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836 F.2d 545Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Robert L. BRUCE, Sr., Plaintiff-Appellant,v.BALTIMORE POLICE, Criminal Division, In Complicity with theFBI Washington Office of Criminal Identification,Defendant-Appellee. No. 87-7631. United States Court of Appeals, Fourth Circuit. Submitted Sept. 29, 1987.Decided Dec. 17, 1987. Robert L. Bruce, Sr., appellant pro se. Before DONALD RUSSELL, WIDENER, and JAMES DICKSON PHILLIPS, Circuit Judges. PER CURIAM: 1 A review of the record and the district court's opinion discloses that this appeal from its order denying relief under 42 U.S.C. Sec. 1983 is without merit. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment below on the reasoning of the district court. Bruce v. Baltimore Police, C/A No. 87-644-AM (E.D.Va. June 30, 1987). 2 AFFIRMED.

27 A.3d 116 (2011) 131 Conn.App. 903 HSBC BANK USA, National Association, Trustee (NAAC 2007-2), v. Dahill DONOFRIO et al. No. 32042. Appellate Court of Connecticut. Argued September 12, 2011. Decided September 27, 2011. DIPENTIMA, C.J., and BEACH and PETERS, Js. PER CURIAM. The judgment is affirmed and the case is remanded for the purpose of setting a new law day.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FELICIA MARTIN, : formerly known as Felicia Dantzler, : : Plaintiff, : Civil Action No.: 11-1069 (RC) : v. : Re Document No.: 49 : DISTRICT OF COLUMBIA et al., : : Defendants. : MEMORANDUM OPINION GRANTING DEFENDANT CHARLES BRODSKY’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT I. INTRODUCTION In this employment discrimination action, Plaintiff Felicia Martin, an employee of a District of Columbia regulatory agency, has asserted sex discrimination and related claims against the District and several individuals with whom she has worked. One of the individual defendants, Charles Brodsky, is a man who was the chairman of the board that oversees the regulatory agency. It is Ms. Martin’s theory that, by failing to take any action, Mr. Brodsky aided or abetted the other defendants in taking adverse action against her. Mr. Brodsky has moved to dismiss or, in the alternative, for summary judgment as to each cause of action asserted against him. For the reasons discussed below, the Court will grant Mr. Brodsky’s motion. II. FACTUAL BACKGROUND The Alcoholic Beverage Control Board (the “ABC Board” or the “Board”) is a 7-member body of the D.C. government whose primary function is to administer and enforce the District of Columbia’s alcoholic beverage regulations. See D.C. Code § 25-201 (Supp. 2012). Its duties include issuing alcoholic beverage licenses, conducting inspections of licensees’ premises and records, and responding to complaints about licensees. See id. § 25-201(c). The Alcoholic Beverage Regulation Administration (“ABRA”) is an independent agency of the District of Columbia, whose purpose is “to provide professional, technical, and administrative staff assistance to the Board in the performance of its functions.” Id. § 25-202 (2001). ABRA is headed by a Director, who is appointed by the ABC Board for a 4-year term, and whose duties include “employ[ing] staff as needed to carry out the function of ABRA.” Id. § 25-207. One of the Board’s duties is to oversee ABRA. See id. § 25-201(c)(1) (Supp. 2012). The parties dispute the extent to which this oversight includes supervision of ABRA’s employment practices, but the Board has reviewed discrimination cases involving ABRA in at least one instance. See Pl.’s Resp. Mot. Dismiss & Summ. J. Ex. 5, ECF No. 83-5. Felicia Martin, the plaintiff in this case, has been an investigator with ABRA’s Enforcement Division since February 21, 2007. See Pl.’s Stmt. Material Facts 1, ECF No. 87. In 2008, Ms. Martin applied for the position of Enforcement Division Supervisor. See Am. Compl. ¶ 16, ECF No. 33. Ms. Martin alleges that, despite her exceptional work performance, she was notified that she was ineligible for the position and a less-qualified male candidate was selected. See id. ¶¶ 18–21. The complaint also alleges that, in the time after Ms. Martin was denied the promotion, she suffered further disparate treatment, including, among other things, denial of acting supervisor positions, denial of volunteer opportunities, and denial of overtime. See generally id. ¶¶ 15–105. Ms. Martin also alleges that she suffers from carpal tunnel syndrome and was denied a reasonable accommodation for her condition. See id. ¶¶ 106–18. In late 2009, Ms. Martin made a formal complaint of discrimination with ABRA’s internal Equal Employment Opportunity (“EEO”) Officer, Laverne Fletcher. See id. ¶ 67. Ms. Martin alleges that no 2 investigation was conducted and, after her complaint, members of ABRA escalated their disparate treatment of her in retaliation. See id. ¶¶ 68–100. On April 12, 2010, Ms. Martin forwarded a portion of the EEO correspondence to members of the ABC Board via email. See Pl.’s Resp. Mot. Dismiss & Summ. J. Ex. 4, ECF No. 83-4. During all relevant times, Charles Brodsky was Chairman of the ABC Board. See Def. Brodsky’s Mem. P. & A. Supp. Mot. Dismiss & Summ. J. 7, ECF No. 49. Ms. Martin initiated this litigation in June 2011, and filed the operative complaint on April 16, 2012, asserting twelve causes of action under various federal and D.C. employment and civil rights laws. See generally Compl., ECF No. 1; Am. Compl., ECF No. 33. Mr. Brodsky is named in his personal capacity as a defendant in this action, along with several individual ABRA employees and the District of Columbia. See Am. Compl. ¶¶ 3–9, ECF No. 33. Other than his passive act of receiving Ms. Martin’s April 12, 2010, email, the complaint does not specifically allege that Mr. Brodsky took any action in the events underlying this lawsuit. See id. ¶ 156. The gravamen of Ms. Martin’s complaint against Mr. Brodsky is that he “should have acted on the Plaintiff’s notice concerning [her] EEOC matters within ABRA.” Pl.’s Mem. P. & A. Resp. Mot. Dismiss & Summ. J. 16, ECF No. 83. Mr. Brodsky is named as a defendant as to seven of the twelve causes of action in this case. He has moved to dismiss each of the claims, or, in the alternative, for summary judgment. III. LEGAL STANDARD A. Failure to State a Claim The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) 3 (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes that the complaint’s factual allegations are true and construes them liberally in the plaintiff’s favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It is not necessary for the plaintiff to plead all elements of her prima facie case in the complaint. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25, 28–29 (D.D.C. 2010). Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Id. A court need not accept a plaintiff’s legal conclusions as true, see id., nor must a court presume the veracity of the legal conclusions that are couched as factual allegations. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). B. Summary Judgment A court may grant summary judgment when “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). A “material” fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the non- movant. See Scott v. Harris, 550 U.S. 372, 380 (2007). 4  The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non- movant must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must “eschew making credibility determinations or weighing the evidence[,]” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-movant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). IV. ANALYSIS The amended complaint contains seven causes of action against Mr. Brodsky: retaliation in violation of the D.C. Human Rights Act (“DCHRA”); disability discrimination in violation of the Americans with Disabilities Act (“ADA”); negligent hiring and retention; violation of the D.C. Whistleblower Protection Act (“DCWPA”); retaliation for exercise of First Amendment rights in violation of 42 U.S.C. § 1983; conspiracy to deny Equal Protection rights in violation of 42 U.S.C. § 1985; and failure to prevent a conspiracy to deny Equal Protection rights in violation of 42 U.S.C. § 1986. Mr. Brodsky moves for dismissal or summary judgment of all seven claims, mostly on the ground that his position as Chairman of the ABC Board did not make him an “employer” of Ms. Martin. 5  A. D.C. Human Rights Act (Count 4) Ms. Martin’s first claim against Mr. Brodsky arises under the retaliation provision of the DCHRA, which makes it unlawful for an employer “to coerce, threaten, retaliate against, or interfere with any person . . . in the exercise or enjoyment of any right granted or protected” under the DCHRA. D.C. Code § 2-1402.61(a) (2001); see also Am. Compl. ¶¶133–38, ECF No. 33. It is Ms. Martin’s position that, by not exercising any supervisory authority over the ABRA employees in the context of her employment dispute, Mr. Brodsky effectively aided the ABRA employees in retaliating against her for making an EEO complaint. See Pl.’s Mem. P. & A. Resp. Mot. Dismiss & Summ. J. 12–14, ECF No. 83. Mr. Brodsky argues that (1) he was not Ms. Martin’s “employer” under the DCHRA; (2) the complaint fails to allege that he personally engaged in any act prohibited by the DCHRA; and (3) Ms. Martin has not pleaded, and cannot show, that he aided or abetted in any DCHRA violation. See, e.g., Def. Brodsky’s Reply Supp. Mot. Dismiss & Summ. J. 6–7, ECF No. 88. The definition of “employer” under the DCHRA is quite broad, extending to “any person who, for compensation, employs an individual . . . ; any person acting in the interest of such employer, directly or indirectly; and any professional association.” D.C. Code § 2-1401.02(10) (Supp. 2012) (emphasis added). With her response brief, Ms. Martin submitted evidence of the ABC Board’s involvement in a different EEO matter. In 2008, the Board, acting under then- Chairman Peter Feather, convened a panel to address concerns about an alleged racist comment by ABRA’s then-Director, Maria Delaney, toward Richard Coward, an ABRA employee. See Pl.’s Resp. Mot. Dismiss & Summ. J. Ex. 5, ECF No. 83-5. The Board then considered whether disciplinary action was warranted and found that a verbal warning to Ms. Delaney was 6 appropriate.1 See id. at 3603. Based on this evidence and for purposes of this motion, the Court assumes without deciding that the Board—and by extension, Mr. Brodsky—can “act[] in the interest of [ABRA], directly or indirectly” for purposes of the DCHRA. D.C. Code § 2-1401.02(10). Although the complaint does not allege that Mr. Brodsky committed any direct acts in violation of the DCHRA, the statute also makes it “an unlawful discriminatory practice for any person to aid, abet, invite, compel, or coerce the doing of any of the acts forbidden under the [DCHRA] or to attempt to do so.” Id. § 2-1402.62 (2001). This is the theory on which Ms. Martin hopes to proceed against Mr. Brodsky. A supervisor’s omissions can give rise to a DCHRA violation under an aiding or abetting theory “when it was alleged that they knew or should have known about the discriminatory conduct and failed to stop it.” King v. Triser Salons, LLC, 815 F. Supp. 2d 328, 332 (D.D.C. 2011). Under Count 4, the “discriminatory conduct” complained of is ABRA’s retaliation for Ms. Martin’s discrimination complaint. See Am. Compl. ¶ 137, ECF No. 33. However, the only evidence linking Mr. Brodsky to this employment dispute is Ms. Martin’s April 12, 2010, email to him purportedly attaching a rebuttal letter from ABRA as part of the EEO procedure. See Pl.’s Resp. Mot. Dismiss & Summ. J. Ex. 4, ECF No. 83-4.2 It is unclear whether Mr. Brodsky read the email, and at his deposition he suggested that the document looked like spam email. See Brodsky Dep. 92:10, May 31, 2013, 1 It is not clear from the parties’ briefing whether the Board involved itself in this incident because the alleged discriminatory official was ABRA’s Director, an officer over whom Mr. Brodsky concedes the ABC Board has some authority. See Brodsky Dep. 112:2–15, May 31, 2013, ECF No. 88-1; see also D.C. Code § 25-207(a) (2001) (“The Board . . . shall appoint a Director of ABRA for a renewable 4-year term. The Director shall be removed by the Board for just and reasonable cause.”). 2 To be clear, the document submitted to the Court does not actually include any attachment. Indeed, the email exhibit does not bear any indicia of an attachment, such as an “attachments” header or a file name in the body of the email. See Pl.’s Resp. Mot. Dismiss & Summ. J. Ex. 4, ECF No. 83-4. 7 ECF No. 88-1. But even if Mr. Brodsky did review the email, Ms. Martin did not include in it any suggestion that she was being retaliated against for her EEO complaint. Rather, the email simply indicated that an EEO complaint had been made. There is no evidence that Mr. Brodsky was on notice of any retaliation, and therefore no basis to find that he aided or abetted in it. To find otherwise would make supervisors who are aware of an EEO complaint immediately liable for virtually any retaliation by other individuals following a formal complaint of discrimination, whether or not the supervisor has any reason to believe that retaliation is likely to occur. The Court declines to stretch the DCHRA’s aiding or abetting statute to such an extent. The Court will grant summary judgment in favor of Mr. Brodsky on Ms. Martin’s DCHRA claim due to a lack of evidence that Mr. Brodsky was aware of any alleged retaliation. B. Americans with Disabilities Act (Count 5) Mr. Brodsky also challenges Count 5, which alleges that he and the other defendants violated the ADA by discriminating against Ms. Martin on the basis of her carpal tunnel syndrome. See Am. Compl. ¶¶139–45, ECF No. 33. Ms. Martin argues that there is a dispute as to whether Mr. Brodsky supervised—or had a duty to supervise—ABRA’s employment practices. See Pl.’s Mem. P. & A. Resp. Mot. Dismiss & Summ. J.13–16, ECF No. 83. Mr. Brodsky, citing Grandison v. Wackenhut Servs., Inc., 585 F. Supp. 2d 72 (D.D.C. 2008), merely recycles his DCHRA argument, asserting that ADA claims are analyzed under the “same legal framework” as DCHRA claims. See Def. Brodsky’s Mem. P. & A. Supp. Mot. Dismiss & Summ. J. 7, ECF No. 49. But Mr. Brodsky’s citation to Grandison is inapposite, as the court in that case was referring to the burden-shifting legal framework in which the plaintiff must make a prima facie case of discrimination, the employer must articulate a non-discriminatory basis for its action, and the plaintiff must show that the action was pretextual. See Grandison, 8 585 F. Supp. 2d at 77 & n.7 (citing McFarland v. George Wash. Univ., 935 A.2d 337, 346 (D.C. 2007)). The case does not compare the definitions of “employer” and “employee” across the two statutes, and the definitions are in fact quite different under each act. Compare 42 U.S.C. § 12111(4)–(5) (2006), with D.C. Code § 2-1401.02(9)–(10). But as Mr. Brodsky points out separately, see Def. Brodsky’s Reply Supp. Mot. Dismiss & Summ. J. 7, ECF No. 88, Ms. Martin’s ADA claim against him fails for a separate reason: There is no liability under the ADA for a person in his individual capacity. See Cooke-Seals v. District of Columbia, 973 F. Supp. 184, 186–87 (D.D.C. 1997) (holding that the ADA’s “employer” definition does not allow for individual liability). The Court will therefore dismiss the ADA claim against Mr. Brodsky under Rule 12(b)(6). C. Negligent Hiring and Retention (Count 7) The amended complaint also contains a count of negligent hiring and retention against Mr. Brodsky and others for their alleged selection and retention of employees who created an environment that promoted discrimination and retaliation. See Am. Compl. ¶¶ 153–66, ECF No. 33. With respect to this claim, the parties again dispute whether Mr. Brodsky had an employer–employee relationship with Ms. Martin. See Def. Brodsky’s Mem. P. & A. Supp. Mot. Dismiss & Summ. J. 8, ECF No. 49; Pl.’s Mem. P. & A. Resp. Mot. Dismiss & Summ. J.13–16, ECF No. 83. Although Mr. Brodsky once again fails to address the legal definition of “employer” as it relates to the D.C. common law tort of negligent hiring and retention, the Court need not reach the issue because the claim is easily disposed of as a matter of law on other grounds. The D.C. Court of Appeals has held that a negligence claim “may be predicated only on common law causes of action or duties imposed by the common law.” Griffin v. Acacia Life Ins. Co., 925 9 A.2d 564, 576 (D.C. 2007) (per curiam) (emphasis added). Ms. Martin’s allegations arise from various employment causes of action that are creatures of statute, not common law. Such employment violations cannot form the underlying basis for a negligence claim against an employer under D.C. law. See id. at 576–77. The Court will therefore dismiss the negligent hiring and retention claim against Mr. Brodsky under Rule 12(b)(6). D. D.C. Whistleblower Protection Act (Count 8) Ms. Martin also asserts a claim against Mr. Brodsky under the DCWPA, D.C. Code § 1-615.53 (Supp. 2012), for allegedly aiding or abetting ABRA in retaliating against Ms. Martin following her formal complaint of discrimination. See Am. Compl. ¶¶ 167–87, ECF No. 33. Mr. Brodsky challenges the claim on the bases that (1) he was not her “supervisor” within the meaning of the DCWPA; and (2) even if he were her supervisor, Ms. Martin fails to show any causal connection between her protected speech and Mr. Brodsky’s acts or omissions. See Def. Brodsky’s Mem. P. & A. Supp. Mot. Dismiss & Summ. J. 9–10, ECF No. 49. The definition of “supervisor” under the DCWPA is quite broad. Under the statute, a supervisor is “an individual employed by the District government . . . who has the authority to effectively recommend or take remedial or corrective action . . . .” D.C. Code § 1-615.52(8). As discussed above in the context of the DCHRA, Ms. Martin has submitted evidence showing that the ABC Board involved itself in one of ABRA’s prior EEO matters and recommended corrective action. See Pl.’s Resp. Mot. Dismiss & Summ. J. Ex. 5, ECF No. 83-5; supra Part IV.A. Even if the Board did not have a duty or typically go to such lengths as part of ABRA’s employment disputes, the Board’s participation in the Coward incident creates a question as to whether Mr. Brodsky “ha[d] the authority to effectively recommend or take remedial or corrective action” for any discriminatory or retaliatory behavior that was occurring at ABRA. 10 D.C. Code § 1-615.52(8) (emphasis added). Accordingly, for purposes of this motion, the Court assumes without deciding that Mr. Brodsky was Ms. Martin’s supervisor. Mr. Brodsky has shown, however, that there is no triable issue as to causation. To succeed on a DCWPA claim, a plaintiff must show “that the protected disclosure was a ‘contributing factor’ to the allegedly retaliatory actions and a jury must ultimately find . . . ‘a direct causal link in order for there to be liability’—i.e., that Defendants would not have taken the allegedly retaliatory actions ‘but for’ her protected disclosures.” Williams v. Johnson, 701 F. Supp. 2d 1, 17 (D.D.C. 2010) (quoting Johnson v. District of Columbia, 935 A.2d 1113, 1119 (D.C. 2007)). The April 12, 2010, email is the only piece of evidence suggesting that Mr. Brodsky might have been aware of this employment dispute. See Pl.’s Resp. Mot. Dismiss & Summ. J. Ex. 4, ECF No. 83-4; see also supra note 2. As discussed above in the context of Ms. Martin’s DCHRA retaliation claim, even if Mr. Brodsky reviewed the email, it did not include any complaint that Ms. Martin was being retaliated against for her EEO complaint; it merely indicated that an EEO complaint was made. There is no evidence that Mr. Brodsky was aware that Ms. Martin was suffering retaliation, and therefore no basis to find that he aided in the alleged retaliation. The Court also notes that, unlike the DCHRA, it is unclear whether an “aiding or abetting” theory can even give rise to a DCWPA claim. Cf. D.C. Code § 2-1402.62 (making it illegal to aid or abet a violation of the DCHRA); King, 815 F. Supp. 2d at 331–32 (applying the DCHRA’s “aiding or abetting” theory). The Court is unaware of any statute or case law providing for that theory of liability, and Ms. Martin cites to none. Although the Court is skeptical that such a theory can prevail under the DCWPA, it need not reach that issue here. The 11 Court will grant summary judgment for Mr. Brodsky on the DCWPA claim based on a lack of causation. E. First Amendment Retaliation in Violation of Section 1983 (Count 9) The amended complaint also asserts that Mr. Brodsky, by acquiescing to ABRA employees’ conduct, aided the ABRA employees in retaliating against Ms. Martin in violation of the Civil Rights Act of 1871. See 42 U.S.C. § 1983 (2006); see also Am. Compl. ¶¶ 188–96, ECF No. 33; Pl.’s Mem. P. & A. Resp. Mot. Dismiss & Summ. J. 12–16, ECF No. 83. However, the Supreme Court has rejected the notion that section 1983 liability can be predicated on such a theory: [Respondent] argues that, under a theory of “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. . . . In a § 1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citation omitted). Ms. Martin does not allege in her complaint that Mr. Brodsky made any affirmative conduct whatsoever in this employment controversy—a fact that is reinforced by her opposition brief’s exclusive reliance on an “aiding and abetting by omission” theory. See Pl.’s Mem. P. & A. Resp. Mot. Dismiss & Summ. J. 12, ECF No. 83 (“Plaintiff hopes to convince [the Court] that Brodsky was under a legal duty to oversee ABRA and the fact that he failed to do so does not abrogate his duties.”). Because a section 1983 claim cannot be based on mere knowledge and acquiescence to the behavior of a subordinate,3 and because the complaint contains no 3 For purposes of this analysis, the Court again assumes without deciding that the ABRA employees were Mr. Brodsky’s subordinates. 12 allegation that Mr. Brodsky otherwise engaged in any affirmative misconduct, the Court will dismiss the section 1983 claim against Mr. Brodsky for failure to state a claim upon which relief can be granted.4 F. Conspiracy and Failure to Prevent Conspiracy (Counts 11 and 12) Ms. Martin also asserts claims against Mr. Brodsky for conspiracy to deprive Ms. Martin of her equal protection rights, and for failure to prevent such a conspiracy. See 42 U.S.C. §§ 1985–86 (2006); Am. Compl. ¶¶ 201–08, ECF No. 33. Mr. Brodsky moves to dismiss both claims under the “intracorporate conspiracy” doctrine, which provides that “there can be no conspiracy if the conduct complained of is essentially a single act by a single entity.” Gladden v. Barry, 558 F. Supp. 676, 679 (D.D.C. 1983); see also Def. Brodsky’s Mem. P. & A. Supp. Mot. Dismiss & Summ. J. 11–12, ECF No. 49. Ms. Martin’s opposition brief fails to respond to the argument, effectively conceding it. See D.D.C. Civ. R. 7(b); Rosenblatt v. Fenty, 734 F. Supp. 2d, 21, 22 (D.D.C. 2010) (“[A]n argument in a dispositive motion that the opponent fails to address in an opposition may be deemed conceded . . . .”). 4 The Court further notes that, even if Ms. Martin could show a constitutional violation, Mr. Brodsky would be entitled to qualified immunity because Ms. Martin points to no clearly established law showing that Mr. Brodsky had a duty to act under these circumstances. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”). The Coward incident notwithstanding, the record reveals that Mr. Brodsky and multiple ABRA employees did not clearly understand the ABC Board to wield supervisory authority over ABRA’s employment practices. See Brodsky Aff. ¶¶ 7–14, ECF No. 49-1; Moosally Dep. 111:14–20, Jan. 22, 2013, ECF No. 83-1; Fletcher Dep. 9:21–10:5, June 11, 2013, ECF No. 83-2; Brodsky Dep. 61:10–63:18, 73:5–24, 91:21–25, 95:6– 21, May 31, 2013, ECF No. 88-1; see also Saucier v. Katz, 533 U.S. 194, 202 (2001) (“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”). And Ms. Martin fails to point to any regulation, statute, or case law clearly indicating that Mr. Brodsky had such a duty to act in this context. 13  Although the D.C. Circuit has not weighed in on the applicability of the intracorporate conspiracy doctrine to claims under sections 1985 and 1986, see Bowie v. Maddox, 642 F.3d 1122, 1130 n.4 (D.C. Cir. 2011) (“We have yet to pick sides in the circuit split regarding the doctrine’s applicability to civil rights cases in general and the first clause of § 1985(2) in particular.”), other judges within this district have consistently found that it does apply. See Tabb v. District of Columbia, 477 F. Supp. 2d 185, 190 (D.D.C. 2007) (collecting cases). Such cases have included application of the doctrine to alleged “conspiracies” among the District of Columbia and employees of the District or its various agencies. See, e.g., Kelley v. District of Columbia, 893 F. Supp. 2d 115, 120 (D.D.C. 2012) (applying the doctrine to an alleged conspiracy between the District of Columbia and employees of the Metropolitan Police Department). Because Mr. Brodsky and all other defendants were agents of the D.C. government during the alleged events giving rise to this litigation, see Am. Compl. ¶¶ 3–8, ECF No. 33, the intracorporate conspiracy doctrine bars application of sections 1985 and 1986 in this case as a matter of law. The Court will grant Mr. Brodsky’s motion to dismiss these claims pursuant to Rule 12(b)(6). V. CONCLUSION For the foregoing reasons, the Court will grant Mr. Brodsky’s motion to dismiss Counts 5, 7, 9, 11, and 12 of the amended complaint; and summary judgment will be entered in favor of Mr. Brodsky on Counts 4 and 8. An order consistent with this Memorandum Opinion is separately and contemporaneously issued. Dated: September 16, 2013 /s/ Rudolph Contreras RUDOLPH CONTRERAS United States District Judge 14 

Appeal Dismissed and Memorandum Opinion filed February 21, 2019. In The Fourteenth Court of Appeals NO. 14-19-00067-CV IN THE INTEREST OF R.E.T., A CHILD On Appeal from the County Court at Law Waller County, Texas Trial Court Cause No. 17-12-24659 MEMORANDUM OPINION This is an accelerated appeal from an order of termination of parental rights signed November 27, 2018. See Tex. R. App. P. 28.4(a)(1) (appeals in parental- termination cases are accelerated). Appellants A.B. and A.T. filed a motion for new trial on December 21, 2018. Appellants filed their notice of appeal on January 23, 2019. The deadline for filing a notice of appeal in an accelerated appeal is 20 days after the judgment or order is signed. See Tex. R. App. P. 26.1(b). The post-judgment motions listed in Texas Rule of Appellate Procedure 26.1(a) do not operate to extend the appellate deadline. See In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005). Accordingly, the notice of appeal was due on or before December 17, 2018. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Texas Rule of Appellate Procedure 26.1, but within the 15-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (1997) (construing the predecessor to Rule 26). Appellants’ notice of appeal, filed January 23, 2019, was not filed within the 15-day period provided by Rule 26.3. A court of appeals lacks jurisdiction to hear an appeal that was not timely perfected. When the court lacks jurisdiction, it must dismiss the appeal. See Baker v. Baker, 469 S.W.3d 269, 272 (Tex. App.—Houston [14th Dist.] 2015, no pet.). On January 31, 2019, we notified the parties the appeal would be dismissed unless any party, by February 11, 2019, demonstrated meritorious grounds for continuing the appeal. No response was filed. The appeal is DISMISSED for lack of jurisdiction. PER CURIAM Panel consists of Chief Justice Frost and Justices Jewell and Bourliot. 2 

532 P.2d 316 (1975) STATE of Alaska, Appellant, v. Donald L. MARTIN, Appellee. No. 2143. Supreme Court of Alaska. February 28, 1975. *317 Norman C. Gorsuch, Atty. Gen., Daniel W. Hickey, Dist. Atty., Ivan Lawner, Asst. Dist. Atty., Juneau, for appellant. Herbert D. Soll, Public Defender, Anchorage, David C. Backstrom, Deputy Public Defender, Fairbanks, for appellee. Before RABINOWITZ, C.J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ. OPINION FITZGERALD, Justice. We decide in this case the validity of section (a)(2) of AS 11.45.030, the Alaska statute proscribing disorderly conduct. At approximately 4:20 in the morning of June 18, 1973, Trooper Cummings of the Alaska State Police observed an automobile operated in an unusual manner in a residential area of downtown Fairbanks. According to the evidence presented by the state, the trooper stopped the vehicle driven by Specialist Holsopple and undertook to test him for intoxication. Specialist Donald Martin was a passenger in the vehicle. While the sobriety tests were being conducted, Martin got out of the car and continuously interrupted the tests to explain that both he and Holsopple were in the military, that Holsopple was under his immediate supervision, and that he did not understand why the trooper was administering these tests to Holsopple. At this point the trooper requested Martin alternatively to return to the vehicle, take a taxicab, or walk home. Martin refused and said that he wanted to accompany Holsopple to jail. Martin then began to raise his voice and to use loud and obscene language[1] towards the officer. The trooper *318 testified that he saw two people turn on their houselights and look out their windows. Trooper Cummings then arrested Martin for disorderly conduct. After hearing the evidence, the district court judge refused to rule on Martin's guilt and dismissed the complaint on the grounds that the section of the disorderly conduct statute under which Martin was charged was unconstitutional on its face. The judge ruled that the statute infringed upon the first amendment rights guaranteed by the United States Constitution, that the statute was overbroad and void for vagueness. The state appealed to the superior court which affirmed the trial court's ruling. The state now appeals from these two lower court decisions. The statute here called into question was enacted by the 1973 Alaska Legislature which amended and substantially changed the prior AS 11.45.030. The new statute followed our decision in Marks v. City of Anchorage, 500 P.2d 644 (Alaska 1972), which struck down the disorderly conduct ordinance of the City of Anchorage. The Anchorage ordinance prohibited tumultuous behavior, unreasonable noise, offensively coarse utterances, gestures or displays, and abusive language when such activity was intended to cause or recklessly created a risk of causing public inconvenience, annoyance or alarm.[2] The language of the ordinance constituted a substantial impediment to the exercise of free speech and thus infringed upon first amendment rights. For this reason we held the ordinance to be overbroad. Moreover, we found that the ordinance failed to clearly specify the contours of the prohibited conduct and therefore was void for vagueness.[3] Marks rested on a number of well-established authorities, several of which antedated our decision by several decades. In Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), the United States Supreme Court held unconstitutional a breach of peace ordinance as applied to an individual accused of delivering an inflammatory speech to an unruly crowd. After first noting that free discussions are essential to the vitality of our civil and political institutions, the Supreme Court stated: [A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, ... is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest... . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. (emphasis added and citations omitted) Id. at 4-5, 69 S.Ct. at 896, 93 L.Ed. at 1134-5. In Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), the United States Supreme Court in striking down a Cincinnati ordinance stated that a public assembly of three or more persons causing mere annoyance to passersby may not be prohibited: Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgement of these constitutional freedoms... . The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be "annoying" to some people. *319 If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is "annoying" because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens. (footnotes and citations omitted) Id. at 615-16, 91 S.Ct. at 1689, 29 L.Ed.2d at 218. Our own decision in Anniskette v. State, 489 P.2d 1012 (Alaska 1971), is fully in accord with the views stated by the United States Supreme Court. In Anniskette this court dealt with the question of whether AS 11.45.030, as it read prior to 1973,[4] was constitutional as applied. Anniskette was charged with disorderly conduct. The complaint alleged that Anniskette committed the offense when he telephoned a state trooper and berated him with loud and abusive language.[5] We found that the offensive behavior involved only voice communications. We said that under the first amendment to the United States Constitution, as well as under the parallel provision of the Alaska constitution, it is only in the most limited circumstances that speech alone may be punished.[6] No claim was made that Anniskette's message was erotically arousing or that he used profanity which in and of itself might create a public nuisance.[7] This court found that the telephone call did not amount to an exhortation to violence by others which created a clear and present danger that such violence would occur.[8] We also concluded that Anniskette's communication did not fall within the category of "fighting words."[9] *320 In Poole v. State, 524 P.2d 286 (Alaska 1974), this court faced the question of whether AS 11.45.030, as it stood prior to 1973, was constitutional on its face. Our decision in Marks foreshadowed the fate of AS 11.45.030, for by its terms this statute was substantially similar to the Anchorage ordinance which we had struck down. As we have previously noted, the legislature, possibly with the Marks decision in mind, rewrote and substantially changed the statute in 1973. Nevertheless, in Poole we held that the former statute was unconstitutional on its face. The statute delineated activity constituting disorderly conduct by using the standards of "disturbance or annoyance of another."[10] We followed the rationale of our earlier decision in Marks, stating: We adhere to Marks and hold that AS 11.45.030 is void for vagueness because the conduct and speech sought to be prohibited are determined by the impermissibly vague standards of "annoyance" and "disturbance" to another. Thus, we ... reverse and set aside Poole's conviction of disorderly conduct on the ground that AS 11.45.030, in its entirety, is void for vagueness. (footnote omitted) 524 P.2d at 289. This brings us now to the issue of the constitutionality of AS 11.45.030(a)(2) in the case at bar. The statute as amended in 1973 provides in pertinent part: (a) A person who does any of the following is guilty of disorderly conduct: ...... (2) in a public place, when a criminal offense has occurred, refuses to comply with a lawful order of the police to disperse... .[11] *321 The portion of AS 11.45.030(a)(2) in question in this case is similar in part to the Kentucky statute considered by the United States Supreme Court in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). The Kentucky statute provided: (1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: ...... (f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse... . Id. at 108, 92 S.Ct. at 1956, 32 L.Ed.2d at 589. AS 11.45.030(a)(2) is similar to subsection (f) of the Kentucky statute, but the Alaska statute does not contain the specific terms of subsection (1) of the Kentucky statute which this court found objectionable in Marks and Poole. In Colten the defendant was arrested for violation of the Kentucky disorderly conduct statute when he disobeyed repeated police orders to move on while his companion who had been driving in a separate car was receiving a traffic summons. Colten tried to intervene in the issuance of the summons to straighten out the details of his companion's offense and to make transportation arrangements because his companion's car was to be towed away.[12] The Kentucky court of appeals construed the disorderly conduct statute under which Colten was arrested to mean that for a violation of the statute to occur the specified intent to cause public inconvenience, annoyance, or alarm must be the predominant intent as determined: (1) from the fact that no bona fide intent to exercise a constitutional right existed, or (2) from the fact that the interest advanced by the particular exercise of a constitutional right is insignificant in comparison with the public harm caused by the exercise. The United States Supreme Court upheld the validity of the statute as construed by the Kentucky appellate court as well as the application of the statute to Colten's actions.[13] For the purposes of the instant case, however, the significance of the Colten decision lies in the continued recognition that disorderly conduct statutes can be construed to meet constitutional requirements and that the United States Supreme Court will accept such limiting constructions placed on state statutes by state courts.[14] This court has where possible consistently undertaken to reasonably construe statutes to avoid the danger of unconstitutionality. Hoffman v. State, 404 P.2d 644 (Alaska 1965); Stock v. State, 526 P.2d 3 (Alaska 1974). We were not able to do *322 this in Marks and in Poole. In both of those cases no limiting construction had been presented to this court for its consideration. And in both Marks and Poole the enactments in question were so pervasively flawed that no reasonable constitutional interpretation was possible. However, this is not so with the statute now before us. We find that we are able to uphold the validity of the statute when its application is narrowly restricted. AS 11.45.030(a)(2) as construed is violated when in a public place, a criminal offense has occurred, and a person wilfully fails to comply with a lawful order of the police to disperse, a lawful order being one which is given where the person's conduct or speech substantially impedes an officer in the performance of his duties in effecting an arrest, in investigating a crime, or in ensuring the public safety. Where a first amendment right such as freedom of speech is involved, a heavy burden is placed on the state to show not only substantial impedance to the officer but also that the communication in question falls into the traditionally unprotected areas of "fighting words"[15] or speech creating "a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."[16] This statutory construction answers the assertions on appeal that the statute is overbroad and void for vagueness. The statute is not overbroad because the statute as we now construe it can have no application to constitutionally protected speech or conduct. Moreover, the statute as construed does not suffer from vagueness. The statutory construction sufficiently defines the parameters of the prohibited conduct so that due process notice is provided and arbitrary enforcement is not a danger. The construction defines a "lawful order" and the limited circumstances in which one may be given. The construction delineates the specific duties in which peace officers may be engaged when giving a lawful order to disperse. We therefore hold that the district court was in error in dismissing the complaint on the grounds that AS 11.45.030(a)(2) is unconstitutional on its face. However, even under the facts of this case stated in a light most favorable to the state as set out at the beginning of this opinion, we must conclude that as a matter of law the evidence was insufficient to warrant a conviction under the statute as construed. Affirmed. ERWIN, Justice, with whom RABINOWITZ, C.J., joins (concurring). In its majority opinion this Court has today decided that AS 11.45.030(a)(2) as amended may and should be so narrowly construed as to rescue it from a successful challenge to its constitutionality as drafted. The majority has nevertheless concluded that on the record before us the dismissal below must be affirmed for want of sufficient evidence for conviction. That the trial court's judgment should be affirmed I am in agreement. I am of the opinion, however, that the court has erred in its treatment of this statute. In imposing the judicial "gloss" necessary to cure AS 11.45.030(a)(2) of constitutional infirmities, the majority has at least tacitly admitted that without these palliatives the statute is on its face unconstitutionally overbroad and vague. I heartily concur in this conclusion. In Marks v. City of Anchorage, 500 P.2d 644 (Alaska 1972), we explained the doctrines of vagueness and overbreadth as follows: Although the overbreadth and void-for-vagueness doctrines are related and, at least in the first amendment area, not wholly separable, they are functionally and doctrinally distinct. The overbreadth doctrine has evolved to give adequate breathing room to specific first *323 amendment freedoms; a statute violates the doctrine when constitutionally-protected conduct as well as conduct which the state can legitimately regulate are included within the ambit of the statute's prohibition. By contrast, specific constitutional guarantees are not necessarily implicated when a statute is declared void for vagueness. The latter doctrine comes into play when the statutory language is so indefinite that the perimeters of the prohibited zone of conduct are unclear; a statute may be unconstitutionally vague even though no activities specifically protected by the Constitution are outlawed. A vague statute violates the due process clause both because it fails to give adequate notice to the ordinary citizen of what is prohibited and because its indefinite contours confer unbridled discretion on government officials and thereby raise the possibility of uneven and discriminatory enforcement.[1] Applying these criteria it is clear that AS 11.45.030(a)(2) is unconstitutionally vague. Absent judicial concretization, the ordinary citizen desiring to comply with the law would be forced to speculate whether he had been presented with a "lawful order" to leave the area where an offense had occurred. Moreover, the very nature of the prohibited conduct — the failure to obey a police command — lends itself too readily to arbitrary and discretionary enforcement under the statute. In short, the provision fails to sufficiently define the circumstances under which a police order to disperse from the scene of a criminal occurrence is an appropriate exercise of police power. To an equally onerous degree, the statute as enacted is constitutionally deficient because it is overbroad. Clearly, the provision places arbitrary power in the hands of police officers which could be used to prohibit conduct which is constitutionally protected. It enables the police, for example, to disperse persons exercising their rights of free speech and assembly at a political rally because some person on the fringe of the assembled crowd had there engaged in some unspecified criminal conduct having perhaps nothing to do with the rally itself or the others there assembled. The state, appellant herein, has not questioned that serious constitutional shortcomings are apparent from the specific terms of the statute. The majority opinion reflects the same persuasion. Under, however, the imprimatur of Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972),[2] and in recognition of the duty set forth in Hoffman v. State, 404 P.2d 644, 646 (Alaska 1965), and Stock v. State, 526 P.2d 3 (Alaska 1974), to reasonably construe statutes to "avoid a danger of unconstitutionality," the court today has engaged in extensive repair work to remedy the deficiencies inherent in the language of the statute. I question that AS 11.45.030(a) (2) as now construed by the majority completely satisfies these major constitutional objections. Moreover, while I do not dispute our duty to construe statutes constitutionally where reasonable, and while I recognize that in Marks we acknowledged that the offer of a saving construction might have enabled us to rescue the Anchorage ordinance from its deficiencies,[3] I note that such a remedial approach is not mandatory. Clearly we must temper our obligation to construe statutes constitutionally with a careful concern for the maintenance of a proper separation between the judicial and legislative functions. Even if this statute is capable of remedial construction, which I seriously doubt, I *324 am of the opinion that to do so is to engage in unwarranted and unreasonably extensive judicial legislation. The judicial gloss imposed by the majority is made up of almost whole cloth. It seems questionable, for example, that it is a wholly "reasonable," let alone necessary inference that in delimiting the operation of the statute to those instances "where a crime has occurred" the legislature actually intended to criminalize only those "wilfull" refusals to disperse which act to "substantially impede" an officer in the performance of his duties in "effecting an arrest, in investigating a crime, or in insuring the public safety."[4] I am unable to discern from the history or language of the provision a clear indication that the legislature ever had in mind any such specific limitations on this exercise of the police power.[5] It seems equally likely, in fact, that what was at least partly envisioned in this provision was the grant of a broadly discretionary power to "break up" assemblages when any sort of criminal activity can be identified in the vicinity.[6] As a result, not only do the terms "crime" and "lawful order" pose a significant vagueness problem, they also threaten that "adequate breathing room" assured to first amendment freedoms.[7] The open-ended language employed in AS 11.45.030(a)(2) constitutes such an unfettered grant of discretionary police power as to require extensive judicial prosthesis to not only solidify its impermissibly vague contours, but to obviate its potential "chilling effect" upon the free exercise of first amendment freedoms.[8] Even were I convinced that it would satisfy constitutional objections, in the absence of more concrete legislative guidelines I would decline to judicially legislate this necessary limiting "gloss." NOTES [1] The officer did not testify as to the specific language used, and it was not contended by him that it constituted "fighting words" or that it created any danger of a serious substantive evil rising above public inconvenience or annoyance. [2] Marks v. City of Anchorage, 500 P.2d 644, 645 (Alaska 1972). [3] Id. at 650, 652-53. [4] At the relevant time AS 11.45.030(1) and (2) provided: Disorderly conduct and disturbance of the peace. A person who (1) uses obscene or profane language in a public place or private house or place to the disturbance or annoyance of another; or (2) makes a loud noise or is guilty of tumultuous conduct in a public place or private house to the disturbance or annoyance of another, or is otherwise guilty of disorderly conduct to the disturbance or annoyance of another, upon conviction, is guilty of a misdemeanor, and is punishable by a fine of not more than $300, or by imprisonment in a jail for not more than six months, or by both. [5] 489 P.2d at 1012-13. [6] Id. at 1013. [7] Id. at 1013-14, citing Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). [8] Id. at 1014, citing Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). [9] Id. at 1014-15, where we explained that: We cannot classify the defendant's telephonic communication as falling within the category of "fighting words", which is recognized as another exception to the freedom of speech guaranteed by the Constitution. The "fighting words" doctrine covers those face-to-face utterances which ordinarily provoke, in the average, reasonable listener, an immediate violent response. The defendant's conduct in this case did not reach that degree of provocation. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), 62 S.Ct. 766, 86 L.Ed. 1031, is not apposite. It concerns a narrowly construed statute prohibiting "face-to-face words plainly likely to cause a breach of the peace by the addressee". 315 U.S., at 573, 62 S.Ct., at 770, 86 L.Ed., at 1036. An important distinguishing feature of Chaplinsky is that the words, "You are a God damned racketeer" and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists", were uttered at a street intersection where the listening crowd had become unruly, and after a disturbance in the crowd had actually occurred. 315 U.S. 568, 569, 62 S.Ct. 768, 86 L.Ed. 1031, 1034. Because these words, in context, tended to incite an immediate breach of the peace, they were held not to be protected as free speech. But here the situation is quite different. For even if it were assumed for purposes of argument that Anniskette's message contained "fighting words", constitutional protection would still extend to the particular factual setting presented here. The time necessary for the officer to travel from his residence to that of the defendant should have allowed enough cooling off so that any desire on the part of the officer to inflict violence on the defendant should have been dissipated. We assume that the officer had sufficient self-control that, after such a period of time, he would not have assaulted the defendant for what had been said earlier. As another court has observed, "A policeman's special powers and training, and his constant exposure to situations where the norms of common speech are not distinguished by unvarying delicacy of expression, leave him less free to react as quickly as the private citizen to a purely verbal assault. In a situation where he is both the victim of the provocative words of abuse and the public official entrusted with a discretion to initiate through arrest the criminal process, the policemen may, ordinarily at least, be under a necessity to preface arrest by a warning. It would appear that there is no First Amendment right to engage in deliberate and continued baiting of policemen by verbal excesses which have no apparent purpose other than to provoke a violent reaction." Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638, 646, note 23 (1969). (footnote omitted) [10] At that time AS 11.45.030 provided: A person who (1) uses obscene or profane language in a public place or private house or place to the disturbance or annoyance of another; or (2) makes a loud noise or is guilty of tumultuous conduct in a public place or private house to the disturbance or annoyance of another, or is otherwise guilty of disorderly conduct to the disturbance or annoyance of another, upon conviction, is guilty of a misdemeanor, and is punishable by a fine of not more than $300, or by imprisonment in a jail for not more than six months, or by both. (emphasis added) [11] AS 11.45.030 in its entirety provides: Disorderly conduct. (a) A person who does any of the following is guilty of disorderly conduct: (1) in a public place, repeatedly or continuously shouts, blows a horn, plays a musical or recording or amplifying instrument, or otherwise generates loud noises intending to disturb or acting with reckless disregard for the peace and privacy of others, or, in a private place, engages in the same conduct with the same intent or reckless disregard, having been informed by another that the conduct is disturbing the peace and privacy of others not in the same place; (2) in a public place, when a criminal offense has occurred, refuses to comply with a lawful order of the police to disperse, or, in a private place, refuses to comply with an order of the police to leave premises in which he has neither a right of occupancy nor the express invitation to remain of the person having the right of possession; (3) in a public or private place challenges another to fight, or engages in fighting other than in self-defense; or (4) in a public or private place knowingly or recklessly creates a hazardous condition for others by an act which has no legal justification or excuse. (b) Upon conviction, a person who is guilty of disorderly conduct is punishable by a fine of not more than $300, or by imprisonment for not more than 10 days, or by both. (c) In a prosecution under (a)(1) of this section (1) if the loud noise constitutes speech, the content of speech or evidence of specific words used by the defendant is admissible in evidence against him only as permitted by court rule; (2) "loud noise" in a public place means noise which is loud enough to inhibit the ability of the average person in the same place to speak freely without leaving the public place; (3) "loud noise" in a private place means noise which is loud enough to awaken the average person sleeping in a place other than the private place. (d) In this section a "public place" is a place where the public is permitted to assemble, enter or pass through, whether publicly or privately maintained, including but not limited to places of accommodation, transportation, business and entertainment, or any other place which is not a private place. [12] 407 U.S. at 106-7, 92 S.Ct. 1953, 32 L.Ed.2d at 587-8. [13] Id. at 108-11, 92 S.Ct. 1953, 32 L.Ed.2d at 589-90. [14] Other recent United States Supreme Court cases demonstrating this principle are: Plummer v. City of Columbus, 414 U.S. 2, 94 S.Ct. 17, 38 L.Ed.2d 3 (1973); Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972) (dissent); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). A clear recognition of this doctrine of construction may be found in the leading case of Chaplinsky v. New Hampshire, 315 U.S. 568, 573, 62 S.Ct. 766, 86 L.Ed. 1031, 1036 (1942). [15] Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73, 62 S.Ct. 766, 86 L.Ed. 1031, 1035-36 (1942). [16] Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131, 1134 (1949). [1] 500 P.2d at 646 (footnotes omitted). [2] The majority seems to have completely disregarded the extensive criticism of this case which is to be found in Marks, where we noted, for example, that ... Colten is a perplexing opinion, out of the mainstream of the United States Supreme Court precedents, most of which were not cited by the Court, and its effects on the vagueness and overbreadth doctrines must be considered extremely uncertain. 500 P.2d at 654. [3] 500 P.2d at 657. [4] P. 322 supra. [5] It is significant, for example, that there are no guidelines as to what magnitude of "crime" is sufficient to trigger the statute; that there is no limitation on the size of the area around the criminal occurrence which may reasonably be cleared to avoid any "impedance;" that there is no indication of the proper scope of a "lawful" order. [6] It may be noted that specific statutes already exist in Alaska which regulate and proscribe certain types of conduct with which AS 11.45.030(a) (2) as construed by the majority seems to be concerned. See AS 11.45.020 (riot and unlawful assembly) and AS 11.30.210 (obstructing an officer). [7] P. 322-323 & note 1 supra. [8] Note that in Stock, the most recent example of constitutional construction cited by the majority, we observed that we were not there dealing with "a possible restriction on the exercise of first amendment rights ... [and no contention could be made that that statute had] a subterfugal purpose or effect of curtailing the exercise of protected political or individual rights to speech, association, privacy and the like." 526 P.2d at 12 (footnote omitted).

148 T.C. No. 10 UNITED STATES TAX COURT GOOD FORTUNE SHIPPING SA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 25327-12. Filed March 28, 2017. P, a foreign corporation organized under the laws of the Repub- lic of the Marshall Islands, issued its stock shares in bearer form. In Form 1120-F, U.S. Income Tax Return for a Foreign Corporation, that it filed for its taxable year 2007, P claimed that it is not described in I.R.C. sec. 883(c)(1) and that therefore it is entitled under I.R.C. sec. 883(a)(1) to exclude from gross income and exempt from U.S. taxa- tion certain income. P made that claim even though certain regula- tions under I.R.C. sec. 883 that were applicable for P’s taxable year 2007 (bearer share regulations) precluded a foreign corporation the shares of which were issued in bearer form from taking such shares into account in establishing the ownership of the stock of the foreign corporation for purposes of determining whether the foreign corpora- tion is described in I.R.C. sec. 883(c)(1) and thus whether it is enti- tled to the benefits of I.R.C. sec. 883(a)(1). It is P’s position that the bearer share regulations are invalid. The parties agree that we are required to follow the bearer share regulations unless we hold that those regulations are invalid under the two-step analysis that the Supreme Court of the United States prescribed in Chevron U.S.A.,  -2- Inc. v. Nat. Res. Def. Council, Inc. (Chevron), 467 U.S. 837 (1984). P concedes that if we were to hold that the bearer share regulations are valid, it is not entitled under I.R.C. sec. 883(a)(1) for its taxable year 2007 to exclude from gross income or exempt from U.S. taxation certain income. Held: I.R.C. sec. 883(c)(1) as well as its legislative history is silent--there is a gap in that section as well as its legislative history-- as to how ownership by individuals of a foreign corporation may be established for purposes of determining whether the foreign corpora- tion is described in I.R.C. sec. 883(c)(1) and thus whether it is enti- tled to the benefits of I.R.C. sec. 883(a)(1). Consequently, the Secre- tary of the Treasury (Treasury Secretary) was authorized under Chevron to fill that gap by promulgating regulations. See Chevron, 467 U.S. at 842-843. Held, further, the Treasury Secretary did not act unreasonably, arbitrarily, or capriciously or in violation of I.R.C. sec. 883(c)(1) or its legislative history when the Treasury Secretary interpreted that section in the bearer share regulations in a way that precluded a foreign corporation the shares of which were issued in bearer form from taking such shares into account in establishing the ownership of the stock of the foreign corporation for purposes of determining whether the foreign corporation is described in I.R.C. sec. 883(c)(1) and thus whether it is entitled to the benefits of I.R.C. sec. 883(a)(1). See Chevron, 467 U.S. at 844. Held, further, the bearer share regulations are valid under the two-step analysis under Chevron. Stephen P. Flott and Joseph G. Siegmann, for petitioner. Lisa M. Rodriguez, Carmen N. Presinal-Roberts, and Patricia Young Taylor, for respondent.  -3- OPINION CHIECHI, Judge: This case is before us on respondent’s motion for summary judgment (respondent’s motion) and petitioner’s motion for partial summary judgment (petitioner’s motion). We will grant respondent’s motion and will deny petitioner’s motion. The parties stipulated all of the facts for purposes of their respective motions.1 We conclude that there is no genuine dispute as to any fact that is material to our resolving the ultimate issue and the underlying questions in those motions. The ultimate issue for petitioner’s taxable year 2007 in petitioner’s motion is whether, as petitioner maintains, certain regulations under section 8832 are invalid. The ultimate issue for petitioner’s taxable year 2007 in respondent’s motion is whether, as respondent maintains, petitioner is not entitled under section 1 We will not set forth a separate statement of background facts but will state throughout our Opinion those background facts that are material, relevant, and/or helpful to understanding and resolving the ultimate issue and questions presented in the parties’ respective motions. 2 All section references are to the Internal Revenue Code (Code) in effect for petitioner’s taxable year 2007, the year at issue. Unless otherwise indicated, all references to the regulations under sec. 883 are to the Income Tax Regulations applicable for that taxable year of petitioner.  -4- 883(a)(1) for that year to an exclusion from gross income and an exemption from taxation by the United States (U.S. taxation) of certain gross income described in that section. In advancing respondent’s position in respondent’s motion, respon- dent assumes that certain regulations under section 883, the validity of which petitioner challenges in petitioner’s motion, are valid. Petitioner concedes that if we were to hold that those regulations are valid, it will not be entitled for its taxable year 2007 to the benefits of section 883(a)(1). Thus, the ultimate issue that we must decide in considering whether to grant petitioner’s motion or to grant respondent’s motion is whether certain regulations under section 883 are invalid, as petitioner maintains, or valid, as respondent maintains. The regulations under section 883 the validity of which petitioner places at issue prescribe certain rules for petitioner’s taxable year 2007 for determining how to establish the ownership of the stock of a foreign corporation, like petitioner, the stock shares of which were issued in bearer form for purposes of ascertaining whether the foreign corporation is described in section 883(c)(1) and thus whether it is entitled under section 883(a)(1) to an exclusion from gross income and an exemption from U.S. taxation of certain gross income described in that section. Before addressing the issue of the validity of those regulations and the underlying questions relating to that issue, we first summarize the pertinent  -5- statutory and regulatory framework in which that issue and those questions arise.3 We next describe the factual framework in which the issue of the validity of the regulations under section 883 and the underlying questions relating to that issue arise. We turn initially to the pertinent statutory framework. In the case of a foreign corporation, section 887(a) imposes for each taxable year a tax equal to 4% of the foreign corporation’s U.S. source gross transportation income (USSGTI) for each such year. Section 883(a)(1) excludes from the gross income of a foreign corporation and exempts from U.S. taxation gross income from the international operation of ships derived by the foreign corporation if the foreign country in which the corporation is organized grants an equivalent exemption to corporations organized in the United States (U.S. corporations). Section 883(c)(1) provides that the exclusion from gross income and the exemption from U.S. taxation that section 883(a)(1) allows will not apply to a foreign corporation that derives gross income from the international operation of ships if 50% or more of the value of its stock is owned, directly or indirectly through the application of 3 Unless helpful in understanding the statutory and regulatory provisions that are pertinent and/or applicable here, we do not summarize any statutory or regulatory provisions that the parties agree, and we conclude, are not pertinent or applicable here.  -6- certain attribution rules in section 883(c)(4), by individuals who are not residents of a foreign country that grants an equivalent exemption to U.S. corporations. The pertinent statutory provisions in sections 887 and 883(a) and (c) that we just summarized became law when Congress added section 887 to the Code and amended section 883 in the Tax Reform Act of 1986 (1986 Act), Pub. L. No. 99- 514, sec. 1212(b) and (c)(3)-(5), 100 Stat. at 2537-2539.4 Before the addition to the Code of section 887, the United States did not, in contrast to a number of other countries, impose a gross basis tax on domestic source shipping income of foreign persons. See H.R. Conf. Rept. No. 99-841 (Vol. II), at II-597, 1986-3 C.B. (Vol. 4) 1, 597. Before the amendments to section 883 that Congress made in the 1986 Act, which was and is still known as the reciprocal exemption provision, the United States did not tax the earnings of foreign persons from the operation of ships and aircraft registered in foreign countries that granted equivalent exemptions to U.S. 4 The Tax Reform Act of 1986 (1986 Act), Pub. L. No. 99-514, sec. 1212, 100 Stat. at 2536, as applicable here, was thereafter amended by Congress in the Technical and Miscellaneous Revenue Act of 1988, Pub. L. No. 100-647, sec. 1012(e)(1), (2)(A), and (5), 102 Stat. at 3499-3500, and in the Omnibus Budget Reconciliation Act of 1989, Pub. L. No. 101-239, sec. 7811(i)(8)(D), and (10), 103 Stat. at 2411. Those amendments do not affect our resolution of the issue of the validity of certain regulations under sec. 883 that petitioner is challenging in petitioner’s motion. (For convenience, we refer only to the 1986 Act changes that Congress made to sec. 883.)  -7- citizens and U.S. corporations. The reasons for those amendments in the 1986 Act, as set forth in the report of the Committee on Finance of the U.S. Senate, included the following: Currently, the reciprocal exemption provisions eliminate U.S. tax on foreign persons (even U.S.-controlled foreign corporations) by allowing exemptions based on country of documentation or registry, without regard to the residence of persons receiving the exemption or whether commerce is conducted in that country. This places U.S. persons with U.S.-based transportation operations and subject to U.S. tax at a competitive disadvantage vis-a-vis their foreign counterparts who claim exemption from U.S. tax and who are not taxed in their countries of residence or where the ships are registered. * * * S. Rept. No. 99-313 (1986), 1986-3 C.B. (Vol. 3) 1, 340. The pertinent provisions of section 883 after the amendments to that section that Congress made in the 1986 Act provide[] that a foreign corporation organized in a country that exempts U.S. citizens and domestic corporations from tax on shipping income will be exempt from U.S. tax on shipping income, notwith- standing that third country residents have interests in the corporation, provided at least 50 percent of its value is beneficially owned by individuals that reside in countries which have reciprocal tax exemp- tions with the United States. * * * H.R. Conf. Rept. No. 99-841, supra at II-599, 1986-3 C.B. (Vol. 4) at 599.  -8- We turn next to the pertinent regulatory framework.5 The regulations under section 883 refer to a foreign corporation certain income of which qualifies for the exclusion from gross income and the exemption from U.S. taxation under section 883(a)(1) as a qualified foreign corporation. The term “qualified foreign corpora- tion” is defined in section 1.883-1(c), Income Tax Regs. That definition requires, inter alia, that the foreign corporation meet the stock ownership test set forth in section 1.883-4, Income Tax Regs., which the regulations under section 883 refer to as the qualified shareholder stock ownership test. See sec. 1.883-1(c)(2), Income Tax Regs. Section 1.883-4(a), Income Tax Regs., provides that a foreign corporation satisfies the qualified shareholder stock ownership test if for at least one-half of the number of days during the tax year 50% or more of the value of its outstanding stock is owned, directly or indirectly through the application of the attribution rules in section 1.883-4(c), Income Tax Regs., by one or more qualified shareholders, as defined in section 1.883-4(b), Income Tax Regs. Section 1.883- 4(a), Income Tax Regs., provides that a foreign corporation will not be treated as satisfying the stock ownership test set forth in section 1.883-1(c)(2), Income Tax 5 Our summary of the pertinent regulatory framework does not include a summary of the regulations under sec. 883 the validity of which petitioner disputes. We summarize those disputed regulations after we have appropriately framed the ultimate issue that we must resolve.  -9- Regs., by meeting the qualified shareholder stock ownership test set forth in section 1.883-4, Income Tax Regs., unless the foreign corporation meets the substantiation and reporting requirements set forth in section 1.883-4(d) and (e), Income Tax Regs. We turn next to the factual framework. Petitioner is a corporation organized in 2002 under the laws of the Republic of the Marshall Islands (Marshall Islands). From its incorporation through December 31, 2007, petitioner had outstanding 500 authorized shares of stock that, pursuant to the applicable laws of the Marshall Islands, see 52 Marshall Islands Revised Code (MIRC), Associations Law, pt. 1, div. 5, sec. 42(2) (2004), it chose to issue in bearer form, and not in registered form.6 During 2007, petitioner did not maintain a stock register, a ledger showing 6 Tit. 52 Marshall Islands Revised Code (MIRC), Associations Law, pt. 1, div. 5, sec. 42(2) (2004), provides: (2) Registered or bearer shares. Shares may be issued either in registered form or in bearer form provided that the articles of incorporation prescribe the manner in which any required notice is to be given to shareholders of bearer shares in conformity with section 11 of this Act; provided, however, that resident domestic corporations shall not be allowed to issues shares in bearer form. The transfer of bearer shares shall be by delivery of the certificates. The articles of incorporation may provide that on request of a shareholder his bearer shares shall be exchanged for registered shares or his registered shares exchanged for bearer shares. (continued...)  - 10 - the name(s) of its owner(s), or a stock transfer book. Nor did petitioner maintain during 2007 an immobilized book-entry system in which evidence of the owner- ship of its shares was maintained (1) in its books and records or (2) by a broker or financial institution. Petitioner filed Form 1120-F, U.S. Income Tax Return of a Foreign Corpo- ration, for its taxable year 2007 (2007 Form 1120-F). In that form, petitioner reported USSGTI of $4,093,375 and claimed under section 883(a)(1) an exclusion from gross income and an exemption from U.S. taxation of that reported amount of USSGTI.7 In support of that claimed exclusion and exemption, petitioner included a schedule with its 2007 Form 1120-F. In that schedule, petitioner indicated, inter alia, that during its taxable year 2007 “[t]he total number of qualified shareholders as defined in Treasury Regulations §1.883-4(b)(1)” was 6 (...continued) Petitioner is not a resident domestic corporation for purposes of the Marshall Islands Association Law. 7 In the notice of deficiency that respondent issued to petitioner for its taxable year 2007, respondent determined that the USSGTI of $4,093,375 that petitioner reported and the exclusion from income and the exemption from U.S. taxation of the same amount that it claimed in its 2007 Form 1120-F should be reduced to $3,587,375. Petitioner does not dispute that the amount of its USSGTI for its taxable year 2007 is the amount that respondent determined in the notice. Moreover, the parties agree that for petitioner’s taxable year 2007 its USSGTI of $3,587,375 is the amount of its gross income described in sec. 883(a)(1).  - 11 - two, that those two qualified shareholders’ country of residence was Greece, and that “[t]he total percentage of the value of the outstanding shares in the corpora- tion [that they] owned, applying the attribution rules of Treasury Regulation § 1.883-4(c),” was 100%. Petitioner also included with its 2007 Form 1120-F Form 8275-R, Regula- tion Disclosure Statement (Form 8275-R), in which it challenged the validity of certain regulations under section 883 that disregard ownership through bearer shares of a foreign corporation seeking to qualify for the exclusion from gross income and the exemption from U.S. taxation under section 883(a)(1). In support of that challenge, petitioner asserted in pertinent part in Form 8275-R: “The per se disqualification, the denial of attribution, and the requirement to affirm whether or not ownership is held through bearer shares all fail the test of enforceability under the doctrine enunciated in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). * * * As a result, none of these provisions are [sic] valid or enforceable.” Good Fortune Holding SA (Good Fortune Holding) is a corporation orga- nized under the laws of the Marshall Islands. From January 1 through December 31, 2007, 100% of the outstanding authorized stock shares that Good Fortune Holding had issued were in bearer form.  - 12 - Good Luck Shipping SA (Good Luck Shipping) is a corporation organized under the laws of the Marshall Islands. From January 1 through December 31, 2007, 100% of the outstanding authorized stock shares that Good Luck Shipping had issued were in bearer form. During respondent’s examination of petitioner’s 2007 Form 1120-F, petitioner provided respondent with copies of two documents titled “Intermediary Ownership Statement pursuant to US Treasury Regulation §1.883-4(d)(4)(i)”.8 8 Pursuant to sec. 1.883-4(d)(2)(i)(A) and (B), Income Tax Regs., an intermediary ownership statement, like the two that petitioner provided to respondent, and a qualified shareholder ownership statement, like the two that petitioner also provided to respondent, are required to be completed in order for a shareholder of a foreign corporation to be treated as a qualified shareholder of that corporation. A qualified shareholder ownership statement must be completed by any person claiming to be a qualified shareholder. An intermediary ownership statement must be completed by any intermediary in the chain of ownership between any such claimed qualified shareholder and the foreign corporation seeking qualified foreign corporation status. See id. In order for any such claimed qualified shareholder to be treated as a qualified shareholder, inter alia, the foreign corporation seeking qualified foreign corporation status must obtain the qualified shareholder ownership statement and the intermediate ownership statement required by sec. 1.883-4(d)(2)(i)(A) and (B), Income Tax Regs. See sec. 1.883- 4(d)(2)(i)(C), Income Tax Regs. Pursuant to sec. 1.883-4(d)(2)(ii), Income Tax Regs., the qualified shareholder ownership statement and the intermediate ownership statement are valid until the earlier of the last day of the third calendar year following the year in which each of those statements is signed or the day on which a change of circumstance occurs that makes the information in any such ownership statement incorrect. All of the ownership statements that petitioner provided to respondent were signed in February 2005, and there was no change of circumstance as described in sec. 1.883-4(d)(2)(ii), Income Tax Regs.  - 13 - One of those documents had been completed on behalf of Good Fortune Holding (Good Fortune Holding’s intermediate ownership statement). It was dated February 26, 2008, signed under penalties of perjury by Maria Meseti on behalf of and as the sole director of Good Fortune Holding, and indicated that the “first tax year to which this statement applies * * * [is] 2005”.9 Good Fortune Holding’s intermediate ownership statement stated in pertinent part as follows: Good Fortune Holding SA owned 100% of the capital stock of Good Fortune Shipping SA that was issued and outstanding as of the end of the tax year or years to which this statement applies. Good Fortune Shipping SA had only one class of authorized stock, called ordinary shares, during the tax year or years to which this statement applies. Good Fortune Holding SA owned the shares referenced above for more than half of the days of the tax year or years to which this statement applies. The other document titled “Intermediary Ownership Statement pursuant to US Treasury Regulation §1.883-4(d)(4)(i)” that petitioner provided to respondent during respondent’s examination of its 2007 Form 1120-F had been completed on behalf of Good Luck Shipping SA (Good Luck Shipping’s intermediate ownership statement). It was dated February 26, 2008, signed under penalties of perjury by Irene Georgiou on behalf of and as the sole director of Good Luck Shipping, and 9 See supra note 8.  - 14 - indicated that the “first tax year to which this statement applies * * * [is] 2005”.10 Good Luck Shipping’s intermediate ownership statement stated in pertinent part as follows: Good Luck Shipping SA owned 100% of the capital stock of Good Fortune Holding SA that was issued and outstanding as of the end of the tax year or years to which this statement applies. Good Fortune Holding SA had only one class of authorized stock, called ordinary shares, during the tax year or years to which this statement applies. Good Luck Shipping SA owned the shares referenced above for more than half of the days of the tax year or years to which this statement applies. During respondent’s examination of petitioner’s 2007 Form 1120-F, petitioner also provided respondent with copies of two documents titled “Qualified Shareholder Ownership Statement Pursuant to US Treasury Regulation”. One of those documents was dated February 26, 2008, and signed under penalties of perjury by Andreas Stengos (Mr. Stengos’ qualified shareholder ownership statement). In that statement, Andreas Stengos (Mr. Stengos) indicated that the “first tax year to which this statement applies * * * [is] 2005”.11 Mr. Stengos further stated in pertinent part as follows in Mr. Stengos’ qualified shareholder ownership statement: 10 See supra note 8. 11 See supra note 8.  - 15 - 4. Qualified Shareholder’s Name: Andreas Stengos * * * * * * * 7. Country in which Qualified Shareholder is fully liable to tax: Greece 8. I was resident in Greece for more than half of the days of the tax year or years to which this statement applies. 9. I owned an interest in Good Fortune Shipping SA, which is seeking qualified foreign corporation status, indirectly through the ownership of stock in Good Luck Shipping SA as described below. 10. I owned 40% of the common shares of the capital stock of Good Luck Shipping SA that were issued and outstanding as of the end of the tax year or years to which this statement applies. Good Luck Shipping SA has only one class of stock. 11. Good Luck Shipping SA owned all of the common shares of the capital stock of Good Fortune Holding SA that were issued and outstanding as of the end of the tax year or years to which this statement applies. Good Fortune Holding SA has only one class of stock. 12. Good Fortune Holding SA owned 100% of the common shares of the capital stock of Good Fortune Shipping SA that were issued and outstanding as of the end of the tax year or years to which this Ownership Statement applies. Good Fortune Shipping SA has only one class of stock. 13. The chain of ownership through which I owned an interest in Good Fortune Shipping SA during the tax year or years to which this statement applies is described above.  - 16 - 14. Good Luck Shipping SA, and Good Fortune Holding SA owned the shares referenced above for more than half of the days of the tax year or years to which this statement applies. *** The other document titled “Qualified Shareholder Ownership Statement Pursuant to US Treasury Regulation” that petitioner provided to respondent during respondent’s examination of its 2007 Form 1120-F was dated February 26, 2008, and signed under penalties of perjury by George Giouroukos (Mr. Giouroukos’ qualified shareholder ownership statement ). In that statement, George Giouroukos (Mr. Giouroukos) indicated that the “first tax year to which this statement applies * * * [is] 2005”.12 Mr. Giouroukos further stated in pertinent part as follows in Mr. Giouroukos’ qualified shareholder ownership statement: 4. Qualified Shareholder’s Name: George Giouroukos * * * * * * * 7. Country in which Qualified Shareholder is fully liable to tax: Greece 8. I was resident in Greece for more than half of the days of the tax year or years to which this statement applies. 9. I owned an interest in Good Fortune Shipping SA, which is seeking qualified foreign corporation status, indirectly through the ownership of stock in Good Luck Shipping SA as described below. 12 See supra note 8.  - 17 - 10. I owned 40% of the common shares of the capital stock of Good Luck Shipping SA that were issued and outstanding as of the end of the tax year or years to which this statement applies. Good Luck Shipping SA has only one class of stock. 11. Good Luck Shipping SA owned all of the common shares of the capital stock of Good Fortune Holding SA that were issued and outstanding as of the end of the tax year or years to which this statement applies. Good Fortune Holding SA has only one class of stock. 12. Good Fortune Holding SA owned 100% of the common shares of the capital stock of Good Fortune Shipping SA that were issued and outstanding as of the end of the tax year or years to which this Ownership Statement applies. Good Fortune Shipping SA has only one class of stock. 13. The chain of ownership through which I owned an interest in Good Fortune Shipping SA during the tax year or years to which this statement applies is described above. 14. I, Good Luck Shipping SA, and Good Fortune Holding SA owned the shares referenced above for more than half of the days of the tax year or years to which this statement applies. *** We consider now the ultimate issue and the underlying questions in the parties’ respective motions. We note initially that both respondent and petitioner assert that the following regulations under section 883, the validity of which petitioner challenges, are applicable for petitioner’s taxable year 2007: section 1.883-1T(c)(3)(i)(G), Temporary Income Tax Regs., 72 Fed. Reg. 34605 (June 25, 2007); section 1.883-4(b)(1)(ii), (c)(1), (d)(1), and (4)(i)(E), Income Tax Regs.;  - 18 - and section 1.883-4T(d)(4)(i)(C) and (D), Temporary Income Tax Regs., 72 Fed. Reg. 34608 (June 25, 2007). Although the final regulations that the parties cite and that petitioner argues are invalid do apply for petitioner’s taxable year 2007, the temporary regulations that the parties cite and that petitioner argues are invalid do not. Those temporary regulations generally were effective as of June 25, 2007, but were applicable for any taxable year of a foreign corporation that began after that date.13 See sec. 1.883-5T(d) and (e), Temporary Income Tax Regs., 72 Fed. Reg. 34609 (June 25, 2007). Petitioner’s taxable year 2007, the year at issue, began on January 1, 2007, not after June 25, 2007. The regulations that are applicable for petitioner’s taxable year 2007 and that prescribe certain rules for purposes of section 883 with respect to ownership of a foreign corporation through bearer shares are section 1.883-4(b)(1)(ii), (c)(1), (d)(1), and (4)(i)(E), Income Tax Regs. (We shall refer to the regulations under section 883 that prescribe certain rules with respect to ownership of a foreign 13 Pursuant to sec. 1.883-5T(d) and (e), Temporary Income Tax Regs., 72 Fed. Reg. 34609 (June 25, 2007), a taxpayer could have elected to apply only sec. 1.883-3T, Temporary Income Tax Regs., 72 Fed. Reg. 34607 (June 25, 2007), relating to the treatment of any controlled foreign corporation (CFC) for any open taxable years of the foreign corporation that began on or after December 31, 2004. Petitioner does not claim to be, and is not, a CFC.  - 19 - corporation through bearer shares and that are applicable for petitioner’s taxable year 2007 as the bearer share regulations.14) We set forth below what those bearer share regulations, the validity of which petitioner challenges, provide. Section 1.883-4(b)(1)(ii), Income Tax Regs., provides that a shareholder is a qualified shareholder only if, inter alia, the shareholder does not own, directly or indirectly by applying the attribution rules of section 1.883-4 (c), Income Tax Regs., the shareholder’s interest in the foreign corporation through bearer shares. 14 The Department of the Treasury (Treasury Department) amended the bearer share regulations effective for taxable years that began after September 17, 2010 (2010 amended bearer share regulations). The parties agree that the 2010 amended bearer share regulations do not apply for petitioner’s taxable year 2007 and that in any event petitioner’s bearer shares outstanding during its taxable year 2007 did not satisfy those amended regulations. Pursuant to the 2010 amended bearer share regulations, a foreign corporation may take into account in determining whether it is described in sec. 883(c)(1) bearer shares that it issued which are maintained (1) in a dematerialized book-entry system in which the bearer shares are represented only by book entries and no physical certificates are issued or transferred or (2) in an immobilized book-entry system in which evidence of ownership is maintained on the books and records of the corporate issuer of the bearer shares or by a broker or other financial institution. See, e.g., secs. 1.883-1(c)(3)(i)(G), 1.883-4(b)(1)(ii), (c), Income Tax Regs. In amending the bearer share regulations in 2010, the Treasury Department explained that it did so because it understood that “it has become increasingly common for corporations (both publicly traded and privately held) to use a dematerialized or immobilized book-entry system for maintaining their registered and bearer shares. * * * [and] “[b]ecause these systems provide the ability to reliably identify the beneficial owner of [the] bearer shares”. 75 Fed. Reg. 56860 (Sept. 17, 2010).  - 20 - Section 1.883-4(c)(1), Income Tax Regs., provides that for purposes of the attribution rules of section 1.883-4(c), Income Tax Regs., “[n]o attribution will apply to an interest held directly or indirectly through bearer shares.” Section 1.883-4(d)(1), Income Tax Regs., provides that a corporation that relies on the stock ownership test of sections 1.883-1(c)(2) and 1.883-4, Income Tax Regs., must establish all the facts necessary to satisfy the Commissioner of Internal Revenue (Commissioner) that 50% or more of the value of its shares is owned, or treated as owned under the attribution rules of section 1.883-4(c), Income Tax Regs., by qualified shareholders. However, section 1.883-4(d)(1), Income Tax Regs., further provides: “A foreign corporation cannot meet this requirement with respect to any stock that is issued in bearer form. A shareholder that holds shares in the foreign corporation either directly or indirectly in bearer form cannot be a qualified shareholder.” Section 1.883-4(d)(4)(i)(E), Income Tax Regs., sets forth, inter alia, certain information that must appear in the required so-called ownership statement of any person claiming to be a qualified shareholder of a foreign corporation that seeks qualified foreign corporation status for purposes of section 883.15 That regulation requires the person claiming to be a qualified shareholder of such a foreign 15 See supra note 8.  - 21 - corporation to indicate in the ownership statement whether that person’s owner- ship interest in that foreign corporation “is owned directly or indirectly through bearer shares”. As is apparent from our discussion of pertinent regulations under section 883, including the bearer share regulations, and as petitioner correctly points out, the effect of the bearer share regulations is that petitioner, a foreign corporation, is precluded from even attempting to establish, let alone establishing, to the satisfac- tion of respondent that for its taxable year 2007 its shareholders meet the qualified shareholder stock ownership test in section 883(c)(1)16 and the regulations thereunder. Consequently, as is also apparent from our discussion of pertinent regulations under section 883, including the bearer share regulations, and as petitioner also correctly points out, petitioner is unable to establish to respondent’s satisfaction (1) that it is a qualified foreign corporation as defined in section 1.883-1(c), Income Tax Regs., and (2) that its USSGTI for its taxable year 2007 is excludible from gross income and exempt from U.S. taxation under section 883(a). 16 Petitioner claims that during its taxable year 2007 certain individuals owned its stock through certain entities, thereby implicating sec. 883(c)(4). For convenience, we shall generally refer only to the ownership rules under sec. 883(c)(1), which necessarily implicates sec. 883(c)(4) where stock of a foreign corporation is owned, as petitioner claims is the case with petitioner, indirectly through other entities.  - 22 - The parties agree that those unfavorable results for petitioner occur only because all of its shares are owned directly and indirectly through bearer shares and the bearer share regulations interpret section 883(c)(1) in a way that precludes a foreign corporation the shares of which were issued in bearer form from taking such shares into account in establishing the ownership of the stock of the foreign corporation for purposes of determining whether the foreign corporation is described in section 883(c)(1) and thus whether it is entitled to the benefits of section 883(a)(1). We address now whether the bearer share regulations are valid regulations. The parties agree that we are required to follow the bearer share regulations unless we hold that those regulations are invalid under the two-step analysis that the Supreme Court of the United States (Supreme Court) prescribed in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron), 467 U.S. 837 (1984). See Mayo Found. for Med. Educ. & Research v. United States (Mayo  - 23 - Found.), 562 U.S. 44, 54-58. (2011).17 They disagree over the application of that two-step analysis to the undisputed facts here. The first step of the two-step analysis under Chevron (sometimes, step one analysis) is to inquire “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. If it has and “[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842- 843. A court must begin the step one analysis with the text of the statute in question. The U.S. Court of Appeals for the District of Columbia Circuit, the court to which an appeal in this case would normally lie, clarified in Am. Bankers Ass’n v. Nat’l Credit Union Admin., 271 F.3d 262, 267 (D.C. Cir. 2001), that 17 Congress gave the Secretary of the Treasury (Treasury Secretary) in sec. 7805(a) the authority to prescribe “all needful rules and regulations for the enforcement of” the Internal Revenue Code. In Mayo Found. for Med. Educ. & Research v. United States (Mayo Found.), 562 U.S. 44, 55-58 (2011), the Supreme Court clarified that it is necessary to subject to the two-step analysis of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron), 467 U.S. 837 (1984), regulations, like the bearer share regulations at issue here, which the Treasury Secretary promulgated under the authority of sec. 7805(a) pursuant to so- called notice-and-comment procedures--a “‘significant’ sign”, according to the Supreme Court, that those regulations are entitled to deference under Chevron. See Mayo Found., 562 U.S. at 57-59. (For convenience, we sometimes use interchangeably the terms “Treasury Secretary” and “Treasury Department”.)  - 24 - [a]lthough Chevron step one analysis begins with the statute’s text, we must not “confine [ourselves] to examining a particular statutory provision in isolation. The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L. Ed.2d 121 (2000). We must also “exhaust the traditional tools of statutory construction,” Natural Res. Def. Council, Inc. v. Browner, 57 F.3d 1122, 1125 (D.C. Cir.1995) (internal quotation marks and citation omitted), including examining the statute’s legisla- tive history to “shed new light on congressional intent, notwithstand- ing statutory language that appears superficially clear,” id. at 1127 (internal quotation marks and citation omitted). And, of course, “we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision . . . to an administrative agency.” Brown & Williamson, 529 U.S. at 121, 120 S.Ct. 1291. If, applying these principles, we find that “Congress has directly spoken to the precise question at issue . . . that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. See Sierra Club v. EPA, 551 F.3d 1019, 1027 (D.C. Cir. 2008). Only if Congress did not directly address in the statute in question the precise question presented to a court may the court proceed to step two of the two- step analysis under Chevron (sometimes, step two analysis). See Chevron, 467 U.S. at 842-843. In other words, only if the statute in question is silent or ambigu- ous with respect to the precise question presented may a court proceed to the step two analysis. See id. at 843.  - 25 - If a court is permitted under the step one analysis to proceed to the step two analysis, the court must decide whether the answer of the agency to the precise question with respect to which the statute in question is silent or ambiguous is based upon a permissible interpretation of that statute. See id. In deciding that issue, a court “need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question had initially arisen in a judicial proceed- ing.” Id. n.11. Under the step two analysis, a court may not substitute its own interpretation of the statute in question if the agency’s construction of the statute is reasonable. See id. at 844. That is to say, under the step two analysis, a court may not conclude that a regulation is invalid, and instead must defer to the regulation, “unless * * * [it is] arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844; see Mayo Found., 562 U.S. at 53 (quoting Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 242 (2004)). We turn now to the parties’ disagreement over the application of the two- step analysis of Chevron to the undisputed facts here. With respect to the step one analysis, it is respondent’s position that the inquiry under that analysis with respect to petitioner, a foreign corporation which sought the benefits of section 883(a)(1) for its taxable year 2007 and the shares of which were issued in bearer  - 26 - form, is “whether the text of the statute and its legislative history speaks with the precision necessary to say definitively whether ownership [by individuals] of [such] a foreign corporation can be established for purposes of section 883(c)(1) through bearer shares.”18 The answer to that inquiry, respondent maintains, is that neither the text of the statute nor its legislative history speaks with the precision necessary to say definitively whether ownership by individuals of such a foreign corporation may be established for purposes of section 883(c)(1) through bearer shares. Consequently, according to respondent, it is necessary to proceed to the step two analysis under Chevron. Petitioner agrees with respondent that “the first question [under Chevron] * * * is ‘whether Congress has directly spoken to the precise question at issue,’ because, ‘[i]f the intent of Congress is clear, that is the end of the matter’.” Petitioner also agrees with respondent that section 883(c)(1) “is silent with respect to how a foreign corporation can establish ownership.” According to petitioner, “[s]ection 883(c)(1) is silent on substantiation of ownership presumably because Congress expected the Respondent to address the subject in regulations.” None- theless, petitioner disagrees with respondent that, because section 883(c)(1) is 18 Sec. 883(c)(4), titled “Stock Ownership Through Entities”, provides certain rules for purposes of sec. 883(c)(1) where stock is owned directly or indirectly by or for a corporation, partnership, trust, or estate. See supra note 16.  - 27 - silent with respect to how to establish or substantiate ownership under that section, there is a gap in section 883(c)(1) that the Treasury Secretary may address. According to petitioner, [r]espondent conflates substantiation of ownership and ownership. “Owned” [in section 883(c)(1)] is commonly understood to include all types of ownership. Proof of ownership is not synonymous with the existence of ownership itself. * * * It would be Orwellian to interpret the word[] “owned” [in section 883(c)(1)] to deny ownership of bearer shares because ‘own- ed’ [in section 883(c)(1)] is silent as to how ownership of such shares can be proved. * * * The plain language Congress employed [in section 883(c)(1)]-- “owned”--identifies the key issue--“ownership” that can only reason- ably be interpreted to mean any form of ownership. The reality is that the Challenged Provisions [bearer share regula- tions] prohibit proof of ownership of bearer shares even though they concede that such shares are owned by individuals. The Challenged Provisions fail Chevron Step 1. Petitioner further elaborates in pertinent part on its position regarding the step one analysis as follows: According to the Supreme Court, absent an express indication to the contrary, Congress intends the words it uses in its enactments to carry “‘their ordinary, contemporaneous, common meaning.’” * * * In this case, Congress gave no indication that it intended the words of Section 883[(c)(1)] to have anything other than their ordi- nary common meaning.  - 28 - * * * The 1982 edition of American Heritage Dictionary de- fined “own” as, “to have or possess . . . to obtain possession of what belongs to one.” Similarly, the 1986 edition of Webster’s New International Dictionary defined “own” as, “to have or hold property or appurtenance; have a rightful title to, whether legal or natural; possess . . . * * * * * * * The language of Section 883(c)(1) leaves little, if any, room for interpretation at least with respect to the use of the words, [“]is owned by individuals[”]. However, to the extent the Treasury Department interprets “is owned by individuals” in the Section 883 Regulations, it is bound by the ordinary, common meaning of the words used in the statute. With respect to the meaning of the words, “is owned by individ- uals” in Section 883, the Challenged Provisions adopt a meaning that contradicts the unambiguous language used by Congress. * * * The fatal flaw in the Challenged Provisions is that they write the words “is owned by individuals” out of Section 883[(c)(1)], at least with respect to bearer shares, thereby denying the Petitioner and its controlling shareholders the opportunity to prove that they own these shares. * * * [T]he Challenged Provisions deny the exclusion [under section 883(a)(1)] based solely on the kind of shares issued by Petitioner and owned by its shareholders. According to the Chal- lenged Provisions, bearer shares cannot be “owned” by anyone for purposes of qualifying under Section 883. This narrow interpretation of “owned” is counter-intuitive and squarely conflicts with the plain meaning and common usage of the words used in the statute. * * * * * * * The Challenged Provisions fail the first and most basic test required of an agency’s rules: they conflict with the plain language of the statute that they are intended to interpret. Instead of promulgating  - 29 - rules to provide guidance on how owners may prove ownership of bearer shares, the Challenged Provisions prohibit their use for Section 883 purposes by denying the benefit of “ownership” of such shares to their owners. [Citations and fn. refs. omitted.] Petitioner’s position under the step one analysis under Chevron and its arguments in support of its position are similar to the taxpayers’ position under that analysis and their arguments in support of their position in Mayo Found., 562 U.S. 44. In Mayo Found., the Supreme Court addressed the validity of certain regulations issued under section 3121(b)(10) (student FICA tax exemp- tion) which exempts the service of “students” from tax on their wages under the Federal Insurance Contributions Act (FICA). In that case, Mayo Foundation for Medical Education and Research, Mayo Clinic, and the Regents of the Univer- sity of Minnesota (collectively, Mayo organizations or the taxpayers) claimed that certain physicians, who had served during the tax period in question as medical residents in their respective medical residency programs and who had spent in that capacity between 50 and 80 hours a week on patient-related matters, should be viewed as students for purposes of the student FICA tax exemption. See id. at 47-48. Certain longstanding regulations that were not at issue in Mayo Found. allowed the student FICA tax exemption under section 3121(b)(10) to students  - 30 - who worked for their schools “as an incident to and for purposes of pursuing a course of study.” Sec. 31.3121(b)(10)-2(d), Employment Tax Regs; see Mayo Found., 562 U.S. at 49. A determination of whether an individual’s work was “incident” to the individual’s studies had been made under those regulations on a case-by-case analysis. That case-by-case analysis was no longer required under certain regulations that the Treasury Secretary promulgated, effective for 2005, and that were at issue in Mayo Found. See Mayo Found., 562 U.S. at 49-50. The regulations that were at issue in Mayo Found. provide that “[t]he services of a full-time employee”, as defined by the employer’s policies, but in any event including any employee who is normally scheduled to work 40 hours or more each week, “are not incident to and for the purpose of pursuing a course of study.” Sec. 31.3121(b)(10)-2(d)(3)(iii), Employment Tax Regs.; see Mayo Found., 562 U.S. at 50-51. (We shall refer to the regulations at issue in Mayo Found. as the full-time employee regulations.) The Mayo organizations commenced an action for refunds of the FICA taxes that they had withheld on the so-called stipends that they had paid to their respective residents during the second quarter of 2005. In support of their entitlement to the refund that they sought, it was the position of the Mayo organizations that their respective residents qualified for the student FICA tax  - 31 - exemption and that the full-time employee regulations were invalid. See Mayo Found., 562 U.S. at 51. In support of that position, the Mayo organizations argued that under the step one analysis of Chevron the text of the statute in- volved is unambiguous and that “the dictionary definition of ‘student’ * * * plainly encompasses residents.” Id. at 51-52. In Mayo Found., the Supreme Court specifically rejected the Mayo organi- zations’ argument under the step one analysis of Chevron that the statute in question there was unambiguous, at least insofar as it applied to working profes- sionals. The Supreme Court held that that statute did not “‘speak[ ] with the precision necessary to say definitively whether * * * [it] applies to’ medical residents.” Id. at 52-53. For reasons that are essentially the same as the reasons for which the Supreme Court rejected the taxpayers’ position and their arguments in support of their position in Mayo Found. with respect to the application of the step one analysis under Chevron, 467 U.S. at 842-843, we reject petitioner’s position and its arguments in support of its position with respect to the application of that step one analysis here. We must decide under the step one analysis “whether Congress has directly spoken to the precise question at issue”, Chevron, 467 U.S. at 842, of how ownership by individuals may be established for purposes of section  - 32 - 883(c)(1) by a foreign corporation seeking the benefits of section 883(a)(1). The words “owned by individuals” in section 883(c)(1) do not, as petitioner appears to acknowledge, explain or otherwise address how to establish ownership by individ- uals for purposes of section 883(c)(1), let alone how to establish ownership where the shares of the foreign corporation are owned in bearer form. The dictionary definitions of the word “own” on which petitioner relies,19 which petitioner claims are unambiguous definitions, do not address the problem under section 883(c) of determining how to establish ownership by individuals for purposes of section 883(c)(1) that the Internal Revenue Service (IRS) confronts when it examines a return of a foreign corporation seeking the benefits of section 883(a)(1) for a prior taxable year. In any such examination, the IRS must determine after the fact whether during at least one-half of the total number of days in that prior taxable year 50% or more of the value of the stock of that corporation was owned by individuals who were not residents of a foreign country that granted an equivalent exemption to U.S. corporations. In that event, section 883(c)(1) would preclude that foreign corporation for that prior taxable year from excluding from gross 19 As noted above, according to petitioner, the dictionary definitions of the word “own” are “to have or possess . . . to obtain possession of what belongs to one” and to have or hold property or appurtenance; have a rightful title to, whether legal or natural; possess”.  - 33 - income and exempting from U.S. taxation under section 883(a)(1) the income described in section 883(a)(1). We conclude that “Congress has [not] directly spoken to the precise ques- tion at issue”, Chevron, 467 U.S. at 842, of how ownership by individuals may be established for purposes of section 883(c)(1) by a foreign corporation seeking the benefits of section 883(a)(1), including such a foreign corporation the shares of which were issued in bearer form. We also conclude that section 883(c)(1) as well as its legislative history is silent--there is a gap in that section as well as its legislative history--as to how ownership by individuals may be established for purposes of section 883(c)(1) by a foreign corporation seeking the benefits of section 883(a)(1), including such a foreign corporation the shares of which were issued in bearer form. We hold that the Treasury Secretary was authorized under Chevron to fill that gap by promulgating regulations. See Chevron, 467 U.S. at 842-843. We consider now the step two analysis under Chevron. It is respondent’s position under that analysis that the bearer share regulations are a reasonable construction of section 883(c)(1). It is petitioner’s position under the step two analysis that the bearer share regulations are contrary to the plain language of section 883(c)(1) and its legislative history. Consequently, petitioner maintains,  - 34 - those regulations are not a reasonable interpretation of section 883(c)(1) but are arbitrary and capricious and were promulgated “for the administrative conve- nience” of the Treasury Department. In support of its position, petitioner argues (1) that the IRS should allow all foreign corporations the shares of which were issued in bearer form to establish the ownership of their respective shares, includ- ing ownership for prior taxable years, on a case-by-case basis and (2) that the Treasury Secretary unreasonably, arbitrarily, and capriciously distinguished in the bearer share regulations between ownership through bearer shares and ownership through shares issued to named persons and “denied attribution of ownership to holders of bearer shares,” thereby “effectively redefin[ing] ‘is owned’ [in section 883(c)(1)] to exclude ownership of such shares.” As was true of its position and arguments under the step one analysis, petitioner’s position under the step two analysis under Chevron and its arguments in support of its position are similar to the taxpayers’ position under the step two analysis20 and their arguments in support of their position in Mayo Found., 562 20 The Mayo organizations initially took the position in Mayo Found. that the step two analysis of Chevron was not the appropriate framework within which to analyze what the Supreme Court held in that case was an ambiguous statute. According to those organizations, the multifactor analysis of Nat’l Muffler Dealers Ass’n, Inc. v. United States, 440 U.S. 472 (1979), was the proper analysis to use in reviewing an ambiguous Federal tax statute. See Mayo Found. 562 U.S. at 53-54. (continued...)  - 35 - U.S. 44. In Mayo Found., the Mayo organizations argued under the step two analysis of Chevron (1) that the Commissioner “should be required to engage in a case-by-case inquiry into” specifically what each medical resident does and why each such resident does it and (2) that the Treasury Secretary arbitrarily distin- guished in the full-time employee regulations between so-called hands-on training and classroom instruction. See id. at 58-59. The Supreme Court rejected those arguments in Mayo Found. In doing so, the Supreme Court concluded: Regulation, like legislation, often requires drawing lines. * * * Focus- ing on the hours an individual works and the hours he spends in studies is a perfectly sensible way of accomplishing that goal [of distinguishing between workers who study and students who work]. The [Treasury] Department explained that an individual’s service and his “course of study are separate and distinct activities” in “the vast majority of cases,” and reasoned that “[e]mployees who are working enough hours to be considered full-time employees . . . have filled the conventional measure of available time with work, and not study.” * * * The Department thus did not distinguish classroom education from clinical training but rather education from service. The Depart- ment reasonably concluded that its full-time employee rule would “improve administrability,” * * * and it thereby “has avoided the wasteful litigation and continuing uncertainty that would inevitably accompany any purely case-by-case approach” like the one [the] Mayo [organizations] advocate[]. * * * Id. at 59. 20 (...continued) In rejecting that position, the Supreme Court held: “The principles underlying our decision in Chevron apply with full force in the tax context.” Id. at 55.  - 36 - Petitioner does not appear to dispute that its position and its arguments under the step two analysis of Chevron with respect to the bearer share regulations are similar to the position and the arguments under that analysis that the taxpayers advanced in Mayo Found., 562 U.S. 44, with respect to the full-time employee regulations at issue there and that the Supreme Court rejected. Petitioner main- tains, however, that we should not reject its position and its arguments under the step two analysis with respect to the bearer share regulations. That is because, according to petitioner, it is relying on the “same logic” upon which it claims the Supreme Court relied in upholding the full-time employee regulations at issue in Mayo Found. Petitioner asserts: The logic the Supreme Court used to uphold * * * [the full-time employee regulations] in Mayo is the same logic the Petitioner relies on to invalidate the * * * [bearer share regulations]. In Mayo, the Supreme Court reasoned that the medical residents [involved in that case] shared all of the basic characteristics of full-time employees (benefits, duties, etc.). The fact that there was an element of school- ing involved in the medical residencies did not transform full-time employees into students for FICA purposes. In Mayo, the Supreme Court ruled that it was logical and reasonable for the Treasury Department to look at the educational aspects of the medical residents’ routines, compare it [sic] to their other duties, and conclude that they were workers much more than they were students for purposes of FICA taxes.  - 37 - According to petitioner, in contrast to the full-time employee regulations at issue in Mayo Found., the bearer share regulations at issue here treat two like things, bearer shares and shares issued to named per- sons, as opposites even though they share the same characteristics of ownership * * *. There is no analysis or evaluation [in the bearer share regulations] of the differences between the types of shares, just a blanket denial of ownership or at least attribution of ownership for “qualified shareholder” purposes to owners of bearer shares. * * * It is true that ownership of shares issued in the name of the holder and recorded on the books and records of a corporation are easier to track, but there is no difference between them in terms of “being owned.” We reject petitioner’s position and its arguments in support of its position with respect to the step two analysis under Chevron. The bearer share regulations are not, as petitioner asserts, “just a blanket denial of ownership or at least attribu- tion of ownership for ‘qualified shareholder’ purposes to owners of bearer shares.” Those regulations acknowledge that the shareholder(s) of a foreign corporation seeking the benefits of section 883(a)(1) the shares of which were issued to the stockholder(s) in bearer form owns, directly or indirectly, stock in that corpora- tion. See, e.g., sec. 1.883-4(b)(1)(ii), (c)(1), Income Tax Regs. However, the bearer share regulations provide that the bearer shares of that foreign corporation which the stockholder(s) owns may not be taken into account in establishing the ownership of the stock of the foreign corporation for purposes of determining  - 38 - whether the foreign corporation is described in section 883(c)(1) and thus whether it is entitled to the benefits of section 883(a)(1). The Treasury Department took that position when it first proposed regulations under section 883 in 2000 pursuant to notice-and-comment procedures21 after Congress added section 887 to the Code and amended section 883 in the 1986 Act, when it reproposed regulations under section 883 in 2002 pursuant to notice-and-comment procedures, and when it finalized regulations under section 883 in 2003 that apply for petitioner’s taxable year 2007. See 65 Fed. Reg. 6065 (Feb. 8, 2000) (2000 proposed section 883 regulations); 67 Fed. Reg. 50510 (Aug. 2, 2002) (2002 reproposed section 883 regulations); T.D. 9087, 2003-2 C.B. 781 (applicable final section 883 regula- tions). The Treasury Department did so because of “the difficulty of reliably demonstrating the true ownership of such [bearer] shares”. See 67 Fed. Reg. 50518. In issuing the 2000 proposed section 883 regulations and the 2002 repro- posed section 883 regulations and in promulgating the applicable final section 883 regulations, the Treasury Secretary had in mind and was concerned with imple- 21 As discussed above, the Supreme Court concluded in Mayo Found., 562 U.S. at 58-59, that if regulations or rules are issued after notice-and-comment procedures, that fact is a “‘significant’ sign” that those regulations or rules merit deference under Chevron.  - 39 - menting the intent of Congress when it amended section 883 in the 1986 Act. In this regard, the Treasury Secretary had in mind and was concerned with establish- ing or identifying the ultimate beneficial owners of a foreign corporation seeking the benefits of section 883(a)(1) and preventing such a corporation whose individ- ual owners are described in section 883(c)(1) from securing those benefits, as Congress intended when it amended section 883 in the 1986 Act. As discussed above, when Congress amended section 883 in the 1986 Act, it required that any foreign corporation seeking to obtain the benefits of section 883(a) satisfy a stricter standard than section 883 had required before that amend- ment. A foreign corporation’s entitlement under section 883(a)(1) to exclude certain income from gross income and exempt that income from U.S. tax no longer was based solely upon the country in which the foreign corporation’s vessel was registered or documented. Instead, Congress added in its amendment of section 883 in the 1986 Act a second hurdle to that favorable treatment by enacting section 883(c) in order to curb abuse by residents of certain foreign countries who owned stock in a foreign corporation that was seeking the benefits of section 883(a)(1) where those foreign countries did not provide an equivalent exemption to U.S. corporations.  - 40 - In order to apply section 883(c)(1), the provision applicable here that Congress added to the Code in the 1986 Act, it is necessary to know the country of residence of the shareholders of the foreign corporation seeking the benefits under section 883(a)(1). When the Treasury Department proposed in 2000 and repro- posed in 2002 regulations under section 883 and when it promulgated the applica- ble final section 883 regulations, that knowledge in the case of a foreign corpora- tion the shares of which were issued in bearer form was virtually impossible to obtain because it was difficult to establish the ownership of those bearer shares, especially after the fact for prior taxable years. Bearer shares are an unregistered form of stock certificates that do not identify the owner, but that confer ownership on whoever possesses the bearer stock certificates. See, e.g., 52 MIRC, pt. 1, div. 5, sec. 42(2);22 see also Anderson v. Commissioner, T.C. Memo. 2009-44, 2009 WL 454182, at *2, aff’d, 698 F.3d 160 (3d Cir. 2012). A foreign corporation the shares of which are in bearer form may be conveyed simply by transferring physical possession of the shares. E.g., 52 MIRC, pt. 1, div. 5, sec. 42(2) (“The transfer of bearer shares shall be by delivery of the certificates.”). Thus, a principal advantage of ownership of a 22 As noted above, petitioner was organized as a corporation under the laws of the Marshall Islands.  - 41 - foreign corporation through bearer shares is the ability to transfer quickly and anonymously the ownership of those shares. Bearer shares make it virtually impossible to know who the actual shareholders or owners of a corporation are because the only proof of ownership is physical possession at a particular point in time of the paper bearer share certificate. See id. Bearer shares generally are not registered with any central authority, regulatory agency, or tax office. See, e.g., id.; see also Anderson v. Commissioner, 2009 WL 454182, at *2. Indeed, we believe that petitioner acknowledges that it was frequently not able to track the transfer of bearer shares from one person to another person. That is because the parties stipulated that during petitioner’s taxable year 2007, petitioners did not maintain (1) a stock register, a ledger listing the name(s) of the owner(s) of the bearer share certificate(s), or a stock transfer book; (2) an immobilized book-entry system in which evidence of ownership of its bearer shares was maintained in its books and records; or (3) an immobilized book-entry system in which evidence of ownership of its bearer shares was maintained by a broker or financial institution. In contrast to registered shares, no name is shown on a bearer share certifi- cate that a company issues. Rather, any person who has physical possession of the bearer share certificate is recognized as a shareholder or owner of the company. See, e.g., 52 MIRC, pt. 1, div. 5, sec. 42(2); see also Anderson v. Commissioner,  - 42 - 2009 WL 454182, at *2. It is extremely easy to convey or transfer the ownership of a company that is incorporated with the authority to, and that does, issue its stock in bearer form. The mere delivery, or transfer of possession, of the com- pany’s stock certificate issued in bearer form to another person effects a change of ownership. No additional actions are necessary. See, e.g., 52 MIRC, pt. 1, div. 5, sec. 42(2). Consequently, if a person possessing bearer share certificates intends, or purports, to transfer those bearer shares to another person, all that the person possessing the bearer shares certificates must do to effect any such transfer is to give those certificates to the other person. See, e.g., id. There is no need for any paperwork or changes to the registry of the company because only the number of bearer shares that was issued to create the company and the numeration of those shares are shown on the physical bearer share certificate, without making any reference to or identifying the owners.23 See, e.g., id. Because of the manner in which ownership of the stock of a company the shares of which were issued in bearer form is conveyed or transferred, the shareholder(s) of the company remain 23 As discussed above and as the parties stipulated, petitioner maintained no shareholders register, ledger showing the name(s) of the owner(s) of the bearer shares, or stock transfer book.  - 43 - in almost complete anonymity. Any change in the identity of such a company is, and remains, a completely confidential act.24 When the Treasury Department issued the 2000 proposed section 883 regulations and the 2002 reproposed section 883 regulations and when it promul- gated the applicable final section 883 regulations, it included rules in those respective regulations with respect to the treatment of stock owned through bearer shares in a foreign corporation seeking the benefits of section 883(a)(1). At those respective times and at other relevant times, the confidentiality or anonymity with which bearer shares could have been conveyed or transferred had been and continued to be a problem in the international community, and specifically in the shipping industry. For example, in 1998, the Organisation for Economic Co-oper- ation and Development (OECD) Committee on Fiscal Affairs issued a report identifying bearer shares as one of the most harmful tax characteristics globally of certain tax systems. See OECD, Committee on Fiscal Affairs, Harmful Tax Competition: An Emerging Global Issue 33 (April 1998), http://www.oecd.org/ 24 Moreover, we agree with respondent that the act of improperly depositing bearer share certificates with a custodian would raise additional concerns and evidentiary issues requiring determinations by a court or other authority, possibly a foreign court or another foreign authority, relating to the intent behind certain custodial deposits that may construed as transfers of bearer shares. See Goldsmith v. Commissioner, 86 T.C. 1134, 1142-1144 (1986); Goldsmith v. Commissioner, T.C. Memo. 1986-227, 1986 WL 21934.  - 44 - tax/transparency/44430243.pdf. As a further example, in 2001, the OECD Steering Group on Corporate Governance issued a report in which it identified bearer shares as one of the most common and effective mechanisms of providing total anonymity regarding beneficial ownership of the company issuing the bearer shares. See OECD, Steering Group on Corporate Governance, Behind the Corpo- rate Veil: Using Corporate Entities for Illicit Purposes 29-30 (November 2001), http://www.oecd.org/daf/ca/43703185.pdf. As a final example, in 2003, the OECD Maritime Transport Committee issued a report in which it identified bearer shares as one of the most common and effective mechanisms of providing total anonymity regarding beneficial ownership of a company in the shipping industry issuing the bearer shares. See OECD, Maritime Transport Committee, Ownership and Control of Ships 8 (March 2003), http://ntl.bts.gov/lib/24000/24400/24410/ 17846120.pdf. Because of the problems of establishing for purposes of section 883(c)(1) the ownership by individuals of bearer shares, the Treasury Department proposed regulations in 2000 and reproposed regulations in 2002 under section 883 which did not take bearer shares into account in establishing the ownership of the stock of a foreign corporation for purposes of determining whether the foreign corpora- tion is described in section 883(c)(1) and thus whether it is entitled to the benefits  - 45 - of section 883(a)(1). Those proposed and reproposed bearer share rules in those proposed and reproposed section 883 regulations were virtually identical to the bearer share regulations in the final regulations under section 883 that the Trea- sury Department promulgated in 2003 and that are at issue here. The Treasury Department explained that although it had received public comments recommend- ing that it modify the bearer share rules in the 2000 proposed section 883 regula- tions, it did not do so. The Treasury Department gave the following explanation for its decision not to change those bearer share rules when it issued the 2002 reproposed section 883 regulations: Bearer Shares. Section 1.883-4(b)(1)(ii) of the 2000 proposed regula- tions provides that a shareholder is a qualified shareholder only if the shareholder does not own its interest in the foreign corporation through bearer shares, either directly or by applying the attribution rules of § 1.883-4(c). Several commentators criticized this rule. They contended that the restriction on the use of bearer shares raises concerns of fundamental fairness and that the IRS should not attempt to regulate the personal property rights of nonresident alien individuals. These commentators suggested that the rule should be deleted or substantially modified to allow the use of bearer shares whose ownership can be substantiated to the satisfaction of the Commissioner. Due to the difficulty of reliably demonstrating the true ownership of such shares, the [2002] reproposed [section 883] regulations do not adopt this suggestion, in the interest of sound tax administration. 67 Fed. Reg. 50518 (Aug. 2, 2002).  - 46 - When the Treasury Department promulgated the applicable final section 883 regulations, which included the bearer share regulations at issue, it pointed out the inherent difficulty that arises in attempting to establish ultimate ownership of bearer shares for purposes of section 883(c)(1). See T.D. 9087, 2003-2 C.B. at 786. We conclude that the bearer share regulations do not contravene section 883(c)(1) but are a reasonable construction of that section which provides the IRS with the appropriate tools needed to enforce section 883. The bearer share regulations provide certainty and resolve the difficult problems of proof associated with establishing ownership of bearer shares, especially for prior taxable years. In not allowing bearer shares to be taken into account in establishing the ownership of the stock of a foreign corporation for purposes of determining whether the foreign corporation is described in section 883(c)(1) and thus whether it is entitled to the benefits of section 883(a)(1), the bearer share regulations set forth a sensible approach to effecting the intent of Congress in enacting section 883(c)(1) to ensure that abuse will not occur which will result in certain types of shipping transportation income described in section 883(a)(1) not being taxed. We believe that the rigid framework that the Treasury Department adopted in the bearer share regulations in the applicable final section 883 regulations, as well as in other  - 47 - portions of those final regulations, for determining whether a foreign corporation seeking the benefits of section 883(a)(1) is described in section 883(c)(1) is consistent with section 883(c)(1) and with the intent of Congress in amending section 883 in the 1986 Act. We also conclude that the bearer share regulations are consistent with the admonition of the Supreme Court that “exemptions from taxation are to be construed narrowly.” Bingler v. Johnson, 394 U.S. 741, 752 (1969). We hold that the Treasury Department did not act unreasonably, arbitrarily, or capriciously or in violation of section 883(c)(1) or its legislative history when it interpreted that section in the bearer share regulations in a way that precluded a foreign corporation the shares of which were issued in bearer form from taking such shares into account in establishing the ownership of the stock of the foreign corporation for purposes of determining whether the foreign corporation is described in section 883(c)(1) and thus whether it is entitled to the benefits of section 883(a)(1). We hold that the bearer share regulations satisfy the step one analysis and the step two analysis under Chevron. We hold that those regulations are valid. Petitioner acknowledges that if we were to hold that the bearer share regulations  - 48 - are valid, which we have, it is not entitled for its taxable year 2007 to exclude from its gross income or exempt from U.S. taxation its USSGTI of $3,587,375. We have considered all of the contentions and arguments of petitioner that are not discussed herein, and we find them to be without merit, irrelevant, and/or moot. To reflect the foregoing, An order granting respondent’s motion and denying petitioner’s motion and decision for respondent will be entered. 

13 So.3d 461 (2007) MILLICENT CARSON v. JACKSON MOORE ET AL. No. 2060849. Court of Civil Appeals of Alabama. September 11, 2007. Decision of the Alabama Court of Civil Appeals without published opinion. Rehearing denied.

992 F.2d 630 25 Fed.R.Serv.3d 953 James HEATH, First Named Class Representative; HaroldLancy; Harold Keith; Johnny Edwards; Kenneth Thompson;Edward Akerson; Michael R. Blum; Herbert Hayes; David F.Burke; Gary W.J. Bevins; Bailey Jerome Hayes; Gene H.Gregg; plaintiff class members, Plaintiffs-Appellants,v.Joseph M. DeCOURCY, Norman A. Murdock, Robert E. Taft, II,as Commissioners of Hamilton County, and Simon L.Leis, Jr., as Sheriff of HamiltonCounty, Defendants-Appellees. Nos. 91-3778, 92-3317. United States Court of Appeals,Sixth Circuit. Argued Aug. 7, 1992.Decided April 30, 1993. Stephen H. Olden (argued and briefed), Jennifer J. Branch (briefed), Legal Aid Soc. of Cincinnati, Cincinnati, OH, for plaintiffs-appellants. Pierce Edward Cunningham, Frost & Jacobs, Robert E. Taylor, Asst. Pros. Atty. (argued and briefed), Cincinnati, OH, for defendants-appellees. Michael J. O'Hara, O'Hara, Ruberg & Taylor, Covington, KY, James K. Rogers (briefed), American Civil Liberties Union of Ohio, Cincinnati, OH, amicus curiae American Civil Liberties Union of Ohio. Before: MARTIN and SILER, Circuit Judges; and CLELAND, District Judge.* SILER, Circuit Judge. Plaintiffs, a class of present and future inmates, appeal the district court's orders of: (1) a partial termination of supervision and jurisdiction over consent decrees pertaining to the operation of the Hamilton County Jail Annex and the Hamilton County Justice Center; and (2) a modification of the consent decrees so as to permit unrestricted double-celling of inmates and an increase in the Annex and Justice Center inmate population. For the following reasons, we REVERSE and REMAND. 1 In 1976, plaintiffs brought a 42 U.S.C. § 1983 action against the Hamilton County Board of County Commissioners and Hamilton County Sheriff challenging their confinement conditions at the Annex and Justice Center. Plaintiffs alleged violations of their rights under the Eighth and Fourteenth Amendments of the United States Constitution consisting of unconstitutional conditions and policies, including overcrowding and other institutionalized forms of degradation. Following protracted discovery and negotiations, the parties entered into a settlement of all claims, the terms of which were incorporated into an Agreed Final Judgment ("AFJ"). Finding the mandates of the AFJ similar to affirmative action, the district court added a "sunset provision" sua sponte, which provided, in part, as follows: 2 [T]he Agreed Final Judgment herein shall be in full force and effect from the date of this order until such time as the final report of the monitor shall have been completed and submitted to the Court, ... In the event that the monitor finds that Defendants are not in full compliance with each provision of the [AFJ], ..., the [AFJ] shall continue in full force and effect until such time as the monitor certifies to this Court that there is compliance ... for a period not less than 180 days.... In no event shall the [AFJ] herein be valid for a period of less than three years and six months, and in no event shall the [AFJ] be valid for a period of more than five years and six months unless the monitor is unable to certify to the Court full compliance with the [AFJ] has occurred for ... 180 days....1 3 The parties agreed to have the sunset provision apply to the AFJ, except for Paragraphs A (population), B (staffing) and D (classification), which were made subject to a twenty-year sunset provision. In addition, attached to the AFJ was a "Monitoring and Compliance Document," providing for the district court's appointment of a compliance monitor to conduct investigations in January, 1986, and July, 1986, 1987, and 1988, and as further directed. The district court entered the AFJ as a final judgment in September, 1985, but plaintiffs appealed the judgment because of the sua sponte modification. This court remanded for clarification by the district court. 4 Within five weeks of the AFJ's entry in 1985, the inmate population began to exceed the design capacity of the new facilities. In response, plaintiffs filed a contempt motion against defendants based on the overcrowding and the ongoing use of approximately 300 cots to accommodate the increasing number of inmates. After 18 months of studies and negotiations, defendants submitted to the district court a jail overcrowding reduction plan, along with a motion to modify the AFJ. The parties resolved the motions by entering into the Agreed Modification of Agreed Final Judgment ("AMAFJ"), a supplement to the AFJ, which set inmate population caps, prohibited the use of cots, and provided for limited double-celling of a specifically defined class of low-risk inmates. It also allowed the sheriff to refuse admission of inmates to ensure compliance with the population caps. The AMAFJ did not modify the sunset provisions. 5 As a result of defendants' failure to comply with the AMAFJ, in September, 1987, plaintiffs filed a motion to enforce the AMAFJ. Meanwhile, the sheriff was ordered to limit the prison population and to release misdemeanant inmates in order to comply with the population cap. In November, 1987, plaintiffs' motion to enforce was granted. Defendants, along with the Hamilton County Municipal Court judges, appealed to this court claiming that the settlement agreement could not be enforced.2 The appeals were dismissed as premature. The parties then agreed on modifications to the consent decrees. On May 20, 1988, the modified AMAFJ became effective as a final order. 6 On June 6, 1988, the sheriff filed a motion to modify the AMAFJ pursuant to Fed.R.Civ.P. 60(b). Following a hearing, the district court granted the motion insofar as it modified the class of inmates subject to double-celling, but denied the motion insofar as it sought to include female inmates in that class. 704 F.Supp. 799. Plaintiffs appealed the decision, and this court affirmed. See Heath v. DeCourcy, 888 F.2d 1105 (6th Cir.1989). 7 In September, 1990, following the court-appointed monitor's fifth inspection and report on the facilities, plaintiffs filed a contempt motion against defendants for their failure to comply with the consent decrees. On November 19, 1990, the district court held that defendants had complied in five of the seven areas raised in the motion, and deferred judgment on the other two areas, acoustics and education programs, as to allow defendants to take appropriate action by January 1, 1991. 8 On April 5, 1991, the district court ordered, sua sponte, an April 12, 1991, hearing to determine: (1) whether defendants substantially complied with the consent decrees in the two areas remaining open; and (2) why its supervision of the consent decrees should not be terminated. At the hearing, the district court acknowledged the parties' stipulation to defendants' substantial compliance in the two remaining areas. Counsel then presented arguments regarding whether there should be a termination of supervision. After the hearing and plaintiffs' separate submission of evidence, the district court terminated supervision over all provisions of the consent decrees except Paragraph A of the AFJ, addressing the maximum population of the facilities. The district court noted that it was a court of "limited jurisdiction," including jurisdiction over constitutional violations. As the Eighth Amendment does not prohibit "punishment," but only "cruel and unusual punishment," the district court determined that no relationship existed between the Eighth Amendment and the matters addressed in the consent decrees, with the exception of the excessive population issue. Plaintiffs did not object to the district court's determination of defendants' substantial compliance. 9 On February 25, 1992, defendants filed a motion to modify the consent decree so as to expand the categories of inmates who could be double-celled and the number of cells in the Justice Center permitted to be double-celled. After a March 6, 1992, hearing, the district court granted defendants' motion to modify the AFJ as to allow the increase in the population caps from 1,016 to 1,422 inmates by increasing double-celling. In addition, the district court approved changes in the classification restrictions for the purposes of determining double-celling candidates. Plaintiffs appeal the modification. I. 10 The district court's termination of supervision and jurisdiction is reviewed for an abuse of discretion. Akers v. Ohio Dep't. of Liquor Control, 902 F.2d 477, 479 (6th Cir.1990). Plaintiffs must demonstrate that there was no reasonable basis for the district court's termination order. United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). II. 11 A district court must determine whether and when to terminate supervision or jurisdiction over a consent decree by considering the specific terms of the consent decree. Youngblood v. Dalzell, 925 F.2d 954, 961 (6th Cir.1991). Several factors to be considered include: (1) any specific terms providing for continued supervision and jurisdiction over the consent decree; (2) the consent decree's underlying goals; (3) whether there has been compliance with prior court orders; (4) whether defendants made a good faith effort to comply; (5) the length of time the consent decree has been in effect; and (6) the continuing efficacy of the consent decree's enforcement. See Board of Educ. v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991); Youngblood, 925 F.2d at 960-61. Court supervision is often expected to continue for several years, in order to assure compliance with the relevant decrees. Plyler v. Evatt, 924 F.2d 1321, 1329-30 (4th Cir.1991). When the defendants are shown to be in compliance with its terms and the objectives of the consent decree have been achieved, the district court's jurisdiction over the case may be terminated. Youngblood, 925 F.2d at 957-58. 12 The specific terms of the consent decrees and relevant orders make it clear that the district court had no authority to terminate supervision or jurisdiction over the consent decrees. The explicit language of the AFJ provided that the consent decree "shall continue in full force and effect until such time as the monitor certifies to this Court that there is compliance and that there has been [compliance] for a period of not less than 180 days." The monitor was required to conduct annual compliance inspections of the facilities through 1988 and as further directed. With the modification of the AFJ in 1988, the annual inspections were extended several years more, through July, 1991. Thus, prior to termination of supervision and jurisdiction, the monitor was to certify compliance with the consent decrees in July, 1991, and return for a final inspection 180 days later to determine whether the officials remained in compliance. However, the monitor's final report was never filed, as the district court terminated jurisdiction and supervision of the consent decrees in July, 1991. 13 Furthermore, upon the district court's termination of jurisdiction and supervision of the consent decrees, exceptions are found in the second sunset provision requiring monitoring of Paragraphs A, B, and D for a period of twenty years. Thus, in any event, the district court should not have terminated jurisdiction and supervision over Paragraphs A, B, and D. Therefore, upon considering the specific substantive terms of the consent decrees in conjunction with the monitor's final reports, the district court should not have terminated supervision and jurisdiction. 14 In the monitor's fifth report, he indicated seven areas in which he made an inquiry. Those areas included: (1) patrolling; (2) cell lighting; (3) acoustics; (4) quiet reading rooms; (5) educational programming; (6) counseling; and (7) outside work. In November, 1990, the district court found that defendants had substantially complied in five of the seven areas, and deferred judgment as to two remaining areas, acoustics and education programs, until January 1, 1991, thereby giving defendants an opportunity to comply. In making its findings, the district court relied on the monitor's subsequent report of substantial compliance in the five specified areas. At the April 12, 1991, hearing, the parties filed a stipulation as to defendants' substantial compliance in the acoustics and educational programming areas. As a result, on July 26, 1991, the district court terminated supervision and jurisdiction over the consent decrees, with the exception of Paragraph A of the AFJ dealing with the facilities' maximum population. 15 At the time of the termination, the monitor had not certified that defendants had complied with all areas of the consent decrees for at least 180 days. In fact, the monitor's reports indicated consistent non-compliance in several areas. Moreover, the district court failed to maintain jurisdiction and supervision for the required 180 days after finding substantial compliance in the areas of acoustics and educational programming. The district court's continuing enforcement and supervision of the consent decrees was essential to achieving the consent decrees' purposes and protecting plaintiffs' rights. The parties presented limited evidence regarding the compliance with the consent decrees, and the district court entered its judgment before it made any findings concerning compliance with all the terms of the decrees. The district court should have retained jurisdiction and supervision over the consent decrees in order to ensure full compliance and achievement of their goals. Thus, the court abused its discretion by terminating its supervision and jurisdiction. III. 16 Modification of a consent decree requires a "complete hearing and findings of fact," see Brown v. Neeb, 644 F.2d 551, 560 (6th Cir.1981), demonstrating that "new and unforeseen conditions have created a hardship," see Stotts v. Memphis Fire Dep't, 679 F.2d 541, 563 (6th Cir.1982), rev'd on other grounds, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984), thereby making impossible compliance with the decree. The district court's power to modify the terms of a consent decree "should not be exercised lightly." Stotts, 679 F.2d at 563 (citing United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932)). In the area of institutional reform, consent decrees are subject to a lesser standard of modification, requiring the lower court to identify "a defect or deficiency in its original decree which impedes achieving its goal, either because experience has proven it less effective, disadvantageous, or because circumstances and conditions have changed which warrant fine-tuning the decree." Heath v. DeCourcy, 888 F.2d 1105, 1110 (6th Cir.1989). The modification must further the purpose of the consent decree, without upsetting the basic agreement between the parties. Id. 17 The Supreme Court adopted a restrictive, but flexible, standard to be applied in ruling on Fed.R.Civ.P. 60(b) motions in institutional reform litigation. Rufo v. Inmates of the Suffolk County Jail, --- U.S. ----, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). First, the movant must show that a "significant change in circumstances warrants revision of the decree." Id. --- U.S. at ----, 112 S.Ct. at 760. Second, the movant has the burden of proving significant changes that cause a consent decree to be "onerous," "unworkable," or "detrimental to the public interest." Id. --- U.S. at ----, 112 S.Ct. at 760-63. Third, if a movant agreed to a consent decree while anticipating changes in conditions that would make its performance onerous, there is a "heavier" burden to show that the movant: (1) agreed to the consent decree in good faith; (2) made a reasonable effort to comply; and (3) should be relieved of its obligations. Id. --- U.S. at ----, 112 S.Ct. at 761. Fourth, the lower court must determine whether "their proposed modification is suitably tailored to the changed circumstances." Id. --- U.S. at ----, 112 S.Ct. at 763. 18 In approving modification, the district court relied on unverified statements in the record, of which it took judicial notice, filed on defendants' behalf. The district court also relied on unauthenticated materials and oral argument by counsel to conclude that modification of the consent decree was necessary. The district court failed to conduct a "complete hearing" by not allowing any evidence or expert testimony to be presented in the March 6, 1992, motion hearing. Thus, the court failed to follow proper procedure in ruling on the modification motion. 19 The district court did not fully consider the Rufo factors in granting the motion to modify, although Rufo was decided shortly before the hearing. First, neither defendants nor the district court identified a "significant change in circumstances" warranting revision of the consent decree. Rufo, --- U.S. at ----, 112 S.Ct. at 760. In fact, overcrowding had been an ongoing problem over several years, resulting in the premature release of inmates. Second, the district court did not inquire into the good faith of defendants' settlement intentions or anticipation of changes in conditions that would make the consent decrees onerous and unworkable. Id. --- U.S. at ----, 112 S.Ct. at 760-63. Third, the district court failed to determine if the proposed changes were "suitably tailored to the changed circumstances." Id. --- U.S. at ----, 112 S.Ct. at 763. More importantly, however, the district court should have required defendants to present evidence in support of their position to allow double-celling and to increase the inmate population, with an opportunity then for the plaintiffs to contradict the evidence. In making our ruling, we are not unmindful of the burden on the docket that a case of this magnitude makes for it went through several judges and many lawyers. However, it also affects the constitutional rights of citizens, so the courts must be ever vigilant to preclude a termination or modification of proceedings until everyone affected has an opportunity to be heard. Therefore, we VACATE the district court's modification of the consent decree and REMAND this action for further consideration. * The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by designation 1 On appeal, this court agreed that the district court should not have sua sponte imposed the sunset provision on the AFJ. See Heath v. Wood, 811 F.2d 606 (6th Cir.1986) (unreported) 2 The Hamilton County Municipal Court judges intervened as a group, claiming that their state law sentencing rights were being eroded by the AMAFJ

77 F.3d 463 151 L.R.R.M. (BNA) 2608 Philadelphia Protestant Homev.National Labor Relations Board, Professional Nurses andHospital Personnel, Division of UnitedPaperworkers International Union, LocalUnion 375, AFL-CIO NOS. 95-3147, 95-3227 United States Court of Appeals,Third Circuit. Jan 10, 1996 Appeal From: N.L.R.B., No. 4-CA-23434 1 REVIEW DENIED IN NO. 95-3147; ENFORCEMENT GRANTED IN NO. 95-3227.

985 P.2d 530 (1998) 195 Ariz. 45 WESTERN AGRICULTURAL INSURANCE COMPANY, an Arizona corporation, Plaintiff-Appellee, v. Richard BROWN and Dorothy Brown, parents of John Delor Brown, and the Estate of John Delor Brown, Dorothy B. Brown, as mother and Guardian Ad Litem for John Delor Brown, Jr., Michael Allen Brown and Arlene Fay Brown, minors; Darel Fruhwirth and Diana Fruhwirth, husband and wife, as Guardians and Conservators for Shelby Alexander Sinclair, Vanessa Michelle Kogianes and Socrates Michael Kogianes, Richard S. Rosen and Ruth Rosen, husband and wife, Defendants-Appellants. No. 1 CA-CV 97-0464. Court of Appeals of Arizona, Division 1, Department D. November 10, 1998. Reconsideration Denied December 29, 1998. Review Denied September 21, 1999. *531 Bess Kunz, P.C. by Matthew D. Kleifield and Donald J. Sapala, Phoenix, Attorneys for Plaintiff-Appellee. Wachtel, Biehn & Malm by Denis R. Malm and Rex L. Martin, Lake Havasu City, Attorneys for Defendants-Appellants Fruhwirth and Rosen. Ostreicher & Vatz, P.C. by Jeffrey I. Ostreicher and Michael L. York, Phoenix, Attorneys for Defendants-Appellants Richard and Dorothy Brown and the Estate of John Delor Brown. Stephen M. Lee, Kingman, Attorney for Defendant-Appellant Dorothy B. Brown. OPINION NOYES, Judge. ¶ 1 Dr. Michael Kogianes shot his wife and her companion a total of nine times, and he said to the dying companion, "This is the last marriage you'll ever break up." Kogianes was convicted of two counts of premeditated first degree murder by a jury that rejected his insanity defense. Kogianes and the victims' survivors then sought insurance coverage from Western Agricultural Insurance Co. ("Western"), which insured Kogianes for liability from bodily injury. Western filed this action, seeking a declaration that its insurance policy did not cover Kogianes for these two murders. The trial court granted summary judgment to Western, and we affirm. I. ¶ 2 Kogianes's policy with Western provided primary liability coverage of $300,000 for each person and occurrence; an umbrella rider provided another $1 million in coverage. The policy required Western to defend a claim or suit against Kogianes for bodily injury or property damage caused by an "occurrence," and to pay up to policy limits all damages for which he was legally liable. The policy defined "occurrence" as "an unexpected and unintended event ... which results in bodily injury or property damage during the policy period." The umbrella defined *532 "occurrence" as "an accident ... during the policy term, which results in personal injury or property damage neither expected nor intended by [the insured]." ¶ 3 The policy excluded coverage for bodily injury or property damage that "is intentionally caused by any insured" or "[a]ris[es] out of a violation of a criminal law, except traffic violations, if committed by any insured." The umbrella excluded coverage for injury or damage "arising out of an intentional act committed by or at [the insured's] direction." ¶ 4 In granting summary judgment to Western, the trial court found "that A.R.S. 13-807 would preclude Dr. Kogianes from any sort of recovery against the Plaintiff and based upon the `standing in the shoes' argument, the other Defendants have no greater right against the Plaintiff than Dr. Kogianes would have...." Kogianes did not appeal, but the victims' survivors ("Appellants") did. We have jurisdiction under Arizona Revised Statutes Annotated ("A.R.S.") section 12-2101(B) (1994). II. ¶ 5 The question is whether, as a matter of law, the intentional acts exclusion applies to these murders. We review this question of law de novo. See State ex rel. Miller v. Superior Ct. (Stephens), 189 Ariz. 228, 230, 941 P.2d 240, 242 (App.1997). ¶ 6 An intentional acts exclusion is based on the principle that insurance is intended to protect against risk that is beyond the control of the insured. See Transamerica Ins. Group v. Meere, 143 Ariz. 351, 355-56, 694 P.2d 181, 185-86 (1984). The intentional acts exclusion also "articulates a public policy which forbids contracts indemnifying a person against loss resulting from his own wilful wrongdoing." Id. at 356, 694 P.2d at 186. ¶ 7 Although intentional acts do not trigger the exclusion unless harm is intended, see Republic Ins. Co. v. Feidler, 178 Ariz. 528, 531, 875 P.2d 187, 190 (App.1994), where an "act was intentional and there was either a subjective desire to cause some specific harm (intent) or substantial certainty (expectation) some significant harm would occur, the insured will not be heard to say that the exclusion does not apply because the injury was more severe or different from what was intended." Ohio Cas. Ins. Co. v. Henderson, 189 Ariz. 184, 191, 939 P.2d 1337, 1344 (1997) (citing Meere, 143 Ariz. at 359, 694 P.2d at 189). This presumed intent to harm, known as the Steinmetz-Clark presumption,[1] is conclusive if it applies. See Meere, 143 Ariz. at 357-58, 694 P.2d at 187-88; St. Paul Property & Liab. v. Eymann, 166 Ariz. 344, 349, 802 P.2d 1043, 1048 (App. 1990). Thus, coverage is precluded "if the insured's claim that he did not intend or expect the injury `flies in the face of all reason, common sense and experience.'" Henderson, 189 Ariz. at 191, 939 P.2d at 1344 (quoting Auto Club Group Ins. Co. v. Marzonie, 447 Mich. 624, 527 N.W.2d 760, 768 (Mich.1994)). Obviously, when the insured has knowingly fired nine bullets into two people, a claim that he intended no harm "flies in the face of all reason, common sense and experience." See id. ¶ 8 Appellants claim that Kogianes was insane and so was not responsible for his actions. Kogianes raised an insanity defense at his criminal trial, and he presented expert and other testimony in support of that defense. The Steinmetz-Clark presumption does not apply where the insured lacks the mental capacity to act rationally and to form the subjective intent to harm. See Feidler, 178 Ariz. at 532, 875 P.2d at 191. In considering an insured's insanity defense, we have adopted the test set forth in Ruvolo v. American Casualty Co., 39 N.J. 490, 189 A.2d 204 (N.J.1963), as follows: [I]f the insured was suffering from a derangement of his intellect which deprived him of the capacity to govern his conduct *533 in accordance with reason and while in that condition [acted] on an irrational impulse... his act cannot be treated as "intentional" within the connotation of defendant's insurance contract. Globe Am. Cas. Co. v. Lyons, 131 Ariz. 337, 340, 641 P.2d 251, 254 (App.1981) (quoting Ruvolo, 189 A.2d at 208-09) (emphasis added). ¶ 9 Appellants argue that Lyons controls. We disagree. The jury that convicted Kogianes of first degree murder necessarily decided that he did not act on an irrational impulse. A person commits first degree murder if, "[i]ntending or knowing that the person's conduct will cause death, such person causes the death of another with premeditation." A.R.S. § 13-1105(A)(1) (Supp.1997). "`Premeditation' means that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion." A.R.S. § 13-1101(1) (1989). ¶ 10 An act cannot be both premeditated and impulsive. See Moore v. State, 65 Ariz. 70, 82, 174 P.2d 282, 290 (1946) (The jury "must not be misled into thinking that an act can at the same time be ... impulsive, unstudied, and premeditated."); State v. Ramirez, 190 Ariz. 65, 71, 945 P.2d 376, 382 (App.1997) ("In our opinion, a killing cannot be both impulsive and premeditated...."). ¶ 11 The jury rejected Kogianes's claim that he was insane and concluded that he killed knowingly and with premeditation. Such a conclusion necessarily involves the determination that Kogianes was not "suffering from a derangement of his intellect which deprived him of the capacity to govern his conduct in accordance with reason and while in that condition acted on an irrational impulse." Lyons, 131 Ariz. at 340, 641 P.2d at 254 (quoting Ruvolo, 189 A.2d at 208-09). We hold that, when the insured has been convicted of premeditated first degree murder, Lyons does not control and the Steinmetz-Clark presumption does. ¶ 12 The trial court concluded that the A.R.S. section 13-807 (1989) preclusion applied. We agree. As relevant here, A.R.S. section 13-807 provided that "[a] defendant convicted in a criminal proceeding is precluded from subsequently denying in any civil proceeding the essential allegations of the criminal offense of which he was adjudged guilty...."[2] ¶ 13 Appellants have no independent interest in the Western insurance policies; in relation to those contracts, Appellants "stand in the shoes" of Kogianes. They therefore take only the rights Kogianes has under those contracts. See K.B. v. State Farm Fire & Cas. Co., 189 Ariz. 263, 267, 941 P.2d 1288, 1292 (App.1997). Because section 13-807 precludes Kogianes from denying the essential elements of his convictions, it precludes Appellants from denying those elements. ¶ 14 Appellants argue that collateral estoppel is inapplicable because Kogianes faced a higher burden of proof in the criminal case than he would in the civil case. However, it is section 13-807, not the doctrine of collateral estoppel, that precludes relitigation of issues in the civil case. Section 13-807 is not a codification of the collateral estoppel doctrine, and it does not incorporate the rules and requirements of that doctrine. In section 13-807, the legislature precluded defendants from denying in a civil case the essential elements of their conviction in a criminal case, with no exceptions granted. Although defendants have a higher burden of proof in criminal cases than in civil cases on the issue of insanity, see A.R.S. section 13-502 (Supp.1997) (requiring criminal defendant to prove insanity by clear and convincing evidence), it would be contrary to the clear intention of section 13-807 to allow a person whom one jury found sane for purposes of a premeditated first degree murder conviction to ask another jury to find him insane for purposes of liability insurance coverage. *534 ¶ 15 Appellants argue that, even if section 13-807 precludes them from denying that Kogianes knowingly committed the murders, they can still deny that he acted intentionally. Feidler held that section 13-807 prevented a defendant from denying only the minimum mental state necessary for the conviction. 178 Ariz. at 533, 875 P.2d at 192. Appellants argue that the minimum mental state for first degree murder is "knowingly," and because that is a lesser mental state than "intentionally," the convictions do not establish that the intentional acts exclusions apply. We disagree. Interpretation of an insurance policy is a question of civil law, where "intentional" has a broader meaning than it has in criminal law. ¶ 16 The Restatement (Second) of Torts defines intent as denoting "that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to result from it." Restatement (Second) of Torts § 8A (1965). The accompanying comment states that "[i]ntent is not ... limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." Id. cmt. b.[3] ¶ 17 The judgment is affirmed. CONCURRING: EDWARD C. VOSS, Judge. THOMPSON, Judge, concurring. ¶ 18 I agree with the decision set forth above. I write separately only to indicate that we should signal a retreat from the Lyons dictum employing a version of the irresistible impulse test for mental capacity. The Lyons court wrote before John Hinckley, who shot President Reagan, was acquitted by a jury. The Hinckley case, and the public outrage that followed, occasioned a reevaluation of progressive movements favoring a liberalized volitional standard[4] for measuring insanity. As a consequence, the medical community now acknowledges that it cannot discern whether an offender could not or would not control himself. See Richard J. Bonnie, The Moral Basis of the Insanity Defense, 69 A.B.A.J. 194, 196 (1983). Since we cannot know with any confidence whether a person committing a violent act suffers from an incapacity to "govern his conduct in accordance with reason" due to mental derangement, or whether he just chooses not to regulate his conduct, tests that are based on measures of volition are futile and invite deception and fabrication. The acts of one who knows the right but chooses the wrong cannot be indemnified, consistent with well-established public policy which we reaffirm here. ¶ 19 Since the tortfeasor in Lyons was M'Naghten insane,[5] borrowing the volitional test from the New Jersey Supreme Court was gratuitous.[6] Although we have continued to cite the Lyons dictum approvingly since 1981, I would abandon it. NOTES [1] Steinmetz v. National American Insurance Co., 121 Ariz. 268, 271, 589 P.2d 911, 914 (App. 1978), held that "if the injury results from the natural and probable consequences of the intentional act, the subjective intent of the actor is simply immaterial—the exclusion applies." Clark v. Allstate Insurance Co., 22 Ariz.App. 601, 602, 529 P.2d 1195, 1196 (1975), held that "the act of striking another in the face is one which we recognize as an act so certain to cause a particular kind of harm that we can say a person who performed the act intended the resulting harm, and his statement to the contrary does nothing to refute that rule of law." [2] Section 13-807 was amended by Laws 1993, Chapter 255, section 15, effective January 1, 1994, to narrow its application from "any civil proceeding" to "any civil proceeding brought by the victim or this state against the criminal defendant." The new version applies to offenses committed after the effective date. The offenses in this case occurred in December 1992. [3] By contrast, the Arizona criminal code provides as follows: "`Intentionally' or `with intent to' means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct." A.R.S. § 13-105(9)(a) (Supp.1997). [4] One such liberalized standard, the Model Penal Code provision (commonly known as the "ALI test") for an insanity defense, embodied a concept that one should be relieved of responsibility even for "propulsions that are accompanied by brooding or reflection." Phillip E. Johnson, Note: The Turnabout in the Insanity Defense, in CRIMINAL LAW 349, 350 (West Publ'g Co.3d. ed., 1985). Thus, our holding here (which I join), that the jury finding that Kogianes committed premeditated murder means that he acted intentionally within the meaning of the intentional acts exclusion, might involve a non-sequitur if we must employ a volitional standard for the latter. In the murky world of volition, it might be possible to act on impulse after reflection. [5] See Globe American Cas. Co. v. Lyons, 131 Ariz. 337, 343 n. 2, 641 P.2d 251, 257 n. 2 (App.1981). [6] Indeed, prior to New Jersey's Ruvolo decision, it was widely assumed, not without good reason, that the standard for insanity for purposes of the intentional acts exclusion was the same as the test for the insanity defense in criminal cases. See Nat'l Life & Accident Ins. Co. v. Hannon, 212 Ala. 184, 186, 101 So. 892, 894, (1924); Markland v. Clover Leaf Cas. Co., 209 S.W. 602, 605 (Mo.App.1919); Travellers' Ins. Co. v. Houston, 3 Willson 508, 509 (1888) (insanity standard same in civil and criminal cases).

IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT COMMONWEALTH OF PENNSYLVANIA, : No. 89 MM 2017 : Respondent : : : v. : : : ALISTER CAMPBELL, : : Petitioner : ORDER PER CURIAM AND NOW, this 1st day of August, 2017, the Petition for Leave to File Petition for Allowance of Appeal Nunc Pro Tunc is DENIED. 

724 N.W.2d 395 (2006) 2006 WI App 203 HOUSING AUTHORITY OF THE CITY OF MILWAUKEE, Plaintiff, v. BARRIENTOS DESIGNS & CONSULTING, L.L.C., Calvert Insurance Company, Gryphon Holdings, Inc. and Associated International Insurance Company, Defendants-Respondents, Dehling Voigt, Inc., Defendant-Appellant. No. 2005AP1394. Court of Appeals of Wisconsin. Submitted on Briefs June 6, 2006. Opinion Filed September 26, 2006. On behalf of the defendant-appellant, the cause was submitted on the briefs of David A. Nelson of Doherty Law Offices, S.C., of West Bend. On behalf of the defendants-respondents, the cause was submitted on the brief of Scott J. Thomsen and Wayne Siesennop of Siesennop & Sullivan, of Milwaukee. Before FINE, CURLEY and KESSLER, JJ. ¶ 1 CURLEY, J. Dehling Voigt, Inc. (Dehling) appeals the trial court's grant of summary judgment to Barrientos Designs & Consulting, LLC (Barrientos) in this litigation started by the Housing Authority of the City of Milwaukee (Housing Authority) which sought breach of contract damages from both Dehling and Barrientos for their separate breaches in the installation of several roofs on Housing Authority housing developments. Barrientos designed the roofs, while Dehling installed them. Dehling argues that the trial court erred in granting summary judgment to Barrientos after Barrientos settled with the Housing Authority because "when two co-defendants are both accused . . . of breaching separate contracts, but causing the same set of damages," a jury should determine whether one defendant is entitled to contribution from the other. Because the trial court concluded that the damages between the two defendants could be separated and it anticipated fashioning a jury verdict form that asked the jury to individually determine the damages caused to the Housing Authority by the two defendants, resulting in Dehling's paying only for damages caused by its breach of its contract, no contribution claim would arise; thus, we affirm. I. BACKGROUND. ¶ 2 The Housing Authority entered into a contract with Barrientos for architectural services. Barrientos's responsibilities included providing written analyses regarding the condition of the roofs at the Housing Authority's developments, along with making recommendations and providing preliminary estimates regarding repair and/or replacements needs. Barrientos also agreed to perform additional services, including prepare drawings, specifications, and construction documents to be used for removal of some existing roof systems, and *397 the installation of new roof systems, at a number of developments. Relying on the professional advice of Barrientos, the Housing Authority decided to bid out a contract for the reroofing work. After Dehling was the low bidder, the Housing Authority entered into a separate contract with Dehling to reroof four housing developments using Barrientos's drawings and specifications. ¶ 3 After the completion of the reroofing, many of the roofs experienced problems. The Housing Authority hired a roofing expert who, after completing an inspection, reported that both Barrientos and Dehling were at fault for the problems. Consequently, the Housing Authority had four roofs torn off and new roofs installed by other parties. In a single action, the Housing Authority then sued both Barrientos and Dehling for breaching their respective contracts. The Housing Authority sought $1,157,760 from the two businesses and claimed that the two caused the same damages. Barrientos and Dehling cross-claimed against each other for indemnification/contribution. Barrientos then settled with the Housing Authority and filed a summary judgment motion seeking a dismissal of Dehling's cross-claim. The trial court granted its motion and this appeal follows. II. ANALYSIS. ¶ 4 Dehling contends that the trial court erred in granting summary judgment because the allegations raised by the Housing Authority accuse the two businesses of breaching their separate contracts, resulting in the same damages; thus, the two have common liability which gives rise to a potential contribution claim and this is a question a jury should determine. Dehling submits that it is unfair to extinguish its right to contribution from Barrientos when what is alleged is that they caused the identical damages. While we agree that it would be unfair to require Dehling to pay more than its share of the damages that flow from its alleged breach of contract, we affirm the trial court because the trial court determined that the damages could be separated out between the two companies and it expected to craft a jury verdict that asked the jury to separately assess which damages were caused by Dehling's breach of contract and which were caused by Barrientos's breach. Consequently, the alleged damages are not indistinguishable, as Dehling claims, and it will have no claim for contribution. ¶ 5 In Preloznik v. City of Madison, 113 Wis.2d 112, 334 N.W.2d 580 (Ct.App.1983), we set out the methodology to be used in summary judgment: Under that methodology, the court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented. If the complaint . . . states a claim and the pleadings show the existence of factual issues, the court examines the moving party's affidavits for evidentiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the claim. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary. Summary judgment methodology prohibits the trial court from deciding an issue of fact. The court determines only *398 whether a factual issue exists, resolving doubts in that regard against the party moving for summary judgment. Id. at 116, 334 N.W.2d 580 (citations omitted). ¶ 6 Dehling argues that the trial court erred in granting summary judgment to Barrientos because: (1) an issue of fact exists as to whether the damages caused by the respective alleged breaches by Dehling and Barrientos are divisible; and (2) by granting summary judgment to Barrientos, Dehling has lost its right to seek equitable contribution from Barrientos, if indeed, the damages are not capable of being divided. Dehling relies on Lesmeister v. Dilly, 330 N.W.2d 95 (Minn.1983), for its contention that Dehling and Barrientos are to be treated like joint tortfeasors and both are jointly liable for the damages caused the Housing Authority. The Minnesota case held that [w]here A and B owe contract duties to C under separate contracts, and each breaches independently, and it is not reasonably possible to make a division of the damages caused by the separate breaches closely related in point of time, the breaching parties, even though they acted independently, are jointly and severally liable. Id. at 102 (footnote omitted). We leave for another day whether the hypothetical presented in the Minnesota case would be good law in Wisconsin, because here the division of the damages is possible. ¶ 7 The key to this appeal is the trial court's conclusion that the Housing Authority's damages by the defendants' separate breaches could be separately determined. The trial court observed: Seems to me that it is possible to make a division of the damages caused. . . . . That is how I'm interpreting it, that you disagree with that. But from where I sit, it does seem to me to be, at least where I sit now, what I understand the case to be about, it does seem to me to be reasonably possible to divide the damages. As the trial court observed, each defendant had separate duties and responsibilities, and consequently, a jury could determine which part of the total damages to attribute to each party. The trial court went on to explain that by designing a jury verdict that asks the jury to separate the damages caused by each breach of contract, no right of contribution is created: "It is a jury function. . . . But if the jury function is to divide the damages and whatever division they make, you are only responsible for your share, where is the right of contribution?" ¶ 8 Inasmuch as the trial court enjoys great discretion in determining the form of the verdict, "the form of the verdict rests in the sound discretion of the trial court, not to be interfered with so long as the issues of fact in the case are covered by appropriate questions," Dahl v. K-Mart, 46 Wis.2d 605, 609, 176 N.W.2d 342 (1970), we are satisfied that the trial court could properly divide up the damage questions between the two defendants. Moreover, the trial court advised the parties that if it later determined that it "made a wrong call here," it would bring Barrientos back into the case. Thus, we affirm the trial court's grant of summary judgment to Barrientos. Judgment affirmed.

Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 1-15-2009 ACE Amer Ins Co v. Wachovia Ins Agency Precedential or Non-Precedential: Non-Precedential Docket No. 08-4236 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "ACE Amer Ins Co v. Wachovia Ins Agency" (2009). 2009 Decisions. Paper 2021. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2021 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 08-4236 _____________ ACE AMERICAN INSURANCE COMPANY; ILLINOIS UNION INSURANCE COMPANY; WESTCHESTER SURPLUS LINES INSURANCE COMPANY; WESTCHESTER FIRE INSURANCE COMPANY, Appellants v. WACHOVIA INSURANCE AGENCY INC., D/B/A E-RISK SERVICES; SCOTTSDALE INSURANCE COMPANY, _____________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 08-cv-04369) District Judge: Honorable Jose L. Linares ____________ Submitted Under Third Circuit L.A.R. 34.1(a) on January 8, 2009 ____________ Before: FUENTES, FISHER and ALDISERT, Circuit Judges (Filed: January 15, 2009) OPINION OF THE COURT ALDISERT, Circuit Judge.  Appellants ACE American Insurance Company, Illinois Union Insurance Company, Westchester Surplus Lines Insurance Company and Westchester Fire Insurances Company (collectively “ACE”) appeal from an October 17, 2008, Order of the United States District Court for the District of New Jersey granting in part and denying in part ACE’s motion for a preliminary injunction against appellees Wachovia Insurance Company d/b/a “E-Risk Services” (“WIA”) and Scottsdale Insurance Company (“Scottsdale”). We are satisfied that the District Court did not exceed the bounds of its discretion in (1) refusing to enjoin WIA from consummating a sale of E-Risk assets to Newco because ACE failed to prove irreparable harm, and (2) refusing to order Scottsdale to return previously disclosed information, because ACE did not prove a substantial likelihood of success on the merits. We will therefore affirm the District Court’s order. I. Because we write solely for the parties, because the briefing is rather elaborate and governing legal precepts rather clear, and because the parties are extremely conversant with the facts and the proceedings in the District Court, we will truncate our discussion. On January 20, 2002, ACE entered into an exclusive agency agreement with E- Risk Services, an independent agency, whereby ACE became the sole insurer for the Exclusive Program Business. Shortly thereafter, Wachovia Corporation purchased E-Risk Services, which became part of a direct subsidiary of Wachovia, known as WIA. WIA 2 succeeded to E-Risk Services’ rights and obligations under the agency agreement. On January 1, 2006, ACE and WIA entered into an amended and restated agency agreement for the E-Risk Program. This contract, by its own terms, was to continue in force at least until December 31, 2010. The terms of this agency agreement provided that WIA could not enter into an agency agreement for E-Risk business with an entity other than ACE during the term of the agreement. It also provided that, while WIA had exclusive right to its own renewal business, both companies would compete in the market for new business. The terms of this new agreement also created a conflict between the interests of ACE and WIA. Specifically, under the new agreement, WIA was to receive no share of the underwriting profits, but instead earn a strict 30% commission on net premiums. ACE’s interest, therefore, was to increase profitability, and WIA’s interest was to maintain and increase premium volume. As such, their business relationship began to deteriorate. In 2007, ACE announced that it was consolidating some of its insurance programs under the name “Diversified Risk” or “D-Risk.” Some of the insurance products offered by ACE’s D-Risk competed with WIA’s E-Risk. Although competing for new business was permitted by the agency agreement, ACE used its leverage as E-Risk’s exclusive carrier to decrease E-Risk’s market share by refusing to make coverage enhancements available to WIA that ACE offered through D-Risk. Faced with this changing business environment for the agency agreement, WIA contacted Scottsdale in late 2007 to 3 investigate the possibility of changing carriers for the E-Risk program. In conducting negotiations with Scottsdale, WIA provided Scottsdale with information concerning paid claims and information concerning large losses. Although conducting such due diligence is standard industry practice when considering changing carriers, this information was not publicly available in this aggregated format. In early 2008, WIA became interested in selling the E-Risk business assets. In May of 2008, ACE offered to purchase E-Risk from WIA. WIA declined the offer. At approximately the same time, the E-Risk management group at WIA expressed interest in acquiring the assets of E-Risk themselves, and made an offer through a new corporate entity created for that purpose – Newco. WIA provisionally accepted the offer by Newco to purchase substantially all the E-Risk assets from WIA. The transaction, however, did not include an assignment of the agency agreement to Newco. As Newco, an independent business entity, was not a party to the agency agreement between WIA and ACE, it was not bound by its exclusivity provision. Newco planned to use Scottsdale as the issuing insurer for E-Risk after the asset sale was complete. As such, the asset sale would have the effect of removing ACE as E-Risk’s exclusive insurer. During this period of preparation, WIA and Scottsdale worked together on a proposed agency agreement, mandatory filings with state insurance departments and marketing and technology issues. On August 14, 2008, Wachovia advised ACE that it had entered into a Letter of Intent to sell WIA’s assets, not including the exclusive agency 4 agreement or ACE’s proprietary materials, to the management-led group – Newco. Wachovia also advised ACE that the current executive management would no longer be employed by WIA following the proposed transaction. Although WIA planned to sell most of its E-Risk assets to Newco, WIA intended to satisfy its contractual obligations to ACE by servicing and writing renewal business and by not placing business with any other carrier for the duration of the amended agency agreement. ACE filed its complaint and Motion for a temporary restraining order and a preliminary injunction in the District Court on September 2, 2008. ACE requested injunctive relief against WIA pending arbitration, alleging that WIA breached the agency agreement, violated its fiduciary duty to ACE and disclosed trade secrets to Scottsdale. ACE requested injunctive relief against Scottsdale based on theories of tortious interference with contract, misappropriation of trade secrets and false advertising. The District Court denied ACE’s request to enjoin WIA’s sale of assets to Newco pending arbitration, but did enjoin WIA from making any additional disclosures of confidential and proprietary information to Scottsdale. The District Court also denied ACE’s request to mandatorily enjoin Scottsdale by ordering it to return all confidential and proprietary information received from WIA during the due diligence process. We are to decide whether the District Court exceeded the permissible bounds of its discretion by denying ACE’s motion to enjoin WIA from consummating the sale of E- Risk assets to Newco, and whether the District Court similarly exceeded its discretion by 5 denying ACE’s motion to enjoin Scottsdale, ordering them to return previously received confidential information.1 II. A preliminary injunction is an extraordinary remedy that should be granted only if a party shows: (1) a substantial likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. Kos Pharms. Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). A party’s failure to establish any element in its favor renders a preliminary injunction inappropriate. Nutrasweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). We are satisfied that the District Court correctly held that ACE failed to demonstrate all the appropriate preliminary injunction factors. ACE asserts that it is entitled to a preliminary injunction preventing WIA from selling substantially all of its E-Risk assets to Newco during the pendency of their arbitration based on breaches of the agency agreement and violations of fiduciary duty. Specifically, ACE asserts that WIA breached the agency agreement by assisting Scottsdale in conducting the E-Risk business; disclosing confidential documents, confidential information and trade secrets to Scottsdale; preventing ACE from accessing 1 The District Court had jurisdiction under 28 U.S.C. § 1332. This Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). We review a denial of a preliminary injunction for an “abuse of discretion, a clear error of law, or a clear mistake on the facts.” Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). 6 required information on policies; and arranging to transfer the E-Risk business and associated confidential data and trade secrets to a new entity. ACE alleges that these actions also violated WIA’s fiduciary duty. The District Court held that ACE demonstrated the requisite “reasonable probability” of success on the merits sufficient to support injunctive relief with respect to the breach of the confidentiality portions of the agency agreement but not to the exclusivity portions. The District Court also found a “reasonable probability” of success with respect to breach of fiduciary duty for disclosing to Scottsdale certain aggregated financial information. The District Court, however, held that regardless of its reasonable probability for success on the merits, ACE was not entitled to relief because it did not prove irreparable harm absent an injunction, and the other factors did not decisively fall in its favor. We agree. In order to demonstrate irreparable harm, ACE must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). In other words, a preliminary injunction must be the only way of protecting the plaintiff from harm and may not be granted to relieve purely economic harm. Id.; Frank’s GMC Truck Ctr., Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988). “Grounds for irreparable injury include loss of control of reputation, loss of trade, and loss of good will.” Kos Pharms., 369 F.3d at 726 (quoting Pappan Enters., Inc. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 7 805 (3d Cir. 1998)). ACE asserts that the proposed asset sale will irreparably harm it by causing a loss of its goodwill and reputation as a result of losing its status as the exclusive underwriter of the E-Risk business. Although in certain situations a loss of goodwill may be irreparable, that is not the case here. ACE and WIA have been doing business together under an agency agreement since 2002. Where there exists a lengthy history of company relations, loss of goodwill and reputation in the industry can be ascertained. See Instant Air Freight Co., 882 F.2d at 798-802 (holding that money damages for breach of contract, including loss of goodwill, would be provable because of lengthy relationship of the two companies and previous performance under the contract). Here, the parties have been operating under an exclusive agency agreement since 2002. Given this history, any loss in business, market share or goodwill should be reducible to a monetary figure. Nor does the balance of the hardships or public policy fall in ACE’s favor. First, the agency agreement specifically provides for a possible asset sale, and specifies that such a sale will be a terminating event for the agreement. Second, if WIA is enjoined from selling the E-Risk assets pending the arbitration, this will restrain the asset sale transaction for weeks, if not months, while ACE uses its leverage as E-Risk’s exclusive carrier to decrease E-Risk’s market share. This will result in a reduction of the possible purchase price, and may deny WIA the opportunity to complete the sale altogether. As such, the balance of the hardships and public policy do not favor ACE. 8  A failure to demonstrate irreparable injury must necessarily result in the denial of a preliminary injunction. Instant Air Freight, 882 F.2d at 800 (quoting In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982)). Accordingly, the District Court did not exceed the bounds of its discretion in refusing to enjoin WIA’s sale of the E-Risk assets to Newco. III. ACE also asserts that it is entitled to an injunction ordering Scottsdale to return all information that WIA provided to it in violation of the agency agreement, based on trade secret misappropriation, tortious interference with contract and false advertising. ACE argues that the District Court erroneously believed that it lacked the authority to order the return and non-use of confidential information and trade secrets. ACE’s arguments are unavailing. The District Court held that ACE did not meet its burden in demonstrating a likelihood of success on the merits and did not reach the remainder of the factors for preliminary injunctive relief. First, ACE does not challenge the District Court’s findings that it failed to establish a likelihood of success on the merits of any of its three claims for relief against Scottsdale. Nevertheless, even if ACE could prove substantial likelihood of success on the merits, we are satisfied that future irreparable harm would not occur absent an injunction because the information provided to Scottsdale has already been used for its intended purpose and Scottsdale is contractually forbidden from using that information for any other purpose or from 9 disclosing that information to any other party. Although disclosure of confidential information or trade secrets may constitute irreparable harm, the loss of the secret or confidential information must not have already occurred: once a secret is revealed, there is nothing for an injunction to protect. Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 92 (3d Cir. 1992). Although Campbell Soup concerned the disclosure of trade secrets in a publicly-filed patent application, rather than as here, where the trade secrets have not been publicly disseminated, Scottsdale has already used the information for its desired purpose, to make the business decision based upon that information. Now that the information has been used, and Scottsdale is contractually forbidden from further using or disclosing the information, there is nothing to enjoin. Because ACE failed to show that it had a substantial likelihood of success on the merits and that it would suffer irreparable harm, the District Court did not exceed the bounds of its discretion in refusing to order Scottsdale to return the information received from WIA. ****** We have considered all contentions raised by the parties and conclude that no further discussion is necessary. The judgment of the District Court will be affirmed. 10 

242 S.W.3d 620 (2006) Aaron STRONG, Appellant, v. STATE of Arkansas, Appellee. No. CR 05-4414. Supreme Court of Arkansas. November 9, 2006. *621 John F. Gibson, Jr., Monticello, AR, for appellant. Mike Beebe, Att'y Gen, by: Misty Wilson Borkowski, Ass't Att'y Gen., Little Rock, AR, for appellee. JIM GUNTER, Justice. Appellant, Aaron Strong, was convicted in the Drew County Circuit Court of possession of cocaine with intent to deliver. The jury sentenced appellant to forty-one years in the Arkansas Department of Corrections pursuant to Arkansas Code Annotated § 5-64-401(a)(1)(i)(Supp.2003). We hold that the trial court did not err in denying appellant's motion for directed verdict, and we affirm. Alerted by California drug enforcement officials in July of 2004, authorities in. Monticello intercepted a United Parcel Service (UPS) package. The package, which contained a crock pot, a can of chili, Velveeta cheese, and 520 grams of cocaine, was discovered with a search warrant supported in part by a drug-dog alert. Sergeant Michael Todd Daley of the Arkansas State Police testified that the can of chili and the Velveeta cheese were probably included to make the package appear to be a dip-making kit to divert authorities from looking in the crock pot for illegal substances. After discovering the cocaine, the police planned a controlled delivery to the address on the package listed as Eric Webb, 512 Roosevelt Court, Monticello. The officers *622 then removed all but 12.7914 grams of cocaine from the package. They placed the smaller amount of cocaine back in the crock pot and sealed the box to be delivered to Eric Webb. Criminal investigator Kenneth Whitmore then went to 512 Roosevelt Court to deliver the package. When appellant answered the door, Officer Whitmore, disguised as a UPS delivery man, asked for Eric Webb. Appellant told Officer Whitmore that he was not Mr. Webb but that he would get Mr. Webb, who was inside the home. Appellant returned with a man in a wheelchair who claimed to be Mr. Webb. The man in the wheelchair[1] told Officer Whitmore that he was unable to sign for the package because he could not write at the time due to an injury of his hands. He then gave appellant the authority to sign for the package. Officer Whitmore placed the package on the counter and then left the home. Appellant immediately exited the back of the house with the package in hand. Officer John Carter was waiting to arrest him. Officer Carter announced to appellant that he was a Monticello policeman and that appellant needed to put the box on the ground. Appellant was arrested, and the package containing the contraband was confiscated by Officer Daley of the Monticello Police Department. Appellant was taken to the police station, where he signed a Miranda waiver and was questioned about the package and his involvement in the transaction. At trial, evidence was presented, without an objection, to show that appellant had the intent to deliver the 520 grams of cocaine in the package when it arrived in Derma rather than the 12.7914 grams that the officers left in the package. This evidence included a prior offense from the Ashley County Circuit Court in July 2002, where appellant was charged with conspiracy to possess with the intent to deliver cocaine. Further, there was no indication, at the time of arrest, that appellant had knowledge that any of the cocaine had been removed from the package. It was reasonable for the jury to conclude that he believed that the 520 grams were still in the crock pot when the package was delivered. At the conclusion of the State's evidence, appellant moved for directed verdict. The court denied the motion. On June 1, 2005, the jury returned a guilty verdict and sentenced appellant to forty-one years in the Arkansas Department of Corrections. The judgment and commitment order was entered on June. 3, 2005. Appellant filed his notice of appeal on June 20, 2005. Appellant now appeals. We review a motion for directed verdict as a challenge to the sufficiency of the evidence. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006) (citing Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004)), We have repeatedly held that in reviewing a challenge to the sufficiency of the evidence; we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. (citing Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002)). We affirm a conviction if substantial evidence exists to support it, Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id, *623 For his sole point on appeal, appellant argues that the trial court erred when it denied his motion for directed verdict. Specifically, appellant contends that the State did not present sufficient evidence to convict him of intent to deliver the 520 grams of cocaine rather than the 12.7914 that he actually possessed. Appellant further asserts he was sentenced under the wrong statute. In response, the State argues that appellant had the intent to possess and deliver 520 grams of cocaine and that his sentence was proper. We affirm the conviction and sentence. The issue is whether there was sufficient evidence to support appellant's conviction that he had possessed with intent to deliver 520 grams, the amount shipped, or whether the conviction can be only for 12.7914 grams, the amount that was actually delivered to him. The proper sentencing guideline is determined by the amount of cocaine for which a defendant is criminally responsible. Arkansas Code Annotated § 5-64-401 (a)(1)(i)(Supp.2003) states: (i) Any person who violates this subsection classified in Schedules I or II, which is a narcotic drug or methamphetamine, and by aggregate weight, including adulterants or diluents, is less than twenty-eight grams (28g.), is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life, and shall be fined an amount not exceeding twenty-five thousand dollars ($25,000). For all purposes other than disposition, this offense in a Class Y felon[y] . . . [A] controlled substance classified in Schedules I or II, which is a narcotic drug or methamphetamine and by aggregate weight, including adulterants or diluents, is four hundred, grams (400g), or more, is guilty of a felony and shall be imprisoned for not less than forty years(40), or life, and shall be fined an amount not exceeding two hundred and fifty thousand dollars ($250,000). For all purposes other than disposition, this offense in a Class Y felony. Id. In Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), we addressed the issue of intent in narcotic delivery cases. There, we said that in determining whether the evidence of appellant's guilt was substantial, the evidence, with all reasonable inferences to be drawn from it, is viewed in the light most favorable to the state. Id. at 516, 534 S.W.2d at 235 (citing Rogers, v. State, 257 Ark. 144, 515 S.W.2d 79 (1974)). When the evidence is sufficient, we'cannot say that the inference that appellant had joint or constructive possession of the heroin is unreasonable. Either is sufficient. Id. (citing Smith v. United States, 385 F.2d 34 (5th Cir.1967); Hernandez v. United States, 300 F.2d 114 (5th Cir.1962)). Constructive possession of a controlled substance means knowledge of its presence and control over it. Id. (citing State v. Montoya, 85 N.M. 126, 509 P.2d 893(1973)). See also People v. Bock Leung Chew, 142 Cal.App.2d 400, 298 P.2d 118 (1956). Neither actual physical possession at the time of the arrest nor physical presence when the offending substance is found is required. Id. As a matter of fact, neither exclusive nor physical possession is necessary to sustain a charge if the place where the offending substance is found is under the dominion and control of the accused. Id. The court went on further to say it was reasonable for the jury to infer from the evidence that the premises were under appellant's dominion and control. Id. In People v. Williams, 5 Cal.3d 211, 95 Cal.Rptr. 530, 485 P.2d 1146 (1971), the Supreme Court of California stated: *624 Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control or to the join dominion and control of the accused and another. The elements of unlawful possession may be established by circumstantial evidence and any reasonable inference drawn from such evidence. The evidence of the circumstances is sufficient basis for a reasonable inference that appellant knew of the presence of the heroin and that he had the right to exercise, at least, joint dominion and control of it. Id. Further, in State v. Williams, 117 Ohio AppAd 488, 690 N.E.2d 1297 (1996), officials intercepted a package containing 1000 grams of cocaine. The officials removed about 800 grams of the cocaine, added a benign substance to the remaining 200 grams, and repacked the box to be delivered in a controlled delivery to the appellant. The court in Williams stated that "constructive possession exists when an individual exercises dominion and control over an object, even though the object may not be within his immediate physical possession." Id. The Ohio court held that when law enforcement has properly intercepted a package and proves the original contents, and then substitutes a benign material, the relevant amount of contraband is that amount in the original package, and if the defendant possesses the package thereafter, a jury is entitled to conclude that the defendant constructively possessed the original contents of the package, not the substituted material. Id at 494, 690 N.E.2d at 1300 (citing U.S. v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995)). We are persuaded by this precedent from other jurisdictions. In this case, substantial evidence exists to support a conclusion that appellant had the intent to possess and deliver 520 grams of cocaine. Here, there was no indication from the package that there was less than the amount appellant was anticipating Appellant took the package from Officer Whitmore and immediately exited the home. In addition, the following evidence supports a finding that the appellant had constructive possession of the package as shipped because he believed that he was receiving 520 grams of cocaine. First, he got "Webb" to receive the package from the UPS delivery man. Second, he personally signed for the package. Third, he immediately left the back of the home with the package in hand. Further, the interception of the package did not interfere with the amount that appellant could be charged with possessing because a valid search warrant had been issued. Also, there were no objections made to the introduction of this evidence at trial. Therefore, the jury properly sentenced appellant under Ark.Code Ann. 5-64-401(a)(1)(i)(Supp.2003), which applies when a person possesses with intent to deliver a narcotic or methamphetamine over 400 grams and provides punishment of "no less than 40 years, or life," As stated in Cary, the jury had a right to infer from the evidence that the contents were under appellant's dominion and control. Here, the jury looked to the evidence presented and determined that appellant had a reasonable belief that he had dominion and control of the 520 grams of cocaine and was unaware there were only 12.7914 grams in the package." The jury, obviously believed that the State proved beyond a reasonable doubt that appellant had the intent to possess and deliver the entire 520 grams of cocaine that was originally contained in the package prior to police interception. Therefore, we hold that the evidence is *625 sufficient to support a finding that appellant had the intent to possess and deliver the entire 520 grams of cocaine. Accordingly, we affirm the jury's verdict. Affirmed. HANNAH, C.J., BROWN, and IMBER, JJ., dissent. JIM HANNAH, Chief Justice, dissenting. I respectfully dissent. The State offered no evidence to show that. Strong ever actually or constructively possessed any drugs except those contained in the package that he received in the controlled delivery. The majority concludes that although police removed all but 12.7914 grams of the cocaine from the package, it was reasonable for the jury to conclude that Strong believed that the original 520 grams of cocaine were still in the crock pot when it was delivered. This conclusion could only be based on speculation. The evidence showed that Melvin Braddock called Strong from California and asked if he knew an address where a canning machine might be delivered and that Strong admitted to police that he asked Braddock to include "weed" in the package. This could imply that Strong knew something illegal was to be shipped; however, the State offered no evidence to show that Strong ever had knowledge that' he package contained 520 grams of cocaine. Further, in holding that Strong had constructive possession of the entire 520 grams of cocaine shipped from California, the majority relies on a decision of the Ohio Court of Appeals: We hold that when law enforcement has properly intercepted a package and proves the original contents, and then substitutes a benign material, the relevant amount of contraband is that amount in the original package, and if the defendant possesses the package thereafter, a Jury is entitled to conclude that the defendant constructively possessed the original contents of the package, and not the substituted material. State v. Williams, 117 Ohio App.3d 488, 494, 690 N.E.2d 1297, 1300 (1996) (citing United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir.1995)).[1] Without any meaningful discussion of how the evidence in the case showed that the defendant had control or dominion giving rise to a finding of constructive possession, the Eleventh District Ohio Court of Appeals merely-states the above and affirms. In State v. Fabian, No.2001-T-0080, slip op. at 5, 2002 WL 1357789 (Ohio App. 11th Dist. June 21, 2002), the Eleventh District Ohio Court of Appeals noted a concern that under Williams, an individual motivated by animosity could mail prohibited narcotics to a completely innocent and unwitting victim. Such mailing, coupled with a contemporaneous anonymous phone call would set the stage for the arrest and prosecution of a law-abiding citizen." Further, although the Ohio Court of Appeals relied on Jackson, supra, in Williams, Jackson does not support the decision reached in Williams. In Jackson, similar to the present case, a package was identified and examined in transit. It was found to contain approximately 75 grams of heroin concealed within' the package. All but 2.5 grams were removed by law enforcement. A controlled *626 delivery was undertaken, and the altered package was delivered. Jackson was apprehended with the altered package as he attempted to flee upon arrival of police. Jackson contains no discussion of constructive possession. In fact, the term "constructive possession" does not appear in the opinion. The issues presented and decided in Jackson included whether a search warrant was defective, whether the district court erred in failing to find that he was a "minor participant," whether the government established his knowledge of the contents of the package, and whether the government presented sufficient evidence to establish his intent to distribute. Most telling is that in Jackson, the defendants were charged with "attempting to possess with intent to distribute, and with attempting to import approximately 75 grams of heroin. . . ." Jackson, 55 F.3d at 1222. The amount originally contained in the package was relevant to the crime of attempt. Evidence showing that the defendant made multiple calls to Nigeria regarding the package and to DHL, as well as his keen interest in its arrival, went to attempt. However, as to possession, the defendants were only charged with possession and intent to distribute the "2.5 grams of heroin, the amount left in the package upon delivery. . . ." Id This is consistent with a controlled delivery. In a controlled delivery, the criminal defendant is charged with possession of the contraband delivered and with attempted possession of the amount removed. Constructive possession is entirely another matter. Constructive possession is shown where "one controls a substance or has the right to control it." Garner v. State, 355 Ark. 82, 88, 131 S.W.3d 734, 738 (2003). This exists where the "defendant exercised care, control, and management over the contraband." George v. State, 356 Ark. 345, 354, 151 S.W.3d 770, 775 (2004). Constructive possession requires that the contraband be in a location "such that it could be said to be under the dominion and control of the accused." Id Relevant to this are factors such as "proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found." Id. There is no evidence to show that Strong exercised control or dominion over the package until it was delivered by law enforcement. Further, according to the testimony of Sergeant Michael Todd Daley, when the package was opened at the UPS hub in Monticello, the drugs were "seized" at that time. Clearly, Strong had no control or dominion over the removed drugs. There was no evidence to show that Strong had anything to do with preparation or delivery of the package to UPS in California. None of the evidence in this case shows that the package was in Strong's constructive or actual possession until the controlled delivery. Apparently, the majority concludes that Strong had constructive possession from the time the package was shipped in California. That is inconsistent with the law on constructive possession. A controlled delivery is made to obtain a charge of actual possession for the drug left in, the package and for the crime of attempt with respect to the drugs that were removed. See Jackson, supra. There was no charge of attempt made in this case. Further, the majority opines that evidence was offered to show that Strong had the intent to deliver 520 grams of cocaine in the package when it arrived in Dermott rather than the 12.7914 grams actually delivered. The question of whether substantial evidence on, that issue was presented need not be considered because there was no attempt charge in this case, *627 and Strong did not possess the package until delivery. BROWN and MEER, JJ., join. NOTES [1] At trial it was discovered that Eric Webb was a fictitious name and that the gentleman in the wheelchair was Wayne Hootsell. Mr. Hootsell did not appear to be linked with the transport of the cocaine, His address had been used for appellant to receive the package containing the cocaine, and he had no knowledge of the transaction. Mr. Hootsell was never charged with an offense. [1] Until now, State v. Williams, 117 Ohio App.3d 488, 690 N.E.2d 1297 (1996), has never been cited outside decisions of the Ohio Court of Appeals. Relevant to constructive possession, Williams has been cited in State v. Rideau, No. 17002, slip op., 1999 WL 94911 (Ohio App. 2nd Dist. Feb. 26, 1999); State v. Saddler, No. 72418, slip op., 1999 WL 961500 (Ohio App. 8th Dist. Oct. 21, 1999); and State v. Fabian, No.2001-T-0080, slip op., 2002 WL 1357789 (Ohio App. 11th Dist. June 21, 2002).

267 Md. 389 (1972) 297 A.2d 745 KASTENDIKE ET UX. v. BALTIMORE ASSOCIATION FOR RETARDED CHILDREN, INC. [No. 97, September Term, 1972.] Court of Appeals of Maryland. Decided December 14, 1972. *391 The cause was argued before SINGLEY, SMITH and DIGGES, JJ., and RICHARD P. GILBERT, Associate Judge of the Court of Special Appeals and WILLIAM B. BOWIE, Associate Judge of the Seventh Judicial Circuit, specially assigned. Alfred H. Kreckman, Jr., and John J. Ghingher, Jr., with whom were Weinberg & Green on the brief, for appellants. Eugene P. Smith for appellee. DIGGES, J., delivered the opinion of the Court. Mr. and Mrs. George H. Kastendike, appellants, must believe in the statement, "Love your neighbor, yet pull not down your hedge."[1] For while professing no rancor toward or intention to prohibit their neighbor, The Baltimore Association for Retarded Children, Inc. (BARC), appellee, from moving in, the Kastendikes insist that the move should not be allowed unless BARC obtains approval of the Mayor and City Council of Baltimore City. More particularly, this case involves the lawfulness of the use of the premises at 218 Ridgewood Road, in Baltimore, by the appellee, as a home for the care of retarded adults. Mr. and Mrs. Kastendike have sought to have such a use, without the assent of the Mayor and City Council, declared illegal and enjoined; and toward that end, on March 4, 1971, they filed their bill of complaint. From an order entered in the Circuit Court No. 2 of Baltimore City, whereby Judge Meyer M. Cardin refused to grant the relief requested by the Kastendikes, this appeal is taken. As we conclude that Judge Cardin correctly refused to enjoin this use of the property, we affirm his order. The appellants contend that the premises cannot be used as a home for retarded adults unless BARC obtains *392 not one but two authorizations from the Mayor and City Council. The Kastendikes posit that these are required by Article 12, § 1 of the Baltimore City Code (1966 ed.) and additionally by the provisions of the 1971 zoning ordinance, No. 1051. To demonstrate the error of appellants' contention and show why we concluded that Judge Cardin was correct, it is necessary to journey back to the year 1873. In that year, Ordinance No. 5 was passed and it then read in pertinent part: "An ordinance in relation to hospitals for the sick. Whereas, the establishing of hospitals for the sick in the densely populated portions of the City of Baltimore is of doubtful utility in the matter of the public health, while the effect thereof is to materially depreciate the value of private property in the vicinity in which they may be located, therefore Section 1. — Be it enacted and ordained by the Mayor and City Council of Baltimore, That it shall not be lawful to establish any hospital for the sick within the limits of direct taxation, unless by and with the assent of the Mayor and City Council of Baltimore; provided, that before such assent shall be given, public notice shall be given of an intention to apply to the City Council for such grant, which public notice shall be given at least thirty days before the City Council shall act upon the application, and published at least once a week for four weeks in not less than two of the daily newspapers of the city." This non-zoning ordinance, thus, required assent for the establishment of a "hospital for the sick," although nowhere in the ordinance is this phrase defined. Returning to the 20th Century, in 1931 a comprehensive zoning ordinance for the City, No. 1247, was enacted. Under this law, the neighborhood in which the *393 218 Ridgewood Road property is located was zoned as a residential use district. Within such a district, all uses of land or buildings were permitted except for those specifically excluded. The uses to which this property was put between the years 1931 to 1946 are unclear from the record, but none of the parties contests the fact that by January 1946, the building on this property was used as a nursing home for the aged. At that time, the premises was owned by two sisters, Ola and Caroline Gaddis, who established and operated the nursing home there until 1966. The establishment of this nursing home was not accompanied by the obtention of assent from the Mayor and City Council. But, at the trial of this case, the testimony of the zoning enforcement officer for Baltimore City, Mr. Franklin Aschemeier, Jr. indicated that in 1946 a nursing home was not considered to be a "hospital for the sick" so as to require assent. Mr. Aschemeier, in his testimony, stated that those zoning officials charged with enforcement of the regulations did not consider that assent was required for a nursing home and they were permitted in a residential use district without any approval from the Mayor and City Council. The validity of this interpretation is buttressed by the fact that, apparently in order to include nursing homes within the provision requiring assent, an amending ordinance, No. 29, was approved, on August 1, 1947, which defined "hospital" in an all-inclusive way. This ordinance, codified as Art. 12, § 1, Baltimore City Code (1966 ed.) reads in part: "It shall not be lawful to establish any hospital for the sick in the City, unless by and with the assent of the Mayor and City Council of Baltimore; provided, that before such assent shall be given, public notice shall be given of an intention to apply to the City Council for such grant, which public notice shall be posted in a conspicuous place on the premises and be published at least once a week for four weeks in not less than two of the daily newspapers of *394 the city, at least thirty days before the City Council shall act upon the application. "Hospital", as herein used, means any place or institution which maintains and operates facilities for the care, custody and/or treatment of two or more non-related persons as patients suffering mental or physical ailments but shall not be construed to include any dispensary or first-aid treatment facilities maintained by any commercial or industrial plant, educational institution or convent." The Gaddis Nursing Home, opened in 1946, prior to the approval of Ordinance No. 29, was operated continuously until the death of Caroline in 1966. That year, the property was sold to 218 Ridgewood Road, Inc. which maintained the premises as a nursing home for the aged until 1969. Then, the property was sold to the Encore House Foundation, Inc. which operated the home as a nursing home for the aged and a treatment center for non-bedridden alcoholics until late December 1970, when all the patients were moved out in anticipation of settlement on the sale of the house to the appellee. Until now, despite the fact that none of these owners obtained the assent of the Mayor and City Council, no objections were registered about their operations by any governmental official, or, for that matter, by anyone else. In November, 1970, Encore entered into a contract to sell the property to BARC, and on February 5, 1971 settlement was made. The home was then to be used as a treatment center and care home for retarded adults; but, before actual operations could begin, certain internal repairs were necessary to comply with fire and health requirements. These undertakings were deferred when, one month after settlement, appellants instituted this action. Later, on April 20, following the filing of this suit, the Baltimore City Zoning Ordinance was completely revised by Ordinance No. 1051 which rejected the permissive zoning of the 1931 ordinance and its amendments and replaced it with an exclusory plan. Now, the BARC *395 property is in a R-1 residence district where permitted uses are listed and all others are excluded except for certain enunciated accessory and conditional uses. Convalescent, nursing and rest homes, and hospitals are conditional uses that may be permitted in this district but require authorization by ordinance of the Mayor and City Council prior to their establishment. Under the facts we have just recited and the applicable ordinances, the Kastendikes contend in their brief that: "first, BARC should obtain an ordinance under Article 12, Section 1, Baltimore City Code (1966 Edition) regulating the establishment of `hospitals' (defined to include care homes) and second, BARC should comply with the provisions of the 1971 Zoning Ordinance requiring Mayor and City Council approval of that use." We shall discuss these issues in the order in which appellants present them. I The Kastendikes claim that BARC is establishing a hospital and, therefore, under the provisions of Article 12, § 1, Baltimore City Code (1966 ed.) is required to obtain the assent of the Mayor and City Council. We cannot agree. The ordinance requiring assent for nursing homes was not approved until August 1, 1947 and prior to that time such approval was not deemed necessary for the establishment of a care home. The history of this case indicates that the Gaddis sisters established their nursing home prior to the ordination of this requirement. Therefore, the Gaddis Nursing Home did not require an assent ordinance prior to its establishment unless Ordinance No. 29 was specifically enacted to have retrospective effect. The general presumption is that all statutes or ordinances are to be given prospective application unless the manifest intention of the enacting body was to the *396 contrary. Unsatisfied Fund v. Bowman, 249 Md. 705, 708, 241 A.2d 714 (1968). As we said in Tax Comm. v. Power Company, 182 Md. 111, 116-17, 32 A.2d 382 (1943): "Laws are generally enacted to regulate future conduct and establish the basis upon which rights are thereafter to be predicated; they are not usually designed to change the legal relation of closed transactions, especially if the change would interfere with antecedent rights. It is well settled that a statute will not be given a retrospective operation, unless its words are so clear, strong and imperative in their retrospective expression that no other meaning can be attached to them, or unless the manifest intention of the Legislature could not otherwise be gratified." Here, there is no express language indicating retroactive effect. And, from our reading of Article 12, § 1, we are convinced that it was not the intention of the City Council to interfere with any existing establishment. In fact, it might be questioned whether it could give a retrospective operation to such an ordinance. Glenn v. M. & C.C. of Balt., 5 G. & J. 424, 430 (1833). Thus, clearly, the action of the Gaddises in establishing their nursing home did not require assent. But, does this immunity from the requirement by the prior owners insulate their successors in interest? We conclude that it does. Since this home was lawfully established without approval, as at the time of its inception no assent was needed, it is analogous to a zoning non-conforming use under the non-zoning requirement for approval in Art. 12, § 1. The subsequent changes in ownership of the premises and changes from treatment of the aged and alcoholic to care for retarded adults does not affect the right of the new owner to continue without assent. Cf. Green v. Garrett, 192 Md. 52, 63 A.2d 326 (1949); Parr v. Bradyhouse, 177 Md. 245, 9 A.2d 751 (1939). See also Annot., 9 A.L.R.2d 1039 (1950). Though Green and Parr are *397 zoning cases involving non-conforming uses, they are instructive as to the course to follow in the case here. In Green, some taxpayers of Baltimore City attempted to enjoin the Department of Recreation and Parks from permitting the use and occupancy of Baltimore Stadium by a professional baseball team. Chief Judge Marbury, speaking for this Court in Green, supra at 63, stated that: "The second contention of the appellants is that the use of the Stadium for the playing of professional baseball contravenes the zoning ordinance of Baltimore, because it is located in a district of Baltimore City which is zoned for residential use. The zoning ordinance was passed in 1931, after the Stadium was built, and after it had been used for professional football games, and at least one professional baseball game. It had also been used for football games by the United States Naval Academy, for which purpose it had been leased. There was, therefore, a non-conforming use, established before the adoption of the zoning ordinance, which the Department was entitled to continue. The appellants contend that the enlargement of this use to include professional baseball games for a considerable period of a year is not within the exemption, but we cannot so find. We held in the recent case of Colati v. Jirout, 186 Md. 652, 47 A.2d 613, that the spirit of the zoning ordinance is against the extension of non-conforming uses, and that such uses should not be perpetuated any longer than necessary. We have never held that the more frequent use of a property for a purpose which does not conform to the ordinary restrictions of the neighborhood is an extension of an infrequent use of the same building for a similar purpose. We do not think such a contention is tenable. Nor does it seem to us that a different use is made of the Stadium when the *398 players of games there are paid. The use of the property remains the same. And, if it does not, the zoning ordinance permits a non-conforming use to be changed to a use of the same classification." Similarly, in Parr, efforts were made to prevent a Mr. Bradyhouse from renting a tract of land that was formerly used for a dairy business and turning it into a riding academy. This Court would not allow the exclusion of the riding academy and found that the change from cows to horses could not affect the right to use the land as a non-conforming use. See also Feldstein v. Zoning Board, 246 Md. 204, 227 A.2d 731 (1967) (increase in quantity and height of scrap metal stored in junkyard was intensification and not extension of owner's vested non-conforming use); Jahnigen v. Staley, 245 Md. 130, 225 A.2d 277 (1967) (intensification of a non-conforming use is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used). Likewise, we conclude that the similarities between the various uses of the premises as a nursing home are greater than the differences and the changes, if any, in the type of patients cared for are inconsequential. We, therefore, conclude that, since the premises had been lawfully established as a nursing home by the Gaddis sisters by 1946 and has continued to be used as such since then, when BARC purchased the home in 1970, it did not need to obtain the assent of the Mayor and City Council under Article 12, § 1 in order to continue that use. II Appellants next contend that under the new, 1971 Baltimore City zoning ordinance, No. 1051, BARC was required to obtain assent of the Mayor and City Council before utilizing the premises as a nursing home. It is further claimed by the Kastendikes that the nursing home is not a non-conforming use as it was not lawfully established *399 by the Gaddis sisters in 1946, or, assuming that it was lawfully established, BARC was not continuing to utilize the premises as a non-conforming use on April 20, 1971, the date the new zoning ordinance was approved. On April 20, 1971 this entirely new comprehensive zoning ordinance was approved for Baltimore City. Under this ordinance the City was divided into ten residence districts, an office-residence district, five business districts, and three industrial districts. The permitted, accessory, and conditional uses allowed in each district are specified and all others are excluded. This is exactly opposite from the 1931 ordinance which permitted everything that was not excluded. The property owned by BARC is located in an R-1 or single family residence district. In Part B, § 4.1-1 use regulations for an R-1 zone are specified. Subsection d thereof, in part, states that: "d. Notwithstanding other provisions of this ordinance, the following uses as conditional uses shall require authorization by ordinance of the Mayor and City Council subject to the requirements and provisions of Section 11.0-6d: 1. Convalescent, nursing, and rest homes". A "convalescent, nursing, and rest home" is defined in § 13.0-2 16 as: "a home for aged, chronically ill, infirm, or incurable persons, or a place of rest for those persons suffering bodily disorders, in which three or more persons are received and provided with food, shelter, and care — but not including hospitals, clinics, or similar institutions devoted primarily to the diagnosis and treatment of disease and injury, maternity cases, or mental illness." This definition encompasses BARC's operation. The assent requirement of the zoning ordinance is found at § 11.0-6d and specifies that: *400 "d. Conditional Uses by Authority of the City Council. Certain conditional uses are designated in this ordinance as requiring City Council approval. The City Council, after public notice and hearing, may authorize such uses through enactment of an ordinance and in harmony with the purpose and intent of this ordinance. All conditional uses proposed and introduced into the City Council shall be referred by the City Council to the Board, the Planning Commission, and such other agencies as determined by the President of the City Council for written report and recommendations." However, Chapter 8 of the ordinance makes provision for the continuance of non-conforming uses, which is defined in § 13.0-2 54 of Chapter 13 as: "any lawfully existing use of a building or other structure or of land which does not conform to the applicable use regulations of the district in which it is located." If under the 1931 zoning ordinance this nursing home was lawfully established, then, under Chapter 8, it may continue as a non-conforming use and no assent is required for designation as a conditional use. Appellants submit that this nursing home does not exist as a lawful non-conforming use as it was not "lawfully existing" under the provisions of the 1931 zoning ordinance. That ordinance permitted all uses in a residential use district except for the 44 excluded uses listed in paragraph 8. In the case of Parr v. Bradyhouse, 177 Md. 245, 247, 9 A.2d 751 (1939), we characterized this list as the "forty-four businesses excluded from a residential use district," and we indicated that if the Mayor and City Council overlooked or never thought of adding a particular exclusion to the list, they should not ask this Court to write the exception or omission made by them into their ordinance. Clearly, a nursing, convalescent, care, or rest home is not explicitly excluded by the list. But the Kastendikes argue that such homes are *401 prohibited by the fifth exclusion in this alphabetical list which in its entirety reads "5. Business". The appellants would have us define "business" broadly so as to include a nursing home and, thus, declare the use unlawful. The word "business" has a very broad significance and a great variety of meanings and the precise meaning of the word depends on how it is defined in the ordinance or the context in which it is used. Unfortunately, the word is nowhere defined in the 1931 ordinance. Therefore, we must garner the intent of the City Council from the context in which the word is used and from its ordinary and customary meaning. Zurich Insur. Co. v. Friedlander, 261 Md. 612, 276 A.2d 658 (1971). As we said in Zurich, supra at 616: "The broad definition of `business' is that adopted by the Supreme Court in Flint v. Stone Tracy Co., 220 U.S. 107, 171, as `That which occupies the time, attention and labor of men for the purpose of a livelihood or profit.' Under this broad concept, obviously one who devoted enough time and attention to buy a hundred shares of stock, looking for a profit, could be said to be in the business of investing. However, this broad meaning of the word business is not the meaning the word ordinarily and customarily conveys. The ordinary and customary meaning is that reflected in Webster's Third New International Dictionary as `commercial or mercantile activity customarily engaged in as a means of livelihood' or two definitions given by Funk and Wagnall's New Standard Dictionary of the English Language: `1. A pursuit or occupation that employs or requires energy, time or thought; trade, profession, calling. 2. Any occupation connected with the operations and details of trade or industry,' or, one given by Black's Law Dictionary (3rd *402 ed.): `"Business" is often synonymous with calling, occupation or trade.'" In different contexts, the word "business" may mean different things. For example, it is clearly established that hospital records are admissible into evidence under proper circumstances as a "business" record. See Snyder v. Cearfoss, 190 Md. 151, 57 A.2d 786 (1948); Art. 35, § 59, Code (1957, 1971 Repl. Vol.) where for purposes of evidential proof by written records, "`business' shall include business, profession, occupation and calling of every kind." Therefore, while a hospital or nursing home may be considered as a business in some contexts, we must determine if that was intended here. See 101 C.J.S. Zoning § 164 (1958). In the 1931 ordinance, "business" is listed with 43 other excluded activities all of which except for correctional or penal institutions are commercial establishments. While we must profess some bewilderment as to why the word "business" without further explanation was included on the list, we do not think its presence on the list is dispositive of this case. We conclude that "business", as here used, must refer to commercial or mercantile businesses similar to the others on the list using the word "business," e.g., "library, or club, the chief activity of which is a service customarily carried on as a business, undertaking business, the following places of business where services are rendered: clothes pressing, beauty parlor, barber shop, photographic establishment, printing establishment, radio shop, shoe repair shop, poultry killing or dressing, cat or dog hospital, automobile or storage battery service station." If "business" was to be all inclusive, it would have been unnecessary to list all the other exclusions. Additionally, those people charged with enforcing the zoning ordinance did not consider nursing homes excluded from residential use districts as the evidence here shows that 80% of the nursing homes licensed by the State Department of Health and Mental Hygiene were located in residential areas, and more than 50% of these were expressly *403 approved by the Mayor and City Council. If such homes were excluded as a "business" no licensing or approval would be possible so as to permit such an operation in an area in which it was excluded. Thus, we conclude that the Gaddis Nursing Home which was established by 1946 was "lawfully existing." As we indicated in part I of this opinion, the mere change of ownership and treatment of different residents with diverse medical problems does not destroy the non-conforming use. See, e.g., Hawkins v. Talbot, 80 N.W.2d 863 (Minn. 1957); Beers v. Bd. of Adjust. of Wayne Tp., 75 N.J. Super. 305, 183 A.2d 130 (1962); Hyams v. Amchir, 57 N.Y.S.2d 77 (1945); Gibbons & Reed Company v. North Salt Lake City, 19 Utah 2d 329, 431 P.2d 559 (1967). We, therefore, conclude that the home established by the Gaddises was lawful under the 1931 zoning ordinance and as conveyed to their successors in interest would constitute as lawful any continuation of a similar operation so long as the "nature and character of the use is unchanged and substantially the same facilities are used." Jahnigen v. Staley, 245 Md. 130, 137, 225 A.2d 277 (1967). If we find that this non-conforming use was not abandoned but was continuously operated without extension until the time the new ordinance was approved, then no assent was necessary and Judge Cardin was correct in allowing BARC to use the home as a care and treatment facility for retarded adults. There is ample evidence in the record to justify a finding that from its establishment in 1946 until late December 1970, when Encore left the premises to make room for BARC, the premises was continually used as a nursing home. Appellants contend, however, that BARC abandoned that use. We do not agree. Section 8.0-4 f of the new zoning ordinance states: "Whenever any Class III non-conforming use, or any part thereof, has been discontinued for a period of 12 consecutive months, such discontinued *404 non-conforming use, or part thereof, shall not thereafter be re-established, and any subsequent use of that land, structure, or part thereof, shall conform to the regulations of the district in which the land or structure is located. Such discontinuance of the active and continuous operation of such non-conforming use, or any part thereof, for such period of 12 months shall constitute an abandonment of such non-conforming use, or part thereof, respectively, regardless of any reservation of an intent not to abandon same or of an intent to resume active operations. If within a period of less than 12 months, actual abandonment in fact is evidenced by removal of structures, machinery, or equipment, or by alterations indicating a change in the use of the land, structure, or part thereof, the abandonment shall be completed at the time of such event and all rights to re-establish or continue such non-conforming use, or part thereof shall terminate as of that time." Here, no 12 month discontinuance of use took place. In fact, despite hindrance by the institution of this suit one month after the settlement date of February 5, 1971, and the need for certain internal repairs, the first resident moved into the house in September 1971. As this period is within the 12 months allowed by the ordinance before a non-conforming use is statutorily deemed abandoned, there must be proof of actual abandonment as defined in the statute to justify a termination of BARC's right to carry on such a use. No such proof is offered. Therefore, since the use as a nursing home from 1946 until BARC started operation was continuous and was never abandoned, the lawfully existing non-conforming use is permitted under the new zoning ordinance. Neither the change in ownership nor change from treatment of the aged or alcoholic to care of the mentally retarded *405 eradicated or acted to extend the non-conforming use. Appellants make one last thrust in an effort to parry defeat. They claim that since BARC was not in actual operation on April 20, 1971, when the new ordinance was passed, then it cannot be considered as a non-conforming use. The Kastendikes rely on our holding in Harris Used Car v. Anne Arundel Co., 257 Md. 412, 263 A.2d 520 (1970) as support for their position. While we do not retreat from our holding in Harris that "a mere intention to use is not enough to establish a non-conforming use," we think that case is clearly distinguishable. There, this Court found that the chancellor was not clearly erroneous in concluding that the subject land was not being used as a non-conforming use on the day of enactment of the zoning ordinance as any such use had been abandoned several years before the effective date of the ordinance. We conclude that rather than being controlled by Harris, the case of Higgins v. City of Baltimore, 206 Md. 89, 110 A.2d 503 (1955), is dispositive of the issue now before us. A paraphrase of our observation in Higgins, supra at 100, is appropriate here — the appellee had gone far beyond the "expectation" stage of continuing this use and if BARC had not completely consummated its permitted change to a care home for mentally retarded adults prior to the adoption of Ordinance No. 1051, of April 20, 1971, it seems a reasonable inference that the institution of this suit may have prevented it. In sum, we conclude that the trial court was correct in denying the relief sought by the Kastendikes and we, therefore, affirm its decision. Order affirmed. Costs to be paid by appellants. NOTES [1] Jacula Prudentum, written by George Herbert (1593-1633).

599 N.E.2d 233 (1992) BLAIREX LABORATORIES, INC., Appellant-Defendant, v. Dennis CLOBES, Appellee-Plaintiff. No. 26A01-9202-CV-40. Court of Appeals of Indiana, First District. September 23, 1992. Transfer Denied November 20, 1992. *234 Gregory L. Noland, Russell T. Clarke, Jr., Emswiller, Williams, Noland & Clarke, Indianapolis, for appellant-defendant. Charles C. Griffith, Johnson, Carroll & Griffith, Evansville, Charles R. Nixon, Fair & Nixon, Princeton, for appellee-plaintiff. BAKER, Judge. Blairex Laboratories, Inc. (Blairex) appeals the trial court's determination Blairex entered into an enforceable contract with Dennis Clobes (Clobes) to pay Clobes royalties from the sale of Broncho-Saline, a product Clobes helped Blairex develop. Blairex stopped making payments to Clobes, and Clobes sued to enforce the royalty agreement. After a bench trial, the court made special findings and conclusions and entered judgment in Clobes's favor. Blairex now appeals the court's conclusion Blairex's president had authority to negotiate and execute the royalty agreement with Clobes, and the conclusion the royalty agreement was enforceable. FACTS The facts most favorable to the judgment reveal that in June of 1985, Clobes, a pharmacist, informed Blairex he had an idea for a sterile saline solution for use in inhalation therapy. Michael Hull (Hull), President of Blairex, told Clobes that Blairex's sales and marketing staff and Board of Directors were enthusiastic about Clobes's idea. Thereafter, Blairex developed the product with Clobes's frequent input. From time to time, Hull and Clobes discussed the royalty Blairex would pay. Hull suggested the industry standard was five percent. On December 9, 1986, Blairex's Board of Directors held a special meeting during which it "directed Hull to get an agreement for a royalty on the Broncho-Saline with Dennis Clobes." Record at 409. By letter of April 13, 1987, Hull offered Clobes a *235 royalty of seven cents per can, which was roughly 1.9% of the product's sale price. Clobes rejected the offer by letter of April 23, 1987, and made a counteroffer of 3.5%, which was a compromise between the Hull's offer of 1.9% and Clobes's original request of 5%. Hull accepted Clobes's counteroffer, and they agreed on 5% of the sales of another product Clobes had suggested, a nasal moisturizer. Blairex's attorneys prepared a formal royalty contract reflecting the royalty percentages agreed upon. The initial draft was revised twice and culminated in an agreement both Hull, as President of Blairex, and Clobes signed. The agreement was dated May 14, 1987. Hull signed Clobes's royalty checks until he left his employment with Blairex in April of 1988. Bruce Faulkenberg, who succeeded Hull as president, signed the royalty checks following Hull's departure. Blairex continued to pay Clobes royalties through the last quarter of 1988. After Blairex stopped paying the royalties in 1989, Clobes filed this action. After a bench trial, the court entered judgment in Clobes's favor, and Blairex now appeals. DISCUSSION AND DECISION Standard of Review The trial court entered special findings of fact and conclusions of law as the parties requested under Indiana Trial Rule 52(A). When reviewing the trial court's findings and conclusions, we must determine whether the findings are sufficient to support the judgment, and whether the evidence is sufficient to support the findings. Vanderburgh County Bd. of Commissioners v. Rittenhouse (1991), Ind. App., 575 N.E.2d 663, 665, trans. denied. We will reverse the judgment only if it is clearly erroneous. Id. A judgment is clearly erroneous when it is unsupported by the findings of fact and conclusions of law entered on those findings. Id. Even if the judgment is supported by the findings of fact and conclusions of law, we may nonetheless reverse the judgment if the findings of fact are clearly erroneous based on the evidence presented. Id. We define the clearly erroneous standard based on whether the party is appealing a negative or an adverse judgment. In this case, the trial court entered findings in favor of Clobes, the party who had the burden of proof. Blairex, therefore, appeals an adverse judgment. When the trial court enters findings in favor of the party bearing the burden of proof, we will hold the findings clearly erroneous if they are not supported by substantial evidence of probative value. Id. Even if the supporting evidence is substantial, we will reverse the judgment if we are left with a definite and firm conviction a mistake has been made. Id. I Hull's Authority to Bind Blairex Blairex argues the trial court erred when it concluded Hull had authority to bind Blairex to the royalty agreement. Blairex complains Hull did not have express, implied, or apparent authority to execute the royalty agreement giving Clobes the right to receive 3.5% of the Broncho-Saline sales. In DPW v. Chair Lance Service, Inc. (1988), Ind., 523 N.E.2d 1373, our supreme court discussed the doctrines of express and implied authority as they apply to a corporation's agents. The court stated: Express authority [to act as an agent for a corporation] may be provided in the charter, the by-laws of the corporation, in a resolution of the board of directors not inconsistent with the by-laws, or other written authority such as memorandum or letter. Implied authority depends on the actual relationship of the corporation and the agent, and not what others may believe about that relationship. Implied authority of an agent binds a corporation only if the agent is performing an act that is appropriate in the ordinary course of a corporation's business; it includes incidental authority necessary, usual, and proper to effectuate the main authority expressly conferred. Implied authority may also arise from a course of conduct showing that *236 the corporation has repeatedly ratified acts of the same kind. Id. at 1377. Unlike express and implied authority, apparent authority is created by the outward appearance a corporation has given the agent authority to act. To determine whether an agent acted with apparent authority, we ask whether the third person reasonably believed, because of some manifestation from the agent's principal, the agent possessed the authority to act. Burger Man, Inc. v. Jordan Paper Products, Inc. (1976), 170 Ind. App. 295, 311, 352 N.E.2d 821, 832. For the third person to reasonably believe the agent possessed the authority, the principal need not communicate with the third person directly. Placing the agent in a position to perform acts or to make representations is sufficient to clothe the agent with apparent authority. Id. To determine whether Hull, in his capacity as Blairex's president, had authority to bind Blairex to the royalty agreement, we look first to the Indiana Business Corporation Law, codified at IND. CODE 23-1-17-1 to -54-3. IND. CODE 23-1-36-2, which defines the powers and duties of corporate officers, provides: Each officer has the authority and shall perform the duties set forth in the by-laws or, to the extent consistent with the bylaws, the duties prescribed by the board of directors or by direction of an officer authorized by the board of directors to prescribe the duties of other officers. Article III, Section 2 of Blairex's by-laws provides: Section 2 — Duties The principal duties of the several general officers respectively are as follows: 1. The President shall preside at all meetings of the stockholders and the Board of Directors. He shall be the chief executive officer of the corporation and shall have the general supervision, direction and active management of the property, affairs and business of the corporation, subject to the Board of Directors. He shall see that all orders and resolutions of the Board of Directors are carried into effect. He shall sign all certificates, stocks, bonds, deeds, leases, conveyances, commercial paper, contracts, and all other obligations and instruments in writing, unless otherwise ordered by the Board of Directors. ... (Emphasis added). Under Blairex's by-laws, Hull was responsible for signing all of Blairex's contracts, unless the Board of Directors ordered otherwise. At the Board of Director's special meeting conducted December 9, 1986, "[t]he Board directed Hull to get an agreement for a royalty on the Broncho-Saline with Dennis Clobes." Record at 439b. As reflected in the meeting minutes, the board expressly authorized Hull to bind Blairex to the subsequent royalty agreement. We reject Blairex's argument Hull's authority to sign a royalty agreement with Clobes was limited. Although Hull testified that one board member told him "we'd like to see you get this fraction of a percent and have some minimum sales before any royalty would kick in," record at 406, this statement did not limit Hull's authority to sign only an agreement paying a fraction of a percent of the Broncho-Saline sales. The board member simply expressed the percentage he hoped Hull would obtain; the statement did not prohibit Hull from binding Blairex to an agreement to pay more than a fraction of a percent. Because Hull had express authority to sign the royalty agreement, we need not address whether Hull also had implied or apparent authority to enter into the agreement. Blairex also argues the trial court erred when it concluded Blairex ratified the agreement. When a principal, with full knowledge of the facts, appropriates the fruits of an agent's unauthorized act, the principal may not complain later the agent acted without authority. Kody Co., Inc. v. Fox & Fox Inc. Agency (1973) 158 Ind. App. 498, 303 N.E.2d 307. We need not address the issue of whether Blairex ratified the agreement, however, because we have already *237 concluded Hull had authority to bind Blairex. II Enforceability Finally, Blairex argues the trial court erred when it concluded the royalty agreement was enforceable. At trial, Blairex argued the contract was unenforceable because it was unconscionable. Not surprisingly, Blairex lost on this issue at trial. Blairex's president negotiated the terms of the contract, and Blairex's attorneys drafted the contract. It escapes this court what Blairex could possibly have argued was unconscionable. Now Blairex argued the contract is unenforceable because it has no termination date. We need not address the merits of this argument, however. Notwithstanding Blairex's assertions to the contrary, Blairex never raised the issue of whether the contract is terminable at will to the trial court. The law is very clear: a party may not raise an issue on appeal that was not presented first to the trial court. W & W Equipment Co., Inc. v. Mink (1991), Ind. App., 568 N.E.2d 564, 576. The issue is accordingly waived. The judgment is in all things affirmed. RATLIFF, C.J., and CHEZEM, J., concur.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs March 19, 2003 GREGORY A. HEDGES v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Greene County No. 02-CR-166 James E. Beckner, Judge No. E2002-02610-CCA-R3-PC October 24, 2003 The petitioner filed a petition for writ of error coram nobis claiming a due process violation in that the State failed to disclose a plea agreement with a material witness. We conclude the issues raised by the petitioner have been previously determined and are time barred. We further conclude the facts of this case do not justify tolling of the statute of limitations. We affirm the trial court’s dismissal. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T. WOODA LL, JJ., joined. Gregory A. Hedges, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General; and C. Berkeley Bell, Jr., District Attorney General, for the appellee, State of Tennessee. OPINION Procedural History The petitioner, Gregory Hedges, was convicted along with two co-defendants in 1985 of seven offenses arising from an aggravated kidnapping and aggravated robbery. The petitioner received a sentence of 96 years. The convictions and sentences were affirmed by this Court on direct appeal. State v. Gregory A. Hedges, Thomas D. Carter, and Timothy Bickers, No. 252 , 1987 Tenn. Crim. App. LEXIS 2217 (Tenn. Crim. App., at Knoxville, April 15, 1987), perm. to appeal denied (Tenn. Sept. 14, 1987). The petitioner later filed a post-conviction petition which was denied by the trial court. On appeal, the petitioner’s conviction for grand larceny was vacated by this Court and all other grounds for which relief was sough were denied. Gregory Hedges v. State, No. 03C01- 9112-CR-00379, 1993 Tenn. Crim. App. LEXIS 164 (Tenn. Crim. App., at Knoxville, Mar. 10, 1993), perm. to appeal denied (Tenn. July 12, 1993). The petitioner and his co-defendants on March 26, 1997, filed motions to reopen their post-conviction petitions accompanied by petitions for writs of error coram nobis alleging violation of their due process rights by the State’s failure to disclose a plea agreement with accomplice, Janie Riddle, the State’s primary witness. The trial court reopened the petitions but summarily dismissed the petitions without an evidentiary hearing finding that the petitions were barred by the statute of limitations and that the grounds for relief were waived. On appeal, a panel of this Court concluded that the trial court erred in granting the motions to reopen, but affirmed the dismissal of the petitions. Timothy Bickers, Thomas Carter, and Gregory Hedges v. State, No. 03C01-9706-CR-00218, 1998 Tenn. Crim. App. LEXIS 998 (Tenn. Crim. App., at Knoxville, Sept. 25, 1998), perm. to appeal denied (Tenn. Mar. 8, 1999). On September 12, 2002, the petitioner filed a petition for writ of error coram nobis claiming the State’s failure to disclose the plea agreement with key witness, Janie Riddle, was a violation of his due process rights under authority of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963). The trial court on September 26, 2002, dismissed the petition finding that the statute of limitations had expired on both the petition for writ of error coram nobis and for post-conviction relief and that the issues presented had been previously determined. Analysis The issue of the State’s failure to disclose a plea agreement with the petitioner’s accomplice, Riddle, was previously raised in the petition to reopen post-conviction proceedings filed March 26, 1997. The instant petition for writ of error coram nobis attempts to circumvent the statute of limitations barring such relief by arguing that due process requires tolling of the statute of limitations. The petitioner’s original complaint is that the State’s failure to disclose the plea agreement with Riddle was a violation of his due process rights under Brady v. Maryland, 373 U.S. 83 (1963). Although the petitioner admits discovery of the alleged failure to disclose in 1996, he argues that the statute of limitation should be tolled under the authority of Workman v. State, 41 S.W.3d 100 (Tenn. 2001), and State v. Ratliff, 71 S.W.3c 291 (Tenn. Crim. App. 2001). The petition for writ of error coram nobis is barred by the statute of limitations if it is not tolled. The appropriate period for filing is one year after the judgment becomes final in the trial court or, if a post-trial motion is filed, one year from entry of an order disposing of the post-trial motion. Tenn. Code Ann. § 27-7-204; State v. Mixon, 983 S.W.2d 661, 671 (Tenn. 1999). Workman was a capital case that recognized due process outweighed the interest of prevention of stale claims when newly discovered evidence might establish actual innocence. Ratliff also allowed tolling of the statute of limitations on due process grounds. The facts therein involved a complete recantation of the victim’s prior testimony, the crux of the State’s prosecution. In contrast to these cases, the petitioner does not, and never has denied participation in the offenses for -2- which he was convicted. We conclude that the statute of limitations for writ of error coram nobis relief is not tolled in this cause and, therefore is a bar to the relief sought. In considering the claim advanced by the petitioner and co-defendants in their March 26, 1997 filing, seeking to reopen the previous post-conviction petitions, the trial court found that the ground for relief (failure to disclose plea agreement) was easily discoverable, if not known to the petitioners, prior to their first post-conviction petition and was waived on appeal. A panel of this Court concluded that the trial court erred in reopening the petition but did not address the merits of the claim. Timothy Bickers, Thomas Carter, and Gregory Hedges v. State, No. 03C01-9706-CR- 00218, 1998 Tenn. Crim. App. LEXIS 998 (Tenn. Crim. App., at Knoxville, Sept. 25, 1998) perm. to appeal denied (Tenn. Mar. 8, 1999). We conclude the issue now raised by the petitioner has been previously determined. In addition, we note that this Court has previously held that Brady violations, as well as constitutional violations, are not appropriate for coram nobis proceedings. See Hershell Lee Kinnaird v. State, No. M2000-00037-CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 596 (Tenn. Crim. App. Aug. 7, 2001, at Nashville), perm. to appeal denied (Tenn. Dec. 31, 2001). Conclusion We conclude that the issue presented by the petitioner has been predetermined and as an alleged constitutional violation, is not appropriate for coram nobis relief. In addition, the facts of this cause do not justify a tolling of the statute of limitations barring the relief sought in the petition for writ of error coram nobis. ___________________________________ JOHN EVERETT WILLIAMS, JUDGE -3- 

491 Pa. 561 (1980) 421 A.2d 1027 Theodore KACZKOWSKI, Administrator of the Estate of Eric K. Kaczkowski, Deceased, on behalf of the Estate of Eric K. Kaczkowski, Deceased, Appellant, v. John J. BOLUBASZ, Appellee. Supreme Court of Pennsylvania. Argued March 10, 1980. Decided September 22, 1980. *562 Seymour Sikov, Sikov & Love, Pittsburgh, for appellant. Cosmos J. Reale, Warren D. Ferry, Pittsburgh, for appellee. Stephen M. Feldman, Feldman & Feldman, Philadelphia, for amicus curiae Pa. Trial Lawyers. EAGEN, C.J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ. OPINION NIX, Justice. Appellant instituted a complaint in trespass in Allegheny County Court of Common Pleas. The suit arose from an *563 automobile accident in which the decedent, Eric K. Kaczkowski, was riding as a passenger in a vehicle operated by appellee. At the original trial of this matter, the jury established the liability of the appellee. Upon appellant's Motion For a New Trial, the case was returned to the trial court for a retrial on the issue of damages. During the retrial of the question of damages, the jury was presented with the following facts: the decedent was a white male, twenty years of age at the time of his death; he attended Alliance College, Cambridge Springs, Pennsylvania for two years; and at the time of his death, he was attending the Institute of Computer Management, a division of Litton Industries. Decedent's close friends and relatives testified that decedent was in good health, industrious, and interested in his course of study in computer operations. The Director of Placement at the Institute for Computer Management testified to his familiarity with the decedent, that his progress was good for a beginning student, and that the decedent evidenced motivation and willingness to learn. Based upon his professional contact with employers and experience in placing graduates, the Placement Director testified to the range of salaries for which the decedent would have been qualified. He stated that in the private sector, the average salaries ranged from $538.36 to $585.77 per month, and in the public sector, the average salaries ranged from $600 to $900 per month. During an in-chambers discussion, appellant's counsel offered to call as an expert witness, Doctor Reuben E. Slesinger, an Economics Professor at the University of Pittsburgh. By the testimony of Doctor Slesinger, counsel offered to prove a projection of the potential earning capacity of the decedent.[1] Although the trial court did not prohibit Dr. *564 Slesinger from testifying as to his projection of future lost earnings reduced to present value, the court refused to allow Dr. Slesinger to use a four percent (4%) annual increment to the victim's base salary to represent the combined impact of inflation and productivity gains on the future increases in the victim's earnings. The trial court's refusal was based upon the recently decided case of Havens v. Tonner, 243 Pa.Super. 371, 365 A.2d 1271 (1976),[2] which the trial court interpreted to mandate that "an annual increment percentage whether called a productivity factor or inflation factor is not permitted to be used by a witness projecting future loss of earnings reduced to present worth." Kaczkowski v. Bolubasz, No. 1246 April Term, 1978, Court of Common Pleas of Allegheny County, at 3 (February 22, 1978). Rather than have Dr. Slesinger project the future loss of earnings without the four percent (4%) annual increment, the plaintiff chose not to use any of Dr. Slesinger's testimony. Instead, the plaintiff relied upon the trial court's charge of impairment of future earning power for the guidance of the jury. The lower court charged the jury to consider the decedent's personal characteristics to: calculate the potential gross earnings of the decedent for the period of decedent's work life expectancy; to determine the maintenance costs of the decedent for the period of decedent's work life expectancy; to deduct the personal maintenance costs from the gross earnings to produce net earnings; and to discount the net earnings to present value by six percent (6%) simple interest. Based upon the judge's instructions, the jury returned a verdict of $30,000. on behalf of the estate of Eric K. Kaczowski. The appellant's Motion for a New Trial was denied. The appellant appealed to the Superior Court which per curiam affirmed the lower court based upon the Superior Court's prior decision in Havens v. Tonner. Kaczkowski v. Bolubasz, No. 755 April Term, 1978 (Superior Court of Pa., *565 May 4, 1979). Appellant filed a Petition for Allowance of Appeal with this Court and we granted allocatur.[3] The issue raised by appellant is whether the trial court erred in excluding reliable economic testimony showing the impact of inflation[4] and increased productivity[5] on decedent's future earning power.[6] In order to address this issue, we must consider current Pennsylvania law and reassess its effectiveness in light of the purported objective of awarding full compensatory damages for loss of future earnings. To the victims of negligence or their survivors, the law of damages is of at least the same concern as the substantive law of torts. We have been quick to change substantive tort law where it has been determined that the needs of a changing society so dictated. See e.g., Sinn v. Burd, 486 Pa. *566 146, 404 A.2d 672 (1979); Azzarello v. Black Bros. Inc., 480 Pa. 547, 391 A.2d 1020 (1978); Mayle v. Pa. Dept. of Hwy., 479 Pa. 384, 388 A.2d 709 (1978); Fadgen v. Lenker, 469 Pa. 272, 365 A.2d 147 (1976); Ayala v. Phila. Bd. of Education, 453 Pa. 584, 305 A.2d 877 (1973). We are now called upon to determine whether the law of damages is in need of similar adjustments due to changes of circumstances occasioned by the passage of time and conclude that both a productivity factor and inflation should be reflected in an award of lost future earnings. I. Current Law In this Commonwealth, we have consistently held that damages are to be compensatory to the full extent of the injury sustained. Incollingo v. Ewing, 444 Pa. 299, 307, 282 A.2d 206, 210 (1971); McLane v. Pittsburgh Rys. Co., 230 Pa. 29, 79 A. 237 (1911); Montgomery Bank v. Reese, 26 Pa. 143, 146 (1850). The rule "is to give actual compensation, by graduating the amount of damages exactly to the extent of the loss." Forsyth v. Palmer, 14 Pa. 96, 97 (1850). Loss of future earnings is a distinct item of damages, which if properly proved, may result in recovery for the plaintiff.[7] Inflation and productivity increasingly demand judicial attention, particularly with respect to personal injury action damages for lost future earnings. Traditionally, evidence of future inflation and productivity increases have been deemed too speculative to be included in calculating future damages even though inflation and productivity increases may drastically reduce an initially generous award. 18 Washburn L.J. 499 (1979). However, today, in light of clear scientific evidence of the fact that inflation and productivity have become an established part of our economy, it *567 becomes necessary that these factors be considered in such awards. The "law does not require that proof in support of claims for damages or in support of compensation must conform to the standard of mathematical exactness." Lach v. Fleth, 361 Pa. 340, 352, 64 A.2d 821, 827 (1949). All that the law requires is that "(a) claim for damages must be supported by a reasonable basis for calculation; mere guess or speculation is not enough." Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 453-54, 197 A.2d 721, 727 (1964). See also, Small v. Flock, 407 Pa. 148, 180 A.2d 59 (1962); Getz v. Freed, 377 Pa. 480, 105 A.2d 102 (1954). "If the facts afford a reasonably fair basis for calculating how much plaintiff's entitled to, such evidence cannot be regarded as legally insufficient to support a claim for compensation." Western Show Co., Inc. v. Mix, 308 Pa. 215, 162 A. 667 (1932). Personal injury awards are usually lump-sum payments, and are not paid in weekly or monthly installments.[8] Thus, all damages for personal injuries, including damages expected to accrue in the future,[9] must be proved and calculated at trial. D. Dobbs, Remedies, § 8.1 (1973). The loss of future wages is discounted to its present value by using the six percent (6%) simple interest figure.[10] *568 Specifically, the principles relating to the limitation of the proof and consideration of the economic factors affecting lost future earnings have been articulated recently in Havens v. Tonner, 243 Pa.Super. 371, 365 A.2d 1271 (1976). In Havens, the appellant and the appellee were involved in an automobile accident. The appellee suffered whiplash, as well as a weakness in his right arm and leg. After his employer's reorganization of the corporate sales office, appellee's *569 employment was terminated. As of his termination date, appellee claimed a total and permanent disability. In the common pleas court, the jury returned a verdict in favor of the appellee. On appeal to the Superior Court, the appellant objected to the admissibility of an economist's testimony on appellee's lost future earnings. During trial, the economist calculated lost future earnings based upon a projected work life of 20.69 years. He assumed that if appellee continued as an employee he would have earned $12,780. annually, plus fringe benefits. A 3½ percent productivity factor was added to this figure. The economist explained his calculation of the productivity factor as follows: What I have taken into account here is the fact of productivity increases in the future, to try and allow for future increases in wages which would come about due to the fact that the economy over a long period of time has had a tendency to exhibit an increase in the propensity to produce goods and services at a faster more efficient rate. Namely, due to better technology. This, over the longrun [sic] is the principal cause or the principal reason why a person's wages rise; if he can produce twice as much in an hour after learning to do his job better, his employer can afford to pay him more because the employer has more goods that this individual produced that he can now offer for sale and, in fact, in the longrun [sic] in the American economy, productivity has increased or the ability of American workers to produce more goods and services in an hour somewhere around three and a half per cent, therefore, I have allowed the wage increase here approximately of about three and a half percent perannum [sic] for the remaining period of his work-life expectancy. 243 Pa.Super. at 385, 365 A.2d at 277-78. The Superior Court refused to accept the economist's testimony concerning a 3½% productivity factor. It reasoned that the productivity factor "was based upon nothing but the economist's assertion that experience demonstrated that industrial productivity increased annually by at least *570 that much due to improved technology and that this improvement was normally passed along in the form of increased wages." Id., 243 Pa.Super. at 378, 365 A.2d at 1274. The Superior Court rationalized its holding as follows: Steadily rising wage rates over the next twenty years, whatever the cause, are simply one face of the coin of inflation. It may be that inflation will become so much an established pattern of our economy that it should be recognized in estimating loss of future earnings. Certainly the erratic behavior of the economy over the past half dozen years, plagued by war and other unusual circumstances, is not a sufficient demonstration that inflation at any predictable rate will continue for another twenty years. Furthermore, even if inflation is a part of the pattern of the future, one certain consequence is that interest rates on money will reflect that fact. Consequently, a sum representing the present worth of future earnings will earn more in dollars in an inflationary period than would otherwise be the case. This may not wholly compensate for the effect of inflation over the next twenty years. We view the "productivity factor" as simply a substitute for inflation and equally speculative and inadmissible in a calculation of future earnings. Id. Thus, it appears that the Haven's Court misunderstood that inflation and productivity were separate and distinct phenomena and the court failed to distinguish between the two in its blanket rejection of the productivity factor that was offered in evidence. Therefore, under the teaching of Havens, a tort victim in Pennsylvania who institutes an action to recover lost future earnings only receives compensation based upon his or her salary as of the date of the debilitating event. The current earning amount is multiplied by the number of years remaining in the victim's worklife span. The total figure is then reduced to its alleged present value. There is no allowance made in the lost future earning formula for consideration of either potential productivity or inflation. *571 II. Fallacy of Havens Ideally, a damage award computation should achieve the tripartite goals of accuracy, efficiency, and predictability. Freeport Sulphur Co. v. S.S. Hermosa, 526 F.2d 300, 308-12 (5th Cir. 1976). Commentators note that the Pennsylvania method of calculating lost future earnings achieves the efficiency goal by precluding expert testimony on inflation and productivity while confining the relevant inquiry to determining wages at the date of the debilitating event. Comment, Inflation and Damages, 63 Va.L.Rev. 105, 108 (1977); Note, Considering Inflation in Calculating Lost Future Earnings, 18 Wash.L.J. 499, 500 (1979), Fleming, Inflation and Tort Compensation, 26 Am.J.C.L. 51, 65 (1977). Since the inflation and productivity variables are removed from consideration in calculating the damage award, the award is more predictable and the possibility of settlement out of court is enhanced. However, even assuming the premise that simplification is synonymous with efficiency and predictability, the Pennsylvania method sacrifices accuracy to the prejudice of the victim by failing to compensate the victim to the full extent of the injury sustained. By an obstinate refusal to give any recognition to inflation and productivity, we ignore our responsibility to attempt to "graduate the amount of the damage award exactly to the extent of the loss." Forsyth v. Palmer, 2 Harris 96, 97 (1850). We are aware that "[T]he orderly development of the law must be responsive to new conditions and to the persuasion of superior reasoning." Griffith v. United Air Lines, 416 Pa. 1, 23, 203 A.2d 796, 806 (1964). [W]hen a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. . . . There should be greater readiness to abandon an untenable position when the rule to be discarded may not reasonably be supposed to have determined the conduct of the litigants, and particularly when in its origin it was the *572 product of institutions or conditions which have gained a new significance or development with the progress of the years." Cardozo, The Nature of the Judicial Process, 150-51 (1921). Despite the uninformed belief of the Haven's court, inflation and productivity factors are not speculative and are capable of definition and prediction by economic experts. For decades, economists have been refining tools to forecast economic growth and have used these tools with proven accuracy. Sophisticated economic forecasts are relied upon by every major government agency, corporation, and financial institution. These forecasts are based upon all that is known in the American economy and despite small tolerances of error, these projections have been accurate in the past. See, District of Columbia v. Barriteau, D.C.App., 399 A.2d 563, 566 (1979). Thus, there exists a reasonable basis in fact for this court to consider the impact of inflation and productivity on lost future earnings. A court has a responsibility to the citizenry to keep abreast of changes in our society. In light of the recognized acceptance of the science of economics, the courts of this Commonwealth can no longer maintain their ostrich-like stance and deny the admissibility and relevancy of reliable economic data concerning the impact of productivity and inflation on lost future earnings. Indeed, to ignore economic realities and presume that there will be no changes in an individual's future earnings because of such factors is further removed from reality than any variance that may result from our efforts to predict these factors. a. Inflation It would be ludicrous for this Court to cling to the Haven Court's conclusion that the presence of inflation in our economy is a temporary and passing phenomenon, influenced by "war and other unusual circumstances."[11] Information *573 gathered by the United States Bureau of Labor Statistics demonstrates that the American economy has been experiencing a steady increase in the cost of living over its history. Even though the rate of inflation has not been numerically the same for the past 40 years, the presence of inflation as a factor in our economy has been constant.[12]Purchasing Power of the Dollar: 1940-78, U.S. Bureau of the Census, Statistical Abstract of the United States: 1978 (99th Edit.).[13] Thus, while the rate of inflation may vary during any given period, its long term presence as a fact of life in our economic picture is certain. b. Productivity Moreover, the assertion that productivity factors are too speculative to consider in computing lost future earnings is also fallacious.[14] An individual's future earning capacity is *574 capable of estimation based upon objective factors of age, maturity, education and skill.[15] Henderson, Consideration of Increased Productivity and Discounting of Future Earnings to Present Value, 20 S.D.L.Rev. 307, 312 (1976). A determination of an individual's future earning capacity based on objective criteria is far less speculative than most other estimates made by the trier of fact. See e.g., Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) (what might have happened to the decedent had he received proper medical care); Wallace v. Pa. R.R., 222 Pa. 556, 561, 71 A. 1086 (1909) (future pain and suffering is recoverable if it is likely or probable to ensue); Yost v. West Penn Railways Co., 336 Pa. 407, 410, 9 A.2d 368 (1939) (future medical expense can be recovered if they can be estimated).[16] Admittedly, predicting lost future earnings entails some degree of speculation. However, that alone does not justify excluding reliable economic evidence since imprecision is inherent in any computation of lost future benefits. In view of our acceptance of the reliability of the science of economics, the victim's lost future earning capacity should be treated like any other question of fact[17] and should be submitted to the trier of fact after a proper foundation and expert testimony. *575 This Commonwealth now joins the growing number of jurisdictions which consider inflation and productivity as integral factors to be included in computing lost future earnings. See Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967); Richmond Gas Corporation v. Reeves, 302 N.E.2d 795 (Ind.App. 1973); Resner v. Northern Pacific Railway, 161 Mont. 177, 505 P.2d 86 (1973); Plourd v. Southern Pacific Transportation Co., 266 Or. 666, 513 P.2d 1140 (1973); Willmore v. Hertz Corp., 437 F.2d 357, 359-60 (6th Cir. 1974); Schnebly v. Baker, 217 N.W.2d 708 (Iowa 1974). See also Bach v. Penn Central Transportation Co., 502 F.2d 1117 (6th Cir. 1974); Weakley v. Fishbach & Moore, Inc., 515 F.2d 1260 (5th Cir. 1975) (interpreting Texas law); United States v. English, 521 F.2d 63 (9th Cir. 1975); Tenore v. Nu Car Carriers, Inc., 67 N.J. 466, 341 A.2d 613 (1975); Seaboard Coast Line R.R. Company v. Garrison, Fla.App., 336 So.2d 423 (1976); Markham v. Cross Transportation, Inc., 376 A.2d 1359, 1364 (R.I. 1977); Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 683-84 (Minn. 1977); Lumber Terminals, Inc. v. Nowakowski, 36 Md.App. 82, 373 A.2d 282, 290-91 (1977). III. Formulas Suggested By Other Jurisdictions There are three significant approaches, traditional, middle ground, and evidentiary which the judiciary has adopted in considering the impact of future inflation and productivity on lost future earning capacity. 63 Va.L.Rev. at 128 n.155. The traditional approach ignores altogether the effects of future productivity and future inflation as being "too speculative." This view was previously adhered to by this Commonwealth, but for reasons stated above, it is hereby rejected. The middle ground approach is anomalous in that it permits the factfinder to consider the effects of productivity and inflation on lost future earning capacity, but prohibits expert testimony on either of these issues. The proponents of this approach argue that expert testimony on future economic trends is "speculative," yet acknowledge that such facts are within the "common experience" of all jurors and, *576 therefore, jurors should not be prohibited from applying their common knowledge in reaching a verdict. Bach v. Penn Central Transportation Co., 502 F.2d 1117 (6th Cir. 1974), overruled by Morvant v. Construction Aggregates Corp., 570 F.2d 626 (6th Cir. 1978); and, Riha v. Jasper Blackburn Corp., 516 F.2d 840 (8th Cir. 1975). However, it has been consistently demonstrated that expert evidence is essential to accurate economic forecasting. Since it is apparent that the middle-ground approach contributes little to the accuracy or predictability of lost future earnings, and paradoxically allows a judge or jury to determine what an acknowledge expert cannot, we decline to adopt it. The evidentiary approach in its several variants allows the factfinder to consider productivity and inflation in awarding damages. Since we believe that there is a reasonable basis in fact to consider the impact of inflation and productivity on lost future earnings, we conclude that the evidentiary concept is the most valid method to compute lost future earnings. However, courts employing the evidentiary method differ on the factors to be considered in assessing lost productivity on the one hand and the method to calculate the inflation component in the final lost future earning award on the other. Recognizing that there are myriad of ways to incorporate such economic data[18] we find that there are two versions appropriate for our consideration. The first of these two variants of the evidentiary approach was developed by the court in Feldman v. Allegheny Airlines, 382 F.Supp. 1271 (D.Conn. 1974), aff'd, 524 F.2d 384 (1st Cir. 1975). In Feldman, a surviving husband brought a wrongful death action as the administrator of his wife's estate. The defendant airline stipulated as to its liability and the trial was confined to the issue of damages. The *577 court assumed that recovery for lost future earnings included the victim's lost earning capacity. In order to demonstrate the bases for the court's conclusions relative to what course the deceased's life probably would have taken, the court extrapolated the evolving pattern of Mrs. Feldman's life. The court detailed the deceased's college grades, her employment history, the opinion of the deceased held by her fellow workers, the expressed employment goals of the deceased and the potential jobs for which the deceased was qualified. The court also examined the employment history of another individual who had remarkably similar credentials as the deceased. The defendant produced one witness who testified as to the decedent's employment prospects. Based upon the above factors, the court predicted the incremental salary (productivity) increases of the decedent over her work-life expectancy.[19] The court was then faced with the inflation component and the task of discounting the award to its present value. The court developed a formula known as the "offset present value method" in which it subtracted the estimated inflation rate from the discount rate to calculate the inflation adjusted or "real" rate of interest. Each year's earnings were *578 then discounted to present value by this "real" discount rate. The "real" discount rate employed by the court was 1.5%. The court rationalized its formula: . . . on the basis of the evidence adduced at trial, the evidence judicially noticed and collated at the Appendix, and judicial notice of the continuing erratically inflationary behavior of the American economy, that 1.5 per cent per year is an appropriate figure by which to discount an award of damages based on the destruction of future earning capacity when that award has itself been computed without consideration of inflation affecting that amount subsequent to the date of the injury upon which the award is premised. Id. at 1294-1295[20] The second variant of the evidentiary method was adopted by the Alaska Supreme Court in Beaulieu v. Elliott, 434 P.2d 665 (1967), and refined in State v. Guinn, 555 P.2d 530 (1976). Pursuant to this formula, the Alaska courts first calculate lost future earning capacity of the victim over his or her work-life expectancy. As to productivity, the Alaska court has stated: "Automatic step increases keyed to the length of service are by their very nature certain and predictable at the time of trial" and the court takes them into account when estimating the lost future earnings. State v. Guinn, 555 P.2d at 546. However, the court excluded as speculative evidence the "non-scheduled salary increases and bonuses *579 that are granted as one progresses in his chosen occupation in terms of skill, experience and value to the employer." Id. In order to account for the inflationary component's impact on lost future earnings and the effect of future interest rates on lump-sum payment, the Alaska court applied that "total offset method." Under the total offset method, a court does not discount the award to its present value but assumes that the effect of the future inflation rate will completely offset the interest rate, thereby eliminating any need to discount the award to its present value. IV. Discussion Mindful of our goal that a damage award formula should strive to be efficient, predictable as well as accurate, in computing lost future earning capacity this Commonwealth adopts the Feldman court's approach to calculating lost productivity and the Alaska court's total offset approach to inflation and discounting to present value.[21] We believe that this eclectic method best computes a damage award which will fairly compensate a victim to the full extent of his or her injuries and avoids unnecessary complexities likely to produce confusion although in reality contributing little to the degree of accuracy to be obtained. Although judges and juries are not fortune tellers equipped with crystal balls, the Feldman approach to determining productivity as a factor in awarding future lost earning best approximates the soothsayers by presenting the triers of fact with all relevant evidence. After laying a proper foundation, expert and lay witnesses are called upon to testify as to the victim's past and future employment possibilities. The defense may cross-examine the plaintiff's witnesses and present evidence on their own behalf. Upon a thorough evaluation of all the *580 evidence presented, the factfinder makes an informed estimation of the victim's lost earning capacity.[22] Although this approach may be time consuming, and like all estimations of future events may be subject to a degree of speculation, it is exceedingly more accurate to assume that the future will not remain stagnant with the past. We cannot embrace the Alaska court's restrictive method of computing productivity as a component of lost future earnings since the Alaska court limits its inquiry to those step advances keyed to the length of service. The Alaska court's refusal to consider the possibility of merit based increases, unfairly discriminates against those victims whose salary is dependent on their skill, experience, and value to their employer. Moreover, it appears that the Alaska court's conception that merit based increases are "speculative" is a throwback to the previously rejected traditional approach. In support of our adoption of the "total offset method" in allowing for the inflationary factor, we note that it is no longer legitimate to assume the availability of future interest rates by discounting to present value without also assuming the necessary concomitant of future inflation. We recognize that inflation has been and probably always will be an inherent part of our economy. Although the specific rate of inflation during any given period may vary, we accept the fact that inflation plays an integral part in effectuating increases in an employee's salary, and we choose to adopt a damage formula which will allow for that factor without actually requiring the factfinder to consider it as an independent element of the award. Current economic theory demonstrates the accuracy of the total offset approach to inflation. As previously noted, the total offset method assumes that in the long run, future inflation and the discount rate will offset each other. "At *581 first blush the rough and ready approach seems too obviously to invite the objection that it is far less precise than Judge Blumenfeld's (Feldman approach) and over-compensates the plaintiffs." Fleming, 26 Am.J.Comp.L. at 69. However, critics of the total offset approach fail to realize that future inflation rates and future interest rates do not exist in a vacuum, but co-vary significantly. Inflation: A Survey, 85 Econ.J. 741, 788 (1975). It can be stated with assurance that present interest rates depend at least in part upon expectations of future inflation. The mechanism for the adjustment was explained by economist W.E. Gibson: "When inflation becomes expected, lenders expect the real value of their principal and interest payments to be depreciated and borrowers expect to be able to repay loans with money for which less real value must be sacrificed than before expectations changed. Thus at any level of market interest rates the quantity of loans supplied decreases while the quantity demanded increases. Both forces increase nominal interest rates." Gibson, Interest Rates and Inflationary Expectations: New Evidence, 62 Am.Econ.Rev. 854, 855 (1972). Modern interest theory commends the accuracy of the total-offset method: "[W]hen prices are rising, the rate of interest tends to be high but not so high as it should be to compensate for the rise; and when prices are falling, the rate of interest tends to be low, but not so low as it should be to compensate for the fall." I. Fisher, The Theory of Interest 43 (1930). Since over the long run interest rates, and, therefore, the discount rates, will rise and fall with inflation, we shall exploit this natural adjustment by offsetting the two factors in computing lost future earning capacity. Accord, Freeport Sulphur Co. v. S.S. Hermosa, 526 F.2d 300, 310 (5th Cir. 1976) (concurring opinion). We are satisfied that the total offset method provides at least as much, if not greater, accuracy than an attempt to assign a factor that would reflect the varying changes in the rate of inflation over the *582 years. Our experiences with the use of the six percent discount rate suggest the difficulties inherent in such an approach. As to the concomitant goals of efficiency and predictability, the desirability of the total offset method is obvious. There is no method that can assure absolute accuracy. An additional feature of the total offset method is that where there is a variance, it will be in favor of the innocent victim and not the tortfeasor who caused the loss. The superiority of the total offset approach becomes apparent upon comparison with the offset present value method. In Feldman, rather than forecasting the impact of inflation on future earnings, through the use of an inflation adjusted interest rate, Judge Blumenfeld discounted future earnings based upon 1971 dollars. However, from an analysis of the formula involved, it appears that predicting prospective interest rates is as difficult as forecasting future inflation. Freeport Sulphur Co. v. S.S. Hermosa, 526 F.2d 300, 310 (5th Cir. 1976) (concurring opinion). Notably, the merit of discounting to present value upon an inflation adjusted interest rate was questioned by the very court which originally proposed it. ". . . [S]ince Connecticut law requires the discounting to present value of damages for the destruction of future earning capacity, and since such discounting demands assessment of the future earning power of money, the Court is compelled to engage in economic forecasting despite the inexactitude of the dismal science's soothsaying. It is not open to this Court to decide that the ascertainment of a discount rate has become too speculative to be fair, and that the statutory mandate of awarding `just damages' for wrongful death would be better served by dispensing with the discounting process altogether. 382 F.Supp. at 1293 n.30 Moreover, the complexities inherent in factoring the inflation out of the market rate of interest moved Judge Blumenfeld to observe that: "Nothing is more conclusively established by the instant memorandum of decision than the *583 difficulty of ascertaining the amount of damages due in this case. . . . ." 382 F.Supp. at 1295.[23] An additional virtue of the total offset method is its contribution to judicial efficiency. Litigators are freed from introducing and verifying complex economic data. Judge and juries are not burdened with complicated, time consuming economic testimony. Finally, by eliminating the variables of inflation and future interest rates from the damage calculation, the ultimate award is more predictable. V. Conclusion Henceforth, in this Commonwealth, damages will be awarded for lost future earnings that compensate the victim to the full extent of the injury sustained. Upon proper foundation, the court shall consider the victim's lost future productivity. Moreover, we find as a matter of law that future inflation shall be presumed equal to future interest rates with these factors offsetting. Thus, the courts of this Commonwealth are instructed to abandon the practice of discounting lost future earnings. By this method, we are able to reflect the impact of inflation in these cases without specifically submitting this question to the jury. In view of the trial court's refusal to permit appellant to introduce evidence relating to a future productivity factor and our formulation of a new standard to be used for accommodating inflation in these cases, we reverse the judgment *584 below and remand the cause for a new trial as to the damage question. ROBERTS, J., filed a concurring opinion. FLAHERTY, J., filed a concurring and dissenting opinion. ROBERTS, Justice, concurring. I agree with the majority that the practice of reducing to present value the lost future earnings component of personal injury awards should be abrogated and the "total offset" rule adopted in its stead. The practice of reducing to present value is unrealistic in its failure to take into account either future inflation or deflation. See generally Restatement (Second) of Torts § 913A Comment at p. 492 (1979). Though perhaps somewhat imprecise, the total offset rule will fairly accommodate parties in both inflationary and deflationary times. So too, the total offset rule "has administrative simplicity to recommend it, since it avoids rather complex calculations involved in reducing to present value." D. Dobbs, Remedies § 8.7 at p. 575 (1973). Indeed, any person who has heard a court's "present value" charge will attest to the wisdom of abrogating the practice. See Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A.2d 657 (1964). I also agree with the majority that a jury may consider evidence of a victim's lost future earning increases. It is my understanding, however, that Pennsylvania law has long permitted jury consideration both of earning decreases and of earning increases. For example, Proposed Jury Instruction 6.22 (Civil) on "Earnings Fluctuations" provides: "If you find that the plaintiff will suffer an impairment or loss of earning power as the result of this accident . . ., you may take into consideration possible fluctuations with respect to such losses. In other words, if you find that the plaintiff's . . . wages would have increased or decreased over the years, you will take that factor into consideration so that proper compensation can be made." *585 Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions Subcommittee Draft-October 14, 1973. See also e.g., McCaffrey v. Schwartz, 285 Pa. 561, 132 A. 810 (1926), overruled on other grounds, Brodie v. Philadelphia Transportation Co., supra; Robert M. Bernstein, "Damages in Personal Injury and Death Cases in Pennsylvania," 23 Pa. Bar Ass'n Q. 9 (1951). It should also be observed that today's result does not mandate jury verdicts reflecting only earning increases. Within accepted rules of evidence, both sides are free to offer competent and relevant proof to establish their respective positions as well as to challenge the evidence offered in opposition. Finally, today's result does not represent the exclusive means of taking future economic factors into account in cases of larger damage awards covering losses over future years. For example, special findings of fact may be helpful in making certain that neither the tortfeasor not the injured is unduly prejudiced or benefited by future economic conditions. Also, at least thirteen states, including California, Delaware, Florida, and Maryland, have enacted laws allowing for some form of periodic payments in medical malpractice actions. See T. Elligett, "The Periodic Payment of Judgments," 46 Ins. Counsel J. 130, 134 n.49 (1979). Very recently the National Conference of Commissioners on Uniform State Laws adopted an approved draft of a "Uniform Periodic Payment of Judgments Act" which authorizes installment payment of awards in personal injury cases. See generally Roger C. Henderson, "Periodic Payments of Bodily Injury Awards," 66 A.B.A.J. 734 (1980). Installment payment provisions of the uniform act "eliminate[] the guesswork and speculation involved in the lump-sum system when the jury is asked to discount awards of future damages to present value and, in an increasing number of jurisdictions, predict future rates of inflation. Since damages will be paid as losses accrue, there is no need to discount to present value. With regard to inflation, the act provides for adjustments in the unpaid *586 installments so that the damages award is not eroded by inflation." Id. at 736. Appropriate common-law approaches, including special findings, installment payments, and the like, may, of course, be fashioned to assure that full and real effect is given to the adjudication of liability and damages. See e.g., Ellenbogen v. County of Allegheny, 479 Pa. 429, 438, 388 A.2d 730, 734-35 (1978); W. Schaefer, "Precedent and Policy," 34 U.Chi.L.Rev. 3 (1966). FLAHERTY, Justice, concurring and dissenting. While I fully concur in the view that Havens v. Tonner, 243 Pa.Super. 371, 365 A.2d 1271 (1976), should be unceremoniously eliminated from the law of this Commonwealth as unrealistic, I must dissent to the majority's adoption of what it calls the "total offset method", a "per se rule" of doubtful validity. True, such an approach is a simple one, but it does not achieve justice, and, has only been adopted in one jurisdiction, i.e., Alaska. We should simply permit expert testimony on the issues of inflation and productivity. Such testimony, on both sides of the issue, is, of course, subject to cross-examination and argument as to its validity and weight. Thus, the jury is free to weigh the evidence before it and render its verdict. This is also simple, and provides justice in accordance with our time honored principles. NOTES [1] The projection took into consideration factors which had previously been testified to by various witnesses called on behalf of appellant. Counsel for appellant advised the Court that Dr. Slesinger would have testified as to the effects of productivity increases and inflation on the potential earning capacity of the decedent. The proffered projection did not take into consideration pensions, social security benefits, fringe benefits, or the like, and this appeal is not concerned with these items. [2] See discussion of Havens v. Tonner, 243 Pa.Super. 371, 365 A.2d 1271 (1976), beginning at page 1031, infra. [3] Jurisdiction over this appeal is pursuant to 42 Pa.C.S.A. § 724. [4] Inflation is "the increase in the volume of money and credit relative to available goods resulting in a substantial and continuing rise in the general price level." Websters, Third International Dictionary (1965). Inflation gains are measured in terms of what the average person refers to as "cost of living increases." An example of inflation evidencing an increase in prices unrelated to an increase in intrinsic value is that the juice content of oranges has not increased in years, but their price continues to rise. The presence of inflation plays two distinct roles in an award for prospective damages. The first role is determining the impact of inflation on the future earnings of the victim. The second place in which inflation plays a part is in determining the appropriate interest rate to discount the future damage award to its present value. [5] Economist's recognize that there are at least four major elements which influence the rate of increase of an employee's income. These factors are: (1) the educational attainment of the participant prior to his entry into the labor marker; (2) the influence of age upon the earnings of participants over their life cycle; (3) the significance of productivity and growth; and (4) the impact of inflation. Henderson, The Consideration of Increased Productivity and Discounting of Future Earnings to Present Value, 20 S.D.L.Rev. 307 (1976). In our analysis, we will isolate the inflation element from the other three factors, collectively called "merit" increases, which are consumed in productivity. We recognize that merit increases are controlled by different variables than the inflationary factor, and deserve separate consideration. [6] Since damages in personal injury and wrongful death actions involve the lost earning capacity of the victim, the proper period to calculate a loss is based upon work-life expectancy. [7] When an injury is a permanent one, one which will cause a loss or lessening of future earning power, a recovery may be had for the probable loss of future earnings. McCormick, Damages, 299 (20th reprint 1975). If the injured party survives, he should receive undiminished, his total estimated future earnings, but if he dies, the proper measure of damages includes a deduction based upon decedent's cost of personal maintenance. Incollingo v. Ewing, 444 Pa. 263, 307, 282 A.2d 206, 228 (1971). Today's opinion does not disturb our requirement for personal maintenance deductions. [8] The Workmen's Compensation Act is the most notable exception, Act of February 28, 1956, P.L. 1120 § 1 et seq., (1955) as amended, 77 P.S. § 1 et seq. See also No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. No. 176, § 106(a)(7), 40 P.S. § 1009.106(a)(1). [9] In order for the factfinder to assess the precise measure of damages, expert testimony is admissiblie if "the subject matter of the inquiry is one involving special skills and training beyond the ken of ordinary laymen." Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967). [10] The rationale for reducing a lump-sum award to its present value is that: it is assumed that the plaintiff will invest the sum awarded and receive interest thereon. That interest accumulated over the number of relevant years will be available, in addition to the capital, to provide the plaintiff with his future support until the total is exhausted at the end of the period. The projected interest must therefore be allowed in reduction of capital lest it be claimed that the plaintiff is overcompensated. Fleming, Inflation and Tort Compensation, 26 Am.J.Comp.Law 51, 66 (1977). "The measure of the lump-sum award for future pecuniary losses arising from a tort is the present worth of the full amount of what would have been received at a later time." Restatement of Torts (Second) § 913A, Wilkinson v. Northeast Borough, 215 Pa. 486, 74 A. 734 (1906). In Pennsylvania, since 1922 our courts have mandated that when discounting future damages to present worth "the interest must be computed at the lawful rate of six percent. . . ." Windle v. Davis, 275 Pa. 23, 118 A. 503 (1922). The rationale for the mandatory six percent simple interest rule was explained by this Court in Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 585, 187 A.2d 646, 649 (1963): "We are all aware that present interest rates are different than as of the year this [fixed six per cent] rule was first written. In fact, they presently vary from day to day, place to place, and under different conditions in the same area. There must be a fixed rule to aid juries in calculating the present worth of such elements of damage and to guide the jury in resolving such difficult questions. It is our conclusion that a change in the rule would lead only to confusion and chaos and add greater difficulty in the trial of such cases." The origin of this principle is Chesapeake & Ohio RW Co. v. Kelly, 241 U.S. 485 [36 S.Ct. 630, 60 L.Ed. 1117] (1916), in which the Supreme Court announced that awards for future damages had to be discounted to present value at some appropriate discount rate. Research reveals that the discounting theory is grounded in economic history of the latter part of the nineteenth century. "Between 1867 and 1896, for example, it is estimated that the price level dropped by about forty percent. At the turn of the century, one needed only approximately sixty percent of the dollars required at the end of the Civil War to purchase the same basket of goods." 20 S.D.L.Rev. at 309. When future prices are expected to decline or remain constant, there is no economic disagreement with the discounting theory. However, an economic lag of judicial practice occurs when courts perpetuate a 1916 rationale to the economic realities of the 1900's. Id. [11] From 1940 to 1972, the consumer price index, the government's measure of inflation, rose 185 percent. In terms of purchasing power, it took almost $3.00 in 1972 to purchase what $1.00 would have purchased in 1940. The compounded rate of advances over this period is approximately 3.5% annually. Purchasing Power of the Dollar: 1940-78, U.S. Bureau of the Census, Statistical Abstract of the United States: 1978 (99th Edit.) Washington, D.C. [12] Since 1972, the Consumer Price Index (CPI) has not declined in any month. From 1967 through 1978 the CPI has risen 102%. 1972 - 3.4% 1976 - 4.8% 1973 - 8.8% 1977 - 6.8% 1974 - 12.2% 1978 - 9.0% 1975 - 7.0% 1979 - 13.3% Bureau of Labor Statistics, U.S. Dept. of Labor, CPI Detailed Report 1 (Dec. 1972-1979). From June 1979 through June 1980 the CPI increased 14.3%. [13] Judge Friendly noted in McWeeney v. New York, New Haven and Hartford Railroad Co., 282 F.2d 34, 38 (2d Cir. 1960): "There are few who do not regard some degree of continuing inflation as here to stay and would be willing to translate their own earning power into a fixed annuity, and it is scarcely to be expected that the average personal injury plaintiff will have acumen to find investments that are proof against both inflation and depression-a task formidable for the most expert investor." (Footnote omitted.) [14] From 1947 to 1973 there was a 5.6% compound rate of increase in the average compensation of all persons in the private non-farm sector, or an overall increase of approximately 4½ times. United States Dept. of Labor, Bureau of Labor Statistics, Handbook of Labor Statistics 175 (1973). [15] Normally, in the beginning years of participation in the labor force, the aging process or the acquiring of knowledge is the most significant influence upon earnings. During the middle years, ages 35-44, productivity and growth dominate. In the last decade of one's work-life, inflation is largely responsible for most advances. Henderson, Income Over the Life Cycle, Some Problems of Estimation and Measurement, 25 Fed.Ins.Coun.Q. 15, 28-29 (1974). [16] "[R]egardless of the pattern of the increase in income over the life-cycle, the probability that one's money income will not rise, on an annual basis, approaches zero. There is little or no reason for disputing the fact that money earnings rise, the only problem is by how much, or at what rate, an issue which largely depends upon the segment of the labor market being investigated." 20 S.D.L.Rev. at 312. [17] In this Commonwealth, we allow the use of tables of present worth calculations prepared by qualified experts in order to provide a precise analytical calculation which will enhance the possibility of correct and just results. We also accept the reliability of mortality tables to calculate the victim's life expectancy. Brodie v. Philadelphia Transport Co., 415 Pa. 296, 203 A.2d 657 (1959). [18] See e.g., Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir. 1974) (independent incorporation method); Platis v. United States, 288 F.Supp. 254, 277-78 (D. Utah), aff'd, 409 F.2d 1009 (10th Cir. 1969) (allowing a constant increase of $500 per year to account for future wage increases); Brooks v. United States, 273 F.Supp. 619, 635 (D.S.C. 1967) (increased decedents last annual salary by 15% and spread this constant salary over decedents work expectancy). [19] Based upon expert testimony that the decedent had an estimated 40 years remaining in her work-life and would probably retire at age 65, the court assigned dollar value to decedent's lost future earnings for each of the forty years. The court accomplished this task by utilizing the federal government GS pay scales, since this salary schedule was reflective of the potential earnings throughout the Washington metropolitan area. "According to this valuation process, the value of the decedent's earning capacity for `fiscal 1972,' the fiscal year beginning July 1, 1971, is the 1971 salary for the first step in GS-12, $15,040. This increases over the next four years, so that for fiscal 1976 the decedent's earning capacity is $17,044, the 1971 salary for the fifth step in GS-12. The decedent's earning capacity then remains unchanged over the next nine years-eight years of child rearing and the decedent's first year of employment thereafter. In 1986 the decedent's earning capacity goes up to the sixth step in GS-12, $17,545, and continues to rise thereafter one step at a time, with each change of grade being from the tenth step in one grade to the fifth step in the next higher grade. In the fortieth year, fiscal 2111, the decedent is at the seventh step of GS-16, with a 1971 salary of $33,757. See generally Table I, infra, p. 1298. 382 F.Supp. at 1287. [20] The appellate court summarized the district court's process as follows: "In calculating the discount rate, the appellee's expert, relied on by the district court, used an average earnings of 4.14% (from mutual savings bank investments) as representative of a prudent, non-sophisticated investment and subtracted 2.87% as the average yearly inflation rate revealed in the Department of Labor's Consumer Price Index over an 18-year period, yielding a 1.27% difference which was rounded up to 1.5%. Judge Blumenfeld corroborated this `inflation-adjusted discount rate' of 1.5% by calculating the real yields of investments since 1940 in federal government securities (with inflation factored out) from the 1974 Economic Report of the President, a source referred to by appellant Allegheny's expert." Feldman v. Allegheny Airlines, Inc., 524 F.2d 384, 387 (2nd Cir. 1974). [21] This Commonwealth now requires that a damage award be discounted to its present value by using six percent simple interest figure. We do not wish to disturb this requirement in calculating future damages in other contexts. We refrain "from attempting to fashion broad general rules as a panacea. The obviously wiser course is to resolve disputes on a case-by-case basis until we develop, through experiences in [an] area, a sound basis for developing overall principles." Pa.L.R.Bd. v. State College Area School District, 461 Pa. 494, 500, 337 A.2d 262, 265 (1975). [22] This tailor-made approach to lost earing capacity is accepted by many jurisdictions, even those jurisdictions which do not admit evidence of inflation on the grounds that it is speculative. See Higginbotham v. Mobil Oil Corp., 545 F.2d 422 (5th Cir. 1977). [23] One critic of the independent offset method explained that: "Feldman also is flawed from a practical standpoint. According to the court's own calculations, sudden changes in the price level have caused the real rate of interest to vary from -2.9 percent to +2.0 percent on short term Treasury bills, and from -8.9 percent to +3.7 percent on long term federal notes. Faced with these variations in the real rate of interest, the trial judge should have been wary of selecting an inflation adjusted discount rate. Instead, the judge simply assumed a stable rate of inflation, a condition historically associated with a real yield of two percent, and arbitrarily lowered the real rate of interest to one-and-a-half percent to allow for unforeseeable fluctuations. The Feldman approach clearly required strong assumptions about both future rates of inflation and future rates of real interest." 63 Va.L.Rev. at 105.

