amendment right to counsel. 18 * Charley maintains that the district court should have suppressed all the statements she made to Sergeant Billie on January 1, 2002, because those statements were the fruits of her allegedly illegal arrest and because the taint of this alleged illegal arrest was not purged by the Miranda warnings she received. Charley argues that the district court erred in finding that she was not in custody when Sergeant Billie took her from the Begay residence to her own home in order to check on her children. Our review of the record, however, confirms that the district court's determination regarding custody was not erroneous. 19 Charley's illegal arrest claim rests on Sergeant Billie's testimony that he "detained" Charley when he picked her up from the Begay residence and took her back to her house to check on her children. Charley is essentially arguing that "detaining" is tantamount to "arresting," but as the Supreme Court's and our precedents make clear, not every detention by law enforcement officials amounts to arrest or custody under the Fourth Amendment. Arrests and detentions are both "seizures" under the Fourth Amendment, but only the former requires a showing of probable cause, while the latter can be justified by reasonable suspicion of criminal activity. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (citing Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). 20 There is no question that, based on objective facts, Sergeant Billie had the requisite reasonable suspicion to justify detaining Charley until he could determine whether anything had happened to her children, and what she had done prompting her to tell dispatch, Sergeant Billie, and others that she had "done something bad." See Brown, 443 U.S. at 51, 99 S.Ct. 2637. The dispositive question is whether Sergeant Billie's conduct in placing Charley in his car and escorting her back to her house amounted to an arrest that he lacked the probable cause to make. 21 No "litmus-paper test" exists for "determining when a seizure exceeds the bounds of an investigative stop." Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Eberle v. City of Anaheim, 901 F.2d 814, 819 (9th Cir.1990). Instead, we examine the "totality of the circumstances" in deciding "whether an investigative detention has ripened into an arrest." Eberle, 901 F.2d at 819. Our inquiry focuses on the perspective of the person seized, rather than the subjective beliefs of the law enforcement officers. Id."The question is thus whether a reasonable innocent person in [the same] circumstances would not have felt free to leave after brief questioning." Id. (internal quotation marks omitted). 22 "[T]here is no per se rule that detention in a patrol car constitutes an arrest." United States v. Torres-Sanchez, 83 F.3d 1123, 1127 (9th Cir.1996). Furthermore, we have held that the police may move a suspect without exceeding the bounds of an investigative detention when it is a reasonable means of achieving the legitimate goals of the detention "given the specific circumstances" of the case. Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir.2002); see also Halvorsen v. Baird, 146 F.3d 680, 684-85 (9th Cir.1998) (upholding jury finding that investigative stop did not become an arrest where § 1983 plaintiff was cuffed and taken from his home to a nearby gas station for questioning and then involuntarily committed in a detoxification facility overnight because jury could conclude that police had determined that it was hard to talk or unsafe to remain in the original location); cf. Royer, 460 U.S. at 504-05, 103 S.Ct. 1319 ("[T]here are undoubtedly reasons of safety and security that would justify moving a suspect from one location to another during an investigatory detention....").4 23 In Gallegos, 308 F.3d at 989-91, police officers pulled over a man they mistakenly believed to be a burglary suspect, ordered him out of his vehicle at gunpoint, handcuffed him, and placed him in the back of their patrol car. They then brought him to the scene of the reported incident, where they confirmed that he was not the suspect. The detainee brought a § 1983 action against the police alleging that they had violated his Fourth Amendment rights by arresting him without probable cause. The district court granted summary judgment for the defendants, and we affirmed, holding that the police conduct at issue "did not exceed the bounds of a valid investigatory stop," because the purpose of the stop was for the police "to make sure that they ha[d] the right person," and cuffing the plaintiff and bringing him to the alleged crime scene was "not, under the circumstances, an unreasonable way of finding out if [the plaintiff] was the person they were looking for." Id. at 991, 993. 24 Relying on Gallegos, we hold that the district court did not err in finding that Charley was not in custody when Sergeant Billie detained her and escorted her from the Begay residence to her own home. The evidence before the district court supports that it was reasonable for Sergeant Billie to detain Charley in his car for investigation as he drove to her home to determine why she had called dispatch and the reason for her distress. Sergeant Billie had reasonable suspicion justifying an investigative detention, and the investigative methods he employed were far less intrusive and coercive than the methods we concluded were within the bounds of a reasonable, investigatory stop in Gallegos. Sergeant Billie testified that he "detained" Charley at the Begay residence, and that she was not free to leave until he found out what was going on with her children, but he also testified that he had expressly told Charley that she was "not under arrest," and there is no evidence that he used any kind of force against Charley. On the contrary, the record shows that Charley not only voluntarily accompanied Sergeant Billie to her home, but that she repeatedly insisted that they go there to check on her children. Because the record belies Charley's allegation that Sergeant Billie arrested her at the Begay residence, Charley cannot suppress any statements she made on January 1, 2002, on the grounds that they were the fruit of an illegal arrest, or were incurably tainted by the same.5 Charley was not in custody until after Sergeant Billie found the dead children at her home. B 25 Charley claims that the district court erred in failing to suppress statements that she made during her January 3, 2002, interview by Agent Purscell. According to Charley, this statement should have been suppressed because it was made after she invoked her Fifth Amendment right to counsel pursuant to Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Edwards stands for the proposition that the police cannot subject an accused who invokes his or her Fifth Amendment right to counsel to further interrogation until counsel is made available to the accused or the accused initiates further communication with the police. Id. at 484-85, 101 S.Ct. 1880. As the government points out, however, the transcript from Charley's tribal court arraignment only reflects that she invoked her Sixth Amendment right to have counsel represent her in tribal court proceedings. Invocation of the Sixth Amendment right to counsel alone does not constitute an invocation of the Miranda-Edwards Fifth Amendment right to counsel. McNeil v. Wisconsin, 501 U.S. 171, 177-82, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Under the authority of McNeil, Charley's argument that her Fifth Amendment right to counsel was violated by Agent Purscell's second interrogation must fail. 26 Even if Charley never invoked her Fifth Amendment right to counsel, the inquiry does not end here: If Charley effectively invoked her Sixth Amendment right to counsel with respect to the murders of her children, the police were still constitutionally barred from interrogating her about the murders outside the presence of counsel because "[t]he Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a `medium' between him and the State." Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). 27 The Sixth Amendment right to counsel "does not attach until a prosecution is commenced." McNeil, 501 U.S. at 175, 111 S.Ct. 2204. In other words, it attaches "at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. Here, Charley's Sixth Amendment right to counsel was not triggered until she had her initial appearance in federal court on January 3, 2002. That Charley was arraigned in tribal court on January 2, 2002, is irrelevant to determining when her Sixth Amendment right to counsel attached because we have squarely held that "the Sixth Amendment right to counsel does not apply in tribal court criminal proceedings." United States v. Percy, 250 F.3d 720, 725 (9th Cir.2001).6 The district court properly denied Charley's motion to suppress her January 3, 2002 statements because Charley had not invoked her Fifth Amendment right to counsel, and her Sixth Amendment right to counsel had not yet attached when she made her request for an attorney before the tribal court. III 28 We conclude that the district court did not err in holding that Charley was not in custody when Sergeant Billie detained her at the Begay residence and brought her to her own home to investigate what had happened to her children. We also hold that the district court did not err in denying Charley's motion to suppress her statements to Agent Purscell because Charley's right to counsel was not violated. 29 AFFIRMED. Notes: 1 We decide Charley's Fourth and Fifth Amendment claims in this opinion, and address her claims relating to her competency and the district court's jury instructions in a concurrently filed memorandum disposition 2 Charley's colloquy with the tribal court was as follows: COURT: You said "I can't decide [how to plead to the tribal court charges] until I talk to my lawyer," that's what you're saying right? ELVIRA: Yes. 3 The jury also heard evidence of Charley's January 1, 2002, statements to the police dispatcher, to her relatives at the Begay house, to EMT Lincoln, and to the booking personnel at the tribal jail, all of which were made on the date of the murders and none of which were subject to her failed motions to suppress 4 Our view that there may be certain, case-specific circumstances where law enforcement officers can move a suspect from one location to another without crossing the line between an investigative stop and an arrest finds support in a leading treatise on the Fourth Amendment. 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.2(g) (4th ed. 2004) ("[I]t seems clear that some movement of the suspect in the general vicinity of the stop is permissible without converting what would otherwise be a temporary seizure into an arrest."). It is also consistent with the approach followed by the majority of our sister circuitsSee United States v. Montano-Gudino, 309 F.3d 501, 504 (8th Cir.2002) (holding that there was no arrest where officers escorted defendant who was in the process of emptying his rented storage unit to a room in the storage facility offices for questioning); United States v. Gori, 230 F.3d 44, 56 (2d Cir.2000) ("[I]t is well established that officers may ask (or force) a suspect to move as part of a lawful Terry stop."); United States v. Vega, 72 F.3d 507, 515-16 (7th Cir.1995) (holding that defendant's stop was "not tantamount to an arrest" notwithstanding that "the officers drew their weapons, asked [the defendant] to accompany them [back to the crime scene] in one of their cars," and kept him in the officer's vehicle for over an hour); United States v. Bueno, 21 F.3d 120, 124 (6th Cir.1994) (holding that conduct of airport police in moving suspect from main concourse to a secured hallway "did not exceed the limited restraint permitted for an investigative stop"); United States v. Nurse, 916 F.2d 20, 24-25 (D.C.Cir.1990) (holding that officers' conduct in preventing defendant from getting into a taxi and escorting her back into the train terminal did not "exceed[ ] the established bounds for reasonable suspicion detentions"); United States v. Kapperman, 764 F.2d 786, 792 (11th Cir.1985) ("Once [the defendant] consented to the search, it cannot reasonably be asserted that moving the investigation or requiring him to ride in the patrol car to a nearby place where the search would be conducted converted a lawful investigatory stop into an arrest."); United States v. Self, 410 F.2d 984, 986 (10th Cir.1969) (holding that there was no arrest where officer drove defendants to a parking lot and then to the police station because the officer "was reasonably investigating the suspicious behavior of the defendants" and the defendants had "willingly complied with the detective's request that they accompany him"); cf. United States v. Petty, 601 F.2d 883, 886, 889 (5th Cir.1979) (addressing different Fourth Amendment issue but characterizing seizure where border patrol vehicles escorted defendants' vehicle to a border patrol office as an "investigative stop" and stating that the defendants "were not under arrest at th[e] time" of this move). 5 Although Charley cites the Supreme Court's decision inDunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), in support of her claim of illegal arrest, the facts and legal arguments in Dunaway are wholly inapposite to those presented in this case. In Dunaway there was no dispute as to whether the defendant was in custody. Id. at 203, 206, 99 S.Ct. 2248. Rather, the government was urging the Supreme Court to hold that "mere reasonable suspicion" could justify any seizure short of a formal arrest. Id. at 211-13, 99 S.Ct. 2248. The Supreme Court rejected this invitation, holding that the more stringent probable cause requirement applied to all seizures falling outside the category of investigative stops, not just those seizures that were officially termed arrests. Id. at 212-13, 99 S.Ct. 2248. Unlike in Dunaway, the government contends here that Charley's detention was an investigative stop, and the factual record supports this contention and the district court's determination that Charley was not in custody when Sergeant Billie drove her to her home to investigate. 6 United States v. Bird, 287 F.3d 709 (8th Cir.2002), finding that the Sixth Amendment right attached following a tribal arraignment, is not to the contrary. That decision involved a degree of cooperation so extensive between federal and tribal authorities that one could not separate the federal and tribal proceedings: [A]s a result of the way that tribal and federal authorities cooperated in connection with these charges, Red Bird's indictment in tribal court inherently led to his prosecution in federal court. Considering the close working relationship between tribal and federal authorities in this case, to deny Red Bird the right to counsel after the tribal indictment would deprive him of an attorney at one of the most critical stages of the proceedings against him. Id. at 714. This case presents no such circumstances. Absent the collusive behavior in Bird, our precedent that the "Sixth Amendment right to counsel does not apply in tribal court criminal proceedings," Percy, 250 F.3d at 725, stands. We have no occasion to decide whether, in factual circumstances like those in Bird, we would reach the result reached in Bird.

[Cite as State v. F.F., 2019-Ohio-455.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 107013 STATE OF OHIO PLAINTIFF-APPELLEE vs. F. F. DEFENDANT-APPELLANT JUDGMENT: REVERSED AND REMANDED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-620306-A BEFORE: Kilbane, A.J., E.A. Gallagher, P.J., and Celebrezze, J. RELEASED AND JOURNALIZED: February 7, 2019 ATTORNEY FOR APPELLANT John T. Castele 565 W. Bagley Road Berea, Ohio 44017 ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor Fallon Radigan Geoffrey S. Minter Assistant County Prosecutors The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, A.J.: {¶1} Defendant-appellant, F.F., appeals the trial court’s imposition of consecutive sentences. For the reasons set forth below, we vacate his consecutive sentence and remand the case to the trial court for the limited purpose of complying with the requirements of R.C. 2929.14(C) for the imposition of consecutive sentences. {¶2} In August 2017, F.F. was charged in a 17-count indictment. The charges included ten counts of gross sexual imposition (“GSI”), six counts of kidnapping, and one misdemeanor count of importuning. F.F. was also indicted on sexually violent predator specifications and sexually motivated specifications. {¶3} The indictment lists two victims. The first is F.F.’s daughter, Y.F., born on December 5, 1985, with offense dates from 1997 through 1998. The second is Y.F.’s daughter (F.F.’s granddaughter), Y.R., born on April 20, 2005, with offense dates from 2011 through 2017.  {¶4} On January 19, 2018, under a plea agreement, F.F. pled guilty to ten counts of GSI and a single misdemeanor count of importuning. In exchange, the state dismissed the six counts of kidnapping and the attached specifications. {¶5} At sentencing, the trial court imposed a prison term of four years on the two GSI counts and six months on the importuning count as they pertain to F.F.’s daughter, Y.F. The trial court ordered F.F. to serve those sentences concurrently. The trial court imposed a prison term of four years on the eight GSI counts pertaining to F.F.’s granddaughter, Y.R. The trial court ordered F.F. to serve those counts concurrently. The trial court ordered F.F. to serve the separate sentences imposed for each victim consecutively for a total of eight years in prison. {¶6} F.F. now appeals, assigning the following error for our review. Assignment of Error The trial court erred in sentencing [F.F.] to consecutive sentences without first making the proper statutory findings on the record and was contrary to law. Consecutive Sentences {¶7} In his sole assignment of error, F.F. argues that the trial court failed to make the findings required for the imposition of consecutive sentences under R.C. 2929.14(C)(4). {¶8} We review consecutive sentences using the standard set forth in R.C. 2953.08. State v. Perry, 8th Dist. Cuyahoga No. 104751, 2018-Ohio-1760, citing State v. Wells, 8th Dist. Cuyahoga Nos. 99305, 99306, and 99307, 2013-Ohio-3809, ¶ 11, citing State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 10. R.C. 2953.08(G)(2) provides two grounds for an appellate court to overturn the imposition of consecutive sentences: (1) the appellate court, upon its review, clearly and convincingly finds that “the record does not support the sentencing court’s findings” under R.C. 2929.14(C)(4); or (2) the sentence is “otherwise contrary to law.” Venes at ¶ 11. {¶9} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive sentences, the trial court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender, that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and that at least one of the following also applies: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct. (c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. R.C. 2929.14(C)(4). {¶10} The court must make the statutory findings as stated above at the sentencing hearing and incorporate those findings into its sentencing entry. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. {¶11} Moreover, Bonnell holds that the trial court must make the statutory findings on the record before imposing consecutive sentences on a defendant. State v. Williams, 8th Dist. Cuyahoga No. 106570, 2018-Ohio-4426, citing Bonnell at ¶ 28 (“[T]he record must contain a basis upon which a reviewing court can determine that the trial court made the findings required by R.C. 2929.14(C)(2) before it imposed consecutive sentences.”).  {¶12} In the instant case, at the outset, the trial court appropriately outlined the principles and purposes of felony sentencing. In so doing, the trial court stated: [B]efore I impose a sentence here, I always talk about what the purposes and principles of sentencing are. The sentence I impose must comply with these purposes and principles. The overriding purpose is to punish you, protect the public from future crimes by you and others using the minimum sanctions that the Court determines accomplishes the purposes without imposing unnecessary burden on state or local government resources. The sentence I impose here should be commensurate with and not be demeaning to the seriousness of your conduct, its impact on the victims and consistent with sentences for similar crimes by similar offenders. {¶13} Prior to imposing the consecutive sentences, the trial court stated: I believe that consecutive sentences are necessary here, and I am going to tell you why. I believe consecutive sentences are necessary to punish you. It is not disproportionate, and I find that the harm to the two victims is so great or unusual that a single term does not adequately reflect the seriousness of your conduct. Further, I believe that these crimes violate your own daughter and granddaughter. The fact that it is at first your daughter and then your granddaughter. I believe due to the harm that was caused to these two, consecutive sentences are appropriate to serve in this matter, and it is necessary to protect the public. {¶14} The above excerpt embodies two of the three required findings to impose consecutive sentences. First, the trial court found that consecutive sentences were necessary to punish F.F. Second, the trial court found that the harm to F.F.’s daughter and granddaughter was so great that a single term would demean the seriousness of F.F.’s conduct. However, as to the third, the trial court made only a passing reference that the sentence is not disproportionate. Prior to imposing sentence, the trial court did not find that consecutive sentences are not disproportionate to the seriousness of F.F.’s conduct and to the danger he poses to the public. Because the trial court failed to make all the findings under R.C. 2929.14(C), the imposition of consecutive sentences was contrary to law and must be vacated.  {¶15} Accordingly, the sole assignment of error is sustained. {¶16} Judgment reversed and remanded. We remand the case to the trial court for the limited purpose of considering whether consecutive sentences are appropriate under R.C. 2929.14(C), and if so, to make the necessary findings. It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE EILEEN A. GALLAGHER, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR . 

677 F.Supp. 1284 (1987) John M. HEALY, Plaintiff, v. UNITED STATES POSTAL SERVICE, Ralph R. Franzese and J.W. Roberts, individually and in their official capacities, Defendants. No. CV-86-2640. United States District Court, E.D. New York. August 19, 1987. *1285 *1286 Steiner & Masonson, New York City, for plaintiff. Andrew Maloney, U.S. Atty., Charles Knapp, Asst. U.S. Atty., of counsel, for defendants. MEMORANDUM OF DECISION AND ORDER COSTANTINO, District Judge. Defendants United States Postal Service, Ralph R. Franzese and J.W. Roberts move this court to dismiss the plaintiff's complaint pursuant to Fed.R.Civ.P. 12(c), or in the alternative, for summary judgment pursuant to Rule 56(b). Plaintiff has cross-moved this court to amend his complaint pursuant to Fed.R.Civ.P. 15(c). FACTS Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act of 1967 (hereinafter "ADEA"), 29 U.S.C. § 633a, alleging that he was wrongfully denied consideration for promotion on the basis of his race and age. Plaintiff, John M. Healy, has been an employee of the Postal Service and its predecessor, the United States Post Office for approximately thirty-one years. In November 1984, Mr. Fazekas, who was then the General Supervisor of Mails was sent from the Flushing, New York facility to investigate mail processing problems which were occurring at the Main Postal Facility in Jamaica. The plaintiff was and is manager of plant maintenance at the Jamaica Plant. As a result of a report issued by Mr. Fazekas, a meeting was held to discuss mail processing problems at the Jamaica Post Office. At this meeting the plaintiff informed defendant Ralph Franzese and others that the cause of certain machine malfunctions was due to employees throwing refuse into the machines. At subsequent meetings held for similar reasons, the plaintiff reported that machine jamming at the facility was being caused by improper operation by employees. As a result of his participation in these meetings, the plaintiff was given authority over the operation of these machines. The plaintiff continued to report safety and procedure violations to his superiors as well as other plant managers. In or about December of 1985, the position of Manager of Mail Processing became available at the Jamaica Plant. The plaintiff applied for the position but was turned down. On March 4, 1986, the plaintiff brought a complaint before the Equal Employment Opportunity Commission (EEOC), alleging that he had wrongfully been denied consideration for promotion based on his race and age. Specifically, the plaintiff alleged that the defendants acted to "insure that the position of manager of Mail Processing would be awarded to a block [sic] male." The Postal Service, in a final order dated May 20, 1985 and received by the plaintiff on July 8, 1986, closed the plaintiff's case with a finding of no discrimination. The plaintiff commenced this action on August 7, 1986 and served copies of the summons and complaint on the United States Attorney for the Eastern District of New York and the Attorney General of the United States on October 7, 1986. The plaintiff did not serve, nor has he served the Postmaster General of the United States or any of his authorized agents. DISCUSSION For the purposes of a Fed.R.Civ.P. 12(b)(6) motion, the facts as alleged by the plaintiff's complaint are taken as true. George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 554 (2nd Cir.1977). The complaint *1287 should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). However, even when viewed in the most favorable light, the plaintiff's complaint fails to state a claim. PLAINTIFF'S TITLE VII CLAIM Title VII provides federal employees with a cause of action against the United States Government or one of its agencies for any alleged discrimination based on race, color, religion, sex, or national origin. In commencing a civil action against a department of the United States, the "head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16(c) (1976). To withstand a motion to dismiss a complaint under Title VII, the party bringing the action must name the head of the agency or department as this is the only proper party defendant in a Title VII action. Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir.1986); Hall v. Small Business Administration, 695 F.2d 175, 180 (5th Cir.1983); Newbold v. United States Postal Service, 614 F.2d 46, 47 (5th Cir.) (per curiam) cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980); Canino v. Equal Employment Opportunity Commission, 707 F.2d 468, 472 (11th Cir.1983). In actions against the Postal Service by an aggrieved employee claiming discrimination under Title VII, a motion to dismiss will be proper where the plaintiff has failed to name the head of the United States Postal Service, that is, the Postmaster General of the United States. Cooper v. United States Postal Service, 740 F.2d 714, 716 (9th Cir.1984) cert. denied, 471 U.S. 1022, 105 S.Ct. 2034, 85 L.Ed.2d 316 (1985); Hymen v. Merit Systems Protection Bd., 799 F.2d 1421, 1422 (9th Cir.1986); McGuinness v. United States Postal Service, 744 F.2d 1318, 1322 (7th Cir.1984); Stewart v. United States Postal Service, 649 F.Supp. 1531, 1535-1536 (S.D.N.Y.1986). In this action, the plaintiff named the United States Postal Service, Ralph Franzese, the Postmaster of the Jamaica Main Office, and J.W. Roberts, the manager of Mail Processing, as defendants. The plaintiff has not named Preston R. Tisch, the Postmaster General. Since the plaintiff has not complied with the pleading requirements set forth in 42 U.S.C. § 2000e-16(c), his Title VII claim must be dismissed. Furthermore, since the Postmaster General is the only proper defendant the complaint must be dismissed against the United States Postal Service. Cooper v. United States Postal Service, 740 F.2d at 716. The plaintiff's complaint is also dismissed against the defendants Ralph Franzese and J.W. Roberts. In view of Healy's conceded failure to file a complaint against the Postmaster General within the statutory period, his claim must be barred unless his attempt to substitute the Postmaster General as a defendant relates back to the date his original complaint was filed. Rule 15(c), which governs the relation back of amendments to pleadings states: Whenever a claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Prior to 1986, some circuits had construed Rule 15(c) to include a reasonable time after the lapse of a limitations period for the service of process. See Ingram v. Kumar, 585 F.2d 566, 572 (2nd Cir.1978); Kirk v. Cronvich, 629 F.2d 404, 408 (5th *1288 Cir.1980). The Supreme Court's literalist interpretation of Rule 15(c) in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) seems to foreclose this result. Schiavone v. Fortune, 106 S.Ct. 2379 at 2385 (1986). Given the Supreme Court's holding in Schiavone, an amendment which seeks to name the proper federal defendant will not relate back to the original complaint unless the notice requirement of Rule 15(c) is met. Stewart v. United States, 655 F.2d 741, 742 (7th Cir.1981); Lofton v. Heckler, 781 F.2d 1390 (9th Cir.1986); Hughes v. U.S.A., 701 F.2d 56, 58-59 (7th Cir.1982). In the present case, the plaintiff received the Postal Service's final decision on his administrative claim on July 8, 1986. However, 42 U.S.C. § 2000e-16(c) allows a claimant only thirty days in which to appeal a final decision by an administrative agency. The plaintiff's failure to name and serve the Postmaster General as the proper party defendant prior to or on August 7, 1986 is fatal to his Title VII claim. Furthermore, the plaintiff's attempts to serve the United States Attorney for the Eastern District, the United States Attorney General and the Postmaster of the Jamaica Postal Service, even if served within the 30 day period, which did not occur in this case, will not act as substitute service on the Postmaster General. See 39 C.F.R. § 2.2, nor are they proper parties in a Title VII claim against the post office. Cooper, 740 F.2d at 716. Plaintiff argues that the Postmaster General "was on notice that a suit was pending." This court cannot agree. In Cooper v. U.S. Postal Service, 740 F.2d 714 (9th Cir.1984), the court rejected the argument that the Postmaster General had notice of the action because of a prior administrative action. After Schiavone, this court must adhere to the literal interpretation of Rule 15(c)'s notice requirement. The Postmaster General must be given notice of the impending action within the thirty day statutory period. The plaintiff's failure to satisfy the notice requirement requires dismissal of his Title VII claim. PLAINTIFF'S ADEA CLAIM Plaintiff also brings a claim under Section 15 of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a, alleging that he was denied consideration for the position of Manager of Mail Processing at the Jamaica Postal Facility because he is fifty-two years old. The ADEA, unlike Title VII, does not specify the proper defendant to be served, nor does it state the limitations period within which a civil suit must be commenced after a final administrative decision. The purpose behind enacting the ADEA of 1967 was to eliminate from the workplace arbitrary age discrimination in employment. See 29 U.S.C. § 621. In 1974, Congress enacted Section 15 to bring federal agencies within the ambit of the ADEA. See 29 U.S.C. § 633a. Federal agencies may not arbitrarily discriminate based on an individual's age. Both the ADEA and Title VII share a common purpose, elimination of discrimination in the workplace. E.E.O.C. v. Wyoming, 460 U.S. 226, 229-233, 103 S.Ct. 1054, 1056-1058, 75 L.Ed.2d 18 (1983). Section 15 of the ADEA, 29 U.S.C. § 633a, enacted in 1974 to prohibit age discrimination in federal employment, was patterned after § 717 of Title VII, 42 U.S. C. § 2000e-16. See Lehman v. Nakshian, 453 U.S. 156, 166-67 n. 15, 101 S.Ct. 2698, 2705 n. 15, 69 L.Ed.2d 548 (1981) "When a provision of the ADEA can be traced to a complimentary section of Title VII, the two should be construed consistently." Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir.1986). See also Oscar Mayer & Company v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979). While the Second Circuit has not specifically addressed the issue of a proper party defendant in an age discrimination action or the statute of limitations period for commencing an action in federal court, reference to Title VII of the Civil Rights Act of 1964 provides guidance. Courts that have considered whether a plaintiff must serve the head of an agency or department within thirty days after receiving notice of a federal agency's final determination, have held that the requirements set forth in Title *1289 VII should be made applicable to ADEA claims as well. Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir.1986); Ellis v. U.S.P.S., 784 F.2d 835, 838 (7th Cir.1986); Gillispie v. Helms, 559 F.Supp. 40, 41 (W.D.Mo. 1983). In Ellis v. U.S.P.S., the seventh circuit held that the only proper party defendant to be served in an ADEA claim was the Postmaster General of the United States. 784 F.2d at 838. The Court was persuaded as is this court, by the reasoning set forth in Gillispie v. Helms, 559 F.Supp. 40 (W.D. Mo.1983). Both courts observed that Section 15 of the ADEA was patterned after a similar provision in Title VII. Ellis v. U.S. P.S., 784 F.2d at 838; Gillispie v. Helms, 559 F.Supp. at 41. Section 15 of the ADEA should be construed consistently with similar provisions of Title VII, Oscar Mayer & Company v. Evans, 441 U.S. at 755-56, 99 S.Ct. at 2071, since the purposes and intent of the ADEA would not be frustrated by requiring the plaintiff to serve the Postmaster General as the only proper defendant. Ellis v. U.S.P.S., 784 F.2d at 838. Defendant United States Postal Service urges this court to apply the requirements of 42 U.S.C. § 2000e-16(c) to the plaintiff's ADEA claim. Both the ADEA and Title VII are similar acts intended to eliminate discrimination in the workplace. Since both acts should be construed consistently, this court holds that the only proper party defendant in a suit against the Postal Service under the ADEA is the Postmaster General of the United States. The defendant further argues that the court should apply Title VII's thirty day limitations period to the plaintiff's ADEA claim. While the ADEA does not specify any limitations period within which a claimant must bring a suit after receipt of a final administrative decision, absent clear legislative direction, courts are often called upon to borrow statutes of limitations from analogous laws and apply them to laws which are otherwise silent. See Wilson v. Garcia, 471 U.S. 261, 275, 105 S.Ct. 1938, 1946, 85 L.Ed.2d 254 (1984) (Holding that the most analogous state statute of limitations would be applied for § 1983 claims); Cullen v. Margiotta, 811 F.2d 698, 717-718 (2nd Cir.1987) (Holding that where the Racketeer Influenced and Corrupt Organizations Act ("RICO") contained no statute of limitations for civil actions an analogous state statute of limitations would be applied). Most relevant to the question raised by the defendant is Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In Del Costello the Supreme Court held that a statutory limitations period of one federal law should be applied to another federal law which was silent on the time for bringing an action, where that federal law was more analogous in terms of federal policy and practicalities. Id. at 171-172, 103 S.Ct. at 2294. The defendant argues that applying the thirty day limitations period set forth in 42 U.S.C. § 2000e-16(c) to ADEA claims would foster national uniformity between two similar laws. This court finds defendant's reasoning persuasive. In terms of both "federal policy and practicalities," Title VII is clearly the most appropriate source of law applicable to the ADEA. Therefore, this court will look to Title VII for guidance since it is clearly the most analogous to the ADEA in terms of policy and its remedial purpose. At least one court has held that the thirty-day limitations period set forth in Title VII, 42 U.S.C. § 2000e-16 should be applied to claims under the ADEA. In Romain v. Shear, 799 F.2d 1416 (9th Cir.1986), the court reasoned that Section 15 of the ADEA, 29 U.S.C. § 633a was so closely analogous to § 717 of Title VII, 42 U.S.C. § 2000e-16, that the two should be construed consistently. Id. at 1418. (Citing Lehman v. Nakshian, 453 U.S. at 166-67 n. 15, 101 S.Ct. at 2705 n. 15.) The court dismissed the plaintiff's ADEA claim since he failed to name the proper party defendant within the thirty day period. Id. In the present case, the plaintiff failed to serve the Postmaster General of the United States prior to or on August 7, 1986. Since he had received the agency's final decision on his administrative claim on July 8, 1986, his failure to serve the proper *1290 parties by August 7, bars his ADEA claim. Given his failure to name and serve the proper party within the thirty day period, he may not amend his complaint pursuant to Fed.R.Civ.P. 15(c). See Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986); Romain v. Shear, 799 F.2d at 1419; Cooper v. U.S. Postal Service, 740 F.2d 714 (9th Cir.1984). Accordingly, for the reasons stated above plaintiff's ADEA claim is dismissed. PLAINTIFF'S TORT CLAIM Plaintiff also alleges that the actions of the U.S.P.S., Ralph Franzese and J.W. Roberts "constituted Prima Facie Tort against the plaintiff." It appears that plaintiff is asserting a claim against the government pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671. It is well settled that the government may not be sued in its sovereign capacity, absent its express consent, for injuries arising from the negligence of its officers or agents even though committed in furtherance of their duties. The Federal Tort Claims Act is a waiver of that immunity, permitting the government to be sued in tort. 28 U.S.C. § 2674. In order to bring an action under the FTCA the claimant must have filed an administrative claim with the appropriate agency pursuant to 28 U.S.C. § 2675(a). The plaintiff must allege presentation of the claim to the agency and final disposition of the claim by the agency in his pleadings. Altman v. Connally, 456 F.2d 1114, 1116 (2nd Cir.1972). The failure to comply with this jurisdictional prerequisite to a suit under FTCA bars the instant claim. O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 855 (2nd Cir.1984); Wyler v. United States, 725 F.2d 156, 159 (2nd Cir.1983). The plaintiff has only alleged that "all conditions precedent to jurisdiction pursuant to 42 U.S.C. § 2000(e)(5)(f)(3)" and "the ADEA" have been complied with. The pleadings do not indicate that any agency has received notice of the plaintiff's tort claim prior to the commencement of this action. In addition to meeting the prerequisites set forth under the FTCA, the plaintiff must initially meet the liberal and minimal pleading requirements of Fed.R.Civ.P. 8(a) by setting forth "a short and plain statement of the claim showing that the pleader is entitled to relief...." A plaintiff may not rest on conclusory, vague, or general allegations in his pleadings. See Zemsky v. City of New York, et al, 821 F.2d 148, 151 (2nd Cir.1987). The plaintiff's complaint merely states that "[d]efendants actions constituted Prima Facie tort against the plaintiff." The complaint fails to allege any facts to substantiate this allegation even when read liberally. For the foregoing reasons, the plaintiff's tort claim is dismissed without prejudice. PLAINTIFF'S MOTION TO AMEND TO INCLUDE A BIVENS CLAIM The plaintiff moves this court pursuant to Fed.R.Civ.P. 15(c) to amend his complaint to include a Bivens claim. The plaintiff alleges that the defendants' discriminatory acts were in "retaliation of his lawful exercise of his First Amendment rights under the United States Constitution." The Bivens court held that an individual was entitled to maintain an action to recover money damages for injuries he suffered as a result of a federal agent's violation of his fourth amendment rights. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971). Since 1970, the Bivens doctrine has been applied to other constitutional violations. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (Bivens doctrine applied to violations of equal protection); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (applied to eighth amendment). The Supreme Court has noted that a Bivens cause of action may be defeated in two situations. First, where the defendants demonstrate "special factors counselling hesitation in the absence of affirmative actions by Congress," Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. *1291 at 396, 91 S.Ct. at 2005, or second, where defendants show that Congress has provided an alternative remedy as a substitution for relief afforded by the Constitution. Id. at 397, 91 S.Ct. at 2005. Bivens claims seeking damages for alleged violations of an individuals first amendment rights are not novel. In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the plaintiff, an employee of the National Aeronautics and Space Administration sought damages under the Bivens doctrine for an alleged demotion in retaliation for making statements to the press. Given the availability of an elaborate procedure for redressing grievances and the "comprehensive nature" of remedies that a claimant could obtain, the court declined to create a new federal remedy where Congress had provided a vehicle by which the employee could seek relief. Id. at 388, 103 S.Ct. at 2416. Specifically, the court stated: [t]he question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. Id. at 388, 103 S.Ct. at 2416-2417. The courts holding in Bush is significant to the present case in that it recognizes that where adequate administrative machinery exists to redress grievances, courts should hesitate before creating an alternative remedy under Bivens; since "Congress is in a better position to decide whether or not the public interest would be served by creating it." Id. at 390, 103 S.Ct. at 2417. "In this highly regulated area of federal employment, where Congress has created exhaustive administrative avenues for employee disputes, there are those very strong `special factors counselling hesitation' preventing us from creating a Bivens-type constitutional remedy for violations of employees constitutional rights arising in and from the employment context". Palermo v. Rorex, 806 F.2d 1266, 1271 (5th Cir.1987); See also Gaj v. U.S. P.S., 800 F.2d 64, 68 (3rd Cir.1986). The plaintiff argues that his first amendment right to free speech was contravened by the actions of the defendants. The Equal Employment Opportunity Commission pursuant to 29 U.S.C. § 633a, promulgated procedures for addressing claims of alleged illegal age discrimination. These procedures are codified in 5 C.F.R. § 1613.511-521 and are similar to the procedures used for handling Title VII claims. The procedures are extensive and afford a complainant ample opportunity to present any and all grievances to the appropriate agency. In light of the Supreme Court's holding in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), this court does not find it appropriate to create a new federal remedy especially in this highly regulated area of federal employment. The court does not find plaintiff's Bivens claim to be actionable. CONCLUSION For the above stated reasons, the defendant's motion to dismiss the complaint is granted. Plaintiff's cross-motion is denied for the reasons stated herein. Plaintiff's tort claim is dismissed without prejudice to satisfy the necessary jurisdictional prerequisites and to properly plead the tort claim. SO ORDERED.

[Cite as State v. Hignite, 2015-Ohio-5204.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY STATE OF OHIO, : CASE NO. CA2015-07-063 Plaintiff-Appellant, : OPINION : 12/14/2015 - vs - : DARRYL HIGNITE, : Defendant-Appellee. : CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 15CR30825 David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellant Helbling Law Firm, LLC, John J. Helbling, 6539 Harrison Avenue, Cincinnati, Ohio 45247, for defendant-appellee S. POWELL, J. {¶ 1} Plaintiff-appellant, the state of Ohio, appeals from the decision of the Warren County Court of Common Pleas granting two motions in limine in favor of defendant- appellee, Darryl Hignite. For the reasons outlined below, we reverse the trial court's decision and remand for further proceedings. Facts and Procedural History {¶ 2} On March 23, 2015, the Warren County Grand Jury returned an indictment  Warren CA2015-07-063 charging Hignite with one count of robbery in violation of R.C. 2911.02(A)(3), a third-degree felony. According to the bill of particulars, the charge stemmed from allegations Hignite entered a US Bank located in Warren County at approximately 1:00 p.m. on August 5, 2014 and presented a teller with a note demanding $5,000 in cash "with no dye packets." Hignite is then alleged to have received approximately $4,000 in cash from the teller before fleeing from the scene. {¶ 3} On May 29, 2015, the state filed a notice of its intent to introduce so-called "other acts" evidence at trial pursuant to Evid.R. 404(B). Specifically, the state provided notice that it planned to introduce photographic and video evidence Hignite attempted to rob an LCNB National Bank located in Butler County on September 13, 2014 before successfully robbing a Chase Bank also located in Butler County later that same day. Hignite ultimately pled guilty to both crimes in State v. Hignite, Butler C.P. No. CR2014-09-1473. According to the state, this evidence was admissible because it established Hignite's modus operandi and identity by depicting him wearing similar clothing to the individual shown robbing the US Bank now at issue.1 {¶ 4} On June 25, 2015, Hignite filed a motion in limine seeking to exclude the photographic and video evidence at trial by claiming it was inadmissible under both Evid.R. 404(B) and Evid.R. 403(A). Hignite then filed an additional motion in limine seeking to exclude a summary of an interview Hignite had with police, wherein he is alleged to have made a statement implicating himself in the US Bank robbery. On the morning of trial, the trial court issued a decision from the bench granting Hignite's two motions in limine. In reaching its decision, the trial court found the disputed evidence, although relevant and 1. The state also provided notice that it planned to introduce photographic and video evidence that Hignite robbed another US Bank located in Hamilton County several years earlier on July 7, 2007. Hignite pled guilty to this robbery in State v. Hignite, Hamilton C.P. No. B0705843. That evidence, however, is not a subject of this appeal. -2-  Warren CA2015-07-063 generally admissible, would nevertheless be excluded at trial under Evid.R. 403(A) because its probative value substantially outweighed the danger of unfair prejudice to Hignite. {¶ 5} Specifically, as the trial court stated in regards to the photographic and video evidence from LCNB National Bank and Chase Bank: With respect to the pictures and videos from September 13th, specifically from LCNB and from the Chase Bank, the Court finds that there are similarities in the way the defendant presents himself the way he acts and the way he – his gait, his appearance, that there are similarities that would be probative as to the issue of identification. That being said, the evidence is so unfairly prejudicial, that I find that even a limiting instruction will not be sufficient to prevent the jury from drawing an inference as to the defendant's character and that he acted in conformity with that character on August [5], 2014, so I am going to exclude the videos and the still photos from the incidents of September 13, 2014. {¶ 6} In addition, as it relates to the summary of the interview containing Hignite's alleged statement he made to police implicating himself in the US Bank robbery, the trial court stated: But, having reviewed the statement, itself, I find that the statement, the context of the statement, if provided to the jury in a limited fashion that I would have to do to carve it up so as not to bring in his prior convictions or his other bad acts, to carve that up in such a way would have to be done to the point where the evidence that would remain would not be in proper context, it would not be reliable, and there is a high probability again that the jury would seize upon this evidence as character evidence, and invite them to really to lose their way. So, I'm going to exclude the interviews of the defendant, statements made by the defendant, again in the State's case in chief, for those reasons. {¶ 7} On June 30, 2015, the trial court issued a written decision incorporating its ruling granting Hignite's motions in limine. After issuing its written decision, the state filed a timely certification pursuant to Crim.R. 12(K) and a notice of appeal, raising two assignments of error for review. Denial of a Motion in Limine as a Final Appealable Order -3-  Warren CA2015-07-063 {¶ 8} Prior to addressing the merits of the state's two assignments of error, we must first consider whether the trial court's decision is a final appealable order. Pursuant to R.C. 2945.67, the state "may appeal as a matter of right any decision of a trial court in a criminal case, * * * which decision grants * * * a motion to suppress evidence[.]" Crim.R. 12(K) supplements and formalizes this statutory procedure. State v. Hatter, 1st Dist. Hamilton Nos. C-130326, C-130331, C-130332 and C-130353, 2014-Ohio-1910, ¶ 7. Specifically, Crim.R. 12(K) provides that when the state takes an appeal from an order suppressing or excluding evidence, "the prosecuting attorney must certify that (1) the appeal is not taken for the purpose of delay, and (2) the ruling on the motion or motions has rendered the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed." Id. {¶ 9} "The purpose and effect of a motion to suppress and a motion in limine are distinct." State v. French, 72 Ohio St.3d 446, 449 (1995). A motion to suppress is the proper vehicle for raising constitutional challenges. State v. Miller, 11th Dist. Portage No. 2012-P- 0032, 2012-Ohio-5585, ¶ 14. In contrast, "[a] motion in limine is tentative and precautionary in nature, reflecting the court's anticipatory treatment of an evidentiary issue at trial." City of Defiance v. Kretz, 60 Ohio St.3d 1, 4 (1991). In turn, a trial court's decision ruling on motion in limine is generally not a final appealable order. State v. Grubb, 28 Ohio St.3d 199, 201- 202 (1986). However, in cases involving appeals under R.C. 2945.67, such as the case here, the Ohio Supreme Court has taken a "look beyond the label" approach in determining whether an order is subject to appeal. State v. Elqatto, 10th Dist. Franklin No. 11AP-914, 2012-Ohio-4303, ¶ 9. {¶ 10} For instance, in State v. Davidson, 17 Ohio St.3d 132 (1985), the defendant argued that a trial court order granting a motion in limine was not appealable under R.C. 2945.67 because the statute provided that the state could only appeal from a decision -4-  Warren CA2015-07-063 granting a "motion to suppress evidence." Id. at 134-35. However, the Ohio Supreme Court rejected this argument and found any motion seeking to obtain a judgment excluding evidence at trial constituted a "motion to suppress" for purposes of R.C. 2945.67, when the motion, if granted, would destroy the state's ability to effectively prosecute the case. Specifically, as the Ohio Supreme Court stated in Davidson: Any motion, however labeled, which, if granted, restricts the state in the presentation of certain evidence and, thereby, renders the state's proof with respect to the pending charge so weak in its entirety that any reasonable probability of effective prosecution has been destroyed, is, in effect, a motion to suppress. The granting of such a motion is a final order and may be appealed pursuant to R.C. 2945.67 and Crim.R. 12[K]. Id. at syllabus. {¶ 11} Therefore, inasmuch as the trial court effectively suppressed the disputed evidence by granting Hignite's two motions in limine, thereby excluding such evidence from trial, it is proper for this court to review the trial court's decision. "[W]here an evidentiary ruling destroys the state's case, the ruling is in essence a final order from which the state may appeal." State v. Bassham, 94 Ohio St.3d 269, 271 (2002). In so holding, we note that Hignite did not dispute the state's claim that this matter was immediately appealable in his appellate brief or during oral argument before this court. Standard of Review {¶ 12} It is well-established that this court generally reviews a trial court's ruling on a motion in limine for an abuse of discretion. State v. Durbin, 10th Dist. Franklin No. 14AP- 249, 2014-Ohio-5759, ¶ 14. However, as this court recently stated, this is an improper standard of appellate review to use where a motion in limine is the functional equivalent of motion to suppress. State v. Shalash, 12th Dist. Warren No. CA2014-12-146, 2015-Ohio- 3836, ¶ 42, citing State v. Johnston, 2d Dist. Montgomery No. 26016, 2015-Ohio-450, ¶ 27. Rather, this court uses the standard of review applicable to a motion to suppress. Id. In -5-  Warren CA2015-07-063 reviewing a trial court's decision on a motion to suppress, this court must accept as true the trial court's findings of fact if they are supported by competent, credible evidence, and then independently determine, without deference to the trial court's decision, whether the facts satisfy the applicable legal standard. State v. Myers, 12th Dist. Clinton Nos. CA2014-02-002 and CA2014-02-004, 2015-Ohio-160, ¶ 11. {¶ 13} Assignment of Error No. 1: {¶ 14} THE WARREN COUNTY COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT GRANTED [HIGNITE'S] MOTION IN LIMINE TO EXCLUDE EVIDENCE OF [HIGNITE'S] OTHER BANK ROBBERIES. {¶ 15} In its first assignment of error, the state argues the trial court erred by granting Hignite's motion in limine to exclude the photographic and video evidence from LCNB National Bank and Chase Bank. We agree. {¶ 16} Evid.R. 402 provides that all relevant evidence is generally admissible. State v. Harrington, 159 Ohio App.3d 451, 2004-Ohio-7140, ¶ 9 (12th Dist.). "Relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. However, pursuant to Evid.R. 403(A), relevant evidence is not admissible and shall be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading the jury." Unfairly prejudicial evidence is evidence that might result in an improper basis for a jury decision. State v. Palmer, 12th Dist. Butler Nos. CA2013-12-243 and CA2014-01-014, 2014-Ohio-5491, ¶ 23, citing State v. Bowman, 144 Ohio App.3d 179, 186 (12th Dist.2001). "[I]f the evidence arouses the jury's emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish, the evidence may be unfairly prejudicial." State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, ¶ 24. -6-  Warren CA2015-07-063 {¶ 17} Evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused's propensity or inclination to commit crime or that he acted in conformity with bad character. State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 40. In turn, pursuant to Evid.R. 404(B), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that a person acted in conformity therewith on a particular occasion. State v. Hart, 12th Dist. Warren No. CA2008- 06-079, 2009-Ohio-997, ¶ 11. Such evidence, however, is permitted for other purposes, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake or accident. State v. Thomas, 12th Dist. Butler No. CA2012-11-223, 2013-Ohio-4327, ¶ 22. {¶ 18} Here, just as the trial court found, the photographic and video evidence from LCNB National Bank and Chase Bank was properly admissible under Evid.R. 404(B) to establish Hignite's identity as the robber of the US Bank now at issue. As this court has stated previously, "[o]ther-acts evidence need be proved only by substantial proof, not proof beyond a reasonable doubt." State v. Bromagen, 12th Dist. Clermont No. CA2005-09-087, 2006-Ohio-4429, ¶ 14. In this case, however, Hignite pled guilty to both charges relating to his attempted robbery of LCNB National Bank and his successful robbery of Chase Bank. See State v. Hignite, Butler C.P. No. CR2014-09-1473. Therefore, because we find the trial court did not err by finding this evidence was properly admissible under Evid.R. 404(B), the issue in this case is whether the trial court erred by finding the disputed evidence, although relevant, should be excluded at trial under Evid.R. 403(A). {¶ 19} After a thorough review of the record, we find the trial court erred by finding the probative value of the photographic and video evidence depicting Hignite attempting to rob LCNB National Bank before successfully robbing Chase Bank in the same manner he is -7-  Warren CA2015-07-063 alleged to have robbed the US Bank at issue here was substantially outweighed by the danger of unfair prejudice to him. As the record reveals, the identity of the individual who robbed the US Bank was a material issue at trial. Outside of eyewitness testimony or DNA evidence directly linking Hignite to the crime, we find this evidence could not be more probative as to the issue of identity, let alone that its probative value could be substantially outweighed by the danger of unfair prejudice. Simply stated, the photographs and video evidence from LCNB National Bank and Chase Bank will allow the jury to view Hignite – his gait, appearance and actions – and compare it to the individual depicted robbing the US Bank now at issue. Nothing about this evidence arouses the jury's emotional sympathies, nor does it evoke a sense of horror, or appeal to an instinct to punish so as to be considered unfairly prejudicial. {¶ 20} We also find the trial court erred by finding a limiting instruction would not be sufficient to minimize any potential prejudice to Hignite. It is well-established that a jury is presumed to follow and comply with instructions given by the trial court. State v. Carpenter, 12th Dist. Butler No. CA2005-11-494, 2007-Ohio-5790, ¶ 20, citing Pang v. Minch, 53 Ohio St.3d 186 (1990). Therefore, the trial court's decision finding a limiting instruction would be insufficient to overcome any potential prejudice to Hignite was improper and contrary to "the almost invariable assumption of the law that jurors follow [the trial court's] instructions." Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702 (1987), citing Francis v. Franklin, 471 U.S. 307, 325, fn. 9, 105 S.Ct. 1965 (1985). {¶ 21} We find it important to note that "[l]ogically, all evidence presented by a prosecutor is prejudicial, but not all evidence unfairly prejudices a defendant. It is only the latter that Evid.R. 403 prohibits." State v. Martin, 12th Dist. Butler No. CA2007-01-022, 2007- Ohio-7073, ¶ 16. However, as stated previously, nothing about this evidence, as opposed to any other so-called "other acts" evidence deemed admissible under Evid.R. 404(B), indicates -8-  Warren CA2015-07-063 that it has the potential to undermine the effectiveness of a proper limiting instruction. Therefore, because we find the trial court erred by granting Hignite's motion in limine as it relates to the photographic and video evidence from LCNB National Bank and Chase Bank, the state's first assignment of error is sustained. {¶ 22} Assignment of Error No. 2: {¶ 23} THE WARREN COUNTY COURT OF COMMON PLEAS ABUSED ITS DISCRETION WHEN IT GRANTED [HIGNITE'S] MOTION IN LIMINE TO EXCLUDE [HIGNITE'S] STATEMENT TO POLICE. {¶ 24} In its second assignment of error, the state argues the trial court erred by granting Hignite's motion in limine to exclude a summary of an interview Hignite had with police, wherein he is alleged to have made a statement to police implicating himself in the US Bank robbery now at issue. Yet, while we agree that the summary itself is not admissible, based on the record before this court, we see no reason why the officers who conducted the interview of Hignite should be precluded from testifying about Hignite's alleged statement to them. As noted by the Ohio Supreme Court, "[a] defendant's own out-of-court statements, offered against him at trial, are not hearsay." State v. Leonard, 104 Ohio St.3d 54, 2004- Ohio-6235, ¶ 112. In addition, similar to the disputed evidence discussed above, we again find nothing about this evidence indicates it has the potential to arouse the jury's emotional sympathies, evoke a sense of horror, or appeal to an instinct to punish so as to be deemed unfairly prejudicial. Therefore, the state's second assignment of error is also sustained. {¶ 25} Judgment reversed and remanded for further proceedings. PIPER, P.J., and RINGLAND, J., concur. -9- 

