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388 S.C. 375 (2010) 697 S.E.2d 541 In the Matter of James Cullen GALMORE, Respondent. No. 26838. Supreme Court of South Carolina. Submitted June 8, 2010. Decided July 26, 2010. *376 Lesley M. Coggiola, Disciplinary Counsel, and Sabrina C. Todd, Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel. James Cullen Galmore, of Conway, pro se. PER CURIAM: The Office of Disciplinary Counsel (ODC) and respondent have entered into an Agreement for Discipline by Consent pursuant to Rule 21, RLDE, Rule 413, SCACR, in which respondent admits misconduct and consents to the imposition of an admonition or a public reprimand. We accept the agreement and issue a public reprimand. The facts, as set forth in the agreement, are as follows. FACTS Matter I Respondent, a public defender, was representing Client A on criminal charges when the client was served with two murder warrants. Respondent received discovery materials in late August 2007. Although the materials were voluminous, respondent failed to timely review the discovery materials and, as a result, failed to realize another of his current clients was a potential witness against Client A. Respondent first recognized the conflict in early December 2007 when he received a letter from Client A and a copy of the complaint from ODC. In his December 14, 2007, response to ODC respondent advised he would move to be relieved from representing Client A. In mid-January 2008, ODC wrote respondent and requested additional information and an update on the status of the representation. Respondent replied in writing, but did not provide the requested status update. During a follow-up telephone call initiated by ODC on February 6, 2008, respondent advised that he had forgotten to move to be relieved as counsel as well as to respond to the *377 status update inquiry. A conflict order was issued on February 20, 2008, but respondent did not advise ODC of the order as requested and promised. By letter dated March 3, 2008, ODC again inquired about the status of the representation, prompting respondent to advise ODC on March 6, 2008, by telephone, that the court had relieved him and appointed new counsel for Client A. Matter II During the investigation of a complaint made by Client B, respondent responded to ODC's request for additional information only after receiving a reminder letter. Respondent acknowledges his untimely response violated the Rules of Professional Conduct. Matter III Respondent was appointed to represent Client C on several counts of burglary as well as allegations that he spit on two detention center officers. During a meeting more than a year after his appointment, Client C failed to adequately answer respondent's questions, causing respondent to believe that Client C needed a mental evaluation. About three months later, respondent met with Client C again and delved into the question of Client C's mental health. Client C provided specific information which led respondent to conclude a competency evaluation was necessary. A few weeks later, respondent forwarded a proposed evaluation order to the solicitor. Respondent did not follow up on the issue for nearly four months; when he did, he learned the proposed order was lost. Respondent forwarded another proposed order to the solicitor, but then, two weeks later, represented Client C at a guilty plea without the benefit of an evaluation. Respondent submits that, although he had concerns about Client C's mental health, he is certain Client C would have been found competent to stand trial. During the course of ODC's investigation, respondent replied to a request for additional information only after receiving a reminder letter. Respondent acknowledges his untimely response violated the Rules of Professional Conduct. *378 Matter IV Respondent was appointed to represent Client D on four counts of armed robbery. During a meeting at the jail, Client D asked respondent to pursue a bond reduction. Respondent sought the hearing as requested, but did not inform his client of his efforts and did not respond to his client's letter asking about a bond reduction hearing. Approximately four months later, Client D telephoned respondent and inquired about a bond reduction hearing. At that time, respondent advised him that there were no grounds to seek a reduction of his bond. During the course of its investigation, ODC requested respondent provide additional information. Respondent responded to this request only after receiving a reminder letter from ODC. Respondent acknowledges his untimely response violated the Rules of Professional Conduct. Matter V Respondent represented Client E on one count of murder. Client E was denied a bond. During the next six months period, Client E was transferred to a neighboring jail at his own request and he sent respondent three letters which went unanswered. Respondent's only communication with Client E after the bond hearing was when he sent an investigator to instruct Client E to stop contacting the media. Respondent was relieved on his own motion. Respondent acknowledges his past office management practices contributed to the allegations admitted in the Agreement for Discipline by Consent. He asserts he has worked hard to improve the timeliness of his responses to ODC; ODC acknowledges that, during the course of its investigation, respondent's responses became timelier. Respondent also submits his office has adopted practices, procedures, and systems which he believes have improved his responsiveness to clients and his ability to manage his caseload. LAW Respondent admits that, by his misconduct, he has violated the following provisions of the Rules of Professional Conduct, *379 Rule 407, SCACR: Rule 1.1 (lawyer shall provide competent representation to client); Rule 1.3 (lawyer shall act with reasonable diligence and promptness in representing client); Rule 1.4(a)(3) (lawyer shall keep client reasonably informed about status of matter); Rule 1.4(a)(4) (lawyer shall promptly comply with reasonable requests for information); and Rule 8.1(b) (lawyer shall not knowingly fail to respond to lawful demand from disciplinary authority). Respondent acknowledges that his misconduct constitutes grounds for discipline under the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR, specifically Rule 7(a)(1) (it shall be ground for discipline for a lawyer to violate the Rules of Professional Conduct) and Rule 7(a)(3) (it shall be ground for discipline for lawyer to willfully fail to respond to lawful demand from disciplinary authority). CONCLUSION We find that respondent's misconduct warrants a public reprimand. Accordingly, we accept the Agreement for Discipline by Consent and publicly reprimand respondent for his misconduct. Within thirty (30) days of the date of this opinion, respondent shall pay the costs incurred in the investigation and prosecution of this matter by ODC and the Commission on Lawyer Conduct. PUBLIC REPRIMAND.

711 F.2d 907 David J. DREHER, Petitioner,v.UNITED STATES POSTAL SERVICE and Merit Systems ProtectionBoard, Respondents. No. 82-7436. United States Court of Appeals,Ninth Circuit. Submitted June 8, 1983.Decided July 28, 1983. David Joseph Dreher, pro se. John F. Oldfield, San Francisco, Cal., Evangeline Swift, William Kanter, Nancy Lund, Washington, D.C., Peter K. Nunez, Lynee R. Lasry, Asst. U.S. Attys., San Diego, Cal., for respondents. Petition to Review an Order of the Merit Systems Protection Board. Before BROWNING, CHOY and FERGUSON, Circuit Judges. PER CURIAM: FACTS: 1 David Dreher is a preference-eligible veteran, working as a Post Office distribution clerk. In 1981 his shift was changed from Tour I (3:30 p.m. to 12 midnight) to Tour III (10 p.m. to 6:30 a.m.). To avoid having him work a fifteen-hour shift during the transition, his supervisors ordered him to take a day off, but required that he either charge the day to his annual leave or take it as leave without pay. Dreher protested the shift assignment and reluctantly took annual leave for the day. 2 He appealed the action to the Merit Systems Protection Board, which asked him to establish Board jurisdiction. Dreher claimed the reassignment was a prohibited personnel practice under 5 U.S.C. § 2302 because ordered in retaliation for his having filed an EEO complaint against local postal officials. Additionally, he claimed that the forced leave amounted to a one-day furlough. 3 The Board issued a decision on June 8, 1981, finding that: (1) "reassignments without a change in grade, pay or competitive level are not adverse actions appealable to the Board"; (2) an allegation of prohibited personnel practice may be an affirmative defense to enforcement of a management order, but does not give the Board jurisdiction; and (3) Dreher was not furloughed because he was paid, and because his decision to take annual leave was voluntary. It then dismissed for lack of jurisdiction. Dreher petitions for review. 4 We uphold the Board's order and deny the petition. ANALYSIS: A. Standard of Review 5 Dreher's petition is for review of a Board decision declining jurisdiction, and not of the merits of his underlying complaint against the Postal Service for reassigning him. We may set aside such a decision if it is "not in accordance with law." 5 U.S.C. § 7703(c).1 B. Board Jurisdiction 6 An "employee" may appeal to the Board from "any action which is appealable to the Board under any law, rule, or regulation." 5 U.S.C. § 7701(a). Dreher is a "preference eligible veteran in the United States Postal Service," who has worked there for more than a year, and thus is such an employee. 5 U.S.C. § 7511(a)(1)(B). Although the Postal Service is not subject to all chapters of Title 5, it is subject to chapter 75. See 39 U.S.C. § 1005(a)(1). However, the subchapter that defines Dreher as an employee in § 7511 and grants him certain protections in § 7513 specifically states in § 7512: 7 This subchapter applies to-- 8 (1) a removal; 9 (2) a suspension for more than 14 days; 10 (3) a reduction in grade; 11 (4) a reduction in pay; and 12 (5) a furlough of 30 days or less. 13 5 U.S.C. § 7512. These are generally referred to as "adverse actions," reviewable by the Board. 14 The Board determined that Dreher's reassignment and leave did not fall within this list and that the actions were therefore not appealable to the Board. In his petition, Dreher makes three separate arguments: (1) the list is not exclusive; (2) the reassignment is appealable under a different subchapter; and (3) the reassignment and leave amount to a reduction in pay or furlough. 15 1. Adverse Actions. 16 Although the statute does not expressly state that the § 7512 list is exhaustive, similar language has been consistently construed to preclude relief for actions not so specified. In Spinks v. U.S. Postal Service, 621 F.2d 987 (9th Cir.1980), we held that a shift transfer resulting in a decrease in the employee's night pay premium was not an adverse action under the Postal Service Regulations in force at the time. Spinks specifically noted that "the Postal Service Manual definition of 'adverse action' is very similar to that contained in the Civil Service Act, 5 U.S.C. § 7512." Id. at 989. In Fucik v. United States, 655 F.2d 1089 (Ct.Cl.1981), the court construed similar Civil Service regulations. " 'Adverse action' does not mean any action which an employee does not like. Rather, it is a technical term that includes only a small number of actions: termination, reduction in rank or pay, suspension, and furlough without pay." Id. at 1096. Accord Williams v. Dep't of the Army, 651 F.2d 243, 244 (4th Cir.1981). 17 Section 7512 appears to us to represent a legislative determination that certain actions are serious enough to require procedural safeguards, but that applying those safeguards to every personnel decision would unduly hamper agency administration. Cf. Spinks, 621 F.2d at 988 (acknowledging government's argument that "efficiency would be seriously impaired if management did not have discretion to reassign supervisors among various work locations and shifts"). We see no reason to interpret "adverse action" more broadly than § 7512 already does. 18 2. Retaliatory Action. 19 The Civil Service Reform Act of 1978 added general protections for federal employees who were subjected to agency retaliation for "whistleblowing." See 5 U.S.C. §§ 2301-2305. Dreher claims that he was reassigned because he filed a handicap discrimination complaint against local Postal Service officials. However, the Board found that the whistleblower provisions do not make appealable an action that is otherwise not appealable, but rather give the employee an additional defense to an adverse action. This finding is wholly consistent with the statute's language and history, see 1978 U.S.Code Cong. & Adm.News pp. 2723, 2740, and with the available appellate authority, Martin v. Lauer, 686 F.2d 24, 29 n. 19 (D.C.Cir.1982). See also Fucik, 655 F.2d at 1096 ("[T]he motive of an agency in carrying out its actions is normally not relevant to whether an adverse action has occurred."). 3. Reduction in Pay or Furlough 20 Dreher also argues that he has been subject to an adverse action within the meaning of § 7512, characterizing the interaction between the reassignment and leave as, alternatively, a reduction in pay or a furlough. Conceding that Spinks forecloses the argument that all reductions in compensation received are reductions in pay, Dreher argues that his forced leave resulted in a reduction in "basic pay," not in premiums, bonuses or overtime pay. He has, however, made no claim that his pay rate has been changed, that his compensation for the week in question was decreased, or in fact, that his compensation for any period was altered in any way. Because Dreher took annual leave for the transition day, his pay was unaffected. And, although he argues that his annual leave is a vested property right, the record is devoid of any regulation, rule, provision of the collective bargaining agreement, or custom that provides a right to be paid for any annual leave accrued but not used. We are therefore unpersuaded that Dreher has suffered a "reduction in pay" within the meaning of § 7512(4). 21 The Board determined that the leave was not a furlough, because that term is defined as a "temporary status without duties or pay." 5 U.S.C. § 7511(a)(5). Dreher was in fact paid, and thus the leave did not amount to a furlough by definition. Since the Board correctly determined it had no section 7512 jurisdiction on this basis alone, we need not decide whether the Board correctly characterized Dreher's leave as "voluntary." CONCLUSION: 22 Dreher's reassignment and leave is not an adverse action reviewable by the Board. Its decision dismissing for lack of jurisdiction must therefore be upheld.2 1 Section 7703, which governs judicial review of MSPB decisions, has recently been amended to provide that in most cases petitions for review must be filed with the United States Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703(a). The amendment does not affect Dreher's action 2 Such a decision is, of course, not a determination of the merits of Dreher's underlying complaint against the Postal Service and does not prejudice his ability to pursue whatever other remedies may be available to him. Williams v. Dep't of the Army, 651 F.2d 243, 245 (4th Cir.1981)

02-10-355-CV       COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH   NO. 02-10-00355-CV     In re Heritage Operating, L.P. d/b/a Metro LIft Propane of Dallas   RELATOR     ------------   ORIGINAL PROCEEDING ------------ MEMORANDUM OPINION[1]                                                        ------------ The court has considered relator’s petition for writ of mandamus and emergency motion for temporary relief and is of the opinion that relief should be denied.  Accordingly, relator’s petition for writ of mandamus and emergency motion for temporary relief are denied. Relator shall pay all costs of this original proceeding, for which let execution issue.   PER CURIAM   PANEL:  DAUPHINOT, WALKER, and GABRIEL, JJ.   DELIVERED:  October 15, 2010355-C     [1]See Tex. R. App. P. 47.4, 52.8(d).