146 F.Supp.2d 961 (2001) Margaret L. KALSKETT, Plaintiff, v. LARSON MANUFACTURING COMPANY OF IOWA, INC., Defendant. No. C99-3079 MWB. United States District Court, N.D. Iowa, Central Division. June 1, 2001. *962 *963 *964 Mark D. Sherinian, Sherinian & Walker Law Firm, Des Moines, IA, for Plaintiff. George E. Martin, Berens & Tate PC, Omaha, NE, for Defendant. MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BENNETT, Chief Judge. *965 TABLE OF CONTENTS I. INTRODUCTION ........................................................... 965 A. Factual Background .................................................. 965 B. Procedural Background ............................................... 969 II. LEGAL ANALYSIS ......................................................... 969 A. Summary Judgment Standards ......................................... 969 B. Kalskett's ADA Claim ............................................... 971 1. Is Judicial Estoppel Appropriate as to Kalskett's Apparently Inconsistent Statements? ..................................... 972 2. Was Kalskett qualified to perform the essential functions of her job? .......................................................... 975 a. team leader ................................................. 975 b. assembly line position ...................................... 978 3. Other Positions that Kalskett Claim s She Was Entitled To ...... 980 4. Does the Direct Threat Defense Include Threats to One's Own Health and Safety? ........................................... 981 C. Kalskett's State Law Claim ......................................... 986 III. CONCLUSION .............................................................. 987 I. INTRODUCTION This action involves allegations of employment discrimination on the basis of a disability brought by plaintiff Margaret L. Kalskett ("Kalskett") against her former employer defendant Larson Manufacturing Company of Iowa, Inc. ("Larson") under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and the Iowa Civil Rights Act of 1965 ("ICRA"). Larson has filed a Motion for Summary Judgment, seeking judgment as a matter of law on Kalskett's federal and state law claims. A. Factual Background Kalskett was hired by Larson as a temporary worker on June 10, 1991. On or about February 17, 1992, Kalskett's employment status with Larson was changed from a temporary, non-benefitted employee to a full-time benefitted employee. Kalskett was employed by Larson between June 10, 1991, and September 11, 1998. Larson manufactures storm doors at two facilities in Lake Mills, Iowa. During the time that Kalskett was employed by Larson, she served in various positions on the assembly/production line as well as a team leader of an assembly line, known as Work Station # 3. Kalskett suffered a back injury while working on the assembly/production line at Larson on December 4, 1995. She underwent surgery as a result of this injury in January of 1996. Kalskett returned to work in February of 1996, and was placed on light duty to accommodate her temporary restrictions during her recovery. During this time period, Kalskett had use of a conference room at Larson to perform stretching exercises that were recommended by her doctor. Thereafter, in the Spring of 1996, Kalskett was provided a release from her doctor which permitted her to try working in a regular production position. Larson permitted Kalskett to work wrapping windows, however, within an hour Kalskett approached her crew leader, Ron Kvale, and indicated that it was too soon for her to be wrapping windows. Kvale proceeded to ask Kalskett which positions she thought she could perform, and she listed the following three positions on the line that she believed she could perform: (1) screen assembly, (2) wiping screens, and (3) wiping master frames. Kvale arranged for Kalskett to *966 perform only those positions, and she rotated between them for a month to six weeks. At the end of that six week period, Kalskett went back to wrapping and screening, but by July these positions proved too much for her back. She returned to her doctor and he recommended that she take a two week leave of absence. When Kalskett returned from her leave of absence, she was assigned to the temporary light duty position of wiping down doors for a day. When she told her crew leader Bill Humphrey that wiping doors required too much leaning forward, she was allowed to place stickers on boxes as they came off the production line. Kalskett continued putting stickers on boxes as they came off the line for a period of two or three weeks, after which her back began to hurt. Kalskett visited her doctor who took an MRI of her back, and recommended that she take some time off. Thereafter, Kalskett returned to work with a release from her doctor outlining her new physical restrictions, which she presented to her crew leader Kvale. Kvale interacted with Kalskett to determine what positions she thought she could perform, and ultimately it was determined by both of them that Kalskett could work assembling screens, wiping screen, wiping frames, and caulking master frames. Kalskett worked assembling screens and caulking through the end of 1996. During this period, Larson accommodated Kalskett's pain management program by allowing her to come to work late so she could swim in the morning, and by allowing her to intermittently take time off during working hours to visit her doctors and attend physical therapy. In early 1997, Kalskett was again briefly returned to regular duty by her doctor. Almost immediately upon her return, however, Kalskett re-aggravated her back and consequently had new and additional restrictions placed upon her by her doctor. To accommodate those new restrictions, Larson allowed Kalskett to work solely at the screen assembly station and, further, changed that station from a one-person task to a two-person task, so that Kalskett would be required to perform only those functions within her restrictions. In early February of 1997, Kalskett was moved from helping only in screen assembly to performing several other individual stations on the production line. To determine which stations Kalskett could perform, Kalskett and her supervisor, Carol Bergo, worked to develop a customized rotation that Kalskett believed that she could perform. Kalskett proceeded to work in that customized rotation until May or June of 1997, at which time, she learned through an internal Larson job posting that the Team Leader position for Line 3 — a training line — was vacant. In light of this job posting, Kalskett submitted a resume, interviewed with Carol Bergo, and was awarded the position. In the early Fall of 1997, however, Kalskett's training line shut down due to a downturn in production demand, and Kalskett went back to working on Line 2 as a production line worker. When Kalskett went back to working on Line 2, she was performing at a limited number of stations, including wrapping, screening, and line feeding. Performing these duties, however, caused Kalskett's back to hurt to the point that she had to return to her doctor after only a few weeks of production work. In the Fall of 1997, Kalskett's doctor restricted her to working only a two hour rotation. Larson accommodated Kalskett by permitting her to work on Line 2 performing in only the wrapping, screening, boxing, and line feeding stations. Soon thereafter, however, Kalskett began experiencing back pain, and returned to her doctor, who, on March 31, 1998, gave Kalskett the following new restrictions: A maximum lifting restriction of twenty (20) pounds, and a ten (10) degree bending *967 limitation. Upon her return, Kalskett communicated these new restrictions to her supervisor Carol Bergo, and it was decided that Kalskett would be taken off the wrapping and screening stations in order to accommodate the new restrictions. Subsequently, Bergo arranged for Kalskett's duties to be reduced to the following three stations: (1) boxing, (2) line feeding, and (3) caulking, occasionally only. Despite these arrangements, Kalskett was still experiencing pain, which precipitated another visit to her doctor on April 6, 1998. At that visit, Kalskett's doctor created a more limiting set of restrictions for her, which consisted of the following: a twenty (20) pound lifting restriction, a ten (10) degree, three times per day bending restriction, a restriction that she not stand more than 50% of the workday, sit more than 50% of the workday, or push or pull more than twenty (20) pounds for over 50% of the workday. On April 7, 1998, Kalskett returned to Larson and presented this most recent set of restrictions to Carol Bergo, who in turn accommodated those restrictions by providing her with a light duty position at Larson's other facility in Lake Mills, Iowa, known as Classic View, from April 7, 1998 to April 9, 1998. At Classic View, Kalskett taped plastic pieces to boxes, placed hinges dropped by a forklift back into a box, and assembled patio bags, which consisted of the warranties, screws, and other incidental parts that came with Larson's doors. On April 9, 1998, the manager of all of Larson's Lake Mills operations, Dan Beinhorn, met with Kalskett and told her that Larson had no more work that could accommodate her restrictions. During this meeting, Kalskett contends that Beinhorn promised her that he would return her to the position of team leader of the training line if that position ever became available. At the time Beinhorn allegedly made this statement to Kalskett, her non-permanent restrictions were the same as they had been on April 7, 1998. So that possible accommodations could be explored further, Kalskett and Beinhorn agreed that she would revisit her doctor in order to determine her physical condition and restrictions, and to report her findings back to Beinhorn. On June 4, 1998, Kalskett returned to work and brought with her a release from her doctor that contained the following restrictions: Kalskett was permitted to return to limited duty, with a thirty (30) — forty (40) pound lifting restriction and an unspecified bending restriction. In light of this release, Carol Bergo secured a position that would accommodate Kalskett's restrictions, which entailed counting plastic window tops and springing the lifts. This position, however, was not a regular manufacturing position. Thereafter, on June 8, 1998, Kalskett was asked by her Team Leader, Tim Midlang, if she would like to try assembling screens. Kalskett accepted Midlang's offer, believing that she might be able to assemble screens because Larson had recently restructured the position so that it was more user friendly. Kalskett assembled screens for approximately one-half hour prior to the end of her shift that day, and on the next day, June 9, 1998, when she arrived for work, her back was in severe pain. As a result, Kalskett went back to counting out tops and springing lifts, but only worked for about two and one half hours in this temporary light duty position before approaching Carol Bergo to ask permission to go home and rest her back, because of the pain she was experiencing due to screening the previous day. Carol Bergo granted Kalskett's request to go home early. Shortly thereafter, when Kalskett visited her doctor's office, her back was so sore from attempting the screen assembly process that she was barely able to walk. After taking two weeks off from Larson to rest her back, Kalskett received another release to return to work from her doctor, which contained *968 the following restrictions: ten (10) pound lifting restriction, a repetitive lifting or carrying weight limit of 5-10 pounds, bending limit of 30 degrees, 3 to 4 times an hour, kneeling limitation of not more than 3 times per hour, and a pushing and pulling restriction of not more than 50% of work time. Eventually, these restrictions became permanent. On June 25, 1998, Kalskett brought her release back to Carol Bergo, whereupon the two had a discussion about the limitations imposed by these latest restrictions. During this discussion, Carol Bergo used a chart to demonstrate to Kalskett how slight a 30 degree bend is, and they discussed how limiting that restriction was since Kalskett was further restricted from bending in that manner more than three to four times an hour. They also discussed the light duty jobs that were available to Kalskett. Carol Bergo ultimately found a position for Kalskett based on her restrictions, which consisted of helping one of Larson's human resources managers, Bill Humphrey, with training sheets and catching up on orientation from June 25, 1998 to June 29, 1998. While helping Humphrey, Kalskett went through his files and pulled those regarding employees who no longer worked at Larson. She also updated training checklists, prepared paperwork for entry into Larson's computer system, and met with employees about safety issues related to their positions. Kalskett worked with Mr. Humphrey for three days. On June 29, 1998, Kalskett was summoned to a meeting with Dan Beinhorn and Carol Bergo, during which Beinhorn told Kalskett that Humphrey was caught up on paperwork, and that there were no more tasks available that would accommodate her restrictions. In light of this meeting, Kalskett decided to visit with her doctor again, who, on July 13, 1998, made her previously imposed restrictions permanent. After visiting her doctor, and learning that her restrictions were permanent, Kalskett returned to Larson and again had a meeting with Carol Bergo, wherein she presented Bergo with her permanent restrictions. After reviewing Kalskett's permanent restrictions, Carol Bergo told Kalskett that Larson had no positions that would accommodate her permanent restrictions. Kalskett indicated that she was hurt by Carol Bergo's statements, because she thought that Larson could have "invented" a new position for her. Shortly thereafter, Kalskett had another meeting with three representatives form Larson, including Dan Beinhorn, Janet Hebrink, Larson's insurance manager, and Jean Osthus, a human resources manager for Larson, during which Larson's short-term disability plan was explained to Kalskett. Following this meeting, on July 31, 1998, Kalskett met with Larson's occupational nurse, Dee Lackore, and discussed positions in the "primary" department and concluded that her restrictions would not permit Kalskett to perform any of them, with or without reasonable accommodation. Kalskett asked Lackore to notify her if there were any positions at Larson's facility in Brookings that Lackore thought could be created for her at Larson's Lake Mills facility. Over Labor Day weekend in 1998, Kalskett received a call from one of her former coworkers who had heard that a new production line was being started. The new line, known as Line 3, was started because of the increased demand for product. Kalskett called Dan Beinhorn about the Team Leader position for the new line, and on October 22, 1998, Kalskett sent Beinhorn a letter asking whether she would be placed in the Team Leader position for the new line. At the time Kalskett wrote this letter, her employment with Larson had ended a month and one-half earlier, specifically on September 11, 1998. Beinhorn replied to Kalskett's letter the same day, indicating that he planned on *969 giving the Team Leader position to one of Larson's active Team Leaders. After Kalskett was not awarded the Team Leader position, she filed a charge with the Iowa Civil Rights Commission. B. Procedural Background On October 22, 1999, Kalskett filed a complaint, in which she alleges that Larson discriminated against her on the basis of her disability in violation of the ADA and the ICRA. Specifically, Kalskett alleges that she suffers from chronic lower back problems that limit her ability to lift, bend, kneel, push and pull, and that on June 29, 1998, Larson "laid off" Kalskett because it claimed it did not have a position available for Kalskett which would accommodate her medical restrictions. On October 22, 1998, Kalskett alleges that she requested that she be considered for the position of Team Leader, which she claims she was capable of performing. However, Larson's plant manager, Dan Beinhorn, allegedly refused to consider Kalskett for the position of Team Leader because of her disability. Kalskett contends that Larson's failure to rehire her violated the ADA and the ICRA. Larson denies all of Kalskett's allegations. On February 15, 2001, Larson filed its Motion for Summary Judgment, arguing that Kalskett is not a qualified individual under the ADA. Specifically, Larson contends that Kalskett cannot perform the essential functions of her job, with or without accommodation, that Kalskett never requested reasonable accommodation, that Larson is not required to delegate essential functions of the Team Leader position until Kalskett could perform the remaining tasks of that job, and further that employing Kalskett as a Team Leader would pose a significant risk to her health and safety. Larson also contends that it was not required to create a position for Kalskett, nor was it required to permanently assign her to light duty positions. For these reasons, which the court will flush out more thoroughly below, Larson contends that it is entitled to judgment as a matter of law. In response, Kalskett contends that she is a qualified individual with a disability, that the accommodations that she requested were reasonable under the ADA, and that any risk to her health and safety is not a defense to a claim under the ADA. Accordingly, Kalskett contends that Larson's summary judgment motion should be denied in its entirety. II. LEGAL ANALYSIS A. Summary Judgment Standards This court has considered in some detail the standards applicable to motions for summary judgment pursuant to FED. R. CIV. P. 56 in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, ___ U.S. ___, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347 (8th Cir.2000) (Table op.); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after *970 the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party's favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a)-(c) (emphasis added). Applying these standards, the trial judge's function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As to whether a factual dispute is "material," the Supreme Court has explained, "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir.1995); Hartnagel, 953 F.2d at 394. If a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is "entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d 1484, 1492 (8th Cir.1997). In reviewing the record, the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. See Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348; Quick, 90 F.3d at 1377 (same). Because this is an employment discrimination case, it is well to remember that the Eighth Circuit Court of Appeals has cautioned that "summary judgment should seldom be used in employment-discrimination cases." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) (citing Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir.1991); Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir.1987), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989)); see also Snow v. Ridgeview Medical Ctr., 128 F.3d 1201, 1205 (8th Cir.1997) (citing Crawford); Helfter v. United Parcel Serv., Inc., 115 F.3d 613, 615 (8th Cir. 1997) (quoting Crawford); Chock v. Northwest Airlines, Inc., 113 F.3d 861, 862 (8th Cir.1997) ("We must also keep in mind, as our court has previously cautioned, that summary judgment should be used sparingly in employment discrimination cases," citing Crawford); Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir.1997) (quoting Crawford); Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir.1995) ("summary judgments should only be used sparingly in employment discrimination cases," citing Haglof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 495 (8th Cir.1990); *971 Hillebrand, 827 F.2d at 364). Summary judgment is appropriate in employment discrimination cases only in "those rare instances where there is no dispute of fact and where there exists only one conclusion." Johnson, 931 F.2d at 1244; see also Webb v. St. Louis Post-Dispatch, 51 F.3d 147, 148 (8th Cir.1995) (quoting Johnson, 931 F.2d at 1244); Crawford, 37 F.3d at 1341 (quoting Johnson, 931 F.2d at 1244). To put it another way, "[b]ecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." Crawford, 37 F.3d at 1341 (holding that there was a genuine issue of material fact precluding summary judgment); accord Snow, 128 F.3d at 1205 ("Because discrimination cases often turn on inferences rather than on direct evidence, we are particularly deferential to the nonmovant," citing Crawford); Webb v. Garelick Mfg. Co., 94 F.3d 484, 486 (8th Cir.1996) (citing Crawford, 37 F.3d at 1341); Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir.1995) (quoting Crawford, 37 F.3d at 1341); Johnson, 931 F.2d at 1244. However, the Eighth Circuit Court of Appeals has also observed that, "[a]lthough summary judgment should be used sparingly in the context of employment discrimination cases, Crawford, 37 F.3d at 1341, the plaintiff's evidence must go beyond the establishment of a prima facie case to support a reasonable inference regarding the alleged illicit reason for the defendant's action." Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995) (citing Reich v. Hoy Shoe Co., 32 F.3d 361, 365 (8th Cir.1994)); accord Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134 (8th Cir.1999) (observing that the burden-shifting framework of McDonnell Douglas must be used to determine whether summary judgment is appropriate), cert. denied, 528 U.S. 818, 120 S.Ct. 59, 145 L.Ed.2d 51 (1999). Furthermore, "[s]ummary judgment is proper when a plaintiff fails to establish a factual dispute on an essential element of her [or his] claim." Snow, 128 F.3d at 1205; accord Helfter, 115 F.3d at 615; Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 762 (8th Cir.1995). With these standards in mind, the court turns to consideration of Larson's Motion for Summary Judgment on Kalskett's disability discrimination claims. B. Kalskett's ADA Claim The ADA affords protection from discrimination to any "qualified individual with a disability." 42 U.S.C. § 12112(a). To establish a prima facie case of discrimination under the ADA, Kalskett must show (1) that she has a disability within the meaning of the ADA, (2) that she is qualified to perform the essential functions of her job, with or without reasonable accommodation, and (3) that she suffered an adverse employment action because of her disability. Cooper v. Olin Corp., Winchester Div., 246 F.3d 1083, 1087 (8th Cir.2001) (citing Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir.1999) (en banc)); Heaser v. Toro Co., 247 F.3d 826, 830 (8th Cir.2001); Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 678 (8th Cir.2001); Treanor v. MCI Telecomm. Corp., 200 F.3d 570, 574 (8th Cir.2000); Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir.2000). The ADA further defines discrimination to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such [employer]...." 42 U.S.C. § 12112(b)(5)(A). The proof necessary for discrimination cases is flexible and varies with the specific facts of each case. Young v. Warner-Jenkinson *972 Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998). Here, Kalskett has set forth a failure-to-accommodate disability discrimination claim against Larson. Larson, however, argues that Kalskett's ADA claim fails for several reasons. First, Larson argues that Kalskett's position in this lawsuit that, she was able to work on the production line, is inconsistent with the answers she provided in a questionnaire prepared by the Iowa Civil Rights Commission and to specific interrogatories, in which Kalskett represented that she was unable to perform production jobs on the line or other departments at Larson, and that Kalskett has failed to offer an adequate explanation for this apparent inconsistency. Second, Larson argues that Kalskett cannot establish any of the prima facie elements of her ADA claim, and, consequently, summary judgment is appropriate. The court addresses each of Larson's arguments in turn. 1. Is Judicial Estoppel Appropriate as to Kalskett's Apparently Inconsistent Statements? When an ADA plaintiff declares in a prior sworn statement that she is unable to work and later pursues an ADA claim asserting that she can work, she is obligated to set forth an adequate explanation for the apparent inconsistency between the two positions, otherwise she will be estopped from maintaining the inconsistent position. See Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). Specifically, in Cleveland, the Supreme Court stated: When faced with a plaintiff's previous sworn statement asserting "total disability" or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless "perform the essential functions" of her job, with or without "reasonable accommodation." Id. at 807, 119 S.Ct. 1597; see also Lloyd v. Hardin County, Iowa, 207 F.3d 1080, 1083 n. 3 (8th Cir.2000) (citing Cleveland). Larson identifies two sworn statements which it believes contradicts Kalskett's current position that she is able to work on the production line. The first sworn[1] statement was made to the Iowa Civil Rights Commission during the administrative stage of this proceeding, in which Kalskett completed a questionnaire, which contained the following question: "What job duties could you not perform? Be specific." Kalskett provided the following answer: "I was unable to be in production jobs on the line or other departments." The second sworn statement was made in response to the following interrogatory propounded by Larson to Kalskett: "List each and every position, job or duty you allege that you could have performed at Defendant's Company with reasonable accommodation." Kalskett provided the following response: I could have been utilized as a trainer because I could take the trainee to observe the job being performed by an experienced person while explaining the procedure. When it came time for *973 hands on by the trainee, they would be able to perform the necessary lifting and movements while I observed and "walked" them through the job. I could have been utilized in the inventory part of the Larson Manufacturing especially in Classic View. At the time I was there they had a major problem with what parts were in-house and what parts were in transit. Sometimes they would have to stop the line and change over to another style of door because they would be missing one item to complete the style of door they were working on. This caused a lot of stress for the employees when trying to meet the schedule and did cause them to have to work a lot of overtime because of not meeting the schedule. I could have been a Team Leader because this position was to be a management and supervisory position. The Team Leader's job was to supervise the workers and anticipate any problems or difficulties performing certain tasks they might have. These positions would have been within my restrictions. In light of these prior statements made by Kalskett, Larson contends that Kalskett's current position that she is able to work on the production line, and perform the essential functions of such a job, is untenable. Kalskett, however, maintains that these prior statements can be explained based upon her knowledge at the time they were made. See Cleveland, 526 U.S. at 807, 119 S.Ct. 1597 (requiring plaintiff to proffer an explanation of any apparent inconsistency with the necessary elements of an ADA claim). Specifically, Kalskett proffers the following explanation: In my answers to the Iowa Civil Rights Commission and my answers to the interrogatories in this case, I indicated that I did not believe I could perform positions on the assembly line. At the time that I gave those answers, I was not aware that the plant had changed to a two-hour rotation. After I learned of the two-hour rotation, had an opportunity to view the operations plant with Clark Williams and learned from him what minor modifications to the job might prevent further aggravation of my back condition, I came to believe that I could perform the positions of caulking, screening and wraparound. See Plaintiff's Exhibit D at ¶ 5. Because Larson had changed from a four-hour rotation to a two-hour rotation in the Fall of 1998, Kalskett believed that there were positions that she could perform on the assembly/production line. Kalskett also explains that, in the Fall of 1997, her doctor advised her to operate on a two-hour rotation schedule. In light of this recommendation, Kalskett approached her supervisor, Tim Midlang, and requested that she be allowed to operate on a two-hour schedule. Kalskett maintains that although Midlang acknowledged her request, Midlang did not enforce it, and that therefore she was forced to rely on the voluntary cooperation of other assembly/production line workers for help, which Kalskett argues did not occur. Thus, Kalskett believes that since the entire Larson production/assembly line now operates under a two-hour rotation, she will be able to work on Larson's assembly/production line. As the Supreme Court in Cleveland made clear, the pertinent inquiry for the court here is whether Kalskett has set forth an explanation that is "sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless `perform the essential functions' of her job, with or without `reasonable accommodation.'" Cleveland, 526 U.S. at 807, 119 S.Ct. 1597. The court concludes that Kalskett has proffered a sufficient explanation *974 to defeat summary judgment here. This is so because the court finds that Kalskett's explanation is sufficient to warrant a reasonable juror's concluding, that assuming the truth, of Kalskett's good faith belief in the fact that she was unable to work on Larson's assembly line while it operated on a four-hour rotation schedule, Kalskett has generated a genuine issue of material fact that she could work on the assembly/production line while it operated on a two-hour rotation schedule. Larson contends that Kalskett's explanation is inadequate, because Larson submits that Kalskett was already on a two-hour rotation per her doctor's restrictions from the Fall of 1997 onward, irrespective of the four-hour rotation that the rest of the personnel at Larson were on. Moreover, as to Kalskett's contention that her supervisor at Larson, Tim Midlang, refused to enforce her two-hour restrictions, Larson argues that such contention is contrary to sworn admissions she made during her deposition on February 16, 2001. Consequently, Larson argues that Kalskett's explanation is legally insignificant under Cleveland. The court, however, directs Larson's attention to Kalskett's response to Interrogatory No. 14, which was made on May 24, 2000, in which Kalskett stated: In the course of seeing Dr. Lester, I found it difficult to follow my restrictions because of the lack of cooperation within the rotation set up on Line 2. I was supposed to be on a 2-hour rotation and they scheduled the line with a 4-hour rotation. I was told by Tim Midlang to find a person that would be my "buddy" and work with me. My co-workers were not willing to help me and would only do so if management had forced them to, which they did not. See Plaintiff's Exhibit B. Thus, there is support in the record that Larson didn't enforce the two-hour rotation schedule, as Kalskett avers. Although Larson denies that Midlang ever forced Kalskett to work in a capacity that violated her two-hour rotation restrictions, these arguments go to the weight of the evidence, and weighing of the evidence is a task for the factfinder. See Quick, 90 F.3d at 1376-77 (explaining that the trial judge's function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial). Therefore, the court concludes that Kalskett has offered a sufficient explanation to defeat summary judgment here.[2] *975 2. Was Kalskett qualified to perform the essential functions of her job? As stated earlier, to state a prima facie case of failure-to-accommodate disability discrimination, Kalskett must demonstrate: (1) that she has a disability within the meaning of the ADA, (2) that she is qualified to perform the essential functions of her job, with or without accommodation, and (3) that she suffered an adverse employment action because of her disability. See Kiel, 169 F.3d at 1135. It is undisputed that Kalskett is disabled within the meaning of the ADA. Thus, the question becomes whether Kalskett was qualified to perform the essential functions of her job with or without reasonable accommodation. Kalskett contends that she has generated a genuine issue of material fact as to whether she is a "qualified" individual with a disability with respect to the following two positions at Larson: (1) team leader, and (2) assembly/production line worker. To be a qualified individual within the meaning of the ADA, Kalskett must (1) possess the requisite skill, education, experience, and training for her position; and (2) be able to perform the essential job functions, with or without reasonable accommodation. Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 786-87 (8th Cir.1998). "Although an ADA plaintiff retains the ultimate burden of proving that she is a qualified individual, an employer who disputes the plaintiff's claim that she can perform the essential functions of a job must put forth evidence establishing those functions." Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir.1995). An essential function may be established by evidence that includes: (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the current work experience of incumbents in similar jobs. Moritz, 147 F.3d at 787 (internal quotation marks omitted). A plaintiff need only make a facial showing that a reasonable accommodation that would enable her to perform her essential job functions is possible. Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 950 (8th Cir.1999). The burden then shifts to the employer to show that it is unable to accommodate the plaintiff. Id. An employer is not required to "accommodate" a disabled employee by eliminating essential functions of the employee's job. Id. (stating that an employer is not required to reallocate or eliminate essential functions of a job to accommodate a disabled employee). a. team leader Kalskett contends that she was qualified for the position of team leader by her experience and training, and further that she would have been able to perform the essential job functions of team leader with reasonable accommodation. Larson, however, contends that the court need not even determine whether Kalskett has generated a genuine issue of material fact as to whether she was qualified for the position of team leader, because Larson asserts that it is undisputed that the team leader position Kalskett maintains she was entitled to under the ADA was never vacant during the time in question. *976 Reasonable accommodations may include "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9) (emphasis added). "By terms of the statute, therefore, the existing position must be vacant." Cravens, 214 F.3d at 1019 (citations omitted). "The term `vacant position' not only includes positions that are presently vacant, but also those that the employer reasonably anticipates `will become vacant in a short period of time.'" Id. at 1019 n. 5 (citing Monette); see also Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1187 (6th Cir. 1996) ("If, perhaps, an employer knows that a position for which the disabled applicant is qualified will become vacant in a short period of time, the employer may be required to offer the position to the employee."); EEOC Guidance, at 39 ("`Vacant' means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time."). In Boykin v. ATC/VanCom of Colorado. L.P., 247 F.3d 1061 (10th Cir.2001), the Tenth Circuit Court of Appeals explained: Employers should reassign an employee to a position if it becomes "vacant within a reasonable amount of time." 29 C.F.R. pt. 1630, App. § 1630.2(o) (2000). The determination of what comprises a "reasonable amount of time" is to be made on a case-by-case basis and is to "be determined in light of the totality of the circumstances." Id. For example, if the employer "knows that an equivalent position for which the individual is qualified will become vacant next week[,] ... the employer should reassign the individual to the position when it becomes available." Id. A period of thirty-seven days has been held to be a "reasonable amount of time." Monette, 90 F.3d at 1176, 1187 (employer acted within parameters of ADA in keeping employee on unpaid leave for thirty-seven days before terminating him when no new position opened). Boykin, 247 F.3d at 1064-65. Additionally, because "[t]he disabled employee must be seeking an existing position within the company; the employer is not required to create a new position as an accommodation." Cravens, 214 F.3d at 1019 (citation omitted). Therefore, "an employer is not required to `bump' another employee in order to reassign a disabled employee to that position." Id. (citations omitted). It is the plaintiff who bears the burden of showing that a vacant position exists and that she is qualified for that position. Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir.2001) (citations omitted). It is undisputed that Kalskett became aware of the alleged vacant position as a team leader for Line 3 over the Labor Day weekend in 1998, when she received a phone call from one of her former co-workers who had heard that a new production line was being started. Larson acknowledged that it was indeed starting a new assembly line known as Line 3 because of its changing production demands, and that it was undergoing a reorganization to address those demands. Kalskett admits that she did not know why Line 3 would be starting. To buttress its argument that the team leader position of Line 3 was never vacant, Larson submitted the affidavit of its plant manager, in which he explains: Over a year later, in the fall of 1998, customer demand for product increased once again, to the point that a third *977 production line had to be established at the new plant. At this same time, the Classic View plant was being reorganized so that instead of having two small production lines, it would have one, larger line. Because these events coincided, it was decided that the equipment and personnel that would be idled by the reorganization at Classic View would simply move to the new plant, to form the third production line there. As part of that transfer, it was determined that one Team Leader from Classic View would be required to take over the third production line being established at the new plant. Of the four active Team Leaders at Classic View, it was further determined that Wendy Skellenger would be the best fit for the third production line being established at the new plant. No new Team Leaders were hired as a result of this reorganization, no Team Leader position became open as a result of this reorganization, and no one outside of the four active Team Leaders was considered for the Team Leader position of the third production line being established at the new plant. See Affidavit of Daniel L. Beinhorn. Larson asserts that the reorganization involved the physical movement of a production line from the Classic View facility to the main plant, and that the personnel in that production line, including the team leader, remained constant. Therefore, because the team leader position for the relocated line would be held by one of Larson's active team leaders, Larson argues that there was no team leader position for which Kalskett should or could have been considered. In an effort to ostensibly demonstrate that the team leader position of Line 3 was vacant, Kalskett asserts that Wendy Skellenger was offered the position of team leader for Line 3 in September of 1998, and that she was not required to take the position, but was given the choice to accept it or reject it. Additionally, Kalskett contends that the Classic View assembly line was expanding and that Larson added several crew leaders in the Fall of 1998. The court is not persuaded that the team leader position of Line 3 was at any time vacant. The mere fact that Wendy Skellenger was given a choice as to whether she wanted the team leader position of Line 3 does not generate a genuine issue of fact that this position was ever vacant. This is so because Kalskett has not offered a shred of evidence refuting Larson's allegation that had Wendy Skellenger not taken the team leader position of Line 3, one of the other active team leaders would have been placed in that position. Larson maintains that no one outside of the four active team leaders was going to be considered for the team leader position of Line 3. To require Larson to consider Kalskett for that position when it was not vacant is contrary to the ADA. Indeed, if this court were to require Larson to consider Kalskett for that position, Larson would be required to bump one of its active team leaders from their position as an accommodation for Kalskett. Under the ADA, Larson is not required to do this. See Cravens, 214 F.3d at 1019 ("Thus, an employer is not required to `bump' another employee in order to reassign a disabled employee to that position.") (citing White v. York Int'l Corp., 45 F.3d 357, 362 (10th Cir.1995)); see also Gile v. United Airlines, Inc., 213 F.3d 365, 374 (7th Cir.2000) (stating that the ADA does not obligate employers to "bump" other employees or to create new positions); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1174-75 (10th Cir.1999) ("[I]t is not reasonable to require an employer to bump another employee in order to reassign a disabled employee."). Here, because the position of team leader for *978 Line 3 was not vacant, and because Kalskett has failed to even generate a factual dispute that this position was vacant, Kalskett cannot request reassignment to this position as an accommodation under the ADA. See Ozlowski, 237 F.3d at 840 (explaining that it is the plaintiff who bears the burden of showing that a vacant position exists). Kalskett also contends that Larson added several crew leaders in the Fall of 1998. Although Kalskett never explicitly makes the argument that she should have been reassigned to those positions as an accommodation, the court will nonetheless address such an argument as if it had been made here. Wendy Skellenger did testify that Larson added crew leaders, however, she also indicated that it took approximately a year or a little longer from the time that she left Line 3 that Larson had all the crew leaders in place. She further testified that this period would have been between late 1998 through 1999. As Larson points out, Kalskett's last day as an employee of Larson was September 11, 1998. Moreover, Wendy Skellenger testified that Line 3 did not start up until some-time in November of 1998[3], and thus Wendy Skellenger's testimony concerning when Larson added crew leaders would had to have occurred by November of 1998, at the earliest, or more likely by December of 1998. Regardless, a two month time period would have elapsed between Kalskett's last day and the time that Larson began adding crew leaders. Significantly, moreover, Kalskett has offered no evidence that Larson had even contemplated hiring additional crew leaders at the time her employment with Larson ceased. See Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1187 (6th Cir.1996) ("If, perhaps, an employer knows that a position for which the disabled applicant is qualified will become vacant in a short period of time, the employer may be required to offer the position to the employee."). Therefore, the court finds that Kalskett has failed to generate a genuine issue of material fact that reassignment to the crew leader positions that were added in late 1998 through 1999 was a reasonable accommodation under the ADA, because these positions were not vacant when Kalskett left Larson, and there is no evidence to suggest that Larson anticipated that these positions would become vacant. As a result, because these positions were not vacant, the court need not determine whether Kalskett was a qualified individual under the ADA with respect to these positions. b. assembly line position Kalskett also contends that she has generated a genuine issue of material fact that she can perform the essential job functions of an assembly line worker with reasonable accommodation. Kalskett maintains that she could perform manual labor on the assembly line in two-hour increments, and specifically that there are two and maybe three positions that she could perform on the assembly line, including screening, caulking and wraparound. Larson, however, argues that there are more than a dozen positions on the assembly line at Larson and that it is the company's policy to rotate assembly line employees through as many positions as possible in a given day. Additionally, Larson argues that it is not required by the ADA to permanently disrupt a rotation system in order to provide an employee with a single light duty task. Lastly, Larson argues that even if it was required to provide *979 Kalskett with her own three-position rotation, Kalskett's inability to perform production jobs of any kind would have prevented it from doing so. As indicated previously, to be qualified under the ADA, Kalskett must (1) possess the requisite skill, education, experience, and training for her position; and (2) be able to perform the essential job functions, with or without reasonable accommodation. Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 786-87 (8th Cir.1998). With respect to the first prong, the court finds that Kalskett has generated a genuine issue of material fact as to whether she possesses the requisite skill, education, and training for an assembly line position. Kalskett worked at Larson for over seven years and worked on the assembly line before she injured her back from approximately 1991-1995. Additionally, Kalskett submitted her work evaluation from December of 1997 which indicated that she "completely understands all aspects of the job." See Plaintiff's Exhibit C at 3. Furthermore, the court notes that Larson has failed to submit any evidence indicating that Kalskett does not possess the requisite skill, education, and training for an assembly line position. With respect to the second prong, the court finds that Kalskett has also generated a genuine issue of material fact as to whether she could perform the essential functions of the assembly line job with reasonable accommodation in light of Larson's decision to implement a two-hour rotation schedule. This is so because in addition to Kalskett's own testimony, she has submitted evidence from Clark Williams, a rehabilitation consultant, in which he opines that with minor ergonomic modifications Kalskett could perform jobs on the production line based on a two-hour rotation schedule, and from her doctor, Carl O. Lester, in which he opines that there were jobs on the production line that Kalskett could perform. Larson, however, argues that merely working on some positions on the production line is not performing the essential functions of the assembly/production line position. Specifically, Larson maintains that it is the company's policy to rotate assembly line employees through as many positions as possible in a given day, and that it is not required by the ADA to permanently disrupt a rotation system in order to provide an employee with a single light duty task. Kalskett contends that Larson's treatment of other disabled employees belie these arguments, and further that whether an essential function of an assembly line position at Larson entails rotating among all of the twelve positions on the assembly line is a question for the trier of fact. In support of her contentions, Kalskett points out that Phillip Huston is an employee of Larson who has been working on the assembly line only in the position of keys and latches. Huston states that this is a light duty position, that he does not rotate with any of the other positions on the assembly line and that he has been doing this since April 13th of last year. Kalskett also points out that due to his injury, Martin D. Jutting has been rotating between the side rails position and the packager position since November of 2000, and that Debra Mitchell, also an employee on the assembly line who sustained a shoulder injury, indicated that she has been on light duty since April of 2000. Mitchell stated that she rotates between the following positions, three of which are on the assembly line, at Larson four times a day: mortise machine, putting drip candy expanders in the door, screens in the door, and running the packager. Larson, however, contends that the individuals with whom Kalskett compares herself, identified above, are all either employees who have no permanent restrictions, or whose restrictions did not prevent them from being accommodated under the ADA. *980 Larson contends that Kalskett has failed to establish that she was treated disparately under Larson's system or that Larson has a past pattern or practice of creating permanent light duty work for its permanently impaired employees. The court disagrees with Larson, and concludes that Kalskett has generated a genuine issue of fact as to whether she was treated disparately under Larson's system and whether Larson has a past pattern or practice of creating permanent light duty work for its permanently impaired employees. Additionally, whether the essential job functions of an assembly/production line worker at Larson required Kalskett to rotate among all the positions on the production line is a question for the trier of fact. Thus, Larson is not entitled to summary judgment on this claim. 3. Other Positions that Kalskett Claims She Was Entitled To Kalskett next argues that Larson failed to accommodate her by reassigning her to other positions that she argues either existed at the time of her termination or that became available shortly after her termination. Kalskett identified three positions, including trainer, assistant to the trainer, and the position of inventory control, in which she contends she could have been placed. However, Larson argues that of these three positions, the trainer position was never vacant, the position of assistant to the trainer never existed, and the position of inventory control was not even created until well after Kalskett's last day of work. The court addresses each of these alleged positions in turn. First, Kalskett argues that she should have been accommodated by reassignment to the position of trainer. It is undisputed that William Humphrey continuously occupied the training position at Larson since late 1997. Merely because Kalskett believed that such a position was ideal in light of her restrictions does not require Larson to create another trainer position, see Cravens, 214 F.3d at 1019 (stating that "the disabled employee must be seeking an existing position within the company; the employer is not required to create a new position as an accommodation"), nor does it require Larson to bump Humphrey from his position as trainer and award it to Kalskett as an accommodation, see id. (stating that "an employer is not required to `bump' another employee in order to reassign a disabled employee to that position"). Thus, the court agrees with Larson that Kalskett's argument that she could have performed the trainer position is of little value, because such position was never open. Second, Kalskett argues that she should have been accommodated by reassignment to the position of assistant trainer. Larson argues that there was no such position at the time that Kalskett left Larson's employment, and that while Kalskett was assigned to assist Humphrey from June 25, 1998 to June 29, 1998, such assignment was only temporary. Larson unequivocally maintains that there was no such position available. On the other hand, Kalskett contends that there is an obvious need for such a position, and that Humphrey expressed the need for her continued assistance. Even assuming that Humphrey did make such a comment to Kalskett, Larson is not required to create such a position in order to accommodate her disability. Humphrey testified that he never had an assistant, and without any evidence in the record indicating that the position of assistant trainer was, in fact, a position at Larson, the court finds no merit in Kalskett's argument that she be accommodated by requiring Larson to create a position for her. Third, Kalskett argues that she should have been accommodated by reassignment *981 to the position of inventory control. Kalskett asserts that she had a conversation with a Larson supervisor, Jim Sletten, when she interviewed for the position of team leader in May of 1998, during which Mr. Sletten indicated that Larson was creating a new position that would track inventory. Larson, however, points out that this new inventory control position was not created until February 8, 1999, which was seven months after Kalskett's last day of employment with Larson, and nine months after Mr. Sletten mentioned the position to Kalskett. As this court indicated previously, under the ADA, employers should reassign an employee to a position if it becomes "vacant within a reasonable amount of time." 29 C.F.R. pt. 1630, App. § 1630.2(o) ("As an example, suppose there is no vacant position available at the time that an individual with a disability requests reassignment as a reasonable accommodation. The employer, however, knows that an equivalent position for which the individual is qualified, will become vacant next week. Under these circumstances, the employer should reassign the individual to the position when it becomes available."). "The determination of what constitutes a `reasonable amount of time' is to be made on a case-by-case basis and is to be determined in light of the totality of the circumstances." Boykin, 247 F.3d at 1065. However, the Tenth Circuit Court of Appeals and other courts have held that employers are not obligated to retain a disabled employee on unpaid leave indefinitely or for an excessive amount of time. See Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110 (10th Cir.1999) (keeping plaintiff on indefinite leave unreasonable accommodation where he had informed employer he "could not advise when and under what conditions he could return to any work"); Hoskins v. Oakland County Sheriff's Dept., 227 F.3d 719, 729 (6th Cir. 2000) (unreasonable to require employer to assign employee to new position that became available "well over a year" after employer became aware of disability); Kiphart v. Saturn Corp., 74 F.Supp.2d 769, 782 (M.D.Tenn.1999) (as a matter of law, the 1,300 days employer sought new position was "well in excess of the reasonable amount of time required by the ADA"); Scheer v. City of Cedar Rapids, 956 F.Supp. 1496, 1501-02 (N.D.Iowa 1997) (request that position be kept open indefinitely until plaintiff had been seizure-free for six months was not reasonable accommodation). Also, the EEOC's "Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act," suggests that six months is beyond a "reasonable amount of time." 1999 WL 33103142, at *21 (Mar. 1, 1999). Here, seven months had passed from the time that Kalskett's employment with Larson had ceased to the time that Larson created the inventory control position. The court concludes that seven months constitutes an excessive amount of time in which to require an employer to retain a disabled employee on unpaid leave. Accordingly, the court finds that requiring Larson to retain Kalskett for seven months on unpaid leave until the inventory control position became available is not a reasonable accommodation under the ADA. 4. Does the Direct Threat Defense Include Threats to One's Own Health and Safety? Larson maintains that Kalskett's risk of injury to herself is a defense under the ADA, asserting that employing Kalskett in any type of production capacity position would incur significant risk that she would further re-injure herself. In contrast, Kalskett argues that Larson cannot assert as *982 a defense any potential risk to Kalskett's health and safety, because allowing Larson to assert this defense would allow an employer to play the paternalistic role of determining which health risks are acceptable to an employee and which are not, which is contrary to the ADA. Thus, the question before this court is whether the "direct threat" defense includes threats to Kalskett's own health or safety. The court concludes that the question of risk of injury to Kalskett is a matter of "qualification," that is, ability to perform the essential functions of the job, and hence an element of the claim, rather than a defense of "direct threat" of injury to oneself. This is so because the plain language of the statutes authorizing the defense of "direct threat" to others, 42 U.S.C. § 12111(3)[4], § 12113(b)[5], do not authorize the defense of "direct threat" to oneself. See Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1067 (9th Cir.2000) (concluding that the language of the direct threat defense plainly does not include threats to the disabled individual himself). Even the defense of "direct threat" to oneself is not authorized in the more general subsection preceding the one specifically authorizing the defense, namely 42 U.S.C. § 12113(a)[6]. Rather, reference to the defense of direct threat to oneself emanates from the EEOC's regulation 29 C.F.R. § 1630.2(r)[7]. Because the defense of direct threat to oneself is not authorized by the statute, this court agrees with the district court's finding in Kohnke v. Delta Airlines, Inc., 932 F.Supp. 1110 (N.D.Ill. 1996), that the regulation impermissibly expands the statute. Larson, however, argues that it can assert the defense of direct threat to oneself and relies on a decision by the Eighth Circuit Court of Appeals, namely Lloyd v. Hardin County, Iowa, 207 F.3d 1080 (8th Cir.2000). In that case, the Eighth Circuit Court of Appeals noted the following: The district court addressed Hardin County's argument that Lloyd was not, as a matter of law, a "qualified individual with a disability" because his disability posed a "direct threat" to the health *983 or safety of himself or others. See 42 U.S.C. § 12113(b). The district court reasoned, based upon the absence of medical or other objective evidence in the record, that Hardin County was not entitled to summary judgment on that particular basis. See slip op. 8-9 (quoting 29 C.F.R. § 1630.2) (determination of whether an individual poses a "direct threat" to himself or others under 42 U.S.C. § 12113(b) "shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence."). Id. at 1083. As this passage indicates, the district court concluded that Hardin County was not entitled to summary judgment on that particular basis, therefore, the Eighth Circuit Court of Appeals was not presented with, nor did it answer, the question whether the "direct threat" defense includes threats to one's own health or safety. Rather, the Eighth Circuit Court of Appeals merely reiterated the findings made by the district court, and did not affirm the district court on this particular finding as Larson contends. Notwithstanding, the court is aware that several cases do state that the direct threat defense includes threats to oneself, see LaChance v. Duffy's Draft House, Inc., 146 F.3d 832 (11th Cir.1998); EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir.1997); Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir.1995), however, these cases do so only in dicta. Upon review, it appears that only the Eleventh Circuit Court of Appeals and the Tenth Circuit Court of Appeals have held that the defense encompasses such threats, see Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir.1996) and Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284, 1290 (10th Cir.2000), however, these decisions provide this court with essentially no guidance because they give virtually no explanation for their holdings.[8] Instead, both cases simply assert, without analysis, that the ADA's direct threat defense applies to threats to the disabled individual himself/herself. The Ninth Circuit Court of Appeals, however, was squarely presented with this question, and concluded that the language of the direct threat defense did not include threats to the disabled individual herself/himself. See Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1067 (9th Cir. 2000).[9] Specifically, the Echazabal court reasoned: In order to resolve the scope of the direct threat defense, we turn first to the language of [the] provision itself. Here, that language is dispositive. The *984 direct threat defense permits employers to impose a "requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." On its face, the provision does not include direct threats to the health or safety of the disabled individual himself. Moreover, by specifying only threats to "other individuals in the workplace," the statute makes it clear that threats to other persons — including the disabled individual himself — are not included within the scope of the defense. Expressio unius est exclusio alterius. Finally, the obvious reading of the direct threat defense as not including threats to oneself is supported by the definitional section of Title I, which states that "[t]he term `direct threat' means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3) (emphasis added). The fact that the statute consistently defines the direct threat defense to include only threats to others eliminates any possibility that Congress committed a drafting error when it omitted from the defense threats to the disabled individual himself. Cf. United States Trustee v. Garvey, Schubert & Barer (In re Century Cleaning Servs., Inc.), 195 F.3d 1053, 1057-58 (9th Cir.1999). For these reasons, we conclude that the language of the direct threat defense plainly does not include threats to the disabled individual himself. Id. at 1066-67 (footnote omitted). Additionally, the Echazabal court explained that even the legislative history of the ADA supports the conclusion that the direct threat provision does not include threats to oneself. Id. at 1067. In particular, the Echazabal court stated the following: The term "direct threat" is used hundreds of times throughout the ADA's legislative history — in the final conference report, the various committee reports and hearings, and the floor debate. See, e.g., H.R. CONF. REP. No. 101-596, at 57, 60, 77, 84 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 566, 569, 586, 593. In nearly every instance in which the term appears, it is accompanied by a reference to the threat to "others" or to "other individuals in the workplace." Not once is the term accompanied by a reference to threats to the disabled person himself. In addition, both the Report of the House Judiciary in the Report of the Committee on Education and Labor explain that the direct threat provision is intended to codify the Supreme Court's holding in School Bd. of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987) — a case that defines "[t]he term `direct threat' [to] mean[] a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." H.R. REP. No. 101-485, pt. 3, at 34, 45-46 (1990) (emphasis added) (citing Arline), reprinted in 1990 U.S.C.C.A.N. 445, 457; see also H.R. REP. No. 101-485, pt. 2, at 76, reprinted in 1990 U.S.C.C.A.N. 303, 359. While the House Judiciary Report notes that the ADA extends the Arline standard "to all individuals with disabilities, and not simply to those with contagious diseases or infections," H.R. REP. No. 101-485, pt. 3, at 45, reprinted in 1990 U.S.C.C.A.N. 445, at 468, it says nothing about extending the standard to cover a disabled person whose employment would be harmful to himself as opposed to other individuals. Finally, the following statement made by Senator Kennedy, a co-sponsor of the ADA, also strongly bolsters our reading of the statute: The ADA provides that a valid qualification standard is that a person not pose a direct threat to the health or safety of other individuals in the workplace — that is, to other coworkers *985 or customers.... It is important, however, that the ADA specifically refers to health and safety threats to others. Under the ADA, employers may not deny a person an employment opportunity based on paternalistic concerns regarding the person's health. For example, an employer could not use as an excuse for not hiring a person with HIV disease the claim that the employer was simply "protecting the individual" from opportunistic diseases to which the individual might be exposed. That is a concern that should rightfully be dealt with by the individual, in consultation with his or her private physician. 136 CONG. REC. S9684-03, at S9697 (1990). In short, the legislative history convincingly supports the unambiguous wording of the direct threat defense. Id. at 1067-68 (footnote omitted). Thus, based on this reasoning, this court concludes that the defense of direct threat to oneself is not a defense authorized by the plain language of the statute authorizing the defense of direct threat to others, 42 U.S.C. § 12113(b). However, the court finds that the direct threat to oneself is properly analyzed under the "qualification" element of Kalskett's prima facie ADA claim, that is, Kalskett must be able to perform the essential functions of the assembly line job at the Larson facility without a risk of injury to herself. In reaching this conclusion, the court seeks guidance from the Seventh Circuit Court of Appeals's decision in Koshinski v. Decatur Foundry, Inc., 177 F.3d 599, 602-03 (7th Cir.1999). In that case, the plaintiff asserted discrimination based on perceived disability, even though "[h]e acknowledged that there was no way to do the job of cupola operator without subjecting himself to the very things his doctors recommended he stay away from." Koshinski, 177 F.3d at 603. In relevant part the decision continues: Based on this evidence, the district court correctly concluded that Koshinski could not perform the essential functions of his job. Koshinski may have shown that he wanted to return to work despite the risk of pain and harm, but that is not the test. He had to show that he was qualified to do the job. And neither he nor his doctors thought he was. Koshinski argues that the ADA is not a paternalistic statute designed to protect a disabled person from himself, and that an employee should not be fired or otherwise denied employment because he may become unwilling to do his job at some point in the future. In principle we do not disagree with Koshinski's argument. It would be hard to imagine, for example, that a court would sanction an employer's decision to fire a qualified employee simply because his degenerative heart disease makes a future heart attack inevitable. But here the record firmly established that Koshinski could not perform the essential functions of his job when the foundry decided to let him go. Koshinski wanted to go back to work despite the pain and the harm he would cause himself — understandable, given that the foundry paid him twice the hourly wage he was able to earn from subsequent employers. He argues that the foundry should have allowed him to go back to work even if it meant that he would suffer considerable pain and cause his condition to worsen. That a person may cause a direct threat to himself, he argues, is of no consequence under the ADA. Kohnke v. Delta Airlines, Inc., 932 F.Supp. 1110, 1111-12 (N.D.Ill. 1996), in which the district court held that the "direct threat" language in the ADA refers to direct threats to other individuals, not to the disabled person himself, supports his position. But see 29 C.F.R. § 1630.2(r) ("Direct Threat means a significant risk of substantial *986 harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.") (emphasis added). The "direct threat" issue arises, however, only after an ADA plaintiff has made out a prima facie case, as an employer's defense to the challenged adverse employment decision. See 42 U.S.C. § 12113(b). Because Koshinski cannot show that he was entitled to protection under the ADA, we do not reach the question of whether the foundry had a valid defense for refusing to reinstate him. For these reasons, the judgment of the district court is affirmed. Id. at 603 (emphasis added). Relying on this language, this court concludes that the direct threat to oneself is not a defense that Larson can assert here against Kalskett, however, it is part of Kalskett's burden to demonstrate whether she is qualified to perform the essential functions of the assembly-line job without risk of injury to herself. In other words, if Kalskett cannot perform the essential functions of a job without risk of injury to herself, and that risk of injury cannot be prevented by a reasonable accommodation, Kalskett cannot perform the essential functions of the job as required by the qualification element. See Koshinski, 177 F.3d at 602. Here, the court notes that Larson has not offered any opinion testimony from a physician that would indicate that Kalskett's continued work on the assembly line would cause undue risk to her health and safety. Rather, Larson states that after initially injuring her back on or about December 4, 1995, Kalskett suffered one re-injury after another, when attempting to return to production work in one capacity or another, and that her back condition progressively worsened. In response, Kalskett points to the testimony of her physician, Dr. Carl Lester, who testified that he believes that she was capable of performing particular functions on the assembly line after reviewing certain tapes of the work activities. Thus, the court concludes first that, the direct threat defense to oneself is not a defense authorized under the statute, however, in this case, the direct threat to oneself does go to Kalskett's qualification under the ADA. Here, because Kalskett has generated a genuine issue of material fact that she could perform the essential functions of the assembly line job without injury to herself, and with reasonable accommodation, the court concludes that Larson is not entitled to judgment as a matter of law on this basis. See FED. R. CIV. P. 56(c) (summary judgment may only be granted where the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."). C. Kalskett's State Law Claim Having addressed Kalskett's federal disability discrimination claim under the ADA, the court turns its attention to Kalskett's disability discrimination claim under Iowa law. Iowa Code § 216.6 makes it an unfair or discriminatory employment practice to "discharge" or "otherwise discriminate" against any employee "because of" a disability "unless based upon the nature of the occupation." Iowa Code § 216.6; Sierra v. Employment Appeal Bd., 508 N.W.2d 719, 722 (Iowa 1993). Iowa courts look to the ADA, its regulatory interpretations, and its case law in construing a disability claim under the Iowa Civil Rights Act (ICRA). See Fuller v. Iowa Dept. of Human Servs., 576 N.W.2d 324, 329 (Iowa 1998). The foregoing analysis under the ADA, therefore, applies with equal force to Kalskett's ICRA claim. Consequently, because the court finds that Kalskett has generated a genuine issue of material fact as to whether she was "qualified" for the assembly line position with reasonable accommodation only, the court denies Larson's Motion for Summary Judgment on Kalskett's claim of disability *987 discrimination with respect to this position under Iowa Code Chapter 216. III. CONCLUSION The court concludes that Larson is entitled to summary judgment based on Kalskett's claims that she was discriminated against because Larson did not accommodate her disability when it refused to reassign her to the following positions: team leader of Line 3, crew leader of any of the lines Larson added in late 1998 through 1999, trainer, assistant to trainer, and the inventory control position. This is so, because Kalskett has failed to generate a genuine issue of material fact that any of these positions were vacant or would become vacant within a reasonable amount of time under the ADA. However, the court concludes that Kalskett has generated a genuine issue of material fact that she is qualified to perform the essential functions of the assembly line job with reasonable accommodation. Therefore, Larson's Motion for Summary Judgment is granted in part, and denied in part. IT IS SO ORDERED. NOTES [1] The court will assume without deciding that the written answers that Kalskett provided in the Iowa Civil Rights Commission's Questionnaire, which were made during an administrative setting, are sworn statements. This is so because Kalskett does not argue otherwise, and as will be discussed, the court finds that Kalskett has sufficiently explained the apparent inconsistencies between her statements. [2] The court notes that originally Larson argued that Kalskett's prior sworn statements should be discarded under the rules set out in Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir.1983). However, later in its reply brief Larson argued that Kalskett's prior sworn statements should be discarded under the rules set out in Cleveland. In Cleveland, the Supreme Court explained the difference between its holding and the holdings of the circuit courts, specifically citing the Camfield decision, as follows: They [the lower courts] have held with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statements (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity .... Although these cases for the most part involve purely factual contradictions (as to which we do not necessarily endorse these cases, but leave the law as we found it), we believe that a similar insistence upon explanation is warranted here, where the conflict involves a legal conclusion. Cleveland, 526 U.S. at 804-07, 119 S.Ct. at 1603-04 (internal citations omitted). This court finds that Kalskett's prior sworn statements are most accurately characterized as legal conclusions, and thus, this court analyzed these statements here accordingly. Notwithstanding, even if this court analyzed Kalskett's prior sworn statements under the rules set out in Camfield, this court would find that Kalskett did not create a "sham" issue by contradicting her prior statements in light of her explanation discussed above. Camfield, 719 F.2d at 1365-66. [3] Dan Beinhorn submitted an affidavit that production on Line 3 did not commence until December of 1998. [4] The definitions section of Title I of the ADA reads in relevant part: (3) Direct threat The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. 42 U.S.C. § 12111(3). [5] The defenses section of Title I of the ADA reads in relevant part: (b) Qualification standards The term "qualification standards" may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. 42 U.S.C. § 12113. Although the subsection that sets forth the "direct threat" language does not explicitly set forth an affirmative defense to a claim of disability discrimination, it is clear that Congress intended the provision to define the terms of such defense. See Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1066 n. 2 (9th Cir.2000). [6] The defenses section of Title I of the ADA reads in relevant part: (a) In general It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter. [7] The EEOC regulations state that "Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r) (emphasis added). [8] In Borgialli, the Tenth Circuit Court of Appeals, without comment, states that 29 C.F.R. § 1630.2(r) expands upon the issue of "direct threat" as the term appears in 42 U.S.C. § 12111(3). But see Echazabal, 226 F.3d at 1068 (explaining that because the language of the direct threat defense plainly expresses Congress's intent to include within the scope of a § 12113 defense only threats to other individuals in the workplace, the court rejects the EEOC's regulatory interpretation, 29 C.F.R. § 1630.2(r), of the statutory "direct threat" provision); Kohnke, 932 F.Supp. at 1111 (stating that the EEOC's interpretation of the "direct threat" language in the ADA is untenable, because it renders certain words in the ADA meaningless, and thus must be rejected since a court should not construe a statute in a way that makes words or phrases meaningless, redundant or superfluous) (citations and internal quotations omitted). [9] In a footnote, the Ninth Circuit Court of Appeals recognized the district court's decision in Kohnke v. Delta Airlines, Inc., 932 F.Supp. 1110 (N.D.Ill.1996), wherein it concluded that the direct threat defense does not apply to threats to oneself.

3 N.Y.3d 681 (2004) PEOPLE v. SORIANO Court of Appeals of the State of New York. August 3, 2004. Application in criminal case for leave to appeal—Denied. (R.S. Smith, J.)

518 F.Supp. 864 (1981) Donald E. SUMMERS, Plaintiff, v. The PENN CENTRAL TRANSPORTATION CO., Defendant. No. 3917. United States District Court, S. D. Ohio, W. D. June 15, 1981. *865 Robert A. Dougherty, Dayton, Ohio, for plaintiff. W. Lynn Swinger, Sidney, Ohio, for defendant. DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; FURTHER PROCEDURES SUGGESTED OF DEFENDANT'S COUNSEL TO PRESERVE ISSUE FOR APPEAL; CONFERENCE CALL SET RICE, District Judge. The captioned cause came on to be heard upon the motion of the Defendant herein, seeking an order of the Court granting summary judgment in its favor, upon the ground that the Plaintiff's motion is barred by the doctrine of collateral estoppel. Due to the failure of either party to properly authenticate its documents supporting its memorandum, either in support of or in opposition to the aforementioned motion, in the manner as required by Federal Rules of Civil Procedure 56(c), by certifying the Court documents attached to the memoranda and by submitting an affidavit setting forth the limited extent of the Plaintiff's participation in the trial held in the Shelby County Court of Common Pleas, the Defendant's motion must be, and hereby is, overruled in its entirety. A motion for summary judgment, unsupported by Rule 56 materials, is nothing more, in legal effect, than a motion for judgment upon the pleadings. Construing the Defendant's motion as such, a review of the Plaintiff's complaint does not establish, as a matter of law, that the Plaintiff is not entitled to relief in this Court. The Court will, however, give the Defendant fourteen days from date of receipt of notice of this decision in which to resubmit the documents previously submitted to this Court, in support of its motion for summary judgment, in a form properly authenticated pursuant to Federal Rules of Civil Procedure 56. Since it will not be a difficult task to obtain a proper certification of Court documents and an affidavit setting forth the limited nature of the Plaintiff's participation in the earlier trial in the Shelby County Court of Common Pleas, this Court will assume, herein, that properly authenticated documents, in Rule 56 terms, would be presented to it in the near future. Therefore, the Court will proceed to rule upon the merits of the Plaintiff's motion for summary judgment, as if those documents were properly before the Court at the present time. A. THE FACTS Based upon the documents attached to the memoranda filed in support of the Defendant's motion for summary judgment, and the statements contained in said memoranda, the apparently undisputed facts are as follows: 1. On December 27, 1968, the Plaintiff, operating within the scope and course of his employment as a truck driver for the Coy Distributing Company (formerly G&L Transportation Company), was involved in a collision with one of the Defendant's trains, at a railroad crossing in Shelby County, Ohio, which collision caused certain property damage to the truck and certain damages and injuries to the driver of said truck, the Plaintiff herein. 2. On December 29, 1969, the Plaintiff's employer, the trucking company, filed suit for property damages to its truck in the Common Pleas Court of Shelby County, Ohio. 3. An attempt was made to remove the case from the Shelby County Court of Common Pleas, to the United States District Court for the Southern District of Ohio. In the petition for removal *866 filed by the Defendant on October 20, 1970, Defendants' counsel made reference to the personal injury suit filed by the Plaintiff herein which was then pending in the United States District Court. While not specifically spelled out, it is clear that Defendants' attorney wished to have the property damage case removed to Federal Court and consolidated with the personal injury lawsuit then pending in that Court. On February 9, 1971, Chief Judge Carl A. Weinman remanded the property damage lawsuit to the Court of Common Pleas of Shelby County, Ohio, for the reason that the amount sought in the property damage complaint ($6,089.67) was clearly below the requisite jurisdictional amount necessary for Federal Court jurisdiction. 4. The complaint in the captioned cause (a suit for personal injuries and damages) was filed on September 17, 1970. An amended complaint followed one week later. 5. A motion was filed, in July, 1970, in the Shelby County Court of Common Pleas case, prior to the attempt to remove same to the United States District Court, which sought to join the injured truck driver (the Plaintiff herein) as an involuntary plaintiff in that action. This motion to join the injured truck driver was made for the following reason: "Donald E. Summers was the agent or employee of Plaintiff G&L (formerly Coy) [the Plaintiff in the property damage action] who was operating the truck damaged in the accident. According to Defendant's records and reports Summers was injured in the collision and will in all probability make a claim against Defendant for his personal injuries." The motion was, in short, an attempt to avoid multiple litigation. That motion was never ruled upon by the Shelby County Court of Common Pleas, although a motion to dismiss the Defendant's motion was filed by the trucking company Plaintiff upon the ground that the injured truck driver had, by that time, filed his personal injury action in the United States District Court. 6. The property damage action went to trial in the Court of Common Pleas of Shelby County, Ohio, before a judge sitting as the trier of fact. At that trial, the truck driver participated only as a witness for the Plaintiff, his employer. It does not appear that the truck driver exercised any control and/or direction over the trial, itself, or during its pretrial stages. Following the trial, Judge Howard Eley, stated, in a decision filed on July 14, 1972, that, inter alia, "The Plaintiff was contributorily negligent which contributed proximately to its own loss." Since the corporate Plaintiff in the property damage lawsuit operated only through its truck driver, said decision by Judge Eley is tantamount to a finding that the driver of the truck, the Plaintiff herein, was contributorily negligent, directly and proximately contributing to the collision and to property damage to the truck. Judge Eley's decision was journalized by a Judgment Entry filed on July 20, 1972. B. THE ISSUE Does a finding in a property damage suit that the Plaintiff's employee, through whom the Plaintiff operated during the events in question, was contributorily negligent, directly and proximately contributing to a collision and the property loss, operate to bar, in res judicata grounds, the employee's later suit for personal injuries and damages in another Court, when said employee had no input into, or direction and control over, the earlier property damage litigation, his sole role being that of a witness for his then employer? For the reasons set forth below, this Court answers this question in the negative. C. THE LAW Although the Defendant has phrased his motion in terms of collateral estoppel (issue *867 preclusion), it is clear that said motion should be advanced under the doctrine of res judicata (claim preclusion). The law of Ohio with reference to res judicata (the confusion between res judicata and collateral estoppel is endemic in the reported decisions) may be stated as follows: "Where a fact essential to the judgment is actually litigated and determined by a valid final judgment, the determination is deemed conclusive between parties [or their privies] in a subsequent action on the same fact or issue in a different cause of action. This precludes relitigation as the parties and their privies are bound." 32 O.Jur.2d Judgments, § 183 (Poehls v. Young, 144 Ohio St. 604, 60 N.E.2d 316 (1945). "One, though not a nominal party to a prior action and prior judgment, may be so connected with that previous case by his interest in the results and his active participation in the case so as to be bound. The record must show such participation and assistance." 32 O.Jur.2d Judgments, § 245; Whitehead v. General Telephone Company, 20 Ohio St.2d 108, 254 N.E.2d 10 (1969). "Public policy requires and the public interest is served in preventing one from being vexed by relitigation." 32 O.Jur.2d Judgments § 182 D. DISCUSSION The doctrine of collateral estoppel/res judicata has evolved in an attempt to resolve the conflicting policies of prohibiting the relitigation of issues which have been previously determined by a court of law and of granting each injured person his day in Court. The captioned cause is before this Court pursuant to its diversity jurisdiction. Therefore, the law of the forum, Ohio, will be applied. Under Ohio law, it is clear that the Plaintiff herein, the employee of the Plaintiff in the Shelby County Court of Common Pleas case, is neither a "party" nor in privity with said party, such as to make him bound by the prior action. Quinn v. State, ex rel. Leroy, 118 Ohio St. 48, 160 N.E. 453 (1928); the State of Ohio v. Tin and Japan Company, 66 Ohio St. 182, 64 N.E. 68 (1902); Restatement of Judgments, § 83-111 (Tentative Draft # 2, 1975); Thaxton v. Vaughan, 321 F.2d 474 (4th Cir. 1963). Based upon the facts set forth above, it is clear that the Plaintiff herein could not be a "party" in that he was not directly interested (in the financial sense) in the subject matter of the prior lawsuit, the case was not brought in his behalf, he did not control the proceedings, he did not have the right to examine and cross-examine witnesses and to appeal from the judgment. The Plaintiff's prior role as a witness to the property damage lawsuit does not, in and of itself, give him sufficient control over the proceedings to render him a "party" to that prior suit. His employer's prior litigation for property damage to the truck is not sufficiently allied to the Plaintiff's claim for personal injuries so as to make the Plaintiff a party in interest in the former litigation. Participation as a witness is insufficient to establish control or privity. Thaxton v. Vaughan, supra. Recent Ohio Supreme Court decisions on the question of "privity" have declined to expand the definition of that term. The existing Ohio requirement that there be an identity of parties or their privies is founded upon the "sound principle that all persons are entitled to their day in Court." Whitehead v. General Telephone Company, supra, at 116, 254 N.E.2d 10. Privity does not, of necessity, exist in the employer-employee relationship. Pesce v. Brecher, 302 Mass. 211, 19 N.E.2d 36 (1939); Makariw v. Rinard, 336 F.2d 333 (3rd Cir. 1964) at 336 in which the Third Circuit concluded that: "The decisional law and the Restatement are in accord that an employee who has not been a party to a suit brought against his employer is not bound by a final determination in such a suit, although the cause of action arises out of the employee's negligence, because he has not `had his day in Court.'" 336 F.2d at 336. *868 See also cases cited in Plaintiff's memorandum contra the Defendant's motion for summary judgment; see also Schimke v. Earley, 173 Ohio St. 521, 184 N.E.2d 209 (1962) (concurring opinion). 31 A.L.R. 194; 133 A.L.R. 181, 182, 196; 23 A.L.R.2d 710, 731; 30A American Jurisprudence 480 § 429. Because the Plaintiff herein was neither a party to nor in privity with one who was a party in the prior litigation, and because the Court feels that to allow the use of collateral estoppel/res judicata to preclude litigation of the Plaintiff's claim, without his ever having had his day in Court, would be contra to both law and fundamental fairness, in that the doctrine would be used offensively against one not a party to that prior action, this Court deems said doctrine to not be applicable herein and the Court would, accordingly, upon proper documentation as referred to above and below, overrule the Defendant's motion for summary judgment. E. FURTHER PROCEDURES SUGGESTED OF DEFENDANT As set forth above, this Court would direct Defendant's counsel to properly authenticate his statements and documents, in a form proper under Federal Rules of Civil Procedure 56, within fourteen days from date of receipt of notice of this decision. Should the Defendant be puzzled as to what benefit could accrue to his client in authenticating documents as suggested herein, when the result is already foreordained (the motion for summary judgment will be denied), this Court could only suggest that the proper authentication of the supporting facts and documents will put the case in a position where the Defendant will have perfected his record for possible appeal should that later become either necessary or desirable. F. CONFERENCE CALL SET Counsel listed below will take note that a conference call will be had, in the nature of a pretrial conference, at 8:40 a. m. on Friday, June 19, 1981, for the purpose of setting a trial date, final pretrial conference, discovery cut off date, etc. This conference will be had by conference call telephone communication.

375 F.3d 537 SIERRA CLUB, Petitioner,v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.Intervening Respondents: State of Illinois; State of Missouri No. 03-2839. No. 03-3329. United States Court of Appeals, Seventh Circuit. Argued June 1, 2004. Decided July 6, 2004. Douglas R. Williams (argued), St. Louis University, Kathleen G. Henry, Bruce A. Morrison, Great Rivers Environment Law Center, St. Louis, MO, for Petitioner. David A. Ullrich, E.P.A., Office of the Regional Counsel, Chicago, IL, Eileen T. McDonough (argued), Department of Justice, Environmental & Natural Resources Div., Washington, DC, for Respondent. Mary E. Welsh, Office of the Attorney General, Chicago, IL, Timothy P. Duggan, Jefferson City, MO, for Intervenor. Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges. EASTERBROOK, Circuit Judge. 1 Changes to the environmental laws in 1990 reduced the allowable levels of ozone pollution and set deadlines for attainment. Clean Air Act Title I, Part D, subpart 2, 42 U.S.C. §§ 7511 to 7511f. The St. Louis metropolitan area, initially classified as a "moderate" nonattainment zone, had until November 15, 1996, to comply. 42 U.S.C. § 7511(a)(1). A moderate jurisdiction that missed this deadline was to be reclassified automatically as a "serious" nonattainment area, 42 U.S.C. § 7511(b)(2)(A). That change requires additional costly anti-pollution steps. One of the principal differences between the 1990 legislation and its predecessor was this mandatory reclassification; the legislation leaves the EPA less discretion with respect to ozone than other pollutants. See Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 481-86, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). Nonetheless, when St. Louis failed to meet the deadline, the EPA decided that it had done well enough that its status should remain unchanged. In Sierra Club v. EPA, 311 F.3d 853 (7th Cir.2002), we held that dispensation unlawful and directed the EPA to apply the statute as written. See also Sierra Club v. EPA, 294 F.3d 155 (D.C.Cir.2002). Delay in compliance required a turn of the screw even though St. Louis was making progress. 2 While the proceedings that led to our 2002 decision were under way, St. Louis finally met the ozone standards. It asked the EPA for a formal decision that it satisfies the requirements for ozone. Before designating any area as in compliance, the EPA must make five determinations: 3 The Administrator may not promulgate a redesignation of a nonattainment area (or portion thereof) to attainment unless — 4 (i) the Administrator determines that the area has attained the national ambient air quality standard; 5 (ii) the Administrator has fully approved the applicable implementation plan for the area under section 7410(k) of this title; 6 (iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; 7 (iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 7505a of this title; and 8 (v) the State containing such area has met all requirements applicable to the area under section 7410 of this title and part D of this subchapter. 9 42 U.S.C. § 7407(d)(3)(E). The EPA made all of these findings in 2003 for the St. Louis metropolitan area (which spans the border between Missouri and Illinois, and hence requires consideration of multiple state plans). See 68 Fed.Reg. 25418 (May 12, 2003) (Missouri), 68 Fed.Reg. 25442 (May 12, 2003) (Illinois). The Sierra Club asks us to set aside these decisions. It does not contest the agency's finding that the St. Louis area now meets the national ambient air quality standard for ozone. Nor does it challenge the vital third finding: that "the improvement in air quality is due to permanent and enforceable reductions in emissions". But it insists that St. Louis lacks a proper "applicable implementation plan for the area under section 7410(k)" (requirement (ii)) and that the area's maintenance plan (requirement (iv)) does not meet all requirements of § 7505a. We start with the challenge to the maintenance plan. 10 A maintenance plan must take into account the sort of things, such as population growth and changes to the industrial base, that might cause existing pollution-control measures to become inadequate in the future even if they served well in the past. Ozone at or near ground level comes principally from chemical reactions involving its precursors, nitrous oxides (NOx) and volatile organic compounds. Both implementation plans and maintenance plans thus must provide for controls on the emission of these precursors. But what emissions are likely in the future, and what steps could reduce them by the required amount? Accurate projections depend on supplying good data to good models. All concrete requirements of § 7505a, to which requirement (iv) refers, have been satisfied. But a maintenance plan serves as an amendment to the local implementation plan, and 42 U.S.C. § 7511a(c)(2)(A) and (j)(1) thus may affect it. These subsections require both multi-state areas and serious nonattainment areas to "use photochemical grid modeling or any other analytical method determined [by the EPA], in [its] discretion, to be at least as effective." Missouri and Illinois have not promised to use photochemical grid modeling as part of their maintenance endeavors. The Sierra Club insists that all multi-state areas must use photochemical grid modeling as long as their maintenance plans are in effect. The EPA thinks that other tools can suffice — and the Sierra Club does not dispute this at the factual level. It contends, rather, that photochemical grid modeling is essential no matter how thorough and rigorous the maintenance plan may be. Unless the EPA makes a formal determination that some other modeling system is "at least as effective" — and the EPA did not make such a finding, even though it appears to believe that the St. Louis region's methods are at least as effective — then the method named in the statute is indispensable. 11 Thus we have a straightforward issue: must every multi-state area use photochemical grid modeling continually (at least until a formal equivalence finding has been made)? The EPA's view does not contradict the statute: § 7511a does not refer to maintenance plans at all, and it is only through the back door (because the maintenance plan amends the implementation plan) that this section enters the picture. What is more, § 7511a deals with pre-attainment requirements. This is the foundation of the agency's view that an area need not use photochemical grid modeling as part of a maintenance plan. That is not an inevitable reading of the statute, but the EPA receives the benefit of deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which American Trucking held applicable to the ozone subchapter. See 531 U.S at 481, 121 S.Ct. 903. Congress required nonattainment areas to shoulder more substantial burdens. St. Louis, like any other place that wants to keep a valuable attainment designation, has every incentive to choose adequate modeling tools. If it does not, and as a result slips out of compliance as its population or industry changes, then it must pay a steep price for backsliding. It is sensible for the federal agency to give localities that must pay the piper some opportunity to call the tune. Methods of projecting developments differ in accuracy and cost; allowing the affected region to make a cost-benefit comparison has much to recommend it. Recall that the Sierra Club does not contend that Missouri and Illinois have chosen irresponsibly, but only that the statute grants them (and the EPA) no option. The EPA's approach has received the approbation of the Sixth Circuit. See Wall v. EPA, 265 F.3d 426, 436 (6th Cir.2001). We see no reason to create a conflict. 12 Nor are we persuaded by the Sierra Club's argument that the maintenance plans fail to describe all contingency measures that may be applied if problems arise. The statute does not call for any particular degree of precision in the period after attainment (contrast § 7502(c)(9), which demands "specific measures" in the pre-attainment period), so again the EPA (and the affected states) had choices to make, choices that may be gainsaid only if obviously misguided. Intelligent decisions may depend on the nature of future developments. Missouri and Illinois have committed themselves to action; that they have reserved some discretion about the means does not spoil their plans. See Greenbaum v. EPA, 370 F.3d 527, 538-42, 2004 U.S.App. Lexis 10785 *24-38 (6th Cir. June 3, 2004). Cf. BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir.2003). 13 Let us turn, then, to requirement (ii): that "the Administrator has fully approved the applicable implementation plan for the area under section 7410(k) of this title". This mentions § 7410(k), but the cross-reference is unilluminating. It does not answer one vital question: what kind of implementation plan is "applicable"? Although the parties have disputed many technical issues, most of their disagreement boils down to a single question: Is an "applicable" plan the same as the area's pre-attainment plan (as Sierra Club contends), or is it limited to those measures that have proved to be necessary to achieve compliance (the EPA's view)? The Sierra Club contends that every attainment plan for an area at the serious level must specify the implementation of all reasonably available control measures (though the D.C. Circuit disagrees, see Sierra Club, 294 F.3d at 162-63), and must ensure a 15% reduction in the emission of volatile organic compounds (though the Tenth Circuit disagrees, see Sierra Club v. EPA, 99 F.3d 1551, 1555-56 (10th Cir.1996)), but these are sidelights. The real dispute is whether St. Louis, having been promoted to the serious category by delay in meeting the national ozone standard, must use control measures appropriate to a serious nonattainment area as a condition of being designated as an attainment area. 14 In a nutshell, the EPA's view is that the "applicable" plan requires an area to continue doing whatever worked, and nothing more. In other words, the EPA wants the plan to contain all provisions that required some set of controls to be in place before the date the area met the national standard. Here's a concrete example, and a principal bone of contention between the parties. Moderate nonattainment areas must ensure that every source of more than 100 tons (annually) of precursor chemicals takes prescribed steps to curtail their emission. For serious nonattainment areas, the threshold falls to 50 tons. 42 U.S.C. § 7511a(c). Our 2002 decision concluded that St. Louis must be treated as a serious nonattainment area — although it was classified as a moderate area in 2000, when it filed the application to be reclassified as an attainment area. Even the plan applicable to a serious nonattainment area would allow newly covered sources some lead time to limit their emissions. 42 U.S.C. § 7511(a)(1), (a)(5). Before that time arrived, St. Louis met the national ozone standard. Sierra Club believes that businesses in the 50 to 100-ton range still must implement controls; the EPA believes that an "applicable" implementation plan need not require this. The Sierra Club's definition of "applicable," by contrast, is "whatever should have been in the plan at the time of attainment" rather than "whatever actually was in the plan and already implemented or due at the time of attainment." 15 Because the statute does not define "applicable," there is no ineluctable basis for a choice between these options. See Wall, supra, 265 F.3d at 438-40. Both are conceivable understandings of the law. Chevron therefore affords the EPA leeway. (The St. Louis designation is the result of notice-and-comment rulemaking under explicit statutory delegation; this is the core of Chevron's domain. See United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001).) The EPA's view is at least as sensible as the Sierra Club's, likely more so. Requirement (ii) reads: "the Administrator has fully approved the applicable implementation plan for the area under section 7410(k)". That's a curiously indirect way of requiring a plan to continue without change, or become more onerous. Why didn't the statute say: "the Administrator has determined that the area will continue to abide by the implementation plan that was, or should have been, in place"? A word such as "applicable" implies that there may be differences between the contents of the pre-attainment plan and those required for the post-attainment period. Against this the Sierra Club points to the way "applicable" is used in other parts of the Clean Air Act (e.g., § 7511a(i)), but that statute is too complex a compromise, and has been amended too many times, to indulge the assumption that all of its words must be used consistently in all of its subsections. "Applicable" is a protean word that takes color from context; it lacks a single, enduring meaning. 16 Under the Sierra Club's view, compliance does not have a payoff: the residents and businesses of St. Louis must take the same costly steps that would be required had the area been less successful. As the reason to take additional steps was to achieve an adequate reduction in ozone, it would be odd to require them even when they turned out to be unnecessary. Some parts of the Clean Air Act forbid cost-benefit analysis, see Union Electric Co. v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976) — and subpart (2) on ozone is one of these, to the extent it mandates the progression to more severe controls until compliance has been achieved — but when the statute is ambiguous the EPA is free to take costs into account. That's the upshot of Chevron. See also Cass R. Sunstein, Risk and Reason: Safety, Law, and the Environment (2002); Stephen Breyer, Breaking the Vicious Circle: Toward Effective Risk Regulation (1993). The agency's approach strikes us as sensible. 17 Much of the Sierra Club's argument assumes that reclassification of St. Louis to serious nonattainment was some sort of punishment that its residents should not be allowed to escape. Not at all. "The St. Louis region" is an abstraction, a convenient collective phrase for millions of people whose own lives and fortunes are at issue. Reclassification was a combination of (a) goad (clean up or suffer expensive measures), and (b) palliative (sterner measures expedite compliance). Once an area has meet the national air quality standard, neither rationale calls for extra stringency; indeed, the statutory system would not be much of a goad if the tighter controls must continue even after attainment. It is not as if neighborhood bakeries and other smallish point sources were themselves blameworthy and in need of 20 lashes for transgressions. 18 One final subject requires brief comment. While the EPA was considering St. Louis's request for designation as an attainment area for ozone, the D.C. Circuit vacated some elements of the EPA's national regulations for the control of nitrous oxides (known as the NOx SIP Call). See Michigan v. EPA, 213 F.3d 663, 685, 695 (D.C.Cir.2000). After redesignating St. Louis, the EPA revised the NOx SIP Call. See 69 Fed.Reg. 21604 (Apr. 21, 2004). If the regulation adopted in 2004 implies a revision of the implementation and maintenance plans for the St. Louis region, the EPA will need to take action. But the Sierra Club's petitions for review do not raise any question about the implementation of the NOx SIP Call in St. Louis. 19 The petitions for review are denied.

995 So.2d 972 (2008) VANN v. STATE. No. 2D08-4854. District Court of Appeal of Florida, Second District. November 6, 2008. Decision without published opinion. Mand.denied.

5 N.Y.3d 880 (2005) 2001 COMMERCE ST. CORP. v. STAR ENTER. Court of Appeals of the State of New York. Decided November 17, 2005. Motion for reargument or reconsideration denied.

201 Ga. App. 248 (1991) 410 S.E.2d 804 MOORE et al. v. HARRIS et al. A91A0828. Court of Appeals of Georgia. Decided September 19, 1991. Christopher G. Knighton, Scheer & Elsner, Robert A. Elsner, for appellants. David O. Harris, pro se. COOPER, Judge. This action is an appeal of the trial court's award of attorney fees and expenses of litigation to appellees pursuant to OCGA § 9-15-14. On May 19, 1986, appellants sued appellees, two lawyers and their law firm, for legal malpractice, asserting that appellees were negligent in rendering improper tax advice in connection with the purchase and sale of a business. Appellees did not represent appellants but represented the other party to the transaction. Appellants' suit was voluntarily dismissed without prejudice on May 19, 1986, and a second suit against appellees was filed on November 4, 1987. Summary judgment was granted to appellees in the second suit, and this court affirmed the judgment. Moore v. Harris, 188 Ga. App. 251 (372 SE2d 654) (1988). Subsequently, appellees filed an action against appellants to recover attorney fees and expenses of litigation pursuant to OCGA § 9-15-14 (a). After a hearing before the trial court, a judgment was entered for appellees in the amount of $20,766.90. This *249 amount included certain fees and expenses incurred in the defense of the first suit as well as all the fees and expenses from the second suit. The award also included an amount representing the professional time expended by the appellees in the defense of the lawsuits. The appellees, although attorneys themselves, did engage separate lawyers to represent them and also relied on the attorneys for their malpractice insurer to handle many aspects of the case. The fees of these other attorneys were also included in the award. 1. We will first consider appellants' contention that the trial court erred in ruling that OCGA § 9-15-14 was applicable to appellants' conduct in the malpractice suits. Appellees based their motion for attorney fees on OCGA § 9-15-14 (a) which mandates an award to "any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position." "The standard of review for this section is the `any evidence' rule." Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4c) (360 SE2d 566) (1987). A review of the entire record in this case convinces us that David Harris ("Harris"), the appellee attorney involved in the purchase and sale transaction, clearly told appellants that he was representing only the other party to the transaction and was not representing appellants. Furthermore, the record also establishes that Harris had no reason to suspect that appellants would be relying upon him for tax advice or that his actions would facilitate appellants' decision not to seek independent legal advice. In fact, Harris questioned appellants about their representation to which they responded that they had a lawyer in Iowa. Additionally, the documentation signed by appellants contained clear and unambiguous language acknowledging that Harris was not acting as appellants' tax advisor and that appellants had not relied on any such advice from him. All these facts surrounding the interchange between appellants and appellees were contained in the discovery conducted in connection with the first suit which was in the possession of appellants at the time the second suit was filed. "[N]otwithstanding the 'any evidence' standard of review. . ., when considering an appeal from an award of attorney fees made under OCGA § 9-15-14 (a), we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law." Rolleston v. Huie, 198 Ga. App. 49, 53 (400 SE2d 349) (1990) (Sognier, J., concurring specially). Despite appellants' reliance on the voluntary agency theory of liability, we conclude that there was no factual or legal basis on which to bring the legal malpractice suit. The facts known to appellants prior to bringing the second lawsuit showed that there was neither an attorney-client relationship nor *250 a voluntary agency at work. "[W]hile we have no reason to doubt that [appellants' counsel's] pursuance of the [malpractice] action [was] characterized by good faith in a subjective sense, we are left at the end with nothing which could be said to establish as a matter of law a reasonable or substantial justification for [appellants'] claims." Ferguson v. City of Doraville, 186 Ga. App. 430, 437 (2) (c) (367 SE2d 551) (1988), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, n. 8 (376 SE2d 861) (1989). "Because there was no basis for the action against [appellees], and because the appellant[s] could have made this determination with a minimum amount of diligence," we affirm the trial court's decision that OCGA § 9-15-14 (a) warranted an attorney fee award. Stancil v. Gwinnett County, 259 Ga. 507, 509 (1) (384 SE2d 666) (1989). Appellants' enumeration is without merit. 2. Appellants assert that the trial court erred in including in the award attorney fees and expenses relating to the first suit which was filed prior to the effective date of OCGA § 9-15-14. "The Act which promulgated OCGA § 19-15-14 . . . provided that the section would apply `to actions filed or presented for filing on or after July 1, 1986.' [Cit.] In addition, it was also applicable to `any action pending on July 1, 1986, with respect to any claim, defense, or other position which is first raised in the action on or after July 1, 1986.' [Cit.]" Wilson v. Cotton States &c. Ins. Co., 183 Ga. App. 353, 356 (358 SE2d 874) (1987). Although the first suit was filed before July 1, 1986, when the second suit was filed all the parties stipulated that the depositions and written discovery materials from the first suit could be used in the second suit "as if such discovery was made in the [second suit]." Since the existing discovery was fully utilized in the second suit per the stipulation, the fees and expenses from the first suit relating to that discovery only were properly included in the award. Appellees submitted documentation verifying the portion of the fees in the first suit which were attributable to the discovery that was used in the second suit. We affirm that part of the award which includes these fees. 3. Appellants also raise as error the inclusion in the award of the appellee attorneys' professional time spent in the defense of the case. The attorneys were not counsel of record but instead they employed independent counsel to represent them and in addition utilized their malpractice insurer's attorneys. The attorneys argue that, because they are attorneys, their participation in their defense went beyond the roles of defendants because they assisted their defense in a legal capacity. Thus, they argue that they should be compensated for the hours of legal expertise they contributed. Appellants contend that appellees are in effect attempting to recover for their lost professional time — time that they could have used to bill other clients — and *251 therefore appellees are seeking an award of lost income. Although appellees are attorneys, they are in fact the defendants in this case. They did not appear as counsel of record but engaged independent attorneys to represent them. The documentation submitted to support their claim included, for example, the time spent by one of the appellees in giving his own deposition. This was time spent as a defendant, not as an attorney. After reviewing the record, we conclude that the personal time spent by the attorneys in their own defense is not a compensable component in an award of attorney fees. Consequently, we reverse this portion of the award and remand to the trial court to fashion a revised award in accordance with this opinion. Judgment affirmed in part; reversed and remanded in part. Birdsong, P. J., and Pope, J., concur.

869 F.2d 107 57 USLW 2516, RICO Bus.Disp.Guide 7151 Marilyn BENJAMIN, Administrator for the Estate of MarcBenjamin, and Gloria Downey, Individually and onbehalf of all others similarly situated,Plaintiffs-Appellants,v.TRAFFIC EXECUTIVE ASSOCIATION EASTERN RAILROADS, EasternRailroad Association, and Eastern Weighing andInspection Bureau, Defendants-Appellees. No. 389, Docket 88-7674. United States Court of Appeals,Second Circuit. Argued Oct. 31, 1988.Decided Feb. 21, 1989. 1 Kenneth A. Wexler, Chicago, Ill. (Michael J. Freed, Much Shelist Freed Denenberg Ament & Eiger, P.C., Chicago, Ill., Stanley Nemser, Wolf Popper Ross Wolf & Jones, New York City, of counsel), for plaintiffs-appellants. 2 G. Paul Moates, Washington, D.C. (Per A. Ramfjord, Sidley & Austin, Washington, D.C., of counsel), for defendants-appellees. 3 Before WINTER and MINER, Circuit Judges, and MUNSON, District Judge.* MUNSON, District Judge: 4 This case presents us with two issues. The first is whether a decision arising from a statutorily imposed arbitration proceeding can be the basis for collateral estoppel in a subsequent federal court proceeding. If that is permissible, then we must decide whether the use of collateral estoppel violates plaintiffs' seventh amendment right to a jury trial. BACKGROUND 5 At stake in the litigation before us are severance benefits. Plaintiffs are former non-union employees of the defendant Eastern Weighing and Inspection Bureau ("EWIB"). The other defendants in this action are the Traffic Executive Association Eastern Railroads ("TEA-ER") and the Eastern Railroad Association ("ERA"). The relationship among the three defendants is unclear. On the one hand, plaintiffs state that the TEA-ER operated as part of and for the ERA and that the EWIB fell under the TEA-ER. Defendants, on the other hand, state that the TEA-ER and ERA are parent and sister organizations of the EWIB. However, they do not specify which is the parent and which is the sister. 6 Plaintiffs lost their jobs when one of the defendants--according to plaintiffs it was the TEA-ER, while defendants identify the ERA--eliminated the EWIB. As a result, plaintiffs started this class action claiming entitlement to benefits under Sec. 219(g) of the Staggers Rail Act of 1980 ("Staggers Act").1 49 U.S.C. Sec. 10706 note; Pub.L. No. 96-448, 94 Stat. 1895, 1928. The Sec. 219(g) benefits (also referred to as "New York Dock conditions")2 would be vastly more remunerative than the severance payments offered the plaintiffs.3 The complaint contained four counts. Count I was the Staggers Act claim; Counts II through IV alleged fraud, breach of fiduciary duty, and violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1961 et seq. 7 Following commencement of this action, defendants moved to compel arbitration on the Staggers Act claim. The employees agreed to submit that count to binding arbitration on a classwide basis. Both parties set up informal procedural rules to govern the arbitration proceeding. They agreed to presentation of oral or written testimony, to extensive briefing and did, in fact, engage in informal discovery. At the hearing the plaintiffs cross-examined the defendants' witnesses who testified orally, and could have, if they had chosen, called in and cross-examined those witnesses who submitted their testimony on paper. The agreement acknowledged that plaintiffs would not waive their right to have the district court decide Counts II through IV. 8 The arbitration board ruled two to one that the plaintiffs were not entitled to Staggers Act benefits. To qualify for the Staggers Act entitlement the plaintiffs would have had to be "employees of [a] rate bureau." 49 U.S.C. Sec. 10706 note. Central to the decision, and this appeal, was the arbitration board's express finding that the plaintiffs were not rate bureau employees. 9 The court below affirmed the arbitrator's decision. 688 F.Supp. 903 (S.D.N.Y.1988).4 It denied the plaintiffs' motion for a trial de novo on Count I. Then the court utilized the doctrine of collateral estoppel to grant summary judgment in favor of the defendants on Counts II through IV. The district court held--and neither party disputes--that the only way plaintiffs could prevail on Counts II through IV would be to prove that they were rate bureau employees as defined by the Staggers Act. The court below reasoned that since it endorsed the arbitration decision which determined plaintiffs were not rate bureau employees, it was estopped from deciding whether the plaintiffs' status, for the purposes of Counts II-IV, was that of rate bureau employees. 10 On appeal, plaintiffs do not challenge the district court's refusal to grant a trial de novo on Count I. They do challenge the decision to grant summary judgment in favor of the defendants on Counts II through IV. DISCUSSION 11 I. Collateral estoppel. 12 We must first consider whether collateral estoppel is applicable to the finding made in the arbitration decision. Although they have different positions on when collateral estoppel is applicable, both sides recognize that the findings of arbitration boards can serve as the basis for collateral estoppel in a federal court proceeding. 13 Plaintiffs argue that because the evidentiary standards for the arbitration proceeding were not as strict as they would be under the Federal Rules of Evidence, the issue decided by the arbitration board should not have preclusive effect on the counts to be decided by a federal court. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 n. 15, 99 S.Ct. 645, 651 n. 15, 58 L.Ed.2d 552 (1979) ("differences in available procedures may sometimes justify not allowing a prior judgment to have estoppel effect in a subsequent action even between the same parties"). We do not agree with plaintiffs' position. The parties' agreement to arbitrate outlined procedures to be followed. There is no indication that plaintiff sought to include any evidentiary standard or procedure which defendants refused to accept. More importantly, plaintiffs have not shown how the procedures were improper to the extent that the arbitration board could not make a reasoned decision; nor have they shown they were unfairly prejudiced by the procedures used.5 See SCAC Transport (USA) Inc. v. S.S. "Danaos", 845 F.2d 1157, 1163 (2d Cir.1988); compare Parklane Hosiery Co., 439 U.S. at 331 n. 15, 99 S.Ct. at 651 n. 15 ("If, for example, the defendant in the first action was forced to defend in an inconvenient forum and therefore was unable to engage in full scale discovery or call witnesses, application of offensive collateral estoppel may be unwarranted."). In short, plaintiffs had a full and fair opportunity to litigate the issue before the arbitration board. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Found., 402 U.S. 313, 328, 91 S.Ct. 1434, 1442, 28 L.Ed.2d 788 (1971). 14 The policies behind collateral estoppel counsel for its use in this instance. As the Supreme Court has observed, "[t]o preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979). If the district court had not granted defendants' summary judgment motion, it would have left open the possibility for a result where the employees were not rate bureau employees under Count I, but were rate bureau employees under Counts II through IV. Such a conflict would be confusing and irreconcilable. Additionally, given plaintiffs' full and fair opportunity to litigate the issue of whether they were rate bureau employees, we feel that, for reasons of conserving resources and fostering finality, it was proper to apply collateral estoppel to avoid relitigation of the arbitration board's finding. See Blonder-Tongue Laboratories, Inc., 402 U.S. at 328, 91 S.Ct. at 1442. In sum, we conclude that the district court properly applied collateral estoppel when it granted summary judgment for the defendants on Counts II through IV. 15 Our conclusion is not swayed by our recent decision that arbitration proceedings were not res judicata over a fired employee's action brought under 42 U.S.C. Sec. 1983. Coppinger v. Metro-North Commuter R.R., 861 F.2d 33 (2d Cir.1988). The plaintiff, Ronald Coppinger, was a former employee of Metro-North Commuter Railroad ("Metro-North"). He was fired after urinalysis confirmed the presence of illegal substances in his body. Coppinger sought to have his dismissal vacated and, pursuant to the Railway Labor Act ("RLA"), 45 U.S.C. Sec. 151 et seq., he submitted his case to compulsory and binding arbitration. The arbitration board upheld Coppinger's dismissal. 16 Subsequently, Coppinger filed a civil rights action in the Southern District of New York under 42 U.S.C. Sec. 1983. In his complaint Coppinger alleged, among other things, that Metro-North infringed on his fourth amendment rights. The district court in that case dismissed his Sec. 1983 claim holding that it lacked jurisdiction because Coppinger's claims fell within the arbitration board's exclusive and primary jurisdiction. 17 We reversed the district court insofar as it had held that it did not have jurisdiction to hear Coppinger's complaint. As an initial matter, we held that Coppinger had made out a colorable fourth amendment claim. Next, we concluded that the district court did have jurisdiction over the Sec. 1983 claim. Then, with language which might appear to conflict with this opinion, we held that proceedings before the arbitration board were not res judicata over plaintiff's Sec. 1983 claim.6 18 Our primary holding in Coppinger was that the district court had jurisdiction over the Sec. 1983 claim. In the case at bar the parties have taken for granted that the district court had jurisdiction over Counts II, III and IV. Thus, in both cases the arbitration proceedings do not deprive the district courts of jurisdiction over related claims in which arbitration was not mandated. See Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987) (arbitration of a grievance pursuant to the RLA does not deprive district court of jurisdiction over a related personal injury claim brought under the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq.). 19 Nonetheless, in Coppinger we refused to give an arbitration decision preclusive effect and today we grant preclusive effect to an arbitration decision. An explanation for the different results lies in the different nature of the preclusion sought in each case. In Coppinger the defendant sought to use the arbitration decision as res judicata. "Under res judicata, a final judgment on the merits bars further claims by parties or their privies from relitigating issues that were or could have been raised in that action." Kremer v. Chemical Construction Corp., 456 U.S. 461, 466-67 n. 6, 102 S.Ct. 1883, 1889-90 n. 6, 72 L.Ed.2d 262 (1982). In contrast, our decision today invokes collateral estoppel. "Under collateral estoppel, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue on a different cause of action between the same parties." Id. It follows that, "[a]s compared to claim preclusion, the rules of issue preclusion do not purport to prohibit litigation of matters that never have been argued or decided." 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 4416, at 136 (1981). 20 Because of the difference between collateral estoppel and res judicata, invoking collateral estoppel in a given case may be permissible when invoking res judicata is not. Thus, the Seventh Circuit has held in the prisoners' rights context that, while res judicata does not apply to an individual class member's claims brought subsequent to a class action, collateral estoppel does apply. Crowder v. Lash, 687 F.2d 996, 1007-11 (7th Cir.1982). Courts will apply collateral estoppel and not res judicata because the values of avoiding embarrassing inconsistencies and avoiding burdening a court and an adversary with repetitious litigation are "served more directly by issue preclusion than by claim preclusion." 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 4416, at 139 (1981). Therefore, we do not think it at all unusual in one case to grant an arbitral finding collateral estoppel effect, and in another to deny an arbitral decision res judicata effect. 21 In part the decision arrived at in Coppinger stemmed from a hesitancy to permit arbitration to preclude from the district court's consideration matters never argued or decided. See Coppinger, 861 F.2d at 36-37. This was one of the considerations which guided the Supreme Court's decision to refuse to grant an arbitration decision preclusive effect over a Title VII claim. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). The Court reasoned that the statutory right was independent of the contractual right resolved in arbitration. Id. at 52, 94 S.Ct. at 1021. To have granted the arbitration decision res judicata effect would have taken a determination regarding one right and improperly allowed that to dictate the determination regarding another right. Likewise, if we had invoked res judicata in Coppinger, we would have taken the finding that Coppinger was not improperly discharged and from that concluded that he had not presented any valid constitutional claims. We refused to proceed in that manner and preclude claims never argued or decided. In the case at bar, however, the preclusion extended covers only an issue which the arbitration board decided, namely, that plaintiffs were not rate bureau employees. 22 Other considerations guided our decision in Coppinger. In our assessment the arbitrators there lacked the authority, lacked the competence and failed to provide the protective procedures necessary to fairly adjudicate a Sec. 1983 lawsuit. First, with regard to the arbitrators' authority, under the RLA their primary concerns were contractual, rather than constitutional or statutory, rights. Coppinger, 861 F.2d at 38-39; compare Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1361 (11th Cir.1985) (arbitration board properly considered and determined allegations based in state law and contractual rights). Furthermore, the relief they could provide was limited to back pay and reinstatement. Coppinger 861 F.2d at 39. Hence we were unwilling to permit the district court to extend the board's determination to cover, as though raised in the dispute before the board, rights over which the board could not grant relief. In the case at bar the district court did not, in like manner, stretch out of proportion the power of the arbitrators. It granted collateral estoppel effect to a finding which was within the arbitration board's purview. 23 Second, in Coppinger we also questioned the competence of arbitrators to determine legal and factual issues raised under the fourth amendment and under Sec. 1983. In contradistinction, competence of arbitrators is not at issue in the case at bar. Plaintiffs do not question the expertise nor the competence of the arbitrators who determined that plaintiffs are not rate bureau employees.7 24 Third, we perceived in Coppinger that arbitral procedures did not protect constitutional guarantees as adequately as federal court procedures.8 We noted that "arbitral fact-finding is not the equivalent of judicial fact-finding." Coppinger, at 39, and cited examples, e.g., lack of jury trial in arbitration, limited judicial review, etc. Nonetheless, we are of the opinion that collateral estoppel is properly applicable in the situation before us. 25 The issue on which the arbitration board found against plaintiffs was not a constitutional issue. In Coppinger, though, we were particularly concerned that "where suits are tried" is important when the "rights sought to be vindicated ... entail the interpretation and application of both the New York and Federal Constitution." Coppinger, 861 F.2d at 39. Today we do not grant preclusive effect to an arbitral decision which interpreted and applied constitutional rights; instead we grant preclusive effect to a decision which, pursuant to a Congressional mandate, applied federal statutory law. Moreover, the nature of the issue decided by the arbitration board--whether or not plaintiffs were rate bureau employees--is much more akin to the law of the shop than is the question of whether an individual's fourth amendment right against unreasonable search and seizure has been violated. Cf. Coppinger, 861 F.2d at 38 (citing Alexander, 415 U.S. at 57, 94 S.Ct. at 1024). 26 We also believe that the procedures utilized by the arbitration board in the case at bar compare favorably when contrasted with the shortcomings of arbitral procedures listed in Coppinger. Even though the parties in this case did not follow the Federal Rules of Evidence or Civil Procedure, they did agree, as indicated above, to the procedures which would be followed in the arbitration proceedings. Moreover, the record nowhere indicates that plaintiffs sought a particular procedure and were denied it. While cross-examination may be limited in arbitral proceedings, witnesses who testified before the board either orally or on paper could have been cross-examined by the adversarial parties, if the parties had chosen. Contrary to another of the shortcomings catalogued in Coppinger, the arbitration decision at issue here was presented in a reasoned, detailed opinion. See SCAC Transport, 845 F.2d at 1163. Finally--and we address this in much greater detail later, if we were to carry to its full extent the admonition in Coppinger that arbitration proceedings do not carry a right to a jury trial, we would find ourselves in conflict with the Supreme Court's Parklane decision which held that a jury trial in a prior proceeding is not a prerequisite to granting the prior proceeding preclusive effect over a subsequent proceeding to which a jury trial right attaches. 439 U.S. at 333-35, 99 S.Ct. at 652-54. 27 In Coppinger we took our cue from the Supreme Court which, on account of the procedures used in arbitration, has been reluctant to grant arbitration findings preclusive effect over certain federal statutory and constitutional rights. See, e.g., McDonald v. West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984) (arbitration decision does not have preclusive effect over a Sec. 1983 claim); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (arbitration decision does not have preclusive effect over a Title VII claim). Despite its hesitancy, the Supreme Court expressly has not foreclosed federal courts from granting preclusive effect to arbitration decisions. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 223, 105 S.Ct. 1238, 1243, 84 L.Ed.2d 158 (1985). In making our determination we are to "take into account the federal interests warranting protection." Id.9 28 The Eleventh Circuit has considered those federal interests and has held that arbitration findings may be given collateral estoppel effect over issues in a RICO claim. Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352 (11th Cir.1985). In Greenblatt, contrary to the case at bar, the report of the arbitration board contained no specific factual findings. See id. at 1361. Despite this absence, the court inferred from the arbitration decision factual findings upon which decision must have been predicated. With these inferences made, the court did not "think it improper to grant collateral estoppel effect to an arbitration panel's factual findings regarding [the] underlying acts" upon which the RICO claim was based, provided the arbitrators' findings were within their authority and expertise. Id. We feel a similar conclusion is appropriate in the case at bar. As noted, underlying each of Counts II through IV is the contention that plaintiffs were rate bureau employees. Since there is no question regarding the arbitrators' authority and since none has been raised regarding their expertise, we likewise do not think it improper to grant collateral estoppel effect to the arbitrators' factual finding on an issue which underlies Counts II through IV. 29 While we reembrace the holding of the Coppinger case, we do not believe that the result reached there should govern every case where a court is asked to grant preclusive effect to an arbitration decision. To permit the Coppinger result to dictate the result today would require us to overlook the fundamental distinction which divides res judicata from collateral estoppel. 30 II. Seventh Amendment. 31 Plaintiffs attack the use of collateral estoppel, arguing that it impinges on their seventh amendment right to a jury trial.10 We do not agree. "[P]reclusion may not be defeated simply by showing that there was no right to trial by jury in the first action and that there is a constitutional right to trial by jury in the second action, no matter what anguish that may cause to those who believe in juries." 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 4465, at 600 (1981). The Supreme Court has recognized that there is no seventh amendment violation when a party loses the chance for a jury trial because the trial court invokes collateral estoppel based on conclusions made in a non-jury, equity proceeding. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Furthermore, this court has previously granted preclusive effect to findings made by arbitration boards. See, e.g., American Renaissance Lines, Inc. v. Saxis Steamship Co., 502 F.2d 674, 678-79 (2d Cir.1974) (charter agreement provided for arbitration of disputes; arbitrators' finding of liability is binding on the parties and the court); Ritchie v. Landau, 475 F.2d 151 (2d Cir.1973) (arbitration pursuant to an employment contract; collateral estoppel is given to the arbitrators' finding that plaintiff was owed a bonus of $200,000). 32 But plaintiffs counter that the cases which base collateral estoppel on arbitration proceedings have been cases where the arbitration was contracted for and not mandated by statute. The Staggers Act itself requires that plaintiffs' claim under that Act be subject to compulsory arbitration. See Walsh v. United States, 723 F.2d at 574 ("the ICC intended ... mandatory arbitration"); New York Dock Ry. v. United States, 609 F.2d at 87-89. Since plaintiffs did not agree in a contract to arbitrate their Staggers Act claim, they argue that they did not waive their seventh amendment right to a jury trial, and consequently, that the district court should not have used the arbitration decision as a basis for collateral estoppel.11 33 Despite the fact that plaintiffs did not contractually waive any right to a jury trial on Counts II through IV, seventh amendment strictures do not apply to those counts. As an initial matter, we note that plaintiffs only have a right to jury trial over issues presented in actions having the nature of suits at common law. See Curtis v. Loether, 415 U.S. 189, 194-95, 94 S.Ct. 1005, 1008-09, 39 L.Ed.2d 260 (1974); see also Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470-73, 82 S.Ct. 894, 896-97, 8 L.Ed.2d 44 (1962). In determining whether a jury trial right attaches to their claims, we must consider "the nature of the issue to be tried rather than the character of the overall action." Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970). While equitable claims escape seventh amendment coverage, Counts II through IV cannot escape the seventh amendment on that basis because they do not present issues equitable in nature. Cf. Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970) (shareholder derivative action is subject to seventh amendment strictures). Yet that does not end the inquiry. The court must also consider whether the issue to be tried is part of a "statutory proceeding" which is "not a suit at common law or in the nature of such a suit" or whether it "involves rights and remedies of the sort typically enforced in an action at law." Curtis v. Loether, 415 U.S. at 194-95, 94 S.Ct. at 1008-09 (plaintiffs have a jury trial right in an action brought to redress violations of the fair housing provisions of the Civil Rights Act of 1968). If the former description fits the issue to be tried, then no seventh amendment right to trial by jury attaches to that issue. Id.; NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1, 48, 57 S.Ct. 615, 629, 81 L.Ed. 893 (1937) (NLRB's award of backpay in an unfair labor practice proceeding is not subject to seventh amendment strictures). 34 The issue of whether plaintiffs were rate bureau employees must be determined in a statutory proceeding which is not in the nature of a suit at common law. When Congress created Sec. 219(g) of the Staggers Act, it "create[d] a new cause of action and remedies unknown to the common law" and "vest[ed] factfinding in a tribunal other than a jury...." Textile Workers Pension Fund v. Standard Dye & Finishing Co., Inc., 725 F.2d 843, 855 (2d Cir.), cert. denied, 467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 856 (1984). In Textile Workers this court concluded that the initial decision by pension fund trustees of employers' withdrawal liabilities under the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA") did not violate the seventh amendment. Just as with the MPPAA, Congress in Sec. 219(g) of the Staggers Act designated "the use of a special tribunal," id. at 855, in this case an arbitration board. And as with the MPPAA, Congress set up "detailed procedures," when it designated the New York Dock conditions as applicable to fired rate bureau employees. See id. Those conditions include a 90 day advance notice requirement, the requirement of an implementation agreement, a binding arbitration requirement, a six year protective period, and an express allocation of the burden of proof. See New York Dock Ry. v. United States, 609 F.2d 83, 94-95 (2d Cir.1979). As a result of the nature of the Sec. 219(g) entitlement, the inquiry of whether plaintiffs are rate bureau employees is "free from the strictures of the Seventh Amendment." Textile Workers, 725 F.2d at 855. In other words, the Sec. 219(g) entitlement goes part and parcel with the arbitration proceeding which determines whether or not there is a Sec. 219(g) entitlement. 35 In sum, plaintiffs only have a right to a jury trial over issues presented in actions having the nature of suits at common law. Since whether they were rate bureau employees is not, within the context of the seventh amendment, such an issue, plaintiffs have no jury trial right on that question. Therefore, plaintiffs are not entitled to attack on seventh amendment grounds the preclusive effect which the district court gave to the arbitration board's finding that plaintiffs were not rate bureau employees. The seventh amendment does not command this court to dilute the Congressional directive found in Sec. 219(g) of the Staggers Act by permitting relitigation as to whether plaintiffs were rate bureau employees. 36 For the foregoing reasons, the judgment of the district court is affirmed. * The Honorable Howard G. Munson, United States District Judge for the Northern District of New York, sitting by designation 1 "The Interstate Commerce Commission shall require rail carrier members of a rate bureau to provide the employees of such rate bureau who are affected by the amendments made by this section with fair arrangements no less protective of the interests of such employees than those established pursuant to section 11347 of Title 49, United States Code. For purposes of this subsection, the term 'employees' does not include any individual serving as president, vice-president, secretary, treasurer, comptroller, counsel, member of the board of directors, or any other person performing such functions." 49 U.S.C. Sec. 10706 note 2 Section 219(g) of the Staggers Act provides arrangements for rate bureau employees "no less protective ... than those established pursuant to section 11347 of Title 49, United States Code...." Section 11347 is the recodification of 49 U.S.C. Sec. 5(2)(f). Prior to the recodification, Congress passed the Railroad Revitalization and Regulatory Reform Act of 1976, Sec. 402(a) of which amended Sec. 5(2)(f). Pub.L. No. 94-210, 90 Stat. 31, 62. Pursuant to that amendment the Interstate Commerce Commission ("ICC") adopted protective arrangements which were more beneficial to the employees than were the previous protective provisions. That more recent set of labor protective provisions are referred to as the "New York Dock conditions." In New York Dock Ry. v. United States, 609 F.2d 83 (2d Cir.1979), this court affirmed the ICC decision which issued those provisions 3 In return for accepting the severance payment, each employee had to waive all claims against defendants 4 The district court's scope of review of the arbitration decision was narrow. Plaintiffs could only attack the arbitration decision on the basis of fraud, corruption, exceeding the scope of the arbitrator's jurisdiction, or not complying with the provisions of the Railway Labor Act, which provides the standard of review which courts are to use when reviewing arbitrators' decisions on Staggers Act claims. See Walsh v. United States, 723 F.2d 570, 574 (7th Cir.1983). Plaintiffs chose not to challenge the decision along the lines permissible 5 At oral argument counsel for plaintiffs stated that the plaintiffs were prejudiced by the flexible procedures before the arbitration board. Counsel stated that he could not get documents and could not get depositions. Plaintiffs do not point to any place in the record which demonstrates that they ever requested and were denied documents or depositions. Moreover, under Fed.R.Civ.P. 56(f), plaintiffs could have sought an opportunity for further discovery when the District Court was considering defendants' motion for summary judgment. Plaintiffs do not deny that they did not seek discovery on the summary judgment motion 6 In Coppinger we addressed the res judicata issue because Metro-North argued that the plaintiff "was afforded a full and fair opportunity to raise his Fourth Amendment claims before the Board and that the district court's jurisdictional ruling [did] not therefore deprive him of due process of law." Coppinger, 861 F.2d at 38 7 We do not consider whether a party may properly challenge an arbitration board's competence to determine matters over which it presides pursuant to statutory mandate and not pursuant to contractual agreement 8 Cf. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). "Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of 'actual malice.' " Id. at 511, 104 S.Ct. at 1965; see Note, De Novo Judicial Review of Administrative Agency Factual Determinations Implicating Constitutional Rights, 88 Col.L.Rev. 1483 (1988) 9 Of course, an arbitration decision may not be given preclusive effect over a statutory right if Congress intended the right to be immune from preclusion. Romano v. Thunder Projects, Inc., 696 F.Supp. 831, 834 (N.D.N.Y.1988); Spielmann v. Anchor Motor Freight, Inc., 551 F.Supp. 817, 820-21 (S.D.N.Y.1982) (arbitration decision not to be given preclusive effect if, in representing the grievant, a union did not fulfill its statutory duty of fair representation). However, plaintiffs cannot prevail on any such argument. The one statutory claim before this court is the RICO count. The Supreme Court has expressly held that RICO claims are arbitrable. Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 2343-45, 96 L.Ed.2d 185 (1987). Therefore, we detect no statutory barrier to granting an arbitral finding preclusive effect over an issue presented in a RICO claim. Greenblatt v. Drexel Burnham Lambert, Inc., 763 F.2d 1352, 1361 (11th Cir.1985) 10 The seventh amendment to the United States Constitution states in pertinent part that "[i]n suits at common law ... the right of trial by jury shall be preserved." 11 In response to plaintiffs' argument, we note that waiver is not the only ground upon which a party may be deprived of a jury trial in a court action which gives preclusive effect to a finding made in a non-jury proceeding. Waiver was not the basis of the Supreme Court's opinion in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). In Parklane the Securities and Exchange Commission sought an injunction against certain officers, directors and shareholders of Parklane Hosiery Co. The district court granted the injunction finding that the proxy material at issue was materially false and misleading. The Supreme Court held that the district court's finding precluded relitigation of the same issue in subsequent litigation. As a result, in a separate shareholder derivative action summary judgment against the same defendants was appropriate on those issues Nor can we agree with an implication in plaintiffs' argument, namely, that they have not had their day in court on Counts II through IV. Plaintiffs' claims under those counts were ruled against, not in the arbitration proceeding, but by the district court pursuant to a motion for summary judgment. Plaintiffs cannot attack summary judgment decisions as inimicable to the seventh amendment. Itel Capital Corp. v. Cups Coal Co., Inc., 707 F.2d 1253, 1261 (11th Cir.1983) ("where no issue of fact remains, summary judgment decides only questions of law and does not deprive the losing party of its jury trial right").

103 F.3d 149 Motesv.U.S.* NO. 96-8044 United States Court of Appeals,Eleventh Circuit. Nov 26, 1996 1 Appeal From: M.D.Ga., No. 95-00104-7-CV-WDO 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

NO. 07-08-0517-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C JULY 30, 2009 ______________________________ TYRONE COLEMAN, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE COUNTY COURT OF HALE COUNTY; NO. 2008C-743; HONORABLE DWAIN DODSON, JUDGE _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Following a plea of not guilty, Appellant, Tyrone Coleman, was convicted by a jury of assault, a Class A misdemeanor. Punishment was assessed by the trial court at one year confinement in the county jail and a $4000 fine. In presenting this appeal, counsel has filed an Anders1 brief in support of a motion to withdraw. We grant counsel’s motion and affirm. In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738, 744- 45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has demonstrated that he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and (3) informing him of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408.2 By letter, this Court granted Appellant thirty days in which to exercise his right to file a response to counsel’s brief, should he be so inclined. Id. at 409 n.23. Appellant did not file a response. Neither did the State favor us with a brief. 1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 2 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, at 408 n.22 & at 411 n.35. 2  Counsel does, however, present five arguable issues, to-wit: (1) the trial court erred in overruling Appellant’s motion for instructed verdict, (2) and (3) whether the evidence is legally and factually sufficient to support Appellant’s conviction, (4) the trial court erred in failing to conduct a punishment hearing prior to announcing its decision, and (5) Appellant was denied his right to effective assistance of trial counsel. However, counsel concludes that under the controlling authorities, the arguments are without merit and the trial court’s judgment should be affirmed. Arguable Issues 1, 2, and 3 Appellant was charged by information of misdemeanor assault. Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2008). The State was required to prove that Appellant intentionally, knowingly, or recklessly caused bodily injury to the victim, Tony Waters. A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex. Penal Code Ann. § 6.03(c). Appellant and the victim gave conflicting versions of the events leading to the victim’s injury. However, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). The jury chose to believe the victim’s version and disbelieve that Appellant was defending himself. We agree with counsel that the evidence is sufficient to support Appellant’s conviction. 3  Arguable Issue 4 Article 37.07, section 3 of the Texas Code of Criminal Procedure requires a separate hearing on punishment in which the State or the defendant may offer evidence. Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (Vernon Supp. 2008). After the verdict was returned, the trial court announced that the punishment phase would begin the following morning at 9:00 a.m. Defense counsel asked to approach the bench and a brief discussion was had off the record. The court then announced: [w]e had a little discussion, and the defendant has changed his mind and is allowing me to do the punishment phase, so you won’t have to come back in the morning. Thereafter, sentence was pronounced in open court. No objections were made. Although the trial court afforded Appellant the opportunity to have a separate punishment hearing, after the bench discussion, no evidence was presented before the trial court pronounced sentence. Error, if any, in the trial court’s failure to conduct a punishment hearing and hear evidence is waived without an objection. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App. 1999). We agree with counsel’s analysis of this issue. Arguable Issue 5 Appellant filed a pro se Motion for New Trial raising, among other claims, numerous allegations of ineffective assistance of counsel. A hearing was held on Appellant’s motion. Appellant was the only witness in support of his claims of ineffective assistance of counsel. 4 His complaints require us to speculate on defense counsel’s trial strategy, which we may not do. Rios v. State, 990 S.W.2d 382, 386 (Tex.App.–Amarillo 1999, no pet.). Reviewing trial counsel’s performance under both prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),3 we conclude that neither the trial on the merits nor the hearing on Appellant’s motion for new trial demonstrate that counsel was ineffective. We too have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record and counsel’s brief, we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). Conclusion Counsel’s motion to withdraw is granted. Additionally, we note the judgment incorrectly reflects that section 12.44(b) of the Texas Penal Code was applied, which authorizes the State to prosecute a state jail felony as a Class A misdemeanor. Because the information reflects that Appellant was charged with, and tried for, a Class A 3 First, counsel’s performance was deficient (i.e., fell below an objective standard of reasonableness), and second, there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. 5 misdemeanor, we delete that portion of the judgment reflecting “sec 12.44(b) PC” and as reformed, the trial court’s judgment is affirmed. Patrick A. Pirtle Justice Do not publish. 6 

268 F.Supp. 83 (1967) William ETHRIDGE et al., Plaintiffs, v. James A. RHODES, Governor et al., Defendants. Civ. A. 67-53. United States District Court S. D. Ohio, E. D. May 17, 1967. *84 William J. Davis, Columbus, Ohio, Lewis Steel, New York City, for plaintiffs. Robert Owen, Asst. Atty. Gen., Washington, D. C., Robert M. Draper, U. S. Atty., Columbus, Ohio, for John Gardner, Secretary, U. S. Dept. of Health, Education and Welfare. William Hoiles, Lawrence Braun, Asst. Attys. Gen., Columbus, Ohio, for James A. Rhodes, Governor of Ohio, Alfred Gienow, Director, Ohio Dept. of Public Works, and John D. Herbert, Treasurer of Ohio. OPINION AND ORDER KINNEARY, District Judge. This is a class action for declaratory and injunctive relief brought by plaintiffs, William Ethridge and Jerome Welch, on their behalf, and on behalf of all others similarly situated, against defendants, James A. Rhodes, Governor of the State of Ohio, Alfred Gienow, Director of the Ohio Department of Public Works, and John D. Herbert, Treasurer of the State of Ohio. The jurisdiction of this action is asserted under the Fourteenth Amendment to the Constitution of the United States, Title 28, United States Code, Sections 1331, 1343(3) and 2201, and Title 42, United States Code, Sections 1981 and 1983. The Amended Complaint alleges that defendants, as duly elected and appointed officials of the State of Ohio, are about to enter into contracts for the construction of the Medical Basic Sciences Building on the campus of The Ohio State University, at Columbus. Plaintiffs *85 seek to enjoin the State of Ohio from entering into such contracts on the ground that such action will be a deprivation, under color of state law, of their privileges and immunities as citizens of the United States as secured to them by the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States and Title 42, United States Code, Sections 1981 and 1983. It is charged that this activity violates these provisions inasmuch as it represents a continuation of state participation in a pattern of discrimination against plaintiffs, and the class they represent, in access to job opportunities on construction projects financed by federal and state funds, solely on the basis of their race. The determination of the request for permanent injunctive and declaratory relief has been considered on plaintiffs' Complaint and Amended Complaint, plaintiffs' memorandum in support of the Court's jurisdiction, defendants' memoranda in support of their motions to dismiss, plaintiffs' memoranda in opposition to these motions, and the testimony elicited, exhibits introduced and oral argument presented by counsel for the respective parties at the hearing on plaintiffs' motion for a preliminary injunction held in open court on March 20, 1967, and the final hearing on the merits of the case held in open court on May 1, 1967. Plaintiff, William Ethridge, has been employed for the past fourteen and one-half years as an aircraft electrician by North American Aviation, Inc., Columbus, Ohio. He has received instruction in electronics in both civilian and military schools, and his present employment involves the installation of electrical equipment and the reading of blueprints dealing with all phases of electrical work. Ethridge has also done some part-time work in the areas of commercial and residential wiring. This plaintiff has made repeated attempts to gain admission to Local 683, International Brotherhood of Electrical Workers. He has been unable to gain admission because the two union officials, whom he has been told he must contact, have been "out" each time he sought to contact them. He has been unable to acquire an application form for admission to this union because he has been told that the application form must be notarized by one of the union officials who were consistently unavailable. His attempts to secure employment directly with construction contractors have been met with the answer that they do all of their hiring through the union. Plaintiff, Jerome Welch, a college graduate, is presently employed as a high lift and bulldozer operator by Craig and Sons, Columbus, Ohio. He received instruction in heavy equipment operation and obtained a diploma in that field from the Interstate School, Muncie, Indiana. This plaintiff's attempts to gain admission to Local 18, International Union of Operating Engineers, has met with doubtful results. While he has been able to obtain a "work permit," contractors have told him that before he can be employed he must present a "book" to signify that he is a fully pledged member of the union. The union officials whom Welch has to see in order to gain full membership in the union have also been "out" on every occasion that he has attempted to contact them. Bids from contractors were received by the State of Ohio for the construction of the Medical Basic Sciences Building, and after review, contracts were sent to at least four contractors for their signatures. While these contracts have been signed and returned by the contractors and have not been signed by state officials, a declaration of intention to sign them has been made by state officials. At least one of the contractors who has signed such a contract refused to submit a "responsive bid," that is, one containing the following assurance in compliance with the antidiscrimination provisions of the defendant Governor's executive *86 order dealing with construction contracts: ASSURANCE The undersigned hiring source, in response to the Executive Order issued by Governor James A. Rhodes on June 15, 1966, as amended December 30, 1966, hereby gives its assurance to __________ as follows: (1) Admission to the full referral facilities of this hiring source, both as to apprentices and journeymen, is open on equal terms to all qualified persons without discrimination based on race, color, religion, national origin or ancestry. (2) (a) From July 1, 1966, through December 31, 1966, the apprenticeship program of this hiring source will select all qualified applicants for apprenticeship training without regard to race, color, religion, national origin or ancestry. (b) From January 1, 1967 through December 31, 1967, this hiring source will comply with each legally imposed requirement of clause (5) (b) of the Governor's Executive Order dated June 15, 1966, as amended December 30, 1966. (c) After January 1, 1968, this hiring source will comply with every legally imposed requirement of clause (5) (c) of the said Governor's Executive Order. Clause 5 of the Executive Order reads as follows: (5) He and his subcontractors have received assurance in writing (in the form appended hereto as Appendix B) from each hiring source, including labor unions (which assurance, where appropriate, was authorized by vote of its membership) that (a) Commencing July 1, 1966, and continuing through December 31, 1966, said hiring source's apprenticeship program will select all qualified applicants for apprenticeship training without regard to race, color, religion, national origin or ancestry. (b) Commencing January 1, 1967, and continuing through December 31, 1967, said hiring source will have in its apprentice group and refer for employment without discrimination, both whites and non-whites (including negroes) or in the alternative, said hiring source shall be deemed to have waived any right to be a recruitment source with respect to every twentieth employee hired and shall likewise be deemed to have consented that every twentieth employee of the craft referred by said hiring source, counting both apprentices and journeymen, may be recruited from another source for any employment derived from such bidder's bid, pledges and commitments, and report of assurances received. (c) After January 1, 1968, said hiring source will have in its apprentice and journeymen groups, and refer for employment without discrimination, both whites and non-whites (including negroes) or in the alternative, it shall be deemed to have waived its right to be a recruitment source for every fifteenth employee hired and shall likewise be deemed to have consented that every fifteenth employee of the craft referred by said hiring source, counting both apprentices and journeymen, may be recruited from another source for any employment derived from such bidder's bid, pledges and commitments, and report of assurances received. Upon discovering that no responsive bids were submitted in the category of heating, ventilating and air conditioning, defendant Gienow requested and received from defendant Rhodes a waiver of application of the assurances requirement to this contract. In order for plaintiffs to prevail in their contention that this Court has jurisdiction of this action under the Fourteenth Amendment, it is incumbent *87 on plaintiffs to prove that there is "state action" resulting in a denial of equal protection of the laws—that is, action which results in racial discrimination. The Fourteenth Amendment was aimed at state, rather than individual, abridgment of individual rights. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959 (4th Cir. 1963). Similarly, in order to prevail on the question of this Court's jurisdiction under Title 42, United States Code, Section 1983, plaintiffs must prove that defendants acted "under color of state law" to deprive a citizen of the United States of rights, privileges, or immunities secured by the Constitution and laws of the United States. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Defendants are aware that a number of unions have not referred Negroes for employment on the construction of other buildings erected by the State of Ohio on the campus of The Ohio State University. Defendants know to a certainty that many of the unions which will be used as labor sources by the proposed contractors on the Medical Basic Sciences Building project do not now have any Negro members. And the defendants also know that union officials responsible for admission to these unions have been persistently "out" or unavailable to Negroes who seek membership in such unions. Thus, the evidence presented establishes defendants' knowledge of a pattern of discrimination against Negroes, solely on the basis of their race, as to admission and referral by certain of the craft unions which will be used as labor sources for this project. There is, in addition, uncontroverted proof that no steps have been taken by the responsible union officials to correct such inequities. The testimony of J. Parker Garwick, president of Garwick and Ross, the low bidder on the general contract, indicates that his company plans to secure its labor force only through union referrals. Although certain unions which Garwick and Ross plans to use as hiring sources on this project have never before referred Negroes, the Garwick and Ross bid was unqualified—giving the assurance required by the executive order. Garwick and Ross plans to implement its assurance by making requests for Negro workers. If no Negroes are referred, this company intends to take no further steps to assure that its hiring source does not discriminate. Stephen E. Lance, Ohio State University Constructor and the person designated by the University as the person in charge of the equal employment program, aptly summed up the situation which will inevitably and automatically exist on this project under present plans,— that is, qualified Negroes in certain crafts will not be able to get jobs. Since the contractors will hire only through unions, and a majority of the craft unions do not have Negro members and will not refer non-member Negroes, the contractors will hire only non-Negroes in a majority of the crafts needed to work on this project. The Fourteenth Amendment proscription of racial discrimination does not extend to the acts of non-governmental persons such as union officials. Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). However, when a state has become a joint participant in a pattern of racially discriminatory conduct by placing itself in a position of interdependence with private individuals acting in such a manner—that is, the proposed contractors acting under contract with unions that bar Negroes— this constitutes a type of "state action" proscribed by the Fourteenth Amendment. Burton v. Wilmington Parking Authority, supra. Thus, as in the instant suit, where a state through its elected and appointed officials, undertakes to perform essential governmental functions—herein, the construction of facilities for public education—with the aid of private persons, it cannot avoid the responsibilities imposed on it by the Fourteenth Amendment by merely ignoring or failing to perform them. Ibid. *88 Plaintiffs have correctly asserted jurisdiction under § 1983. This statute is intended to allow redress against official representatives of the state who abuse their positions. It was enacted as a means for enforcing the provisions of the Fourteenth Amendment against those who act as officials of the State, whether they act in accordance with their authority or misuse it. Monroe v. Pape, supra. The officials of the State of Ohio, through the testimony of the defendant, Director of Public Works, have displayed a shocking lack of concern over the realities of this whole situation and the inevitable discrimination that will result from entering into and performing under the proposed contracts with the proposed contractors. This Director testified that non-discrimination is just another provision of the contract, and his best solution for correcting discrimination, if and when it occurs, is to invoke the sanctions of the performance bond. This solution is totally inadequate for the elimination of the pattern of discrimination that has been allowed to exist. Defendants' failure to assure qualified minority workers equal access to job opportunities on public construction projects by acquiescing in the discriminatory practices of contractors and craft unions clearly falls within the proscription of the Fourteenth Amendment, and a cause of action is stated under § 1983. In a venture, such as this one, where the state as a governmental entity becomes a joint participant with private persons, the restrictions of the Fourteenth Amendment apply not only to the actions of the state but also to the acts of its private partners—the contractors—and the state is bound to affirmatively insure compliance with the constitutional provisions. Burton v. Wilmington Parking Authority, supra. Since this section imposes civil liability, proof of a "specific intent to deprive a person of a federal right" is not required as under the criminal civil rights statutes. Monroe v. Pape, supra. We come next to the question of the procedural availability of the injunction remedy in this case. The plaintiffs are here seeking an extraordinary remedy. It must be established that the threatened injury is irreparable and that no other adequate remedy exists. Stated otherwise, it must be proved that plain, complete, practical and efficient means of effecting justice may be obtained only through the prompt administration of an injunction in equity. Local 499, IBEW v. Iowa Power & Light Co., 224 F.Supp. 731 (S.D.Iowa 1964). Defendants assert that the threatened injury is not irreparable and that an injunction is not the only adequate remedy because Title 42, United States Code, Section 2000e-1-15, and Ohio Rev.Code, ch. 4112, provide a remedy for the specific injury set out in the Complaint. It is alleged that through the commissions set up by these statutes and judicial enforcement of their orders, any person found to have been discriminated against could gain access to labor organizations and awarded a back pay differential for the pecuniary damages suffered through the discriminatory exclusions from work on the project. However, it is quite apparent from the evidence presented that the threatened injury is not fully reparable through the utilization of the procedures set out in both the federal and state statutes. Moreover, while the statutory provisions may serve to redress the pecuniary damage resulting from discrimination, they do not take a single step toward mending the psychological damage to both the party discriminated against and others in the class he represents. It is evident from the testimony of the several sociologists who appeared as witnesses in this case that discrimination in the area of employment stunts the educational and technical potential development of the class subject to such inequities. This Court is also mindful of the evidence submitted by experts in cases dealing with discrimination in other areas of life. Such evidence pointed out that segregation and discrimination not only denote inferiority of the class discriminated against, but also retard the development *89 of that class, and that in cases in which this type of activity receives the sanction of the government, the impact is even greater. See, e. g., Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180 (1954). Injuries of this kind are not subject to any sort of monetary valuation. Thus, the pecuniary awards allowed under the federal and state statutes provide no adequate remedy. Apart from the question of the reparability of discrimination by money damages, the Director of the Ohio State Civil Rights Commission testified that the Commission has been ineffectual in remedying discrimination in the craft unions. The Director further testified that even with the powers available to the Commission, the case by case approach which must be followed by that body results in too long a delay before any meaningful steps will be made toward eliminating discrimination. In view of the requirement that the state administrative remedy be sought before use of the federal administrative remedy, Title 42, United States Code, Section 2000e-5(b) (See Senate Discussion, June 4, 1964) the delay in administration is compounded. Thus, the federal administrative remedy also lacks any sort of speedy effectiveness. ORDER In accordance with and for the reasons stated in the foregoing Opinion, the Court determines that the named plaintiffs and all other persons similarly situated are threatened with and will suffer irreparable injury if the defendants are not restrained, enjoined and mandated in the particulars contained in the injunctive order made herein, and that they have no other adequate remedy. It is, therefore, ordered, adjudged and decreed that James A. Rhodes, as Governor of the State of Ohio, John D. Herbert, as Treasurer of the State of Ohio, and Alfred Gienow, as Director of Public Works of the State of Ohio, their successors in office, agents, representatives, and employees be and each of them is hereby restrained and enjoined from: (1) Entering into the contracts already submitted by defendants to, and on their parts executed by, the construction firms of Garwick and Ross, Huffman-Wolf, States Electric, Gesling Company, and others, for the construction of a building, designated as the Medical Basic Sciences Building, on the campus of The Ohio State University at Columbus, under the proposal and agreements which bind such contracting firms in their intended performance of the said contracts; (2) Entering into contracts for the construction of said Medical Basic Sciences Building with any persons who are bound by any agreement, or otherwise, to secure their labor force exclusively or primarily from any organization or source that does not supply or refer laborers and craftsmen without regard to race, color, or membership in a labor union; (3) Entering into contracts for the construction of the said Medical Basic Sciences Building with any persons who are bound by any agreement, or otherwise, with a labor organization, which requires, as a condition of employment, that employees hired by such persons become members of labor organization within a certain number of days after employment, and membership in such labor organizations is not equally available to all persons without regard to race or color. It is further ordered, adjudged and decreed that: (1) With respect to the construction of the said Medical Basic Sciences Building, James A. Rhodes, as Governor of the State of Ohio, John D. Herbert, as Treasurer of the State of Ohio, and Alfred Gienow, as Director of Public *90 Works of the State of Ohio, their successors in office, agents, representatives, and employees may enter into contracts only with persons who will obligate themselves and be legally eligible and prepared actually to secure a labor force only from sources that will reasonably insure equal job opportunities to all qualified persons, including journeymen and apprentice craftsmen and laborers, without regard to race, color, or membership or non-membership in a labor union. (2) Jurisdiction of all matters related to, connected with, and which may arise out of this Opinion and Order be, and they are hereby, specifically retained by this Court.