822 F.Supp.2d 843 (2011) Robin EASTES, Plaintiff, v. ACS HUMAN SERVICES, LLC, Defendant. No. 1:09 CV 203 PPS. United States District Court, N.D. Indiana, Fort Wayne Division. September 30, 2011. Andrew G. Jones, Philip J. Gibbons, Jr., Gibbons Jones PC, Indianapolis, IN, for Plaintiff. *844 Germaine Winnick Willett, Tami A. Earnhart, Ice Miller LLP, Indianapolis, IN, for Defendant. OPINION AND ORDER PHILIP P. SIMON, Chief Judge. Plaintiff Robin Eastes brought this action under 42 U.S.C. § 1983 alleging that Defendant ACS violated her first amendment rights when it terminated her employment at a call center that ACS operates as a subcontractor to the State of Indiana. ACS previously moved to dismiss Eastes' complaint arguing that Eastes was not entitled to relief under Section 1983 because ACS was not a state actor. I denied the motion finding that Eastes' complaint stated a cause of action under a joint actor theory. This allowed Eastes to conduct discovery and establish facts showing that ACS and the State of Indiana acted together to terminate Eastes' employment assignment. At the time, Eastes also argued that ACS could be liable under Section 1983 because its operation of the call center was a traditionally public function. I did not address the public function argument in my ruling on the motion to dismiss, but it is now before me on summary judgment. The issue remains essentially the same: was ACS a state actor for purposes of Section 1983? Eastes was apparently unable to establish facts in support of her joint actor theory and has abandoned that argument leaving before me the question of whether ACS was a state actor under a public function theory. For the following reasons, I find that it was not. Background In recent years, the State of Indiana has been on a privatization kick. For example, the operation of the Indiana Toll Road has been leased to a private company on a long term lease. As part of the privatization movement, the State contracted with IBM to handle some of the services previously provided by the Family and Social Services Administration ("FSSA").[1] IBM, in turn, contracted with ACS to run a call center at the Grant County Service Center in Marion, Indiana. The primary function of the call center is to answer applicants' questions about the status of benefits requests as well as to process paperwork pertaining to those requests. ACS does not determine benefit eligibility or distribute benefits to citizens of Indiana. ACS makes its personnel and staffing decisions independent of both the State of Indiana and IBM. Eastes was actually employed by Alpha Rae Personnel Incorporated, a staffing company. Alpha Rae assigned Eastes to ACS's call center in August 2008. Upon her assignment, Eastes received two weeks of training from ACS. This training was provided solely by ACS and did not include anyone from the State of Indiana or from IBM. Eastes began work as a call center operator after she completed her two week training period. During the next nine months of her employment, Eastes came to believe that the privatization of the FSSA benefits system was detrimental to benefit recipients. She was admittedly pretty opinionated on the subject and didn't keep her concerns to herself. She frequently challenged ACS's policies and procedures by complaining to her coworkers and management personnel, she complained to a member of the local media, and she encouraged two additional call center employees to speak with the media. ACS terminated her employment assignment at the call center in May 2009 after *845 receiving reports that Eastes had, once again, criticized ACS's operation of the call center. Eastes claims that she was sacked in retaliation for exercising her First Amendment right to speak out on a matter of public importance. ACS now seeks summary judgment on the grounds that it is not a state actor and therefore not subject to liability under Section 1983.[2] Discussion Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). On summary judgment, facts and inferences are construed in favor of the non-moving party. Trentadue v. Redmon, 619 F.3d 648, 652 (7th Cir.2010). But if no reasonable jury could find for the nonmoving party, there is not a genuine issue of material fact. Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir.2010). Section 1983 exists to protect citizens who have been deprived of a constitutional or statutory right by persons acting "under color of any statute, ordinance, regulation, custom, or usage of any State." 42 U.S.C. § 1983. "To state a claim under Section 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (citation omitted). The parties agree that ACS is a private entity. Therefore, for Section 1983 to apply, we must determine whether the alleged infringement can be fairly attributable to the State of Indiana. Both the Supreme Court and the lower federal courts have recognized the difficulty of this task. There are a myriad of facts and circumstances that can transform private action into state action. These include: when private actors conspire or are jointly engaged with state actors to deprive a person of constitutional rights; where the state compels the discriminatory action; when the state controls a nominally private entity; when it is entwined with its management or control; when the state delegates a public function to a private entity; or when there is such a close nexus between the state and the challenged action that seemingly private behavior reasonably may be treated as that of the state itself Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 815-16 (7th Cir.2009) (citations omitted). The Seventh Circuit provided further guidance by categorizing these circumstances into four broad tests: (1) the symbiotic relationship test (satisfied when private and public actors carry out a public function); (2) the state command and encouragement test (satisfied when the state requires the actions of the private actor); (3) the joint participation doctrine (satisfied when the private action is the same as the state action); and (4) the public function test (satisfied when private activity is fairly attributable to the state). Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 823-24 (7th Cir.2009). Of course, these tests are not cut-and-dried, and the application of any such test is multi-faceted and *846 fact-sensitive. Hallinan, 570 F.3d at 816 (citations omitted). There is no evidence in this case that Indiana conspired with, controlled, directed, or managed how ACS dealt with its employees in general or Eastes in particular. Indeed, Eastes concedes this point. (DE 42 at 7.) Eastes argues instead that because ACS's operation of the FSSA call center is a traditionally public function, it acted under color of state law when it terminated her job assignment. The public function test examines whether a private actor performs a function that is exclusively reserved to the State. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). While a private actor may perform some public functions, it does not follow that its every move is attributable to the state. Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (explaining that private entities' acts "do not become acts of the government by reason of their significant or even total engagement in performing public contracts."). It is for this reason that "(a)n entity may be a state actor for some purposes but not for others." George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1230 (9th Cir.1996). So courts must be careful to identify the specific function about which the plaintiff complains and then ask whether that particular conduct "is fairly attributable to the state." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-51, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). This inquiry is undertaken by examining whether there is a "close nexus" between the State and the challenged action. Id. at 52, 119 S.Ct. 977; see also Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). In this case, no such nexus exists between Eastes' termination and the State. ACS and Eastes disagree about the scope of the public function that ACS performs. ACS argues that to the extent it performs a public function, that public function relates only to questions concerning FSSA benefits. In other words, ACS believes that the plaintiff would have to allege some sort of constitutional infringement relating to FSSA benefits (such as her entitlement to public assistance) in order for ACS to be accountable as a state actor. (DE 41 at 14). In contrast, Eastes argues that because her assignment at the FSSA benefits call center involved the performance of a traditionally public function—answering FSSA benefit inquiries— she is entitled to Section 1983 protections relating to her employment status with ACS. (DE 42 at 8). Eastes' argument is simply a bridge too far. The Seventh Circuit has not squarely addressed whether employment decisions made by private entities engaged in at least some traditionally public roles are state actions for purposes of Section 1983. However, in Vickery v. Jones, the Seventh Circuit touched on the issue when it said that "[a]dvocating the hiring of an applicant for employment does not fall into a category of activities that are exclusively the government's." 100 F.3d 1334, 1345 (7th Cir.1996). This is simply another way of saying that courts must look to the specifics of the alleged wrongful conduct in deciding whether actions of a private party may be transformed into state action for purposes of Section 1983. American Mfrs. Mut. Ins. Co., 526 U.S. at 51, 119 S.Ct. 977. While the Seventh Circuit has not addressed the issue squarely before me, both the Fifth and the Ninth circuits have done so in a very similar context. See Cornish v. Correctional Srvs. Corp., 402 F.3d 545 (5th Cir.2005); George, 91 F.3d 1227.[3]*847 And both courts held that private employers who contract with the state are not state actors when they terminate an employee for speaking out against state policies. In George, the plaintiff argued a position almost identical to Eastes' argument in this case. The plaintiff, a custodian employed by a private entity that operated a prison under contract with San Diego County, was fired after he complained to prison managers about policy violations at the facility. George, 91 F.3d at 1229. The plaintiff brought a Section 1983 claim alleging First Amendment violations against the defendant based almost exclusively on the public function approach. Id. The court rejected his argument as "missing the mark" and held that "the relevant inquiry is whether [the defendant's] role as an employer was state action." Id. at 1230 (internal quotation and citation omitted; emphasis in original). The court went on to hold that the plaintiff had not established any fact to suggest that the defendant had "become the government" for employment purposes. Id. The Fifth Circuit has taken a similarly narrow view of state action for purposes of the public function test in the context of employment decisions. In Cornish, the plaintiff was a prison guard employed at a correctional facility operated by a private defendant. 402 F.3d at 547. Plaintiff was fired after he complained about protocol and policy violations at the facility. Id. at 548. Like Eastes (and George before her), Cornish argued that because the defendant performed a broad public function—the operation of a juvenile detention facility— exclusively reserved to the state, it was liable under Section 1983 as a state actor. Id. at 550. The Fifth Circuit disagreed. In upholding the dismissal of Cornish's complaint, the court took care to distinguish between the defendant's role as Cornish's employer on the one hand, from its role as a general operator of a juvenile facility on the other. Id. Here's how the court put it: "The issue, however, is whether [the defendant] acted under color of state law in terminating Cornish's employment, not whether its providing juvenile correctional services was state action." Id. (emphasis in original). The analysis in this case is the same as in Cornish and George, and so too is the result. Eastes argues that the actual staffing of a call center to answer questions about the status of benefits and process paperwork is a traditionally and exclusively public function and is, therefore, somehow different than a prison employing guards to watch the inmates, but she offers no legal or factual support for this contention. Eastes merely says that states have been contracting for prison services "for years" and that this somehow makes the analysis different from the present case. (DE 42 at 8.) This distinction eludes me. The two cases that Eastes attempts to analogize to her situation, Atkins, 487 U.S. 42, 108 S.Ct. 2250, and Rodriguez, 577 F.3d 816, are simply not applicable. Neither case deals with an employee seeking Section 1983 protections stemming from an employment action. In West, the Supreme Court addressed whether a physician is a state actor when he is employed by the state to provide medical services to inmates in a correctional facility. West, 487 U.S. at 54, 108 S.Ct. 2250. The court held that the physician "acted under color of state law for purposes of Section 1983 *848 when undertaking his duties in treating petitioner's injury." Id. (emphasis added). In Rodriguez, the plaintiff was also a prison inmate who complained of Eighth Amendment violations arising out of actions taken by an ambulance service and two hospitals. Rodriguez, 577 F.3d at 819. But, again, the plaintiff was complaining about actual medical services he received (or failed to receive) while under the care of private entities contracted with the state for the specific purpose of providing medical care. Id. By contrast, in both George and Cornish, the courts assumed that the private entities were acting under color of state law when it came to providing correction services to the government, and yet still came to the conclusion that employment decisions made within the prison facilities are not state actions for purposes of Section 1983. Cornish, 402 F.3d at 550, George, 91 F.3d at 1231. In other words, both Cornish and George are merely adhering to the Supreme Court's mandate to consider "the specific conduct of which the plaintiff complains" when attempting to determine whether a private actor should be treated as a state actor. American Mfrs. Mut. Ins. Co., 526 U.S. at 51, 119 S.Ct. 977. ACS was not a state actor for purposes of Section 1983 when it was making its decision to terminate Eastes' employment. The State of Indiana contracted with ACS to operate a call center tasked with answering inquiries relating to FSSA benefits. To the extent that this arrangement could be construed to have caused ACS to undertake a traditionally public function, that function is the handling of FSSA benefits inquiries, not the general operation of a call center which would include the hiring and firing of its operators. In other words, "the specific conduct of which the plaintiff complains," American Mfrs. Mut. Ins. Co., 526 U.S. at 51, 119 S.Ct. 977, is her termination. Like the decisions to terminate the plaintiffs in George and Cornish, Eastes' termination was not done by a state actor. In sum, because ACS was not functioning as a state actor when it decided to terminate Eastes, she is not entitled to relief under Section 1983. CONCLUSION As a result, ACS's Motion for Summary Judgment is GRANTED and Eastes' claims are hereby DISMISSED. SO ORDERED. NOTES [1] The success of these efforts is subject to some debate. Indeed, the State and IBM are embroiled in a multi-million dollar lawsuit against one another in state court in Indianapolis. See http://wraltechwire.com/business/tech_wire/news/blogpost/7595225/ (last visited September 29, 2011). [2] ACS also argues that Eastes' claims must fail because the undisputed facts demonstrated that it did not violate Eastes' First Amendment rights when it terminated her assignment at the call center. Because I find that ACS was not a state actor, I need not address this argument. [3] The First Circuit has also suggested that employment actions by private entities performing government work would not be state action for purposes of Section 1983, but it did not rule on the issue directly. Johnson v. Pinkerton Academy, 861 F.2d 335, 338 (1st Cir. 1988) (noting that in the case of a private entity providing education services, Section 1983 protections might flow to the students it is charged with educating, not to the teachers whom it employs).

794 F.2d 1026 1987 A.M.C. 2112 REELED TUBING, INC., Plaintiff-Appellant,v.M/V CHAD G, her engines, etc., in rem, Guilbeau Marine,Inc., Grand Isle Shipyard, Inc., in personam,Defendants-Appellees. No. 85-3671 Summary Calendar. United States Court of Appeals,Fifth Circuit. July 21, 1986. Deutsch, Kerrigan & Stiles, Francis J. Barry, Jr., Philip J. Kaplan, New Orleans, La., for plaintiff-appellant. Henderson, Hanemann & Morris, Joseph Reilly, Jr., Houma, La., for Grand Isle Shipyard, Inc. Lugenbuhl, Larzelere & Ellefson, W.J. Larzelere, Jr., Douglas B. Habig, Russell D. Pulver, New Orleans, La., for Gilbeau Marine, & C & G Marine Service. Appeal from the United States District Court for the Eastern District of Louisiana. Before RUBIN, JOHNSON and JONES, Circuit Judges. JOHNSON, Circuit Judge: 1 Reeled Tubing, Inc., appeals from the trial court's judgment denying prejudgment interest from the date of Reeled Tubing's loss. Instead, the trial court awarded prejudgment interest only from the date of judicial demand. Reeled Tubing also challenges the method used by the trial court to calculate the interest rate on that interest actually awarded. We conclude that the trial court abused its discretion in the circumstances presented here in denying prejudgment interest from the date of Reeled Tubing's loss. However, the method used by the trial court to calculate that interest actually awarded was within its discretion. Thus, the trial court's judgment limiting prejudgment interest is vacated and remanded with instructions to award Reeled Tubing interest, at the rate specified by the trial court, commencing from the date of loss. I. 2 On October 28, 1983, plaintiff Reeled Tubing purchased a Power Package Unit ("power pack"), for use in conjunction with oil drilling, from Hydradyne Hydraulics for the sum of $53,500. On December 26, 1983, the power pack was loaded aboard the M/V CHAD G at Grand Isle, Louisiana, by defendant Grand Isle Shipyard, Inc. pursuant to a stevedoring contract. Grand Isle's workers did not secure the power pack to the deck of the vessel and no crew member of the vessel inspected the cargo to determine whether the power pack was properly secured. After an approximately three hour voyage across the Gulf of Mexico the M/V CHAD G reached its destination minus the power pack, which had evidently fallen overboard. Reeled Tubing immediately purchased a replacement for the power pack and eventually paid the full purchase price for that replacement. 3 On March 30, 1984, Reeled Tubing informed defendants Grand Isle and Guilbeau Marine, Inc. (the M/V CHAD G owner) that Reeled Tubing held them fully accountable for the loss. Grand Isle's insurer responded promptly, and denied liability. The M/V CHAD G's insurer did not respond fully until September 10, 1984, when it too denied liability. 4 On December 26, 1984, one year after the loss, Reeled Tubing filed the instant case against the M/V CHAD G, in rem, Guilbeau Marine, and Grand Isle. With the consent of the parties, the case was tried before a United States magistrate without a jury. In an opinion issued on September 30, 1985, the trial court (the magistrate) found the defendants Guilbeau Marine and Grand Isle negligent. The trial court also found that the defendants' negligence was the proximate cause of the power pack being lost overboard. The trial court apportioned fault equally between the defendants and entered judgment in favor of Reeled Tubing in the amount of $53,500. Initially, the trial court refused to award any prejudgment interest due to (1) plaintiff's delay of one year in filing suit; (2) the existence of a good faith dispute over liability and damages; and (3) Reeled Tubing's failure to establish loss of use. The trial court subsequently and without explanation amended its judgment to grant prejudgment interest; the prejudgment interest awarded by the trial court was specified to run only from the date Reeled Tubing had filed its complaint. The trial court fixed the rate of interest in accordance with the postjudgment interest rate prescribed in 28 U.S.C. Sec. 1961. II. 5 Under maritime law, the awarding of prejudgment interest is the rule rather than the exception, and, in practice, is well-nigh automatic. Inland Oil & Transport Co. v. Ark-White Towing Co., 696 F.2d 321, 327 (5th Cir.1983). A trial court has the discretion to deny prejudgment interest only where peculiar circumstances would make such an award inequitable. Inland Oil & Transport, 696 F.2d at 327. Peculiar circumstances may be found where plaintiff improperly delayed resolution of the action, where a genuine dispute over a good faith claim exists in a mutual fault setting, where some equitable doctrine cautions against the award, or where the damages award was substantially less than the amount claimed by plaintiff. United States v. Central Gulf Lines, Inc., 747 F.2d 315, 320 (5th Cir.1984); Inland Oil & Transport Co., 696 F.2d at 327-28; Noritake Co., Inc. v. M/V HELLENIC CHAMPION, 627 F.2d 724, 728-29 n. 3 (5th Cir.1980). Moreover, in this Circuit prejudgment interest is ordinarily awarded from the date of loss. See Platoro Ltd., Inc. v. Unidentified Remains, Etc., 695 F.2d 893, 906-07 (5th Cir.1983), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); see also King Fisher Marine Service, Inc. v. NP Sunbonnet, 724 F.2d 1181, 1187 (5th Cir.1984). Prejudgment interest is usually awarded to the date of loss to ensure that the injured plaintiff is compensated for the use of funds to which the plaintiff was entitled, but which the defendant had use of prior to judgment. Cf. Walsh Stevedoring v. James Marine Service, et al., 792 F.2d 489, 492-93 (5th Cir.1986). 6 The trial court failed to specify its reasons for refusing to award prejudgment interest to the date of loss. However, to the extent the trial court's reasons were the same as its reasons for initially denying prejudgment interest altogether, the trial court must be said to have abused its discretion. Reeled Tubing's failure to file suit for one year following the loss was not the result of improper delaying tactics which would justify denying prejudgment interest to the date of loss. Reeled Tubing notified defendants of the fact and circumstances of the loss and the likelihood of a claim within three months of the loss. Following notification, one of the defendants delayed five months before responding. Reeled Tubing commenced the instant case within four months of learning that both defendants denied liability. Thus, Reeled Tubing's one year delay in filing suit was entirely reasonable. 7 Moreover, the existence of a good faith dispute as to liability did not justify denying prejudgment interest to the date of loss. While such a dispute may justify denying prejudgment interest in a mutual fault setting, see e.g., Inland Oil & Transport Co., 696 F.2d at 328, there was no finding that Reeled Tubing was in any way at fault. See General Intermodal Logistics Co. v. Mainstream Shipyards & Supply, Inc., 791 F.2d 930 (1986, 5th Cir.). Moreover, no more evidence of a "good faith" dispute exists here than would exist in virtually any nonfrivolous admiralty suit. Thus, the existence of such a dispute did not justify departure from the usual rule requiring an award of prejudgment interest to the date of loss. 8 Certainly there are circumstances when a trial court may properly exercise its discretion to award prejudgment only to the date of judicial demand. Cf. Howell v. Marmpegaso Compania Naviera, S.A., 578 F.2d 86 (5th Cir.1978). An unreasonable delay in filing suit may constitute such a circumstance. However, the trial court failed to specify and we are aware of no such circumstances which would justify departing in the instant case from our usual rule requiring prejudgment interest from the date of loss.1 Reeled Tubing purchased a power pack for $53,500 and entrusted it to defendants, who were found jointly responsible for its loss. Reeled Tubing has had neither the power pack nor the $53,500 since the date of the loss or shortly thereafter. The fact that Reeled Tubing may have purchased another power pack on advantageous terms does not alone alter the fact that Reeled Tubing was denied the use of the funds that paid for the first pack and is entitled to prejudgment interest as compensation for loss of the use of those funds. III. 9 The trial court ordered that the prejudgment interest awarded be paid at the rate established by 28 U.S.C. Sec. 1961. Reeled Tubing notes that this statute, by its terms, applies to postjudgment interest, and argues that the court should have used some other, more favorable standard for calculating prejudgment interest. Setting the rate of interest on a judgment is within the trial court's broad discretion. United States v. Central Gulf Lines Inc., 747 F.2d 315, 320 (5th Cir.1984); see also Todd Shipyards Corp. v. Auto Transportation, S.A., 763 F.2d 745, 753 (5th Cir.1985) (admiralty courts may look to reasonable guideposts indicating a fair level of compensation). 10 Reeled Tubing suggests calculating the interest on this judgment based on a federal claim, not by looking to the federal standard established in section 1961, but by adopting the rate established by a Louisiana statute. We conclude that the trial court's failure to do so was not an abuse of discretion. See also Western Pacific Fisheries, Inc. v. SS President Grant, 730 F.2d 1280, 1289 (9th Cir.1984) ("Although Sec. 1961 does not provide for prejudgment interest, it is entirely compatible with awards of such interest."). 11 Reeled Tubing also suggests that the interest be calculated based on the section 1961 rate that would have applied at the time the loss occurred, or on the median section 1961 rate during the interval between the loss and the entry of judgment. Although either formula might have produced a more equitable result than that adopted by the trial court, Reeled Tubing has not established that the formula used by the trial court and expressly set forth in section 1961 resulted in any inequity. IV. 12 For the foregoing reasons, the judgment of the trial court is AFFIRMED IN PART and REVERSED IN PART and REMANDED. 1 There may be circumstances which would justify awarding prejudgment interest only from the date of judicial demand which would not justify denying prejudgment interest altogether. The Seventh Circuit has stated in dicta while affirming an award of prejudgment interest to the date of loss that "a district court possesses broader discretion in determining when prejudgment interest should commence" than in denying prejudgment interest. United States v. Peavey Barge Line, 748 F.2d 395, 402 (7th Cir.1984). The Second Circuit has also indicated that a district court has broader discretion to determine when interest begins. Independent Bulk Transport, Inc. v. The Vessel "Morania Abaco," 676 F.2d 23, 25 (2d Cir.1982). We are unaware of any case in which this Court has yet granted a trial court greater discretion to deny prefiling interest than to deny prejudgment interest altogether

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ BEVERLY D. TROTTER-LOW, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2015-3147 ______________________ Petition for review of the Merit Systems Protection Board in No. DA-0845-15-0145-I-1. ______________________ Decided: November 6, 2015 ______________________ BEVERLY D. TROTTER-LOW, Buda, TX, pro se. SARA B. REARDEN, Office of the General Counsel, Mer- it Systems Protection Board, Washington, DC, for re- spondent. Also represented by BRYAN G. POLISUK. ______________________ Before MOORE, O’MALLEY, and CHEN, Circuit Judges. 2 TROTTER-LOW v. MSPB PER CURIAM Beverly Trotter-Low appeals from a Merit Systems Protection Board (“Board”) decision dismissing her appeal as untimely filed. Because the Board’s dismissal is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, we affirm. BACKGROUND Ms. Trotter-Low receives annuity benefits under the Federal Employees Retirement System. Because the Office of Personnel Management (“OPM”) had not adjust- ed her annuity based on her receipt of a Social Security Disability Insurance Benefit, it calculated that it overpaid her $29,320 for the period from July 1, 2010 to April 30, 2014. It informed Ms. Trotter-Low that it intended to collect this overpayment by deducting monthly install- ments from her annuity. Ms. Trotter-Low timely request- ed reconsideration of the OPM’s decision. On September 30, 2014, the OPM sent Ms. Trotter- Low a letter denying her request for reconsideration. The OPM rejected Ms. Trotter-Low’s offer to repay a lesser amount, finding it unreasonable. The OPM did conclude that the original repayment schedule would cause Ms. Trotter-Low financial hardship and set a new repayment schedule to begin January 1, 2015 absent a timely filed appeal with the Board. The letter included a paragraph titled “Appeal Rights,” which explained that Ms. Trotter- Low must file any Board appeal “within 30 calendar days from the date of this letter, or from receipt of this letter, whichever is later.” Resp’t App. (“R.A.”) at 46. As evi- denced by a Certified Mail tracking receipt, Ms. Trotter- Low received the OPM letter on October 4, 2014. Thus, the deadline for Ms. Trotter-Low to file an appeal was November 3, 2014. On December 11, 2014, the Board received an appeal from Ms. Trotter-Low. While Ms. Trotter-Low signed the TROTTER-LOW v. MSPB 3 appeal form on October 31, 2014, the envelope in which it was mailed is postmarked December 2, 2014. In re- sponse, the Board mailed Ms. Trotter-Low an Order on December 24, 2014, explaining that there was a question regarding whether her appeal was untimely and should be dismissed. The Order stated that if Ms. Trotter-Low did not file her appeal on time she should “file evidence and/or argument showing that good cause exists for the delay in filing” and explained what constitutes “good cause.” R.A. at 13. Ms. Trotter-Low did not respond to this Order. On February 26, 2015, the Board dismissed Ms. Trotter-Low’s appeal as untimely filed. Ms. Trotter- Low timely appealed to this Court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION Whether the regulatory time limit for filing an appeal to the Board should be waived based on a showing of good cause is committed to the Board’s discretion. Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). “[W]e will disturb the grant or denial of such a waiver only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Id. (citing 5 U.S.C. § 7703(c)). On appeal, Ms. Trotter-Low only argues the merits of her case—that the four years it took the OPM to process her paperwork was unreasonable and caused her severe financial and personal hardship. She does not address whether there was good cause for her delay in filing her Board appeal. As the Board explained in its December 24, 2014 Order, the burden is on Ms. Trotter-Low to come forward with evidence or argument explaining that good cause existed for her untimely filing. Ms. Trotter-Low did not respond to the Board’s Order. Under the facts pre- sented, we cannot say the Board abused its discretion in dismissing her appeal as untimely filed. Id. at 653–64 (holding that the Board did not abuse its discretion by 4 TROTTER-LOW v. MSPB dismissing an untimely appeal where the appellant failed to respond to a Board order to show cause). CONCLUSION For the foregoing reasons, the judgment of the Board is affirmed. AFFIRMED COSTS No costs. 

239 P.3d 36 (2010) In the Matter of the Driver's License Suspension of Bryan Lee McDaniel. Bryan Lee McDANIEL, Petitioner-Appellant, v. STATE of Idaho, DEPARTMENT OF TRANSPORTATION, Respondent. No. 36744. Court of Appeals of Idaho. August 26, 2010. As Amended August 27, 2010. *37 Richard L. Harris, Caldwell, for appellant. Hon. Lawrence G. Wasden, Attorney General; Timothy J. Stover, Special Deputy Attorney General, Boise, for respondent. Timothy J. Stover argued. GUTIERREZ, Judge. Bryan Lee McDaniel appeals from the district court's order affirming the administrative suspension of his driver's license. Specifically, he argues that the hearing officer erred in not taking into consideration the margin of error in the breathalyzer. For the reasons set forth below, we affirm. I. BACKGROUND Officer Shearn was dispatched to the area of Logan Street and Farmway Road in Canyon County in response to a report of a dune buggy cutting off a driver on the roadway. Officer Shearn arrived at the area within a few minutes and located the dune buggy containing four occupants. Officer Shearn observed the dune buggy exit the driveway, but was unable to locate a license plate on the vehicle. After following the vehicle for a short time, it turned off onto a dirt lane at which point Officer Shearn stopped the dune buggy. Officer Shearn approached McDaniel from the driver's side of the vehicle and observed that McDaniel's eyes were bloodshot and glassy, and could smell the odor of alcohol coming from McDaniel. McDaniel did not have his driver's license with him, but verbally identified himself and his driver's license number. McDaniel admitted to having consumed three beers. McDaniel also failed a field sobriety test. Officer Shearn arrested McDaniel and took him to the jail where a breath test was administered. The results of the Intoxilyzer 5000 breath test were 0.083/0.083 blood alcohol concentration (BAC). McDaniel was subsequently charged with driving under the influence pursuant to I.C. § 18-8004, and his driving privileges were suspended for ninety days pursuant to I.C. § 18-8002A. McDaniel requested an administrative hearing. The hearing officer sustained the suspension of McDaniel's driving privileges. McDaniel filed a petition for judicial review and his suspension was stayed pending the district court's review. The district court affirmed the hearing officer's decision. McDaniel now appeals. II. STANDARD OF REVIEW The Idaho Administrative Procedures Act (I.D.A.P.A.) governs the review of department decisions to deny, cancel, suspend, disqualify, revoke, or restrict a person's driver's license. See I.C. §§ 49-201, 49-330, 67-5201(2), 67-5270. In an appeal from the decision of the district court acting in its appellate capacity under I.D.A.P.A., this Court reviews the agency record independently of the district court's decision. Marshall v. Idaho Dep't of Transp., 137 Idaho 337, 340, 48 P.3d 666, 669 (Ct.App.2002). This Court does not substitute its judgment for that of the agency as to the weight of the evidence presented. I.C. § 67-5279(1); Marshall, 137 Idaho at 340, 48 P.3d at 669. This Court instead defers to the agency's findings of fact unless they are clearly erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. *38 In other words, the agency's factual determinations are binding on the reviewing court, even where there is conflicting evidence before the agency, so long as the determinations are supported by substantial, competent evidence in the record. Urrutia v. Blaine County, ex rel. Bd. of Comm'rs, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000); Marshall, 137 Idaho at 340, 48 P.3d at 669. Review of a suspension of a driver's license under I.C. § 18-8002 presents a mixed question of law and fact. In re Goerig, 121 Idaho 26, 28, 822 P.2d 545, 547 (Ct.App.1991). This Court will defer to findings of fact supported by substantial evidence but will freely review conclusions of law and their application to the findings of fact. Id. III. DISCUSSION McDaniel asserts that the hearing officer's decision should be reversed because an inherent error exists in the Intoxilyzer 5000 and as a result there is doubt that his BAC actually exceeded the maximum concentration level of 0.08 as set forth in I.C. § 18-8004. More specifically, McDaniel asserts that there is an inherent 0.004 plus or minus error in the Intoxilyzer 5000, and that the benefit of the error factor should be in his favor. McDaniel presented expert testimony from a toxicologist at the administrative suspension hearing. The toxicologist stated that based on his experience, background, and knowledge of the Intoxilyzer 5000, there is a variable that is inherent in the machine and that it is possible that even though a reading is 0.083, it could be less than 0.08. ITD asserts that McDaniel's driver's license suspension should be upheld because the hearing officer was not required to consider the inherent margin of error in the Intoxilyzer 5000. Idaho appellate courts have not previously addressed the question of whether the margin of error in the Intoxilyzer 5000 should be considered in administrative license suspension rulings. Therefore, we look to other jurisdictions for guidance. When statutory language is interpreted to require license suspension upon test results indicating a certain BAC, courts have ruled that a driver's license can still be revoked irrespective of the margin of error. Consequently, any inherent margin of error is disregarded. See Wieseler v. Prins, 167 Ariz. 223, 805 P.2d 1044, 1047 (App.1990) (holding that the license revocation statute does not require consideration of margin of error before determining a person's blood alcohol level); Nugent v. Iowa Dep't of Transp., 390 N.W.2d 125, 128 (Iowa 1986) (holding that consideration of margin of error is not required where the license suspension statute did not on its face require it); Hrncir v. Comm'r of Public Safety, 370 N.W.2d 444, 445 (Minn.Ct.App.1985) (holding that consideration of margin of error is not required where statute says "concentration of .10 or more, not .10 plus or minus a margin of error"). On the contrary, when statutory language is interpreted to require license suspension upon actual levels of BAC, courts have ruled that any inherent margin of error in breath testing machines must be considered. See State v. Boehmer, 1 Haw.App. 44, 613 P.2d 916, 917-18 (1980) (holding that any inherent margin of error must be considered where the statute specifies that the actual weight of alcohol in the defendant's blood must be above a specified level); State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839, 840 (1978) (stating that the legislature has selected a particular percent of alcohol to be a criminal offense, so it is not unreasonable to require that the test do so outside of any error inherent in the testing process); State v. Keller, 36 Wash.App. 110, 672 P.2d 412, 414 (1983) (holding that the margin of error in the breathalyzer should be considered by the trier of fact in deciding whether the defendant had a blood alcohol content of .10 percent or greater).[1] The conclusion of these courts has primarily hinged on whether the license suspension statute is interpreted to require a driver's license to be suspended upon test results indicating a blood alcohol level in excess of the statutory limit, or alternatively, upon an actual level of alcohol in excess of the statutory *39 limit. Haynes v. State, Dep't of Public Safety, 865 P.2d 753, 755 (Alaska 1993). Idaho Code § 18-8002A contains language paralleling the former. It provides that an individual's driver's license will be suspended if that individual submitted to an evidentiary test and "the test results indicated an alcohol concentration or the presence of drugs or other intoxicating substances in violation of section 18-8004...." I.C. § 18-8002A(4)(a) (emphasis added).[2] The plain meaning of the statutory language is that a driver's license will be suspended upon test results indicating a BAC of 0.08 or more, not 0.08 plus or minus any margin of error. See Callies v. O'Neal, 147 Idaho 841, 847, 216 P.3d 130, 136 (2009) (holding that issues of statutory interpretation begin with an examination of the literal language of the statute; if the language is unambiguous, we need not engage in statutory construction and are free to apply the statute's plain meaning). Nowhere does I.C. § 18-8002A contain language that requires the hearing officer to take into account any inherent error within the breath test machine before a license can be suspended, it simply requires that the test results indicate a BAC in excess of the legal limit, which is 0.08. See I.C. §§ 18-8002A(4)(a), 18-8004. Therefore, any inherent margin of error in the test results is disregarded. As a result, the hearing officer in this case was not required to consider the inherent margin of error in the Intoxilyzer 5000. McDaniel's test results indicated that he had a BAC of 0.083, which was in excess of the legal limit. Therefore, the hearing officer did not err in sustaining the suspension of McDaniel's driver's license. Having resolved the central issue raised by McDaniel in favor of ITD, we need not address ITD's alternative arguments. IV. CONCLUSION McDaniel failed to establish that the hearing officer was required to consider any inherent margin of error in the Intoxilyzer 5000 before suspending his driver's license. Accordingly, the district court's order affirming the administrative suspension of McDaniel's license is affirmed. Judge GRATTON and Judge MELANSON concur. NOTES [1] We note that the same statutory analysis has been applied to criminal cases. [2] Idaho Code § 18-8004 provides that an individual is under the influence of alcohol when test results indicate a blood alcohol concentration of 0.08 or higher.

95 F.3d 1076 In re Fred Paul SOLOMON, Debtor.GUARDIAN LIFE INSURANCE COMPANY, Plaintiff-Appellant,v.Fred Paul SOLOMON, Defendant-Appellee. No. 95-5144. United States Court of Appeals,Eleventh Circuit. Sept. 23, 1996. Maxine M. Long, Shutts & Bowen, Miami, FL, for appellant. Ronald George Neiwirth, Ronald G. Neiwirth, P.A., Coral Gables, FL, for appellee. Appeal from the United States District Court for the Southern District of Florida. Before TJOFLAT, Chief Judge, COX, Circuit Judge, and HANCOCK*, Senior District Judge. PER CURIAM: 1 Guardian Life Insurance Company appeals an order of the district court concluding that Fred Paul Solomon's interest in a settlement agreement resolving a 1984 lawsuit is exempt, under Florida law, from Solomon's bankruptcy estate. We reverse and remand for further proceedings. BACKGROUND 2 The relevant facts are discussed in the opinions of the district court, Solomon v. Guardian Life Ins. Co. of America, 186 B.R. 535, 535-36 (S.D.Fla.1995), and the bankruptcy court, In re Solomon, 166 B.R. 998, 998-99 (Bankr.S.D.Fla.1994). We summarize them here only as pertinent to this appeal. In December 1985, Solomon settled a lawsuit against Union Mutual Life Insurance Company. The settlement agreement required Union Mutual to pay Solomon $50,000, followed by monthly payments of $6,507.97 for ten years and a lump-sum payment of $450,000, payable January 1, 1996. Union Mutual also agreed to pay Solomon's attorney's fees, which totaled $344,250. Union Mutual was required by the settlement agreement to purchase a commercial annuity contract from Transamerica Annuity Service Corporation to ensure that the agreement's payment schedule was complied with. Union Mutual was named as the payee under the Transamerica annuity contract; Solomon is not a party to that annuity contract. 3 Solomon filed a Chapter 7 bankruptcy petition in December 1993. Solomon listed the settlement agreement as property exempt from his bankruptcy estate as an annuity under Fla.Stat. § 222.14 (West 1989), which provides, in relevant part: 4 the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in favor ... of any creditor of the person who is the beneficiary of such annuity contract.... 5 Guardian Life, a creditor, objected to the claimed exemption. After a hearing, the bankruptcy court sustained the objection, concluding that the "Florida exemption applies only to annuity contracts issued to citizens or residents of the state and of which the debtor is the beneficiary." Solomon, 166 B.R. at 999. The bankruptcy court held that Solomon's settlement agreement was not exempt, both because of its payment structure and because Solomon had no interest in the Transamerica annuity. Id. 6 The district court affirmed in part and reversed in part. The court agreed with the bankruptcy court that the payment earmarked as attorney's fees by the agreement did not qualify under section 222.14 for an exemption. But the court concluded that, under the broad definition of "annuity" provided by the Florida Supreme Court, see LeCroy v. McCollam (In re McCollam ), 612 So.2d 572 (Fla.1993), answering question certified in 955 F.2d 678 (11th Cir.1992), answer conformed to, 986 F.2d 436 (11th Cir.1993), it was bound to hold that the payments other than the attorney's fees required by the settlement agreement constituted an annuity contract, exempt under section 222.14 from Solomon's bankruptcy estate. Guardian Life, 186 B.R. at 538. Guardian Life appeals the district court's order to the extent that it reversed the bankruptcy court. DISCUSSION 7 On appeal, we are presented with the same issue addressed by the district court: whether Solomon's settlement agreement with Union Mutual constitutes an annuity contract within the meaning of Fla.Stat. § 222.14, so that it is exempt from Solomon's bankruptcy estate. We review de novo determinations of law, whether made by the bankruptcy court or the district court. Reider v. Federal Deposit Ins. Corp. (In re Reider ), 31 F.3d 1102, 1104 (11th Cir.1994) (citing Equitable Life Assurance Soc. v. Sublett (In re Sublett ), 895 F.2d 1381 (11th Cir.1990)). 8 Guardian Life contends that the district court erred in concluding that the settlement agreement is an annuity contract exempt from Solomon's bankruptcy estate.1 Guardian Life asserts that the agreement is not exempt because it is not an annuity contract at all. Guardian Life alleges that neither Solomon nor Union Mutual intended for the agreement to be considered an annuity contract, and it asserts that, except for the monthly payments, none of the agreement's other provisions bear any similarity to an annuity. By contrast, Solomon urges that we affirm the district court, arguing that the court correctly relied upon McCollam 's broad definition of "annuity" to conclude that the settlement agreement qualifies for the section 222.14 exemption. 9 We conclude that the agreement between Union Mutual and Solomon does not qualify for the exemption provided by section 222.14. We recognize that the Florida Supreme Court has broadly defined section 222.14 to include "all annuity contracts," stating that "had the legislature intended to limit the exemption to particular annuity contracts, it would have included such restrictive language [in the statute]." McCollam, 986 F.2d at 437-38 (quoting Florida Supreme Court's opinion with regard to question certified). But the statute does not shield all debts or "accounts receivable" structured to resemble annuities from a debtor's bankruptcy estate. We read McCollam to require the existence of an actual annuity contract before a series of payments may be exempt under section 222.14. Accord In re Conner, 172 B.R. 119, 121 (Bankr.M.D.Fla.1994) (stating that "[i]f all that is required to establish an annuity contract is a stream of payments over time, all installment contracts would qualify as an annuity and that is clearly not what the McCollam decision requires"). 10 The district court concluded that, because McCollam 's broad definition of "annuity" includes "debts structured as annuities," "the settlement agreement in this case constitutes proceeds of an annuity contract exempt under Fla.Stat. § 222.14." Solomon, 186 B.R. at 538. The district court read McCollam too broadly; the fact that Solomon received a series of payments under the settlement agreement does not necessarily transform the agreement into an annuity contract exempted by section 222.14. To qualify for the exemption, the parties to the agreement must have intended to create an annuity contract. See Conner, 172 B.R. at 121; In re Dillon, 166 B.R. 766, 769 (Bankr.S.D.Fla.1994). 11 The language of the agreement between Solomon and Union Mutual reveals that the parties did not intend to create such a contract. See Conner, 172 B.R. at 121 (agreement must be identified as an annuity within four corners of the contract); Dillon, 166 B.R. at 768 ("Had the Debtor intended the settlement payments to be paid under an annuity contract, he had the ability to create such a document."); Pizzi, 153 B.R. at 362 (lottery winnings never termed proceeds of an annuity; winner never called "beneficiary" or "payee"). The settlement agreement wholly concerns itself with resolving Solomon's 1984 claims against Union Mutual; it is a garden variety release of liability. The district court therefore erred by concluding that section 222.14 applies to exempt the payments made under the agreement from Solomon's bankruptcy estate. CONCLUSION 12 We reverse the district court's order overruling Guardian Life's objection to the claimed exemption and remand to the district court for further proceedings consistent with this opinion. 13 REVERSED and REMANDED. * Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation 1 Guardian Life also argues that the Transamerica annuity purchased by Union Mutual to ensure adequate funding of the agreement does not qualify for an exemption under § 222.14. But Solomon concedes that the Transamerica annuity cannot be the basis for an exemption, because he has never had a legal or equitable interest in that annuity contract. See In re Pizzi, 153 B.R. 357, 360-61 (Bankr.S.D.Fla.1993) (construing § 222.14 to require that debtor be the beneficiary of annuity contract in question in order to qualify for exemption). In this appeal, then, we address only the character of the settlement agreement between Solomon and Union Mutual Guardian Life contends that, even if we conclude that the monthly payments constitute an exempt annuity, in no event can the lump-sum payment of $450,000 be classified as an annuity. Because of our disposition of this case, it is unnecessary for us to address separately this contention.