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4135 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. AMADOU BALDE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:13-cr-00075-BR-2) Submitted: April 30, 2015 Decided: June 18, 2015 Before KEENAN, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Amadou Balde appeals from his convictions and 70-month sentence imposed pursuant to a jury verdict finding him guilty of conspiracy to use counterfeit access devices, as well as substantive counts of use of a counterfeit access device, possession of counterfeit access devices, and possession of access device making equipment. On appeal, Balde’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues for appeal but raising six issues for this court’s consideration. Balde has filed a pro se supplemental brief, addressing some of the same issues and raising two additional claims. After a thorough review of the record, we affirm. I. Balde contends that the district court’s admission of prior bad acts dating as far back as 2004 was so prejudicial as to deprive him of a fair trial. Balde’s co-conspirator, Shiek Fofanah, testified against him at trial. During cross- examination, counsel asked Fofanah about his knowledge and expertise with similar crimes prior to meeting Balde. On redirect, the Government asked, without objection, about Balde’s prior knowledge. Balde contends that the admission of this evidence of his conduct as far back as 2004 amounted to evidence 2 of “bad character” and was so prejudicial as to deprive him of a fair trial. We normally review the district court’s evidentiary rulings for abuse of discretion. United States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996). However, by failing to object to the admission of the evidence during trial, Balde has failed to preserve his objection. Fed. R. Evid. 103(a)(1); United States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996). The admission of the evidence is therefore reviewed for plain error. Chin, 83 F.3d at 87. The challenged testimony is vague and, at most, infers that Balde purchased cigarettes with re-encoded cards a couple of months prior to the instant crimes and that he committed similar crimes as far back as 2004. This evidence is part of the foundation for the current conspiracy charges, as it explains why Fofanah and Balde would partner with each other. See United States v. Siegel, 536 F.3d 306, 316 (4th Cir. 2008) (permitting prior bad act evidence that provided context). Similarly, the challenged evidence that Balde was engaged in the same activities as far back as 2004 and utilized the same manner and method to re-encode cards was admissible to “complete the story of the crime on trial,” see id., especially given that Balde’s strategy was to portray himself as an innocent bystander. Thus, Rule 404(b) did not mandate exclusion of the challenged testimony. 3  Balde also contends that, even if the evidence was admissible under Rule 404(b), it should have been excluded under Rule 403, because the probative value of the evidence did not outweigh its prejudicial effect. He asserts that the admission of evidence of his misconduct years before the charged conspiracy tainted his right to a fair trial. Evidence should be excluded under Rule 403 only in rare cases because the policy of the Federal Rules is that all relevant evidence should be admitted. See United States v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007). The fact that the challenged evidence will damage the defendant’s case is insufficient to render it inadmissible; rather, to be excluded under Rule 403, the evidence must cause “‘unfair’ prejudice,” and the “unfair prejudice must ‘substantially’ outweigh the probative value of the evidence.” United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998) (quoting Fed. R. Evid. 403). Here, the challenged evidence was relevant to the history of the formation of the conspiracy, as well as Balde’s motive, intent and knowledge. We conclude that the evidence, while harmful to Balde’s defense, was not unfairly prejudicial. Accordingly, the district court did not err, plainly or otherwise, in admitting it. II. 4  Balde also asserts that the district court erred in denying his Fed. R. Crim. P. 29 motion for judgment of acquittal because the Government’s evidence was insufficient to establish that he was involved with or knew about the counterfeit access devices. We review the denial of a Rule 29 motion de novo. See United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). When a Rule 29 motion is based on a claim of insufficient evidence, the jury’s verdict must be sustained “if there is substantial evidence, taking the view most favorable to the Government, to support it.” United States v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008) (internal quotation marks, brackets and citations omitted). We may not weigh the evidence or review the credibility of the witnesses. See United States v. Allen, 491 F.3d 178, 185 (4th Cir. 2007). A defendant challenging the sufficiency of the evidence faces a heavy burden. See United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). Here, neither Balde nor counsel focus on specific elements of the convictions. Instead, they argue that the Government’s case rested on Fofanah’s testimony and that this testimony was neither credible nor consistent. Nonetheless, the jury’s decision to credit Fofanah’s testimony that he and Balde were involved in a scheme to use re-encoded cards to defraud various banks and retailers was a credibility determination that should not be disturbed on appeal. See United States v. Moye, 454 F.3d 5 390, 396 (4th Cir. 2006) (“[I]t was for the jury, not this court, to decide which version of the events-the government’s or Moye’s-was more credible.”); see also United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (recognizing that witness credibility is within the sole province of the jury and the court will not reassess the credibility of testimony). Moreover, Fofanah’s testimony was corroborated by the evidence that Balde avoided the police in order to dispose of counterfeit gift cards, and that Balde was in possession of items purchased with fraudulent gift cards. Because the evidence presented was sufficient for a reasonable jury to conclude that Balde was guilty of both the conspiracy and substantive charges, we will not disturb the jury’s verdict. III. Balde next challenges the district court’s denial of his motion to substitute counsel and his motion for a new trial based upon ineffective assistance of counsel. We review a district court’s ruling on a motion to substitute counsel for abuse of discretion. United States v. Horton, 693 F.3d 463, 466 (4th Cir. 2012). We consider three factors: the “[t]imeliness of the motion; [the] adequacy of the court’s inquiry into the defendant’s complaint; and whether the attorney/client conflict was so great that it had resulted in total lack of communication 6 preventing an adequate defense.” United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988). The district court conducted a thorough inquiry into the conflict between Balde and his counsel. Balde appeared unaware that his counsel had filed many of the motions that he was requesting and was making progress on his other requests. In fact, aside from his complaints that proved unfounded, Balde stated that he was satisfied with counsel’s performance. While Balde was dissatisfied with counsel’s communication with him, we conclude that the disagreement was not sufficient to demonstrate that Balde would not be provided an adequate defense. Therefore, the district court did not abuse its discretion in denying Balde’s motion to substitute counsel. Regarding Balde’s request for a new trial based on his allegations that counsel had prevented him from testifying on his own behalf, Balde withdrew this motion. The court had appointed him independent counsel who discussed Balde’s potential testimony with him and advised him regarding his trial counsel’s strategy. Thus, the record supports the conclusion that Balde’s withdrawal of his motion was knowingly made after consulting with independent legal counsel. Accordingly, contrary to Balde’s assertions, the district court did not deny this motion. Further, the district court did not abuse its 7 discretion in conducting the hearing and accepting the withdrawal of the motion. IV. Balde further contends that the district court erroneously calculated the loss amount for sentencing purposes because he was held responsible for cards and account numbers that were not connected to him and could not have been utilized and because the district court erroneously relied upon the credit limit of the cards and the potential loss, rather than the actual loss. In assessing a challenge to the district court’s application of the Sentencing Guidelines, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010). The amount of loss can be supported by a preponderance of the evidence. United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003). Further, “[t]he court need only make a reasonable estimate of the loss,” and its loss determination “is entitled to appropriate deference,” given its unparalleled access to the pertinent facts. U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(C) (2013). Here, Balde contends that he should not have been held responsible for the cards possessed by Fofanah. Further, he claims that he was not responsible for the account numbers on 8 the computer seized from his hotel room, because such numbers may have been sold to multiple people. Pursuant to USSG § 1B1.3(a)(1)(B), in the case of jointly undertaken criminal activity, a defendant is responsible for “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” Accordingly, as a participant in the jointly undertaken criminal scheme, Balde is liable for the loss or potential loss due to Fofanah’s cards, as well as the potential loss based on the numbers found on the computer. Balde also contends that the district court improperly imputed to him the full credit limit of each card, rather than conducting an individualized investigation into the intended loss. The district court, however, did not calculate the credit limit of each card; instead, the court added together the realized losses and $500 for each account number or card. In counterfeit access device cases, “loss includes any unauthorized charges made with the counterfeit access device or unauthorized access device and shall be not less than $500 per access device.” USSG § 2B1.1 cmt. n.3(F)(i). Thus, the court properly included at least $500 for every number recovered and related to 9 the conspiracy. Based on the foregoing, we find that the district court’s loss calculations were without error. V. Next, Balde maintains that the court erred when it applied an enhancement under USSG § 2B1.1(b)(10)(C), which provides for a two-level increase if (1) the defendant relocated a fraudulent scheme to another jurisdiction to evade law enforcement, (2) if a substantial part of the scheme was committed from outside the United States, or (3) if the offense involved sophisticated means. The district court found that all three prongs were satisfied by Balde’s scheme. On appeal, Balde argues that the evidence supporting the first two prongs was not presented at trial or sentencing, and it was improper to rely only on the presentence report (“PSR”). As for the third prong, Balde conclusorily states that the scheme was not sophisticated. “Whether a defendant’s conduct involved sophisticated means is an essentially factual inquiry, thus we review for clear error.” United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014). The sophisticated means enhancement applies when a defendant employs “especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.” USSG § 2B1.1 cmt. n.9(B). While the scheme must involve “more than the concealment or complexities inherent in 10 fraud,” Adepoju, 756 F.3d at 257, courts can find that a defendant used sophisticated means even where he did “not utilize the most complex means possible.” United States v. Jinwright, 683 F.3d 471, 486 (4th Cir. 2012). Moreover, there is no requirement that a defendant’s individual actions be sophisticated; what matters is the sophistication of the scheme as a whole. Adepoju, 756 F.3d at 257; see Jinwright, 683 F.3d at 486 (“A sentencing court should consider the cumulative impact of the criminal conduct, for the total scheme may be sophisticated in the way all the steps were linked together.” (internal quotation marks omitted)). We conclude that Balde’s scheme was complex enough to support the sophisticated means enhancement. Balde and Fofanah not only obtained hundreds of stolen or fraudulent gift and credit card numbers, but also used many of them by transferring the numbers to stolen cards by use of access device making equipment. The card numbers were obtained by email from an individual in Indiana, who received them from overseas. Balde and Fofanah disguised their fraudulent purchases by encoding cards with the stolen credit card numbers, making their purchases appear as legitimate, credible transactions. The merchandise purchased with the re-encoded cards was first kept in a storage unit and then sent to New York for sale. These 11 actions both facilitated the scheme and concealed it, making it more complex than a typical credit card fraud scheme. Given that the evidence clearly supported the “sophisticated means” prong of USSG § 2B1.1(b)(10)(C), the Guideline was appropriately applied. As only one prong is necessary for the enhancement, we decline to address the district court’s findings regarding the remaining two prongs. VI. Balde also avers that his sentence was improperly enhanced under USSG § 2B1.1(b)(11), which provides for a two-level increase when the offense involved the possession of device- making equipment or the production of counterfeit access devices. Balde contends that this enhancement constituted improper double counting because his crimes, through their very nature, involved possessing device-making equipment. Balde also asserts that the device-making equipment belonged to Fofanah. “Double counting occurs when a provision of the Guidelines is applied to increase punishment on the basis of a consideration that has been accounted for by application of another Guideline provision or by application of a statute.” United States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004). “[T]here is a presumption that double counting is proper 12 where not expressly prohibited by the guidelines.” United States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010). Application Note 10 to USSG § 2B1.1, which addresses subsection (b)(11), contains no language prohibiting double counting. Moreover, because Balde’s conviction counts were grouped under USSG § 3D1.2(d), the Guidelines provide that “the offense guideline applicable to the aggregate behavior is used”; thus, the court “[d]etermine[s] whether . . . specific offense characteristics or adjustments . . . apply based on the combined offense behavior taken as a whole.” USSG § 3D1.3 cmt. n.3. Here, Balde both possessed device-making equipment and produced unauthorized access devices and, thus, clearly qualified for the enhancement. * Given the lack of any prohibition in the Guidelines, we conclude that double counting in this situation was not error. VII. Balde also contends that the district court should not have imposed a two-level enhancement under USSG § 2B1.1(b)(2)(A)(1), for a crime involving ten victims. Specifically, Balde avers that the PSR only lists eight victims that suffered actual loss. * Even if Fofanah possessed the equipment, such possession was foreseeable, and thus attributable to Balde. 13 However, the PSR clearly lists ten victims. As Balde did not object to this number in the district court, and the record provides no reason to question the accuracy of the PSR, we conclude that the district court did not err in applying the enhancement. VIII. Finally, Balde objects to the overall reasonableness of his sentence. We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007). We first review for significant procedural error, and if the sentence is free from such error, we then consider substantive reasonableness. Id. at 51. Procedural error includes failing to consider the 18 U.S.C. § 3553(a) (2012) factors and failing to adequately explain the selected sentence. Gall, 552 U.S. at 51. To adequately explain the sentence, the district court must make an “individualized assessment” by applying the relevant § 3553(a) factors to the case’s specific circumstances. United States v. Carter, 564 F.2d 325, 328 (4th Cir. 2009). The individualized assessment need not be elaborate or lengthy, but it must be adequate to allow meaningful appellate review. Id. at 330. Substantive reasonableness is determined by considering the totality of the circumstances, and if the sentence is within the properly- 14 calculated Guidelines range, we apply a presumption of reasonableness. United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012). Balde does not provide specifics as to why his sentence is unreasonable. In imposing Balde’s sentence, the district court did not provide a long explanation of the chosen sentence, but nonetheless it was clear that the court listened to and considered Balde’s request for leniency. The court rejected Balde’s continuing protestations of innocence and imposed a presumptively reasonable sentence at the low end of the Guidelines range. We conclude that Balde’s sentence was procedurally and substantively reasonable. IX. In accordance with Anders, we have thoroughly reviewed the record and find no other meritorious issues for appeal. Accordingly, we affirm the district court’s judgment. This court requires that counsel inform her client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on the client. We dispense with oral 15 argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 16 