Court of Appeals of the State of Georgia ATLANTA, April 18, 2019 The Court of Appeals hereby passes the following order A19D0402. ANITRA FREEMAN v. JEFFREY HENDERSON . Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby DENIED. LC NUMBERS: 2019CV315527 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, April 18, 2019. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-1705 JOSETTE M. MILLS, Plaintiff - Appellant, versus HECTOR BARRETO, Administrator; U.S. SMALL BUSINESS ADMINISTRATION; CHARLES GASTON; BETTY VERSER; JIMMIE ANDERSON; THOMAS TOLAN, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CA-03-735) Submitted: February 28, 2005 Decided: March 17, 2005 Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Belva D. Newsome, Washington, D.C., for Appellant. Paul J. McNulty, United States Attorney, Robert P. McIntosh, Assistant United States Attorney, Richmond, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Josette M. Mills appeals the district court’s orders granting summary judgment to Defendants in this action arising under the Rehabilitation Act and denying Mills’ motion for reconsideration. We have reviewed the record and briefs and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Mills v. Barreto, No. CA-03-735 (E.D. Va. Mar. 8, 2004, and Apr. 6, 2004). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 2 - 

477 F.2d 596 Matthewsv.Drew Chemical Corporation 72-1838 UNITED STATES COURT OF APPEALS Fifth Circuit April 24, 1973 M.D.Fla., 475 F.2d 146

UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk October 10, 1997 TO: All recipients of the captioned opinion RE: 96-8121, USA v. Duran & 96-8123, USA v. Monroe October 7, 1997 Please be advised of the following correction to the captioned decision: In the attorney designation section on the first page of the opinion, the Assistant U.S. Attorney is mistakenly listed as counsel for Defendant-Appellant. Similarly, the Assistant Federal Public Defender is incorrectly listed as counsel for Plaintiff-Appellee. The designations should be reversed. Please make the correction. Very truly yours, Patrick Fisher, Clerk Susie Tidwell Deputy Clerk  F I L E D United States Court of Appeals Tenth Circuit PUBLISH OCT 7 1997 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 96-8121 MICHAEL GABRIEL DURAN, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 96-8123 LEO HERMAN MONROE, Sr., Defendant-Appellant. Appeal from the United States District Court for the District of D. Wyo. (D.C. Nos. 96-CR-63-1 & 96-CR-63-2) James H. Barrett, Assistant Federal Defender (Michael G. Katz, Federal Public Defender, Denver, Colorado, with him on the briefs), Cheyenne, Wyoming, for Defendant-Appellant in No. 96-8121; Ronald G. Pretty for Defendant-Appellant in No. 96-8123. John R. Green, Assistant United States Attorney (David D. Freudenthal, United States Attorney with him on the briefs), Cheyenne, Wyoming, for Plaintiff- Appellee in No. 96-8121 and No. 96-8123. Before BALDOCK, BRORBY and BRISCOE, Circuit Judges. BRORBY, Circuit Judge. In this opinion, we consolidate Case No. 96-8121 and Case No. 96-8123 for decision. In Case No. 96-8121, Appellant/Defendant Michael Gabriel Duran appeals his conviction for assault with a dangerous weapon and aiding and abetting. In Case No. 96-8123, Appellant/Defendant Leo Herman Monroe, Sr. appeals his conviction for assault with a dangerous weapon and aiding and abetting. Mr. Monroe also appeals the trial court's enhancement of his sentence. We exercise jurisdiction over these appeals pursuant to 28 U.S.C. § 1291 and affirm. On May 24, 1996, Mr. Monroe and Mr. Duran were charged in a two-count indictment with (1) assaulting Marvette Dean Oldman with a dangerous weapon with intent to do bodily harm, and aiding and abetting each other in the commission of that offense, in violation of 18 U.S.C. §§ 113(a)(3), 1153, and 2, and (2) assaulting David John Oldman with a dangerous weapon with intent to do bodily harm, and aiding and abetting each other in the commission of that offense, in violation of 18 U.S.C. §§ 113(a)(3), 1153, and 2. -2-  On September 23, 1996, Mr. Monroe and Mr. Duran went to trial on the charges in the indictment. At the consolidated trial, Marvette Oldman provided the following testimony. On May 16, 1996, he was at the Wind River Indian Reservation in Wyoming visiting relatives. That morning, Mr. Oldman left his cousin's home in his Buick Riviera to go and pick up his wife at the hospital in Lander, Wyoming. Marvette Oldman was accompanied by his one-year old son, Amos, and his uncle, David John Oldman. On the way to Lander, Mr. Oldman pulled into the property of Pat Behan so that David Oldman could go to the bathroom. David Oldman had previously rented property from Mr. Behan. After Mr. Oldman and David Oldman had gotten out of the Buick, Mr. Monroe, Mr. Duran and Virgil Monroe 1 came running at Mr. Oldman saying they were going to kill him. Although Mr. Oldman ran down the road, he stopped when he saw his Buick Riviera coming toward him. Mr. Oldman believed the car was being driven by his uncle since the driver had long hair and glasses. However, the car sped up and hit Mr. Oldman at his knees, knocking him into the borrow pit. The driver of the car was Mr. Duran. 1 Virgil Monroe was also indicted and tried on charges of assaulting Marvette and David Oldman. However, the jury acquitted Virgil Monroe of all charges. -3-  After being hit by the car, Mr. Oldman got up and ran toward the river. Mr. Duran exited the car and chased Mr. Oldman with a baseball bat. Eventually, Mr. Duran and Mr. Monroe caught up with Mr. Oldman. Mr. Monroe kicked Mr. Oldman in the back and "hit" him in the side with a knife. Mr. Duran hit Mr. Oldman in the head twice with the baseball bat, rendering Mr. Oldman unconscious with the second blow. When Mr. Oldman regained consciousness, he crawled into the river and "floated" downstream for about a half mile. Mr. Oldman then crawled out of the river and "headed towards [a] house." A man came out of the house and called an ambulance. When the ambulance arrived, Mr. Oldman was taken to the hospital, where he received treatment for his injuries. Following the presentation of evidence at trial, Mr. Monroe and Mr. Duran tendered instructions and verdict forms to the court proposing an instruction for a lesser included offense of assault by striking, beating or wounding pursuant to 18 U.S.C. § 113(a)(4). However, the court rejected the proposed instructions and verdict forms, concluding the crime of striking, beating or wounding was not a lesser included offense of assault with a dangerous weapon. Specifically, the court stated that under Tenth Circuit law, a lesser included offense must -4-  have the same elements as the prior charged offense. And it seems to me that striking, beating and wounding doesn't have the weapon element. It doesn't have the car, the bat or the knife in it, and, therefore, it seems to me that it's just not comparable. The trial court did, however, provide lesser included offense instructions on the Wyoming crime of aggravated assault. 2 On September 27, 1996, the jury returned a verdict of guilty against Mr. Monroe and Mr. Duran on Count One of the indictment -- assaulting, or aiding and abetting in the assault of, Marvette Oldman, with a dangerous weapon with the intent to do bodily harm. The jury acquitted Mr. Monroe and Mr. Duran of the assault of David Oldman, which was charged in Count Two of the indictment. At sentencing, the district court raised Mr. Monroe's guideline base offense level by four points pursuant to USSG § 2A2.2(b)(2)(B) (Nov. 1995) for the use of a dangerous weapon. The court then sentenced Mr. Monroe to a seventy-eight- month term of imprisonment. The court sentenced Mr. Duran to a forty-two- month term of imprisonment. Thereafter, Mr. Monroe and Mr. Duran each filed a 2 The court's instruction on the Wyoming crime of aggravated assault was given pursuant to the Assimilative Crimes Act, 18 U.S.C. § 13. This act "permits the United States to adopt state law for any act or omission occurring on federal property which, 'although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction for the State, Territory, Possession, or District in which such place is situated.'" United States v. Johnson, 967 F.2d 1431, 1433 (10th Cir. 1992) (quoting 18 U.S.C. § 13), cert. denied, 506 U.S. 1082 (1993). -5- timely notice of appeal. Mr. Monroe's and Mr. Duran's appeals present two issues for our determination: (1) whether the district court erred by failing to instruct the jury on the lesser included offense of striking, beating or wounding and (2) whether the district court engaged in impermissible double counting by increasing Mr. Monroe's base offense level by four points for using a dangerous weapon. First, both Mr. Monroe and Mr. Duran argue the district court erred by rejecting their proffered instructions setting forth the crime of striking, beating or wounding as a lesser included offense of assault with a dangerous weapon. Mr. Monroe and Mr. Duran contend they satisfied all the requirements for a lesser included offense instruction to be given under United States v. Fitzgerald, 719 F.2d 1069 (10th Cir. 1983), and the trial court misapplied law in rejecting their instructions. According to Mr. Monroe and Mr. Duran, the evidence concerning whether a dangerous weapon was used by either of them was in conflict. Consequently, by failing to instruct the jury as to the crime of striking, beating or wounding, Mr. Monroe and Mr. Duran contend the trial court, in effect, made a factual finding that they each possessed and employed a dangerous or deadly weapon. -6-  Whether an offense for which an instruction is sought actually qualifies as a lesser included offense of the offense charged is a question of law that we review de novo. United States v. Abeyta, 27 F.3d 470, 473 (10th Cir. 1994). However, we review the district court's decision as to whether there is enough evidence to justify a lesser included offense instruction for an abuse of discretion. Id. Fed. R. Crim. P. 31(c) provides, in relevant part, that a "defendant may be found guilty of an offense necessarily included in the offense charged." The Supreme Court has held a defendant is entitled to an instruction concerning a lesser crime, pursuant to Fed. R. Crim. P. 31(c), if the evidence justifies such an instruction. Sansone v. United States, 380 U.S. 343, 349 (1965). The lesser included offense doctrine was developed as an aid to the prosecution in cases in which its evidence "'failed to establish some element of the crime charged.'" United States v. Schmuck, 489 U.S. 705, 717 n.9 (1989) (quoting Beck v. Alabama, 447 U.S. 625, 633 (1980)). However, as the doctrine developed, it became clear that it could also benefit the defendant "by providing an opportunity for the jury to acquit him on the offense charged in the indictment, while finding him guilty on the lesser offense." United States v. Cooper, 812 F.2d 1283, 1287 (10th Cir. 1987) (Baldock, J., concurring). After all, "[w]here one of the -7- elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Keeble v. United States, 412 U.S. 205, 212-13 (1973). We apply a four-part test to determine when a lesser included offense instruction must be given. See, e.g., Fitzgerald, 719 F.2d at 1071. First, there must be a proper request for an instruction. Id. at 1071. Second, the elements of the lesser included offense must be a subset of the elements of the greater (charged) offense. Id; Abeyta, 27 F.3d at 473-74; Schmuck, 489 U.S. at 716. Third, the element differentiating the two offenses must be a matter in dispute. Fitzgerald, 719 F.2d at 1071. Fourth, the jury must be able to rationally acquit the defendant on the greater offense and convict on the lesser offense. Id. The court is not required to provide the requested instruction unless all four of these factors have been satisfied. See, e.g., Abeyta, 27 F.3d at 473-76; United States v. Horn, 946 F.2d 738, 743-46 (10th Cir. 1991). In the present case, the district court ostensibly determined the crime of assault by striking, beating or wounding was not a lesser included offense of assault with a dangerous weapon because the crime of striking, beating or wounding did not contain the element of use of a dangerous weapon. As Mr. -8- Monroe and Mr. Duran point out in their appellate briefs, however, it appears the district court's logic is flawed. The fact that the offense of assault by striking, wounding, or beating does not contain the element of use of a dangerous weapon does not mean the offense is not a lesser included offense of assault with a dangerous weapon. An offense need not contain all of the elements of a greater offense to be a lesser included offense. If there was such a requirement, there would be no such thing as a lesser included offense. In order to be a lesser included offense, an offense must simply be a subset of the elements of the greater offense. Schmuck, 489 U.S. at 716. Thus, by concluding the crime of assault by striking, beating or wounding was not a lesser included offense merely because it did not contain one of the elements of assault with a dangerous weapon, the district court misapplied the elements test. Nevertheless, we believe we must affirm the district court's refusal to provide the jury with the requested instructions on alternative grounds. See Swoboda v. Dubach, 992 F.2d 286, 291 (10th Cir. 1993) (appellate court can affirm district court for reasons other than those relied on by the district court). Under the elements test, the offense of striking, beating or wounding is simply not a lesser included offense of assault with a dangerous weapon. Assault by striking, beating or wounding under 18 U.S.C. § 113(a)(4) (formerly 18 U.S.C. § 113(d)) -9- requires a physical touching and is the equivalent of simple battery. See United States v. Joe, 831 F.2d 218, 220 (10th Cir. 1987), cert. denied, 484 U.S. 1072 (1988); United States v. Johnson, 637 F.2d 1224, 1242 n.26 (9th Cir. 1980); see also United States v. Guilbert, 692 F.2d 1340, 1345 (11th Cir. 1982) (affirming defendant's convictions for both assault with a dangerous weapon and assault by striking, beating or wounding even though convictions stemmed from a single incident and a single victim), cert. denied, 460 U.S. 1016 (1983). However, assault with a dangerous weapon under 18 U.S.C. § 113(a)(3) (formerly 18 U.S.C. § 113(c)) only requires proof of an assault with a dangerous weapon, with the intent to cause bodily harm. Johnson, 967 F.2d at 1435; Abeyta, 27 F.3d at 474. The offense does not require proof of any physical contact. Consequently, a defendant may commit assault with a dangerous weapon without committing assault by striking, beating or wounding. Because the offense of assault by striking, beating or wounding requires proof of an element not required to prove assault with a dangerous weapon, the crime of striking, beating or wounding does not qualify as a lesser included offense under the elements test. 3 We therefore 3 In his reply brief, Mr. Duran contends assault by striking, beating or wounding is a lesser included offense under the elements test because that test "permits lesser included offense instructions ... in those cases where the indictment contains the elements of both offenses." It is true that the Supreme Court stated in Schmuck that "[t]he elements test ... permits lesser offense instructions only in those cases where the indictment contains the elements of both offenses and thereby gives notice to the defendant that he may be convicted -10- conclude neither Mr. Monroe nor Mr. Duran was entitled to an instruction on the offense of striking, beating or wounding. 4 on either charge." 489 U.S. at 718. However, we believe a fair reading of Schmuck indicates a crime simply does not qualify as a lesser included offense where, as here, "the lesser offense requires an element not required for the greater offense." Id. at 716. Moreover, even if Schmuck permits a court to give lesser included offense instructions where the indictment contains all the elements of both offenses, this does not change the outcome in the present case. The indictment charging Mr. Monroe and Mr. Duran did not allege that any physical contact took place between either of them and the victim. Hence, the indictment did not contain all of the elements to prove the crime of assault by striking, beating or wounding. 4 Because we have determined Mr. Monroe and Mr. Duran were not entitled to instructions on the crime of assault by striking, beating or wounding as a matter of law, their contention that the evidence was in conflict concerning whether or not they used a dangerous weapon is irrelevant. However, we do note that the trial court did not, as Mr. Monroe and Mr. Duran contend, effectively make a factual finding that they each possessed and employed a dangerous or deadly weapon. Both Mr. Monroe and Mr. Duran were free to argue to the jury, and counsel informed us at oral argument that they did in fact argue to the jury that they did not assault Marvette Oldman and David Oldman with a dangerous weapon. The jury apparently believed their argument with respect to the alleged assault on David Oldman, and acquitted the defendants on Count Two of the indictment. Had the jury found that Mr. Monroe and Mr. Duran did not assault Marvette Oldman with a dangerous weapon, it would have been obligated to have acquitted the defendants on Count One as well. Thus, the jury resolved the factual issue of whether a dangerous weapon was used, not the district court. Furthermore, we note Mr. Monroe and Mr. Duran may very well have been entitled to a theory of the case instruction concerning whether they used a dangerous weapon if they had so requested. See United States v. Martinez, 979 F.2d 1424, 1432 (10th Cir. 1992) (defendant entitled to theory of case instruction if theory is supported by law and facts in evidence), cert. denied, 507 U.S. 1022 (1993). However, because the elements test was not satisfied with respect to the crime of assault by striking, beating or wounding, Mr. Monroe and Mr. Duran were not entitled to lesser included offense instructions on that crime. -11-  Next, Mr. Monroe argues the district court engaged in impermissible double counting by increasing Mr. Monroe's base offense level by four points pursuant to USSG § 2A2.2(b)(2)(B) for using a dangerous weapon. Because this issue involves a purely legal interpretation of the Sentencing Guidelines, our review is de novo. United States v. Sorenson, 58 F.3d 1154, 1160 (7th Cir. 1995); United States v. Hudson, 972 F.2d 504, 506 (2d Cir. 1992). USSG § 2A2.2(a) provides for a base offense level of 15 for the crime of aggravated assault. Aggravated assault is defined as a "felonious assault that involved (a) a dangerous weapon with intent to do bodily harm ..., or (b) serious bodily injury, or (c) an intent to commit another felony." USSG §2A2.2 comment. (n. 1). Section 2A2.2(b) sets forth a graduated enhancement schedule that is triggered by several aggravating factors. Sorenson, 58 F.3d at 1161. For example, this section instructs the sentencing court to increase the base level by 5 "[i]f a firearm was discharged," by 4 "if a dangerous weapon (including a firearm) was otherwise used," and by 3 "if a dangerous weapon (including a firearm) was brandished or its use was threatened." USSG § 2A2.2(b)(2). In the present case, the district court determined Mr. Monroe's base offense level was 15 under USSG § 2A2.2(a), and it then enhanced this level by four -12- points pursuant to USSG § 2A2.2(b)(2)(B) for the use of a dangerous weapon. In arguing the enhancement constitutes impermissible double counting, Mr. Monroe relies heavily on the Second Circuit's decision in Hudson, 972 F.2d at 506-07. In Hudson, the defendant drove his car at two federal marshals and was convicted of assaulting a federal officer in violation of 18 U.S.C. § 111 (1988). Id. at 505. The district court classified the offense as "aggravated assault" under USSG § 2A2.2, and then imposed a four-level enhancement pursuant to USSG § 2A2.2(b)(2)(B) because the defendant "otherwise used" a dangerous weapon (the automobile) in committing his offense. Id. at 505-06. On appeal, the defendant argued the four-level enhancement was impermissible double counting because the use of the dangerous weapon had already resulted in an increase in his base offense level by making the crime an aggravated assault. Id. The Second Circuit agreed with the defendant and determined a district court is not permitted to enhance a base offense level pursuant to 2A2.2(b) for the use of a non-inherently dangerous weapon such as an automobile. Id. at 506-07. According to the court, "[w]here an ordinary object is implicated, as was the case here, it is the use of the object as a weapon that makes the offense an aggravated assault, and it is the use of this weapon which also requires a four-level enhancement pursuant to U.S.S.G. § 2A2.2(b)." Id. at 507 -13- (emphsis in original). The court determined that this "two-fold upward adjustment" for the use of a non-inherently dangerous object constitutes "impermissible double counting." Id. However, the Hudson court found a sentence may be enhanced pursuant to § 2A2.2(b) where an aggravated assault is accomplished with an inherently dangerous weapon such as a gun. Id. at 506-07. Unlike an aggravated assault with a non-inherently dangerous weapon, an aggravated assault with an inherently dangerous weapon can be committed without the defendant automatically qualifying for an enhancement, such as where a gun is merely possessed during an assault. Id. Consequently, the Second Circuit concluded that no improper double counting occurs when the assault is committed with an inherently dangerous weapon. Id. In the present case, Mr. Monroe urges us to follow the holding of Hudson to conclude the district court engaged in impermissible double counting. Mr. Monroe contends the bat, the knife, and the car were all non-inherently dangerous objects. Because these objects are not inherently dangerous, Mr. Monroe argues it was the use of these objects that made the offense an aggravated assault and it was the use of these objects that required a four-level enhancement of his offense -14- level. Consequently, Mr. Monroe contends this two-fold upward adjustment constitutes impermissible double counting under Hudson. Unfortunately for Mr. Monroe, it appears the Second Circuit is the only circuit that has held that enhancing a defendant's sentence under § 2A2.2(b)(2)(B) may constitute impermissible double counting. In United States v. Reese, 2 F.3d 870, 895-96 (9th Cir. 1993), cert. denied, 510 U.S. 1094 (1994), the defendants argued the trial court had engaged in improper double counting by enhancing their sentences pursuant to § 2A2.2(b)(2). In reviewing their contention, the Ninth Circuit stated "there is nothing wrong with 'double counting' when it is necessary to make the defendant's sentence reflect the full extent of the wrongfulness of his conduct." Id. at 895. According to the court, the use of a single aspect of conduct both to determine the applicable offense guideline and to increase the base offense level mandated thereby will constitute impermissible double counting only where, absent such conduct, it is impossible to come within that guideline. If, on the other hand, it is possible to be sentenced under a particular offense guideline without having engaged in a certain sort of behavior, such behavior may be used to enhance the offense level, for in this situation, the guideline's base offense level will not necessarily have been set to capture the full extent of the wrongfulness of such behavior. Id. at 895. In applying these principles, the court noted that a defendant who commits an assault "with intent to commit another felony," will be sentenced under the aggravated assault guidelines, even if the defendant does not use a -15- dangerous weapon. Id. at 896. Because it was possible to be sentenced under § 2A2.2(a) without using a dangerous weapon, the court concluded that the enhancement of the defendants' sentences pursuant to § 2A2.2(b)(2)(B) was proper. Id. Similarly, in United States v. Williams, 954 F.2d 204, 206 (4th Cir. 1992), the Fourth Circuit concluded the trial court did not engage in impermissible double counting by enhancing the defendant's sentence under § 2A2.2(b)(2)(B) for using a metal chair as a dangerous weapon. In reaching this conclusion, the court noted that because § 2A2.2(a) applies to assaults that "involved" a dangerous weapon, not all defendant's who are sentenced under § 2A2.2(a) will receive an enhancement for "use" of a dangerous weapon under § 2A2.2(b)(2)(B). Id. at 206-07. Furthermore, the court determined the dangerous weapon enhancement "rationally reflect[ed] the Guideline's graduated adjustment scheme," and promoted the "Guidelines' fundamental goal of proportionality in sentencing." Id. at 206-07. According to the Fourth Circuit, where an enhancement clearly applies to the conduct of an offense, such as the enhancement set forth in § 2A2.2(b)(2)(B), it "must be imposed unless the Guidelines expressly exclude its applicability." Id. at 207. -16-  It appears the other circuits who have addressed the issue of whether the application of § 2A2.2(b)(2)(B) can amount to impermissible double counting have rejected Hudson and agreed with the Fourth and Ninth Circuits. See Sorenson, 58 F.3d at 1157, 1161 (no impermissible double counting where district court enhanced defendants' sentences under § 2A2.2(b)(2)(B) for using a "blunt instrument" during assault); United States v. Garcia, 34 F.3d 6, 11-12 (1st Cir. 1994) (no impermissible double counting where sentence enhanced under § 2A2.2(b)(2)(B) for using car during assault). We are aware of no circuit precedent, other than Hudson, to the contrary. After thoroughly reviewing Mr. Monroe's arguments and all relevant authorities, we conclude Hudson was not well reasoned and we decline to follow the Second Circuit's decision. Although Mr. Monroe's "use" of the "dangerous weapons" in this case brought him within the aggravated assault guidelines and resulted in a four-level increase in his offense level, we do not believe the district court engaged in impermissible double counting for several reasons. First, the plain language of the guidelines indicates Congress intended for double counting to occur under § 2A2.2. The Sentencing Guidelines are to be interpreted as if they were statutes or court rules and, in the absence of any -17- contrary intention, we must apply their clear and unambiguous terms. United States v. Florentino, 922 F.2d 1443, 1446 (10th Cir. 1990). Where the plain language of the guidelines requires the court to use a factor more than once in computing a defendant's sentence, the court is obligated to apply the guidelines as written. Id. at 1446-47 (guidelines required court to "count" defendant's prior convictions twice); see also Williams, 954 F.2d at 207 ("An adjustment that clearly applies to the conduct of an offense must be imposed unless the Guidelines expressly exclude its applicability."). Numerous provisions of the Guidelines expressly prohibit a court from adjusting a defendant's sentence based on a factor that was already taken into account in computing the defendant's offense level. See, e.g., USSG § 3A1.1 comment. (n.2) (no vulnerable victim adjustment if offense guideline specifically incorporates this factor); USSG § 2X3.1 comment. (n.2) (adjustment for mitigating role "normally would not apply because an adjustment for reduced culpability is incorporated in the base offense level"). These provisions assure us "[t]he Sentencing Commission plainly understands the concept of double counting, and expressly forbids it where it is not intended." Williams, 954 F.2d at 208. Section 2A2.2(a) of the Sentencing Guidelines provides for a base offense level of 15 for a defendant who commits assault with a dangerous weapon with -18- intent to do bodily harm. Section 2A2.2(b)(2)(B) requires a four-level enhancement for the use of a dangerous weapon. Thus, the clear and unambiguous language of § 2A2.2 requires the very double counting of which Mr. Monroe complains. Reese, 2 F.3d at 894. If the Sentencing Commission had intended to prohibit double counting under § 2A2.2, we believe it would have so provided, as it has in other sections of the guidelines. Having chosen not to do so, the Sentencing Commission illustrated its intent to require double counting under § 2A2.2. Because the double counting was intended, it is permissible. 5 Second, we believe applying § 2A2.2 in accordance with its plain language furthers the Sentencing Commission's goal of proportionality in sentencing. See Williams, 954 F.2d at 207. The Sentencing Guidelines were enacted to achieve "proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity." USSG, Ch. 1, Pt. A, intro. comment. 3. "When more than one kind of harm is attributable to a given aspect of a defendant's conduct, failure to enhance [a defendant's] punishment for each harm caused thereby [defeats] the Commission's goal of 5 We note § 2A2.2 provides absolutely no support for Hudson's determination that courts should distinguish between weapons that are non- inherently dangerous and those that are inherently dangerous and apply the four- level enhancement only to the latter. -19- proportionality in sentencing." Reese, 2 F.3d at 895. Section 2A2.2(b)(2) sets forth a rationale graduated adjustment schedule that is based on the degree of involvement of the dangerous weapon in an aggravated assault. If we were to conclude application of § 2A2.2(b)(2)(B) amounts to impermissible double counting under Hudson, we would render the adjustment schedule irrational and would effectively undermine the Commission's goal of proportionality in sentencing. Under the logic of Hudson, a defendant who discharged a firearm in the course of an assault, but missed the victim, would receive a five-level adjustment pursuant to § 2A2.2(b)(2)(A). However, a defendant who severely beat a victim with a chair would receive no adjustment under § 2A2.2(b)(2)(B), because such adjustment would amount to impermissible double counting. The logic of such a rationale escapes us, and we refuse to adopt it. Because we believe § 2A2.2(b) sets forth a rational adjustment scheme that furthers the Sentencing Commission's goal of proportionality in sentencing, we believe the district court acted properly in applying the plain language of the provision. Furthermore, we find that Hudson should not be followed because it creates a difficult standard for courts to apply. Under Hudson, the court must always -20- determine whether an object is inherently dangerous before deciding whether § 2A2.2(b) applies. While this task may be relatively simple when the object involved is a gun or a chair, it becomes quite arduous when the court is dealing with objects such as a knife and a car -- two of the "weapons" involved in this very case. Thus, we find Hudson creates more problems than it solves. Not only is the Hudson test difficult to apply, but we believe it is likely to lead to inconsistent and arbitrary results. By rejecting Hudson, we ensure that all defendants who commit an assault with a dangerous weapon are treated the same, thus furthering the Sentencing Commission's goal of proportionality in sentencing. Finally, as noted by the Ninth Circuit in Reese, see 2 F.3d at 895-97, the district court in this case did not engage in impermissible double counting because it is possible to be sentenced under § 2A2.2(a) without receiving an enhancement under § 2A2.2(b). If ... it is possible to be sentenced under a particular offense guideline without having engaged in a certain sort of behavior, such behavior may be used to enhance the offense level, for in this situation, the guideline's base offense level will not necessarily have been set to capture the full extent of the wrongfulness of such behavior. Id. at 895. Here, a defendant who commits an assault with the intent to commit another felony comes within the aggravated assault guideline. USSG § 2A2.2 -21- comment. (n.1). It is therefore possible to come within the aggravated assault guidelines without using a dangerous weapon and without automatically qualifying for an enhancement under § 2A2.2(b). Consequently, the district court's application of § 2A2.2(b)(2)(B) in this case does not amount to impermissible double counting. Based on the foregoing reasons, we conclude: (1) Mr. Monroe and Mr. Duran were not entitled to lesser included offense instructions concerning the crime of beating, striking or wounding, and (2) the district court did not err in enhancing Mr. Monroe's sentence pursuant to USSG § 2A2.2(b)(2)(B). Mr. Monroe's and Mr. Duran's convictions and sentences are AFFIRMED. -22- 

224 Ga. 553 (1968) 163 S.E.2d 803 HOLMES v. THE STATE. 24753. Supreme Court of Georgia. Argued July 8, 1968. Decided September 23, 1968. *555 John H. Ruffin, Jr., Bobby L. Hill, for appellant. Dewey Hayes, Solicitor General, Arthur K. Bolton, Attorney General, Marion O. Gordon, Courtney Wilder Stanton, Assistant Attorneys General, for appellee. GRICE, Justice. Leroy Holmes was indicted by the grand jury of Ware County for the murder of John Marshall Hodges, and upon trial in the superior court of that county was found guilty. On account of being under seventeen years of age he was sentenced to life imprisonment, pursuant to Georgia Laws 1963, page 122 (Code Ann. §§ 26-1005, 27-2302). His amended motion for new trial was denied, and his appeal is from that judgment. Enumerated as error are the denial of such motion, consisting of the general and 60 special grounds, and also permitting a witness to testify as to a statement made by the appellant. 1. We deal first with two grounds relating to jurisdiction of the trial court. One is that the superior court should have granted appellant's motion to dismiss the indictment because the transfer of the case from the juvenile court of that county to the superior court was improper. This ground contends that the statute under which the juvenile court acted (Ga. L. 1951, pp. 291, 299, as amended; Code Ann. § 24-2410) violates the due process clause of the Fourteenth Amendment to the Federal Constitution. The other ground urges that the superior court erred in denying the appellant's motion to refer the case to the juvenile court which had jurisdiction when the superior court assumed jurisdiction. These two grounds cannot be sustained in view of the provision of our State Constitution which vests the superior courts with exclusive jurisdiction of felony cases. Art. VI, Sec. IV, *556 Par. I (Code Ann. § 2-3901). Since the superior court thus had exclusive jurisdiction, no action was required by the juvenile court, and we need not pass upon whether the transfer procedure was improper or whether the statute under which it acted (Code Ann. § 24-2410, supra) is unconstitutional, even assuming that a constitutional attack was properly made. A different result is not required by either Kent v. United States, 383 U. S. 541 (86 SC 1045, 16 LE2d 84), or In re Gault, 387 U. S. 1 (87 SC 1428, 18 LE2d 527). The Kent case dealt with procedures established by federal statutes applicable only to the juvenile court for the District of Columbia which require that court to waive its jurisdiction in order to authorize indictment and trial of a minor in another court. Our Georgia law has no such requirement. The Gault case dealt with constitutional safeguards for minors in proceedings in juvenile courts when they adjudicate acts of delinquency, which is likewise different from the situation here. 2. Two grounds involve the absence of a commitment hearing for the appellant. (a) One is that the trial court erroneously denied the appellant's motion to stay the trial because there was no preliminary commitment hearing and no effective waiver thereof, in violation of the Sixth and Fourteenth Amendments to the Federal Constitution. This contention is not meritorious. The holding of a commitment hearing is not a requisite to a trial for commission of a felony. Our Code, § 27-407, recites that it "is simply to determine whether there is sufficient reason to suspect the guilt of the accused, to require him to appear and answer before the court competent to try him; and whenever such probable cause exists, it is the duty of the court to commit." Furthermore, the record shows waiver of a commitment hearing. At the time of such waiver the accused was represented by court-appointed counsel, who was stipulated to be "an eminently qualified criminal lawyer." That attorney testified that the accused's parents were in a state of shock from the accusation that had been made against their son, and that it was therefore *557 impossible for him to discuss the matter of a preliminary hearing with them or for them to be present at a preliminary hearing on the scheduled date of April 24, 1967. He therefore obtained a continuance of the hearing until April 27. He also testified that by the latter date he had already investigated the facts sufficiently and determined that nothing would be gained by such a hearing, particularly since he had been notified that arraignment was scheduled for the 28th and he intended at that time to seek a continuance of the case. It is significant that the grand jury had indicted the appellant on April 25. For the foregoing reasons, the trial court correctly denied the motion to stay the trial. (b) The other of these grounds is that the court erred in permitting appellant's court-appointed attorney to testify concerning matters transpiring before the committing magistrate as to the waiver of the preliminary hearing. This ground urges that no transcript of this proceeding was produced and that the attorney was testifying against the appellant. This testimony, given by the court-appointed attorney when called to the witness stand by appellant's retained counsel to explain such waiver, was not inadmissible for either of these two reasons. The testimony can in no way be construed to be "against the appellant." The attorney merely explained why he first asked for a continuance of the preliminary hearing and then later waived such a hearing. The proceeding was not reported and therefore no transcript could be produced. This, however, would not prevent the attorney's testifying as to what he did on that occasion and his reasons therefor. 3. One of the grounds of the motion for new trial is that the court erred in denying appellant's motion to quash the indictment "in that the statute under which the jury selection process is carried out is unconstitutional on its face in violation of the due process of law clause of the Fourteenth Amendment to the" Federal Constitution. This ground evidently refers to an oral motion. The first mention we find in the record of any constitutional attack on the jury selection statutes appears on page 223 of the transcript, where appellant's counsel stated: "We'd like to renew our objection, *558 Your Honor, or our Constitutional attack to the new Georgia law regarding the selection of jurors in Georgia. I believe that section is 59-106 and 59-112. We'd like to challenge these laws as being unconstitutional on their face and in their application, in that they violate the due process clause of the Fourteenth Amendment to the United States Constitution, as we certainly would invoke a ruling of the court as to the constitutionality of both of these statutes." Although appellant's counsel stated that he was renewing an objection, we find no previous objection or motion which complains of the jury selection law. Therefore, we must assume that the above quoted language is that referred to in this ground of the motion for new trial. No proper constitutional attack is made by this "renewal" objection. There is no precise designation of the statute sought to be attacked. It is identified as "the new Georgia law regarding the selection of jurors in Georgia," and as "section ... 59-106 and 59-112," without specifying any code or statutes. If he meant sections 59-106 and 59-112 of our official code, they were superseded by a 1967 Act of the General Assembly. If he meant Code Ann. §§ 59-106 and 59-112, the attempted attack would be futile, as a ruling on them would not affect the Act of the General Assembly from which they were taken. Morgan v. Todd, 214 Ga. 497, 499 (106 SE2d 37); Bowen v. State, 215 Ga. 471, 472 (111 SE2d 44). Furthermore, this objection does not state wherein the statute sought to be complained of violates the Fourteenth Amendment to the Federal Constitution. No proper constitutional attack having been made, this ground of the motion for new trial was properly denied. 4. Two grounds with reference to matters which arose in selecting the traverse jury will be treated together. (a) The first is that the court erred in not permitting appellant to strike for cause a prospective juror when he indicated on the voir dire questions that the appellant could not be given the presumption of innocence, by stating that he could not say whether the appellant was innocent or not. This position cannot be sustained. The prospective juror, in response to the question *559 whether he had formed any opinion as to the guilt or innocence of the appellant, answered "No"; and in response to the question whether he believed in the principle that persons charged with crimes are presumed to be innocent until proven guilty beyond a reasonable doubt, answered "Yes." The further question whether he thought the appellant was innocent was an improper one, and his answer that he would not say did not require that the appellant be allowed to strike him for cause. (b) The second of these grounds alleges that the court erred in denying the appellant the right to inquire whether a white prospective juror was prejudiced against Negroes. However, the record does not bear out this allegation. The question which the court refused to permit appellant's counsel to ask was whether the juror believed that "whites are superior to Negroes in intelligence." This was clearly an improper question. Therefore, this ground is not valid. 5. The general grounds of the motion for new trial were properly denied since the evidence supports the verdict of guilty. The salient facts on this feature follow. The victim, John Marshall Hodges, an 86-year-old man, was making an extended visit to his daughter and son-in-law, Mr. and Mrs. C. E. Hopkins, at their home in Waycross in Ware County. On April 20, 1967, soon after breakfast Mr. Hopkins and his son left the home to go to their place of business. Later, at approximately 10 a. m. Mrs. Hopkins locked the doors and windows of the house and also left, to go shopping. She returned about noon. The front door was standing open and when she entered it she saw the body of her father lying on the floor in the hallway. She immediately ascertained that he was dead, and telephoned her husband. He notified the sheriff. They arrived at the residence within a few minutes. Shortly afterwards an agent of the Georgia Bureau of Investigation and other law enforcement officers arrived. It was found that the victim had been stabbed to death with a sharp instrument. It was observed that the screen to a window had been cut, the window glass broken and the window unlocked. A golf club lay on the ground near the window. Entry to the house appeared to have been gained through this window. The son's bedroom *560 was disheveled, drawers of a chest were pulled out and items were scattered about the room. From the investigation several persons were suspected, including the appellant, a 16-year-old Negro boy. Several months previously he had asked to do yard work at the Hopkins residence, but before completing it had abandoned the work and left the premises without informing anyone. Thereafter money was found to be missing from the son's bedroom. On the morning of the homicide the appellant was seen riding a bicycle near the Hopkins residence. On April 24 a warrant was issued for the appellant's arrest and he was taken into custody. When he indicated a desire to discuss the homicide, he was advised of his constitutional rights. The officer in charge of the investigation then stopped the conference and reported the situation to the judge of the superior court, who immediately appointed an experienced criminal lawyer to represent him. In the presence of this attorney the appellant again said that he wished to make a statement, and again was advised of his rights. Then he made an oral statement in which he detailed how he used a golf club to break a window, entered the Hopkins home through the window, was surprised by the victim while in a bedroom of the home, picked up a fish knife from the top of a chest in the bedroom, stabbed the victim, ran out the front door, rode away on a bicycle, and threw the knife out into a wooded area. Later, the appellant rode with his attorney and the sheriff to the Hopkins residence and pointed out how he had broken into the house, committed the act and ridden away on the bicycle. A palm print taken from the broken window through which appellant said he entered the house was found to match appellant's palm. 6. A ground of the motion for new trial avers that it was error to refuse to dismiss the indictment because there was a variance as to the name of the indictee. The indictment charged that "Leroy Holmes" committed the offense, while the evidence showed that the person on trial was known as "Leroy Holmes, Jr." The appellant's father, also in court and sitting with him *561 during the trial, was named "Leroy Holmes." This ground is not valid. The words "Junior," "Jr.," or words of similar import are mere matters of description. See Black, Law Dictionary (4th Ed.), p. 988, and citations. The person on trial was amply identified. See Division 7, infra. 7. Six of the grounds complain of identification in court of the defendant on trial as the one named in the indictment. The solicitor general in his opening remarks to the jury made this identification, and witnesses also identified the person on trial as such indictee. This is accepted and lawful procedure. These grounds are lacking in merit. 8. Appellant in two grounds insists that the court erred in not permitting him to call the jury commissioners for the purpose of cross examination, contending that the commissioners are an integral part of the jury selection process and were opposite parties in the case since they are paid by the county which is a political subdivision of the State. This contention is patently invalid. Under no view were these commissioners opposite parties in this case, nor was this a civil case, as contemplated by Code Ann. § 38-1801, upon which appellant apparently relies. 9. The court did not err in not directing that certain witnesses for the State answer questions asked by appellant. In each instance it appeared that the witness had answered as well as he could. The transcript shows that the appellant was not denied the right to a thorough and sifting cross examination, and hence the three grounds in question are not well taken. 10. One of the jury commissioners was not, as contended by appellant in his motion, permitted to testify as to an ultimate fact. The testimony objected to was: "Q. You tried to select intelligent and upright citizens? A. That's right. Q. And did you do that? A. To the best of my knowledge we did." This testimony thus related to the standard sought to be attained by the commissioners in compiling the jury list. 11. Ground 8 charges that "The court erred in permitting the solicitor general to lead a witness when it was perfectly clear and obvious that the witness was hostile to the defendant's interest." The record shows that appellant's attorney objected a number of times that the solicitor general was leading a witness. *562 From what is stated it is impossible to ascertain which witness and which instance is complained of. Therefore, a ruling on this ground cannot be made. 12. One ground of the motion recites that the court erred in denying a motion to inspect, in violation of the appellant's rights under specified provisions of the Federal Constitution. The State was not required to show to appellant's counsel any statements reduced to writing or tangible evidence which it planned to introduce in evidence. Williams v. State, 222 Ga. 208, 212 (149 SE2d 449). This ground is not meritorious. 13. Six grounds complain as to certain photographs. These were authenticated by the photographer who made them and were stated by other witnesses to represent accurately their subject matter. Hence, there was no error in admitting them in evidence, or permitting testimony relating thereto, as urged by the appellant. 14. It was not error to permit a State's witness to testify that the Hopkins home was located in Ware County, Georgia. This was not a mere conclusion, as urged by the appellant. 15. Four grounds of the motion for new trial and one of the enumerations of error involve testimony of the sheriff. (a) Three of these grounds and the enumeration relate to testimony of the sheriff regarding statements made by the appellant. The appellant argues that the court erred in admitting such testimony because a proper foundation had not been laid as required by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694, 10 ALR3d 974). The evidence is undisputed that the procedural safeguards required by the Miranda case were provided this appellant. An investigating officer and the appellant's court appointed attorney advised him of his constitutional rights, as held by the Miranda case, before he made any statement as to his criminal act. The trial judge conducted a hearing outside the presence of the jury, and after considering testimony as to the facts and circumstances relating to the statements, found they were freely and voluntarily made. This finding was authorized by such evidence. (b) One of the grounds of the motion pertains to testimony of the sheriff concerning a golf club. It urges that the court *563 erred in admitting such testimony as the club had not been admitted in evidence, no proper foundation had been laid, and it had no probative value relative to the appellant's guilt or innocence. This testimony was not subject to these criticisms. As held in the preceding division, the proper foundation had been laid for the statement made by appellant, in which he told, among other matters, of using the club to break the window glass and gain entry into the Hopkins home. 16. In ten grounds of his motion for new trial appellant complains of the conduct of the solicitor general. (a) Four grounds involve denials of his motions for mistrial because of remarks by the solicitor general made in colloquy during the introduction of evidence. We have examined each of these and find none which requires grant of mistrial. (b) Another ground relates to the court's refusal to direct the solicitor general to address his remarks to the court instead of to counsel for the defense. No cause for reversal appears here. (c) Four grounds urge that the court erred in overruling appellant's objections to what he considered attempts by the solicitor general to confuse and entrap appellant's witnesses and to ask irrelevant questions. We have examined these and find that they are without merit. (d) The remaining ground is that the court should have directed the solicitor general to refer to a defense witness by a stated title. This is patently not valid. 17. Appellant in three of his grounds insists that the court erred in permitting the State to recall named witnesses for further testimony. This is a matter within the discretion of the trial judge, and no abuse of discretion is shown. 18. Three of the grounds complain of the trial judge's conduct. One avers that he erred in not granting appellant's motion to disqualify himself because of his "emotional outburst" during the hearing on a preliminary motion. Another ground alleges that he erred in not disqualifying himself because he showed by his conduct of the trial that he "could not sit in judgment of the issues impartially." A careful study of the record shows that these charges are utterly without factual basis. The record *564 shows that the trial judge exercised remarkable restraint and self-discipline. Furthermore, there is no authority, statutory or otherwise, which requires a trial judge to disqualify himself for the reasons ascribed here. The third ground is that the court erred in replying to a question which a State's witness asked the court while on cross examination and that the court's answer was prejudicial to the defense. The transcript discloses that the witness requested and received instruction from the court, and that such instruction was not prejudicial to the appellant. This ground is not meritorious. 19. In two of the grounds appellant urges that the court erred in denying all previous motions renewed by him. These grounds are too vague and indefinite to be considered. The motions are not identified in any way; neither their subject matter nor location in the record is specified. No doubt many of them are controlled by the rulings made in the other divisions of this opinion. 20. The court properly denied appellant's motion for a directed verdict of acquittal. This ground cannot be sustained since, as we have already ruled, the general grounds of the motion are not meritorious. 21. Five of the grounds complain of the court's charge to the jury. The extracts complained of are those which follow. "I charge you, ladies and gentlemen, that where the State proves that the accused killed the deceased in the county and in the manner described in the indictment, a prima facie case of murder is made out, and the burden is on the accused to set up a defense." "Where the killing is proved to be the act of the defendant the presumption with which he enters the trial is removed from him, and the burden is then upon him to justify or mitigate the homicide." "Where a killing is proven the law presumes that every person intends the natural consequences of his act." "If the instrument, used in the manner in which it was used on the occasion, was a weapon likely to produce death, and from the use of such weapon in such manner death ensued, the law, *565 from the use of such weapon in such manner implies malice and the intent to kill." "Now, the defendant being under the age of seventeen years, in the event you find the defendant guilty as charged, would be punished by imprisonment in the penitentiary for life." Appellant has not attempted to show how or wherein the foregoing extracts from the charge are incorrect. The first four are well established principles of law which have been given in charge to juries for many years with this court's approval. The last comports with a recent Act of the General Assembly (Ga. L. 1963, p. 122, supra), and is applicable to punishment for capital offenses of persons under 17 years of age such as the appellant. None of these grounds is valid. 22. Appellant contends in five grounds as to irregularities with reference to the jury. These were first made in a motion for mistrial after the jury had returned its verdict and the verdict had been published. The motion for new trial did not provide any supporting affidavits. These grounds are not meritorious. (a) As to the contention that the jury did not report to the courtroom at 9 a. m. on November 4, 1967, after having been kept together overnight, the trial judge, in denying the motion for new trial, certified that the jury had not requested additional instructions and there was no reason for the jury to have reported to the courtroom. (b) The basis of another ground is that "the jury was not kept together during its deliberation because defendant's counsel saw a juror leave the jury room during the course of deliberation." As to this the trial judge certified that the bailiffs and jurors were instructed with reference to the jury remaining together during their deliberations, and that, "It is the understanding of the court that one juror, during the deliberation, went to the water fount, which is located not more than three feet from the door to the jury room; that he did not speak to anyone and no one spoke to him; that he drank from the water fount and immediately returned to the jury room. The court did not have any knowledge of this until after the verdict was published and judgment was pronounced in open court." With reference to another ground (see Division 22 (d), infra), the *566 judge certified that "bailiffs were on duty during the deliberations and were stationed immediately outside the door to the jury room." Therefore, the juror could not have been more than three feet away from a bailiff when he went to the water fount. (c) Appellant also urges that he was not given an opportunity to submit names of persons for bailiff duty so as to assure that there would be no unauthorized and prejudicial communication with the jury. This ground is patently invalid. The sheriff and the trial judge, not defense counsel, have the responsibility for selection and appointment of bailiffs to take in charge the jury during its deliberations. Superior Court Rule 79; Code Ann. § 24-3379. (d) The appellant also insists that persons were permitted to congregate around the door to the jury room during the jury's deliberations, one such person being a named State's witness. In this connection the trial judge certified that the door to the jury room opens into the hallway of the courthouse, that people did pass along that hallway while the jury was deliberating, but that bailiffs were on duty during the deliberations and were stationed immediately outside the door to the jury room. He further certified that no one communicated with the jury or any member of it during the deliberations. (e) The appellant's motion complains that the sheriff, a chief witness for the State, was permitted to direct the bailiffs in the jury's presence and to receive the jury's verdict. As to this the trial judge certified that the sheriff was sworn in as a bailiff but was not in charge of the jury; that after the jury reached its verdict and returned to the jury box its foreman handed the indictment with the verdict written thereon to the sheriff; that immediately and without looking at the verdict the sheriff handed the indictment to the clerk; that at the instruction of the court, the clerk published the verdict in open court. 23. One ground alleges that the court erred in not permitting appellant's counsel to poll the jury after it had returned its verdict. However, the transcript shows that the jury was polled by the court. That this was done by the court, instead of by counsel, constitutes no error. *567 24. The final ground of appellant's motion for new trial complains of the sentencing of one of his retained counsel, John H. Ruffin, Jr., to jail for contempt of court after the verdict and judgment had been announced. It is not necessary to consider this ground because the contempt proceeding is separate from this appeal, which involves only the trial of the appellant Leroy Holmes. We find that no error was committed in the trial of this case, and accordingly the judgment is Affirmed. All the Justices concur.

Court of Appeals of the State of Georgia ATLANTA,____________________ February 23, 2016 The Court of Appeals hereby passes the following order: A16A0957. DORIS JONES v. WAL-MART STORES, INC., et al. In this direct appeal, Doris Jones seeks review of the superior court’s order affirming a decision of the State Board of Workers’ Compensation. However, an appeal from a decision of the superior court reviewing a decision of the State Board of Workers’ Compensation must be brought by application for discretionary appeal. See OCGA § 5-6-35 (a) (1); Adivari v. Sears, Roebuck & Co., 221 Ga. App. 279 (471 SE2d 59) (1996). Because Jones failed to follow the proper appellate procedure, her appeal is hereby DISMISSED for lack of jurisdiction. See Adivari, supra. Court of Appeals of the State of Georgia 02/23/2016 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk. 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-2456 BRENDA C. CLARKE, Plaintiff - Appellant, versus JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (CA-01-2007-6-20) Submitted: March 28, 2002 Decided: May 9, 2002 Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. Susan J. Firimonte, Florence, South Carolina, for Appellant. Robert D. McCallum, Assistant Attorney General, J. Strom Thurmond, Jr., United States Attorney, John B. Grimball, Assistant United States Attorney, Deana R. Ertl-Lombardi, Chief Counsel, Region VII, Thomas S. Inman, Assistant Regional Counsel, Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Brenda C. Clarke appeals the district court’s order rejecting the magistrate judge’s report and recommendation and upholding the Administrative Law Judge’s denial of claims for Supplemental Security Income. We affirm. We must uphold the decision to deny disability benefits if the decision is supported by substantial evidence and the correct law was applied. See 42 U.S.C.A. § 405(g) (West Supp. 2001); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). We have reviewed the record and the district court’s order and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Clarke v. Barnhart, No. CA-01-2007-6-20 (D.S.C. Nov. 2, 2001). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2 

139 F.3d 401 Robert BURKE, Doctor, Plaintiff-Appellant,v.CITY OF CHARLESTON, Defendant-Appellee. No. 95-2475. United States Court of Appeals,Fourth Circuit. Argued Dec. 6, 1996.Decided March 18, 1998. 1 ARGUED: Robert Marchant O'Neil, The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, VA, for Appellant. John Hamilton Smith, Young, Clement, Rivers & Tisdale, L.L.P., Charleston, SC, for Appellee. ON BRIEF: J. Joshua Wheeler, The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, VA; Gregory S. Forman, Charleston, SC, for Appellant. Stephen P. Groves, Stephen L. Brown, Young, Clement, Rivers & Tisdale, L.L.P., Charleston, SC; William B. Regan, Frances I. Cantwell, Regan & Cantwell, Charleston, SC, for Appellee. 2 Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and DAVIS, United States District Judge for the District of Maryland, sitting by designation. 3 Vacated and remanded by published opinion. Judge DAVIS wrote the majority opinion, in which Judge LUTTIG joined. Chief Judge WILKINSON wrote a dissenting opinion. OPINION DAVIS, District Judge: 4 Appellant Robert Burke, an artist working in South Carolina, challenges the constitutionality of a City of Charleston historic preservation ordinance that governs proposed alterations to exteriors of structures located within historic areas of the city. Burke painted a mural on the exterior wall of a restaurant located in an historic area, but the city's Board of Architectural Review invoked the ordinance and denied the restaurant owner a permit to display the mural. Burke filed suit, and the district court, after a non-jury trial, entered judgment in favor of the city. Burke appeals. 5 We do not reach the merits of Burke's constitutional challenge because we find that Burke lacks standing to assert a First Amendment claim. Burke relinquished his First Amendment rights when he sold his mural to the restaurant owner, who alone has the right to display the mural. Thus, lacking a legally cognizable interest in the display of his work, Burke has not suffered an injury sufficient to satisfy the constitutional requirements for standing. Moreover, even were we to conclude that Burke has suffered injury-in-fact, a decision from this Court in Burke's favor would not redress directly, if at all, the injury Burke presumably suffers. Accordingly, we vacate the judgment and remand with instructions to dismiss the complaint. I. 6 Ron Klenk (who is not a party to this appeal) owns a late federal style building located at 348 King Street in Charleston, South Carolina. Klenk operated a night club on the second floor of his building. Klenk decided to open a bar and grill on the first floor of the building. Impressed with the "world of creatures" Burke had created and displayed at an art show held in the night club, Klenk commissioned Burke to paint a mural depicting the creature world on the exterior masonry wall of the building, which is visible from King Street. At the time of the commission, a mural depicting a willow tree adorned the exterior wall. Burke painted over the willow tree mural with his "colorful cartoon of imaginary characters, including smiling mountains, flying creatures with impractically small wings and tiny yellow bipeds." Through the mural, Burke attempts to convey a message of tolerance for diversity by showing different creatures co-existing peacefully. 7 Klenk's property is located within the Old and Historic District ("District") of Charleston. The District boasts the largest collection--numbering approximately 2800--of historically significant buildings in the United States. The District is the heart of tourist interest in Charleston. In 1931, to further the establishment of an architecturally harmonious environment throughout the District, Charleston enacted its historic preservation ordinances and established its Board of Architectural Review ("BAR"). The BAR reviews all proposed exterior or fixed structural alterations, signs, murals, or other exterior changes to structures in the District before they are effected. The BAR's purpose is to ensure that alterations are complementary in style, form, color, proportion, texture, and material. Thus, those seeking to make such alterations must submit to the BAR an application for a permit and a proposal describing the work to be done. 8 Neither Burke nor Klenk applied for a permit before Burke began to paint the mural. The BAR discovered Burke's mural while Burke was painting it, and issued a stop work order. Subsequently, Klenk--not Burke--filed an application for a permit. The parties agreed to cover the mural with plywood pending approval of Klenk's permit application. Subsequently, they agreed to keep the mural covered for the duration of this litigation. 9 Burke's mural generated public controversy and extensive media attention. Many city residents opposed Burke's mural; others were favorably impressed. A fast food restaurant outside the District commissioned Burke to paint two murals similar to the creature world mural he painted on Klenk's wall. According to Burke, another restaurant owner, whose building is located within the District, approached Burke about the possibility of painting a creature world mural at his restaurant; nothing came of this contact, however, as Burke felt he was precluded by the ordinance from painting another creature world mural in the District. Eventually, the BAR held a public hearing during which Burke, represented by counsel, submitted letters from various supporters of the mural. Others spoke against the mural at the hearing. At the conclusion of the hearing, the BAR issued a report denying Klenk's permit application. The BAR stated that the mural's size, scale, and "garish" colors did not blend with the surrounding area and that the mural was inappropriate for display in the District. 10 Burke, but not Klenk, filed suit in district court, alleging that the BAR's decision to deny Klenk's permit, the lack of articulable standards for approving work, and the use of a vague and overbroad ordinance, violated Burke's free speech and equal protection rights under the first and fourteenth amendments. In its answer, the city raised Burke's lack of standing as an affirmative defense. Later, however, the city voluntarily abandoned this defense. At the conclusion of a non-jury trial, the district court issued its findings of fact and conclusions of law in a thoughtful and carefully-reasoned opinion. Burke v. City of Charleston, 893 F.Supp. 589 (D.S.C.1995). 11 The district court addressed the issue of standing, noting the Second Circuit rule that an artist who sells his work to the government relinquishes his right to have his work displayed. See Serra v. United States Gen. Serv. Admin., 847 F.2d 1045 (2d Cir.1988). The district court distinguished Serra, however, on the ground that the artist in that case was not precluded by an ordinance from displaying his expression. The court also noted that the historic preservation ordinance would operate to thwart Burke's future efforts because it would preclude him from painting another creature world mural for the interested restaurant owner whose property is also located within the District. The court concluded that Burke had standing to pursue his claims, but ultimately held that Burke failed to prove his constitutional rights were violated, and entered judgment in favor of the city as to all claims. Burke brought the present appeal, challenging only the lower court's ruling on the First Amendment issue, while abandoning his equal protection claim. II. 12 " '[E]very federal appellate court has a special obligation to "satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review," even though the parties are prepared to concede it.' " Arizonans for Official English v. Arizona, 520 U.S. 43, ----, 117 S.Ct. 1055, 1071, 137 L.Ed.2d 170 (1997) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)). "And if the record discloses that the lower court was without jurisdiction [a reviewing] court will notice the defect, although the parties make no contention concerning it." Id. at ----, 117 S.Ct. at 1072 (quoting United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 831, 80 L.Ed. 1263 (1936)) (brackets in original). With these guiding principles in mind, we proceed to examine the question whether Burke has standing to bring a First Amendment claim. 13 "Article III of the United States Constitution limits federal courts to resolving actual cases and controversies." Finlator v. Powers, 902 F.2d 1158, 1160 (4th Cir.1990). A litigant does not satisfy Article III's mandate merely by "request[ing] a court of the United States to declare its legal rights" in terms "that have a familiar ring to those trained in the legal process." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). Rather, the judicial power to pass constitutional judgment "is legitimate only in the last resort," Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 402, 36 L.Ed. 176 (1892), and as a necessity in determining "actual cases ... involving issues that are precisely framed by their connection to specific litigants in a concrete context." Gilles v. Torgersen, 71 F.3d 497, 500 (4th Cir.1995).1 14 The Supreme Court has articulated various rules which govern the justiciability of disputes. The standing requirement, "perhaps the most important" condition of justiciability, Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), ensures a litigant has a sufficient personal stake in an otherwise justiciable controversy such that the judicial process appropriately should resolve the controversy. Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972). While the Supreme Court has not defined standing "with complete consistency," Valley Forge Christian College, 454 U.S. at 475, 102 S.Ct. at 760, the irreducible constitutional minimum of standing requires: (1) that the plaintiff personally has suffered actual or threatened injury that is concrete and particularized, not conjectural or hypothetical; (2) that the injury fairly can be traced to the challenged action; and (3) that the injury is likely to be redressed by a favorable decision from the court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992); Finlator, 902 F.2d at 1160. Additionally, the standing inquiry invokes prudential considerations which "add to the constitutional minima a healthy concern that if the claim is brought by someone other than one at whom the constitutional protection is aimed, the claim not be an abstract, generalized grievance that the courts are neither well equipped nor well advised to adjudicate." Secretary of State of Maryland v. Joseph H. Munson, Inc., 467 U.S. 947, 955 n. 5, 104 S.Ct. 2839, 2846 n. 5, 81 L.Ed.2d 786 (1984). 15 Thus, "a plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Moreover, even when a plaintiff satisfies the constitutional requirements for standing, federal courts will not adjudicate a " 'generalized grievance' shared in substantially equal measure by all or a large class of citizens...." Id. Finally, the plaintiff's complaint must fall within the zone of interests the statute or Constitution protects or regulates. Valley Forge Christian College, 454 U.S. at 475, 102 S.Ct. at 760; see also Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829-30, 25 L.Ed.2d 184 (1970); Branch Bank and Trust Co. v. Nat'l Credit Union Admin. Bd., 786 F.2d 621, 624 (4th Cir.1986).2 III. 16 Application of these principles to the case at hand persuades us that Burke lacks standing. The speech being regulated or infringed upon in this case is the speech of the owner of 348 King Street; only that person or entity might elect whether to "express" Burke's fantasy, as depicted in the creature world mural, by displaying it in the District. Burke relinquished his First Amendment rights embodied in the mural when he effectively sold it to Klenk, by creating it on Klenk's real property. Cf. Serra, 847 F.2d at 1049. As Burke conceded at trial, somewhat anomalously, his request for relief would be mooted should Klenk, who had at the time of trial listed the property for sale, sell his property. 17 Burke has failed to demonstrate injury-in-fact. Whether or not the district court's conclusion that the presence of a legal restraint (as compared with an owner's countervailing aesthetic) genuinely distinguishes this case from Serra, we fail to discern how the operation of the ordinance in respect to Burke's right to artistic expression amounts to a concrete injury, rather than a mere tangential effect, at best. Klenk commissioned Burke to create a work of art, and Klenk had little, if any input, into the creative process. Nevertheless, the legally cognizable injury arising from the Charleston ordinance falls upon the party who alone has the right to display the work, not the person who creates it. Put differently, as a matter of Article III standing, the ordinance must be viewed as a regulation of what is displayed in the District, not as a regulation of the colors or content of unexposed bricks and mortar. On the present record, in respect to the exterior wall of 348 King Street, that person is Klenk and only Klenk. 18 Thus, if we viewed the ordinance, or the Board's enforcement of it, as does the dissent, as a cause-in-fact of Burke's having to "stop work," we might well be persuaded that Burke has Article III standing to seek relief.3 Presumably, however, Burke is not interested in continuing to work on a painting that will never be displayed. Obviously, the "mural" could as easily be created in or on a mobile medium (such as the plywood which now covers it), and Burke could work unrestrained by the ordinance in a studio or gallery. Upon delivery of such a composition to Klenk, however, Burke would have no basis in law to obtain a permit in Klenk's or his own name to display it upon Klenk's building. Similarly, he lacks standing in this case to challenge the Board's enforcement of the ordinance against Klenk. 19 Ironically, Burke's own testimony below demonstrated that he largely (if unknowingly) shares this vision of the legal landscape. See, e.g., Supp.App. at 97 ("I believe the government should be involved, but not as far as making laws. I think [the government] should allocate funds to save historic buildings. I think [the government] should help preservationists be organized. But I don't think [the government has] the right to tell someone what they can and can't do, aesthetically, to their store front or to their house") (emphases added). What is at issue in this case is Klenk's right to display what he wishes on his "store front," whoever the artist might be. 20 The district court identified injury from Burke's testimony that another building owner in the District might, absent the ordinance, commission Burke to paint a mural on his exterior wall. The testimony upon which this finding was based is not included in the Appendices filed with the parties' briefs. Such a potential arrangement--a mere expectancy--does not amount to a concrete, palpable injury. Otherwise, a plaintiff could create standing through the expedience of self-serving declarations amounting to little more than argument rather than demonstrable harm. Standing should not be found on this ephemeral foundation. In any event, as set forth above, Burke is not a house painter, but an artist. His inchoate interest in the display of a work he creates but then sells to another does not confer Article III standing sufficient to challenge an ordinance burdening the right of the owner to display the work. 21 Moreover, even assuming this testimony constitutes evidence sufficient to show injury, an order that the ordinance is unconstitutional would not likely redress Burke's grievance that the King Street mural cannot be displayed in the District. No interested building owner is obligated to commission Burke to create a mural on his exterior wall. Absent such a commission, our ruling would lie dormant. Indeed, a subsequent owner of 348 King Street, and obviously Klenk himself, would be free at any time to paint over Burke's mural, just as Klenk hired Burke to paint over the willow tree mural that adorned the exterior wall when Klenk purchased the property. Again, an injunction would lack binding or mobilizing effect upon the parties here. The result would be an inappropriate advisory opinion, a result unequivocally barred by our supreme law.4 22 The federal courts are not "publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding." Valley Forge Christian College, 454 U.S. at 473, 102 S.Ct. at 759. Rather, they are venues preserved for those who have a direct stake in the outcome of the controversy which they seek to litigate. Like the thousands upon thousands of Charlestonians and Charelston visitors who would likely take pleasure in Burke's creation were they only allowed to view it there on Klenk's wall, Burke himself, although the creator of the work, lacks such a direct stake, and as a consequence the district court lacked jurisdiction to adjudicate his claims. IV. 23 For the reasons discussed above, the judgment of the district court is 24 VACATED AND REMANDED WITH DIRECTIONS TO DISMISS THE COMPLAINT. WILKINSON, Chief Judge, dissenting: 25 The majority would deny standing to every artist whose commissioned work was suppressed by the state. I believe Burke does possess standing to challenge Charleston's historic preservation ordinance. He was commissioned to paint a mural on the exterior wall of a building in historic downtown Charleston. Charleston's Board of Architectural Review ("BAR") learned of the project and, pursuant to the preservation ordinance, directed Burke to stop work on his mural. The owner of the building applied to BAR for a permit that would allow completion of the work. Burke agreed to cover the unfinished mural with plywood pending BAR's decision. BAR eventually denied the permit application on the ground that the mural was aesthetically incompatible with Charleston's historic district. Because display is not permitted, Burke's mural remains under plywood. 26 This course of events unequivocally gives Burke standing to challenge the city ordinance. Because of the ordinance, Burke has suffered the concrete injury of having to stop work and board up his mural, shielding it from view. An order from this court invalidating the ordinance that keeps the mural under plywood would certainly redress this injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992) (outlining injury, causation and redressability requirements). The district court even identified another concrete economic opportunity that Burke lost by virtue of the Charleston ordinance. Burke v. City of Charleston, 893 F.Supp. 589, 604 (D.S.C.1995). Moreover, artists receive future commissions precisely because their work is seen and displayed and admired, which Burke's cannot be so long as his mural remains under wraps. 27 But of course a plaintiff need not even suffer economic injury in order to protest the suppression of speech by the state. Plaintiffs protesting infringement of intellectual property interests by another private party often advance allegations of economic loss. See 15 U.S.C. § 1117 (trademark); 17 U.S.C. § 107 (copyright); 35 U.S.C. § 284 (patent). By contrast, plaintiffs asserting First Amendment challenges to state action have relied upon the intrinsic value of speech in count less cases where no economic interest was at stake. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (invalidating ban on anonymous campaign literature as violative of First Amendment); City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (invalidating broad municipal ban on residential signs that prohibited resident from displaying anti-war sign in window of her home). Burke's standing is firmly grounded on just such an intangible, but no less legally cognizable, interest. 28 The majority holds that artists have no First Amendment rights once they sell their work. The majority says this is so because only the owner then has the right to display the art. Display of a piece of art may well be "speech" by its owner, as the majority suggests, but I am unwilling to hold that it wholly ceases to be speech by the artist the second it is sold. In fact, "[i]t is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak." Riley v. National Fed'n of the Blind, 487 U.S. 781, 801, 108 S.Ct. 2667, 2680, 101 L.Ed.2d 669 (1988). In reality an audience, a paying audience, is the lifeblood of any artist, and it is the rare artist who can sustain his craft without selling many, if not most, of his works. The majority's approach thus has the practical effect of leaving most artists with little protection against government suppression of their speech. This is a sad fate for those whose creative efforts make paintings possible. 29 The majority makes much of the indisputable fact that the owner may freely raze the building (and the mural painted thereon) for any reason. But two critical facts distinguish the rights of the owner from the powers of the government. First, the city does not stand in the shoes of the building owner vis-a-vis the mural because the government has not bought and paid for the owner's right to dispose of the mural. Therefore the majority's reliance on Serra v. United States Gen. Servs. Admin., 847 F.2d 1045 (2d Cir.1988), is misplaced. Unlike in Serra, the government has not purchased the art at issue here. Second, and more fundamentally, there is a world of difference between private conduct that suppresses speech and state action that has the same effect--it is the latter that implicates the fundamental protections of the First Amendment. To equate the waiver of property rights with the waiver of constitutional rights against the government is to obliterate a critical distinction in constitutional law. 30 Both parties present able arguments directed at the merits of Burke's First Amendment challenge. Burke asserts a core First Amendment interest in artistic speech. Charleston counters with its interest in maintaining the aesthetic integrity of its historic district and the related interests of protecting property values and promoting tourism. Those arguments deserve to be addressed by this court just as they were by the district court. Though I express no view on the constitutionality of Charleston's historic preservation ordinance, I cannot accept the majority's denial of standing. The restrictive rule of standing imposed upon this artist ill befits the Constitution's concern for free expression and speech. Secretary of State of Maryland v. J.H. Munson Co., Inc., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984). This case is most straightforward--an artist is simply protesting the suppression of his work by the state. Under the majority rule, if the state boarded up the ceiling of the Sistine Chapel, Michelangelo could not contest the action in court. 1 Unquestionably, the Wellman rule of strict enforcement of the standing requirement has continued vitality. Raines v. Byrd, --- U.S. ----, ----, 117 S.Ct. 2312, 2317, 138 L.Ed.2d 849 (1997) ("We have always insisted on strict compliance with this jurisdictional standing requirement.") 2 In some instances, courts will relax the prudential limitations because they are outweighed by competing considerations. Among those weightier considerations within the context of the First Amendment is the danger of chilling free speech. Joseph H. Munson, Inc., 467 U.S. at 956, 104 S.Ct. at 2846-47. One who engages in protected activity regulated by statute might elect to discontinue engaging in that activity rather than launch a First Amendment attack. In such a case, society as a whole suffers a loss. Id. Thus, courts sometimes permit litigants to challenge a statute "not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Nevertheless, a jus tertii plaintiff is obligated as an initial matter to allege a distinct and palpable injury as required by Article III. Warth, 422 U.S. at 501, 95 S.Ct. at 2206-07; Gilles, 71 F.3d at 500 All the members of the panel agree that this is not a proper case for the application of third party standing doctrine. 3 Apparently, the mural was substantially complete when Burke ceased work on it. See Supp.App. at 93-94 4 Indeed, for all that appears in the present record, Klenk, as a property owner in the District, might well be supportive of the constitutionality of the preservation ordinance, and would limit his challenge (were he to make one) to its application in a particular case. No doubt, similar real world considerations should inform interpretation of the Article III standing requirement; federal courts have no warrant, and we ought not, to adjudicate disputes resting on speculation over such matters

559 So.2d 1094 (1990) THE FLORIDA BAR, Complainant, v. John R. WEED, Respondent. No. 70948. Supreme Court of Florida. March 1, 1990. Rehearing Denied May 2, 1990. John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, and *1095 John V. McCarthy, Bar Counsel, Tallahassee, for complainant. John R. Weed, Perry, in pro. per. PER CURIAM. Weed, a member of The Florida Bar, petitions this Court to review a referee's report recommending that he be found guilty of numerous ethics violations and that he be suspended from the practice of law for three years, among other things. We have jurisdiction pursuant to article V, section 15, Florida Constitution, and approve the referee's report and recommendations. The bar's four-count complaint charged Weed with several instances of neglecting legal matters, being convicted of failing to file tax returns, and a mixture of assisting and engaging in illegal conduct and neglect.[1] The referee found Weed not guilty on one count of neglect, guilty of some of the charges in the mixed count, and guilty of failure to file tax returns and the other neglect count.[2] In view of those findings and Weed's previous disciplinary history[3] the referee recommends a three-year suspension, among other things. Weed now claims that the referee erred in allowing the bar to present a witness' testimony before the grievance committee when that witness was present at the referee hearing; that the findings of guilt on two counts are not supported by competent, substantial evidence; that the referee erred in not permitting Weed to present mitigating evidence; that he should have been found guilty of violating some disciplinary rules, but not others; and that the recommended penalty is too severe. We find no merit to any of these contentions. The witness Weed now complains about testified before the grievance committee. Weed, however, did not attend that hearing and, therefore, did not cross-examine him. At the hearing before the referee this witness, an older man, complained of his age, illness, and loss of memory. Because of his inability to recall past events and facts to which he had previously testified, he could not respond to the bar's questions. The referee allowed the bar to introduce his previous testimony and continued the hearing so that Weed could review that testimony and prepare for cross-examining the witness. Disciplinary proceedings are neither civil nor criminal, being instead quasi-judicial. The Florida Bar v. Vannier, 498 So.2d 896 (Fla. 1986); State ex rel. The Florida Bar v. Dawson, 111 So.2d 427 (Fla. 1959). A referee is not bound by the technical rules of evidence, Vannier, Dawson, and "there is no right to confront witnesses face to face." Vannier, 498 So.2d at 898. Moreover, even the confrontation clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective." Delaware v. Fensterer, 474 U.S. 15, 22, 106 S.Ct. 292, 296, 88 L.Ed.2d 15 (1985). Weed had the opportunity to cross-examine this witness at the grievance committee level. That he chose not to do so does not mean that the testimony could not be used at the referee level when the witness became unavailable due to memory loss. See United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). *1096 If a referee's findings of fact are supported by competent, substantial evidence, they will be upheld. The Florida Bar v. Della-Donna, no. 69,324 (Fla. June 22, 1989). After reviewing this record, we hold that the referee's findings are amply supported.[4] We therefore approve those findings of fact. The referee requested that each side file a memorandum regarding aggravation or mitigation of discipline. Weed responded by asking to be allowed to present mitigating evidence after the referee determined his guilt or innocence. Again, Weed chose not to take advantage of an opportunity afforded to him. We find no error in the referee's refusal to accede to Weed's request. We agree with the bar that the recommended penalty is warranted. Therefore, we hereby suspend Weed from the practice of law for three years. We also approve the referee's additional recommendations that Weed pay costs and take and pass all portions of the bar examination and provide proof of rehabilitation before being reinstated. In order to close out his practice in an orderly fashion and to protect his clients' interests this suspension will begin thirty days from the date this opinion is filed. Weed will accept no new business after that date. Judgment for costs in the amount of $3,827.49 is hereby entered against Weed, for which sum let execution issue. It is so ordered. EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. NOTES [1] Count I charged neglect of a legal matter dealing with one client's attempt to recover for damages sustained in an automobile accident; count IV also charged neglect when a father hired Weed to appeal his two sons' juvenile vandalism convictions, but Weed did not pursue the appeal; count II alleged that Weed was charged with four misdemeanor counts for willfully and knowingly failing to file income tax returns for 1978-81, that Weed pled guilty to two counts in exchange for dismissal of two counts, and was sentenced to ten months imprisonment and placed on probation for five years; count III claimed that Weed assisted a client in renting out the client's barn to store marijuana and neglected a legal matter in failing to appeal that client's convictions in another drug smuggling scheme. [2] The referee found Weed not guilty on count I, neglect; guilty on counts II and IV, failure to file tax returns and neglect; and guilty of the neglect portions of count III, mixed count. [3] Weed has previously received a private reprimand and a 60-day suspension with three years' probation. The Florida Bar v. Weed, 513 So.2d 126 (Fla. 1987). [4] This includes the referee's finding that Weed's failure to file tax returns amounted to engaging in illegal conduct involving moral turpitude because failure to file such returns does involve moral turpitude. The Florida Bar v. Lord, 433 So.2d 983 (Fla. 1983).

62 F.2d 817 (1933) VAUGHT et al. v. CHARLESTON NAT. BANK. No. 704. Circuit Court of Appeals, Tenth Circuit. January 5, 1933. Raymond R. Ryan, of Albuquerque, N. M., for appellants. Merritt C. Mechem, of Albuquerque, N. M. (Henry G. Coors and D. A. MacPherson, Jr., both of Albuquerque, N. M., on the brief), for appellee. Before LEWIS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge. McDERMOTT, Circuit Judge. The Receivers of The White Pine Lumber Company appeal from the allowance of a claim for $6,344.81, based on the corporation's negotiable note payable to W. A. MacCorkle, its President, and signed by Frank H. Porter, its Treasurer and General Manager. The note was endorsed in blank by MacCorkle and delivered to the appellee (then the Kanawha National Bank) before maturity, as collateral security for any indebtedness owing by MacCorkle or his son to either the bank or to one McCabe, trustee of the funds of the Charleston Shrine, and an officer of the bank. At the time of the pledge, MacCorkle's son was indebted to the bank, but that indebtedness was paid before this action was brought. MacCorkle and his son then were, and still are, indebted to McCabe for more than the amount of the note. The defenses are that Porter had no authority to sign the note, and that it was executed without consideration and in fraud upon the corporation. Appellee joined issue upon both grounds, *818 and further claims the protection afforded a bona fide purchaser for value. The appeal brings before us the question of whether the evidence supports the findings of the trial court on these issues. First as to the authority of Porter. From its inception, the control of the corporation was vested in the Porter and MacCorkle families, both of Charleston, West Virginia. Frank H. Porter was elected Treasurer and General Manager of the corporation at its first meeting and was granted "full power and authority to take general charge of the affairs of this company and to conduct the business of the Company in accordance with the Charter and By-Laws of the Corporation." His salary was fixed at $12,000 per annum. At the same meeting a resolution was passed "That ____ the said Treasurer or President is authorized to sign, endorse, accept, make, execute and deliver any and all checks, notes, drafts and bills of exchange." Porter was then, and when this note was executed, "the said Treasurer." Porter signed 58 notes, of a face value of $502,612.48, pursuant to such authority, 16 of which were original notes signed after the one in controversy. The directors knew he was signing corporate notes, and all of them were recognized as corporate obligations, except the one in suit. They repeatedly told Porter that they must depend upon him to look after the corporate business, that he was in full charge. No officer, director or stockholder has disputed the corporate obligation to MacCorkle, or the authority of Porter to execute the note therefor. We conclude that the record abundantly sustains the trial court's finding that Porter had both actual and ostensible authority to execute the note in suit. Appellants contend that Porter was not the Treasurer of the corporation when he signed the note, because his resignation was then in escrow. His resignation was not accepted until the terms of the escrow were fulfilled, on December 3, 1929, and his successor as Treasurer, but not as General Manager, was elected on that day. A written instrument placed in escrow is not effective until the condition of the escrow is performed. County of Calhoun v. American Emigrant Co., 93 U. S. 124, 127, 23 L. Ed. 826. Porter was therefore Treasurer, as well as General Manager, when the note was executed. Appellants then argue that, in any event, Porter had no authority to deliver the note after December 3rd. The note was executed on November 18, 1929, and remained in the manual custody of Porter until December 6th, when he mailed it to MacCorkle. Porter's resignation as Treasurer became effective on December 3rd; on that day he was elected Vice President, and he continued to act as General Manager until his resignation as such was accepted on March 17, 1930. We do not stop to inquire as to his authority after December 3rd to deliver the note executed in November, for the evidence sustains the trial court's finding as to its delivery in November. The circumstances were these: In September, 1929, one Kaplan, acting for himself and associates, negotiated for the stock control and management of the corporation. These negotiations led up to a written contract, one of the terms of which was that the creditors of the corporation should be paid. An itemized statement of the indebtedness of the corporation was furnished to Kaplan, and included therein is this obligation to MacCorkle. No objection was made to this obligation, but in November Kaplan requested that MacCorkle take a corporation note instead of the cash called for by the contract, to which MacCorkle reluctantly agreed. Kaplan then directed Porter to execute the note in question, and Porter wired MacCorkle that he had executed the note and held it. MacCorkle then wired Porter that "upon the thorough understanding you have in hand White Pine note which is strictly a negotiable note" he consented to the modification of the purchase contract in this respect. On that date, Porter intended immediately to return to Charleston and deliver the note by hand. His trip was delayed from day to day, and on December 6th he mailed it to MacCorkle. Section 27-297, N. M. Comp. Stat. 1929, the Uniform Negotiable Instruments statute, provides that "`delivery' means transfer of possession, actual or constructive, from one person to another." There is here written evidence of a constructive delivery. Furthermore, the New Mexico statute provides that where a negotiable instrument is in the hands of a holder in due course, a valid delivery is conclusively presumed. Section 27-122, N. M. Comp. Stat. 1929. Upon the defense of lack of consideration and fraud, the trial court found "That W. A. MacCorkle, now deceased, of Charleston, West Virginia, was a director of said company from its organization to March 17, 1930, and was president of the said company for about three years prior to December 3, 1929, upon which last said date he resigned as such president; that for two or two and one-half years prior to September, *819 1929, said W. A. MacCorkle rendered to and for the benefit of the company many valuable services not within the scope of his ordinary duties as president and outside of the duties imposed upon him by virtue of his office as president, and that such services were performed by him with the knowledge of and at the request of the general manager, Frank H. Porter, and with the acquiescence of the directors and officers of the company, for which services MacCorkle had a right to expect reasonable compensation; that said services so rendered by MacCorkle to and for the great benefit of the company were reasonably worth the sum of six thousand dollars." MacCorkle was paid no salary for his services as President and Director, as such. He was a lawyer who lived in Charleston, West Virginia, but was not the general attorney for the company. The properties and home office of the corporation were in New Mexico. It appears without dispute that in the years 1927, 1928, and 1929, MacCorkle spent a considerable part of his time in endeavoring to extricate the company from the financial mire in which it found itself. He negotiated loans for the company in Cincinnati, in Richmond, and in Charleston; but in order to do this he was required to, and did, pledge his personal credit for upwards of $100,000. He conducted negotiations for the sale of the properties in Detroit and New York City. These efforts were expended in an endeavor to protect the stockholders, of which he was one, and the creditors, of which he became one. His actual outlay for traveling and telegraphic expense was $334.81. The testimony is: "He continued working from the spring of 1927 until the fall of 1929, in aiding in any way, running all over the country, negotiating, trying to make sales, trying to get them interested in the purchase of the company, getting renewals of these notes in Richmond, Cincinnati, Charleston, using his influence personally to keep these banks from pressing us, I cannot begin to enumerate, he was working for the company all the time. The work of which I am speaking in securing the renewal of notes at various banks is part of it. If the company became insolvent, Governor MacCorkle would probably be liable as endorser on these notes, if the company didn't bring enough to pay them out. The other services by Governor MacCorkle forming the basis of this charge in his favor is his advice, and negotiating with the lumber companies with a view of making a sale of The White Pine Lumber Company to them, getting them interested to come into the company, working with Mr. Kaplan on the trackage right we sold to Mr. Kaplan, the final deal with Mr. Kaplan." Except for the note in suit, he received no compensation for any of these extraordinary services. When negotiations were under way to sell the properties to Kaplan, MacCorkle agreed with Porter upon payment of $6,000 in full compensation for all of his services, which agreement was reported to Kaplan, the proposing purchaser, and Kaplan accepted it as a corporate obligation. At that time the amount was entered on the books of the company. The directors were advised of the services MacCorkle was rendering, and of the agreement for compensation therefor, and informally approved. The by-laws of the corporation provide that the directors of the corporation shall receive no stated salary for their services, but "nothing herein contained shall be construed to preclude any Director from serving the Company in any other capacity and receiving compensation therefor." The official duties of the President are those usually prescribed in by-laws, and that he shall have general and active management of the business of the company. This clause must be construed in the light of the other facts. MacCorkle was a lawyer living in West Virginia, and drew no salary as President. The business and offices of the company were in New Mexico, and broad powers of general management were conferred upon Porter, accompanied by an adequate salary. Under such circumstances, the managerial duties of the President must be construed to be those of general supervision only. The undisputed evidence shows that MacCorkle performed many valuable services for the benefit of the corporation, over and above those which might fairly be expected from the President of a corporation serving without salary. There is no evidence whatever to support the charge of fraud. On the contrary, all the evidence leads directly to the conclusion that the entire transaction was carried out in the utmost good faith. The reputation of those concerned in the immediate transaction is unimpeachable. Although the charge did not then appear upon the books, the proposing purchaser was advised that such a claim existed, and the amount thereof. The negotiations leading up to the acceptance of the note were carried on by telegrams, and they disclose that Governor MacCorkle's primary object was to see that the other creditors of the corporation were *820 satisfied. The record of time spent and results accomplished amply sustains the trial court's finding that the allowance was reasonable in amount. There is nothing whatever in the record to sustain even an inference of actual fraud. Appellants contend, however, that an officer of a corporation may not be paid for his services, as such, without an antecedent agreement therefor. But we are not dealing with the question of compensation for the usual services of a corporate officer. We are dealing with services performed which are over and above those which might reasonably be expected of an officer as such. While there is much literature on the subject of the compensation of corporate officers, the rules applicable thereto are traceable to two principles of the law of agency and of fiduciaries. One may not recover for services rendered to another unless there is an express or implied agreement to pay therefor; but if valuable services are rendered another, at his request or with his acquiescence, an implied obligation to pay therefor arises, unless there are circumstances, such as a family relationship, which repel the implication. Mechem on Agency (2d Ed.) §§ 1516, 1518. Where one accepts a position as director or officer of a corporation, without a prior agreement as to compensation, the fiduciary relationship repels the implication that services rendered in such capacity are to be paid for. Thompson on Corporations, § 1842; Fitzgerald Const. Co. v. Fitzgerald, 137 U. S. 98, 111, 11 S. Ct. 36, 34 L. Ed. 608; Monmouth Inv. Co. v. Means (C. C. A. 8) 151 F. 159, 167; Ebner v. Alaska Mildred Gold Mining Co. (C. C. A. 9) 167 F. 456; Moon Motor Car Co. v. Moon (C. C. A. 8) 58 F.(2d) 90. The same fiduciary relationship prohibits officers from voting themselves backpay, — compensation to which they were not entitled when the service was performed. Thompson on Corporations, § 1879. All transactions between officers of a corporation, involving corporate properties, are subject to the closest scrutiny. "A chancellor should probe such a transaction to the very marrow," to borrow the language of Judge John F. Philips in Monmouth Inv. Co. v. Means, supra. But these salutary and settled principles do not proscribe the employment of an officer for tasks other than those imposed upon him by his office. The rule is accordingly well settled that where an officer of a corporation, at the request or with the acquiescence of other authorized officers, renders services clearly outside of his ordinary official duties, under circumstances which raise a presumption that the parties should have understood that they were to be paid for, he may recover reasonable compensation therefor. Fitzgerald Const. Co. v. Fitzgerald, 137 U. S. 98, 111, 11 S. Ct. 36, 34 L. Ed. 608; Corinne Mill, Canal & Stock Co. v. Toponce, 152 U. S. 405, 14 S. Ct. 632, 38 L. Ed. 493; National Loan & Investment Co. v. Rockland Co. (C. C. A. 8) 94 F. 335; Montana Tonopah Mining Co. v. Dunlap (C. C. A. 9) 196 F. 612; Denman v. Richardson (C. C. A. 9) 292 F. 19, 23; Tietsort v. Irwin (C. C. A. 6) 9 F.(2d) 65; Church v. Harnit (C. C. A. 6) 35 F.(2d) 499, certiorari denied 281 U. S. 732, 50 S. Ct. 247, 74 L. Ed. 1148; Crown Central Petroleum Corp. v. Bates (C. C. A. 5) 37 F.(2d) 508, certiorari denied 281 U. S. 743, 50 S. Ct. 348, 74 L. Ed. 1156; Pew v. First Nat. Bank, 130 Mass. 391, 395; Wilgus, Cases on Private Corporations, p. 1757; Thompson on Corporations, (3d Ed.) Ch. 66, §§ 1825-1829; Subject note, L. R. A. 1917F, 319. In the Fitzgerald Case, supra, it was held that it was outside of the official duties proper of the treasurer of a private corporation to go to expense and trouble to procure finances for the company. It is obvious that, in applying these rules, we must first ascertain what duties are imposed by the office. We look to the by-laws, but our search does not end there, as appellants urge. We must look to the other facts and circumstances, and particularly to the question of the salary attached to the office, for the question of what duties the parties intended should be performed by an officer, is one of fact. A President, serving without pay, is expected to attend meetings of the Board, to sign stock certificates, and generally to advance the corporate interests in such ways as non-salaried officers usually do. Such a President cannot reasonably be expected to devote his full time to corporate affairs, any more than a lawyer-director, serving without pay, can be expected to attend to corporate litigation without compensation. The facts of this case bear the closest scrutiny, and clearly support the judgment below. It could not reasonably be expected that Governor MacCorkle, a lawyer of Charleston, would devote a considerable part of his time in traveling from city to city in an effort to re-finance a New Mexico corporation, without some compensation. Such activities are entirely outside of the official duties of a director or President who serves without pay. Appellants then urge that if he is entitled to any pay, it is as salary and not as compensation, *821 and advances reasons why it cannot be paid if labeled "salary." It appears that when MacCorkle was elected President there was an informal agreement by the board that he should be paid a salary of $5,000 a year; but the corporation was in financial straits, and he did not draw any of it. When the corporation was about to be sold, he agreed to accept $6,000 in full for his three years' services. Appellants argue that this is salary and not compensation. But that is drawing too fine a bow. The witness Porter spoke of the payment at times as "salary" and at times as "compensation." But this litigation cannot turn upon the characterization of a witness; the fact is that Governor MacCorkle rendered much valuable service over and above the purely official duties of a President; the compensation agreed upon is modest; the claim is just, and it ought to be paid. There being no infirmity in the note, it is unnecessary to pass upon the question of whether the appellee is a holder in due course. The authorities cited bear upon the situation where a note is assigned for collection, or to an assignee for the benefit of creditors. No case has been cited holding that where a note is transferred to A, to secure an existing indebtedness to B, that A may not be a holder in due course. Cf. Commissioners of Johnson County v. Thayer, 94 U. S. 631, 644, 24 L. Ed. 133; Kinkel v. Harper, 7 Colo. App. 45, 42 P. 173; Curtis v. Leavitt, 15 N. Y. 194. The judgment is affirmed.

United States Court of Appeals For the First Circuit No. 17-1779 UNITED STATES OF AMERICA, Appellee, v. HEISSAN HERNÁNDEZ-RAMOS, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge] Before Howard, Chief Judge, Boudin and Barron, Circuit Judges. Alex Omar Rosa-Albert on brief for appellant. Francisco A. Besosa-Martinez, Assistant United States Attorney, Rosa Emilia Rodriguez-Velez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee. October 15, 2018  BOUDIN, Circuit Judge. Heissan Hernández-Ramos ("Hernández") appeals to contest his sixty-month prison sentence following a guilty plea entered in district court to two offenses: being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and unlawfully possessing a machine gun, id. § 922(o). On September 1, 2016, Puerto Rico police officers were patrolling in the vicinity of the Luis Llorens-Torres Public Housing Project in San Juan. As the officers approached a group gathered near a known drug distribution point, one man, Hernández, pulled a firearm from his waist and fled, throwing down the firearm. The police captured Hernández and recovered the gun, which proved to have been modified to fire as an automatic weapon. Hernández pled guilty to both counts. Based on a total offense level of seventeen and a criminal history category ("CHC") of III, the presentence report stipulated a guidelines imprisonment range of thirty to thirty-seven months. At sentencing, the government sought a sentence at the top of the guidelines range. The government argued that Hernández had previously been convicted of crimes involving weapons and threatening public officers, serving time for one such crime, and that messages on his cell phone suggested his involvement in selling drugs and high-capacity firearm magazines. Defense counsel requested a twenty-four-month sentence, a six-month downward variance. - 2 -  The district court, in no way bound by the parties' sentencing recommendations whether the parties agree or differ, United States v. Rivera-González, 776 F.3d 45, 51 (1st Cir. 2015), varied upward based on the severity of the offense and related conduct, Hernández's criminal history and past behavior, and the need to deter Hernández and other individuals from committing firearms offenses. The court noted Puerto Rico's continuing experience with gun violence, a permissible sentencing consideration provided the court does not "ignore [a defendant's] individual circumstances." United States v. Laureano-Pérez, 892 F.3d 50, 52 (1st Cir. 2018). The court sentenced Hernández to sixty months in prison to be followed by three years of supervised release. The court's summary of its reasoning was as follows: [T]his is an individual who continues to threaten other individuals, has had weapons when he's threatened others, and has . . . semiautomatic or a machine gun-type firearms in his possession, he's carrying them. He's also distributing controlled substances or trafficking firearms. Even though he's not charged with that here, it is something the Court can consider. So, I find in this particular case an upward variance is warranted. And I find that given all the factors that I just mentioned along with the community geographic factors, the recidivism he has shown, the type of firearm he was carrying, and also the fact that his cell phone reveals that he is selling minor amounts of drugs and also trafficking or attempting to traffic ammunition, the Court finds that a sentence of 60 months is sufficient but not greater than necessary. - 3 -  Defense counsel objected to the sentence as "procedurally unreasonable." The court answered: "What you're talking about is 'substantively unreasonable.' Object to both and preserve it for the record." Defense counsel replied, "Right. Substantively and procedurally unreasonable . . . for the record." On appeal, Hernández's sole claim is that the variant sentence was excessive and thus substantively unreasonable. Reviewing for abuse of discretion, Gall v. United States, 552 U.S. 38, 56 (2007), this case is a clear affirmance. Hernández repeatedly points out that the district court's sentence doubled the lower end of the guidelines range, but the more pertinent figure for our analysis is the distance between the upper end of the guidelines range and the imprisonment term. When examining this variance, we recognize that "a major departure should be supported by a more significant justification than a minor one." Id. at 50. The upper end of the guidelines range was just over three years, and Hernández received a five-year sentence for two offenses for which Congress in each case fixed ten years as the statutory maximum, 18 U.S.C. § 924(a)(2), making difficult a claim that the sentence here was "outside the universe of reasonable sentences . . . ." United States v. Paulino-Guzman, 807 F.3d 447, 451 (1st Cir. 2015). What matters more than generalities are Hernández's own conduct and history as well as the force of the district - 4 - court's reasoning. Hernández contends that because his offense conduct and personal characteristics were already considered by the Probation Officer in calculating the guidelines sentence, the judge double- counted the same factors in relying on them to justify the variance. The offense conduct and the defendant's criminal history form the foundation of most guidelines calculations. Hernández's double-counting argument, if embraced, would render every variance based on offense conduct and the defendant's characteristics unreasonable. Accordingly, this court has rejected this argument, permitting consideration of a defendant's prior criminal history in both the CHC determination and the section 3553(a) variance analysis. United States v. Maisonet-González, 785 F.3d 757, 763- 64 (1st Cir. 2015). Hernández also says that the district court assigned too much weight to community factors and failed to individually tailor his sentence. The sentencing transcript shows that the court discussed Hernández's age, education, family background, and escalating criminal history--including incidents in which he had threatened law enforcement officers--before analyzing the seriousness of the offense and the need to promote deterrence. Past decisions have upheld similar variances. Laureano-Pérez, 892 F.3d at 52–53 (collecting cases). The variance, although - 5 - substantial, was lawfully imposed and adequately explained. Finally, Hernández argues that the government stood by its recommendation of a sentence within the guidelines range, so it would be "unbecoming" for the government to defend the variance on appeal. This, however, is quite common: "As an appellee, the government is tasked, in effect, with defending the district court's judgment when a criminal defendant appeals." United States v. Carbajal-Váldez, 874 F.3d 778, 786 (1st Cir. 2017). And no matter the propriety of the government's defense, the outcome is our responsibility. Affirmed. - 6 - 

639 N.E.2d 917 (1994) 266 Ill.App.3d 391 203 Ill.Dec. 358 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kermin A. TINKHAM, Defendant-Appellant. No. 4-93-0876. Appellate Court of Illinois, Fourth District. Argued July 19, 1994. Decided August 23, 1994. *918 Richard M. Kash, Jr. (argued), Fruin & Garst, Paris, for appellant. Allan F. Lolie, Jr., State's Atty., Paris, Norbert J. Goetten, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, David E. Mannchen (argued), Staff Atty., Springfield, for appellee. Justice GREEN delivered the opinion of the court: Section 11-501 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501 (West 1992)) creates the offense of driving a motor vehicle while under the influence of alcohol or drugs (DUI) and provides for penalties. Section 11-501(d)(1) of the Vehicle Code states: "(d) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol or drugs or a combination of both which shall be a Class 4 felony if: (1) such person committed a violation of paragraph (a) [DUI offense] for the third or subsequent time." (Emphasis added.) 625 ILCS 5/11-501(d)(1) (West 1992). On April 26, 1993, the State charged defendant Kermin A. Tinkham in the circuit court of Edgar County with the offense of aggravated DUI occurring on April 25, 1993. The first of the two factors aggravating the offense were alleged in words as follows: "[T]he defendant having previously committed the same offense in Edgar County on April 25, 1986, and having been convicted of a second offense in Edgar County on April 17, 1987." (Emphasis added.) Defendant moved to dismiss on the basis that the conduct alleged to have been committed on April 25, 1986, resulted in a supervisory order which was not a conviction and thus failed to qualify as the first factor which would enhance the offense charged to aggravated DUI. The State concedes that such a supervisory order was entered. The motion to dismiss was denied. A bench trial was held and, on August 2, 1993, the circuit court found defendant guilty of aggravated DUI and sentenced him to two years of probation with 180 days to be served in the Edgar County jail. Defendant has appealed making the sole contention that the alleged April 26, 1986, episode which resulted in a supervisory order for DUI was erroneously considered as a factor which enhanced the offense of DUI, which he admittedly committed, to the offense of aggravated DUI. We disagree with this contention and affirm. The supervisory order resulting from defendant's conduct on April 25, 1986, was entered pursuant to section 5-6-1(c) of the Unified Code of Corrections (Unified Code) which, at all times pertinent, has stated that upon a "plea of guilty" to a criminal charge or upon a stipulation of the existence of facts supporting such a charge, the court, under certain circumstances, may place the person charged under an order of supervision. (Ill. Rev.Stat.1985, ch. 38, par. 1005-6-1(c).) At *919 all such times sections 5-6-3.1(d), (e), and (f) of the Unified Code have stated the following in regard to orders of supervision: "(d) The court shall defer entering any judgment on the charges until the conclusion of the supervision. (e) At the conclusion of the period of supervision, if the court determines that the defendant has successfully complied with all of the conditions of supervision, the court shall discharge the defendant and enter a judgment dismissing the charges. (f) Discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime." (Emphasis added.) (Ill.Rev.Stat.1985, ch. 38, pars. 1005-6-3.1(d), (e), (f).) Section 5-6-3.1(f) of the Unified Code also provides a procedure where one subject to a supervisory order may eventually have that order sealed or expunged. The dispute centers upon the meaning of the words "committed a violation of paragraph (a)" contained in section 11-501(d)(1) of the Vehicle Code. Defendant maintains that the word "committed" is ambiguous and generally ambiguities in legislation enhancing criminal penalties should be resolved in favor of the accused. (People v. Alejos (1983), 97 Ill.2d 502, 512, 74 Ill.Dec. 18, 22, 455 N.E.2d 48, 52; People v. Carlock (1981), 102 Ill. App.3d 1100, 1102, 58 Ill.Dec. 270, 272, 430 N.E.2d 212, 214.) Defendant then points out that an order of supervision does not involve entry of a judgment until the period of supervision is completed and where, as here, it is successfully completed the judgment is a dismissal of the charges which does not amount to a conviction or adjudication of guilt "for purposes of disqualification or disabilities imposed by law upon conviction of a crime." Ill.Rev.Stat.1985, ch. 38, par. 1005-6-3.1(f). Defendant maintains that under Alejos and Carlock, and considering the characteristics of an order of supervision just described, we should interpret the word "committed" as it appears in section 11-501(d)(1) of the Vehicle Code to mean "convicted" or, in the alternative, treat the characteristics of the order of supervision as being inconsistent with enhancement. Three appellate court decisions of this State have dealt directly with enhancement through an order of supervision to aggravate a DUI and all of them hold that section 11-501(d)(1) of the Vehicle Code does not require a DUI conviction to aggravate the DUI offense. These cases are People v. Winkler (1993), 248 Ill.App.3d 954, 188 Ill. Dec. 91, 618 N.E.2d 661, People v. Lambert (1993), 249 Ill.App.3d 726, 188 Ill.Dec. 909, 619 N.E.2d 534, and People v. Sheehan (1994), 261 Ill.App.3d 325, 198 Ill.Dec. 689, 633 N.E.2d 151. We agree with the decisions in the first two of those cases and with part of the analysis in the last case. The Winkler court concluded that the language of section 11-501(d)(1) of the Vehicle Code should be given its plain and ordinary meaning (see Cunningham v. Huffman (1993), 154 Ill.2d 398, 405, 182 Ill.Dec. 18, 21-22, 609 N.E.2d 321, 324-25) and that proof of the commission of a violation of section 11-501 of the Vehicle Code did not require proof of a conviction of that section. The court reasoned that, although placement of a person on supervision does not constitute an adjudication the person has committed the offense involved, a person placed on supervision has either pleaded the commission of the offense or stipulated to facts constituting the offense. Winkler, 248 Ill.App.3d at 957, 188 Ill.Dec. at 92-93, 618 N.E.2d at 662-63. The Lambert court cited Cunningham and relied upon the plain meaning of section 11-501(d)(1) of the Vehicle Code as being that a person need not have been convicted of DUI to have "committed" the offense. Both decisions upheld convictions of aggravated DUI where the original commission of DUI was shown by an order of supervision. The Sheehan court agreed that conviction of both prior enhancing DUI offenses was not necessary to elevate the third offense to aggravated DUI. Nonetheless, the majority opinion held that an enhancing offense could not be proved by a supervisory order for a prior DUI offense alone. Accordingly, the *920 dismissal of charges which relied entirely upon a supervisory order to show an enhancing offense was affirmed in two consolidated appeals. The Sheehan majority opinion was comprehensive. It noted that a supervisory order is admissible against that defendant in a civil case but is not conclusive upon the question upon which it is admitted. (See Wright v. Stokes (1988), 167 Ill.App.3d 887, 891-92, 118 Ill.Dec. 853, 856, 522 N.E.2d 308, 311.) The Sheehan majority, as does defendant here, relied upon the stated characteristics of a supervisory order set forth in sections 5-6-3.1(d), (e), and (f) of the Unified Code in concluding such an order is also nonconclusive when presented for enhancement in a criminal case. The Sheehan majority does envision the case of a supervisory order as some evidence of the commission of an enhancing DUI offense in a case where aggravated DUI is charged. However, to be admissible that majority would require the State to prove that the defendant had opportunity for counsel before making the plea and that a factual basis existed for the plea. The Sheehan majority looked to the legislative history of House Bill 2700 enacted during the 1987 session of the General Assembly (85th Ill.Gen.Assem., House Bill 2700, 1987 Sess.), which added the aggravated DUI provisions to section 11-501 of the Vehicle Code. The majority found that the legislative history was inconclusive as to the use of an order of supervision in enhancing a DUI offense to a Class 4 felony. We agree with that assessment. The Sheehan majority then applied the rule that when legislative intent is unclear, the court should select a construction which is logical and useful (Check Inn Lounge, Inc. v. Kozubowski (1987), 164 Ill.App.3d 1023, 1030, 115 Ill.Dec. 917, 921, 518 N.E.2d 442, 446), and avoid a construction making the legislation meaningless. (Yellow Equipment & Terminals, Inc. v. Lewis (1976), 35 Ill. App.3d 875, 879, 342 N.E.2d 426, 429.) The opinion agreed with the State that the word "committed" in section 11-501(d)(1) of the Vehicle Code is intended to be a more inclusive enhancing factor than would be the case if the word "convicted" had been used. We agree with the analysis of the Sheehan majority up to and including the conclusion that the General Assembly intended for the word "committed" to have a broader scope than the word "convicted." The Sheehan majority then envisioned a procedure whereby in the proof of the enhancement of the offense the State could offer the plea in the earlier proceeding, where supervision was granted, as some evidence of enhancement and the trier of fact would then determine whether the enhancing factor was proved beyond a reasonable doubt. We do not deem that this interpretation of the legislation in issue sets forth a logical and useful operation of section 11-501(d)(1) of the Vehicle Code. In Carlock, the Appellate Court for the Second District was confronted with the enhancing provision of section 11-20(d) of the Criminal Code of 1961, which stated: "Obscenity is a Class A misdemeanor. A second or subsequent offense is a Class 4 felony." (Ill.Rev.Stat.1979, ch. 38, par. 11-20(d).) The Carlock court affirmed a circuit court order which dismissed an indictment for felony obscenity. That charge alleged the date and location of conduct by the defendant alleged to be an enhancing factor but did not allege that conduct resulted in a conviction. The Carlock opinion explained that the legislature would not have intended a procedure whereby the State presented evidence of both the acts constituting the offense charged and also the enhancing offense. The court described such a procedure as both very undesirable and likely unconstitutional. The procedure condemned by the Carlock court is the very procedure the Sheehan majority envision here as a way to reconcile the use of the word "committed" instead of "convicted" in section 11-501(d)(1) of the Vehicle Code. We conclude that a more logical and useful construction of section 11-501(d)(1) of the Vehicle Code is to attribute the use of the word "committed" instead of "convicted" to be to allow unexpunged orders of supervision for DUI to be used to conclusively enhance the severity of that offense when later charges are made. *921 The use of orders of supervision for first offenders committing DUI is well known. In seeking to determine the legislative intent of section 11-501(d)(1) of the Vehicle Code, the Sheehan majority quoted from statements made on the floor of the House of Representatives by two of its members (85th Ill.Gen.Assem., House Proceedings, May 21, 1987, at 27-28 (statements of Representative Cullerton); at 34-35 (statements of Representative McCracken)). Both spoke of supervision being the most likely disposition for the first DUI charge made against a typical defendant to a charge of aggravated DUI. Our interpretation of section 11-501(d)(1) of the Vehicle Code is consistent with the overall philosophy of orders of supervision. They are to be entered only if the court determines the defendant is unlikely to commit further crimes. (730 ILCS 5/5-6-1(c)(1) (West 1992).) The logical purpose of the procedure is to protect a person who fulfills that expectation from detriment for that initial offense. That offense is not intended to disqualify him from various privileges he might enjoy nor place disabilities upon him. However, when that expectation of the court is not fulfilled and that person commits the same offense again and then is charged with a third offense, logic dictates that the law recognizes, rather than disregards, the first offense for which the perpetrator was treated with such great restraint. We recognize language in opinions of the Appellate Court for the Fifth District which implies that section 11-501(d)(1) of the Vehicle Code requires the existence of two prior DUI convictions in order to enhance a subsequent conviction to aggravated DUI. (People v. Harrison (1992), 225 Ill.App.3d 1018, 1024, 168 Ill.Dec. 12, 15-16, 588 N.E.2d 1256, 1259-60; People v. Masten (1991), 219 Ill. App.3d 172, 175-76, 161 Ill.Dec. 770, 772-73, 579 N.E.2d 27, 29-30.) However, that language was used in the context of situations where no supervisory orders were involved. In Masten, that court held that a judgment entered on a plea of guilty to DUI without any judgment of sentence was an enhancing factor to support a conviction for aggravated DUI. We also recognize that in People v. Tarkowski (1981), 100 Ill.App.3d 153, 55 Ill.Dec. 485, 426 N.E.2d 631, the court was concerned with the appealability of an order placing a person on supervision. The court concluded that order was not properly appealed because no notice of appeal had been filed within the required 30-day period. The court then indicated that in any event, that court considered such an order "akin to a judgment of acquittal, which is expressly nonappealable under our constitution." (Tarkowski, 100 Ill.App.3d at 161, 55 Ill.Dec. at 491, 426 N.E.2d at 637.) Here, again, the ability of a supervisory order to enhance the severity of a subsequent offense was not in issue. In People v. Phillips (1978), 56 Ill.App.3d 689, 14 Ill.Dec. 161, 371 N.E.2d 1214, the court reversed enhanced sentences which were imposed pursuant to section 411 of the Illinois Controlled Substances Act (Ill.Rev. Stat.1975, ch. 56½, par. 1411) because convictions for the principal and enhancing offenses occurred on the same day and were for offenses which occurred within a four-day period. The court explained its ruling partly in these words: "Enhanced penalty statutes are enacted as a warning to a first offender of the consequences of a second conviction, and it cannot legally be known that an offense has been committed until there has been a conviction. [Citation.] Further, an enhanced penalty should not be imposed until the offender has had the opportunity to reform due to the salutary discipline of the punishment which he has received as a consequence of his first conviction." (Emphasis added.) Phillips, 56 Ill.App.3d at 695, 14 Ill.Dec. at 166, 371 N.E.2d at 1219. The foregoing language was quoted in Masten as the basis for the circuit court's ruling dismissing the charge there. The Masten court concluded that the stated requirement for the defendant to have actually undergone punishment was dicta. (Masten, 219 Ill.App.3d at 175-76, 161 Ill.Dec. at 772, 579 N.E.2d at 29.) The same language was also cited in Carlock to support its conclusion that enhancing the severity of a subsequent offense, by proving a prior offense at the *922 same time as the enhanced offense is proved, is not good practice. (Carlock, 102 Ill.App.3d at 1103, 58 Ill.Dec. at 272-73, 430 N.E.2d at 214-15.) Where, as here, the first offense results in an order of supervision, the defendant clearly gets a warning. While the party subject to an order of supervision does not get the "salutary discipline" given one who is incarcerated, the terms of such an order under section 5-6-3.1 of the Unified Code are very similar to some of those imposed on a person convicted and placed on probation under section 5-6-3 of the Unified Code. Ill.Rev.Stat.1987, ch. 38, par. 1005-6-3. The entry of an order of supervision, in regard to an accused who has admitted the commission of an offense, is not rendered a nullity when that defendant is discharged for clearly it may be used as evidence in aggravation when punishment is imposed for a subsequent conviction, even murder. (People v. Johnson (1989), 128 Ill.2d 253, 286-87, 131 Ill.Dec. 562, 576-77, 538 N.E.2d 1118, 1132-33.) Such an order is originally based upon a belief that the offender is not likely to offend again. As we have indicated, the order of supervision serves as a warning of the severity of punishment that lies ahead if a subsequent offense is committed. If the subject of the order of supervision nevertheless commits the same offense again, that subject should not be immune from the same further punishment as would be bestowed upon another first offender who did not impress the trial court as an unlikely repeater. Accordingly, we hold that the order of supervision imposed upon defendant for DUI occurring on April 25, 1986, was properly used to enhance the severity of the offense which is the subject of the appeal. Accordingly, we affirm the judgment appealed. Affirmed. McCULLOUGH, P.J., and KNECHT, J., concur.

Court of Appeals Sixth Appellate District of Texas JUDGMENT Gary Donell Sanders, Appellant No. 06-12-00076-CR v. The State of Texas, Appellee Appeal from the 4th District Court of Rusk County, Texas (Tr. Ct. No. CR11-255). Opinion delivered by Justice Moseley, Chief Justice Morriss and Justice Carter participating. As stated in the Court's opinion of this date, we find no error in the judgment of the court below. We affirm the judgment of the trial court. We note that the appellant, Gary Donell Sanders, has adequately indicated his inability to pay costs of appeal. Therefore, we waive payment of costs. RENDERED DECEMBER 6, 2012 BY ORDER OF THE COURT JOSH R. MORRISS, III CHIEF JUSTICE ATTEST: Debra K. Autrey, Clerk

760 F.2d 253 Kohnv.U.S. 84-6303 United States Court of Appeals,Second Circuit. 2/25/85 E.D.N.Y., 591 F.Supp. 568 AFFIRMED

554 P.2d 1181 (1976) PUBLIC SERVICE COMPANY OF OKLAHOMA, an Oklahoma Corporation, Appellant, v. HOME BUILDERS ASSOCIATION OF REALTORS, INC., an Oklahoma Corporation, and Home Builders Association of Greater Tulsa, Inc., an Oklahoma Corporation, Appellees. No. 49004. Supreme Court of Oklahoma. September 21, 1976. Robert L. Lawrence, Kenneth W. East, Kevin M. Abel, Tulsa, for appellant. Rizley, Prichard, Ford, Norman & Reed by Charles E. Norman, Janine Van Valkenburgh, Tulsa, for appellees. *1183 HODGES, Vice Chief Justice. This is an appeal by appellant, Public Service Company of Oklahoma, an Oklahoma corporation, (PSC), from the decision of the trial court which entered judgment for appellees, Home Builders Association of Greater Tulsa, Inc., an Oklahoma corporation, (Home Builders). The action was brought by PSC seeking an injunction against Home Builders to prevent the construction of an asphaltic-concrete or concrete driveway and parking lot on the surface of PSC's underground electrical right-of-way. PSC asserted the placement of the proposed driveway and parking lot would invade, cause irreparable injury, and interfere with the maintenance of the electrical system lying under the surface of the right-of-way, and that the proposed construction was violative of its easement. PSC sought to permanently enjoin and restrain Home Builders from placing the driveway and parking lot upon the surface of its right-of-way, and a temporary injunction pending the district court's decision on a permanent injunction. The trial court found: PSC failed to prove irreparable injury would result because of the construction; maintenance of PSC's electrical system would not suffer unreasonable interference; the system could be repaired; PSC had an adequate remedy at law for damages; and because of these findings an interpretation of the word "structure" contained in the conveyance need not be determined. The trial court denied the granting of a temporary injunction. PSC timely appeals from the interlocutory order denying a temporary injunction pursuant to 12 O.S. 1971 § 993(a)(2).[1] The typewritten portion of the conveyance provides: "Grantee in further consideration for the dedication of this easement agrees with Grantor, its successor and assigns, as follows: (1) That Grantee will use reasonable diligence and dispatch in its operations with respect to installation, constructing, and maintenance of its electrical service; and (2) That Grantee in connection with installation, constructing, and maintenance of its electrical service will restore the surface of the easement granted hereunder in as good a condition as it was prior to use as an easement including any landscaping or screening." The other pertinent printed clauses of the conveyance provide: "While the installations to be made by Grantee in pursuance of this grant are made to facilitate the development of Grantor's property and are permanent in *1184 nature, Grantor nevertheless reserves the right to require relocation of all or a part of said facilities installed by Grantee hereunder to the extent, from time to time, as is necessary to permit the further development of said property, upon the condition, however, and it is hereby agreed that Grantor, or the successors in interest to Grantor, will bear the cost of any and all such relocations. "Also granting said Grantee, its successors and assigns, the perpetual right, privilege and authority to prevent the placement of any structure that may, in the judgment of the Grantee, interfere with or endanger said underground electrical system or its maintenance and operation; and to enter upon the above described premises for the purposes of constructing, operating, maintaining, reconstructing and removing its said underground electrical system aforesaid, and further granting to said Grantee, its successors and assigns, the right, privilege and authority to construct, operate, maintain, reconstruct and remove such underground electrical system under, upon, over and across any street, alley, highway, railroad or other right-of-way now or hereafter established and existing on or across said premises or adjoining the same or adjacent thereto." PSC asserts on appeal that the trial court erred in failing to interpret the word "structure," and that it was essential that the trial court determine if a driveway and parking lot were structures forbidden by the easement. PSC also alleges that the word is not intrinsically ambiguous as defined in the conveyance. We agree that the trial court should have interpreted the word "structure" but we do not agree that it is not intrinsically ambiguous as used in the conveyance. The easement provides that the electrical installations were made to facilitate the development of grantor's property. It also provides the grantor or its successors can demand removal and relocation of PSC's facilities and restoration of the surface on one hand, while the grantee can prevent construction of a structure on the other. The clauses of the conveyance when construed together render the utilization of the word "structure" ambiguous. In cases of equitable cognizance, this court is not bound by the reasoning of the trial court or by its findings but will examine the whole record, consider and weigh the evidence, and if the law and facts warrant, will affirm the judgment if the trial court reached the correct ultimate conclusion.[2] After a careful examination of the record and an examination of all the evidence, we find that the trial court reached the correct ultimate result. Under Oklahoma law, a conveyance is to be interpreted and the intention of the parties ascertained in the same manner as other written contracts.[3] The first element in construction of any conveyance whether it is in connection with the description of the property or some other phase of the conveyance is to ascertain the intention of the parties.[4] In construing a conveyance of doubtful meaning, the intention of the parties must be ascertained, particularly that of grantor.[5] Uncertainties in conveyances are to be clarified by resort to the intention of the parties as gathered from the instrument itself, circumstances attending and leading up to its execution, and the subject matter and situation of the parties as of that time.[6] The *1185 purpose of construction of a reservation or a grant is to find the intent of the grantor.[7] Where, from an examination of a written contract in its entirety, the intent of the parties thereto is obscure and uncertain, resort may be had to parol evidence to show the situation of the parties, circumstances surrounding the execution of the contract and the negotiations preceding and leading up to the making of the agreement in order to arrive at the contract's true intent and meaning.[8] If there is an ambiguity or uncertainty as to the meaning of the terms used in a written contract between the parties, usages and customs may be resorted to for the purpose of interpreting them and to fix and explain the meaning of the expressions and words of doubtful and various meaning. Words which are technical or ambiguous on their face, or foreign or peculiar to the sciences or arts, or to particular trades, professions, occupations or localities are explainable where they are employed in written instruments by parol evidence of usage;[9] and that the parties entered into the contract with knowledge of and in respect to such usage.[10] The evidence of all the witnesses is undisputed that in Tulsa, Oklahoma, the word "structure" is not used in the building trade or profession as including a driveway or parking lot. The grantee testified the parties did not discuss the meaning assigned to the word "structure" at the time the conveyance was executed. The grantor specifically testified it was not his intent in granting the easement to PSC to prevent the location of a driveway or parking lot over the easement. The grantor, an expert in the field of management and development, stated the term "structure" does not include driveways or parking lots and that it is common business practice in the locality for driveways in a commercial development to be located along side lot lines (over the easement) and leading to the rear of buildings. He also stated it was his intent in requesting the typewritten portion of the conveyance requiring grantee to restore the surface to its original condition to include driveways, and that a different construction of the word "structure" would have been contrary to development efforts in the area. Other witnesses testified that building permits were not required by the City for construction of driveways and that set-back requirements in restrictive covenants in Tulsa were never interpreted as restricting the paving of driveways. The testimony was that underground electrical facilities had been paved over on numerous occasions without PSC's objection. We find that the intent of the parties and the custom and usage in the locality are not compatible with the construction of the word "structure" to mean a driveway and parking lot within the restrictions of the conveyance. Restrictions and prohibitions in the use of real property are not favored by law, and the terms of such covenants will not be enlarged by implication, but will be confined to their accepted usage and the intention of the parties.[11] Building restrictions are stricti juris and every doubt *1186 should be resolved in favor of the unencumbered use of the property. When differences arise, the intention of the party encumbering the property as expressed in the conveyance must be looked to and consideration given to the entire context of the instrument rather than to a single phrase or clause.[12] In Purcell v. Thaxton, 202 Okl. 612, 216 P.2d 574, 576 (1950), citing Rogers v. Kinney, 122 Okl. 73, 250 P. 890, 891, an action to construe a conveyance, the court said: "A court of equity will look at the real object of a deed and the intention of the parties, and will compel the fulfillment of both, and, if possible, the intention of the grantor will be gathered from the whole instrument. If the intention of the parties to the deed is plain, parol evidence is not admissible to prove an intention different from the terms of the deed, but where a deed possesses an element of uncertainty, parol evidence, the admission of the parties and other extraneous circumstances may be proved to ascertain its true meaning." Regardless of how broad the terms of a contract may be, its terms extend only to those things concerning which it appears the parties intended to contract.[13] Irrespective of stereotyped or general printed provisions appearing in a contract, the literal or sweeping terms of a contract may never prevail over what appears to the court to be the rational and general intent of the parties thereto. We find the intention of the parties was not to include driveways and parking lots within the restriction prohibiting building of a "structure" without approval of the grantee. AFFIRMED. All Justices concur. NOTES [1] Appeal from certain interlocutory orders is permitted by 12 O.S. 1971 § 993(a)(2): When an order denies a temporary injunction, the party aggrieved thereby may, within thirty days thereafter, appeal from the order to the Supreme Court without awaiting the final determination in such cause, by filing the petition in error and the record on appeal in the Supreme Court; provided the Supreme Court may extend the time for filing the record on good cause shown. [2] City of Moore v. Central Oklahoma Master Conserrancy District, 441 P.2d 452 (Okl. 1968). See also Asher v. Doyle, 50 Okl. 460, 150 P. 878 (1915). [3] Herron v. Rozelle, 480 F.2d 282 (10th Cir.1973); Johnson v. Butler, 206 Okl. 632, 245 P.2d 720 (1952). [4] Geb v. Wilkins, 399 P.2d 456 (Okl. 1965). [5] Davis v. Moore, 387 P.2d 483 (Okl. 1963). [6] Riedt v. Rock Island Implement Co., 521 P.2d 79 (Okl. 1974). It is provided by 15 O.S. 1971 § 163: A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates. [7] Jolly v. Wilson, 478 P.2d 886 (Okl. 1970). [8] Owens v. Automotive Engineers, Inc., 208 Okl. 251, 255 P.2d 240 (1953). [9] Cleveland v. Mascho, 95 Okl. 22, 222 P. 1008 (1924). 15 O.S. 1971 § 160 provides: The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning, unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed. [10] Daniel v. Pappas, 93 Okl. 165, 220 P. 355 (1923); Bower-Venue Grain Co. v. Norman Milling & Grain Co., 86 Okl. 152, 207 P. 297 (1922). [11] Veal v. Hopps, 183 Okl. 116, 80 P.2d 275 (1938). [12] Salerno v. De Lucca, 211 La. 659, 30 So.2d 678. [13] First National Bank v. Gillam, 134 Okl. 237, 273 P. 261 (1929).

547 F.2d 1176 U. S.v.Moreno No. 76-1822 United States Court of Appeals, Ninth Circuit 12/1/76 1 S.D.Cal. AFFIRMED

644 F.Supp. 178 (1986) JEFFERSON COUNTY, MISSOURI, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. No. 85-935C(1). United States District Court, E.D. Missouri, E.D. September 10, 1986. *179 John W. Hammon, Anderson, Hammon, Dieffenbach & Schnaare, Hillsboro, Mo., for plaintiffs Jefferson County and Larry Webb. Larry Webb, pro se. Jill Newman, Asst. U.S. Atty., St. Louis, Mo., J. Scott Pemberton, Asst. Regional Counsel, Office of Regional Counsel, U.S. Environmental Protection Agency, Region VII, Kansas City, Mo., for defendant Environmental Protection Agency of the U.S. Richard C. Witzel, St. Louis, Mo., for defendant Riedel Intern. David Taylor, Asst. Atty. Gen., Jefferson City, Mo., for defendant State of Mo. Scott E. Slaughter, Environmental Defense Section, U.S. Dept. of Justice, Washington, D.C., for the U.S. MEMORANDUM NANGLE, Chief Judge. This case is now before this Court on the motions of the defendants, the United States and the State of Missouri, to dismiss for lack of subject matter jurisdiction or, in the alternative, for summary judgment. This Court dismisses plaintiffs' complaint for lack of subject matter jurisdiction. This case arises out of the clean-up efforts of the United States and the State of Missouri to remove dioxin-contaminated soil from the Minker/Stout/Romaine Creek site in Jefferson County, Missouri. In 1973, several residential properties located in this area became contaminated when dirt from the Bubbling Springs Horse Arena was used as fill material. Currently, the Environmental Protection Agency (EPA) is moving dioxin-contaminated dirt from the Cashell and Sullins properties to the Minker property, another area on the contaminated *180 site. The soil is being temporarily stored on the Minker property until a permanent remedy can be implemented. The EPA is conducting these activities as a removal action under Section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9604 (1984). The State of Missouri now owns the Minker property. Plaintiff Larry Webb owns property near the clean-up site. Plaintiff seeks the following injunctive relief: (1) an injunction against the transport of hazardous substances along the public highways of Jefferson County — specifically, prohibiting the transport of any hazardous substance to the Minker property; (2) an injunction requiring the state to remove contaminated dirt being stored on the Minker property; (3) an injunction requiring the United States and Missouri to conduct engineering studies and hold public hearings regarding the clean-up actions at the site; (4) an injunction requiring the United States and Missouri to stop potential hazardous releases; and (5) an order directing the United States to offer to purchase real and personal property owned by residents near the Minker site.[1] Plaintiff predicates these claims for injunctive relief upon violations of Missouri law and the CERCLA statute. These violations include the moving and storage of hazardous substances without a state permit, failing to conduct public hearings and perform geological studies, and releasing or creating the potential for release of hazardous wastes at the Minker site. As the United States argues, this Court lacks subject matter jurisdiction over this action. Plaintiff responds that jurisdiction is granted by CERCLA, the Administrative Procedure Act (APA), and the general grant of federal jurisdiction of 28 U.S.C. § 1331. After examining each of these provisions, this Court concludes that there is no subject matter jurisdiction over plaintiff's action. In passing on a motion to dismiss, a court is required to view the facts alleged in the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss will not be granted merely because the complaint does not state every element necessary for recovery with precision. 5 Wright & Miller, Federal Practice and Procedure § 1216 at 120 (1969). A complaint is sufficient if it "contain[s] allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Id. at 122-23. A complaint 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, 355 U.S. at 45-46, 78 S.Ct. at 101-102. Regarding subject matter jurisdiction, federal courts are courts of limited jurisdiction. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978). Therefore, the plaintiff bears the burden of pleading and establishing federal jurisdiction. Ray v. Bird and Son and Asset Realization Co., Inc., 519 F.2d 1081, 1082 (5th Cir.1975). Subject matter jurisdiction for judicial review of agency action may be based potentially upon either the specific statute authorizing the action or general federal question jurisdiction. In this case, CERCLA, the authorizing statute, provides neither an express procedure for judicial review of remedial actions undertaken by the EPA under 42 U.S.C. § 9604 nor a private cause of action against the EPA for failure to execute any non-discretionary provisions of the Act. Luckie v. Gorsuch, 13 Envt.L. Rept. 2400 (D.Ariz.1983); McCastle v. Rollins *181 Environmental Services, 514 F.Supp. 936, 940 (M.D.La.1981); Bartlett Landfill, Inc. v. Comeford, No. 80-5785 (N.D.Ill. January 27, 1981). Thus, CERCLA does not provide subject matter jurisdiction for the relief plaintiff seeks.[2] The Court must also consider whether the general grant of jurisdiction over federal questions provides jurisdiction for plaintiff's action. Section 1331 grants federal district courts original subject matter jurisdiction over civil actions arising under the Constitution, laws, or treaties of the United States. Here, plaintiff's action turns upon the interpretation of CERCLA and, thus, raises a substantial federal question. See Wheeldin v. Wheeler, 373 U.S. 647, 649, 83 S.Ct. 1441, 1443, 10 L.Ed.2d 605 (1963); Bell v. Hood, 327 U.S. 678, 685, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946). Nevertheless, § 1331 does not, of its own force, waive the federal government's sovereign immunity from suit. DeVilbiss v. Small Business Administration, 661 F.2d 716, 718 (8th Cir.1981). In the absence of an express waiver of immunity by Congress, suits against the United States are barred by the doctrine of sovereign immunity. Block v. North Dakota ex rel. Board of University and School Lands, 461 U.S. 273, 280, 103 S.Ct. 1811, 1816, 75 L.Ed.2d 840 (1983). Similarly, suits against a federal agency are barred. See Gnotta v. United States, 415 F.2d 1271, 1277 (8th Cir.1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970). This bar is jurisdictional — that is, unless a statutory waiver exists, the district court lacks jurisdiction to entertain a suit against the United States or its agency. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941); United States v. 3317.39 Acres of Land, 443 F.2d 104, 106 (8th Cir.1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 674, 30 L.Ed.2d 675 (1972). A waiver of sovereign immunity may be found in the authorizing statute, as for example in a provision for the agency to sue and be sued, or in the general provisions for judicial review in the Administrative Procedure Act (APA). CERCLA does not provide a waiver of sovereign immunity encompassing plaintiff's cause of action. Section 9607(g) provides that each unit of the federal government shall be subject to and comply with CERCLA and would appear to waive sovereign immunity. However, this section authorizes only actions otherwise provided by the statute. Thus, § 9607(g) does not authorize private suits for injunctive relief against the EPA. See B.R. Mackay and Sons, Inc. v. United States, 633 F.Supp. 1290, 1296 n. 9 (D. Utah 1986). Similarly, though § 9613(b) provides the district courts with original jurisdiction over all controversies arising under CERCLA, this section does not operate to waive sovereign immunity or grant jurisdiction for actions not authorized under CERCLA. 633 F.Supp. at 1296. Plaintiff also predicates jurisdiction upon the APA. The APA is not an independent basis for subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977). Rather, the APA waives sovereign immunity for suits seeking non-monetary relief from agency action. Section 702 of the APA provides generally for judicial review of agency action. However, this waiver is limited by § 701. Thus, sovereign immunity is not waived where (1) a statute precludes review or (2) the injurious action is committed by law to agency discretion. 5 U.S.C. § 701; see 14 C. Wright & A. Miller, Federal Practice and Procedure § 3659 (1985). Thus, this Court must consider whether CERCLA precludes judicial review of remedial actions taken by the EPA. As the Supreme Court noted in Block v. Community Nutrition Institute, 467 U.S. 340, 345, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984), [w]hether and to what extent a particular statute precludes judicial review is determined *182 not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, the nature of the administrative action involved. The Government cites a number of cases holding that a potentially liable party may not judicially challenge the amount or fact of liability until the EPA files suit for reimbursement of costs under § 9607 of CERCLA. E.g., Wheaton Industries v. EPA, 781 F.2d 354, 357 (3d Cir.1986); Lone Pine Steering Committee v. EPA, 777 F.2d 882, 887 (3d Cir.1985); Mackay, 633 F.Supp. at 1297. As these courts reasoned, judicial review of agency clean-up activities would hinder and delay the hazardous waste disposal. This delay would be inconsistent with the intent of Congress to allow swift clean-up actions. In the instant case, the plaintiff is not a potentially liable party who can seek review through a cost-recovery suit. Nevertheless, the concern for hindering or delaying EPA action applies with equal force to the injunctive relief sought by the instant plaintiff. Thus, this Court finds that CERCLA precludes judicial review of the removal actions undertaken by the EPA at the Minker/Stout/Romaine Creek site. Alternatively, this Court must consider whether the alleged injurious actions are not reviewable because they are committed to agency discretion. Under the APA, agency action is not reviewable if the statute is drawn in such broad terms that in a given case there is no law to apply. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). As the Supreme Court noted in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985), "if no judicially manageable standards are available for judging how and when an agency should exercise its discretion then it is impossible to evaluate agency action for `abuse of discretion'." As plaintiff contends, the actions of the EPA are contrary to law because EPA failed to obtain permits required by 42 U.S.C. § 9604(c)(3)(B) the Solid Waste Disposal Act, and Missouri law. This argument fails for two reasons. First, the removal actions at issue have all occurred on one "site" as designated by the EPA under § 9604(d)(4) and the National Contingency Plan (NCP). Because § 9604(c)(3)(B) requires a permit only for off-site remedial actions, no permit is required for the challenged on-site removal actions. Plaintiff does not challenge the agency's designation of the noncontiguous properties as a single site or the agency's decision to conduct a removal action rather than a remedial action. Compare 42 U.S.C. § 9601(23) (defining removal actions as those immediate and temporary acts taken in the event of a threat of release of hazardous substances and to the environment) with 42 U.S.C. § 9601(24) (defining remedial actions as those acts consistent with a permanent remedy taken instead of or in addition to removal actions). Second, new regulations promulgated under 42 U.S.C. § 9605 obviate the necessity of EPA compliance with federal and state permit laws. On November 20, 1985, EPA promulgated the final revised NCP regulations. 50 Fed.Reg. 47912-79 (1985) (to be codified at 40 C.F.R. Part 300). On February 18, 1986, these amended regulations took effect. Section 300.65(f) of the revised NCP provides that removal actions financed by the Superfund or pursuant to 42 U.S.C. § 9606 are not required to comply with other Federal, State, and local laws governing the removal activity, including permit requirements. This new regulation resolves any ambiguity regarding the necessity of the EPA to obtain federal, state or local permits. As 42 U.S.C. § 9613(a) provides, the revised NCP is reviewable only in the United States Court of Appeals for the District of Columbia Circuit. Though currently under challenge in that court, the revised NCP remains in force. Therefore, this Court has no law to apply in reviewing the EPA's clean-up actions. In sum, this Court concludes that this action lacks subject matter jurisdiction because (1) CERCLA does not grant jurisdiction, (2) CERCLA does not waive the United States' sovereign immunity, and (3) the *183 APA does not waive such immunity. Accordingly, the defendants' motions to dismiss are granted. NOTES [1] Originally, another property owner and Jefferson County, Missouri were additional plaintiffs to this lawsuit. They have now settled with defendants. The dismissal of Jefferson County raises issues regarding defendant Webb's standing to seek certain requested relief. Because this Court dismisses for lack of subject matter jurisdiction, this Court does not reach these issues. [2] CERCLA does grant jurisdiction for review of National Contingency Plan (NCP) regulations promulgated under 42 U.S.C. § 9605. Jurisdiction for such review lies exclusively in the Court of Appeals for the District of Columbia Circuit. 42 U.S.C. § 9613(a).