80 F.Supp. 683 (1948) LATVIAN STATE CARGO & PASSENGER S. S. LINE v. CLARK. Civ. No. 2610-48. United States District Court District of Columbia. November 4, 1948. Horace S. Whitman, of Washington, D. C., and Charles Recht, of New York City, for plaintiff. David L. Bazelon, George B. Searls and Victor R. Taylor, all of Washington, D. C., for defendant. PINE, District Judge. This is an action under Section 9(a) of the Trading with the Enemy Act, as amended, 50 U.S.C.A.Appendix, § 9(a). Defendant has moved for a summary judgment. The following facts are undisputed: In June 1940 the armies of Soviet Russia invaded and occupied the territory of the then Republic of Latvia. Thereafter a soviet form of government was set up in Latvia, and the new government incorporated Latvia into the Union of Soviet Socialist Republics. In the same year the soviet government of Latvia issued decrees "nationalizing" Latvian shipping enterprises. These decrees included three ships then in private ownership, and purportedly vested title thereto in the plaintiff, a corporate entity organized under the laws of the U.S. S.R. At the time of these decrees, none of these ships was in Latvian waters, and there was no physical seizure of them by the government of Latvia. In 1942 all of them were sunk. They were insured, and the proceeds of the insurance, together with certain accrued earnings, were turned over to court-appointed trustees in New York. In 1943 Latvia was occupied by the *684 German armies, and defendant's predecessor in office, by vesting orders, seized these funds. Plaintiff has claimed them by virtue of title to these ships under the "nationalization" decrees above mentioned. Defendant has dismissed its claim, and this action has ensued. The certificates of the Secretary of State, made a part of this record, disclose that the United States does not recognize the Soviet regime in Latvia, nor the incorporation of that country into the Union of Soviet Socialist Republics, nor the legality of any of the acts or decrees of that regime. It is defendant's contention that the courts of the United States may not give effect to the decrees of a regime in Latvia which has not been recognized by the United States, and that plaintiff therefore has no title to the funds in controversy. Questions of the recognition or non-recognition of foreign governments are beyond the reach of the courts. They are committed exclusively to the political department of government, and the courts are bound by its decisions thereon. This rule is equally applicable to de jure or de facto recognition. Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 137, 138, 58 S.Ct. 785, 82 L.Ed. 1224. Lehigh Valley R. R. Co. v. State of Russia, 2 Cir., 21 F.2d 396. As a corollary of this principle, a court may not give effect to an act of an unrecognized government, for by so doing it would tacitly recognize the government, invade the domain of the political department, and weaken its position. It would therefore appear that this court may not sustain the plaintiff's title, which stems from an act of an unrecognized government, and being without a title which can be upheld by the courts, its claim to property based thereon must fall. But it is not necessary to depend solely on deduction, unsupported by legal authorities, in reaching a decision adverse to the plaintiff. As early as 1822, the Supreme Court had a similar question before it in the case of The Nueva Anna, 6 Wheat. 193, 5 L.Ed. 239. This was an appeal from the District Court of Louisiana, and involved cargoes of two Spanish ships condemned by "a pretended court of admiralty at Galveztown * * * under the alleged authority of the Mexican Republic." The goods, after this proceeding, were brought into the port of New Orleans and libeled by the original Spanish owners in the District Court. That court decreed restitution to the original owners, and the captors appealed to the Supreme Court, which held that it "did not recognize the existence of any court of admiralty sitting at Galveztown * * * nor had the government of the United States hitherto acknowledged the existence of any Mexican republic or state at war with Spain; so that the court could not consider as legal, any acts done under the flag and commission of such republic or state." Passing to recent authority, the United States Court of Appeals for the 3d Circuit had the identical question before it in 1944 in The Maret, 145 F.2d 431, 442. In that case it was established that after the armies of the U.S.S.R. occupied Estonia in 1940 the Soviet Socialist Republic of Estonia was created. This Government promulgated decrees purporting to nationalize ships of Estonian registry, and by proclamation The S. S. Maret, one of such ships, was purportedly transferred to the Estonian State Steamship Line organized by the People's Commissar of the Maritime Fleet. The Soviet Socialist Republic of Estonia had not been recognized by the United States. The Court, in an opinion by Judge Biggs, held, on the question of the ownership of The Maret, that "When the fact of nonrecognition of a foreign sovereign and nonrecognition of its decrees by our Executive is demonstrated * * *, the courts of this country may not examine the effect of decrees of the unrecognized foreign sovereign and determine rights in property, subject to the jurisdiction of the examining court, upon the basis of those decrees." The court referred to and relied heavily upon the doctrine announced by the Supreme Court in United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796, decided in 1942. That case is the converse of the instant case, but the principle announced therein would appear to be conclusive of the question here involved. In the Pink case the executive had decided, as *685 part of the settlement with Russia in 1933, to permit the application of the Russian nationalization decrees to property located in New York. That determination with respect to these decrees was expressed in the recognition of the soviet government as the government of Russia and the concurrent Litvinov Assignment. The Supreme Court, speaking through Mr. Justice Douglas, held that that determination was binding on the Court, and that the power of the executive in the field of foreign relations is not limited to the "recognition" of foreign governments as manifested by the receiving or sending of diplomatic representatives, but includes the power "to determine the public policy of the United States with respect to the Russian nationalization decrees * * *. We would usurp the executive function if we held that that decision was not final and conclusive in the courts." 315 U.S. at pages 229, 230, 62 S.Ct. at page 565. The contention of plaintiff that it is entitled to "just compensation under the Fifth Amendment to the Constitution," is untenable, by reason of the fact that this is an action to recover property seized by the Alien Property Custodian and is not a suit for just compensation. Pflueger v. United States, 73 App.D.C. 364, 121 F.2d 732, certiorari denied, 314 U.S. 617, 62 S.Ct. 98, 86 L.Ed 497. Becker Steel Co. v. Cummings, 296 U.S. 74, 56 S.Ct. 15, 80 L.Ed. 54, cited by the plaintiff, is not to the contrary. Its contention that the ships in question, being ships at sea, were constructively part of the territory of Latvia and subject to its decrees, is not relevant to this case, as the doctrine referred to "partakes more of the characteristics of personal than of territorial sovereignty." Cunard S. S. Co. v. Mellon, 262 U.S. 100, 123, 43 S.Ct. 504, 507, 67 L.Ed. 894, 27 A.L.R. 1306. Moreover, these contentions overlook the threshhold barrier that plaintiff has no title recognizable by the courts to support its claim. The cases cited by plaintiff in respect of the treatment by the courts after the Civil War to acts of the Confederacy and the Confederate States are not apposite. The motion of defendant for summary judgment will therefore be granted. Counsel will submit judgment in accordance herewith.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6947 HIRAM LOPEZ, Plaintiff - Appellant, v. WARDEN TIMOTHY S. STEWART; LIEUTENANT MARK LATHROP, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:15-cv-02747-RDB) Submitted: December 15, 2016 Decided: December 20, 2016 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Hiram Lopez, Appellant Pro Se. Rebecca Ann Koch, Assistant United States Attorney, Katherine Anne Day, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hiram Lopez appeals the district court’s order denying relief on his complaint filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in forma pauperis, we affirm for the reasons stated by the district court. Lopez v. Stewart, No. 1:15-cv-02747-RDB (D. Md. filed June 14, 2016; entered June 15, 2016). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2 

574 F.3d 1250 (2009) Scott PHELAN, Plaintiff-Appellee, v. WYOMING ASSOCIATED BUILDERS, Defendant-Appellant. No. 08-8055. United States Court of Appeals, Tenth Circuit. July 31, 2009. *1251 Timothy M. Stubson, Brown, Drew & Massey, LLP, Casper, WY, for Defendant-Appellant. Jessica Rutzick, Rutzick Law Office, Jackson, WY, for Plaintiff-Appellee. Before BRISCOE, BRORBY and McCONNELL, Circuit Judges. McCONNELL, Circuit Judge. Scott Phelan, recently diagnosed with bone cancer at age twenty-six, was covered by the healthcare plan of his former employer, which in turn was a member of Wyoming Associated Builders, Inc. ("WAB"), a trade organization that maintained a trust to provide health insurance benefits for its members' employees. Just as Mr. Phelan was about to submit an unusually large claim relating to his cancer treatment, WAB terminated his employer's membership in the insurance trust, purportedly because that employer had submitted a payment that was both late and in the wrong form. Mr. Phelan was denied health benefits as a result. He brought a number of claims against both WAB and his employer, one of which alleged that WAB had breached its fiduciary duty, thus entitling him to equitable relief under 29 U.S.C. § 1132(a)(3) of the Employee Retirement Income Security Act (ERISA). The district court found that WAB's stated reasons for terminating Mr. Phelan's employer were a pretext for avoiding payment on Mr. Phelan's pending claim and that the termination was arbitrary and capricious. It ordered retroactive reinstatement of his employer's health care coverage as a remedy. WAB now appeals, arguing that retroactive reinstatement is a legal remedy (and thus impermissible under § 1132(a)(3)), and also that the termination was not arbitrary and capricious. We disagree on both grounds and affirm the district court. I. BACKGROUND The Lock Shop of Cheyenne operates a locksmith business in Cheyenne, Wyoming. It provides health insurance for its employees through Wyoming Associated *1252 Builders, Inc., a non-profit trade organization that provides more than fifty other businesses with health insurance for their employees. WAB, in turn, provides this coverage through the Wyoming Associated Builders Insurance Trust ("WABIT"). WABIT is administered by a board of trustees who are authorized to construe the provisions of the trust agreement, promulgate rules, and delegate ministerial powers and duties. The WABIT board hired Josh Carnahan to serve as plan administrator; Mr. Carnahan then delegated the day-to-day management of the trust to Benefit Administrators, Inc., a company owned and operated by Lynn Johnson. Plan participants were required to pay premiums on the first day of each month. In June 2006, WABIT promulgated a late payment policy for the first time. The policy provided for both late payment penalties and eventual termination. While premiums were still due on the first of each month, "Premiums not received (postmarked) by the 10th of each month will have a 25% of premium due, up to a maximum of $500 penalty applied. The Trust Board also recommends the use of ACH [Automated Clearing House] transfers for premium payment, which is available from Benefit Administrators." Dist. Op. 8-9 (formatting omitted). As for termination, "If premiums are not paid by the 15th of the month, the Plan Administrator is notified and if premiums are still not received by the 20th of the month, the group is recommended by the Plan Administrator for termination by the Trust Board, with the termination effective retroactive back to the 1 st of the month." Id. at 9 (formatting omitted). The Lock Shop ran into financial difficulties in 2006 and struggled to make its payments on time. In June 2006, its premium check bounced. So did its October payment. On October 30, Lynn Johnson mailed the Lock Shop a letter informing it that its October payment had been returned for insufficient funds and requesting repayment by either money order or cashier's check. The Lock Shop made its October payment on November 6. The Lock Shop was not the only one in bad financial shape that year. In the summer of 2006 a consultant had informed the WAB participants that use of the plan was higher than expected. In the past year, WABIT had spent almost $4.5 million paying out claims, but it had collected only a bit over $3.3 million in premiums. Two claims alone totaled over $1.2 million. Although the Trust carried stop-loss insurance that would pay claims over $75,000, the existence of such claims would have ramifications for renewal of the stop-loss policy. Terminating the Lock Shop's coverage would therefore eliminate Mr. Phelan's very expensive claim at a time when the Trust badly needed it. In December, the Lock Shop was again behind in its payments. Ms. Johnson called the Lock Shop on December 13 and notified it that if its premium payment was not posted to the account by December 20, the Lock Shop would be terminated. Ms. Johnson also told the Lock Shop that the payment should be made by cashier's check or ACH. After scrambling to raise funds, Tami Austin of the Lock Shop mailed a personal check to WAB's bank, Hilltop National Bank, on the afternoon of December 19. She sent the check by Federal Express, which assured her that the check would be delivered by the next morning. Unfortunately for the Lock Shop and its employees, Mother Nature intervened: a severe snowstorm hit Cheyenne that night and delayed all deliveries. The check arrived at Hilltop National Bank at 3:15 p.m. on December 20, but the snowstorm had forced the Cheyenne banks to close at noon. Thus, while Hilltop National Bank had physically received the *1253 check, it was unable to post the payment into WABIT's account until the next day. When Ms. Johnson and Mr. Carnahan had spoken about Lock Shop the night before payment was due, Mr. Carnahan told Ms. Johnson to terminate Lock Shop if the payment was not received the next day. Benefit Administrators checked the WABIT bank account on the afternoon of December 20 and saw that no payment had posted, so it contacted Mr. Carnahan. He immediately took action to terminate Lock Shop from the plan. As soon as the Lock Shop learned of its termination it appealed to the WABIT board, explaining that the payment did indeed make it to the bank by the deadline, but that the snowstorm had unexpectedly prevented it from making it in time to be posted on that day. The trustees nevertheless denied the appeal on the grounds that the Lock Shop's payment was late and, even if it had been timely, was made by personal check rather than cashier's check or ACH. As noted above, the Lock Shop's termination did not occur in a vacuum. WABIT was facing some serious financial liabilities, and the elimination of Mr. Phelan's claim would provide much-needed financial relief. Both Ms. Johnson and Mr. Carnahan claimed not to have been aware of Mr. Phelan's pending claim, but the district court found that this strained credulity. Ms. Johnson had spoken to Mr. Phelan's father on November 30, and on December 8—just days before the decision was made to terminate Lock Shop—Mr. Phelan's father had sent Benefit Administrators notification by certified mail that his son had been undergoing chemotherapy and radiation therapy since October and would soon have to undergo surgery to remove a cancerous tumor. After a bench trial, the court found that it was this desire to avoid paying Mr. Phelan's expensive claim that truly motivated the Lock Shop's termination. While WAB contended that the termination was a reasonable application of its administrative policies and was necessary to ensure prompt and timely payments to the Trust, the district court found that, in truth, "the termination was prompted by a desire to avoid further financial risk to the Trust by the payment of [Mr. Phelan's] cancer expenses," Dist. Op. 30, and that "Wyoming Associated Builders' actions were a deliberate attempt to thwart the Lock Shop's payment of its premium in order to terminate the Lock Shop's ability to provide coverage for its employees." Id. at 29. The district court concluded that two specific interpretations of the policy by the benefits administrator were arbitrary and capricious in the sense of being a pretext for WAB's true motivation of eliminating an expensive cancer claim: interpreting the word "received" in WAB's late payment policies as requiring that the payment be actually "posted" to the bank account, even in the midst of a huge snowstorm, and requiring that payment be made by cashier's check or ACH rather than personal check. Id. at 30-31. As a remedy, the court ordered WAB to "reinstate the Lock Shop's group coverage for the month of December, 2006." Id. at 35. At the same time, Lock Shop would have to pay WAB the December premium that would have been due had WAB not terminated it from the plan. Id. at 36. Doing so would effectively restore Mr. Phelan's health benefits for the month of December 2006. WAB now appeals that decision on two principal grounds. First, it argues that a retroactive reinstatement of benefits is in fact a legal remedy masquerading as an equitable remedy, and thus beyond the authority of the court under § 1132(a)(3) of ERISA. Second, WAB argues that its decision to terminate Lock Shop was not arbitrary and capricious. *1254 II. DISCUSSION A. Is the Retroactive Reinstatement a Permissible Equitable Remedy Under § 1132(a)(3)? ERISA is an intricately drafted statute whose civil enforcement scheme "consists of several carefully integrated provisions." Millsap v. McDonnell Douglas Corp., 368 F.3d 1246, 1250 (10th Cir. 2004). One of those provisions is 29 U.S.C. § 1132(a)(3), often referred to by its public law number, § 502(a)(3), which allows a plan participant, beneficiary, or fiduciary to bring a civil action: "(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" (emphasis added). In light of the statutory language, the Supreme Court has construed § 1132(a)(3) as allowing only "those categories of relief that were typically available in equity." Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002) (quoting Mertens v. Hewitt Associates, 508 U.S. 248, 256, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993)). While other ERISA provisions might afford a plaintiff legal relief, this provision does not. Compensatory money damages are the prototypical example of relief that was not typically available in equity. See Mertens, 508 U.S. at 255, 113 S.Ct. 2063; Callery v. U.S. Life Ins. Co., 392 F.3d 401, 404 (10th Cir. 2004); see also Chaim Saiman, Restitution and the Production of Legal Doctrine, 65 Wash. & Lee L.Rev. 993, 1009 (2008) (describing the different shades the term "equity" carries in American law, one of which is "the process of crafting remedies that do something other than award monetary damages to the plaintiff as compensation for proven losses"). But see John H. Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West, 103 Colum. L.Rev. 1317, 1349-55 (2003) (criticizing the Court's holding that monetary relief was a remedy not typically available in equity). Moreover, the Supreme Court has warned us about legal-remedies-in-equitable-clothing, such as an "injunction" to pay damages. See Great-West, 534 U.S. at 210, 122 S.Ct. 708 ("Almost invariably ... suits seeking (whether by judgment, injunction, or declaration) to compel the defendant to pay a sum of money to the plaintiff are suits for `money damages,' as that phrase has traditionally been applied, since they seek no more than compensation for loss resulting from the defendant's breach of legal duty.") (quotations omitted). We must therefore look beyond the label on the remedy and ask whether its substance is equitable or legal. Cf. Normandy Apts., Ltd. v. U.S. Dept. of Housing and Urban Development, 554 F.3d 1290, 1297 (10th Cir.2009) (examining the substance of an injunction to determine whether it was "equitable," and thus subject to the Tucker Act's limited waiver of sovereign immunity, or "legal," in which case immunity would bar suit). The district court ordered "reinstatement" of the Lock Shop's coverage for the month of December, 2006. Although reinstatement sounds equitable, in that it requires the defendant to take some future action, WAB contends that reinstatement of past coverage is retroactive in focus, compensatory in nature, and tantamount to an injunction to pay Mr. Phelan damages in the amount of his medical bills. We do not agree. In Downie v. Indep. Drivers Assoc. Pension Plan, 934 F.2d 1168, 1170 (10th Cir.1991), we upheld the reinstatement of pension benefits as a permissible equitable remedy under § 1132(a)(3). To be sure, as WAB points out, Downie was a case where the reinstatement restored the pensioner's benefits going forward and hence had the effect *1255 of allowing him to receive future benefits; it did not simply pay compensation for past harms. See Callery v. U.S. Life Ins. Co. in the City of New York, 392 F.3d 401, 407 (10th Cir.2004) ("In Downie, the court used its equitable powers to restore the parties to their original positions in order to affect the beneficiary's ability to receive future payments."). WAB argues that unlike the prospective reinstatement in Downie, the reinstatement of Lock Shop's December coverage was purely retrospective and would result simply in WAB compensating Mr. Phelan for medical expenses he has already incurred. We agree with WAB that remedies, despite their seemingly equitable form, are generally regarded as legal if they have a retrospective focus. See id. (claim rejected where claimant sought "equitable relief providing for payment of the insurance on the life of [her husband]" and "to enjoin the defendants from not paying her the life insurance benefits" because she was essentially "seek[ing] payment of the policy proceeds"); Millsap, 368 F.3d at 1252 (backpay is "remedially analogous to personal injury or breach of contract claims because backpay awards compensate employees for lost wages and benefits before trial"); see also Calhoon v. Trans World Airlines, 400 F.3d 593, 598 (8th Cir.2005) (reimbursement for medical bills and costs that would have been covered by COBRA plan had the plan not been terminated was legal, not equitable). But reinstatement of the Lock Shop policy in this case would have prospective effect, just as in Downie. Assuming that Lock Shop is able to continue to pay the premiums on its policy, Lock Shop employees will continue to enjoy health care coverage into the future. Indeed, at the time Mr. Phelan filed his lawsuit, the relief he requested was entirely prospective in nature, with no retrospective element at all. The remedy imposed by the district court in this case does not track the plaintiff's specific injuries, but is instead both broader and narrower. It reinstates coverage for all Lock Shop employees, not just Mr. Phelan, but it also fails to guarantee that WAB will even pay Mr. Phelan's medical costs. As the reinstatement is contingent upon Lock Shop paying its December premium, the possibility remains that the Lock Shop will fail to do so and Mr. Phelan will remain uncovered. Whether Mr. Phelan's medical costs will be paid depends on a number of contingencies, including his own timely submission of the claims. All of this shows that the true yardstick of the court's remedy was not Mr. Phelan's past injuries but rather WAB's prospective gain. By ordering reinstatement, the court was not ordering WAB to reimburse Mr. Phelan for his past losses, even if such a reimbursement might very well be one practical consequence of the reinstatement. Instead, the court ordered WAB to proceed as if the Lock Shop had not been wrongfully terminated from the plan for the month of December. It was WAB that had benefited from that termination, not only because it avoided paying Mr. Phelan's claim but also because it avoided paying all potential Lock Shop claims and also avoided the accounting consequences (such as higher reinsurance premiums) of having a longterm cancer patient on its books. By ordering reinstatement, the court unwound this unlawful gain. The fact that the plaintiff was one victim of the unlawful action and, consequently, a beneficiary of the remedy, does not make this reinstatement substantively legal in nature. The reinstatement was an equitable remedy and was therefore permissible under § 1132(a)(3).[1] *1256 B. Was the Termination Arbitrary and Capricious? "When an ERISA plan grants a plan administrator (or its delegate) discretion in administering the plan, we will uphold its decisions unless they are arbitrary and capricious." Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 801 (10th Cir.2004).[2] Both parties agree that arbitrary and capricious review governs this case.[3] Under this arbitrary and capricious standard, we ask whether the administrator's decision was "reasonable and made in good faith." Flinders v. Workforce Stab. Plan of Phillips Petrol. Co., 491 F.3d 1180, 1193 (10th Cir.2007) (citing Fought v. UNUM Life Ins. Co. of America, 379 F.3d 997, 1003 (10th Cir.2004)). While "[t]he district court's determination of whether a plan administrator's decision is arbitrary and capricious is a legal conclusion subject to de novo review," Rekstad v. U.S. Bancorp, 451 F.3d 1114, 1119 (10th Cir.2006), we defer to any underlying factual determinations unless they are clearly erroneous. See King v. PA Consulting Group, Inc., 485 F.3d 577, 585 (10th Cir.2007). We especially give "due regard to the [district] court's opportunity to judge the credibility of witnesses." Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1078 (10th Cir.2009); see also Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ("But when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error."). As WAB's plan granted discretion *1257 to its administrator and delegates, we review whether its decision to terminate Lock Shop from the plan was arbitrary and capricious, though we defer to the district court's specific factual findings and credibility determinations. WAB asserted two independent bases for Lock Shop's termination: Lock Shop's failure to submit its premium payment in time for it to be posted on December 20 and its failure to pay by cashier's check. The district court found that both grounds were pretexts to avoid payment of Mr. Phelan's claim. It also evaluated each ground under the so-called Flinders factors: [Whether] (1) the decision was the result of a reasoned and principled process, (2) is consistent with any prior interpretations by the plan administrator, (3) is reasonable in light of any external standards, and (4) is consistent with the purposes of the plan. Flinders, 491 F.3d at 1193 (quoting Fought, 379 F.3d at 1003) (quotations omitted). (We in fact first articulated the Flinders factors in Fought, inspired in part by the three-factor test recommended in Kathryn J. Kennedy's Judicial Standard of Review in ERISA Benefit Claim Cases, 50 Am. U.L.Rev. 1083, 1135, 1172 (2001), which in turn was inspired by an eight-factor test of the Fourth Circuit, Booth v. Wal-Mart Stores, Inc. Assoc. Health and Welfare Plan, 201 F.3d 335, 342 (4th Cir.2000).) As with other installments in the American judiciary's long-standing love affair with multi-factor tests, the Flinders factors attempt to create a workable checklist that can replace the essential (albeit somewhat abstract) inquiry of whether or not the decision was reasonable. The danger with such tests is that the essential inquiry gets lost amid the factors, which in turn take on a life of their own. Here, for instance, the district court held that WAB's decision to terminate the Lock Shop failed each of the Flinders factors and was therefore unreasonable. The problem is that while we ultimately agree that this particular decision was unreasonable, the Flinders factors do not seem to get us there. Take the decision to terminate because the payment was not timely received. The plan's late payment policy provided that "if premiums are still not received by the 20th of the month, the group is recommended by the Plan Administrator for termination by the Trust Board." (Emphasis added). Dist. Op. 27. Elsewhere in the policy, the word "received" is explicitly defined to mean "postmarked": the policy states that "[p]remiums not received (postmarked) by the 10th of each month will have a 25% of premium due." Id. (formatting omitted). That could suggest that "received" carries the same meaning elsewhere in the policy, but the very need to specify that "received" means "postmarked" in one place could also suggest the word carries a different meaning in other places. WAB claims to have resolved this ambiguity in favor of an interpretation that meant "posted to the trust's bank account" rather than physically received or postmarked. The district court found that interpretation objectively unreasonable based upon each Flinders factor. First, the court found that the interpretation of "received" to mean "posted" was not the result of a "reasoned and principled process." Dist. Op. 27-28. Plan administration is not notice and comment rule-making, though, and many interpretations will by nature be responses to unexpected situations. Ms. Johnson, the plan delegate, interpreted the word as meaning "posted," informed Lock Shop of this interpretation, and informed the board of this interpretation before the board decided to terminate. We are not sure what additional "process" would have pushed *1258 the balance toward reasonableness. It might be that the ad hoc nature of the decision does not insulate WAB's decisionmaking from closer scrutiny, but it does not strike us as strong evidence that the decision must have been unreasonable. As for the second factor, the district court found that the interpretation was not "consistent with any prior interpretations by the plan administrator" because the Lock Shop had not been terminated for submitting payments after the 20th in the past. Dist. Op. 28. The logic of this would seem to punish plan administrators for accommodating plan participants and discourage them from ever making exceptions for fear that doing so would lock them into repeating those accommodations in the future. The third factor—that the interpretation was not "reasonable in light of any external standards"—likewise seems inconclusive. The district court pointed to other fields where "receipt" is deemed to occur on the date an item is postmarked, such as the Wyoming Rules of Civil Procedure, which construe a document to be filed on its postmark date. Dist. Op. 29 (citing Fullmer v. Wyoming Employment Sec. Com'n, 858 P.2d 1122, 1124 (Wyo.1993)). This shows that interpreting "received" to mean "postmarked" is not unreasonable, but it does not definitively preclude other interpretations. The fourth factor—that the termination was not "consistent with the purposes of the plan"—also offers little help in interpreting the word "received." While the purpose of the plan might be to "provide affordable group health insurance benefits for eligible employees," Dist. Op. 29, not every decision that results in the denial of an insured's benefits conflicts with that purpose. "[A] fiduciary obligation, enforceable by beneficiaries seeking relief for themselves, does not necessarily favor payment over nonpayment," Varity Corp. v. Howe, 516 U.S. 489, 514, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), as an administrator also has a duty to "preserve assets to satisfy future, as well as present, claims and requires a trustee to take impartial account of the interests of all beneficiaries." Id. It is easy to be sympathetic to the claimant standing before the court, but we must also perform the more difficult task of remembering the faceless beneficiaries who are not now before us but who nonetheless depend upon seemingly technical administrative deadlines that are vital for ensuring sufficient funds to cover potential future claims. The fact that WAB's interpretation of "received" resulted in the loss of one person's benefits does not necessarily mean it violated the purposes of the plan. We thus find ourselves in a situation where a term in the plan is ambiguous and application of the Flinders factors does not definitively counsel one interpretation over another. As an objective matter, WAB would seem to be operating within the realm of reasonableness in interpreting the word "received" to mean "posted." It is at this point, though, that we must remind ourselves of the essential inquiry at hand: whether the decision was "reasonable and made in good faith." Fought, 379 F.3d at 1003. While WAB's interpretation of the policy language might have been within some objective zone of reasonableness, it would most certainly not be reasonable to adopt this reasoning as a rascally pretext for avoiding the expensive claim of one of its beneficiaries. The district court found as a factual matter that this was, in fact, what happened. The court found that Ms. Johnson, Mr. Carnahan, and the WABIT board all knew of Mr. Phelan's pending claim. It found their testimony to the contrary suspicious and not credible. Dist. Op. 30. Despite the contention that the Lock Shop was fired for violating the late payment policy, the *1259 court found that, in fact, "the termination was prompted by a desire to avoid further financial risk to the Trust by the payment of [Mr. Phelan's] cancer expenses." Id. We must accept this factual determination unless it is clearly erroneous, and the context of the termination supports the finding. Lock Shop mailed sufficient payment to WABIT's bank, and that payment physically arrived by the December 20 deadline. It would have arrived in time to be posted on that same day, but for an unexpectedly severe snowstorm that shut down the city of Cheyenne. While Ms. Johnson might not have known that the bank had physically received Lock Shop's payment that day, the board certainly knew this by the time the Lock Shop was officially terminated. Nonetheless, the board chose to take advantage of ambiguous administrative rules in order to relieve itself of an expensive claim at a time the trust was experiencing serious financial problems. Interpreting the word "received" to mean "posted" might be objectively reasonable, but choosing this interpretation over equally reasonable alternatives solely in order to cut loose an expensive claim does not satisfy the obligations of good faith that plan administrators owe their fiduciaries. Having found that the actual motivation for the Lock Shop's termination was avoidance of Mr. Phelan's claim, the district court was correct that the termination was arbitrary and capricious. The Flinders factors, unfortunately, are not very helpful in ferreting out situations where a plan administrator hides behind an objectively reasonable rationale to justify an action taken in subjective bad faith. This explains why the district court's effort to reach the appropriate result through the factors ultimately seems strained. This is not to say that the factors had no relevance at all here—while they did not dispel WAB's interpretation as being entirely outside the zone of reasonableness, they did demonstrate that its interpretation was not the only or even the most reasonable meaning. That further bolstered the ultimate conclusion that the termination was not the straightforward application of a clear administrative rule, but that instead an ambiguous administrative rule provided a pretext for WAB to eliminate coverage for one of its costlier beneficiaries. "While a fiduciary has a duty to protect the plan's assets ... it also has a duty to see that those entitled to benefits receive them. It must consider the interests of deserving beneficiaries as it would its own." Gaither, 394 F.3d at 807-08. Exploiting ambiguous rules for the purpose of denying coverage is arbitrary and capricious. The same is true of the second basis for termination the district court found to be arbitrary and capricious: that termination was justified because payment was made by personal rather than cashier's check. WAB derived that supposed requirement not from any written policy language but from an unwritten and internal rule of Ms. Johnson. Dist. Op. 14-15. Ms. Johnson did inform Lock Shop that its October late payment would need to be paid by cashier's check as its prior check had bounced, but even Mr. Carnahan admitted that whether future payments needed to be made by cashier's check was ambiguous. Id. at 16. More importantly, though, even if it was reasonable to require payment by cashier's check, it does not escape the fact that the district court found that the true reason for the termination was to avoid paying Mr. Phelan's claim. We note also that the personal check Lock Shop submitted had adequate funds and cleared without difficulty, which makes termination for failure to pay by cashier's check all the more suspect. Accepting the district court's factual determination that Lock Shop's termination was an attempt to avoid payment on Mr. Phelan's claim, we agree that the termination *1260 was arbitrary and capricious and that reinstatement of Lock Shop's December coverage was an appropriate equitable remedy. III. CONCLUSION We therefore AFFIRM the decision of the district court. BRISCOE, J., Circuit Judge, concurring. I concur in the result, but write separately to make two points regarding the assertion by Wyoming Associated Builders, Inc. (WAB) that the decision to terminate The Lock Shop from the insurance trust was neither arbitrary nor capricious. Standard of review First, I am not persuaded, as is the majority, that we are obligated to review the termination decision under the more onerous arbitrary and capricious standard of review. Instead, for the reasons outlined below, I conclude de novo review applies in this instance. The majority places great weight on the fact that "[b]oth parties agree that arbitrary and capricious review governs this case." Maj. Op. at 1256. But this ignores the "well-settled [principle] that a court is not bound by stipulations of the parties as to questions of law," including the appropriate standard of review. Koch v. U.S. Dep't of Interior, 47 F.3d 1015, 1018 (10th Cir.1995); see United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.1992) (en banc) ("No party has the power to control our standard of review."); Jones v. Metro. Life Ins. Co., 385 F.3d 654, 660 n. 4 (6th Cir.2004) ("Typically, parties may not determine by agreement [a court's] standard of review."). Thus, we must resolve for ourselves, based upon controlling precedent and the relevant facts of this case, what the proper standard of review is in this case. Generally speaking, a denial of benefits under an ERISA-governed plan "is to be reviewed under a de novo standard unless the ... plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). If, however, the plan at issue confers such discretion, then, absent procedural irregularities, we review the administrator's decisions under an arbitrary and capricious standard. See Kellogg v. Metro. Life Ins. Co., 549 F.3d 818, 825-26 (10th Cir.2008). These general standards of review also appear to apply where, as here, there has not been a specific denial of benefits, but rather an employer has been terminated from an ERISA-governed plan. Cf. Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 108 (2d Cir.2008) (applying same standards of review to board of directors' decision to terminate altogether an ERISA-governed plan). The Plan at issue in this case states, in pertinent part, that "[i]t is the express intent of this Plan that the Plan Administrator, or its designee, shall have maximum legal discretionary authority to construe and interpret the terms and provisions of the Plan, to make determinations regarding issues which relate to eligibility for benefits, to decide disputes which may arise relative to a Plan Participant's rights, and to decide questions of Plan interpretation and those of fact relating to the Plan." App. at 260. Notably, however, the Plan focuses exclusively on the eligibility of participating individuals for medical benefits, and thus is silent with respect to the payment of premiums by participating employers, as well as with respect to the termination of employers from the Plan. Further, although it is uncontroverted that the *1261 trustees adopted a formal written "late payment" policy in the spring of 2006, nothing in the record on appeal indicates that policy was intended to be part of the Plan. Nor did that "late payment" policy grant the Plan administrator or trustees discretion to interpret its terms (or the terms of the Plan). Lastly, the "late payment" policy afforded the Plan administrator authority only to "recommend" termination, and provided that the ultimate decision on termination would be made by the trustees; it is uncontroverted that this procedure was not followed in terminating The Lock Shop.[1] Although the written agreement that formed the Trust contains various provisions regarding the "Powers" and "Duties" of the trustees, it likewise is silent with respect to the payment of premiums by employers and the termination of employers from the Plan. Thus, it cannot reasonably be said that this document confers discretionary authority on the trustees to resolve employer terminations. For these reasons, I conclude that a de novo standard of review applies to the decision to terminate The Lock Shop from the insurance trust. Merits of the termination decision As for the merits of the termination decision, I conclude The Lock Shop did not, in making its December 2006 premium payment, violate the late payment policy adopted by the board of trustees on June 1, 2006. That policy reads as follows: Late Payment Penalties: The WABIT program is a partial self-funded Trust administered under Federal ERISA guidelines. As such, the timelines [sic] of premium payments is extremely important. Due to some abuses, there will be an immediate implementation of a late payment penalty if premiums are not received timely plus a reasonable grace period. Premiums are due on the first (1 st) of each month. Premiums not received (postmarked) by the 10th of each month will have a 25% of premium due, up to a maximum of $500 penalty applied. The Trust Board also recommends the use of ACH transfers for premium payment, which is available from Benefit Administrators [the entity retained by the Trust to perform administrative functions for the Trust, including collection of premiums]. Termination Procedures: The WABIT program is a partial self-funded Trust administered under Federal ERISA guidelines and there is NOT a premium due grace period. Premiums are due on the first of each month. If premiums are not received by the 10th of each month in which they are due, claim payment will be suspended and a phone call will be made as well as penalties applied. If premiums are not paid by the 15th of each month, the Plan Administrator is notified and if premiums are still not received by the 20th of the month the group is recommended by the Plan Administrator for termination by the Trust Board, with the termination retroactive back to the 1 st of each month. Id. at 272. I agree with the district court that the term "received" is expressly defined in the *1262 fifth sentence of the Late Payment Penalties provision of the policy to mean "postmarked." Under that definition, The Lock Shop's December premium payment was "received" by WAB and its agents on December 19, 2006, when Tami Austin placed it in the hands of Federal Express for delivery to Hilltop Bank on the morning of December 20, 2006. Thus, the premium payment was timely "received" under the terms of the late payment policy. As for The Lock Shop's purported failure to pay its December 2006 premium via certified check or the "ACH" method of payment, no such requirement appears in the late payment policy or elsewhere in the Plan. Instead, the "Late Payment Penalties" provision of the late payment policy simply states that "The Trust Board ... recommends the use of ACH transfers for premium payment...." Id. (emphasis added). Thus, The Lock Shop's use of a regular check, which I note was backed by sufficient funds in The Lock Shop's account, was entirely proper. NOTES [1] WAB has also appealed the district court's denial of its motion for a continuance in order to conduct discovery into the remedial theory of reinstatement, which WAB described as a "new" remedial theory. The district court disagreed that this was a new theory and found that WAB had been on notice of the theory for some time. We review denials of a continuance for abuse of discretion, and as the district court considered the relevant factors such as the likelihood a continuance would accomplish its purpose, the diligence of the party seeking the continuance, and the inconvenience to the opposing party, we cannot say the court abused its discretion here. WAB moved for a continuance only three days before trial, at which point it had indisputably been on notice at least a month, and it was unclear that additional time would allow it to uncover any additional evidence. See Rogers v. Andrus Transp. Services, 502 F.3d 1147, 1151 (10th Cir.2007). [2] Even if the trust administrators operated under a conflict of interest, as Mr. Phelan argues, this would not alter the standard of review. See Metropolitan Life Ins. Co. v. Glenn, ___ U.S. ___, 128 S.Ct. 2343, 2350, 171 L.Ed.2d 299 (2008) ("We do not believe that Firestone's statement [that a conflict of interest should be taken into account on judicial review of a discretionary benefit determination] implies a change in the standard of review, say, from deferential to de novo review."). Instead, a conflict of interest is one of several factors that a judge can consider when deciding whether the decision was indeed arbitrary and capricious. Id. at 2351. [3] The concurrence contends that the ERISA plan did not grant the administrators discretion in administering the plan and that the district court should have therefore reviewed Lock Shop's termination de novo. Neither party has argued this, and in fact Mr. Phelan, who would surely prefer de novo review, states that the "district court ... applied the appropriate standard of review." Aple. Br. 30. Even aside from this, the plain language of the plan states that the Plan Administrator "shall have maximum legal discretionary authority to construe and interpret the terms and provisions of the Plan, ... to decide disputes which may arise relative to a Plan Participant's rights, and to decide questions of Plan interpretation and those of fact relating to the plan." App. 260. This broad grant of discretion would seem to include the decision to terminate a plan participant for failure to make timely payments and, in the absence of either party arguing it does not, we see no reason to think otherwise. [1] The record on appeal indicates that The Lock Shop was actually terminated from the Plan by Josh Carnahan, the Plan administrator, and that the trustees simply "affirmed" Carnahan's decision in denying The Lock Shop's appeal. That procedure, however, was not authorized by the "late payment" policy adopted by the trustees. Rather, as noted, Carnahan's role under the "late payment" policy was merely to "recommend" termination, and the decision whether or not to actually terminate was supposed to rest solely with the trustees.

276 U.S. 6 (1928) IN RE GILBERT. Supreme Court of United States. Argued January 16, 1928. Decided January 23, 1928. ON RULE TO SHOW CAUSE. Mr. James M. Beck for respondent. *7 MR. CHIEF JUSTICE TAFT announced the opinion of the Court. Under our order of November 21st, 1927, the clerk issued a rule to the respondent, Abraham S. Gilbert, of New York City, a member of this bar, which directed — That he make written report to this Court showing what fees or allowances have been paid to him (also when and by whom paid) for services as master in the several causes reviewed here during the October term, 1921, and reported in 259 U.S. 101, under the following titles: Newton, as Attorney General of the State of New York, et al., v. Consolidated Gas Company of New York; Same v. New York & Queens Gas Company; Same v. Central Union Gas Company; Same v. Northern Union Gas Company; Same v. New York Mutual Gas Light Company; Same v. Standard Gas Light Company of the City of New York; Same v. New Amsterdam Gas Company; Same v. East River Gas Company of Long Island City. That he likewise report whether he has returned or repaid any portion of the fees or allowances received by him as such master, with dates and names of the parties. That if he has received fees or allowances as master in any of the specified causes exceeding the maximum amount held by us to be permissible, and has not returned or repaid the excess, then he shall show cause why his name ought not to be stricken from the roll of attorneys permitted to practice here and he be punished for contempt or otherwise dealt with as the circumstances may require. On the return day, January 16, 1928, Gilbert presented himself, filed a written report, and was heard through counsel. *8 He asserts that he received as fees for services as master in the eight above-mentioned causes a total of $118,000; he sets out their several amounts and shows by whom and when they were paid. He avers that no one of the Gas Companies which paid these fees has ever questioned the amount or asked return of any portion, and says that he believes it was proper for him to retain them, notwithstanding they greatly exceeded what we declared permissible. But, he further says, that if this Court, after viewing his response, should conclude that he is under legal or moral obligation to return any part of them, he is willing so to do. In December, 1921, the District Court for the Southern District of New York made allowances to respondent for services as master in each of the above-mentioned causes and directed that they be paid by the complaining corporations respectively and thereafter taxed as costs against the defendants, the Attorney General of New York and others. In obedience to such orders and before the time for appeal expired, these were paid, as follows: By Consolidated Gas Co., Dec. 13, 1921, $57,500.00; By N.Y. & Queens Gas Co., Dec. 16, 1921, $12,500.00; By Central Union Gas Co., Dec. 16, 1921, $12,500.00; By Northern Union Gas Co., Dec. 13, 1921, $7,500.00; By N.Y. Mutual Gas Light Co., Dec. 16, 1921, $11,500.00; By Standard Gas Light Co., Jan. 13, 1922, $7,500.00; By New Amsterdam Gas Co., Jan. 13, 1922, $4,500.00; By East River Gas Co., Jan. 13, 1922, $4,500.00. The Attorney General and other defendants insisted that the allowances were excessive. The District Court overruled their objections; the matter came here and was decided May 15, 1922, 259 U.S. 101. We held that in the Consolidated Gas Company's case twice too much had been allowed and in the other causes three times too much — that the total compensation should not exceed $49,250. And further, that in making these awards the District Court abused its judicial discretion. Accordingly, *9 we reversed the challenged decrees and remanded the causes with instructions to fix respondent's compensation within the following limitations: "In the cause wherein the Consolidated Gas Company is appellee here (No. 750) not exceeding $28,750 — one-half of the amount heretofore allowed; in each of the other seven causes, Nos. 751, 752, 753, 832, 833, 844 and 845, not exceeding one-third of the amount heretofore allowed therein; and in the eight cases allowances totaling not more than $49,250." We also directed "such further action in conformity with this opinion as may be necessary." Upon receipt of the mandates, issued here June 19, 1922, the District Court ordered that the master's fees to the extent of the maximum permitted by us should be taxed against the several defendants as costs. Respondent made no effort to secure any further orders or direction by the District Court or this Court. More than a year thereafter — December, 1923 — apparently moved by published criticisms, respondent instituted a proceeding against the Consolidated Gas Company in the Supreme Court of New York under Sec. 473, New York Civil Practice Act, wherein he sought and obtained a declaratory judgment reciting that that Company had no valid claim against him for return of any part of the $57,500 which it had paid. This proceeding was ill-advised, or worse, and the pronouncement therein cannot aid him here. The state court had no power to determine the matter now before us. Upon announcement of our opinion, May 15, 1922, it became the imperative duty of respondent immediately to return the fees received by him so far as they exceeded what we declared permissible. It is now his duty, without further delay, to return this excess with interest thereon at 6 per centum, from May 15, 1922. When respondent accepted appointment as master he assumed the duties and obligations of a judicial officer. He could not rightfully accept or retain anything as compensation *10 unless sanctioned by proper order of court. Reception then or now of a gratuity from any party would be indefensible, and whether or no the corporations which paid him by direction of the court are satisfied with the result is now unimportant. He has long been an attorney and counsellor authorized to practice at this bar under the sanction of an oath to demean himself "uprightly, and according to law." Notwithstanding the adjudication here that excessive fees had been allowed by orders granted in abuse of judicial discretion, he has retained them for more than five years. He knew that he had got unearned money by improper orders of court, but he decided to keep it. Such conduct is far from "upright and according to law" within the fair intendment of those terms. Further action will be postponed until Monday, February 20th, 1928. The respondent will present himself at that time and report in writing concerning efforts made to comply with his obligations.