886 F.2d 644 15 Fed.R.Serv.3d 272 Paul BECHTEL; Wanda Elaine Greene, Co-Executors of Estateof Edward G. Greene, Deceased, Appellants,v.Janus R. ROBINSON, d/b/a Kirby & Holloway Family RestaurantJames Gray, d/b/a Kirby & Holloway Family Restaurant. No. 89-3120. United States Court of Appeals,Third Circuit. Argued July 11, 1989.Decided Oct. 3, 1989. Bayard J. Snyder (argued), Phillips & Snyder, P.A., Wilmington, Del., for appellants. Craig A. Karsnitz (argued), Young, Conaway, Stargatt and Taylor, Georgetown, Del., for Robinson, Gray, d/b/a Kirby & Holloway Family Restaurant. Before HIGGINBOTHAM, BECKER and NYGAARD, Circuit Judges. OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. 1 This is an appeal in a diversity action from an order of the district court granting defendant's motion for summary judgment and denying plaintiffs' motion to file a second amended complaint. Because we find that the district court erred in not applying equitable estoppel against the statute of limitations defense, we will reverse the court's grant of summary judgment to the defendant. We will also reverse the court's denial of leave for plaintiffs to amend their complaint, and will remand this case for further proceedings consistent with this opinion. I. 2 The following facts are based on the district court's findings and are undisputed. On March 9, 1986, Edward G. Greene ("Greene"), while dining at the Kirby & Holloway Family Restaurant (the "Restaurant") in Dover, Delaware, sustained back injuries when the chair he was sitting in collapsed. At the time of the incident, James E. Gray ("Gray") was working in the Restaurant, and recalled helping Greene after his fall. On October 15, 1986, Michael P. Creedon ("Creedon"), an attorney in Philadelphia, Pennsylvania, who was retained by Greene, wrote the Restaurant requesting that its insurance carrier contact him about Greene's accident. Creedon's letter did not mention the commencement of any lawsuit, and although there is no direct evidence that anyone at the Restaurant received the letter, it was never returned by the post office. On November 19, 1986, Greene died of causes unrelated to the accident at the Restaurant. 3 In January 1988, Greene's case was referred to Bayard J. Snyder ("Snyder"), an attorney in Wilmington, Delaware, who began an investigation on behalf of the plaintiffs Paul Bechtel and Wanda E. Greene, co-executors of Greene's estate, to determine the proper party upon which to bring a tort action for the injuries Greene suffered in the Restaurant.1 This investigation included a search of public records and available directories. From the Prothonotary's office in Kent County, Delaware, Snyder learned that the Restaurant was listed as being owned in sole proprietorship by Janus R. Robinson ("Robinson"). Moreover, an employee of Snyder's visited the Restaurant to determine actual ownership, but did not see any references to who owned the business except that of Kirby & Holloway, the Restaurant's trade name. 4 The plaintiffs filed a complaint in federal district court in Delaware2 on February 17, 1988, naming as the defendant "Janus R. Robinson, d/b/a Kirby & Holloway Family Restaurant." On February 23, 1988, when the plaintiffs attempted service on Robinson at the restaurant, they were informed by an unidentified employee that Gray, rather than Robinson, was the owner of the Restaurant. Unbeknown to the plaintiffs at that time, Gray had purchased the Restaurant from Robinson on September 4, 1984 through a corporation called Creative Dining, Inc. 5 Upon receiving information that Gray was the owner of the restaurant, plaintiffs filed an amended complaint as of right on March 14, 1988, after the statute of limitations period had expired,3 adding as a defendant "James Gray, d/b/a Kirby & Holloway Family Restaurant." Gray was personally served on March 18, 1988. When Gray answered the complaint on May 2, 1988, the plaintiffs learned for the first time that Creative Dining, Inc., was the actual owner of the Restaurant, and that Gray was the principal stockholder of that corporation. 6 Although Gray had not registered Creative Dining, Inc., as the new owner of the Restaurant prior to the filing of this suit, he did register "Creative Dining, d/b/a Kirby & Holloway Family Restaurant" in the Prothonotary's office on May 2, 1988. Before that date, the only public record that accurately reflected ownership was the state license of the Restaurant. That document was posted in Gray's office in the basement of the Restaurant, an area not open to the public. 7 In his answer to the plaintiff's complaint, Gray had raised the statute of limitations as an affirmative defense, and on July 7, 1988, he moved for summary judgment on that ground. On August 10, 1988, plaintiffs moved to file a second amended complaint correcting Robinson's name4 and adding "Creative Dining, Inc., d/b/a Kirby & Holloway Family Restaurant" as a defendant. The district court, after determining that the plaintiffs had failed to meet the requirements under Fed.R.Civ.P. 15(c) for relating their amended complaint back to the time of the filing of the original action, and that Gray's failure to register his company as the owner of the Restaurant and to post its license publicly did not provide plaintiffs with any form of equitable relief from the statute of limitations defense, granted Gray's motion for summary judgment and denied plaintiffs' motion to file a second amended complaint. Judgment was entered on December 15, 1988 123 F.R.D. 484, and this appeal followed. II. A. 8 As an initial matter, we must determine what is our appropriate scope of review in this case. On this summary-judgment record, we view the facts as they are set forth on the affidavits, in the light most favorable to the non-moving party, in order to determine whether there are material issues of disputed fact. In that determination, our review is plenary. Erie v. Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988). We also exercise plenary review over the district court's statutory construction, see Chrysler Credit Corp. v. First Nat'l Bank & Trust Co., 746 F.2d 200, 202 (3d Cir.1984), and interpretation of legal precepts. Dent v. Cunningham, 786 F.2d 173, 175 (3d Cir.1986). 9 Moreover, when a trial court makes an equitable assessment after the operative facts are established, we review that assessment for abuse of discretion. See Callowhill v. Allen-Sherman-Hoff Co., Inc., 832 F.2d 269, 271 n. 4 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1228, 99 L.Ed.2d 428 (1988); E.E.O.C. v. Great Atlantic & Pacific Tea Co., 735 F.2d 69, 81 (3d Cir.), cert. dismissed, 469 U.S. 925, 105 S.Ct. 307, 83 L.Ed.2d 241 (1984). In that regard, we must decide whether the district court "located 'a just result' in light of the circumstances peculiar to the case...." Albemarle Paper Co. v. Moody, 422 U.S. 405, 424, 95 S.Ct. 2362, 2362, 45 L.Ed.2d 280 (1975). Finally, we review a trial court's denial of leave to amend a complaint for abuse of discretion. Kiser v. General Electric Corp., 831 F.2d 423, 426 (3d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1078, 99 L.Ed.2d 238 (1988). B. 10 We first address the appellants' contention that the district court should have applied equitable estoppel to bar Gray from asserting the statute of limitations as a defense since his lack of compliance with Delaware law had caused them to sue the wrong party. Specifically, the appellants argue that Gray violated Del.Code Ann. tit. 6, Sec. 3101 (1975) ("Sec. 3101"),5 which requires businesses operating under fictitious trade names to register their actual owner's name at the Prothonotary's office, and Del.Code Ann. tit. 30, Sec. 2109 (1985) ("Sec. 2109"),6 which requires a business to post its license in a conspicuous manner in either its principal office or place of business. 11 With respect to appellants' contention that he violated Sec. 3101, Gray rejoins that he was not required to disclose that Creative Dining, Inc., was the owner of the Restaurant on grounds that Del.Code Ann. tit. 6, Sec. 3107 (1975) ("Sec. 3107")7 expressly exempts legally incorporated companies from Sec. 3101's application. Nevertheless, the appellants assert that the purpose behind Sec. 3101 "is to allow the public ease and consistency in discovering the names of people transacting business in particular counties." Brief for Appellants at 24. Therefore, to avoid vitiating Sec. 3101's purpose, the appellants claim that Sec. 3107 should be read as only exempting corporations doing business under their corporate names, and not corporations doing business under fictitious trade names. Id. 12 We find the appellant's understanding of the import of Sec. 3101 to be supported by Delaware case law. As noted in 35 Virginia v. Tuttle, Civ. No. 1253, slip. op. (Del. Ch. June 26, 1987), aff'd, 536 A.2d 615 (Del.Supr.1987): 13 The purpose of a so called "common name statute" such as Sec. 3101 is "to protect the residents of the State [of Delaware] from the activities of unidentifiable associations engaged in business under assumed or common names." Silliman v. Dupont, 302 A.2d 327, 333 (Del.Super.1972), aff'd sub nom., F.I. Dupont, Glore Forgan & Co v. Silliman, 310 A.2d 128 (Del.Supr.1973). 14 Id. at 4. 15 Moreover, we find that the principles of statutory construction under Delaware law corroborate the appellants' reading of Sec. 3107. As stated by the Delaware Supreme Court: 16 The object of statutory construction is to give a sensible and practical meaning to the statute as a whole in order that it may be applied in future cases without difficulty, ... and if a literal interpretation leaves a result inconsistent with the general statutory intention, such interpretation must give way to the general intent. This is particularly true where such literal interpretation would lead to unjust and mischievous consequences. 17 Nationwide Mutual Ins. Co. v. Krongold, 318 A.2d 606, 609 (Del.Supr.1974) (emphasis added). 18 The district court initially held that "[t]o read Sec. 3107 literally to provide an exemption from the Sec. 3101 filing requirements for all legally incorporated Delaware companies is contrary to the protective purpose of the statute." Bechtel v. Robinson, et al., 123 F.R.D. 484, 489 (D.Del.1988), reprinted in Appellant's App. at 55. However, the district court still had some reservations about its construction of the statute and thus concluded that "it is at best arguable that Gray was required to so register." Id. 19 We have no such reservations in finding that Gray was required to register Creative Dining, Inc., as the owner of the Restaurant. It is certainly clear that "unjust and mischievous consequences" would result if businesses using fictitious trade names could simply evade Sec. 3101's disclosure requirement through the process of incorporation. If that were true, the exception carved out under Sec. 3107 would swallow the rule prescribed in Sec. 3101, and would have a devastating impact on the protection the Delaware legislature sought to afford citizens against businesses operating under assumed names in Delaware. Without a doubt, the state legislature did not desire this result, and while the Delaware Supreme Court has yet to decide the issue, a lower court has suggested that corporations using trade names must comply with Sec. 3101. See Zaleski v. Mart Associates, slip op. at 3-5 (Del.Super. Sept. 14, 1988) (noting that defendants' use of the trade name "Mart Associates" was not done pursuant to the registration requirements of Sec. 3101). Accordingly, we hold that Gray violated Sec. 3101 by failing to register Creative Dining, Inc., as the actual owner of the Restaurant after purchasing the business from Robinson.8 20 We next address appellants' contention that Gray's posting of the Restaurant's license in a part of the Restaurant closed to the public was an infraction of Delaware law. The relevant statute provides: 21 (a) Every person holding any state license authorizing the conduct of any business, trade or vocation shall expose such license in a conspicuous manner in the principal office or place of business of such person. 22 Del.Code Ann. tit. 30, Sec. 2109(a). Gray contends that he complied with the statute by posting the license on the wall of the Restaurant's office. The appellants, however, take the position that the license was not posted in a "conspicuous manner" since the office was located in a private area of the Restaurant. 23 Admittedly, the district court did not specifically address whether Gray's posting of the license in an area closed to the public constituted a violation of Sec. 2109. However, we agree with the appellants that the purpose of the statute is clearly to require people to post their licenses in full view of the public. Some persons can comply with the statute by posting their business licenses in their principal offices, where we can assume that clients seeking their services ultimately visit those offices. However, other persons can not comply with the statute by displaying their licenses in their principal offices, where those offices are inaccessible to the public. Restaurant owners fall within the latter category. Therefore, we hold that Gray was obligated under Delaware law to post the Restaurant's license in a conspicuous area open to the public. 24 Having found that Gray violated Delaware law, we now address appellants' contention that Gray's violations warrant the use of equitable estoppel to bar Gray from pleading the statute of limitations as a defense in this action. On this point, the district court concluded that even if Gray had been required to register under Sec. 3101, the Delaware legislature had not provided a tolling of the statute of limitations as one of the enumerated penalties for violating the statute. Moreover, the court held that, although Gray had posted the Restaurant's license in an area closed to the public, thus preventing the appellants from discovering the true identity of the owners, it could not engraft an equitable exception onto the limitations period for that reason.9 25 We find that the district court was mistaken in its determination that no equitable remedy was available to the appellants. Under Delaware law, "[equitable] estoppel may arise when a party by his conduct intentionally or unintentionally leads another, in reliance upon that conduct, to change position to his detriment." Wilson v. American Ins. Co., 58 Del. (8 Storey) 394, 398, 209 A.2d 902, 903-04 (1965) (citations omitted). As a result, "the person whose conduct has brought the situation about [is] estopped from asserting his legal rights against the party so misled." Wolf v. Globe Liquor Co., 34 Del. Ch. 312, 316, 103 A.2d 774, 776 (1954) (citations omitted). 26 Stated another way by one of the leading commentators on this subject: 27 Equitable estoppel in the modern sense arises from the conduct of a party, using that word in its broadest meaning as including his spoken or written words, his positive acts, and his silence or negative omission to do anything. Its foundation is justice and good conscience. Its object is to prevent the unconscientious and inequitable assertion or enforcement of claims or rights which might have existed or been enforceable by other rules of law, unless prevented by the estoppel; and its practical effect is, from motives of equity and fair dealing, to create and vest opposing rights in the party who obtains the benefit of the estoppel. 28 3 S. Symons, Pomeroy's Equity Jurisprudence Sec. 802 (5th ed. 1941) (footnote omitted) (emphasis in original); see also Timmons v. Campbell, 35 Del. Ch. 68, 75, 111 A.2d 220, 224 (1955) (quoting treatise). 29 Upon our review of the record in this case, we find that the overwhelming weight of the evidence supports the use of equitable estoppel to bar Gray from pleading the statute of limitations as a defense. It is undisputed that, at the time appellants' brought their suit, Gray had not registered Creative Dining, Inc., as the owner of the Restaurant, and that the only name on record in the Prothonotary's office was Robinson's. It is further undisputed that Gray did not post the Restaurant's license, the only public document disclosing the true owner of the business, in an area of the Restaurant that was open to the public. As a result, the appellants were misled by Gray into thinking that Robinson was the owner, and their reliance proved detrimental since they did not discover that they had sued the wrong party until after the statute of limitations had expired. 30 While we recognize that "[t]he statute of limitations is important to a defendant to protect it from the unfair surprise of a stale claim," Callowhill, 832 F.2d at 273 (citing Kreiger v. United States, 539 F.2d 317, 322 (3d Cir.1976)), in this case any surprise to Gray is not "unfair." It was through Gray's own conduct, by misleading the appellants as to the proper party to sue, that appellants were forced to bring a stale claim against him.10 Therefore, we hold that Gray is equitably estopped from pleading the statute of limitations as a defense. 31 Although Gray argues that he did not intend, in contemplation of this or any other lawsuit, to conceal the fact that Creative Dining, Inc., owned the Restaurant, we again note that whether a party intentionally or unintentionally committed an act is irrelevant under the doctrine of equitable estoppel. See Wilson, 58 Del. (8 Storey) at 398, 209 A.2d at 903-04. Likewise, Gray's contention that he should not be equitably estopped from pleading the statute of limitations since the appellants were informed on February 23, 1988 by an unidentified employee that Gray, and not Robinson, was the owner of the Restaurant, is without merit. It is undisputed that Gray was never the owner of the Restaurant and thus any information appellants received about Gray's ownership was still misleading. Indeed, the appellants did not discover that Creative Dining, Inc., was the actual owner of the Restaurant until May 2, 1988 when Gray answered the complaint. 32 On this last point, we find this case to be factually distinguishable from Food Fair Stores Corporation v. Vari, 55 Del. (5 Storey) 280, 191 A.2d 257 (1963). In that personal injury action, the plaintiff was notified prior to the expiration of the limitations period that it had sued the wrong party, and, in contrast to the case at bar, the plaintiff was given the name of the proper party to sue. Nevertheless, the plaintiff did not seek to amend its complaint to add the proper party until after the statute of limitations had run. The Delaware Supreme Court held that the trial court erred in not granting summary judgment for the improperly named defendant since there were no mitigating factors to excuse the plaintiff's failure to bring the action against the proper defendant. 55 Del. (5 Storey) at 284, 191 A.2d at 259. 33 In conclusion, we hold that the overwhelming weight of the undisputed evidence in this case warrants the application of equitable estoppel as a matter of law, and thus there is no need to remand this case for the district court to further assess the equities involved. We recognize that in some cases, where a trial judge makes an equitable assessment, there may be operative facts that would support contradictory dispositions. However, under the unique facts of this case, we find that any equitable assessment by a trial judge that did not grant the appellants relief would be an abuse of discretion. Accordingly, we conclude that the district court erred in granting Gray's motion for summary judgment. C. 34 We now address the question of whether the district court erred in not permitting the appellants to file a second amended complaint. The appellants' primary objective in seeking leave from the district court to amend their complaint was to add Creative Dining, Inc., as a defendant. Under Fed.R.Civ.P. 15(c),11 a court can grant an amendment adding a party as a defendant to a complaint provided that the amendment can "relate back" to the time of the original filing. In Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), the Supreme Court articulated a four-prong test for determining whether a proposed amendment met the relation back requirement: 35 (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirement must have been fulfilled within the prescribed limitations period. 36 Id. at 29, 106 S.Ct. at 2384. 37 The district court held that since the appellants had not proffered sufficient evidence to create an issue of fact as to whether Gray had received notice of the institution of this action prior to the running of the statute of limitations,12 they had not satisfied the last three prongs of the Schiavone test. As a result, the court denied the appellant's motion for leave to amend their complaint since it reasoned that lack of notice to Gray, as principal stockholder of Creative Dining, Inc., was effectively lack of notice to the corporation. 38 However, in light of our finding that the district erred in failing to apply equitable estoppel to bar Gray from pleading that he did not receive notice of this action prior to the running of the statute of limitations, Schiavone 's concern with not prejudicing added parties with the unfair surprise of stale claims is irrelevant in this case. Therefore, we hold that the district court erred in denying appellants' motion for leave to amend their complaint on the basis that the amendment did not meet Rule 15(c)'s requirements for relation back. 39 We now examine whether the appellants' filing of an amended complaint should have been permitted under Fed.R.Civ.P. 15(a), which provides that "leave [to amend] shall be freely given when justice so requires." We have noted that the courts "have shown a strong liberality ... in allowing amendments under Rule 15(a)." Heyl & Patterson Int'l, Inc. v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir.1981) (quoting 3 J. Moore, Moore's Federal Practice p 15.08(2) (2d ed. 1989)), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Supreme Court identified a number of factors to be considered in deciding on a motion to amend under Rule 15(a): 40 In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be "freely given." 41 Id. at 182, 83 S.Ct. at 230; accord, Heyl & Patterson Int'l, 663 F.d at 425; Cornell & Co. v. Occupational Safety and Health Rev. Comm'n, 573 F.2d 820, 823 (3d Cir.1978). 42 This Court has interpreted these factors to emphasize that "prejudice to the non-moving party is the touchstone for the denial of the amendment." Cornell & Co., 573 F.2d at 823. But the non-moving party must do more than merely claim prejudice; "it must show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the ... amendments been timely." See Heyl & Patterson Int'l, 663 F.2d at 426 (citing Deakyne v. Comm'rs of Lewes, 416 F.2d 290, 300 (3d Cir.1969)). 43 In the case at bar, the district court refused to grant the appellants' motion to amend their complaint under Rule 15(a), holding that the "denial to the defendant of the defense of the statute of limitations constitutes prejudice to the defendant." Bechtel v. Robinson, et al., 123 F.R.D. at 487 (citations omitted), reprinted in Appellants' App. at 47. We find that the court erred in its holding since Gray should have been equitably estopped from pleading the statute of limitations as a defense. We further find that by granting the appellants' motion to amend the complaint, no other prejudice will result since neither Gray nor Creative Dining, Inc., will be deprived of the chance to present facts or evidence since this case is still in the initial stages of discovery.13 44 In the absence of undue or substantial prejudice, we must examine whether "denial [can] be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment." Heyl & Patterson Int'l, 663 F.2d at 425 (citations omitted). Upon our review of the facts of this case, we find no evidence to support any of these grounds for denial. The appellants investigated who was the owner of the Restaurant before bringing suit against Robinson. Upon being told that Gray was the owner of the Restaurant and not Robinson, they amended their complaint to add Gray as a defendant and served him with process. Moreover, when they learned that Creative Dining, Inc., was the actual owner, they promptly moved for leave to amend their complaint to add Creative Dining, Inc., as a defendant. 45 We conclude that justice requires that the appellants be allowed freely to amend their complaint under the facts of this case. By allowing the appellants to amend their complaint to add Creative Dining, Inc., as a defendant in this action, we will simply allow them to correct an error made on account of Gray's misconduct and through no fault of their own. Moreover, since the parties were still engaged in initial discovery at the time this amendment was proposed, the amendment will not delay the bringing of this case to trial. Accordingly, we hold that the district court abused its discretion in not granting the appellants' motion to file a second amended complaint. III. 46 For the foregoing reasons, we will reverse the district court's order granting defendant's motion for summary judgment and denying plaintiffs' motion to file a second amended complaint, and will remand this case for further proceedings consistent with this opinion. 47 NYGAARD, Circuit Judge, dissenting. 48 I dissent because I do not agree that appellants should be permitted to rely upon equity to resurrect the cause of action which they lost through their own inaction. It is disingenuous of appellants to argue that Gray's actions or inaction prevented them from filing suit against the proper party until after the statute of limitations had run.1 49 I agree with the majority's statement of Delaware law on equitable estoppel. I disagree with the support they find from the facts for their conclusion that equitable estoppel should apply in this case; (1) that appellants did not discover that they had sued the wrong party until after the statute of limitations had expired, Majority at 650; (2) that Gray's conduct so misled the appellants that they were forced to sue after the limitations period expired, Majority at 650-651; and (3) that "any information appellants received about Gray's ownership was still misleading," Majority at 651. 50 First of all, the alleged misstatement informed appellants fifteen days before the limitations period expired that they had sued the wrong party. Second, armed with this new information, appellants could have sued Gray within the time permitted by the statute of limitations and thereby preserved their right to add Creative Dining, Inc. pursuant to Fed.R.Civ.P. 15(c).2 It was appellants' tardy reaction to the information given them which foreclosed their cause of action, not Gray's failure to register his corporation's fictitious name or the information given to appellants by some employee of the restaurant. 51 Because appellants discovered they had sued the wrong party two weeks before the limitations period expired; and, because the information that Gray was the owner, if acted upon, would have preserved their claim, I do not think the elements of equitable estoppel have been established. To this extent, I think Food Fair Stores Corp. v. Vari, 55 Del. (5 Storey) 280, 191 A.2d 257 (1963) controls our case. Although Food Fair is factually different, the differences do not warrant a contrary result because, in each case, had appellants sued the party they were told to sue within the limitations period, their claims would not have been barred. The difficulty which appellants suffer is not the result of some misstatement of fact or violation of law, but rather of their own inaction. They tried to do in two weeks that which the law expects will be done in two years. 52 I conclude that appellants do not deserve equity and appellee should not be estopped from relying upon the statute of limitations to bar appellants' claim. Consequently, I would likewise conclude that the district court did not abuse its discretion by denying appellants' request to add Creative Dining, Inc. 1 There is no record of what occurred during the interim period between the sending of the letter by Creedon and the starting of the investigation by Snyder 2 The district court had subject matter jurisdiction based upon diversity of citizenship. See 28 U.S.C. Sec. 1332(a) 3 Delaware law imposes a two-year statute of limitations on actions arising out of personal injury. See Del.Code Ann. tit. 10, Sec. 8119 (1975) 4 At some point in time, after they had filed their first amended complaint, plaintiffs learned that the former owner of the restaurant was James R. Robinson and not Janus R. Robinson 5 That statute provides in relevant part: No person, firm or association shall engage in, prosecute or transact any business within the limits of this State, by using any trade name or title ... without ... first filing a certificate ... in the office of the Prothonotary of each county in which it is prosecuting or transacting such business, designating the trade name or title and Christian and surname of such person, or, in case of a firm or association, the Christian and surname of each and every member of the firm or association. Del.Code Ann. tit. 6, Sec. 3101 (1975). 6 That statute provides: (a) Every person holding any state license authorizing the conduct of any business, trade or vocation shall expose such license in a conspicuous manner in the principal office or place of business of such person. Del.Code Ann. tit. 30, Sec. 2109(a) (1985). 7 That statute in pertinent part provides: Nothing in Secs. 3101-3105 of this title shall affect or apply to joint stock companies, using a common name, ... nor to legally incorporated companies. Del.Code Ann. tit. 6, Sec. 3107 (1975). 8 We note that, as a technical matter, it was Creative Dining, Inc., that failed to register. However, since Gray was the principal shareholder and an executive of the corporation, he had an obligation to cause Creative Dining, Inc., to register 9 We note that contrary to Gray's contention, the issue of equitable estoppel was properly raised by the appellants below. Indeed, Gray concedes in his brief that [i]n response to defendant-appellee Gray's brief [in support of the motion for summary judgment], plaintiffs-appellants filed a brief which discussed at great length the fact that defendant-appellee Gray failed to timely file a certificate indicating that his corporation, Creative Dining, Inc., was doing business under the trade name "Kirby & Holloway Family Restaurant["].... Brief for Appellee at 20. Under the federal rules, as long as the issue is pled, a party does not have to state the exact theory of relief in order to obtain a remedy. A "pleading is a vehicle 'to facilitate a proper decision on the merits' and not 'a game of skill in which one misstep by counsel may be decisive.' " LaGorga v. Kroger Co., 407 F.2d 671, 673 (3d Cir.1969) (quoting United States v. Houghman, 364 U.S. 310, 317, 81 S.Ct. 13, 18, 5 L.Ed.2d 8 (1960)). 10 Nor did Gray identify any source other than the fictitious name registration or restaurant license, such as county or municipality records, where plaintiffs' counsel might have discovered that Creative Dining, Inc., was the owner of the Restaurant 11 Fed.R.Civ.P. 15(c) provides: Whenever the claim or defense asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied, and, within the period provided by law for commencing the action against him, the party to be brought in by the amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. 12 Although the appellants contend that there was sufficient evidence to support a finding that Gray had received notice of this lawsuit prior to the running of the statute of limitations, upon our review of the record, we find that Gray only had notice of Greene's injury. The district court correctly held that "notice of the institution of the action" under Rule 15(c) does not mean mere notice of the event giving rise to the cause of action. See Schiavone v. Fortune, 750 F.2d 15, 18 (3d Cir.1984), aff'd, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) 13 We note that this is hardly a case where late filing will prejudice a party from producing witnesses to the accident. Gray himself was present in the Restaurant at the time of the accident, see supra p. 646 1 I find it unnecessary to decided whether or not defendant violated Delaware's Trade Name Registry Act because even if it did, plaintiffs discovered whom to sue in time to amend their complaint and give notice to Gray 2 Gray was the majority shareholder of Creative Dining, Inc., which was the party that should have been sued. Had appellants acted to amend their complaint to add Gray and served notice to him within the fifteen days they had before the limitations period expired, see, Dandrea v. Malsbary Mfg. Co., 839 F.2d 163, 167, n. 4 (3d Cir.1988), they could have amended their complaint after the limitations period expired to add Creative Dining, Inc., and, under Schiavone v. Fortune, 477 U.S. 21, 28-29, 106 S.Ct. 2379, 2383-84, 91 L.Ed.2d 18 (1986), the amendment would relate back to the filing of the complaint against Gray because notice to Gray, as principal shareholder, would be notice to Creative Dining. See, Itel Capital Corp. v. Cups Coal Co., Inc., 707 F.2d 1253, 1258 (11th Cir.1983). Thus, the information given to appellants, if acted upon within the limitations, would have enabled appellants to sue the correct party without having their claim barred by the statute of limitations

IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : No. 32 EAL 2020 : Respondent : : Petition for Allowance of Appeal : from the Order of the Superior Court v. : : : SERGEY UTEKHIN, : : Petitioner : ORDER PER CURIAM AND NOW, this 27th day of May, 2020, the Petition for Allowance of Appeal is DENIED. 