448 So.2d 450 (1984) Lorene MOSELEY v. STATE. 3 Div. 763. Court of Criminal Appeals of Alabama. January 31, 1984. Rehearing Denied March 20, 1984. *452 Benjamin E. Pool, Montgomery, for appellant. Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for appellee. SAM TAYLOR, Judge. Lorene Moseley was convicted by a Montgomery County jury of sexual abuse in the first degree and was given a suspended sentence of five years' imprisonment. She appeals on eleven different grounds. The facts of this case are particularly sordid; appellant's conviction arises from her attempt to induce her twelve-year-old daughter to commit and submit to certain sexual acts with a man who was the appellant's boyfriend. The child, who lived with her grandmother, went to visit her mother on a Sunday, at her mother's request. On Monday night she was forced by her mother to commit sodomy with her mother's boyfriend despite the fact that, in the child's words, "I kept begging her not to make me do it...." The girl was taken back home on Tuesday night and on Wednesday she told her grandmother what had happened; her grandmother then took her to the hospital and to the police station. I Appellant first challenges certain questions asked by the state during the cross-examination of a general reputation witness. Specifically, appellant contends that the questions were not framed so as to make it clear that they referred to acts which occurred before the instant offense. Our Supreme Court has stated that: "When a witness testifies as to the general reputation or character of the defendant, the knowledge of the witness as to such reputation or character may be tested on cross-examination by asking him if he had heard of the defendant being charged with other offenses or of specific acts of bad conduct on the part of the defendant. Helms v. State, 254 Ala. 14, 47 So.2d 276, Kervin v. State, 254 Ala. 419, 48 So.2d 204; Johnson v. State, 260 Ala. 276, 69 So.2d 854. The better practice is to frame the question so as to inquire of the witness if he had heard of such occurrence prior to the commission of the offense for which the defendant is on trial. Ragland v. State, 178 Ala. 59, 59 So. 637." Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960), aff'd, 273 Ala. 337, 139 So.2d 309 (1961); writ denied, 275 Ala. 377, 155 So.2d 334 (1963), rev'd on other grounds, 283 Ala. 52, 214 So.2d 327 (1968), judgment modified, 49 Ala.App. 402, 272 So.2d 609 (1973). We think it clear from an examination of the record that the questions in issue impliedly referred to a time before the alleged sexual abuse took place. The relevant portions of the record read as follows: "Q And have you also heard about the times when she wasn't living out of wedlock with other men, her frequency of attending bars at night and running around town, leaving her children to her mother? "MR. POOL: We object to that, Your Honor. "THE COURT: It goes to the weight of this witness's testimony. "Q I ask you again, have you heard about the times when Lorene was not married or not living with someone, about the nights that she would hang out in bars and not come home and leave the children solely to her mother? "A I heard—her mother did tell me things to that effect. "Q Yes. *453 We do not feel the court erred in overruling the objection. We note further that the objection did not assign specific grounds but was merely a general objection. II During the cross-examination of the twelve-year-old victim in this case, defense counsel questioned her extensively concerning an alleged statement she had made at the time of the preliminary hearing in which she said that she had lied about the entire incident and that she did not want to testify. The state then called the investigator to whom the original complaint had been made. Through this investigator, the state undertook to prove a prior consistent statement. The usual rule is that when a witness has been impeached by a prior inconsistent statement, the proponent of that witness is not allowed to counter the impeachment through the introduction of evidence of a prior consistent statement. Murphy v. State, 355 So.2d 1153 (Ala.Cr.App.1978). However, as the Murphy case points out, "there is an exception to the principle, to be found in `prior' consistent statements by victims of rape or other sex offenses." That rule is stated in C. Gamble, McElroy's Alabama Evidence, § 178.01 (3d Edition 1977), in pertinent part as follows: "Where the testimony of the prosecutrix is impeached by proof of self-contradictory statements ... the prosecution may prove her complaints in detail." Thus, no error occurred in this respect. III Appellant contends that it was reversible error to fail to compel the state to turn over to her a copy of a statement made by a state witness, after that witness had testified. The trial court did conduct an in camera inspection of the statement, at the conclusion of which the court denied the defense motion for production. Production for inspection of a statement of a prosecution witness after the witness has testified lies within the sound discretion of the trial judge. Ex parte Pate, 415 So.2d 1140 (Ala.), on remand, 415 So.2d 1145 (Ala.Cr.App.1981). The statement itself was not made part of the record. We can only conclude that after the in camera inspection the trial court determined that the statement made by the witness before trial did not differ in any substantial respect from the testimony during trial, that the statement did not contain material exculpatory to the defendant, and that the statement requested was not of such a nature that, without it, the defendant's trial would be fundamentally unfair. Thus, we find no error. IV Appellant next contends that the court erred in permitting the following exchange to occur: "Q Did you ever hear about the time back in 1976 when she was arrested for filing a fraudulent false statement? "A No. "MR. POOL: We object to that, Your Honor, unless he can prove these allegations. "MR. MENDELSOHN: Judge, I'm entitled to ask have you heard if I have a good faith belief it's true. I have a rap sheet here that shows she did it, and I'll be glad to tender it to the Court and present it to the jury. "MR. POOL: All right, we ask that he be compelled and required to do so, Your Honor. "THE COURT: Y'all come up here. (Whereupon a discussion was held at the bench out of the hearing of the Court Reporter and jury.)" On the basis of the authorities cited in I above, we find that the question was proper during cross-examination of a defense character witness. No error occurred in this respect. V Appellant next contends that the court erred in sustaining an objection to a question by defense counsel addressed to Miss Faulkner, an investigator with the *454 Youth Aid Division of the Montgomery Police Department. The pertinent part of the transcript reads as follows: "Q Did you also interview Deb Freeman? "A I didn't; another investigator did. "Q With regard to the results of those two interviews— "MR. MENDELSOHN: Objection. "THE COURT: Let's hear the question first. "MR. MENDELSOHN: There had been a Motion in Limine, Judge. "Q My question was simply going to be, to your knowledge were there any inconsistencies between the interview that Lorene granted and the one that Deb Freeman granted? "THE COURT: Sustain the objection." This witness had previously stated that she had not had any interview with Deb Freeman, an accomplice in the case. It would not make sense for her to testify regarding any alleged inconsistencies in the interview with the defendant and the interview which was, to her, hearsay. Thus, we find no error in this respect. VI Appellant's attorney contends that reversible error occurred in the following cross-examination of the grandmother about the victim: "Q Have you had some problem in your mind about sex for a number of years? "MR. MENDELSOHN: Objection. "A Well, I think it's— "THE COURT: Just a moment, please, ma'am, the gentleman has made an objection. "MR. MENDELSOHN: Relevancy, Judge. I hate to object, but we've been going on and on with stuff that I don't see how it has anything to do with whether or not on October the 10th or October the 11th this lady committed any type of sexual misconduct against this victim. "THE COURT: I sustain. "Q All right. Mrs. Sexton, you have had how many children, please, ma'am? "A I have five living. "Q Five. Let me ask you whether or not you told your son recently within the last thirty days that you had in effect been raped by your husband five times that resulted in five children? "MR. MENDELSOHN: Objection. "THE COURT: No, sir. Sustained. "A No, sir, I've never been raped." Appellant has no grounds for complaint since the question was answered in the presence of the jury. The court had already permitted the appellant to range far afield in allowing him to question the grandmother of the victim regarding her personal and private attitudes regarding sex. VII Appellant contends that the court erred in not permitting evidence relating to the past sexual behavior of the complaining witness. He asserts that the specific acts sought to be proved were part of the res gestae. Alabama's rape shield statute, Section 12-21-203, Code of Alabama 1975, states in part that: "(b) In any prosecution for criminal sexual conduct or for assault with intent to commit, attempt to commit or conspiracy to commit, sexual conduct, evidence relating to the past sexual behavior of the complaining witness ... shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or of other witnesses...." The exception to this rule is that evidence of past sexual behavior of the victim which directly involves the participation of the accused may be considered by the jury as bearing on the issue of consent. Ala.Code § 12-21-203(c) (1975); Wooten v. State, 361 So.2d 1192 (Ala.Cr.App.1978). However, evidence of particular acts of unchastity on the part of the victim with a third person are not admissible. Hollis v. *455 State, 380 So.2d 409 (Ala.Cr.App.1980). In the instant case, the trial court properly instructed the jury that evidence that the victim allegedly told her mother about a sexual encounter she had with a neighborhood boy should only be considered for the limited purpose of impeaching the witness's credibility. We find no factual basis for the contention that specific sexual acts between the victim and a third person were part of the res gestae, as contended by appellant. The court did not err in this respect. VIII Appellant next asserts that a particular venireman should not have been allowed to remain on the jury. During voir dire the following occurred: "THE COURT: Mr. Mooney, I understand you know the defendant in this case? "JUROR MOONEY: I do, but I don't know where from. I just—her face is very familiar, and I have seen her somewhere before. The name is also known to me, but I couldn't say it was from the newspaper, though. "THE DEFENDNT: I worked at Morrison's— "THE COURT: Do you believe that that would influence your ability to sit as a juror in this case? "JUROR MOONEY: I don't think so. "THE COURT: Well, now is the time to— "JUROR MOONEY: I don't know where I know her from, so I really don't have anything that I could base it on. At some point I may remember, and then it might be a problem, but I don't at this time know where I remember her face from. "THE COURT: Are you telling me that to your knowledge right now, you can sit as a fair and impartial juror? "JUROR MOONEY: Right. You know, I don't have any recollection of any background in relation to her. I haven't read anything about the case in the paper. But I do know her from someplace. "THE COURT: All right. Bring all of your witnesses in so that I can swear them in at this time. I note your objection, Mr. Pool. Overruled. "MR. POOL: Judge, could we be heard on this matter outside the presence of the jury? "THE COURT: I understand your objection. No, sir, I am ready to proceed." We do not find any error on the part of the court in allowing this juror to remain on the jury. It is not a ground for challenge for cause that a juror thinks he remembers the accused. See § 12-16-150, Ala.Code (1975). IX Appellant next contends that during the oral charge, the trial court committed error by telling the jury what acts had been relied upon by the prosecution to make out the state's case. After reviewing the charge, we find that none of the trial judge's comments rose to the level of improper commentary on the evidence. In addition, appellant challenges the following portion of the charge: "Now, I want you to understand that the events which are alleged to have transpired on October the 10th are not what forms the basis of the charges in this case, but that testimony is offered to you for whatever weight you will give it in determining what happened on the 11th. All of the charges that are being made in this case are alleged to have occurred on October the 11th in this case, and you should understand that." Since the victim testified that the actual physical contact between herself and her mother's boyfriend did not occur until October 11th, we find no error in this charge. X In her tenth issue, appellant attacks the constitutionality of Alabama's rape shield statute (see VII above) on the grounds that it denies her the right to *456 confront witnesses. This issue has previously been before our court and once again we find it has no merit. Young v. State, 429 So.2d 1162 (Ala.Cr.App.1983), see also, Lawson v. State, 377 So.2d 1115 (Ala.Cr. App.1979). Statutes of this type are not unique to Alabama, and other jurisdictions have upheld such laws in the face of similar attacks on their constitutionality. In People v. Cornes, 80 Ill.App.3d 166, 35 Ill.Dec. 818, 399 N.E.2d 1346 (1980), a case previously quoted with approval by this court, the Illinois court upheld that state's rape shield statute and commented: "Complainant's past sexual conduct has no bearing on whether she has consented to sexual relations with defendant. The legislature recognized this fact and chose to exclude evidence of complainant's reputation for chastity as well as specific acts of sexual conduct with third persons in cases of rape and sexual deviate assault. The exclusion of this evidence does not prevent defendant from challenging or attacking complainant's credibility or veracity or otherwise utilizing cross-examination as an effective tool of impeachment. It merely denies defendant the opportunity to harass and humiliate the complainant at trial and divert the attention of the jury to issues not relevant to the controversy." As stated in Annot. 1 A.L.R. 4th 283 (1980): "Numerous contentions that a particular rape shield statute denied the defendant's right to confront and cross-examine witnesses or to present a defense have been rejected by the courts generally on the basis that the defendant had no right to question or to introduce evidence as to irrelevant, immaterial, or prejudicial matters." We find no reason to reject these precedents. XI Appellant finally contends that the court erred in its failure to grant a mistrial for an alleged assertion of personal opinion by the district attorney. An examination of the record reveals objections of counsel to the alleged comment as well as rulings by the trial court on those objections. In addition, the transcript includes instructions by the lower court to the district attorney advising him not to "comment on the credibility of that witness, please, sir." We decline to reverse on this record. Even though reversal is not mandated in the instant case, we feel we must emphasize the line of cases decided by this court in which we have held that it is highly improper for attorneys, particularly prosecutors, to state their personal opinions in closing argument. As we stated in Brown v. State, 393 So.2d 513 (Ala.Cr.App.1981), "attorneys should be careful in their arguments to the jury to refrain from an injection of their own personal experience or knowledge in support of their argument, as distinguished from what they deem to be reasonable inferences to be drawn from the evidence. This is especially true as to arguments by prosecuting counsel in criminal cases, for the reason that jurors generally know that prosecuting attorneys usually have had more experience in trying criminal cases... than attorneys in general. What they tell a jury as to their experience during the trial of a criminal case is more likely to influence a jury than what is told a jury by attorneys in general." In Adams v. State, 280 Ala. 678, 198 So.2d 255 (1967), our Supreme Court said: "It is, of course, never proper for the prosecuting attorney or the defendant's attorney to state in argument to the jury their personal belief in the guilt or innocence of the accused. To do so is to place before the jury for consideration the lawyer's own character and credibility, which is no part of any judicial proceeding. The office of district attorney and counsel for the accused does not demand that the former's duty is to secure a conviction, and the latter's duty to obtain an acquittal; but rather, the primary duty is to see that justice is done. See Canons 5 and 15 of American Bar Association Canons of Professional Ethics. *457 And where, as here, the trial judge attributes beliefs to and sanctions such personal beliefs by opposing attorneys, even though the record was not protested by an exception, we call attention to the error so that it may not be repeated on another trial." The rule was also set forth in Woods v. State, 19 Ala.App. 299, 97 So. 179 (1923), rev'd on other grounds, 20 Ala.App. 200, 101 So. 314 (1924), aff'd, 21 Ala.App. 436, 109 So. 171 (1926), as follows: "The personal opinion of the solicitor as to the guilt of the accused or as to any material fact involved in the case is not evidence. It should never be uttered by a prosecuting attorney, and, if the court gives sanction to such an utterance, it thereby commits error necessitating a reversal of conviction appealed from. Inferences and deductions from the evidence may be drawn by counsel almost without limit, but the minds of the jury should not be prejudiced, nor should they be swayed in their deliberations by unauthorized statements in the argument of the solicitor, such as, `In my honest opinion, and before God it is my honest opinion,' that such a state of facts exists. It is for the jury to say what state of facts exists, and this must be done by a consideration of all the evidence in the case, and such conclusion must not be reached by the honest or other character of opinion upon the part of the solicitor. In the annotation of the case of People v. Fielding (N.Y.) 46 L.R.A. 641, 667, [158 N.Y. 542, 53 N.E. 497] note, it is said: "`The personal opinion of the prosecuting attorney as to the guilt of the accused is not evidence, and the sanction of such an opinion by the court is serious error.' "`The right to a fair and impartial trial is violated by the misconduct of counsel in stating to the jury facts not in evidence because by so doing he fraudulently testifies without having been sworn as a witness.' People v. McGuire, 89 Mich. 66 [64], 50 N.W. 786.'" Thus, this court is prepared to reverse any case that has been tainted by highly prejudicial prosecutorial comments to the jury where the issue has been properly presented and preserved for our review. For the foregoing reasons, we conclude that no reversible error was committed in this case, and the judgment of the trial court is due to be affirmed. AFFIRMED.

62 Ill. App.3d 542 (1978) 379 N.E.2d 62 MARGIE BRIDALS, INC., et al., Plaintiffs-Appellees, v. MUTUAL BENEFIT LIFE INSURANCE COMPANY, Defendant-Appellant. No. 77-290. Illinois Appellate Court — First District (1st Division). Opinion filed July 5, 1978. *543 Peterson, Ross, Schloerb & Seidel, of Chicago (Owen Rall, Joseph J. Hasman, Ellen J. Kerschner, and Ernest W. Irons, of counsel), for appellant. Jerome H. Torshen, Ltd., of Chicago (Jerome H. Torshen and Edward G. Wierzbicki, of counsel), for appellees. Reversed and remanded. Mr. JUSTICE BUCKLEY delivered the opinion of the court: Margie Bridals, Incorporated, and Irwin May, as conservator of the estate and person of Deborah May, brought this action against Mutual Benefit Life Insurance Company for a declaration of their rights under a group health insurance policy issued by Mutual Benefit to Margie Bridals, Incorporated, the policyholder. Cross motions for summary judgment and supporting memoranda were filed and the trial court entered summary judgment in favor of plaintiffs and against Mutual Benefit. Defendant appeals from the entry of summary judgment in plaintiff's favor and from the denial of summary judgment in its own favor. 58 Ill.2d R. 301, 303(a). The sole issue on review is whether the trial court erred in finding that Deborah May was still a "full-time student in an accredited school" within a policy definition of "Eligible Dependent" even though she received a leave of absence from the university due to a medical condition which prevented her from attending classes. On March 25, 1970, defendant Mutual Benefit Life Insurance Company issued its group health insurance policy No. G9000-F to the trustees of the Upper Midwest Employer's Association Group Insurance Trust, in which group insurance plan Margie Bridals, Incorporated, participated. Pursuant to the employer's participation under the group policy, a group insurance certificate was issued to Abe I. May, the father of Deborah May. The relevant portions of the group policy provided: eligible classes "The eligible classes of the general group shall of the general consist of each active, full-time employee, group except any such person employed on a temporary basis. *544 * * * * effective date of A3 No insurance will be placed in effect on an individual eligible person until all requirements of insurance Sections A1 and A2 have been fulfilled with respect to such insurance. That insurance with respect to which a person has fulfilled the requirements of the foregoing Sections A1 and A2 will become effective on the later of the fifteenth day of the month coinciding with or next following the day all requirements have been fulfilled and the effective date of this policy, provided he is then actively at work on a full-time basis at his usual place of business, otherwise on the first day thereafter upon which he returns to active work on a full-time basis at his usual place of business. In the case of an eligible person whose Participating Employer became a participant in the Trust as of the first day of a calendar month, the effective date of individual insurance shall be such first day of the calendar month with respect to such an eligible person who satisfies all requirements of Sections A1 and A2 on such date, provided he is actively at work on a full-time basis at his usual place of business, otherwise on the first day thereafter upon which he returns to active work on a full-time basis at his usual place of business. definition of A4 An eligible dependent is one of the eligible following persons not otherwise eligible for dependent insurance hereunder as a member of the general group. * * * * (b) Each unmarried child of the person insured who has not reached his nineteenth birthday. (c) Each unmarried child of the person insured who has reached his nineteenth birthday but has not reached his twenty-fourth *545 birthday who is a full-time student in an accredited school. * * * * definition of A6 An insured individual means the person insured insured and any dependent insured of such individual person. * * * * termination of C5 The insurance provided under this policy dependent on the dependents of a person insured shall insurance automatically terminate upon the occurrence of the earliest of the following events: (a) as to a particular dependent insured, termination of status as an eligible dependent as defined in Section A or accrual of the Maximum Amount of Benefit by such dependent insured; * * * * extended benefit C6 If the insurance of an insured individual terminates for a reason other than payment or accrual of the Maximum Amount of Benefit and if the insured individual is totally disabled by accidental bodily injury or sickness at the date of such termination, benefits shall accrue, subject to the other provisions and limitations of this policy, as though insurance had not terminated, for covered charges incurred (i) solely on account of such injury or sickness, (ii) during the uninterupted continance [sic] of such disability, and (iii) before the end of the calendar year next following the calendar year in which insurance terminated. As used herein total disability means * * * * (b) in the case of a dependent insured, disability which prevents him from engaging in and performing his regular and customary duties or activities." This language is substantially the same as the language of the insurance certificate issued to Abe I. May. Prior to October 14, 1974, Deborah May was unmarried, over the age of *546 19, but less than the age of 24, and enrolled as a full-time student in the College of Arts and Sciences at Northwestern University, Evanston, Illinois. On or about October 14, 1974, Deborah May developed a condition known as anorexia nervosa and was hospitalized intermittently since that time. As a result, she officially withdrew from classes and obtained a leave of absence from Northwestern University. Since October 14, 1974, Deborah May had neither been enrolled in nor attended classes at Northwestern University or at any other educational institution.[1] On October 31, 1975, the Northwestern University Registrar wrote the following letter to Mutual Benefit Life Insurance Company: "Our records show that Deborah May was enrolled in the College of Arts and Sciences at Northwestern University as a full time student in good standing from September, 1973, to October 24, 1974, at which time she officially withdrew from classes for medical reasons. * * * [S]he is regarded as being on a leave of absence. This means that when she is prepared and able to do so, she may continue her course of study. She may register upon completion of an information from and, perhaps, a medical interview." • 1 The record discloses no genuine issue of any material fact and we need only determine if the plaintiff was entitled to judgment as a matter of law. (Joseph W. O'Brien Co. v. Highland Lake Construction Co. (1972), 9 Ill. App.3d 408, 292 N.E.2d 205.) Mutual Benefit Life Insurance Company advised plaintiffs that all policy benefits for Deborah May would cease on December 31, 1975, on the ground that any coverage to which Deborah May was entitled terminated when Deborah ceased being a full-time student in an accredited school on or about October 14, 1974. However, due to the extended insurance benefit provision, Deborah May was entitled to insurance benefits for covered medical charges incurred to and including the end of the calendar year next following the calendar year in which the insurance terminated. Mutual Benefit paid those additional medical benefits incurred by Deborah May through December 31, 1975. On December 5, 1975, plaintiffs filed their complaint for declaratory judgment, pursuant to section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 57.1), asserting that Deborah May remained a full-time student while on leave of absence and asked the court to declare Deborah May's rights under the group health policy involved. Following motions for summary judgment filed by each side, the court, on December 7, 1976 entered its order declaring Deborah May to be a full-time student in an *547 accredited school and therefore an eligible dependent entitled to receive insurance benefits under the group policy. The sole question raised concerns construction of Mutual Benefit's group health insurance policy No. G9000-F. Margie Bridals, Incorporated, and Irwin May contend that the group health insurance policy is ambiguous as to the definition of the term "full-time student." They argue, when the term is examined in the context of the entire policy, it is clear that the policy does not require a "full-time student" to be "active." Since Deborah May retained the status of a full-time student even after taking a leave of absence from Northwestern University, she should still be entitled to medical benefits under the defendant's group health insurance policy. Mutual Benefit Life Insurance Company responds that the language of the policy is clear and unambiguous and must be given its plain and ordinary meaning. It contends that benefits were properly terminated, pursuant to the extended benefits provision, following Deborah May's failure to remain a full-time student at an accredited institution. • 2, 3 While the term "full-time student" is not defined by the policy, the term must be given its usual interpretation. Such term envisions a person's enrollment in an academic institution and attendance at classes on a substantial basis. Full-time ordinarily signifies the normal or standard period of time spent in a named activity. Deborah May's withdrawal from classes and leave of absence from the university cannot be considered in keeping with the activities of a "full-time student." Plaintiff points to that portion of the insurance policy which defines eligible employees and the effective date of individual insurance as requiring "active" full-time employment. Sections A1 and A3 concern the essential determination of when coverage will take effect for an employee. The policy provision in the instant case, section A4, defines who is an eligible dependent. The policy provides two substantially different classes of insured persons and corresponding differences in their eligibility and benefits. Whereas the covered employee need be an "active, full-time" employee, the dependent need only be between age 19 and 24 and a "full-time student in an accredited school." The policy provides that initial coverage for an otherwise eligible employee will not take effect until the person is actively at work on a full-time basis. This strict requirement as to commencement of coverage is necessary to reduce the risk and premium cost of anti-selection in providing group insurance for large groups of employees. Therefore, the provision requires that an employee's coverage will not start until the first day he is both actively at work, and also, a full-time employee. The omission of the "active" requirement from the dependent clause for "full-time *548 students" defines a broader class of eligible dependents. For example, this difference allows continued coverage of the full-time student during the summer months even though he or she may not be attending classes during that period. Because of these differences, the different eligibility provisions are not comparable and their different uses do not raise an ambiguity. The well-known rule that all ambiguities in an insurance policy will be construed most strongly against the insurance company, as the party that drafted the policy, only has application where an ambiguity in fact exists. Pioneer Life Insurance Co. v. Alliance Life Insurance Co. (1940), 374 Ill. 576, 586, 30 N.E.2d 66, 71; Nationwide Insurance Co. v. Ervin (1967), 87 Ill. App.2d 432, 435-36, 231 N.E.2d 112, 114. "The usual rule of liberal construction of ambiguous provisions of insurance policies in favor of the insured must yield to rules of reasonable construction, and such does not permit the straining of plain, unambiguous language to create a supposed ambiguity where none in fact exists; where the provisions are plain and certain there is no room for construction, and the language should be taken in its plain, ordinary, popular sense: 22 Ill. Law and Pract. [Insurance], pp. 199-200; Thompson v. Fidelity & Casualty Co. of New York (1958), 16 Ill. App.2d 159; Craig v. Central Nat. Life Ins. Co. (1958), 16 Ill. App.2d 344; Maryland Casualty Co. v. Holmsgaard, et al. (1956), 10 Ill. App.2d 1; Steffan v. Bankers Life Co. of Iowa (1932), 267 Ill. App. 248." Lundquist v. Illinois Life & Accident Insurance Co. (1960), 24 Ill. App.2d 316, 323, 164 N.E.2d 293, 297. Accordingly, we reverse the judgment of the trial court and remand the case for entry of judgment in favor of defendant, Mutual Benefit Life Insurance Company, and against plaintiffs. Judgment reversed and cause remanded. GOLDBERG, P.J., and O'CONNOR, J., concur. NOTES [1] In January 1977 Deborah May enrolled in Northwestern University for the winter quarter as a full-time student.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Cleveland v. Ohio Bur. of Workers’ Comp., Slip Opinion No. 2020-Ohio-337.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2020-OHIO-337 THE CITY OF CLEVELAND, APPELLEE v. OHIO BUREAU OF WORKERS’ COMPENSATION, APPELLANT. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Cleveland v. Ohio Bur. of Workers’ Comp., Slip Opinion No. 2020-Ohio-337.] R.C. 2743.03(A)—Employer’s claim against Bureau of Workers’ Compensation is a legal claim, not an equitable claim, and thus, it should have been filed in the Court of Claims. (No. 2018-0572—Submitted September 10, 2019—Decided February 5, 2020.) APPEAL from the Court of Appeals for Cuyahoga County, No. 105604, 2018-Ohio-846. __________________ O’CONNOR, C.J. {¶ 1} In this appeal, we consider which court has jurisdiction over an employer’s claim against the Ohio Bureau of Workers’ Compensation (“BWC”) for the reimbursement of alleged excessive premiums paid by the employer.  SUPREME COURT OF OHIO Specifically, appellee, the city of Cleveland, alleges that appellant, the BWC, charged the city inflated premiums for workers’ compensation insurance in order to make up for discounts the BWC provided other employers. Cleveland raised this claim in a complaint it filed in the Cuyahoga County Court of Common Pleas. We hold that this is a legal claim, not an equitable one, and therefore the Court of Claims has exclusive jurisdiction over this case. Accordingly, we reverse the judgment of the Eighth District Court of Appeals, vacate all orders of the Cuyahoga County Court of Common Pleas in this case, and remand the cause to the common pleas court for an order of dismissal. I. FACTS AND PROCEDURAL BACKGROUND {¶ 2} Cleveland, as an employer, pays the BWC premiums for workers’ compensation insurance. The BWC is then responsible for the distribution of workers’ compensation benefits to city employees who suffer workplace injuries. In this case, Cleveland challenges the legality of premiums that the BWC charged over several years. According to Cleveland, the BWC undercharged the group- rated employers and then overcharged the individually rated employers, such as Cleveland, to make up the difference. The narrow issue before us is whether the case was properly filed in the court of common pleas or whether it should have been filed in the Court of Claims, which has exclusive jurisdiction over certain claims against state entities such as the BWC. R.C. 2743.03(A). A. The Ohio Workers’ Compensation system {¶ 3} Ohio requires public employers that are not self-insured employers to contribute to the public insurance fund “the amount of money determined by the administrator of workers’ compensation.” R.C. 4123.38. Employers can choose from a selection of plans. The BWC offers both individual- and group-rated plans. {¶ 4} Pursuant to R.C. 4123.29(A), the administrator of the BWC, with the approval of the board of directors, classifies occupations or industries with respect to degree of hazard and risks and sets the premiums that employers must pay into 2  January Term, 2020 the state insurance fund for workers’ compensation coverage each year. The BWC deposits these premiums into a single state insurance fund (it does not maintain a separate account for each employer), and it pays compensation benefits associated with work-related accidents from that fund. With the exception of a required surplus to maintain solvency, R.C. 4123.321 requires the BWC to establish a procedure for returning excess premiums to participating employers in order to maintain a revenue-neutral fund. {¶ 5} Cleveland alleges that it was overcharged by the BWC for more than ten years because the BWC’s method for determining premiums was flawed. In 1989, the General Assembly amended R.C. 4123.29 to require the BWC to develop and implement a plan that “groups, for rating purposes, employers, and pools the risk of the employers within the group.” Am.Sub.H.B. No. 222, 143 Ohio Laws, Part II, 3197, 3315-3316. In response to this amendment, the BWC developed group-rated plans. Provided they met certain conditions, employers could elect to join a group-rated plan in which their collective risk was pooled in order to garner better premiums. The employers that chose not to participate in a group-rated plan or that did not meet the required conditions continued to be assessed premiums based upon their individual claim history and risks. {¶ 6} The BWC acknowledges that during the years at issue, the discounted premiums it charged employers under the group-rated plan were insufficient to cover the losses attributable to those employers. Because the BWC must maintain a revenue-neutral fund, it had to find a way to recoup that difference. It did so by increasing the “off-balance factor,” a factor used in calculating the employers’ base rates. Cleveland alleges that this increase resulted in its unjustly being charged excessive premiums. B. Cleveland files suit {¶ 7} In 2013, Cleveland sued the BWC in the Cuyahoga County Court of Common Pleas, asserting a claim of unjust enrichment on the ground that the 3  SUPREME COURT OF OHIO discounts provided to group-rated employers resulted in the individually rated employers, such as Cleveland, paying excessive premiums. Cleveland sought an order requiring the BWC to disgorge the amount of overpayment along with prejudgment and postjudgment interest. The BWC moved to dismiss the case, arguing that the common pleas court lacked subject-matter jurisdiction over the lawsuit because the city was seeking legal, rather than equitable, remedies, and thus, the Court of Claims had exclusive jurisdiction. The trial court denied the motion to dismiss and eventually granted summary judgment, in part, to Cleveland and ordered a bench trial on the amount of restitution owed to Cleveland due to its payment of inflated premiums. {¶ 8} Following the bench trial, the trial court ordered the BWC to pay Cleveland $4,524,392 in restitution, along with postjudgment interest at the statutory rate. The Eighth District Court of Appeals affirmed the judgment on appeal. {¶ 9} The BWC sought this court’s discretionary review, raising three propositions of law. We accepted jurisdiction over all three, 153 Ohio St.3d 1432, 2018-Ohio-2639, 101 N.E.3d 464, but because we resolve this case on the first proposition of law, we need not address the other two. The first proposition of law states: A claim for overpayment of an amount owed to the State, under a statute that undisputedly requires some payment, and where the amount of alleged overpayment is derived from an estimated damages model rather than a known sum, is a legal claim that must be brought in the Court of Claims. 4  January Term, 2020 II. ANALYSIS {¶ 10} To determine whether the Court of Claims or the court of common pleas has jurisdiction over Cleveland’s claim, we must decide whether the claim is legal or equitable. Measles v. Indus. Comm., 128 Ohio St.3d 458, 2011-Ohio-1523, 946 N.E.2d 204, ¶ 7. Traditionally, the doctrine of sovereign immunity prevented claims against agents of the state, such as the BWC, for wrongs committed in the course of official duties. Scot Lad Foods, Inc. v. Secy. of State, 66 Ohio St.2d 1, 6, 418 N.E.2d 1368 (1981). However, sovereign immunity does not bar claims for equitable relief, only for legal relief. Ohio Hosp. Assn. v. Ohio Dept. of Human Servs., 62 Ohio St.3d 97, 105, 579 N.E.2d 695 (1991). In 1975, the General Assembly waived the state’s sovereign immunity in most instances, R.C. 2743.02; Am.Sub.H.B. No. 800, 135 Ohio Laws, Part II, 869, 883, and simultaneously created the Court of Claims, which has “exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in section 2743.02,” R.C. 2743.03(A)(1). Accordingly, the state is now subject to being sued for legal claims in the Court of Claims. However, because the doctrine of sovereign immunity never barred equitable claims, which have always been cognizable against the state, courts of common pleas continue to have original jurisdiction over them pursuant to Article I, Section 16, and Article IV, Section 4(B) of the Ohio Constitution and R.C. 2305.01. {¶ 11} Restitution can be either legal or equitable relief, depending on the basis for the plaintiff’s claim and the “nature of the underlying remedies sought.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212-213, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). Historically, a legal claim for restitution was one in which the plaintiff “ ‘could not assert title or right to possession of particular property, but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him.’ ” (Emphasis deleted.) Great-West at 213, quoting 1 Dobbs, Law of Remedies, 5  SUPREME COURT OF OHIO Section 4.2(1), at 571 (2d Ed.1993). An equitable claim for restitution was one in which “money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant’s possession.” Id. {¶ 12} The United States Supreme Court has recognized that most claims are legal: “ ‘Almost invariably * * * suits seeking * * * 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.’ ” (First ellipsis sic.) Id. at 210, quoting Bowen v. Massachusetts, 487 U.S. 879, 918-919, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (Scalia, J., dissenting). However, in a few cases, we have found suits for the recovery of funds to be claims in equity. {¶ 13} In Santos v. Ohio Bur. of Workers’ Comp., injured employees sought to recover money that had been collected from them by the BWC pursuant to a subrogation statute that was subsequently determined to be unconstitutional. 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441. We determined that because the subrogation statute was unconstitutional, any collection or retention of moneys was unlawful and therefore the action seeking restitution was “an action to correct the unjust enrichment of the BWC [and sought] the return of specific funds wrongfully collected.” Id. at ¶ 17. Thus, we concluded that the employees’ claim was an equitable claim. {¶ 14} In another case, we held that a claim by Medicaid providers seeking monetary relief from the Ohio Department of Human Services, following its implementation of an unlawful administrative rule that reduced reimbursement rates, was an equitable claim. Ohio Hosp., 62 Ohio St.3d 97, 579 N.E.2d 695. In reaching this conclusion, we relied on the following analysis by the United States Supreme Court in Bowen: 6  January Term, 2020 “Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies ‘are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.’ D. Dobbs, Handbook on the Law of Remedies 135 (1973). * * * “* * * Maryland [the plaintiff] is seeking funds to which a statute allegedly entitles it, rather than money in compensation for the losses, whatever they may be.” (Emphasis deleted and ellipses and brackets added.) Id. at 895, quoting Maryland Dept. of Human Resources v. Dept. of Health & Human Servs., 763 F.2d 1441, 1446 (D.C.Cir.1985). {¶ 15} In the present case, even if the premiums charged by the BWC violated R.C. 4123.34(C)’s mandate that the BWC develop equitable rules for a rating system, as the trial court and the Eighth District determined, rendering its collection of a portion of the money unlawful, Cleveland’s claim does not sound in equity. {¶ 16} Since we decided Santos and Ohio Hosp. Assn., the United States Supreme Court has provided clear guidance regarding what constitutes equitable relief, and that guidance further supports our determination that the claim here is a legal claim. In 2016, the court explained that a claim sounded in law if it sought to recover from a defendant’s general assets rather than “specifically identified funds that remain in the defendant’s possession.” Montanile v. Natl. Elevator Industry Health Benefit Plan Bd. of Trustees, __ U.S. __, 136 S.Ct. 651, 658, 193 L.Ed.2d 556 (2016). The court further explained that “[e]quitable remedies ‘are, as a general rule, directed against some specific thing; they give or enforce a right to or over some particular thing * * * rather than a right to recover a sum of money generally out of the defendant’s assets.’ 4 S. Symons, Pomeroy’s Equity Jurisprudence § 1234, p. 694 (5th ed. 1941) (Pomeroy).” (Ellipsis sic.) Montanile at __, 136 S.Ct. 7  SUPREME COURT OF OHIO at 658-659. The court stated that if there is not a specifically identifiable fund, or traceable items on which the money from the fund was spent, to seize, “the plaintiff could not attach the defendant’s general assets instead.” Id. at 659. In such a case, “[t]he plaintiff had ‘merely a personal claim against the wrongdoer’—a quintessential action at law.” Id., quoting Restatement of the Law, Restitution, Section 215(1), at 866 (1936). {¶ 17} Although the BWC kept track of the amount of Cleveland’s premium payments, R.C. 4123.34(A), Cleveland’s premiums went into a general insurance fund, R.C. 4123.30, i.e., they were not kept separate from payments made by other public employers. Once Cleveland’s premium payment was deposited into the fund, it became commingled with the premium payments from other employers. And even if we considered the state insurance fund itself to be a specific fund, Cleveland paid the last funds it seeks to recover in 2009. It is inconceivable how money belonging to Cleveland could “clearly be traced to particular funds or property” in the BWC’s possession, see Great-West, 534 U.S. at 213, 122 S.Ct. 708, 151 L.Ed.2d 635 (Historically, an equitable claim for restitution was one in which “money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant’s possession”). The BWC has paid that money out as compensation to injured workers or refunds to covered employers. The money allegedly overpaid is no longer in the BWC’s possession and cannot be recovered by a suit in equity. Thus, Cleveland’s claim sounds in law and must proceed through the Court of Claims, which has exclusive jurisdiction over legal claims against the BWC. III. CONCLUSION {¶ 18} For the foregoing reasons, we reverse the decision of the court of appeals, vacate all orders by the trial court in this matter, and remand the cause to the Cuyahoga County Common Pleas Court with instructions to dismiss the cause for lack of subject-matter jurisdiction. 8  January Term, 2020 Judgment reversed, trial-court orders vacated, and cause remanded. KENNEDY, FRENCH, FISCHER, DEWINE, and STEWART, JJ., concur. DONNELLY, J., dissents, with an opinion. _________________ DONNELLY, J., dissenting. {¶ 19} In Santos v. Ohio Bur. of Workers’ Comp., 101 Ohio St.3d 74, 2004- Ohio-28, 801 N.E.2d 441, ¶ 17, this court determined that when the Bureau of Workers’ Compensation (“BWC”) unlawfully retains funds to which it is not entitled, “an action to correct the unjust enrichment of the BWC” is an equitable claim for restitution. Santos remains good law. See Cirino v. Ohio Bur. of Workers’ Comp., 153 Ohio St.3d 333, 2018-Ohio-2665, 106 N.E.3d 41, ¶ 28 (lead opinion citing Santos with approval). Yet the majority opinion today determines that an action seeking restitution of funds that the BWC unlawfully collected from the city of Cleveland is not an equitable action. In this case, the majority opinion brushes aside Santos, without overruling it, by linking its view of restitution to the view espoused by the United States Supreme Court. See Majority opinion at ¶ 16, relying on Montanile v. Natl. Elevator Industry Health Benefit Plan Bd. of Trustees, __U.S. __, 136 S.Ct. 651, 658, 193 L.Ed.2d 556 (2016). In doing so, it has essentially determined that a court can never order restitution of money. {¶ 20} The majority opinion states, “It is inconceivable how money belonging to Cleveland could ‘clearly be traced to particular funds or property’ in the BWC’s possession * * *.” Majority opinion at ¶ 17, quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). I agree with the statement, but I disagree with the import the majority gives it. If a party can avoid a claim for restitution of money simply by commingling funds, then there will never be a successful claim for restitution of money. The 9  SUPREME COURT OF OHIO majority opinion doesn’t state this position, but that is the logical extension of its statement. The problem is that in the modern age, most money is not a physical thing but is simply represented by numbers on a page, whether paper or electronic. {¶ 21} There is no reason to adopt the untenable position that when money that was unlawfully received cannot be traced to particular funds, restitution is not available. Money is not like most assets—it is intrinsically fungible. When a person seeks the return of $100, he or she never insists that the $100 be the exact same bills possessed previously; any $100 will do just fine—for that matter, so will a check or an electronic transfer. Other assets are different, when a person seeks restitution of a ring, he or she is seeking a specific ring; rings have specific differentiating characteristics, both good and bad. Whereas one hundred dollars is one hundred dollars. {¶ 22} The BWC has assets in excess of $28 billion. See Fiscal Year 2018 Annual Report of the Ohio Bureau of Workers’ Compensation, https://www.ic.ohio.gov/news/annualreport_pdfs/bwc_ic_annual_2018.pdf (accessed Jan. 21, 2020) at page 3 [https://perma.cc/2KKQ-DG82]. It does not keep those funds in discernible stacks of bills and coins. That should not render it immune from a claim for restitution of money. The BWC was found to have overcharged Cleveland by $4,524,392, and it has ample funds available from which to make restitution. {¶ 23} Cleveland is not seeking damages or any other legal remedy. Cleveland is not seeking one penny more than the $4,524,392 that it was unlawfully overcharged. Based on Santos, 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441, I conclude that Cleveland’s claim is in equity. I would affirm the sound judgment of the court of appeals. Accordingly, I dissent. _________________ 10  January Term, 2020 Barbara A. Langhenry, Cleveland Director of Law, and Lisa A. Mack, Assistant Director of Law; and Calfee, Halter & Griswold, L.L.C., Maura L. Hughes, Mitchell G. Blair, and Alexander B. Reich, for appellee. Dave Yost, Attorney General, Benjamin M. Flowers, Deputy Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Stephen P. Carney, Deputy Solicitor; and Taft, Stettinius & Hollister, L.L.P., James D. Abrams, and Michael J. Zbiegien Jr., for appellant. Garry E. Hunter, urging affirmance for amicus curiae, the Ohio Municipal League. _________________ 11 

384 F.2d 881 HOUSTON TYPOGRAPHICAL UNION NO. 87, Appellant,v.HOUSTON CHRONICLE PUBLISHING COMPANY, Appellee. No. 24446. United States Court of Appeals Fifth Circuit. October 31, 1967. Rehearing Denied November 22, 1967. Bliss Daffan, Houston, Tex., for appellant. Willis Witt, Liddell, Dawson, Sapp & Zivley, Houston, Tex., for appellee. Before WISDOM, THORNBERRY and GOLDBERG, Circuit Judges. PER CURIAM: 1 The plaintiff, the Houston Chronicle Publishing Company sues to compel arbitration under its collective bargaining contract with the defendant, Houston Typographical Union No. 87. Each party moved for summary judgment. The district court granted the plaintiff's motion and ordered arbitration. 2 The Union had received complaints from some of its members concerning a foreman, Eugene Martin. The charges related to Martin's performance of his duties as composing-room foreman. The Union filed the complaints and summoned Martin to appear before its Executive Committee. Martin did not appear. The Union then instituted proceedings by which Martin was fined, reprimanded, and ordered to appear again. This action was based solely on his failure to appear when first summoned. When Martin, with the advice of the Chronicle, continued to ignore the proceedings, the Union took steps to expel him. The Joint Standing Committee was unable to resolve the controversy, and the Chronicle demanded that the matter be placed in arbitration. The Union characterizes its actions as Union conduct of its own affairs, insulated from arbitration by the contract. It has therefore refused to arbitrate. 3 Ultimate solution of the controversy between the Union and the Chronicle turns on whether the Union's initial summons to Martin to appear and answer complaints relating to his composingroom conduct constituted discipline forbidden by section 8(h)1 of the contract or conduct of its own affairs allowed by section 6.2 The district court concluded that the controversy involves a question of contract construction within the purview of section 4.3 4 We adopt the opinion of the district court, 272 F.Supp. 974, as the opinion of this Court. 5 The judgment is affirmed. Notes: 1 Section 8(h). "No fines or disciplinary action shall beimposed by the Union upon any foreman * * * for his actions in enforcing the office rules under conditions authorized in contract for carrying out the instructions of the office * * *" 2 Section 6. "Nothing contained herein shall be construed to interfere in any way with the * * *operation of any rules not in conflict with the law or this contract * * * by the Union for the conduct of its own affairs." 3 Section 4. "Should the Joint Standing Committee be unable to agree [on questions concerning the construction to be placed upon any clause of this agreement] * * * it shall immediately refer the matter toarbitration * * * providing, controversies or disagreements which may be decided in accordance with the terms of this Section 4 shall be limited exclusively and specifically to the differences in the interpretation and enforcement of the terms of this contract, including the question of whether under Section 5(a) and (b), the disputed issue is covered by the terms of this contract, and including the interpretation of all language contained in this contract."

226 F.Supp.2d 669 (2002) Lawrence I. LIVORNESE, M.D., David M. Rogers, M.D., and Chestnut Hill Cardiology Consultants, Ltd., Plaintiffs, v. The MEDICAL PROTECTIVE CO., Defendant/Third-Party Plaintiff, v. Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund, and John Reed, Third-Party Defendants. Civil Action No. 01-3124. United States District Court, E.D. Pennsylvania. October 1, 2002. *670 Robert E. Slota, Law Offices of Robert E. Slota, Bryn Mawr, PA, for Plaintiffs. Kevin H. Wright, Wright, Young & McGilvery, Blue Bell, PA, for Defendant/Third-Party Plaintiff. Guy A. Donatelli, Mary-Ellen H. Allen, Lamb, Windle & McErlane, P.C., West Chester, PA, for Third-Party Defendants. MEMORANDUM AND ORDER SCHILLER, District Judge. Plaintiffs in this matter were defendants in a medical malpractice suit tried in the Court of Common Pleas for Philadelphia County that resulted in a substantial judgment against them. In January 1999, a jury returned a verdict of $2,085,000.00, and the court molded the verdict to include delay damages and postjudgment interest. Plaintiffs' primary insurer, The Medical Protective Company ("MedPro"), tendered its $400,000 policy limits in August 1999. An appeal was taken, and the Superior Court affirmed the judgment in an opinion filed on February 23, 2000. See Gunn v. Grossman, 748 A.2d 1235 (Pa.Super.Ct.2000). Plaintiffs then commenced this diversity action against MedPro. Subsequently, MedPro filed a third-party complaint against the Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund and its Director, John Reed ("CAT Fund").[1] Pursuant to Federal Rule of Civil Procedure 12(b)(6), the CAT Fund has moved for the dismissal of MedPro's third-party complaint in its entirety for failure to state a claim upon which relief can be granted. I. STANDARD OF REVIEW In considering Third-Party Defendant's motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), I must accept as true all of the factual allegations pleaded in the complaint and draw all reasonable inferences in favor of the non-movants. See Fuentes v. S. Hills Cardiology, 946 F.2d 196, 201 (3d Cir.1991). In addition, I must "refrain from granting a dismissal unless it is certain that no relief can be granted under any set of facts which could be proved." Id. II. BAD FAITH CLAIM AGAINST THE CAT FUND MedPro alleges that in the event that it is found liable to Plaintiffs, the CAT Fund will be liable to MedPro "for all of part of the Plaintiffs' claim . . . on the basis of contribution and/or indemnity." (Third-Party Compl. ¶ 27.) In moving for dismissal, the CAT Fund argues that MedPro cannot state a claim against it under Pennsylvania's bad faith statute, 42 PA. CONS.STAT. § 8371. Because I previously dismissed Plaintiffs' bad faith claim against MedPro, see Livornese v. Medical Protective Co., 219 F.Supp.2d 645, 649 (E.D.Pa.2002), and MedPro seeks only indemnity or contribution from the CAT Fund, there is no basis for holding the CAT Fund liable for bad faith in this action. That is, MedPro's claim for bad faith against the CAT Fund is moot. III. MEDPRO'S REMAINING CLAIMS AGAINST THE CAT FUND A statutory provision at issue in this case is section 702(j) of the Healthcare Services Malpractice Act, which provides as follows: Delay damages and postjudgment interest applicable to the [CAT Fund's] liability in a case shall be paid by the fund *671 and shall not be charged against the insured's annual aggregate limits. The basic insurance carrier or self-insurer shall be responsible for its proportionate share of delay damages and post-judgment [sic] interest. 40 PA. CONS.STAT. § 1301.702(j). On the one hand, the CAT Fund argues that under section 702(j), it is not responsible for MedPro's share of delay damages or post-judgment interest. According to the CAT Fund, section 702(j) places absolute liability on the basic insurance carrier for its "proportionate share" of delay damages and postjudgment interest. On the other hand, MedPro argues that when it tendered its policy limits, the CAT Fund took exclusive control of the defense of this case, including control over the appeal, and MedPro's liability for delay damages and postjudgment interest thereby ended. I agree and disagree with both parties. First, the mere fact that MedPro tendered its policy limits after the judgment was entered does not negate its liability for delay damages. Under Pennsylvania Rule of Civil Procedure 238, delay damages accrue "from a date one year after the date of original process was first served in the action up to the date of the award, verdict or decision." PA. R. CIV. P. 238(ii). Because MedPro tendered its policy limits after the verdict had been molded to include delay damages, i.e., after delay damages stopped accruing, MedPro's payment did not affect MedPro's obligations with respect to delay damages. However, MedPro's act of making payment is of consequence with respect to the imposition of postjudgment interest. MedPro should not be held responsible for any postjudgment interest that accrued on the amount it tendered subsequent to the date that MedPro made payment. Moreover, in Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa. 613, 702 A.2d 850 (1997), the Pennsylvania Supreme Court reasoned that "the law of indemnity provides a legal basis to hold the CAT Fund liable for the portion of delay damages attributable to the time period in which the CAT Fund retained exclusive control over settlement negotiations." Id. at 855. Although Willet addressed a situation that is factually different from the case at bar and addressed a previous version of the Healthcare Services Malpractice Act, the Willet court's reasoning is nonetheless instructive insofar as it makes clear that in certain circumstances the CAT Fund's conduct during litigation will create a duty to indemnify. Here, MedPro effectively removed itself from the litigation by tendering its policy limits, and under the equitable remedy of indemnity, it may be able to shift responsibility for accrued postjudgment interest to the CAT Fund. As such, the CAT Fund cannot be dismissed from this action. III. CONCLUSION For the foregoing reasons, I grant in part and deny in part the CAT Fund's motion to dismiss. ORDER AND NOW, this 1st day of October, 2002, upon consideration of Third-Party Defendant Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund's Motion to Dismiss, the memoranda of law in support thereof, and the responses thereto, it is hereby ORDERED that: 1. Third-Party Defendant's Commonwealth of Pennsylvania Medical Professional Liability Catastrophe Loss Fund's Motion to Dismiss (Document No. 13) is GRANTED IN PART AND DENIED IN PART. Third-Party Defendant's motion is GRANTED to the extent it seeks dismissal *672 of Third-Party Plaintiff's bad faith claim and DENIED in all other respects. 2. Defendant shall respond to Plaintiffs' Motion to Compel Discovery (Document No. 25) no later than October 21, 2002. NOTES [1] The facts of this case are set forth in more detail in Livornese v. Medical Protective Co., 219 F.Supp.2d at 648, (E.D.Pa.2002).

295 S.W.2d 629 (1956) Ted VOGLER, Appellant, v. Earl O'NEAL, Appellee. No. 5-1078. Supreme Court of Arkansas. November 26, 1956. *630 Barber, Henry & Thurman, Little Rock, for appellant. Talley & Owen, and Dale Price, Little Rock, for appellee. HOLT, Justice. Appellee, Earl O'Neal, brought this action against Ted Vogler, appellant, to recover compensatory and also punitive damages alleged to have resulted from the collision of an automobile driven by Vogler and one driven by O'Neal, on March 4, 1955. Specific acts of negligence on the part of Vogler were alleged in the complaint and in addition it was alleged that such acts were willful, wanton and malicious and entitled O'Neal also to punitive or exemplary damages. Appellee sought $50,000 as compensatory damages and $10,000 as punitive damages. At the trial appellant (Vogler) admitted liability for compensatory damages and denied any liability for punitive damages. The jury returned a verdict for O'Neal for $10,739.45 compensatory damages and $12,000, as punitive damages. Thereafter the court, on its own motion, reduced the $12,000 verdict to $10,000 to conform to the prayer of appellee's complaint and judgment was rendered accordingly. This appeal followed. Appellant for reversal relied upon the following points: "I. The lower court erred in giving plaintiff's instructions Numbered 1 and 3. II. The lower court erred in permitting witnesses Brown, Laird and Singleton to testify as to statements made to them by Vogler, and as to Vogler's physical condition hours subsequent to the time of the accident. III. The verdict as to compensatory damages is excessive and the result of passion and prejudice. IV. The verdict as to punitive damages is excessive and was the result of passion and prejudice." We consider them in the order presented. I Instruction No. 1 provided: "You are instructed that the parties, both the plaintiff and the defendant, have agreed that Earl O'Neal is entitled to recover actual damages suffered by him from the defendant, Ted Vogler. You will find for Earl O'Neal in such sum as you find from a preponderance of the evidence, will reasonably compensate him for the injuries he sustained, if any; the pain and suffering he has suffered to date, if any, the pain and suffering he will suffer in the future, if any, the medical expenses he has incurred to date, if any, the medical expenses he will incur in the future, if any; permanent partial disability which he has suffered, if any. Upon these elements of damages, you will fix such sum as in your judgment you find from a preponderance of the evidence will reasonably compensate him for the injuries and damages he sustained, if any." Appellant objected specifically, at the trial, to that part of the above instruction "which submits to the jury the recovery by plaintiff of future medical expense and future pain and suffering, if any," and he argues here that the instruction was "inherently erroneous in that it permitted the jury to assess damages for permanent disability *631 and injury where there was no testimony in the record, nor was there any prayer in the complaint which would have justified this element of damages." The record reflects that there was a prayer for permanent disability and injury in the complaint. The complaint states: "Thereby causing serious, grievous, painful and permanent injuries to the plaintiff." We do not agree that this instruction was inherently erroneous and hold that it was a correct statement of the law with regard to the measure of damages. We said in Coca-Cola Bottling Co. of Arkansas v. Adcox, 189 Ark. 610, 74 S.W.2d 771, 772 that: "`The measure of damages for a physical injury to the person may be broadly stated to be such sum, so far as it is susceptible of estimate in money, as will compensate plaintiff for all losses, subject to the limitations imposed by the doctrines of natural and proximate consequences, and of certainty, which he has sustained by reason of the injury, including compensation for his pain and suffering, for his loss of time, for medical attendance and support during the period of his disablement, and for such permanent injury and continuing disability as he had sustained. Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are unsusceptible of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence adduced, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained.'" After a review of all the evidence, we hold that there was some substantial evidence that appellee has suffered permanent partial disability and will continue in the future to suffer pain and would incur future medical expenses. There was medical testimony supporting this view. Dr. Jones testified that when he re-examined O'Neal on March 28, 1956 he was complaining of injury to his left leg: "Q. And what does this injury to the left leg consist of? A. * * * At that time he was complaining of pain just above the outer aspect of the left knee. * * * "Q. You found it to be constant? A. Yes, sir. "Q. Did you find any disability as a result of this knee? A. The disability would be the result of pain and complaint of pain he had. Mechanically there is no disability. From the standpoint of discomfort he experienced, yes. There was some degree of disability. * * * "Q. Would you estimate the disability? A. Five per cent as related to the leg or that would be the reasonable estimation." Dr. Hundley testified that he treated O'Neal beginning March 27, 1955, that he had a fracture of the 3rd, 4th, 5th and 6th, 9th, 10th and 11th ribs, a fracture of the left scapula, or shoulder blade, that he was suffering great pain. Quoting from appellant's brief, Dr. Hundley testified: "* * that his examination revealed some tenderness of the left para-cervical area with extension of the cervical spine or neck being 75% normal, flexion 75% of normal; that side bending to the left was 50% of normal, to the right 75% of normal; that side bending of the cervical spine was accompanied by pain in the left side of the neck and left collar bone area; that rotation to the left was 50% of normal, to the right normal; * * * that flexion of the trunk was normal but bending backward was 75% of normal accompanied by pain in the chest, * * * He again examined Mr. O'Neal on May 21, July 11, October 8, 1955, and on March 27, 1956, giving him medication for relief of pain as well as physical therapy. The last date he saw him was March 27, 1956. At that time he stated there had been no locking in the fingers, but he had had pain in his left ring finger *632 and left thumb and the entire left arm was sore. He stated he had dizzy spells and was extremely nervous and had had headaches since returning to work. He also complained of a pulling sensation in his left leg * * *. July 11, 1955, he returned to the office, stating that the left knee felt like something was cutting it and he could hardly walk at times * * *. He continued to complain of neck and back pain and headaches. * * * On October 8, 1955, examination revealed muscle spasm to the lower spine and tenderness * * *He returned to the office on March 27, 1956, stating that sometimes when he sits down, he can hardly get up because of pain in his low back * * * The physical examination revealed tenderness in the lumbar areas * * *. As of March 27 he still found tenderness in the lumbosacral area. Flexion was normal but the extension or backward bending was limited about 50% of what it should be. As of the date of his last examination he continued to complain of pain * * *. The last date he saw him was March 27, 1956. Under our well established rule we must affirm when we find any substantial evidence to support the jury's verdict and in determining whether the evidence is substantial we must give it the strongest probative force that it will bear, in favor of appellee here. As indicated, we hold that it was sufficient on the evidence presented. Appellant next complains that plaintiff'9 Instruction No. 3, to which he made only a general objection, is erroneous. That instruction was as follows: "If you find from a preponderance of this evidence that the defendant's negligent acts, if any, were committed wantonly or willfully, then you are told, if you find for the plaintiff in compensatory damages, you would then be justified to assess punitive damages in such amount as you may deem sufficient under the evidence, if any; to punish him for his misconduct, if any; and to serve as a proper warning to others." Appellant says "that this instruction was erroneous, in that it did not limit the amount of the recovery for punitive damages." Appellant, as indicated according to the record, was content to make a general objection only to this instruction, which cannot be sustained unless the instruction was inherently wrong, and we hold that it was not inherently erroneous. The record reflects that just before the instructions were given by the court, appellant's only reference to an instruction on punitive damages was in this language: "We feel the issues should be confined (1) to the measure of damage and, (2) as to whether or not there is sufficient evidence to justify an award of punitive damages in addition to the compensatory damages." As indicated, appellant made no specific objection to this instruction. No other instruction on the measure of damages was requested. In the circumstances the rule announced by this court in Kirchoff v. Wilcox, 183 Ark. 460, 36 S.W.2d 667, 669, is applicable. We there said: "An instruction was given on the court's own motion which reads as follows: `If you find for the plaintiff your verdict should be: "We the jury find for the plaintiff," and assess whatever damages you think he is entitled to under the proof.' No other instructions on the measure of damages was asked or given, and only a general objection was made to the instruction as given. * * * The instruction does not contain any erroneous declaration of law and does not announce an improper rule by which to measure the damages. Its defect is that it does not furnish a correct guide to the jury as to the measure of damages, * * *. Here our attention is called to the fact that no specific objection was made to the instruction in the court below, and such is the state of the record. * * * `It is the settled practice in this state that a party cannot avail himself of an omission which he made no effort to have supplied in the trial court. * * * "Here, as in the *633 preceding case, the remedy of the party is to ask additional instructions before the jury retires. So where the judge has laid down a proposition which in the abstract is clearly right, but there is something peculiar in the situation of the parties, or their relations to each other, which would require a modification of it, and which had escaped the attention of the judge, it is the duty of counsel to call his attention thereto."'" II We hold that no error was committed by the trial court in permitting witnesses Brown, Laird and Singleton to testify as to certain statements made to them by Vogler [defendant]—many hours after the mishap—as to Vogler's physical condition at the time the collision occurred. Witness Allison Brown was permitted to testify on behalf of appellee, that on the morning following the collision he was at appellant's home and appellant told him he did not remember any of the details of the mishap because he was intoxicated. Two other witnesses, Officers Singleton and Laird, over appellant's objection, were permitted to testify not only that appellant was intoxicated when they arrived at the scene of the collision but both witnesses were permitted to detail to the court appellant's condition after he had been confined in the Little Rock Municipal Jail and as to statements by the defendant made to them at that time. Officer Singleton further testified that appellant, Vogler, told him that as he was leaving Walnut Ridge on his way to Little Rock he purchased two halfpints of whiskey and that he consumed these two half-pints. The testimony of these two witnesses was clearly admissible, we hold, since the statements were made to them by the defendant and, in effect, were against his own interest. "The acts and declarations of a party to a suit, when they afford any presumption against him may be proven by the opposing party. It is a well recognized rule of evidence that any statements which may have been made by a party to a suit against his interest, touching material facts, are competent as original testimony," Collins v. Mack, 31 Ark. 684. Also see Covington v. Little Fay Oil Co., 178 Ark. 1046, 13 S.W.Zd 306. Ill We have concluded that the verdict for $10,739.45—as compensatory damages —was not excessive in the circumstance. The evidence shows that appellee was in the hospital for 4 days, and was confined to his home over 2 months and had to sleep in a chair 31 nights. His doctors' bills amounted to $634.50, hospital $101.95 and ambulance $10—a total of $746.45. He suffered great pain and will continue to suffer some pain and partial permanent disability. We cannot say that the jury's allowance of $10,739.45 as compensatory damages, while liberal, is excessive. IV We hold, however, that $10,000 allowed by the jury for exemplary damages was excessive and that this amount should be reduced to $5,000. From the testimony presented, the jury had this situation before it: Vogler bought two half-pints of whiskey in Walnut Ridge, drank them before he got to Little Rock, was traveling 60 miles per hour across the Main Street Bridge from North Little Rock to Little Rock; drove his car from the extreme west of the bridge across to the extreme east of the bridge and struck appellee; was so drunk he didn't recall any of the details of the accident; was so indifferent to O'Neal's injuries that he didn't bother to see Mr. O'Neal after the accident until the day of the trial. In these circumstances, the jury was warranted in assessing, in effect, Vogler's conduct as willful, and that he was exhibiting a wanton disregard for other people's rights. *634 In approving punitive damages, in a similar situation to that here presented, we announced the following principle of law in Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293, 3 A.L.R.2d 203, in which is cited with approval, the case of Ross v. Clark, 35 Ariz. 60, 274 P. 639, 642, wherein the court said: "`Punitive damages' are not intended to remunerate the injured party for the damages he may have sustained. They are not to compensate; they are the penalty the law inflicts for gross, wanton, and culpable negligence, and are allowed as a warning or as an example to defendants and others. Because they are an example as to what the law will do for such conduct when it results in injury to the person or property of others, they are sometimes called exemplary damages." "There is no fixed standard for the measurement of exemplary or punitive damages; the amount of the award is a matter largely within the discretion of the jury or of the court sitting without a jury, on due consideration of the attendant circumstances." 25 C.J.S, Damages, § 126. We can well understand that the jury here was justifiably outraged at the reckless and wanton conduct of this drunken appellant, and that it felt warranted in fixing his penalty high, as a warning to intoxicated operators of automobiles, however we have concluded, as indicated, that such penalty should not be greater than $5,000. Accordingly the judgment for $10,739.-45 compensatory damages is affirmed. The judgment for $10,000 punitive damages will be reduced to $5,000 and affirmed for this amount [$5,000] provided appellee shall within 15 days from the date of this opinion enter a remittitur in the amount of $5,000 as indicated. Otherwise this judgment as to punitive damages will be reversed and remanded. MILLWEE, J., not participating.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-16-00599-CV Richard J. Zenteno, Appellant v. Autoland Scientech USA, Inc., Appellee FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 15-0672-C26, THE HONORABLE DONNA GAYLE KING, JUDGE PRESIDING MEMORANDUM OPINION This appeal was suspended in 2016 after the Court received notice of a related bankruptcy and its automatic stay of this appellate proceeding. See Tex. R. App. P. 8.1, 8.2. After the case was suspended, no party to this appeal sought reinstatement. See Tex. R. App. P. 8.3. We have now been informed that the bankruptcy case related to this appeal is closed, and therefore, we have reinstated the appeal. On August 28, 2018, the Clerk of this Court sent notice to the parties that this appeal would be dismissed for want of prosecution unless a status report was filed on or before September 7, 2018, that provided reason to retain this appeal. See Tex. R. App. P. 42.3(b). Appellant Richard J. Zenteno responded that the parties have resolved their dispute and that he wishes to withdraw the appeal and has no objection to its dismissal. Accordingly, we dismiss this appeal for want of prosecution. See Tex. R. App. P. 42.3(b).  __________________________________________ Cindy Olson Bourland, Justice Before Justices Puryear, Goodwin, and Bourland Dismissed for Want of Prosecution Filed: October 4, 2018 2 

635 F.Supp.2d 313 (2009) PLAYTEX PRODUCTS, INC., Plaintiff, v. The PROCTER & GAMBLE COMPANY, Defendant. No. 08 Civ. 1532 (WHP). United States District Court, S.D. New York. July 14, 2009. *315 Matthew Lehr, Esq., Davis Polk & Wardwell LLP, Menlo Park, CA, for Plaintiff. Harold P. Weinberger, Esq., Kramer Levin Naftalis & Frankel LLP, New York, NY, for Defendant. MEMORANDUM AND ORDER WILLIAM H. PAULEY III, District Judge: Plaintiff Playtex Products, Inc.'s ("Playtex") application for a preliminary injunction against Defendant The Procter & Gamble Company ("P & G") is the latest skirmish in the tampon advertising wars. The battles have spanned seven years and included a jury trial and several evidentiary hearings.[1] In the present dispute, Playtex alleges that P & G's advertising claims concerning the superior protection of its Tampax Pearl tampons are false, in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Following several rounds of briefing, this Court held a two-day evidentiary hearing on March 18-19, 2009 (the "Preliminary Injunction Hearing"). For the reasons that follow, Playtex's motion for a preliminary injunction is denied. FINDINGS OF FACT I. Background P & G and Playtex are the two principal competitors in the plastic applicator tampon market. (Complaint dated Sept. 3, 2008 ("Compl.") ¶ 8.) P & G's Tampax Pearl has the larger market share while Playtex's Gentle Glide is the next leading brand. (Compl. ¶¶ 4, 7.) Both brands are available in regular, super, and super-plus absorbency sizes. See Playtex Products, Inc. v. Procter & Gamble Co., No. 02 Civ. 8046(WHP), 2008 WL 399295, at *1 (S.D.N.Y. Feb. 11, 2008) ("Playtex I"), II. Prior Litigation In 2002, Playtex sued P & G (the "2002 Action"), claiming, inter alia, that P & G had violated the Lanham Act, 15 U.S.C. § 1125(a), by advertising that Tampax Pearl ("Old Pearl") provides better leakage protection and comfort than Gentle Glide ("Old Gentle Glide"). Playtex I, 2008 WL 399295, at *1. After a jury verdict in Playtex's favor, this Court entered a permanent injunction prohibiting P & G from making any claims of superior protection and comfort (the "Injunction Order"). The Injunction Order enjoined P & G from, inter alia,: communicating or stating that (a) Tampax Pearl tampons are superior in wearing comfort or protection to Playtex Gentle Glide tampons; and (b) Tampax Pearl tampons are superior in absorbency to or have an absorbent braid for *316 better protection than Playtex Gentle Glide tampons, either explicitly or implicitly by reference to "the leading plastic" applicator tampon, and without limitation of reference to the use of comparative words such as "super," "better," or "more".... Playtex I, 2008 WL 399295, at *1. Having developed a new version of Tampax Pearl ("New Pearl"), P & G moved pursuant to Fed.R.Civ.P. 60(b)(5) in June 2007 to vacate or modify the Injunction Order. Playtex I, 2008 WL 399295, at *1. After a three day evidentiary hearing, this Court modified the Injunction Order to allow P & G to claim superior protection because at that time P & G supported that claim with sufficient evidence (the "Modification Order"). Specifically, the Court "remove[d] the prohibitions against P & G advertising New Pearl's superior absorbency and protection" but "continue[d] to enjoin P & G from claiming that `Tampax Pearl tampons ... have an absorbent braid for better protection.'" Playtex I, 2008 WL 399295, at *5. This Court found that, in developing New Pearl, P & G made a number of changes to its manufacturing process. First, this Court discussed P & G's changes to the braid, holding that "P & G changed the fiber used in the braids, from one with a Y-shaped cross-section to one with a round-shaped cross-section that packs more tightly and allows fluid to seep into the tampon's pad more quickly." Playtex I, 2008 WL 399295, at *2. The Court noted three additional changes: (1) "P & G modified the pads"; (2) "P & G increased the mechanical conditioning in New Pearl by compressing it with a longer push rod, resulting in shorter tampon length"; and (3) "P & G further aided the absorption and tampon expansion by increasing the diameter of the inner carrier mold used to make New Pearl." Playtex I, 2008 WL 399295, at *2. In continuing to enjoin P & G with respect to absorbency claims for its braid, the Court held that "[w]hile P & G has demonstrated that cumulative changes in its manufacturing process led to greater absorbency, it has not specifically shown that New Pearl's braid is the cause of this improvement," and cited the testimony of a P & G expert who stated that "`all of these different changes ... collectively make the material change in the potential for improved leakage prevention.'" Playtex I, 2008 WL 399295, at *5. Following this Court's ruling, the parties stipulated to vacate the injunction in its entirety. (Playtex's Proposed Findings of Fact and Conclusions of Law dated Apr. 8, 2009 ¶ 17; P & G's Proposed Findings of Fact and Conclusions of Law dated Apr. 8, 2009 ¶ 10.) At the time of the June 2007 hearing, Playtex had also developed a new version of its Gentle Glide and was ready to market it ("New Gentle Glide"). See Procter & Gamble Co. v. Playtex Products, Inc., No. 08 Civ. 1532(WHP), 2008 WL 3301894 (S.D.N.Y. Aug. 7, 2008) ("Playtex II"). However, neither party presented evidence concerning New Gentle Glide at the hearing. After the Modification Order, Playtex informed P & G that because the Modification Order was based on New Pearl's demonstrated superiority to an outdated version of Gentle Glide, any claims of superiority would be false with respect to New Gentle Glide, and thus "subject to challenge in Court." Playtex II, 2008 WL 3301894 at *1. On February 14, 2008, P & G brought an action against Playtex seeking a declaratory judgment that the doctrine of res judicata precluded Playtex from challenging P & G's advertising claim that Tampax Pearl tampons protect better than Gentle Glide. Playtex II, 2008 WL 3301894 at *1. Both parties moved for summary judgment. By *317 the time the motions were briefed, P & G was running advertisements in which it asserted Tampax Pearl tampons "protect even better than the next leading brand." Playtex II, 2008 WL 3301894 at *1. On August 7, 2008, this Court denied P & G's motion and granted summary judgment to Playtex in the declaratory judgment action. Playtex II, 2008 WL 3301894 at *1. In that Memorandum & Order, this Court held that since "Playtex's current claim concerns two products—New Pearl and New Gentle Glide— that did not exist at the time Playtex brought the [2002 Action] ... res judicata does not preclude Playtex from raising a new claim of false advertising based on P & G's claim that New Pearl protects better than New Gentle Glide." Playtex II, 2008 WL 3301894 at *2 (internal citations omitted). The parties were then realigned and Playtex filed its current false advertising claims. On February 18, 2009, Playtex moved for a preliminary injunction to enjoin P & G from advertising "that Tampax Pearl (a) provides superior leakage protection compared to Playtex Gentle Glide, (b) provides `more leak-free periods' than Playtex Gentle Glide,[2] or (c) has a braid that helps stop leaks." (Docket No. 67.) III. The Advertisements P & G is currently disseminating advertising that claims "Tampax Pearl stops leaks better than the next leading brand." (Joint Exs. 12-19: P & G Advertisements.) The parties do not dispute that Gentle Glide is "the next leading brand." The parties have submitted the following P & G advertisements for this Court's consideration. A. Print/Internet Advertisements Two print advertisements depict a woman asleep in bed, while another woman stands over her playing a trumpet. The line above the sleeping woman's head reads, "Don't let Mother Nature interrupt your dreams." (Joint Exs. 13-14: P & G "Mother Nature" Print Advertisements.) The copy at the bottom of the advertisement concludes: "Got your Monthly Gift? Rest easy. Tampax Pearl® with LeakGuard® stops leaks better than the next leading brand for up to 8 hours, even at night." (Joint Exs. 13-14.) A third advertisement shows the image of a teenage girl in a soccer uniform kicking a red box wrapped in a bow; a card on the box reads, "Mother Nature's Monthly Gift." (Joint Ex. 17.) The copy at the top of the advertisement states: "When you get Mother Nature's Monthly Gift, don't back down. Tampax Pearl® has LeakGuard® built in to stop leaks better than the next leading brand. Score!" (Joint Ex. 17.) Next to the copy appears a rendering of the tampon braid, the tampon core[3] and a pad. The accompanying text reads: "LeakGuard® Braid + LeakGuard® Core = Bye Bye Backup." (Joint Ex. 17: P & G "Soccer" Print Advertisement.) The rendering of the braid, core and pad appears in a fourth advertisement, which appears to be an Internet banner. (Joint Ex. 12: P & G "Gifted" Advertisement.) Below the rendering is text that reads, "Tampax LeakGuard® protection helps stop leaks better than the next leading brand." (Joint Ex. 12.) B. Television Advertisements P & G is currently running two versions of a television commercial it calls "Romance." *318 (Joint Exs. 16-17: P & G "Romance" Television Advertisement.) Each commercial ends with the voiceover, "Tampax Pearl stops leaks better than the next leading brand ... for up to 8 hours, even at night." (Joint Exs. 16-17.) C. Display Advertisements P & G also advertises on in-store display units. These display units feature graphical representations of a tampon, with the accompanying text, "with LeakGuard® braid + core," alongside the claim "stops leaks better than the next leading brand." (Joint Exs. 18-19: P & G Display Advertisements.) D. Product Advertisements Finally, the box containing Tampax Pearl tampons includes another graphical representation of the tampon alongside the text, "Unique LeakGuard™ Braid for leakage protection." (Joint Ex. 5: Tampax Pearl Packaging.) IV. In Vivo Test Comparing New Gentle Glide and New Pearl Playtex conducted an in vivo study comparing the absorbencies of New Pearl and New Gentle Glide[4] (the "Playtex Study"). The Playtex Study compared New Pearl and New Gentle Glide in regular, super and super-plus absorbencies. (Tr. at 24.) It included 947 women aged 13 to 49 who were recruited at 27 shopping malls throughout the United States.[5] (Tr. at 24, 162; Joint Ex. 24: Playtex Study Research Proposal dated Sept. 25, 2007.) They were divided into three roughly equal groups representing the three different absorbencies. (Joint Ex. 25: at PLAY_000361: Playtex Study Table 10.) After qualifying to participate in the study, women were given one box of 16 unmarked tampons of the absorbency they typically use, and instructed to utilize the test tampons only when they would normally use that absorbency. (Tr. at 148-49.) If a participant needed a different absorbency from the tampons in the test box, she was instructed to use a tampon from her own supply. (Tr. at 149.) In addition, participants were told that the test tampons were numbered 1 through 16, and that they were to use them in that order. (Tr. at 78.) If the participant switched to a different absorbency and returned to the absorbency in the package, she was told to start with the lowest numbered tampon. (Tr. at 148-49; Joint Ex. 25 at PLAY_000319: Playtex Study Placement Questionnaire.) Participants were also given a diary card and inventory sheet and asked when they expected to begin their next period. (Tr. at 151-154; Joint Ex. 25 at PLAY_000319: Playtex Study Placement Questionnaire.) After recording that date, the interviewer told participants that they would receive a phone call "[a] couple of days before [their] *319 next period," to remind them to use the test tampons whenever they needed a tampon of that absorbency (the "Reminder Call"). (Tr. at 155.) They were also told that approximately 5 days from the date they expected to start their next period they would receive another telephone call (the "Callback Interview"), at which time they would be asked to read the answers they had written on the diary card and inventory sheet. (Joint Ex. 25 at PLAY_000319: Playtex Study Placement Questionnaire.) The diary card asked participants to record next to each tampon number whether the tampon leaked. (Joint Ex. 25 at PLAY_000325: Playtex Study Diary Sheet.) Participants were also provided with an inventory sheet and instructed to record the tampon numbers of any unused tampons at the conclusion of their period. (Tr. at 151; Joint Ex. 25 at PLAY_000326: Playtex Study Inventory Sheet.) During the Reminder Call, participants were again instructed "[w]hen you have used all the tampons of the absorbency you were given that were required for your period, please record on the Inventory Sheet, by circling, only the unused remaining tampon number—those tampon numbers that you did not use." (Joint Ex. 26: Playtex Study Reminder Call Script.) The inventory sheet was intended to supplement the diary card and confirm by tampon number on the inventory sheet those tampons the participant had not used. The inventory sheet listed tampons 1-16 in two side-by-side columns with the following instruction across the top: "Please record the tampon number of any unused tampons remaining in the box of tampons at the end of your period." (Tr. at 152; Joint Ex. 25 at PLAY_000326: Playtex Study Inventory Sheet.) Participants were instructed to have both the diary card and the inventory sheet available during the Callback Interview. (Tr. at 152.) Participants were paid $5 to participate in the study and an additional $15 if they returned the diary sheet. (Tr. at 89.) Playtex Study data was collected primarily through the Callback Interview, in which both the diary sheet and inventory sheet information were recorded. (Tr. at 157.)[6] Based on that data, Playtex concluded that there was no difference in leakage rates between New Gentle Glide and New Pearl. (Tr. at 164.) According to Playtex, no statistical analysis was necessary to reach that conclusion because the leakage rates were virtually identical across all absorbencies. (Tr. at 164.) The Playtex Study concluded that for the regular absorbency, 15.2% of Gentle Glide and 15.4% of Tampax Pearl tampons leaked. With respect to super absorbency, 15.4% of Gentle Glide and 14.3% of Tampax Pearl tampons leaked. Finally, 14.1% of Gentle Glide and 13.9% of Tampax Pearl super-plus tampons leaked. (Joint Ex. 25 at PLAY_000293: Playtex Study Conclusions.) The Playtex Study had several flaws. Most significantly, 51.6% of participants reported using all 16 test tampons—51% of the regular absorbency users, 48% of the super users, and 55% of the super-plus users reported using all 16 tampons. (Tr. at 70-71.) However, when these same women were asked how many tampons they used in their last period, the percentage of participants by absorbency who reported using 16 or more tampons was *320 26.7%, 31.9%, and 22.6%, respectively. (Joint Ex. 25 at PLAY_000371-73, PLAY_000376-77; Tr. at 555.) Moreover, while women typically use 13 to 17 tampons across all absorbencies during a period, it is unusual to use only tampons of one absorbency. (Tr. at 64-67.) Thus, the Playtex Study did not simulate normal consumer usage. That no more than 10% of women reported using between 4 and 15 test tampons points up another anomaly in the study. (Tr. at 70-71.) The huge spike in the percentage of women using 16 tampons suggests that participants did not follow the instruction to utilize the test tampons only when they would normally use that absorbency. (Tr. at 184.) Moreover, Playtex's validation efforts, after the data was reported, did not ascertain whether participants complied with the study requirements. (Tr. at 187-88.) Finally, because the used tampons were not collected, there is no way to cross-check the accuracy of the participants' responses. (Tr. at 87.) Indeed, "[t]here is a vast array of different consumer impressions with respect to what `leakage' means." (Tr. at 220.) Also, there is no way of determining whether participants actually tracked their usage or filled out their cards at the end of the survey. (Tr. at 88-89, 488.) V. Testing of the Braid A. Playtex's Testing Utilizing an apparatus that measures absorbency (the syngyna), Playtex compared Old Pearl and New Pearl with and without the braid. (Tr. at 251.) Those tests revealed that the braid does not increase absorbency. (Tr. at 252.) Playtex also performed an experiment in which it videotaped the braid's performance to determine what happens when fluid touches the top of the braid (the "Video Experiment"). (Tr. at 252-53; Joint Ex. 46: Playtex Video Experiment.) The Video Experiment does not represent in-body conditions. (Tr. at 253.) B. P & G's Testing P & G performed in vitro tests for the braid, which simulates conditions inside the body, designed to measure how much fluid the tampon can "wick" or transport to the core. (Tr. at 356; Joint Ex. II at 3: P & G's In Vitro Testing of the Braid.) Based on this testing, P & G concluded that the improvements New Pearl made to the Old Pearl braid enhanced leakage protection. (Tr. at 356-57.) CONCLUSIONS OF LAW I. Preliminary Injunction Standard "A party seeking preliminary injunctive relief must establish: (1) either (a) a likelihood of success on the merits of its case or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor, and (2) a likelihood of irreparable harm if the requested relief is denied." Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 152-53 (2d Cir.2007). A. Likelihood of Success on the Merits Section 43(a) of the Lanham Act provides in relevant part: (1) Any person who, on or in connection with any goods or services, ... uses in commerce ... any ... false or misleading description of fact, or false or misleading representation of fact, which— .... (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's *321 goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a)(1). In order to prevail on its false advertising claim under § 43(a), Playtex must demonstrate that: (1) the challenged advertisements are literally false; and (2) the false or misleading representation involved an inherent or material quality of the product. Time Warner Cable, 497 F.3d at 153. "Where the defendant's advertisement claims that its product is superior, plaintiff must affirmatively prove defendant's product equal or inferior." Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 63 (2d Cir.1992). In other words, it is not enough for Playtex to show that P & G has inadequate proof of its superiority claim, but rather Playtex must adduce evidence that P & G's advertisements are false. See Procter & Gamble Co. v. Chesebrough-Pond's Inc., 747 F.2d 114, 119 (2d Cir.1984). "Where the advertising claim is shown to be literally false, the court may enjoin the use of the claim without reference to the advertisement's impact on the buying public." S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir.2001) (citation and internal quotation marks omitted). "However, only an unambiguous message can be literally false." Time Warner Cable, 497 F.3d at 158. "[I]f the language or graphic is susceptible to more than one reasonable interpretation, the advertisement cannot be literally false." Time Warner Cable, 497 F.3d at 158. In such a case, to resolve a claim that the advertisement is literally false, "the district court must look to consumer data to determine what the person to whom the advertisement is addressed finds to be the message." Time Warner Cable, 497 F.3d at 158 (internal quotation marks and citation omitted). 1. P & G's Claims That Tampax Pearl Provides Superior Leakage Protection Given the flaws in the Playtex Study, Playtex has not met its burden to prove P & G's claims of superior leakage protection are false. Specifically, the discrepancy between the percentages of women who used all 16 test tampons and the percentages of those same women who reported using 16 or more tampons in their last period raises a number of questions. While the parties dispute what impact this may have had on the reported leakage rates,[7] several conclusions are apparent. First, the Playtex Study did not simulate consumer usage. "Under the Lanham Act, product testing can prove an advertising claim false or misleading only if those tests have some `real world' applicability." Playtex Products, Inc. v. Procter & Gamble Co., No. 02 Civ. 8046(WHP), 2004 WL 1658377, at *4 (S.D.N.Y. July 26, 2004) (citing S.C. Johnson & Son, Inc. v. Clorox Co., 930 F.Supp. 753, 766 (E.D.N.Y. 1996)). Second, despite the instruction to record any unused tampons—an instruction meant to reinforce the fact that it is atypical for women to use only tampons of one absorbency during their period—more than half of the study participants recorded no unused tampons in the test box. The participants' failure to follow directions undermines the findings of the Playtex Study. Finally, there is no way of determining "whether the data gathered was accurately reported," Procter & Gamble *322 Co. v. Ultreo, Inc., 574 F.Supp.2d 339, 350 (S.D.N.Y.2008), since the Playtex Study's findings were based almost exclusively on the Callback Interview. Given participants' inability to follow instructions, their callback reports regarding leakage are suspect. Accordingly, at this preliminary stage of the litigation, Playtex has not demonstrated a likelihood of success in proving that P & G's claim of superior leakage protection for Tampax Pearl when compared to Gentle Glide is literally false. 2. P & G's Claims With Respect to the Braid "[C]ollateral estoppel applies when: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was `actually litigated and actually decided,' (3) there was `a full and fair opportunity for litigation in the prior proceeding,' and (4) the issues previously litigated were `necessary to support a valid and final judgment on the merits.'" Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir.2008) (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir.1986)). Both Playtex and P & G argue that the other is collaterally estopped from litigating the issue of whether Tampax Pearl's braid contributes to P & G's claims of superior absorbency when compared to Gentle Glide. Playtex argues that this Court previously decided that P & G "has not specifically shown that New Pearl's braid is the cause of [the] improvement [in Tampax Pearl's absorbency]," and therefore P & G is estopped from challenging Playtex's assertion that P & G's claims about its braid are literally false. Conversely, P & G argues that this Court previously held that while the braid is not the sole cause of Tampax Pearl's improved leakage protection, it was found to be a cause, and therefore Playtex is estopped from arguing that P & G's braid claims are literally false. Both parties overstate the Court's conclusions in Playtex I. The issue in Playtex I was whether P & G had presented enough evidence to show a significant change in the absorbency of Tampax Pearl relative to Gentle Glide for the purposes of modifying the Injunction Order. Playtex I, 2008 WL 399295, at *5. In deciding that P & G met its burden, this Court noted that P & G had not specifically proven the braid was the cause of this improvement, but rather that P & G's manufacturing changes, including alterations to the braid, "collectively ma[de] the material change in the potential for improved leakage prevention." Playtex I, 2008 WL 399295, at *5. Indeed, in Playtex II this Court described its Playtex I holding as merely "modif[ying] the permanent injunction to allow P & G to claim superior protection because P & G could now support that claim with sufficient evidence." Playtex II, 2008 WL 3301894 at *1. The issue was not the subject of Playtex's current motion—whether Playtex can prove that the braid does not cause greater absorbency. Thus, the issues are distinct and Playtex is free to challenge the efficacy of the braid. Playtex has not demonstrated a likelihood of success that P & G's claims about braid absorbency are literally false.[8] While Playtex's syngyna testing concluded that the braid does not increase absorbency, P & G's in vitro tests concluded that changes in the braid from Old Pearl to New Pearl help improve leakage protection. Given these conflicting results, Playtex *323 has not carried its burden to show that P & G's braid does not contribute to "better leakage protection." See Castrol, 977 F.2d at 63. The Video Experiment does not tip the scales in Playtex's favor, because it does not simulate in-body conditions. Moreover, Playtex has not offered evidence that the changes in the braid do not make a difference in leakage protection. Accordingly, Playtex has not demonstrated a likelihood of success that P & G's claim that it has a "Unique LeakGuard™ Braid for leakage protection" is literally false. CONCLUSION For the foregoing reasons, Playtex's motion for a preliminary injunction is denied. SO ORDERED. NOTES [1] Familiarity with this Court's prior Memoranda and Orders is presumed. See Playtex Products, Inc. v. Procter & Gamble Co., No. 02 Civ. 8046(WHP), 2003 WL 21242769 (S.D.N.Y. May 28, 2003); Playtex Products, Inc. v. Procter & Gamble Co., No. 02 Civ. 8046(WHP), 2004 WL 1658377 (S.D.N.Y. Jul. 26, 2004); Playtex Products, Inc. v. Procter & Gamble Co., No. 02 Civ. 8046(WHP), 2008 WL 399295 (S.D.N.Y. Feb. 11, 2008); Procter & Gamble Co. v. Playtex Products, Inc., No. 08 Civ. 1532(WHP), 2008 WL 3301894 (S.D.N.Y. Aug. 7, 2008). [2] Playtex has abandoned this aspect of its motion because P & G is not currently making this claim. (Preliminary Injunction Hearing Transcript ("Tr.") at 449-50.) [3] The "core" refers to the center of the tampon pledget. (Tr. at 299.) [4] P & G argues that that while there is no dispute that Playtex made changes to Old Gentle Glide, these changes did not improve Old Gentle Glide's leakage protection profile. Therefore, Playtex should be collaterally estopped from arguing that New Gentle Glide provides superior leakage protection, since according to P & G, the issue of which product provides superior leakage protection was decided in Playtex I. However, since the Court denies Playtex's motion on alternative grounds, it need not reach the issue of whether New Gentle Glide represents an improvement in Old Gentle Glide's leakage protection profile. The Court refers to "New" Gentle Glide, as it has in its prior Memoranda and Orders, in order to differentiate between the two Gentle Glide products Playtex has sold and marketed over the past several years. [5] One of the sites was eliminated in the course of the study; thus the Playtex Study consisted of 26 of the original 27 sites. (Tr. at 139.) [6] Participants were not required to return their completed diary sheets, though approximately 85% did. (Tr. at 162.) The 15% of women who did not return their diary sheets reported lower leakage rates than the other 85%. (Tr. at 163.) The rate at which women returned diary sheets also varied "quite a bit" from site to site. (Tr. at 163.) [7] Most notably, the parties dispute whether participants' use of all 16 test tampons suppressed differences between the two products. The Court does not reach a conclusion on this issue. [8] The Court notes that Playtex does not argue the alternative grounds for securing a preliminary injunction—that there are sufficiently serious questions going to the merit s to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor.

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS EMMANUEL ARMENDARIZ, ' No. 08-13-00125-CR Appellant, ' Appeal from the v. ' 409th District Court STATE OF TEXAS, ' of El Paso County, Texas ' State. ' (TC# 20100D06116) ORDER The Court GRANTS the Appellant’s third motion for extension of time to file the brief until November 20, 2013. NO FURTHER MOTIONS FOR EXTENSION OF TIME TO FILE THE APPELLANT’S BRIEF WILL BE CONSIDERED BY THIS COURT. It is further ORDERED that the Hon. Eduardo N. Lerma, Sr., the Appellant’s Attorney, prepare the Appellant’s brief and forward the same to this Court on or before November 20, 2013. IT IS SO ORDERED this 9th day of October, 2013. PER CURIAM Before McClure, C.J., Rivera and Rodriguez, JJ. 

95 U.S. 19 (____) ADAMS v. NASHVILLE. Supreme Court of United States. Mr. Edward Baxter for the plaintiffs in error. Mr. J.E. Bailey, contra. MR. JUSTICE HUNT delivered the opinion of the court. The plaintiffs in error, stockholders in the Fourth National Bank of Nashville, Tenn., filed their bill in the Chancery Court of Davidson County in that State against the Mayor and *20 City Council of Nashville, to enjoin the collection of a tax imposed upon their shares of stock by that municipal corporation, and to have the tax declared illegal and void. The bill was demurred to. The Chancellor sustained the demurrer and dismissed the bill. Upon appeal to the Supreme Court of Tennessee, the highest court of law or equity in the State, the decree of the Chancellor was affirmed; and thereupon the case was brought to this court by writ of error. It is contended that the statute of the United States, which authorizes the taxation by State authority of the shares of stock in a national bank, but provides that such taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individuals, has been violated in the case of the present plaintiffs. 13 Stat. 102. The first cause of complaint arises out of the act of the legislature of the State of Tennessee of March 1, 1869. The act, it is said, provides that no tax shall be assessed upon the capital of any bank or joint-stock company organized under the laws of that State or of the United States. This, it is insisted, is an exemption from taxation of property in the hands of individual citizens, and operates to produce a greater rate of taxation on the plaintiffs' shares in the Fourth National Bank of Nashville than is assessed on other moneyed capital in the hands of individuals, to wit, on such banking capital, and hence that such taxation is illegal. The statute enacts that no tax shall be assessed upon the capital of a State bank, but proceeds, in the same section, to say that its shares shall be included in the valuation of the personal property of the owner, for the purpose of assessment for State, county, and municipal taxation, at the same rate that is assessed upon other moneyed capital, and that, in addition thereto, the real estate owned by the bank shall be subject to the same taxation as other real estate. This objection, in its general character, may be considered in connection with the second objection. The answer to both of them is found in the principle thus laid down in People v. The Commissioners, 4 Wall. 256: "That the rate of taxation upon the shares should be the same or not greater than upon the moneyed capital of the individual citizen which is liable to *21 taxation; that is, no greater in proportion or percentage of tax in the valuation of shares should be levied than upon other moneyed taxable capital in the hands of the citizens." See also Hepburn v. The School Directors, 23 id. 480. By an ordinance of the defendants' corporation, passed on the 18th of April, 1870, it is provided that certain interest-paying bonds issued by the said corporation shall be exempt from taxation by said corporation. It is said that there are many such bonds in existence in the hands of individuals; that by such exemption the complainants' shares are taxed at a greater rate than is assessed upon such bonds; and that, therefore, the taxation complained of is in violation of the act of Congress forbidding the taxation of national shares at a greater rate than is assessed upon other moneyed capital in the hands of individuals. There are several answers to this objection: — 1. It is not alleged in the bill that the bonds therein referred to are in fact exempted from taxation for municipal purposes. After reciting the issue and proposed exemption, the bill says that said property is "thus exempted from all municipal taxes;" that is, that, as a matter of law, it follows from the facts before stated that it is thus exempt. This is not sufficient, especially when it is alleged in the brief opposed that the fact is otherwise. 2. By the statutes of the State of Tennessee, passed subsequently to the issue of the bonds, all personal property, of every kind and nature, is required to be listed and assessed for taxation. The Supreme Court of Tennessee hold, in the case before us, that this statute repeals and overrides the ordinance of exemption, and brings these bonds within the scope of general taxation. This is a decision of a State tribunal upon the construction of its own statutes, which we are bound to respect. 3. Considering the objection on its merits and in connection with the objection first described, the case is met by Hepburn v. The School Directors, supra. By a statute of Pennsylvania, it was enacted that "all mortgages, judgments, recognizances, and moneys owing upon articles of agreement for the sale of real estate shall be exempt *22 from taxation, except for State purposes." There, as here, it was objected that this exemption, by relieving certain specified property from taxation, brought the case within the prohibition of the act of Congress, and thus vitiated the tax sought to be enforced. This court held otherwise. The act of Congress was not intended to curtail the State power on the subject of taxation. It simply required that capital invested in national banks should not be taxed at a greater rate than like property similarly invested. It was not intended to cut off the power to exempt particular kinds of property, if the legislature chose to do so. Homesteads, to a specified value, a certain amount of household furniture (the six plates, six knives and forks, six teacups and saucers, of the old statutes), the property of clergymen to some extent, schoolhouses, academies, and libraries, are generally exempt from taxation. The discretionary power of the legislature of the States over all these subjects remains as it was before the act of Congress of June, 1864. The plain intention of that statute was to protect the corporations formed under its authority from unfriendly discrimination by the States in the exercise of their taxing power. That particular persons or particular articles are relieved from taxation is not a matter to which either class can object. The third objection is equally untenable. The statute referred to does not purport to relieve any property from taxation. It provides a mode for ascertaining the average capital of the merchant, and for giving a license to carry on the business of a merchant. He is required to pay an ad valorem tax on all his capital, and a license tax in addition. The observations already made are pertinent under this head. Judgment affirmed.

Case: 15-12488 Date Filed: 12/15/2015 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-12488 Non-Argument Calendar ________________________ D.C. Docket No. 3:13-cv-00608-MCR-EMT JAMES R. WELCOME, Plaintiff-Appellant, versus RAYMOND E. MABUS, Secretary of the Navy, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Northern District of Florida ________________________ (December 15, 2015) Before ED CARNES, Chief Judge, JORDAN, and JULIE CARNES, Circuit Judges. PER CURIAM:  Case: 15-12488 Date Filed: 12/15/2015 Page: 2 of 7 James R. Welcome, proceeding pro se, filed a lawsuit against Raymond E. Mabus, Secretary of the Navy, alleging that the Navy discriminated against him based on race in violation of Title VII. The magistrate judge issued a report recommending that the district court grant summary judgment to the Secretary on the ground that Welcome failed to establish a prima facie case of discrimination and failed to show that the Navy’s proffered reasons for its actions were pretextual. The district court adopted the report and recommendation and granted summary judgment to the Secretary. This is Welcome’s appeal.1 We review de novo the district court’s grant of summary judgment, viewing all facts and drawing all reasonable inferences in the light most favorable to the nonmoving party. McCullum v. Orlando Regional Healthcare Sys., Inc., 768 F.3d 1135, 1141 (11th Cir. 2014). “Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id. 1 In his operative complaint, Welcome asserted an additional claim against the Secretary, alleging that the Navy discriminated against him because of his race by failing to refer or select him for a position as a Supervisory Industrial Specialist. He also alleged that a member of the Navy’s Equal Employment Opportunity (EEO) office illegally amended his EEO complaint. The district court treated those allegations as two separate claims and, in an earlier order, dismissed both claims with prejudice; neither claim made it to the summary judgment stage. In his brief to this Court, Welcome appears to argue that the district court erred in dismissing those claims. In his notice of appeal, however, Welcome identifies only the order “granting summary judgment for the Defendant.” We have “jurisdiction to review only those judgments, orders or portions thereof which are specified in an appellant’s notice of appeal.” Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987). To the extent Welcome’s arguments concern the order of dismissal, we do not consider them. 2  Case: 15-12488 Date Filed: 12/15/2015 Page: 3 of 7 Welcome’s claims arise out of the Navy’s use of an automated software system called Resumix to process employment applications. That system evaluates applicants by comparing their skills, employment preferences, and other relevant characteristics against the job requirements. Resumix determines whether applicants have the required skills by identifying key terms in their resumes. It then generates a list of qualified applicants called a Resume Match List. If an applicant’s resume does not contain the key terms reflecting the required skills or if the applicant’s stated preferences do not match the position, the system will exclude that person from the Resume Match List and the person will not be referred for further consideration. Welcome, who is an African-American male, worked for the Navy at a base in Pensacola, Florida. While he was employed with the Navy, Welcome applied to 33 vacant positions by submitting his resume through Resumix. The resume he submitted listed his geographic preference as Pensacola and he indicated a preference for permanent, as opposed to temporary, positions. The Navy did not hire him for any of those positions because Resumix did not include his name on the Resume Match Lists2 and, as a result, he was not referred for further 2 Welcome asserts that Resumix included his name in the Resume Match List for one of the 33 positions to which he applied because one key term appeared in his resume. The exhibit he cites, however, does not support that assertion and he point us to no other evidence that supports it. 3  Case: 15-12488 Date Filed: 12/15/2015 Page: 4 of 7 consideration. Welcome contends that he was not referred or selected for those positions because of his race. Title VII expressly prohibits the federal government from discriminating against an applicant or employee “based on race [or] color.” 42 U.S.C. § 2000e- 16(a). “[A] plaintiff may prove race discrimination through either direct or indirect evidence.” Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012). When the plaintiff relies upon indirect or circumstantial evidence, we use the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Under that framework, the plaintiff bears the initial “burden of establishing a prima facie case of discrimination, which creates a rebuttable presumption that the employer acted illegally.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). Once a plaintiff establishes a prima facie case, “the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions.” Id. If the employer provides such a reason, the burden of production then shifts back to the plaintiff to supply evidence that the employer’s proffered reasons are pretextual. Id. The plaintiff cannot satisfy that burden by merely “[q]uarreling with [the employer’s] reason,” but must instead “meet it head on and rebut it.” Id. at 1088. The plaintiff also “cannot prove pretext by simply arguing or even showing that he was better qualified than the person who received the 4  Case: 15-12488 Date Filed: 12/15/2015 Page: 5 of 7 position he coveted.” Springer v. Convergys Customer Mgmt., 509 F.3d 1344, 1349 (11th Cir. 2007) (alteration and quotation marks omitted). He must instead “show that the disparities between the successful applicant’s and his own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over [him].” Id. (quotation marks omitted). Lacking direct evidence, 3 Welcome bears the burden of establishing a prima facie case of discrimination. Even if he could establish a prima facie case, however, his claims fail because he has not shown that the Navy’s proffered reasons for its actions were pretextual. See Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (“It matters not whether [the plaintiff] has made out a prima facie case if [ ]he cannot create a genuine issue of material 3 Welcome did submit one document that he seems to believe is direct evidence of discriminatory intent. The document is titled “ALPHABETICAL LISTING FOR CLASS ACTION,” and Welcome alleges that it is a list of African-Americans who had previously filed a class action lawsuit against the Navy. Welcome’s name appears on that list. Although he does not use the term “direct evidence,” he repeatedly refers to the document as a “Black List” and maintains that the Navy’s Human Resources Office (HRO) developed the list for discriminatory purposes. Insofar as Welcome suggests that the document is direct evidence, he is wrong. Direct evidence must “establish[ ] the existence of discriminatory intent behind the employment decision without any inference or presumption.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (emphasis added). And while we must draw all reasonable inferences in favor of the non-moving party at the summary judgment stage, “inferences based upon speculation are not reasonable.” Kernel Records Oy v. Mosley, 694 F.3d 1294, 1301 (11th Cir. 2012) (quotation marks omitted). Welcome has proffered no evidence that the HRO created the document in question or that it was kept for discriminatory purposes. Although the term “Black List” appears in handwriting at the top of the document, Welcome does not specifically allege — and there is no indication — that anyone in the Navy wrote it. His position would require an inference, based on speculation, that the Navy’s HRO created the list and kept it for discriminatory purposes. See id. 5  Case: 15-12488 Date Filed: 12/15/2015 Page: 6 of 7 fact as to whether [the employer’s] proffered reasons . . . are pretext masking discrimination.”). The Secretary articulated a host of legitimate, nondiscriminatory reasons to explain why Welcome was not referred or considered for the jobs to which he applied. The chief reason was that Resumix did not put Welcome’s name on the Resume Match Lists4 because the skills, preferences, and other characteristics reflected in his application did not fit the relevant criteria. For example, his resume did not contain the key terms associated with the required skills for many positions, geographic restrictions rendered him ineligible in several instances, and his stated preference for permanent work did not match vacancies that were identified as temporary or non-permanent. The Navy also cancelled a number of positions without considering any applicants. None of those reasons suggests that the Navy discriminated against Welcome based on his race. Welcome responds that for at least two positions the Navy ultimately considered or hired white applicants whose resumes also did not include the appropriate key terms and who were less qualified than him. The evidence shows, however, that those applicants contacted the Navy’s Human Resources staff to ask why they had not been referred for consideration. Based on those requests, the HR staff manually reviewed their resumes, determined that their skills matched the job 4 As previously noted, Welcome alleges that Resumix did put his name on the Resume Match List for one position. As we have already explained, Welcome offers no credible evidence to support that proposition. See supra n.2. 6  Case: 15-12488 Date Filed: 12/15/2015 Page: 7 of 7 requirements, and then referred them for further consideration. Welcome does not allege that he contacted the HR staff or asked them to manually review his resume after he was not referred for consideration. He also has not shown that the disparities between the successful applicants’ qualifications and his own “were of such weight and significance,” that no reasonable person could have selected them over him. Springer, 509 F.3d at 1349 (quotation marks omitted). Welcome also argues that his veteran status should have rendered him eligible for positions that were otherwise subject to geographic restrictions. That response merely “[q]uarrel[s] with [the Navy’s] reason,” and does not “meet it head on and rebut it.” Wilson, 376 F.3d at 1088. Welcome has not created a genuine issue of material fact as to whether the Navy’s proffered reasons were pretextual, and the district court correctly granted summary judgment. AFFIRMED. 7 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-71,520-02 EX PARTE JAMES MATTHEW ANDERSON, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 41,846-D IN THE 320TH DISTRICT COURT FROM POTTER COUNTY Per curiam. O R D E R Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of indecency with a child and sentenced to twelve years' imprisonment. He did not appeal his conviction. Applicant contends that he is actually innocent and that trial counsel was ineffective. On November 10, 2010, we remanded this application for findings of fact and conclusions of law on Applicant's actual innocence claim. On remand, after holding a live evidentiary hearing, the trial court concluded that Applicant had not established that he is actually innocent. We agree. Relief is denied. Applicant's other claim is dismissed. Tex. Code Crim. Proc. art. 11.07, § 4. Accordingly, this application is denied in part and dismissed in part. Filed: April 6, 2011 Do not publish

22 P.3d 695 (2001) 2001 OK 29 Richard BARRINGER, Plaintiff, v. BAPTIST HEALTHCARE OF OKLAHOMA d/b/a Blackwell Regional Hospital, Third-Party Plaintiff/Appellant, v. R.F. Morgan, M.D., Third-Party Defendant/Appellee. No. 94,121. Supreme Court of Oklahoma. April 3, 2001. Brian E. Dittrich, Linda M. Szuhy, Tulsa, OK, for Appellant. K. Clark Phipps, Christine M. Benson, Tulsa, OK, for Appellee. *697 BOUDREAU, Justice: ¶ 1 The issue in this appeal is whether the doctrines of waiver and estoppel bar the defendant hospital's claim for contribution from the treating physician. We hold the hospital's contribution claim is not barred. I. FACTUAL AND PROCEDURAL BACKGROUND ¶ 2 On June 16, 1993, plaintiff Richard Barringer (plaintiff), then sixteen years old, lost control of the Ford Bronco he was driving and the vehicle rolled over. He was taken to the emergency room at Blackwell Regional Hospital (hospital) where he was treated by R.F. Morgan, M.D. (physician). He is now paraplegic. ¶ 3 On February 15, 1995, plaintiff commenced a medical negligence action against both the hospital and the physician. About two years later he dismissed his claim against the physician without prejudice and proceeded solely against the hospital. The hospital then filed a third-party petition seeking contribution or indemnification from the physician.[1] On October 7, 1997, just before the medical negligence trial was to begin, plaintiff and the hospital entered into a settlement agreement. The hospital paid plaintiff $3 million. In return, plaintiff dismissed his medical negligence claim against the hospital with prejudice and executed a release in favor of both the hospital and the *698 physician. At that time, in October of 1997, the only issue that remained in the case was the hospital's third-party petition against the physician. ¶ 4 In June of 1999, the physician moved for summary judgment. The trial court granted the motion and denied the hospital's motion for new trial. The hospital appealed, the Court of Civil Appeals reversed and the physician sought certiorari review which we previously granted. II. STANDARD OF REVIEW ¶ 5 A motion for new trial is addressed to the sound discretion of the trial court. Unless it is apparent that the trial court erred in some pure question of law or acted arbitrarily the ruling will not be disturbed on appeal. McMinn v. City of Oklahoma City, 1997 OK 154, 952 P.2d 517. ¶ 6 A summary judgment disposes solely of issues of law and therefore we review it by a de novo standard. Manley v. Brown, 1999 OK 79, 989 P.2d 448, 455. In a de novo review, we have plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law and whether there is any genuine issue of material fact. Kluver v. Weatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081, 1084. III. UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT ¶ 7 In 1978 the Oklahoma Legislature enacted the Oklahoma Uniform Contribution Among Tortfeasors Act, 12 O.S.1991, § 832 (the Act). The intent of the Act was to interject judicial control over the distribution of damages in tort claims in which there is more than one tortfeasor. 12 Uniform Laws Annot. 185, 187 (1955 revision, prefatory note) (1996). In Oklahoma, prior to the adoption of the Act, a joint tortfeasor could totally avoid payment to the plaintiff if the plaintiff elected not to sue that tortfeasor. See, e.g., Laubach v. Morgan, 1978 OK 5, 588 P.2d 1071. With the adoption of the Act, a plaintiff's loss is distributed among the joint tortfeasors in proportion to their respective negligence, whether or not plaintiff sued all the tortfeasors. National Union Fire Ins. Co. v. A.A.R. Western Skyways, Inc., 1989 OK 157, 784 P.2d 52; Hawkins v. Gadoury, 713 A.2d 799, 806 (R.I.1998); 12 Uniform Laws Annot. 194, 196 § 1 cmt. (d) (1955 revision) (1996). ¶ 8 Subsection 832(A) of the Act creates the right of contribution among joint tortfeasors. It provides that when two or more persons become jointly liable in tort for the same injury to a person, there is a right of contribution among them. Subsection 832(B) identifies who is entitled to seek contribution. It provides that the right to contribution exists only in favor of a tortfeasor which has paid more than its pro rata share of the common liability and that the tortfeasor's total recovery is limited to the amount it paid in excess of its pro rata share. Subsection 832(D) identifies the circumstances under which a non-settling tortfeasor is not required to make contribution. Under § 832(D), a non-settling tortfeasor is not required to make contribution unless its liability to the plaintiff has been extinguished by the settlement between the plaintiff and the settling tortfeasor. Reading § 832(A), (B) and (D) together, a tortfeasor who settles with a plaintiff for the full amount of plaintiff's injuries, and who takes a release which releases plaintiff's claims against the alleged joint tortfeasors, is entitled to seek contribution from the released tortfeasors after actual payment of the money to the plaintiff. ¶ 9 However, an alleged tortfeasor defending against a contribution claim is not without defenses. It may assert, among any other available defenses, that it was not a tortfeasor (i.e., that it had no liability to plaintiff) or that the settlement with the plaintiff was not reasonable because the settling tortfeasor paid more than the plaintiff's claim was worth or because the settlement was not made in good faith. 18 Am.Jur.2d Contribution § 127 at 130 (2d ed.1985); In re Guardianship of Babb, 162 Ill.2d 153, 205 Ill.Dec. 78, 642 N.E.2d 1195 (1994); Dubina v. Mesirow Realty Development, Inc., 308 Ill.App.3d 348, 241 Ill.Dec. 681, 719 N.E.2d *699 1084 (1999); The Home Ins. Co. v. Advance Machine Co., 443 So.2d 165 (Fla.App.1983). IV. DISCUSSION A. The Hospital's Denials of Liability ¶ 10 The physician contends the hospital's consistent denials of liability bar the hospital from subsequently asserting its status as a tortfeasor for purposes of contribution under 12 O.S. § 832. The physician argues the following syllogism: one of the prerequisites to seeking contribution is that the party seeking contribution be a tortfeasor; the hospital is barred by the doctrines of waiver and estoppel from asserting its status as a tortfeasor after denying it for four years; therefore the hospital is not entitled to seek contribution. ¶ 11 The physician points to the following instances in which the hospital denied negligence: the hospital's answer to plaintiff's petition and its answer to plaintiff's amended petition; the hospital's allegations in its third-party petition and its amended third-party petition; the hospital's equivocal response to the physician's request for admissions; and the hospital's express denial of liability in its settlement agreement with plaintiff.[2] The physician points out that it was only after four years of litigation and after the hospital settled with the plaintiff that the hospital finally admitted it was negligent.[3] B. Judicial Estoppel ¶ 12 First, the physician contends the doctrine of judicial estoppel bars the hospital's contribution claim. According to the physician, the doctrine of judicial estoppel prevents the hospital from asserting — for purposes of contribution — that it was negligent, since it previously asserted that it was not negligent. ¶ 13 Judicial estoppel is an equitable doctrine designed to bar a party who has knowingly and deliberately assumed a particular position from assuming an inconsistent position to the prejudice of the adverse party. Messler v. Simmons Gun Specialties, Inc., 1984 OK 35, 687 P.2d 121, 128. The rule applies to inconsistent positions assumed in the course of the same judicial proceeding or in a subsequent proceeding involving identical parties and questions. Id. It applies to prevent advancement of inconsistent positions only vis-a-vis matters of fact. Parker v. Elam, 1992 OK 32, 829 P.2d 677, 680. It does not prevent a party from asserting a legal theory contrary to one advanced earlier in litigation. Id. ¶ 14 The circumstances under which judicial estoppel may appropriately be invoked are not reducible to any general formulation of principle. Paschke v. Retool Ind., 445 Mich. 502, 519 N.W.2d 441, 450 (1994). Judicial estoppel must be applied with restraint and only in the narrowest of circumstances so as to avoid impinging on the truth-seeking function of the court. Vowers and Sons, Inc. v. Strasheim, 254 Neb. 506, 576 N.W.2d 817 (1998). ¶ 15 The physician complains about inconsistent positions taken by the hospital in its pleadings and outside its pleadings. With regard to the hospital's pleadings, the hospital denied liability to plaintiff in its answer to both plaintiff's petition and amended petition, and also in both its third-party petition and amended third-party petition against the physician seeking indemnity. Despite these denials of liability, the hospital asserted a contribution claim against the physician — a *700 claim that is necessarily premised on joint liability with the physician to the plaintiff. ¶ 16 We do not view the hospital's assertion in its pleadings of inconsistent facts (negligence and non-negligence) which support alternative theories of recovery (contribution and indemnity) as sufficient to invoke the doctrine of judicial estoppel. Judicial estoppel must not only be applied cautiously and with restraint, it must never be applied in a way that impairs the statutory right granted a party in 12 O.S.1991, § 2008(E)(2), to plead and rely on inconsistent facts, theories, claims and defenses. ¶ 17 The Oklahoma Pleading Codes provides, in pertinent part: "A party may set forth and at trial rely on two or more statements of a claim or defense alternately or hypothetically . . . [and] may also state as many separate claims or defenses as [the party] has, regardless of consistency [.]" 12 O.S.1991, § 2008(E)(2). In allowing a party to plead inconsistent facts or theories, the Oklahoma Legislature recognized that inconsistency in pleadings does not necessarily mean dishonesty and that frequently a party must assert contradictory statements (e.g., where the party legitimately is in doubt about the factual background of its case or the basis for its recovery or defense). Howell v. James, 1991 OK 47, 818 P.2d 444, 448. The Legislature recognized that the availability of alternative and hypothetical pleading allows flexibility in pleading and furthers the goal of allowing a full presentation of all relevant facts and legal theories at trial. 12 O.S.1991, § 2008 (Committee Comment). To apply judicial estoppel under the circumstances of this case would impair the statutory right granted a party in 12 O.S.1991, § 2008(E)(2), to plead and rely on inconsistent facts, theories, claims and defenses. ¶ 18 The physician also contends the hospital made certain statements outside its pleadings that warrant the application of judicial estoppel. The hospital expressly denied liability to plaintiff in the settlement agreement. The agreement provided, in pertinent part: "It is understood and agreed that this settlement is the compromise of disputed claims, and that the consideration offered in compromise and release is not to be construed as an admission of liability on the part of either party or parties hereby released, and the BHO and Integris Health specifically deny liability therefore and intend merely to avoid litigation and buy their peace." (emphasis ours). ¶ 19 An indispensable element of judicial estoppel is that the party taking the inconsistent position must have been successful in maintaining its prior factual position. Parker v. Elam, 1992 OK 32, 829 P.2d 677, 681 n. 7. To establish this element, the party asserting the defense must prove that the other party received some clear benefit or unfair advantage from maintaining its prior factual assertion in the same proceeding or a previous one. Bogan v. Hodgkins, 166 F.3d 509 (2d Cir.), cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999); Farmers High Line Canal and Reservoir Co. v. City of Golden, 975 P.2d 189 (Colo.1999). ¶ 20 The record in this case reveals that the hospital did not successfully maintain its assertion of non-negligence in the earlier stage of the proceeding. Despite the hospital's denials of negligence, the hospital paid $3 million to plaintiff to settle the medical negligence claim. This substantial sum paid by the hospital renders specious any argument that the hospital successfully maintained its prior factual position (i.e., no liability to plaintiff). Such an argument ignores the reality of the settlement agreement. ¶ 21 The absence of an essential element of any claim or defense is fatal to the claim or defense. P.E.A.C.E. Corp. v. ONG, 1977 OK 151, 568 P.2d 1273, 1277. The undisputed facts demonstrate that the plaintiff was not successful in maintaining its prior factual position. Accordingly, we hold that judicial estoppel does not bar the hospital's contribution claim. C. Waiver ¶ 22 The physician also contends the equitable doctrine of waiver bars the hospital's contribution claim.[4] Waiver is the *701 voluntary and intentional relinquishment of a known right. Faulkenberry v. Kansas City Southern Ry. Co., 1979 OK 142, 602 P.2d 203, 206-07. The doctrine is essentially a matter of intention, focusing on the intent of the party against whom waiver is asserted. State ex rel. Gaines v. Beaver, 1945 OK 318, 166 P.2d 776; Archer v. Wedderien, 1968 OK 186, 446 P.2d 43. ¶ 23 Waiver can be accomplished either expressly or implicitly. Crowell v. Thoreau Center, Partnership, 1981 OK 84, 631 P.2d 751, 752. An implied waiver can be established by action or conduct which warrants an inference of intent to relinquish. Id. However, to make out a case of implied waiver of a legal right, there must be a clear, unequivocal and decisive manifestation of the party's relinquishment of the right. Foremost Ins. Co. v. Parham, 693 So.2d 409, 425 (Ala.1997); In re Property Seized from Bobby Gene Sykes, 497 N.W.2d 829, 833 (Iowa 1993); Wenneker v. Physicians Multispecialty Group, Inc., 814 S.W.2d 294, 297 n. 6 (Mo.1991) (en banc). ¶ 24 In this case, since there is no indication in the record that the hospital expressly waived its right to seek contribution, the physician attempts to establish an implied waiver. He contends the hospital implicitly waived it right to seek contribution when it denied its own negligence in its pleadings, when it gave an equivocal response to a discovery request and when it expressly denied liability in its settlement agreement with plaintiff. ¶ 25 These acts, standing alone, do not rise to the level of a clear, unequivocal and decisive manifestation of the hospital's intent to relinquish its right to seek contribution from the physician. Moreover, when these acts are viewed along with undisputed evidence that the hospital consistently sought contribution from the physician, the hospital's conduct falls far short of an implied waiver.[5] ¶ 26 When the evidence concerning waiver is conflicting or disputed, or when more than one reasonable inference may be drawn from the evidence, the existence of waiver is a question of fact for the jury. Kincaid and Associates v. Black Angus Motel, Inc., 1999 OK 54, 983 P.2d 1016, 1021. However, when the facts are not disputed and are subject to only one interpretation, the question of waiver becomes one of law to be decided by the court. General Finance Corp. v. Jackson, 1956 OK 129, 296 P.2d 141, 143. While the facts presented in the physician's motion for summary judgment do not amount to a waiver, the physician may on remand replead and rely on other facts, if any exist, material to the issue of waiver. See Seymour v. Swart, 1985 OK 9, 695 P.2d 509. D. Election of Remedies and Principles of Oklahoma Discovery Code ¶ 27 Finally, the physician contends the hospital's contribution claim should be barred under the doctrine of election of remedies and as a sanction for violating the principles of the Oklahoma Discovery Code. We decline to address these arguments since they were not raised in the trial court. See Sims v. Bennett, 1953 OK 114, 255 P.2d 916. V. CONCLUSION ¶ 28 The undisputed facts demonstrate that neither the doctrine of waiver nor the doctrine of estoppel bar the hospital's claim for contribution from the physician. Accordingly, we vacate the Court of Civil Appeal's opinion, reverse the trial court's entry of summary judgment on plaintiff's contribution *702 claim and remand the matter for further proceedings consistent with this opinion. COURT OF CIVIL APPEALS' OPINION VACATED; TRIAL COURT'S JUDGMENT REVERSED; CAUSE REMANDED. ¶ 29 HARGRAVE, C.J., HODGES, OPALA, KAUGER, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur; WATT, V.C.J., LAVENDER, J., concur in result. NOTES [1] The hospital's indemnification claim is not part of this appeal and we make no further reference to it in this opinion. [2] The plaintiff and hospital executed their settlement agreement on October 22, 1997. The agreement provided, in pertinent part: "It is understood and agreed that this settlement is the compromise of disputed claims, and that the consideration offered in compromise and release is not to be construed as an admission of liability on the part of either party or parties hereby released, and the BHO and Integris Health specifically deny liability therefore and intend merely to avoid litigation and buy their peace." [3] On March 19, 1999, in its answers to the physician's subsequent request for admissions and interrogatories, the hospital admitted it was negligent in that its nursing staff should have advised the physician sooner about plaintiff's deteriorating respiratory condition and about the change in plaintiff's condition regarding lack of movement in his feet and legs. [4] As a preliminary matter the physician argues the Court of Civil Appeals, by its silence, impliedly affirmed the trial court's ruling that the hospital waived its right to seek contribution. It is true the trial court ruled that the hospital's contribution claim was barred not only by the doctrine of estoppel but also by the doctrine of waiver. It is also true that the Court of Civil Appeals did not address the waiver doctrine in its opinion. Nevertheless, we do not agree with the physician's assertion that the Court of Civil Appeals, by its silence, impliedly affirmed the trial court's ruling on waiver. The Court of Civil Appeals remanded the contribution claim to the trial court for further proceedings. The remand implicitly reversed the trial court's ruling that the physician was entitled to summary judgment on the affirmative defense of waiver. [5] Rather than waiving its right to seek contribution, the hospital has been actively seeking contribution from the physician since August of 1997, when it filed its third-party petition.