541 U.S. 1006 HOLLEYv.JOHNSON, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS. No. 03-7059. Supreme Court of United States. April 19, 2004. 1 540 U. S. 1116. Petitions for rehearing denied.

951 F.2d 1324 293 U.S.App.D.C. 57 NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.SECRETARY OF LABOR, on behalf of David THOMAS and GeorgeIsaacs, Petitioner,v.AMPAK MINING, INC., Geary Burns, and Peggy A. Kretzer, Respondents. No. 91-1452. United States Court of Appeals, District of Columbia Circuit. Dec. 6, 1991. Before HARRY T. EDWARDS, RUTH BADER GINSBURG and SENTELLE, Circuit Judges. ORDER PER CURIAM. 1 Upon consideration of David Thomas and George Isaacs' motion to intervene and the Secretary of Labor's petition for enforcement on behalf of Thomas and Isaacs, and no responses thereto having been received, it is 2 ORDERED that the motion to intervene be granted. It is 3 FURTHER ORDERED that the petition for enforcement be granted. The orders of the Federal Mine Safety and Health Review Commission in the above-entitled case requiring Ampak Mining, Inc., Geary Burns, and Peggy Kretzer to pay David Thomas and George Isaacs $6,250 and $6,080, respectively, plus interest and attorneys' fees shall be and are hereby enforced. 4 The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir. Rule 15.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0648n.06 No. 10-3520 FILED Aug 31, 2011 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk VIVIAN SKOVGARD; PERCY GROS, JR., ) ) ON APPEAL FROM THE Plaintiffs-Appellants, ) UNITED STATES DISTRICT ) COURT FOR THE SOUTHERN v. ) DISTRICT OF OHO ) JEFF PEDRO, P.O.; MIKE MANNIX, P.O.; CITY OF ) OPINION KETTERING, ) ) Defendants-Appellees. ) __________________________________________ ) Before: SUTTON and WHITE, Circuit Judges; STAFFORD, District Judge.* HELENE N. WHITE, Circuit Judge. Plaintiffs-Appellants Vivian Skovgard (Skovgard) and Percy Gros, Jr. (Gros) (collectively, plaintiffs) are long-time anti-abortion advocates, whose activities outside of the Women’s Med + Center (the Center), an abortion clinic in Kettering, Ohio, include counseling, praying, picketing, and distributing literature. On March 2, 2007, Alex Kaminski (Kaminski), the Center’s security guard, called the police to report that plaintiffs were trespassing on the Center’s property. Officers Jeff Pedro (Pedro) and Mike Mannix (Mannix) responded to the call and ultimately arrested plaintiffs. Charges against the plaintiffs were later dismissed when it was determined that they had been on the public right-of-way adjacent to the Center. Plaintiffs then filed actions against the officers, Kaminski, the company that employed * The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District of Florida, sitting by designation. 1 No. 10-3520 Skovgard v. Pedro Kaminski, and the City of Kettering (the City). Pedro, Mannix, and the City (collectively, defendants) sought summary judgment on all of plaintiffs’ claims, which the district court granted. Subsequently, plaintiffs voluntarily dismissed their claims against the remaining defendants and appealed the district court’s summary judgment decision. We AFFIRM. I. A. The district court provided a comprehensive and fair account of the factual background: A. Background on the Center, Kaminski, Skovgard and Gros The Center[2] is surrounded on three sides by roadways. To the south is Stroop Road, which presently has a sidewalk, but has not always had such. To the west is Vineyard Avenue, which has had a sidewalk at all times relevant to this litigation. To the north is Wheatland Avenue (the location of the incidents in question in this litigation), which does not have a sidewalk. In the grassy area along Wheatland Avenue, there is a fire hydrant. Pedestrians sometimes walk on that grassy area to avoid traffic on the street. 1st Choice [Security, Inc. (1st Choice)] provided security services for the Center, and, assigned Alex Kaminski as a security guard to the Center, in January 2007. The Center (which is not a party in this litigation) never advised Kaminski of the extent of its property or the existence of a public right-of-way along the northern portion of the property that abuts Wheatland Avenue. Plaintiff Vivian Skovgard has been praying, protesting and attempting to counsel women outside of the Center four days a week for approximately six hours a day, since 1989. In so doing, she sometimes walks along the grass on Wheatland Avenue, staying within three to four feet of the roadway. Skovgard was arrested numerous times, between 1989 and 1995, in various parts of the country (including Alabama, Kansas and Texas) and convicted of criminal trespass in some instances, as a result of blocking access to various abortion clinics. However, her only confrontation with police at the. . .Center was in “two thousand something” when she was either detained or arrested (and then [immediately] released) for trespassing 2 Plaintiffs also refer to the Center as the “Haskell Clinic.” 2 No. 10-3520 Skovgard v. Pedro when she walked on the Center’s driveway to hand literature to a person leaving the facility in a car. Plaintiff Percy Gros has been regularly protesting and praying at the Center since 1987. In so doing, he walked in the grass along Stroop Road (before a sidewalk was added) and has also walked in the grass along Wheatland Avenue “many, many times[.]” When walking along Wheatland Avenue, Gros always stays within a couple of feet of the roadway. During the twenty year period that he has been present at the Center, the police have occasionally been to the Center while Gros was there, but had never indicated to Gros that he was not allowed to walk on the grass along Wheatland Avenue, prior to the incident on March 2, 2007. Gros was arrested twice in 1987, once at the Center and once at another abortion clinic in Dayton, Ohio, and convicted both times for disturbing the peace. B. Incident at Center on March 2, 2007 On March 2, 2007, Skovgard arrived at the Center around 9:30 a.m. and spent most of her time on the sidewalk along Vineyard Avenue, prior to Gros’s arrival. When Gros arrived, he walked in the grassy area along Wheatland Avenue, staying within three feet of the road.[3] Kaminski soon approached Gros with a threat to call the police if Gros did not get off the grass. When Gros ignored him, Kaminski leaned into Gros, making physical contact with him, and then accused Gros of assaulting him. Gros reacted by continuing to walk as before, while Kaminski went into the Center to call the police department to report that Gros and Skovgard were trespassing and to retrieve a video camera. Skovgard then joined Gros, walking along the grassy area on Wheatland Avenue. Officers Pedro and Mannix arrived soon thereafter and initially spoke with Kaminski. Kaminski advised the officers that he had asked Gros and Skovgard to leave the Center’s property on the grassy area on the north side of the clinic, but they had refused. Kaminski also informed them that the Center wanted Gros and Skovgard off the grass and back onto the sidewalk to conduct their protests. According to Pedro, at this time Gros was fifteen feet off of Wheatland Avenue, while, at his deposition, Mannix testified that Gros and Skovgard were approximately ten feet into the grassy area when he arrived. (This is in contradiction to the testimony of Gros and Skovgard who stated that they always stay within three to four 3 Gros had made the decision to walk along Wheatland Avenue on this day because Skovgard previously told Gros that Kaminski had told her that she was not allowed to walk on the grass and Gros wanted to “basically make a statement to say [Skovgard] is not the only person that is protesting here . . . . [b]y leaving his footprints [in the snow along Wheatland Avenue.]” 3 No. 10-3520 Skovgard v. Pedro feet (or a couple of feet) of the roadway.) The officers believed that the edge of the roadway marked the Center’s property line.4 The officers several times told Gros and Skovgard that they needed to get off the grass and encouraged them to continue their protests on the sidewalk, but Gros and Skovgard continued walking in the grass. The officers then stated that they would arrest Gros and Skovgard if they did not get off the grass, at which time both Gros and Skovgard told the officers that they did not have to get off the grass because it was public right-of-way. Gros also mentioned that they had been protesting on that property for over twenty years and had never been harassed by the police before. Nevertheless, the officers handcuffed and arrested Gros and Skovgard for criminal trespass, transporting them to the police station and detaining them in the City jail. Ultimately, the charges were dismissed against Gros and Skovgard when it was determined that they were protesting within the public right-of-way. The public right-of-way on Wheatland Avenue extends 25 feet from the centerline of the road. It is unclear how wide the road is or how many feet the right-of-way extends into the grassy area along Wheatland Avenue.5 . . . . C. Facts Pertaining to Municipal Liability At his deposition, Lieutenant [James] Knickle [(Knickle)], of the Kettering Police Department, testified that Pedro and Mannix acted in accordance with the City’s policies, procedures and training, in the course of the arrests of Gros and Skovgard, on March 2, 2007. Knickle is familiar with the history of the regular presence of protestors at the Center, including a mass protest in the early 1990s, where large groups blocked the door of the Center and the police made arrests for criminal trespass. Prior to the incident involving Gros and Skovgard, in 2007, however, the City did not provide any training to its officers regrading how to 4 “When asked why he assumed that the Center’s property line was at the edge of the street, Pedro testified that ‘all of my prior understanding and training told me that basically property is property. If . . . a person’s property is basically the established property line, that the edge of the grass leading up to the sidewalk and everything inside that is their property.’” 5 “A hand-sketched drawing from the Kettering City Engineer indicates that the right-of-way extends approximately 14.5 feet into the grassy area on either side of Wheatland Avenue. However, Gros testifies that the City Engineer did not know how wide the street was, when he prepared the sketch, so the numbers on the sketch would appear to be estimates. The Plaintiffs also point to photographs contained in the record, which were taken in the course of a survey of the property, but there is no indication in the photographs of how many feet the right-of-way extends into the grass.” 4 No. 10-3520 Skovgard v. Pedro identify or handle trespass issues at the Center. After acknowledging that protestors were arrested for criminal trespass, during the mass protest at the Center in the early 1990s, Knickle was questioned about training with regard to trespass issues. A pertinent part of his deposition reads: Q Okay. So it’s fair to say that dating back say – at least say to the 1990s which is when I know a lot of that activity happened, criminal trespass was a charge that the – or situation that the police and the Kettering courts had to deal with? A Correct. Q And do you recall any specific training that the [C]ity of Kettering ever gave to the police officers dealing with trespassissues at that clinic? For example, where are the property lines, where are the protesters allowed to walk, where can’t they walk. Sometimes there [are] sidewalks along some side of the clinic. Other side of the clinic, there are no sidewalks. I’ve just thrown a lot at you but do you recall any kind of training to address that location in particular with the history of protest then? A Prior to this incident in 2007, no. Lieutenant Knickle testified that, although the City did not conduct any training specific to trespass issues at the Center, it had conducted training specific to the Center on the “logistics of how we were going to respond if we were required to make mass arrests and – specifically, you know, what the logistics would be if we brought in buses and the use of flex cuffs versus regular handcuffs and how we would process personnel.” Pedro confirms Knickle’s testimony in stating that, prior to the incident in March 2007, he never received any training or instruction about how to handle protestors at the Center, except on the occasion of the mass protest in the early 1990s when the City instructed him on how to handle the unique aspects of that anticipated event. He also received no training or instruction about the property lines or public right-of-way around the Center. Likewise, Mannix had received no training regarding public rights-of-way or property lines, or any training pertaining to handling issues specific to the Center, with the exception of the instructions pertinent to the earlier mass protest, as described by Pedro. As to other police training, both officers had attended basic peace officer training, as well as in-service training provided by the City. 5 No. 10-3520 Skovgard v. Pedro With regard to the incident in March 2007, Lieutenant Knickle followed up on the same by talking with Officer Pedro and visiting the site in question. He concluded that the officers had acted in accordance with the City’s policies and procedures when they made the arrests in question. Soon thereafter, the City provided its police officers with an aerial photograph of the property surrounding the Center. The City also provided its officers instruction concerning the Center’s property boundaries and how they related to making arrests for criminal trespass. B. On March 3, 2008, plaintiffs filed suit against Pedro, Mannix, 1st Choice, and Kaminski, alleging (1) warrantless, unreasonable, and unconstitutional seizure and detention, in violation of the Fourth Amendment; (2) deprivation of the freedoms of speech and assembly and retaliation for the exercise of speech, in violation of the First Amendment; (3) deprivation of liberty without due process of law, in violation of the Fifth and Fourteenth Amendments; and (4) false arrest, false imprisonment, and malicious prosecution in violation of Ohio law. Plaintiffs filed a separate suit against the City, alleging inadequate training and/or failure to discipline the police officers, which resulted in the alleged First, Fourth, Fifth, and Fourteenth Amendment violations. The district court consolidated the cases. Defendants filed a motion for summary judgment on all of plaintiffs’ claims. The district court granted this motion, concluding that (1) Pedro and Mannix had probable cause to arrest plaintiffs; (2) plaintiffs had waived their First Amendment retaliation claims; (3) plaintiffs’ First Amendment rights were not violated because Pedro and Mannix had probable cause to arrest them; (4) plaintiffs could not prevail on their Fourteenth Amendment due process claims because the Fourth Amendment, and not the Fourteenth Amendment, establishes procedural protections with respect to the criminal justice system; (5) it was unnecessary to determine whether defendants were 6 No. 10-3520 Skovgard v. Pedro entitled to qualified immunity; (6) the City was not liable for a failure to train Pedro and Mannix because plaintiffs could not show that a constitutional violation had occurred; (7) the City was not liable for a failure to discipline or investigate because it did take steps to investigate the situation and to train its officers regarding the right-of-way at the Center after the alleged incident; (8) there were no facts presented to indicate that Pedro and Mannix deserved punishment given that they had “never been trained on tresspass/boundary issues at the Center”; and (9) Pedro and Mannix were entitled to immunity on plaintiffs’ state law claims because they did not act with a “malicious purpose, in bad faith, or in a wanton or reckless manner.” Plaintiffs then filed a motion asking the district court to dismiss with prejudice their federal claims and dismiss without prejudice their state claims against defendants 1st Choice and Kaminski. The district court granted the motion, thereby terminating plaintiffs’ case. Plaintiffs timely appealed the district court’s summary judgment decision. II. A. Plaintiffs claim that their “Fourth Amendment rights were violated when they were arrested for criminal trespass on March 2, 2007 because [p]laintiffs were always in the public right of way, neither” Pedro, Mannix, nor Kaminski “had any knowledge to the contrary or any knowledge about the boundaries of the property,” and Pedro and Mannix “failed in their duty to investigate further after [p]laintiffs informed them about [p]laintiffs[’] long history of protesting in that same area in full view of everyone.” Defendants argue that plaintiffs’ Fourth Amendment rights were not violated because Pedro and Mannix had probable cause to arrest plaintiffs for criminal trespass. 7 No. 10-3520 Skovgard v. Pedro “We review the district court’s grant of summary judgment de novo.” Rodriguez v. Passinault, 637 F.3d 675, 680 (6th Cir. 2011) (italics omitted). Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show “that there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Fourth Amendment guarantees “that government officials may not subject citizens to searches or seizures without proper authorization,” and therefore “[a] person who has been the victim of an unlawful arrest or wrongful seizure under the color of law has a claim based on [this Amendment.]” Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir. 2009). “[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where 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). “The validity of the arrest does not depend on whether the suspect actually committed a crime . . . .” Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). As a result, “in order for a wrongful arrest claim to succeed under [42 U.S.C.] § 1983, a plaintiff must prove that the police lacked probable cause.” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002). “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007) (quoting Henry v. United States, 361 U.S. 98, 102 (1959)) (internal quotations omitted). The probable cause inquiry “‘depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest,’ where supported by ‘reasonably trustworthy information.’” Id. (citation omitted). An officer who intends to execute a warrantless arrest is not 8 No. 10-3520 Skovgard v. Pedro tasked with an “overly-burdensome duty to investigate.” Id. In initially determining probable cause, an officer need not “investigate independently every claim of innocence.” Id. (citing Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000)). “And after the officer determines, on the basis of the facts and circumstances known to him, that probable cause exists, the officer has no further duty to investigate or to search for exculpatory evidence.” Id. However, the officer’s initial probable cause determination must be based on both “inculpatory and exculpatory evidence known to [him],” and the officer “cannot simply turn a blind eye toward potentially exculpatory evidence.” Id. (citations and internal quotations omitted). Authorization for an arrest typically depends on state law. Id. Here, Pedro and Mannix arrested plaintiffs for criminal trespass. In Ohio, an individual commits criminal trespass by “[k]nowingly enter[ing] or remain[ing] on the land or premises of another” absent “privilege to do so.” Ohio Rev. Code § 2911.21(A)(1). The Ohio Code defines “privilege” as “an immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of status, position, office, or relationship, or growing out of necessity.” Id. § 2901.01(A)(12). “Ohio courts construe the lack- of-privilege requirement as an element of the offense of criminal trespass, and not an affirmative defense.” Logsdon, 492 F.3d at 342; see also State v. Newell, 93 Ohio App.3d 609, 639 N.E.2d 513, 514 (1994). B. Pedro and Mannix would have had probable cause to arrest plaintiffs if, on the basis of the facts known to them, they could have reasonably concluded that plaintiffs knowingly entered or remained on the Center’s property without privilege. It is undisputed that plaintiffs were protesting 9 No. 10-3520 Skovgard v. Pedro in a grassy area that reasonably appeared to be part of the Center’s property, and that did not have a sidewalk indicating a public right-of-way. Pedro arrived on the scene in response to a report that two persons were refusing to leave the Center’s property. He spoke to Kaminski outside the Center, and Kaminski stated that “he and the owner or representative of the building wanted [the two individuals on the grass] to be removed from the grassy area . . .[, but that they could continue their protest on] the sidewalk.” Kaminski also told Pedro that he had asked plaintiffs to leave the grassy area, and that they refused to do so. Pedro testified that when Kaminski said that he and the owner wanted plaintiffs removed from the property, he motioned toward the Center and Pedro saw a female staff member (the Center’s director is female) standing inside the doorway.6 Pedro also “vaguely remember[ed] [Kaminski saying that he and Gros] had bumped into each other, or in the course of [Kaminski] advising [Gros] to leave, that they had made very slight physical contact.” He did not give serious attention to Kaminski’s complaint, however. Pedro further testified that at the time, “he made a reasonable assumption that the [Center’s] property lines were the edge of the grass on the north end of the property, and then the sidewalk along the east side of the street and [the] sidewalk along the south side of the street.” This assumption was based on “[his] prior understanding and training that . . . . [i]f an individual or a person’s property is basically the established property line, that the edge of the grass leading up to 6 Melissa Goode (Goode), the Center’s director, testified that she observed Pedro speaking with plaintiffs, but did not approach Pedro because she had not seen what had transpired. Goode also stated that Kaminski came into her office and told her that he had called the police because he had walked out to ask Gros to move away from the grass and Gros “shoved him or pushed him out of his way.” Kaminski did not ask for Goode’s permission to call the police, but Goode did not reprimand him for doing so, and she did not subsequently speak to the officers about the matter. 10 No. 10-3520 Skovgard v. Pedro the sidewalk and everything inside that is their property.” Pedro testified that during his police training on the issue of criminal trespass, he was taught that a business property would generally be surrounded by a parking lot, which would come “out to the edge of typically a grassy area leading up to a public sidewalk, and that would extend the boundaries of the property.” After talking with Kaminski, Pedro went to speak to Gros, who was walking back and forth in the grassy area while holding a cross. According to Pedro, Gros was approximately fifteen feet from the edge of the grass. Skovgard was also walking in the grassy area close to Gros. Pedro asked plaintiffs to move to the sidewalk, and Gros refused to do so. Pedro asked plaintiffs to move three more times, and Gros refused each time.7 Although Pedro directed his comments at plaintiffs, “Gros did all the talking.” Pedro recalled Gros saying that they had a right to walk on the easement and that they had been protesting at the Center for a long time while Skovgard “was in the background supporting what []Gros had to say.” After Pedro’s third request that they move to the sidewalk, Gros asked to see a judge. Plaintiffs also refused to provide their identification cards to Pedro. Pedro ultimately informed plaintiffs that if they did not want to move to the sidewalk, Pedro would have to arrest them because the property owner wanted them removed from the property. He then proceeded to arrest Gros. Prior to leaving the scene, Pedro put Gros’s cross in the front seat of Gros’s vehicle and assisted Gros in securing his vehicle, which was parked outside the Center. 7 Skovgard testified that she did not hear either officer say that she had the option to move to the sidewalk, but acknowledged that she may have been distracted because she was “calling her husband and talking to him” during her interaction with the officers. Gros admitted that Pedro told him at least once that he could “picket in the street” and stated that Pedro just wanted Gros and Skovgard to “get off the grass.” 11 No. 10-3520 Skovgard v. Pedro Mannix arrived toward the end of Pedro’s conversation with plaintiffs. He observed plaintiffs standing on the grass, approximately ten feet from the roadway. Mannix heard Kaminski say that he wanted Skovgard arrested because she had previously been trespassing on the property. While Pedro arrested Gros, Mannix asked Skovgard “if she was going to . . . get off the property and on the sidewalk.” Skovgard responded that “she didn’t have to, she was allowed to be where she was.” Mannix testified that his understanding regarding the Center’s property lines was consistent with Pedro’s, as he believed that the Center’s property encompassed the grassy area along Wheatland Avenue and stopped at the roadway. Because both officers believed that Skovgard was trespassing, Pedro made the decision to arrest her, and Mannix effected the arrest. Mannix then placed Skovgard in the police car and secured Skovgard’s car. He also retrieved Skovgard’s purse from her car for her. Shortly after the arrest, Kaminski met Pedro and Mannix at the police station upon their request and signed the criminal complaints against plaintiffs. Thus, the dispute focuses on whether Pedro and Mannix were required to determine where the public right of way ended before effecting the arrests. Because the law does not clearly require such a determination, Pedro and Mannix are entitled to qualified immunity. C. In determining the applicability of qualified immunity, we inquire whether: (1) “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right[;]” and (2) was the right “‘clearly established’ to the extent that a reasonable person in the officer’s position would know that the conduct complained of was unlawful.” Bletz v. Gribble, 641 F.3d 743, 750 (6th Cir. 2011) (citation omitted). “For a right to be 12 No. 10-3520 Skovgard v. Pedro clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (citation and internal quotation marks omitted). “A right is clearly established if there is binding precedent from the Supreme Court, the Sixth Circuit, the district court itself, or other circuits that is directly on point.” Risbridger v. Connelly, 275 F.3d 565, 569 (6th Cir. 2002) (citation omitted). “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, but it is to say that in light of pre-existing law the unlawfulness must be apparent.” Wilson v. Layne, 526 U.S. 603, 615 (1999) (citations omitted). Public officials could “still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). Courts may use their discretion to determine which prong of the test to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). The Supreme Court has never addressed whether in criminal trespass cases, officers, as part of the probable cause inquiry, must conduct an additional investigation where the alleged trespassers claim they are on a public right-of-way. The Fifth and Seventh Circuits, however, have explicitly concluded that officers have no duty to investigate the boundaries of a public right-of-way prior to making an arrest for criminal trespass when they receive reasonably trustworthy information that certain persons are trespassing on private property and actually see these persons on the property in question. See Bodzin v. City of Dallas, 768 F.2d 722, 724-25 (5th Cir. 1985); Kelley v. Myler, 149 F.3d 641, 646-47 (7th Cir. 1998). Although we have not yet decided a case that is factually similar 13 No. 10-3520 Skovgard v. Pedro to Bodzin, Kelley, or the instant case, we have relied on Kelley for the proposition that “a duty to investigate is no part of the probable cause determination.” Gardenhire, 205 F.3d at 322-23. Pedro and Mannix arrested plaintiffs for criminal trespass on the basis of their training, observations, and the information provided by Kaminski. Unlike in Logsdon, they had personally observed the alleged trespassers in the area believed to be private property. Because a reasonable person in the officers’ position would not have thought that he was acting unlawfully by failing to further investigate the boundaries of the public right-of-way before arresting plaintiffs, Pedro and Mannix are entitled to qualified immunity on plaintiffs’ Fourth Amendment claims. III. Plaintiffs also argue that their First Amendment rights of freedom of speech and assembly were violated “when they were removed from the public right of way while peacefully protesting there.” Defendants contend that no First Amendment violations occurred because Pedro and Mannix had probable cause to arrest plaintiffs for criminal trespass. “Because of the importance of uninhibited, robust, and wide-open debate on public issues,” the Supreme Court has “traditionally subjected restrictions on public issue picketing to careful scrutiny.” Frisby v. Schultz, 487 U.S. 474, 479 (1988) (citation and internal quotations omitted). “‘[T]ime out of mind’ public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum.” Id. at 480 (citation omitted) (alteration in original). In these fora, “[t]he State may . . . enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave 14 No. 10-3520 Skovgard v. Pedro open ample alternative channels of communication.” Pouillon v. City of Owosso, 206 F.3d 711, 715 (6th Cir. 2000) (citation and internal quotations omitted). In Logsdon, the only case that is potentially on point, the plaintiff “engaged in anti-abortion protest and counseling from the public sidewalk and public park adjoining [a clinic’s] property, both quintessentially public fora,” and alleged that officers removed him “from the public fora, thereby causing him to cease his protest and counseling, ostensibly for violating Ohio’s criminal trespass law.” 492 F.3d at 345-46. The plaintiff also claimed that the officers demonstrated “a blatant bias against [the plaintiff] and in favor of doing whatever [the clinic] wanted.” Id. at 346. Because we had already determined that the officers lacked probable cause to arrest the plaintiff, and because we liberally construed the plaintiff’s complaint, we concluded that the plaintiff had “stated a claim that [the officers] violated his First Amendment rights by restricting his speech on the basis of content.” Id. We did not express any opinion as to whether the plaintiff would “ultimately succeed on his claim following discovery.” Id. Logsdon does not control here. The officers in Logsdon attempted to destroy the plaintiff’s sign and arrested him immediately upon arriving on the scene. The court construed the plaintiff’s complaint as alleging that the defendant officers were “motivated by the content of his speech” and “not by any purported criminal trespass.” Id. Here, Pedro and Mannix encouraged plaintiffs to continue their protest on the sidewalks bordering the Center, steering plaintiffs away from a location the officers thought was private property to the public right-of-way, and assisted plaintiffs with locking up their signs after arresting them. Because there is no evidence that Pedro and Mannix were 15 No. 10-3520 Skovgard v. Pedro motivated by their desire to deter plaintiffs’ speech rather than their belief that plaintiffs were trespassing, plaintiffs’ First Amendment claims fail. C. Finally, plaintiffs argue that “reasonable minds could conclude that the policies, practices[,] and police training (or lack thereof) by the City of Kettering were the ‘moving force’ behind” the alleged constitutional violations committed by Pedro and Mannix. They claim that “the City conceded that it had never trained its police force on issue[s] of criminal trespass and First Amendment [r]ights,” and that, through its Rule 30(b)(6) witness, “the City openly ratified and approved of the conduct of . . . Pedro and Mannix . . . .” The seminal case on municipal liability under § 1983 is Monell v. Department of Social Services, 436 U.S. 658 (1978), where the Supreme Court held that municipalities can be sued directly under § 1983 if the action of the municipality itself can be said to have caused the harm, such as where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Id. at 690. Municipal liability for the actions of employees may not be based on a theory of respondeat superior, but it can be predicated upon grounds other than explicit expressions of official policy. Id. at 690-91, 694. Subsequently, in City of Canton v. Harris, 489 U.S. 378 (1989), the Court held that “[o]nly where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” Id. at 389. “To establish deliberate indifference, 16 No. 10-3520 Skovgard v. Pedro the plaintiff ‘must show prior instances of unconstitutional conduct demonstrating that the [municipality] ha[d] ignored a history of abuse and was clearly on notice that the training in this particular area was deficient and likely to cause injury.’” Miller v. Sanilac Cnty., 606 F.3d 240, 255 (6th Cir. 2010) (citing Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)). A failure to investigate or the ratification of illegal acts can constitute evidence of an official “policy of deliberate indifference.” Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1248 (6th Cir. 1989); see also Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir. 1985). The evidence here does not in any way support a finding of deliberate indifference. Thus, the City is not liable to plaintiffs under theories of failure to train or failure to discipline or investigate. III. For the abovementioned reasons, we AFFIRM the district court’s grant of summary judgment to defendants. 17 

81 So.3d 432 (2012) RICHARDSON v. STATE. No. 4D10-1807. District Court of Appeal of Florida, Fourth District. March 23, 2012. DECISION WITHOUT PUBLISHED OPINION Affirmed.

220 Md. 39 (1959) 150 A.2d 900 GOLDSTEIN v. STATE [No. 217, September Term, 1958.] Court of Appeals of Maryland. Decided May 8, 1959. The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ. Max Sokol, with whom was Emanuel H. Horn on the brief, for appellant. Clayton A. Dietrich, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, J. Harold Grady, State's Attorney for Baltimore City, and John A. O'Connor, Jr., Assistant State's Attorney for Baltimore City, on the brief, for appellee. HENDERSON, J., delivered the opinion of the Court. This appeal is from a judgment and sentence of Hyman Goldstein, commanding officer of the Enforcement Unit, Rackets Division of the Baltimore City Police Department, to serve three years in the Maryland House of Correction after his conviction by a jury on a charge of suborning Herbert Meekins and Charles Richter, police officers under his command, to perjure themselves as prosecuting witnesses in the lottery case of State v. Taylor, tried June 28, 1957, in the Criminal Court of Baltimore. The appellant does not challenge the sufficiency of the evidence to support the conviction, but relies upon the four alleged errors in the rulings of the trial court: (1) that the court improperly limited the scope of examination of prospective jurors upon their voir dire, (2) that the court improperly denied a motion for continuance, (3) that the court erred in its instructions to the jury, particularly on burden of proof, and (4) that the court improperly overruled a challenge to the array based on a handbook furnished to the jurors before the trial. *42 To understand the contentions made, it is necessary to relate some of the background of the case. In September, 1957, certain charges of misconduct on the part of undisclosed members of the Rackets Division were made public by the Criminal Justice Commission, in connection with an alleged prostitute. During the ensuing investigation, a sergeant in the Division committed suicide. Certain witnesses called by the Grand Jury claimed privilege against self-incrimination. Goldstein and his superior officer, Forrester, were suspended from duty; and indictments were returned against them for malfeasance in office and maintaining a disorderly house, but never brought to trial. The present indictment against them was filed on November 14, 1957, and assigned for trial in May, 1958. Early in 1958, and before the trial, the cases of the persons tried on the testimony of Richter and Meekins were quashed. The first trial of these cases had resulted in a mistrial. All of these matters received wide publicity. Both defendants pleaded not guilty and elected a jury trial, and the case went to trial on May 12, 1958. They filed a challenge to the array on the ground that a certain handbook had been furnished the prospective jurors, which was claimed to be misleading and prejudicial. They also submitted a list of some thirty-four questions to be propounded to the prospective jurors on their voir dire, which the court declined to propound. Instead, the court framed six questions of its own. On the second day of the trial, the court was informed by the bailiff that several of the jurors had received telephone calls from persons unknown to them, with reference to the pending case. The court sent for all counsel, and in their presence and in the presence of the defendants, interviewed each of the jurors and alternates. Thereupon the court declared a mistrial, with the following statement: "A dastardly and criminal attempt has been made to influence the jury in this case. I am convinced that this criminal attempt was made without the knowledge in any way of the State's Attorney, counsel for the defendants or by the defendants. "I am asking the State's Attorney immediately to undertake a vigorous investigation of this criminal act, and to report to me the results of the investigation. I am sure that *43 counsel for the defendants and the defendants will cooperate to the best of their ability with the State's Attorney's office in this investigation." The case was again set for trial on June 9, 1958. At the beginning of the trial, after the defendants had renewed their previous motions, which were denied, the State's Attorney, in colloquy with the court, stated that his investigation had not disclosed the identity of the persons who had attempted to tamper with the previous jury. He pointed out, however, that it was not necessarily true that the tampering had been "done by persons desiring to harm the defendants * * * the act may have been aimed to render some assistance to the defendants." The court stated that it would frame an additional question on the voir dire relating to the mistrial, and would repeat to the jury the court's statement made in declaring the mistrial, which had received wide publicity, and that he would tell the jury that the State's Attorney's investigation was still continuing. Counsel for the defendants objected to going to trial and moved that "the case be continued until after the investigation is completed." The court denied the motion. As the court had indicated, it framed an additional question to the jurors on their voir dire, reciting the previous action taken, and asking: "Have you formed or expressed any opinion about the mistrial or anything in connection therewith, based on any statement or report from any source whatsoever, which would prevent you from rendering a fair and impartial verdict based solely on the law and the evidence in the case?" It also told the jury: "You are not to speculate as to the reasons for that mistrial or anything in connection with it. That is in no sense evidence in this case. It has, however, had one unfortunate effect. I have determined that it is advisable and necessary for the proper administration of justice and to protect you from any possible harassment that you be sequestered for the duration of this trial * * *. This step * * * means that at all times when you are not here in the courtroom or upstairs in your jury room, * * * you will be in a hotel where all your reasonable wants will be attended to, of course, at public expense. This step is taken by me *44 on my own initiative and my own responsibility, not at the request of either counsel for the defense * * *." At the conclusion of the case the jury found both defendants guilty. They filed motions for new trial, which were granted by the Supreme Bench as to Forrester, denied as to Goldstein. The trial court then imposed the sentence and entered the judgment from which the appeal comes here. We think it unnecessary to quote verbatim the questions framed and propounded by the court to the prospective jurors on their voir dire. In essence, the questions were: Whether any of the jurors were related by blood or marriage to any of the five persons named in the indictment; whether they had such bias, prejudice or opinion as to prevent their giving the accused the benefit of the rules as to the presumption of innocence and burden of proof (stating them); whether they had formed or expressed any opinion of guilt or innocence from any statement or report from any news source or person, which would prevent them from rendering a fair and impartial verdict based solely on the law and evidence in the case; whether the fact that several other members of the Police Department had been charged with (but not convicted of) the commission of criminal offenses would prevent a fair and impartial verdict; whether they had any bias or prejudice for or against members of the Police Department; and whether they had any bias or prejudice against anyone because of race or religion. The questions proposed by the appellant's counsel sought to elicit answers as to whether any of the prospective jurors knew, or were related to, a large number of specific groups, including the Grand Jury, the Criminal Justice Commission, its secretary, the Rackets Division, named members of the State police, City police, Attorney General's office, and many other persons, some of whom testified in the case, and some remain unidentified. They also inquired whether the jurors had discussed the case with Alvin J.T. Zumbrun, secretary of the Criminal Justice Commission, or attended any gathering at which he spoke; whether they had had any personal experience with the Rackets Division, and whether any member of their families had ever been involved in a raid or *45 arrest by it. The thirty-fourth question was whether the fact that news agencies had "carried accounts which might indicate that these defendants were involved in other matters than that for which they are now to be placed on trial" would affect their judgment in the case. We have already summarized the additional question framed by the court in its instruction in regard to the mistrial. The Maryland cases on the scope of examination on voir dire were fully reviewed in Brown v. State, 220 Md. 29. It is established that the purpose of the inquiry is to ascertain the existence of cause for disqualification and for no other purpose. Mere acquaintance with an individual or group is an insufficient basis for challenging a prospective juror for cause. Whittemore v. State, 151 Md. 309, 316. This is true even as to a party to the litigation. State v. Welsh, 160 Md. 542, 544, or his attorney. Brown v. State, supra. See also McGee v. State, 219 Md. 53, 59. It is generally held that mere relationship to witnesses, other than parties, is not a disqualification. See Butler v. United States, 191 F.2d 433 (C.A., 4th Cir.); Roberson v. United States, 249 F.2d 737 (C.A., 5th Cir.); State v. Wideman, 51 So.2d 96 (La.); Wright v. Commonwealth, 160 S.W. 476 (Ky.); State v. Bounds, 262 S.W. 411 (Mo.); note 18 A.L.R. 375. There is an intimation in some of the cases, however, that the exception as to parties extends to persons instigating a prosecution and having a strong personal interest in the outcome. If we assume, without deciding, that there is such an exception, we find no abuse of discretion in the court's action in the instant case. The appellant relies heavily upon the trial court's refusal to include in its first question the name of the witness, police officer Warrington; indeed, this is the only witness whose testimony is printed in the record extract. Warrington was present at the Taylor raid, and corroborated, to some extent, the testimony of the prosecuting witnesses, Meekins and Richter, whose names were included in the trial court's question. We think, however, that there was no showing as to his personal interest in the outcome. We find no merit in the contentions as to possible discussions *46 with Zumbrun, or reports published or broadcast. See Brown v. State, supra, and cases cited. The matter of possible bias was sufficiently covered in one of the trial court's questions. Possible prior experience of the jurors or their families with the Rackets Division would not necessarily disqualify them. Cf. Lockhart v. State, 145 Md. 602, 615, and Emery v. F.P. Asher, Jr., & Sons, Inc., 196 Md. 1. Moreover, we think the point was sufficiently covered in one of the trial court's questions. Cf. Adams, Nelson, and Timanus v. State, 200 Md. 133, 140. We find no merit in the contention that the trial court's questions were too general. Casey v. Roman Catholic Arch., 217 Md. 595, is distinguishable. There the court's inquiry as to religious bias was propounded out of context and before the jury had been informed that they were to try a case in which the archbishop was ostensibly a party in his individual capacity, although in reality in his corporate capacity only. We did not intend to encourage counsel to submit extensive interrogatories in the nature of a fishing expedition. The appellant's thirty-fourth question was objectionable as to form. The denial of the motion for continuance was also well within the discretion of the trial court. Jackson v. State, 214 Md. 454, 459. It had been demonstrated that the immediate investigation by the State's Attorney, ordered by the court, had been fruitless. There was no reason to suppose that further investigation would fix the blame within any reasonable time, although, as in the case of any unsolved crime, it is the duty of State officials to continue their efforts. There was no such showing of prejudice due to publicity as to require a continuance on that ground. Cf. Grammer v. State, 203 Md. 200, 215, and cases cited. We find no error in the trial court's charge to the jury. The charge was amplified to meet the objection raised as to burden of proof. There was no objection to the modification. Taken as a whole, we think the charge was adequate and fair. Cf. Lambert v. State, 193 Md. 551, 558, and Noel v. State, 202 Md. 247, 252, and cases cited. The objection as to the handbook given to the jury need not detain us long. This was a booklet of elementary instruction *47 entitled a "Handbook for Jurors" prepared by the Supreme Bench and given to prospective jurors at the time of their selection for future service. It was intended to give general instructions so as to acquaint the jurors with their duties. Judge Allen testified that in handing out the booklet, he instructed the prospective jurors, some of whom were eventually sworn in the instant case, that it was simply an outline of procedures in court and "as they were assigned to each court, the Judge would give them general instructions and if they were sworn to serve in any particular case they would get detailed instructions which they were to follow." We have held that an accused has a right to be present at every stage of his trial "from the time the jury is impaneled." Midgett v. State, 216 Md. 26, 36, and cases cited. But, obviously, the rule does not include communications between the court and prospective jurors at the beginning of jury duty, or, indeed, until the trial of the particular case against an accused is reached. See note 62 Harv.L.Rev. 139. The appellant's chief objection is to the alleged fact that some of the general statements in the booklet are not completely accurate, in that they do not contain all of the technical qualifications and exceptions. We think the challenged statements in the handbook were substantially correct, and certainly involved no prejudicial error. For cases dealing with a similar contention, see People v. Lopez, 197 P.2d 757 (Cal.); People v. Izzo, 151 N.E.2d 329, 334 (Ill.); United States v. Gordon, 253 F.2d 177, 184 (C.A., 7th Cir.); Horton v. United States, 256 F.2d 138, 143 (C.A., 6th Cir.); United States v. Allied Stevedoring Corporation, 258 F.2d 104, 107 C.A., 2nd Cir.); 27 Fordham L.Rev. 618; 47 Geo. L.J. 403. Judgment affirmed, with costs.

983 F.2d 1052 Russell (Thomas W.)v.Hook (James), Hook & Hook NO. 92-3120 United States Court of Appeals,Third Circuit. Dec 17, 1992 1 Appeal From: W.D.Pa. 2 AFFIRMED.

Citation Nr: 1829326 Decision Date: 05/24/18 Archive Date: 06/12/18 DOCKET NO. 16-48 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected left foot hammer toe with heel spur and weak foot. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance prior to August 21, 2017. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran served on active duty from October 1955 to January 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2014 and March 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas and Huntington, West Virginia. In July 2017, the Board remanded the case for additional development and it now returns for further appellate review. In March 2018, the Agency of Original Jurisdiction (AOJ) increased the disability rating for left foot hammer toe with heel spur and weak foot toe to 10 percent, effective February 12, 2013, and granted entitlement to SMC based on the need for aid and attendance from August 21, 2017. As the AOJ did not assign the maximum disability rating possible for the entire period on appeal, the appeal remains before the Board and is recharacterized above. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C. F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Prior to the promulgation of the Board's decision on appeal, the Veteran withdrew his appeal as to the issues of entitlement to an initial rating in excess of 10 percent for left foot hammer toe with heel spur and weak foot and entitlement to special monthly compensation based on the need for regular aid and attendance prior to August 21, 2017. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent for left foot hammer toe with heel spur and weak foot have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for the withdrawal of the appeal with respect to the issue of entitlement to entitlement to special monthly compensation based on the need for regular aid and attendance prior to August 21, 2017 have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Generally the Board's jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. An appeal consists of a timely filed notice of disagreement (NOD) in writing, and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 U.S.C.A. § 7105, 38 C.F.R. § 21.200. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). In the present case, according to correspondence received in March 2018, the Veteran indicated that he was withdrawing any issues contained in the recent Board remand order. Accordingly, there no longer remains any allegation of fact or law for appellate consideration regarding those claims and, consequently, the Board does not have jurisdiction to review the claims. They are, therefore, dismissed. ORDER The appeal as to the issue of entitlement to an initial rating in excess of 10 percent for left foot hammer toe with heel spur and weak foot is dismissed. The appeal as to the issue of entitlement to special monthly compensation based on the need for regular aid and attendance prior to August 2017 is dismissed. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

9 So.3d 577 (2007) JASON PICKETT v. STATE. No. CR-05-1638. Court of Criminal Appeals of Alabama. April 20, 2007. Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed.

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538 U.S. 1012 CORE COMMUNICATIONS, INC.v.FEDERAL COMMUNICATIONS COMMISSION ET AL. No. 02-980. Supreme Court of United States. May 5, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 2 C. A. D. C. Cir. Certiorari denied. Reported below: 288 F. 3d 429.