29 So.3d 750 (2010) MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Bobby B. DeLAUGHTER. No. 2008-JP-00460-SCT. Supreme Court of Mississippi. March 4, 2010. *751 Darlene D. Ballard, attorney for appellant. Cynthia H. Speetjens, attorney for appellee. EN BANC. GRAVES, Presiding Justice, for the Court: ¶ 1. This matter is before the Court on the Motion to Dismiss Order of Interim Suspension filed by the Mississippi Commission on Judicial Performance (the Commission). FACTS AND PROCEDURAL HISTORY ¶ 2. The Commission previously filed a Petition for Interim Suspension of Circuit Court Judge Bobby D. [sic] DeLaughter and a supporting brief with this Court as a result of two pending judicial complaints. Those formal complaints, Numbers 2008-022 and 2008-027, alleged that DeLaughter committed multiple counts of judicial misconduct in two separate cases, Wilson v. Scruggs, Cause No. 251-94-582CIV, and Kirk v. Pope, 973 So.2d 981 (Miss.2007). This Court granted the petition for interim suspension on March 28, 2008. Thereafter, DeLaughter was indicted on federal charges of bribery, conspiracy, mail fraud and obstruction of justice. See U.S. v. DeLaughter, No. 3:09CR002 (N.D.Miss. 2009). On July 28, 2009, DeLaughter entered a guilty plea to Count Five of the federal indictment. Pursuant to this plea agreement, DeLaughter admitted his guilt to charges of "obstructing, influencing and impeding an official federal corruption investigation and grand jury proceeding. ..." On July 30, 2009, DeLaughter resigned from office. ¶ 3. Prior to DeLaughter's sentencing on November 13, 2009, the Commission filed this Motion to Dismiss Order of Interim Suspension on August 18, 2009. As a basis for the motion, the Commission states *752 that, "[i]n exchange for the dismissal of the underlying Formal Complaints pending before the Commission, [DeLaughter] agrees that he will not seek judicial office or otherwise serve in any judicial capacity at any time in the future." The federal plea agreement attached as an exhibit to the Commission's motion does not contain any provision wherein DeLaughter agrees never to seek judicial office in the future. Likewise, DeLaughter's letter of resignation does not contain any statement indicating his agreement not to seek judicial office in the future. The only evidence before this Court of any such agreement with DeLaughter is the Commission's statement in the motion to dismiss.[1] DISCUSSION ¶ 4. In Mississippi Commission on Judicial Performance v. Martin, 2008 WL 518227 (Miss. Feb. 25, 2008), reh'g granted and superseded by 995 So.2d 727 (Miss. 2008), this Court denied, by order, a similar motion. In Martin, the Commission filed a formal complaint against Justice Court Judge Judy Martin for judicial misconduct. Simultaneously, the Commission petitioned this Court for the interim suspension of Martin, pending the continuing investigation of the complaint. Thereafter, the Commission petitioned this Court to allow it to withdraw the petition for interim suspension, as counsel for the Commission and Martin had entered into a memorandum of understanding resolving the matter. This Court refused to allow the Commission to withdraw the petition for interim suspension, finding, in effect, that the Commission's mere request provided an insufficient basis to withdraw the motion. On joint motion for rehearing, which was granted, this Court dismissed the order as moot and found that: "[W]here the Commission finds judicial misconduct ... failure to report such findings to this Court, and disposal of the violation by agreement, settlement, or memorandum of understanding between the respondent and the Commission, are beyond the Commission's constitutional authority." Martin, 995 So.2d at 730. This Court also said: The constitution grants the Commission no direct authority or power to order punishment. Nor does it authorize the Commission to enter into a settlement agreement or memorandum of understanding which bypasses its constitutional mandate to make recommendations for punishment to this Court. That said, the Commission is certainly free to agree to recommend to this Court approval of a memorandum of understanding which is supported by the facts. In the case before us today, we are told by the Commission that "counsel for the Commission and the respondent have entered into an agreement whereby the issues have been resolved in a manner satisfactory to all parties." We are further told that the Commission and Judge Martin entered into a Memorandum of Understanding which "the Commission accepted by unanimous decision." We find and hold today that, where the Commission finds judicial misconduct within one of the five categories under Section 177A, failure to report such findings to this Court, and disposal of the violation by agreement, settlement, or memorandum of understanding between the respondent and the Commission, are beyond the Commission's constitutional authority. *753 Martin, 995 So.2d at 730 (Dickinson, J.).[2] Moreover, this Court found that, although the memorandum of understanding did not require that the order of interim suspension be dismissed, the contents of said memorandum of understanding were taken into account in deciding that the order should be dismissed as moot. Id. at 731. ¶ 5. In the instant case, the Commission has exceeded its constitutional authority by failing to comply with the provisions as outlined above in Martin. This Court has neither been presented with nor asked to approve any agreement between the Commission and DeLaughter. What this Court has been presented with are admitted acts of criminal and judicial misconduct. This Court cannot ignore the serious, willful nature of the admitted acts of criminal and judicial misconduct.[3] Further, this Court cannot allow the dismissal of formal complaints in two separate cases pursuant to DeLaughter's resignation or any mere agreement not to seek judicial office in the future. ¶ 6. The Mississippi Constitution provides the following: On recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character. Miss. Const. art. 6, § 177A. Mississippi Code Section 25-5-1 provides for the removal of any public officer convicted of a crime in this State. Miss.Code Ann. § 25-5-1 (Rev.2006). To be clear, this opinion does not rely on Section 25-5-1, but mentions it to note the uniformity of this section with Section 177A, on which we rely. Accordingly, we find it unnecessary to address Chief Justice Waller's lengthy analysis of Section 25-5-1. However, we will briefly discuss the lack of consistency in Chief Justice Waller's dissent. Mississippi Commission on Judicial Performance Rule 6(A)(1) notes that: Under Section 175, Mississippi Constitution of 1890, and Section 25-5-1, Mississippi Code of 1972, public officers convicted of a crime in this state shall be removed from office. Section 25-5-1 was amended in 1979 to provide for removal upon conviction of certain crimes in federal courts and the courts of other states as well as in state courts. *754 Miss. Comm'n on Judicial Performance, Rule 6(A)(1), n. 1. Further, this Court has held that "[n]othing in Section 53 [Miss. Const. art. 4] or 177A, the two sections which specifically provide for removal of judges, suggests that they are exclusive." In re Higginbotham, 716 So.2d 631, 635 (Miss.1998) (Waller, C.J., concurring). ¶ 7. The dissents erroneously interpret the constitutional provision above as meaning that this Court cannot remove a judge unless the Commission actually recommends removal, suspension, fine, public censure or reprimand. The dissenting opinions offer no applicable authority for such a proposition. The dissents' failure to cite any applicable authority is telling. Section 177A does not state "on recommendation of the commission ... `for disciplinary action,'" nor does it say, "on recommendation of the commission ... `for some type of sanction,'" as stated by the dissent. Further, this Court is without the authority to amend the Constitution to add such language. ¶ 8. The dissents assert that the Commission has failed to submit any recommendation for sanction to this Court, and, therefore, that we have no authority to sanction DeLaughter. It borders on absurdity to opine that this Court is powerless to discipline a judge absent a recommendation from the Commission to impose a sanction. Notwithstanding that erroneous conclusion by the dissents, the Commission has made the recommendation to dismiss the order of interim suspension because the Commission has made an agreement with DeLaughter to dismiss the underlying judicial complaints. Despite that recommendation, the dissents conclude that we are without authority to impose sanctions "at this time." However, the judicial complaints against DeLaughter are pending "at this time." The Commission is recommending dismissal of those judicial complaints "at this time." No other judicial complaints involving DeLaughter are pending before this Court "at this time." Hence, the matter of disciplining DeLaughter is appropriately handled "at this time." ¶ 9. This is a situation which is controlled by Martin, 995 So.2d at 730, and which falls under this Court's constitutional authority. In addition to the discussion of Martin, as set out above and which the dissent appears to ignore, this Court has consistently held: In a judicial misconduct proceeding, this Court conducts a de novo review. Miss. Comm'n on Judicial Performance v. Thompson, 972 So.2d 582, 585 (Miss. 2008). This Court also affords "deference to the Commission's recommendations when the Commission's findings are based on clear and convincing evidence." Id. Notwithstanding this deference, this Court is the sole authority for the imposition of sanctions in cases involving judicial misconduct and, therefore, we are obligated to conduct an independent inquiry in each case. Miss. Comm'n on Judicial Performance v. Carr, 990 So.2d 763, 766 (Miss.2008). This Court is not bound by the Commission's findings, and we may impose additional sanctions. Miss. Comm'n on Judicial Performance v. Boland, 975 So.2d 882, 888 (Miss.2008). Miss. Comm'n on Judicial Performance v. Osborne, 16 So.3d 16, 18-19 (Miss.2009). ¶ 10. Further, this Court repeatedly has imposed sanctions not recommended by the Commission. See In re: Collins, 524 So.2d 553 (Miss.1987) (Removing county court judge where Commission recommended public reprimand); and In re: Brown, 458 So.2d 681 (Miss.1984) (Removing justice court judge where Commission recommended public reprimand and fine). See also Miss. Comm'n on Judicial Performance *755 v. Osborne, 977 So.2d 314, 328 (Miss.2008) (Graves, J., dissenting). ¶ 11. This Court has established that it is not limited in its available constitutional sanctions against a judge when the judge either resigns from office or is voted out by constituents. See Miss. Comm'n on Judicial Performance v. Osborne, 16 So.3d 16 (Miss.2009) (Judge Solomon Osborne, who had resigned from office more than a year earlier, was removed from office by this Court for judicial misconduct and was assessed costs of proceedings.). Further, this Court previously has removed judges no longer in office. [I]n Mississippi Commission on Judicial Performance v. Dodds, 680 So.2d 180 (Miss.1996), this Court found that the judge "should be removed from the bench." Id. at 201. This finding was made notwithstanding the fact that the subject judge had chosen not to seek reelection to judicial office and thus was no longer in office at the time of this Court's decision to remove him from office. Id. at 182 n. 1. Of significant import in today's case is the following language found in Dodds, in which Justice Banks, writing for the majority, stated: Floyd Dodds was not a candidate for reelection in the 1995 elections and, therefore, left office in January 1996. It follows that this case is moot insofar as it requires that he leave office. We conclude, however, that there are substantial reasons for bringing this matter to a conclusion with a decision on the merits. First, one should not be able to preclude discipline by the simple expedient of resigning or otherwise voluntarily leaving office. See In re the Matter of Weeks, 134 Ariz. 521, 658 P.2d 174 (1983). Additionally, judicial conduct is a matter of great public interest and our decisions serve as a guide for the entire judiciary and to preserve the public confidence in it. In re Yaccarino, 101 N.J. 342, 502 A.2d 3, 30-31 (1985); Matter of Probert, 411 Mich. 210, 308 N.W.2d 773, 776 (1981); Judicial Inquiry and Review Bd. v. Snyder, 514 Pa. 142, 523 A.2d 294, 298 (1987). Dodds, 680 So.2d at 182 n. 1. See also Miss. Comm'n on Judicial Performance v. Brown, 918 So.2d 1247, 1256, 1259 (Miss.2005) (judge removed from office although he "claim[ed] he [would] not seek another term."). ... Therefore, we find that in today's case, Osborne III, the appropriate sanction is suspension from office for a period of one year and the assessment of costs. Again, we find this sanction to be in keeping with the logic expressed in Dodds for the imposition of a sanction of removal (or in this case, suspension), even though the judge chose to resign from judicial office prior to this Court's decision. Dodds, 680 So.2d at 182 n. 1. Miss. Comm'n on Judicial Performance v. Osborne, 11 So.3d 107, 117-118 (Miss. 2009). Justice Dickinson, concurring in part, dissenting in part, stated: "Although I agree with the majority's conclusions concerning all other matters, I cannot agree that Judge Osborne may be punished for making a political speech." Id. at 123. ¶ 12. In accordance with our precedent, DeLaughter's resignation is of no effect as regards sanctions by this Court. Based upon the seriousness of his admitted criminal acts and judicial misconduct, DeLaughter shall be removed from office. CONCLUSION ¶ 13. For these reasons, this Court removes Bobby DeLaughter from the office of Circuit Court Judge of Hinds County, and directs that DeLaughter shall pay any *756 costs of this proceeding. Further, the Motion to Dismiss Order of Interim Suspension filed by the Commission is hereby dismissed as moot. ¶ 14. The Clerk of this Court is directed to mail a copy of this opinion to the Hinds County Board of Supervisors and to the Clerks of the Hinds County Chancery, Circuit, and Justice Courts. ¶ 15. FORMER HINDS COUNTY CIRCUIT COURT JUDGE BOBBY B. DELAUGHTER IS HEREBY REMOVED FROM OFFICE AND SHALL PAY ALL COSTS OF THIS PROCEEDING. THE MOTION TO DISMISS ORDER OF INTERIM SUSPENSION IS HEREBY DISMISSED. CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY DICKINSON, J. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY WALLER, C.J. WALLER, Chief Justice, dissenting: ¶ 16. I concur in the majority's conclusion that the Commission on Judicial Performance is absolutely without constitutional authority to dispose of a judicial-performance complaint by agreement between the respondent and the Commission. See Maj. Op. at ¶ 4 (citing Miss. Comm'n on Judicial Performance v. Martin, 995 So.2d 727 (Miss.2008)) (holding that "[t]he constitution ... does [not] authorize the Commission to enter into a settlement agreement or memorandum of understanding which bypasses its constitutional mandate to make recommendations for punishment to this Court"). However, I must respectfully dissent from the majority's decision to remove DeLaughter from the office of Circuit Court Judge of Hinds County in this proceeding. This Court does not have the authority, pursuant to the Mississippi Constitution or otherwise, to remove DeLaughter permanently from office at this time. ¶ 17. It is undisputed that DeLaughter pleaded guilty to "obstructing, influencing and impeding an official federal corruption investigation and grand jury proceeding...." Based on his plea agreement, DeLaughter has resigned from office. The federal court has accepted DeLaughter's guilty plea, and DeLaughter has been convicted of a felony.[4] The Commission asserts that, "[i]n exchange for the dismissal of the underlying Formal Complaints pending before the Commission, [DeLaughter] [has agreed] that he will not seek judicial office or otherwise serve in any judicial capacity at any time in the future." Thus, the Commission seeks, in this proceeding, that this Court dismiss DeLaughter's interim suspension. Because we have held today that the Commission is without authority to enter into such an agreement, neither party to the agreement is bound by its contractual obligations, and DeLaughter's promise never *757 to seek judicial office in the future is of no effect. Hence, the majority seeks in this proceeding, sua sponte, to remove DeLaughter permanently from office as circuit court judge. ¶ 18. However, notwithstanding DeLaughter's felony conviction, this Court does not have the constitutional authority to do so at this time. As the majority states, Section 177A of the Mississippi Constitution provides that: On recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character. Miss. Const. art. 6, § 177A (emphasis added). Hence, before this Court may take disciplinary action against a judge pursuant to Section 177A, we must receive a "recommendation of the commission on judicial performance" for some type of sanction, which may be that we "remove from office, suspend, fine or publicly censure or reprimand" the judge. Id. ¶ 19. Here, the Commission has not submitted to this Court any recommendation for disciplinary action against DeLaughter. Pursuant to Section 177A, therefore, we do not have the authority to remove DeLaughter from office as circuit judge at this time.[5] ¶ 20. That is not to say that this Court must follow the Commission's recommendation to the letter, if such a recommendation is made. See Miss. Comm'n on Judicial Performance v. Thompson, 972 So.2d 582 (Miss.2008).[6] We have recognized previously that "where the Commission on Judicial Performance recommends discipline of a judge short of removal from office, this Court has the constitutional authority and responsibility to review the matter independently and, if it feels such is required by law, to order the judge removed from office." In re Collins, 524 So.2d 553, 558 (Miss.1987) (citing In Re Brown, 458 So.2d 681 (Miss.1984)) (emphasis added). We went on to explain that: It has been adjudicated and recognized that the Mississippi Commission on Judicial Performance does not have the *758 authority to impose sanctions upon a judge, only to make recommendations. The Mississippi Supreme Court has the sole responsibility and authority to impose the sanctions. If such responsibility and authority were dependent upon the recommendations of the Commission, Section 177A of the Mississippi Constitution of 1890, as amended, and statutes and rules enacted pursuant thereto would be meaningless and would accomplish nothing in working toward proper judicial performance. We hold that, having acquired jurisdiction, the Mississippi Supreme Court has full jurisdiction to increase or diminish sanctions based upon its review of the record made before the Commission. Id. at 560. Hence, we may exercise our independent judgment and remove a judge from office even if the Commission recommends lesser sanctions. ¶ 21. However, in the instant case, the Commission has made no recommendation for sanctions whatsoever.[7] It seeks only to have DeLaughter's interim suspension dismissed — which is no sanction at all — pursuant to an agreement which we already have held the Commission was without constitutional authority to enter into. Hence, we are not empowered to remove DeLaughter, on our own motion, at this time. ¶ 22. The majority also cites Mississippi Code Section 25-5-1 for the proposition that this Court may remove any public officer convicted of a felony in this State. See Maj. Op. at ¶ 5 (citing Miss.Code Ann. § 25-5-1 (Rev.2006)). However, Section 25-5-1 confers no such power upon this Court under the circumstances of this case. Specifically, Section 25-5-1 provides that: If any public officer, state, district, county or municipal, shall be convicted or enter a plea of guilty or nolo contendere in any court of this state or any other state or in any federal court of any felony other than manslaughter or any violation of the United States Internal Revenue Code, of corruption in office or peculation therein, or of gambling or dealing in futures with money coming to his hands by virtue of his office, any court of this state, in addition to such other punishment as may be prescribed, shall adjudge the defendant removed from office; and the office of the defendant shall thereby become vacant. If any such officer be found by inquest to be of unsound mind during the term for which he was elected or appointed, or shall be removed from office by the judgment of a court of competent jurisdiction or otherwise lawfully, his office shall thereby be vacated; and in any such case the vacancy shall be filled as provided by law. When any such officer is found guilty of a crime which is a felony under the laws of this state or which is punishable by imprisonment for one (1) year or more, other than manslaughter or any violation of the United States Internal Revenue Code, in a federal court or a court of competent jurisdiction of any other state, the Attorney General of the State of Mississippi shall promptly enter a motion for removal from office in the circuit court of Hinds County in the case of a state officer, and in the circuit court of the county of residence in the case of a district, county or municipal officer. *759 The court, or the judge in vacation, shall, upon notice and a proper hearing, issue an order removing such person from office and the vacancy shall be filled as provided by law. Miss.Code Ann. § 25-5-1 (Rev.2006) (emphasis added). ¶ 23. Circuit court judges are constitutional officers. Miss. Const. art. 6, § 153. They are elected by the people for fixed terms of office. Id. By Section 177A of the Constitution, they may be removed from office when convicted of a felony, upon recommendation by the Commission. It may be true that the constitutional methods of removing some public officers are "put in operation and made more effective" by statute. See Ex parte Lehman, 60 Miss. 967, 1883 WL 3942, *3 (1883) (explaining that the method of removing circuit clerks pursuant to article 6, section 26 of the Constitution of 1868 is put into operation and made more effective by Section 417 of the Code of 1880). However, regarding this Court's authority to remove an elected judge from office, Section 177A's removal procedure is the exclusive method by which this Court may do so. And as already discussed, we may not remove DeLaughter pursuant to Section 177A in the absence of a request for sanctions by the Commission. ¶ 24. Furthermore, even if Section 25-5-1 could override the requirements of Section 177A, this Court may not remove DeLaughter pursuant to Section 25-5-1 anyway. The first paragraph of Section 25-5-1 applies to a public officer who "shall be convicted or enter a plea of guilty or nolo contendere ... of any felony[,]" whereas the second paragraph applies to a public officer who "is found guilty of a crime which is a felony[.]" Miss.Code Ann. § 25-5-1 (Rev.2006) (emphasis added). These two provisions provide in clear terms that the procedure for removal of a public officer who pleads guilty to a felony is different from the procedure for removal of an officer who goes to trial and is found guilty by a jury. ¶ 25. However, both procedures must be accompanied by the required due-process protections. Specifically, a public officer who is "found guilty" by a jury may not be removed from office unless the Attorney General files a motion for removal in the appropriate court, that court gives notice and holds a proper hearing on the motion, and then the court "issue[s] an order removing such person from office." Miss.Code Ann. § 25-5-1 (Rev.2006). These due-process requirements, contained in Section 25-5-1's second paragraph, are necessary to protect such a public officer from the unconstitutional deprivation of the property right embodied in his or her official position. ¶ 26. At first glance, however, it appears from the first paragraph of Section 25-5-1 that no such procedural, due-process protections are afforded to a public officer who enters a plea of guilty or nolo contendere to a felony. Miss.Code Ann. § 25-5-1 (Rev.2006). In fact, the statute states that, when such an officer pleads guilty, "any court of this state ... shall adjudge the defendant removed from office." Id. (emphasis added). However, the phrase "any court of this state" is not as broad as it seems. That language appears once before in the statute, when it refers to "any public officer, state, district, county or municipal" who "shall be convicted or enter a plea of guilty or nolo contendere in any court of this state. ..." Miss. Code Ann. § 25-5-1 (Rev.2006) (emphasis added). Hence, as it does in the first instance, I interpret the second use of the phrase, "any court of this state," to refer to the court by which the officer actually is convicted. In other words, when a public officer enters a plea of guilty or nolo contendere *760 to a felony in "any court of this state," that court "shall adjudge the defendant removed from office." Id.[8] ¶ 27. This interpretation of Section 25-5-1 renders the statute constitutional because, pursuant to the felony proceedings in that court, the defendant necessarily has been afforded his or her constitutional due-process protections. Section 25-5-1 puts the public officer on notice that, "in addition to such other punishment as may be prescribed, [the court by which the defendant is convicted] shall adjudge the defendant removed from office [as well]." Miss.Code Ann. § 25-5-1 (Rev.2006). And the plea hearing held in that court affords the public officer the required opportunity to be heard, to challenge or contest that possible punishment. Hence, the first paragraph of Section 25-5-1 passes constitutional muster only when the court that adjudges the public officer removed from office is the same court that actually convicted the officer of a felony.[9] ¶ 28. If possible, a court should construe statutes so as to render them constitutional rather than unconstitutional. City of Gulfport v. Orange Grove Utilities, Inc., 735 So.2d 1041, 1044 (Miss.1999) (citing Cities of Oxford, Carthage, Louisville, Starkville, and Tupelo v. Ne. Miss. Elec. Power Ass'n, 704 So.2d 59, 65 (Miss.1997)). Were this Court to use Section 25-5-1 to remove DeLaughter in this proceeding, without the proper notice and hearing, we would be violating DeLaughter's procedural due-process rights, and we necessarily would be interpreting and applying Section 25-5-1 in a manner that makes it unconstitutional. I am unwilling to interpret Section 25-5-1 to require a court of this state to deprive an elected judicial officer of his or her minimum, constitutional due-process protections. ¶ 29. When DeLaughter joined in the Commission's recommendation to this Court to dismiss his interim suspension, no recommendation for sanctions was made. Thus, neither DeLaughter nor the Commission had any notice, much less a hearing on the subject, that one potential result of these proceedings would be DeLaughter's removal from office. The Constitution has established a procedure by which this Court may remove a judge from office, a procedure we are duty-bound to follow. Miss. Const. art. 6, § 177A. Therefore, I must dissent from the majority's sua sponte decision to remove DeLaughter from office as circuit court judge in the absence of a recommendation for any sanctions from the Commission on Judicial Performance and without affording DeLaughter his minimum due-process rights. DICKINSON, J., JOINS THIS OPINION IN PART. DICKINSON, Justice, dissenting: ¶ 30. Although the action taken by the majority is appealing, I simply cannot join *761 in a fiction that purports to remove from office a judge who has already resigned. I find no legal or logical purpose in doing so, other than for this Court to make a public statement through its published opinion that it does not approve of Bobby DeLaughter's conduct. To be sure, I do not approve of his conduct and, for the sake of absolute clarity, I would vote to remove him — if he were still in office. But he is not. ¶ 31. The majority is correct that this Court is limited only by the Constitution as to available punishment for a judge, that is, we have authority to order punishment more severe than that recommended by the Mississippi Commission on Judicial Performance, so long as the punishment we order is listed in Section 177A of the Constitution. However, Chief Justice Waller is correct in his view that the Constitution — by the specific language cited in his dissent — requires us to wait until the Commission recommends some punishment before we can act.[10] In the case before us today, the Commission has recommended nothing which, in my judgment, reflects its understanding that a judge who has already resigned from office cannot be removed from office. ¶ 32. In Mississippi Commission on Judicial Performance v. Martin, 995 So.2d 727 (Miss.2008), this Court entered an order of interim suspension, as requested by the Commission on Judicial Performance. After Judge Martin resigned from office, we did not remove her from office, but rather disposed of the case by stating: "Because Judge Martin has resigned her office, we find the order of interim suspension should be, and hereby is, moot." Id. at 731. ¶ 33. For the reasons stated, I dissent from the majority and join, in part, Chief Justice Waller's dissent. WALLER, C.J., JOINS THIS OPINION IN PART. NOTES [1] Chief Justice Waller's dissenting opinion goes so far as to say that the parties are not bound by the "contractual obligations" of this "agreement" because they did not have the authority to enter into an agreement. However, again, the record before us contains no such agreement. [2] In his dissenting opinion here, Justice Dickinson says that this Court "entered an order of interim suspension, as requested by the Commission" in Martin. However, as stated previously herein, in Martin, the Commission petitioned this Court to withdraw its petition for interim suspension before any order of interim suspension was ever entered. This Court denied the Commission's request to withdraw the petition for interim suspension, and then months later this Court ordered the interim suspension of Martin. [3] We note that in the supporting brief to the petition for interim suspension, the Commission acknowledged that the charges "are very serious. The public's confidence in the integrity and impartiality of the entire judicial system is at stake. A suspension would send a clear message to the Respondent, the judiciary and the citizens of Mississippi of the high ethical standards required of our judges and of the importance of the integrity and impartiality of our judiciary." [4] The record before us in this proceeding contains DeLaughter's signed plea agreement, in which he pleaded guilty to obstruction charges. Although DeLaughter's conviction and eighteen-month prison sentence have been widely reported in the media, the record before us in this proceeding includes no evidence that the federal court has accepted DeLaughter's guilty plea or that DeLaughter has, in fact, been convicted of a felony and sentenced therefor. Nonetheless, we may take judicial notice of the proceeding currently before this Court in The Mississippi Bar v. Bobby B. DeLaughter, No. 2009-BD-01903-SCT. The record in that case includes the federal court's Judgment in Criminal Case No. 3:09CR00002-002, filed on November 20, 2009, and signed by Judge Davidson, convicting DeLaughter of the felony charge of attempted obstruction of justice. [5] The majority also states that this Court "is not limited in its available constitutional sanctions against a judge when the judge ... resigns from office. ..." See Maj. Op. at ¶ 10 (citing Miss. Comm'n on Judicial Performance v. Osborne, 16 So.3d 16 (Miss.2009)). The judge in Osborne had resigned before this Court ordered him removed from office. Osborne, 16 So.3d at 25. However, this Court removed the judge from office only upon the recommendation by the Commission. See Id. at 21 (stating the second issue as "Whether Judge Osborne should be removed from office... as recommended by the Commission") (emphasis added). [6] This Court conducts a de novo review of judicial-misconduct proceedings, while affording deference to the Commission's recommendations when the Commission's findings are based on clear and convincing evidence. While we do give great deference to the Commission's findings, we also are charged to render an independent judgment. In essence, this Court serves as the "the trier of fact," since we have the sole power to impose sanctions in judicial-misconduct cases. Thompson, 972 So.2d at 585 (internal citations and quotations omitted). [7] The majority cites a multitude of cases for the proposition that this Court may remove a judge from office without a specific recommendation for removal by the Commission. See Maj. Op. at ¶ 9. However, in every single one of those cases, the Commission had at least recommended some form of sanctions, and this Court simply exercised its independent authority to increase the sanction and order the judge's removal from office. [8] Similarly, a public officer convicted of a misdemeanor or willful neglect of duty "shall be removed from office, and otherwise punished as may be prescribed by law" by the court that convicts him. See Miss. Const. art. 6, § 175 (1890). [9] When such a public officer pleads guilty to a felony in a court of another state, or in a federal court, however, the statute still requires a "court of this state" to be the court that "adjudge[s] the defendant removed from office." Miss.Code Ann. § 25-5-1 (Rev. 2006). This may be done, pursuant to the United States Constitution, through "any court of this state" giving "full faith and credit" to the conviction of the officer in the court of another state or in a federal court. See U.S. Const. art. IV, § 1. However, it is my opinion that the "court of this state" that adjudges the officer removed from office based on a conviction in another state or in a federal court must still afford the defendant the minimum due-process protections of notice and an opportunity to be heard before removing him or her from office. [10] As we stated in Mississippi Commission on Judicial Performance v. Martin, 995 So.2d 727, 731 (Miss.2008), "Section 177A clearly imposes upon this Court the duty, responsibility, and authority (after considering the recommendation of the Commission) to determine and impose punishment...."