315 F.2d 326 W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant,v.YOUNG ELECTRIC SIGN COMPANY, a corporation, Appellee. No. 7095. United States Court of Appeals Tenth Circuit. February 19, 1963. Jacob I. Karro, Washington, D. C. (Charles Donahue, Solicitor of Labor, Bessie Margolin, Associate Solicitor, Sigmund R. Balka, and Kenneth C. Robertson, Regional Attorney, on the brief), for appellant. Earl D. Tanner, Salt Lake City, Utah, for appellee. Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges. LEWIS, Circuit Judge. 1 Appellant, plaintiff below, seeks to set aside an adverse judgment entered by the District Court for the District of Utah sua sponte at the conclusion of a pre-trial conference. The judgment denied injunctive relief sought by the Secretary of Labor under a complaint alleging repeated and continuing violations by the defendant company of sections 15(a) (4) and 15(a) (5) of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The judgment recited and provided: 2 "* * * At the pre-trial hearing counsel for defendant represented to the court that the claimed violations set forth by plaintiff had ceased to exist, that they had been voluntarily remedied by defendant prior to the commencement of this suit, and that there was no intent on the part of the defendant to violate the Fair Labor Standards Act of 1938 now or in future. In reply to inquiry by the Court, counsel for plaintiff stated that plaintiff had no evidence that violations existed at the time of the filing of the complaint herein or now and that plaintiff knew of no proof which it proposed to adduce at trial showing a present intent on the part of defendant to violate the Fair Labor Standards Act in future. 3 "The Court, having been fully advised in the premises, it is hereby 4 "Ordered, Adjudged and Decreed: 5 "1. That defendant have judgment of no cause of action herein. 6 "Dated this 17 day of May, 1962." 7 Summary disposition of a cause may logically and properly follow a pre-trial conference when the pre-trial procedures disclose the lack of a disputed issue of material fact and the facts so established indicate an unequivocal right to judgment favoring a party. Holcomb v. Aetna Life Insurance Company, 10 Cir., 255 F.2d 577; Berger v. Brannan, 10 Cir., 172 F.2d 241. And in certain instances we believe that summary procedures may properly be applied when the granting or withholding of injunctive relief is discretionary with the court upon consideration of undisputed facts.1 But the basis of every judgment must be so reflected in the record as to make it capable of intelligent appellate review. The First National Bank of Fort Smith, Arkansas v. H. E. Mattingly, 10 Cir., 312 F.2d 603; Woods Construction Company, Inc. v. Pool Construction Company, 10 Cir., 314 F.2d 405; United States v. Horsfall, 10 Cir., 270 F.2d 107. We cannot determine from the record before us the basis in law or fact for the subject judgment. 8 The judgment recites that "the claimed violations" of the Fair Labor Standards Act by the defendant company had all been remedied long prior to the time of pre-trial conference and the company was in current compliance with the provisions of the Act. This premise was justified as counsel for the company so represented and government counsel admitted they had no evidence to the contrary. However, if the trial court based its judgment of no cause of action upon a conclusion of law that present compliance is a complete bar to injunctive relief sought by the Secretary upon claim of earlier violations and that the occurrence of such violations is thus an immaterial fact, such judgment is clearly erroneous in law. Injunctive relief may be, and often is, a proper and indicated remedy even though an employer may have remedied conditions violating the Act and may be in current compliance. Walling v. Helmerich & Payne, 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29; Walling v. Haile Gold Mines, 4 Cir., 136 F.2d 102, 105; Walling v. Fairmount Creamery Co., 8 Cir., 139 F. 2d 318, 321-323; McComb v. Wyandotte Furniture Co., 8 Cir., 169 F.2d 766, 770. 9 The judgment may, however, reflect a subjective view of the trial judge that proof of the "claimed" violations of the Act, though a disputed issue of fact, would not affect the judgment result and that injunctive relief would be denied, on the merits and as a matter of discretion, even if the Secretary proved each and all of the violations. If so premised, the judgment is faulty for summary disposition requires the total absence of a disputed material issue of fact. The number, nature and extent of violations under the Fair Labor Standards Act is the factor determinative of the necessity or lack of necessity of protecting the public interest by judicial decree. Absent a finding upon this material issue appellate review is impossible. 10 The tenor of the pre-trial procedures is such as to suggest the possibility, though remote, of a third premise for the judgment. The trial judge may have interpreted statements made at pre-trial by counsel for the defendant as constituting unqualified admissions of the occurrence of all the violations alleged. Counsel makes no such admission in his presentation to this court and if such be the premise for the judgment its uncertainty is apparent. 11 The judgment is vacated and the case remanded for further proceedings in accordance with the views expressed herein. Notes: 1 Compliance with Rule 56 is the desirable procedure for consideration of summary disposition and gives the parties full opportunity for understanding of the basis of judgment. Although the appropriateness of summary disposition may be indicated as the result of a pre-trial conference held under Rule 16, this rule contemplates further procedural steps before final disposition

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-6665 MARK TODD SHOWALTER, Petitioner - Appellant, versus WARDEN D. A. BRAXTON, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (CA-04-408-SGW) Submitted: July 14, 2005 Decided: July 27, 2005 Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges. Dismissed by unpublished per curiam opinion. Mark Todd Showalter, Appellant Pro Se. Robert H. Anderson, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Mark Todd Showalter seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2000) petition. An appeal may not be taken from the final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have independently reviewed the record and conclude that Showalter has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 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 - 2 - 

931 F.2d 390 33 Soc.Sec.Rep.Ser. 221 Dorothy WILLIS, Plaintiff-Appellant (88-5855/5857),Plaintiff-Appellee (89-6297), Cross-Appellee (88-6192),v.Louis W. SULLIVAN, M.D., Secretary of Health and HumanServices, Defendant-Appellee (88-5855/5857),Defendant-Appellant (89-6297),Cross-Appellant (88-6192). Nos. 88-5855, 88-5857, 88-6192 and 89-6297. United States Court of Appeals,Sixth Circuit. Argued Nov. 8, 1990.Decided April 30, 1991. Eugene C. Gaerig (argued), Memphis, Tenn., for Dorothy Willis. W. Hickman Ewing, Jr., U.S. Atty., Tony R. Arvin, Asst. U.S. Atty., Memphis, Tenn., Bruce Granger, Mack A. Davis, Mary Ann Sloan, Holly A. Grimes, Department of Health and Human Services, Atlanta, Ga., Mark S. Ledford (argued), Department of Health and Human Services, Social Sec. Div., Baltimore, Md., for Louis W. Sullivan, M.D., Secretary of Health and Human Services. Before KEITH, KENNEDY and SUHRHEINRICH, Circuit Judges. SUHRHEINRICH, Circuit Judge. 1 Plaintiff-appellant Dorothy Willis ("Willis"), appeals the sufficiency of the attorney's fee award under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412, issued upon her successful claim for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act (the "Act"), 42 U.S.C. Sec. 1381 et seq. Defendant-appellee Secretary of Health and Human Services (the "Secretary") cross-appeals the district court's reversal of the Secretary's determination that Willis was ineligible to receive SSI benefits due to excess income on the grounds that the district court lacked subject matter jurisdiction to grant mandamus relief. The Secretary also cross-appeals the award of attorney's fees under the EAJA. For the reasons stated below, we vacate the judgment of the district court ordering the Secretary to pay SSI benefits and remand the case to be dismissed for lack of subject matter jurisdiction. We also reverse in part the district court's award of attorney's fees because we conclude that the Secretary's position was substantially justified in its position during these proceedings. I. PROCEDURAL HISTORY 2 A. Disability Determination. 3 On May 20, 1981, Willis applied for both disability insurance benefits under Title II of the Act, 42 U.S.C. Sec. 401 et seq., and SSI benefits under Title XVI of the Act, 42 U.S.C. Sec. 1381 et seq., asserting that she was disabled. Based on Willis' level of income as provided in her SSI application, the Social Security Administration ("SSA") made a preliminary determination that if Willis was in fact found to be disabled, she would be entitled to SSI benefits in addition to disability insurance benefits because her income level at that time was below the statutory maximum prescribed in 42 U.S.C. Sec. 1382.1 However, on July 30, 1981, the SSA issued an initial determination finding Willis not to be disabled. That determination was affirmed by an administrative law judge (ALJ) and the Appeals Council denied review. 4 Willis filed an action in district court on April 29, 1983, seeking review of the Appeals Council's decision pursuant to 42 U.S.C. Sec. 405(g). On April 11, 1984, the district court entered judgment remanding the case for a rehearing on the issue of Willis' disability. On remand, the ALJ concluded that Willis was disabled under Title II of the Act as of August 13, 1980. The Appeals Council affirmed that decision on January 17, 1985. At that time, the Appeals Council notified Willis that she was entitled to disability benefits and that the SSA would "advise the claimant regarding the nondisability requirements [for SSI payments under Title XVI] and, if eligible, the amount and month(s) for which payment will be made." (Emphasis added.) Further, in a cover letter which accompanied the decision, the Appeals Council explained that:[B]efore supplemental security income may be paid, a determination must be made as to whether the income and resource provisions of the Act are met. You and your client will be advised regarding the non-disability requirements and, if eligible, the amount and the month(s) from which payment will be made. 5 B. Determination of Excess Income for SSI Benefits. 6 On January 23, 1985, Willis filed a motion in district court requesting the court to: rule that she was a prevailing party; enter a final judgment stating that she was entitled to both disability benefits under Title II and SSI benefits under Title XVI; and order the Secretary to file a calculation of benefits due her under both Titles II and XVI from August 13, 1980 through the date of the motion. On March 5, 1985, the Secretary filed a notice of action taken during remand and a motion to affirm the Secretary's decision awarding only Title II disability benefits. On March 6, 1985, the district court affirmed the Appeals Council's decision on remand and ordered the Secretary to file calculations with the court showing benefits due under both Titles II and XVI. On March 15, 1985, Willis filed a petition for attorney's fees under the EAJA. 7 In furtherance of the district court's order to compute and file calculations, the Appeals Council notified Willis by letter that, since she was entitled to Title II disability benefits, she would also be eligible for Title XVI SSI benefits provided she still met the statutory income requirements. The letter requested Willis to submit updated financial information for the period up to January 17, 1985. Willis submitted additional financial information which revealed that from October 1983 through September 1984 she had received $135 per month from her children. 8 Relying on this new information, the SSA issued a notice of decision on April 2, 1985, stating that Willis was not eligible for SSI benefits for the entire period from August 13, 1980 through March 1985 as a result of the income received from her children2 during that time, combined with the deemed income she received from her husband.3 The notice explained that Willis was ineligible for SSI benefits from May 1981 through September 1983, and from October 1984 to the date of the decision, because the deemed income from her spouse alone exceeded the Federal Benefit Rate. The notice further explained that the income Willis received from her children rendered her ineligible for benefits from October 1983 through September 1984. The notice did not explain that the Secretary had also included retroactive Title II disability benefits attributed to the months October 1983 through March 1985, in addition to income Willis received from her children, in determining that Willis was ineligible for benefits from October 1983 through September 1984. The notice contained a statement to the effect that Willis could request reconsideration of the decision within sixty days: 9 If you believe that this determination is not correct, you may request a reconsideration. You must make this request no later than 60 days from the date you receive this notice. You may make this request through your local Social Security Office. If additional evidence is available, you should submit it with your request.4 10 On April 18, 1985, the Secretary issued Willis a net lump sum Title II disability insurance benefit check of $6,929.70, representing the gross $9,239.00 award with 25% withheld for attorney's fees.5 11 C. Claimant's Motion for Contempt/Mandamus. 12 Instead of requesting reconsideration of this decision, Willis filed a motion for contempt or, in the alternative, for a writ of mandamus pursuant to 28 U.S.C. Sec. 1361, seeking to compel payment of SSI benefits on April 8, 1985. The Secretary opposed the motion. On March 21, 1986, the magistrate issued a report recommending that the district court order the Secretary to comply with its March 6, 1985 order. The magistrate also recommended that the court order the Secretary to award the retroactive lump sum social security benefits without consideration of Willis' income. 13 On June 3, 1988, the district court reaffirmed its earlier March 6, 1985 decision and adopted the magistrate's report which required the Secretary to pay Willis social security benefits and precluded the Secretary from considering income as a criteria for eligibility under Title XVI. The court ordered the Secretary to file computations for SSI benefits within thirty (30) days, stating that the Secretary was permitted "to offset the Title II benefits paid Ms. Willis against the amount of Title XVI benefits yet to be determined." 14 The Secretary responded by computing Willis' SSI benefits in two ways. The first calculation included in Willis' countable income only her retroactively attributed Title II disability benefits, for a total $7,246.10 retroactive SSI benefit award. The second calculation included in Willis' countable income not only her retroactively attributed Title II disability benefits, but also her deemed income from her spouse, for a total $0 retroactive SSI benefit award.6 On July 13, 1989, the district court accepted the first calculation and ordered that $7,246.10 in SSI benefits be paid to Willis. Judgment was entered on August 7, 1989. On October 4, 1985, the Secretary timely filed a notice of appeal. 15 D. EAJA Attorney Fees. 16 On March 15, 1985, Willis filed a petition for attorney fees under the EAJA, 28 U.S.C. Sec. 2412(d), which the Secretary opposed. On March 5, 1986, Willis' attorney submitted to the court a detailed record of hours spent on the case through January 1985. In the petition Willis requested a total of 113.90 hours, at the rate of $100.00 per hour. 17 On March 21, 1986, the magistrate issued a report and recommendation advising that Willis' attorney receive EAJA attorney fees for 56 of the 113.90 hours requested at a rate of $75.00 per hour. Of those hours, the magistrate recommended that the request for 41.40 hours be for work performed during administrative proceedings prior to judicial review 3.10 hours be for time spent in an unsuccessful attempt to convince the court to reject the magistrate's report and recommendation be denied. Further, the magistrate advised that 14.70 hours spent in the subsequent administrative hearing before the Secretary be denied. Finally, the magistrate rejected counsel for plaintiff's request for an EAJA award of $100.00 per hour, based on this court's decision in Chipman v. Secretary of Health and Human Serv., 781 F.2d 545, 547 (6th Cir.1986). Thus it was recommended that a total of $4,200.00 be awarded (56 hours times $75.00 per hour). Both parties filed objections. 18 On July 25, 1986, Willis supplemented her request for EAJA fees to reflect time spent by her attorney from January 1985 to July 1986. In that motion, Willis reduced her request for attorney fees to $75.00. The Secretary opposed the amended petition. The district court referred the amended EAJA petition back to the magistrate, who issued a supplemental report recommending that Willis receive the previously recommended amount of $4,200.00 plus 22.40 of the 29.70 additional hours requested, equalling a total attorney fee amount of $5,880.00. Both parties objected. On June 3, 1988, the district court adopted the magistrate's August 13, 1987 report and final judgment was entered on June 30, 1988. 19 Willis appealed and the Secretary cross-appealed. On December 16, 1988, this court consolidated both parties' appeals. Upon motion of the Secretary, this court also stayed proceedings of the consolidated attorney fee appeals until a final judgment on the merits was obtained on August 7, 1989. After the Secretary appealed the district court's August 7, 1989 final judgment, this court consolidated that appeal with the previously consolidated attorney fee appeals. II. DISCUSSION 20 A. Subject Matter Jurisdiction. 21 The court has jurisdiction over the parties' appeal of the district court's final judgments pursuant to 28 U.S.C. Sec. 1291. Our initial inquiry must be whether the district court properly asserted jurisdiction over Willis' mandamus action before we consider the merits of her appeal. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981); Hironymous v. Bowen, 800 F.2d 888, 891 (9th Cir.1986); Fed.R.Civ.P. 12(h)(3). We review a district court's findings as to subject matter jurisdiction de novo. Greater Detroit Resource Recovery Auth. v. EPA, 916 F.2d 317, 319 (6th Cir.1990) (citations omitted). Accordingly, we turn to the Secretary's first argument on cross-appeal. 22 The Secretary argues that the district court lacked subject matter jurisdiction to review the SSA's initial determination issued on April 2, 1985 denying Willis SSI benefits due to excess income because Willis failed to exhaust her administrative remedies and thereby obtain a final decision of the Secretary. Without a final decision, the Secretary argues that the district court lacked jurisdiction under 42 U.S.C. Sec. 405(g), which provides the basis of a district court's jurisdiction over claims arising under the Act. Thus, the Secretary contends that the district court similarly lacked authority to grant mandamus relief because Willis had an alternative basis to seek judicial review under section 405(g), which she chose not to pursue. 23 In this case Willis requested mandamus relief, and we must therefore consider whether mandamus provided a proper basis for the district court's exercise of jurisdiction in this case. Mandamus jurisdiction in federal courts is codified at 28 U.S.C. Sec. 1361, which provides that "[t]he district court shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." A writ of mandamus is an extraordinary remedy, and is intended to provide a remedy only if the plaintiff has exhausted all other avenues of relief and the defendant owes the plaintiff a clear nondiscretionary duty. Heckler v. Ringer, 466 U.S. 602, 616-17, 104 S.Ct. 2013, 2022-23, 80 L.Ed.2d 622 (1984) (citations omitted). In applying this rule this court has held: 24 The existence of jurisdiction under section 1361 is inextricably bound with the merits of whether a writ of mandamus should [be] issue[d]. Accordingly, jurisdiction to entertain a petition for its issuance cannot exist unless the plaintiff colorably demonstrates either that he has exhausted all other avenues of relief, or that further exhaustion should be excused. 25 Slone v. Secretary of Health and Human Serv., 825 F.2d 1081, 1083 (6th Cir.1987) (internal quotations and citations omitted); see Bisson v. Secretary of Health and Human Serv., 787 F.2d 181, 185 (6th Cir.1986). We must therefore consider whether Willis has exhausted her administrative remedies under the Act. 26 Judicial review of social security claims is governed by 42 U.S.C. Secs. 405(g) and 405(h). Under 405(g):7 27 [a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. Section 405(h) states: 28 The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter. 29 The first two sentences of section 405(h) guarantee that the "administrative exhaustion will be required. Specifically, they prevent review of decisions of the Secretary save as provided in the [Social Security] Act, which provision is made in Sec. 405(g)." Weinberger v. Salfi, 422 U.S. 749, 757, 95 S.Ct. 2457, 2463, 45 L.Ed.2d 522 (1975). As for the third sentence of section 405(h), the Supreme Court has on four occasions declined to rule on whether it constitutes an absolute bar to mandamus relief. See Ringer, 466 U.S. at 602, 104 S.Ct. at 2013; Califano v. Yamasaki, 442 U.S. 682, 698, 99 S.Ct. 2545, 2556, 61 L.Ed.2d 176 (1979); Mathews v. Eldridge, 424 U.S. 319, 332 n. 12, 96 S.Ct. 893, 901 n. 12, 47 L.Ed.2d 18 (1976); Norton v. Mathews, 427 U.S. 524, 528-33, 96 S.Ct. 2771, 2773-76, 49 L.Ed.2d 672 (1976). This circuit has also declined to rule on the issue. See Slone, 825 F.2d at 1083; Bisson, 787 F.2d at 185. Because we determine that the district court was without jurisdiction to review Willis' petition, we likewise defer the issue for future resolution. 30 Three conditions must be satisfied to obtain judicial review under Sec. 405(g): (1) a final decision of the Secretary after a hearing; (2) commencement of a civil action within sixty days after the mailing of notice of such decision, or within such additional time as the Secretary may permit; (3) filing of the action in the appropriate district court. 42 U.S.C. Sec. 405(g); Salfi, 422 U.S. at 763-64, 95 S.Ct. at 2465-66. The last two requirements are waivable by the parties; the first requirement of a final decision, because it is "central to the requisite grant of subject-matter jurisdiction," is not waivable. Salfi, 422 U.S. at 764, 95 S.Ct. at 2466. 31 Here we are concerned only with the first condition. The Supreme Court has held that the finality requirement consists of two elements. First, a claim for benefits must be presented to the Secretary. This element is jurisdictional, and absent such a claim there can be no review. Second, the decision must be final in that the claimant has exhausted the administrative remedies prescribed by the Secretary. This element is not jurisdictional and can be waived by the Secretary, and in certain circumstances, the court. Bowen v. City of New York, 476 U.S. 467, 482-83, 106 S.Ct. 2022, 2031-32, 90 L.Ed.2d 462 (1986); Eldridge, 424 U.S. at 328, 96 S.Ct. at 899; see also Ahghazali v. Secretary of Health and Human Serv., 867 F.2d 921, 924 (6th Cir.1989); accord, Salfi, 422 U.S. at 763-64, 95 S.Ct. at 2465-66. 32 The Secretary contends that Willis has failed to satisfy the exhaustion prong of the finality requirement. The term "final decision" is left undefined by the Act and pursuant to 42 U.S.C. Sec. 405(a),8 the Secretary is authorized to define a "final decision" in whatever fashion deemed necessary for the efficient and effective administration of the Act. Salfi, 422 U.S. at 766, 95 S.Ct. at 2467. The Secretary and Congress have established an "unusually protective" four step process to facilitate the orderly and sympathetic administration of disputed claims, Heckler v. Day, 467 U.S. 104, 106, 104 S.Ct. 2249, 2251, 81 L.Ed.2d 88 (1984); which culminates in a final decision of the Secretary subject to judicial review. See 20 C.F.R. Secs. 416.1402-416.1483. First, a claimant is entitled to an initial determination9 of disability. 42 U.S.C. Sec. 421(a); 20 C.F.R. Sec. 404.1503. Secondly, if dissatisfied, the claimant may request a de novo reconsideration of that determination. 20 C.F.R. Secs. 404.907-404.921. Third, if still dissatisfied, the claimant is entitled to an evidentiary hearing and a de novo review before an ALJ. 42 U.S.C. Sec. 405(b); 20 C.F.R. Secs. 404.929-404.961. Fourth, the claimant may take an appeal to the Appeals Council. 20 C.F.R. Secs. 404.967-404.983. The claimant may then seek judicial review in federal district court. 42 U.S.C. Sec. 405(g). Day, 467 U.S. at 106-07. Thus, for purposes of the finality requirement of Sec. 405(g), a claim becomes final after the Appeals Council renders its decision. 33 In this case, Willis sought mandamus relief from the district court on April 8, 1985, six days after she received the SSA's post-remand notice of decision denying her application of SSI benefits,10 despite the fact that the notice instructed her to request a reconsideration within sixty days from the date of receipt. It is clear that the notice denying Willis' application for SSI benefits due to excess income was an "initial determination" because further administrative remedies were available. Thus, Willis did not obtain a "final decision" of the Secretary and the district court therefore lacked subject matter jurisdiction to review the Secretary's determination. In addition, this failure to exhaust her administrative remedies also operates as a bar to Willis' mandamus action. She is thus bound by the SSA's April 2, 1985 determination denying her SSI benefits due to excess income.11 34 Willis' mandamus motion was expressly based on her assertion that the Secretary lacked discretion to initiate any inquiry into her income level following the district court's March 6, 1985 order finding her disabled and ordering the filing of calculations. We do not agree. The March 6, 1985 order was merely affirming the Secretary's finding of disability on remand. At this juncture, the district court had only remanded the case for a hearing on Willis' disability. Thus, her income and eligibility for SSI benefits had never been at issue before the district court. After remand, the Appeals Council, in its decision dated January 17, 1985, found that Willis met the medical disability standards for both Title II and Title XVI and that she was eligible for Title II benefits. That decision also made clear that further consideration of Willis' nondisability requirements was necessary before Title XVI benefits could issue. The Secretary then proceeded to evaluate Willis' eligibility for SSI benefits in light of the new income information she submitted after remand. Moreover, after the Secretary determined that Willis was not eligible for SSI benefits due to excess income, it informed her of her right to seek administrative review of that claim. Thus, the contention that the Secretary was without authority to evaluate Willis' income eligibility for SSI benefits is without merit. 35 Even if the Secretary had acted improperly initially in requiring further administrative hearings on the issue of Willis' financial eligibility for purposes of Title XVI, once the Secretary had established that further administrative relief was available, Willis was required to pursue that course of action before proceeding to federal court. In Bisson, the claimant filed a writ of mandamus after the Secretary allegedly abused his discretion in untimely reopening an ALJ decision regarding the expiration date of the claimant's insured status for purposes of Title II benefits. In reversing the district court's grant of summary judgment for the Secretary, we explained that mandamus jurisdiction was improper because the claimant had not exhausted his administrative remedies: 36 It is true that at the time of filing her complaint it was unclear whether administrative avenues were open to plaintiff, but the July 17, 1984 notice to plaintiff that the Appeals Council was reopening her case gave her the opportunity to submit further evidence and arguments and to request oral argument.... Whether or not the Council ought to have done so, once it reopened the case plaintiff had an adequate remedy in proceeding as the Council directed and then, if necessary, bringing suit under Sec. 405(g). 37 Bisson, 787 F.2d at 185. 38 Likewise, in Slone, the claimant filed a writ of mandamus after the Secretary allegedly abused its discretion by reopening and reversing, allegedly without good cause, the ALJ's determination awarding disability benefits. In affirming the district court's dismissal of the petition, we held that, regardless of whether the Secretary's action in reopening the case was improper, the claimant had failed to satisfy the exhaustion of remedies requirement for obtaining a writ of mandamus: 39 Unlike the decision to reject a claimant's request to reopen his case, the Secretary's decision to reopen Slone's case resulted in a hearing and a final decision on the merits. Hence, the Secretary's decision produced the particular type of agency action that is subject to judicial review under Sec. 405(g). 40 Slone, 825 F.2d at 1084.12 Thus, like the claimant's in Bisson and Slone, Willis' cause of action had adequate administrative and judicial avenues of relief despite her contention that the Secretary lacked the discretion to consider the nondisability requisites for entitlement to SSI benefits. 41 Nor do we find any evidence in the record to indicate that the exhaustion requirement may be excused. At no time did the Secretary waive that requirement, but instead specifically argued to the district court that if Willis disagreed with the SSA's determination denying her SSI benefits her "proper recourse ... is to request reconsiderations of this determination under 20 C.F.R. Secs. 416.1405 and 416.1407." See Ahghazali, 867 F.2d at 926-27 (where we held that a stipulation and answer filed by the Secretary conceding that the plaintiff had obtained a "final decision" constituted a waiver of the exhaustion requirement and barred the Secretary from asserting that the district court lacked subject matter jurisdiction under 42 U.S.C. Sec. 405(g)). Nor can we excuse Willis' failure to exhaust on the grounds that her claim is "wholly collateral" to her claim for benefits, since Willis is expressly seeking the payments of the SSI benefits. See Ringer, 466 U.S. at 602, 104 S.Ct. at 2013 (Supreme Court held that exhaustion requirement could not be excused in plaintiff's mandamus action where it concluded that plaintiff's "procedural" challenge to Secretary's policy of prohibiting payment for medicare claims arising out of bilateral carotid body resection surgical procedure was "inextricably intertwined" with plaintiff's claim for benefits); Slone, 825 F.2d at 1084 (this court held that claimant's petition was correctly characterized as one that essentially sought the payment of benefits for which further exhaustion would not have been futile); Bisson, 787 F.2d at 185 (mandamus denied where relief requested by plaintiff result plaintiff would have been resolution of the issue of whether plaintiff's coverage for disability benefits was extended); Hironymous v. Bowen, 800 F.2d 888 (9th Cir.1986) (where claimant sought to overturn Secretary's findings that he was ineligible for SSI benefits on the basis of his adjusted resources the court held that although the writ would not entail award of benefits, it would remove the Secretary's consideration a substantive factor immediately relevant to underlying claim and was therefore "inextricably intertwined" with claim for benefits). 42 In sum, we conclude that plaintiff was not entitled to mandamus relief since she failed to exhaust her administrative remedies. We therefore hold that the district court abused its discretion in granting mandamus relief. 43 B. Award of EAJA Attorney Fees. 44 Both parties raise various challenges to the district court's award of EAJA attorney fees. We review EAJA awards for attorney fees under an abuse of discretion standard. Perket v. Secretary of Health and Human Serv., 905 F.2d 129, 132 (6th Cir.1990) (citation omitted). Thus the district court's factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. Id. 1. 45 On appeal Willis contends that the district court abused its discretion in denying her request for EAJA attorney fees for 41.4 hours for work performed by her attorney during the administrative proceedings prior to judicial review of her disability claim. The Secretary counters that the administrative proceedings prior to judicial review were clearly nonadversarial and therefore not entitled to award of EAJA fees. 46 The operative provisions are 5 U.S.C. Sec. 504(a)(1) & (b)(1)(C) and 28 U.S.C. Sec. 2412(d)(3). Under 5 U.S.C. Sec. 504(a)(1) "an agency that conducts an adversary adjudication shall award to a prevailing party other than the United States, fees, and other expenses ... unless the adjudicative officer of the agency finds that the position of the agency was substantially justified." "Adversary adjudication" is defined as "an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise...." Id. Sec. 504(b)(1)(C)(i). If, however, a court reviews the underlying decision of the adversary adjudication, "an award for fees or other expenses may be made only pursuant to section 2412(d)(3) of title 28, United States Code." Id. Sec. 504(c)(1). Section 2412(d)(3) of Title 28 adopts the definition of "adversary adjudication" set forth in 5 U.S.C. Sec. 504(b)(1)(C). Moreover, the Supreme Court has stated that social security administrative proceedings are not adversarial, see Sullivan v. Hudson, 490 U.S. 877, 891, 109 S.Ct. 2248, 2257, 104 L.Ed.2d 941 (1989); and that the SSA "operates essentially, and is intended so to do, as an adjudicator and not as an advocate or adversary." Richardson v. Perales, 402 U.S. 389, 403, 91 S.Ct. 1420, 1428, 28 L.Ed.2d 842 (1971) (also noting that administrative law judges are charged with a special duty to develop on the claimant's behalf a full and fair administrative record); Heckler v. Campbell, 461 U.S. 458, 471 n. 1, 103 S.Ct. 1952, 1959 n. 1, 76 L.Ed.2d 66 (1983) (Brennan, J., concurring); Duncan v. Secretary of Health and Human Serv., 801 F.2d 847, 856 (6th Cir.1986). 47 Willis argues that the Secretary took a position through her attorney during the original administrative proceedings which converted those proceedings into an "adversary adjudication." Specifically, Willis argues that because the Secretary's counsel responded by letter denying her request for answers to interrogatories and motions to produce, the Secretary, in essence, was represented by counsel during the administrative proceedings on her disability claim. 48 We are not persuaded by this argument. At the time of her discovery request, Willis' case was pending a request for hearing before an ALJ, and the originals of the interrogatories and motions were submitted to the hearing office on April 12, 1982. Upon receipt of Willis' interrogatories and motion to produce, the Secretary's counsel sent a written response to Willis' attorney on May 13, 1982, not to deny the request as asserted by Willis, but to inform him that the interrogatories and motions had been forwarded to the Tennessee hearing office for further action. The letter also noted that the Federal Rules of Civil Procedure do not apply to claims pending before an ALJ and that counsel knew of no authority under which interrogatories or other "discovery" materials could be served on the Secretary in a SSI claim. In addition, the Tennessee Attorney General's office filed a response to Willis' request which stated that pursuant to 42 U.S.C. Sec. 405(d) and 20 C.F.R. Sec. 404.916, only the ALJ has the authority to issue a subpoena, and that a subpoena may only be issued upon application of a party and only when the ALJ finds the requested information is necessary for a full prosecution of the case. 49 Neither of these responses by the Secretary constituted a denial of Willis' right to this information; rather they simply sought to inform her as to the proper administrative procedures, and clearly do not amount to the Secretary taking a position represented by counsel during the administrative phase of Willis' disability claim. Thus, we find that the district court did not abuse its discretion in denying the request for attorney fees for work done prior to judicial review. 50 On the other hand, we do find that Willis is entitled to the 14.70 hours in attorney fees for work performed during the administrative proceedings after the district court's remand of Willis' disability claims under the authority of Hudson. In Hudson, the Supreme Court held that EAJA fees for representation during the administrative proceedings subsequent to court remand are available subject to the other limitations in the EAJA. Hudson, 490 U.S. at 892, 109 S.Ct. at 2257. Thus, the rationale set forth in the district court's August 3, 1988 order denying such fees is no longer valid. In this case, Willis prevailed on her disability claim at the subsequent administrative hearings. Furthermore, the Secretary does not oppose Willis' request for the additional 14.70 hours in attorney fees. We therefore reverse the district court's denial of the 14.70 hours in attorney fees. 2. 51 Willis also claims that she is entitled to a cost-of-living increase of the hourly fee rate under the EAJA pursuant to 28 U.S.C. Sec. 2412(d) from seventy-five ($75.00) dollars to one hundred ($100.00) dollars. In this regard, Willis requests this court to reconsider its ruling in Chipman v. Secretary of Health and Human Serv., 781 F.2d 545 (6th Cir.1986), which concerned the method of determining a hourly rate for EAJA attorney fees in the Sixth Circuit. The issue is not properly before us, however, since Willis waived it by failing to object to the magistrate's report awarding the $75 per hour. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir.1986); Thomas v. Arn, 728 F.2d 813 (6th Cir.1984), aff'd, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). We have repeatedly held that "a party must file timely objections with the district court to avoid waiving appellate review" and that "[b]y operation of this supervisory rule, only those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have." Smith, 829 F.2d at 1373 (emphasis in original). In the instant case, while Willis specifically objected to the magistrate's reduction of hours in his March 21, 1986 report, she concluded those objections by asking the district court to award $75.00 per hour. Further in a subsequent letter to the court regarding the status of the case, Willis conceded that she could not recover the $100.00 per hour originally requested. Finally, Willis also amended her fee petition on July 29, 1986 and reduced her request from $100.00 per hour to $75.00 per hour. Thus, absent a specific objection to the fee rate, the issue is waived. 3. 52 The Secretary argues that the district court abused its discretion in awarding Willis EAJA attorney fees for work expended on unsuccessful or pending and collateral and discrete issues unrelated to the claim on which she succeeded; or alternatively, that the government's position was substantially justified. Specifically, the Secretary objects to the district court's award of EAJA attorney fees for Willis' attempt to have the district court order the Secretary to compute and pay Title II benefits before Title XVI benefits to avoid application of the SSI windfall offset set forth in 42 U.S.C. Sec. 1320a-6;13 and for the hours awarded by the district court for work performed in furtherance of her motion for contempt or mandamus. The Secretary claims that the district court order awarding EAJA fees for work performed in connection with this issue was premature, since the merits are presently before us. 53 The EAJA provides in pertinent that a court shall award fees to a prevailing party other than the United States in any civil action brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the government's position was substantially justified or that special circumstances make an award unjust. 28 U.S.C. Sec. 2412(d)(1)(A). Thus, three conditions must be met in order to recover attorney fees under the EAJA: 1) the claimant must be a prevailing party; 2) the government's position must be without substantial justification; and 3) there are no special circumstances which would warrant a denial of fees. Perket, 905 F.2d at 132. Under section 2412(d)(1)(A), the Secretary's position is substantially justified if it is " 'justified in substance or in the main'--that is, justified to a degree that could satisfy a reasonable person." Id. at 132 (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988)). The Secretary ultimately prevailed on both issues and it therefore follows that Secretary's position on these issues was substantially justified. Thus, the district court's decision awarding EAJA attorney fees for 19.40 hours of work in these collateral and discrete issues constituted an abuse of discretion by the district court. Accordingly, we REVERSE with district court's award of those 19.40 hours in EAJA attorney fees. 54 Accordingly, the district court's grant of mandamus relief is REVERSED and this action is REMANDED to the district court to be dismissed for lack of jurisdiction. Further, the district court's award of EAJA attorney fees is AFFIRMED IN PART and REVERSED IN PART in accordance with this opinion. 55 KEITH, Circuit Judge, dissenting. 56 Because I find the district court had jurisdiction to issue the writ of mandamus as part of its retained jurisdiction, I dissent from the majority's holding on the mandamus issue. My conclusion results from a different understanding of the facts. As I view the record, combining the findings of the Secretary in favor of the plaintiff before and after remand, the Secretary had found Dorothy Willis ("Willis") eligible for benefits. The Secretary, nevertheless, refused to make the nondiscretionary payment of those benefits because the Secretary changed position on one of the Secretary's earlier conclusions relied on by the court. I. 57 The Supreme Court and this Circuit have made clear that a district court can retain jurisdiction to effectuate its decision after remand. In Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989), the Supreme Court noted that "In many remand situations, the court will retain jurisdiction over the action pending the Secretary's decision and its filing with the court." Id. at 886, 109 S.Ct. at 2254. The Court explained that the trial court "retains the power in such situations to assure that its prior mandate is effectuated." Id. This Court also recognized this jurisdiction recently. In Buck v. Secretary of Health & Human Serv., 923 F.2d 1200 (6th Cir.1991), this court held that the district court could decide whether to exercise its jurisdiction to insure that its mandate has been followed. Id. at 1205. 58 The majority acknowledges that the Social Security Administration ("SSA") determined that Willis met the income level requirements. It classifies this finding, however, as "preliminary." Majority Opinion at 392. The majority indicates that a separate decision denied benefits based on lack of disability and that that determination was "affirmed" by an Administrative Law Judge ("ALJ"). As I view the facts, the ALJ found the earnings requirement had been met. The decision of the ALJ stated "[t]he claimant's earnings record shows that the special earnings requirements of the Act were met on August 13, 1980, when the claimant allegedly became unable to work, and that these requirements continue to be met through the date of this decision." Joint Appendix at 576 (ALJ Decision, Oct. 6, 1982). That decision was declared the final decision of the Secretary by the Appeals Council in its April 19, 1983, action denying review. Joint Appendix at 574. 59 It was that April 19, 1983, decision that Willis challenged in the instant case. Joint Appendix at 287 (Social Security Complaint). In that complaint and in the district court, the only issue raised was disability. Willis had been successful on the earnings issue and the Secretary did not cross-complain on that issue or assert a failure to meet the earnings requirement as an affirmative defense.1 Willis was successful in the district court. The district court, adopting the February 15, 1984, recommendation of the magistrate, found that the Secretary had misapplied the law and that the position of the Secretary was not substantially justified, thus entitling Willis to Equal Access to Justice Act fees. Joint Appendix at 81-82, 88 (Magistrate's Report and Recommendation, Feb. 15, 1984, and Order, Apr. 6, 1984). The district court remanded the case to the Secretary to apply the proper legal standards and to make new factual findings. The district court found that not only was the ALJ's conclusion that Willis could return to past relevant work not supported by substantial evidence, it was contradicted by conclusive evidence that plaintiff could not return to her former occupation. Joint Appendix at 85. 60 On remand, the ALJ found that Willis was disabled, a decision fully favorable to Willis. That decision was adopted as modified by the Appeals Council on January 17, 1985, and was the final decision of the Secretary. Joint Appendix at 91-92 (Appeals Council Decision, Jan. 17, 1985). This decision is the first evidence that the Secretary was attempting to reopen the issue of the earnings requirement. The last paragraph of the decision states that the SSA will advise the claimant regarding the nondisability requirements and, if eligible, the amount and the month(s) for which payment will be made. Since there is no mention of a reversal of previous decisions, at most this language should be read to apply to eligibility for those months on which the Secretary had not made a finding. The prior decision of the Secretary which was the subject of the district court case, and which was not contested there, had only made a finding of eligibility up until that ALJ decision of October 1982. Joint Appendix at 576. 61 In affirming the decision of the Secretary, the district court clearly understood the Secretary's decision to be favorable to Willis and one awarding benefits. The district court stated in its order "[b]ecause defendant has shown the Court that Social Security benefits have been or will be awarded plaintiff upon remand, the Court finds the Secretary's decision should be affirmed." Joint Appendix at 392-93. (Order, Mar. 6, 1985). The district court, therefore, ordered the Secretary to file with the court calculations of the amount due plaintiff. The court also ordered computation and payment of disability payments before payment of SSI benefits, further indicating by its order that payment of SSI benefits was part of the order. Joint Appendix at 393. 62 The order specified that the Secretary was to file calculations and make payments. It further specified that final judgment was to be entered only after such calculations were entered. It is therefore clear that the district court was retaining jurisdiction under 42 U.S.C. Sec. 405(g) to ensure enforcement of the order. Willis had achieved complete success since she filed the district court action. That action had been filed to contest the part of the Secretary's decision in which the Secretary had found no disability. No party had contested the finding that Willis met the earnings requirements. 63 It was only after the Secretary was under court order to file calculations with the court and make payment that the Secretary decided to deny benefits based on changing a factual finding which the Secretary had made two and a half years earlier and which had been the basis of the appeal to the district court. It was only when the Secretary sought to change the facts in defiance of the district court that the court issued a writ of mandamus. II. 64 Mandamus is an extraordinary remedy, but was appropriate under the circumstances described above. There were other aggravating factors that provoked the district court to resort to mandamus. The magistrate's recommendation that mandamus be issued recounts a history of inappropriate conduct by the Secretary in this case. The case is replete with delay by the Secretary. After the district court ordered remand on April 11, 1984, the failure of the Secretary to comply with the court's order compelled Willis to seek contempt. The Secretary responded that although the Secretary had received a copy of the judgement, the district court had not notified the proper official associated with the Secretary. The court declined to issue an order finding contempt at that time even though notice to counsel is normally notice to the party and counsel for the plaintiff indicated that he had personally notified officials within the SSA and the Secretary failed to respond. Id. at 469. The Secretary then failed to file a calculation with the district court as ordered by the court on March 7, 1985. The Secretary explained to the court that local counsel for the Secretary had not received a copy of the order. The magistrate indulged the Secretary with the assumption that this meant that the Secretary had not received a copy either, rather than constituting an effort to mislead the district court. The magistrate found that the Secretary's conduct in this action "has been very close to being contemptuous," Joint Appendix at 468, and "to some degree indefensible." Id. at 470. The magistrate further found: 65 There is a strong suspicion that the Secretary, being dissatisfied with the decisions of this court, has engaged in guerilla warfare against the plaintiff. In spite of protestations at oral argument by counsel for Secretary to the contrary, it is outrageous and offensive to the court for the Secretary to make the argument that plaintiff was not entitled to SSI benefits because she was not disabled, and then, losing this argument, merely failing to pay and, when pressed, coming up with a different reason for denying payment. 66 Joint Appendix at 471. 67 Under these circumstances, mandamus was clearly appropriate. The Secretary was refusing to comply with the district court's order for calculation and payment. It is not disputed that the court has the power to order a calculation. Payment was not discretionary once it had been determined that the statutory requirements had been met. The earnings requirement had been established as part of the facts prior to commencement of the district court action and the district court had acted based upon those facts in the record. Once the disability requirements were also conceded by the Secretary, there was no discretion to withhold the payments. The district court's mandamus order was necessary to effectuate its prior order implementing its legal conclusions in the case. It was therefore within the retained jurisdiction of the court as provided by the Supreme Court in Hudson and this Court in Buck. III. 68 The majority cites Bisson v. Secretary of Health & Human Serv., 787 F.2d 181 (6th Cir.1986), and Slone v. Secretary of Health & Human Serv., 825 F.2d 1081 (6th Cir.1987), for the proposition that if the Secretary reopens a case, even if inappropriately, the proper remedy is to exhaust administrative remedies. Those cases differ from the instant case in a very important way. In those cases, the Secretary sought to change position prior to the commencement of a case in district court. In the instant case, the Secretary seeks to change the facts established in the record by final determinations of the Secretary and then relied on by the district court to decide a case. The result is to undermine the integrity of the article III judicial review process. IV. 69 In this case, there was a finding on the earnings eligibility requirement before litigation on disability commenced. It is therefore not necessary to the decision in this case to determine the appropriateness, under the statute or constitutional due process, of the Secretary dividing a disability determination into multiple components and delaying payment by forcing the claimant to individually exhaust administrative remedies and article III court remedies for each component of entitlement. I would note, however, that the lengthy history of this case illustrates the delay of justice that results under such a scheme. It is now 1991. The application for SSI benefits in this case was filed in 1981. A decade-long delay in receiving payments reserved to only those in poverty seems to exemplify the adage that justice delayed is justice denied. In fact, the allegations that Willis did not meet the earnings requirements result from the determination that, during the time Willis was fighting to get her entitlement payments because of her poverty and disability, her children dared to help her make ends meet in the sum of $135 a month for necessities. 1 An individual is eligible for SSI benefits on the basis of financial need (including income and resources) and either age, blindness, or disability. 42 U.S.C. Sec. 1382. An individual is eligible for disability insurance benefits if the individual is insured for disability benefits, has not attained retirement age, has filed application for such benefits, and is under a disability. Id. Sec. 423 2 The income Willis received from her children was included in her total countable income pursuant to 20 C.F.R. Sec. 426.1102 which provides in part: "Income is anything you receive in cash or in kind that you can use to meet your needs for food, clothing, or shelter." 3 The income Willis received from her husband was included in her total countable income pursuant to 20 C.F.R. Sec. 416.1160 et seq. which allows the Secretary to deem income to a claimant from a portion of the income earned by an ineligible spouse who lives in the same household 4 This statement was included within the notice pursuant to 42 U.S.C. Sec. 1383(c)(1) which states in part: "The Secretary shall provide reasonable notice and opportunity for a hearing to any individual who is or claims to be an eligible individual or eligible spouse and is in disagreement with any determination under this subchapter with respect to eligibility of such individual for benefits, or the amount of such individual's benefits, if such individual requests a hearing on the matter in disagreement within sixty days after notice of such determination is received...." 5 Where a claimant is found entitled to receive retroactive SSI benefits, application of the SSI windfall offset provision may reduce the amount of "past-due" disability benefits from which the Secretary withholds 25% for payment of attorney's fees. Burnett v. Heckler, 756 F.2d 621, 624 (8th Cir.1985). In this case, however, the windfall offset provision did not affect the attorney's fee award because the Secretary found Willis ineligible for SSI benefits due to excess income prior to disbursement of Willis' lump-sum disability award 6 The SSA did not include the income Willis received from her children in the second calculation, apparently because either the income she received from her children or her retroactively attributed disability benefits were sufficient, in combination with the deemed income from her spouse, to exceed the Federal Benefit Rate 7 42 U.S.C. Sec. 405(g) is incorporated by reference in section 1383(c)(3), which is found in the Supplemental Security Income Act, 42 U.S.C. Secs. 1381 et seq 8 Title 42 U.S.C. Sec. 405(a) provides: The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder. 9 An initial determination is defined as: [those] determinations [SSA] make[s] that are subject to administrative and judicial review. The initial determination will state the important facts and give the reasons for [the SSA's] conclusions. Initial determinations regarding [SSI] benefits include, but are not limited to, determinations about-- (a) [a claimant's] eligibility for, or the amount of, [his or her SSI] benefits.... 20 C.F.R. Sec. 416.1402 10 This decision was separate and distinct from the post-remand decision that Willis was eligible for disability benefits under Title II. Accordingly, separate administrative rights and remedies attached to the Social Security Act decision regarding SSI benefits 11 Each determination or decision is binding upon the relevant parties unless the next level of review is involved. 20 C.F.R. Secs. 416.1405, 416.1455, 416.1459. Specifically, regarding reconsideration of an initial determination, the regulations provide that, "[a]n initial determination is binding unless [a claimant] request[s] a reconsideration within the stated time period, or [SSA] revise[s] the initial determination." Id. 416.1405 (emphasis added). Additionally, 20 C.F.R. Sec. 416.1400(b), which describes the nature of the administrative review process, states: If [a claimant is] dissatisfied with [the Secretary's decision] in the review process, but [does] not take the next step within the stated time period, [the claimant] will lose [his or her] right to further administrative review and [his or her] right to judicial review, unless [he or she] can show [the Secretary] that there was good cause for [his or her] failure to make a timely request for review. Id. (emphasis added). 12 In Slone, the claimant originally sought judicial relief from the Council under 42 U.S.C. Sec. 405(g). However, Slone did not file the appeal until sixty-nine days after the notice was mailed to him, and the district court dismissed the appeal as untimely. Slone then sought mandamus relief 13 The purpose of the motion was to prevent the Secretary from applying the SSI windfall offset provisions in order to enhance the amount of past due benefits used for the calculation of claimant's attorney fee award under 42 U.S.C. Sec. 406. While Willis initially prevailed on this issue, the district court ultimately held that the Secretary was entitled to apply the SSI windfall offset provision 1 The Secretary is not an "individual" entitled to sue under 42 U.S.C. Sec. 405(g). Buck, 923 F.2d at 1203

842 F.2d 1293Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Lewis A. WOODLIFF, Plaintiff-Appellant,v.Phillip G. DANTES, Chairman, Maryland Parole Commission,Defendant-Appellee. No. 87-6093. United States Court of Appeals, Fourth Circuit. Submitted Feb. 29, 1988.Decided March 25, 1988. Lewis A. Woodliff, appellant pro se. Karen Staken Hornig, Assistant Attorney General, for appellee. Before DONALD RUSSELL, K.K. HALL and SPROUSE, Circuit Judges. PER CURIAM: 1 A review of the record and the district court's opinion discloses that this appeal from its order denying relief under 42 U.S.C. Sec. 1983 is without merit. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment below on the reasoning of the district court. Woodliff v. Dantes, C/A No. 87-948-S (D.Md. June 6, 1987). 2 AFFIRMED.

705 S.E.2d 355 (2010) STATE v. Christopher Wayne JOHNSON. No. 214P10-1. Supreme Court of North Carolina. December 15, 2010. Ebony J. Pittman, Assistant Attorney General, for State. Christopher Wayne Johnson, Taylorsville, for Christopher Wayne Johnson. Phil Berger, District Attorney, for State. The following order has been entered on the motion filed on the 8th of December 2010 by Defendant for Extension of Time to File Motion for Appropriate: "Motion Allowed by order of the Court in conference this the 15th of December 2010."

845 S.W.2d 342 (1992) Carolyn D. BARTLETT and James D. Bartlett, Appellants, v. AMERICAN REPUBLIC INSURANCE COMPANY, Appellee. No. 05-91-01033-CV. Court of Appeals of Texas, Dallas. December 3, 1992. Rehearing Denied December 30, 1992. *344 Brian P. Quinn, Ann Manning, Dallas, for appellants. Scott Patrick Stollery, Franklin H. Perry, Dallas, for appellee. Before STEWART, CHAPMAN and ROSENBERG, JJ. STEWART, Justice. Carolyn and James Bartlett appeal from a summary judgment rendered in favor of American Republic Insurance Company (American Republic) in their suit for breach of contract, breach of the common-law duty of good faith and fair dealing, and breach of an implied covenant of good faith and fair dealing. In three points of error, the Bartletts generally contend that the trial court erred in granting American Republic's summary-judgment motion because: (1) American Republic's motion failed to specifically address each cause of action raised by the Bartletts' pleadings; (2) fact issues exist as to American Republic's duty of good faith and the manifestation of Carolyn Bartlett's condition before the effective date of the policy. We affirm in part and reverse and remand in part. FACTUAL BACKGROUND In early 1988, the Bartletts' insurance company, Great American Insurance Company, informed them that it no longer would provide health insurance. As a result, on February 1, 1988, the Bartletts applied for health-insurance coverage from American Republic.[1] The Bartletts indicated on the application that they sought coverage from American Republic because their existing carrier no longer would provide health and medical insurance. American Republic issued the Bartletts a policy effective April 1, 1988 (the policy). On February 24, 1988, Carolyn visited Dr. Ronald North, a plastic surgeon, about having a "scoop-out" procedure and breast augmentation to prevent the possibility of breast cancer. Dr. North told Carolyn that she had a mass in her left breast. He recommended that she discuss the situation with another doctor. Carolyn contacted Dr. Rita Payne, her gynecologist, about the situation, but Dr. Payne recommended that Carolyn wait until June 1988 to have further tests or treatment because her December 1987 mammogram had disclosed no irregularity. On June 2, 1988, Carolyn underwent *345 a mammogram, and Dr. Payne detected the malignant cyst. Carolyn subsequently underwent a radical mastectomy and radiation and chemotherapy treatment. After treatment for her cancer began, Carolyn submitted a claim under the policy. On October 26, 1988, American Republic advised the Bartletts that the policy was being rescinded because the Bartletts misrepresented in their application that they would cancel their existing coverage with Great American. The rescission operated retroactively and took effect on April 1, 1988. American Republic also refunded the $1,060.08 premium paid from April 1, 1988 to November 1, 1988. On January 6, 1989, Carolyn, as agent, received another letter from American Republic notifying her that the Bartletts' policy was being canceled because the mass in Carolyn's left breast was a preexisting condition excluded from coverage. The Bartletts sued American Republic for: (1) breach of contract because of its refusal to pay their claims and the wrongful termination of the policy; (2) a twelvepercent penalty under section 3.62 of the Texas Insurance Code for failure to pay within thirty days after demand; (3) breach of the duty of good faith and fair dealing for refusing to pay Carolyn's claims because of an alleged fraudulent misrepresentation in the application and for denial of claims without a reasonable basis; and (4) treble damages for violations of the Deceptive Trade Practices-Consumer Protection Act (DTPA) and article 21.21 of the Texas Insurance Code for (a) refusal to pay the claims submitted when liability was clear, (b) breach of the duty of good faith and fair dealing, and (c) termination of the policy which it represented to be "guaranteed renewable for life." The trial court granted American Republic's motion for summary judgment and rendered a takenothing judgment against the Bartletts. The Bartletts then perfected this appeal. PREEXISTING CONDITION CLAUSE In their third point of error, the Bartletts contend that the trial court erred in granting American Republic's motion for summary judgment because fact issues exist as to the manifestation of Carolyn's condition before the effective date of the policy. In reviewing a summary-judgment record, this Court applies the following standards: 1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. 2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. 3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). For the defendant, as movant, to prevail on a summary judgment, it must either disprove at least one element of the plaintiff's theory of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. International Union UAW Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex.App.—Dallas 1991, writ denied). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). In a summary-judgment case, the question on appeal is whether the summary-judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). Insurance policies are contracts and, therefore, are subject to the rules of construction applicable to contracts generally. Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex. 1987). The plain language of the policy is given effect when the parties' intent can be discerned from the language. Glover v. National Ins. Underwriters, 545 S.W.2d 755, 761 (Tex. 1977). If, however, the policy language is *346 subject to two or more reasonable interpretations, the construction that affords coverage is adopted. Id. American Republic moved for summary judgment on the following grounds: (1) the benefits are excluded because Carolyn's condition manifested itself before the policy was issued; and (2) Carolyn's condition was preexisting as defined by the policy. Because the trial court's judgment does not state the grounds upon which the summary-judgment motion was granted, the Bartletts must show that each ground alleged in the motion is insufficient to support summary judgment. International Union UAW Local 119, 813 S.W.2d at 565. Thus, if we determine that one of the grounds alleged supports the summary judgment, we affirm. We first determine whether Carolyn had a preexisting condition under the terms of the policy. The policy provides the following: SECTION 2 (Benefits) We will pay 100% of a covered person's eligible expenses over the deductible amount up to the benefit limit.... Eligible expenses incurred must result from an injury occurring or sickness first manifested while this policy is in force. * * * * * * SECTION 3 (Definitions) A SICKNESS of a covered person means a condition, a state of ill health, or an illness, first manifested by a covered person while this policy is in force on a covered person. Each sickness begins at the inception of such sickness and ends after 365 days have passed during which time no benefits were payable under this policy nor medical treatment was received for such sickness. A PRE-EXISTING CONDITION means: (A) the existence of symptoms which would cause an ordinarily prudent person to seek diagnosis, care or treatment within a 5 year period before the date coverage begins for a covered person; or (B) a health condition for which medical advice was given or treatment was recommended by or received from a doctor within a 5 year period before the effective date of the coverage of a covered person. * * * * * * SECTION 7 (Exceptions) PRE-EXISTING CONDITIONS LIMTATION... We will not pay for preexisting conditions or diseases not admitted on the application for coverage, subject to the TIME LIMIT ON CERTAIN DEFENSES provision. However, we will pay for those pre-existing conditions or diseases which are admitted on the application for coverage under this policy; but in no case will we pay for any conditions or diseases which are excluded by name or specific description. Because the policy contains two alternative definitions of preexisting condition,[2] a finding that either definition is met results in an affirmance of the summary judgment. The Bartletts contend that a material fact question exists as to Carolyn's awareness of the nature of her condition prior to the effective date of the policy. They point out that, although Dr. North detected a mass in Carolyn's left breast, Dr. Payne told Carolyn to wait until June to have a mammogram, and she did not learn until June that she had cancer. Under part (B) of the definition of preexisting condition, the state of Carolyn's actual knowledge of the true nature of her condition is immaterial. Nothing therein requires diagnosis of an illness as a prerequisite to the duty to disclose a health condition. A condition must be disclosed as preexisting after it is discovered and a doctor gives medical advice or recommends treatment regarding the condition. The medical advice may consist of the steps to be taken in the diagnosis of the condition. The evidence is undisputed that, before the effective date of the policy, Dr. North discovered and informed Carolyn of a health condition, a mass in her left breast. *347 The Bartletts further contend that, because Carolyn's December 1987 mammogram did not indicate a malignant tumor and because Dr. North indicated that he did not believe that the mass was malignant, there is no conclusive evidence proving as a matter of law that the cancer was a preexisting condition. They rely on Porter v. American Family Mut. Ins. Co., 601 P.2d 659 (Colo.Ct.App. 1979). There, during a routine pelvic examination, the insured's doctor discovered a "fullness" that he was unable to positively diagnose, although he suspected that it was a small ovarian cyst that appeared temporarily during ovulation. He advised the insured to have the condition checked at her next routine examination and that no treatment was necessary. At an examination six months later, the doctor made no further finding. Meanwhile, the insured changed insurance carriers. A subsequent examination revealed that the suspected cyst had grown, and the insured's doctor performed exploratory surgery, which revealed a benign condition. The insurance company contended that the surgical expenses fell within the policy's exclusion for "sickness first manifested, whether or not initially diagnosed accurately, prior to the date the person ... became an insured." Id. at 660. The doctor testified that the insured had no sickness at the time of the prior examinations and that he was unable to make any diagnosis or recommend any treatment at those times. Id. Also, the insured had no symptoms, pain, or discomfort. Id. The court held that the insurer failed to prove that the sickness had manifested itself and become apparent prior to the effective date of the policy. Id. The difference between the policy exclusion in Porter and part (B) of the definition of preexisting condition at issue here makes Porter inapplicable. Our exclusion is not limited to "sickness" but is defined using the broader term "health condition." Nothing in the definition of preexisting condition requires the health condition to be diagnosed as a sickness. Further, under part (B) of the definition of preexisting condition, the manifestation of Carolyn's cancer is immaterial. What is material is that Carolyn had a health condition prior to the effective date of the policy. The Bartletts also contend that the issue of when Carolyn first discovered the condition is a fact question for the jury. They rely on Hulse v. Blue Cross/Blue Shield of Florida, Inc., 424 So.2d 191 (Fla.Dist.Ct. App. 1983). In that case, the definition of preexisting condition required the insured to be "aware of its symptoms." Id. at 192. The evidence conflicted as to when the insured discovered a cancerous tumor. Id. at 193. Here, part (B) of the definition of preexisting condition does not require awareness of symptoms. Further, the undisputed summary-judgment evidence establishes that Carolyn discovered a health condition (a mass in her left breast) at the examination by Dr. North in February 1988. The relevant inquiry then is whether medical advice was given or treatment was recommended or received before the effective date of the policy. "Advice" means "an opinion or recommendation offered as a guide to action [or] conduct." Webster's Encyclopedic Unabridged Dictionary of the English Language 21 (1989). The evidence conflicts as to whether Dr. North told Carolyn to see a general surgeon or to see her gynecologist (Dr. Payne). This conflict, however, does not preclude summary judgment. The evidence is undisputed that Dr. North suggested that Carolyn consult another doctor, have a repeat mammogram to determine whether a biopsy should be performed, and to have a biopsy if it were necessary. He further suggested that, even if the mass were benign, Carolyn should consider the "scoop-out" procedure with immediate reconstruction using implants because the mass was so large. Further, the fact that Carolyn received conflicting advice from Drs. North and Payne concerning the need for an immediate evaluation of the mass in her left breast does not preclude a finding as a matter of law that Carolyn had a preexisting condition. Medical advice, although conflicting, is still medical advice. Whether the medical advice conflicted is immaterial to whether Carolyn had a health condition *348 for which medical advice was given or for which treatment was recommended. Although Carolyn may not have been able to disclose that she had breast cancer until after she had a mammogram in June 1988, which was after the effective date of the policy, she knew before the effective date of the policy that she had a health condition, a mass in her left breast, and Dr. North had given medical advice to consult a doctor for a mammogram to determine whether a biopsy of the mass should be performed and, in any case, to consider the "scoop-out" and reconstruction procedure since the mass was so large. We hold that Carolyn received "medical advice" about a health condition within the policy's definition of preexisting condition. Finally, the Bartletts contend that "[t]he ambiguity of the terms of the policy itself creates an additional fact issue that must be presented to the trier of fact." This is the extent of the Bartletts' contention concerning ambiguity. This complaint is phrased as a conclusion without supporting argument or an explanation of the nature of the ambiguity. Thus, the Bartletts have failed to adequately direct this Court to the alleged error. See Tex.R.App.P. 74(d) cf. Allright, Inc. v. Pearson, 711 S.W.2d 686, 688 (Tex.App.—Houston [1st Dist] 1986), affd in part and rev'd in part on other grounds per curiam, 735 S.W.2d 240 (Tex.1987). Accordingly, we do not consider this contention. We conclude that American Republic established as a matter of law that Carolyn had a health condition (a mass in her left breast) for which she received medical advice within five years before the effective date of the policy. Thus, Carolyn had a preexisting condition which was excluded from coverage. Accordingly, the trial court properly granted American Republic's motion for summary judgment on the Bartletts' breach-of-contract claims. We overrule the Bartletts' third point of error. DUTY OF GOOD FAITH AND FAIR DEALING In their second point of error, the Bartletts contend that fact issues exist concerning American Republic's duty of good faith. The Bartletts assert that American Republic breached its duty by: (1) unreasonably failing to pay the claim submitted; and (2) acting in bad faith by canceling the policy as to both Carolyn and James when it had no authority to cancel James' coverage because of his wife's alleged preexisting condition and when American Republic never proved how the Bartletts defrauded it. On the other hand, American Republic contends that the trial court properly dismissed this cause of action because the absence of liability under the policy gave it a reasonable basis to deny the Bartletts' claim. Insurers have a duty to deal fairly and in good faith with their insureds. Aranda v. Insurance Co. of N. Am., 748 S.W.2d 210, 212 (Tex.1988); Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987). A cause of action for breach of the duty of good faith and fair dealing is stated when it is alleged that there is no reasonable basis for denial of a claim or delay in payment or a failure on the part of the insurer to determine whether there is any reasonable basis for the denial or delay. Arnold, 725 S.W.2d at 167. Insurers have the right to deny invalid or questionable claims and are not subject to liability for an erroneous denial of a claim. Aranda, 748 S.W.2d at 213. Insurers that breach the duty of good faith and fair dealing, however, are subject to liability for their tortious conduct. Id. As previously stated, Carolyn's condition fell within the policy's exclusion from coverage of preexisting conditions. Hence, American Republic established a valid basis for denying the Bartletts' claim. Thus, American Republic negated an element of the Bartletts' claim for breach of the duty of good faith and fair dealing based on its denial of the claim. See Koral Indus, v. Security-Connecticut Life Ins. Co., 802 S.W.2d 650, 651 (Tex.1990) (per curiam) (showing of defense to payment of insurance contract negated any breach of good faith and fair dealing violations under the Texas Insurance Code and any actions for unconscionability under the DTP A). These *349 considerations cause us to likewise conclude that American Republic negated an element of the Bartletts' claim for breach of the duty of good faith and fair dealing based on its canceling the policy as to both Carolyn and James. See Arnold, 725 S.W.2d at 167; Aranda, 748 S.W.2d at 213; Koral Indus., 802 S.W.2d at 651. We overrule the Bartletts' second point of error. FAILURE TO ADDRESS ALL CLAIMS In their first point of error, the Bartletts contend that American Republic's motion for summary judgment failed to specifically address each cause of action raised by their pleadings. They contend that American Republic's motion addressed only their cause of action for refusal to pay a claim and did not address their claim for wrongful rescission of the policy. They contend that, regardless of whether American Republic had an obligation to pay the claims submitted, a question remained concerning American Republic's authority to cancel their entire policy and to refuse coverage for any other ailment. In granting summary judgment, the trial court is confined to the specific grounds set forth in American Republic's motion. Tex. R.Civ.P. 166a(c); City of Coppell v. General Homes Corp., 763 S.W.2d 448, 451 (Tex. App.—Dallas 1988, writ denied). American Republic's motion for summary judgment addressed the propriety of its refusal to pay Carolyn's claims connected with her treatment for breast cancer. As previously stated, American Republic established as a matter of law that Carolyn's claims under the policy fell within the policy's exclusion for preexisting conditions. Because American Republic established that it was not liable for Carolyn's claims under the policy, it likewise established that (1) the Bartletts were not entitled to recover a twelve-percent penalty under article 3.62 of the Texas Insurance Code[3] for American Republic's failure to pay the claim within thirty days after demand; and (2) the Bartletts' statutory claims based upon American Republic's refusal to pay Carolyn's claims were untenable. Accordingly, the trial court properly rendered a take-nothing judgment against the Bartletts on all their claims arising from American Republic's refusal to pay Carolyn's claims. However, neither of American Republic's summary-judgment grounds addresses the Bartletts' claims that it wrongfully rescinded their entire policy. These causes of action were independent of the allegations arising from American Republic's refusal to pay Carolyn's claim. We conclude that the trial court erred in granting summary judgment against the Bartletts on their claims for wrongful rescission. Tex. R.Civ.P. 166a; City of Coppell, 763 S.W.2d at 451. We sustain the first point of error as to the Bartletts' wrongful-rescission claims. We reverse that part of the trial court's judgment granting summary judgment on the Bartletts' wrongful-rescission claim and remand that cause for further proceedings consistent with this opinion. In all other respects, we affirm the trial court's judgment. NOTES [1] Carolyn was an authorized agent of American Republic. [2] Wood v. Paulas, 524 S.W.2d 749, 756 (Tex.Civ. App.—Corpus Christi 1975, writ refd n.r.e.) ("or" expresses an alternative). [3] Act of June 7, 1951, 52nd Leg., R.S., ch. 491, 1951 Tex.Gen.Laws 868, 920, repealed by Act of May 27, 1991, 72nd Leg., R.S., ch. 242, § 12.01(2), 1991 Tex.Sess.Law Serv. 939, 1133 (vernon.

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 10 2005 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA, Plaintiff, v. DONALD LaCRUCE MILLER, Defendant, MGB ASSOCIATES, an irrevocable No. 03-7093 trust, MARSHA R. TURNER, for the (E.D. Oklahoma) benefit of JAYDON TURNER and (D.C. No. CR-02-23-S) SHADOE TURNER, GAYLON MILLER and BRITTAIN MILLER, Forfeiture Respondents - Appellants, v. UNITED STATES OF AMERICA, Plaintiff - Appellee. ORDER AND JUDGMENT * * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgment; nevertheless, an order and judgment may be cited under the terms and conditions of the 10 th Cir. R. 36.3. Before EBEL, O’BRIEN, Circuit Judges, and STEWART, District Judge. ** STEWART, District Judge. Pursuant to Rule 42(b), Fed. R. App. P., and the stipulation submitted by the parties, this appeal has been settled and is hereby dismissed as moot. The case is remanded to the district court with instructions to dismiss the case. Each party shall bear its own costs and the mandate shall issue forthwith. ** The Honorable Ted Stewart, District Judge, District of Utah, sitting by designation. -2- 

37 A.3d 1246 (2011) COM. v. CANNEDY. No. 790 EDA 2011. Superior Court of Pennsylvania. October 27, 2011. Affirmed.

510 U.S. 924 Camarenav.California Department of Corrections et al. No. 93-5774. Supreme Court of United States. October 12, 1993. 1 Appeal from the C. A. 9th Cir. 2 Certiorari denied.

876 S.W.2d 418 (1994) George W. JAMES, Appellant, v. Donald HUDGINS, Debra Hudgins and Sondra James, Appellees. No. 08-93-00042-CV. Court of Appeals of Texas, El Paso. March 9, 1994. *419 A.J. Pope, Midland, for appellant. *420 William W. Clifton, Jr., Dick R. Holland, Boldrick, Clifton, Nelson & Holland, John D. Roosa, Allen, Allen & Roosa, Midland, for appellees. Before KOEHLER, BARAJAS and LARSEN, JJ. OPINION ON MOTION FOR REHEARING BARAJAS, Justice. We grant Appellee's motion for rehearing, withdraw our opinion and judgment of January 12, 1994, and substitute the following opinion. This is an appeal from a judgment on the verdict rendered against Plaintiff-Appellant, George W. James following the jury trial of a wrongful death case. In nine points of error, Appellant attacks the sufficiency of evidence supporting the verdict and judgment and the trial court's refusal to allow the deposition testimony of Appellant's expert to be read to the jury. We affirm the judgment of the trial court. I. SUMMARY OF THE EVIDENCE Appellant and Appellee Sondra James were the divorced parents of John James, a minor, and their divorce decree named Sondra as managing conservator of the child. While in the possession of Sondra, the child drowned in an above-ground swimming pool owned by the Hudgins, Appellees, and located at their residence. At the time of the tragic accident, Sondra was house-sitting for the Hudgins. Appellant then brought this suit asserting various acts of negligence by Appellees, including the failure to remove or raise the ladder to the swimming pool and the failure of the Hudgins to inform Sondra of the dangers involved if such precautions were not taken. During the trial of the case, which began in early October of 1992 and lasted several days, Appellant attempted to introduce the deposition testimony of Dr. Daniel L. Levin, a medical doctor and alleged expert in the field of child drowning and swimming pool safety. Appellees objected to the entirety of this testimony, contending that Dr. Levin had not been qualified as an expert at the deposition, and as such, his opinions as to the negligence of Appellees were mere speculation. In a hearing outside the presence of the jury, the trial court overruled Appellees' objections as to Dr. Levin's medical qualifications, but sustained the objections as to Dr. Levin's expertise in swimming pool safety. The trial court also admitted into evidence the first two pages of Dr. Levin's curriculum vitae, showing his educational and employment history as a medical doctor. The remainder of the curriculum vitae, showing his qualifications as an expert in swimming pool safety, was excluded from evidence on the hearsay objection of Appellees. Appellees asserted that at the deposition, Appellant failed to lay the proper predicate for the admission of such documents, and as such, the documents did not fall within any of the recognized exceptions to the hearsay rule. Additionally, Appellant did not make any attempt at the deposition to establish the expertise of Dr. Levin regarding swimming pool safety issues. Thus, the deposition testimony regarding the medical aspects of the drowning were allowed to be read for the jury, but the testimony regarding Dr. Levin's opinions as to the negligence of Appellees was excluded. At the conclusion of the trial, the jury, in an 11-1 verdict, found no negligence on the part of Appellees. The jury also found that Appellant suffered zero damages as a result of the accident. Appellant then filed a motion for judgment n.o.v. and a motion for new trial on October 23, 1992, asserting inter alia that the evidence at trial overwhelmingly and conclusively establishes that Appellees were negligent. The trial court rendered a take-nothing judgment on the jury's verdict on that same day. II. DISCUSSION In Points of Error Nos. One, Two, and Three, Appellant complains of the trial court's failure to grant the motion for judgment n.o.v. and motion for new trial, asserting that the evidence at trial was legally and factually insufficient to support the jury's verdict. Additionally, in Points of Error Nos. Five, Six, Seven, Eight, and Nine, Appellant asserts that the trial court erred in *421 not submitting to the jury special issues and definitions regarding negligence per se, recklessness, and gross negligence, and in submitting to the jury the negligence of Sears, Roebuck & Co. and the definition of unavoidable accident. The merit of each of these points of error, by their very nature, depends upon the sufficiency of the evidence adduced at trial. At the outset, we note that it is well established that the Texas Rules of Appellate Procedure place the burden on the appellant, or other party seeking review, to see that a sufficient record is presented to show error requiring reversal. Tex.R.App.P. 50(d); Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.1990); Streeter v. Thompson, 751 S.W.2d 329, 330 (Tex.App.—Fort Worth 1988, no writ). It is equally well settled that when an appellant complains of the factual or legal sufficiency of the evidence, the appellant's burden to show that the judgment is so erroneous cannot be discharged in the absence of a complete or agreed statement of facts. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex.1991). It is undisputed that the record before this Court on appeal contains only a partial statement of facts of the evidence adduced during the trial of the cause and not a complete or agreed statement of facts. Without a complete or agreed statement of facts and in the absence of Appellant's compliance with Tex.R.App.P. 53(d)[1] regarding reliance on a partial statement of facts, this Court must presume that the omitted portions of the evidence would support the jury findings and the trial court's judgment. Schafer, 813 S.W.2d at 155; Streeter, 751 S.W.2d at 330. Accordingly, Appellant's Points of Error Nos. One, Two, Three, Five, Six, Seven, Eight, and Nine should be overruled. In Point of Error No. Four, Appellant asserts that the trial court erred and abused its discretion in not admitting the deposition testimony of Dr. Levin on matters concerning swimming pool safety and the ultimate issue of Appellees' negligence in that the testimony was admissible and its exclusion caused irreparable injury to the case. The trial court excluded these portions of Dr. Levin's testimony on the basis that Dr. Levin had not been sufficiently qualified as an expert on such matters. The trial court did allow the portions of Dr. Levin's testimony concerning the medical aspects of the drowning accident to be read to the jury. Rule 702 of the Texas Rules of Civil Evidence dictates if an expert is qualified to testify.[2] The party offering the expert's opinion has the burden of establishing that the expert is qualified, that is, the expert possesses a higher degree of knowledge than an ordinary person or the trier of fact. ITT Commercial Fin. Corp. v. Riehn, 796 S.W.2d 248, 250 (Tex.App.—Dallas 1990, no writ). This burden may only be met by showing that the expert is trained in the science of which he or she testifies or has knowledge of the subject matter of the fact in question. Missouri Pac. R.R. Co. v. Buenrostro, 853 S.W.2d 66, 77 (Tex.App.—San Antonio 1993, n.w.h.); Rogers v. Gonzales, 654 S.W.2d 509, 512 (Tex.App.—Corpus Christi 1983, writ ref'd n.r.e.). [Emphasis added]. There are, however, no definite guidelines for making the determination of whether a witness's education, experience, skill, or training qualify the witness as an expert. This determination is left to the trial court's discretion, and the trial court's decision will not be disturbed absent a clear abuse of this discretion. ITT *422 Commercial Fin. Corp., 796 S.W.2d at 250; Trailways, Inc. v. Clark, 794 S.W.2d 479, 483 (Tex.App.—Corpus Christi 1990, writ denied). A careful review of the transcript of the deposition of Dr. Levin reveals that both parties agreed to reserve all objections, except for form of the question and responsiveness of the answer, until trial. Appellant, the party offering the deposition testimony at trial, asked no questions of Dr. Levin with regard to his qualifications as an expert on swimming pool safety issues. Dr. Levin did respond to questions asked by an attorney for Appellees with information about his qualifications as a medical doctor and his experience with treating child drowning and near-drowning victims. The deposition transcript reveals, however, that the attorney for Appellees did not ask Dr. Levin any questions about his qualifications or experience with regard to swimming pool safety issues, and no such information was developed during the deposition. Appellant contends that the information supplied by Dr. Levin to the attorney for Appellees at the deposition pursuant to the notice to take oral deposition duces tecum is sufficient to establish the qualifications of Dr. Levin as an expert in swimming pool safety issues. We disagree. The notice required Dr. Levin to bring to the deposition twelve categories of documents: 1. Each and every document, item, photograph, or other tangible object supplied to you or made available to you for your investigation or inspection as an expert witness in this suit. 2. All maps, logs, depositions, statements, and any other material supplied to you or made available to you for your investigation as an expert witness in this suit. 3. All correspondence supplied to you or made available to you. 4. Each and every book, treatise, periodical, article, and/or pamphlet upon which you may rely or cite as authority for any opinions held or expressed by you pertaining to this lawsuit. 5. All papers, diagrams, drawings, illustrations, tangible objects, slides, photographs, or other documents which contain information relevant to any issue involved in this lawsuit and any preliminary report. 6. All reports, tests, test results, graphs, models, or tangible things prepared or used by you which form the basis, in whole or in part, of your opinion or testimony. 7. All work papers, notes and documents in your file dealing with this lawsuit and any preliminary report. 8. All agreements or contracts between you and Plaintiff or any attorney for Plaintiff regarding your fee as an expert witness in this lawsuit. 9. All of your time sheets, billing statements, or invoices reflecting charges for your services rendered in this lawsuit. 10. All your curriculum vitae and/or resumes. 11. List of all lawsuits in which you have testified as either an expert or fact witness. 12. List of all lawsuits in which you have given deposition testimony as an expert or factual witness. At the deposition, the attorney for Appellees questioned Dr. Levin as to what he brought to the deposition in response to each of these twelve requests. All of the documents identified by Dr. Levin and brought to the deposition were marked as deposition exhibits and attached to the deposition transcript, but Dr. Levin was not questioned about the content or substance of any of the documents. The attorney for Appellant made no attempt during the deposition to establish the admissibility into evidence at trial of any of these documents. The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court's actions. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Another way of stating the test is whether the act was arbitrary or *423 unreasonable. Id. at 242, citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Ins. Co., 458 S.W.2d 649, 651 (Tex.1970). Appellant had sufficient opportunity, both during the deposition itself and after the deposition but before the trial, to establish the expertise of Dr. Levin in matters of swimming pool safety, but simply failed to take any steps whatsoever to do so. The fact, as Appellant contends, that Appellees took the deposition of Dr. Levin and inquired into his opinions on the negligence of Appellees and related swimming pool safety issues does not preclude Appellees from challenging his expertise in such matters at trial. Given the above, we are of the opinion that the trial court did not abuse its discretion in determining that Appellant failed to meet its burden of establishing that Dr. Levin was qualified as an expert in swimming pool safety issues. Accordingly, we hold that the trial court did not err in excluding those portions of Dr. Levin's deposition testimony not relating to the purely medical aspects of the accident. Appellant's Point of Error No. Four is overruled. Even if this Court is wrong on all of the above issues, Appellant still cannot prevail on this appeal. In the charge that was submitted to the jury, special issues numbers five and six inquired about the damages suffered by Appellant and the child as a result of the accident. These special issues were not conditionally submitted, and the jury properly answered the questions, finding zero damages in both special issues. In this appeal, Appellant makes no attack upon these jury findings of zero damages. On numerous occasions, the courts of this state have held that a failure to attack a finding of no damages renders asserted error on liability issues harmless. In Easley v. Castle Manor Nursing Home, 731 S.W.2d 743, 744 (Tex.App.—Dallas 1987, no writ), the Court stated: Since appellants failed to properly raise a point of error on the jury's finding of no damages, any error in the verdict on liability issues is harmless. M.P.I., Inc. v. Dupre, 596 S.W.2d 251, 255 (Tex.Civ. App.—Fort Worth 1980, writ ref'd n.r.e.); Roever v. Delaney, 589 S.W.2d 180, 182 (Tex.Civ.App.—Fort Worth 1979, no writ); Wooley v. West, 575 S.W.2d 659, 660 (Tex. Civ.App.—Fort Worth 1978, writ ref'd n.r.e.); Mitchell v. Chaparral Chrysler Plymouth Sales, Inc., 572 S.W.2d 359, 360-61 (Tex.Civ.App.—Fort Worth 1978, writ ref'd n.r.e.). Indeed, where findings of `no damages' by the jury are not made subject to complaint on appeal the judgment is not to be reversed, even where there might exist reversible error in respect to the liability issues. M.P.I., Inc., 596 S.W.2d at 255. [Emphasis added]. Other cases have reached the same result. Hancock v. City of San Antonio, 800 S.W.2d 881, 885 (Tex.App.—San Antonio 1990, writ denied); Wisenbarger v. Gonzales Warm Springs Rehabilitation Hospital, Inc., 789 S.W.2d 688, 694 (Tex.App.—Corpus Christi 1990, writ denied); Canales v. National Union Fire Ins. Co., 763 S.W.2d 20, 22-23 (Tex. App.—Corpus Christi 1988, writ denied); Lewis v. Isthmian Lines, Inc., 425 S.W.2d 893, 894 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ). Accordingly, the unchallenged damage findings preclude a recovery Appellant on his cause of action and require an affirmance of the take-nothing judgment. Appellees, by way of a single cross-point, request an award of damages against Appellant. Specifically, Appellees contend that Appellant brought this appeal for delay and without sufficient cause and request an award of damages in an amount not to exceed ten times the total taxable costs. We must now examine the record to determine whether such an award is proper under TEX. R.APP.P. 84.[3] *424 Before an appellate court may assess damages under Rule 84, it must find that: (1) the appeal was taken for delay, and (2) there was no sufficient cause for the appeal. TEX. R.APP.P. 84; In re Estate of Kidd, 812 S.W.2d 356, 360 (Tex.App.—Amarillo 1991, writ denied). In making such findings, this Court must review the record from the standpoint of the advocate and determine whether he or she had reasonable grounds to believe the judgment should be reversed. Id.; Hicks v. Western Funding, Inc., 809 S.W.2d 787, 788 (Tex.App.—Houston [1st Dist.] 1991, writ denied); Daniel v. Esmaili, 761 S.W.2d 827, 830 (Tex.App.—Dallas 1988, no writ). The courts of this State have enumerated four factors that tend to indicate an appeal was filed for delay and without sufficient cause. These factors are: (1) the unexplained absence of a statement of facts; (2) the unexplained failure to file a motion for new trial when it is required to successfully assert factual insufficiency on appeal; (3) a poorly written brief raising no arguable points of error; and (4) the appellant's unexplained failure to appear for oral argument. Hicks, 809 S.W.2d at 788; Daniel, 761 S.W.2d at 831. In the instant case, Appellant is challenging the factual sufficiency of evidence supporting the jury's verdict; therefore, a motion for new trial was required before appealing to this Court. The record shows that Appellant did timely file a motion for new trial. Also, Appellant appeared for oral argument before this Court. As our original opinion indicated, eight of Appellant's nine points of error are based on the legal or factual sufficiency of the evidence, yet Appellant failed to provide this Court with a complete statement of facts. While this strategy may have doomed the appeal from the start, it is not conclusive evidence that the appeal was taken for delay or without sufficient cause. See, e.g., Hicks, 809 S.W.2d at 788. As Justice Lagarde stated in the Daniel case: [W]e emphasize that we do not award delay damages merely for "poor lawyering." Ineptitude in the presentation of an appeal is not an adequate ground for assessment of a frivolous appeal penalty. A.T. Lowry Toyota, Inc. v. Peters, 727 S.W.2d 307, 309 (Tex.App.—Houston [1st Dist.] 1987, no writ) (Dunn, J., dissenting). A court should not punish the client simply for the inadequacies of his attorney. However, upon a finding that an appeal was brought for purposes of delay and without sufficient cause, the judiciary cannot allow appellees to be injured, without compensation, by unscrupulous appellants who appeal merely to delay the satisfaction of the judgment. Daniel, 761 S.W.2d at 831. Finally, we note that the Appellant in the instant case gains nothing by delaying execution of a take-nothing judgment, and Appellee suffers nothing beyond the normal expense of defending its success at trial. We find that this, too, is a factor we may properly consider. We have prudently, cautiously, and carefully reviewed the instant case from the point of view of the advocate and cannot conclude that Appellant had no reasonable grounds to believe the judgment should be reversed. Accordingly, Appellees' Cross Point is overruled. Having overruled each of Appellant's points of error, as well as Appellees' cross point, the judgment of the trial court is hereby affirmed. NOTES [1] TEX.R.APP.P. 53(d) provides as follows: (d) Partial Statement. If appellant requests or prepares a partial statement of facts, he shall include in his request or proposal a statement of the points to be relied on and shall thereafter be limited to such points. If such statement is filed, there shall be a presumption on appeal that nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal. Any other party may designate additional portions of the evidence to be included in the statement of facts. [2] Rule 702 reads as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. TEX.R.CIV.EVID. 702. [3] Rule 84 reads in pertinent part as follows: In civil cases where the court of appeals shall determine that an appellant has taken an appeal for delay and without sufficient cause, then the court may, as part of its judgment, award each prevailing appellee an amount not to exceed ten percent of the amount of damages awarded to such appellee as damages against such appellant. If there is no amount awarded to the prevailing appellee as money damages, then the court may award, as part of its judgment, each prevailing appellee an amount not to exceed ten times the total taxable costs as damages against such appellant.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-03-00455-CR Sabino Rodriguez, Jr., Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT NO. CR-02-269, HONORABLE JACK H. ROBISON, JUDGE PRESIDING MEMORANDUM OPINION A jury convicted Sabino Rodriguez of indecency with a child by contact. After he pleaded true to previous convictions for aggravated kidnaping and indecency with a child, the court assessed punishment at 25 years in prison. Rodriguez contends on appeal that the court erred by allowing the complaining witness to testify regarding an unindicted sexual act by appellant. Rodriguez also argues that the evidence was factually insufficient to support a conviction. We will affirm the conviction. BACKGROUND In 2000, S.S. lived with her uncle and his girlfriend, Anna Herrera, while S.S.’s parents were in prison. S.S. was seven years old. S.S. regularly went to visit her siblings and other relatives—including her grandmother, Adelle Rodriguez, and appellant, her grandmother’s boyfriend or common-law husband. Herrera testified that, after one of these visits, she noticed that S.S. was bleeding in her vaginal area. Herrera asked S.S. if she had hit herself or if someone had been touching her there. Herrera said that appellant had touched her. S.S. testified that appellant touched her “middle part,” which she identified on a doll as her genitals, with his hand; she said he was not putting medicine on her. She testified that he later did it a second time using his hand and his mouth. In an interview taped at a children’s advocacy center (and played for the jury), S.S. said that appellant touched her six times. At one point, S.S. testified that appellant touched her genitals while they were play-wrestling; shortly thereafter, however, she denied play-wrestling with appellant. Patricia Perez, S.S.’s father’s sister, testified that S.S. has given inconsistent stories regarding the abuse. Perez said S.S. told her appellant touched her genitals while play-wrestling. Perez denied that S.S. told her that appellant touched her genitals with his mouth. Perez also testified that she had seen S.S. and her siblings watching pornographic movies and that the children were inappropriately sexual; for example, Perez walked in on S.S.’s eight-year-old brother engaging in sexual acts with a thirteen-year-old neighbor while S.S. watched, and Perez had heard that the same boy was accused of sexually assaulting schoolmates. Perez also questioned the veracity and motivation of S.S.’s accusations when she testified that she and Adelle Rodriguez were involved in a custody dispute with S.S.’s mother, Gabriela Alvarez, regarding S.S.’s siblings and that Alvarez prompted Child Protective Services to investigate Perez for sexual and emotional abuse. 2  Two members of the Hays County Sheriff’s Office testified as well. Detective Jeri Skrocki testified that delayed outcry is not unusual in cases of sexual abuse of young children. She also said that evolution of and additions to the child’s story is not unusual, nor is uncertainty with issues like time frame. Skrocki also testified that children sometimes make false accusations, including accusing the wrong person of abuse that occurred in order to protect the real abuser. Deputy Sheriff Pedro Hernandez testified that, when he went to serve the arrest warrant, appellant hid in a bedroom closet. DISCUSSION Appellant raises two points of error. He complains that the court erred by admitting S.S.’s testimony regarding mouth-to-genital contact for which appellant was not indicted. He also contends that the verdict was not supported by factually sufficient evidence. We review the admission of evidence for an abuse of discretion. Salazar v. State, 38 S.W.3d 141, 153 (Tex. Crim. App. 2001); Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). If the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion, and we must uphold the trial court’s ruling. Salazar, 38 S.W.3d at 153-54; Montgomery, 810 S.W.2d at 391. The district court held that the evidence was admissible under statutory and rule-based grounds. See Tex. Code Crim. Proc. Ann. art. 38.37 (West Supp. 2004-05); Tex. R. Evid. 404(b). Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Tex. R. Evid. 404(b). However, such evidence is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, 3 knowledge, identity, or absence of mistake or accident. Id. And, notwithstanding rule 404, evidence of other crimes, wrongs, or acts committed by the defendant against a child victim shall be admitted for its bearing on relevant matters such as the state of mind of the defendant and the child. Tex. Code Crim. Proc. Ann. art. 38.37, § 2. The court did not err by admitting the evidence under either the rule or the statute. The court could have reasoned that evidence of the second contact undercuts the evidence that the contact was incidental to play-wrestling and not indecent. The court could have concluded that evidence of a second indecent contact supports intent, knowledge, plan, and the absence of mistake or accident, thus making it admissible under the rule. See Tex. R. Evid. 404(b). In that same vein, the court could have found that the evidence of the second contact tends to show appellant’s state of mind when making contact with S.S.’s genitals, thus making the testimony admissible under the statute. Tex. Code Crim. Proc. Ann. art. 38.37, § 2(a). Finding no abuse of discretion in the admission of this evidence, we overrule point of error two. By his remaining point of error, appellant contends that the verdict is supported by factually insufficient evidence. Appellant relies on the different versions of events S.S. told to show the weakness of the evidence. Appellant contends that the variations among S.S.’s different versions of events undermine her credibility and dilute the strength of the evidence so much that the jury could not rationally have found the elements of the offense beyond a reasonable doubt. We review all of the evidence in the record neutrally to determine whether the proof of guilt is so weak or the contrary proof is so strong as to preclude a rational finding of guilt beyond 4 a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We must accord due deference to the fact finder’s determinations, particularly those concerning the weight and credibility of the evidence, and the reviewing court may disagree with the fact finder only when the record clearly indicates that such a step is necessary to prevent a manifest injustice. Johnson, 23 S.W.3d at 9. S.S. testified that appellant touched her genitals twice, once with his hand and once with his mouth. On the videotape from the advocacy center, she said that he touched her six times. Perez testified that S.S. did not report touching by appellant’s mouth, and that S.S. claimed that the touching occurred while she was play-wrestling with appellant. S.S. testified that she told Perez and others that appellant touched her genitals with his mouth. S.S. also both confirmed and denied the play-wrestling report within a brief period in her testimony. The sheriff’s detective offered explanations for these variations in S.S.’s testimony that alternately supported and undercut the verdict. The detective testified that children’s reports of abuse were often delayed and evolved over time; this could be because they were ashamed, fearful, or unwilling to implicate a relative. The detective also testified that children sometimes accused a person other than their actual abuser in order to protect the abuser. We conclude that the resolution of the variations in the evidence was within the realm of a credibility determination by the jury. Because the record does not clearly indicate that the jury’s finding works a manifest injustice, we must defer to the jury’s determinations concerning the weight and credibility of the evidence. See Johnson, 23 S.W.3d at 9. We overrule point of error one. 5  CONCLUSION Having overruled both of appellant’s points of error, we affirm the judgment. David Puryear, Justice Before Justices B. A. Smith, Puryear and Pemberton Affirmed Filed: February 17, 2005 Do Not Publish 6 

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Akers v. Alvey et al. No. 02-5037 ELECTRONIC CITATION: 2003 FED App. 0256P (6th Cir.) File Name: 03a0256p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Kenneth L. Sales, SALES, TILLMAN & FOR THE SIXTH CIRCUIT WALLBAUM, Louisville, Kentucky, for Appellant. _________________ Schuyler J. Olt, PEDLEY, ZIELKE & GORDINIER, Louisville, Kentucky, Edward L. Lasley, CONLIFFE, CINDY AKERS, X SANDMANN & SULLIVAN, Louisville, Kentucky, for Plaintiff-Appellant, - Appellees. ON BRIEF: Kenneth L. Sales, SALES, - TILLMAN & WALLBAUM, Louisville, Kentucky, for - No. 02-5037 Appellant. Schuyler J. Olt, PEDLEY, ZIELKE & v. - GORDINIER, Louisville, Kentucky, Edward L. Lasley, > Richard M. Sullivan, CONLIFFE, SANDMANN & , SULLIVAN, Louisville, Kentucky, for Appellees. DONALD ALVEY and - KENTUCKY CABINET FOR - GILMAN, J., delivered the opinion of the court, in which FAMILIES AND CHILDREN, - BOGGS, J., joined. DOWD, D. J. (pp. 15-16), delivered a Defendants-Appellees. - separate opinion concurring in the judgment. - N _________________ Appeal from the United States District Court for the Western District of Kentucky at Louisville. OPINION No. 99-00221—John G. Heyburn II, Chief District Judge. _________________ Argued: June 20, 2003 RONALD LEE GILMAN, Circuit Judge. Cindy Akers, a former family services worker with the Kentucky Cabinet for Decided and Filed: July 29, 2003 Families and Children, brought suit in federal district court against the Cabinet and her immediate supervisor, Donald Before: BOGGS and GILMAN, Circuit Judges; DOWD, Alvey, for sexual harassment. Specifically, Akers brought a District Judge.* claim under 42 U.S.C. § 1983 against Alvey in his official and individual capacities, claims under Title VII against the Cabinet for discrimination, hostile work environment, and retaliation, and a common law claim for the tort of outrage against both Alvey and the Cabinet. Akers alleges that Alvey engaged in pervasive sexual misconduct towards her, that the Cabinet acquiesced in that conduct, and that the Cabinet retaliated against her when she complained. * The Honorab le David D. Do wd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. 1 No. 02-5037 Akers v. Alvey et al. 3 4 Akers v. Alvey et al. No. 02-5037 Alvey and the Cabinet both moved for summary judgment. The Cabinet conducted a two-week investigation into The district court dismissed all of the claims against Alvey, Akers’s complaint, interviewed Akers, Alvey, and ten others, as well as Akers’s discrimination, retaliation, and tort-of- and found that her sexual-harassment claims were outrage claims against the Cabinet. Akers’s hostile-work- unsubstantiated. Akers however, was promptly removed from environment claim, however, was permitted to go forward. Alvey’s supervision at the conclusion of the investigation. She alleges that during the time that the Cabinet was Pursuant to an agreed order, the resolution of all of the investigating her complaint, Alvey engaged in retaliatory dismissed claims was deemed final and immediately conduct by refusing to speak to her, instructing other appealable by the district court. On appeal, Akers challenges employees not to associate with her, withholding her mail and the district court’s grant of summary judgment for Alvey and inter-office memoranda, and criticizing the way she handled its partial grant of summary judgment for the Cabinet. For her cases. the reasons set forth below, we REVERSE the judgment of the district court as to Akers’s tort-of-outrage claim against In January of 1999, Akers was transferred to the Hardin Alvey, AFFIRM the judgment of the district court as to County office of the Department for Community Based Akers’s remaining claims, and REMAND the case for further Services to work as a domestic violence and child abuse proceedings consistent with this opinion. investigator. According to Akers, she was never accepted in her new office because of her ongoing complaint against I. BACKGROUND Alvey and, after “six months of antagonism,” she felt that she had no choice but to resign her position. Akers sought The Cabinet hired Akers as a family services worker at the psychological counseling for depression after leaving her job. Grayson County office in July of 1997. On August 1, 1998, Alvey was promoted to be the supervisor of the same office. She reapplied with the Cabinet several months later for a Akers first reported Alvey’s allegedly inappropriate behavior position in the Richmond office, where she would have been to the Cabinet 18 days later. According to Akers’s complaint, supervised by Linda Miller. Although Miller called Akers to Alvey had engaged in pervasive, sexually offensive behavior, inform her that Miller would be recommending Akers for the including the making of lewd gestures with his tongue and job, Miller later changed her mind after receiving negative hand while moaning, commenting daily about Akers’s recommendations from Akers’s former supervisors and physique (such as “nice ass”), getting very close to Akers and coworkers, including Alvey, and upon learning of Akers’s attempting to look down her blouse, questioning Akers lawsuit. extensively about masturbation and her sex-life with her boyfriend, expressing in front of other employees that he II. ANALYSIS would like to have sexual intercourse with Akers, commenting to Akers about her coworkers’ sexual histories A. Jurisdiction and physiques, commandeering Akers’s computer to send sexually explicit e-mail messages, and describing his last The district court had jurisdiction pursuant to 28 U.S.C. episode of oral sex in great detail. Akers alleged that Alvey §§ 1331, 1343(a)(1)(3), and 1367(a). Although a partial grant engaged in over 30 acts of inappropriate behavior in a two- of summary judgment is not ordinarily appealable, the district and-a-half month period. court entered an agreed order under Rule 54(b) of the Federal Rules of Civil Procedure, rendering final and appealable the No. 02-5037 Akers v. Alvey et al. 5 6 Akers v. Alvey et al. No. 02-5037 judgment on all dismissed claims. Rule 54(b) was enacted as the reviewing court might be obliged to consider the “a response to the need created by the liberal joinder same issue a second time; (4) the presence or absence of provisions of the Federal Rules of Civil Procedure to revise a claim or counterclaim which could result in set-off ‘what should be treated as a judicial unit for purposes of against the judgment sought to be made final; appellate jurisdiction.’” Corrosioneering v. Thyssen Envtl. (5) miscellaneous factors such as delay, economic and Sys., 807 F.2d 1279, 1282 (6th Cir. 1986). The Rule solvency considerations, shortening the time of trial, “attempts to strike a balance between the undesirability of frivolity of competing claims, expense, and the like. piecemeal appeals and the need for making review available Depending upon the factors of the particular case, all or at a time that best serves the needs of the parties.” Id. some of the above factors may bear upon the propriety of (internal quotation marks omitted). The determination of the trial court’s discretion in certifying a judgment as whether to allow for an appeal pursuant to Rule 54(b) is a final under Rule 54(b). matter left to the sound discretion of the district court. Id. Corrosioneering, 807 F.2d at 1283 (quoting Allis-Chalmers The Rule itself simply states that the district court must find Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. that there is no just reason for delay of the appeal. Fed. R. 1975)). Civ. P. 54(b). This court, however, has previously indicated that in order to avoid a finding of abuse of discretion in the The district court’s order in this case was in many respects certification of an appeal pursuant to Rule 54(b), the “district the bare-bones certification that this court condemned in court should do more than just recite the Rule 54(b) formula Corrosioneering. No analysis of the above factors was of ‘no just reason for delay.’” Id. As the Supreme Court undertaken, and the only justification stated for declaring that explained: there was “no just reason for delay” was a statement that the parties “hav[e] agreed that the outstanding issues with regard It is essential, however, that a reviewing court have to dismissal of a claim against Alvey and the claims against some basis for distinguishing between well-reasoned the Cabinet would more economically be handled by an conclusions arrived at after a comprehensive appellate decision prior to trial . . . .” Because this case has consideration of all relevant factors, and mere boilerplate already been briefed and argued on appeal, however, the approval phrased in appropriate language but scales of judicial economy are now tipped in favor of unsupported by evaluation of the facts or analysis of the disposing of the appeal on the merits. But if the jurisdictional law. issue had been spotted sooner, we would likely have remanded the case in order for the district court to explicitly Protective Comm. v. Anderson, 390 U.S. 414, 434 (1968). evaluate the Corrosioneering factors. This court, in Corrosioneering, set forth the following B. Standard of review “nonexhaustive list” of factors to consider: We review a district court’s grant of summary judgment de (1) the relationship between the adjudicated and the novo. Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 490 (6th unadjudicated claims; (2) the possibility that the need for Cir. 2002). Summary judgment is proper where there is no review might or might not be mooted by future genuine issue as to any material fact and the moving party is developments in the district court; (3) the possibility that entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). No. 02-5037 Akers v. Alvey et al. 7 8 Akers v. Alvey et al. No. 02-5037 In considering such a motion, the court construes all Alvey’s behavior went far beyond the sexual jokes, reasonable factual inferences in favor of the nonmoving party. comments, and innuendos that this court has previously found Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. insufficient to withstand a motion for summary judgment on 574, 587 (1986). The central issue is “whether the evidence a tort-of-outrage claim. Wathen v. General Electric Co., 115 presents a sufficient disagreement to require submission to a F.3d 400, 407 (6th Cir.1997) (applying Kentucky law). Any jury or whether it is so one-sided that one party must prevail one of the particular incidents complained of, taken in as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 isolation, might not reach the level of outrageousness required U.S. 242, 251-52 (1986). by Kentucky law to survive summary judgment. But taken together, Alvey’s pervasive behavior, as alleged by Akers, C. Akers’s tort-of-outrage claim against Alvey was outrageous. At the very least, this is a case where “reasonable men may differ” and, as such, “it is for the jury, The district court dismissed Akers’s tort-of-outrage claim subject to the control of the court, to determine whether, in against Alvey, concluding that “[w]hile Alvey’s conduct and the particular case, the conduct has been sufficiently extreme that attributable to the Cabinet might be considered crude and and outrageous to result in liability.” Restatement (Second) of completely inappropriate, it does not rise to a level of conduct Torts § 46 cmt. h (1965) (§ 46 was adopted by the Kentucky which is ‘atrocious and intolerable’ as required by Kentucky Supreme Court in Craft v. Rice, 671 S.W.2d 247, 251 (Ky. law.” Under Kentucky law, “[i]n order to recover [for the tort 1984)). of outrage], the plaintiff must show that defendant's conduct was intentional or reckless, that the conduct was so Alvey argues, as his last line of defense on this claim, that outrageous and intolerable so as to offend generally accepted the distress suffered by Akers, if any, was not caused by standards of morality and decency, that a causal connection Alvey’s behavior and was not severe. In both her verified exists between the conduct complained of and the distress complaint and her deposition testimony, however, Akers suffered, and that the resulting emotional stress was severe.” maintains that she suffered severe emotional distress as a Brewer v. Hillard, 15 S.W.3d 1, 6 (Ky. Ct. App. 1999). result of Alvey’s outrageous conduct. Akers specifically testified that she experienced depression and sought There is no question in this case that Alvey’s behavior was psychological counseling shortly after leaving her job with intentional, and thus the first element of the tort of outrage is the Cabinet. Although the evidence of emotional distress may satisfied. Akers maintains that the district court erred in be sparse, we believe that it is sufficient to send the issues of holding that Alvey’s conduct did not reach the level of causation and severity to the jury. outrageousness required by the second element. In assessing this element, we must view the evidence in the light most In sum, we find that Akers has satisfied all of the elements favorable to Akers and determine whether this case “is one in of her tort-of-outrage claim against Alvey as set forth in which the recitation of the facts to an average member of the Brewer, 15 S.W.3d at 6. We therefore reverse the district community would arouse his resentment against the actor, court’s grant of summary judgment on this claim. and lead him to exclaim, ‘Outrageous!’” Restatement (Second) of Torts § 46 cmt. d (1965) (applied by the D. Akers’s tort-of-outrage claim against the Cabinet Kentucky Court of Appeals in Brewer, 15 S.W.3d at 6). In our opinion, this is just such a case. The Cabinet argues that Akers’s tort-of-outrage claim against it was properly dismissed because the Cabinet is No. 02-5037 Akers v. Alvey et al. 9 10 Akers v. Alvey et al. No. 02-5037 protected from such a claim by the Eleventh Amendment to she had suffered a materially adverse employment action the United States Constitution. This issue was not addressed under prong (3). by the district court, however, because it held that the Cabinet’s conduct was not outrageous as a matter of law. In order to establish an adverse employment action, Akers must show a significant change in her employment status, Akers cites the case of Gragg v. Kentucky Cabinet for such as hiring, firing, failing to promote, reassignment with Workforce Development, 289 F.3d 958, 963 (6th Cir. 2002), significantly different responsibilities, a significant change in for the proposition that an entity’s defense of sovereign benefits, or other factors unique to her particular situation. immunity will be deemed waived absent evidence in the Bowman v. Shawnee State Univ., 220 F.3d 456, 461-62 (6th record of how a state defines the entity, what degree of Cir. 2000). Akers alleges three employment actions that she control the state has over the entity, and how the entity is contends are materially adverse: (1) transfer to a different funded. According to Akers, the record in this case is bereft office, (2) retaliatory harassment by Alvey in the form of of such evidence, resulting in a waiver of the Cabinet’s increased criticism, withholding her mail, ignoring her, and sovereign immunity defense. In Gragg, however, the encouraging her coworkers to ostracize her, which resulted in defendants failed to identify the claims to which the sovereign her “social death” within the office, and (3) the Cabinet’s immunity defense applied, failed to argue immunity before refusal to rehire her following a negative recommendation by the district court, and included only a single paragraph Alvey. We will now examine each of these contentions in addressing the immunity argument in their appeal. The turn. Cabinet in the present case, on the other hand, raised the argument in the district court and has briefed it fully on 1. Akers’s transfer to the Hardin County office appeal. As a result, Gragg is easily distinguishable and Akers’s waiver argument is without merit. We therefore Even assuming that Akers was involuntarily transferred to affirm the district court’s grant of summary judgment as to the Hardin County office, as she alleges, she failed to Akers’s tort-of-outrage claim against the Cabinet on the demonstrate how this transfer was materially adverse to her. grounds that such a claim is barred by sovereign immunity. She did not suffer a decrease in pay, her job duties were not significantly changed, and the transfer actually reduced E. Akers’s retaliation claim against the Cabinet Akers’s roundtrip commute from her home by 60 miles per day. We thus agree with the district court that Akers’s In order to establish a claim of retaliation, Akers must transfer was not a materially adverse employment action. See prove that (1) she engaged in an activity protected by Title Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. VII, (2) the exercise of that protected right was known to the 1996) (holding that a plaintiff failed to establish that her Cabinet, (3) the Cabinet thereafter took an employment action transfer and change in job title was a materially adverse adverse to Akers, or that Akers was subjected to severe or employment action, reiterating “that reassignments without pervasive retaliatory harassment by a supervisor, and (4) a salary or work hour changes do not ordinarily constitute causal connection existed between the protected activity and adverse employment decisions in employment discrimination the adverse employment action or harassment. Morris v. claims”). Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000). The district court held that although Akers satisfied prongs (1), (2), and (4) of this test, she failed to establish that No. 02-5037 Akers v. Alvey et al. 11 12 Akers v. Alvey et al. No. 02-5037 2. Retaliatory harassment by Alvey home driveway on more than one occasion. Id. at 793. The court in Morris distinguished that case from the “simple Although the district court failed to consider whether teasing, offhand comments, and isolated incidents that [the Alvey’s post-complaint harassment was retaliatory, this court Supreme Court in] Faragher indicated did not amount to has previously held that “severe or pervasive supervisor discriminatory changes in the terms and conditions of a harassment” following a sexual-harassment complaint can plaintiff's employment.” Id. at 793. constitute retaliation for the purposes of a Title VII action. Morris, 201 F.3d at 792. Because the court’s decision in Alvey’s alleged post-complaint conduct (i.e., ignoring Morris was an extrapolation of Supreme Court precedent Akers, encouraging her coworkers to do the same, criticizing allowing a Title VII action to be based upon severe or her work, and withholding her mail) falls somewhere in pervasive supervisory harassment in the sexual-harassment between the egregious conduct in Morris and “simple context, the standard for “severe or pervasive” harassment is teasing” or “offhand comments.” The alleged retaliation was “the same in the retaliation context as in the sexual and racial confined to the two weeks during which the Cabinet was discrimination contexts.” Broska v. Henderson, 2003 WL diligently investigating Akers’s complaint and despite the 21518733, *4 (June 30, 2003). Under this standard, the Cabinet’s circulation of a memo in the Grayson County office harassment must be “sufficiently severe or pervasive to alter instructing that no retaliation would be tolerated. Due to the the conditions of the victim’s employment and create an short duration and relatively mild nature of the post-complaint abusive working environment.” Harris v. Forklift Sys., Inc., harassment, as well as the Cabinet’s directive prohibiting 510 U.S. 17, 21 (1993) (citation omitted). As this court noted retaliatory conduct, we do not believe that there is sufficient in Broska, “this test has both an objective and a subjective evidence for a jury to find that Alvey’s alleged harassment component: the conduct must be severe or pervasive enough reached the level of “severe or pervasive” conduct required by to create an environment that a reasonable person would find Morris for a retaliation claim. hostile or abusive, and the victim must subjectively regard that environment as hostile or abusive.” Broska, at *4. 3. The Cabinet’s refusal to rehire Akers The Cabinet responds to Akers’s retaliatory harassment Akers’s final basis for her retaliation claim is the Cabinet’s claim by arguing that Alvey was removed as Akers’s decision not to rehire her for a different position four months supervisor immediately following the conclusion of its after her resignation. Even assuming that Akers presented a investigation of Akers’s complaint to the Cabinet, and that prima facie case of retaliation based upon Alvey’s alleged any harassment that may have occurred following Akers’s input into the decision, the Cabinet articulated a legitimate, complaint was not severe or pervasive enough to support a nondiscriminatory reason for its decision not to rehire Akers; retaliation claim. All of the incidents giving rise to Akers’s namely, poor reviews from her coworkers and other complaint about retaliation occurred during the two-week supervisors, including Akers’s supervisor during the few period that the Cabinet took to investigate her charges. In months that she was employed in the private sector. The Morris, the supervisor in question engaged in retaliatory Cabinet thus contends that Alvey’s alleged retaliatory input conduct that was much more severe and pervasive than that was immaterial to its decision not to rehire her. Akers has alleged in this case, including calling the plaintiff over 30 failed to rebut this contention. Because Akers has not shown times for the sole purpose of harassing her, sitting outside her that this proferred legitimate reason was pretextual, we agree office staring in her window, and throwing nails onto her No. 02-5037 Akers v. Alvey et al. 13 14 Akers v. Alvey et al. No. 02-5037 that the Cabinet’s refusal to rehire Akers does not support her In Wathen, this court held that despite the express use of the retaliation claim. word “agent” in the statute, Title VII does not create individual liability for individuals in supervisory positions In sum, none of Akers’s allegations are sufficient to such as Alvey’s. Because Wathan is controlling authority, we establish a materially adverse employment action by the affirm the district court’s grant of summary judgment as to Cabinet. The district court therefore did not err in granting Akers’s § 1983 claim against Alvey. Salmi v. Sec’y of Health summary judgment as to Akers’s retaliation claim. and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court cannot overrule the decision of another F. Akers’s § 1983 claim against Alvey panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court Finally, Akers brought a § 1983 claim against Alvey in his requires modification of the decision or this Court sitting en individual and official capacities. Section 1983 liability, as banc overrules the prior decision.”). alleged by Akers’s complaint, is premised upon liability under Title VII. Title VII, in pertinent part, provides that it is III. CONCLUSION unlawful for an employer to discriminate against an individual on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). For all the reasons set forth above, we REVERSE the The district court concluded that for all practical purposes, the judgment of the district court as to Akers’s tort-of-outrage two claims are the same. The Sixth Circuit has held that claim against Alvey, AFFIRM the judgment of the district where “there is liability under Title VII, there should be court as to Akers’s remaining claims, and REMAND the case liability under § 1983. Similarly, if there was no for further proceedings consistent with this opinion. discriminatory intent, there cannot be liability under either Title VII, on a disparate treatment theory, or § 1983.” Grano v. Dep’t of Dev., 637 F.2d 1073, 1082 (6th Cir. 1980). Akers’s § 1983 claim was thus analyzed by the district court as a Title VII claim. An employer is defined under Title VII as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . .” 42 U.S.C. § 2000e(b). Akers relies on the “agent” language of this definition and argues that Alvey should be considered an “employer” for Title VII purposes. The district court, however, ruled that Alvey could not be held individually liable under Title VII, relying on this court’s decision in Wathen v. General Electric Co., 115 F.3d 400 (6th Cir. 1997). No. 02-5037 Akers v. Alvey et al. 15 16 Akers v. Alvey et al. No. 02-5037 ___________________ harassment has to do with personal perception. Courts would be clogged with lawsuits if every single off-color joke told in CONCURRENCE the presence of a highly sensitive person were actionable ___________________ under Title VII or, as is more often the case, if behavior that has actually been tolerated or even welcomed and/or DAVID D. DOWD, JR., District Judge, concurring in the participated in by an individual suddenly becomes a weapon judgment. Although I reluctantly conclude that the majority against the employer when something in the workplace does has rightly decided this case in the face of current binding not go that individual’s way. The “severe and pervasive” Sixth Circuit precedent, I write separately to respectfully standard helps to assure at least a little consistency of voice my view that Morris v. Oldham County Fiscal Court, interpretation and protects against this kind of abusive 201 F.3d 784 (6th Cir. 2000), relied upon to reject Akers’s application of the statute. retaliation claim, was wrongly decided. On the other hand, retaliation is not a matter of perception Morris does not, in my view, adequately recognize that or gradation. It is, rather, much like an electric light, which Title VII identifies and prohibits two discrete wrongs: is either “on” or “off.” One either is or is not retaliating. discrimination and retaliation. In the former category, when Typically, this would be, and should be, a fact call for a jury. it comes to discrimination based on sex, the Supreme Court Of course, in the wake of Morris, now, by definition, one “is has distinguished between quid pro quo claims and hostile retaliating” only if one’s behavior against the Title VII environment claims, Meritor Savings Bank, FSB v. Vinson, complainant is “severe and pervasive.” I can perceive no 477 U.S. 57, 65 (1986), and has clarified that, to be reason for this interpretation of Title VII. I can see a reason actionable, hostile environment claims require harassment to require severity and pervasiveness before a working that is “severe and pervasive.” Id. Under the guise of environment can be found to be truly “hostile;” I cannot see statutory construction, and applying the two relatively recent a reason for applying that standard to retaliation. Supreme Court decisions in Burlington Industries, Inc. v. Nonetheless, that is, unfortunately, the law in this circuit. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), Morris has incorporated that Therefore, I am constrained to concur in the judgment. “severe and pervasive” standard into retaliation claims. I believe this is wrong. While it is a reasonable interpretation of the statute, in light of people’s varying sensitivities, to require harassment to be severe or pervasive, that concept is inconsistent with the concept of retaliation. With respect to harassment: some people are highly offended by even the slightest off-color behavior in the workplace; others have a much higher tolerance for the very same behavior. In other words, there is significant gradation in the area of harassment and, often, whether there is or is not 

77 U.S. 566 (1870) 10 Wall. 566 LIVERPOOL INSURANCE COMPANY v. MASSACHUSETTS. Supreme Court of United States. *569 Messrs. B.R. Curtis and J.G. Abbott, for the company, plaintiff in error. *572 Mr. Charles Allen, Attorney-General of Massachusetts, contra. *571 *573 Mr. Justice MILLER delivered the opinion of the court. The case of Paul v. Virginia,[*] decided that the business of insurance, as ordinarily conducted, was not commerce, and that a corporation of one State, having an agency by which it conducted that business in another State, was not engaged in commerce between the States. It was also held in that case that a corporation was not a citizen within the meaning of that clause of the Constitution, which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, and that a corporation created by a State could exercise none of the functions or privileges conferred by its charter in any other State of the Union, except by the comity and consent of the latter. These propositions dispose of the case before us, if plaintiff is a foreign corporation, and was, as such, conducting business in the State of Massachusetts, and we proceed to inquire into its character in this regard. The institution now known as the Liverpool and London Life and Fire Insurance Company, doing an immense business *574 in England and in this country, was first organized at Liverpool by what is there called a deed of settlement, and would here be called articles of association. It will be seen by reference to the powers of the association, as organized under the deed of settlement, legalized and enlarged by the acts of Parliament, that it possesses many, if not all, the attributes generally found in corporations for pecuniary profit which are deemed essential to their corporate character. 1. It has a distinctive and artificial name by which it can make contracts. 2. It has a statutory provision by which it can sue and be sued in the name of one of its officers as the representative of the whole body, which is bound by the judgment rendered in such suit. 3. It has provision for perpetual succession by the transfer and transmission of the shares of its capital stock, whereby new members are introduced in place of those who die or sell out. 4. Its existence as an entity apart from the shareholders is recognized by the act of Parliament which enables it to sue its shareholders and be sued by them. The subject of the powers, duties, rights, and liabilities of corporations, their essential nature and character, and their relation to the business transactions of the community, have undergone a change in this country within the last half century, the importance of which can hardly be overestimated. They have entered so extensively into the business of the country, the most important part of which is carried on by them, as banking companies, railroad companies, express companies, telegraph companies, insurance companies, &c., and the demand for the use of corporate powers in combining the capital and the energy required to conduct these large operations is so imperative, that both by statute, and by the tendency of the courts to meet the requirements of these public necessities, the law of corporations has been so modified, liberalized, and enlarged, as to constitute a branch *575 of jurisprudence with a code of its own, due mainly to very recent times. To attempt, therefore, to define a corporation, or limit its powers by the rules which prevailed when they were rarely created for any other than municipal purposes, and generally by royal charter, is impossible in this country and at this time. Most of the States of the Union have general laws by which persons associating themselves together, as the shareholders in this company have done, become a corporation. The banking business of the States of the Union is now conducted chiefly by corporations organized under a general law of Congress, and it is believed that in all the States the articles of association of this company would, if adopted with the usual formalities, constitute it a corporation under their general laws, or it would become so by such legislative ratification as is given by the acts of Parliament we have mentioned. To this view it is objected that the association is nothing but a partnership, because its members are liable individually for the debts of the company. But however the law on this subject may be held in England, it is quite certain that the principle of personal liability of the shareholders attaches to a very large proportion of the corporations of this country, and it is a principle which has warm advocates for its universal application when the organization is for pecuniary gain. So also it is said that the fact that there is no provision either in the deed of settlement or the act of Parliament for the company suing or being sued in its artificial name forbids the corporate idea. But we see no real distinction in this respect between an act of Parliament, which authorized suits in the name of the Liverpool and London Fire and Life Insurance Company, and that which authorized suit against that company in the name of its principal officer. If it can contract in the artificial name and sue and be sued in the name of its officers on those contracts, it is in effect the same, for process would have to be served on some such officer even if the suit were in the artificial name. *576 It is also urged that the several acts of Parliament we have mentioned expressly declare that they shall not be held to constitute the body a corporation. But whatever may be the effect of such a declaration in the courts of that country, it cannot alter the essential nature of a corporation or prevent the courts of another jurisdiction from inquiring into its true character, whenever that may come in issue. It appears to have been the policy of the English law to attach certain consequences to incorporated bodies, which rendered it desirable that such associations as these should not become technically corporations. Among these, it would seem from the provisions of these acts, is the exemption from individual liability of the shareholder for the contracts of the corporation. Such local policy can have no place here in determining whether an association, whose powers are ascertained and its privileges conferred by law, is an incorporated body. The question before us is whether an association, such as the one we are considering, in attempting to carry on its business in a manner which requires corporate powers under legislative sanction, can claim, in a jurisdiction foreign to the one which gave those powers, that it is only a partnership of individuals. We have no hesitation in holding that, as the law of corporations is understood in this country, the association is a corporation, and that the law of Massachusetts, which only permits it to exercise its corporate function in that State on the condition of payment of a specific tax, is no violation of the Federal Constitution or of any treaty protected by said Constitution. Mr. Justice BRADLEY: Whilst I agree in the result which the court has reached, I differ from it on the question whether the company is a corporation. I think it is one of those special partnerships which are called joint-stock companies, well known in England for nearly a century, and cannot maintain an action or be sued as a corporation in this country without legislative *577 aid. But as it is a company associated under the laws of a foreign country, it comes within the scope of the Massachusetts statute, and cannot claim exemption from its operation for the causes alleged in that behalf. It could not have been the intent of the treaty of 1815 to prevent the States from imposing taxes or license laws upon either British corporations or joint-stock companies desiring to establish banking or insurance business therein. And certainly these companies cannot be exempted from such laws on the ground that citizens of other States have chosen to take some of their shares. JUDGMENT AFFIRMED. NOTES [*] 8 Wallace, 168.

582 F.2d 1276 Smithv.U. S. Board of Parole and Probation No. 77-2622 United States Court of Appeals, Third Circuit 8/10/78 1 W.D.Pa. AFFIRMED

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0299V Filed: February 5, 2019 UNPUBLISHED L.F., Petitioner, Special Processing Unit (SPU); Joint v. Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury SECRETARY OF HEALTH AND Related to Vaccine Administration HUMAN SERVICES, (SIRVA) Respondent. Amber Diane Wilson, Maglio Christopher & Toale, PA, Washington, DC, for petitioner. Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 Dorsey, Chief Special Master: On March 3, 2017, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that she suffered left shoulder/arm injuries casually related to the influenza vaccination she received on October 12, 2015. Petition at 1, ¶¶ 2, 11-12; Stipulation, filed Feb. 5, 2019, at ¶¶ 1-2, 4. Petitioner further alleges that she received the vaccination in the United States, suffered the effects of her injury for more than six months, and has not received compensation for her injury, alleged as vaccine caused. Petition at ¶¶ 2, 13, 15-16; Stipulation at ¶¶ 3-5. “Respondent denies that the flu vaccine caused petitioner to suffer from a left shoulder injury or any other injury or her current condition.” Stipulation at ¶ 6. Nevertheless, on February 5, 2019, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. The undersigned 1When this decision was originally filed the undersigned advised her intent to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner filed a timely motion to redact certain information. This decision is being posted with the redactions granted. Except for those changes and this footnote, no other substantive changes have been made. This decision will be posted on the court’s website with no further opportunity to move for redaction. 2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). finds the stipulation reasonable and adopts it as the decision of the Court in awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, the undersigned awards $146,706.40 as follows: 1. A lump sum payment of $137,574.80 in the form of a check payable to petitioner; and 2. A lump sum payment of $9,131.60, representing compensation for full satisfaction of the Medicaid payments made on behalf of petitioner by Health Care Service Corporation-IL, in the form of a check payable jointly to petitioner and Equian, LLC. Petitioner agrees to endorse this check to Equian, LLC. The undersigned approves the requested amount for petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master 3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 7, 2001 Session STATE OF TENNESSEE v. RAIN THOMAS CHESHER Appeal from the Circuit Court for Henry County No. 12936 Julian P. Guinn, Judge No. W2000-01701-CCA-R3-CD - Filed May 14, 2001 A jury convicted the Defendant of first degree premeditated murder, and he was sentenced to life imprisonment. In this direct appeal, the Defendant contends that he received ineffective assistance of counsel at trial and challenges the sufficiency of the evidence. We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J. and NORMA MCGEE OGLE , J., joined. Donald E. Parish, Huntingdon, Tennessee, for the appellant, Rain Thomas Chesher. Paul G. Summers, Attorney General and Reporter; Glen C. Watson, Assistant Attorney General; Robert Radford, District Attorney General; and Steve Garrett, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The Defendant, Rain Thomas Chesher, was indicted for first degree premeditated murder in connection with the stabbing death of his girlfriend, Cheryl Fain. A jury convicted the Defendant as charged, and he was sentenced to life imprisonment. In this direct appeal, the Defendant contends that he received ineffective assistance of counsel at trial because his lawyer failed to fully disclose a potential conflict of interest and because he did not object to the admission of the recording of a 911 phone call. He also challenges the sufficiency of the evidence. While we agree with the Defendant that his lawyer should have objected to the admission of the 911 call, we find that this error did not so prejudice the Defendant as to entitle him to a new trial. We find no error with respect to the alleged conflict of interest. We further find the evidence sufficient to sustain the Defendant’s conviction. Accordingly, we affirm the judgment of the trial court.  Joe Lamb1 was the Defendant’s uncle, and he lived in the basement of the Defendant’s mother’s house. Lamb had known the victim for one and a half to two years and described her relationship with the Defendant as “off and on a boyfriend and girlfriend relationship.” On the June 1999 night in question, Lamb had gone to bed sometime before ten o’clock. The Defendant and his friend Jimmy Dion Burr were in the house when Lamb went to bed; the victim was not. Lamb got up at about midnight and went upstairs to turn the stereo off; while he was in the living room, he noticed the Defendant and the victim sitting at the kitchen table. It appeared as though the Defendant was giving the victim a tattoo. Lamb also noticed Burr lying down on the couch in the living room. Lamb did not speak to anyone, nor anyone to him, and he returned to the basement after turning off the stereo. At about three a.m., Lamb heard the Defendant stomping on the floor above him and hollering for him to come upstairs. Lamb went up and found the Defendant “in a pretty disoriented state.” The victim was lying on the floor in front of the couch; the Defendant was holding a plastic bag over a wound in her chest. Lamb testified that there was blood all over the carpet and all over the victim. The Defendant told Lamb, “she’s dead,” or “she’s dying,” or “I killed her.” Lamb could not remember which of the three statements the Defendant actually made because he was “pretty shook up.” The Defendant asked Lamb, “What can I do?” and Lamb told him to call 911. The Defendant told Lamb that he could not do that, so Lamb stated that he would. The Defendant told Lamb not to call 911. Lamb called the Defendant’s mother and told her to come home immediately. Lamb then told the Defendant that he was going to call 911. When Lamb picked up the phone, the Defendant left, taking a small suitcase with him. Lamb took over holding the plastic bag to the victim’s chest. While Lamb was on the phone with the 911 dispatcher and waiting for the police to arrive, Burr came in. Burr told Lamb that he had been outside hiding. Lamb testified that Burr “wasn’t bloody or anything like that.” After the police and paramedics arrived, Lamb went into the bathroom and saw a pair of shorts on the floor with a knife lying on them. He recognized the knife as one he had given to the Defendant. He testified that he thought the shorts were the Defendant’s because he thought that was what the Defendant had been wearing when he went to bed. The recording of Lamb’s call to the 911 dispatcher was admitted into evidence and played for the jury with no objection from defense counsel. The phone call lasted for several minutes because the dispatcher wanted Lamb to stay on the line until the police arrived. The phone call begins with Lamb telling the dispatcher, “there’s been a stabbing 405 North Brewer Street, you need to send an ambulance and a squad car.” Lamb identified the victim as his nephew’s girlfriend and explained that she was still alive but had been stabbed in the chest. When the dispatcher asked if the perpetrator was still there, Lamb responded, “[t]he guy that did the stabbing run [sic],” and identified him as the Defendant, “Rain Chesher.” Lamb also offered a physical description and stated that the Defendant would “probably be driving an old yellow Toyota Celica,” adding that the 1 Lamb died prio r to the Defe ndant’s trial. His prelimin ary hearing testim ony was read to the jury and into the trial record. -2- Defendant had been gone about ten minutes. In response to further questions from the dispatcher, Lamb again stated the Defendant’s name, spelling it, as the person who had stabbed the victim. Gregory Alan Underwood, an officer with the Paris Police Department, testified that he arrived on the scene and saw Lamb and Burr in the living room. He explained that Burr was cooperative and never gave him cause to suspect that he was involved with the stabbing. Brian Charles Byrd, an agent with the Tennessee Bureau of Investigation (TBI), testified that he investigated the scene and took photographs. One of the photographs depicts the couch in the living room with large bloodstains. Another depicts the pants in the bathroom, also bearing bloodstains. Byrd found in these pants a wallet containing the Defendant’s Tennessee driver’s license. Byrd never developed any suspicions about Burr. Joseph Payne Minor, a TBI forensic scientist, testified that the blood found on the knife blade matched the blood on the couch and the blood on the pants found in the bathroom. This blood was from a human female. Officer Dennis Earl French went to the Defendant’s residence at about five o’clock that morning but did not find the Defendant home. French stayed and watched the house for approximately one and a half hours, at which point the Defendant came out of the woods wearing a camouflage coat, face paint and a ball cap. After the Defendant was taken into custody, Officer Jaque Bass interviewed him. According to Officer Bass, the Defendant kept repeating that he wanted something to eat and wanted a blood test. Officer Bass testified that the Defendant “appeared arrogant.” Pamela Sue Hudgins, the victim’s oldest sister, testified that the Defendant had called her in February 1999 and told her that he wanted her to decorate and deliver a cake to the victim. The Defendant wanted the cake to look like a broken heart with the words “you will reap what you sow” or “what comes around goes around” written on it. The Defendant also requested Hudgins to decorate the cake with black roses. When Hudgins responded that black roses meant death, the Defendant “laughed.” Hudgins testified that she refused to make the cake, but did not warn her sister or tell the police about the Defendant’s request. Jimmy Dion Burr testified that he had known the Defendant for fifteen years. He had met the victim about four or five months prior to her death. Burr testified that the victim had arrived at the Defendant’s mother’s house at about ten-thirty or eleven o’clock that night. He and the Defendant had been drinking beer all day; after the victim arrived, they went to a bar and drank some more. The threesome stayed at the bar until about midnight and then walked back to the house. Burr testified that the Defendant was “holding his own” with the alcohol. When they got back to the house, the Defendant got out his tattoo equipment and started working on a tattoo on the victim in the kitchen. Burr went into the living room and laid down on the couch. The Defendant came in and told him to get up so they could go get some more beer. Burr -3- declined, so the Defendant and the victim left and were gone twenty to twenty-five minutes. After they returned, the Defendant went to Burr, tapped him on the shoulder, and told him “to leave now or die.” Burr became frightened and left; he went outside and knelt beside Lamb’s truck in front of the house. The Defendant subsequently came outside and hollered for Burr; Burr remained silent and hidden. The Defendant went back into the house and then returned outside a few minutes later. He again hollered for Burr, and Burr stood up. Burr asked the Defendant what was going on and if the Defendant still wanted to kill him. The Defendant responded that he just wanted to talk. The Defendant then told Burr that Burr had two choices: he could “be an accomplice or a victim.” Burr told the Defendant he wanted nothing to do with it; it was crazy. The Defendant then tapped Burr on the cheek, smiled, and said, “You know what to do.” The Defendant then returned to the house. Burr remained outdoors and went to the side of the house, looking into one of the living room windows. He heard the victim say, “Don’t Rain, that hurts. Oh, please, I’ve got children.” Burr testified that when he heard the victim say that, he “knew what [the Defendant] was doing” and became convinced his own life was in danger. He went down the street and crossed it, hiding near an abandoned house in some tall weeds. About twenty minutes later, he testified, he saw the Defendant come out the front door with a suitcase, get in his car, and leave. On cross-examination, Burr admitted that he was in jail for hitting his ex-girlfriend. Dr. O’Bryan Clary Smith performed the autopsy on the victim. He testified that she died from a stab wound to the chest that punctured her heart and one of her lungs. He also observed bruises to the sides and the back of the victim’s head, a skin scrape on the right side of her neck, tears in her lips, and bruises to her tongue. Smith testified that these injuries were consistent with an attempted strangling or multiple blows with a fist. The Defendant testified, claiming that he remembered nothing about how the victim had been stabbed. He stated that he had been “drinking beer, eating Valiums and smoking crack” that day, and he had no recollection about what had happened. He testified, “if I did something to her, which I don’t -- I don’t know if I did or not, but if I did it was totally unintentionally because I loved that woman.” He admitted that the knife was his, but he did not know if the pants were. He stated the cake incident occurred in 1998 and claimed that it was inspired by the Rolling Stones song, “Dead Flowers.” He explained that the victim mentally abused him and had broken up with him again, causing him to want to “send her something dirty.” Psychologist John W. McCoy evaluated the Defendant prior to trial. McCoy testified that the Defendant initially told him that all he knew about the murder was that, when he came out of the woods, the police were at his house and arrested him. He did not know why he had been arrested until his mother told him later about the stabbing. The Defendant told McCoy, “They are alleging that I killed her, that’s all I know.” He told McCoy that the last thing he remembered about that night was giving the victim a tattoo and getting green tattoo ink on his face. The Defendant also told McCoy “that he believed that all of [his prior] legal trouble and the current legal trouble that he was -4- in was caused by alcohol and drugs.” Following his evaluation, McCoy made “no diagnosis of any mental condition.” On rebuttal, Michael John Little, a TBI forensic scientist, testified that he analyzed a blood sample drawn from the Defendant at nine-twenty on the morning of the murder. He found no traces of cocaine but found Valium within the therapeutic range. John W. Harrison, a TBI toxicologist, analyzed the blood for alcohol content and determined the level to be .07 gram percent. He stated that this level indicated a level of approximately .15 gram percent about five hours earlier. He also testified that the presumptive level of intoxication was .10 gram percent. INEFFECTIVE ASSISTANCE OF COUNSEL The Defendant contends that his trial counsel committed errors during his representation that were so grave and prejudicial as to entitle him to a new trial. Specifically, he contends that his trial lawyer should have declined his case because the lawyer had earlier represented the victim in a child support matter not involving the Defendant. He also contends that his trial lawyer should have objected to the introduction of the 911 tape as inadmissible hearsay2 and that his lawyer’s failure to do so renders the jury’s verdict unreliable. Upon our review of the record and relevant legal authority, we respectfully disagree with the Defendant and find that he is not entitled to a new trial on the basis of ineffective assistance of counsel. Both the Sixth Amendment to the United States Constitution and Article I, § 9 of the Tennessee Constitution guarantee a defendant the right to representation by counsel. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to counsel includes the right to effective counsel. See id.; Strickland v. Washington, 466 U.S. 668, 686 (1984). To determine whether counsel provided effective assistance at trial, the court must decide whether counsel’s performance was within the range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936; Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). To succeed on a claim that his or her counsel was ineffective at trial, a defendant bears the burden of showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed under the Sixth Amendment and that the deficient representation prejudiced the defendant resulting in a failure to produce a reliable result. Strickland, 466 U.S. at 687; Burns, 6 S.W.3d at 461; Hicks, 983 S.W.2d at 245. To satisfy the second prong, the defendant must show a reasonable probability that, but for counsel’s unreasonable error, the fact finder would have had reasonable doubt regarding the defendant’s guilt. See Strickland, 466 U.S. at 694-95. This reasonable probability must be “sufficient to undermine confidence in the outcome.” Id. at 694; see also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Owens v. State, 13 S.W.3d 742, 750 (Tenn. Crim. App. 1999). 2 “Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the ma tter asserted.” T enn. R. Ev id. 801(c ). Hearsay sta tements are generally inad missible. See Tenn. R. Evid. 802. -5-  When reviewing trial counsel’s actions, this Court should not use the benefit of hindsight to second-guess trial strategy and criticize counsel’s tactics. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Owens, 13 S.W.3d at 749. Counsel’s alleged errors should be judged at the time they were made in light of all facts and circumstances. See Strickland, 466 U.S. at 690; Hicks, 983 S.W.2d at 246. Claims of ineffective assistance of counsel are raised most frequently in petitions for post- conviction relief. Although such claims are cognizable on direct appeal, “raising the issue of ineffective assistance on direct appeal is a ‘practice fraught with peril.’” Thompson v. State, 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997) (citation omitted). This is because the defendant runs the risk of having the issue decided without the benefit of an evidentiary hearing, which might be the only way to demonstrate prejudice. Id. at 162. Under the current Post-Conviction Act, a defendant must prove his claim of ineffective assistance of counsel by “clear and convincing” evidence. See Tenn. Code Ann. § 40-30-210(f). Our Supreme Court has held that this same standard applies when the claim is brought on direct appeal. See State v. Burns, 6 S.W.3d 453, 461 n.5 (Tenn. 1999). With respect to the Defendant’s claim that his attorney had a conflict of interest sufficient to render his representation ineffective, we acknowledge that “an accused is entitled to zealous representation by an attorney unfettered by a conflicting interest.” State v. Thompson, 768 S.W.2d 239, 245 (Tenn. 1989). Also, “[t]o establish a denial of the sixth amendment right to counsel, it is sufficient to show that an actual conflict existed. If an attorney actively represents conflicting interests, no analysis of prejudice is necessary; it is presumed that his divided interests adversely affected his representation.” Id. (citation omitted). Here, however, there was no active representation of conflicting interests. The record contains an affidavit from the Defendant’s lawyer which states that he represented the victim in “case number 96-CR-00051 in Calloway County Circuit Court as to the charge of Flagrant Nonsupport.” The case number indicates that this charge was brought in 1996, several years prior to counsel accepting the Defendant’s representation. There is no proof in the record which indicates that the charge against the victim in any way involved the Defendant. The Defendant asserts in his brief that “the duty of confidentiality owed to Ms. Fain by [the Defendant’s lawyer] created a conflict of interest which should have resulted in [the Defendant’s lawyer] declining to represent [the Defendant].” The Defendant’s brief indicates that his lawyer should not have accepted his case because it “might [have] require[d] the disclosure of confidential information obtained in the course of representing [the victim].” We are puzzled by this argument. The Defendant cites no confidential information gleaned during the course of the Fain matter which defense counsel could or should have revealed to him in order to represent him, nor can we find any in the record before us. The prior representation was disclosed to the Defendant in a timely manner. No active conflict of interest existed that we can discern from the record. The Defendant having failed to prove by clear and convincing evidence that his lawyer was ineffective as a result of a conflict of interest, we find this issue to be without merit. However, we agree with the Defendant that his lawyer’s failure to object to the admission of the 911 tape was deficient. The tape was certainly prejudicial because, during his conversation with the dispatcher, Lamb identifies the Defendant as the perpetrator. Although other testimony -6- made clear that Lamb did not witness the stabbing and therefore must have been making an assumption, the evidence was nonetheless damaging to the Defendant’s case. Absent some tactical reason to the contrary, defense counsel should attempt to exclude as much of the State’s evidence against his or her client as legally possible. Here, defense counsel failed to make the necessary attempt, satisfying the first prong necessary to prove ineffective assistance of counsel under Strickland. The State argues that, even had the Defendant objected to the 911 tape at trial on the basis that it was hearsay, the evidence was still admissible under the “excited utterance” exception to the hearsay rule. See Tenn. R. Evid. 803(2). Accordingly, the State contends, defense counsel’s failure to make an objection did not prejudice the Defendant, and the Defendant therefore fails to satisfy the second prong required for a successful claim of ineffective assistance of counsel. We must agree. A statement which is otherwise inadmissible hearsay is admissible if it relates to a startling event or condition and was made while the declarant was under the stress of excitement caused by the event or condition. Tenn. R. Evid. 803(2). Thus, three requirements must be satisfied before a hearsay statement will qualify as an admissible excited utterance: first, there must be a startling event or condition; second, the statement must relate to the startling event or condition; and third, the declarant must still be under the stress of excitement from the event or condition when the statement is made. See State v. Carl McKissack, No. W1999-01136-CCA-R3-CD, 2000 WL 674591, at *4 (Tenn. Crim. App., Jackson, May 24, 2000). We have no doubt that a fatal stabbing qualifies as a startling event or condition. There is also no doubt that Lamb’s statements to the 911 dispatcher related to the startling event or condition. The issue for our determination, then, is whether Lamb was still under the stress of excitement from the stabbing while he was talking to the 911 dispatcher. The requirement that the declarant still be under the stress or excitement caused by the event or condition is the one which “relates most directly to the underlying rationale for the [excited utterance] exception [to the hearsay rule].” State v. Gordon, 952 S.W.2d 817, 820 (Tenn. 1997). “The ultimate test is spontaneity and logical relation to the main event and where an act or declaration springs out of the transaction while the parties are still laboring under the excitement and strain of the circumstances and at a time so near it as to preclude the idea of deliberation and fabrication.” State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993). However, [t]he time interval is but one consideration in determining whether a statement was made under stress or excitement: “Other relevant circumstances include the nature and seriousness of the event or condition; the appearance, behavior, outlook, and circumstances of the declarant, including such characteristics as age and physical or mental condition; and the contents of the statement itself, which may indicate the presence or absence of stress.” Gordon, 952 S.W.2d at 820 (quoting Neil P. Cohen, et al., Tennessee Law of Evidence § 803(2).2 at 534 (3rd ed. 1995)). -7-  The proof at trial established that Lamb called 911 only a short time after discovering the victim’s condition. He made the call while holding a plastic bag to the victim’s wound while she struggled to breathe. Lamb testified that when he saw the victim he was “pretty shook up.” He also testified that he couldn’t remember exactly what the Defendant had said to him about what had happened because “there was a lot going through my head at that time.” Lamb testified that he was “upset” when Burr came in while he was still on the phone to the dispatcher. The record contains an audiotape of the 911 call. This Court has listened to the tape and acknowledges that Lamb sounds neither hysterical nor highly agitated. However, this Court has no basis from which to draw conclusions regarding Lamb’s state of mind simply from the tone of his voice. People react differently to times of high stress and excitement. Lamb’s own testimony indicates that he was upset during the time he was on the phone with the dispatcher, and the circumstances in which he found himself certainly support that assertion. The nature and seriousness of the event were grave -- Lamb was trying to assist a dying woman. That Lamb suspected his own nephew of the crime added to the stressful circumstances facing him. The content of the 911 call -- the need for assistance to a fatally stabbed woman -- also indicates the presence of stress. Thus, the relevant circumstances surrounding the 911 call indicate that Lamb was speaking while under the stress of excitement caused by the stabbing. It is the Defendant’s burden to show, by clear and convincing evidence, that the tape was inadmissible. We find that the Defendant has failed to do so. Indeed, had defense counsel objected and the trial court ruled the tape admissible as an excited utterance, we would be reviewing the trial court’s ruling for an abuse of discretion. See State v. McLeod, 937 S.W.2d 867, 872 (Tenn. 1996) (trial court’s admission of hearsay reviewed for abuse of discretion). Under the circumstances surrounding the 911 call, we would have found no such abuse. Accordingly, while we agree with the Defendant that his trial lawyer should have objected to the admission of the 911 audiotape, we hold that his failure to do so did not so prejudice the Defendant as to call into question the reliability of the jury’s verdict. Moreover, as set forth below, we find that the evidence is sufficient to support the Defendant’s conviction even without the 911 tape. The Defendant has therefore failed to prove that he received ineffective assistance of counsel at trial, and this issue is without merit. SUFFICIENCY OF THE EVIDENCE We turn now to the Defendant’s claim that the evidence is insufficient to sustain his conviction. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence -8- was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In its review of the evidence, an appellate court must afford the State “the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re- weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs, 995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). A first degree premeditated murder is a killing done intentionally and with premeditation. See Tenn. Code Ann. § 39-13-202(a)(1). An intentional killing occurs when it is the defendant’s “conscious objective or desire to engage in” the killing or to cause the death. Id. § 39-11-302(a). A premeditated killing occurs when “done after the exercise of reflection and judgment.” Id. § 39- 13-202(d). That is, “the intent to kill must have been formed prior to the act itself,” although “[i]t is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time.” Id. “The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.” Id. Before a jury may infer premeditation, the proof must include the following: (1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design. State v. Schafer, 973 S.W.2d 269, 273 (Tenn. Crim. App. 1997) (citation omitted). In this case, all three of these evidentiary requirements have been met. That the Defendant planned to kill the victim is obvious from his statements to Burr that he “leave now or die” and that Burr could “be an accomplice or a victim.” As to motive, the proof established that the Defendant had had an on-again off-again romantic relationship with the victim in which, he testified, she mentally abused him, “run -9- [sic] around with other men,” and repeatedly broke up with him. The proof also established that the Defendant had made at least one prior effort to revenge himself on the victim by attempting to send her a threatening cake. One of the psychologists who evaluated the Defendant reported that the Defendant had stated to him that it was wrong to commit murder, “unless a person deserves it.” We think this proof establishes the Defendant’s motive of punishing the victim for romantically disappointing him. Finally, the proof established that the Defendant hit and/or strangled the victim, eventually killing her with his own knife by a single stab wound through her heart and one lung: evidence sufficient to allow a trier of fact to conclude that the killing was designed and intended. Thus, the evidence was sufficient to prove that the Defendant formed the intent to kill the victim after some amount of reflection and judgment. The evidence was also sufficient to prove that it was the Defendant who actually stabbed the victim to death. Lamb testified that he found the victim on the floor covered with blood and the Defendant holding a plastic bag to her chest, asking Lamb what he should do. When Lamb told him to call 911, the Defendant refused and tried to stop Lamb from calling. When Lamb did call, the Defendant left the scene, taking a suitcase with him. The Defendant did not go home but hid in the woods. Blood found on the Defendant’s knife matched the blood found on the couch and on the pants containing the Defendant’s wallet. This blood was that of a human female. Prior to his attack on the victim, the Defendant threatened Burr, telling him to either leave the house or die. The Defendant later asked Burr to assist him in committing a crime. Burr refused, but subsequently heard the victim state to the Defendant, “Don’t Rain, that hurts. Oh, please, I’ve got children.” The criminal investigation revealed no other suspects in the stabbing. The Defendant himself testified that he did not know how the victim came to be stabbed. He admitted that sometimes he blacked out just from being “very mad.” He testified that the victim had mentally abused him. He admitted that the murder weapon was his. This proof was more than sufficient to prove that the Defendant intentionally and with premeditation stabbed the victim to death. The Defendant’s issue regarding the sufficiency of the evidence is therefore without merit. The judgment of the trial court is affirmed. ___________________________________ DAVID H. WELLES, JUDGE -10- 