199 Cal.App.3d 945 (1988) 245 Cal. Rptr. 258 RICHARD CONTRERAS et al., Plaintiffs and Respondents, v. BLUE CROSS OF CALIFORNIA et al., Defendants and Appellants. Docket No. B012211. Court of Appeals of California, Second District, Division Five. March 23, 1988. *947 COUNSEL Paul, Hastings, Janofsky & Walker, Dennis H. Vaughn, Wesley A. Hubanks and Paul W. Cane, Jr., for Defendants and Appellants. Geffner & Satzman and Helena S. Wise for Plaintiffs and Respondents. OPINION ASHBY, Acting P.J. Numerous plaintiffs brought this action, basically for wrongful discharge, against defendants Blue Cross of California and others. Due to a procedural quirk, this matter is before us on appeal even though the practical effect of the challenged order was to permit plaintiffs to file a first amended complaint, which is not ordinarily an appealable order, and even though the first amended complaint has apparently been superseded by a subsequent amended complaint. The appeal arose this way: A demurrer to the original complaint was sustained with leave to amend. Plaintiffs failed to amend within the time permitted by leave to amend, and defendants moved to dismiss the action pursuant to former Code of Civil Procedure section 581, subdivision (c). Plaintiffs opposed the motion to dismiss and promptly submitted the first amended complaint, urging that extenuating circumstances had prevented filing it in time, but the trial court dismissed the action first, telling plaintiffs that their remedy was under Code of Civil Procedure section 473 to set *948 aside the dismissal. The granting of the motion to dismiss was treated by the parties as an effective order of dismissal. Plaintiffs promptly moved pursuant to section 473 to set aside the order of dismissal, and the trial court granted plaintiffs' motion. Thus, although the practical effect of this ruling was simply to permit plaintiffs to file a first amended complaint, this was an appealable order because it set aside a prior order of dismissal. (Code Civ. Proc., §§ 473, 904.1, subd. (b); Sunru Chang v. Carson Estate Co. (1959) 168 Cal. App.2d 110, 112 [335 P.2d 697].) Defendant Blue Cross (appellant) filed notice of appeal from the order vacating the prior order of dismissal. (1) This unnecessary pretrial appeal would have been avoided if the trial court had simply denied appellant's motion to dismiss. Confusion arose when the court purported to grant the motion to dismiss subject to vacating such order pursuant to Code of Civil Procedure section 473. Contrary to the trial court's apparent reasoning, the court had discretion to grant or deny appellant's motion to dismiss. (Harding v. Collazo (1986) 177 Cal. App.3d 1044, 1054 [223 Cal. Rptr. 329]; Sousa v. Capital Co. (1963) 220 Cal. App.2d 744, 754 [34 Cal. Rptr. 71]; former Code Civ. Proc., § 581, subd. (c), Stats. 1984, ch. 1705, § 2, pp. 6175-6176.) The trial court's minute order cited Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781 [176 Cal. Rptr. 104, 632 P.2d 217], but we find nothing in that case which compelled the trial court to dismiss the action initially. The holding of Wells was that a plaintiff has no absolute right to voluntarily dismiss his own action in order to avoid a dismissal on a motion by defendant under Code of Civil Procedure section 581, subdivision (c) [then subdivision (3)]. The majority opinion recognized the court's power to extend the plaintiff's deadline for amending by "appropriate order." (Id. at p. 789.) The dissenting opinion, which may have been the source for the trial court's confusion, stated, "The failure to amend does not ipso facto mean the plaintiff has opted to stand on the complaint. There may be an acceptable reason for not amending within the time limits or the plaintiff may intend to move for relief under section 473." (Id. at p. 790.) This statement does not mean the court must dismiss the action first then vacate the order of dismissal pursuant to Code of Civil Procedure section 473. After all, the first paragraph of section 473 permits the court to allow amendments to the complaint and to extend the time in which to plead. Under all the circumstances we shall treat the appeal as a valid appeal from an order setting aside a prior order of dismissal, but we shall focus only on the narrow issue involved and not upon subsequently filed complaints beyond the scope of this appeal. Appellant's opening brief states that appellant "would not have appealed if this were a garden-variety case under [Code of Civil Procedure] § 473." *949 (2a) Appellant contends that the original complaint contained allegations which rendered it defective, and that the first amended complaint was basically the same but with the offensive allegations improperly omitted. Appellant contends this is one of those cases in which a pleader should not be permitted to withdraw allegations in a prior pleading, and that in such circumstances the trial court abused its discretion by granting relief under Code of Civil Procedure section 473. (Sunru Chang v. Carson Estate Co., supra, 168 Cal. App.2d at pp. 115-116.) This contention is wholly without merit. Plaintiffs' proposed first amended complaint was not a sham pleading designed to untruthfully omit a fatal and incurable defect; it was a proper attempt to amend to state valid causes of action consistent with a complex and developing field of law. Numerous individual plaintiffs and causes of action are involved. Basically, plaintiffs were hired as sales persons for appellant. The 13 causes of action in the first amended complaint allege wrongful discharge, wrongful cancellation of agency agreement, deceit and breach of statutory duty under Labor Code section 970, breach of covenant of good faith and fair dealing, intentional infliction of emotional distress and age discrimination. Plaintiffs allege that appellant broke numerous promises, representations and agreements with them involving such matters as career opportunities, permanent employment, personnel policies for fair termination procedures, sales leads, commissions, sick leave, health insurance, pension benefits, severance pay, chargeback fund, longevity bonuses, vacation leaves, transfer, and expense accounts for work at outlying branch offices, and that in August 1983 appellant abruptly terminated plaintiffs and gave them the option of becoming independent agents for a Blue Cross subsidiary. Appellant seizes upon various statements in the original complaint and especially paragraph 147 of the original complaint, involving the cause of action for age discrimination, which stated that "the actions of BLUE CROSS as more fully described above were unlawfully and intentionally engaged in for the express purpose of depriving plaintiffs of the benefits to which they would be entitled, including but not limited to retirement and pension benefits." Appellant contends this shows that plaintiffs' entire complaint is directed to the deprival of benefits covered by the federal Employee Retirement Income Security Act of 1974, 29 United States Code section 1001 et seq. (ERISA), for which exclusive jurisdiction is vested in the federal courts. (Johnson v. Trans World Airlines, Inc. (1983) 149 Cal. App.3d 518, 521 [196 Cal. Rptr. 896].) According to appellant's theory, once having alleged that appellant acted to deprive plaintiffs of benefits including retirement and pension benefits, plaintiffs may never amend this allegation, and their entire complaint, regardless of subsequent amendment, should be *950 construed as one within the exclusive jurisdiction of the federal courts. There is no merit to this contention. In Sunru Chang v. Carson Estate Co., supra, 168 Cal. App.2d at pages 115-116, relied upon by appellant, the two complaints were virtually identical except for the omission in the later complaint of facts showing that the same matter had been determined in a prior suit and was therefore res judicata. The rule cited by appellant is intended to prevent sham pleadings omitting an incurable defect in the case. (3) However, "[r]ules of pleading are conveniences to promote justice and not to impede or warp it. We do not question the rule that all allegations of fact in a verified complaint, which are subsequently omitted or contradicted, are still binding on the complainant. The rule is valid and useful, but it does not exist in a vacuum and cannot be mechanically applied. It is a good rule to defeat abuses of the privilege to amend and to discourage sham and untruthful pleadings. It is not a rule, however, which is intended to prevent honest complainants from correcting erroneous allegations of generic terms which may have legal implications but which are also loosely used by laymen or to prevent the correction of ambiguous statements of fact." (Macomber v. State of California (1967) 250 Cal. App.2d 391, 399 [58 Cal. Rptr. 393].) (2b) In a case like this, with numerous individual plaintiffs having individual circumstances and with a wide variety of employment promises alleged to have been broken, possible federal preemption under ERISA is not a simple, blatant and incurable defect such as res judicata or delay beyond the statute of limitations. ERISA does not preempt the entire state law of employment relationships. Both Johnson v. Trans World Airlines, Inc., supra, 149 Cal. App.3d at pages 523-530, and the trial court in sustaining the demurrer to plaintiffs' original complaint recognized that valid state causes of action could exist. The order sustaining the demurrer to the original complaint expressly contemplated that plaintiffs be allowed to amend to state causes of action not barred by ERISA. Plaintiffs had the right to amend to clarify their claims in light of the complex and developing law. (Blakey v. Superior Court (1984) 153 Cal. App.3d 101, 107 [200 Cal. Rptr. 52]; Macomber v. State of California, supra, 250 Cal. App.2d at p. 399.) The first amended complaint in this case was extensively reorganized and improved and was not, as in Sunru Chang v. Carson Estate Co., supra, 168 Cal. App.2d at page 116, nearly identical to the original complaint. The first amended complaint was not the type of sham pleading to which the rule of Sunru Chang v. Carson Estate Co., supra, applies. To hold that Sunru Chang required the court to deny plaintiffs' request for relief under Code of Civil Procedure section 473 would result in a windfall for *951 appellant, unrelated to the potential merit of any of the causes of action stated in the first amended complaint. Despite appellant's statement that appellant's argument under ERISA and Sunru Chang v. Carson Estate Co., supra, is what distinguishes this appeal from "a garden-variety case under [Code of Civil Procedure] § 473," appellant also claims that the trial court erred in finding excusable neglect under section 473. The demurrer to the original complaint was sustained on October 12, 1984, with leave to amend in 60 days. Appellant extended plaintiffs' time to January 15, 1985, but moved to dismiss on January 18. Plaintiffs opposed the motion to dismiss and submitted the first amended complaint on January 22. Appellant's claim that plaintiffs' counsel did not make an adequate showing of excusable neglect for the slight additional delay is entirely without merit. Plaintiffs' counsel submitted a detailed declaration which established, among other factors, she was the sole counsel from her firm assigned to this case; 58 individual plaintiffs remained active members of the lawsuit; her law firm broke up in December, resulting in the work of 5 attorneys being redistributed to 3; in December she received an appellate court opinion which required her to prepare a petition for hearing to the Supreme Court; she conferred with 40 of the plaintiffs to prepare answers to interrogatories due on January 15; the issues raised by this case and by the prior demurrer were very complex; on January 5 she fractured her right elbow and wrist, forcing her to wear a sling and substantially impairing her mobility and writing ability; and on January 15 she tried to obtain an extension of time from a court commissioner but he refused to entertain it. Appellant's claim that the trial court could not consider this to be excusable neglect, or that the court should have first allowed appellant to depose plaintiffs' counsel and subpoena her files to impeach her claim of workload, is without any merit. (See generally Elston v. City of Turlock (1985) 38 Cal.3d 227, 233-235 [211 Cal. Rptr. 416, 695 P.2d 713].) Thus the trial court did not err in vacating the order of dismissal. That is the only order before us on this appeal. We do not review subsequent complaints and demurrers which we are informed occurred after the order which we are affirming. *952 The order under Code of Civil Procedure section 473 vacating the prior order of dismissal is affirmed. Boren, J., and Hastings, J.,[*] concurred. NOTES [*] Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

763 N.W.2d 247 (2008) 2009 WI App 21 SANDBERG v. DONAHUE. No. 2007AP2719. Court of Appeals of Wisconsin. December 11, 2008. Unpublished opinion. Affirmed, reversed and remanded.

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 8, 2006 Charles R. Fulbruge III Clerk No. 05-51302 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NICOLAS HERNANDEZ-ARZATE, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:05-CR-611-1 -------------------- Before KING, GARWOOD, and JOLLY, Circuit Judges. PER CURIAM:* Appealing the Judgment in a Criminal Case, Nicolas Hernandez-Arzate raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 

745 F.2d 412 21 ERC 1439, 14 Envtl. L. Rep. 20,744 STATE OF WISCONSIN, Plaintiff-Appellee,andCounty of Marquette, Michigan, Intervening Plaintiff-Appellee,v.Caspar W. WEINBERGER, Individually and as Secretary of theDepartment of Defense, et al., Defendants-Appellants. No. 84-1569. United States Court of Appeals,Seventh Circuit. Argued June 11, 1984.Decided Aug. 20, 1984.*As Corrected Aug. 21, 1984. Anne S. Almy, U.S. Dept. of Justice, Lands Div., Washington, D.C., for defendants-appellants. Shari Eggleson, Asst. Atty. Gen., Bronson C. LaFollette, Atty. Gen., Madison, Wis., Patricia L. Micklow, Marquette County Pros. Atty., Marquette, Mich., for intervening plaintiff-appellee. Before CUMMINGS, Chief Judge, and WOOD and CUDAHY, Circuit Judges. HARLINGTON WOOD, Jr., Circuit Judge. 1 Plaintiff-appellee State of Wisconsin and intervening plaintiff-appellee County of Marquette, Michigan, sued federal appellants seeking the preparation of a supplemental environmental impact statement (SEIS) in connection with Project ELF, an extremely low frequency submarine communications system developed by the Navy, which the Navy undertook to reactivate and expand in 1981.1 Plaintiffs contended that the Navy's original 1977 environmental impact statement prepared at the time the project first originated should have been supplemented because of new information regarding the biological effects of extremely low frequency electromagnetic radiation. After a trial on the merits, the district court agreed with this contention and enjoined the Navy from proceeding with any additional work on Project ELF in Wisconsin or Michigan and from installing receivers in submarines until a supplementary environmental impact statement had been prepared.2 This expedited appeal followed. I. 2 On July 1, 1968, the Navy announced plans to construct an extremely low frequency (ELF) submarine communications test facility within the Chequamegon National Forest near the town of Clam Lake in northern Wisconsin. This test facility, consisting of two 14-mile strings of overhead antennae mounted on utility poles and a transmitter situated in a fenced compound, became fully operational in 1969. Between 1969 and 1978, while the Navy operated and tested the capability of this facility, two comprehensive ELF projects were formulated. The first, called Project Sanguine, was to include a 6,300 square mile grid of buried antenna cable and was to be operational by 1976. Project Sanguine, however, never went into full-scale development. The second system, Project Seafarer, which was proposed in 1977, initially was to consist of two test facilities: the one near Clam Lake, and the other, with a transmitter station and 130 miles of buried antenna cables, to be situated in the upper peninsula of Michigan. In its final, fully-developed form, the system was to have five surface transmitting stations and 2,400 miles of buried antenna cables extending over a 4,000 square-mile area. 3 In 1978, after initially supporting the allocation of $20.1 million for Project Seafarer research and development, President Carter decided to postpone Project Seafarer indefinitely. His decision not to proceed with the project was based on "reservations regarding this large 2400-mile antenna network, primarily because of public opposition and the inevitable inconvenience to private landowners as well as its excessive costs." President Carter, however, did instruct the Secretary of Defense to study the possibility of putting together a smaller, less intrusive, and less costly ELF system. Following the President's lead, Congress undertook no additional funding of Project ELF, as it came to be known, and the project entered a dormant phase. 4 In 1981, however, Congress, in its Department of Defense Authorization Act, 94 Stat. 1077, 1081, ordered the Navy to resume research and development for an ELF communications system and directed the President to "submit to the Congress a plan for deployment" of such a system in 1981. In April, 1981, President Reagan advised the Secretary of Defense of his intention to review and decide whether to reactivate Project ELF. The Secretary submitted an ELF proposal to the President on August 13, 1981. On October 8, 1981, President Reagan approved the recommended proposal and advised Congress of his intent to proceed. He ordered that the ELF project should 5 include upgrading of the existing ELF in Wisconsin, a new transmitter facility of comparable size with 56 miles of antenna[e] in Michigan, and ELF receivers for the submarines. In order to make critical improvements in connectivity to the submarine forces, the Navy should support this decision in a way that will provide an initial operating capability in fiscal year 1985. 6 As a result of this order, the ELF facility in Wisconsin was reactivated in December, 1981, and resumed broadcasting to submarines, which continues to date. 7 For each of the pre-1981 ELF proposals, the Navy provided documentation of the environmental effects of each project by preparing an environmental impact statement (EIS) in accordance with the National Environmental Policy Act of 1969. Of specific concern to the public were the possible effects of continuously exposing humans, animals, and plants to extremely low frequency electromagnetic radiation. This concern was acknowledged and addressed by the 1972 EIS and 1975 supplemental EIS prepared in connection with Project Sanguine, and the 1977 EIS prepared in connection with Project Seafarer. The 1977 EIS included a 1977 National Academy of Sciences report commissioned by the Navy studying the biological and human health effects of extremely low frequency electromagnetic radiation. This report summarized the state of knowledge concerning these effects and concluded: "On the basis of the evidence available, the Navy believes no adverse effects on human health or performance will be associated with long-term Seafarer exposure." 8 When the decision to reactivate Project ELF in 1981 was made, no additional environmental impact assessment was made. In June, 1983, however, the Navy issued, but did not circulate to the public or to interested federal agencies, an environmental impact assessment of the upgrading of the Wisconsin facility. In that assessment, the Navy observed that the electromagnetic field intensities produced by the ELF system would not increase by upgrading the Wisconsin facility to full operation. This assessment did not reevaluate the conclusions of the 1977 EIS and National Academy of Sciences report that ELF systems would produce no adverse biological effects. 9 In contrast to the prior proposals, Project Sanguine and Project Seafarer, the present ELF proposal is much more modest. The modernization of the Wisconsin facility will not substantially alter the nature of its operations as it has existed since its original implementation in 1969. The proposed Michigan facility will include 56 miles of antennae on utility poles in an F shape and will operate similarly to the Wisconsin facility. The facilities in Wisconsin and Michigan can transmit independently, but if operated synchronously can reach areas not otherwise attainable independently. II. 10 The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Secs. 4321-47, articulates "a national policy [to] encourage productive and enjoyable harmony between man and his environment." 42 U.S.C. Sec. 4321. Although NEPA establishes "significant substantive goals for the Nation," Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978), the Act does not attempt to dictate the result of any particular decision; instead, the weighing of the substantive environmental goals is to be undertaken by the executive agencies involved, and the judicially reviewable duties imposed by the Act are "essentially procedural." Id. The procedural approach to the implementation of substantive NEPA policy is accomplished by the Act's requirement that agencies prepare a detailed statement concerning environmental consequences--known as an environmental impact statement (EIS)--in connection with "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment."3 42 U.S.C. Sec. 4332(2)(C). The EIS thus ensures adequate consideration of environmental consequences by alerting decision-makers to the nature of those consequences with regard to a particular action. See Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1979). In addition, the EIS acts to fully inform the public about agency decisions affecting the environment and facilitates public input into the decision-making process. See Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 143, 102 S.Ct. 197, 201, 70 L.Ed.2d 298 (1981). Finally, the EIS serves as a record for substantive review of challenges for noncompliance with NEPA. See Appalachian Power Co. v. EPA, 477 F.2d 495, 507 (4th Cir.1973). 11 The preparation of an EIS as a prerequisite to the implementation of a major government project has become commonplace. Although the Supreme Court has emphasized that an initial EIS should be finished at a fixed time, Vermont Yankee, 435 U.S. at 534, 555, 98 S.Ct. at 1207, 1217, on occasion, an original EIS may become inadequate when during the life cycle of a project its scope changes in any substantial way or if new circumstances arise or new information becomes available about previously unsuspected environmental impacts. Recognizing that these situations may sometimes occur, the Council on Environmental Quality (CEQ)4 has set standards determining when an agency must supplement its EIS. Under CEQ regulations, agencies are required to supplement an original EIS if: "(i) [t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. Sec. 1502.9(c)(1)(i) & (ii) (1984). 12 The determination as to whether a SEIS is required is left to the discretion of the agency, just as the decision whether to file an initial EIS is also committed to the agency's discretion. However, because the CEQ regulations "do not in themselves provide a suitable standard for reviewing an agency's decision not to supplement an EIS," Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1024 (9th Cir.1980) (per curiam), courts have applied the same standard used to review an agency's determination that an EIS is not required in the first place for a particular agency action. See id.; Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083, 1087 (8th Cir.1979). We will do the same. 13 In this circuit, the standard of review of an agency's decision not to prepare an EIS is taken from section 706(2)(A) of the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A), which provides that a reviewing court must set aside an agency decision if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."5 See Simons v. Gorsuch, 715 F.2d 1248, 1251 (7th Cir.1983); City of West Chicago v. United States Nuclear Regulatory Commission, 701 F.2d 632, 651 (7th Cir.1983); Assure Competitive Transportation, Inc. v. United States, 635 F.2d 1301, 1308 (7th Cir.1980); Nucleus of Chicago Homeowners Association v. Lynn, 524 F.2d 225, 229 (7th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976). Accord Hanly v. Kleindienst, 471 F.2d 823, 830 (2d Cir.1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973). See also Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976). Thus, we must consider whether the Navy has acted arbitrarily, or capriciously, or abused its discretion in deciding not to file a supplement to the 1977 EIS in light of the new information put forward by plaintiffs. We will uphold a decision under the arbitrary and capricious standard if the decision was based on a consideration of relevant factors, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971), and made on a rational basis, see Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 290, 95 S.Ct. 438, 441, 444, 42 L.Ed.2d 447 (1974). III. 14 The specific mandate imposed by the CEQ regulations requires that the agency prepare a SEIS when "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. Sec. 1502.9(c)(1)(ii). The regulation itself does not define the term "significant." Apparently the Council on Environmental Quality was willing to rely on the good faith assessments of the various federal agencies and allow them to determine what information would be sufficiently serious to require the preparation of a full-scale supplement to the original EIS. Because that assessment must be reviewed by us, however, and in the absence of any administrative interpretation of the term, we must attempt to give the term "significant" some more precise content as it is used in the present context. Cf. Hanly v. Kleindienst, 471 F.2d 823, 830-31 (2d Cir.1972) (giving content to the term "significantly" in the context of whether a major federal action will "significantly" affect the quality of the human environment so as to require the preparation of an initial EIS). 15 An important difference between an agency's decision whether to file an initial EIS and its decision whether to supplement an EIS is that the decision to supplement is made in light of an already existing, in-depth review of the likely environmental consequences of the proposed action. Thus, it seems clear that the principal factor an agency should consider in exercising its discretion whether to supplement an existing EIS because of new information is the extent to which the new information presents a picture of the likely environmental consequences associated with the proposed action not envisioned by the original EIS. As one court has stated, "[t]here is no benefit in taking another 'hard look' at an action if that view is taken from the same vantage point and overlooks the same environmental panorama." National Indian Youth Council v. Andrus, 501 F.Supp. 649, 661 (D.N.M.1980), aff'd, 664 F.2d 220 (10th Cir.1981). The issue is whether the subsequent information raises new concerns of sufficient gravity such that another, formal in-depth look at the environmental consequences of the proposed action is necessary. The supplementation process is extensive and an agency's determination as to when one is or is not needed is entitled to some deference. We hold, therefore, that an agency cannot have acted arbitrarily or capriciously in deciding not to file a SEIS unless the new information provides a seriously different picture of the environmental landscape such that another hard look is necessary. 16 Normally, the plaintiffs may be expected to bring a NEPA challenge under the regulations when a particular item of new information, although specifically considered by the agency, was thought by the agency to be of insufficient significance to require the filing of a SEIS. See, e.g., Massachussets v. Watt, 716 F.2d 946 (1st Cir.1983) (agency's 97% reduction in its estimate for quantity of offshore oil was a sufficiently significant new circumstance such that agency was required to issue an EIS supplement before awarding oil lease); California v. Watt, 683 F.2d 1253 (9th Cir.1982), rev'd on other grounds sub nom. Secretary of the Interior v. California, --- U.S. ----, 104 S.Ct. 656, 77 L.Ed.2d 295 (1984) (doubling of oil recovery estimate did not require filing of supplementary EIS when there was no reason to believe that environmental harms could increase more than proportionally). Such a challenge to a specific decision not to supplement is to be reviewed in accordance with the Supreme Court's admonition in Vermont Yankee that "the role of a court in reviewing the sufficiency of an agency's consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review." 435 U.S. at 555, 98 S.Ct. at 1217. Because of the general ongoing duties imposed by the regulation, however, there may be situations in which it is not alleged that a particular item of new information was specifically rejected by the agency, but that an accumulation of new information was ignored by the agency in whole or in part, such that the failure to act on it was an abuse of the agency's discretion in light of the alleged significance of the information.6 Even this kind of challenge, however, must be framed in terms of information available during a specific time period, with recognition of the fact that an agency cannot have acted arbitrarily unless it has had a reasonable time to consider the alleged new information. Open-ended challenges framed in general terms cannot suffice. 17 The Navy contends that consideration of the new material must be limited to that information available in 1981 when the Navy made the decision to reactivate and modernize the ELF system and determined that a SEIS was not necessary. The Navy argues that it was therefore improper for the district court to evaluate the SEIS issue in terms of the information available as of the date of the combined preliminary injunction and merits hearing held in the fall of 1983. Plaintiffs respond that they alleged the Navy had violated NEPA not only by failing to file a SEIS in connection with its decision to modify the project and not to file a SEIS in 1981, but by failing to evaluate the accumulation of information available subsequently that allegedly rose to a level of significance sufficient to trigger the duty to supplement the 1977 EIS. 18 To resolve this issue, we examine the complaint.7 Our reading of the complaint finds that it is directed at the Navy's decision in 1981 to substantially upgrade and expand the existing ELF facilities without including a SEIS in the proposal, and also at the Navy's failure to prepare a SEIS in light of new information then available allegedly relevant to environmental concerns. There is nothing alleged to identify any other time. The complaint does not and could not legitimately complain about new information coming to light right up until the time the complaint was filed, and certainly not up until the time of trial, since the Navy could not have acted arbitrarily or capriciously without being given time for appropriate consideration of that information. The references in the complaint to the 1981 Navy decision definitely identify the Navy's particular alleged failure and when it occurred. If it were otherwise, the issue regarding significant new information raised by an open-ended complaint would be premature and make preparation for trial difficult at best. Although the complaint in this case does not run afoul of these normal definite pleading and litigation requirements, by reason thereof, however, the relevant evidence relating to the alleged new information issue must be limited to that available when the 1981 decision to upgrade and expand the facilities without a SEIS was made.8 19 It appears that the trial court relied on fourteen post-1977 items of information raising questions about the human health effects of low frequency fields. Over half of these, however, were not available until after the Navy decisions had been made and should not have been admitted. This later information therefore could not possibly form the basis for finding the Navy in default of its NEPA duties at the time of its 1981 decision. A large part of the other material presented by plaintiffs had already been considered by the Navy in 1977, or at least prior to the modernization proposal. Plaintiffs do not attack the original EIS, which was only four years old. Evaluation of the environmental impact of the project therefore has a firm beginning basis. Our inquiry must be limited to what may have developed after that up until the time of the Navy decision in 1981. 20 We do not believe that NEPA requires the courts to keep watch over an agency's shoulder as a supervisor and direct the agency as to if, when, and how it should peliminarily review any new information. Our responsibility is limited to determining whether or not the new information was so significant that for the agency not to act on it was irresponsible, arbitrary, or capricious. It is not enough that the information may be worthy of further inquiry or may be considered important research. Our task is the limited one of determining whether or not the new information presents a seriously different picture of the likely environmental consequences of the proposed action not adequately envisioned by the original EIS, such that the Navy's failure to act on it was arbitrary or capricious. If it was, then the court may order a SEIS. To make this determination, however, we do not have to resolve the scientific issues on the merits. The district court stated that: 21 The merit of the new information [available since 1977] has been attested to by the expert witnesses. At trial, expert witnesses for both plaintiffs and defendants identified post-1977 research either as new information worth further inquiry or as important research. 22 578 F.Supp. at 1362. The district court went on to conclude that "the 1977 environmental impact statement is no longer adequate as a source of information necessary to a rational decision on the relative risks and benefits of Project ELF, because it includes none of the scientific work done since 1977 or any evaluation of that work," id., and that "[t]he scientific information on biological effects generated since 1977 is significant enough to require careful review by the Navy," id. 23 We disagree with this open-ended approach applying a different standard and hence the conclusions stemming from it. An original EIS is no longer "adequate as a source of information necessary to a rational decision on the relative risks and benefits" of a proposed action not because it fails to "include" new information or any "evaluation" of it, but because the new information presents a seriously different picture of the likely environmental harms stemming from the proposed action. To say that new information is significant enough to require "careful review" is not to say that it is so significant that the formal procedures associated with the filing of a SEIS must begin. The latter, not the former, is the court's responsibility to assess under the NEPA regulations. 24 The district court itself found that the Navy's previous, relatively recent conclusion that long-term exposure to the electromagnetic radiation emanating from ELF would not produce adverse biological effects was not invalidated by any of the new information received into evidence. That new information was characterized by the district court as "equivocal." We believe that this is something less than a finding that the new information was so significant that the Navy's failure to respond in a reasonable time with a SEIS was arbitrary or capricious. The district court also found no evidence that ELF would have any immediate adverse environmental impact. Nonetheless, since a SEIS was ordered and some language in the opinion supports the view that the new information was sufficiently significant to justify a SEIS, we will briefly consider the evidence on that basis, including that which we do not regard to be relevant or admissible under the time frame alleged in the complaint.9 Of course, it is not necessary for our purposes to consider in detail the merits of the scientific allegations and the alleged shortcoming of each piece of information and reach our own scientific decision about the project. That is not our function. We are only to decide whether the evidence reveals that the new information presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned, such that the Navy acted arbitrarily or capriciously in deciding not to file a SEIS.10 25 The previous picture of the state of knowledge concerning the biological effects of extremely low frequency electromagnetic radiation was summarized in the 1977 National Academy of Sciences report (filed in connection with the 1977 EIS) as follows: 26 Field and laboratory research has not revealed to date convincing evidence of impacts on the environment or populations of plants or animals either at planned Seafarer surface electromagnetic intensities, or at lesser levels which would ordinarily be encountered by particular species; 27 Experimental evidence to date indicates normal offspring of plants, animals, and humans are produced in ELF fields comparable to and even larger than Seafarer fields. No study has shown any teratogenic effects (embryological defects) produced by ELF fields; 28 There have been few identified tangible ELF effects, and no substantial evidence to date that human exposure to electric and magnetic fields characteristic of Seafarer would affect human health or performance; 29 No generally-accepted adverse human or ecological effects due to such fields have been observed in homes, workplaces, communities or in the immediate vicinity of electric power transmission corridors .... 30 The new information that plaintiffs contend is significant was offered through the testimony of three scientists, Drs. Wertheimer, Moulder, and Becker. The Navy supplied two experts of its own, Drs. Straub and Justesen, to analyze this evidence.11 A brief review of the information and the comments of the experts convinces us that the information falls short of that threshold of "significance" at which the duty to prepare a SEIS is triggered. Among the most important new information is that contained in the Electrical Power Research Institute studies at the Batelle Laboratories; frequency and power intensity window research conducted by Blackman and Adey, Delgado, and persons at UCLA; Goodman's slime mold research; and several epidemiological studies. 31 The Batelle Laboratories studies, conducted in 1978, 1979, and 1982, involved subjecting minipigs (Hanford miniature swine) to electromagnetic radiation at 60 Hz. Although some of the studies showed that multigenerational exposure to such fields resulted in effects on fertility, birth defects, bone fracture repair, and behavior, most of the studies produced negative results. In addition, Justesen and Straub pointed out that there had been errors in the research and that it was being redone. While these two shared Moulder's praise for the Batelle research, they considered the results irrelevant to Project ELF because the voltages used to carry out the Batelle tests were far outside the intensities of the fields anticipated at the ELF facilities. 32 In light of these limitations, we do not believe that they present a picture seriously different from that envisioned by the 1977 National Academy of Sciences report, which found that "[e]xperimental evidence to date indicates normal offspring of plants, animals, and humans are produced in ELF fields comparable to and even larger than Seafarer fields." Although the studies do point to the possibility of some teratogenic effects at certain intensities, these intensities are far removed from those associated with Project ELF and therefore do not alter the view of its likely environmental impact. 33 Similarly, we do not believe the research conducted by Delgado, those at UCLA, and Adey and Blackman focusing on points or "windows" on the spectrum of electromagnetic frequencies or power intensities at which biological effects of low frequency electromagnetic radiation may occur have seriously changed the picture in this area existing in 1977. Delgado's 1982 studies on the effect of extremely low frequency electromagnetic fields on the embryological development of chickens, according to Straub and Justesen, has methodological problems, involved pulsed rather than sinusoidal fields, and used different field intensities than ELF, thus making it irrelevant to the character of the ELF fields. In addition, while studies funded by the Navy in 1980 at UCLA on the effect of extremely low frequency electromagnetic radiation on monkey behavior suggested the existence of power intensity and frequency windows, neither these studies nor the more intensive work performed in this area by Blackman and Adey rise to the requisite level of significance. Blackman's studies explored the effects of extremely low frequency electromagnetic radiation on the permeability of chicken brain cells (the studies were published in 1979, 1981, and two in 1982). Adey published an article in 1980 discussing the existence of windows found by studying electromagnetic effects on tissue interactions. Although the experts testified at trial that this work was important, Justesen pointed out that Adey had done work on the phenomenon of windows before 1977, some of which was mentioned in the 1977 National Academy of Sciences report. Thus, while the later studies confirm the phenomenon of windows and indicate that a frequency window may exist at 75 Hz. (Project ELF is to operate at a range of 72-80 Hz.), they do not present new information that seriously alters the environmental picture. Indications of such windows were present in 1977, and, as noted by Straub, the new work is not directly relevant to the Navy's ELF system because of the differences in electric field intensities. Certainly the Navy was within the range of its permissible discretion in concluding that the information of power and frequency windows since 1977 was not sufficiently significant to require the preparation of a full-blown SEIS. 34 As for the Navy-sponsored slime mold studies conducted by Goodman and others at the University of Wisconsin--Parkside, reports issued in 1979 and 1983 found some alterations in basic cell functions and oxygen consumption in response to extremely low frequency electromagnetic radiation. Again, however, both Justesen and Straub questioned the relevancy of these studies to the human health effects of Project ELF, because the field strengths used in the experiments were so much greater than those at the Navy's facilities. We see nothing in these studies that would make the decision not to file a SEIS arbitrary or capricious. The Navy has continued to review the results of these experiments and continues to fund Goodman's research. 35 Finally, the epidemiological studies conducted by Wertheimer in 1979 and 1982, and several others, such as Nordstrom's in 1983, do not seriously change the environmental picture that existed in 1977. Wertheimer herself testified that her work, in which she examined the possible association between high-current electric power fields and incidences of cancer in children and adults, was merely "exploratory," and she acknowledged that it suffered from several methodological weaknesses. Dr. Straub testified that he did not believe the Wertheimer work presented significant new information with regard to the human health effects of Project ELF and found her results "speculative." Justesen generally concurred in this judgment, and the IIT Research Institute, under contract with the Navy to evaluate published writings of scientific interest in electromagnetic field effects, was highly critical of both Wertheimer's 1979 and 1982 reports. Most of the other epidemiological studies, such as Nordstrom's, tend to be of questionable relevance because they involve high voltage transmissions substantially greater than those used by the ELF system. None of them significantly alters the view reported in the 1977 National Academy of Sciences report that "[t]here have been few identified tangible ELF effects, and no substantial evidence to date that human exposure to electric and magnetic fields characteristic of Seafarer would affect human health or performance." (Emphasis added.) 36 In short, all of the evidence, viewed in whole or in part, as of 1981 and even the inadmissible evidence accumulated up until the date the complaint was filed, cannot be deemed to have been of such significance as to find that the Navy was arbitrary or capricious in not responding with a SEIS. We have touched only representative samples of the evidence, but as a whole it is generally unimpressive and cannot be deemed sufficiently significant. To elevate the significance of plaintiffs' evidence, in whole or in part, relevant or irrelevant, to the required level of significance could only be deemed to be clearly erroneous. 37 The Navy has not been ignoring this area of concern. It has a continuing review process to monitor the relevant information. The Environmental Review Committee was formed to meet monthly to keep up to date with consideration of new environmental information concerning ELF. In addition, the Navy has an ongoing contract with the Illinois Institute of Technology Research, Inc., a nonprofit consulting firm, to constantly review scientific literature of relevance to ELF and for actually monitoring studies at the ELF facility locations. These represent commendable efforts to comply continually with the spirit of NEPA. Nothing more at this time need be requested of the Navy. 38 Our view of the statutory framework and the evidence offered does not, of course, close the matter for all time. As possibly significant new information comes to light at some subsequent time, the duty remains on the Navy to evaluate it and if necessary to produce a SEIS in good faith without regard to any investment in the facility that may have developed in the meantime. The general subject remains one of great scientific interest and no doubt will continue to develop. Our holding is without prejudice to any further court challenge under the statute whenever warranted, but the information must be new, be significant, and be relevant to the peculiarities of ELF. Not every new publication by a so-called expert on the general subject of low frequency electromagnetic radiation, or even a stack of new articles, will necessarily meet that test. Were we to require the Navy formally to reassess its proposed action with a SEIS every time some bit of new information appeared, we would be unjustifiably interfering with the Navy's mission. 39 We hold that there was no violation of NEPA by the Navy. That being so, the injunction must necessarily be vacated, as we have already done by order, without further consideration. Nevertheless, we proceed to consider the merits of the injunction separately since this panel, although not in unanimous agreement about the underlying NEPA violation, is in unanimous agreement that the injunction was unwarranted. IV. 40 The panel is in agreement that even if there had been a NEPA violation, the district court abused its discretion in not undertaking a balancing of the relative harms to the parties before entering the injunction prohibiting the Navy from continuing with Project ELF until a SEIS was filed. The district court, in denying the Navy's motion for reconsideration of the injunction, concluded that no balancing was to be undertaken because the point of NEPA is to assure that federal agencies assess the environmental impact of their proposals before deciding to proceed with an action. The district court found this case analogous to TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), the snail darter case, in which the Supreme Court held that the Endangered Species Act mandated injunctive relief despite countervailing equities. Because in the district court's view allowing the ELF proposal to proceed without first reconsidering its impact, except in certain unusual circumstances,12 would frustrate the purposes of the Act, the district court reasoned that there was a presumption that injunctive relief be imposed for a NEPA violation. It ruled that unless the Navy rebutted the presumption by showing that an injunction would not serve the purposes of the Act, the court did not have to undertake a balancing of the relative harms. 41 Although the district court's view is not without some support from TVA v. Hill, we disagree with its conclusions in these particular circumstances. We consider Hill and this case to be distinguishable. There is no presumption mandating an injunction in this type of case. NEPA cannot be construed to elevate automatically its procedural requirements above all other national considerations. Although there is no national defense exception to NEPA, and the Navy does not claim one, the national well-being and security as determined by the Congress and the President demand consideration before an injunction should issue for a NEPA violation. 42 We begin our analysis of the appropriateness of the injunction here with the Supreme Court's pronouncement in Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), that an injunction " 'is not a remedy which issues as of course ....' " Id. at 311, 102 S.Ct. at 1802 (quoting Harrisonville v. W.S. Dickey Clay Manufacturing Co., 289 U.S. 334, 337-38, 53 S.Ct. 602, 603-04, 77 L.Ed. 1208 (1933)). 43 Where plaintiff and defendant present competing claims of injury, the traditional function of equity has been to arrive at a "nice adjustment and reconciliation" between the competing claims, Hecht Co. v. Bowles, [321 U.S. 321, 329, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944) ]. In such cases, the court "balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction." Yakus v. United States, 321 U.S. 414, 440 [64 S.Ct. 660, 675, 88 L.Ed. 834] (1944). "The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it." Hecht Co. v. Bowles, supra, at 329 [64 S.Ct. at 592]. 44 In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. [Citation omitted.] ... The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as a chancellor is not mechanically obligated to grant an injunction for every violation of law. [Citations omitted.] 45 Romero-Barcelo, 456 U.S. at 312-13, 102 S.Ct. at 1803. Although the Court recognized that Congress occasionally may act to foreclose the exercise of the usual discretion possessed by a court of equity, such occasions will be rare. The Court explained its decision in TVA v. Hill by pointing to the content of the particular statute involved there and the particular facts presented. In Hill, the competing interests--the proposed dam and the snail darter habitat--were clearly defined. The actual balancing of these interests, however, was already prescribed by the specific terms of the relevant statute. The Endangered Species Act contained an unequivocal ban on the destruction of critical habitats for endangered species. Because the proposed dam in Hill would have eliminated such a critical habitat, refusal to enjoin the construction of the dam would have ignored the explicit provisions of the Act. "Congress, it appeared to us, had chosen the snail darter over the dam. The purpose and language of the statute limited the remedies available to the District Court; only an injunction could vindicate the objectives of the Act." Romero-Barcelo, 456 U.S. at 314, 102 S.Ct. at 1804. 46 We believe, however, that neither the specific terms of NEPA nor the particular interests involved compel the issuance of the prohibitory injunction here. We find nothing in NEPA that explicitly or "by a necessary and inescapable inference, restrict[s] the court's jurisdiction in equity." Id. at 313, 102 S.Ct. at 1803. Although the goal of NEPA is to force agencies to consider the environmental consequences of major federal actions, see Kleppe, 427 U.S. at 410 n. 21, 96 S.Ct. at 2730 n. 21, that goal is not to be achieved at the expense of a total disregard for countervailing public interests. NEPA itself is procedural in nature, see Vermont Yankee, 435 U.S. at 558, 98 S.Ct. at 1219, and the statute recognizes that agencies may decide to subordinate environmental values to other social values with which they sometimes compete. Thus, although the judicial role is to insure that this weighing of competing interests takes place, we must fulfill this role in accordance with a consideration of other social costs, as recognized by the statute itself. That, after all, is the traditional way of applying equitable principles. 47 The recent trend of the majority of courts is to evaluate competing public interests in fashioning permanent injunctive relief for NEPA violations. 48 When a court has found that a party is in violation of NEPA, the remedy should be shaped so as to fulfill the objectives of the statute as closely as possible, consistent with the broader public interest.... The court should tailor its relief to fit each particular case, balancing the environmental concerns of NEPA against the larger interests of society that might be adversely affected by an overly broad injunction. 49 Environmental Defense Fund v. Marsh, 651 F.2d 983, 1005-06 (5th Cir.1981). See also Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission, 606 F.2d 1261, 1272 (D.C.Cir.1979); Alaska v. Andrus, 580 F.2d 465, 485 (D.C.Cir.), vacated in part on other grounds sub nom. Western Oil & Gas Association v. Alaska, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978); Conservation Society of Southern Vermont v. Secretary of Transportation, 508 F.2d 927, 933-34 (2d Cir.1974), vacated on other grounds, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975). We do not mean to suggest, of course, that the objectives of NEPA should not be furthered to the fullest extent possible. We are merely emphasizing that NEPA does not foreclose the application of traditional principles of injunctive relief. Although a majority of this panel has found that no NEPA violation occurred, we believe that even if a violation had occurred, as argued in the dissent, that the application of those traditional equitable principles in light of the evidence would have strongly militated against the imposition of the prohibitory injunction issued by the district court stopping all prepatory work. 50 The only irreparable injury under NEPA if the Navy were permitted to proceed with Project ELF, as perceived by the district court, was that it would later lead to biased decision-making by the Navy. It posited that because NEPA establishes a policy requiring decision-makers to take account of environmental values, that policy will not be fully achieved if decision-makers are predisposed to favor a particular outcome because of an agency's investment in the project. Such a predisposition can result once a commitment of resources to a project is undertaken, thus possibly upsetting objective decision-making. See Massachusetts v. Watt, 716 F.2d 946, 952-53 (1st Cir.1983). 51 This concern is valid, and in an appropriate case this kind of possible effect may merit an injunction. The Navy points out, however, that this interest will be only marginally served by the injunction in an ongoing project such as this one. The new commitment to ELF began in 1981, when the project was reactivated, and reaffirmed the already existing commitment. This commitment, largely in terms of research and development dollars, was well established by the time plaintiffs got around to filing their lawsuit in mid-1983. By contrast, the commitment entailed by the remaining construction effort in Wisconsin and Michigan is relatively small, and thus the injunction's service to NEPA in preserving unbiased decision-making would be slight. Even if the Navy subsequently makes the mistake of being influenced by its prior resource commitment, the President and the Congress are not without power to bring the Navy back into line, and so may we if the Navy's actions are arbitrary or capricious. The risk the district court found from resource commitment, the only designated basis for the injunction, is wholly inadequate to enjoin this project. 52 In addition, the Navy argues that no other NEPA purpose would be served by the injunction.13 It notes that it has already adopted the recommendations of the National Academy of Sciences to minimize the electromagnetic fields generated by the project, and has committed itself to monitoring the potential adverse biological effects of such fields and to terminate the project should such effects become manifest. Finally, the Navy observes that whatever benefits might accrue to the public from another opportunity to comment on the content of the SEIS would not stem from the injunction enjoining the construction activities. 53 We find these arguments compelling. In addition, we note that even if we had found a NEPA violation here, it could not have been characterized as a blatant violation, and the injunction consequently could not have been justified on the ground that it was needed to prevent future violations. The Navy in this project has fully complied with NEPA in the past, and has publicly committed itself to a continuing monitoring of the physical and biological environmental consequences of Project ELF. The Navy has acted responsibly and not in an arbitrary or capricious manner. 54 More important, however, is the district court's failure to balance the weight of the alleged NEPA violation against the harm the injunction would cause the Navy and to this country's defense. The Navy has emphasized that an ELF submarine communications system is of the highest priority for national defense. The system will allow our strategic submarine fleet to operate with a greatly reduced chance for exposure and minimize the possibility of detection, thus strengthening the most survivable element of this nation's nuclear deterrent. President Reagan's directive to deploy Project ELF ordered that it achieve initial operating capability in fiscal year 1985. The Secretary of the Navy also stated in an affidavit that the latest evaluation of Project ELF is that it is essential to the national defense and that any delay in its construction is contrary to national defense interests. We have no basis to ignore those executive representations. At oral argument, counsel for the Navy informed us that preparation of a SEIS, which had already begun, could not be completed before April of 1985. Therefore, the delay occasioned by the issuance of an injunction could bring about serious consequences for our national defense. The Soviet Union allegedly is already advanced in this low frequency submarine communications technique. The district court gave no consideration to these serious circumstances. 55 An order requiring the preparation of a SEIS, of course, may always be appropriate to vindicate the purposes of NEPA should a violation of the CEQ regulations occur. Whether an injunction should also be entered preventing a project from continuing, however, is plainly an additional issue. We disagree with the district court that NEPA presumes that such injunctions should issue. That presumption is unrealistic in these circumstances. We conclude, therefore, that even if there had been a NEPA violation, the district court abused its discretion by failing to consider the degree to which the NEPA interest would, in fact, be served by an injunction, the efficacy of other forms of relief, and the harm to national defense interests that would result. Based on the record already before us, any traditional equitable weighing of interest could only lead to a denial of the issuance of the injunction that we have now vacated. 56 Even though we recognize and commend the conscientious and thoughtful consideration given by the district court to the unique and important problems in this case, we disagree with its view of what NEPA requires and the significance of the evidence in this case. No SEIS need be prepared at this time, and the injunction is vacated pursuant to our previous order.14 57 REVERSED. 58 CUDAHY, Circuit Judge, concurring in part and dissenting in part. 59 In my view, the district court correctly determined that the Navy abused its discretion and violated NEPA by failing to monitor new information concerning the potential environmental effects of Project ELF, and the court properly ordered the Navy to prepare a supplemental EIS. However, I agree that the district court erred when it refused to consider the countervailing equities in deciding to enjoin work on Project ELF. In light of those equities, an injunction is not warranted in this case; I therefore concur in the portion of the judgment reversing the injunction. THE NEPA VIOLATION 60 In concluding that the Navy has not violated NEPA, the majority has overstepped the bounds of appellate review in its treatment of the evidence and undermined the role of NEPA when agencies undertake long-term projects in the face of uncertain environmental effects. 61 The majority's treatment of the evidence in the case is both extraordinary and misleading. It is extraordinary because the majority engages in virtually de novo review of sharply disputed expert testimony. Judge Crabb's analysis of the factual evidence on the effects of extremely low frequency radiation was thorough and thoughtful, and she is obviously much more familiar with that information than we. See Wisconsin v. Weinberger, 578 F.Supp. 1327, 1341-55, 1361-63 (W.D.Wis.1984). Judge Crabb reviewed an extensive administrative record and heard testimony concerning controversial scientific research, and her conclusions from that evidence are precise and sound.1 Yet the majority's discussion of the evidence in the case treats as authoritative any statements made by the Navy's experts, Drs. Justesen and Straub. With all due respect, we are simply not in a position to reweigh that evidence and decide whose experts were more credible.2 62 The majority's deprecating treatment of the plaintiffs' evidence is misleading because it creates the appearance of disagreement where there is none and diverts attention from the central dispute. The majority and Judge Crabb and I all agree that the new scientific information alone, in the absence of other factors, is not so significant as to require a supplemental EIS. The disagreement concerns the legal relevance of the other factors Judge Crabb relied on to order the supplemental EIS. 63 All parties agree that the Navy has a binding duty to supplement its original environmental impact statement when there is "significant ... new information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. Sec. 1502.9(c)(ii) (1983).3 The majority interprets this language to mean that the new information must present a "seriously different picture of the environmental landscape such that another hard look is necessary." Based on its own review of the evidence, the majority concludes that the "seriously different picture" standard has not been met. Most important, the majority argues that the Navy could have violated NEPA only if it failed to issue a supplemental EIS in the face of new information meeting the majority's new "seriously different picture" standard. Because it is clear that the new information alone does not satisfy that standard, the majority finds no violation of NEPA. The majority's approach glides over the central problem in the case and unduly restricts NEPA in a situation where the government acts in the face of uncertain potential environmental consequences. It also conflicts with the Ninth Circuit's decision in Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir.1980). 64 The central problem here concerns the NEPA obligations of agencies which choose to act in the face of uncertain or incorrect environmental information. In my view, Judge Crabb properly concluded that the Navy violated NEPA by failing to undertake "a thorough and comprehensive review" of the information generated since 1977 on the biological effects of electromagnetic radiation. 578 F.Supp. at 1364. The regulations and statute offer little direct guidance concerning new information and ongoing projects, and Judge Crabb correctly chose to follow a line of analysis first developed by the Ninth Circuit in Warm Springs Dam, supra. There the court said that under 40 C.F.R. Sec. 1502.9(c), the same regulation at issue here: 65 When new information comes to light the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing procedures. Reasonableness depends on such factors as the environmental significance of the new information, the probable accuracy of the information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data. 66 621 F.2d at 1024. In short, the agency has a duty under NEPA to continue to monitor relevant new environmental information, and it must act reasonably to gather and evaluate that information. A decision not to undertake a supplemental EIS must be rationally based on a careful review of the new information. 67 Judge Crabb's analysis of the new information here followed the Ninth Circuit's discussion in Warm Springs Dam. Although Judge Crabb expressly declined to conclude that the new information is so significant that the Navy would have been required in the first instance to file a supplemental EIS in 1981, she concluded that the new information is "significant enough to require careful review by the Navy." 578 F.Supp. at 1362. The research results do not prove that exposure to extremely low frequency radiation will cause adverse biological effects, but the new results do not merely reconfirm the Navy's 1977 judgment that any environmental effects would be negligible. Id. Although the research results remain "equivocal," the new information casts significant doubts on the Navy's original assumption that Project ELF will not adversely affect life around it. Judge Crabb concluded that in light of the new information, "the Navy must undertake a considered review of all that is known to date and evaluate the risks and benefits before proceeding with Project ELF." 578 F.Supp. at 1363. 68 Judge Crabb's conclusions concerning the new evidence are quite similar to the Ninth Circuit's in Warm Springs Dam. There the court held that the new information was "not so definitive as to compel initiation of the formal supplementation process," but that it "raised sufficient environmental concerns to require the [agency] to take another hard look at the issues." 621 F.2d at 1025. In this case, Judge Crabb did not decide that the new information mandated a supplemental EIS in 1981; she held only that the Navy was required to give the new information a careful and reasoned review. 578 F.Supp. at 1362-63. 69 Judge Crabb then turned to the other factors discussed in Warm Springs Dam. She examined the degree of care with which the Navy had considered the new information, and she found that the Navy had not conducted a thorough and comprehensive review of the new scientific information. 578 F.Supp. at 1364. She then noted that the Navy had never explained its decision not to prepare a supplemental EIS. On the basis of the significance of the new information, the Navy's failure to conduct a thorough and comprehensive review of that information and the Navy's failure to explain its decision, Judge Crabb concluded that the Navy had breached its duty under NEPA to monitor new, relevant environmental information during the life of Project ELF. 70 The central issues here are whether NEPA actually imposes the duty that Judge Crabb found had been violated, and, if so, whether a supplemental EIS is the appropriate remedy for that violation. 71 The Navy concedes that it has a continuing duty under NEPA to monitor environmental information concerning its ongoing projects. Brief for the Appellants at 48. That concession is in accord with decisions of the Ninth Circuit, see Warm Springs Dam Task Force v. Gribble, supra, 621 F.2d at 1023-26; California v. Watt, 683 F.2d 1253, 1267 (9th Cir.1982), reversed on other grounds, --- U.S. ----, 104 S.Ct. 656, 78 L.Ed.2d 496 (1983), as well as the First and Second Circuits, see Massachusetts v. Watt, 716 F.2d 946, 948-49 (1st Cir.1983); Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1034-37 (2d Cir.1983). See also Humane Society v. Watt, 551 F.Supp. 1310, 1322 (D.D.C.1982) (following Warm Springs Dam), aff'd mem. 713 F.2d 865 (D.C.Cir.1983). This continuing duty to monitor new environmental information in ongoing projects is not explicit in the language of NEPA or the CEQ regulations, but it is the implicit and necessary corollary to the express duty to supplement an EIS when significant new information arises. See 40 C.F.R. Sec. 1502.9(c)(ii). Indeed, an agency simply cannot fulfill its duty to supplement an EIS without continuing to monitor sources of new and relevant information. 72 In Warm Springs Dam, the Ninth Circuit made it clear that this duty to monitor new information is not limited to information that rises to the level of "significance" requiring a formal supplement to the EIS. The court held that the agency's decision not to supplement the EIS was unreasonable when the agency had not taken a "hard look" at a new study which called into question the agency's prior conclusions. 621 F.2d at 1025.4 NEPA is essentially a procedural statute, and the Ninth Circuit correctly held that an agency abuses its discretion and violates NEPA when its process for deciding whether to supplement the EIS is irrational, i.e., when it does not carefully consider new and relevant information. Even if the new information ultimately turns out not to warrant a full-scale supplemental EIS, an agency still acts arbitrarily and capriciously in violation of NEPA when it ignores relevant new information or quickly sweeps it under the carpet. 73 There is, of course, some difficulty in discerning the precise scope of this implied duty to monitor new environmental information during an ongoing project. However, reasonable guidelines can be derived from the terms and goals of NEPA and the limited role of judicial review under NEPA. The primary purpose of NEPA is to require federal agencies to make rational decisions about the environmental consequences of their actions, and the method for achieving that purpose is to require agencies to include at all significant stages in the decisionmaking process careful and explicit consideration of those consequences. See Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 143, 102 S.Ct. 197, 201, 70 L.Ed.2d 298 (1981). The role of the courts under NEPA is limited to ensuring that agencies observe proper NEPA procedures and give due consideration to the environmental consequences of their decisions. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). 74 In the case of long-term projects where the environmental effects are uncertain, the rational decisionmaking process demanded by NEPA requires that an agency continue to monitor new information which may be relevant to the uncertain environmental effects. See Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 1480 (9th Cir.1983). If new information might significantly alter the balance of costs and benefits, an agency acts irrationally and abuses its discretion if it disregards such information. See Conservation Law Foundation v. Watt, 560 F.Supp. 561, 570-71 (D.Mass.1983), aff'd sub nom. Massachusetts v. Watt, 716 F.2d 946, 949-50 (1st Cir.1983). That is the situation we face here. The 1977 EIS was based on the finding that there was no substantial evidence pointing to harmful biological effects from extremely low frequency radiation. In the meantime, a number of scientific studies of controversial validity have suggested that the radiation may indeed produce harmful biological effects. No court, obviously, can resolve that scientific dispute. But the courts are in a position to insist that the agency give the information rational and serious consideration rather than mere cursory dismissal. 75 That is precisely what Judge Crabb did here. She found that the new information was significant enough to require the Navy to give it careful consideration, and she found that the Navy had not done so. To rebut Judge Crabb's conclusion, the Navy and the majority rely on the Environmental Review Committee, research supported by the Navy and a Navy contract with an outside consulting firm for literature reviews. Such measures are the sort of steps which might fulfill the agency's duty to monitor new information, but upon closer scrutiny of the Navy's actions in this case, Judge Crabb was properly unimpressed. As she discussed in her opinion, the Environmental Review Committee gave only cursory consideration to potential adverse biological effects. 578 F.Supp. at 1363. In addition, the Navy never attempted to use the research it sponsored by pulling the results together in a comprehensive review, and only one of the Navy-sponsored studies was even subjected to the ordinary scrutiny of peer review to examine the validity of the research methods and conclusions. Id. Finally, the outside consulting firm's literature reviews were conducted only sporadically and only after the Navy had decided to go forward without supplementing the EIS. Judge Crabb therefore properly concluded that the Navy's actions did not fulfill its duty to monitor new information and seriously consider significant new information. 76 NEPA does not establish--and the courts cannot prescribe--precise procedures for fulfilling this duty. The standard of review is not an exacting one here. Especially when the new information is a steady trickle of scientific studies of uncertain validity and import, it would be virtually impossible to identify a moment at which the new information becomes "significant" enough to require a supplemental EIS. An agency need only take reasonable steps, in light of the potential for significant new information, to ensure that it will consider relevant new information concerning the environmental impacts of the agency's actions. But under this less than rigorous standard of review, the Navy's actions still fall short, for its efforts to monitor new information were, as Judge Crabb found, merely hollow substitutes for serious consideration of potentially troubling information. 77 After Judge Crabb had found a NEPA violation, she was fully justified in ordering the Navy to undertake a supplemental EIS. In light of the Navy's past failure to consider the new information seriously, it is reasonable to view with some skepticism a new but entirely in-house review of the information. Although the information here might not alone have warranted a formal supplement in the first instance, the Navy's violation justified the remedy of a formal supplement. The supplementation process is subject to public scrutiny and criticism. That scrutiny is the best available means for ensuring that the Navy does indeed give the new information full consideration. 78 For these reasons I dissent from the portion of the judgment reversing the order to supplement the EIS. THE INJUNCTIVE REMEDY 79 I agree with the majority that NEPA does not prohibit a court from undertaking a traditional balancing of the equities in deciding whether to issue an injunction to remedy a NEPA violation. If an injunction would not remedy the violation and promote NEPA's goals, or if an injunction would submerge competing public values of overriding importance, NEPA does not always require that an injunction issue. The district court erred when it concluded that NEPA prohibited it from considering any competing equities.5 80 However, the majority overstates the case. NEPA does indeed presume that an injunction should issue in an ordinary NEPA violation case. See Massachusetts v. Watt, supra, 716 F.2d at 952; Realty Income Trust v. Eckerd, 564 F.2d 447, 456 (D.C.Cir.1977). When NEPA is violated, the fundamental harm is that the decision process has been tainted by the failure to consider fully the relevant environmental facts. The most effective way to remedy the harm is to freeze the situation until the agency reconsiders properly. If that "purification" of the decisionmaking process is to be at all effective, the court must ordinarily prevent the agency in the meantime from committing even more resources to the path previously chosen. As Judge Breyer pointed out in Massachusetts v. Watt, supra: 81 The agency as well as private parties may well have become committed to the previously chosen course of action, and new information--a new EIS--may bring about a new decision, but it is that much less likely to bring about a different one. It is far easier to influence an initial choice than to change a mind already made up. 82 716 F.2d at 952 (emphasis in original). Even an injunction may, as a practical matter, be inadequate when the agency is already far down the road. However, less stringent remedies will, in most cases, not be adequate to correct the NEPA violation. Courts therefore ordinarily issue injunctions in NEPA cases as a matter of course. 83 Nevertheless, when an agency raises powerful countervailing equities, NEPA does not prevent the district court from weighing those factors in deciding whether to issue an injunction. See Massachusetts v. Watt, supra, 716 F.2d at 951-52. Courts must recognize, though, that in doing so there is a clear risk that NEPA's goals may be too easily diluted and subverted. NEPA protects intangible values, and competing equities may often be immediate and tangible, and too difficult to analyze critically. Only in the unusual case should competing equities prevent an injunction. 84 The majority has properly identified most of the factors which make this such an unusual case. First, the degree of additional commitment to the project, in terms of both time and money, during the time needed to prepare a supplemental EIS would be quite marginal here when compared with the whole project. And a substantial portion of the Navy's additional commitments to Project ELF can, in a sense, be laid at the plaintiffs' doorsteps because they did not file this lawsuit until nineteen months after the Navy reactivated the project. Second, the new information here is at best equivocal--it is, as a practical matter, highly unlikely to affect the Navy's decision at this time. The information demands further study, as I have argued above, but it is too thin a reed to support an injunction closing down the project for over a year. Third, the underlying environmental threat here would not result directly from the construction of Project ELF. The only alleged environmental harms are those that might result from the eventual, long-term operation of the ELF system. An injunction here would serve only to delay the project while the Navy considered information which is at best indeterminate and equivocal concerning the possibility of environmental harm years or decades away. 85 The majority relies primarily, however, on the alleged harms the injunction might cause to the national defense. The national defense is without question a very important consideration and in some circumstances it could be decisive. Here, however, I do not believe it is necessary for the majority to accept the defendants' representations on this subject at face value to reach the proper result on this issue. It is quite clear that NEPA does not provide a "national security" exception,6 yet the majority's apparently uncritical acceptance of the Navy's claims might be an invitation in some circumstances for the government to escape NEPA's normally stiff remedies merely by asserting that an injunction might harm national security. After all, courts are simply not equipped to question such assertions. But the national security does not normally require such unquestioning solicitude from the courts in NEPA cases. Where national security concerns are truly paramount, Congress may, in most instances, simply exempt a project from NEPA's requirements. It has done so in the past and will presumably do so again in the future. It is also possible that some future case would require us to weigh national defense needs unequivocally in the equitable balance, and we might then need to base our decision on the government's representations in this respect. However, to the greatest extent possible, we in the federal courts should best leave such judgments to the political branches of government for resolution through political processes, rather than merely accept assertions which we are not in a position to challenge. 86 We need not entangle ourselves in speculation about the urgency of Project ELF; a far stronger basis for reversing the injunction here is that this case involves new information and an ongoing project. Although injunctions should ordinarily issue to remedy NEPA violations, special remedial problems arise with respect to new information affecting ongoing projects. The central purpose of NEPA is to ensure that agencies in fact give due consideration to environmental factors, and, as I have argued above, NEPA also imposes a duty on an agency to monitor and consider new information relevant to an ongoing project. If a project must be shut down pending preparation of a supplemental EIS, agencies will have, as a practical matter, strong incentives to subvert NEPA by merely creating a paper trail and by viewing any new information as too insignificant to require a supplemental EIS. 87 In cases involving new information and ongoing projects, the NEPA ideal of careful environmental planning prior to action is simply not achievable. The achievable goal is that agencies will indeed give their decisions fresh, hard looks in light of new information. The courts should not undermine NEPA by demanding more, by enjoining further work while the agency considers new information. Otherwise, the temptation to soft-pedal relevant information and to comply with NEPA only on paper will simply be too strong. Cf. Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 6 (1st Cir.1981) (requiring a supplemental EIS when agency modifies plan so as to mitigate environmental harm would deter such commendable efforts). 88 For similar reasons, courts should be far less concerned with the form of an agency's review of new information than with the substance. Whether the agency undertakes a full scale supplemental EIS process is less important than whether the agency gives the information any significant consideration. And as noted above, when the new information consists of a steady trickle of new scientific studies, it will often be impossible to determine when the information has become significant enough to require a supplemental EIS. See Friends of the River v. Federal Energy Regulatory Commission, 720 F.2d 93, 109 (D.C.Cir.1983) ("Were we to order the Commission to reassess its decisions every time new forecasts were released, we would risk immobilizing the agency.") The court should permit an agency to be flexible in considering new information relevant to ongoing projects so long as the agency shows that it has in fact given the information a hard look. See Warm Springs Dam, supra, 621 F.2d at 1025-26 (agency not required to formally supplement EIS when subsequent studies showed that agency had thoroughly considered new problem). As Judge Kennedy explained in his concurring opinion in Warm Springs Dam, courts should be satisfied with "other and less cumbersome ways for an agency to evaluate new information ...." 621 F.2d at 1027. Of course, when an agency has failed to consider new information, the supplemental EIS remedy will often be appropriate, as I think it was here. But if we demand more of agencies under threat of injunction in the first instance, we may, as a practical matter, achieve much less. * This case was briefed, argued, and has been considered by this panel on an expedited basis. Oral arguments were heard on June 11, 1984; on June 13, 1984, we issued an order vacating the injunction. 736 F.2d 438. In that order, we stated that it was appropriate to lift the injunction immediately "because we do not perceive any reason or justification for further delaying the implementation of this national defense project authorized by Congress and directed by the President." We also stated that an opinion would follow explaining the reasons for vacating the injunction and ruling on the remaining issues 1 With an ELF communications system, a submarine is able to receive messages from land while maintaining operational speeds at depths at which it is practically immune from detection. Other land-based submarine communications systems require the submarine to surface completely or rise to a point near the surface at slow speeds and drag an antenna to receive messages, thereby jeopardizing the safety of the crew and vessel 2 Wisconsin v. Weinberger, 578 F.Supp. 1327 (W.D.Wis.1984) order amended on reconsideration, 582 F.Supp. 1489 3 The Supreme Court has observed that the statutory language regarding "proposals for ... major Federal action" means that an EIS need not be prepared unless an agency's planning ripens into a "specific proposal[ ] for action," Kleppe v. Sierra Club, 427 U.S. 390, 401 n. 12, 96 S.Ct. 2718, 2726 n. 12, 49 L.Ed.2d 576 (1976), or a "specific action of known dimensions," id. at 402 n. 14, 96 S.Ct. at 2727 n. 14 4 The Council on Environmental Quality, created for the purpose of researching and advising the President on environmental matters, see 42 U.S.C. Secs. 4341-47, has issued guidelines for implementing NEPA. These guidelines are to be followed by all federal agencies, see Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979), and the specific CEQ regulations at issue here are explicitly incorporated into Department of Defense and Navy regulations. See 32 C.F.R. Sec. 775.3(b)(1) (1984); 32 C.F.R. Sec. 214 Encl. 1, D(4) (1984) 5 Other Circuits have held that an agency's decision not to issue an EIS will be upheld so long as it is "reasonable." See Friends of the River v. Federal Energy Regulatory Commission, 720 F.2d 93, 109 (D.C.Cir.1983); Massachusetts v. Watt, 716 F.2d 946, 948 (1st Cir.1983); Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1024 (9th Cir.1980); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1320 (8th Cir.1974) (en banc). One explanation given for this approach is that an agency's determination as to whether it must file an EIS for a particular action is not discretionary, but a mandatory duty imposed by NEPA when certain conditions exist, thereby precluding judicial review of that determination under the arbitrary, capricious, and abuse of discretion standard of section 706(2)(A) of the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A). See Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1248-49 (10th Cir.1973) 6 Although the duty to supplement may be a continuing one, that duty is practically limited by the nature and life cycle of the proposed project or action and the kind of change or new information involved. A decision to grant a license for the construction of a hydroelectric power plant, for example, would not have to be continually reassessed every time new forecasts for power consumption came to light if such forecasts were speculative and subject to frequent changes. Under such circumstances, it would be unreasonable to require the agency to reassess its decision every time the new forecasts were released, for it could "risk immobilizing the agency." Friends of the River v. Federal Energy Regulatory Commission, 720 F.2d 93, 109 (D.C.Cir.1983). "[R]eview and reassessment of [such a licensing] decision, absent sufficient reason, should not continue indefinitely." Id 7 The complaint generally alleges that in 1981 the defendants decided to upgrade the Wisconsin facility and put it into operation on a permanent basis in conjunction with another facility in the upper peninsula of Michigan (p 11); that 42 U.S.C. Sec. 4321, et seq., requires that any federal agency proposing "a major federal action significantly affecting the quality of the human environment" include an EIS (p 12); that the defendants plan to upgrade the Wisconsin ELF facility and put it into operation with the Michigan facility which is a major federal action significantly affecting the human environment (p 13); that the defendants originally prepared an EIS in 1977 (p 14); that 40 C.F.R. Sec. 1502.9(c) requires a SEIS if (i) the agency makes substantial changes in the proposed action relevant to environmental concerns, or (ii) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed actions (p 15); that these requirements were adopted by the Department of Defense and the Navy (paragraphs 16 & 17); that defendants have made substantial changes relevant to environmental concerns since 1977 (p 18); that there are significant new circumstances and information relevant to environmental concerns bearing on the ELF proposal (p 19); that the defendants violated the statute by failing to include the required EIS or SEIS in their proposal to upgrade the ELF test facility in Wisconsin and to put it into operation on a permanent full time basis in conjunction with another ELF transmitting facility to be constructed in Michigan (p 20); that the defendants have failed to satisfy the statute without a SEIS in the current proposal (p 21) 8 Our reading of this complaint does not mean that a complaint could not be drawn alleging that the Navy acted arbitrarily or capriciously in not preparing a SEIS in connection with the proposal to modify ELF in 1981, and in the alternative contending that significant new information had come to light at a certain time thereafter, which the Navy in due course capriciously and arbitrarily avoided. But that complaint is not the complaint brought by plaintiffs here 9 The evidence offered by plaintiffs coming to light after the 1981 Navy decision suffers from the same deficiencies as the new evidence arising prior to that decision and does not justify a finding that the Navy was arbitrary or capricious in not responding with a SEIS to any or all of it. We are not sure that the district court actually found to the contrary that the new information was in fact sufficiently significant to trigger the duty to file a SEIS, although a SEIS was ordered, or only whether the district court found that the new information merely was significant enough to impose upon the Navy the duties of evaluation and explanation, a finding that would not support the ordering of the preparation of a SEIS under our standard of review of an agency's action. The essence of the violation perceived by the district court appears to flow from the following findings and conclusions: I conclude that the record does not demonstrate that the Navy fulfilled its duty of conducting a thorough and comprehensive review of the new scientific information on the biological effects of extremely low frequency electromagnetic radiation and the significance of that information. * * * I find that the record does not demonstrate that the Navy provided an explanation or additional data for its decision not to prepare and file a supplemental environmental impact statement. In summary, I find and conclude that in proceeding with the reactivation of Project ELF without undertaking a thorough and comprehensive review of the significant new information on biological effects of electromagnetic radiation that has been generated since 1977 the Navy abused its discretion. In so proceeding, the Navy acted in violation of the National Environmental Policy Act. Id. at 1364. 10 The dissent contends that our view of the evidence is "virtually de novo " and "extraordinary." See infra at 428. This contention mischaracterizes our analysis. We review the record evidence not to refute the specific conclusions of the district court, which were made under a mistaken impression of what NEPA and the CEQ regulations require, but to demonstrate that such evidence falls far short of establishing the level of significance necessary to sustain a finding of arbitrary or capricious behavior on the part of the Navy 11 Although it is not our responsibility to assess the credibility of the witnesses, we note that statements made by plaintiffs' witnesses, Drs. Wertheimer, Moulder, and Becker, and their credentials could only make their testimony less persuasive than that of the Navy's witnesses. Dr. Becker, an orthopedic surgeon and professor of orthopedic surgery who has written numerous articles dealing with the biological effects of extremely low frequency electromagnetic radiation, charged that low frequency fields could be responsible in part for numerous diseases, including everything from Legionnaires Disease to AIDS. He stated that he regretted that he had not been in a position to stop the electrification of America in the early 1900's. Although Dr. Becker had previously testified in another proceeding that an intensity of 150 volts per meter was a safe exposure level for low frequency electromagnetic radiation, he refused to ratify his prior testimony; he stated that even though he had given the testimony about the 150 volts per meter previously, he did not, in fact, believe it to be true at the time he testified to it under oath Dr. Moulder candidly admitted that none of his previous work was in the field of nonionizing radiation and that others would be better qualified to comment on the new information. He also stated that he was generally unfamiliar with pre-1977 literature in this area, and with the 1977 National Academy of Sciences report in particular, and that he limited his selection of post-1977 materials for discussion at trial to those he thought showed that extremely low frequency fields pose a health hazard, a somewhat biased approach to say the least. Plaintiffs third expert, Dr. Wertheimer, who testified in part about two of her own studies, is a non-tenured clinical associate professor in the Department of Preventive Medicine in Biometrics at the University of Colorado Medical Center. She admitted that prior to the two current studies about which she testified, she had not done any research, writing, or field work in the area of electromagnetic radiation and its relationship to human health. Her own work, she candidly conceded, was only exploratory and suffered from several methodological weaknesses. Testifying for the Navy were Dr. Straub, a physician and scientist with a joint appointment as Associate Chief of Staff of Research at the Veteran's Administration Hospital in Little Rock, Arkansas, and as Professor of Medicine and Professor of Biochemistry at the University of Arkansas Medical Sciences campus, and Dr. Justesen, Professor of Psychiatry at the University of Kansas School of Medicine and Director of the Behavioral Radiology Laboratories of the Veteran's Administration Medical Center in Kansas City, Missouri. Dr. Straub has worked for a number of years in the area of nonionizing radiation, has published several articles on the subject, and serves on an advisory committee on biological effects of electromagnetic radiation for the International Electrical & Electronic Engineers Society. Dr. Justesen is president-elect of the Bioelectromagnetic Society (which was identified by Dr. Moulder, one of plaintiffs' witnesses, as the only scientific organization devoted to the kind of radiation relevant to this case), served as chairman of the International Electrical & Electronic Engineers Society's Committee on Man and Radiation, and has performed research in the area of extremely low frequency nonionizing electromagnetic radiation. 12 The district court noted three situations in which issuance of an injunction would not be required: (1) when there has been a technical violation of NEPA but not of the Act's substantive requirements, so that the agency cannot be said to be proceeding in ignorance of possible adverse environmental consequences; (2) when there are other circumstances making it unlikely that the agency will proceed with the project before the statement is filed; and (3) when the proposed action will not lead to irrevocable commitment of resources so as to foreclose alternative choices 13 The district court itself concluded that there would be no imminent irreparable damage to the environment or human health that would be avoided by entering injunctive relief. The SEIS, of course, would not relate to the Wisconsin and Michigan construction activities themselves, which were adequately reviewed in an Environmental Assessment. Although the SEIS would reconsider the biological effects of extremely low frequency electromagnetic radiation, the injunction does not enjoin the Navy from operating the existing ELF facility in Wisconsin at its current level 14 Plaintiffs filed a motion to stay our order of June 13, 1984, vacating the district court's injunction, see supra note *, pending disposition of a petition for a writ of certiorari to be filed by plaintiffs. That motion is unanimously denied 1 Based on a surprisingly narrow and rigid reading of the complaint, the majority concludes that the district court should not have considered information that was not yet available at the time of the Navy's 1981 decision to reactivate Project ELF. A fair reading of the complaint shows that it alleges a continuing breach of a continuing duty. Complaint p 19. The complaint alleges a violation of 40 C.F.R. Sec. 1502.9(c), and that regulation is not limited in time--the agency must supplement the EIS at any time in the life of the project when significant new information comes to light. An agency breaches that duty when it goes forward with a project without considering new, relevant information within a reasonable time, and the breach continues until the agency considers the material. The plaintiffs here have alleged and proved precisely this sort of violation, and the district court was entitled to consider all new scientific information available up until a reasonable time before trial The majority's overly narrow reading of the complaint is particularly odd because the majority concedes that the complaint could easily have been drawn to include information available both before and after the 1981 decision. Ante at n. 8. What the majority would accomplish with two narrower clauses, the plaintiffs accomplished with one broader one. 2 In its review of the scientific evidence the majority engages in some interesting criticism of the scientific merits of plaintiffs' evidence. However, even if the criticisms are valid, apart from their propriety on appellate review, the plaintiffs' evidence still contrasts sharply with the Navy's 1977 assertions that there was no "convincing," "substantial" or "generally accepted" evidence of adverse biological effects from extremely low frequency radiation fields. See 578 F.Supp. at 1341-55, 1361-62 3 The Council on Environmental Quality adopted this regulation--which is binding on all federal agencies--as part of a comprehensive effort to improve and streamline NEPA procedures. The Department of Defense and the Navy have also expressly adopted this requirement in their own regulations. 32 C.F.R. Sec. 775.3(b)(1) (1983); 32 C.F.R. Sec. 214.6(D)(4) (1983) 4 By holding that NEPA could have been violated only if the new information was itself significant enough to require a supplemental EIS, the majority conflicts with the Ninth Circuit's decision in Warm Springs Dam 5 On motion for reconsideration, Judge Crabb identified several situations in which an injunction might not be necessary in a NEPA case, but this case does not fall within the exceptions she identified. Wisconsin v. Weinberger, 582 F.Supp. 1489, 1494-95 (W.D.Wis.1984) 6 E.g., Concerned About Trident v. Rumsfeld, 555 F.2d 817, 823 (D.C.Cir.1976); 32 C.F.R. Secs. 214.6(D)(4) and 775.3(b)(1) (1983) (Department of Defense and Navy regulations for NEPA compliance)