Order entered October ]’~ ,2012 In The Court o1 Ipp at No. 05-12-00049-CR JOHN GERARD QUINN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 429-81971-09 ORDER The Court GRANTS appellant’s October 5, 2012 motion to extend time to file his brief. We ORDER the appellant’s brief received on October 5, 2012 filed as of the date of this order. DAVID L. BRIDGES JUSTICE 

770 F.2d 1213 248 U.S.App.D.C. 300 AMERICAN CYANAMID COMPANY, Petitioner,v.Frank E. YOUNG, M.D., Commissioner of Food & Drugs, MarkNovitch, M.D., Deputy Commissioner of Food & Drugs, MargaretHeckler, Secretary, Dept. of Health & Human Services andFood and Drug Administration, Respondents. No. 84-1383. United States Court of Appeals,District of Columbia Circuit. Argued April 26, 1985.Decided Aug. 27, 1985. Petition for Review of an Order of the Food and Drug administration. William R. Pendergast, Washington, D.C., with whom Wayne H. Matelski, Washington, D.C., was on the brief, for petitioner. Eugene M. Thirolf, Jr., Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Asst. Atty. Gen., John Fleder, Asst. Director, Office of Consumer Litigation, Dept. of Justice, Thomas Scarlett, Chief Counsel for Enforcement, Office of General Counsel, and Mark A. Heller, Associate Chief Counsel for Enforcement, Food and Drug Administration, Washington, D.C. Before ROBINSON, Chief Judge, and MIKVA and GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge GINSBURG. GINSBURG, Circuit Judge: 1 Nature has well equipped the flea to meet the life-or-death challenge of alighting upon a suitable host; it is estimated that if humans possessed a jumping ability comparable to that of Ctenocephalides canis,1 a person could leap five city blocks in a single bound. IV ENCYCLOPEDIA BRITANNICA 177 (15th ed. 1974); see also M. ROTHCHILD & T. CLAY, FLEAS, FLUKES AND CUCKOOS 42 (1952). Analogously, Congress in 1968 equipped the Food and Drug Administration (FDA or Administration) with a consolidated statutory framework to meet the challenge of regulating new animal drugs. See Animal Drug Amendments of 1968, Pub.L. No. 90-399, 82 Stat. 343 (codified as 21 U.S.C. Sec. 360b (1982)); S.REP. NO. 1308, 90th Cong., 2d Sess. 1-3 (1968), U.S.Code Cong. & Admin.News 1968, p. 2607. The petitioner in this case, who seeks to market over the counter (OTC) a flea-control product for dogs, asserts that Congress did not equip the FDA as generously as nature did the insectile subject of this proceeding. Specifically, petitioner argues that because the FDA seventeen years ago approved petitioner's product as safe and effective for distribution by veterinarian's prescription, the Administration is powerless to reevaluate the product's safety and effectiveness before allowing the product to be marketed over the counter. 2 We reject petitioner's argument. As we read the governing statute, the FDA may fully evaluate the safety and effectiveness of a product not only before approving an initial new animal drug application (NADA), but also before approving a supplemental NADA when the proposed change (such as prescription-only to OTC status) has a bearing on the product's safety or effectiveness. 3 Having found the FDA's investigation within its statutory authority, we further find the agency's conclusion--that petitioner's product has not been proven safe and effective--to be supported by substantial evidence and not otherwise arbitrary or capricious. We therefore affirm the FDA's ruling that petitioner's supplemental NADA seeking OTC status was not up to scratch. I. BACKGROUND 4 In the mid-1960's, petitioner, American Cyanamid Company (Cyanamid), filed two new drug applications with the FDA, one for the liquid form, and the other for the capsule form of Proban, a drug intended to control fleas on dogs.2 In a manner reminiscent of the lifecycle of Proban's intended victim,3 the active ingredient of Proban travels an indirect route from bottle to parasite. The drug is placed in a dog's food; the dog ingests the drug; a flea ingests the dog's body fluids; the flea eventually ingests Proban from the canine blood and, it is hoped, dies. 5 In 1968, the FDA approved the liquid and capsule forms of Proban as safe and effective for distribution under the order of a licensed veterinarian. 6 In 1972, Cyanamid filed a supplemental NADA seeking authorization to market liquid Proban over the counter. Working at a pace charitably described as unhurried,4 the Administration took two years to inform Cyanamid by letter that its application was "incomplete," then two more years to issue a Notice of Opportunity for Hearing, and ultimately, one more year to issue a final order rejecting the supplemental NADA and refusing Cyanamid's request for a hearing. American Cyanamid Co. v. Food and Drug Administration, 606 F.2d 1307, 1309 & n. 4 (D.C.Cir.1979). 7 Cyanamid petitioned this court to review the Administration's ruling. The appellate panel reversed the agency's order and remanded the case to the FDA, directing that Cyanamid receive the trial-type hearing it had requested. The FDA had invoked its summary disposition mechanism, allowing denial of an application without a hearing if the application presents "no genuine and substantial issue of fact." See 21 C.F.R. Sec. 514.200(c) (1978). This court "recognized a rather broad area" in which the FDA may properly pluck out meritless applications, American Cyanamid, 606 F.2d at 1323; inspecting Cyanamid's papers, however, the court discovered "several material issues of fact and science" entitling the applicant to a hearing. Id. 8 Cyanamid's victory proved fleeting. In 1980 the Administration published a Notice detailing the factual issues to be considered at Cyanamid's hearing. The list included specific questions concerning the adequacy of Cyanamid's data on the safety and effectiveness of Proban. 45 Fed.Reg. 40236 (1980). A prehearing conference identified six main issues for determination: 9 I. Has Cyanamid submitted tests by all methods reasonably applicable to show that Proban is safe for OTC use? 10 II. Do the results of the tests show that the proposed use of Proban is safe? 11 III. Upon the basis of the information submitted by Cyanamid or other information before the Commissioner, does the Commissioner have sufficient information to determine whether the proposed use of Proban is safe? 12 IV. Has Cyanamid submitted substantial evidence, consisting of adequate and well-controlled investigations, including field investigations by experts qualified by scientific training and experience to evaluate the effectiveness of Proban, to establish that Proban marketed OTC will have the effect it purports or is represented to have under its prescribed, recommended, or suggested conditions of use? 13 V. Whether the applicant has shown by appropriate studies, data, surveys or opinion evidence that the proposed labeling for Proban constitutes adequate directions for use? 14 VI. Are the dangers associated with Proban such that the proposed labeling for Proban does not provide instructions for lay use? 15 Proposal to Refuse Approval of a Supplemental New Animal Drug Application for Over-the-Counter Sale of Proban Brand of Cythioate Oral Liquid, Initial Decision, No. 76N-0462 (June 16, 1981) [hereinafter Initial Decision] at 3-4. These issues were drawn from the statutory requirements for approval of a NADA. See 21 U.S.C. Sec. 360b(d) (1982). 16 After receiving the parties' written direct testimony and hearing cross-examination of each participant's witnesses, the administrative law judge (ALJ) issued a decision finding against Cyanamid on each of the above-listed issues, and denying the supplemental application. Initial Decision at 94-95. 17 Cyanamid appealed the Initial Decision in toto to the Commissioner. Summarizing the result of his examination, the (Acting) Commissioner stated that "although Cyanamid has [doggedly] objected to virtually all aspects of this proceeding, I am unable to conclude that any grounds exist to overturn the ALJ's decision." With some modifications, he affirmed the ALJ's findings and conclusions. Proban Liquid: Denial of Supplemental New Animal Drug Application, No. 33-606 (June 20, 1984) [hereinafter Commissioner's Decision] at 5. 18 Cyanamid now petitions this court to review and reverse the Commissioner's decision. II. ANALYSIS A. 19 Cyanamid dominantly argues that the FDA lacks statutory authority to conduct a full safety and effectiveness review before approving a supplemental NADA. According to petitioner, the Administration must accept without renewed inspection the safety and effectiveness of an animal drug within the bounds of the previously approved NADA, and can investigate only the marginal difference between the original NADA and the supplemental NADA. In this case, therefore, Cyanamid's interpretation would allow the FDA to consider only whether adequate directions for over-the-counter use can be written. Brief for Petitioner at 46-52, 62-71. We reject Cyanamid's position and uphold the FDA's thorough investigation as within its statutory authority. 20 The issue at hand is not novel in this court. In Rhodia, Inc. v. Food and Drug Administration, 608 F.2d 1376 (D.C.Cir.1979), the FDA rejected Rhodia's supplemental NADA seeking to add an alternative bulk supplier of the active ingredient in Rhodia's product. The FDA rejection of the supplemental NADA rested on new evidence calling into question the safety of the active ingredient. 21 The court did not reach the issue whether the FDA, as a general matter, had the authority to pursue a full safety and effectiveness review regarding the original NADA when considering a supplemental NADA. Assuming that the FDA had such authority, the appellate panel found the administrative action in Rhodia's case arbitrary and capricious. Id. at 1378-79. In a separate statement, however, Judge Leventhal (also the author of the majority opinion) squarely addressed the question of the Administration's statutory authority. He considered 22 the FDA construction ... reasonable, and consistent with the language of Sec. 512(e)(1)(E) of the Food, Drug and Cosmetic Act ..., which provides the primary source of FDA authority to approve supplemental NADA's: "The supplemental application shall be treated in the same manner as the original application." 21 U.S.C. Sec. 360b(e)(1)(E) (1976). 23 The Act is to be construed liberally to effectuate its overriding purpose to protect the public health. United States v. An Article of Drug ... Bacto-Unidisk, 394 U.S. 784, 798 [89 S.Ct. 1410, 1418, 22 L.Ed.2d 726] (1969). The FDA's broad mandate to safeguard the public health thus affords it the flexibility to shape its administrative actions when it has reason to doubt the safety of a new animal drug.... 24 .... 25 There are bounds to the FDA's power to require a full safety and effectiveness review. One cannot discern the basis for such an authority where the application demonstrates that the change has no bearing whatever on issues of safety or effectiveness. 26 Id. at 1380-81 (footnote omitted). We find Judge Leventhal's analysis persuasive and adopt it as our own. See also Chevron v. Natural Resources Defense Council, --- U.S. ----, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (deference to agency interpretation of statute). 27 Cyanamid makes several attempts to avoid the sting of the FDA's statutory authority construction. The attempts fail. 28 Most imaginatively, Cyanamid argues that its request for OTC status is not covered at all by the Animal Drug Amendments, but rather is governed only by 21 U.S.C. Sec. 352(f)(1) and Sec. 353, sections that generally concern labeling and misbranding of drugs. The argument is unconvincing. Proban's new drug application is subject to change in accordance with the Animal Drug Amendments. See Transitional Provisions, Pub.L. 90-399, Sec. 108(b)(2). Section 512(e)(1)(E) of the Animal Drug Amendments, 21 U.S.C. Sec. 360b(e)(1)(E), provides that the FDA shall withdraw approval of a new animal drug application if 29 ... the applicant has made any changes from the standpoint of safety or effectiveness beyond the variations provided for in the application unless he has supplemented the application by filing with [the FDA] adequate information respecting all such changes and unless there is in effect an approval of the supplemental application. The supplemental application shall be treated in the same manner as the original application. 30 We think it evident that this section encompasses Cyanamid's supplemental application seeking OTC status for Proban. In conclusion, we add, the notion that one particular aspect of new animal drug regulation--the shift from prescription-only to OTC status--was deliberately left out of the Animal Drug Amendments runs counter to the stated purpose of the Amendments: to "consolidate the applicable provisions governing drugs ... for animal use into one logical coordinated system...." SENATE REPORT, supra p. 2, at 3. 31 Cyanamid also argues that the FDA, itching to eliminate Proban entirely, is abusing review of Proban's supplemental NADA to escape the more stringent procedures required for withdrawal of approval of a NADA. See 21 U.S.C. Sec. 360b(e)(1)(A)-(D). Cyanamid is incorrect. The FDA's refusal to approve OTC distribution leaves Cyanamid free to market Proban for prescription use until such time as the FDA follows the route specified for withdrawal of the original NADA. "[T]he law permits the view that concerns may exist that justify the FDA in declining to lend its approval to a strengthening of the NADA, even though the FDA is not yet warranted in terminating the NADA." Rhodia, 608 F.2d at 1380 (additional statement of Leventhal, J.). 32 Cyanamid's assertion that the FDA's construction of its authority in this case is inconsistent with past agency policy is also without foundation. The FDA has stated and applied the full-safety-and-effectiveness-review-of-supplemental-NADAs policy on several occasions prior to the policy's application to Proban. See Rhodia; New Animal Drug Applications: Policy on Supplemental New Animal Drug Application Approvals and Advanced Notice of Proposed Rule Making, 41 Fed.Reg. 50003 (1976) (announcing an exception to the FDA's past policy of full safety and effectiveness review); see also In re Warner-Lambert/Parke-Davis & Co.; Benyline; Final Decision, 44 Fed.Reg. 51512 (1979) (refusing supplemental new drug application seeking OTC status for human drug after full review of safety and effectiveness data). 33 We conclude that it is within the FDA's statutory authority to review a supplemental NADA affecting safety or effectiveness under the full safety and effectiveness requirements for original NADAs stated in 21 U.S.C. Sec. 360b(d). We now evaluate the conclusions reached by the Commissioner in his review of Proban. B. 34 The burden on a NADA petitioner is not light. It includes--but is not limited to--the marshalling of: (1) adequate tests by all methods reasonably applicable to show whether the drug is safe for use under the conditions suggested in the proposed labeling; and (2) evidence consisting of adequate and well-controlled investigations, including field investigation, on the basis of which it could be fairly and reasonably concluded by experts that the drug has the effect it purports to have. See 21 U.S.C. Sec. 360b(d)(1)(A), (E), (3). If any one of Sec. 360b(d)'s requirements is not met, the FDA's charge is to reject the new animal drug application. See Masti-Kure Products Co., Inc. v. Califano, 587 F.2d 1099, 1104 (D.C.Cir.1978). 35 The FDA found Cyanamid's safety and effectiveness investigations on Proban inadequate in numerous respects. The ALJ and the Commissioner cited design defects in Cyanamid's experiments and limitations on the utility of data obtained through the petitioner's tests. Several of the shortcomings independently signaled a failure to meet a Sec. 360b(d) requirement, and thus warranted rejection of the entire supplemental NADA.5 We need not protract this opinion by lingering over each FDA-identified deficiency in the Proban data. To demonstrate why we affirm the Administration's disposition, it suffices to set out principal reservations regarding Cyanamid's investigations of Proban's safety and effectiveness indicated in the Commissioner's decision. 36 Effectiveness --The Commissioner identified three major shortcomings in the efficacy data provided by Cyanamid: (1) none of the data supported Cyanamid's claim that Proban "controlled fleas" when administered twice weekly; (2) no well-controlled field test was conducted; (3) several of the tests failed to use Proban's market formulation. Each of these flaws supplies sufficient reason to reject the supplemental NADA. 37 Proban's proposed labeling asserts that the product "controls fleas" when administered twice weekly. It was the Commissioner's opinion that the average dogowner would take this claim to mean that Proban would provide some measure of continuous flea control for the duration of the product's use. Commissioner's Decision at 30-31. Cyanamid submitted data indicating that Proban killed fleas up to 24 hours after a dog ingested the drug. There was no evidence, however, of the effect Proban had on the days between applications. For all that appeared, fleas might reinfest and feed on the dog on days when no Proban was administered. Commissioner's Decision at 135-41. The lack of evidence for Proban's efficacy as labeled, the Commissioner determined, exterminated the possibility of approval of the supplemental NADA. 21 U.S.C. Sec. 360b(d)(1)(E). 38 Cyanamid complains that the Commissioner's reading of "control" is unreasonably stringent. We disagree. It was fully rational, we believe, to assume, as the Commissioner apparently did, that dogowners would not envision as "controlling" infestations a product working to rid a pet of fleas only two days out of seven. Continuous effectiveness between "control" dosages, we note, is hardly a novel idea. Unabated protection from dose to dose is a commonly encountered expectation when a drug or device is billed as one affording the user "control" over or against a condition.6 39 The Commission's further ruling that Cyanamid's efficacy data must include two well-controlled studies, and that one of them must be a field study, derives from the express terms of 21 U.S.C. Sec. 360b(d)(3) ("well-controlled investigations, including field investigation...."). The Commissioner found that Cyanamid failed to submit a well-controlled field study. 40 Cyanamid now asserts that the word "field" in Sec. 360b(d)(3) is so fraught with ambiguity as to be meaningless. The petitioner's earlier actions belie its argument. Cyanamid had labeled two studies it submitted to the FDA "field investigations." Commissioner's Decision at 130. Before the Commissioner, Cyanamid stated that it understood the term to mean "a study evaluating products under actual conditions of use." Id. (quoting Cyanamid's memorandum in support of its exceptions to the Initial Decision). Evaluation conducted in situations approximating the actual conditions of use is the definition of "field investigation" employed by the FDA, and was the definition once comprehended by Cyanamid. We accept the FDA's definition as a reasonable interpretation of Sec. 360b(d)(3) and we uphold the Commissioner's conclusion that Cyanamid did not submit the statutorily required "well-controlled ... field investigation." See also United States v. An Article of Drug Consisting of 4,680 Pails, 725 F.2d 976, 987 (5th Cir.1984) ("[T]he very definition of substantial evidence in the Act requires that field investigations be included; an in vitro study is not a field investigation."). 41 In addition to the shortfall on continuous control and the absence of a well-controlled field study, the Commissioner found several Cyanamid submissions fatally defective because they tested Proban's active ingredient, cythioate, instead of the product's market formulation, including its inert ingredients. The Commissioner relied on the testimony of eleven expert witnesses, including four Cyanamid witnesses, to determine that a product's inert ingredients can affect the product's safety and effectiveness. Commissioner's Decision at 35-40. As the Commissioner stated, "Logic suggests that if market formulated Proban's inert ingredients may affect product performance or safety, these, along with Proban's active ingredients, must be evaluated." Id. at 39. We agree, and find no lack of substantial evidence for the Commissioner's determination that "Cyanamid's failure to use the market formulation of Proban in several of its studies renders those studies inappropriate as a basis for reaching conclusions about the properties of Proban." Id. at 40. 42 Failure to use the market formulation invalidated one of the two controlled efficacy studies Cyanamid submitted for Proban. Because the FDA reasonably interpreted Sec. 360b(d)(3) to require at least two well-controlled efficacy studies, see Commissioner's Decision at 127, this flaw alone justifies rejection of the supplemental NADA. 43 Safety --In our references to the effectiveness data we have already affirmed the Commissioner three times over; we add here that similarly serious flaws mar the safety data as well. See Commissioner's Decision at 35-38, 61-63 (failure to use market formulation); id. at 60 (rat data could not be used to determine safety in dogs); id. at 68-69 (study was biased in that, after medicated animals started consuming less food than control group, food rations for both groups were lowered); id. at 47-49 (serious questions regarding toxicity raised by test results); id. at 122-23 (risk to pregnant dogs not investigated). 44 In summary, upon consideration of the Commissioner's determinations and Cyanamid's objections to them,7 we are entirely satisfied that substantial evidence supports the Commissioner's conclusion that Cyanamid failed to present " 'adequate studies by all methods reasonably applicable' demonstrating the safety of Proban for OTC use, as required by ... 21 U.S.C. Sec. 360b(d)(1)(A)...." Commissioner's Decision at 125.8 45 The FDA's full safety and effectiveness review was within the agency's statutory authority, and the FDA's conclusions are supported by substantial evidence. Observing the bugs infesting Cyanamid's safety and effectiveness data, the FDA properly rejected Proban for OTC distribution. The petition for review is accordingly 46 Denied. 1 Known commonly as the dog flea 2 Proban was approved prior to passage of the Animal Drug Amendments of 1968. The NADA for Proban was authorized pursuant to the general section of the Food, Drug and Cosmetic Act requiring pre-marketing approval for all new drugs, currently codified as 21 U.S.C. Sec. 355 (1982) 3 The dog flea frequently will begin its odyssey at its ultimate destination--amidst the hairs of a dog--but because the flea egg cannot fasten itself to the hairs, it soon becomes dislodged and drops to the ground (if outdoors) or to rugs, floors, upholstered furniture, etc. (if indoors). The egg hatches into a larvae form resembling a small white legless caterpillar. The larva is actually a more independent creature than the adult flea; unlike the adult, the larva is not a parasite. The prepupal flea chews on nearby dirt or debris. If the larva obtains suitable food, warmth, and moisture it will eventually spin around itself a cocoon of silk in which particles of debris are incorporated. Within its cocoon the larva metamorphoses into an adult flea. The adult will remain in its cocoon until vibrations or other stimuli indicate that a host is about. The wingless insect will then throw off the abode of its youth and use its powerful legs, see supra p. 1, to leap upon the potential host. H. HOKE & V. PITT, FLEAS: THEIR INTRICATE LIVES AND PLAGUE-Y HISTORY 36-43 (1973); ONTARIO DEPT. OF AGRICULTURE & FOOD, BED BUGS AND FLEAS 6 (1970) The flea also has had an interesting literary life. See Busvine, Fleas, Fables, Folklore and Fantasies, in FLEAS: PROCEEDINGS OF THE INTERNATIONAL CONFERENCE ON FLEAS 209 (R. Traub & H. Starcke ed. 1980); B. LEHANE, THE COMPLEAT FLEA (1969). 4 "The pace of proceedings at the Food and Drug Administration ..., for whatever reasons, does not rival that of, say, a turn-of-the-century sweatshop in New York City." General Medical Co. v. FDA, 770 F.2d 214, 216 (D.C.Cir.1985) (upholding FDA's denial of petition to reclassify perspiration inhibiting device) 5 In Cyanamid's view, it is "incredible" that data the FDA considered adequate in 1968 could be regarded by the same agency as thoroughly inadequate in 1980. Brief for Petitioner at 8. We do not find the situation so implausible. As the Commissioner observed, "Scientific testing standards are capable of great change over a period of thirteen years." Commissioner's Decision at 8. Moreover, the FDA is free to change its view if the change is supported by substantial evidence. See Contact Lens Mfrs. Assoc. v. FDA, 766 F.2d 592, (D.C.Cir.1985) (affirming FDA's withdrawal of its own proposal to ease regulation of rigid gas permeable contact lenses) 6 We would expect a consumer to be seriously disappointed, for example, to discover that a birth control pill taken at the intervals labeled did not "control" birth continuously between doses 7 In the formal argument section of its initial brief, Cyanamid does not dispute the Commissioner's determination that Cyanamid's safety data, by 1980 standards, was inadequate. In its statement of facts, however, Cyanamid appears to object to almost every negative finding made by the Commissioner. See Brief for Petitioner at 15-43. While we have treated these objections as if they had been made in the argument section, we do not recommend petitioner's style of written advocacy 8 In his "Conclusions Regarding Proban's Safety" the Commissioner found that Cyanamid's supplemental NADA also failed to meet the requirements of 21 U.S.C. Sec. 360b(d)(1)(B) and (D). We find substantial evidence supporting these conclusions