36 F.3d 1098 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Walter WHITFIELD, Plaintiff-Appellant,v.BIC CORPORATION and Societe Bic, Defendants-Appellees No. 93-1626. United States Court of Appeals, Sixth Circuit. Sept. 21, 1994. Before: MERRITT, Chief Judge; MILBURN and SILER, Circuit Judges. PER CURIAM. 1 This is a product liability suit in diversity, governed by Michigan law.1 Plaintiff Walter Whitfield sued defendants Bic Corporation of the United States and Societe Bic of France under theories of negligence and breach of implied warranty for injuries allegedly caused by his BIC lighter. The district court granted summary judgment to both defendants, finding that Whitfield had not made a prima facie showing as to either defendant's connection to the lighter. Because we find that there remain genuine issues of material fact as to one defendant, we remand for further proceedings in accordance with this opinion as to that defendant but we affirm as to the other defendant. I. 2 Whitfield suffered serious burns at a bar in Detroit, Michigan on December 11, 1989. He alleges that he lit a cigarette with a BIC lighter he had recently purchased at a local drug store; that he released the lighter mechanism and placed the lighter in the left breast pocket of his flannel shirt; and that a few seconds later the lighter re-ignited, setting his shirt on fire and burning him. The lighter was a full-size "Mod-II" disposable adjustable-flame butane cigarette lighter, bearing the BIC logo and trademark as well as the stamp "Made in Spain." All parties agree that the lighter was manufactured by Laforest Bic, S.A. ("BicSpain"), a Spanish corporation which is not a defendant in this case. 3 On June 20, 1991, Whitfield, a resident of Michigan, brought this suit in diversity under Michigan's product liability statute,2 naming as defendants Bic Corporation, a New York corporation headquartered in Connecticut ("BicAmerica"), and Societe Bic, S.A., a French corporation headquartered in Clichy, France ("BicFrance"). Whitfield served BicFrance with process under the provisions of the Hague Convention.3 Although he admits that the defendants suggested to him that BicSpain was the proper defendant, Whitfield did not name BicSpain as a party defendant because of the difficulty of serving process in a country he believed was not a signatory to the Hague Convention. (In fact, Spain became a party to the Hague Convention on June 4, 1987.) 4 To present a prima facie case under the Michigan products liability statute, a plaintiff must present evidence 5 . of a defect; 6 . of a causal connection between the defect and the injury; and 7 . that the defect was attributable to the defendant(s). 8 Gates v. Volkswagenwerk Aktiengesellschaft, 333 N.W.2d 34, 38 (Mich.App.1982); Holloway v. GMC, 250 N.W.2d 736, 737-38 (Mich.1977); Kupkowski v. Avis Ford, Inc., 235 N.W.2d 324, 328 (Mich.1975); Caldwell v. Fox, 231 N.W.2d 46, 50-51 (Mich.1975); Piercefield v. Remington Arms Co., 133 N.W.2d 129, 135 (Mich.1965). Both BicAmerica and BicFrance filed motions for summary judgment on the ground that they were the wrong party defendants, asserting that there was no demonstrable connection between them and the manufacture or sale of the lighter in question. The district court permitted limited discovery as to this issue only, and on April 25, 1993, granted the motions for summary judgment. II. 9 Whitfield asserts four theories for why BicFrance is a proper party defendant: (1) it controls BicSpain; (2) it succeeded to the liability of Flaminaire, another French company which designed a lighter known as the "Mod-I"; (3) it licensed the Flaminaire lighter design to BicSpain; and (4) it controls BicAmerica and its use of the BIC trademark. 10 Control of BicSpain. Whitfield argues that BicFrance is liable for BicSpain's manufacture of the lighter in question because BicFrance owns 67% of the stock of BicSpain. The district court is correct that neither majority stock ownership nor the sharing of directors and officers confers liability on the parent: 11 In order to establish a cause of action because a subsidiary is a mere instrumentality of its parent, the following must be proved: (1) control by the parent to such a degree that the subsidiary has become its mere instrumentality; (2) fraud or wrong by the parent through its subsidiary; and (3) unjust loss or injury to the claimant. 12 Maki v. Copper Range Co., 328 N.W.2d 430, 433 (Mich.1982). BicFrance and BicSpain have only one common director and officer (Marcel Bich, BicFrance's founder4), their books are separate, and no showing has been made that BicFrance fraudulently hides behind these corporate arrangements. Nor has Whitfield shown such actual control by the parent BicFrance that the subsidiary BicSpain has become a mere instrumentality. Nor can Whitfield claim "unjust loss or injury" because he has not shown that BicSpain is undercapitalized or in some way judgment-proof. Furthermore, as the district court pointed out, BicFrance only owned 30% of BicSpain's stock at the time of the injury, acquiring the remaining 37% in March 1990; even if ownership alone could as a matter of law raise a presumption of control it is therefore not clear that the facts of this case would support such a presumption. We therefore agree with the district court that Whitfield has not made a prima facie case for piercing the corporate veil as between BicFrance and BicSpain. 13 Successor Liability. In 1970, BicFrance purchased 100% of the assets of Flaminaire, a French company which had designed a full-size disposable adjustable-flame butane lighter known as the "Mod-I." Flaminaire ceased all operations at that point, and as part of this purchase BicFrance obtained the rights to the Mod-I lighter design. For Whitfield to prevail on a theory of successor liability he must show that Flaminaire would have been liable and that Flaminaire was merged into BicFrance in such a way that BicFrance assumed Flaminaire's liabilities. Pelc v. Bendix Machine Tool Corp., 314 N.W.2d 614, 618 (Mich.App.1981); Turner v. Bituminous Casualty Co., 244 N.W.2d 873, 879, 883-84 (Mich.1976). The district court dismissed this theory on the general ground that Whitfield had failed to connect the defective lighter to BicFrance. We need not grapple further with this question because any argument which would support this theory also supports a theory of BicFrance's direct liability for licensing the design to BicSpain. If Whitfield can show that the Mod-II lighter in question was manufactured according to the Flaminaire design (at least in relevant degree), then BicFrance is liable as the owner and licensor to the extent that the design can be shown to have caused Whitfield's injury (see discussion below). The extra step of successor liability adds nothing because such liability is an issue where the defective product was manufactured (or the defective design licensed) by the seller corporation before it was bought by and merged into the buyer corporation. Then the question is whether the buyer corporation has assumed responsibility for a product or design already in the stream of commerce. In the instant case, however, it was BicFrance and not Flaminaire which owned the design and licensed it to BicSpain. 14 Licensing. The Michigan product liability statute permits a suit "brought for ... injury to person ... caused by or resulting from the ... design ... of a product or a component of a product." Mich.Comp.Laws Ann. 600.2945. BicFrance licensed the Flaminaire design to BicSpain;5 the design was for a full-size, disposable, adjustable-flame butane lighter known as the Mod-I; and there is a question of fact as to what relationship the full-size, disposable, adjustable-flame butane Mod-II lighter at issue in this case bears to the Mod-I. None of the parties to this lawsuit have given the court sufficient explanation of the relation between these two lighter designs. While Whitfield asserts without evidence that the Mod-II is based on the Mod-I design, BicFrance asserts without evidence that the Mod-II is unrelated to the Mod-I and that it had no role in any modifications which BicSpain may have performed on the Mod-I design licensed to it by BicFrance. Neither of these parties attempts to explain how the two lighters are either similar or different. In addition, although BicFrance admits that it licensed the Mod-I design to BicSpain, it does not say what the terms of the Mod-I license were. 15 Although Michigan's law of corporations protects BicFrance from liability based merely on its majority ownership of its Spanish subsidiary (and probably its American as well), it is obvious that the relationship among the three is not arm's length. This tangle is part of our difficulty in addressing the relationship between the Mod-I and Mod-II lighters. For example, BicAmerica manufactured the Mod-I lighter from 1974 to 1977 and also manufactured the Mod-II lighter from 1976 to 1989. Joint Appendix at 152. BicAmerica says that it took the Mod-I (Flaminaire) design over from BicFrance and made it "its own."6 Since 1989, however, it has purchased Mod-II lighters made in France. We are left with too many questions: are the Spanish, American, and French Mod-II lighters identical in design? if so, do they descend from the Mod-I? to what degree? according to whose re-design? if not, how do they differ from each other and who is responsible for the design of the Spanish version? BicFrance refers in its brief to 16 evidence presented by [BicAmerica] ... that the original Flaminaire design has been changed over the years.... The design changes were not made by [BicFrance]. The original Flaminaire design was described as a Mod-I, while the lighter involved in this case is what is described as a Mod-II lighter. That Mod-II lighter has been modified and redesigned by parties other than Flaminaire and [BicFrance]. 17 BicFrance Brief at 16-17. Statements such as these are the sort of mere denials which do not defeat plaintiff's allegations for the purpose of summary judgment but instead raise questions of fact making the case unsuitable for termination at the summary judgment stage. A defendant moving for summary judgment cannot sustain his or her burden merely by denying the allegations in the nonmoving plaintiff's pleadings. McKinney v. Dole, 765 F.2d 1129, 1135 (D.C.Cir.1985); 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d Sec. 2727 at 131 & n. 11 (2d ed. 1983 & 1994 Supp.). Moreover, in one of its interrogatory answers BicFrance appears to admit that the Flaminaire design was the Mod-II design: 18 [QUESTION]: Who designed the full size adjustable disposable lighter which bears the Bic trade name and logo, and which ... has been distributed in the United States as the "Mod II adjustable" lighter? 19 RESPONSE: Flaminaire, S.A., a French corporation. 20 Joint Appendix at 136. In sum, we believe that the relation of the BicSpain lighter to the Flaminaire design owned by BicFrance is simply too open a question to be closed on summary judgment, and we therefore remand on this theory for further proceedings. 21 Control of BicAmerica. BicFrance also owns just under 63% of the shares of BicAmerica, which is the exclusive owner in the United States of the BIC trademark and logo. BicFrance founder Marcel Bich and his son Bruno are directors and officers of both companies.7 Bruno Bich is Chairman and Chief Executive Officer of BicAmerica. By the terms of a voting trust, Marcel Bich may vote all BicAmerica shares held by BicFrance, as well as by himself and his son Francois, with sole power, when he is in the United States, thus giving him singlehanded control of any shareholder vote.8 Whitfield argues that these facts add up to BicFrance's control of BicAmerica and its use of the BIC trademark and therefore to BicFrance's liability for BicAmerica's distribution of the lighter. Whitfield also correctly argues that a trademark licensor may be held liable for an injury caused by a product bearing that trademark if the licensor exercised sufficient control over the manufacturing, packing, or distribution of the product. See Kosters v. Seven-Up Co., 595 F.2d 347, 351-53 & n. 10 (6th Cir.1979). As the district court did not directly address either of these two theories of vicarious liability, however, we remand them for consideration below. III. 22 Whitfield's theory as to the liability of BicAmerica is: that he bought the lighter in the United States; that BicAmerica has exclusive ownership of the BIC name and trademark in the United States; that these facts create a rebuttable presumption that BicAmerica distributed the lighter in question; and that BicAmerica has not come forward with sufficient evidence to rebut that presumption. Whitfield asserts that BicAmerica's failure to sue any other entity for violating its exclusive trademark in the United States by selling the lighter in question supports the presumption that BicAmerica in fact distributed that lighter. 23 BicAmerica denies that any such presumption operates in this case and also asserts that it neither manufactures the Mod-II lighter itself nor buys any such lighter from BicSpain, the manufacturer of the lighter in question. BicAmerica does admit: that it formerly manufactured the Mod-II lighter, from 1976 to 1989, but that all such lighters bore the stamp "Made in U.S.A."; that the Mod-II lighters it has distributed since were manufactured in France and bear the stamp "Made in France"; and that the only lighter it buys from BicSpain is the "J-5" nonadjustable mini-lighter. BicAmerica produced numerous shipping receipts which seem to indicate purchases of "J-5" lighters from BicSpain. 24 BicAmerica has no duty either to defend its exclusive trademark through litigation or to accept responsibility for products distributed in the United States in violation of that trademark. BicAmerica filed affidavits in the record to show that it neither designed nor manufactured the lighter at issue; and that it did not buy, import or distribute the lighter. It further stated that it had not authorized any company to distribute full-size adjustable lighters of Spanish manufacture in the United States. This evidence was not refuted by the plaintiff. Rather, he relied upon the authority in Winfree v. Coca-Cola Bottling Works, 103 S.W.2d 33, 35 (Tenn.Ct.App.1937). In that case, although there was no direct evidence that the product, a soft-drink bottle, came from the defendant's plant, nevertheless the proof was that the store where the bottle exploded bought all of its Coca-Cola from the defendant. Therefore, it was reasonable to infer the bottle came from the defendant's plant. Whitfield suggests that a similar inference can be drawn here, although he has not shown that BicAmerica distributed lighters to the drug store in Detroit where this lighter was purchased. 25 Instead, as this is a diversity case applying Michigan law, the controlling case is Gates v. Volkswagenwek Aktiengesellschaft, 333 N.W.2d 34, 39 (Mich.Ct.App.1982), which held that where the plaintiff produced no evidence linking the product to a particular manufacturer, the plaintiff could not recover against that manufacturer. Therefore, the decision of the district court in granting summary judgment on behalf of BicAmerica is AFFIRMED. IV. 26 Whitfield moved to be allowed to amend his complaint to add a theory of "concert of action." The trial court denied this motion as futile, given that such a claim requires a showing of liability in both of the concerting defendants and that the court had already found that Whitfield had not demonstrated any real question of such liability. Even though we reverse the district court as to each of the two defendants, we affirm the district court as to this "concert" issue because we do not see that Whitfield has come forward with any evidence or even allegation sufficient to demonstrate that BicFrance and BicAmerica acted in concert. In Michigan, a plaintiff offering a theory of concert of action must show "that all defendants acted tortiously pursuant to a common design." Abel v. Eli Lilly & Co., 343 N.W.2d 164, 176 (Mich.1984); Cousineau v. Ford Motor Co., 363 N.W.2d 721, 728 (Mich.App.1985). In the instant case, if BicFrance is liable for Whitfield's injuries it is because it licensed a faulty design to the manufacturer of the lighter which burned him. If BicAmerica is liable for those injuries it is because it distributed the lighter which burned him. Between these two actions stands BicSpain, the manufacturer of the lighter, and no evidence is before us which would make the connection between the design and the distribution close enough for a reasonable jury to find a common scheme. 27 * * * 28 For the reasons set forth above, we AFFIRM the district court's denial of leave to plaintiff to amend his complaint and the district court's orders granting summary judgment as to defendant BicAmerica but reverse and REMAND to the district court as to BicFrance for further proceedings in accordance with this opinion. 1 The parties do not raise a choice of law issue. The district court found that "[u]nder the lex fori approach adopted in Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d 292 (1987), Michigan law applies to tort actions, absent a rational reason to displace it with the law of a foreign jurisdiction." Opinion and Order at 9 n. 2 A federal court sitting in diversity must apply the choice of law rules of the forum state, Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487 (1942), and this circuit has applied the Olmstead lex fori presumption in the products liability context. Mahne v. Ford Motor Company, 900 F.2d 83 (1990). Accordingly, Michigan law applies. 2 According to Michigan law, a products liability action is "an action based upon any legal or equitable theory of liability brought for or on account of death or injury to person or property caused by or resulting from the manufacture, construction, design, formula, development of standards, preparation, processing, assembly, inspection, testing, listing, certifying, warning, instructing, marketing, advertising, packaging or labeling of a product or a component of a product." Mich.Comp.Laws Ann. 600.2945 (emphasis added) 3 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague, Nov. 15, 1965, entered into force, Feb. 10, 1969, 20 U.S.T. 361, 658 U.N.T.S. 163. The United States was an original party 4 In its interrogatory responses, Societe Bic answered "No" to the question, "Does [sic] Societe Bic, S.A., and the Spanish company 'Laforest, S.A.,' have any common directors, officers, or other key employees?" Joint Appendix at 144. The district court found that they "do not share common directors, officers or key employees." Opinion and Order at 3. In its "Statement of Undisputed Facts in Support of the Pending Summary Judgment Motions," however, Societe Bic states that "the only officer or director of Societe Bic, S.A. which has participated in the management of Laforest, S.A. is Mr. Marcel Bich. He became a member of the board of directors on June 10, 1974 and became vice pres[id]ent on July 23, 1986." Joint Appendix at 112 5 The following is drawn from Societe Bic's interrogatory answers: QUESTION: [Did you] ever authorize[ ] anyone else to use the [Flaminaire] design[?] RESPONSE: Societe Bic, S.A., has authorized Laforest Bic, S.A. to manufacture full size adjustable lighters according to the design. Joint Appendix at 137. 6 "The BIC lighter with adjustable flame was originally designed by Flaminaire[.] ... [BicAmerica] has, however, adopted and approved the design as if it were its own." Joint Appendix at 152 7 As near as this court can tell, Marcel Bich is an officer and director of both Societe Bic and Bic Corporation, and Bruno Bich is an officer and director of Bic Corporation and a director of Societe Bic. See Joint Appendix at 136, 150. According to Bic Corporation's 1991 Annual Report, Bruno Bich was Chairman and Chief Executive Officer. Joint Appendix at 161 8 Societe Bic owns just under 63% of Bic Corporation shares. From the record before us we do not know how many shares Marcel and Francois Bich own, but clearly Marcel commands a controlling block of shares

FILED NOT FOR PUBLICATION MAY 31 2016 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT INTERNATIONAL ASSOCIATION OF No. 15-35747 SHEET METAL, AIR, RAIL AND TRANSPORTATION WORKERS, D.C. No. 2:15-cv-01270-RSL TRANSPORTATION DIVISION, AKA SMART-TD, MEMORANDUM* Plaintiff - Appellant, v. BNSF RAILWAY COMPANY, Defendant - Appellee. Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, Senior District Judge, Presiding Argued and Submitted April 4, 2016 Seattle, Washington Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges. The Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (“Union”), appeals the denial of a preliminary * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. injunction seeking to enjoin BNSF Railway Co. (“BNSF”) from making certain changes to employee availability rules without engaging in the major dispute bargaining process described in Section 6 of the Railway Labor Act. We affirm. BNSF proposed implementing certain changes with respect to three new inter- divisional services, claiming its actions were authorized by Article IX of the existing collective bargaining agreement (“CBA”). BNSF contends that the proposed terms to which the Union objects, involving turn-removal and predictive work schedules, are encompassed in the “hours on duty” and “other conditions of work” provisions that the carrier may impose in connection with establishing this inter-divisional service under Article IX. We agree with the district court that BNSF’s actions are arguably authorized by the existing CBA, and thus the Union’s dispute over the terms is appropriately characterized as a “minor” dispute under Consolidated Rail Corporation v. Railway Labor Executives’ Association, 491 U.S. 299 (1989) (“Conrail”). Disputes relating “either to the meaning or proper application of a particular provision with reference to a specific situation” are deemed “minor disputes.” Id. at 303 (quotation omitted). If an employer asserts a contractual right to take a contested action, “the ensuing dispute is minor if the action is arguably justified by the terms of the parties’ 2 collective-bargaining agreement,” that is, so long as the employer’s arguments are not “obviously insubstantial” or “frivolous.” Id. at 306-07. BNSF’s prior Section 6 major dispute notice, which sought to implement, among other things, similar changes to worker availability and scheduling but among a variety of carriers and lines nationwide, does not alter the nature of this particular dispute, which pertains only to BNSF’s proposed inter-divisional service in three specific locations and as arguably contemplated by Article IX. 1 Thus, the Union’s proper remedy is to seek binding arbitration to determine whether BNSF’s actions were, in fact, authorized by the existing CBA. 45 U.S.C. § 153; Conrail, 491 U.S. at 303-04. Because the dispute here is a matter of contractual interpretation left exclusively to the National Railroad Adjustment Board, we AFFIRM the denial of a preliminary injunction and REMAND with instructions to DISMISS the underlying suit for a lack 1 Issuing a Section 6 notice for a broader purpose does not automatically convert the more narrow issue here into a “major” dispute, because the threshold question is still whether or not a particular dispute may be resolved by interpreting the existing agreement. See, e.g., Conrail, 491 U.S. at 306 (“[T]he proper functioning of the statutory scheme requires the court to substitute its characterization [of the dispute] for that of the claimant.”); CSX Transp. Inc. v. United Transp. Union, 879 F.2d 990, 999 (2d Cir. 1989) (“It is [] necessary to address, as a threshold matter, the nature of the controversy between the parties.”); Chicago & N.W. Transp. Co. v. Ry. Labor Execs. Ass’n, 908 F.2d 144, 158 (7th Cir. 1990) (“Filing a Section 6 notice may kick off a major dispute; it does not transform a minor dispute into a major dispute.”). 3 of subject matter jurisdiction. See Ass’n of Flight Attendants v. Mesa Air Group, Inc., 567 F.3d 1043, 1049 (9th Cir. 2009). Each party shall bear their own costs on appeal. 4  FILED MAY 31 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Int’l Assn of Sheet Metal etc v. BNSF Railway Company, Case No. 15-35747 Rawlinson, Circuit Judge, concurring in the judgment: I concur in the judgment affirming the denial of a preliminary injunction and remanding for dismissal due to lack of subject matter jurisdiction. I write separately to expressly disavow any reliance on the out-of-circuit authority cited in the main disposition. 1 

288 F.2d 955 Application of Elbert O. THOMPSON. Patent Appeal No. 6598. United States Court of Customs and Patent Appeals. April 14, 1961. Philip A. Mallinckrodt, Salt Lake City, Utah, for appellant. Clarence W. Moore, Washington, D. C. (Raymond E. Martin, Washington, D. C., of counsel), for Commissioner of Patents. Before WORLEY, Chief Judge, RICH, MARTIN and SMITH, Judges, and Judge WILLIAM H. KIRKPATRICK.1 KIRKPATRICK, Judge. 1 This appeal is from the decision of the Board of Appeals of the Patent Office affirming the examiner in his rejection of claims 7, 8, 15, 16 and 17 of a patent application, serial No. 411,510, filed by Elbert O. Thompson for a "Method of Dentistry and Apparatus Therefor." Broad method claims 20 to 24, inclusive, have been relinquished and all the claims now in issue are for apparatus. 2 The main purpose of the apparatus claimed, as set out in the specification, is the evacuation from the mouth of a patient undergoing dental treatment of a sufficient volume of water to allow the dentist to use a relatively heavy wash stream when playing water upon the tooth being drilled. The specification points out that the two types of ejectors in general use are both unsatisfactory — the conventional saliva ejector, because it lacks the capacity to carry off a stream of water of the volume which the applicant considers desirable, the customary surgical aspirator, because it employs suction of such strength that it may injure the delicate tissues of the patient's mouth. Apparently, an ordinary vacuum cleaner, when operatively connected with a tube, gives the proper suction to allow dental operations to be carried on under a sizeable stream of water without danger of injury to the patient.1 This record discloses nothing to indicate that the invention does not accomplish its purpose. 3 Claim 15 may be taken as a basis for discussion and is as follows: 4 "In evacuation apparatus for dental and surgical work utilizing a stream of fluid projected on an area being worked upon, said apparatus including a fluid-conducting tube, at least the outer reach of which is flexible and of length adapted for manipulation relative to a patient and is provided at the outer, intake end thereof with inflow orifice means, air-suction means operatively connected with said tube, and a liquids and solids entrapment device interposed between said tube and said air-suction means, in fluid-flow communication therewith, the improvement, comprising a fluid-conducting tube and inflow orifice means as specified which has inflow and conducting capacities, respectively, of at least approximately eight cubic feet of air and entrained matter per minute; and air-suction means as specified which has an exhaust to atmosphere and is capable in normal operation of evacuating from the patient said approximately eight cubic feet of air and entrained matter per minute through said tube and orifice means and which does not develop a static suction of more than approximately five inches of mercury at the said inflow orifice means." 5 The board rejected all the claims now before the court upon a single reference, namely, Martinet 2,627,937. 6 Martinet's device is simply a vacuum cleaner of the canister or vertical tank type and, like most if not all cleaners of that type, has a filter device in the tank to protect the motor-fan unit in the dome and to retain and collect in the tank the dust, dirt and foreign material picked up by the cleaner in use. The board held that Martinet's apparatus, which has the volumetric capacity and static suction specified in the appellant's claim, has suction means and a flexible hose which fully meet the corresponding elements of the claims. 7 As to the entrapment device, the appellant concedes that certain elements appearing in his specification and drawings are identical with the paper cone and tank of Martinet but contends that those elements are not the claimed "liquids and solids entrapment device interposed between said tube and said air-suction means." That, he says, is to be found in a different filter receptacle through which the tube passes, disclosed in the specification and drawings as being placed outside of the tank of the vacuum cleaner and at a distance from it. 8 Claim 15 calls for only one entrapment device and, if the Martinet structure has an entrapment device which meets the language of the claim, it is immaterial that the appellant's specification and drawings show an additional one, not claimed. The question, therefore, is whether Martinet's paper cone and receptacle meet the language of the claim. We think they do. 9 The appellant contends that the "air-suction means" of claim 15 is the entire vacuum cleaner including both the entrapment portion consisting of the filter cone and receptacle and the motor-fan suction unit in the dome of the receptacle. Therefore, he says, since the filter cone and receptacle in the vacuum cleaner are a part of the air suction means, one must look to the external filter receptacle for the entrapment device of the claim. Inasmuch as the motor-fan unit of Martinet can be aptly described as "air-suction means" without including the entrapment assembly consisting of the bowl and receptacle, this argument is an attempt to limit the claim by the specification, which is inadmissible. Hence, claim 15 reads directly on Martinet and cannot be allowed. 10 As stated, an element not claimed may not be supplied by the specification and the specification may be resorted to only in case of ambiguity in the claim. In the present case, if there were any ambiguity as to what elements the phrase "air-suction means" refers to, it would not be resolved in the appellant's favor by the specification. Where the specification refers to the vacuum cleaner as a whole, including all its various elements, it is called, not "air-suction means," but "suction cleaner unit" and in several places is identified by the numeral 18 which, in the drawings, marks the entire unit. On the other hand, where the specification is dealing with just the motor and fan in the dome of the vacuum cleaner, the term "motor-fan unit" is used with the identifying numeral 23. The terms being thus defined, it is clear that, when the appellant describes his entrapment device as being between the tube and the air suction means, he has aptly and accurately located Martinet's cone filter entrapment device. 11 It is true that claim 15 calls for a "liquids and solids" entrapment device, but, as has been pointed out, the claim does not call for two entrapment devices, and the bowl of Martinet with its paper cone and disc filters is capable of entrapping both liquids and solids. In fact, the appellant, who freely concedes that his cone and bowl construction and Martinet's are identical, points out in his specification that "Any moisture (liquid) * * * which may escape elimination * * * will be deposited in suction cleaner receptacle 19 or caught by filter cone 25." That is saying, in effect, that both his and Martinet's device will entrap water and, of course, solids. In short, claim 15, construed broadly, as we are bound to construe it, is not limited to a structure supplied with a separate catch receptacle external to the tank. 12 Claim 16 merely limits the air suction means of claim 15 by specifying that it shall be a fan. Claim 16, therefore, must fall with claim 15. 13 Claim 7 further limits claim 16 by specifying that the air evacuation unit shall consist of the receptacle and filter as well as the other structures of Martinet. This limitation, when inserted in claim 15 in lieu of the "air-suction means," does accomplish the result contended for by the appellant, that is, it includes the entrapment device of Martinent within the appellant's "air-suction means," and we must look to the specification to find the claimed liquids and solids entrapment device. They appear as the external filter receptacle, thus distinguishing the structure from that of Martinet. 14 Claims 17 and 8 stand upon a different basis. Like claim 15 they call for "a liquids and solids entrapment device interposed between said tube and said air-suction means" but add a "removable and water-resistant filter receptacle disposed within the entrapment device for catching and retaining solid matter carried by the incoming stream of air" (claim 17) or "the entrapment device includes, internally thereof, a removable, water-resistant, filter receptacle for solid matter removed from the stream of air" (claim 8). Martinet does not disclose such a structure since his only entrapment or catch device consists of the cone and the bowl taken together. The bowl is a receptacle but it is not "disposed within" itself. The cone is not a "receptacle" because the material which it collects would be deposited on its external surface rather than in the interior as would be the case if the word "receptacle" described it. 15 Claim 17, 8 and 7, therefore, do not read on the Martinet disclosure. Inasmuch as there is no other art cited against the application and the board's decision rests entirely upon Martinet, we hold that the decision is erroneous as to claims 17, 8 and 7, and it is reversed as to those claims. 16 The decision is affirmed as to claims 15 and 16. 17 Modified. Notes: 1 United States Senior District Judge for the Eastern District of Pennsylvania, designated to participatein place of Judge O'Connell, pursuant to provisions of Section 294(d), Title 28 United States Code. 1 The specification says, "As aforestated, there are commercially available suction cleaner units which satisfy all the requisites of this invention."

CONCURRING OPINION No. 04-08-00379-CV Patrick KIMBRELL, M.D. and John Horan, M.D., Appellants v. Jeremy MOLINET, Louis Molinet and Miriam Molinet, Appellees From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2005-CI-14669 Honorable Joe Frazier Brown, Jr., Judge Presiding Opinion by: Catherine Stone, Justice Concurring opinion by: Rebecca Simmons, Justice Sitting: Catherine Stone, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice Delivered and Filed: December 31, 2008 I concur in the judgment of this case, but I write briefly to encourage the Texas Legislature to clarify the interaction between sections 33.004(e) and 74.251 of the Civil Practice and Remedies Code. A. Applicability of Chapter 33, Proportionate Responsibility The legislative history of Chapter 33, its structure, and its plain language suggest that it applies to “any cause of action based on tort in which a defendant, settling person, or responsible T:\West\08-00379 Kimbrell v. Molinet.doc  04-08-00379-CV third party is found responsible for a percentage of the harm for which relief is sought” other than specific enumerated exceptions. TEX. CIV. PRAC. & REM. CODE ANN. § 33.002(a)(1) (Vernon 2008). Key to the application of Chapter 33 is the ability of defendants to liberally designate responsible third parties regardless of limitations or personal jurisdiction. Id. § 33.004(f), (g), (i), (j). Yet this court’s application of section 74.251’s limitations period to Chapter 33 bars the claimant from exercising a reciprocal statutory right to join designated responsible third parties regardless of limitations. Such a result creates an inequity and potential for abuse the Legislature may not have anticipated. 1 B. Interaction Between Chapter 33 and Chapter 74 The majority’s opinion correctly identifies the tension between chapter 33 and chapter 74 of the Texas Civil Practice and Remedies Code. See id. § 33.004; id. § 74.251 (Vernon 2005). There were compelling reasons behind the Legislature’s enactment of a two year statute of limitations for health care liability claims. 2 See Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983) (noting the purpose of the act “was to provide an insurance rate structure that would enable health care providers to secure liability insurance”). Likewise, there are compelling reasons behind the application of proportionate responsibility to any cause of action so that all responsible persons are before the court. In reviewing the legislative intent behind the enactment 1 At least one legislator, Senator Ratliff, did not anticipate the result of this court’s analysis. When asked during floor debates whether the sixty day time period for a plaintiff to join a designated responsible third party, regardless of limitations, applied to a medical malpractice claim, Senator Ratliff responded: “Yes, if health care providers are going to have the benefit of the designation of responsible third parties, then they have to abide by the same rules as everyone else. This 60-day provision would apply in health care liability claims.” S.J. of Tex., 78th Leg., R.S. 5005 (2003), available at http://www.journals.senate.state.txs.us/sjrnl/78R/pdf/SJ06-01-F.pdf. 2 The Medical Liability and Insurance Improvement Act reinstated the two year statute of limitations for medical malpractice claims. Medical Liability and Insurance Improvement Act of Texas, 65th Leg., R.S., ch. 817, § 1, sec. 10.01, 1977 Tex. Gen. Laws 2039, 2052, amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 872. Article 4590i of the Revised Civil Statutes became section 74.251 of the Civil Practices and Remedies Code. The language in section 74.251(a) is identical to that of article 4590i except for three non- substantive changes. See generally Joseph P. Witherspoon, Constitutionality of the Texas Statute Limiting Liability for Medical Malpractice, 10 TEX. TECH. L. REV. 419, 428 (1978) (listing a purpose of the Medical Liability and Insurance Improvement Act as intending to protect “physicians, hospitals, and other health care providers from drastically increasing insurance rates”). -2-  04-08-00379-CV of Chapter 33 and the 2003 amendments thereto, the Texas Supreme Court noted “[t]he Legislature seemed intent on creating a general scheme of proportionate responsibility for tort claims, subject to specific statutory exclusions.” F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 692 (Tex. 2007). It is the history of Chapter 33, and the resulting framework that makes apparent the inequity and potential for abuse inherent in refusing to afford the claimant his statutory right to join designated responsible third parties regardless of limitations. C. History of Proportionate Responsibility In 1987, the Legislature replaced comparative negligence with comparative responsibility thereby “replac[ing] the existing statutory and common law schemes.” JCW Elecs., Inc. v. Garza, 257 S.W.3d 701, 703 (Tex. 2008). 3 In 1995, the 74th Legislature “amended Chapter 33 by replacing comparative responsibility with proportionate responsibility.” 4 Id. The 1995 amendments eliminated the list of specific theories of liability to apportion, “providing instead that the chapter should apply ‘to any cause of action based on tort.’” Id. at 704. The statute allowed the defendant to join any responsible third party in the litigation. With some exceptions, joinder was not available if the action was barred by limitations, lack of personal jurisdiction, or subject matter jurisdiction. Act of May 10, 1995, 74th Leg., R.S., ch. 136, § 1, secs. 33.004(d), (e), 33.011(6)(A), 1995 Tex. Gen. Laws 971, 973 (amended 2003) (defining a responsible third party, in part, as a person over whom the court could exercise jurisdiction). In 2003, Chapter 33’s proportionate responsibility framework was amended to significantly liberalize the defendant’s ability to seek to shift or spread liability to others. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.01–.12, 2003 Tex. Gen. Laws 847, 855–59 3 Citing Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, §§ 2.03–.11B, 1987 Tex. Gen. Laws 37, 40–44, amended by Act of May 10, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 971–75. 4 Citing Act of May 10, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 971–75, amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.01–.12, 2003 Tex. Gen. Laws 847, 855–59. -3-  04-08-00379-CV (codified at TEX. CIV. PRAC. & REM. CODE ANN. § 33.002–.017 (Vernon 2008)). Under the amended section 33.004, the defendant could merely designate a responsible third party rather than join the responsible third party in the lawsuit as previously required. 5 Further, the definition of a responsible third party was broadened to include “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6) (Vernon 2008). The 2003 amendments’ expanded definition applies regardless of whether the court has jurisdiction over the person or whether he could have been sued by the claimant. Id. § 33.011. Moreover, if the defendant properly designates a responsible third party by filing a motion for leave, the court must grant leave if there is no objection within fifteen days. Id. § 33.004(f). Even if there is an objection, the court must grant the designation unless the defendant did not plead sufficient facts concerning the alleged responsibility of the designated responsible third party. Id. § 33.004(g)(2). Finally, the designation of a responsible third party may not be used in any other proceeding to impose liability on the designee. Id. § 33.004(i)(2). D. Balancing Defendant’s Designations with Plaintiff’s Joinders As noted above, under the 2003 amendments, the defendant may designate responsible third parties regardless of whether the limitations period would bar the claimant’s joinder of the designee in the lawsuit. Along with the defendant’s right to designate time-barred responsible third parties, the Legislature provided the claimant a reciprocal right: If a person is designated under this section as a responsible third party, a claimant is not barred by limitations from seeking to join that person, even though such joinder would otherwise be barred by limitations, if the claimant seeks to join that person not later than 60 days after that person is designated as a responsible third party. 5 Compare TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a) (Vernon 2008) (permitting designation), with Act of May 10, 1995, 74th Leg., R.S., ch. 136, § 1, sec. 33.004(a), 1995 Tex. Gen. Laws 971, 972 (amended 2003) (requiring the defendant to join the third party). -4-  04-08-00379-CV TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(e) (Vernon 2008). Balancing the defendant’s ability to designate a time-barred party with the claimant’s ability to join a time-barred designee in the lawsuit benefits both parties. The defendant benefits from being able to designate responsible third parties irrespective of any limitations bar. The claimant benefits because, with a designee’s joinder not barred by limitations, the defendant may be more circumspect in designating responsible third parties who may become co-defendants intent on reducing their proportionate responsibility. Likewise, aware of the potential for joinder, the designated responsible third party may be more assertive in disclaiming responsibility than if joinder were unavailable. 6 Because the majority holds section 74.251’s “[n]otwithstanding any other law” provision prevents the plaintiff from joining a designated responsible third party under section 33.004(e), the statutory scheme becomes unbalanced. A plaintiff may be forced to expend considerable time and expense to prevent the defendant from shifting liability to a designated responsible third party from whom the plaintiff cannot recover. In a health care liability claim, the unchecked ability of a defendant to designate a time-barred responsible third party may invite mischief. For example, a defendant could wait until section 74.251’s limitations period runs to designate a limitations-barred responsible third party and argue the designee is largely or solely liable for plaintiff’s damage. The designee, knowing that she is not at financial risk, may have little incentive to assiduously contest liability or shift her alleged responsibility to the named defendant. See id. § 33.004(i). Presented with a passive designee and the defendant’s bold assertions of blamelessness, the jury likely may apportion responsibility to the designee from whom the plaintiff cannot recover. Under this scenario, the proportionate responsibility 6 There is no requirement under Chapter 33 to notify the responsible third party of its designation. TEX. CIV. PRAC. & REM. CODE ANN. § 33.004 (Vernon 2008). -5-  04-08-00379-CV framework becomes unbalanced and there is no check on the unbridled designation of responsible third parties otherwise barred by limitations. The designation of responsible third parties within the proportionate responsibility framework developed by the Legislature was balanced. The defendant was given more latitude to designate time-barred responsible third parties and the claimant was given a counterbalancing right to join the designees in the suit. The application of section 74.251 to remove the plaintiff’s ability to join the designated responsible third party results in an imbalance in the framework. There is no deterrent to designating as many time-barred responsible third parties as possible, and no incentive for such designees to vigorously contest responsibility. In essence, the plaintiff is left in the position of having to prove the liability of the party defendant while at the same time defending the empty chair designees. The Legislature developed the proportionate responsibility framework with checks and balances to preclude such an unfair result, but it may not have considered the impact of section 74.251 which bars plaintiff’s statutory right to join a time- barred responsible third party in a health care liability case. Unfortunately for proportionate responsibility, without further clarification from the Legislature, there is no check and the balance is gone. Rebecca Simmons, Justice -6- 

5 N.Y.3d 716 (2005) MATTER OF DESIC v. FAIRFIELD PROPS. Court of Appeals of the State of New York. Decided November 21, 2005. Motion for leave to appeal denied.

22 F.3d 301 In re East Wind Industries, Inc. (Two Cases); Juve (RobertD.), Trustee for Bearfoot Corporationv.East Wind Industries, Inc., U.S. , Unsecured CreditorsCommittee, U.S. Trustee (Two Case); In re Delaware EastWind, Inc.; Levy, Angstreich, Finney, Baldante, Mann &Burkett, Special Counsel on Behalf of Debtor in Possession,Delaware East Wind, Inc. v. Juve (Robert D.), Trustee,Delaware East Wind, Inc. NOS. 93-5406, 93-5441 United States Court of Appeals,Third Circuit. Mar 07, 1994 1 Appeal From: D.N.J. 2 AFFIRMED.

536 S.W.2d 804 (1976) John DEFFORD, Appellant, v. ZURHEIDE-HERMANN, INC., Respondent. No. 36881. Missouri Court of Appeals, St. Louis District, Division Three. March 16, 1976. Motion for Rehearing or Transfer Denied April 13, 1976. Application to Transfer Denied June 14, 1976. *805 Roger M. Hibbits, Florissant, for appellant. Thomas, Busse, Goodwin, Cullen, Clooney & Ottsen, Donald H. Clooney, St. Louis, for respondent. GUNN, Judge. Plaintiff-appellant John Defford appeals from a judgment of the trial court sustaining *806 a motion to dismiss Defford's five count petition requesting that a default judgment be set aside and for other relief. We affirm the trial court's action. In the tedious journey to the denouement of this case, we must briefly indite the past involutions of this terribly jaded litigation which lead to its present status. The germ root of this litigation was planted long ago—August 11, 1967—when Zurheide-Hermann, Inc. (defendant-respondent here) filed suit for breach of contract against Defford and three corporations.[1] Answers and a reply were filed on behalf of Defford and the other defendants. Many days and legal maneuverings passed, including the withdrawal of Defford's attorneys on June 9, 1969. On July 19, 1969 Zurheide-Hermann filed interrogatories to be answered by Defford with copies of the interrogatories served on Defford by registered mail. On August 27, 1969 Zurheide-Hermann filed a motion to compel Defford to answer the interrogatories with notice that the motion to compel answers was set for hearing on September 5, 1969. At the September 5 hearing, for which Defford did not appear, the trial court sustained the motion to compel answers and set September 20, 1969 as the date by which Defford was to answer the interrogatories with failure to do so to result in the striking of Defford's pleadings. Defford was notified of the trial court's action, and still nothing was forthcoming from him or any of the corporate defendants. On September 29, 1969 default and inquiry was granted to Zurheide-Hermann, and Defford's and the other defendant's pleadings were thrown out. On October 21, 1969 Zurheide-Hermann's motion for default judgment was heard and granted with judgment entered against Defford and the other defendants for $31,350.57.[2] On September 28, 1972, nearly three years after the entry of the default judgment, Defford and the corporate defendants filed a joint motion to set aside the judgment. The allegation was made that the default judgment was defective for irregularities patent on the face of the record. Defford's argument was that he was never in default; that the interrogatories and motion to compel answers were improperly mailed; and that inadequate notice was given of the hearing to compel answers or strike defendant's pleadings.[3] The trial court overruled Defford's motion to set aside the default judgment, and the trial court's ruling in that regard was appealed to the Missouri Supreme Court. On December 14, 1973, the Supreme Court in Zurheide-Hermann, Inc. v. London Square Development Corp.,[4] 504 S.W.2d 161 (Mo. 1973), found that the default judgment was not defective and affirmed the trial court's order overruling Defford's motion to set aside the judgment. Specifically, the Supreme Court found that the written interrogatories, motions to compel answers and notices of hearing on the motion to strike pleadings were properly served. It was held that Defford was afforded adequate notice and opportunity to be heard. All of the foregoing brings us to the controversy confronting this court. Having failed before the Supreme Court to have the default judgment set aside for errors patent on the pleadings, Defford, on August 9, 1974, as plaintiff to this case, filed a five count petition seeking: 1) to set aside the default judgment of October 21, 1969, by writ of coram nobis on the ground that Zurheide-Hermann had committed fraud in failing to carry out a settlement agreement; 2) that the judgment be set aside for fraud; 3) that judgment be entered *807 in Defford's favor on the alleged settlement; 4) that damages be awarded Defford by reason of Zurheide-Hermann's malicious prosecution of the default judgment; 5) that garnishment and execution by Zurheide-Hermann on the default judgment be quashed. The basic thrust of Defford's new suit is whether Zurheide-Hermann obtained the default judgment against Defford by fraud. Going to the heart of Defford's current action, which is the five count petition against Zurheide-Hermann,[5] is Defford's allegation that before the default was entered, the case had been settled as to him. According to Defford it was agreed that Zurheide-Hermann would dismiss the action against Defford and Project Development Leasing, Inc. and take a consent judgment against the other defendants. Supposedly, the settlement agreement that the action against Defford would be dropped took place while Defford was represented by counsel (prior to June 9, 1969, the date when Defford's attorney withdrew). Thus, according to Defford, all the actions of Zurheide-Hermann in serving interrogatories, motions, notices and the taking of the default judgment during the months of August, September and October were contrary to an alleged agreement made sometime prior to June, 1969. Accordingly, Defford alleges the default was obtained by deceit and fraud. Zurheide-Hermann as defendant in this action filed a motion to dismiss Defford's petition, or in the alternative, to make it more definite. The trial court sustained Zurheide-Hermann's motion to dismiss, and Defford's motion to set aside the motion, or, in the alternative, motion for new trial was overruled. Defford initially asserts that after the trial court had dismissed his petition, opportunity should have been given to him to amend his petition and present evidence to counter Zurheide-Hermann's allegations in its motion to dismiss. Defford also complains that the trial court failed to make written findings of fact or conclusions of law in support of its rulings. We forebear any discussion as to these assertions, for we find that the trial court was correct in dismissing Defford's petition. For the reasons which follow, Defford failed to state a cause of action, and no further evidence or amendment of petition would enable him to do so. The first issue, which we consider as raised by Defford is that the default judgment of October 21, 1969, should have been set aside in equity on the ground of fraud in the procurement. Defford contends that prior to the entry of the default judgment that a settlement had been reached between Zurheide-Hermann and him; that in view of the settlement, the default judgment was fraudulently obtained. We find that Defford's action in this regard is barred by the doctrine of res judicata and by Defford's own inaction. At the outset of this proceeding, Zurheide-Hermann filed a motion to dismiss Defford's petition, asserting as one of its grounds that the doctrine of res judicata proscribed Defford's action. In support of the motion to dismiss, Zurheide-Hermann submitted an affidavit as to the facts and circumstances of the previous litigation involving Zurheide-Hermann's default judgment against Defford with a copy of the Supreme Court's opinion in Zurheide-Hermann, Inc. v. London Square Development Corp., supra (the default judgment appeal based on errors patent) and a copy of the transcript of proceedings in that case. The issue of res judicata was thus properly raised by Zurheide-Hermann in this case, although Defford contends that res judicata may not be raised in a motion to dismiss. As stated in State ex rel. United States Fidelity & Guaranty Co. v. Walsh, No. 36,050 (Mo.App.St.L.Dist. Dec. 23, 1975): "[R]es judicata may be raised by a `speaking motion to dismiss' even though it is *808 an affirmative defense under Rule 55.27 if it will dispose of an action groundless on the merits [cites omitted]." A "speaking motion to dismiss" for failure to state a claim upon which relief can be granted, by referring to material not in the pleadings, such as a prior judgment, becomes in effect a motion for summary judgment. State ex rel. United States Fidelity & Guaranty Co. v. Walsh, supra; Rule 55.27(a). The facts and circumstances contained in the Supreme Court's decision in Zurheide-Hermann, Inc. v. London Square Development Corp., Inc., supra, and the accompanying affidavit and transcript of proceedings in the default judgment case establish that there is no genuine issue in this case as to any material fact. Therefore, Zurheide-Hermann is entitled to summary judgment as a matter of law. Kuhlman Plastics Co. v. Kansas City Power & Light Co., 400 S.W.2d 409 (Mo.1966). As shall be discussed hereinafter, the Supreme Court opinion in the default judgment case (Zurheide-Hermann, Inc. v. London Square Development Corp., supra) and the accompanying transcript show irrefutably that this action is interdicted by the doctrine of res judicata. It would therefore be unavailing to allow Defford additional time to submit evidence in opposition to Zurheide-Hermann's motion to dismiss or to allow him to amend his pleadings, and the trial court did not err in refusing to do so. Defford contends that the doctrine of res judicata cannot apply because the parties to the default judgment proceeding and this case are not identical. Defford points to the initial suit where Zurheide-Hermann sued Defford and certain other corporations as parties defendant while in this suit Defford has sued Zurheide-Hermann, Inc. and three individual agents of Zurheide-Hermann, Inc. who were not parties to the original action. Defford's position in this regard is untenable. It is true that parties to the former and subsequent actions must be the same. Plaza Express Co. v. Galloway, 365 Mo. 166, 280 S.W.2d 17 (banc 1955); Woodford v. Ill. Central Gulf RR Co., 518 S.W.2d 712 (Mo. App.1974). But that tenet is sufficiently met in this case. The fact is that the three individual agents of Zurheide-Hermann have no place in this suit to set aside a judgment in the prior suit to which they were not parties. The addition of the three individuals to this litigation does not affect the res judicata doctrine, "because one who has had his day in court may not reopen the identical issues by merely adding new parties who are unnecessary to the determination of those issues." Reis v. La Presto, 324 S.W.2d 648, 653 (Mo.1959). The individual agents of Zurheide-Hermann, Inc. are not necessary to the determination of the issues here. Furthermore, the fact that all the parties to the former litigation (the corporate defendants in the default case against Defford, et alii) are not included here does not preclude the application of the res judicata doctrine to this case. In re Delany's Estate, 258 S.W.2d 613 (Mo.1953). We now reach the cynosure of this action—the basis of the application of res judicata to this case precluding Defford's recovery. Recently, in Gerhardt v. Miller, 532 S.W.2d 852 (Mo.App.1975), Judge Weier, in noting the dual aspects of the doctrine of res judicata, spoke for the court as follows: "A judgment on the same cause of action between the same parties may be raised as a bar to the prosecution of a second action upon the same cause of action as to any issue which was or might have been litigated in the first. This is known as estoppel by judgment. A prior judgment between the same parties may also be raised on a different subsequent cause of action as binding with regard to ultimate facts decided or issues passed upon in the prior action, and is conclusive upon the parties as to these facts actually decided and issues necessarily determined in rendering the judgment. This is called estoppel by verdict. [cites omitted]" Reviewing the circumstances of this case we find that Defford's current action is barred to him by that aspect of res judicata known as estoppel by judgment. In the *809 present litigation, Defford seeks to set aside the default judgment on the basis of fraud in the procurement by reason of duplicitous actions of Zurheide-Hermann. He argues that a settlement had been reached several months prior to the judgment, with the service of interrogatories, the motion to compel answers thereto and notice of hearing of default judgment intervening between the time of settlement and actual rendition of the default judgment. The Supreme Court has held that Defford was properly served and had adequate notice of the foregoing. We specifically find that Defford cannot now with merit charge that he was deceived in believing that the first case against him had been settled. The Supreme Court held that Defford had been properly served with the interrogatories and the motion to compel answers and had been given constitutionally adequate notice of the hearing. He cannot now, in this proceeding, be heard to say that he was deceived into believing that the case against him was being dismissed. Since the former adjudication determined that Defford had timely and adequate notice of the judicial proceedings leading to the judgment, his allegations concerning the alleged settlement and fraud in the procurement must fail. An examination of default judgment cases involving fraudulent misrepresentations supports our conclusion. For example, in Reis v. La Presto, supra, a party attempted to have a default judgment set aside for fraud in the procurement, alleging that the default judgment was obtained while negotiations for settlement were in progress and with no notice to the defaulting party. The court found no such fraud in that case, and noted the following: "False representations by a party to his adversary that he need not file any pleading while they negotiate for a settlement could support an action in equity to set aside a judgment obtained without notice and in violation of those representations. But, when no such representations were made either in fact or by implication, then it is the defendant's responsibility to look after his litigation, and if he negligently fails to do so he is in no position to seek equitable relief from the courts. Mutual Casualty Co. of Missouri v. Sansone, Mo.App., 17 S.W.2d 558[2]. One who has been served personally with a summons must use diligence to prevent a default judgment against him, Duncan v. Gibson, 45 Mo. 352, and he has less excuse to cry fraud than one who has been served with substituted service or by publication." [cites omitted; emphasis added] Reis v. La Presto, supra, at 654-655. The alleged facts in our case are somewhat different, but the theory is the same. Even assuming, as we must, that a settlement was reached, Defford, who had been personally served at the beginning, received repeated notification from Zurheide-Hermann's attorney that it was proceeding to judgment. Defford had notice of the default judgment and the multiplicity of proceedings leading up to it. With all the warnings manifest, Defford was, or at least should have been, aware that no settlement of the first suit existed. The actions of Zurheide-Hermann of which Defford had notice certainly belie the continued existence of any settlement. Clearly, the factual issues regarding whether Zurheide-Hermann had reneged on any purported settlement agreement and pursuing its case to judgment in derogation of such agreement was known to Defford at the time he took his appeal to the Supreme Court on the defense of errors patent on the record. The defense of fraud was palpably available and known to Defford at the time of the Supreme Court case. Or, at least, Defford should have known that the settlement had failed or in spite of the settlement Zurheide-Hermann proceeded to judgment against him. Defford has had his chance and missed it, for having had the opportunity to have brought the issue of fraud before the Supreme Court in Zurheide-Hermann, Inc. v. London Square Development Corp., supra, he is now too late and forbidden to relitigate the issue in a second proceeding. Defford could have raised the fraud issue at the time of his *810 action before the Supreme Court, and by his failure to do so then he is precluded from doing so now. St. Bethel Missionary Baptist Church, Inc. v. St. Louis Builders, Inc., 388 S.W.2d 776 (Mo.1965).[6] As said in Munday v. Thielecke, 483 S.W.2d 679, 681 (Mo. App.1972): "Under what is called estoppel by judgment a final adjudication is conclusive in subsequent proceedings not only as to every issue of fact which was actually litigated, but also as to every issue of fact which might have been." Defford has been given his day in court. His fraud issue could have been but was not litigated in the previous action. He is now estopped to litigate it. This case is to be distinguished from Esco Industries, Inc. v. Indian Creek Hills, Inc., 529 S.W.2d 672 (Mo.App.1975), and J. R. Watkins Co. v. Hubbard, 343 S.W.2d 189 (Mo.App.1961), and cases cited therein, holding as a nullity a default judgment obtained in derogation of an agreement. The basic defense in this case is that Defford should have been aware that no settlement was in effect, and he should have been circumspect of resulting consequences. While equity has jurisdiction to grant relief on the grounds of fraud in the procurement of a judgment, the complaining party must be free from fault, neglect or inattention to his case, Jones v. Jones, 254 S.W.2d 260 (Mo.App.1953), and prove that he exercised reasonable diligence or has a good excuse for the default. Human Development Corp. v. Wefel, 527 S.W.2d 652 (Mo.App. 1975). Viewing Defford's allegations most favorably to him, it is manifest that he was not free from fault or neglect and did not exercise reasonable diligence in view of the issues decided against him in the prior litigation.[7] Having thus disposed of the fraud in the procurement count for the reasons set forth, Defford's application for writ of error coram nobis loses all vitality and we need not deal with it. The basis of Defford's claim for relief by coram nobis was that Zurheide-Hermann had committed fraud in failing to carry out a settlement agreement. But we have already determined that the fraud issue was available to Defford at the time of his appeal in the first case, and coram nobis cannot breathe life into that issue now. A writ of error coram nobis does not lie if the fact now alleged as grounds for the writ was known to the complaining party at the time of the judgment, or might have been known by the exercise of reasonable diligence. As noted, Defford knew or should have known at the time of his first appeal of the facts upon which he now grounds his application for writ of error coram nobis. Schoenhals v. Pahler, 257 S.W.2d 662 (Mo.1953); Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132 (1952). So, too, Defford's counts seeking judgment, by collateral attack, on the settlement, malicious prosecution damages and relief from execution on the default judgment must fail. Since Defford has failed in his direct attack he is forbidden to make a collateral assault on the judgment. McMahon v. May Department Stores Co., 374 S.W.2d 82 (Mo.1963). The order dismissing Defford's petition is affirmed. SIMEONE, P. J., and KELLY, J., concur. NOTES [1] Zurheide-Hermann, Inc. initially filed suit against John Defford, individually, London Square Development Corporation, United States Construction and Development Corporation, and Lewis & Clark Towers, Inc. The suit was subsequently expanded to add Project Development and Leasing, Inc. and Lewis & Clark Management Co. as parties defendant. [2] The notices, motions, orders and judgments applied to the corporate defendants as well as to Defford. [3] Defford's argument was also applicable to the corporate defendants in the default judgment. [4] The style of the suit as originally filed on August 11, 1967. [5] In Defford's petition before this court he named three individuals as defendants in addition to Zurheide-Hermann, Inc., but in our treatment of the case we have, for the most part, referred to all defendants together, as "Zurheide-Hermann." [6] The St. Bethel Missionary Baptist Church case involved the dismissal of a suit for fraud which could have been raised in previous litigation involving another matter. [7] Defford has here violated Rule 55.15 which provides "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." See also J. R. Watkins Co. v. Hubbard, supra. However, since Defford was not granted leave to amend his petition, we have given the broadest interpretation to his allegations of fraud and deceit. Still, the petition fails to state a cause of action upon which relief can be granted.

426 F.3d 1011 UNITED STATES of America, Plaintiff-Appellee,v.Juan Jose VIDAL, Defendant-Appellant. No. 04-50185. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 9, 2005. Submission Vacated and Deferred February 22, 2005. Resubmitted and Filed October 24, 2005. COPYRIGHT MATERIAL OMITTED Siri Shetty, San Diego, CA, for the defendant-appellant. Mark R. Rehe, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-03-01178-1-JTM. Before: BROWNING, MAGILL,* and RYMER, Circuit Judges. RYMER, Circuit Judge. 1 Juan Jose Vidal appeals from his sentence for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. Vidal challenges the eight-level enhancement to his sentence resulting from the district court's conclusion that his conviction for the unlawful taking of a vehicle, in violation of California Vehicle Code § 10851(a), constitutes an aggravated felony under United States Sentencing Guideline § 2L1.2(b)(1)(C). He also argues that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), precludes resort to the modified categorical approach to determine whether the defendant was previously convicted of conduct that would constitute an aggravated felony under federal law. Finally, in a Fed. R.App. P. 28(j) letter, Vidal asks for his sentence to be vacated and remanded for reconsideration in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 2 We conclude that Vidal was convicted of an aggravated felony. Moreover, Blakely does not undermine Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), or our own authority embracing the modified categorical approach. Therefore, the district court did not err in applying it. Nevertheless, we remand for further proceedings in light of Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621, and United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.2005) (en banc). 3 * Vidal, a Mexican citizen, entered the United States from Mexico on February 15, 2003. Border Patrol agents discovered and arrested him the next day. The government filed an indictment in the Southern District of California charging Vidal with being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. Vidal pled guilty to the charge. The district court then determined, under both the categorical and modified categorical approaches, that Vidal's 1994 conviction for the unlawful driving or taking of a vehicle, in violation of California Vehicle Code § 10851(a), constituted a conviction for a "theft offense." Because a theft offense is an aggravated felony, the district court increased Vidal's offense level by eight levels, pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(C). Vidal was sentenced to 33 months imprisonment. 4 Vidal timely appealed. II 5 Whether Vidal's prior conviction qualifies as an aggravated felony for purposes of § 2L1.2 is reviewed de novo. United States v. Arellano-Torres, 303 F.3d 1173, 1176(9th Cir.2002) (citation omitted). III 6 * Vidal argues that California Vehicle Code § 10851(a) does not categorically qualify as an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C). In the 2002 version of the Guidelines, which the district court correctly used here, § 2L1.2(b)(1)(C) provides for an 8-level enhancement of the offense level if the defendant was previously deported after a conviction for an aggravated felony. A "theft offense (including receipt of stolen property) ... for which the term of imprisonment [is] at least one year" is an aggravated felony for purposes of U.S.S.G. § 2L1.2. U.S.S.G. § 2L1.2, cmt. n. 2; 8 U.S.C. § 1101(a)(43)(G). 7 To determine whether Vidal's prior conviction qualifies as an aggravated felony, we first "look only to the fact of conviction and the statutory definition of the prior offense." United States v. Corona-Sanchez, 291 F.3d 1201, 1203(9th Cir.2002) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Under the categorical approach, the court asks whether "the statute criminalizes conduct that would not constitute an aggravated felony under federal sentencing law." Id. 8 Vidal contends that § 10851 is overly broad in two respects. First, he maintains that it encompasses the intent to make a temporary or de minimis deprivation of a vehicle whereas the generic federal definition of "theft offense" adopted in Corona-Sanchez employs the Model Penal Code approach that requires the intent "to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value." 3 Wayne R. LaFave, Substantive Criminal Law § 19.5, at 88 (2003). We disagree that it is possible to read Corona-Sanchez in this way. There, we adopted the Seventh Circuit's generic definition of the phrase "theft offense (including receipt of stolen property)," which is 9 a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent. 10 291 F.3d at 1205(quoting Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.2001)). We noted that "Congress used the words `theft offense' rather than just `theft,' thus indicating that the phrase ought be read to incorporate different but closely related constructions in modern state statutes." Id. And we explicitly declined to embrace the Model Penal Code definition, whether or not it reflects the view of a majority of modern theft statutes. Id. 11 There is no inconsistency between § 10851(a) and Corona-Sanchez's generic definition. Section 10851(a) criminalizes "tak[ing] a vehicle ... without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle,"1 while Corona-Sanchez contemplates deprivations even if "less than total or permanent." Thus, the intent to make a less than permanent, i.e., temporary, deprivation of a vehicle falls within the intent requirement of a theft offense. 12 Vidal's reliance on Nevarez-Martinez v. INS, 326 F.3d 1053 (9th Cir.2003), is misplaced. He argues that the Arizona statute at issue in Nevarez-Martinez was similar to § 10851(a) and that we held there that it did not categorically constitute an aggravated felony. However, the problem being addressed was different. While two sections of the divisible Arizona statute required intent to permanently deprive, the other three sections included no intent requirement whatsoever. Id. at 1055 ("The Arizona statute requires knowledge, but the statute does not require intent for violation of (2), (4) or (5)."). We held that violation of the statute did not constitute a theft offense within the generic definition because the statute did not require "criminal intent to deprive the owner," but we did not hold that a statute that criminalizes the intent to temporarily deprive — as California's does — is not a theft offense. 13 Vidal also maintains that § 10851(a) is over-inclusive in that it allows convictions based on aiding and abetting liability. The statute includes "any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking" of a vehicle. Relying on Corona-Sanchez, Vidal points out that we held that California's general theft statute, California Penal Code § 484(a), does not categorically qualify as a theft offense because in California, "[a] defendant can be convicted of the substantive offense of violation of § 484 for aiding and abetting a theft, even if that theory is not specifically charged." 291 F.3d at 1207-08. Additionally, he notes that we recently held in Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir.2005), that § 10851(a) is not a theft offense that qualifies as an aggravated felony under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G). 14 Corona-Sanchez does not control on the import of California's aiding and abetting liability because it was decided under Guidelines that have since been amended. In Corona-Sanchez, the district court applied the 1997 version of § 2L1.2 whose commentary made no mention of aiding and abetting liability. 291 F.3d at 1202 n. 2. However, § 2L1.2 was amended in November 2001(well before Vidal reentered the United States and was convicted and sentenced) to include aiding and abetting aggravated felonies as aggravated felonies. The applicable Application Note states: "Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." U.S.S.G. § 2L1.2, cmt. n. 4 (2002). This commentary governs Vidal's sentence. See United States v. Rodriguez-Rodriguez, 393 F.3d 849, 858 (9th Cir.2005) (noting that the application notes specifically include convictions for aiding and abetting). Penuliar is distinguishable for the same reason, because it construed § 1101(a)(43)(G) alone, without the commentary to U.S.S.G. § 2L1.2 that includes aiding and abetting for purposes of enhancing the offense level for prior convictions. 15 Even so, Vidal argues that California aiding and abetting liability is broader than federal aiding and abetting liability. Again relying on Corona-Sanchez, he posits that "[u]nder California law, aiding and abetting liability is quite broad, extending even to promotion and instigation." 291 F.3d at 1208 (citing People v. Beeman, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, 1325-26 (1984)). In comparison, he submits, the federal version requires proof 16 (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense. 17 United States v. Sayetsitty, 107 F.3d 1405, 1412(9th Cir.1997) (quoting United States v. Gaskins, 849 F.2d 454, 459 (9th Cir.1988)). 18 Assuming (without deciding) that "aiding and abetting" in the Guidelines means the same thing as 18 U.S.C. § 2(a), the federal aiding and abetting statute, and federal law interpreting it, California aiding and abetting liability requires proof of all elements contained in the federal definition. Under California law, 19 an aider and abettor is a person who, "acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." 20 People v. Prettyman, 14 Cal.4th 248, 58 Cal.Rptr.2d 827, 926 P.2d 1013, 1018-19 (1996) (quoting Beeman, 199 Cal.Rptr. 60, 674 P.2d at 1326). When the charged offense is a specific intent crime, as is the unlawful taking of a vehicle,2 "the accomplice must share the specific intent of the perpetrator." Id. at 1018, 199 Cal.Rptr. 60, 674 P.2d 1318(internal quotation marks omitted).3 Further, the government must prove the existence of a perpetrator of the underlying offense. People v. Singleton, 196 Cal.App.3d 488, 493, 241 Cal.Rptr. 842 (1987). 21 Vidal also submits that California aiding and abetting liability extends beyond the federal concept by including promotion or instigation of the underlying crime. But the federal definition extends to those who counsel, command, induce, or procure someone to commit a crime and we cannot see how counseling, commanding, inducing, and procuring would not encompass promoting or instigating. See 18 U.S.C. § 2(a); Ninth Circuit Manual of Model Criminal Jury Instructions 5.1 (2003) (aiding and abetting instruction). Further, both promotion and instigation are within the broad meaning of encouragement, also within the ambit of federal aiding and abetting liability. See United States v. Barnett, 667 F.2d 835, 841(9th Cir.1982) ("An abettor is one who, with mens rea, ... commands, counsels or otherwise encourages the perpetrator to commit the crime.") (internal quotation marks omitted). Vidal further suggests in his reply brief that aiding and abetting liability for federal sentencing purposes does not cover accessories to criminal conduct who act after the commission of the prohibited act. However, the point is neither developed, nor would it make any difference in this case because, as we shall explain, Vidal pled guilty to taking the car. 22 Accordingly, the district court did not err in concluding that Vidal's offense of conviction was within the generic definition of "theft offense." Regardless, applying the modified categorical approach, it is clear that he pled guilty to a theft offense. B 23 If an offense does not categorically qualify as an aggravated felony under federal sentencing law, a court may "go beyond the mere fact of conviction" and examine "documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes." United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001) (en banc) (citations and internal quotation marks omitted). The charging papers together with either the signed plea agreement or an abstract of judgment — all three of which are in the record in this case — can support a finding that a prior conviction was an aggravated felony. See United States v. Velasco-Medina, 305 F.3d 839, 851-53(9th Cir.2002). 24 As a preliminary matter, Vidal argues that applying the modified categorical approach to determine whether he was convicted of an aggravated felony violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the approach requires the court to find more than the mere fact of a prior conviction. However, this argument is foreclosed by United States v. Smith, 390 F.3d 661, 666-67 (9th Cir.2004), where we held that Blakely does not preclude the modified categorical approach. For the reasons set out in Smith, Booker is not implicated, either. 25 Beyond this, Vidal's arguments boil down to the same points that he believes categorically disqualify his prior conviction — that the complaint and conviction could have been based on temporary, de minimis deprivations, or upon aiding and abetting liability. The complaint charged: 26 On or about June 21, 1994 [Vidal] did willfully and unlawfully drive and take a vehicle, the personal property of GARY CRAWFORD, without the consent of and with intent to deprive the owner of title to and possession of said vehicle, in violation of VEHICLE CODE SECTION 10851(a). 27 Thus, Vidal admitted that he took a vehicle belonging to someone else, without the owner's consent, intending to deprive the owner of title and possession. These are the elements that meet the generic definition of "theft offense" under Corona-Sanchez, as informed by Application Note 4 to § 2L1.2. He was sentenced to 365 days in jail, as required by 8 U.S.C. § 1101(a)(43)(G). Conclusion 28 The district court correctly determined that Vidal was convicted of an aggravated felony for purposes of § 2L1.2. However, because Vidal now challenges his sentence on the ground that the district court sentenced him under the mandatory Guidelines, we remand for further proceedings in light of Booker, 125 S.Ct. at 756-57, and Ameline, 409 F.3d at 1074. 29 AFFIRMED IN PART; REMANDED IN PART. Notes: * The Honorable Frank J. Magill, Senior Circuit Judge for the Eighth Circuit, sitting by designation 1 In full, § 10851(a) provides: Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment. 2 See People v. Howard, 57 Cal.App.4th 323, 327, 66 Cal.Rptr.2d 849 (1997). 3 This requirement is accounted for in California's three-part formulation, because an accomplice shares the intent of the perpetrator when he "`knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime.'"Prettyman, 14 Cal.4th 248, 58 Cal.Rptr.2d 827, 926 P.2d at 1018 (quoting Beeman, 199 Cal.Rptr. 60, 674 P.2d at 1326). 30 BROWNING, Circuit Judge, concurring in part and dissenting in part: 31 I respectfully dissent from the majority's holdings that California Vehicle Code § 10851(a) categorically qualifies as an aggravated felony "theft offense" for sentencing, and that Vidal's conviction in fact qualifies under the modified categorical approach as a predicate conviction for sentence enhancement in this case. Accordingly, I would reverse the district court's imposition of the enhancement, vacate Vidal's sentence, and remand for resentencing.1 32 A prior conviction categorically qualifies as a predicate offense for sentence enhancement if the full range of conduct covered by the statute of conviction falls within the generic federal-sentencing definition. Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002); accord Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir.2002) (en banc). However, if such a statute is broader than the generic offense, i.e., if it criminalizes both conduct that falls within the generic definition and conduct that does not, the statute of conviction cannot qualify categorically for enhancement purposes.2 Taylor, 495 U.S. at 599-602, 110 S.Ct. 2143; Penuliar v. Ashcroft, 395 F.3d 1037, 1041 (9th Cir.2005); Corona-Sanchez, 291 F.3d at 1211. 33 Vidal asserts that § 10851(a) is broader than the generic definition of "theft offense" adopted by this court in Corona-Sanchez because, inter alia, it criminalizes aiders and abettors as well as accessories. I agree with the majority's analysis that Application Note 4 to § 2L1.2 of the Sentencing Guidelines is dispositive in this context as to the former.3 However, the majority fails to address adequately the latter, ante at 1017, and in doing so reaches an erroneous conclusion. 34 In relevant part § 10851(a) states the following are guilty of the public offense it describes: "[a]ny person who drives or takes a vehicle not his or her own ... or any person who is a party or an accessory to or an accomplice in" the same. Cal. Veh.Code § 10851(a). It is long settled that California law no longer recognizes any distinction between principals in the first degree, second degree (aiders and abettors present at the scene), or accessories before the fact (aiders and abettors not present).4 Additionally, California does not include as principals, "accessories," i.e. formerly, "accessories after the fact."5 35 As a result, the language of § 10851(a) extending liability to "an accessory to" the unlawful driving or taking of another's vehicle can only be understood properly to reach parties who sufficiently and knowingly aid a principal after the commission of the offense.6 36 Although Application Note 4 to § 2L1.2 extends sentencing liability to aiders and abettors, it does not extend it to accessories.7 Comparing the statute of conviction to the generic predicate offense definition, it is beyond dispute that, by criminalizing accessories, § 10851(a) covers a broader range of conduct than does the Sentencing Guidelines generic "theft offense."8 As a result, a conviction under § 10851(a) cannot categorically qualify as a "theft offense" for sentence enhancement within the meaning of 8 U.S.C. § 1101(a)(43)(G). See Penuliar, 395 F.3d at 1044-45. 37 Because § 10851(a) fails categorically, we continue with Taylor's familiar "modified categorical" analysis in which we examine relevant, judicially noticeable documents in the record to determine if they "unequivocally establish[]" that the defendant in fact was convicted of, or pled guilty to, the generically defined crime. Corona-Sanchez, 291 F.3d at 1211; accord United States v. Franklin, 235 F.3d 1165, 1170(9th Cir.2000) (listing documents which, for modified categorical analysis, can and cannot "clearly establish" defendant's conduct). 38 I disagree with the majority's conclusion, ante at 1016-1017, that any permissible combination of Vidal's charging papers, signed plea agreement, and judgment of conviction is capable of "unequivocally," or even clearly, establishing the nature of the conduct to which Vidal pled guilty.9 Effectively, each merely recites the generic language of § 10851(a).10 We have found previously that this is not enough to survive modified categorical analysis. United States v. Lopez-Montanez, 421 F.3d 926, 932 (9th Cir.2005) (finding a charging document which "simply restates the language of the statute" unable to establish the elements of conviction for purposes of modified categorical analysis); accord Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003) ("The difficulty is that the conviction's label only goes so far; the conviction itself must meet the generic definition of theft no matter what the state calls it."). Merely reciting the language of the statute tells the court no more than would a recitation of the code section-number alone. This is particularly so in this case given the breadth of activity criminalized by and chargeable under § 10851(a).11 39 Therefore, because § 10851(a) does not qualify categorically as an aggravated felony "theft offense" for Sentencing Guidelines enhancement, and because the record does not unequivocally establish that Vidal in fact pled guilty to a "theft offense," I would reverse the 8-level sentence enhancement, vacate Vidal's sentence, and remand for resentencing. Notes: 1 I concur in the majority's holding thatBlakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), does not preclude the modified categorical approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), see United States v. Smith, 390 F.3d 661, 666-67 (9th Cir.2004); and that on remand, following United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.2005) (en banc), the district court should determine whether the sentence imposed would have been materially different had it known the sentencing guidelines were advisory. 2 AlthoughTaylor and Corona-Sanchez counsel that the term "theft offense" should be "read to incorporate different but closely related constructions in modern state statutes," Corona-Sanchez, 291 F.3d at 1205 (quoting Taylor, 495 U.S. at 590-91, 110 S.Ct. 2143), such reasoning cannot cure the overbreadth of a state statute which criminalizes categories of conduct which the generic sentencing definition does not. Such a conclusion is plainly inconsistent with Taylor's primary holding. See Taylor, 495 U.S. at 599, 602. 3 Application Note 4 in this context appears to add to § 2L1.2(b)(1)(C), effectively, the following italicized text: "after ... a conviction for an aggravated felonyor aiding and abetting an aggravated felony, increase 8 levels." See U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n. 4 (2002). 4 See Cal. Pen.Code § 31 (Deering 2005); LaFave, SUBSTANTIVE CRIMINAL LAW § 13.1(e), at 333-36 (2003). California abolished such distinctions in 1872. 5 See, e.g., People v. Mitten, 37 Cal.App.3d 879, 883, 112 Cal.Rptr. 713 (1974) (contrasting California's approach to that of several other states). 6 Cal. Veh.Code § 10851(a) became effective in 1997, one hundred and twenty-five years after Cal. Pen.Code § 31 changed the State's approach to the naming of criminal partiesSee also, LaFave, supra, § 13.6(a) "Accessory After the Fact". 7 The note in full states: "4Aiding and Abetting, Conspiracies, and Attempts. ____ Prior convictions of offenses counted under subsection (b)(1) include ... the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." U.S.S.G. § 2L1.2, cmt. n. 4 (2002). 8 InCorona-Sanchez, this court adopted the Seventh Circuit's definition of "theft offense." Corona-Sanchez, 291 F.3d at 1205("a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent"). Given Application Note 4 to § 2L1.2, in this context, a "theft offense" includes the commission or attempt to commit, the aiding and abetting of, or the conspiracy to commit such an offense. It plainly does not cover accessorial liability. 9 This Court is not permitted to notice for modified categorical analysis facts recited in Vidal's presentence reportFranklin, 235 F.3d at 1171 (explaining "Taylor and this circuit in our precedents have foreclosed any approach that considers the underlying facts of prior convictions to determine whether a defendant was convicted by a jury or pleaded guilty to a predicate offense"). 10 Vidal's judgment of conviction refers only to "Count 1"; his plea agreement reveals that he pled guilty to "Count 1 10851(a)VC DRIVING A STOLEN VEHICLLE [sic]"; and his charging papers simply recite § 10851(a)'s generic statutory language with the date and Vidal's and another's names insertedSee Excerpt of Record, at 39, 44, 46. Additionally, the variation in the wording of the charge in Vidal's charging papers and plea is not insignificant. See infra note 10. Despite the majority's assertion, ante at 1017, the record raises, rather than resolves unequivocally, questions as to the nature of Vidal's actions. 11 California law is clear that § 10851(a) covers a range of conduct in concert with its larceny and joy-riding statutes, and contains distinct, alternate theories of "taking" and merely "driving."See, e.g., People v. Ivans, 2 Cal.App.4th 1654, 1663, 4 Cal.Rptr.2d 66 (1992); People v. Austell, 223 Cal.App.3d 1249, 1251-52, 273 Cal.Rptr. 212 (1990); People v. Donnell, 52 Cal.App.3d 762, 769, 125 Cal.Rptr. 310 (1975). The imprecision of Vidal's charging and plea documents is not insignificant; e.g., under California law, if a charging document "charges a defendant with both driving and taking a vehicle without the owner's consent, it necessarily charges a violation of both" § 499b (California's "joy-riding" statute) and § 10851. Ivans, 2 Cal.App.4th at 1663, 4 Cal.Rptr.2d 66. Cal.Penal Code §§ 31, 971 permit an argument that Vidal's charging papers establish he was charged as a principal and not as an accessory. However, because the text of § 10851(a) itself extends liability to accessories, mere reference to general provisions of California's Penal Code cannot unequivocally support such a conclusion.

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT AUGUST 24, 2005 No. 04-14194 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 04-00109-CR-T-27-TBM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALBINO OBREGON, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (August 24, 2005) Before BIRCH, CARNES and MARCUS, Circuit Judges. PER CURIAM: Albino Obregon appeals his 135-month sentence for two drug charges. On appeal, Obregon argues that the district court: (1) clearly erred by denying his request for a mitigating-role reduction; and (2) committed reversible error, in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), by applying the United States Sentencing Guidelines as mandatory. I. BACKGROUND Obregon and his codefendants were charged with: (1) possession with intent to distribute five or more kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 21 U.S.C. § 960(b)(1)(B)(ii) and 46 U.S.C. app. §§ 1903(a) and (g) (Count One); and (2) conspiracy to possess with intent to distribute five or more kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of §§ 1903(a), (g), (j) and § 960(b)(1)(B)(ii) (Count Two). At a plea hearing before a magistrate judge, Obregon pled guilty to both counts. According to the facts admitted by Obregon at the plea hearing, he was a crew member on board the “Siete Mares,” a Colombian-flagged fishing vessel that was used to transport approximately 133 bales of cocaine from Colombia to a point in the eastern Pacific Ocean, where the drugs were transferred to another vessel, and, ultimately, seized by the U.S. Coast Guard. According to the presentence investigation report (“PSI”), the two vessels 2 involved in the offense carried a total of ten crew members and two captains. The probation officer grouped Obregon's offenses together and set his base offense level at 38, pursuant to U.S.S.G. § 2D1.1(c), based on a finding that 2,629 kilograms of cocaine were involved in the offense. The probation officer then reduced Obregon's offense level by three, pursuant to U.S.S.G. § 3E1.1(a) and (b), for acceptance of responsibility. At the sentencing hearing, the parties agreed that Obregon had met the requirements for the safety-valve reduction, and, therefore, pursuant to U.S.S.G. § 2D1.1(b)(6), his offense level was reduced by an additional two levels. Given a total offense level of 33 and a criminal history category of I, Obregon's Guideline imprisonment range was 135 to 168 months. Obregon objected to the PSI, arguing, inter alia, that he was entitled to a mitigating-role reduction, and, therefore, pursuant to § 2D1.1(a)(3), his base offense level should not have exceeded 30. According to Obregon, he was significantly less culpable than the other participants in the offense because his only role in the drug-smuggling operation was that of a cook aboard one of the vessels. At the sentencing hearing, Obregon objected that the Guidelines were unconstitutional, in light of Blakely. The district court overruled this objection, finding that the Guidelines were constitutional, both on their face and as applied to 3 the facts of Obregon's case. The district court also overruled Obregon’s mitigating-role objection, finding that he was not significantly less culpable than the other participants in the offense. While acknowledging that there were likely other, unidentified individuals who organized and financed the smuggling operation, the court found that all crew members, including Obregon, were “an essential aspect” of the smuggling operation, and that each of them assisted in the loading and unloading of the drugs. R3 at 16. The court then sentenced Obregon to a total of 135 months of imprisonment. The court noted that it was imposing a low-end sentence in light of, inter alia, the defendant's age and the fact that such a sentence was “substantial” and “adequately addresse[d] the seriousness of [Obregon’s] conduct.” Id. at 19. II. DISCUSSION A. Mitigating-Role Reduction First, we must decide whether the district court erred by denying Obregon’s request for a mitigating-role reduction. Obregon argues that he was entitled to the reduction because: (1) his role in the offense was that of a cook/crew member aboard one of the vessels; (2) he did not have an ownership interest in the drugs; (3) he received little compensation compared to the substantial value of the drugs; and (4) his participation was minimal compared to the other unidentified 4 individuals who planned and organized the smuggling operation. Because he was entitled to this reduction, Obregon argues, his base offense level should not have exceeded 30. A sentencing court’s determination of a defendant’s role in an offense constitutes a factual finding that is reviewed for clear error. See United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant bears the burden of proving, by a preponderance of the evidence, that he is entitled to a role reduction. See id. at 939. The Guidelines provide for a four-level reduction for a defendant who acts as a minimal participant, a two-level reduction for a minor participant, and a three- level reduction for cases falling in between the minor and minimal level. U.S.S.G. § 3B1.2. A minimal participant is a defendant who is “plainly among the least culpable of those involved in the conduct of a group,” U.S.S.G. § 3B1.2, comment. (n.4), while a minor participant means any participant “who is less culpable than most other participants, but whose role could not be described as minimal,” U.S.S.G. § 3B1.2, comment. (n.5). Moreover, when a defendant is convicted under § 960(b)(1), and he is entitled to a mitigating-role adjustment under § 3B1.2, his base offense level may not be set higher than level 30. U.S.S.G. § 2D1.1(a)(3). To determine whether a defendant is entitled to a mitigating-role reduction, 5 the district court must first measure the defendant’s role in the offense against the relevant conduct for which he has been held accountable. See Rodriguez De Varon, 175 F.3d at 940. In cases where the defendant is a drug courier, relevant factual considerations include, but are not limited to: (1) the amount of drugs involved; (2) the fair market value of the drugs involved; (3) the amount of compensation received by the courier; (4) the courier’s equity interest in the drugs, if any; (5) the courier’s role in planning the scheme; and (6) the courier’s role, or intended role, in the distribution of the drugs. See id. at 945. Second, the court may compare the defendant’s culpability to that of other participants in the relevant conduct, but “only to the extent that they are identifiable or discernable from the evidence.” Id. at 944. “The conduct of participants in any larger criminal conspiracy is irrelevant.” Id. We conclude that the district court did not clearly err by denying Obregon’s request for a mitigating-role reduction because: (1) it correctly assessed Obregon’s role in connection with the conduct for which he was held accountable, and not in connection with some larger criminal enterprise; and (2) Obregon failed to demonstrate that he was less culpable than the majority of identifiable participants in the offense. Accordingly, we affirm the district court’s denial of the mitigating-role reduction. 6 B. Booker Error Obregon next argues that, in light of Booker, the district court committed reversible error by applying the Guidelines as mandatory. Because the district court should have considered the other factors enumerated in 18 U.S.C. § 3553(a) when imposing sentence, Obregon argues that he is entitled to a remand for resentencing. Obregon is entitled to preserved-error review because he raised a timely constitutional objection to the sentencing enhancements in the district court, and we should remand for resentencing unless (1) no error was committed, or (2) the error was harmless. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (per curiam). “A non-constitutional error is harmless if, viewing the proceedings in their entirety, a court determines that the error did not affect the sentence, or had but very slight effect.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005) (per curiam) (citations, alterations, and internal quotations omitted). “If one can say with fair assurance that the sentence was not substantially swayed by the error, the sentence is due to be affirmed even though there was error.” Id. (citations, alterations, and internal quotations omitted). In Booker, the Supreme Court held that Blakely applies to the Guidelines, and reaffirmed its holding from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. 7 Ct. 2348, 2362-63 (2000), that, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at ___, 125 S. Ct. at 746, 756. Because the Court determined that it was the mandatory nature of the Guidelines that implicated the Sixth Amendment right to a jury trial, it held that, in order to cure the Sixth Amendment violation while preserving congressional intent, the following two provisions of the Sentencing Reform Act must be severed and excised: 18 U.S.C. § 3553(b)(1) (which made the Guidelines mandatory and binding on federal courts), and 18 U.S.C. § 3742(e) (which established the appellate standards of review for sentences). Booker, 543 U.S. at ___, 125 S. Ct. at 756-57. By severing these two provisions, the Supreme Court made the Guidelines “effectively advisory.” Id. at ___, 125 S. Ct. at 757. A district court potentially commits two types of error, under Booker, when it sentences a defendant pursuant to a mandatory guideline scheme: (1) constitutional error resulting from a Sixth Amendment violation; and (2) non-constitutional, or statutory, error resulting from applying the guidelines as mandatory. See United States v. Shelton, 400 F.3d 1325, 1329-31 (11th Cir. 2005). In Shelton, we held that the defendant’s Sixth Amendment rights were not 8 violated because he had admitted the facts used to enhance his sentence by failing to object to the statements contained in the PSI. Id. at 1330. Nonetheless, we held that the district court committed statutory error by applying the Guidelines as mandatory, rather than advisory. Id. We have held that both statutory and constitutional Booker errors were harmless where the district court expressly indicated that it would have imposed the same sentence under an advisory guideline regime. See Mathenia, 409 F.3d at 1292-93 (statutory error); United States v. Robles, 408 F.3d 1324, 1327-28 (11th Cir. 2005) (per curiam) (constitutional error). Conversely, in Paz we held that constitutional Booker error was not harmless where the court indicated that it would have imposed a lesser sentence under an advisory guideline scheme. 405 F.3d at 948-49. Because the government bears the burden of demonstrating that a statutory Booker error was harmless, the defendant’s case must be remanded for resentencing where the effect of the error cannot be determined. See United States v. Davis, 407 F.3d 1269, 1271-72 (11th Cir. 2005) (per curiam). Upon review of the PSI and the sentencing transcript, and upon consideration of the briefs, we discern reversible error. The district court committed statutory Booker error by applying the Guidelines as mandatory, and the government has failed to meet its burden of demonstrating that the error was 9 harmless. Accordingly, we vacate Obregon’s sentence and remand to the district court for resentencing. III. CONCLUSION Obregon appeals his 135-month sentence for possession with intent to distribute cocaine and conspiracy to possess and distribute cocaine. As we have explained, the court did not err when it denied Obregon’s request for a mitigating- role reduction of his sentence, but the district court did commit reversible error when it applied the Guidelines as mandatory. Accordingly, we AFFIRM in part and VACATE and REMAND in part. 10 

Fourth Court of Appeals San Antonio, Texas January 31, 2020 No. 04-20-00069-CV IN RE Devry Marie SAENZ Original Mandamus Proceeding 1 ORDER Sitting: Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice On January 31, 2020, relator filed a petition for writ mandamus and an emergency motion for temporary relief. This court believes a serious question concerning the relief sought requires further consideration. See TEX. R. APP. P. 52.8(b). The respondent and the real party in interest may file a response to the petition in this court no later than February 18, 2020. Any such response must conform to Texas Rule of Appellate Procedure 52.4. The motion for temporary relief is GRANTED. The court hereby ORDERS, pending final resolution of the petition and upon payment of a cash bond in the amount of $4,500.00 payable to the 451st Judicial District Court, that Devry Marie Saenz be released from custody under the trial court’s “Order Holding Respondent [Devry Marie Saenz] in Contempt for Failure to Pay Child Support With Commitment and Granting Judgment” entered in Cause No. 17-538, styled In the Matter of the Marriage of Devry Marie Saenz and Matthew Joseph Springer and In the Interest of L.V.S., P.M.S., and P.M.S., Children, filed in the 451st Judicial District Court, Kendall County, Texas. The cash bond in the amount of $4,500.00 is sufficient to release Devry Marie Saenz from both the civil and criminal contempt commitments. It is so ORDERED on January 31, 2020. PER CURIAM ATTESTED TO: _________________________ MICHAEL A. CRUZ, Clerk of Court 1 This proceeding arises out of Cause No. 17-538, styled In the Marriage of Devry Marie Saenz and Matthew Joseph Spinger, and In the Interest of L.V.S., P.M.S., and P.M.S., Children pending in the 451st Judicial District Court, Kendall County, Texas, the Honorable Solomon Casseb, III presiding. 

243 U.S. 273 (1917) PEASE v. RATHBUN-JONES ENGINEERING COMPANY. PEASE ET AL. v. RATHBUN-JONES ENGINEERING COMPANY. Nos. 360, 419. Supreme Court of United States. Submitted January 8, 1917. Decided March 6, 1917. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. *274 Mr. Perry J. Lewis and Mr. Frank H. Booth for petitioners. Mr. Carlos Bee for respondent. MR. JUSTICE BRANDEIS delivered the opinion of the court. Pease and Heye were sureties on a supersedeas bond given on appeal to the United States Circuit Court of Appeals in a suit to foreclose a vendor's lien. The District Court for the Southern District of Texas had entered a decree against the People's Light Company, declaring that Rathbun-Jones Engineering Co. "do have and recover" $6,804.90 with interest; establishing a lien on certain personal property; and directing that it be sold to satisfy the judgment, if the same be not paid within sixty days. The appellate court affirmed the decree. 218 Fed. Rep. 167. The mandate directed that the defendant and the sureties "pay the costs of this cause in this Court, for which execution may be issued out of said District Court," and "commanded that such execution and further proceedings be had in said cause as according to right and justice, and the laws of the United States, ought to be had." Thereupon the District Court, apparently without notice having been given specifically to sureties, entered its *275 "decree on mandate." This decree ordered "that said mandate be made the judgment of this Court"; that a sale be made as herein provided "to satisfy said judgment" and that "in the event said property does not sell for sufficient amount to satisfy said judgment, interest and costs, the clerk of this Court issue execution against the defendant and against the sureties on the appeal bond, . . . for any deficiency that may remain." The sale was had. Pease being the highest bidder, purchased all the property for a sum which, when applied upon the judgment, left a large deficiency. Immediately after the sale and before execution issued, Pease and Heye's administratrix (he having died pending the appeal) filed, in the District Court, a motion that execution be stayed and that so much of the "decree on mandate" as directed its issue be set aside. On the same day a similar motion was filed by the trustee in liquidation of the People's Light Company (it having been dissolved pending the appeal). Both motions were presented by the counsel who had theretofore acted for the defendant. The authority of the court to issue the execution was attacked on several grounds. Both motions alleged that the original decree contained no provision for such execution and that it could not be enlarged on return of the mandate, because the term had expired at which it was entered. They alleged that the order for execution was illegal because the People's Light Company had been dissolved and Heye had died, pending the appeal. They asserted that the "decree on mandate" so far as it directed the issuance of the execution was "wrongful and illegal," because it "was entered by the court without pleading, without notice and without hearing, against, to or of these petitioners," and "deprived them of their property without due process of law." The motion on behalf of the sureties alleged also that they had been deprived of their constitutional right to "trial by jury in actions at common *276 law." The prayers for relief were rested, also, on still broader grounds, which involved directly the whole merits of the controversy. It was alleged that "the bond did not secure, . . . the payment of the amount of said judgment or any deficiency that might remain after the application of the proceeds of the sale of said property, but operated only as indemnity against damages and costs by reason of said appeal" — and that the costs on said appeal had been paid. The motions, which were fully heard upon evidence introduced by the petitioners, were denied. An appeal was taken by all the petitioners from this denial; and by Pease alone from the "decree on mandate." Both the decrees were affirmed on appeal; and a rehearing was refused. 228 Fed. Rep. 273. Thereupon petitions to this court for certiorari to the Circuit Court of Appeals were filed and granted. After issue of the execution Pease instituted still another proceeding — a suit to restrain its enforcement. But when the injunction was denied by the District Court, the marshal made levy and Pease "as Trustee for himself and the other stockholders of the People's Light Company" paid to the clerk of court the balance due on the judgment. An appeal from the denial of the injunction was dismissed by the Circuit Court of Appeals; but review of that decree is not sought here. The petitioners still contend on various grounds that the proceedings below are void for lack of due process of law, or should be set aside for error. First. It is contended that the "decree on mandate" was void so far as it ordered execution to issue for any deficiency; because that direction was not contained in the original decree or in the mandate of the Circuit Court of Appeals. We are referred to cases holding that the lower court must enforce the decree as affirmed without substantial enlargement or alteration. But the original decree ordered that the plaintiff "do have and recover" $6,804.90. *277 This is the customary language used in personal judgments which are without further direction enforceable by general execution. If the defendant desired to insist that, because the suit was a foreclosure proceeding, the decree in this form was not proper, the objection should have been taken on the first appeal, and not having been so taken must be considered as waived. The "decree on mandate" obeyed the command of the mandate "that such execution and further proceedings be had in said cause as according to right and justice, and the laws of the United States, ought to be had." The amount of the deficiency was fixed by the sale; the insertion of the amount in the execution was but a clerical act. Second. It is contended that all suits pending against the People's Light Company abated upon its dissolution. As we read the Texas statute (Rev. Stats. 1911, Art. 1206), such a consequence is carefully avoided. It is there provided that upon dissolution the president and directors shall be trustees of the creditors and stockholders of the corporation "with full power to settle its affairs," and with power "in the name of such corporation . . . to collect all debts, compromise controversies, maintain or defend judicial proceedings." This general language makes no distinction between pending and subsequent "judicial proceedings," which the trustees are empowered to maintain and defend in the corporation's name; and there seems no reason why such a distinction should be read into the statute. There is also the further provision in the section that "the existence of every corporation may be continued for three years after its dissolution from whatever cause, for the purpose of enabling those charged with the duty to settle upon its affairs." The People's Light Company which takes this appeal and gives bond for its successful prosecution is hardly in a position to assert that it is non-existent and incapable of maintaining and defending pending suits. *278 Third. It is contended that the District Court had no power under the Constitution to render a summary judgment against the sureties upon affirmance of the decree appealed from, and that resort should have been had to an action at law. The method pursued has been introduced by statute into the practice of many States, including Texas. Rev. Civ. Stats., Art. 1627.[1] Pursuant to the requirements of the Conformity Act (Rev. Stats., § 914), this practice is followed by the federal courts in actions at law. Hiriart v. Ballon, 9 Pet. 156; Gordon v. Third National Bank, 56 Fed. Rep. 790; Egan v. Chicago Great Western Ry. Co., 163 Fed. Rep. 344. The constitutional right of trial by jury presents no obstacle to this method of proceeding, since by becoming a surety the party submits himself "to be governed by the fixed rules which regulate the practice of the court." Hiriart v. Ballon, 9 Pet. 156, 167. Although the adoption of state procedure is not obligatory upon the federal courts when sitting in equity, they have frequently rendered summary judgment against sureties on appeal bonds.[2] Some of the District Courts by *279 formal rule of court require the bond to contain an express agreement that the court may, upon notice to the sureties, proceed summarily against them in the original action or suit. See Rule 91, Ariz. Dist. Court Rules, adopted March 5, 1912; Rule 90, Wash. Dist. Court Rules, 1905. But this is not a general provision; nor is it a necessary one. For, as this court has said, sureties become quasiparties to the proceedings, and subject themselves to the jurisdiction of the court, so that summary judgment may be rendered on their bonds. Babbitt v. Finn, 101 U.S. 7, 15. The objection that a court of equity has no jurisdiction because there is an adequate remedy at law on the bond is not well taken. A court of equity, having jurisdiction of the principal case, will completely dispose of its incidents and put an end to further litigation. Applying this principle equity courts, upon the dissolution of an injunction, commonly render a summary decree on injunction bonds.[1a] Fourth. It is contended that notice was not given to the surety of the motion for summary judgment. It is a proper and usual practice to give such notice; but it may be questioned whether notice is always essential. See United Surety Co. v. American Fruit Product Co., 238 U.S. 140; Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388.[2a] *280 Furthermore, the last two objections, if originally well taken, were waived or cured by the subsequent proceedings. For the motions filed later invoked a decision by the court upon the question of the sureties' liability on the evidence presented by them; and no relevant fact was in dispute. There was no issue to submit to a jury, even if the sureties had been otherwise entitled thereto. After thus voluntarily submitting their cause and encountering an adverse decision on the merits, it is too late to question the jurisdiction or power of the court. St. Louis & San Francisco Ry. Co. v. McBride, 141 U.S. 127; Western Life Indemnity Co. v. Rupp, 235 U.S. 261, 273. Fifth. It is further contended that the District Court erred in entering judgment against the surety for the deficiency, instead of merely for the costs and any damages to the plaintiff resulting from the delay incident to the unsuccessful appeal. This objection raises a more serious question. The supersedeas bond was in the common form, conditioned that the appellant shall "prosecute its appeal to effect and answer all damages and costs, if it fails to make its plea good." It has long been settled that a bond in that form binds the surety, upon affirmance of a judgment or decree for the mere payment of money, to pay the amount of the judgment or decree. Catlett v. Brodie, 9 Wheat. 553. Rule 29 of this court — Rule 13, 5th C.C.A. — makes provision for a difference with respect to the bond, between a judgment or decree for money not otherwise secured, and cases "where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages." It is not *281 clear whether the purpose of the rule, in case of secured judgments or decrees, was merely to limit the amount of the penalty, or was also to affect the nature of the liability, so that the sureties would be liable to answer only for the costs, and damages actually resulting from the delay. We are, however, relieved from deciding this question; because the record discloses that after the issue of the execution complained of Pease paid the amount due "as Trustee for himself and the other stockholders of the People's Light Company." In other words, the record does not show that Pease paid the amount as surety in satisfaction of the deficiency judgment against himself. The payment by him may have been made "as trustee," because before that time the corporation had been dissolved. If this payment was made on behalf of the corporation, obviously Pease could get no benefit from a reversal of the decree; and as the decree has been satisfied by the principal obligor the sureties are in no danger of further proceeding against themselves. On the facts appearing of record the decree is, therefore, Affirmed. NOTES [1] Summary judgment was entered on appeal bonds in the following cases: White v. Prigmore, 29 Ark. 208; Meredith v. Santa Clara Mining Assn., 60 Cal. 617; Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388 (Illinois); Jewett v. Shoemaker, 124 Iowa, 561; Greer v. McCarter, 5 Kans. 17; Holmes v. Steamer Belle Air, 5 La. Ann. 523; Chappee v. Thomas, 5 Mich. 53; Davidson v. Farrell, 8 Minn. 258; Beall v. New Mexico, 16 Wall. 535 (New Mexico); Clerk's Office v. Huffsteller, 67 N. Car. 449; Charman v. McLane, 1 Oreg. 339; Whiteside's Admr. v. Hickman, 2 Yerg. (Tenn.) 358; Allen v. Catlin, 9 Wash. 603. [2] Cases where equity courts gave summary judgment against the sureties on appeal bonds: Woodworth v. N.W. Mut. Life Ins. Co., 185 U.S. 354; Smith v. Gaines, 93 U.S. 341; Richards v. Harrison, 218 Fed. Rep. 134 (D.C.S.D. Iowa); Fidelity & Deposit Co. v. Expanded Metal Co., 183 Fed. Rep. 568 (3rd C.C.A.), affirming Expanded Metal Co. v. Bradford, 177 Fed. Rep. 604; Perry v. Tacoma Mill Co., 152 Fed. Rep. 115 (9th C.C.A.); Empire State, etc., Developing Co. v. Hanley, 136 Fed. Rep. 99 (9th C.C.A.); Brown v. N.W. Mut. Life Ins. Co., 119 Fed. Rep. 148 (8th C.C.A.). [1a] Cases where it was held that courts of equity might render summary judgment on injunction bonds: Russell v. Farley, 105 U.S. 433, 445; Lea v. Deakin, 13 Fed. Rep. 514 (C.C.N.D. Ill.); Lehman v. M'Quown, 31 Fed. Rep. 138 (C.C. Colo.); Coosaw Mining Co. v. Farmers' Mining Co., 51 Fed. Rep. 107 (C.C.S.C.); Tyler Mining Co. v. Last Chance Mining Co., 90 Fed. Rep. 15 (9th C.C.A.); Cimiotti Unhairing Co. v. American Fur Refining Co., 158 Fed. Rep. 171 (C.C.N.J.). A few of the Districts have a rule of court providing that damages upon dissolution of an injunction "may be assessed in the same proceeding, either by the court or by reference to a master and judgment entered in the same action against the sureties on the bond." See Ark., West. D. Rule XVI, as amended to Feb. 27, 1908; Ark., East D. Rule XIV, as amended to Oct. 1, 1915. [2a] Cases showing the usual practice of giving to the sureties notice of the motion: Empire State, etc., Developing Co. v. Hanley, 136 Fed. Rep. 99; Gordon v. Third National Bank, 56 Fed. Rep. 790. Cf. Leslie v. Brown, 90 Fed. Rep. 171. Cases in state courts holding that notice to the surety is not requisite: Rogers v. Brooks, 31 Ark. 194; Meredith v. Santa Clara Mining Assn., 60 Cal. 617; Jewett v. Shoemaker, 124 Iowa, 561; Portland Trust Co. v. Havely, 36 Oreg. 234, 245.

Slip Op. 11-10 UNITED STATES COURT OF INTERNATIONAL TRADE ------------------------------------------------------x : ESSAR STEEL LIMITED, : : Plaintiff, : : v. : Before: Judith M. Barzilay, Judge : Court No. 09-00197 UNITED STATES, : : Defendant, : : and : : UNITED STATES STEEL : CORPORATION, : : Defendant-Intervenor. : : ------------------------------------------------------x OPINION [The court sustains the U.S. Department of Commerce’s Final Results of Redetermination.] Arent Fox LLP (Mark P. Lunn, Kay C. Georgi and Diana Dimitriuc Quaia), for Plaintiff Essar Steel Limited. Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David D'Alessandris), for Defendant United States; Deborah R. King, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, Of Counsel, for Defendant. Skadden Arps Slate Meagher & Flom, LLP (Robert E. Lighthizer, Jeffrey D. Gerrish and Nathaniel B. Bolin), for Defendant-Intervenor United States Steel Corporation. Dated: January 25, 2011 Barzilay, Judge: This matter returns to the court following the remand of the U.S. Department of Commerce’s (“Commerce”) final results of the fifth administrative review of the Court No. 09-00197 Page 2 countervailing duty order on certain hot-rolled carbon steel flat products from India. See Essar Steel Ltd. v. United States, 34 CIT __, 721 F. Supp. 2d 1285 (2010) (“Essar I”); Certain Hot- Rolled Carbon Steel Flat Products from India, 74 Fed. Reg. 20,923 (Dep’t of Commerce May 6, 2009) (final admin. review). In relevant part, the court’s previous opinion questioned Commerce’s determination that Plaintiff Essar Steel Limited (“Plaintiff”) benefitted from the Chhattisgarh Industrial Policy (“the Policy”) during the period of review, January 1, 2007 to December 31, 2007. Essar I, 34 CIT at __, 721 F. Supp. 2d at 1300-01. Specifically, the court could not discern how Commerce reconciled its finding in the fourth administrative review that Plaintiff could not benefit from the Policy from 2004 through 2009 with its application in this administrative review of an adverse facts available 54.69 per cent ad valorem rate against Plaintiff for benefits allegedly received from the same program. Id. Consequently, the court ordered Commerce to reopen and place on the administrative record documents from the previous administrative review, Admin. R. Conf. Doc. 1229 Ex. 4 and 1193 Ex. 9 (“the Documents”), and to consider them in its reassessment of whether Plaintiff benefitted from the Policy. Essar I, 34 CIT at __, 721 F. Supp. 2d at 1301. In its remand determination, Commerce found that Plaintiff did not benefit from the Policy. Redetermination Pursuant to Court Remand, C-533-821, at 5 (Dep’t of Commerce Oct. 28, 2010) (final results) (“Redetermination”). The court sustains the Redetermination for the reasons below. I. Standard of Review The Court will hold as unlawful any Commerce determination “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Court No. 09-00197 Page 3 II. Discussion Defendant-Intervenor United States Steel Corporation (“U.S. Steel”) now challenges Commerce’s determination that Plaintiff did not benefit from the Policy on two grounds. U.S. Steel first claims that the Documents underscore the need for Commerce to apply adverse facts available because they show that Plaintiff did not act to the best of its ability during the administrative review. Def.-Intervenor Br. 3-7. This contention lacks merit. The Documents, provided by the State Government of Chhattisgarh, verify that Plaintiff did not benefit from the Policy during the period of review because Plaintiff was not eligible to receive benefits from 2004 through 2009. See Redetermination at 4; Admin. R. Conf. Doc. 1229 Ex. 4 and 1193 Ex. 9. Commerce therefore reasonably supported its finding that Plaintiff did not benefit from the Policy with substantial evidence. Second, U.S. Steel insists that the court should not have ordered Commerce to consider the documents on remand. Def.-Intervenor Br. 7-9. Although U.S. Steel could have raised this contention in a motion for reconsideration within 30 days of the filing of Essar I, see USCIT R. 59(b), that time has passed, and the issue is not properly before the court. See Former Emps. of Quality Fabricating, Inc. v. United States, 28 CIT 1061, 1070, 353 F. Supp. 2d 1284, 1292 (2003) (“Pursuant to the law of the case doctrine, when a court decides upon a rule of law, that decision continues to govern the same issues in subsequent phases of the case . . . . If Defendant had wished to challenge that finding, a motion for reconsideration would have been the appropriate motion.”) (citing Arizona v. California, 460 U.S. 605, 618 (1983) (internal citation omitted)). The court nevertheless wishes to reiterate that in Essar I, the court found that the stark contrast between Commerce’s finding in the fourth administrative review that Plaintiff could not Court No. 09-00197 Page 4 have benefitted from the Policy between 2004 and 2009 and its assessment of a 54.69 per cent ad valorem duty for benefits received from the same program during the fifth administrative review constituted an exceptional case that warranted the reopening of the administrative record. Essar I, 34 CIT at __, 721 F. Supp. 2d at 1300-01; see Home Prods. Int’l, Inc. v. United States, 33 CIT __, __, 675 F. Supp. 2d 1192, 1199 (2009). As the Federal Circuit has held, “Congress’ desire for speedy determinations . . . should not be interpreted as authorizing proceedings that are based on inaccurate data,” and when new facts emerge “between the date of an agency . . . decision and the date of decision on appeal,” a court may properly rely upon those new facts and direct the agency to consider them upon remand. Borlem S.A.-Empreedimentos Industriais v. United States, 913 F.2d 933, 937, 939 (Fed. Cir. 1990) (citation omitted); see Anshan Iron & Steel Co. v. United States, 28 CIT 1728, 1736-37, 358 F. Supp. 2d 1236, 1243 (2004). See genearlly Borlem S.A.-Empreedimentos Industriais, 913 F.2d at 937-41. IV. Conclusion For the foregoing reasons, it is hereby ORDERED that Commerce’s determination that Plaintiff did not benefit from the Chhattisgarh Industrial Policy is SUSTAINED; and it is further ORDERED that Commerce’s Redetermination is SUSTAINED. Dated: January 25, 2011 /s/ Judith M. Barzilay New York, New York Judith M. Barzilay, Judge 

74 F.2d 671 (1935) In re GUZZARDI. GOLUB v. GUZZARDI. No. 212. Circuit Court of Appeals, Second Circuit. January 21, 1935. Abraham J. Halprin, of New York City (Irving Barry, of New York City, of counsel), for appellant. London, Guzik & London, of New York City (Leo Guzik, of New York City, of counsel), for appellee. Leo J. Hickey, U. S. Atty., of Brooklyn, N. Y. (Emanuel Bublick, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States, amicus curiæ. Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges. L. HAND, Circuit Judge. The bankrupt appeals from an order of the bankruptcy court sentencing him to 60 days' imprisonment for contempt of court. The proceeding was commenced by an order to show cause, supported by the petition of the trustee in bankruptcy, both entitled in the bankruptcy proceeding. The order required the bankrupt to "show cause why he should not be punished for contempt of court for interfering with the orders of this court and with the administration of the estate * * * and in concealing and inducing disobedience of the witnesses to the orders of this court and why he should not be directed to produce for examination * * * Josephone Quartucci, Caroline Quartucci and John Quartucci." The petition stated its purpose in substantially similar form, speaking *672 however of the production of the witnesses as "additional or alternative relief." It concluded with a prayer "that the bankrupt should be punished for contempt of court and should be directed to produce his relatives as witnesses and that he be stayed and enjoined from interfering with the processes of this court and from harboring these witnesses." The bankrupt filed an affidavit containing argumentative denials of the petition, and the case went to trial before the judge. The general purpose of the proceeding was ancillary to disclosing the bankrupt's relation to a restaurant, a broker's account, and an automobile; the trustee asserted that each of these was his property and might be reclaimed for the creditors. To establish that position he wished to examine Josephine Quartucci, the bankrupt's sister, Caroline Quartucci, his niece, and John Quartucci, his brother-in-law; and their appearance to testify he alleged that the bankrupt had prevented. John may be disregarded — nothing was shown as to him; but we will assume that as to both Caroline and Josephine, there was enough evidence to support the finding that he had actively interfered with the trustee's efforts to get their testimony, although Caroline was fully examined before the referee, while this proceeding was in progress. At the conclusion of the evidence the judge committed the bankrupt to prison for sixty days. The most important question is whether the proceeding was obviously criminal from the outset, or from a time early enough to advise him and protect his rights. To prove that it was, the trustee relied especially upon the process and the petition which asked that he be "punished" for having interfered with the processes of the court, and upon the repeated declarations of the judge during the hearings that the proceeding was to "punish" him for contempt. Again, he relied upon the reply to the court, after sentence, of the attorney for Caroline Quartucci acting apparently for the bankrupt, at the moment, that he had assumed from the way the proceeding was going, that he would be imprisoned. The great importance attached to the characterization as criminal of a proceeding to punish for contempt, dates from Gompers v. Buck's Stove Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, before which the practice had been looser. The Supreme Court there set out the elements which persuaded it that that proceeding had been civil. We read the opinion, not as making crucial any one detail, but rather as summing up the features of a portrait which as a whole was plainly recognizable. If so, our duty here is to learn how far the case at bar may be superimposed upon the facts there. That proceeding was prosecuted by the party aggrieved; it was apparently a part of the civil proceedings in chief, being so entitled; the plaintiff asked costs, and called the respondents to the stand; there was a clause in the prayer asking general relief. The facts here are parallel except that the trustee did not call the bankrupt to the stand and asked no costs. Nevertheless the character of the charge at bar was as equivocal as there; to demand that the respondent should be "punished" did not tell him that he stood in jeopardy of an unconditional imprisonment. "Punishment" is a word apt for civil contempts and constantly so used. Thus, if a man be imprisoned for violation of a decree till he complies with it, he would regard himself as "punished" though he could get out when he chose. Again, he would think that he was "punished" if he were fined the expenses of a civil proceeding, as he might be. It does not distort the language of process to say that the trustee might have meant only to put pressure upon the respondent to produce the witnesses named, by locking him up until he did produce them and fining him for the expenses after he had. Again, some part of the relief asked was civil in any event, and the proceeding bore every evidence of being part of the bankruptcy proceedings. Finally, it was prosecuted by the trustee without the initiative of judge or district attorney. In our opinion its criminal aspect was for these reasons not marked clearly enough to support an unconditional sentence of imprisonment. Bradstreet Co. v. Bradstreet's Collection Bureau, 249 F. 958 (C. C. A. 2); Shulman v. United States, 18 F.(2d) 579 (C. C. A. 6); Monroe Body Co. v. Herzog, 18 F.(2d) 578 (C. C. A. 6); Wakefield v. Housel, 288 F. 712 (C. C. A. 8); Mitchell v. Dexter, 244 F. 926 (C. C. A. 1). We have ourselves gone further and flatly decided that unless the charge be prosecuted by the district attorney, it cannot be considered as criminal at all. In re Kahn (C. C. A.) 204 F. 581. That would be conclusive upon us now, were it not, that in three other circuits it seems to have been assumed that this was not a sine qua non, though there was little or nothing said about it in the opinions. Kreplik v. Couch Patents Co., 190 F. 565 (C. C. A. 1); In re *673 Star Spring Bed Co., 203 F. 640 (C. C. A. 3); In re Kaplan Bros., 213 F. 753 (C. C. A. 3); Wingert v. Kieffer, 29 F.(2d) 59 (C. C. A. 4). Cf. Monroe Body Co. v. Herzog, supra (C. C. A.) 18 F.(2d) 578. In spite of these decisions there can, however, be no doubt that prosecution by the judge sua sponte, or by the district attorney, is an important factor in deciding the issue. In the case at bar it was especially important. An assistant district attorney was present during the hearings, or at least for a part of them, observing, but taking no part. Apparently he wished to keep aloof and merely to learn whether anything would transpire to show that a crime had been committed. His presence without participation was surely misleading if a criminal prosecution was in progress; and while the district attorney did indeed seek to intervene upon this appeal, it was then too late. So far as the doctrine is serviceable at all, it can only be to advise the accused of the nature of the claim; and it serves him not at all after the event. It is perhaps a misfortune that the result should depend upon the form of the proceeding, and it is quite likely that in fact the bankrupt knew what the consequences to him might be, quite as well as though he had been expressly so told. But whatever the value of the distinction, we must assume that Gompers v. Buck's Stove Co., supra, 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, is still the law, and we must give it its proper effect, so far as we can see. Besides, it is of at least some practical consequence to the respondent in such a proceeding to know whether he is charged with crime; the outcome may be severer, and the degree of proof is higher; his conduct may be governed accordingly. We do not say that this must be known at the outset; it is enough if it becomes manifest in season; but manifest it must be, and not for the first time on appeal. Nor does the requirement involve any hardship to the party who promotes the cause, unless he is really bent upon prosecuting and controlling a criminal proceeding as his own. There is no reason why its character should not be expressly declared at the outset and the initiative of the judge secured, or that of the district attorney. If counsel see fit to leave this feature of the cause in nubibus they have themselves to thank for their eventual miscarriage. We will not go through a record, catching at straws, which lead us first one way and then another, and in the end force us to guess about a matter which could be so easily set right at the beginning. Order reversed, but without costs.