122 F.3d 1069 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.Clementine ALLEN-BELL, Plaintiff-Appellant,v.Kathy TOPOLINSKI, Defendant,andMONTGOMERY WARD CREDIT CORP., Defendant-Appellee. No. 97-15268. United States Court of Appeals, Ninth Circuit. Submitted Aug. 25, 1997.**Sept. 5, 1997. Appeal from the United States District Court for the District of Nevada. Philip M. Pro, District Judge, Presiding. Before SCHROEDER, FERNANDEZ, and RYMER, Circuit Judges. 1 MEMORANDUM* 2 Clementine Allen-Bell appeals pro se from the district court's Fed.R.Civ.P. 12(b) dismissal of her action alleging that her former employer Montgomery Ward Credit Corporation ("MWCC") discriminated against her on the basis of race when it denied her a promotion, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) (1997).1 3 We have jurisdiction under 28 U.S.C. § 1291, and we review de novo a dismissal for failure to state a claim, see Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir.1990). We reverse and remand. 4 In her complaint, Allen-Bell alleged that she filed a timely charge of race discrimination with the EEOC. The record contains an intake sheet that Allen-Bell filed with the Nevada Equal Rights Commission within 300 days of the date when MWCC denied her the promotion. Accordingly, we conclude that Allen-Bell filed a timely EEOC charge, and the district court erred by dismissing her complaint. See Casavantes v. California State University, 732 F.2d 1441, 1443 (9th Cir.1984) (finding timely filed intake questionnaire satisfies time bar for Title VII claims). 5 REVERSED and REMANDED. ** 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 Allen-Bell waived her right to appeal the district court's dismissal of defendant Toplinski because she failed to challenge it in her opening brief

799 P.2d 1090 (1990) In re the Matter of Declaring B.H.M., C.M.M. and J.T.H., Youths in Need of Care. No. 89-531. Supreme Court of Montana. Submitted July 13, 1990. Decided October 25, 1990. *1091 Chris P. Christensen, Kalispell, Paulette C. Ferguson, Missoula, for Maternal Grandmother. Ted O. Lympus, Co. Atty., Randy K. Schwickert, Deputy Co. Atty., Kalispell, Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, Robert B. Allison, Kalispell, for Youths. HUNT, Justice. Appellant Doreen Karen Howard appeals from the order of the District Court, Eleventh Judicial District, County of Flathead, which terminated her parental rights to BHM, CMM, and JTH, who had previously been designated youths in need of care. We affirm. The issues presented on appeal are: 1. Whether the District Court followed proper procedural steps in terminating the parental rights of the appellant. 2. Whether the District Court erred in considering the "best interests of the child" test in terminating the parental rights of appellant. 3. Whether there was sufficient evidence presented to support the District Court's order. BHM, born on August 26, 1982, and CMM, born on September 17, 1983, are children of appellant and Dan Moe, deceased. JTH, born on July 1, 1985, is the child of appellant and Mark Rickman. Dan Moe was murdered on July 31, 1985. Mark Rickman pled guilty to this murder on March 21, 1986. Rickman was sentenced to 35 years in prison. At the March 21 hearing, Rickman testified that appellant and appellant's mother, Opal Howard, had assisted in the homicide. As a result, appellant was arrested on March 19, 1986, and subsequently pled guilty to obstructing justice by helping Rickman dispose of Dan Moe's body. Appellant was sentenced to ten years in prison. After appellant was arrested for her participation in the murder and incarcerated in Flathead County, a petition for Temporary Investigative Authority (TIA) was filed with the District Court seeking protective services for her three children. The supporting affidavit stated that both appellant and the natural father of JTH were currently incarcerated and the natural father of BHM and CMM was deceased. The court granted the TIA on March 21, 1986. As a result, the children were removed from their home and placed in foster care with non-relatives. *1092 On April 4, 1986, Opal Howard moved to dismiss and vacate the order granting the TIA. An adjudicatory hearing was held on April 9, 1986. At this hearing, Shawn Trontel, a psychiatric social worker, testified that BHM, who was three and one-half years old, showed behavior more appropriate to a two-year-old. His speech was basically unintelligible. He was withdrawn and fearful. He was not toilet-trained and showed fears of toilet training. He was unable to form attachments to other persons and was unable to follow simple directions. CMM was not toilet-trained and lacked skills associated with a child of her age. The children were unable to feed themselves with utensils and drank from "tippy" cups. Mark Rickman testified at this hearing concerning the involvement appellant and her mother, Opal, had in the murder of Dan Moe. He testified that the murder was planned to prevent the children from having contact with their father and his family. Further, he testified that his participation in the murder was compelled by threats from Opal and appellant that he would lose contact with his son, JTH. Neither appellant nor Opal refuted this testimony. The court denied the motion to dismiss and the children were initially adjudicated youths in need of care. The involvement of their mother in the murder of Dan Moe had a detrimental impact on the children's mental and physical health. As part of the court's order, all of the potential caregivers underwent psychological evaluations and submitted to home studies. After reviewing these evaluations and home studies, the Flathead County Department of Public Welfare (Department) attempted to transfer the placement of BHM and CMM to Pat and Karen Moe, the children's paternal aunt and uncle, and the placement of JTH to Duane and Karen Wock, the maternal aunt and uncle. The Department justified this request based upon the positive feelings that the children, BHM and CMM, had for Pat and Karen, and the idea that the longer the children stayed in foster care, the more difficult it would be if an eventual break occurred. Appellant obtained a temporary restraining order to prevent the transfers because the Department had failed to first contact appellant. Opal Howard filed a formal notice withdrawing herself from consideration as an alternate caretaker for the children. This notice was based upon her objection to the general release of her psychological evaluation. A hearing was held in November, 1986, to determine whether a permanent injunction should issue preventing the transfer of the children. At this hearing, the court heard substantial evidence regarding BHM and CMM's improvement after a two-week visit with their aunt and uncle, Pat and Karen Moe. Their preschool teacher testified that after the visit they seemed like new children. Two social workers who had had contact with the children recommended that they be placed with family members. On November 21, 1986, the court found that it was in the best interests of BHM and CMM to be placed with Pat and Karen Moe, and for JTH to be placed with Duane and Theresa Wock. The court recognized the animosity between the Howards and the Moes, and ordered that Pat Moe obtain counseling and admonished the Moes not to make any deprecatory statements about the children's mother. The court also ordered that the placements be regularly monitored. In a report dated February 10, 1987, social worker Donna Taylor noted that BHM and CMM were doing well in the Moe's care but that JTH should be removed from his placement at the request of the Wocks. Upon motion by the State, the court ordered that JTH be placed in the home of his maternal aunt and uncle, Dan and Eileen Howard. In November, 1988, the Department filed a petition for permanent custody and authority to consent to adoption with the court. On February 1, 1989, Opal Howard moved to intervene and filed a petition for custody of the children. On February 17, 1989, Mark Rickman filed notice that he would not contest the termination of his parental rights. *1093 A hearing was conducted on February 21-24 and May 16-17, 1989. At the hearing, at least six professionals testified as to the fragile emotional condition of the oldest child, BHM; the children's improvement after being placed in foster care; and appellant's incapacity to care for dependent children on a long term basis. Based upon the evidence presented at the hearing, the District Court concluded that the children had been abused and neglected, and were youths in need of care. The court further concluded that the parental rights of appellant should be terminated because her conduct and condition were unlikely to change within a reasonable time. Finally, the court concluded that the best interests of the children would be served by termination of the parental rights; and by an award of permanent legal custody to the Department with authority to consent to adoption of the children. The first issue is whether the District Court followed proper procedure in terminating the parental rights of the appellant. Two procedures culminated in the District Court's finding that appellant's parental rights should be terminated. The first one was the District Court's grant of temporary investigative authority (TIA) and protective services pursuant to a Department petition, governed by §§ 41-3-401 through 409, MCA. The second was the final termination of rights, governed by §§ 41-3-601 through 612, MCA. The primary issue before this Court is whether the District Court acted arbitrarily in terminating the mother's parental rights permanently, not whether the District Court acted improperly in accepting the recommendation of the Department for temporary authority. Assuming, nevertheless, that Doreen Howard may challenge the Department's grounds for the TIA and the temporary transfer of the children from foster care to the Moe home, a review of the record shows that the District Court adhered to the proper statutory procedures. The Department was well within its bounds when it filed a petition for temporary custody. Section 41-3-402(1), MCA, states: In cases where it appears that a youth is abused or neglected or is in danger of being abused or neglected, the county attorney, attorney general, or an attorney hired by the county welfare department or office of human services may file a petition for temporary investigative authority and protective services. The District Court received a petition for temporary investigative authority and protective services filed pursuant to §§ 41-3-401(10) and 41-3-402, MCA. The court issued an order pursuant to § 41-3-403, MCA, which expressly allows the court to grant such relief as may be required for the immediate protection of the youth. The mother and grandmother then moved to vacate the order and dismiss the petition. A hearing was held on April 19, 1986, to decide on the motion. From the evidence as set forth in the record, the District Court found probable cause to support the TIA petition. Appellant contends that the grant of the TIA and the subsequent transfer of the children from neutral foster care to the Moe home was based only on the absence of the parents; she maintains that abuse or neglect within the mandate of the statute was never alleged. However, the statute provides that danger of abuse or neglect is adequate grounds for issuing a TIA. It is certainly within the contemplation of an agency or judicial body that the violent death of one parent and the incarceration of another could place children in danger of psychological and emotional trauma. That the children's mother was alleged to have participated in perpetrating this trauma rises to the level of at least neglect, if not abuse. The District Court found, after subsequent psychological testing, that at least one of the children exhibited distress and fear at the thought of going back to live with his grandmother. The findings of a district court on abuse and neglect generally will not be disturbed "unless a mistake of law exists or the factual findings are not supported *1094 by substantial evidence." In the Matter of J.L.S. and A.D.S., Youths in Need of Care, 234 Mont. 201, 206, 761 P.2d 838, 841 (1988). The term "neglect" includes emotional deprivation. Matter of JLB, 182 Mont. 100, 114, 594 P.2d 1127, 1135 (1979). The mother's complicity in the homicide, coupled with the results of the psychological testing, could prompt a condition of emotional deprivation. Clearly the District Court was within its discretion in granting the state temporary investigative authority. Having determined that the TIA was properly granted, we now turn to the issue of permanent termination. The proper procedure for permanent termination is outlined in § 41-3-609, MCA, which states in part: (1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection (1)(a), (1)(b), or (1)(c), as follows, exist: ... (c) the child is an adjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. The District Court properly found, first, that the children were "youth in need of care" as defined in § 41-3-603(2), MCA. "Youth in need of care" means a youth who is dependent, abused, or neglected as defined in § 41-3-102(2). Section 41-3-102(2), MCA states: "Abused or neglected child" means a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare. Substantial evidence was presented regarding the children's abuse or neglect at both the TIA proceeding and the 1989 permanent custody hearings. They were thus adjudicated "youth in need of care" as the first criterion of § 41-3-609, MCA, requires. The final two criteria that must be met under § 41-3-609, MCA, are: 1) that a treatment plan has not been successful and 2) that the condition of the parent(s) is not likely to change within a reasonable amount of time. Appellant argues that under § 41-3-609(1)(c)(i), MCA, an "appropriate treatment plan" was never authorized by the court; the only plan attempted was one by which to evaluate appellant's probable success with a treatment plan, and to then propose an appropriate plan. She states that her due process rights were violated because a complete treatment plan was never attempted. Although the District Court did approve a preliminary "treatment plan" for appellant in order to determine her chances of success in thorough treatment, it was not required to do so. Subsection (4) of 41-3-609, MCA, reads: A treatment plan is not required under this part upon a finding by the court following hearing if: (b) the parent is incarcerated for more than 1 year and such treatment plan is not practical considering the incarceration ... While it is unclear from the District Court's findings whether it was proceeding under § 41-3-609(1)(c)(i), MCA requiring proof of an unsuccessful treatment plan, or under § 41-3-609(4), MCA, not requiring any plan at all, we conclude that there is sufficient evidence in the record to justify the District Court's decision to terminate. A lengthy hearing was held in February of 1989, and continued in May of 1989, in which the practicality of a treatment plan was discussed, as well as the benefit to the children of permanent alternate placement. Appellant was given an opportunity to testify at this hearing. In spite of her testimony, the District Court found that a treatment plan would not be practical because of the mother's deficiencies and the length of her prison sentence. Appellant's argument that the court did not comply with the requirements of § 41-3-609(1), MCA (requiring the treatment plan) is without merit. In meeting the requirements of § 41-3-609(4) (the exception to the treatment plan rule), the court provided due *1095 process by fulfilling all of the requirements for permanent termination of parental care. Further, adequate evidence was presented to indicate that appellant's condition was unlikely to change within a reasonable amount of time as required by § 41-3-609(1)(c)(ii), MCA. The second issue is whether the District Court abused its discretion by considering the best interests of the children in terminating parental rights. Appellant contends that the District Court's finding of fact no. 51 and conclusion of law no. 5, erroneously use the "best interest of the children" standard in terminating her parental rights. She further argues that the State is using parental deficiencies alone to justify the termination of parental rights. We disagree. The case law that appellant cites clearly states that the "best interests" test is properly used after an initial finding of dependency, abuse, or neglect. Matter of Guardianship of Doney, 174 Mont. 282, 286, 570 P.2d 575, 578 (1977); Matter of Fish, 174 Mont. 201, 206, 569 P.2d 924, 927 (1977); In Re Gore, 174 Mont. 321, 327, 570 P.2d 1110, 1113 (1977); Matter of Guardianship of Aschenbrenner, 182 Mont. 540, 549, 597 P.2d 1156, 1162 (1979). Here the court has met the threshold requirement by finding the children "youth in need of care"; their status as such satisfies the prerequisites for the "best interests" test. Further, this Court has previously stated that "when parents commit acts which deprive a child of an adequate physical and emotional environment, the best interest of the child becomes paramount over parental rights." In the Matter of J.L.S. and A.D.S., Youths in Need of Care, 234 Mont. 201, 208, 761 P.2d 838, 842 (1988). While the "best interests" test is specifically applied after termination in order to determine proper placement for the children, it is also used as a guideline throughout proceedings once an unacceptable home environment has been ascertained. Appellant's argument that it is her parental deficiencies alone that are justifying termination is equally without merit. Finding of fact no. 51 cites a variety of factors to justify the court's decision, including the needs of the children, the history of violent behavior by the parents, and the long term confinement of the parents. These are all factors that the court "shall" consider pursuant to § 41-3-609(2), MCA. The District Court has considered the children's whole situation, as the statute mandates, and was well within its discretion in its final decision. The third issue is whether sufficient evidence was presented to support the District Court's order. Appellant presents testimony from members of various communities where the family lived that the children seemed to be physically well cared for and not unusually ill-behaved. The District Court, however, found the respondent's evidence persuasive that at least some of the children were abused, neglected and/or deprived. At least one of the children had speech and developmental problems, and showed indications of being subject to physical abuse. They were not toilet trained. They exhibited substantial emotional improvement after removal from the home and placement in foster care. The record does not reflect any abuse of discretion on the part of the District Court. The judgment is affirmed. HARRISON, BARZ, McDONOUGH and WEBER, JJ., concur.