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 95-5629 LYLE SHARP, Defendant-Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (CR-94-124) Submitted: March 21, 1996 Decided: April 4, 1996 Before NIEMEYER and MICHAEL, Circuit Judges, and BUTZNER, Senior Circuit Judge. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Andrew R. Pauley, Charleston, West Virginia, for Appellant. Rebec- ca A. Betts, United States Attorney, Philip J. Combs, Assistant United States Attorney, Charleston, West Virginia, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Lyle Sharp pled guilty to maintaining a place for the distribution of crack cocaine, 21 U.S.C. § 856(a)(1) (1988). He was sentenced to serve a term of 37 months imprisonment. Sharp appeals the district court's denial of his motion to withdraw his guilty plea. He also appeals his sentence, contending that the district court clearly erred in determining the amount of crack for which he was responsible. United States Sentencing Commission, Guidelines Manual § 2D1.1 (Nov. 1994). We affirm. Sharp steered customers to several crack dealers in return for which he received crack for his own use. The arrangements were made in Sharp's house and he would then go to a trailer behind his house and bring one of the dealers to his house, where the sale would take place. Sharp participated in four controlled buys. After his arrest, he admit- ted participation in at least nine additional sales. The denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Sparks, 67 F.3d 1145, 1151 (4th Cir. 1995). The factors to be considered by the district court in decid- ing whether the defendant has shown a fair and just reason for with- drawing his plea are: (1) whether he has offered credible evidence that his plea was not knowing or voluntary; (2) whether he has credibly asserted his legal innocence; (3) whether there has been a delay between the plea and the withdrawal motion; (4) whether he has had the close assistance of competent coun- sel; (5) whether the government will be prejudiced by with- drawal; (6) whether withdrawal will inconvenience the court and waste judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert. denied, 502 U.S. 857 (1991). Sharp entered his guilty plea in January 1995. On the day he was scheduled to be sentenced in March 1995, Sharp attempted to with- 2 draw his guilty plea. His attorney withdrew, new counsel was appointed, and Sharp's new counsel filed a written memorandum in support of plea withdrawal alleging that the first attorney had been ineffective in telling him that he would have to plead guilty before he could provide substantial assistance to reduce his sentence, in failing to inform him about supervised release, and in failing to inform him that his relevant conduct might include amounts of crack in addition to the controlled buys. He asserted that only casual drug use had occurred at his home and that he had not maintained a dwelling for the distribution of drugs. He claimed that he had informed his attor- ney that he wished to withdraw his plea soon after entering it. After a hearing on Sharp's motion, the district court found that Sharp was informed during the Fed. R. Crim. P. 11 hearing that he would be subject to supervised release and that the concept of rele- vant conduct was explained him at the same time. The court found that Sharp had been competently represented and noted that he had expressed no dissatisfaction with his attorney or desire to withdraw his plea at a bond hearing ten days after his Rule 11 hearing or at any time until the day originally scheduled for sentencing. Sharp had described his conduct in detail when he entered his plea and his later assertion of legal innocence was not credible. Our review of the record below bears out the district court's findings. Consequently, the district court did not abuse its discretion in denying Sharp's motion to withdraw his plea. Sharp also contests as mere speculation the district court's determi- nation that he was responsible for more than 2 grams of crack. Sharp conceded at sentencing that he was responsible for .94 grams of crack, the amount involved in the four controlled buys. Under USSG § 2D1.1, comment. (n.12), the court may estimate, if necessary, the amount of drugs which are part of the defendant's relevant conduct, taking into consideration similar known transactions. The district court estimated the amount involved in the nine additional transac- tions which Sharp had previously admitted by using the average weight of the four known transactions. The court thus arrived at a total of 2.38 grams, an amount lower than that recommended by either the probation officer or the government. The amount deter- mined by the district court was not clearly erroneous. 3 Accordingly, we affirm the conviction and the sentence. We dis- pense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4 

599 F.2d 1057 Aguonv.Director of Administration, Government of Guam No. 77-3580 United States Court of Appeals, Ninth Circuit 5/14/79 D.Guam VACATED AND REMANDED

J.A13042/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 OBIANUJU S. OLIVER, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : STACEY L. OLIVER, : : No. 2759 EDA 2013 Appellee : Appeal from the Order Entered September 6, 2013 In the Court of Common Pleas of Philadelphia County Domestic Relations No(s).: 10-09243; PACSES No. 510111750 BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 16, 2014 ) appeals pro se from the order entered in the Philadelphia County Court of Common Pleas awarding her spousal and child support.1 Wife contends that alimony should be awarded to her based upon the Federal Poverty Guidelines for her household size of two 1183(a), also known under Section 213A of the INA as form I-864. Wife has also filed with this Court an application to file an amended brief and an * Former Justice specially assigned to the Superior Court. 1 pro se in this appeal. J. A13042/14 on, accept the amended brief, and affirm. On May 21, 2012, the Master in Support entered a proposed order of support which provided that Husband shall pay child support in the amount of $768.31 per month and spousal support in the amount of $738.58 per month, plus $50.00 monthly toward arrears.2 On September 6, 2013, the trial court entered the following order: Both parties present pro se. The court heard from both exceptions are denied. The court heard from both parties Proposed order entered as final support order. Order, 9/6/13. This timely appeal followed.3 Wife filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial court filed a responsive opinion. On October 28, 2013, this Court entered the following per curiam rule to show cause order: This appeal has been taken from the September 6, 2013 order in support. It is unclear if the spousal support portion of this order is final and appealable. Generally, an 2 The facts are unnecessary for our disposition. 3 The support order was entered on September 6, 2013. The thirtieth day thereafter was Sunday, October 6, 2013. See notice of appeal was filed on October 7, 2013 and was therefore timely. See 1 Pa.C.S. § 1908 (providing that when last day of any period of time referred to in any statute falls on Saturday, Sunday, or legal holiday, such day shall be omitted from computation). -2- J. A13042/14 appeal only lies from a final order. See Pa.R.A.P. 341(b)(1) (a final order is any order that disposes of all claims and of all parties); Leister v. Leister, 684 A.2d 192 (Pa. Super. 1996) (. . . spousal support [is not] appealable until all economic issues have been resolved); Fried v. Fried, 501 A.2d 211 (Pa. 1985) (issues are reviewable after entry of divorce decree and resolution of all economic issues). Instantly, it is unclear if there has been a divorce compliant [sic] filed. If a divorce compliant [sic] has been filed, it is unclear if a divorce decree has been entered and if all economic claims have been resolved. Accordingly, [Wife] is directed to show cause . . . as to the appealability of the spousal support portion of the order. . . . Order, 10/28/13. Wife filed a response to the order and argued that the spousal support concerned that errors made in the trial court, if not corrected in the Superior Court of Pennsylvania, would be made a final order during the divorce proceedings. [Wife] is not aware of how long the divorce proceedings will 3, at 4 (unpaginated). On November 4, 2013, this Court entered the following per curiam order: In accordance with the rule to show cause order dated October 28, 2013 and in consideration of your response that there are still outstanding economic issues to be solely the issues regarding child support will be referred to the panel assigned to decide the merits of this appeal. . . . -3- J. A13042/14 Order, 11/4/13 (emphasis added). Wife raises the following issues on appeal: 1. Is [Wife] entitled to retroactive Spousal Support starting June 22, 2010? . . . support obligations? . . . 3. Did the trial court erred [sic] by not revie annual income[?] 4. Did the trial court erred [sic] by not ordering [Husband] -864 Affidavit of Support obligation affect Divorce Settlements? . . . 6. Did the trial court erred [sic] when Judge Peter Rodgers denied same exceptions? . . . -8. As stated above, Wife also filed an application to amend her brief, ed Brief contains only matters not being resolved at The amended brief does not contain a statement of the questions involved pursuant to Pa.R.A.P. 2119(a). As a prefatory matter we consider whether Wife has waived the issue See -4- J. A13042/14 rele Harris v. Toys "R" Us- Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005). This Court has stated: [A]ppellate briefs and reproduced records must materially conform to the requirements of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. . . . Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. To the contrary, any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing. In re Ullman, 995 A.2d 1207, 1211-12 (Pa. Super. 2010) (some citations omitted). An appellant abandons an issue by not addressing it in the argument section of the brief. In re K.K., 957 A.2d 298, 303 (Pa. Super. 2008) (citing In re Jacobs, 936 A.2d 1156, 1167 (Pa. Super. 2007) (finding issue waived because appellant did not address it in argument section of appellate brief)). Wife did not address the issue of child support in the argument section of her brief, reply brief, or amended brief. Therefore, we find the issue abandoned. See id.; Harris, 880 A.2d at 1279. This Court previously notified Wife we will not hear any spousal support issue. Order affirmed. Application to file amended brief granted and brief accepted. -5- J. A13042/14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/16/2014 -6- 