In the United States Court of Appeals For the Seventh Circuit ____________ Nos. 07-2752, 07-3110 ST. MARGARET MERCY HEALTHCARE CENTERS, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. ____________ Petition to Review and Cross-Application to Enforce an Order of the National Labor Relations Board. 13-CA-38629 ____________ ARGUED FEBRUARY 22, 2008—DECIDED MARCH 11, 2008 ____________ Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges. POSNER, Circuit Judge. The Labor Board found that St. Margaret, which owns and operates two hospitals in Indiana (but for the sake of simplicity we’ll assume they’re one), interfered with the right of the hospital nurses to organize and discriminated against one of the nurses, who was a union activist. The interference, the Board ruled, violated section 8(a)(1) of the National Labor Re- lations Act, and the discrimination section 8(a)(3). 29 U.S.C. §§ 158(a)(1), (a)(3). 2 Nos. 07-2752, 07-3110 Determining when an employer is unlawfully inter- fering with organizing activities requires weighing the employees’ interest in organizing against the interest of the employers and others (such as, in this case, the hospi- tal’s patients) in being free from disruptive interference by union organizers in the operation of the employer’s business. E.g., Sentry Markets, Inc. v. NLRB, 914 F.2d 113, 115 (7th Cir. 1990); First Healthcare Corp. v. NLRB, 344 F.3d 523, 533-34 (6th Cir. 2003). “Accommodation between [employee-organization rights and employer property rights] must be obtained with as little destruction of one as is consistent with the maintenance of the other.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). So the Labor Board allows a hospital to forbid union activities in patient care areas, NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 778 n. 8 (1979); Mt. Clemens General Hospital v. NLRB, 328 F.3d 837, 846-47 (6th Cir. 2003); Stanford Hospital & Clinics v. NLRB, 325 F.3d 334, 338-39 (D.C. Cir. 2003); Brockton Hospital, 333 N.L.R.B. 1367, 1368-69 (2001), and pursuant to this dispensation St. Margaret prohibits its employees “from soliciting other employees or distributing any materials at any time in patient care areas” (emphasis in original). These areas include, the rule goes on to provide, not only patient, operating, and other treat- ment rooms but also “halls and corridors” adjacent to those rooms, along with other areas used by patients. But when nurses or other employees are on break, union soliciting is permitted in “non-work areas,” defined to include “employee break areas.” The lawfulness of the company’s rule is conceded, but the Board found that the hospital violated it—and by doing so upset the balance the Board has struck between the hospital’s interests and those of its employees—by forbid- Nos. 07-2752, 07-3110 3 ding union activities in the “employee break areas” (also called “multipurpose rooms” or “breakrooms”), rooms in which nurses and other members of the hospital’s staff can relax while off duty. The hospital argues that because the breakrooms are opposite patient rooms in the hospital’s intensive-care unit, separated from them only by a corridor, and the doors of the breakrooms are usually left open, the patients can hear the staff talking in them and so it is as if they were “patient care areas.” It is not a ridiculous argument, or one precluded by the hospital’s rule; the draftsmen may not have anticipated the noise problem. The corridors are wide, however—18-20 feet. (With the typical insouciance of lawyers regarding quantitative measures, which we have remarked despairingly in such cases as Coffey v. Northeast Illinois Regional Commuter R.R. Corp., 479 F.3d 472, 478 (7th Cir. 2007), and Publications Int’l, Ltd. v. Landoll, Inc., 164 F.3d 337, 343 (7th Cir. 1998), the record does not contain the exact dimensions of the corridors.) (They contain nurses’ stations.) There is only slight evidence that staff conversations ever carry from a breakroom at one side of the corridor to a patient’s room at the other side. And eighteen feet is an underestimate of the distance the sound has to travel to be heard, because members of the staff when chatting in the breakrooms are obviously some distance inside the room rather than leaning up against the door; likewise the patients’ beds are not up against the doors of their rooms. If conversations ever do carry so far, the obvious solution, which would pro- tect the interests of the hospital and the employees with- out any sacrifice of either, is for the hospital to require that the doors of the breakrooms be shut except when someone is entering or leaving. The door could be on a 4 Nos. 07-2752, 07-3110 spring that would cause it to close automatically when- ever it was opened. The charge of discrimination relates to a disciplinary sanction against a nurse for engaging in union solicita- tion at a nurses’ station. That is properly forbidden by the hospital’s rule. But the Board found that the rule, which is not limited to solicitation related to union organ- izing, was applied discriminatorily. In fact, it was ap- plied only to employees who solicit in favor of unions. As the Board found, “employee solicitation at the nurses’ station was a common practice. These included a wide variety of solicitations, including solicitations for Girl Scout cookies, March of Dimes, United Way, Secre- tary’s Day and Boss’ Day, and ‘going away’ parties, birthday parties, and other social occasions.” We are particularly struck by the hawking of “beach balm,” a product “created by a registered nurse to control bikini line irritation” and optimized for “anyone who shaves or waxes bikini lines.” (Consumers will doubtless be reas- sured to learn that beach balm is “natural, safe, and tested by nurses, not on animals!”) Management was aware of these solicitations and even participated in some of them. It is true, as a Board member pointed out in dissent, that with the exception of the balm the solicitations were charitable or social rather than commercial. But what difference can that make? The hospital’s rule forbids solicitations in patient care areas, period, yet the only solicitations that have ever drawn a rebuke from man- agement are, as the hospital’s lawyer acknowledged at argument, those in support of union activities. Moreover, it is far from obvious that a patient in intensive care will be less disturbed by a nurse hawking bikini lotion or organizing a birthday party than by a union organizer. Nos. 07-2752, 07-3110 5 Patients, especially those in intensive care, and their family members and friends, would like to think that nurses when on duty give their exclusive attention to their professional duties and are not distracted by en- gaging in charitable, social, or commercial activities. The singling out of the union-supporting nurse for rebuke was discrimination against union activities. The Board’s order is amply supported, and so the petition for review is denied and the Board’s application for an order judicially enforcing its order is granted. USCA-02-C-0072—3-11-08 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) JOHN S. HUNTER, ) ) Plaintiff, ) ) v. ) Civ. Action No. 12-1144 (EGS) ) MASSACHUSETTS MUTUAL LIFE ) UNDER SEAL INSURANCE COMPANY, ) ) Defendant. ) ______________________________) MEMORANDUM OPINION John Hunter brings this lawsuit alleging that Massachusetts Mutual Life Insurance Company (“MassMutual”) breached an insurance contract by failing to pay him the correct amount of monthly disability benefits and commencing payment on the wrong date. Pending before the Court is defendant’s motion for summary judgment. Upon consideration of the motion, the responses and replies thereto, the applicable law, the oral argument, and the entire record, the Court GRANTS defendant’s motion. I. BACKGROUND A. The Disability-Insurance Policy Dr. Hunter, a dentist, has practiced in Washington, D.C. since 1985. Def.’s Statement of Material Facts (“Def.’s SMF”), ECF No. 22-1 ¶¶ 1–2. On October 5, 1992, he obtained a disability- insurance policy (“the Policy”) from MassMutual. Id. ¶ 3. The Policy provides a maximum monthly benefit of $3,000 and an additional $1,000 monthly maximum if Dr. Hunter does not receive other disability benefits. See Ex. 1 to Def.’s Mot. for Summ. J. (“Mot.”), ECF No. 24 at 3, 23.1 The amount of benefits to be paid each month is tied to Dr. Hunter’s “loss of earned income,” which is the difference between his average monthly income during the twelve months preceding the onset of his disability and his income during the current month. See id. at 7–8. Benefits may be paid only after a waiting period, which lasts for sixty days after the onset of the disability. Id. at 3–4, 9. Benefits are then available “subject to certain notice and proof of disability requirements.” Id. at 13. The insured must provide “notice” by indicating in writing that he “is disabled and that a claim may be made,” and must do so “before the end of 20 days after the Waiting Period, or as soon afterwards as it is reasonably possible to do so.” Id. He must also submit “proof of claim . . . before the end of 90 days after the end of each monthly period” for which he claims benefits. Id. “[I]f it is not reasonably possible to give . . . proof within this time limit, then proof may be given as soon thereafter as it is reasonably possible to do so.” Id. This extension is limited to one year, “[u]nless the delay is due to legal incapacity.” Id.  1 The parties dispute whether Dr. Hunter is entitled to an additional $863 per month pursuant to a policy rider, but that dispute is immaterial to this motion. Compare Def.’s SMF ¶ 4, with Plaintiff’s Statement of Material Facts, ECF No. 27-1 ¶ 4. 2  B. Dr. Hunter’s Injury and Insurance Claim On July 17, 2004, Dr. Hunter was involved in a motorcycle accident. See Pl.’s Opp. to Mot. for Summ. J. (“Opp.”), ECF No. 27 at 2. He did not contact MassMutual about the accident until March 4, 2011, when he provided notice of a claim. See Ex. 2 to Mot., ECF No. 22-5 at 1–2. That day, MassMutual sent him a claim package and asked him to complete certain forms. Ex. 3 to Mot., ECF No. 22-6 at 1. On April 12, 2011, Dr. Hunter submitted his forms and listed various medical conditions as resulting from the accident. See Ex. 4 to Mot., ECF No. 24-1 at 5. MassMutual wrote Dr. Hunter on April 21, 2011 to request that he “explain, in detail, why he filed a claim more than 6 years after the date on which he is claiming Partial Disability.” Ex. 5 to Mot., ECF No. 22-8 at 2. Dr. Hunter replied on June 3, 2011, and attached a letter from a doctor stating that the conditions resulting from the accident “caused [Dr. Hunter] to not pursue or understand the option of pursuing disability coverage since 2004.” Ex. 2 to Opp., ECF No. 28-1 at 3. On October 20, 2011, MassMutual approved Dr. Hunter’s claim for disability benefits and assigned him a “temporary disability date of January 3, 2011.” Ex. 6 to Mot., ECF No. 22-9 at 1. On February 14, 2012, MassMutual wrote to Dr. Hunter to inform him of its conclusion that his “permanent date of disability” for the purpose of calculating his entitlement to benefits would be 3 January 3, 2011. See Ex. 7 to Mot., ECF No. 22-10. Among other reasons for this decision, MassMutual stated: [W]e did not receive notice of claim from Dr. Hunter until March 4, 2011 and we did not receive the initial Proof of Loss until April 6, 2011. It is important to note that this is more than 6 ½ years after Dr. Hunter’s reported date of disability. As a result of the late notice of claim and proof of loss submission, MassMutual’s rights have been severely prejudiced . . . . As such, we are unable to make an accurate assessment of any benefits to which Dr. Hunter may be eligible for prior to January 3, 2011. Id. at 3 (emphasis added). C. Procedural History Dr. Hunter filed this lawsuit on July 9, 2012, alleging that MassMutual breached the insurance contract by failing to pay disability benefits to cover the period from July 17, 2004 to January 2, 2011, and by calculating his prospective benefits based on his average monthly income from the twelve months preceding January 3, 2011, rather than July 17, 2004. See Compl., ECF No. 3 ¶¶ 23–29. He was initially granted leave to proceed under the pseudonym John Doe. See Order, ECF No. 2. On September 10, 2012, MassMutual filed two motions to dismiss. The first claimed that Dr. Hunter violated Federal Rule of Civil Procedure 10(a) by filing his complaint under a pseudonym. See Mem. in Supp. of Mot. to Dismiss, ECF No. 4-1. The second motion sought dismissal of various claims and forms of relief. See Mem. in Supp. of Mot. to Dismiss, ECF No. 5-1. 4 After a hearing, the Court ordered Dr. Hunter to proceed under his real name, and dismissed certain of his claims and requests for relief. See Minute Order of May 2, 2013. On September 9, 2013, MassMutual moved for summary judgment. See Mem. in Supp. of Mot. (“Mem.”), ECF No. 22-2. Dr. Hunter filed his opposition on November 18, 2013. See Opp. MassMutual filed its reply on December 6, 2013. See Def.’s Reply (“Reply”), ECF No. 29. The Court held a hearing on May 21, 2014, and subsequently ordered the parties to file supplemental briefs. See Pl.’s Suppl. Br., ECF No. 33; Def.’s Suppl. Br., ECF No. 35. The motion for summary judgment is now ripe for decision. II. STANDARD OF REVIEW Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists where the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. A court considering a motion for summary judgment must draw all “justifiable inferences” from the evidence in favor of the nonmovant. Id. at 255. To survive a motion for 5 summary judgment, however, the requester “must do more than simply show that there is some metaphysical doubt as to the material facts”; instead, the nonmoving party must come forward with “‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting Fed. R. Civ. P. 56(e)). III. CHOICE OF LAW Federal courts sitting in diversity must apply the choice-of- law rules of the state in which they sit. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941). Therefore, the District of Columbia’s choice-of-law analysis applies. In insurance cases, where the insured is a D.C. resident and the insured risk is located in D.C., courts have held that D.C. law applies. See, e.g., Potomac Elec. Power Co. v. Cal. Union Ins. Co., 777 F. Supp. 968, 973 (D.D.C. 1991). Defendant argues that D.C. law applies to this case because Dr. Hunter was a D.C. resident when the Policy was issued and at the time he submitted his claim for benefits. See Mem. at 4 n.1. Dr. Hunter does not dispute this. Accordingly, the Court will apply D.C. law. IV. ANALYSIS MassMutual claims that Dr. Hunter is not entitled to benefits prior to January 3, 2011 because he did not provide timely notice and proof of his claim. See Mem. at 4–7; Def.’s Suppl. Br. at 2. MassMutual also argues that Dr. Hunter did not submit 6 evidence from which a jury could conclude that it was not reasonably possible to submit timely notice and proof. See Reply at 1–5. In any event, MassMutual asserts, Dr. Hunter’s failure to provide timely proof dooms his claim because the Policy limits the extension for delayed proof to one year, absent legal incapacity. See id. at 1–2. Dr. Hunter responds that MassMutual waived this argument and that the Court should ignore the one- year limit. See Pl.’s Suppl. Br. at 1–9. A. MassMutual Did Not Waive the Proof Requirement. Dr. Hunter argues that MassMutual waived the notice and proof requirements, but provides no legal authority for this argument. See Pl.’s Suppl. Br. at 1–3. He asserts that “MassMutual did not deny the claim, nor any portion of the claim, on account of Dr. Hunter’s failure to provide timely notice or proof.” Id. at 1. He believes that MassMutual’s February 14, 2012 denial of his claim for benefits prior to January 3, 2011 “was based on the sufficiency of medical evidence, not the timing of his notice or proof.” Id. at 2. The Court disagrees. The Policy makes the payment of benefits “subject to certain notice and proof of disability requirements.” Ex. 1 to Mot., ECF No. 24 at 13. As a result, compliance with the notice and proof provisions are conditions precedent to coverage. See, e.g., Travelers Indem. Co. v. United Food & Comm. Workers Int’l Union, 770 A.2d 978, 991 (D.C. 2001). When “compliance with notice 7 provisions is a contractual precondition to coverage, a failure timely to notify releases the insurer from liability.” Greycoat Hanover F Street Ltd. P’ship v. Liberty Mut. Ins. Co., 657 A.2d 764, 768 (D.C. 1995); see also Sidibe v. Traveler’s Ins. Co., 468 F. Supp. 2d 97, 101 (D.D.C. 2006). Accordingly, Dr. Hunter bears the burden of proving that these conditions precedent were satisfied as part of his breach-of-contract claim. See Nat’l Elec. Mfrs. Ass’n v. Gulf Underwriters Ins. Co., 162 F.3d 821, 826 (4th Cir. 1998) (applying D.C. law to an insurance dispute and noting that “conditions precedent must be proved by [a] plaintiff who seeks to recover on [an] insurance policy”). Dr. Hunter’s argument appears to be that he need not prove compliance with the notice and proof provisions because MassMutual waived those conditions by failing to rely on them in adjudicating his initial request for benefits. In fact, MassMutual focused on the delayed notice and proof during the investigation of Dr. Hunter’s claim. See Ex. 5 to Mot., ECF No. 22-8 at 2 (April 21, 2011 letter requesting a detailed explanation why Dr. Hunter “filed a claim more than 6 years after the date on which he is claiming Partial Disability”). Moreover, in its final decision, MassMutual clearly stated that the delayed notice and proof “severely prejudiced” its rights, made it difficult to investigate the claim, and rendered MassMutual unable to assess whether Dr. Hunter would otherwise 8 have been entitled to benefits prior to January 3, 2011. See Ex. 7 to Mot., ECF No. 22-10 at 3. MassMutual specifically relied on the delayed notice and proof. Waiver, by contrast, “‘is an intentional relinquishment or abandonment of a known right or privilege.’” Nortel Networks, Inc. v. Gold & Appel Transfer, S.A., 298 F. Supp. 2d 81, 88 (D.D.C. 2004) (quoting United States v. Robinson, 459 F.2d 1164, 1168 (D.C. Cir. 1972)). “To preserve a right to notice, a party may question the sufficiency of the notice it has received or otherwise indicate its belief that the party obligated to give notice has in some way been deficient.” Id.; see also FDIC v. Interdonato, 998 F. Supp. 1, 10 (D.D.C. 1997). MassMutual’s invocation of the delayed notice and proof in its letter setting forth its decision on Dr. Hunter’s claim was sufficient to preserve its right to notice. B. Dr. Hunter Failed to Provide Timely Proof of His Claim.  MassMutual contends that Dr. Hunter’s claim must fail because he did not comply with the Policy’s notice and proof provisions. As discussed above, these provisions are conditions precedent to coverage. See supra at 7. It is undisputed that Dr. Hunter did not comply with the Policy’s enumerated time limits because he did not provide notice of his claim until March 4, 2011, well after the eighty days prescribed by the Policy, and did not provide proof of his claim until April 12, 2011. 9  The Policy provides an escape valve for delayed notice, however, by alternatively permitting notice “as soon as it is reasonably possible.” Ex. 1 to Mot., ECF No. 24 at 13. Dr. Hunter rightly notes that D.C. courts interpret such terms to permit “notice within a reasonable time in view of all the facts and circumstances of each particular case”—a determination that “will often be a question for the jury.” Greycoat, 657 A.2d at 768 (quotation marks omitted). The Court need not resolve whether Dr. Hunter provided evidence from which a jury could infer that his notice was submitted as soon as reasonably possible, however, because the Policy provides no such extension of the deadline for submitting proof: Written proof of claim must be given . . . before the end of 90 days after the end of each monthly period for which we are liable for benefits. However, if it is not reasonably possible to give us proof within this time limit, then proof may be given as soon thereafter as it is reasonably possible to do so. Unless the delay is due to legal incapacity, this extension of time is limited to one year. Ex. 1 to Mot., ECF No. 24 at 13. The plain language of this provision bars Dr. Hunter’s claim to benefits prior to January 2011 because he did not submit proof until April 2011. Moreover, because Dr. Hunter submitted proof over one-year late, he may take advantage of the extension for circumstances in which it is not reasonable possible to provide proof only if the delay was 10 “due to legal incapacity.” Id. Dr. Hunter has not argued that he was legally incapacitated, and, as his counsel appeared to admit during oral argument, his evidence does not support such a finding.2 Under D.C. law, this plain language must be given effect. “An insurance policy is a contract between the insured and the insurer, and in construing it [a court] must first look to the language of the contract.” Cameron v. USAA Prop. & Cas. Ins. Co., 733 A.2d 965, 968 (D.C. 1999). If that language is unambiguous, “the policy must be enforced as written, absent a statute or public policy to the contrary.” Nat’l R.R. Passenger Corp. v. Lexington Ins. Co., 445 F. Supp. 2d 37, 41 (D.D.C. 2006) (citing Cameron, 774 A.2d at 968–69). Dr. Hunter first argues that “the construction of the Policy” should overrule its plain language. His argument appears to be that because the Policy provides for an extension of the deadline for filing notice of a claim so long as it is submitted “as soon as it is reasonably possible,” it would be incongruous to prevent recovery because of failure to submit proof during a time when it was not reasonably possible to submit such proof.  2 The Court asked during oral argument whether, in the absence of legal incapacity, the Policy could provide Dr. Hunter with an additional year of benefits (from January 2010 to January 2011) due to language permitting a one-year delay in submitting proof as soon as it is reasonably possible. See id. Plaintiff’s counsel disavowed this interpretation of the Policy. 11 Plaintiff relies on the case of Barnett v. Mutual Trust Life Insurance Co., 105 N.Y.S. 2d 769 (N.Y. Sup. Ct. 1951), but that case is easily distinguishable. In Barnett, the Court interpreted an insurance contract that required submission of proof before an insured could obtain benefits and required notice “during the lifetime of the insured and during the continuance of total disability.” Id. at 770. The notice provision permitted delayed notice “if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible. Id. The Court held that interpreting the proof provision to bar recovery where the notice provision would have granted an extension would render the notice provision “meaningless and illusory since the assured . . . [is] not excused from furnishing due proof of disability within the period during which they are excused from furnishing notice of claim.” Id. The Barnett Court distinguished a prior case in which a contract required notice “within 20 days after the date of the accident . . . unless it was not reasonably possible to give such notice” and required proof “within 90 days after the loss.” Id. (citing MacKay v. Metropolitan Life Ins. Co., 22 N.E.2d 154 (N.Y. 1939). Those proof and notice provisions were “consistent” because “[a]lthough the time for giving notice of claim could be extended . . . beyond 20 days after the date of the accident, 12 such extension was not intended to go beyond the 90-day period provided for the furnishing of proof of loss.” Id. The Policy here is also consistent. The notice provision provides for an unlimited extension of time, but the proof provision limits its extension to one year, absent legal incapacity. Accordingly, notice may be given as soon as reasonably possible and an insured may then recover prospective benefits by submitting proof. Having submitted late notice, however, an insured may not receive retroactive benefits absent legal incapacity, unless the proof is submitted less than one year late and as soon as reasonably possible.3 Alternatively, plaintiff asserts that the “common law” requires that proof provisions in insurance contracts be interpreted to permit untimely proof so long as the delay is “reasonable,” and that this doctrine overrides the Policy’s plain language. See Pl.’s Suppl. Br. at 7–9. There is minimal support for such a broad doctrine. The District of Columbia cases cited by plaintiff involved interpretations of contractual terms that required notice of a claim within a reasonable period and contained no other limit on the length of this period. See  3 Because the Policy is consistent, the canon that ambiguities in insurance contracts are construed against the insurer is inapplicable. See Pl.’s Suppl. Br. at 7 (citing Athridge v. Aetna Cas. & Sur. Co., 351 F.3d 1166, 1172 (D.C. Cir. 2003); Carey Canada, Inc. v. Cal. Union Ins. Co., 748 F. Supp. 8, 12 (D.D.C. 1990)). 13 Diamond Serv. Co. v. Utica Mut. Ins. Co., 476 A.2d 648, 652 (D.C. 1984) (interpreting a contractual term requiring notice of potential claim “as soon as practicable”); Starks v. N.E. Ins. Co., 408 A.2d 980, 982 (D.C. 1979) (same). Those decisions do not support a finding that explicit contractual limitations may be ignored. The other cases cited by plaintiff stand for the much narrower proposition that courts may override contractual notice or proof terms in situations involving “incapacity” or “insanity.” See Mut. Life Ins. Co. v. Heilbronner, 116 F.2d 855, 858–59 (8th Cir. 1941) (overriding contractual time limits because of insured’s “mental incapacity,” which “rendered the insured non compos mentis”); Saebra v. Puritan Life Ins. Co., 369 A.2d 652, 655, 656 (R.I. 1977) (inferring an exception for “mental incapacity” or “insanity”); Franklin Life Ins. Co. v. Tharpe, 178 So. 300 (Fla. 1938) (crafting exception for “physical or mental incapacity”). In another case, a court excused an insured’s failure to comply with a provision that required proof “no later than 90 days . . . or as soon thereafter as reasonably possible” and was interpreted to bar extensions “later than one year after the deadline.” Chapman v. Choicecare Long Island Long Term Disability Income Plan, No. 98-cv-4475, 2004 U.S. Dist. LEXIS 26546, at *2 (E.D.N.Y. May 28, 2004) (quotation marks and alteration omitted). That policy did not contain an exception 14 for incapacity, so the Court relied on principles of equitable tolling to permit the case to go forward due to evidence that the plaintiff’s mental illness rendered her “very dysfunctional.” Id. at *8. The concerns expressed in these cases are largely—if not entirely—assuaged by the Policy itself, which extends the deadline for filing proof in cases of legal incapacity.4 One case cited by plaintiff, Clarke v. Unum Life Insurance Co., 14 F. Supp. 2d 1351 (S.D. Ga. 1998), arguably supports his theory. The Court in that case faced a familiar set of notice and proof provisions: notice was required “within 30 days” or  4 Chapman also relied on the doctrine of equitable tolling, which is inapplicable here. Equitable tolling is “exercised only in extraordinary and carefully circumscribed instances.” Smith- Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998). In D.C., it may apply to a person who is non compos mentis. Miller v. Rosenker, 578 F. Supp. 2d 67, 72 (D.D.C. 2008). This generally means that the person “is completely incapable of handling his affairs and legal rights,” id., and the inquiry “often focuse[s] on whether the plaintiff was ever adjudged incompetent, signed a power of attorney, had a guardian or caretaker appointed, or otherwise took measures to let someone else handle [plaintiff’s] affairs.” Davis v. Vilsack, 880 F. Supp. 2d 156, 162 (D.D.C. 2012) (quotation marks omitted). Dr. Hunter has not demonstrated legal incapacity. See supra at 7. Nor has he submitted evidence that he was utterly incapable of handling his affairs. Indeed, Dr. Hunter has not disputed that he filed a lawsuit in 2009 seeking to recover funds allegedly embezzled by his former office manager. See Reply at 4–5; Ex. 1 to Def.’s Suppl. Br., ECF No. 35-1. This fact renders him ineligible for equitable tolling because “[p]articipation in legal . . . proceedings in an effort to secure rights or benefits is an indication of mental capacity.” Schmidt v. United States, 89 Fed. Cl. 111, 123 (Fed. Cl. 2009); see also Messerschmidt v. United States, No. 3-2421, 2005 WL 578174, at *5 (D.D.C. Mar. 10, 2005). 15 “as soon as it is reasonably possible” and proof was required “no later than 90 days” or “as soon as reasonably possible”— “[b]ut . . . not . . . later than one year after the time proof is otherwise required.” Id. at 1353. Although notice and proof were submitted over one year late, the Court permitted the case to go forward because “there is sufficient evidence to raise a question of fact as to whether [plaintiff’s] failure to provide timely notice was excused.” Id. at 1356. In Clarke, however, the Court did not address the impact of the independent proof-of- claim provision, which limited such an extension to one year, and the Court was applying Georgia law. The impact of such a provision is squarely before this Court, and D.C. law applies to this case. In D.C., unambiguous language in an insurance contract “must be enforced as written, absent a statute or public policy to the contrary.” Nat’l R.R. Passenger Corp., 445 F. Supp. 2d at 41. Dr. Hunter has identified no relevant statute and the Court is not persuaded that a sufficiently strong public policy exists to override the Policy’s one-year limitation on delayed proof. Some of the cases cited by Dr. Hunter found the need to infer an exception for incapacity, but the Policy already contains such a term. Dr. Hunter asks the Court to infer an exception for all situations in which providing proof is not reasonably possible, regardless of the reason or length of delay. That broad request 16 to undermine the Policy’s plain language cannot be squared with the long history of D.C. Court of Appeals decisions emphasizing the importance of notice-type provisions in insurance contracts, declaring them “of the essence of the contract,” Greycoat, 657 A.2d at 768, and mandating that they be “given effect in the interest of the public as well as the insurer.” Diamond, 476 A.2d at 652.5 There is therefore little basis to ignore the plain language of the Policy’s proof provision. Nor is it rare for courts to enforce similar provisions. See Hunter v. Fireman’s Fund Ins. Co., 448 F.2d 805, 807 (10th Cir. 1971) (enforcing provision that made notice due “within twenty days . . . or as soon thereafter as it reasonably possible” and required proof “within 90 days,” but provided an extension if “not reasonably possible to give proof” and limited that extension to one year, “except in the absence of legal capacity”); Wright v. Paul Revere Life Ins. Co., 291 F. Supp. 2d 1104, 1115 (C.D. Cal. 2003) (enforcing provision which “require[d] that written proof of loss be provided within 90 days . . . unless not reasonably possible” and stated “unless You are legally incapacitated, written proof must be given within one year of the date it was required”); see also, e.g., Roth v. Nw. Mut. Life Ins. Co., No. 12-452, 2014 WL 1281603, at  5 D.C. is also among the minority of jurisdictions that do not require an insurer to prove that late notice caused prejudice. See, e.g., Nat’l R.R. Passenger Corp., 445 F. Supp. 2d at 43. 17 *3–4 (D. Minn. Mar. 28, 2014); Dawson v. Nw. Mut. Life Ins. Co., No. 10-2641, 2011 WL 4842543, at *1–3 (D. Minn. Oct. 12, 2011); Broughton v. Unum Life Ins. Co., No. 6-4015, 2007 WL 39432, at *1, 6 (D.S.D. Jan. 5, 2007); Nelson v. Ins. Co. of N. Am., 264 F. Supp. 501, 503 (D.N.J. 1967). The Court will therefore enforce the Policy as written. Dr. Hunter’s failure to submit timely proof bars his claim to benefits prior to January 3, 2011 and renders him ineligible for a prospective adjustment of the amount of his benefits based on an earlier date of disability because the proof provision is a condition precedent to coverage. See supra at 7. V. CONCLUSION For the foregoing reasons, the Court GRANTS defendant’s motion for summary judgment. The Court issues this Opinion under seal because it references certain sealed exhibits that were submitted by the parties. The parties are ORDERED to notify the Court whether any portion of this Opinion should be redacted before being filed publicly by no later than July 14, 2014. An appropriate Order accompanies this Memorandum Opinion. SO ORDERED. Signed: Emmet G. Sullivan United States District Judge July 1, 2014 18 

2 F.3d 554 28 U.S.P.Q.2d 1397 SENTRY INSURANCE, a Mutual Company, Plaintiff-CounterDefendant-Appellee,v.R.J. WEBER COMPANY, INC., et al., Defendants,R.J. Weber Company, Inc. and R.J. Weber, Individually,Defendants-Counter Plaintiffs-Appellants. No. 93-1222 Summary Calendar. United States Court of Appeals,Fifth Circuit. Aug. 20, 1993. Kevin J. Cook, Payne & Blanchard, Dallas, TX, for appellants. Robert D. Allen, Aaron Linzy Mitchell, Vial, Hamilton, Koch & Knox, Dallas, TX, for appellee. Appeal from the United States District Court for the Northern District of Texas. Before JOLLY, SMITH, and WIENER, Circuit Judges. PER CURIAM: 1 Sentry Insurance ("Sentry") insured R.J. Weber and his corporation, R.J. Weber Co., Inc., (collectively "Weber") against claims based on personal and advertising injuries. Sentry brought the declaratory judgment action before us seeking a declaration that it had no duty to defend Weber against a claim of copyright infringement. The district court granted summary judgment in favor of Sentry because it found that the copyright infringement suit was not related to Weber's advertising activity. Finding no error, we affirm. 2 * In January of 1992, Caterpillar, Inc. ("Caterpillar") brought suit against Weber alleging copyright infringement. Caterpillar has copyrighted two original works titled "Numerical Parts Record" and "Parts Book Library." It claimed that Weber infringed its copyrights by copying, publishing, distributing, and selling copies of these works without first obtaining permission from Caterpillar. 3 Sentry insured Weber against personal and advertising injuries. The policy provides Sentry "will pay those sums that the insured becomes legally obligated to pay as damages because of 'personal injury' or 'advertising injury' to which this insurance applies." In clause IV.B.1.c., the policy further provides that: 4 This insurance applies to "advertising injury" only if caused by an offense committed: 5 (1) In the "coverage territory" during the policy period; and 6 (2) In the course of advertising your goods, products or services. [Emphasis supplied.] 7 Later on in section V, the policy defines an advertising injury as follows: 8 "Advertising injury" means injury arising out of one or more of the following offenses: 9 (1) Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; 10 (2) Oral or written publication of material that violates a person's right of privacy;(3) Misappropriation of advertising ideas or style of doing business; or 11 (4) Infringement of copyright, title or slogan. [Emphasis supplied.] 12 Weber believed that the policy covered Caterpillar's suit and asked Sentry to defend it against Caterpillar's claims. Sentry agreed to defend Weber, but it reserved the right to bring suit to determine whether the policy applied. II 13 In June of 1992, Sentry filed this declaratory judgment action seeking a declaration that it had no duty to defend or indemnify Weber against Caterpillar's claims in the underlying lawsuit. Weber counterclaimed that Sentry did have a duty to defend. Sentry moved for summary judgment in October of 1992. After Weber responded, the district court granted Sentry's motion. On January 5, 1993, the district court entered judgment in favor of Sentry. Weber moved the district court to reconsider, and Sentry asked for reimbursement of the attorney's fees it incurred while defending Weber. The district court denied Weber's motion, but it granted Sentry its attorney's fees. Weber filed a timely notice of appeal and brought this appeal. III 14 Weber contends that the district court erred when it granted Sentry summary judgment because there is a potentiality that, liberally construed, Caterpillar's complaint states a claim that was caused by or related to Weber's advertising. Because this is a diversity case, we apply the substantive law of Texas. Stine v. Marathon Oil Co., 976 F.2d 254, 259 (5th Cir.1992) (citing Erie Railroad Co. v. Tompkins, 304 U.S. 64, 77-78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938)). On appeal from the district court's grant of summary judgment, we review the record de novo to ascertain whether any genuine issue exists as to any material fact. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). The reach of an insurance contract, moreover, is a matter of law that we review de novo. Matter of World Hospitality Ltd., 983 F.2d 650 (5th Cir.1993); Stine, 976 F.2d at 260. 15 In Texas, if the allegations in the complaint will allow the plaintiff to recover on a theory within the scope of the insurance policy, there is potential liability against which the insurer is obligated to defend. Terra Intern. v. Commonwealth Lloyd's, 829 S.W.2d 270, 271 (Tex.App.--Dallas 1992, writ denied). The burden is generally on the insured to show that the claim against him is potentially within his policy's coverage. See, e.g., Employers Cas. Co. v. Block, 744 S.W.2d 940, 944 (Tex.1988). The insurer, however, bears the burden of establishing that one of the policy's limitations or exclusions constitutes an avoidance or affirmative defense to coverage. Tex.Ins.Code Art. 21.58(b). 16 Weber contends that the district court erred because it placed the burden on Weber to prove the existence of an advertising injury. According to Weber, clause IV.B.1.c. of the insurance contract is a policy limitation. Weber, thus, concludes that the Texas Insurance Code required Sentry to prove that the limitation does not apply. Weber is incorrect. Clause IV.B.1.c. is not a policy limitation. On the contrary, it defines policy coverage with respect to "advertising injuries." Specifically, the policy covers advertising injuries that are caused in "the course of advertising your goods, products or services." In sum, the clear language provides that the policy covers a copyright infringement suit only if Weber infringes someone's copyright in the course of its advertising. If Weber infringes a copyright in another context, there is no coverage under the terms of the policy. 17 A review of the insurance policy's other provisions makes unmistakable our conclusion that clause IV.B.1.c is not a policy limitation or exclusion. The policy contains explicit exclusions and limitations in section IV.B.2. This section excludes, for instance, advertising injuries that arise out of a "failure of the goods, products or services to conform with the advertised quality or performance." Similarly, the policy excludes advertising injuries that arise out of the "wrong description of the price of goods, products or services." In light of section IV.B.2., we think any argument that clause IV.B.1.c. is a policy exclusion or limitation is precluded. 18 Thus, the question before us is whether Weber can sustain its burden of establishing that Caterpillar's complaint potentially states a claim that the policy covers. As noted above, Caterpillar claimed that Weber infringed its copyrights by copying, publishing, distributing and selling copies of its "Numerical Parts Record" and "Parts Book Library" without first obtaining permission from Caterpillar. Weber admits the complaint states nothing about advertising. Weber, however, resorts to arguing that the federal system of notice pleading requires only a "short and plain statement of the claims." Fed.R.Civ.P. 8. Weber argues that, under the federal system, Caterpillar does not have to state every instance Weber infringed its copyright. Weber contends that Caterpillar's complaint would allow it to show in a federal trial that Weber infringed its copyright in the course of Weber's advertising. 19 Weber's argument does not bear scrutiny. Under such general reasoning, the complaint would not serve as an indication of whether there was coverage. Other courts that have examined this issue have required the insured to demonstrate that there is some connection between its advertising activity and the plaintiff's claim. See, e.g., Nat. Union Fire Ins. Co. v. Siliconix, Inc., 729 F.Supp. 77 (N.D.Cal.1989); Lazzara Oil Co. v. Columbia Cas. Co., 683 F.Supp. 777, 780 (M.D.Fla.1988), aff'd mem., 868 F.2d 1274 (11th Cir.1989); Bank of the West v. Superior Court of Contra Costa County, 2 Cal. 4th 1254, 10 Cal.Rptr.2d 538, 553, 833 P.2d 545, 560 (Cal.1992). In the case before us, Weber does not identify any connection between Caterpillar's claims and Weber's advertising activity. We, therefore, conclude that the policy does not cover Caterpillar's claims and that Sentry has no duty to defend Weber in the underlying suit. IV 20 For all the foregoing reasons, the decision of the district court is 21 AFFIRMED.

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-07-293-CV NORTHWEST CONSTRUCTION APPELLANT COMPANY, INC. V. THE OAK PARTNERS, L.P., APPELLEES MORGAN DEVELOPMENT AND SUPPLY, INC., METROPLEX MASONRY, INC., ARI-TEX, INC., MAX PLUMBING CONTRACTORS, INC., S & S TILE, LTD., AND KENT-ANDERSON CONCRETE, L.P. D/B/A ANDERSON CONCRETE CONSTRUCTION ------------ FROM THE 355TH DISTRICT COURT OF HOOD COUNTY ------------ AND  NO. 2-07-328-CV IN RE NORTHWEST RELATOR CONSTRUCTION COMPANY, INC. ------------ ORIGINAL PROCEEDING ------------ OPINION ------------ This consolidated mandamus proceeding and interlocutory appeal arise from the trial court’s order denying relator and appellant Northwest Construction Company, Inc.’s motion to compel arbitration in the underlying suit involving construction of an assisted living center in Granbury, Texas. In both the appeal and mandamus proceeding, Northwest raises the following four issues: (1) whether there is a valid arbitration clause binding the parties that encompasses the dispute; (2) whether the trial court had jurisdiction to determine if Northwest waived its right to arbitrate the dispute; (3) whether the trial court erred by ruling that Northwest waived its right to arbitrate by substantially invoking the judicial process to the detriment of the other parties; and (4) whether appellees have waived their right to rely on mediation as a 2 condition precedent to the enforceability of the arbitration clause. We affirm the trial court’s order in part and reverse it in part. We also dismiss Northwest’s petition for writ of mandamus. Background Facts On April 27, 2004, Northwest entered into a construction contract with The Oak Partners, L.P., an appellee and real party in interest, to design and construct an assisted living facility in Granbury, Texas. The contract referenced the facility to be constructed as “more particularly described in the design development plans and specifications and design criteria identified in Exhibit B” attached to the contract. Exhibit B, in turn, provided that the project specifications were the “Project Manual for The Courtyards at Lake Granbury, Granbury, Texas, prepared by GSR Andrade Architects dated April 16, 2004.” The April 16, 2004 Project Manual included a provision incorporating into it “[t]he ‘General Conditions of the Contract for Construction’, AIA Document A201, Fourteenth Edition, 1997, Articles 1 through 14 inclusive.” A new Project Manual dated May 28, 2004 contained the same language. AIA Document A201-1997 contains an arbitration clause, which reads as follows, in pertinent part: Claims not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the 3  American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect. The term “Claim” is defined as a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term “Claim” also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. After entering into the contract with Oak Partners, Northwest entered into subcontractor agreements with S & S Tile, Ltd., Morgan Development and Supply, Inc., Metroplex Masonry, Inc., Ari-Tex, Inc., Kent-Anderson Concrete L.P. d/b/a Anderson Concrete Construction, and Max Plumbing Contractors, Inc. Each of the subcontract agreements contained the following provisions: The terms of the dispute resolution and claims procedure contained in the General Contract shall be binding upon Subcontractor, whether or not Subcontractor records or files a mechanic’s lien, stop notice or prosecutes suit thereon or against any bond posted by Contractor; and Subcontractor hereby acknowledges that this Subcontract waives, affects, and impairs rights it would otherwise have in connection with such liens, stop notices and suits on said bonds. .... Any disputes or controversies not resolved or settled by the parties under the previous provisions shall be submitted to binding arbitration in accordance with the Construction Industry Rules of the American Arbitration Association and any judgment upon the 4  award by the arbitrators may be entered by any court having jurisdiction. The venue for any hearing under this arbitration provision shall be in Dallas County, Texas. After Northwest constructed the facility, Oak Partners sued Northwest on August 30, 2005, in the 355th District Court of Hood County, alleging that Northwest had breached the contract; Oak Partners claimed that the facility had failed to pass inspections by the Texas Department of Aging and Disability Services because certain parts of the design and construction were not in accordance with the Department’s applicable rules and regulations. Northwest filed its original answer in the suit on December 12, 2005. S & S Tile and Max Plumbing sued Oak Partners and Northwest in separate suits in the 355th District Court, claiming they were owed money on the project. On January 11, 2006, Northwest filed a motion to consolidate the Max Plumbing and Oak Partners cases. The trial court granted the motion the next day and consolidated the cases. On January 19, 2006, Northwest filed a motion to consolidate the S & S Tile case with the two consolidated cases. Before the trial court ruled on the motion to consolidate, S & S Tile filed a motion for summary judgment. While that motion was pending, the trial court granted Northwest’s motion to consolidate the S & S Tile case with the other two cases on February 2, 2006. 5  Northwest filed a counterclaim against Oak Partners on February 3, 2006, alleging that Oak Partners breached the contract by failing to pay for change orders, causing delays, and refusing to release retainage. Northwest also brought causes of action for quantum meruit, promissory estoppel, and foreclosure of statutory and constitutional liens; a Prompt Payment Act claim; and a claim for attorneys’ fees. Northwest and Oak Partners filed responses to S & S Tile’s motion for summary judgment on March 10, 2006. The motion was set for a hearing on March 17, 2006, but S & S Tile and Northwest entered into a rule 11 agreement to remove the motion from the court’s docket.1 The motion was never reset. On February 17, 2006, Kent-Anderson filed a separate suit against Northwest and Oak Partners, which the trial court consolidated with the other three cases upon Northwest’s motion. Oak Partners then filed a first amended petition adding GSR as an additional defendant and alleging causes of action for breach of contract and negligence. After the addition of GSR as a defendant, subcontractors Morgan Development and Supply, Inc., Metroplex Masonry, Inc., and Ari-Tex, Inc. intervened in the suit. 1 The copy of the agreement in the record is signed only by counsel for S & S Tile and Northwest. 6  Northwest filed a motion for partial summary judgment on May 2, 2007. In it, Northwest sought a ruling that Oak Partners could not recover damages arising from design flaws or errors or omissions in the project design. Northwest asserted the affirmative defenses of estoppel, contractual bar, violation of the express negligence rule, and waiver. Oak Partners filed a response on May 30, 2007. GSR also filed a response and an affidavit in opposition to the motion. On June 25, 2007, Northwest filed a First Amended Original Counterclaim and Original Cross-Claim, re-alleging its claims against Oak Partners, adding declaratory and unjust enrichment claims, and alleging cross- claims against GSR and the subcontractors. On July 9, 2007, Northwest filed a “Motion to Compel Arbitration” and a “Motion for Leave to Designate Responsible Third Parties,” which it expressly made contingent upon the trial court’s denial of its motion to compel arbitration. The trial court denied Northwest’s motion to compel arbitration on the ground that Northwest had waived its right to arbitration by substantially invoking the judicial process to the detriment of all of the opposing parties in the case.2 Before this court, Oak Partners is the only party opposing 2 At trial, the only parties who opposed Northwest’s motion to compel arbitration were Oak Partners, Kent-Anderson, and Ari-Tex. Kent-Anderson has 7 Northwest’s request for arbitration. Accordingly, we will review whether the trial court properly denied Northwest’s motion to compel arbitration. This Court’s Jurisdiction To determine whether we have jurisdiction over the interlocutory appeal in addition to the mandamus petition, we must decide whether the trial court denied Northwest’s motion to compel pursuant to the Federal Arbitration Act (FAA), the Texas General Arbitration Act (TGAA), or both. See 9 U.S.C.A. §§ 1-16 (West 1999 & Supp. 2007); T EX. C IV. P RAC. & R EM. C ODE A NN. §§ 171.001-.098 (Vernon 2005); In re Citigroup Global Mkts., Inc., 202 S.W.3d 477, 480 (Tex. App.—Dallas 2006, orig. proceeding). In Texas, a trial court’s denial of arbitration under the FAA may be challenged only by mandamus and not by interlocutory appeal. In re D. Wilson Constr. Co., 196 S.W.3d 774, 779 (Tex. 2006) (orig. proceeding); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). But a party may seek to enforce an arbitration agreement under both the FAA and TGAA if, like the agreement here, it does not say whether the FAA or TGAA applies. D. Wilson Constr. Co., 196 S.W.3d at 778-79. Texas appellate courts have jurisdiction over indicated in both the appeal and mandamus proceeding that it no longer opposes arbitration, and Ari-Tex has not filed any documents in either cause in our court. 8 interlocutory appeals from the denial of arbitration under the TGAA only or under both the FAA and TGAA. T EX. C IV. P RAC. & R EM. C ODE A NN. § 171.098(a)(1); D. Wilson Constr. Co., 196 S.W.3d at 778-79. Here, the agreement upon which Northwest relies does not purport to be governed by either the FAA or the TGAA. In its motion to compel, Northwest sought arbitration under both the FAA and TGAA. Oak Partners contends in its response to the petition for writ of mandamus that Northwest did not bring forward any evidence of interstate commerce showing that the agreement is enforceable under the FAA; thus, according to Oak Partners, enforceability of the agreement is governed by the TGAA only. The trial court’s order denying arbitration does not specify whether the denial was under the FAA or TGAA. Northwest filed both a petition for writ of mandamus and an interlocutory appeal in this court, contending that the agreement is enforceable under the TGAA as well as the FAA. Accordingly, we have jurisdiction over both the appeal and the mandamus unless the FAA pre-empts the TGAA in this instance. See id. at 779-80. To determine whether an agreement that does not purport to be under either the FAA or TGAA is governed only by the FAA (i.e., whether the FAA pre-empts the TGAA), thus precluding an appellate court’s jurisdiction over an interlocutory appeal, we must determine whether (1) the agreement is in 9 writing, (2) it involves interstate commerce, (3) it can withstand scrutiny under traditional contract defenses, and (4) state law affects the enforceability of the agreement. 9 U.S.C.A. § 2; D. Wilson Constr. Co., 196 S.W.3d at 780; In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex. 2005) (orig. proceeding). For the FAA to pre-empt the TGAA, state law must refuse to enforce an arbitration agreement that the FAA would enforce, either because (1) the TGAA has expressly exempted the agreement from coverage, or (2) the TGAA has imposed an enforceability requirement not found in the FAA. D. Wilson Constr. Co., 196 S.W.3d at 780. In other words, the FAA pre-empts only contrary state law, not consonant state law. Id. at 779. We conclude that the FAA does not pre-empt the TGAA here. Northwest has not directed us to, nor have we found, any evidence of interstate commerce in the record. Likewise, Northwest did not direct the trial court to any such evidence. Because this suit involves a construction project, it is possible that materials may have come from out of state, but Northwest has not directed us to anything in the record to support that conclusion, nor have we found any evidence in the record that would support such a conclusion. See, e.g., In re Nasr, 50 S.W.3d 23, 25-26 (Tex. App.—Beaumont 2001, orig. proceeding) (holding that construction contract involved interstate commerce because list of subcontractors in record included Wal-Mart). We hold that 10 Northwest has failed to prove that the arbitration agreement involves interstate commerce; thus, the FAA does not pre-empt the TGAA in this instance, and we have jurisdiction over Northwest’s interlocutory appeal. For the same reason, we do not have jurisdiction to grant relief on Northwest’s petition for writ of mandamus. See In re D. Wilson Constr. Co., 196 S.W.3d at 779. Because we have jurisdiction over the interlocutory appeal only, we will address Northwest’s issues within the context of that proceeding. Existence of Valid Arbitration Agreement In its first issue, Northwest contends that it proved the existence of a valid arbitration agreement and that all of the claims asserted against it in the underlying suit are within the scope of that agreement. Oak Partners responds that Northwest failed to prove that all claims were within the scope of a valid arbitration agreement because Northwest . . . did not present any evidence at the hearing on its Motion to Compel. The only documents presented were unsworn and unauthenticated exhibits to its Motion to Compel, and even those exhibits do not contain enough information to make an informed decision regarding whether the documents refer to each other or are all a part of the construction contract at issue in this case. In Jack B. Anglin Co. v. Tipps, the Texas Supreme Court held that “the trial court may summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery, and stipulations”; the trial court is not required 11 to conduct an evidentiary hearing unless the “material facts necessary to determine the issue” are controverted. 842 S.W.2d 266, 269 (Tex. 1992). Northwest attached the contract, and the pertinent documents that were incorporated into it by reference, to its motion to compel. The trial court clearly reviewed these documents at the hearing on the motion to compel. 3 See T EX. R. E VID . 201; Barnard v. Barnard, 133 S.W.3d 782, 786 (Tex. App.—Fort Worth 2004, pet. denied) (“[T]he trial court may take judicial notice of its file at any stage of proceedings and is presumed to have done so with or without a request from a party.”). At the conclusion of the hearing, the trial court concluded, “Well, of course, it appears that there’s an arbitration provision here in this contract. The issue would certainly seem to be whether or not there has been a waiver.” We conclude that the trial court properly determined, based on the procedure promulgated in Tipps, that a valid arbitration existed and that the 3 For example, during a discussion between Northwest’s counsel and the trial court regarding the exhibits attached to the motion to compel, the following exchange occurred: THE COURT: Where are you again? [NORTHWEST’S COUNSEL]: The very first page. THE COURT: All right. I see it. 12 claims in the underlying suit were included within the scope of that agreement.4 We sustain Northwest’s first issue; however, we must address its remaining issues relating to whether the trial court properly determined that it waived its right to arbitrate. Subject Matter Jurisdiction of Trial Court Northwest argues in its second issue that the trial court did not have subject matter jurisdiction to decide whether it waived its right to arbitration because, once a trial court decides that a dispute is subject to arbitration, the arbitrator must determine any defenses to arbitration raised by an opposing party, including waiver. In support of its contention, Northwest relies on Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S. Ct. 588 (2002). In that case, the United States Supreme Court held that “‘procedural’ questions which grow out of the dispute and bear on its final disposition’ are presumptively not for the judge, but 4 Oak Partners attached to its response to Northwest’s motion to compel an affidavit from Teresa Shook, a Director of Assisted Living Consultants, Inc., which is a managing member of the general partner of Oak Partners. In her affidavit, Shook asserted that “Oak Partners did not agree to be bound by arbitration, and does not agree it is bound by arbitration.” But this conclusory statement, without more, does nothing to controvert the evidence of the agreement as attached to Northwest’s motion to compel. Moreover, Oak Partners never challenged the existence of an arbitration agreement in its response, which was premised solely on its contention that Northwest waived its right to arbitrate. 13 for an arbitrator, to decide. . . . So, too, the presumption is that the arbitrator should decide ‘allegation[s] of waiver, delay, or a like defense to arbitrability.’” Id. at 84, 123 S. Ct. at 592 (citations omitted). The issue in Howsam was not whether the trial court had subject matter jurisdiction to determine such procedural questions; rather, it was whether the presumption in favor of arbitration should be employed when determining which “forum-based decisionmaker”—an arbitrator or trial court judge—is the more appropriate choice “to decide forum-specific procedural gateway matters.” Id. at 84-86, 123 S. Ct. at 592-93. In Howsam, the petitioner had instituted an arbitration proceeding under the National Association of Securities Dealers (NASD) rules, and the respondent filed suit in federal court asking for a declaration that the arbitration could not proceed because NASD’s rules prohibited arbitrations after “six (6) years ha[d] elapsed from the occurrence or event giving rise to the . . . dispute.” Id. at 81-82, 123 S. Ct. at 590-91. In determining that the arbitrator was the more appropriate “forum-based decisionmaker” to decide whether the NASD rule operated to bar arbitration of the dispute, the Supreme Court noted that “NASD arbitrators, comparatively more expert about the meaning of their own rule, [would be] better able to interpret and to apply it.” Id. at 85, 123 S. Ct. at 593. The Court also relied on its prior decision in 14 Moses H. Cone Memorial Hospital v. Mercury Construction, in which it stated that [t]he Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability. 460 U.S. 1, 24-25, 103 S. Ct. 927, 941 (1983) (emphasis added); see also In re Serv. Corp. Int’l, 85 S.W.3d 171, 173 (Tex. 2002) (quoting above passage from Moses, yet going on to address merits of trial court’s decision on waiver). After carefully considering the Court’s precise language and holding in Howsam, and the Moses H. Cone case which it cites, we conclude that the issue here is not one of subject matter jurisdiction; rather, it is whether the presumption in favor of arbitrability should apply to the determination of which “forum-based decisionmaker” 5 is better suited to decide the procedural questions, such as “waiver, delay or a like defense to arbitrability.” 6 Because 5 See In re Neutral Posture, Inc., 135 S.W.3d 725, 728 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (discussing Howsam and holding that trial court was proper forum for determining issue of substantive arbitrability). 6 Thus, we need not decide whether this court should follow Howsam in the context of reviewing a trial court’s decision under the TGAA. See Grand Homes 96, L.P. v. Loudermilk, 208 S.W.3d 696, 703 (Tex. App.—Fort Worth 2006, pet. filed); see also In re Global Constr. Co., 166 S.W.3d 795, 798 (Tex. App.—Houston [14th Dist.] 2005, orig. proceeding) (conditionally granting writ 15 the issue is not one of subject matter jurisdiction, Northwest was required to raise it in the trial court; it did not. See T EX. R. A PP. P. 33.1(a); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006). In fact, at the hearing on the motion to compel, Northwest told the trial court that it would have to decide the issue, arguing that the court must consider three questions; was there an agreement or set of agreements to arbitrate, whether the dispute . . . is subject to those agreements to arbitrate? If you answer . . . those first two questions, ‘Yes,’ then you must abate the action and must order the case to arbitration, unless Oak Partners or one of the other parties is able to prove waiver.” [Emphasis added.] Northwest and Oak Partners both devoted the majority of their arguments at the motion to compel hearing to whether Northwest had substantially invoked the judicial process to Oak Partners’ detriment. Accordingly, we conclude and hold that Northwest failed to preserve its complaint that the arbitrator, rather than the trial court, should have determined whether it waived its right to arbitrate by substantially invoking the judicial process to its opponents’ detriment. We overrule Northwest’s second issue. of mandamus after holding, based on Howsam, that arbitrator rather than trial court should decide waiver issue in FAA-controlled case). 16  Whether Northwest Waived its Right to Arbitrate by Substantially Invoking the Judicial Process to Oak Partners’ Detriment Northwest contends in its third issue that the trial court incorrectly concluded that Northwest had waived its right to arbitrate any part of the dispute by substantially invoking the judicial process to its opponents’ detriment. Because public policy favors arbitration, there is a strong presumption against finding that a party has waived its right to arbitration; the burden to prove waiver is thus a heavy one. In re Bank One, N.A., 216 S.W.3d 825, 827 (Tex. 2007); In re Bruce Terminix Co., 988 S.W.2d 702, 704-05 (Tex. 1998); Jones v. Citibank (South Dakota), N.A., 235 S.W.3d 333, 340 (Tex. App.—Fort Worth 2007, no pet.). Any doubts regarding waiver are resolved in favor of arbitration. Bruce Terminix Co., 988 S.W.2d at 705; Jones, 235 S.W.3d at 340; Southwind Group, Inc. v. Landwehr, 188 S.W.3d 730, 735 (Tex. App.—Eastland 2006, orig. proceeding). Waiver may be express or implied, but it must be intentional. EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 89 (Tex. 1996); Jones, 235 S.W.3d at 340; Southwind Group, Inc., 188 S.W.3d at 735. Whether waiver occurs depends on the individual facts and circumstances of each case. Jones, 235 S.W.3d at 340; Southwind Group, 17 Inc., 188 S.W.3d at 735; Williams Indus., Inc. v. Earth Dev. Sys. Corp., 110 S.W.3d 131, 135 (Tex. App.—Houston [1st Dist.] 2003, no pet.). A party does not waive arbitration merely by delay; instead, the party urging waiver must establish that any delay resulted in prejudice. In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex. 2006); Prudential Secs. Inc. v. Marshall, 909 S.W.2d 896, 898-99 (Tex. 1995) (orig. proceeding); Jones, 235 S.W.3d at 340. Therefore, the test for determining waiver is two-pronged: (1) did the party seeking arbitration substantially invoke the judicial process, and (2) did the opposing party prove that it suffered prejudice as a result. Jones, 235 S.W.3d at 340. Substantial Invocation of Judicial Process Merely taking part in litigation does not constitute substantial invocation of the judicial process. See In re Vesta Ins. Group, 192 S.W.3d at 763; Bruce Terminix Co., 988 S.W.2d at 704; Jones, 235 S.W.3d at 340. To substantially invoke the judicial process, a party must make a specific and deliberate act after suit is filed that is inconsistent with its right to arbitrate, such as engaging in extensive discovery or requesting a jury. Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 518, 522 (Tex. App.—Austin 1998, no pet.). Substantially invoking the judicial process may occur when the party seeking arbitration actively has tried, but failed, to achieve a satisfactory result in litigation before 18 turning to arbitration. Jones, 235 S.W.3d at 340; Southwind Group, Inc., 188 S.W.3d at 736; Williams Indus., Inc., 110 S.W.3d at 135. Examples include moving for summary judgment or seeking a final resolution of the dispute. Williams Indus., Inc., 110 S.W.3d at 135. Another factor to consider is how much activity has taken place in the suit. Vireo, P.L.L.C. v. Cates, 953 S.W.2d 489, 497 (Tex. App.—Austin 1997, pet. denied). Actions constituting waiver may include the movant’s engaging in some combination of the following: filing an answer, setting up a counterclaim, pursuing discovery, and moving for a continuance prior to moving for a stay pending arbitration. Cent. Nat’l Ins. Co. of Omaha v. Lerner, 856 S.W .2d 492, 494 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding); see also In re Vesta Ins. Group, 192 S.W.3d at 764 (holding, in FAA-controlled case, “We agree that allowing a party to conduct full discovery, file motions going to the merits, and seek arbitration only on the eve of trial defeats the FAA’s goal of resolving disputes without the delay and expense of litigation.”).7 The evidence here shows that during the approximately nineteen months from the time it filed its answer in the suit to the time it filed its motion to 7 The standard for determining waiver of the right to arbitrate is the same under the TGAA and the FAA. Southwind Group, Inc., 188 S.W.3d at 735; Brown v. Anderson, 102 S.W.3d 245, 250 (Tex. App.—Beaumont 2003, pet. denied). 19 compel arbitration, Northwest served four sets of interrogatories, and one set each of requests for production and requests for admissions, to Oak Partners; served one set each of interrogatories, requests for disclosure, and requests for production on the subcontractors; filed four subpeonas for production of documents from third parties; filed a counterclaim and amended counterclaim against Oak Partners; filed cross-claims against the subcontractors; filed a motion for partial summary judgment seeking to preclude Oak Partners from seeking any damages related to design defects in the facility; agreed to extensions of the expert designation deadlines; and agreed to at least one extension of the trial setting. Northwest points out that it never received a ruling on its partial motion for summary judgment and that the motion did not request a final ruling on all of Oak Partners’ claims; it also characterizes its discovery as “minimal.” Northwest focuses on its various activities in the suit in isolation; however, when viewed together, all of Northwest’s actions in the suit indicate an intention to avail itself of the judicial process. Northwest admitted at the hearing on the motion to compel that it sought discovery to aid in mediation and that the failure of mediation was the impetus for its motion to compel arbitration. In other words, it appears that Northwest was prepared to avail itself of the judicial process so long as it was able to achieve the results it 20 desired. When Northwest finally filed its motion to compel in July 2007, trial was set for September 24, 2007. We conclude and hold that Northwest’s activity in the suit constituted substantial invocation of the judicial process. See In re Vesta Ins. Group, 192 S.W.3d at 764; Lerner, 856 S.W.2d at 495; see also Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1159, 1162 (5th Cir. 1986). Prejudice to Opposing Parties Northwest claims that even if it substantially invoked the judicial process, Oak Partners and the other parties to the suit, i.e., the subcontractors, failed to show prejudice as a result; thus, the trial court erred by finding that Northwest had waived its right to arbitrate the dispute. According to Northwest, the discovery it sought and obtained in the suit is also discoverable in arbitration under the Construction Industry Arbitration Rules of the American Arbitration Association, and Oak Partners cannot show that its attorneys’ fees would not have been available to it in arbitration. Further, Northwest contends that even if Oak Partners is able to show prejudice, the subcontractors did not bring forward any evidence of prejudice; thus, the trial court erred in determining that Northwest waived arbitration as to all of the parties in the suit. The prejudice on which courts focus includes such things as (1) the movant’s access to information that is not discoverable in arbitration and (2) 21 the opponent’s incurring costs and fees due to the movant’s actions or delay. Williams Indus., Inc., 110 S.W.3d at 135. Although delay alone does not necessarily show prejudice, it is a material factor to consider. Sedillo v. Campbell, 5 S.W.3d 824, 828 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Showing prejudice is generally an evidentiary burden. Williams Indus., Inc., 110 S.W.3d at 135. Northwest contends that all of the discovery it propounded would be available to it in an arbitration proceeding under the AAA’s construction-related arbitration rules, which the parties agreed to employ in the event of arbitration. Those rules provide that “[a]t the request of any party or at the discretion of the arbitrator, consistent with the expedited nature of arbitration, the arbitrator may direct (i) the production of documents and other information, and (ii) the identification of any witnesses to be called.” They also compel the parties to “exchange copies of all exhibits they intend to submit at the [arbitration] hearing” at least five business days prior to the hearing. The rules further provide that “[t]here shall be no other discovery, except as indicated herein or as ordered by the arbitrator in extraordinary cases when the demands of justice require it.” Oak Partners correctly points out that the applicable arbitration rules do not provide for requests for admissions or for interrogatories, which constituted 22 the bulk of the discovery Northwest sought from Oak Partners.8 Oak Partners incurred legal fees for counsel and local counsel to review and respond to this discovery.9 At the hearing on Northwest’s motion to compel, Oak Partners offered as evidence an affidavit from its counsel averring that Northwest had served on Oak Partners four sets of interrogatories and one set each of a request for admissions, request for disclosure, and request for production. Oak 8 Northwest acknowledges that requests for admissions and interrogatories are not available under the applicable rules except “in extraordinary cases when the demands of justice require it.” However, Northwest contends that all of the information included in those forms of discovery would be nevertheless discoverable in arbitration via other forms of discovery. Regardless, Oak Partners presented evidence of its expense and time related specifically to the types of discovery that is unavailable in arbitration, and there is no evidence that this is the type of extraordinary case in which an arbitrator would allow additional discovery. 9 Northwest attributes any prejudice caused by Oak Partners’ engaging local counsel to Oak Partners’ own decision to sue in its chosen forum. See LJA Eng’g and Surveying, Inc. v. Richfield Inv. Corp., 211 S.W.3d 443, 446-47 (Tex. App.—Beaumont 2006, no pet.); Transwestern Pipeline Co. v. Horizon Oil & Gas Co., 809 S.W.2d 589, 593 (Tex. App.—Dallas 1991, writ dism’d w.o.j.). But it is clear from the billing records submitted by Oak Partners that local counsel did not even begin to participate in the suit until Northwest filed its counterclaim and began to participate in those activities that we have determined substantially invoked the judicial process by indicating an intent to litigate the suit in Hood County. Thus, Oak Partners presented evidence directly relating its expenses to Northwest’s activity in the suit. 23 Partner’s counsel also averred that “Oak Partners has answered, responded, and/or objected to all of this discovery sent by Northwest.” 10 Oak Partners also introduced evidence that it incurred attorney’s fees and expenses in responding to Northwest’s motion for partial summary judgment. Northwest did not cancel the partial summary judgment trial date until after Oak Partners had filed its response and incurred these fees and expenses. Moreover, Oak Partners contends that, regardless of the fees and expenses involved in responding to the motion, it was prejudiced because Northwest “now has in one document, forced Oak Partners to marshal its evidence, and even more damaging, marshal the thought processes and legal analysis of Oak Partners’ attorneys on these issues.” Northwest responds that the construction industry arbitration rules provide for summary dispositions by the arbitrator: “In addition to the final award, the arbitrator may make other decisions, including interim, interlocutory, 10 Although Oak Partners did not include copies of its answers to discovery in the appellate record, it did provide evidence that it answered the discovery and incurred expenses in doing so, in the form of billing records from its lead counsel and local counsel. Northwest did not present any evidence refuting Oak Partners’ counsel’s sworn statement indicating that Oak Partners had responded to all of Northwest’s discovery requests. Additionally, Northwest admitted that it sought discovery for mediation purposes and that after the initial mediation, it sought additional discovery for purposes of another mediation. 24 or partial rulings, orders, and awards.” Thus, according to Northwest, Oak Partners could not have been prejudiced by responding to the motion for partial summary judgment when the same procedure would have been available to Northwest in arbitration. Again, Northwest focuses only on the effects of its actions in isolation. Not only did it delay nineteen months before moving to compel arbitration, during which time it actively pursued litigation in the trial court, Northwest also sought discovery that cannot be characterized as only minimal. 11 It actively sought relief from the trial court, forcing Oak Partners to respond and to incur attorneys’ fees for lead counsel and local counsel that are directly linked to Northwest’s actions in the suit, which fees Oak Partners documented in its response to the motion to compel.12 Unlike in cases cited by Northwest, here, 11 See, e.g., In re Bruce Terminix Co., 988 S.W.2d at 704 (holding, when movant’s “use of the judicial process was limited to filing an answer and propounding one set of eighteen interrogatories and one set of nineteen requests for production,” that prejudice was not shown because “when only a minimal amount of discovery has been conducted, which may also be useful for the purpose of arbitration, the court should not ordinarily infer waiver based upon prejudice”) (emphasis added). 12 Northwest contends that Oak Partners cannot show prejudice due to its incurring attorneys’ fees as a result of Northwest’s actions (1) because the construction industry arbitration rules provide that an arbitration award “may include . . . an award of attorneys’ fees if all parties have requested such an award or it is authorized by law or their arbitration agreement” and because (2) section 171.048 of the TGAA requires arbitrators to award attorneys’ fees if 25 Oak Partners introduced evidence supporting its claims of prejudice. Cf. In re Vesta Ins. Group, 192 S.W.3d at 763 (“Because Cashion offered none of these documents in the trial court and presented no details about any of them, the record does not show whether these [discovery] requests were limited or extensive, whether they sought information for affirmative claims or defensive ones, or even whether they addressed the merits or merely the arbitration issue.”); Granite Constr. Co. v. Beaty, 130 S.W.3d 362, 367 (Tex. App.—Beaumont 2004, no pet.); Williams Indus., Inc., 110 S.W.3d at 139-41. Accordingly, we conclude and hold that Oak Partners showed prejudice from Northwest’s substantial invocation of the judicial process. See Price, 791 F.2d at 1161-62 (“[W]here a party fails to demand arbitration during pretrial proceedings, and, in the meantime, engages in pretrial activity inconsistent with an intent to arbitrate, the party later opposing a motion to compel arbitration they are provided for in the arbitration agreement or they are provided for by law in a district court in a civil action. T EX. C IV. P RAC. & R EM. C ODE A NN. § 171.048 (Vernon 2005). But the language of the construction industry arbitration rules does not require an arbitrator to award fees even if a party presents evidence supporting such an award. Additionally, Northwest’s claims against Oak Partners include claims for breach of contract and negligence; Oak Partners’ attorneys’ fees are recoverable only if it prevails on its breach of contract action. See id. § 38.001(8) (Vernon 1997); Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). 26 may more easily show that its position has been compromised, i.e., prejudiced.”). Northwest did not just move to arbitrate Oak Partners’ claims, however; it also sought to arbitrate the claims involving the subcontractors. None of the subcontractors presented evidence to the trial court regarding prejudice. Thus, we cannot conclude that waiver was proved as to the subcontractors. See, e.g., Granite Constr. Co., 130 S.W.3d at 367; Williams Indus., Inc., 110 S.W.3d at 139-41. Because the trial court’s order denied Northwest’s motion to compel in its entirety as to all parties, we conclude and hold that the trial court erred by refusing to compel arbitration of the claims between Northwest and the subcontractors.13 We therefore sustain Northwest’s third issue in part as to the claims involving the subcontractors; we overrule it in part as to the claims between Northwest and Oak Partners. 13 We realize this results in the unfortunate possibility of trying these cases in different forums but “considerations of efficiency and convenience cannot override either a signatory’s arbitration agreement or a nonsignatory’s right to a jury trial.” In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 192 (Tex. 2007) (orig. proceeding) (holding arbitration agreement must be enforced regardless of presence of other people involved in the underlying dispute but not signatories to the arbitration agreement); see also Kilroy v. Kilroy, 137 S.W.3d 780, 787-88 (Tex. App.—Hous. [1 st Dist.] 2004, no pet.) (reversing trial court order staying arbitrable part of dispute pending determination of issues in nonarbitrable part of dispute remaining in trial court). 27  Mediation as Condition Precedent to Arbitration At the hearing on the motion to compel, one of the subcontractors, Ari- Tex, argued that the arbitration agreement with the subcontractors required Northwest to mediate before resorting to arbitration and that Northwest had failed to mediate with the subcontractors;14 therefore, arbitration could not be compelled until Northwest had attempted to mediate its disputes with the subcontractors. Ari-Tex has not responded to Northwest’s appeal; however, Northwest brings a fourth issue contending that appellees have waived their right to rely on mediation as a condition precedent to enforceability of the arbitration clause. Although the AIA Document A201-1997 that was incorporated into the parties’ agreements clearly states that mediation is a condition precedent to arbitration with regard to at least some claims arising from the agreements, none of the subcontractors allege any damages from Northwest’s failure to mediate with them. See In re U.S. Home Corp., 236 S.W.3d 761, 764 (Tex. 2007). Moreover, the subcontractors initially filed suit against Northwest in district court rather than seeking mediation pursuant to the agreements. Thus, 14 Ari-Tex alleged that the subcontractors were not allowed to attend the mediation between Northwest and Oak Partners. 28 they waived their right to first proceed through mediation. See id.; Dallas Cardiology Assocs., P.A. v. Mallick, 978 S.W.2d 209, 212-13 (Tex. App.—Texarkana 1998, pet. denied). Conclusion Having overruled Northwest’s dispositive issues as to Oak Partners, we affirm the part of the trial court’s order denying Northwest’s motion to compel arbitration as to the claims between Northwest and Oak Partners. However, having sustained Northwest’s dispositive issue as to the subcontractors, we reverse the part of the trial court’s order denying arbitration as to the claims between Northwest and the subcontractors and remand to the trial court with instructions to compel arbitration as to those claims only. Having determined that Northwest failed to bring forward any evidence of interstate commerce, we dismiss its petition for writ of mandamus. TERRIE LIVINGSTON JUSTICE PANEL B: LIVINGSTON, DAUPHINOT, and WALKER, JJ. DAUPHINOT, J. filed a concurring and dissenting opinion. DELIVERED: March 6, 2008 29  COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-07-293-CV NORTHWEST CONSTRUCTION APPELLANT COMPANY, INC. V. THE OAK PARTNERS, L.P., APPELLEES MORGAN DEVELOPMENT AND SUPPLY, INC., METROPLEX MASONRY, INC., ARI-TEX, INC., MAX PLUMBING CONTRACTORS, INC., S & S TILE, LTD., AND KENT-ANDERSON CONCRETE, L.P. D/B/A ANDERSON CONCRETE CONSTRUCTION ------------ FROM THE 355TH DISTRICT COURT OF HOOD COUNTY ------------ AND  NO. 2-07-328-CV IN RE NORTHWEST RELATOR CONSTRUCTION COMPANY, INC. ------------ ORIGINAL PROCEEDING ------------ CONCURRING AND DISSENTING OPINION ------------ I agree that Northwest’s petition for writ of mandamus should be dismissed. I also agree that we should reverse the trial court’s order denying arbitration as to the claims between Northwest and the subcontractors and remand to the trial court with instructions to compel arbitration on those claims. I dissent, however, from the majority’s conclusion that Oak Partners met its heavy burden to show sufficient prejudice to overcome the strong presumption against waiver of arbitration.15 I would therefore reverse in its entirety the trial court’s order denying arbitration and remand this case to the trial court with instructions to compel arbitration on all claims. LEE ANN DAUPHINOT JUSTICE 15 See In re D. Wilson Constr. Co., 196 S.W.3d 774, 783 (Tex. 2006); In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex. 2006). 31 DELIVERED: March 6, 2008 32 

911 F.2d 733 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.Chester SALYER, Rita Salyer, Plaintiffs-Appellants,v.Andrew J. VAN DOREN, Michael H. Cherry, Bessie Grove, andothers, Defendants-Appellees. No. 89-2229. United States Court of Appeals, Sixth Circuit. Aug. 15, 1990. 1 Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and JARVIS, District Judge.* ORDER 2 This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 3 Chester and Rita Salyer appeal the summary judgment for the defendant state court judge and the Fed.R.Civ.P. 12(b)(6) dismissal with respect to the defendant attorney and state court litigant in this civil rights action filed under 42 U.S.C. Sec. 1983. Upon consideration, we conclude that the district court's judgment was proper. 4 First, we note that this appeal is timely. Plaintiffs' "petition for rehearing" is properly treated as a Fed.R.Civ.P. 59(e) motion. See Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979). Plaintiffs' notice of appeal, filed within 30 days of the denial of the motion, is therefore timely. Fed.R.App.P. 4(a)(1). 5 Further, the district court properly accorded the defendant judge absolute immunity. See Dennis v. Sparks, 449 U.S. 24, 27 (1980). The remaining defendants did not act under color of state law in connection with the state court litigation at issue. See Dennis, 449 U.S. at 27-29. 6 Accordingly, the judgment of the district court is affirmed for the foregoing reasons and for the reasons stated by the district court in its opinion entered September 15, 1989. Rule 9(b)(5), Rules of the Sixth Circuit. * The Honorable James H. Jarvis, U.S. District Judge for the Eastern District of Tennessee, sitting by designation

543 U.S. 1304 DEMOCRATIC NATIONAL COMMITTEE ET AL.v.REPUBLICAN NATIONAL COMMITTEE ET AL. MALONE, INTERVENOR No. 04A378. Supreme Court of United States. Decided November 2, 2004. Ohio voter's application to stay a Third Circuit order, which had stayed a District Court's injunction in this case, is denied. Applicant claims that her right to vote and that of other Ohio minority voters would by jeopardized by anticipated challenges to their votes from Republicans. However, since making her application, she has filed a further pleading disclosing that she has voted without challenge. ON APPLICATION TO VACATE STAY. JUSTICE SOUTER, Circuit Justice. 1 The individual Ohio voter who intervened in this case claimed that the Republican National Committee threatened to violate a consent decree, by challenging Ohio voters named on a list of 35,000 individual names compiled by Republican officials in Ohio in cooperation with the Republican National Committee. She alleged that her right to vote and that of other minority voters would be jeopardized by the anticipated challenges from the Republican side. Yesterday, the District Court found such a threatened violation and issued the injunction requested, a stay of which was denied by a divided panel of the Court of Appeals for the Third Circuit late last night. Following the action that was subject to JUSTICE STEVENS's opinion in chambers earlier today in Spencer v. Pugh, ante, p. 1301, the Republican National Committee moved for rehearing or rehearing en banc, the latter of which was granted this afternoon by order staying the injunction. No. 04-4186, 2004 U. S. App. LEXIS 22689 (CA3, Nov. 2, 2004). The intervenor alone has now applied to me in my capacity as Circuit Justice for the Third Circuit for a stay of the en banc order itself, which would effectively reinstate the injunction. Since making the application, she has filed a further pleading disclosing that she has already voted without challenge. Under the circumstances, I have decided against referring the application to the full Court and now deny it. 2 It is so ordered.

311 B.R. 547 (2004) In re Donald E. BANNISH, Gail L. Bannish, Debtors. Donald E. Bannish and Gail L. Bannish, Appellants, v. Maureen A. Tighe, United States Trustee for Region 16, Appellee. No. EDCV 03-1091-GHK. United States District Court, CD. California. April 22, 2004. *548 Cynthia McCoy, Cynthia McCoy Law Offices, Hesperia, CA, for appellants. Timothy J. Farris, U.S. Trustee's Office, Riverside, CA, for appellee. MEMORANDUM AND ORDER KING, District Judge. This matter is before the court on debtors-appellants' appeal from the dismissal of their Chapter 7 bankruptcy petition unless it was converted to one under Chapter 13. On appeal, we are asked to consider whether 11 U.S.C. § 707(b), which allows for dismissal of a Chapter 7 petition by a debtor with primarily consumer debts if the granting of Chapter 7 relief would constitute a "substantial abuse," violates the equal protection clause. I. BACKGROUND On May 19, 2003, appellants Donald E. and Gail L. Bannish filed a voluntary petition under Chapter 7 of the Bankruptcy Code. Excerpt of Record ("ER"), Tab A, at 1. On July 3, 2003, the United States Trustee filed a motion to dismiss appellants' Chapter 7 petition for "substantial abuse" under 11 U.S.C. § 707(b) because their debts were primarily consumer debts and they were able to repay a significant portion of their unsecured creditors. ER, Tab A, at 2; ER, Tab B. The bankruptcy court granted the motion at the August 18, 2003 hearing. ER, Tab C, at 11; ER, Tab D, at 1. The court noted that under Ninth Circuit law, the ability to fund a Chapter 13 plan is the "primary factor" to consider in determining whether granting relief under Chapter 7 would be a "substantial abuse." ER, Tab D, at 2. After adjusting appellants' Schedule J to eliminate expenses that were not "reasonably necessary for the maintenance and support of the debtor," the court concluded that appellants had sufficient disposable income to pay 42% of their unsecured non-priority debt. Accordingly, the court found that "prosecution of a petition under chapter 7 in this case would constitute a substantial abuse" and ordered the case dismissed under 11 U.S.C. § 707(b) unless it was converted to Chapter 13 within 10 days of the hearing. ER, Tab D, at 2-3. In accordance with the court's order, appellants filed a motion to convert from Chapter 7 to Chapter 13 on August 29, 2003. An order affecting the conversion was entered on September 2, 2003. ER, Tab A, at 3. Appellants filed a timely notice of appeal of the bankruptcy court's August 18, 2003 ruling on August 27, 2003. Id. II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction, under 28 U.S.C. § 158(a), to hear appeals from "final judgments, orders and decrees" of bankruptcy judges. An order converting a case to another chapter of the bankruptcy code is an appealable final order. In re Firstcent Shopping Center, Inc., 141 B.R. 546, 550 (S.D.N.Y.1992); see also In re Gomes, 220 B.R. 84, 85 (9th Cir. BAP 1998) (considering appeal of bankruptcy court's order dismissing Chapter 7 case unless it was converted to Chapter 13 within six days). Here, the bankruptcy court's order effectively converted this *549 case from Chapter 7 to Chapter 13. Therefore, we have jurisdiction to consider this appeal. We ordinarily review the bankruptcy court's legal conclusions de novo and its factual determinations for clear error. In re First T.D. & Inv., Inc., 253 F.3d 520, 526 (9th Cir.2001). Here, however, appellants ask us to address the constitutionality of 11 U.S.C. § 707(b), an issue they did not raise in the bankruptcy court. We nonetheless exercise our discretion to consider this issue for the first time here. See Matter of Pizza of Haivaii, 761 F.2d 1374, 1379 (9th Cir.1985) (holding that a district court has jurisdiction to consider an issue presented by the record, even if the issue was not raised in the bankruptcy court). III. DISCUSSION Appellants raise a single issue on appeal: As a matter of law, does the Bankruptcy Court's application of In re Kelly, that "... a (consumer) debtor's ability to pay his debts will, standing alone, justify a 707(b) dismissal ..." (In re Kelly, 841 F.2d 908 (1988)), violate the debtors' fifth amendment due process guarantees, in that there is no rational basis for drawing a distinction on these grounds between individuals with primarily consumer debts, and all other individuals, whose debts variously derive from failed businesses, unpaid taxes, or the commission of tortious acts? ER, Tab E. Appellants appear to argue that the Ninth Circuit's interpretation of § 707(b) as set forth in In re Kelly, 841 F.2d 908 (9th Cir.1988) violates the equal protection clause because it singles out consumer debtors for different treatment than those with other types of debts. Section 707(b) provides, in relevant part, After notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of this chapter. In Kelly, the Ninth Circuit held that the ability to fund a Chapter 13 plan is the principal factor in determining "substantial abuse" under this provision. Kelly, 841 F.2d at 914. The court also explicitly held that "a debtor's ability to pay his debts will, standing alone, justify a section 707(b) dismissal." Id. To the extent that appellants urge us to adopt an approach whereby a debtor's ability to pay, standing alone, would not warrant dismissal under § 707(b), we are bound by the Ninth Circuit's clear holding to the contrary. See Kelly, 841 F.2d at 914-15; see also In re Price, 353 F.3d 1135, 1139-40 (9th Cir.2004) (reaffirming Kelly's holding that ability to pay, standing alone, will justify a section 707(b) dismissal). Kelly did not, however, address the question of whether § 707(b) violates equal protection. Thus, to the extent that appellants intend to mount a facial constitutional challenge to the provision, we proceed to that issue. Inasmuch as § 707(b), by its terms, singles out those whose debts are "primarily consumer debts," it implicates the equal protection clause by drawing a distinction between consumer debtors and debtors whose debts are attributable to other sources (hereinafter "consumer debtors" and "business debtors," respectively). However, a classification that involves neither fundamental rights nor a suspect classification, *550 as here, "is accorded a strong presumption of validity" and "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Heller v. Doe, 509 U.S. 312, 319, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (internal quotations omitted). The Tenth Circuit squarely addressed the issue before us in In re Stewart, 175 F.3d 796 (10th Cir.1999). There, the court began by noting that Congress enacted § 707(b) for two reasons: (1) to address the problem of consumer debtors taking advantage of modern easy-credit practices, running up consumer debt, and then seeking to discharge that debt through Chapter 7 bankruptcy and (2) to give the courts a mechanism to more easily dismiss petitions by abusive consumer debtors. Id. at 812-13. The court distinguished consumer debtors from business debtors on at least two grounds. First, the court found that consumer debt is especially liable to abuse given modern easy-credit practices involving signature loans and credit cards. Id. at 813. Second, the risk of abuse of the bankruptcy process is lessened in the case of business debtors, who largely accrue debt to obtain tangible business assets, which gives creditors more protection in recovering those assets, as opposed to consumer debtors who generally "consume" the benefits acquired by their debt.[1]Id. Based on this analysis, the court concluded that § 707(b) did not violate the equal protection provisions of the Constitution. "A rational relationship exists between Congress singling out consumer debtors for dismissal for substantial abuse under § 707(b) and the government's legitimate purpose in preventing consumer abuse, reasonably protecting creditors and empowering the courts with a mechanism to more readily dismiss substantially abusive consumer petitions." Id. Appellants' argument that there is no logical basis for distinguishing between consumer debtors and business debtors, delinquent taxpayers, or those whose debts are attributable to torts is aptly rebutted by the court's reasoning in Stewart, and we adopt that reasoning here. Moreover, it is well-settled that the legislature may attack a problem piecemeal: Evils in the same field may be of different dimensions and proportions, requiring different remedies.... Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.... The legislature may select one phase of the field and apply a remedy there, neglecting the others. Williamson v. Lee Optical of Okla., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Here, Congress was free to address *551 what it viewed as the most serious area of abuse in the Chapter 7 bankruptcy arena, without violating equal protection guarantees. IV. DISPOSITION Accordingly, the bankruptcy court's order dismissing appellants' Chapter 7 case unless it was converted to Chapter 13 within 10 days of the August 18, 2003 hearing is hereby AFFIRMED. NOTES [1] Appellants, in their Reply, present statistics showing that only 4% of Chapter 7 cases in the year ending 6/30/02 were "asset" cases and 73% of these cases disbursed less than $10,000 to creditors. Reply, at 1. Appellants argue that "[w]hatever may be the dollar amount contributed to creditors through the sale of business assets in chapter 7 cases, it appears not to be significant enough to support a conclusion that creditors are better off when a bankrupt's debts stem from the operation of a business." Id. First, we fail to see how Appellants' statistics support their argument. Simply because 73% of "asset" cases disbursed less than $10,000 does not tell us anything about the other 27% of cases. Nor does it tell us anything about the amount generally disbursed from business debtors as compared with consumer debtors. Second, in determining whether a law has some reasonable basis, "mathematical nicety" is not required. Bowen v. Gilliard, 483 U.S. 587, 600, 107 S.Ct. 3008, 97 L.Ed.2d 485 (1987). Thus, even accepting the argument that creditors only recover slightly more from business debtors than consumer debtors, the law would not violate the Constitution.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT LOGISTICS TRANSPORTATION COMPANY, INCORPORATED, Plaintiff-Appellant, v. No. 96-2750 TIMBER TRUCKING COMPANY, INCORPORATED, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CA-96-391-3) Argued: December 4, 1997 Decided: April 27, 1998 Before NIEMEYER, Circuit Judge, WILSON, Chief United States District Judge for the Western District of Virginia, sitting by designation, and JONES, United States District Judge for the Western District of Virginia, sitting by designation. _________________________________________________________________ Reversed and remanded by unpublished per curiam opinion. _________________________________________________________________ COUNSEL ARGUED: David Gant Shuford, LECLAIR RYAN, P.C., Richmond, Virginia, for Appellant. Samuel Vernon Priddy, III, SANDS, ANDERSON, MARKS & MILLER, Richmond, Virginia, for Appel- lee. ON BRIEF: Steven W. Morris, LECLAIR RYAN, P.C., Rich- mond, Virginia, for Appellant. Albert M. Orgain, IV, Allan M. Heyward, Jr., Henry C. Spalding, III, SANDS, ANDERSON, MARKS & MILLER, Richmond, Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: In this appeal from a grant of summary judgment, the plaintiff- appellant contends that the district court erred in deciding that recov- ery under the contract at issue was barred because the written memo- randum lacked an essential term of the contract. We hold that the statute of frauds does not bar an action on this contract, and reverse. I Logistics Transportation Company, Inc. ("Logistics"), the plaintiff below and the appellant here, is a corporation which acts as a broker or agent for motor carrier transportation services. On February 9, 1994, it entered into a written "Agency Agreement" with Timber Trucking Company, Inc. ("Timber"), a corporation in the trucking business. The Agency Agreement provided, among other things, that Logistics was to solicit and obtain new business for Timber. Before the Agency Agreement was signed, a third entity, Manches- ter Tank Company ("Manchester"), a manufacturer of propane tanks in Petersburg, Virginia, asked Logistics to locate a new motor carrier for its freight. Logistics introduced Manchester to Timber, and at the time Timber and Logistics signed the Agency Agreement they were in the process of negotiating with Manchester for its business. In anticipation of securing such business, Timber and Logistics provided in their Agency Agreement that Timber would pay Logistics a five 2 percent commission on Manchester's trucking business. For all other business, the Agency Agreement directed that Logistics would receive an eight percent commission. The Agency Agreement also provided that either party might terminate "this agreement" for cause or otherwise by seven days written notice. On April 29, 1994, Manchester, Timber and Logistics entered into a written agreement (the "Manchester Agreement"). The preamble recited that it was a "long-term contract . . . for the purpose of moving finished and raw products within the eastern United States and Can- ada." The Manchester Agreement provided that Manchester was to pay Timber $1.65 per loaded mile, with a minimum charge per load of $250 and drop charges of $35 per occurrence. Timber was to main- tain six to eight trailers at Manchester's facility at all times, and Logistics was to serve as Timber's "transportation agent," dispatch loads, monitor fuel costs and the quality of service on a regular basis, and "settle all disputes" between Timber and Manchester. The Man- chester Agreement had a term of five years. At Logistics' request, the amount of commission that Timber was to pay to Logistics was omitted from the Manchester Agreement in order to keep the figure secret from Manchester. The relationship between Timber and Logistics continued until March of 1996, during which Logistics received a commission of five percent of the amount paid by Manchester. At that time Timber wrote Logistics giving seven days notice of the termination of the Agency Agreement. Thereafter, Logistics received no further commissions from the Manchester business.1 As a result, Logistics filed the present action against Timber in state court, which Timber removed, based on diversity jurisdiction, to the district court below. Logistics claimed that Timber had breached the Manchester Agreement by refusing to _________________________________________________________________ 1 The record does not reflect whether Logistics performed any services under the Manchester Agreement after receiving notice of termination of the Agency Agreement. At oral argument, counsel for Timber repre- sented that Manchester has acquiesced in Logistics' forced removal from the business relationship. Presumably, therefore, Logistics has not incurred further cost of performance, although it has lost any anticipated profit under the contract. 3 pay further commissions, and also asserted causes of action on implied contract and quantum meruit. After limited discovery in the case, Timber moved for summary judgment in its favor, relying on the Agency Agreement's seven-day termination clause, and contending that notice under this provision also canceled Logistics' right to commissions under the Manchester Agreement. The district court granted summary judgment to Timber, but on the sole ground that the statute of frauds made the Manchester Agreement unenforceable since it could not be performed within a year. The court held that because the writing lacked an essential term -- the compensation for Logistics -- it was insufficient as a written memo- randum. Following summary judgment, Logistics moved for recon- sideration on the ground that the statute of frauds had not been argued by the parties. However, the district court denied Logistics' motion for reconsideration and this appeal followed. II Logistics argues on appeal that the district court should not have decided the case sua sponte based on the statute of frauds, since doing so denied Logistics the opportunity to respond and present evidence on the issue. As Logistics points out, prior notice would have allowed Logistics to present evidence of possible defenses to the statute of frauds.2 While a remand would be proper on this procedural ground,3 we _________________________________________________________________ 2 Although it is not clear from this record, Logistics might have shown that a factual question existed as to whether Timber was estopped from asserting the statute of frauds, on the ground that Logistics changed its position in reliance upon the contract. See T... v. T..., 224 S.E.2d 148, 152 (Va. 1976). The presence of a genuine issue of material fact in this regard would have precluded summary judgment. Fed. R. Civ. P. 56(c). 3 Summary judgment cannot be granted on a ground not argued without the requisite ten days notice afforded by Fed. R. Civ. P. 56(c). Judwin Properties, Inc. v. United States Fire Ins. Co., 973 F.2d 432, 436 (5th Cir. 1992). The statute of frauds had been pleaded by Timber in its answer, but not asserted in its motion for summary judgment. 4 believe that the direct answer to the appeal is that the district court erred in its analysis of the applicability of the statute of frauds. Accordingly, we will reverse on that basis. The Manchester Agreement was a triparte contract. Each of the three parties had certain defined responsibilities. The consideration to be paid by Manchester to Timber was expressly set forth, in the form of $1.65 per loaded mile, with certain minimum and drop charges. What was not set forth in the writing was the portion of that payment to be received by Logistics. The district court held that this provision was an essential term of the agreement, and without it, there was not a sufficient memorandum of the contract, within the meaning of the statute of frauds. We hold, however, that the omission of the amount of Logistics' commission was not, under these circumstances, a violation of the statute of frauds. III The purpose of the statute of frauds is to prevent frauds based upon oral proof of purported contracts. See Drake v. Livesay, 341 S.E.2d 186, 188 (Va. 1986).4 The written memorandum required to satisfy the statute of frauds is not the contract itself, but must be sufficient to assure that such a contract does exist and thus serve the purpose of the statute. Id. The writing must set forth the essentials of the agreement, and the contract's consideration is frequently character- ized as an essential element, at least where it is executory. See 4 Sam- uel Williston & Walter H. E. Jaeger, A Treatise on the Law of Contracts § 570 (3d ed. 1961 & Supp. 1997).5 _________________________________________________________________ 4 Since this is a diversity case, we must apply the forum state's conflict of laws rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). The district court and the parties assumed that Virginia law applies. The traditional view is that the forum's statute of frauds is to be applied, where, as in Virginia, the statute operates only to affect the enforceability of the contract, and not its validity. See Stein v. Pulaski Furniture Corp., 217 F. Supp. 587, 590-91 (W.D. Va. 1963). 5 The Virginia statute of frauds contains the proviso that "[t]he consid- eration need not be set forth or expressed in the writing, and it may be 5 However, it is clear that a missing term of a memorandum may be supplied by a separate related document, even if the separate docu- ment is unsigned. See Jordan v. Mahoney, 63 S.E. 467, 468 (Va. 1909); Restatement (Second) Contracts § 132 cmt. c (1979). The Agency Agreement, although unsigned by Timber, is thus available to supply the missing term of Logistics' commission under the Man- chester Agreement. Under Virginia law, it is necessary that the signed paper refer to the unsigned writing "in clear and distinct terms." American Indus. Corp. v. First & Merchants Nat'l Bank, 219 S.E.2d 673, 676 (Va. 1975). As stated by the Virginia Supreme Court in its fullest exposition of the issue: It is well settled that where the memorandum of the bargain between the parties is contained in separate pieces of paper, and these papers contain the whole bargain, they form together such a memorandum as will satisfy the statute, pro- vided the contents of the signed paper make such reference to the other written paper, or papers, as to enable the court to construe the whole of them together as constituting all the terms of the bargain. But if it be necessary to produce parol evidence in order to connect a signed paper with others unsigned, by reason of the absence of any internal evidence in the contents of the signed paper to show a reference to or connection with the unsigned papers, then the several papers taken together do not constitute a memorandum in writing of the bargain so as to satisfy the statute. It is not necessary that the signed paper should refer to the unsigned paper as such. It is sufficient to show that a particular unsigned paper, and nothing else, can be referred to, and parol evi- dence is admissible for that purpose. _________________________________________________________________ proved (where a consideration is necessary) by other evidence." Va. Code Ann. § 11-2 (Michie 1993). While there is no Virginia authority on point, statutes similar to Virginia's nevertheless have been construed to require the memorandum to state the consideration, where the contract involved bilateral promises, and the consideration in question was the defendant's promise. See, e.g., Reid v. Diamond Plate-Glass Co., 85 F. 193, 203 (6th Cir. 1898). 6 Darling v. Cumming, 23 S.E. 880 (Va. 1896) (citations omitted). Here the signed writing, the Manchester Agreement, does not expressly refer to the unsigned writing, the Agency Agreement. How- ever, it does show substantial connection with it. Both documents relate to Logistic's agency duties in relation to Timber's trucking business, and both refer to Manchester as a customer for that busi- ness. The two agreements are certainly separable in that the Agency Agreement involved a range of possible relationships and the Man- chester Agreement was particularized as to one client, Manchester. However, while the sufficiency of the relationship between writings is always a matter of degree under the statute of frauds, Williston, supra, § 583, we find the two writings here are sufficiently connected to provide a memorandum that satisfies the statute of frauds. In summary, we hold that the statute of frauds does not bar Logis- tics' claim. Accordingly, we reverse the grant of summary judgment and remand the case to the district court for a determination of the parties' rights under the contract. REVERSED AND REMANDED 7 

285 F.Supp. 885 (1968) Anelie LeBlanc MIRE et al. v. SUNRAY DX OIL COMPANY et al. Civ. A. No. 12993. United States District Court W. D. Louisiana, Lafayette Division. May 9, 1968. *886 Domengeaux, Wright & Bienvenu, D. Mark Bienvenu, Lafayette, La., for plaintiffs. Liskow & Lewis, Austin W. Lewis, and James L. Pelletier, New Orleans, La., for defendants. *887 MEMORANDUM OPINION PUTNAM, District Judge. This case originated in the Fifteenth Judicial District Court of the State of Louisiana, Parish of Lafayette, having for its object the cancellation of an oil, gas and mineral lease affecting lands owned by plaintiffs in the Parish of Lafayette and an accounting for the proceeds of production since the date of the alleged default. The lease in question was executed on June 18, 1963, in favor of Charles L. Beck (Beck), a citizen of Louisiana residing in Lafayette. The rights thus acquired by Beck were assigned by him to defendant Sunray DX Oil Company (Sunray), with subsequent transfers of overriding royalties to J. P. Owen, Sr. (Owen), also a Louisiana citizen residing in Lafayette, and to General American Oil Company of Texas (General American). Sunray and General American are foreign corporations qualified to do business in Louisiana; these corporations now own the entirety of the leasehold interest in the property. All four of these parties were named defendants. Alleging diversity of citizenship and jurisdictional amount as required by 28 U.S.C.A. § 1332(a) and 1441(a), and that the joinder of Beck and Owen was fraudulent and for the purpose of defeating the jurisdiction of the court, the matter was removed. Beck and Owen filed motions for summary judgment supported by affidavits and documentary evidence, establishing that they claim no further interest in the lease, praying for dismissal. They were dismissed. Sunray and General American also filed motions for summary judgment. Plaintiffs have moved for a new trial on the question of Beck's dismissal as above set forth. These motions are now before the court for decision. The issue quickly resolves itself to the single question of whether or not the original lessee of a Louisiana mineral lease remains bound to the lessor for the fulfillment thereof after having executed a complete assignment of the lease. We hold that he does. Louisiana's Civil Law system applies concepts to mineral leases which are basically different from legal theories of the common law. The distinction was recognized in Viterbo v. Friedlander, 120 U.S. 707, 7 S.Ct. 962, 30 L.Ed. 776 (1887), as follows: "In considering this case it is important to keep in mind that the view of the common law of England and of most of the United States, as to the nature of a lease for years, is not that which is taken by the civil law of Rome, Spain, and France, upon which the Civil Code of Louisiana is based." (120 U.S. at 712, 7 S.Ct. at 964) Contracts relating to the development of the mineral resources of the State have been the subject of much travail for the legal profession and for the judiciary. Volumes have been written concerning the nature of these contracts, which are usually in the form of a sale or reservation of a mineral right upon the land, constituting a servitude, or in the form of a lease of the property for purposes of its development and the production therefrom of oil, gas and other minerals. Moreover, rights and interests which come into being as the incidental results of these contracts, such as assignments, subleases, mineral royalty interests (sold or reserved), and overriding royalties payable out of the lessee's portion of production have posed problems of interpretation and classification peculiar to the civil law property system. See, for example, Palmer v. Bender, 49 F.2d 316 (W.D.La.1931); Whitehall Oil Co. v. Heard, 197 So.2d 672 (La.App.1967, mineral servitudes and mineral royalties); Yiannopoulos, Civil Law of Property, 1966, Sec. 99, p. 284; Note, 39 Tul.Law Rev. 922 (1965); Campbell, "Principles of Mineral Ownership in the Civil Law and Common Law Systems", 31 Tul.Law Rev. 303 (1957); Tucker, *888 "Sublease and Assignment: Some of the Problems Resulting from the Distinction," Third Annual Institute on Mineral Law, p. 176 (La. State University, 1955); Moses, "The Distinction Between a Sublease and an Assignment of a Mineral Lease in Louisiana," 18 Tex. Law Rev. 159 (1939); Comment, "The Juridical Nature of Oil and Gas Rights in Louisiana," 9 Tul.Law Rev. 275 (1934-1935); Note, 2 Tul.Law Rev. 65 (1917). The mineral lease is the most common vehicle used to obtain development of lands for oil, gas and other minerals, and development of the law in this area has been at times inconsistent and confusing; the legal nature of this contract in particular being the subject of constant "clarification". The jurisprudence as it had evolved up to 1936 was marshalled and what has for many years been regarded as a definitive holding by the Louisiana Supreme Court was handed down in Gulf Refining Co. of Louisiana v. Glassell, 186 La. 190, 171 So. 846 (1936). There it was held that a "mineral lease" was in fact a "lease" and that the rights acquired by the lessee were purely personal, not such as would permit him to institute a petitory action without the concurrence or consent of his lessor. The decision was overturned procedurally by the enactment of Act No. 205 of the General Assembly of Louisiana for the year 1938, which classified oil, gas and mineral leases as real rights and provided that they could be protected, asserted and defended in the manner provided by laws relating to the ownership and possession of immovable property. This Act gave rise to the contention that the holders of such lease rights enjoyed a jus in re, a proprietary right or interest in the land itself; but in Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369 (1949) the Court held that the rights conferred were procedural and remedial in nature and did not affect substantive rights flowing from such contracts. The reaction to this decision was the amendment of Act 205 of 1938 by Act No. 6 of the Second Extra Session of the General Assembly of Louisiana for the year 1950, which added the proviso that: "This Section shall be considered as substantive as well as procedural so that the owners of oil, gas and other mineral leases and contracts within the purpose of this Section shall have the benefit of all laws relating to the owners of real rights in immovable property or real estate." The entire provision was incorporated into the Revised Statutes of 1950 as R.S. 9:1105. The hope of the industry that mineral leases would thereafter be classified and treated as real rights in the property affected thereby, or as a separate proprietary interest in the land, was short lived. Reagan v. Murphy, 235 La. 529, 105 So.2d 210 (1958) followed and reiterated the rule that such contracts are to be considered as leases giving rise to personal rights between the lessor and the lessee and governed by the articles of the Louisiana Civil Code pertaining to leases. Citing In re Morgan R. & S. S. Co., 32 La.Ann. 371 (1880), the Court made it clear that the lessee became possessed of a jus ad rem, not a jus in re, a right upon the thing (the land subject thereto) rather than a proprietary interest in it. Much of the language employed by the Court in reaching this conclusion gives the impression that the leasehold interest should be regarded as a personal right upon the land, but careful analysis reveals that this language is nothing more than obiter dicta. The result reached, that rights granted mineral lessees by LSA-R.S. 9:1105 did not render mineral leases amenable to the liberative prescription of ten years under Article 3529 or Article 3546 of the Louisiana Civil Code of 1870, (LSA-R.C.C. Arts. 3529, 3546), applicable to servitudes, did not require such an interpretation. *889 The Court has since 1936 consistently held that the mineral lease is to be considered in no other light than that of lease and the rights and obligations between the parties governed by the articles of the Code dealing with leases. Royalties provided for after production, either during or following the primary term, are considered as rent, fruits of the land, falling into the community of acquets and gains between husband and wife even though production is obtained from the separate property of the husband, Milling v. Collector of Revenue, 220 La. 773, 57 So.2d 679 (1952); the lease can be forfeited or cancelled on demand of the lessor for nonpayment of royalties (rent), Melancon v. Texas Company, 230 La. 593, 89 So.2d 135 (1956); Bollinger v. Texas Co., 232 La. 637, 95 So.2d 132 (1957). These are but two examples from the legion of cases in which the appellate courts of this state have held to this view; others dealing with different aspects of the relationship are: Calhoun v. Gulf Refining Co., 235 La. 494, 104 So.2d 547 (1958); Coyle v. North American Oil Consolidated, 201 La. 99, 9 So.2d 473 (1942); Tyson v. Surf Oil Co., 195 La. 248, 196 So. 336 (1940); Martel v. Hunt, 195 La. 701, 197 So. 402 (1940). The list could be extended indefinitely. In all of these cases, moreover, the Court recognized that mineral leases were to be considered as incorporeal immovable property. See also Art. 1997, Louisiana Civil Code, the third paragraph of which states that an obligation is "* * * real when it is attached to immovable property, and passes with it into whatever hands it may come, without making the third possessor personally responsible." Able counsel for defendants contend that more recent enactments by the Legislature in adopting the 1960 Code of Civil Procedure, particularly Article 3664, and more recent decisions of the courts have changed the nature of the rights obtained by a mineral lessee. We do not agree that any change has taken place. What has happened is that the Louisiana Supreme Court in the recent case of Succession of Simms, 250 La. 177, 195 So.2d 114, on rehearing (1966), recognized that under Articles 463, 470, 2010, 2012 and 2015 of the Louisiana Civil Code of 1870, the law has always been that incorporeal things, such as the rights acquired by a lessee, which are themselves not susceptible of the quality of movables or immovables are placed in one or the other of these two classes of property "according to the object to which they apply" (Art. 470). And since mineral leases apply to immovable property they give rise to obligations exercisable upon the land that are purely real and for which the property itself is liable (Arts. 2010 and 2012), a position fortified by the provision of Article 2015, which reads: "Not only servitudes, but leases and all other rights, which the owner has imposed on his land * * * form real obligations which accompany it in the hands of the person who acquires it * * *." (195 So.2d at 128, emphasis supplied by the Court.) How these articles were overlooked in the long history of the development of Louisiana mineral law is not explained, but the Court has had the last say, not the legislature as counsel suggest. We note that the French Civil Code had no articles corresponding to Articles 470, 2010, 2012 and 2015 of the Louisiana Civil Code. The Simms case does not change the conclusion of this court that such incorporeal rights, real though they may be, do not constitute a jus in re so as to confer upon the lessee a proprietary interest in the land. The lease is, rather, a jus ad rem, defined as follows: "JUS AD REM. A term of the civil law, meaning `a right to a thing', that is, a right exercisable by one person over a particular article of property in virtue of a contract or obligation incurred by another person in respect to it, and which is enforceable only *890 against or through such other person. It is thus distinguished from jus in re, which is a complete and absolute dominion over a thing available against all persons." Black's Law Dictionary, Fourth Edition, West 1951. While the Court sharply circumscribed the earlier decisions of Glassell and Reagan in the Simms case, restricting them to the bare bones of the results reached, it did not overrule such results. Compare: In re Morgan R. & S. S. Co., supra; Calhoun v. Gulf Refining Co., supra; Tinsley v. Seismic Explorations, Inc., 239 La. 23, 117 So.2d 897 (1960). We find nothing inconsistent with this conclusion in the cases relied upon by defendants in addition to Simms, viz: Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963); Ingolia v. Lobrano, 244 La. 241, 152 So.2d 7 (1963); and Berwick Mud Company, Inc., v. Stansbury, 205 So.2d 147 (La.App.1967). In fact, they are entirely in accord with the view that rights held by a mineral lessee are incorporeal immovable property. Moreover, since Simms, the Louisiana courts have continued to apply the articles of the Code pertaining to leases to these contracts, notably in Melancon v. Melancon, 199 So.2d 573 (La.App.1967); and Fontenot v. Sunray Mid-Continent Oil Company, 197 So.2d 715 (La.App.1967). This brings us to a consideration of the effects of the assignment executed by Beck to Sunray. Article 2725 of the Louisiana Civil Code of 1870 provides: "The lessee has the right to underlease, or even to cede his lease to another person, unless this power has been expressly interdicted. "The interdiction may be for the whole or for a part; and this clause is always construed strictly." There is a sharp distinction between an assignment of a lease and a sublease, recognized in the jurisprudence. In the case of a sublease a new and, in a sense, separate contractual relationship of lease exists between the original lessee and the sublessee. There can be no actions on the contract between the original lessor and the sublessee because there is no privity between them; there are two contracts, the original lease and the sublease, only the original lessee is a party to both. Thus, suit for cancellation of a lease cannot be brought against the sublessee by the landowner, his action is against the original lessee, with the sublessee a necessary party. Where there is an assignment of the lease, however, the assignee is liable to the original lessor for the obligations of the original lessee which he has assumed completely. To sublease is to lease in whole or in part the thing of which one is the lessee, with reservation of an interest in it by the original lessee, or sublessor; while to assign a lease is to sell it. Broussard v. Hassie Hunt Trust, 231 La. 474, 91 So.2d 762 (1956); Roberson v. Pioneer Gas Co., 173 La. 313, 137 So. 46, 82 A. L.R. 1264 (1931); Smith v. Sun Oil Company, 165 La. 907, 116 So. 379 (1928); Walker v. Dohan, 39 La.Ann. 743, 2 So. 381 (1887). See: Mouton, A Legal Mineralogy, Title 11, pp. 64 et seq.; Daggett Mineral Rights in Louisiana, Sec. 33, pp. 124 et seq. (1939); Tucker, "Sublease and Assignment: Some of the Problems Resulting from the Distinction", Third Annual Institute of Mineral Law (La. State University, 1955); Moses, "Assignment and Sublease of Oil, Gas and Mineral Leases in Louisiana: Their Differentiation", 23 Tul.La.Rev. 231 (1948); Moses, "The Distinction Between a Sublease and an Assignment of a Mineral Lease in Louisiana", 18 Tex.Law Rev. 159 (1939); Planiol, Traité Élémentaire De Droit Civil, Vo. 2, n.° 1747 et seq. (11 ed. 1939, trans. Louisiana State Law Institute, 1959). On the basis of the record before us, we find that the transaction of *891 June 19, 1963, whereby Beck transferred his interests in the lease to Sunray is an assignment of that lease. If his rights were proprietary in essence, conferring absolute dominion over an incorporeal immovable mineral estate in the land, which must be implied from defendants' contentions, the matter would end here. But, as we have seen, the lease conferred only rights exercisable upon the land, classified as incorporeal real rights because of the object to which they are attached. This being the case, the obligations ancillary to and which flow from the lessee's contractual undertaking with plaintiffs to develop the land according to the terms of the contract are not extinguished unless it be by one of the methods provided by law. We deal here with the obligation to pay the rent (royalties) "at the terms agreed on", and to enjoy the thing leased "as a good administrator, according to the use for which it was intended by the lease." Article 2710, Louisiana Revised Civil Code of 1870. There is a paucity of jurisprudence on the subject; the question of the original lessee's obligations to the original lessor after assignment of a mineral lease is res nova so far as we are able to determine. A review of the general provisions of the Code dealing with the manner in which obligations are extinguished, Title IV, Chap. 5, indicates that defendants' position that Beck had no further interest in the lease and that the assignees are substituted in his stead might be sustained in certain factual situations on the theory of novation. See Articles 2130 and 2185 through 2198. The lease contains no provision which can be construed as consent of the lessors to the release of the original lessee from his obligations to them in the event of its assignment and a substitution of the assignee in his stead, nor does the record reflect any evidence that subsequent thereto the plaintiffs expressed their intention to do so in an unequivocal manner by implication or otherwise. There was no novation in this case. See and compare: Zaeringer Realty Co. v. New Orleans Hops, Malt & Extract Co., 10 La.App. 648, 121 So. 193 (1929); Knapp v. Guerin, 144 La. 754, 81 So. 302 (1919); J. Davidson Hill & Co. v. Bourcier, 29 La.Ann. 841 (1877); Vignie v. Gouax & Viala, 14 La.Ann. 344 (1859). We are referred to the case of Grundmann v. Trocchiano, 13 La.App. 277, 127 So. 748 (La.App.1930) by plaintiffs, and our independent research discloses Succession of Stone, 31 La.Ann. 311 (1879), neither of which decisions are dispositive of the issues here. The problem is recognized by at least one author, in "Sub-lease and Assignment: Some of the Problems Resulting From the Distinction", Tucker, Third Annual Institute on Mineral Law (La. State Univ., 1955) p. 176 et seq. There it is said: "Whether it be an assignment or a sub-lease, the primitive lessee remains bound by the obligations of the lease to the original lessor. In the case of a sub-lease, to which the original lessor is a complete stranger, and an assignment does not relieve the primitive lessee of his obligations without the consent of his creditor. It would seem to be logical, also, that in the case of a sub-lease, the primitive lessee would retain the power to require of the primitive lessor the execution of his obligations under the original lease, while in the case of an assignment, he would have no such rights, because he had transferred them to the assignee." However, commentators on the French Civil Code, from which the Louisiana codal articles are derived (the pertinent provisions of which are almost identical), are in accord in their conclusion that the original lessee remains bound *892 on the obligations of the lease to his lessor even though the lessee has assigned the lease. Beudant, Cours de Droit Civil Francais, Tome XI—"La Vente, Le Louage Des Choses," n° 501, p. 447, n° 503, p. 452 (Paris, 2e ed. 1938); Baudry-Lancantinerie et Wahl, Traite de Droit Civil, Tome 18 & 19—"Du Contrat de Louage", n° 1131, pp. 594-595, n° 1137, p. 598 (Paris, 2e ed. 1900); Baudry-Lacantinerie, Precis de Droit Civil, Tome III—"De Contrat de Louage," n° 694, p. 421 (Paris 3e ed. 1889); Troplong, De L'Echange et du Louage, n° 128, p. 78 (1841); Pothier, Contrat de Louage, n° 282, p. 153 (Paris, 1806). To same effect, see, La Haye et Vankerckhove, Le Louage de Choses, n° 258-260, p. 158, n° 262, p. 159 (Bruxelles, 1964). See, Planiol, supra, n° 1753. The reasons given, which we will not discuss in detail are sound and we agree with the conclusion. In Audubon Hotel Co. v. Braunnig, 120 La. 1089, 46 So. 33 (1904), it is observed: "In choosing a tenant owners exercise some degree of judgment. There are questions of ability to pay, matters regarding the taking care of the property. There are some tenants more careful than others. For these and other similar reasons tenants are sometimes selected and some restriction placed upon them as to sublease or transfer of the lease." If the right to sublease or assign is not restricted, these same considerations provide additional reasons to hold the primary lessee answerable to the landowner for a breach of his contractual responsibility under the lease by a negligent or careless assignee. For the foregoing reasons, our previous judgment should, on new trial, be recalled, vacated and set aside insofar as it dismisses defendant Beck from this suit. Having reached this conclusion, the case of American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, 19 A.L.R.2d 738 (1951) requires this court to remand the case sua sponte as the controversy does not present a "separate and independent claim or cause of action" against defendants Sunray and General American as must be found to support removal based upon diversity under Title 28 U.S.C.A. Sec. 1441(c), 1447(c). Federal Practice & Procedure, Barron and Holtzoff, Vol. 1, Secs. 105, 109. The cause of action which these plaintiffs have against Beck is identical to the cause of action against these defendants. It is not necessary, in our opinion, to make any determination of the question of whether or not Beck, as primitive lessee, is a necessary or indispensable party to a suit against his assignees for cancellation of the lease assigned. See: Humble Oil & Refining Co. v. Jones, 241 La. 661, 130 So.2d 408 (1961); Jamison v. Superior Oil Co., 220 La. 923, 57 So. 2d 896 (1952). Furthermore, we feel that it is more appropriate to refrain from any action on the motion for summary judgment filed by Sunray and General American. All of the motions before the Court involve matters of State law, and a more authoritative decision of the issues, particularly the novel question of Beck's responsibility, will result. Counsel for plaintiffs will prepare and submit for signature an appropriate order in keeping with the views herein expressed and in compliance with Rule 9(e), United States District Court Rules, Western District of Louisiana.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-62,099-04 and WR-62,099-05 IN RE ROBERT LYNN PRUETT, Applicant ON COUNSEL’S MOTIONS FOR LEAVE TO APPEAR TO FILE MOTIONS FOR STAYS OF EXECUTION PENDING THE DISPOSITION OF APPLICATIONS FOR WRITS OF HABEAS CORPUS FILED ON APPLICANT PRUETT’S BEHALF FROM CAUSE NO. B-01-M015-PR-B IN THE 156 TH JUDICIAL DISTRICT COURT BEE COUNTY Per curiam. N EWELL, J., filed a concurring statement in which A LCALA, J., joined. R ICHARDSON, J., not participating. ORDER We have before this Court two “Motion[s] for Leave to Appear” for David Dow to appear on behalf of applicant Robert Pruett to file motions to stay Pruett’s execution in conjunction with the filing of two separate subsequent applications for writs of habeas corpus. Dow filed the first application in the convicting court on April 17, 2015, and he has stated his intent to file the second application today. We grant Dow leave to appear  Dow Motion/Pruett writs - 2 before this Court with regard to both applications for writs of habeas corpus in the Pruett case. Robert Lynn Pruett is scheduled for execution on April 28, 2015. Pursuant to Miscellaneous Rule 11-003, pleadings filed on behalf of Pruett are due to be filed in this Court no later than Monday, April 20, 2015. Any pleadings filed after that date shall be accompanied by a good-cause statement as required by Rule 11-003. IT IS SO ORDERED THIS THE 20 th DAY OF APRIL, 2015. Do Not Publish 

260 S.W.3d 461 (2008) In the Interest of D.F., a Child. No. 08-0378. Supreme Court of Texas. July 25, 2008. Tim Curry, Tarrant County Criminal District Attorney, Charles M. Mallin, Anne E. Swenson, David M. Curl, Assistant Criminal District Attorneys, Fort Worth TX, Kim Leah Burkley, Dallas County District Attorney's Office, Dallas TX, for Texas Department of Family and Protective Services. Richard Charles Kline II, Fort Worth TX, Cordelia Jane Anakwue, Dallas, TX, for David Franklin, respondent pro se. Sylvia R. Andrews, Fort Worth TX, Attorney ad litem. Kee Alice Ables, Arlington TX, for Dorlyn Yvonne B. Marvina Nichelle Robinson, Marvina N. Robinson, P.C., Attorney at Law, Mansfield TX, for Michael J. PER CURIAM. The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i).

450 F.Supp. 805 (1978) UNION ELECTRIC COMPANY, a Missouri Corporation, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States of America, Defendant. No. 78-164C(A). United States District Court, E. D. Missouri, E. D. March 16, 1978. *806 William H. Ferrell, Schlafly, Griesedieck, Ferrell & Toft, St. Louis, Mo., for plaintiff. Joseph B. Moore, Asst. U. S. Atty., St. Louis, Mo., for defendant. MEMORANDUM OPINION AND ORDER HARPER, District Judge. The plaintiff, Union Electric Company (hereinafter referred to as UE), has filed a complaint seeking a declaratory judgment and a preliminary injunction and permanent injunction with respect to enforcement proceedings by Environmental Protection Agency (hereinafter referred to as EPA) with regard to emission standards for sulphur dioxide (hereinafter referred to as SO2) and opacity under the Clean Air Act, 42 U.S.C. § 7401 et seq. Plaintiff's prayer seeks equitable relief, a stay of any enforcement proceedings by EPA only so long as UE is actively and in good faith pursuing revisions and/or variance of the applicable regulations contained in the Missouri Implementation Plan before administrative agencies and/or courts of the State of Missouri. Plaintiff seeks no relief beyond the time at which its request for revisions are finally resolved by the administrative agencies and/or courts of the State of Missouri. Plaintiff does not ask the Court to determine the merits of its requests for revisions or the applicability of the Implementation Plan to its present operations. *807 This matter is before the Court on plaintiff's motion for a preliminary injunction. The jurisdiction of this Court exists pursuant to 28 U.S.C. § 1331(a) inasmuch as this is an action brought against EPA, an agency of the United States. There is no dispute between the parties with respect to the facts presented. The pleadings, briefs of the parties, testimony and exhibits before the Court, and prior history, disclose that the plaintiff is an electric utility company serving the metropolitan St. Louis area and parts of Illinois and Iowa. Its three coal-fired generating plants, Labadie, Meramec and Sioux, are subject to the SO2 and opacity restrictions in the Missouri Implementation Plan as approved by EPA. UE did not seek review of the Administrator's approval of the plan on May 31, 1972, 40 CFR 52.1320, within thirty days, as it was entitled to do under Section 307(b)(1) of the Act, 42 U.S.C. § 1857h-5(b)(1), but rather applied to the appropriate state and county agencies for variances from the emission limitations affecting its three plants. UE received a one-year variance for each of the plants which could be extended upon reapplication. The variances on two of the three plants had expired and plaintiff was applying for extensions when on May 31, 1974, the Administrator notified the plaintiff that SO2 emissions from its plants violated the emission limitations contained in the Missouri Implementation Plan. On August 18, 1974, UE brought suit against the EPA in the United States Court of Appeals for the Eighth Circuit, contending that they should not have to comply with SO2 emission regulations because of economic reasons and because their SO2 emissions were not interfering with attainment or maintenance of the National Ambient Air Quality Standards (NAAQS) for SO2. Therein, UE contended that a claim or economic or technological infeasibility may be considered upon a petition for review of approval by the Administrator of a state implementation plan. In Union Electric Co. v. EPA, 515 F.2d 206 (8th Cir. 1975), the Court held that questions of economic and technological feasibility do not constitute grounds for review and that the court is without jurisdiction to consider the claim raised by UE in its petition for review. On October 6, 1975, the Supreme Court in UE v. EPA, 427 U.S. 246, 265-67, 96 S.Ct. 2518, 2529, 49 L.Ed.2d 474 (1976) held: "In sum, we have concluded that claims of economic or technological infeasibility may not be considered by the Administrator in evaluating a state requirement that primary ambient air quality standards be met in the mandatory three years. And, since we further conclude that the States may submit implementation plans more stringent than federal law requires and that the Administrator must approve such plans if they meet the minimum requirements of § 110(a)(2), it follows that the language of § 110(a)(2)(B) provides no basis for the Administrator ever to reject a state implementation plan on the ground that it is economically or technologically infeasible. Accordingly, a court of appeals reviewing an approved plan under § 307(b)(1) cannot set it aside on those grounds, no matter when they are raised. "Our conclusion is bolstered by recognition that the Amendments do allow claims of technological and economic infeasibility to be raised in situations where consideration of such claims will not substantially interfere with the primary congressional purpose of prompt attainment of the national air quality standards. Thus, we do not hold that claims of infeasibility are never of relevance in the formulation of an implementation plan or that sources unable to comply with emission limitations must inevitably be shut down. "Perhaps the most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan. So long as the national standards are met, the State may select whatever mix of control devices it desires, Train v. NRDC, supra, 421 U.S. 60, at 79 [95 S.Ct. 1470, 43 L.Ed.2d 731,] and industries *808 with particular economic or technological problems may seek special treatment in the plan itself. Cf. 40 CFR §§ 51.2(b), (d) (1975); S. Rep. No. 91-1196, p. 36 (1970). Moreover, if the industry is not exempted from, or accommodated by, the original plan, it may obtain a variance, as petitioner did in this case; and the variance, if granted after notice and a hearing, may be submitted to the EPA as a revision of the plan.15 § 110(a)(3)(A), as amended, 88 Stat. 256, 42 U.S.C. § 1857c-5(a)(3)(A) (1970 ed., Supp. IV.) Lastly, an industry denied an exemption from the implementation plan, or denied a subsequent variance, may be able to take its claims of economic or technological infeasibility to the state courts. See, e.g., § 203.130, Mo.Rev.Stat. (1972); Cal. Health & Safety Code § 39506 (1973); Pa.Stat.Ann., Tit. 71, § 1710.41 (1962).16" (Emphasis added.) In February, 1975, while the case of UE v. EPA was in the Eighth Circuit Court of Appeals, the U. S. Environmental Protection Agency filed a report titled "Implementation Plan Review as required by the Energy Supply and Environmental Coordination Act (Plff's Ex. 2). On page 4 of the report the EPA had this to say in part: "The State Implementation Plan for Missouri has been reviewed for the most prevalent causes of over-restrictive fuel combustion emission limiting regulations. The major findings of the review are: "* * * For sulfur dioxide, there are indications that emission limiting regulations for very large fuel burning sources may be overly-restrictive. * * * * * * "Missouri has direct fuel combustion regulations for SO2 only in the Metropolitan St. Louis Area. Except in St. Louis, therefore, fuel switching is not hindered by SO2 emissions regulations. Current air quality sampling data for St. Louis indicate high isolated SO2 concentrations in the Missouri portion of the metropolitan area. However, sources of SO2 other than power plants are in the immediate vicinity of these `hot spots'. Since these sources are presently meeting existing emission regulations, there are strong indications that regulations affecting these sources must be tightened." The report continues on page 5: "There are currently no indications that SO2 emissions from power plants in the Missouri portion of the St. Louis area are causing violations of SO2 air quality standards." The Supreme Court handed down its decision in UE v. EPA on June 25, 1976. UE filed a motion for rehearing. On July 22, 1976, following the Supreme Court's decision, Jerome H. Svore, Regional Administrator for EPA, wrote a letter to the Chairman of the Missouri Air Quality Commission (Plff's Ex. 3), which stated in part as follows: "The EPA has reviewed the SO2 monitoring data for the area around three UECO plants and performed some diffusion modeling calculations. The results of this review and these calculations indicates that UECO was correct in the contention that its SO2 emissions were not interfering with the attainment or maintenance of the NAAQS for SO2. "The EPA sent a letter to Governor Christopher S. Bond on March 28, 1975, a copy of which you have, transmitting a copy of a report entitled `Implementation Plan Review for Missouri as Required by the Energy Supply and Environmental Coordination Acts.' This report stated that the State of Missouri could relax the SO2 emission standard which applies to the three UECO plants mentioned previously, without violating the ambient air quality standards. "The EPA has no objections to your amending Regulation X to relax the SO2 emission standard for the three UECO plants which were mentioned previously. The new SO2 emission standard must still provide for attainment and maintenance of the NAAQS and this must be demonstrated by a revision to the Control Strategy Section of the Missouri State Implementation Plan. *809 "If you decide not to follow the above course of action or place the UECO on a compliance schedule to comply with Regulation X, the EPA has no alternative but to issue an Administrative Order, pursuant to Section 113 of the Clean Air Act, which requires the UECO to comply with the SO2 emission standard specified by Regulation X. This enforcement action is necessary because the EPA cannot allow an emission source to violate an emission standard in a federally approved SIP unless there is an approved expeditious compliance schedule. "Because of the seriousness and magnitude of this problem, it is imperative for the Missouri Air Conservation Commission (MACC) and the EPA to be on the same wave length. I will be looking forward to hearing from you on any decisions the MACC may make. If we can help, let me know." In September, 1976, after receipt of the Supreme Court decision, but before the motion for rehearing was overruled on October 4, 1976, UE filed a petition with the Missouri Air Conservation Commission for a relaxation of the existing regulations for SO2 or in the alternative for a variance from the existing regulations for the individual UE plants. UE secured expert witnesses and prepared to submit evidence to support the petition. The Missouri Air Conservation Commission in April, 1977, tabled the request of UE to change the SO2 emission limitation (testimony of witness Smith), or voted not to change the SO2 emission limitations for the St. Louis metropolitan area (Plff's Ex. 4), but indicated it would consider the Company's petition for a variance for the Sioux and Labadie plants. A Mr. Sanderson, a representative of the EPA, was present and indicated such would be agreeable. There was a later meeting attended by representatives of the Commission, EPA and UE with respect to the problem, in which it was stated a variance would be granted. Plaintiff's Exhibit 6, a copy of a letter written by Charles V. Wright, Acting Regional Administrator, sent to James P. Odendahl, P.E., Acting Director of the Division of Environmental Quality, dated May 31, 1977, subsequent to the above occurrence states in part: "I am pleased to respond to Mr. Michael T. Marshall's letter of May 28, 1977, regarding the Commission's intent to grant a variance to Union Electric (UE) for the operation of their Portage Des Sioux and Labadie power plants. You requested information on the requirements regarding the approvability of a variance by the Environmental Protection Agency (EPA) as a revision to the State Implementation Plan (SIP)." The letter sets out various information with respect to the applicable statutory and regulatory requirements. In the first paragraph on page 3 of the letter, it is stated as follows: "Since the Commission has now voted not to change the SO2 emission limitations in the St. Louis regulations, I will expect the State to act promptly to bring the UE plants into compliance with the existing limitations or to adopt and justify less stringent limitations in accordance with Federal requirements." UE has complied with the SO2 requirements at the Meramec plant by burning low sulphur coal, but in doing so has reduced the efficiency of existing particulate controls and gone out of compliance with the state and county particulate and visible emission regulations. On November 11, 1977, Kathleen Q. Camin, Regional Administrator of EPA, wrote a letter to James P. Odendahl, Director of the Division of Environmental Quality (Plff's Ex. 4). The letter in part states: "As you know, Union Electric petitioned the Missouri Air Conservation Commission in the fall of 1976 for a relaxation of the existing regulation for SO2 or, in the alternative, for a variance from the existing regulation for the individual Union Electric plants. The Commission voted not to change the SO2 emission limitations for the St. Louis metropolitan area, but indicated they would consider the company's petition for a variance for the Sioux and Labadie plants." *810 "In a letter to you dated May 31, 1977, Mr. Charles V. Wright, Acting Regional Administrator, stated that since the Commission had voted not to change the SO2 emission limitation in the St. Louis regulation, the State was expected to act promptly to either bring the Union Electric plants into compliance with the existing limitation or to adopt and justify less stringent limitations in accordance with Federal requirements. Five months have passed and the State has yet to take any action with regard to the Labadie and Sioux power plants." During all of this period the UE stood ready to present testimony to support its petition for relaxation of existing regulations or for variance, but the Commission has not acted upon the petition. Thereafter, the Missouri Commission set a hearing for February 13, 1978, on said application, and then over the objection of UE reset the hearing for March 6, 1978. On January 13, 1978, after the hearing before the Missouri State Commission had been set, EPA sent notices of violation to UE (Plff's Ex. 1). In the notice, the EPA charged the UE Labadie and Sioux power plants with violation of SO2 and opacity regulations, and also charged the Meramec plant with violation of opacity regulations. 10 CSR 10-5.110(2) and 10 CSR 10-5.090. These regulations are contained in the Missouri Implementation Plan as approved by the EPA. The notice further pointed out certain penalties and injunctions shall be invoked thirty days after notification of violation. Indeed, § 113(b) of the Clean Air Act, as revised by the 1977 amendments, now provides that whenever any person violates a requirement of an applicable implementation plan for more than thirty days after having been notified of the violation, the Administrator shall, in the case of a major stationary source commence a civil action for a permanent or temporary injunction or to assess and recover a civil penalty of $25,000 per day of violation. 42 U.S.C. § 7413(b)(2)(B). Additionally, any person who knowingly violates any requirement of an applicable implementation plan more than thirty days after having been notified of its violation by the Administrator is subject to criminal action involving a penalty of $25,000 per day of violation, or by imprisonment of not more than one year or both. Such a criminal action may be brought against both the company and its "responsible officers." 42 U.S.C. § 7413(c)(3), 42 U.S.C. § 7413(C)(1)(A)(ii). Each of UE's power plants involved herein are major stationary sources as defined in § 302(j) of the Act, 42 U.S.C. § 7602(j). Thus, the plaintiff is presently in an unenviable position in which daily penalties for noncompliance with the state implementation plan are accruing while it seeks variances pursuant to the statutorily authorized procedure contained in V.A.M.S. § 203.110. Additionally, Union Electric's first mortgage and deed of trust (Plff's Ex. 7), under which $1,078,000,500 principal amount of its bonds are outstanding, provide that the failure of Union Electric to comply with any governmental directives could constitute an act of default and make all such bonds callable. A calling of all bonds could force the plaintiff into bankruptcy. Immediate compliance with the applicable regulations is not possible. The testimony before the Court indicated that the only way compliance with the SO2 regulation could be achieved at those plants would be by the installation of flue gas desulphurization (FGD) equipment or by the use of low sulphur coal. The installation of FGD equipment on those plants would require a capital expenditure over the next four to five years of over $713,000,000 and annual operating costs of $137,000,000 as of the assumed 1983 start-up year. Such equipment would not produce any electricity. The construction of such equipment would require at least five years at Union Electric's plants. Additionally, testimony indicated that FGD equipment cannot be relied on, even with the best of maintenance, to operate continually or satisfactorily. As stated by Justice Powell, UE v. EPA, supra, 427 U.S. at 271 n. 2, 96 S.Ct. at 2532, "[T]he burden of these extraordinary capital and operating costs, even if the technological *811 infeasibility problems could be solved, would fall necessarily on the consumers of electric power." The annual cost of low sulphur coal over that now being used at the Labadie and Sioux plants would be almost $179,000,000 plus capital investment of $49,000,000. This would cause a rate increase of approximately twenty-five percent if there were no decrease in the use of electricity. Further, testimony indicated that it is presently impossible to obtain a sufficient supply of low sulphur coal to meet the SO2 emission regulation. Compliance could be achieved only by a shutdown of its plants. The Labadie and Sioux plants alone constitute more than fifty percent of the base generating capacity of the plaintiff. A shutdown of these plants could result in a widespread electrical breakdown throughout the Midwest and would result in drastic financial consequences to the plaintiff. Justice Powell in UE v. EPA, supra at 272, 96 S.Ct. at 2532, said: "[T]he shutdown of an urban area's electrical service could have an even more serious impact on the health of the public than that created by a decline in ambient air quality. The result apparently required by the legislation [Clean Air Act] in its present form could sacrifice the well-being of a large metropolitan area through the imposition of inflexible demands that may be technologically impossible to meet and indeed may no longer even be necessary to the attainment of the goal of clean air. "I believe that Congress, if fully aware of this draconian possibility, would strike a different balance." Further, it is conceivable that a voluntary shutdown by the plaintiff would violate its statutory duty to provide such service facilities as shall be safe and adequate, and in all respects just and reasonable. V.A.M.S. § 393.130.1. The Missouri Public Service Commission has held that a public utility may not abandon service except for sound and equitable reasons after a fair and reasonable trial at operation. 6 Mo.P.S.C. 681. At the outset it is important to note that the general function of a preliminary injunction is to maintain the status quo pending determination of the action on its merits. Blaylock v. Cheker Oil Co., 547 F.2d 962, 965 (6th Cir. 1976). The traditional requirements necessary for the grant of a temporary injunction are: (1) Irreparable harm to the petitioner unless preliminary relief is granted; (2) absence of substantial harm to the opposing party; (3) absence of harm to the public interest; and (4) a likelihood that the petitioner will prevail on the merits of his case. See Doran v. Salem Inn, Inc., 422 U.S. 922, 931, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Mo. Portland Cement Co. v. H. K. Porter Co., 535 F.2d 388, 392 (8th Cir. 1976); Washington v. Walker, 529 F.2d 1062, 1065 (7th Cir. 1976); A. O. Smith Corp. v. FTC, 530 F.2d 515, 525 (3rd Cir. 1976); Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). These requirements have undisputably been met in the present case. Plaintiff has established irreparable harm through the potential calling of its bonds, which could force plaintiff into bankruptcy, and the threatened enforcement of daily accumulating criminal and civil penalties, including an injunction not to violate the regulation which could only be accomplished by closing the plant, under 42 U.S.C. § 7413(b) and (c). Abbott Laboratories v. Gardner, 387 U.S. 136, 152-56, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Hynes v. Grimes Packing Co., 337 U.S. 86, 99-100, 69 S.Ct. 968, 93 L.Ed. 1231 (1949). The injury to the defendant is not substantial, and is certainly outweighed by the injury to the plaintiff. Indeed, as previously referred to, Jerome H. Svore, the Regional Administrator for the EPA, in a letter (Plff's Ex. 3) to the Chairman of the Missouri Air Quality Commission, conceded that the UE's Sioux and Labadie plants do not violate NAAQS for SO2 and that the EPA would be amenable to a revision of state standards by the Missouri Air Conservation Commission. The plaintiff is in violation of the implementation plan only because *812 Missouri standards exceed those necessary for compliance with the National Standards (NAAQS), as the states are free to adopt stricter standards than the national standards under § 116 of the Clean Air Act, 42 U.S.C. § 1857d-1 (1970 Ed. Supp. IV). See also UE v. EPA, supra, 427 U.S. at 261-66, 96 S.Ct. 2518. The public interest is manifestly in favor of continued operation by the plaintiff. UE v. EPA, supra at 272, 96 S.Ct. 2518 (Powell concurring). In American Home Products Corp. v. Finch, 303 F.Supp. 448, 456 (D.Del.1969), it was held that a substantial likelihood of success need not be demonstrated where: "The question is not of court interference with `ordinary processes of administration' pending judicial review, but rather one of insuring the functioning of the `ordinary processes of administration' necessary to protect the procedural rights of the plaintiff and prevent irreparable injury to him. Further, in contrast to a determination of probable success on appeal, this Court does not possess the necessary expertise to determine, in advance of a hearing before the appropriate administrative body, whether the plaintiff will have a `substantial likelihood of success' before that body." In the present case, the petitioner does not request this Court to determine the merits of its request for a variance. Rather, it seeks only a maintenance of the status quo while pursuing administrative and/or judicial procedures, to which it is statutorily authorized under V.A.M.S. § 203.110 et seq. The decision in American Home Products, supra, would thus be applicable, however this Court is not compelled to rely upon it. The magnitude of the injury posed to the public and the petitioner, the absence of any violation of national standards, and the previous grants of variances by the Missouri Air Conservation Commission indicate a substantial likelihood of success here. The Court doubts that the Commission would require the shutdown of a regional power company, with the subsequent devastating effects on this area to achieve air quality standards that have specifically been determined unnecessary by EPA. The plaintiff principally argues that it is entitled to a stay of enforcement proceedings while it is pursuing in good faith state procedures for a change in regulations or a variance as a matter of procedural process, citing Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Therein the Supreme Court held that state statutes establishing maximum rail rates and providing for daily accumulating penalties, including imprisonment for violation thereof, were constitutionally invalid, since the parties had been given no opportunity to contest the validity of the rates, and were effectively denied judicial review of the rates by the magnitude of the penalties. "Now to impose upon a party interested in the burden of obtaining a judicial decision of such a question (no prior hearing having ever been given) only upon the condition that, if unsuccessful, he must suffer imprisonment and pay fines, as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any hearing upon the question whether the rates as provided by the acts are not too low, and therefore invalid. The distinction is obvious between a case where the validity of the act depends upon the existence of a fact which can be determined only after investigation of a very complicated and technical character, and the ordinary case of a statute upon a subject requiring no such investigation, and over which the jurisdiction of the legislature is complete in any event." Ex Parte Young, supra at 148, 28 S.Ct. at 449. Accord. Wadley Southern Ry. v. Georgia, 235 U.S. 651, 669, 35 S.Ct. 214, 59 L.Ed. 405 (1915). In St. Regis Paper Co. v. United States, 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961), the Supreme Court held that daily accumulating penalties for failure to file special reports in compliance with FTC orders were not invalid where "petitioner did not try to obtain judicial review prior to the commencement" of the government's enforcement action, and where the petitioner *813 did not "seek a stay once the litigation had begun." St. Regis Paper Co. v. United States, supra, at 225, 82 S.Ct. at 299. See also United States v. Morton Salt Co., 338 U.S. 632, 654, 70 S.Ct. 357, 94 L.Ed. 401 (1950); United States v. Pacific Coast European Conference, 451 F.2d 712 (9th Cir. 1971); Genuine Parts Co. v. F. T. C., 445 F.2d 1382 (5th Cir. 1971). This line of cases holds that a party whose conduct is made subject to administrative action must be given an opportunity to obtain a judicial test of the validity of such action and, as a matter of due process of law, cannot be subjected to the risk that substantial penalties will accumulate during the course of the judicial proceeding. The plaintiff is presently pursuing the only method by which it can achieve compliance with state standards without violating its statutory duty to provide service. V.A.M.S. § 393.130.1. Persons seeking to relax state emission standards more stringent than those required by the National Standards must obtain their relief from the state. UE v. EPA, supra, at 263 n. 10, 265 n. 14, 96 S.Ct. 2518. Due process requires a full and fair hearing before an impartial tribunal "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). See also Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). A hearing which comports with due process requirements must ordinarily be accorded before a party "can be condemned to suffer a grievous loss." Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter concurring). The Court concedes that there is little precedent in the environmental area for its decision herein due to the relative newness of the Clean Air Act. However, the enforcement of certain orders by the Food and Drug Administration have been temporarily stayed, upon considerations of procedural due process, until a hearing before that agency on the merits of the case, where the petitioner presented reasonable grounds for objecting to the order and also established the traditional requirements for a temporary injunction. American Home Products Corp. v. Finch, 303 F.Supp. 448 (D.Del.1969). See also Upjohn Co. v. Finch, 303 F.Supp. 241 (W.D.Mich.1969). This Court concludes that as a matter of procedural due process, as guaranteed by the 5th Amendment, the plaintiff is entitled to seek a variance under state proceedings prior to the institution of enforcement proceedings. The Clean Air Act, 42 U.S.C. § 7401 et seq. (1977 amendments) has delegated a considerable amount of responsibility to the states for achieving its purposes and goals. See Luneburg, Federal-State Interaction Under the Clean Air Amendments of 1970, 14 B.C.Ind. & Com.L.Rev. (1973). The 1970 amendments reflect congressional dissatisfaction with the progress of existing air pollution programs and a determination to "take a stick to the States." Train v. Natural Resources Defense Council, 421 U.S. 60, 64, 95 S.Ct. 1470, 1474, 43 L.Ed.2d 731 (1975). The states are required to formulate, subject to EPA approval, an implementation plan designed to achieve national ambient air quality standards. 42 U.S.C. § 7410(a)(1). The states are further permitted to go beyond national standards by enacting more strict state standards. UE v. EPA, supra at 261-65, 96 S.Ct. 2518. The states may also enact a procedure to revise its plan. 42 U.S.C. §§ 7410(a)(3)(A), 7410(a)(5)(A)(iii). A variance approved as a revision of a plan under § 110(a)(3)(A) of the Act, 42 U.S.C. § 7410(a)(3)(A) must be honored by the EPA as part of the applicable implementation plan. UE v. EPA, supra at 266 n. 15, 96 S.Ct. 2518. It would be incongruous to permit the EPA to pursue enforcement while a variance is being sought as to a state standard, especially in light of the magnitudinous irreparable harm posed to the plaintiff as heretofore discussed. Assuming that a variance is granted, the EPA will find itself enforcing or having enforced a regulation that is no longer in effect. Indeed, it has been interpreted that an application for a variance under the provisions *814 of V.A.M.S. § 203.110 stays enforcement of the regulation at issue as to the person filing the petition. Op. (Mo.) Atty. Gen.No. 281, Shell, 4-14-70. It should also be noted that the members of the Missouri Air Conservation Commission are statutorily required to be "persons experienced in the field of air pollution," and hence the commission may constitute a more knowledgeable forum than any court of law. V.A.M.S. § 203.040.1. The cases cited by the defendant are in-apposite. The EPA relies upon Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885 (8th Cir. 1977). Therein, the plaintiff sought pre-enforcement review of the EPA's Notice of Violation and Compliance Order, challenging their validity and merits. Here, no compliance order has been issued and plaintiff seeks only a stay of enforcement proceedings until it has exhausted its request for a variance, which can only be obtained under state law. UE v. EPA, supra. This same consideration is applicable to West Penn Power Co. v. Train, 522 F.2d 302 (3rd Cir. 1975). The Court in Fry was particularly concerned that "[p]re-enforcement review would severely limit the effectiveness of the conference procedure as a means to abate violations of the Act without resort to judicial process." Lloyd A. Fry Roofing Co. v. EPA, supra at 891. The 1977 amendments to the Clean Air Act effectively dispose of the consideration by requiring the commencement of a civil action against any operator of a major stationary source for violations occurring thirty days after notification by the Administrator. 42 U.S.C. § 7413(b)(2)(B). The Court of Appeals also stated, l.c. 891: "[W]e are persuaded by the legislative history of the Clean Air Act amendments of 1970 to hold that plaintiff lacks authority to initiate and maintain litigation to challenge the EPA's order issued on March 9, 1976, and that plaintiff must assert its claims as a defense or counterclaim in any action brought by the Administrator of EPA under section 113 of the Clean Air Act. 42 U.S.C. § 1857c-8." However, the Supreme Court in UE v. EPA, supra at 266-7, 96 S.Ct. 2518, clearly established that claims of economic and technological infeasibility may be raised in state proceedings. The defendant also places considerable reliance upon a statement contained in Train v. NRDC, 421 U.S. 60, 92, 95 S.Ct. 1470, 1488, 43 L.Ed.2d 731 (1975). Therein, the Court stated: "As made clear in the Getty case [Getty Oil Co. v. Ruckelshaus, 342 F.Supp. 1006 (D.Del.), remanded with directions, 467 F.2d 349 (3rd Cir. 1972)] * * * a polluter is subject to existing requirements until such time as he obtains a variance, and variances are not available under the revision authority until they have been approved by both the State and the Agency. Should either entity determine that granting the variance would prevent attainment or maintenance of national air standards, the polluter is presumably within his rights in seeking judicial review. This litigation, however, is carried out on the polluter's time, not the public's, for during its pendency the original regulations remain in effect, and the polluter's failure to comply may subject him to a variety of enforcement procedures." Initially, it should be noted that the Getty case has overruled in UE v. EPA, supra at 254, 96 S.Ct. 2518. Secondly, this Court deems it unlikely that the statement made above was intended to preclude the exercise of this Court's equitable powers in the face of extraordinary irreparable harm, without an express intent to that effect. Third, the plaintiff herein seeks only a stay of enforcement proceedings by the EPA until pending state processes are exhausted. In conclusion this Court holds: (1) That considerations of procedural due process require that the plaintiff be permitted to seek a variance under state procedures prior to suffering a grievous loss which may result from an enforcement proceeding by the EPA; *815 (2) That this Court under its general equitable powers has the authority to stay an enforcement proceeding to prevent irreparable harm while the plaintiff seeks in good faith a variance under State procedures; and (3) That the only fair interpretation of the Clean Air Act, where an enforcement proceeding may be instituted while the polluter is seeking a variance of the state implementation plan, is to allow the variance proceeding to go first with any enforcement action to follow. Accordingly, pending final determination of this litigation, but in no event beyond the final determination of the plaintiff's pending request for a revision variance of the applicable Missouri Implementation Plan, the defendant, Environmental Protection Agency, and its officers and employees, are hereby enjoined from instituting any enforcement proceedings against the plaintiff, Union Electric, and/or its responsible officers while Union Electric is actively and in good faith pursuing a revision or variance of the sulphur dioxide regulations of the Missouri Implementation Plan in the administrative agencies and/or courts of the State of Missouri pursuant to V.A.M.S. §§ 203.110 and 203.130. This preliminary injunction is granted on the condition that plaintiff post within three (3) days a bond in the amount of $500,000.00 for the payment of such costs and damages as may be incurred or suffered by the defendant if it is found to have been wrongfully enjoined or restrained.