NUMBER 13-10-00130-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG EX PARTE: RAMIRO DURAN On appeal from the 319th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Garza Memorandum Opinion by Justice Garza Appellant, the Texas Department of Public Safety ("TDPS"), brings this restricted appeal challenging the trial court's order of expunction in favor of appellee, Ramiro Duran. See Tex. R. App. P. 30. By two issues, the TDPS argues that: (1) Duran was not entitled to an expunction of records related to his arrests for driving while intoxicated and evading arrest or detention with a vehicle because he was convicted of both offenses, see Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B) (Vernon 2006); and (2) the trial court abused its discretion in ordering the expunction of Duran's criminal records because the TDPS did not receive notice of the hearing as required by article 55.02, section 2(c) of the code of criminal procedure. See id. art. 55.02, § 2(c) (Vernon Supp. 2009). We reverse and remand. I. Background Duran filed a petition for expunction of records relating to six offenses. Six agencies, including the TDPS, were listed in the petition as having records or files pertaining to the offenses. A hearing on Duran's petition was set for December 18, 2008, and the TDPS admits that it received notice of this hearing. On December 12, 2008, the TDPS filed an original answer denying the allegations made in Duran's petition and asserting an affirmative defense as to one of the offenses. Though the record does not contain an order resetting the originally scheduled December 18, 2008 hearing, the trial court conducted a hearing on Duran's petition on September 30, 2009. The TDPS did not appear for the September 30, 2009 hearing, and at the conclusion of the hearing, the trial court ordered an expunction of Duran's criminal records. On March 16, 2010, the TDPS filed its notice of restricted appeal. (1) See Tex. R. App. P. 26.1(c). II. Restricted Appeal To successfully attack an order by restricted appeal, the TDPS must show: (1) it was a party who did not participate, either in person or through counsel, in the hearing that resulted in the judgment complained of; (2) it filed a notice of appeal within six months after the order was signed; (3) it did not timely file a postjudgment motion or request findings or fact and conclusions of law; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see Tex. Dep't of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.-Corpus Christi 2007, no pet.). III. Standard of Review In restricted appeals, we are limited to considering only errors that are apparent on the face of the record. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Fredricks, 235 S.W.3d at 280. The "face of the record" includes all papers on file in the appeal and the reporter's record, if any. Norman Commc'ns, 955 S.W.2d at 270. A restricted appeal affords the appellant the same scope of review as an ordinary appeal--in other words, the entire case. See id. Article 55.02 of the code of criminal procedure governs the procedures for expunction. See Tex. Code Crim. Proc. Ann. art. 55.02. These provisions are mandatory and must be complied with in an expunction proceeding. Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 111-12 (Tex. App.-San Antonio 1997, no writ); Tex. Dep't of Pub. Safety v. Riley, 773 S.W.2d 756, 758 (Tex. App.-San Antonio 1989, no writ). Article 55.02 provides that the trial court shall set a hearing on a petition for expunction no sooner than thirty days from the filing of the petition and shall give reasonable notice of the hearing to each respondent named in the petition, namely, the various law enforcement agencies that have records or files subject to expunction. Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c). While there is no requirement that the respondents be served with the petition for expunction itself, the trial court is required to notify them of the hearing. See Deck, 954 S.W.2d at 112 (noting that because an expunction hearing is civil in nature, each law enforcement agency cited is entitled to represent itself). If the record does not indicate that a proper agency was notified in accordance with the statute, then the record reflects a proceeding in violation of the statute and the expunction order must be set aside. See Deck, 954 S.W.2d at 112; Rodriguez v. T.M.B., 812 S.W.2d 449, 450-51 (Tex. App.-San Antonio 1991, no writ) (setting aside an expunction order after finding that the hearing took place without notice to any respondent); Riley, 773 S.W.2d at 758 (setting aside an expunction order because the record did not reflect that the law enforcement agencies had been notified of the hearing and because the trial court violated the thirty-day waiting period); see also Tex. Dep't of Pub. Safety v. Cruz, No. 13-09-00145-CV, 2009 Tex. App. LEXIS 6971, at *4-7 (Tex. App.-Corpus Christi Aug. 31, 2009, no pet.) (mem. op.) (setting aside an expunction order where a law enforcement agency was notified of the originally scheduled expunction hearing but not of the reset expunction hearing); Tex. Dep't of Pub. Safety v. Flores, No. 04-07-00257-CV, 2008 Tex. App. LEXIS 1021, at *2-4 (Tex. App.-San Antonio Feb. 13, 2008, no pet.) (mem. op.) (same). IV. Analysis In its second issue, the TDPS asserts that the trial court abused its discretion in ordering the expunction of Duran's criminal records because the TDPS did not receive notice of the September 30, 2009 hearing. The reporter's record reflects that the trial court conducted a hearing on September 30, 2009, with only Duran's attorney appearing before the court. Additionally, the record is devoid of any notice or other document alerting the law enforcement agencies listed in Duran's petition of the resetting of the December 18, 2008 hearing to September 30, 2009. (2) We therefore conclude that it was error for the trial court to order Duran's records expunged without providing notice to the TDPS of the September 30, 2009 hearing. See Deck, 954 S.W.2d at 112-13. This violation of mandatory procedure requires us to set aside the trial court's order expunging Duran's records. See Rodriguez, 812 S.W.2d at 450-51; Riley, 773 S.W.2d at 758; see also State v. Echeverry, 267 S.W.3d 423, 425 (Tex. App.-Corpus Christi 2008, pet. denied) ("The trial court must strictly comply with the statutory procedures for expunction, and it commits reversible error when it fails to comply."). Accordingly, we sustain the TDPS's second issue. Because we have sustained the TDPS's second issue, we need not address its first issue. (3) See Tex. R. App. P. 47.1. V. Conclusion The judgment of the trial court is reversed, the expunction order is set aside, and the case is remanded to the trial court for proceedings consistent with this opinion. ________________________ DORI CONTRERAS GARZA, Justice Delivered and filed the 19th day of August, 2010. 1. The TDPS did not file any postjudgment motions, nor did it make requests for findings of fact or conclusions of law. 2. In its "DESIGNATION OF CLERK'S RECORD," the TDPS requested that all fiats and notices of hearing for the December 18, 2008 hearing and any other settings be provided in the clerk's record. However, no notice to the law enforcement agencies of the September 30, 2009 hearing appears in the record before us. Further, Duran has not filed a brief in this matter, nor has he directed us to any evidence demonstrating that the TDPS actually received notice of the September 30, 2009 hearing. 3. We note, however, that the September 30, 2009 order expunges the records related to two offenses that were not included in Duran's petition for expunction and that, according to the TDPS and the order on appeal, resulted in Duran's conviction. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B) (Vernon 2006) (stating that one of the requirements for expunction is that "the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending").

470 F.2d 146 80 L.R.R.M. (BNA) 3011, 25 A.L.R.Fed. 439 Edwin W. EMBREY, Appellant,v.Robert E. HAMPTON, Chairman, United States Civil ServiceCommission and Winton M. Blount, PostmasterGeneral, United States Post Office, Appellees. No. 71-2073. United States Court of Appeals,Fourth Circuit. Argued June 8, 1972.Decided July 3, 1972.Rehearing Denied July 31, 1972. A. Andrew Giangreco, Alexandria, Va. (Giangreco, Seay & Manuel, Alexandria, Va., on brief), for appellant. Stanton R. Koppel, Atty., Dept. of Justice (L. Patrick Gray, III, Asst. Atty. Gen., Morton Hollander, Atty., Dept. of Justice, and Brian P. Gettings, U. S. Atty., on brief), for appellees. Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges. PER CURIAM: 1 This appeal is from the decision of the District Court that Embrey's discharge from his position with the Post Office Department was lawful and not arbitrary, capricious nor an abuse of discretion. 2 Embrey, who had an exemplary record in his four years with the Navy and 21 years with the Post Office, was discharged because of a conviction for fraud. In an application for an F.H.A. loan at a time when his wife had been quite ill, Embrey had wrongfully claimed he had no other debts outstanding. Although he was found guilty of fraud, the District Court did not impose sentence, placing Embrey on probation for three years and noting that he was endeavoring to repay his debts in spite of a pending application for discharge in bankruptcy. 3 Embrey's position as Civil Service Examiner is one that requires trust but one in which he would be unlikely to handle money. Additionally, the record indicates that Embrey was not trying to obtain funds under false pretenses with the intention of not making repayment, the usual conception of fraud. It is therefore understandable that his direct supervisor refused to recommend discharge. 4 In view of the limited scope of judicial review of administrative decisions, we cannot say that the District Court erroneously concluded that Embrey's discharge was lawful. After the decision of the Regional Director of the Post Office that he should be discharged, Embrey was afforded a full administrative hearing de novo followed by a second evidentiary hearing before the Civil Service Commission Appeals Examining Office and then by an appeal to the Civil Service Board of Appeals and Review. These hearings satisfied all requirements of procedural due process. 5 Relying on the contract between his labor union and the Post Office Department which proscribes references to charges more than two years old, Embrey claims that he was discharged for acts committed beyond that period. The discharge, however, was properly based on the conviction, not the underlying acts, and the conviction came well within the two year period. The Department correctly waited until after the conviction before bringing charges. Otherwise, Embrey might have claimed that the Department was violating the presumption that one is innocent until proved guilty. 6 Since the agency complied with all procedural requirements and its action had a reasonable basis, this court must accept the administrative decision that Embrey's discharge "will promote the efficiency of the service," the only basis for discharge provided by statute. 5 U.S.C. Sec. 7512. The regulations include criminal conduct among the reasons for discharge. 5 C.F.R. Secs. 752.104, 731.201(b). 7 In a case involving this same statute the District of Columbia Circuit upheld the discharge by the Air Force of a civilian engineer who had deliberately falsified answers on federal employment forms relating to his past involvement with Communist organizations. Rodriquez v. Seamans, D.C.Cir., 463 F.2d 837. Judge Tamm wrote: "[Rodriquez] was dismissed for falsification of records-an act which goes to [his] reliability, veracity, trustworthiness, ethical conduct, and certainly affects the efficiency of the service." 8 Embrey's conviction for fraud similarly provided the Post Office Department with a reasonable basis to decide that his discharge would promote the efficiency of the service. Although our view of the record leads us to question whether we would arrive at the same conclusion under the circumstances and in view of the alternatives of suspension and demotion, we cannot say that Embrey was not afforded substantive or procedural due process. We emphasize that the courts not the Post Office Department are charged with the punishment of criminal offenses. While we urge the Department to leave punishment to the judiciary, we must remember to leave determination about the efficiency of the Department to that agency. 9 Accordingly, although we are inclined to think the mitigating circumstances made demotion or suspension a more appropriate sanction, we find no basis for judicial relief. If there is to be any moderation of the final discharge, it must be through administrative procedures. 10 Affirmed.

Case: 13-60245 Document: 00512635831 Page: 1 Date Filed: 05/20/2014 REVISED May 20, 2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 13-60245 Fifth Circuit Summary Calendar FILED May 19, 2014 Lyle W. Cayce BRUCE GUNKLE; SHERILYN S. GUNKLE, Clerk Petitioners-Appellants v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee Appeal from the Decision of the United States Tax Court No. 5650-11 Before WIENER, OWEN, and HAYNES, Circuit Judges. WIENER, Circuit Judge. Petitioners-Appellants, Bruce and Sherilyn S. Gunkle, husband and wife (together, “the Gunkles”), appeal the judgment of the United States Tax Court (“Tax Court”) rendered pursuant to Section 7483 of the Internal Revenue Code (“I.R.C.”). They seek reversal of that judgment, which sustained the determination of Respondent-Appellee, the Commissioner of Internal Revenue (“Commissioner”), that the Gunkles had an income tax deficiency and an accuracy-related addition to tax for 2007 as the result of unreported income and disallowed deductions for charitable contributions. We affirm.  Case: 13-60245 Document: 00512635831 Page: 2 Date Filed: 05/20/2014 No. 13-60245 I. FACTS AND PROCEEDINGS A. Facts Bruce is a graduate of the United States Naval Academy and holds a master’s degree in theology from Antioch University. After he retired from the military, he and Sherilyn settled in Texas. Bruce incorporated the City of Refuge Christian Fellowship, Inc. (“City of Refuge, Inc.”) in 1990 as a Texas non-profit corporation, exempt from federal taxes under I.R.C. § 501(c)(3) (“501(c)(3)”). The Gunkles’ income tax debacle began in 2002 when Bruce attended a church leadership conference and heard Elizabeth Gardner, wife of Frederick “Ric” Gardner (together, “the Gardners”) speak about a religion-related tax gimmick that they were marketing, at the core of which was a so-called “corporation sole” as an alternative to a customary non-profit entity exempt from taxes under 501(c)(3). 1 Central to the Gardners’ step-transaction tax scheme 2 was the proposition that persons like the Gunkles could assign their 1“A corporation sole consists of only one person at a time, but the corporation may pass from one person to the next without any interruption in its legal status.” Roman Catholic Bishop of Springfield, A Corp. Sole v. City of Springfield, 724 F.3d 78, 84 n.1 (1st Cir. 2013). See also Tex. Mobile Home Ass’n v. Comm’r of Internal Revenue, 324 F.2d 691, 694-96 (5th Cir. 1963) (quoting Trinidad v. Sagrada Orden, 263 U.S. 578, 581-582 (1923)). 2 “The step transaction doctrine is a corollary of the general tax principle that the incidence of taxation depends upon the substance of a transaction rather than its form.” Sec. Indus. Ins. Co. v. United States, 702 F.2d 1234, 1244 (5th Cir. 1983) (citing Kuper v. Comm’r of Internal Revenue, 533 F.2d 152, 155 (5th Cir. 1976)). As we have explained previously: Under the step transaction doctrine, the tax consequences of an interrelated series of transactions are not to be determined by viewing each of them in isolation but by considering them together as component parts of an overall plan. When considered individually, each step in the series may well escape taxation. The individual tax significance of each step is irrelevant, however, if the steps when viewed as a whole amount to a single taxable transaction. Taxpayers cannot compel a court to characterize the transaction solely upon the basis of a 2  Case: 13-60245 Document: 00512635831 Page: 3 Date Filed: 05/20/2014 No. 13-60245 income to a corporation sole and deduct the amounts thus assigned as charitable donations without the need to qualify that entity under 501(c)(3), and would thereby “transform taxable individual income into non-taxable income.” The Gardners marketed their packaged “how-to” program to those attending the conference, and Bruce was among the purchasers. 3 As the first step in implementing the Gardeners’ multi-step plan, Bruce dissolved his existing 501(c)(3) non-profit corporation, City of Refuge, Inc., through the Texas Secretary of State, thereby terminating its tax-exempt status in the process. As his next step, Bruce formed the “Office Of Presiding Pastor, Bruce W. Gunkle, And His Successors, A Corporation Sole” as a Nevada entity “within the ecclesia of the City of Refuge” (the “corporation sole”). As the tax court observed, “Gunkle concluded that he did not wish to continue operating as a nonprofit corporation . . . because of concern that such status might allow Governmental interference with the organization and that the concentration on one facet of it when the totality of circumstances determines its tax status. Id. (internal quotation marks, citations, and brackets omitted); see also United States v. Shows, 307 Fed. App’x 818, 821 (5th Cir. Jan. 21, 2009) (unpublished) (citing Sec. Indus. Ins. Co., 702 F.2d at 1244). 3 Although the Gunkles are proceeding pro se in this appeal, they were represented in the Tax Court by the same counsel who represented the Gardners in their own tax case implicating unreported income purportedly shielded by a corporation sole. The Gardners lost that case and have appealed to the Ninth Circuit for their tax year 2004, consolidated with another Tax Court case involving their tax years 2002 and 2003. In yet another federal case involving the Gardners, the district court for the District of Arizona enjoined them from promoting, marketing, and selling corporation soles, which promotions, the court stated, had “encourage[d] [their vendees’] willful misreading of the [tax] law” by promising unwarranted tax benefits. Per that district court’s order, the Gardners were required to furnish a copy of the injunction to the Gunkles. See United States v. Gardner, 2008 WL 906696, at *6 (D. Ariz. Mar. 21, 2008), aff’d, 457 F. App’x 611 (9th Cir. 2011). 3  Case: 13-60245 Document: 00512635831 Page: 4 Date Filed: 05/20/2014 No. 13-60245 ‘business model’ of a corporation allowed the directors a say in the operations.” 4 The next step in the Gunkles’ series was their signing of a “vow of poverty,” which they had the corporation sole accept and agree to provide “all their needs as Apostles and as pastors of this church ministry. The check will be placed in the church pastoral account every two weeks according to all the needs of the pastors.” As their last step down the Gardners’ primrose path, the Gunkles deeded their residence to Bruce’s corporation sole, all the while continuing to reside there. During 2007, the tax year at issue, the Gunkles performed pastoral functions and conducted services. They also performed “sacerdotal functions” for their corporation sole. A checking account at Wells Fargo Bank was maintained in the name “The City of Refuge Christian Fellowship Pastoral Expense Account” (the “Pastoral Account”). The periodic statements for that account were mailed to the Gunkles at the residence that they had transferred to their corporation sole. Although others had signature authority on that bank account, no one except the Gunkles ever signed checks on it, and neither Gunkle had signature authority on any other checking account. Deposits into the Pastoral Account came from Bruce’s military retirement payments and Social Security disbursements, as well as from City of Refuge member and non- member contributions. The Gunkles used the funds from the Pastoral Account to pay their personal expenses, such as purchasing and maintaining automobiles, buying food and groceries, paying for household expenses, and the like. They also used that account to pay mortgage, utility, and maintenance charges on the 4 Gunkle, 2012 WL5371425 at *1. The Commissioner and the Tax Court deemed significant the fact that Bruce was trying to unload the prior directors “oversight.” Indeed, the Gunkles’ vow of poverty might have been effective if they were actually to work for a separate entity, possibly even the prior City of Refuge. 4  Case: 13-60245 Document: 00512635831 Page: 5 Date Filed: 05/20/2014 No. 13-60245 corporation sole’s property which they occupied rent-free as their residence. In addition to the Pastoral Account, Sherilyn had a savings account at a federal credit union into which deposits were made from the Pastoral Account and on which interest was earned during 2007. No one else made deposits into that savings account. The Gunkles’ 2007 joint federal income tax return was prepared by none other than Ric Gardner. It reported income from Bruce’s Social Security and military pension benefits that had been deposited into the Pastoral Account, but it reported no income from their corporation sole. The Commissioner’s Notice of Deficiency for that tax year asserted an income tax deficiency of $16,262 plus a 20% accuracy-related addition of $3,252.40. 5 B. Tax Court Proceedings The Gunkles filed suit in the Tax Court in 2011, challenging the Commissioner’s assessments for deficiency and additions to tax on their 2007 joint income tax return. The Gunkles asserted that the unincorporated City of Refuge was a “church” or “legitimate religious organization” exempt under 501(c)(3), and that it was a religious order as well. Thus, argued the Gunkles, deposits to the Pastoral Account were non-taxable gifts, and their vows of poverty shielded their compensation for services as its agents. They also claimed that their donations to their corporation sole entitled them to deductions for charitable contributions. The Commissioner countered that the Gunkles’ compensation for services rendered was taxable, even if, arguendo, their corporation sole were a “church” or other exempt organization. The Commissioner also asserted that, for tax purposes, the payment of the Gunkles’ living expenses from the Pastoral Account was compensation for services, in consequence of which deposits into 5 These deficiencies were subsequently revised to $13,690 and $2,738, respectively. 5  Case: 13-60245 Document: 00512635831 Page: 6 Date Filed: 05/20/2014 No. 13-60245 the Pastoral Account were taxable to the Gunkles who had exclusive control of that account at all relevant times. The Commissioner noted further that the Gunkles had not validly assigned their income to Bruce’s corporation sole pursuant to their vows of poverty. The Commissioner also took the position that the Gunkles owed taxes on deposits of cash and dividends into Sherilyn’s federal credit union account, but not on transfers to it from the Pastoral Account. In sum, the Commissioner insisted that the Gunkles had unreported taxable income for 2007, were not entitled to charitable deductions, and were liable for the additional taxes that the IRS had assessed, as well as for the 20% accuracy-related assessment. C. Tax Court Disposition As it and the other courts that had dealt with the Gardners’ own, essentially identical tax cases had done previously, the Tax Court rejected the Gunkles’ positions that relied on the package they had purchased from the Gardners, had been instituted seriatim, and had been taken by the Gunkles on their tax returns. The court ruled that the Gunkles’ depositing of funds into the Pastoral Account as donations and assigning their income to Bruce’s corporation sole based on their vows of poverty lacked substance and were unavailing, as were their contentions that they were acting as agents of the corporation sole. The Tax Court concluded that “petitioners exercised complete dominion and control over all of the funds in the pastoral account without any restriction by the City of Refuge or any other person.” 6 The court noted that the Gunkles had “not shown that the City of Refuge CF has any characteristics of a religious order” and concluded they were not entitled to the rules “applicable to payment 6 Gunkle, 2012 WL 5371425 at *3. 6  Case: 13-60245 Document: 00512635831 Page: 7 Date Filed: 05/20/2014 No. 13-60245 of expenses on behalf of members of a religious order.” 7 Similarly, the court ruled that deposits into Sherilyn’s account at the federal credit union constituted income to the Gunkles. 8 The Tax Court agreed with the Commissioner that the Gunkles had failed to present credible evidence to support treating their deductions as charitable contributions, principally because the corporation sole did not meet the requirements of I.R.C. §§ 170(c)(2) or 501(c)(3). The court ultimately rendered judgment for the Commissioner on the basis of its November 1, 2012 opinion, holding that the Gunkles’ reported income tax for 2007 was deficient in the amount of $13,690 and that they owed a penalty under I.R.C. § 6662(a) of $2,738. The Gunkles timely filed a notice of appeal to this court. 9 II. ANALYSIS A. Standard of Review In addressing appeals of cases tried to judgment in the Tax Court, like those tried to judgment in other courts of first instance, we review issues of law de novo 10 and findings of fact for clear error. 11 This is particularly so when 7 Id. at *4. The Tax Court commented that the City of Refuge had no resemblance to a religious order 8 Id. 9 The Gunkles limit their appeal to the Tax Court’s holding that deposits into the Pastoral Account in the name of the City of Refuge constituted unreported taxable income to them; they do not challenge—and therefore waive any claim of error regarding—that court’s assessment of the additional 20% denial of charitable deduction, and deposits into the savings account at the federal credit union. 10 Green v. Comm’r of Internal Revenue, 507 F.3d 857, 866 (5th Cir. 2007). 11 Yoon v. Comm’r of Internal Revenue, 135 F.3d 1007, 1012 (5th Cir. 1998). 7  Case: 13-60245 Document: 00512635831 Page: 8 Date Filed: 05/20/2014 No. 13-60245 we review a holding of the Tax Court that the Commissioner correctly determined the amount of a taxpayer’s unreported income. 12 B. Burden of Proof Taxpayers who contest the Commissioner’s determinations of deficiencies have the burden of proving that such determinations are erroneous. 13 Although the Commissioner must adduce some evidence that a taxpayer has engaged in activity generating unreported income, the taxpayer still must prove that the Commissioner’s determinations are erroneous. 14 C. Merits As both the Commissioner and the Gunkles have expressed a preference to dispense with oral argument, we decide this appeal on the basis of their briefs and record excerpts and the record on appeal, including the opinion and judgment of the Tax Court. Income received by the agent of a principal is deemed to be the income of the principal and not the income of the agent. 15 It follows that income received by a member of a religious order as the agent of the order, promptly delivered to the order based on the agent’s vow of poverty, is deemed to be the income of the order and not of the agent. 16 Conversely, however, a member of a religious order who earns or receives income therefrom in his individual capacity cannot avoid taxation on that income merely by taking a vow of 12 Id. See also Webb v. Comm’r of Internal Revenue, 394 F.2d 366, 372 (5th Cir. 1968). 13 Yoon, 135 F.3d at 1012; Felt v. Comm’r of Internal Revenue, 433 F. App’x 293, 294 (5th Cir. 2011). 14 Carson v. United States, 560 F.2d 693, 697 (5th Cir. 1977). 15 Md. Cas. Co. v. United States, 251 U.S. 342, 345-48 (1920). 16 See Rev. Rule. 77-290, 1977-2 C.B. 26, 1977 WL 43557. 8  Case: 13-60245 Document: 00512635831 Page: 9 Date Filed: 05/20/2014 No. 13-60245 poverty and assigning the income to that religious order or institution. 17 The same rule applies to entities organized as “corporation soles.” 18 “[A]n individual has received income when he gains complete dominion and control over money or other property, thereby realizing an economic benefit.” 19 Moreover, the Commissioner may use indirect methods to reconstruct the income of a taxpayer who fails to maintain or produce records adequate to allow his correct tax liability to be determined. 20 One common method of such reconstruction involves analyzing bank deposits. 21 Such reconstruction assumes that, except for funds from nontaxable sources, money deposited into the taxpayer’s bank account constitutes taxable income: The taxpayer has the burden of proving otherwise. 22 This rule covers deposits into bank accounts over which the taxpayer has dominion and control and is not limited to deposits made to the taxpayer’s personal account. 23 And, deposits into church accounts are covered by this rule without the need “to disregard the separate existence of the church or to challenge the tax status of the church as an entity.” 24 17See, e.g., Page v. Comm’r of Internal Revenue, 823 F.2d 1263, 1271 (8th Cir. 1987); Pollard v. Comm’r of Internal Revenue, 786 F.2d 1063, 1065-66 (11th Cir. 1986). 18 Gardner v. Commissioner, 2013 WL 892963, at *5-6 (T.C. Mar. 11, 2013). 19 United States v. Curtis, 782 F.2d 593, 596 (6th Cir. 1986). 20 Woodall v. Comm’r of Internal Revenue, 964 F.2d 361, 364 (5th Cir. 1992). 21 Cummings v. Comm’r of Internal Revenue, 410 F.2d 675, 678-79 (5th Cir. 1969). 22 Price v. United States, 335 F.2d 671, 677 (5th Cir. 1964). 23 See, e.g., United States v. Goldberg, 330 F.2d 30, 38 (3rd Cir. 1964). 24See Gardner, 2013 WL 892963, at *5 (applying the rule to deposits into a church account set up as a corporation sole) (quoting Woods v. Commissioner, 1989 WL 134222 (T.C. Nov. 9, 1989), aff’d without pub. op., 929 F.2d 702 (6th Cir. 1991)). 9  Case: 13-60245 Document: 00512635831 Page: 10 Date Filed: 05/20/2014 No. 13-60245 The Gunkles clearly had unrestricted dominion and control over the Pastoral Account. During the tax year at issue, the Gunkles were authorized to make withdrawals from that account, and the periodic statements on the account were mailed to them at their erstwhile home. Bruce had no other bank account and, at his direction, his Social Security payments and retirement pay were deposited directly into the Pastoral Account. Only the Gunkles wrote checks on the Pastoral Account, among which was a relatively large transfer to Sherilyn’s account at the federal credit union. The fact that all checks on the Pastoral Account were written by one of the Gunkles also confirms their dominion and control over it. The same is proved by the use they made of the money from that account to pay for essentially all of their personal costs and expenses: groceries, utilities, maintenance and repair, car loans, and on and on. The Tax Court also concluded correctly that the Gunkles received compensation from the City of Refuge and did not, as they claim, receive the funds as its agents. 25 The Gunkle’s case is best summed up in the words of the Second Circuit when it observed almost 30 years ago: Every year, with renewed vigor, many citizens seek sanctuary in the free exercise clause of the first amendment. They desire salvation not from sin or temptation, however, but from the most earthly of mortal duties—income taxes. 26 The judgment of the Tax Court is, in all respects, AFFIRMED. See, e.g., Gardner, 2013 WL 892963, at *16-17; Page, 823 F.2d at 1271; Pollard, 786 25 F.2d at 1065-66. 26 Mone v. Comm’r of Internal Revenue, 774 F.2d 570, 571 (2nd Cir. 1985). 10 

74 F.3d 599 In the Matter of CAJUN ELECTRIC POWER COOPERATIVE, INC., Debtor.CAJUN ELECTRIC POWER COOPERATIVE, INC. et al., Appellants,v.CENTRAL LOUISIANA ELECTRIC COOPERATIVE, INC. et al., Appellees. No. 95-30760. United States Court of Appeals,Fifth Circuit. Jan. 25, 1996. William Hardy Patrick, III, William H. Patrick, Baton Rouge, LA, John C. Weitnauer, Richard Neal Batson, Alston & Bird, Atlanta, GA, for Cajun Elec. Power Co-op., Inc. R. Patrick Vance, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for American Commercial Terminals. Richard E. Matheny, Gordon, Arata, McCollam & Duplantis, Baton Rouge, LA, Ewell E. Eagan, Jr. and C. Peck Hayne, Jr., Gordon, Arata, McCollam & Duplantis, New Orleans, LA, Alan C. Wolf, New Orleans, LA, for Central Louisiana Elec. Co-op., Inc. Thomas Marx Bondy, William Ruth Kanter, U.S. Dept. of Justice, Civil Division Appellate Staff, Washington, DC, for U.S. on behalf of Rural Utilities Serv. John S. Koppel, U.S. Dept. of Justice, Civ. Div., Washington, DC, for U.S. on behalf of Rural Utilities Serv. and U.S. Dept. of Agriculture. Nicholas F. LaRocca, Jr., Morgan City, LA, for Teche Electric Cooperative, Inc. Tom F. Phillips, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, David J. Messina, Taylor, Porter, Brooks & Phillips, New Orleans, LA, for Gulf States Utilities Co. Appeals from the United States District Court for the Middle District of Louisiana. ON PETITIONS FOR REHEARING AND SUGGESTIONS FOR REHEARING EN BANC (Opinion November 20, 1995, 5th Cir., 1995, 69 F.3d 746). Before REYNALDO G. GARZA, BARKSDALE and EMILIO M. GARZA, Circuit Judges. ORDER OF THE COURT: 1 Taking the petitions suggesting rehearing en banc as petitions for rehearing, said petitions for rehearing are hereby GRANTED as follows: 2 "After re-reading the stipulation on file in this case, we find the conflicts of interest within the members of the Board of Cajun Electric Power Cooperative, Inc., to be such that the court below was correct in the appointment of a trustee. We therefore withdraw all of section IV of the prior opinion found at 69 F.3d 746 and we adopt the reasoning of the dissent in its place. 3 The appointment of a trustee is therefore AFFIRMED."

322 S.W.3d 548 (2010) The BUSINESS BANK OF SAINT LOUIS, Appellant, v. OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, Respondent. No. ED 93569. Missouri Court of Appeals, Eastern District, Division Five. May 4, 2010. Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 2010. Application for Transfer Denied August 31, 2010. *549 Steven Schwartz, Matthew G. Koehker, Brown & James, P.C., St. Louis, MO, for Appellant. Robert D. Blitz, Ellen Dunne, Colleen C. Jones, Douglas A. Stockenberg, St. Louis, MO, for Respondent. ROY L. RICHTER, Judge. The Business Bank of St. Louis ("Bank") appeals the trial court's judgment granting Old Republic National Title Insurance Company's ("Old Republic") motion for summary judgment. Finding no error, we affirm. I. BACKGROUND This case concerns the scope of an agency agreement between two title companies, Old Republic and Hillsboro Title Company ("Hillsboro"). Old Republic is a Minnesota corporation with offices in Clayton, Missouri, and Hillsboro is a Missouri corporation with its principal place of business in Hillsboro, Missouri. Both companies are in the business of issuing title commitments and title insurance policies. Old Republic issues commitments and policies for real estate in several states, including Missouri. On January 28, 1994, Old Republic and Hillsboro entered into an agency agreement titled "Agreement for Appointment of Policy Issuing Agent for Old Republic National Title Insurance Company" ("Agency Agreement"). The Agency Agreement appointed Hillsboro as a title policy-issuing agent for Old Republic. The disagreement at issue stems from a different agreement between Hillsboro and three other parties, including Bank, titled "Construction and Disbursing Escrow Agreement" ("Construction Escrow Agreement"). The Construction Escrow Agreement relates to the construction of a subdivision on property for which Hillsboro, as Old Republic's agent, issued a title insurance commitment.[1] Bank ultimately sued Old Republic and Hillsboro for Hillsboro's *550 acts in connection with the Construction Escrow Agreement on the theory that Hillsboro was acting as Old Republic's express and/or apparent agent when it committed the acts in question. Since this case concerns the scope of the Agency Agreement between Old Republic and Hillsboro, we first set forth some terms of that Agreement. Section I of Hillsboro's and Old Republic's Agency Agreement is titled "Appointment of Agent," and provides as follows: [Old Republic] appoints [Hillsboro] a policy issuing agent for [Old Republic] for the purpose of signing, countersigning and issuing commitments, binders, title reports, certificates, guarantees, title insurance policies, endorsements and other agreements under which [Old Republic] assumes liability for the condition of title ... covering real estate located in the following county or counties: Franklin, Jefferson, Ste. Genevieve, Washington & St. Francois in the state of Missouri. Section III is titled "Duties of Agent" and provides, in pertinent part, that Hillsboro shall: A. Receive and process applications for title insurance and issue policies in a timely, prudent and ethical manner with due regard to recognized title insurance underwriting practices and in accordance with the rules and instructions of [Old Republic], as well as in conformity with state and local laws and practice; B. Maintain and preserve, in a separate file on each order for title insurance placed with [Hillsboro], a copy of the title insurance forms issued in that transaction, and all supporting documents on which the determination of insurability is made, including, but not limited to, affidavits, lien waivers, survey plats, searches, examinations and work sheets; C. Maintain an accurate register of title insurance forms; D. Assume full responsibility for the collection of all premiums, fees and charges attributable to the issuance of title insurance forms hereunder; E. Keep safely in an account separate from [Hillsboro's] operating accounts all funds received by [Hillsboro] from any source in connection with transactions which [Old Republic's] policy is involved, disburse said funds only for the purposes for which the same were entrusted, and reconcile all such accounts not less frequently than monthly.... Section VII, titled "Responsibility for Loss," provides that Hillsboro shall be responsible, in part, for: D. The improper closing or attempted closing by [Hillsboro] including but not limited to ... (2) failure to disburse properly or close in accordance with escrow or closing instructions, and/or (3) misappropriation of escrow or closing funds by [Hillsboro], its officers or employees.... In addition to the Agency Agreement, Old Republic provided its policy-issuing agents—including Hillsboro—a document titled "Escrow, Closing and Settlement Services." The document stated, in part, that "[e]scrow services as used in this article refers to a wide variety of services which are related to closing real estate transactions ... and disbursing construction loan proceeds." It goes on to state that: Providing escrow services can be a significant benefit to the title insurance agency business, however, it can expose the agent and the Company to significant losses, both within and beyond the *551 coverage of the title insurance policy. Agents are therefore not authorized to close transactions on behalf of the Company without specific authorization to do so.... Any losses suffered by the Company as a result of any negligent or unauthorized closing services will be the responsibility of the Agent. On September 8, 2004, Hillsboro entered into the Construction Escrow Agreement that is the source of this litigation. Pursuant to the Construction Escrow Agreement, Hillsboro agreed to act as escrowee with respect to a construction project ("the Project"). The letterhead on the Construction Escrow Agreement displayed only Hillsboro's name and address. The other parties to the Agreement were Beaker LLC, the Project's owner, Lawless Homes, Inc. the contractor, and Bank, the mortgagee and financier. Bank deposited approximately $4.2 million with Hillsboro, about $2.4 million of which was allocated for construction costs. The contract provided that Hillsboro would receive $12,430 for its disbursing fee. Old Republic was not a signatory to the Construction Escrow Agreement. Hillsboro also issued a title insurance commitment for the Project on September 13, 2004, five days after it entered into the Construction Escrow Agreement. The commitment displayed Hillsboro's name and address at the top and also stated: "Agent for: Old Republic National Title Insurance Company." Hillsboro ultimately did not issue a title insurance policy on the Project because the construction disbursing process, the subject of the Construction Escrow Agreement, was never completed. On July 5, 2007, Bank filed a four-count petition against Hillsboro and Old Republic based on Hillsboro's performance of its duties under the Construction Escrow Agreement. The petition alleged that Hillsboro had disbursed funds in violation of the Construction Escrow Agreement, and that as a result Lawless Homes and others were paid for work that was not performed. Consequently, Bank alleged that its collateral was worth less than its construction loans. Bank charged Hillsboro and Old Republic with negligence, breach of fiduciary duty, breach of contract, and suit on a note. The petition premised Old Republic's liability on an agency theory, both express and apparent. Bank alleged that Hillsboro had express authority to disburse escrow funds, and that Old Republic knowingly caused or permitted Hillsboro to hold itself out to the public as Old Republic's agent in the construction loan disbursal capacity. Old Republic filed a motion for summary judgment and alleged that Hillsboro was neither its express nor apparent agent with respect to the Construction Escrow Agreement. The trial court granted Old Republic's motion for summary judgment. It held that Hillsboro was Old Republic's agent "for the limited purpose of issuing title insurance commitments and policies under which Old Republic `assumes liability for the condition of title [to real estate].'" To the extent that the Agency Agreement permitted Hillsboro to engage in escrow services, the trial court found them limited to those "necessary and incidental to the issuance of title commitments and policies." Bank appeals. II. DISCUSSION Appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable to the party against whom judgment has been entered. Id. "Summary judgment is appropriate where there is no genuine issue as to any material fact and *552 the moving party is entitled to judgment as a matter of law." Schwab v. Nat'l Dealers Warranty, Inc., 298 S.W.3d 87, 89 (Mo.App. E.D.2009). For ease of analysis, we address the Bank's first two points together. In its first and second points on appeal, the Bank argues that the trial court erred in entering summary judgment because there is a genuine issue of material fact as to whether an express or an implied agency relationship existed between Old Republic and Hillsboro. We disagree. Whether a principal-agent relationship exists is generally a question of fact. Ritter v. BJC Barnes Jewish Christian Health Sys., 987 S.W.2d 377, 384 (Mo.App. E.D.1999). "However, this relationship is a question of law for the court to determine when the material facts are not in dispute, and `only one reasonable conclusion can be drawn from the material facts.'" Id. (quoting Johnson v. Bi-State Dev. Agency, 793 S.W.2d 864, 867 (Mo. banc 1990)). There are three requisites to establishing an agency relationship: (1) the agent holds the power to alter legal relations between the principal and third parties; (2) the agent is a fiduciary with respect to matters within the scope of agency; and (3) the principal has the right to control the conduct of the agent with respect to matters entrusted to the agent. State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. banc 2002); Bluehaven Funding, LLC v. First Am. Title Ins. Co., No. 4:06CV1425SNLJ, 2009 WL 1421207, at *7 (E.D.Mo. May 20, 2009). Old Republic and Hillsboro both acknowledge that Hillsboro is Old Republic's agent for the purpose of issuing title insurance commitments and policies. As Hillsboro's principal, Old Republic is responsible for Hillsboro's acts and agreements that are within Hillsboro's actual or apparent authority. Nichols v. Prudential Ins. Co. of Am., 851 S.W.2d 657, 661 (Mo. App. E.D.1993). Actual authority may be express or implied. Id. Express authority exists when the principal explicitly tells the agent what to do. Id. The Agency Agreement appointed Hillsboro as a policy issuing agent specifically "for the purpose of signing, countersigning and issuing commitments, binders, title reports, certificates, guarantees, title insurance policies, endorsements and other agreements under which [Old Republic] assumes liability for the condition of title...." There is no evidence in the record that Old Republic explicitly told or authorized Hillsboro to act as escrowee pursuant to the Construction Escrow Agreement. Moreover, Construction loan disbursal is not related to the condition of title, and therefore is outside the scope of the Agency Agreement. The Bank then cites the fact that Old Republic expressly authorized Hillsboro to perform escrow services in connection with transactions where Hillsboro issued title insurance commitments on behalf of Old Republic. Further, the Bank asserts that the Construction Escrow Agreement was intimately linked to a transaction where Hillsboro issued a title insurance commitment for Old Republic. Therefore, Bank asserts that Hillsboro was acting as Old Republic's express agent with respect to the Construction Disbursal Agreement. The Bank is correct in that Old Republic granted Hillsboro the authority to conduct escrow services in connection with its issuance of title insurance commitments. Section E. under "Duties of Agent" states that Hillsboro shall "[k]eep safely in an account... all funds received by [Hillsboro] from any source in connection with transactions which [Old Republic's] policy is involved...." The Bank fails to recognize, *553 however, that performing escrow duties in connection with issuing title insurance commitments is separate and distinct from acting as an escrowee pursuant to a construction loan disbursal. A recent decision from the Eastern District of Missouri illustrates this point. In Bluehaven Funding, LLC v. First Am. Title Ins. Co., First American Title and Capital Title entered into an agency agreement in 1999 whereby First American appointed Capital Title as its agent for the limited purpose of issuing title insurance policies. 2009 WL 1421207, at *2, 3. In 2002, several plaintiffs placed $2.4 million in a construction loan escrow account with Capital Title. Id. at *4. When the funds were misappropriated, the plaintiffs attempted to hold First American Title liable on the theory that Capital Title had acted as First American Title's agent in misappropriating the funds. Id. The District Court rejected the plaintiffs' agency theory. It stated that: Ultimately, the transactions that are the subject of plaintiffs' complaint cannot be said to be within the scope of authority granted by [First American Title] to Capital Title, whether actual or apparent, because none of the transactions involved the procurement or issuance of title insurance from [First American Title]. Although Capital Title was indeed the agent for [First American Title], the transactions here were "on the side." Id. at *9.[2] Like Capital Title's acts in Bluehaven, Hillsboro's transactions and duties under the Construction Escrow Agreement were "on the side." Old Republic was not a party to the Construction Escrow Agreement and did not have the right to control Hillsboro's actions with respect to that Agreement. Also as in Bluehaven, the Agency Agreement between Hillsboro and Old Republic expressly states that Hillsboro is Old Republic's agent for the limited purpose of issuing title commitments and policies. Bank again attempts to argue that the parties' course of conduct shows that escrow services are a necessary and incidental aspect of carrying out Hillsboro's express authority to issue title commitments and policies. As already discussed, the Agency Agreement permitted Hillsboro to perform only escrow services that related to issuing title insurance commitments and policies. The Construction Escrow Agreement, in contrast, governs the disbursal of funds for a construction project and clearly is not related to title insurance. Bank also points to Old Republic's ability to audit Hillsboro's escrow records, including construction disbursement escrows, as proof that Hillsboro acted as Old Republic's express agent. Section XL A. of the Agency Agreement states that "[Hillsboro] does hereby grant [Old Republic] the right at any reasonable time or times to audit all financial and business records relating to any escrow closing or settlement functions conducted by [Hillsboro]." The record also contains evidence that Old Republic audited Hillsboro's escrow records, including several construction disbursement files, and issued Hillsboro "comments and recommendations" based on the auditor's findings. We do not believe that Old Republic's periodic audits establish the requisite control for an agency relationship. A full reading of Section XI of the Agency Agreement, which provides for the periodic audits, is instructive on this issue: *554 [Hillsboro] hereby agrees and authorizes [Old Republic] to conduct, at [Hillsboro's] option: Periodic audits of [Hillsboro's] policy inventory, title insurance files and any material, files, records or accounts, including financial and business records, relating to the issuance of title insurance forms. In addition, although it is agreed that any escrow or settlement business responsibility is strictly that of [Hillsboro], it is recognized that because [Old Republic] issues insured closing services letters which cause [Old Republic] to indemnify third parties against loss resulting from [Hillsboro's] errors, omissions or misconduct (and for which [Hillsboro] acknowledges total liability), [Hillsboro] does hereby grant [Old Republic] the right at any reasonable time or times to audit all financial and business records relating to any escrow closing or settlement functions conducted by [Hillsboro]. (emphasis added). Primarily, this section explicitly states that Hillsboro assumes responsibility for any escrow or settlement business. Further, it recognizes that Hillsboro provides escrow services that are separate and distinct from those it conducts on Old Republic's behalf in conjunction with issuing its title insurance commitments. In acknowledging these separate escrow services, the Agreement affords Old Republic a limited right to audit them in order to protect its interests in issuing closing services letters. This limited right to audit all of Hillsboro's escrow files in no way equals the requisite level of control for an agency relationship. Finally, it is undisputed that Old Republic was not a party to the Construction Escrow Agreement. Unlike the title insurance commitment that Hillsboro issued for the Property, the Construction Escrow Agreement does not designate Hillsboro as Old Republic's agent. Moreover, Old Republic did not receive a fee or any portion of a fee for Hillsboro's services under the Construction Escrow Agreement. For all of these reasons, Old Republic did not grant Hillsboro express authority to act as escrowee pursuant to the Construction Escrow Agreement. Similar to its argument regarding express agency, Bank offers a litany of reasons that Hillsboro had implied authority to act as Old Republic's agent with respect to the Construction Escrow Agreement. Among other things, Bank argues that Hillsboro's and Old Republic's course of conduct demonstrates that Old Republic planned for Hillsboro to perform escrow services, and that Old Republic acquiesced to Hillsboro's performing its duties pursuant to the Construction Escrow Agreement. Bank relies on many of the same theories in support of its implied agency argument as in its express agency one. "Implied authority consists of those powers incidental and necessary to carry out the express authority." Hardcore Concrete, LLC v. Fortner Ins. Servs., Inc., 220 S.W.3d 350, 355 (Mo.App. S.D.2007) (quoting Nichols v. Prudential Ins. Co. of America, 851 S.W.2d 657, 661 (Mo.App. E.D.1993)). "Implied powers, like any powers, must be bottomed on some act or acquiescence of the principal, express or implied." Dudley v. Dumont, 526 S.W.2d 839, 844 (Mo.App. E.D.1975). Hillsboro has not produced any evidence from which a reasonable juror could conclude that its escrow duties under the Construction Escrow Agreement were necessary and incidental to carrying out its express authority to sell title insurance commitments. See Bluehaven, 594 F.3d at 1059. We have already discussed why Hillsboro's duties as escrowee for a construction loan disbursal constitute side duties, and are not necessary or incidental to the issuance of title insurance commitments. *555 See Bluehaven, 2009 WL 1421207, at *9; see also Nat'l Mortgage Warehouse, LLC v. Bankers First Mortgage Co., Inc., 190 F.Supp.2d 774, 779 (D.Md.2002) (stating that a title-issuing agent may wear "two hats," one as an agent to issue title insurance policies and another to conduct closing services; in such cases, "the title insurer is responsible only for the title insurance issued; it cannot be held liable for the agent's participation in related closings or provision of escrow services."). Again, Hillsboro had express authority only to issue title insurance commitments and policies. Issuing title insurance policies necessitated Hillsboro's performing certain escrow services; for instance, holding a buyer's down payment pending closing. Issuing the title policies did not, however, necessitate Hillsboro's acting as an escrowee pursuant to a construction loan disbursal agreement. Most importantly, the Bank cannot argue that Hillsboro had express or implied authority to perform services which the "Escrow, Closing and Settlement Services" document expressly excluded from the agency relationship. The document—issued by Old Republic to Hillsboro and all of its title-issuing agents—states as follows: Escrow, closing and settlement services ("escrow services") are service lines which may be offered in conjunction with title insurance orders or separately. Escrow services as used in this article refers to a wide variety of services which are related to real estate transactions... and disbursing construction loan proceeds.... [P]roviding escrow services can be a significant benefit to the title insurance agency business, however, it can expose the agent and the Company to significant losses, both within and beyond the coverage of the title insurance policy. Agents are therefore not authorized to close transactions on behalf of the Company without specific authorization to do so .... (emphasis added). Hillsboro has pointed to no specific authorization from Old Republic to perform construction loan disbursals. Because Old Republic did not expressly grant Hillsboro the authority to enter into the Construction Escrow Agreement, and because the duties under the Agreement were not necessary and incidental to carrying out its express authority, the Bank's points one and two are denied. In its third point on appeal, the Bank argues that the trial court erred in entering summary judgment because there was a genuine issue of material fact as to whether an apparent authority relationship existed between Old Republic and Hillsboro. "Apparent authority exists where a principal's manifestations to a third party have created a reasonable belief in the third party that an agent is acting for the principal, or where the principal is fully aware that another is acting as his agent but does nothing to correct the misconception." The Bar Plan v. Cooper, 290 S.W.3d 788, 792 (Mo.App. E.D.2009). The Bank asserts that Old Republic created an impression of apparent authority because Old Republic, through Hillsboro, issued a title commitment to the Bank as part of the same construction loan transaction. The Bank also argues that Old Republic created apparent authority simply by allowing Hillsboro to act as its title agent. Hillsboro asserts that it is customary for title agents to perform escrow services, and that Old Republic knew Hillsboro's customers expected Hillsboro to perform them. On September 13, 2004, Hillsboro issued the Bank a title commitment *556 that clearly indicated it was acting as Old Republic's agent. The Bank, however, received the title commitment five days after it had entered into the Construction Escrow Agreement with Hillsboro. In determining the existence and scope of apparent agency, the focus is on a third person. The Bar Plan, 290 S.W.3d at 792 (quoting Barton v. Snellson, 735 S.W.2d 160, 162 (Mo.App. E.D.1987)). Since Old Republic's name had not come to the Bank's attention when it signed the Construction Escrow Agreement, it could not have believed Hillsboro was acting on Old Republic's behalf at that time. Moreover, "apparent authority is created by the conduct of the principal which causes a third person reasonably to believe that another has the authority to act for the principal." Nichols, 851 S.W.2d at 661. With respect to the Construction Escrow Agreement, Old Republic did nothing to convey the impression to the Bank that Hillsboro had authority to act on its behalf. Finally, we have already explained that Hillsboro's permitted escrow services—those conducted in connection with issuing title insurance policies—were separate and distinct from the construction loan escrow services. Point three is denied. KENNETH M. ROMINES, C.J., and WILLIAM L. SYLER, Sp. J., concur. NOTES [1] As will be discussed, no title insurance policy was issued on the property. [2] On appeal to the Eighth Circuit, that Court affirmed the District Court's "ultimate conclusion that Capital Title lacked such authority." Bluehaven Funding, LLC v. First American Title Ins. Co., 594 F.3d 1055, 1059 (8th Cir.2010).