107 Ill. App.3d 985 (1982) 438 N.E.2d 614 PHILLIP LEHMAN et al., Plaintiffs-Appellees, v. EUGENE MATANKY & ASSOCIATES, INC., Defendant-Appellant. No. 81-1061. Illinois Appellate Court — First District (5th Division). Opinion filed July 9, 1982. *986 Hollobow and Taslitz, of Chicago (Barry B. Kreisler and Alan B. Castator, of counsel), for appellant. Krause & Krause, of Mt. Prospect (David S. Krause and Carolyn H. Krause, of counsel), for appellees. Judgment affirmed. JUSTICE LORENZ delivered the opinion of the court: Defendant appeals from the entry of an order granting summary judgment to plaintiffs and raises the following issues: (1) whether a dispute concerning the termination of the contract was within the scope of the arbitration clause so that the cause should have proceeded to arbitration and, in the alternative, (2) whether genuine issues of material fact remain concerning the termination of the listing agreement which precluded the entry of summary judgment in favor of plaintiffs. Material to our disposition are the following facts. One September 18, 1979, plaintiffs entered into a written real estate brokerage agreement whereby they employed Matanky as their exclusive sales agent to secure a buyer for the property located at 500 W. Touhy Avenue in Des Plaines, Illinois. The subject property was owned by Lehman Mobile Homes Park, Inc., an Illinois corporation, all of whose stock was owned in joint tenancy by the plaintiffs. This agreement provided that Matanky's employment as plaintiffs' exclusive agent was "to extend for a period of not less than six months with authority to offer for sale, to advertise, to place a sign thereon and to sell said property * * *." The brokerage contract also contained a notice requirement for termination of the exclusive agency relationship and a generic arbitration clause. The notice requirement stated: "This agreement shall remain in *987 effect for the period above specified and thereafter until terminated by me or you in writing, giving the other party thirty (30) days prior notice." The generic arbitration clause provided in pertinent part: "Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof." The subject property was placed on the market for an asking price of $1,200,000. The brokerage contract was executed by the Lehmans and by Ken Baldwin and Grace Stample as agents for defendant. On February 11, 1980, plaintiffs' attorney Carolyn Krause sent a letter to the defendant's office, notifying it that "in accordance with the Real Estate Listing Agreement dated September 18, 1978, we are hereby giving you notice that the said agreement shall terminate on March 18, 1980." Ken Baldwin replied to the Lehmans on February 13, 1980, acknowledging receipt of their letter "terminating our exclusive as of March 18, 1980." The letter further stated: "We will keep the property listed in our cooperative sales agency until the expiration date, and meanwhile will continue our efforts to sell the property even after the exclusive expires unless you advise us otherwise or until it is sold." On March 19, 1980, plaintiffs' attorney mailed a rough draft of a proposed real estate contract between the plaintiffs and Patrick Lasco and Charles Drew. The rough draft was not signed by any of the named parties. On April 14, 1980, Ken Baldwin submitted an offer to purchase the subject property to the plaintiffs which was on the same form as the March 19 draft. However, the terms of the original offer had been altered to provide, inter alia, that the Lehmans would pay a broker's commission to the defendant in the amount agreed to in the exclusive brokerage agreement. The April 4 offer was signed by a new prospective purchaser, Henry Criz, in place of Lasco and Drew, whose names have been deleted. For reasons not revealed in the record, neither sale was consummated, nor did the Lehmans ever accept either offer by signing a contract. On July 5, 1980, the American Arbitration Association notified the Lehmans that Matanky had filed a demand for arbitration of the issue of the $84,000 brokerage commission. The Lehmans protested that filing, and contested the jurisdiction of the American Arbitration Association by claiming that the brokerage agreement which provided for arbitration had been properly terminated and no longer compelled arbitration of the issue. Plaintiffs subsequently filed this lawsuit seeking to enjoin defendant from proceeding to arbitration. Following cross motions for summary *988 judgment, the trial court ruled in favor of plaintiffs, and it is from this order that defendant appeals. OPINION Defendant initially contends that the trial court erred in finding that the parties had not agreed to arbitrate a dispute concerning the termination of the contract. Section 2(a) of the Uniform Arbitration Act (Ill. Rev. Stat. 1977, ch. 10, par. 102(a)) provides: "(a) On application of a party showing an [arbitration] agreement * * *, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied." Under the Uniform Arbitration Act, adopted in Illinois in 1961, the trial court is authorized to determine arbitrability if one of the parties denies it has agreed to arbitrate. The chief effect and benefit of the 1961 Act is that it grants legal enforceability to arbitration agreements to settle future as well as existing disputes. Flood v. Country Mutual Insurance Co. (1967), 89 Ill. App.2d 358, 232 N.E.2d 32, rev'd on other grounds (1968), 41 Ill.2d 91, 242 N.E.2d 149. However, it is well settled that since arbitration is a matter of contract, a party cannot be required to arbitrate any dispute which he had not agreed to arbitrate (Butler Products Co. v. Unistrut Corp. (7th Cir.1966), 367 F.2d 733; Atkinson v. Sinclair Refining Co. (1962), 370 U.S. 238, 241, 8 L.Ed. 462, 466, 82 S.Ct. 1318, 1320-21), and it is for the courts to determine whether the claim is "on its face" covered by the contract. United Steelworkers v. American Manufacturing Co. (1960), 363 U.S. 564, 568, 4 L.Ed.2d 1403, 1407, 80 S.Ct. 1343, 1346. • 1 Thus, we note initially that the issue as to whether the brokerage contract in the present case required arbitration by its terms was properly decided by the trial court and not by an arbitrator. Board of Trustees v. Cook County College Teachers Union, Local 1600 (1980), 87 Ill. App.3d 246, 408 N.E.2d 1026. As for the proper perspective to apply, Illinois courts have developed a much stricter standard of review for arbitration of disputes which arise in the context of a commercial undertaking, in contrast to the more liberal standard preferred by the courts in the delicate sphere of collective bargaining agreement disputes. Croom v. City of De Kalb (1979), 71 Ill. App.3d 370, 389 N.E.2d 647. • 2 The applicable standard of review for a commercial arbitration *989 dispute provides, in essence, that the parties are only held bound to arbitrate those issues which must be "stated in the contract between the parties in crystal clear language unextended and unenlarged either by construction or by implication." (Blades, Inc. v. Jarman Memorial Hospital Building Fund, Inc. (1969), 109 Ill. App.2d 224, 226, 248 N.E.2d 289, 290; Flood v. Country Mutual Insurance Co. (1968), 41 Ill.2d 91, 94, 242 N.E.2d 149, 151.) As one author has commented, "This has almost led to the requirement that the settling of a dispute by the method of arbitration must be spelled out expressis verbis in the contract in order to give it effectiveness." Herzog, Judicial Review of Arbitration Proceedings — A Present Need, 5 DePaul L. Rev. 14, 19 (1955). We turn now to consider defendant's argument that the issue of termination should have been decided by the arbitrator and not by the trial court. In the present case the brokerage agreement of September 18, 1979, provided for arbitration of any dispute arising in connection with the agreement, but also contained a provision for the termination of this agreement after six months had elapsed and proper notice had been given. Relying primarily upon Beider v. Eugene Matanky & Associates, Inc. (1977), 55 Ill. App.3d 354, 371 N.E.2d 29, defendant contends that the issue of termination of the arbitration agreement was within the scope of the arbitration clause and therefore should have been decided by the arbitrator. We do not agree. In Beider, the generic arbitration provision and the notice requirement involved were identical to the instant case inasmuch as the same defendant in the present action was also a party to that suit. The Beider contract, however, gave Matanky authority for a period of not less than three months to offer the property for sale. There, the 30-day notice period, calculated from February 16, 1973, expired on March 18, 1973. However, on March 16, 1973, defendant procured an offer to purchase the property which plaintiff accepted on March 19, 1973. When defendant sought arbitration of the dispute, the plaintiff requested a stay of the arbitration proceeding which was subsequently denied by the trial court. Unlike the present case, the Beider court specifically found that issues existed concerning proper notice of revocation of defendant's agency and the effective date of that revocation. The appellate court affirmed, finding that the question of sufficient notice of termination as well as the issues surrounding procurement of a ready, willing and able buyer were within the scope of the generic arbitration clause. Defendant also cites as authority the case of General Atomic Co. v. Commonwealth Edison Co. (1976), 37 Ill. App.3d 716, 346 N.E.2d 437, which was relied upon by the Beider court. In General Atomic, a contract *990 for the purchase and sale of nuclear fuel provided that "`[a]ny dispute arising from this Contract, including any failure to agree upon any matter where this Contract provides for future agreement of the parties, shall be submitted to arbitration upon request of either party.'" (37 Ill. App.3d 716, 719.) Either party to the contract could terminate upon the occurrence of force majeure circumstances affecting the ability of the other to perform. Unanticipated nuclear regulatory licensing delays subsequently prompted plaintiff General Atomic to terminate the contract under its force majeure clause, and similar court action to stay arbitration ensued. The appellate court held that whether the plaintiff had properly exercised the force majeure clause constituted a dispute arising from the contract, and was thus an arbitrable question under the contract's arbitration clause. We believe that the cases relied upon by Matanky are distinguishable from the case at bar. The present case differs in the following three respects: (1) the brokerage agreement had been unambiguously and effectively terminated, unlike Beider, where issues of proper notice and revocation remained; (2) the agreement was not terminated as a result of a party's breach of contract, but by the expiration of its specified term, in contrast to General Atomic, where issues concerning revocation remained; and (3) the Criz offer was never accepted by the plaintiffs and the property had not been sold as of the time of summary judgment. However, the thrust of defendant's argument is that the plaintiffs' letter of February 11, 1980, did not operate to terminate the listing agreement. Defendant persistently argues that plaintiffs' notice of revocation letter of February 11, 1980, somehow did not effectively and unequivocally terminate the brokerage agreement, or, apparently in the alternative, that the letter merely operated to terminate the defendant's exclusive agency while an agency relationship continued in force and effect. Defendant directs our attention to its reply letter of February 13, 1980, which states: "We will keep the property listed * * * until the expiration date, and meanwhile will continue our efforts to sell the property even after the exclusive expires unless you advise us otherwise or until it is sold." We are not persuaded by the illogic of this argument. • 3 As a general rule, a broker's contract of employment is subject to being terminated by the principal's revocation of the authority granted to the broker at any time and under any circumstances. (5 Ill. L. & Prac Brokers sec. 28 (1953).) Illinois decisional law indicates that the ordinary contract of agency for the sale of real estate is a unilateral offer and can be prematurely terminated at any time before it is accepted by the procurement of a purchaser, provided that the revocation is in good faith. Nicholson v. Alderson (1952), 347 Ill. App. 496, 107 N.E.2d 39. • 4 It is well established that a contract which is not ambiguous in its *991 expression of duration is not subject to judicial construction. (Donahue v. Rockford Showcase & Fixture Co. (1967), 87 Ill. App.2d 47, 230 N.E.2d 278.) Fundamental contract law mandates that the terms of a written contract bind the parties as to all of its provisions, including the manner in which the term granted may be terminated (Cox v. Grant (1978), 57 Ill. App.3d 922, 373 N.E.2d 820), and such a stipulation will be enforced when made in good faith. (S & F Corp. v. American Express Co. (1978), 60 Ill. App.3d 824, 377 N.E.2d 73.) Thus, the mere fact that the parties by their acts and declarations indicate an intention to treat a written contract as continuing after the time prescribed in it for its termination will not have the effect of continuing such a contract, although it may show a subsequent oral agreement on the same terms. 17A C.J.S. Contracts sec. 449 (1963). • 5 In the present case, it is clear that there was no existing contract calling for arbitration after March 18, 1980. As one author has commented: "While the contract provides for arbitration of disputes as to the `meaning, performance, non-performance or application' of its provisions, the mere assertion by a party of a meaning of a provision which is clearly contrary to the plain meaning of the words, cannot make an arbitrable issue * * *" (citing International Association of Machinists v. Cutler-Hammer, Inc. (1947), 271 App. Div. 917, 918, 67 N.Y.S.2d 317, 318). (See Herzog, Judicial Review of Arbitration Proceedings — A Present Need, 5 DePaul L. Rev. 14, 21 (1955).) We believe that this analysis is applicable to the case at bar. • 6 Applying the foregoing principles to the present case, we find that the brokerage agreement was totally and unequivocally terminated pursuant to the notice requirement contained therein. The subsequent offer to purchase did not arise out of the terminated contract, which was no longer in force and effect. Accordingly, we conclude that the issue of termination of the contract was not within the scope of the arbitration clause. Finally, we consider defendant's contention that the trial court erred in granting summary judgment due to the existence of genuine issues of material fact. • 7 A careful review of the record discloses that defendant has never filed any counteraffidavits, nor have they at any time disputed any of the documents relied upon by the plaintiffs. Even though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 313 N.E.2d 457. • 8 We therefore find that summary judgment in the present case was a proper procedure where only the construction and validity of the agreement *992 were at issue. Bates v. Select Lake City Theater Operating Co. (1979), 78 Ill. App.3d 153, 397 N.E.2d 75. For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. Affirmed. MEJDA and WILSON, JJ., concur.

618 F.2d 111 Nunnv.U. S. 79-1589 UNITED STATES COURT OF APPEALS Seventh Circuit 2/5/80 1 N.D.Ind. AFFIRMED

340 B.R. 419 (2006) In re Kevin C. MELLOR, Debtor. Kevin C. Mellor, Plaintiff, v. Sheri D. Washuta, C. Michael Barnette, Defendants. Bankruptcy No. 6:04 BK 13727. Adversary No. 6:05-ap-110. United States Bankruptcy Court, M.D. Florida, Orlando Division. January 30, 2006. *420 Margaret W. Hudson, New Smyrna Beach, FL, for Debtor. MEMORANDUM OPINION KAREN S. JENNEMANN, Bankruptcy Judge. This adversary proceeding came on for trial on January 12, 2006, upon the Complaint filed by the debtor, Kevin Charles Mellor, seeking to determine that attorney fees and costs incurred in connection with his divorce from the defendant, his former wife, Sheri D. Washuta, are dischargeable under Section 523(a)(5) of the Bankruptcy Code.[1] Pursuant to an earlier Order Partially Granting Plaintiff's Motion for Summary Judgment as to Ms. Washuta (Doc. No. 30), the Court already has determined that attorney fees in the amount of $2,500 are dischargeable and now are discharged. The only remaining issue is whether additional fees in the amount of $5,705.38 are in the nature of alimony or child support. Due to the relatively small amount in question, the Court directed the parties to exchange information, specifically, the detailed attorney bills, so that the parties could discuss whether these fees constitute alimony and maintenance and whether they are dischargeable or not pursuant to Section 523(a)(5) of the Bankruptcy Code. The parties complied with this request; exhibits were exchanged. The parties now exclusively rely upon four exhibits introduced during the trial. Exhibit 4 is the most relevant and includes the billing statements from the defendant's attorney, C. Michael Barnette, supporting Ms. Washuta's claim that the attorney fees are not dischargeable. The plaintiff/debtor agrees that the majority of these fees and costs indeed are in the nature of alimony and support and are not dischargeable. Specifically, the debtor agrees that attorney fees in the amount of $3,942.13 are in the nature of alimony/child support and are not dischargeable in this Chapter 7 bankruptcy. Therefore, the last issue is whether the remaining $1,763.25 is dischargeable. In the Eleventh Circuit, bankruptcy courts are required to make only a "simple inquiry" as to whether an obligation to pay attorney's fees "can legitimately *421 be characterized as support" in order to determine whether the obligation is nondischargeable pursuant to Section 523(a)(5). In re Strickland, 90 F.3d 444, 446 (11th Cir.1996) (citing In re Harrell, 754 F.2d 902, 906 (11th Cir.1985)). After reviewing the various bills and records, the Court agrees that, although there is some question as to an entry here and there throughout the bills as to whether the fees relate to child support issues, the general scope of services provided by the attorney for the defendant clearly related primarily to child support issues. The other services were de minimus, and, as reflected by the debtor's attorney, C. Michael Barnette, in his cover letter, he concludes that, "While an extremely limited amount of time may have been devoted to collecting the original award of $2,500.00 for your attorney's fees as provided in the mediation settlement agreement, the battle ground in your second round of litigation was child support modification and collection of the arrearage." Further, to the extent the defendant's attorney provided non-support related services to his client, the issues were so intertwined with the support issues, they are not divisible. In re Hendricks, 248 B.R. 652, 657 (Bankr.M.D.Fla.2000) ("It is well established that an award of attorney's fees incurred in a dissolution or post-dissolution proceeding is inextricably intertwined or directly related to alimony or support.") (emphasis added) (citing In re Patrick, 106 B.R. 743 (Bankr.S.D.Fla.1989); In re Pollock, 90 B.R. 747 (Bankr.E.D.Pa.1988); In re Bell, 61 B.R. 171 (Bankr.S.D.Tex. 1986); In re Morris, 14 B.R. 217 (Bankr. D.Colo.1981); In re Whitehurst, 10 B.R. 229, 230 (Bankr.M.D.Fla.1981) ("unless the obligation to pay a spouse's attorney's fees is clearly in the nature of a property settlement, it will be deemed non-dischargeable."); In re Shaw, 67 B.R. 911 (Bankr. M.D.Fla.1986)). The post-divorce litigation between the parties, during which the fees at issue arose, started when the debtor's ex-wife sought to collect unpaid child support from the debtor. The debtor actively opposed this collection effort. The debtor also, in response, sought to modify his visitation rights and avoid paying other fees previously awarded. Therefore, although some of Mr. Barnette's charges appear to relate to these peripheral issues, the Court cannot ignore the connection between the defendant's attempt to collect unpaid child support and the debtor's renewed interest in challenging the defendant on other issues. It is only these latter bills that were submitted in support of the debtor's request, and, because of the inability to appropriately divide between those specific services that directly related to alimony and child support issues and those which were not, the Court finds that the entire amount is in the nature of child support and alimony. In re Rosenblatt, 176 B.R. 76 (Bankr.S.D.Fla.1994) (concluding that attorney fees incurred in connection with visitation issues are in the nature of alimony, maintenance, or support and therefore are excepted from discharge); Matter of Vazquez, 92 B.R. 533 (S.D.Fla.1988); In re Schwartz, 53 B.R. 407, 411 (Bankr. S.D.N.Y.1985). Accordingly, judgment shall issue in favor of the defendant, Sheri D. Washuta, as to the entire remaining amount at issue. The attorney fees and costs in the amount of $5,705.38 are nondischargeable and will survive the pendency of this Chapter 7 case and the entry of the debtor's discharge in this Chapter 7 case. A separate judgment consistent with this ruling shall be entered. NOTES [1] Unless otherwise stated, all references to the Bankruptcy Code herein refer to Title 11 of the United States Code.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-40591 Summary Calendar COY LYNN OWENS, Plaintiff-Appellant, versus UNITED STATES OF AMERICA BUREAU OF PRISONS; ET AL., Defendants, UNITED STATES OF AMERICA BUREAU OF PRISONS, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Texas (USDC No. 5:00-CV-255) October 30, 2002 Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:* Coy Lynn Owens, federal prisoner # 04702-078, appeals from the district court's order granting summary judgment to the defendant in his suit brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b). Owens alleged that while he was being transferred to FCI Texarkana, employees of the Bureau of * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Prisons improperly applied leg restraints, which caused injury to his left foot and ankle. After a de novo review, we affirm. The summary judgment evidence included medical records and declarations from medical personnel showing that when Owens arrived at FCI Texarkana his lower extremities were normal and that he did not complain about either the leg restraints or an injury to his left foot. Owens argues that the summary judgment evidence was improper because the declarations were unsworn. The district court did not err in considering the declarations, however, because they were made under penalty of perjury and asserted that the statements therein were true and correct in compliance with 28 U.S.C. § 1746. See Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988). After the summary judgment evidence was proffered, it became Owens's burden "to set forth specific facts to establish a genuine issue of material fact, without merely resting on allegations and denials." See Martinez v. Bally's Louisiana, Inc., 244 F.3d 474, 476 (5th Cir. 2001). We conclude that Owens failed to come forward with "significant probative evidence" on which a jury could reasonably find in his favor, see State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990), and the district court did not err in granting summary judgment to the defendant. Although Owens's complaint also alleged that he was denied proper medical care for his foot injury, he has not adequately briefed such a claim in this court. Accordingly, that claim is 2 deemed abandoned. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Finally, Owens has filed a motion to supplement the record with photographs of his foot taken after the district court granted summary judgment. Because this court does not ordinarily expand the record to consider evidence that was not before the district court, the motion is DENIED. See Trinity Industries, Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992). AFFIRMED. MOTION DENIED. g:\opin-sc\02-40591.opn.wpd 3 