851 P.2d 1138 (1993) 316 Or. 431 In re Complaint as to the CONDUCT OF Rodney Randall TAYLOR, Accused. OSB 89-71; SC S37525. Supreme Court of Oregon, In Banc. Submitted on the Record March 5, 1993. Decided May 27, 1993. *1139 PER CURIAM. A trial panel of the Oregon State Bar Disciplinary Board found the accused guilty of numerous violations of the disciplinary rules governing lawyers and decided that he should be disbarred. This matter is here on de novo review, ORS 9.536(2) and (3), and is submitted on the record without briefing or oral argument, pursuant to ORAP 11.25(3)(B). The Bar's complaint contains six charges of misconduct. Our findings follow. The first two charges are that the accused has been convicted of several crimes and that he should be disciplined under DR 1-102(A)(2)[1] and ORS 9.527(2).[2] The accused has been convicted in federal court of two felonies involving drugs: possession with intent to distribute marijuana; and conspiracy to manufacture, possess, and distribute marijuana, 21 U.S.C. §§ 841(a)(1) and 846. The accused also has been convicted of violating 26 U.S.C. § 7201 ("attempting] to evade or defeat a tax" by not filing an income tax return), a felony.[3] Neither drug conviction was simply a conviction for possession of a controlled substance. One conviction was for conspiracy to manufacture, possess, and distribute marijuana. One was for possession with intent to distribute marijuana. Trafficking in controlled substances is a serious crime. See In re Jaffee, 311 Or. 159, 164, 806 P.2d 685 (1991) (out-of-state lawyer who passed Oregon bar examination refused admission because he had been convicted of a felony, manufacturing a controlled substance, marijuana). The failure to file an income tax return was an attempt to evade or defeat a tax by not filing a tax return. The three convictions establish criminal conduct that reflects adversely on the accused's honesty, trustworthiness, and fitness to practice law. DR 1-102(A)(2). The third, fourth, and fifth charges are that the accused misappropriated funds from several decedents' estates. We find that the accused intentionally took $3,824 from one estate, $3,400 from another, and $8,818 from a third, in violation of DR 1-102(A)(3)[4] and DR 9-101(B)(3).[5] The sixth charge is that the accused failed to cooperate in the bar's investigation of his alleged wrongdoing by not signing *1140 a power of attorney to allow the Internal Revenue Service to disclose certain information, in violation of DR 1-103(C).[6] The accused refused to sign a power of attorney. This was necessary to assist the Lane County Local Professional Responsibility Committee in its investigation of the accused's conduct. The accused never asserted any right or privilege to justify his failure to respond to the committee's request for the power of attorney. We find that the accused intentionally violated DR 1-103(C). SANCTION In recent years, we have looked to the American Bar Association Standards for Imposing Lawyer Sanctions (1986) (ABA Standards) in determining what sanction is appropriate in bar disciplinary proceedings. ABA Standard 5.11 states that disbarment generally is appropriate when a lawyer engages in the "sale, distribution or importation of controlled substances." ABA Standard 4.1 states that disbarment generally is appropriate "when a lawyer knowingly converts client property and causes injury or potential injury to a client." The accused's acts were intentional. The estates suffered financial loss. There is but one mitigating factor, the absence of a prior disciplinary record. Even apart from his conviction for income tax evasion, it is clear that disbarment is the appropriate sanction. The accused is disbarred. NOTES [1] DR 1-102(A)(2) provides: "It is professional misconduct for a lawyer to: "**** * "(2) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law." [2] ORS 9.527(2) provides: "The Supreme Court may disbar, suspend or reprimand a member of the bar whenever, upon proper proceedings for that purpose, it appears to the court that: "* * * * * "(2) The member has been convicted in any jurisdiction of an offense which is a misdemeanor involving moral turpitude or a felony under the laws of this state, or is punishable by death or imprisonment under the laws of the United States * * *." [3] The accused was suspended from the practice of law on November 6, 1990, pursuant to BR 3.4(d). [4] DR 1-102(A)(3) provides: "It is professional misconduct for a lawyer to: "***** "(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation." [5] DR 9-101(B)(3) provides: "A lawyer shall: ******* "(3) Maintain complete records of all funds, securities and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the lawyer's client regarding them." [6] DR 1-103(C) provides: "A lawyer who is the subject of a disciplinary investigation shall respond fully and truthfully to inquiries from and comply with reasonable requests of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers, subject only to the exercise of any applicable right or privilege."

J-S28001-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: J.V., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: A.D., NATURAL MOTHER : : : : : : No. 309 MDA 2020 Appeal from the Dispositional Order Entered January 15, 2020 In the Court of Common Pleas of Lycoming County Juvenile Division at No(s): CP-41-DP-0000001-2020 BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY BOWES, J.: FILED AUGUST 14, 2020 A.D. (“Mother”) appeals the order of adjudication and disposition entered on January 15, 2020, which finds, inter alia, that she perpetrated child abuse against her infant son, J.V.1 We affirm. J.V. was born in October 2019. The juvenile court summarized the procedural and factual history that began approximately two months later: On the morning of December 4, 2019, at approximately 7:52 a.m., Mother contacted 911 and reported that [J.V.] was unresponsive. [J.V.] was first rushed to Jersey Shore Hospital, and then taken to Geisinger Medical Center by life flight and there admitted to the pediatric intensive care unit (“PICU”). [J.V.]’s treating physician made initial findings of retinal hemorrhage and brain swelling [rib fractures] and expressed concern that the injuries appeared to result from non-accidental trauma. Mother and [Father] were subject to questioning by both police and a Lycoming County Child and Youth Services (“CYS”) caseworker on the evening of December 4. Thereafter, on January 2, 2020, [J.V.] ____________________________________________ 1The juvenile court also found that T.V., the father of J.V., perpetrated child abuse. N.T., 1/15/20, at 47-48. Father did not appeal. J-S28001-20 was transferred from the PICU to the children’s unit, where his supervision by medical staff decreased, allowing his parents to regain direct care and access. On January 3, 2020, . . . CYS commenced the instant action by filing . . . a petition seeking that [J.V.] be placed in protective custody at Geisinger Medical Center, as the parents were subject to ongoing criminal and Child Protective Services (“CPS”) investigations. On the same date, the court granted an order for emergency protective custody, pending a full hearing. Following an evidentiary hearing held January 6, 2020, the court issued a recommendation for shelter care, finding it in the interest of the welfare of the child. The court granted CYS legal and physical custody of [J.V.], with contact by the parents limited to supervised visits. A dependency hearing was thereafter held on January 15, 2020, at which the court considered CYS’s dependency petition alleging that [J.V.] was a victim of child abuse as defined at 23 Pa.C.S. § 6303, and CYS’s motion for finding of aggravated circumstances. Following the dependency hearing, at which both parents were present and represented by counsel, the court issued an order of adjudication and disposition entering a finding of abuse and holding that [J.V.] was a dependent child. The court additionally made an aggravated circumstances finding under 42 Pa.C.S. § 6302, determining that [J.V.] had been a victim of physical abuse resulting in serious bodily injury, sexual violence, and/or aggravated neglect perpetrated by both parents. Juvenile Court Opinion, 3/10/20, at 2-3 (footnotes and unnecessary capitalization omitted). On February 14, 2020, Mother filed a timely notice of appeal from the adjudication and disposition and a concise statement of errors complained of -2- J-S28001-20 on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). 2 She presents three issues for our review: 1. Whether the [juvenile] court erred in making a finding of abuse as defined at 23 Pa.C.S. § 6303 against [Mother] as there is no evidence Mother harmed the child[?] 2. Whether the [juvenile] court erred in making a finding of abuse as defined at 23 Pa.C.S. § 6303 against [Mother] as there was no evidence [Mother] observed or was aware of any harm being done to the child[?] 3. Whether the [juvenile] court erred in granting the Agency’s motion for a finding of aggravated circumstances as it pertains to [Mother] as there is no evidence [Mother] abused the child[?] ____________________________________________ 2 Although Mother conflates the two orders in the argument section of her brief, Mother did not appeal the finding of aggravated circumstances, which is a collateral order appealable as of right. See In re R.C., 945 A.2d 182, 184 (Pa.Super. 2008). Thus, that order is not before us. See e.g., Interest of M.H., 1286 EDA 2019, 2019 WL 6716291, at *2 (Pa.Super. 2019) (observing, “Mother did not appeal the aggravated circumstances order, but timely filed the instant appeal regarding the adjudication and dispositional order.”); Pa.R.A.P. 126(b)(2) (“Non-precedential decisions [filed after May 1, 2019] may be cited for their persuasive value”). To the extent that we would confront the merits of the order finding aggravated circumstances against Mother, we would affirm it for the reasons cogently explained by the juvenile court, The [c]ourt may find aggravated circumstances when “the child or another child of the parent has been the victim of physical abuse resulting in serious bodily injury, sexual violence or aggravated physical neglect by the parent.” The severity of [J.V.]’s injury and the likelihood that those injuries will be permanent justified a finding of physical abuse resulting in serious bodily injury and the entry of the Aggravated Circumstances Order. Juvenile Court Opinion, 3/10/20, at 7 (footnotes omitted). -3- J-S28001-20 Mother’s brief at 7.3 We review the juvenile court’s determination of abuse for an abuse of discretion. In the Interest of J.M., 166 A.3d 408 (Pa.Super. 2017). As the alleged abuse occurred in December 2019, the current version of the Child Protective Service Law (“CPSL”), which became effective on June 12, 2018, controls our review. The statute defines child abuse, in relevant part, as follows: (b.1) Child abuse.--The term “child abuse” shall mean intentionally, knowingly or recklessly[4] doing any of the following: ____________________________________________ 3J.V.’s guardian ad litem, Angela Lovecchio, Esquire, mailed a letter to this Court stating that she did not intend to file a brief. 4 The CPSL refers to 18 Pa.C.S. § 302 with respect to the definitions of intentionally, knowingly, and recklessly. 18 Pa.C.S. § 302(b) provides as follows: (1) A person acts intentionally with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. (2) A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and -4- J-S28001-20 (1) Causing bodily injury to a child through any recent act or failure to act. .... (8) Engaging in any of the following recent acts: .... (iii) Forcefully shaking a child under one year of age. .... 23 Pa.C.S. § 6303(b.1) (footnote omitted). Bodily injury is defined as “[i]mpairment of physical condition or substantial pain.” 23 Pa.C.S. § 6303(a). In In the Interest of J.R.W., 631 A.2d 1019, 1024 (Pa.Super. 1993), we explained that, pursuant to the doctrine of incorporation, the Juvenile Act’s definition of dependent child subsumed the definition of child abuse outlined ____________________________________________ (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. (3) A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. 18 Pa.C.S. § 302(b). -5- J-S28001-20 in the CPSL. Thus, we stated the two laws “must be applied together in the resolution of child abuse complaints.” Id. at 1023. We reasoned, The Legislature intended a detailed and specific definition of abuse to leave no doubt as to the capacity of the trial court, which in this case can only be the Juvenile Court, to make a finding and determination that a child has been abused. In its capacity as a trial judge, the Juvenile Court judge will look and must look to the above definition of child abuse in a case referred by the child protective service agency to the Court under petition for review of dependency when child abuse has been alleged. Id. In addition to establishing the pertinent definition of child abuse, the court in J.R.W. also stressed that the juvenile court’s determination of whether child abuse occurred must be supported by clear and convincing evidence. Id. [T]he clear and convincing evidence necessary to find dependency, [sic] has been imposed by the Legislature as the standard which the Juvenile Court must apply in deciding abuse cases. . . . There is no conflict, constitutional or otherwise, with the clear and convincing evidence standard imposed by the Act to establish child abuse. Id.; see also In re L.Z., supra at 1174. Moreover, 23 Pa.C.S. § 6381 provides, in part: (d) Prima facie evidence of abuse.--Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child. 23 Pa.C.S. § 6381. -6- J-S28001-20 Mother argues that the juvenile court erred finding Mother a perpetrator of abuse because CYS did not present evidence that she abused J.V., or that she observed or was aware of any abuse of J.V. Mother’s brief at 16-18. Mother asserts that the juvenile court’s determinations as to abuse were incorrectly based on both Mother and Father caring for J.V. at the relevant time, neither admitting responsibility for J.V.’s injuries, the extremely small nature of Mother’s and Father’s residence, and Father yelling to rouse J.V. Id. at 16. Mother instead maintains that she stated that she was sleeping and that Father stated that he was caring for J.V. at the relevant time. Id. at 16. Mother continues with her argument suggesting that Father further stated that he shook J.V. in an effort to wake him and that there is no evidence that she was aware of these actions. Id. at 16-17. Distinguishing the instant matter from In re L.V., 209 A.3d 399 (Pa.Super. 2019), where the mother noticed physical injury to the child and awaited an upcoming medical appointment, Mother states, “The testimony appears to point to someone else having caused the injuries other than [Mother] and there is no testimony which shows she caused or knew of the injuries and then failed to provide medical care.” Id. at 17. In finding J.V. was the victim of child abuse, the juvenile court reasoned: The [CPSL] defines “child abuse,” in relevant part, as follows: “Causing bodily injury to a child through any recent act or failure to act. . . . Forcefully shaking a child under one year of age.” While the existence of child abuse must be proven by clear and convincing evidence, in certain circumstances the identity of the abuser may be established by prima facie evidence: -7- J-S28001-20 [E]vidence that a child suffered injury that would not ordinarily be sustained but for the acts or omissions of the parent or responsible person is sufficient to establish that the parent or responsible person perpetrated that abuse unless the parent or responsible person rebuts the presumption. The parent or responsible person may present evidence demonstrating that they did not inflict the abuse, potentially by testifying that they gave responsibility for the child to another person about whom they had no reason to fear or perhaps that the injuries were accidental rather than abusive. The evaluation of the validity of the presumption would then rest with the trial court evaluating the credibility of the prima facie evidence presented by the CYS agency and the rebuttal of the parent or responsible person. [In re L.V., 127 A.3d 831, 837-38 (Pa.Super. 2015)] This presumption is specifically applicable when multiple potentially responsible caregivers are involved, as those caregivers will often “circle the wagons” or alternatively point fingers at each other. Due to the pendency of criminal charges, both parents declined to testify at the Dependency Hearing, and consequently offered no evidence rebutting this presumption. Therefore, the [c]ourt found that [J.V.] had suffered abuse at the hands of Mother, because [J.V.] suffered injuries while in the care of Mother and Father, and because [J.V.]’s injuries would not have occurred except for the acts or omissions of Mother and Father. Dr. Bruno’s testimony regarding the likely cause of [J.V.]’s constellation of injuries established by clear and convincing evidence that [J.V.]’s injuries were not accidental, but instead the result of abuse. These injuries include rib fractures, retinal bleeding, bleeding and swelling in the subdural and subarachnoid hemispheres of the brain, ventricle bleeding, and a loss of differentiation between white and gray matter cells within the brain, resulting in potentially irreversible brain damage. Additionally, it is undisputed that Mother and Father were the sole caregivers during the period when the abuse occurred. Ms. Spagnuolo’s summation of Mother and Father’s separate reports regarding the night of December 4 indicates that either parent would have had opportunity to commit the abuse. As neither parent offered rebuttal testimony, the [c]ourt finds that CYS -8- J-S28001-20 established a prima facie case that Mother and Father were the perpetrators of abuse. Juvenile Court Opinion, 3/10/20, at 6-7 (footnotes omitted). The certified record supports the juvenile court’s finding of abuse as perpetrated by Mother. See 23 Pa.C.S. § 6303(b.1); 23 Pa.C.S. § 6381. The record reveals that J.V. suffered significant physical injury while in the exclusive care of Mother and Father. Critically, Pat Bruno, M.D., a member of the pediatric child abuse team at Geisinger Medical Center, testified that J.V. presented subsequent to cardiac arrest and suffered bilateral retinal and subjunctival bleeding and bruising, swelling, bleeding, pressure on the brain, as well as swelling to the neck, and fractures to the first rib. N.T., 1/15/20, at 8-10, 14; Exhibit 1. Specifically, J.V. experienced bleeding between the layer of tissue surrounding the brain and the inner layer of the brain, as well as intraventricular bleeding in the brain. Id. at 9. Additionally, the swelling was so extensive that the back portion of J.V.’s brain was herniating through an opening in the back of the skull, the foramen magnum, and there was also a loss of differentiation of the white and grey matter in the brain. Id. at 9- 10. Moreover, Dr. Pat Bruno, opined that the foregoing injuries were not- accidental in nature. Id. at 13-14, 19; see also N.T., 1/15/20, Exhibit 1. The following exchange occurred at the dependency hearing, Q. Okay. Now, Doctor, I’m gonna ask you if you have an opinion whether or not the injuries you just testified to regarding [J.V.], whether they were accidental or non-accidental in nature? A. They were non-accidental in nature. -9- J-S28001-20 Q. And can you tell us why you have that opinion, what your basis is? A. My basis is the constellation of findings with this child, the fracture of the ribs, the access of – multiple areas of bleeding in the brain, the subarachnoid, the subdural, the swelling of the brain, the bleed into his ventricles, the damage to his brain, the gray matter/white matter issue that I discussed with you. The constellation of injuries in a child that was, otherwise, relatively healthy, did have some feeding issues but otherwise relatively healthy prior to this, this constellation of injuries can be explained by non-accidental trauma. Id. at 13-14. Dr. Bruno noted that the injuries were acute and would have caused immediate signs and symptoms. Id. at 10-11, 17. He further explained, “Those injuries would have occurred . . . immediately prior to one or both of the parents noting th[e] change in the child’s behavior.” Id. at 18- 19. In turn, Dr. Bruno further opined that the injuries suffered by J.V. constituted physical abuse. Id. at 14. Further, as to the extent of the injury to J.V., the records from Geisinger Medical Center note a “severe, un-survivable injury” without indication for neurosurgical intervention. N.T., 1/15/20, Exhibit 1. Dr. Bruno testified that J.V. was no longer exhibiting higher cerebral functioning, and that such cerebral injury was likely irreversible. On direct examination, Dr. Bruno stated: There’s very little motion. [J.V.] does have some movement of his arms and legs; but they said that the reflexes he has are very primitive, brain-stem-type of reflexes. . . . And so the indication was that they were concerned that there weren’t any areas of higher functioning, cerebral-type functioning going on. They indicated that what they saw with him - 10 - J-S28001-20 as far as activity, he’s got . . . a gag reflex; and he has spontaneous respirations. But they indicated that these were probably brainstem functions that we were seeing. He did have an EEG. He has had quite a few EEG’s, and at least one of them has indicated that here was very little electrical activity as far as the cerebrum was concerned. So, you know he suffered, you know, a devastating anoxic injury and probably most of these injuries, at least in the cerebral area, are not gonna be reversible. It’s hard to say, you know, for sure. But that’s what the neurologists are saying, that some of this change is gonna be irreversible. Id. at 13. Elizabeth Spagnuolo, a caseworker in the CYS Assessment Unit, testified that both Mother and Father were the sole caregivers of J.V. during the relevant period of time and neither offered any real explanation as to how J.V. became injured. Id. at 24-26, 29. Instead, they proffered that J.V.’s primary pediatric physician, who had been seeing J.V. approximately every three days due to a failure to gain weight, perhaps missed something. Id. at 26, 31-32. Moreover, their inconsistent accounts of the morning led Ms. Spagnuolo to believe that they were not being entirely honest. Id. at 29. She observed that, while Father reported shouting in an attempt to wake his nonresponsive son, Mother indicated that she did not hear anything unusual prior to finding the child at 7:45 a.m. Id. Ms. Spagnuolo further observed that, based upon the fact that the family’s apartment is “quite small,” both Mother and Father would have been aware of what was going on . . . or at least been able to give more information of what occurred that evening then – or that morning than what they had.” Id. at 29-30. - 11 - J-S28001-20 As confirmed by the forgoing evidence, the certified record supports the juvenile court’s finding of abuse pursuant to 23 Pa.C.S. § 6303(b.1), as perpetrated by both Mother and Father. Accordingly, we do not disturb it. Given the clear and convincing evidence adduced during the hearing, Mother’s claim that she did not abuse J.V., and was not aware of any abuse, strains credulity. That medical assistance was sought quickly after the physical abuse was inflicted does not detract from the court’s finding. Accordingly, we affirm the juvenile court’s order of adjudication and disposition finding child abuse. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 08/14/2020 - 12 - 

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ FELICIA N. JONES, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2016-2381 ______________________ Petition for review of the Merit Systems Protection Board in No. DE-3443-16-0099-I-1. ______________________ Decided: December 9, 2016 ______________________ FELICIA N. JONES, Houston, TX, pro se. STEPHEN FUNG, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respond- ent. Also represented by BRYAN G. POLISUK. ______________________ Before DYK, BRYSON, and REYNA, Circuit Judges. 2 JONES v. MSPB PER CURIAM. Felicia N. Jones petitions for review of a final order of the Merit Systems Protection Board (“MSPB”) dismissing her appeal for lack of jurisdiction. We affirm. BACKGROUND On June 23, 2015, Jones filed a claim with the De- partment of Veterans Affairs (“VA”) for disability compen- sation and related benefits. The VA denied her claim because the military service Jones had alleged did not qualify as “active” service under the statutory definition of a “veteran.” See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Instead of challenging the VA’s denial of her claim at the Board of Veterans’ Appeals, however, Jones filed an appeal with the MSPB. The MSPB administrative judge (“AJ”) dismissed Jones’s appeal for lack of jurisdiction. The AJ first con- cluded that the VA’s denial of Jones’s claim did not fall under any of the appealable agency actions within the MSPB’s statutory purview, which include “a removal, a suspension of more than 14 days; a reduction in grade; a reduction in pay; [or] a furlough of 30 days or less.” J.A. 8 (citing 5 U.S.C. §§ 7512, 7513(d)). The AJ then considered the applicability of any “exceptions to the [MSPB’s] usual jurisdictional limits, such as claims based on the Whistle- blower Protection Act, Veterans Employment Opportuni- ties Act[,] and Uniformed Services Employment and Reemployment Rights Act.” J.A. 9. The AJ found that Jones had failed to allege a “personnel action” reviewable by the MSPB and that she had not alleged that she was an agency employee or applicant for employment. See 5 U.S.C. § 2302(a)(2). The AJ therefore dismissed Jones’s appeal. Jones filed a petition for review with the full MSPB, which affirmed the AJ’s decision in a final order denying her petition. Jones then filed a petition for review in this JONES v. MSPB 3 court. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A). DISCUSSION We review the MSPB’s jurisdictional determinations de novo, but are bound by its factual determinations if supported by substantial evidence. See Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). As a threshold matter, Jones must assert non-frivolous allega- tions that, if proven, would establish the MSPB’s jurisdic- tion. See Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008); Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). To invoke the MSPB’s jurisdiction, a party must al- lege facts that demonstrate an action appealable by statute or regulation to the MSPB. See Garcia, 437 F.3d at 1327–28. The MSPB found that Jones had not alleged that she was an employee, applicant for employment, or other person entitled to appeal to the MSPB, and that the VA’s denial of veterans’ benefits was not an appealable action under any legal authority granting the MSPB jurisdiction. See generally 5 C.F.R. § 1201.3 (summarizing legal sources of the Board’s appellate jurisdiction). We agree. The exclusive course for challenging the VA’s denial of a claim for veterans’ benefits is to file an appeal before the Board of Veterans’ Appeals, not the MSPB. See 38 U.S.C. §§ 511, 7104, 7252. Accordingly, the MSPB’s final order is AFFIRMED COSTS No Costs. 

Bank of Am., N.A. v Shami (2019 NY Slip Op 04901) Bank of Am., N.A. v Shami 2019 NY Slip Op 04901 Decided on June 19, 2019 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 June 19, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department JOHN M. LEVENTHAL, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX VALERIE BRATHWAITE NELSON, JJ. 2017-00541 2017-00542 (Index No. 8372/08) [*1]Bank of America, N.A., respondent, vSolomon E. Shami, appellant, et al., defendants. Lawrence Katz, Valley Stream, NY, for appellant. McCabe, Weisberg & Conway, LLC, New Rochelle, NY (Allison Sanders and Mars Khaimov of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant Solomon E. Shami appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered September 20, 2016, and (2) an order of the same court entered October 3, 2016. The order entered September 20, 2016, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Solomon E. Shami and for an order of reference, and denied the cross motion of the defendant Solomon E. Shami pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. The order entered October 3, 2016, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Solomon E. Shami and for an order of reference, denied the cross motion of the defendant Solomon E. Shami pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned, and appointed a referee to compute the amount due on the mortgage loan. ORDERED that the order entered September 20, 2016, is reversed insofar as appealed from, on the law, those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Solomon E. Shami and for an order of reference are denied, the cross motion of the defendant Solomon E. Shami pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned is granted, and so much of the order entered October 3, 2016, as granted those branches of the plaintiff's motion, denied the cross motion, and appointed a referee to compute the amount due on the mortgage loan is vacated; and it is further, ORDERED that the appeal from the order entered October 3, 2016, is dismissed as academic in light of our determination on the appeal from the order entered September 20, 2016; and it is further, ORDERED that one bill of costs is awarded to the appellant. In May 2008, the plaintiff commenced this action to foreclose a mortgage against Solomon E. Shami (hereinafter the appellant), among others. None of the defendants answered the complaint. The record indicates that following the release of the action from the foreclosure [*2]settlement part on October 6, 2008, there was no further activity in the action for several years, and, on October 23, 2012, the action was marked off the court's active calendar. By notice dated January 22, 2016, the plaintiff moved, inter alia, to vacate the dismissal of the action, to restore the action to the court's active calendar, for leave to enter a default judgment against the defendants, and for an order of reference. The appellant cross-moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. In the orders appealed from, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied the appellant's cross motion. Initially, we note that although the plaintiff moved to vacate the dismissal of the action, on this record, the action was never formally dismissed, as the marking-off procedures of CPLR 3404 do not apply to pre-note of issue actions such as this one (see JPMorgan Chase Bank, N.A. v Mehrnia, 143 AD3d 946, 947; Countrywide Home Loans, Inc. v Gibson, 111 AD3d 875, 875-876; Rakha v Pinnacle Bus Servs., 98 AD3d 657, 658) and, therefore, the plaintiff needed only to move to restore the action to active status (see JPMorgan Chase Bank, N.A. v Mehrnia, 143 AD3d at 947; Reed v Cornell Univ., 101 AD3d 840, 842; Rakha v Pinnacle Bus Servs., 98 AD3d at 658). Notwithstanding the above, CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." The language of CPLR 3215(c) is mandatory in the first instance, inasmuch as it provides that the court "shall" dismiss the complaint when the plaintiff has not sought a default judgment within the requisite one-year period, as the action is deemed to have been abandoned (see Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963; HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671; Giglio v NTIMP, Inc., 86 AD3d 301, 307-308; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625). The statute gives the court discretion only where the plaintiff demonstrates "sufficient cause" as to why the complaint should not be dismissed (Ibrahim v Nablus Sweets Corp., 161 AD3d at 963; see HSBC Bank USA, N.A. v Grella, 145 AD3d at 671). To avoid dismissal of the complaint as abandoned under such circumstances, a plaintiff must offer a reasonable excuse for the delay in moving for leave to enter a default judgment, and must demonstrate that the complaint is potentially meritorious (see Ibrahim v Nablus Sweets Corp., 161 AD3d at 963; Wells Fargo Bank, N.A. v Bonanno, 146 AD3d 844, 845-846; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d at 625). Here, the plaintiff took no proceedings for entry of a default judgment within one year following the appellant's default in the action. In claiming otherwise, the plaintiff refers to matter dehors the record, which will not be considered (see Schondorf v Brookville Energy Partners, 303 AD2d 396). Further, contrary to the plaintiff's contention, its conclusory and unsubstantiated assertions that its delay was attributable to compliance with certain administrative orders instituted after the relevant time period, i.e., more than one year following the appellant's default in the action, and waiting for receipt of additional documentation, were insufficient to excuse the lengthy delay (see BAC Home Loans Servicing, LP v Broskie, 166 AD3d 842, 843; HSBC Bank USA, N.A. v Jean, 165 AD3d 632, 634; Wells Fargo Bank, N.A. v Cafasso, 158 AD3d 848, 850; HSBC Bank USA, N.A. v Grella, 145 AD3d at 672). Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether the plaintiff had a potentially meritorious cause of action (see Federal Natl. Mtge. Assn. v Heilpern, 164 AD3d 654, 656; U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852). Accordingly, the Supreme Court should have granted the appellant's cross motion and denied the subject branches of the plaintiff's motion. LEVENTHAL, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

15 Cal.App.4th 652 (1993) 19 Cal. Rptr.2d 47 THE PEOPLE, Plaintiff and Respondent, v. GLENN RAY ALCORN, Defendant and Appellant. Docket No. F016628. Court of Appeals of California, Fifth District. May 3, 1993. *653 COUNSEL Todd D. Riebe, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Roger E. Venturi and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent. OPINION THAXTER, J. After his motion to suppress evidence was denied, appellant Glenn Ray Alcorn pleaded nolo contendere to one count of possession *654 of methamphetamine in violation of Health and Safety Code section 11378. Pursuant to the terms of a plea bargain, other counts were dismissed, and Alcorn was sentenced to 16 months in state prison. On appeal Alcorn challenges the denial of the suppression motion. FACTS On March 19, 1991, sheriff's deputies from Los Angeles and Kern Counties arrived at the Rosamond Cafe in order to arrest appellant on an outstanding felony warrant issued on March 6, 1991, in Los Angeles County. Appellant was not at the cafe, but the officers contacted Cheryl Klein, appellant's girlfriend. Klein, who lived with appellant, told the deputies appellant was either at their apartment or in Lancaster, a nearby city. Klein accompanied the officers back to the apartment. At some point she was told she would be aiding and abetting if she did not cooperate with the officers. Upon entering the apartment, the officers found appellant sleeping in the bedroom. Appellant was arrested pursuant to the authority of the Los Angeles warrant. After making the arrest, the officers observed narcotics in the apartment. Thereafter, the Kern County deputies obtained a telephonic search warrant based on their observations and searched the apartment. Narcotics, paraphernalia and a loaded handgun were found. Both Klein and appellant were arrested as a result. Klein and appellant were jointly charged with various offenses. At the motion to suppress, Klein argued she had been unlawfully detained at the cafe, that the officers entered the apartment without a warrant and that the arrest warrant did not justify the entry because it was not produced at the hearing. Appellant joined in the motion. Appellant argued he was entitled to see the actual warrant and made numerous demands that it be produced. At the hearing, the arresting officer testified he had been shown a copy of an abstract of the Los Angeles arrest warrant and that sheriff's deputies commonly make arrests on the basis of abstracts. A copy of the computer printout of the abstract was admitted into evidence.[1] The trial court denied the motion as to appellant stating: "The probable cause for the arrest in this case is the discovery of the narcotics in the apartment, not the arrest warrant. In this case, the arrest was warrantless, but amply supported by the items found." (Italics in original.) *655 DISCUSSION Appellant contends his suppression motion should have been granted because the prosecution failed to produce the arrest warrant and therefore could not justify the entry into his apartment. The trial court rejected appellant's argument on the grounds that the seizure of the narcotics and related evidence was based on the search warrant, not the arrest warrant. The court's analysis, however, overlooks the fact that probable cause for the search warrant rested on the officers' observations after they entered the apartment. The officers did not enter the residence pursuant to a search warrant. Respondent concedes that the evidence sought to be suppressed by appellant was "fruit" of the officers' entry to execute the arrest warrant. (1) A warrantless entry into a residence is presumptively unreasonable under the Fourth Amendment. (People v. Cain (1989) 216 Cal. App.3d 366, 370 [264 Cal. Rptr. 339], citing Mincey v. Arizona (1978) 437 U.S. 385, 390 [57 L.Ed.2d 290, 298-299, 98 S.Ct. 2408].) The entry here was not consensual. Thus the prosecution must show the officers were lawfully "at the looking place" when they made their observations. An officer may enter a residence in order to execute a valid arrest warrant if the officer reasonably believes the suspect is inside. (People v. Jacobs (1987) 43 Cal.3d 472, 478-479 [233 Cal. Rptr. 323, 729 P.2d 757].) There is no question the officer here reasonably believed appellant was inside. Klein told the officers appellant was either at the apartment or in Lancaster. Thus the only question is whether the officers had a valid arrest warrant when they entered the apartment. If so, the officers were lawfully in the apartment when they observed the narcotics which led to the search warrant, the discovery of the additional evidence, and appellant's arrest in this case. A. An officer may rely on information received through official channels. (2) It is well settled that an officer may reasonably rely on information received through official channels to support an arrest. An officer may rely on information from other officers within his or her own department and from other departments and jurisdictions. (See United States v. Hensley (1985) 469 U.S. 221, 229-230 [83 L.Ed.2d 604, 612-613, 105 S.Ct. 675]; People v. Conway (1990) 222 Cal. App.3d 806, 811 [271 Cal. Rptr. 832]; Hewitt v. Superior Court (1970) 5 Cal. App.3d 923, 929 [85 Cal. Rptr. 493]; People v. Wohlleben (1968) 261 Cal. App.2d 461, 465 [67 Cal. Rptr. 826].) The general rule is that an officer may rely on the "collective knowledge" of law enforcement to establish probable cause to arrest. (Remers v. Superior *656 Court (1970) 2 Cal.3d 659, 666-667 [87 Cal. Rptr. 202, 470 P.2d 11].) However, when the arresting officer relies upon information gathered by other officers, the court looks to the "total police activity" to test the constitutional reasonableness of the conduct in question. The prosecution must still prove that the arrest (or detention) was constitutionally valid. (Ibid.; see also People v. Ramirez (1983) 34 Cal.3d 541, 551 [194 Cal. Rptr. 454, 668 P.2d 761]; Whiteley v. Warden (1971) 401 U.S. 560 [28 L.Ed.2d 306, 91 S.Ct. 1031].) B. The prosecution must prove the arrest was lawful. Appellant argues the prosecution failed to meet its burden because it did not produce the actual arrest warrant, choosing instead to rely on the abstract. Appellant relies on People v. Romanoski (1984) 157 Cal. App.3d 353 [204 Cal. Rptr. 33], which held the prosecution must produce the actual warrant or a certified copy when the validity of an arrest pursuant to warrant is challenged. In Romanoski, the arresting officer was told by another officer that Romanoski was wanted on an outstanding arrest warrant. When making the arrest, the arresting officer saw items in Romanoski's car linking Romanoski to a recent burglary. Romanoski moved to suppress the evidence. The prosecution presented testimony by the officer who informed the arresting officer of the warrant. He gave conflicting testimony on whether he had ever actually seen the warrant. Neither the original warrant nor a copy or abstract thereof was offered in evidence. The conviction was reversed on the grounds that a defendant has a right to ascertain whether a warrant was valid at the time of arrest and therefore the prosecution was required to produce the warrant upon request by the defendant. The same court which decided Romanoski reexamined it in People v. Armstrong (1991) 232 Cal. App.3d 228 [283 Cal. Rptr. 429]. The Armstrong court first considered the continued validity of Remers v. Superior Court, supra, 2 Cal.3d 659 and its predecessors in light of the United States Supreme Court decision in United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405], which adopted a good faith standard in search and seizure cases. Armstrong presents a careful analysis of the relationship between Leon and Remers and concluded Remers remains valid law in California. "... [W]here an arrest is made on communicated police information of an outstanding arrest warrant, the prosecution if challenged must prove the transmitted arrest warrant information, acted on in good faith by the arresting officer, was in fact received by the transmitting officer." (People v. Armstrong, supra, 232 Cal. App.3d at p. 241.) *657 In evaluating the effect of Leon on Remers, the Armstrong court notes that Leon constitutes recognition by the nation's Supreme Court that the exclusionary rule extracts a significant cost from society and that whenever the rule is applied, it is important to ask whether the cost to society is justified. (Armstrong, supra, 232 Cal. App.3d at pp. 238-239.) This is correct. Recent cases have concluded the exclusionary rule is too costly when an officer has acted in good faith, albeit without probable cause. (See People v. Camarella (1991) 54 Cal.3d 592, 606-607 [286 Cal. Rptr. 780, 818 P.2d 63]; People v. Palmer (1989) 207 Cal. App.3d 663, 666 [255 Cal. Rptr. 55].) Armstrong further notes that "Leon clearly does not validate the fruits of a search in all instances where the arresting officer acted in good faith in the execution of a search warrant. Leon reserved the application of the exclusionary rule in several instances and, thus, did not equate a finding that the searching officer acted in good faith reliance on the existence of a search warrant to a predicate finding of probable cause in all such instances." (Armstrong, supra, 232 Cal. App.3d at p. 240, italics original, fn. omitted.) Leon holds there are four circumstances in which reliance on a warrant would not be objectively reasonable and thus not saved by the good faith rule. Suppression remains appropriate when the issuing magistrate was misled by knowingly or recklessly given false information appearing in the affidavit, when the magistrate wholly abandons the role of an independent judicial officer, when the warrant is so lacking in indicia of probable cause that no reasonable officer would rely on the warrant's constitutional validity, and finally when the warrant is so deficient in its particularity that it would be unreasonable to presume the warrant valid. (United States v. Leon, supra, 468 U.S. at p. 923 [82 L.Ed.2d at pp. 698-699].) Although Armstrong concedes Leon identifies circumstances where good faith belief that a warrant exists is insufficient to justify admission of illegally seized evidence, the analysis in Armstrong centers only on what it believes is the motivating concern in Remers, Ramirez and Whiteley — to protect against manufactured probable cause. (Armstrong, supra, 232 Cal. App.3d at pp. 236-237; see also Whiteley v. Warden, supra, 401 U.S. at p. 568 [28 L.Ed.2d at p. 313]; see also People v. Ramirez, supra, 34 Cal.3d at p. 547.) To protect against such misconduct, Armstrong concludes the prosecution retains the burden of proving the source of information was something other than the imagination of another law enforcement officer. (Armstrong, supra, at p. 237; see also People v. Rice (1967) 253 Cal. App.2d 789, 792-793 [61 Cal. Rptr. 394]; People v. Orozco (1981) 114 Cal. App.3d 435, 444-445 [170 Cal. Rptr. 604].) *658 C. Production of the abstract is sufficient proof of the arrest's validity absent evidentiary challenge by the defendant. (3) Having concluded that Leon does not relieve the prosecution from proving that warrant information transmitted to the arresting officer was not manufactured by the transmitting officer, the Armstrong court considered what type or quantum of proof is required to satisfy the prosecution's burden. The court reexamined its prior decision in Romanoski, concluding that the "rule" announced in Romanoski (requiring production of the actual warrant or a certified copy thereof) was "dictum and supported by inapposite authority." (232 Cal. App.3d at p. 242.) The court disavowed the Romanoski "rule," stating: "The most direct way of proving police do not manufacture probable cause for an arrest, generated because one officer tells the arresting officer an arrest warrant exists, is production of that warrant or a certified copy. This is, however, `not the only way' in which such proposition may be proven. [Citation omitted.] "... Proof that the warrant information precipitating the arrest was not manufactured may be made by circumstantial evidence other than the warrant or a certified copy. [Citations omitted.] ".... .... .... .... .... .... .... "The Remers-Harvey-Madden rule only requires prosecution proof that information justifying the arrest was actually given to the police officer who furnished it to the arresting officer, i.e., proof that the source of the information on which the arrest was based was `"something other than the imagination of an officer"' who did not testify. (Remers v. Superior Court, supra, 2 Cal.3d at p. 666.) The prosecution must simply show that the officer furnishing the information generating the arrest had probable cause to believe the arrest was justified. [Citation omitted.] ".... .... .... .... .... .... .... "We hold that denial of appellant's ... motion was proper on the ground that in-house police manufacture of probable cause for appellant's arrest was circumstantially negated by record proof that the Richmond Police Department had received official information of an `outside misdemeanor warrant' for appellant's arrest...." (People v. Armstrong, supra, 232 Cal. App.3d at pp. 245-246.) The last portion of the analysis in Armstrong is not wholly satisfying. Under Leon and Ramirez an officer acting in bad faith, i.e., manufacturing *659 the existence of a warrant or an officer acting in good faith but with knowledge that one of the four circumstances identified in Leon exists, may not circumvent a warrant's invalidity by asking colleagues ignorant of the constitutional infirmity to execute the warrant. In order to determine whether this occurred, the court must consider the circumstances surrounding the warrant's conception, or as the court in Ramirez has stated, trace the probable cause back to its original source. (Leon, supra, 468 U.S. at p. 923, fn. 24 [82 L.Ed.2d at p. 698], citing Whiteley v. Warden, supra, 401 U.S. at p. 568 [28 L.Ed.2d at p. 313]; People v. Ramirez, supra, 34 Cal.3d at p. 551.) The abstract alone does not enable the court to do so. Although the abstract furnishes a basis for finding that the Kern County officers acted reasonably in relying on existence of a warrant for appellant's arrest, it does not foreclose the possibility that the information transmitted from Los Angeles was false. Further, without at least a copy of the warrant and its supporting affidavit, the court was unable to measure its sufficiency under the Leon standards. Nonetheless, Leon calls for a balancing of the competing interests when deciding whether the exclusionary rule should be applied. Even though the abstract does not absolutely prove the warrant was valid, the abstract does provide sufficiently detailed information from which appellant could have easily obtained a copy of the warrant. The abstract shows the number and date of the warrant, the charges for which the warrant issued, and a judicial officer code. Appellant need only have contacted the Los Angeles County Clerk to obtain copies of the warrant and any supporting documents. From these documents, any constitutional infirmity sufficient to preclude application of the Leon good faith rule would have been evident. We view this as essentially a discovery problem. The information sought is equally available to both parties. The only question is who has the responsibility of producing the warrant document and what is the remedy for the failure to produce it.[2] Requiring the prosecution to produce the actual warrant, or a certified copy, on pain of having evidence suppressed extracts a high cost from society, with no corresponding benefit. The cost seems especially high when there has been no showing that even suggests the warrant is anything less than what the abstract purports. Failure to produce the warrant is not police *660 misconduct. Suppressing evidence simply because of the prosecution's failure to produce the warrant, which is equally available to the defendant, does not further the goals of the exclusionary rule. In today's age of electronic communications and computerized record-keeping, the use and reliance on abstracts are a necessary part of the administration of justice.[3] The abstract is some proof that a warrant exists, although not absolute proof of its validity. An abstract provides sufficient information for a defendant who suspects foul play to trace the source of the probable cause and mount any challenge he or she deems appropriate. We hold that when the prosecution, as here, produces an abstract showing the existence of a facially valid warrant, identifying the warrant with sufficient particularity to allow the defendant to obtain a copy of the warrant and its supporting documents, the prosecution has met its burden of producing evidence. (See Evid. Code, §§ 110, 550.) Because appellant offered no evidence attacking the warrant's validity, the preponderance of evidence showed that the officers entered appellant's apartment pursuant to a valid arrest warrant. Thus, the court did not err in denying the suppression motion. DISPOSITION Judgment affirmed. Martin, Acting P.J., and Harris, J., concurred. NOTES [1] The abstract was offered in evidence by appellant. Thus, no issue is raised regarding its admissibility. [2] If the prosecution has a copy of the warrant and its supporting documents but has simply failed to produce it, a defendant may invoke the general rules of criminal discovery to force production. (See 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, §§ 2493-2495, pp. 2995-2997.) [3] The arresting officer, an eight-year veteran of the Kern County Sheriff's Office, testified that in the regular course and practice of his duties he typically works from information in computer-printed abstracts of arrest warrants.