[Cite as State ex rel. Gooden v. Teodosio, 128 Ohio St.3d 538, 2011-Ohio-1915.] THE STATE EX REL. GOODEN, APPELLANT, v. TEODOSIO, JUDGE, APPELLEE. [Cite as State ex rel. Gooden v. Teodosio, 128 Ohio St.3d 538, 2011-Ohio-1915.] Procedendo — Writ seeking order compelling judge to issue final, appealable order — Writ denied — Claimed defect in original sentence corrected in resentencing — Petitioner had adequate remedy for claimed improper enhancement of sentence by way of appeal from resentencing. (No. 2010-2224 — Submitted April 19, 2011 — Decided April 26, 2011.) APPEAL from the Court of Appeals for Summit County, No. 25570. __________________ Per Curiam. {¶ 1} We affirm the judgment of the court of appeals dismissing the petition of appellant, Joe Gooden, for a writ of procedendo to compel appellee, Summit County Court of Common Pleas Judge Thomas A. Teodosio, to issue a final, appealable order in his criminal case. {¶ 2} Although Gooden’s original sentence in 2007 may have been defective in the imposition of postrelease control, his 2009 sentence included the correct terms of postrelease control. The 2009 sentence thus constituted a final, appealable order. Cf. State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶ 32-37 (inmate entitled to writ of mandamus to compel judge to issue sentencing entry that included statutorily required mandatory term of postrelease control after judge denied motion to correct sentence). {¶ 3} Insofar as Gooden claims that appellee improperly enhanced his 2009 sentence based on Gooden’s violation of his 2007 postrelease control, he had an adequate remedy by way of appeal from the 2009 sentence to raise that  SUPREME COURT OF OHIO issue. See State ex rel. Cunningham v. Lindeman, 126 Ohio St.3d 481, 2010- Ohio-4388, 935 N.E.2d 393 (affirming dismissal of claim for writ of mandamus or procedendo to compel trial court judge to issue new sentencing entry because petitioner had an adequate remedy by appeal to raise claimed sentencing errors). Judgment affirmed. O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. __________________ Joe Gooden, pro se. Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee. ______________________ 2 

10 N.Y.3d 823 (2008) ELAINE PACHTER, Respondent, v. BERNARD HODES GROUP, INC., Appellant. Court of Appeals of the State of New York. Submitted March 31, 2008. Decided April 24, 2008. Motion by National Employment Lawyers Association/New York for leave to file a brief amicus curiae on consideration of the certified questions herein dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.23 [a] [1]).

Case: 19-10117 Document: 00515132113 Page: 1 Date Filed: 09/25/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 19-10117 Fifth Circuit FILED Summary Calendar September 25, 2019 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff-Appellee v. JULIO CESAR PACHECO-ASTRUDILLO, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 5:18-CR-78-1 Before WIENER, HAYNES, and COSTA, Circuit Judges. PER CURIAM: * Defendant-Appellant Julio Cesar Pacheco-Astrudillo appeals his 36- month, above-guidelines sentence of imprisonment following his guilty plea to being found in the United States following a previous deportation. Pacheco- Astrudillo argues that the 36-month sentence is substantively unreasonable because it is greater than necessary to achieve the sentencing goals of 18 * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 19-10117 Document: 00515132113 Page: 2 Date Filed: 09/25/2019 No. 19-10117 U.S.C. § 3553(a). Specifically, he contends that the district court gave undue weight to his more than 19-year-old criminal history. We review a district court’s non-guidelines sentence for abuse of discretion under the totality of the circumstances. See Gall v. United States, 522 U.S. 38, 51 (2007). The instant record reflects that the district court properly considered the § 3553(a) factors. At sentencing, the district court stated that it was imposing an upward variance to “adequately address the sentencing objectives of punishment and deterrence.” Specifically, the district court noted that Pacheco-Astrudillo had five prior convictions that received no criminal history points. The district court further noted that three of Pacheco- Astrudillo’s “convictions were alcohol-related, at least two of which were DWI convictions.” The district court also noted Pacheco-Astrudillo’s conviction for possession of cocaine, and that he had “a conviction for assault and battery with a deadly weapon in which [Pacheco-Astrudillo] shot another person.” Under the totality of the circumstances, the 36-month sentence is reasonable. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). Further, we have upheld similar upward variances. See id. at 349-50; United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008); United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005). Finally, Pacheco-Astrudillo’s challenge to 8 U.S.C. § 1326(b), which is grounded in Apprendi v. New Jersey, 530 U.S. 466 (2000), is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). AFFIRMED. 2 

266 F.Supp.2d 728 (2003) William L. SINGFIELD, Plaintiff, v. AKRON METROPOLITAN HOUSING, AUTHORITY, et al., Defendants. No. 5:02-CV-1706. United States District Court, N.D. Ohio, Eastern Division. May 20, 2003. *732 ORDER GWIN, District Judge. On March 10, 2003, Defendants Akron Metropolitan Housing Authority ("AMHA") and Anthony W. O'Leary ("O'Leary") moved this Court for summary judgment in the above captioned matter. Plaintiff William Singfield ("Singfield") opposes this motion. After considering the facts and applicable law, this *733 Court grants the defendants' motion for summary judgment. I. Facts Singfield, an African-American male, claims that Defendant AMHA violated Title VII of the Civil Rights Act of 1964 and Ohio Rev.Code Chapter 4112 by terminating him for unlawful racially motivated reasons. Singfield also claims AMHA violated Title VII by retaliating against him after he earlier complained about racially discriminatory treatment. Plaintiff Singfield further brings claim under 42 U.S.C. § 1983, and alleges that AMHA deprived him of his constitutional right to due process and equal protection. Finally, Singfield also claims that Anthony W. O'Leary, the executive director of AMHA, used his position to deny the plaintiff his constitutional right to due process and equal protection. The parties dispute the events that led to Singfield's termination. The defendants say AMHA fired Singfield because psychologists would not release Singfield to return to work after finding he had a personality disorder. The parties have, however, stipulated to the following facts. Singfield began working for AMHA as a regular, full-time employee on June 6, 1992. During his tenure at AMHA, Singfield moved up the ranks from a courier, to a janitor, to a painter, and finally to his last position as a maintenance worker. As a maintenance employee, AFSCME Local Union 2517 ("Union") represented Singfield. Although AMHA says it fired Singfield because no mental health provider released him to return to work, it says this followed a long history of improper outbursts at work. For example, in May 1994, AMHA suspended Singfield for three days. The defendants say they suspended Singfield because he engaged in a verbal confrontation with two tenants, Mr. & Mrs. Montgomery,[1] and with his supervisor Allan Thomas. Additionally, AMHA says it suspended Singfield after he failed to follow instructions given to him by Juanita Martin, a management aide. Singfield admits cursing at tenant Mrs. Montgomery, but claims she provoked him.[2] Singfield admits that he ignored an instruction from Martin to open the door for Mrs. Montgomery. However, Singfield argues he justifiably ignored the instruction, given the animosity between the Montgomery family and himself. Singfield denies that any confrontation between him and Thomas occurred during this incident. After another incident in August 1995, AMHA again suspended Singfield, this time for five days after he engaged in a *734 verbal altercation with co-worker, Shelia Fambro.[3] A tenant and her young child witnessed the incident. AMHA claims Singfield used profanity and provoked Fambro. Singfield admits the suspension occurred. Singfield admits he used profanity, but justifies his conduct, saying he used profanity only after Fambro cursed and yelled at him. Singfield points out that AMHA reduced Fambro's suspension to one (1) day. The defendants also say that in a 1998 work evaluation Singfield received an "Improvement Needed" citation in the area of "Relationships with Others." The defendants also claim Singfield received a "Weak" rating in the areas of "Conduct and Cooperation with Supervision" and "Conduction and Cooperation with Co-Workers" on the same evaluation. The defendants claim Singfield received the same "Improvement Needed" rating regarding his relationships with others in 1999. In that evaluation, Terry Foster, his supervisor, stated Singfield showed little "patience to hear other people out," and claimed this problem hurt his working performance. Reflecting further personality conflicts with his fellow employees and tenants, Executive Director O'Leary approached Singfield several times in 2000 to discuss his inability to get along with his supervisor, Terry Foster. The plaintiff does not directly deny that these events occurred. Rather, the plaintiff asserts that after the August 1995 incident the defendants did not have a "record of any disciplinary problems with Singfield for another seven years." On August 7, 2001, Singfield was involved in another incident involving a dispute with a supervisor. Michael Reinhart, Singfield's supervisor at that time, testified that he went to a vacant unit where Singfield was working. When he arrived at the unit, Reinhart says he asked Singfield what he had accomplished that day. Reinhart claims Singfield became very angry and accused Reinhart of being a racist. Reinhart says that he then told Singfield to finish the project. When he returned the next day, Reinhart says Singfield verbally abused and threatened him.[4] Singfield admits an incident occurred on August 8, 2001, however, he claims that Reinhart initiated it. Singfield says when Reinhart arrived at the unit, he was standing on the balcony drinking water. Singfield says he was taking a fifteen minute break, which AMHA allowed under the union contract. Singfield says he told Reinhart he was taking a break, but Reinhart never-the-less summoned him inside the unit. Singfield testified that he walked in the unit, bypassing where Reinhart stood and walked over to the kitchen window where his radio sat.[5] Singfield says *735 that Reinhart got in his face after they exchanged angry words over the radio. Reinhart allegedly told Singfield that he was going to call Alan Thomas, Reinhart's supervisor. The events that occurred after the verbal altercation between Reinhart and Singfield are uncontested. Thomas instructed Singfield to leave the premise until the human resources department contacted him. After Singfield left the premises, Reinhart found Singfield's key ring. The defendants claim there were six duplicate master keys on Singfield's key ring. The defendants say these duplicate master keys opened the doors to units that were outside Singfield's work area. Singfield does not deny that he possessed duplicate master keys on his key ring. However, Singfield claims AMHA issued these keys to him and did not require a signature for them. Singfield disputes the number of duplicate master keys found on his key ring, but never offers a definitive number to counter the defendants' number. The defendants claim AMHA has a policy prohibiting employees from duplicating master keys or carrying these masters keys home or outside the assigned work area for any reasons. The plaintiff challenges the defenses' assertion that he violated the master key policy. The plaintiff claims the master key policy prohibits employees from duplicating master keys but does not ban possession of duplicate master keys. Human Resources Director Christine Yuhasz set a meeting with Singfield for August 9, 2001.[6] Union president Eddie Davis, attended the meeting. Immediately before the meeting with Singfield, Yuhasz met with Reinhart and O'Leary. Reinhart told Yuhasz and O'Leary that he feared Singfield. Reinhart said that Singfield had previously told him that he once laid in the snow outside his former supervisor's house with a shotgun waiting to assassinate the supervisor. Allegedly, Singfield told Reinhart that he could not go through with the assassination because his hands were too cold and could not pull the trigger. Yuhasz then conducted the meeting with Singfield and Davis. The defendants say the meeting gave Singfield a chance to explain his version of events during the August 8, 2001 altercation. The defendants say that Singfield admitted the confrontation between he and Reinhart, but denied threatening Reinhart. The defendants also allege that Singfield said he knew nothing about the duplicate master keys found on his key ring. The plaintiff paints a different picture. Singfield denies the shotgun incident. Singfield says it was Reinhart who confided in him and told Singfield that he once got so angry with his supervisor that he laid in the bed of a pick-up truck with a shotgun and waited to shoot his prior supervisor. Singfield says that in an effort to show sympathy toward Reinhart, he told Reinhart he had gotten very angry with a prior supervisor more than twenty (20) years ago. Singfield says he told Reinhart that his employer terminated him without cause and the termination had come within days of his step-children's funeral, who died unexpectedly in a fire. Singfield says that he thought about doing something to hurt his supervisor, but decided *736 against it. Singfield explains that Reinhart took these statements and embellished upon them to create the story about Singfield planning to kill a supervisor. But, AMHA shows evidence that Singfield had earlier told Davis that he did lay in the snow with a shotgun waiting for his supervisor.[7] After the second meeting with Singfield on August 17, 2001, Yushasz says Terry Foster, a supervisor for AMHA, contacted her and told her several employees indicated that they were concerned about Singfield returning to work. Also, Yushasz said that Tom Spurlock, the union steward, told her several employees were concerned and frightened about Singfield's return to work. AMHA says that it decided to suspend Singfield for thirty (30) days starting August 22, 2001, based on the confrontation Singfield had with Reinhart and Singfield's possession of six (6) duplicate master keys. Under his suspension, AMHA required Singfield to obtain anger management counseling and required him to get an approval from the counselor for his return to work upon completing the counseling. The plaintiff disputes whether the wording of the suspension actually required "completing a counseling program," "obtaining a release for work," or "attending counseling for 30 days."[8] Singfield's suspension began August 22, 2001. He started counseling on September 17, 2001 at the Summit Psychological Associates, Inc. Singfield attended two assessment sessions with Sarah Seeley-Fellows, a licensed social worker. Seeley-Fellows found that Singfield refused to provide truthful answers about his family history concerning violence and criminal background. Singfield denies this, saying he refused to answer these questions because he believed his family and his family's criminal background were irrelevant to anger management. Seeley-Fellows decided to recommend that Singfield return to work without further counseling or assessments. Seeley-Fellows communicated her recommendation to Yuhasz. In response, Yuhasz raised concerns that Seeley-Fellows did not have enough information to make a complete assessment about Singfield's anger. The parties disagree about exactly what Yuhasz discussed with Seeley-Fellows. The plaintiff alleges Yuhasz told Seeley-Fellows, several lies to influence her decision on whether Singfield was fit to return to work. The defendants offer a different version of events.[9] No matter what they *737 said, Seeley-Fellows decided Singfield needed further assessment and referred Singfield to Dr. James Orlando for psychological testing. After two voluntary psychological tests and several counseling sessions with Dr. Frye, the psychologists diagnosed Singfield with Personality Disorder, Not Otherwise Specified. Dr. Frye sent a letter to AMHA dated November 7, 2001 stating, "...we believe that there continues to be a risk that his anger will lead to further, potentially explosive incidents." Dr. Frye continued, stating "I do not believe that he can safely return to work at this time." After AMHA received Dr. Frye's letter, Singfield terminated his counseling with Summit Psychological. Singfield and O'Leary discussed his decision to end counseling at Summit Psychological. Singfield told O'Leary he had lost confidence in their services and believed that Yuhasz had provided false information about him. Executive Director O'Leary told Singfield that Singfield must complete the anger management counseling and receive a release recommendation, before he could return to work. Singfield, thereafter, sought counseling from Gizelle Jones-Williams, a licensed social worker at Jewish Family Service. Singfield's attorney referred him to Jones-Williams. AMHA continued its investigation into Singfield's conduct while he obtained counseling. O'Leary discussed the matter with both in-house counsel and outside legal counsel. Yuhasz had several meetings with employees concerning statements they made about Singfield's behavior. The investigation uncovered several serious anger management related events that occurred outside the work place.[10] Near December 20, 2001, Social Worker Jones-Williams provided AMHA a treatment summary. Jones-Williams's summary indicated progress through counseling but did not give the opinion that Singfield could safely return to work. Despite repeated attempts by Singfield's counsel to get a work release giving the opinion that Singfield was able to safely return to work, Jones-Williams refused to provide it.[11] *738 When Singfield failed to obtain a medical opinion that he was fit to return to work, AMHA terminated Singfield's employment on January 25, 2002.[12] Singfield argues that AMHA unlawfully terminated him based on racially discriminatory reasons. Furthermore, Singfield believes AMHA and O'Leary violated his due process and equal protection rights. Finally, Singfield charges that AMHA fired him for retaliatory purposes after he filed a racial discrimination charge against AMHA on October 19, 2001. II. Legal Standard Summary judgment is appropriate where the evidence submitted shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the nonmoving party's case. Waters v. City of Morristown, 242 F.3d 353, 358 (6th Cir.2001). A fact is material if its resolution will affect the outcome of the lawsuit. Daugheribaugh v. City of Tiffin, 150 F.3d 594, 597 (6th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Once the moving party satisfies its burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue. Matsushita Elec. Indus, v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Showing that there is some existence of doubt is not sufficient for the nonmoving party merely as to the material facts. Id. In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party. National Enters., Inc. v. Smith, 114 F.3d 561, 563 (6th Cir.1997). Ultimately the Court must decide "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996) (internal quotations omitted). III. Racial Discrimination Claims Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (1994). In dispa *739 rate treatment claims, such as Singfield's, the employer allegedly treats some people less favorably than others because of their race, color, religion, sex, or national origin. To make out a claim of disparate treatment, the claimant must prove a discriminatory motive, although it can in some situations be inferred from differences in treatment. A plaintiff may establish a prima facie case under Title VII for racial discrimination by introducing direct evidence of discrimination or by using the McDonnell Douglas paradigm. Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir.1997), citing Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1248 (6th Cir.1995). The paradigm requires the plaintiff to show inferential and circumstantial evidence that a jury could use to draw an inference of discrimination. Id. When a plaintiff attempts to establish a prima facie case using inferential and circumstantial evidence, the plaintiff must show that he: (1) is a member of a protected group, (2) was subject to an adverse employment action, (3) was qualified for the position, and (4) he was treated differently than employees outside the protected class for the same or similar conduct. Talley, 61 F.3d at 1246, citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). To make the showing that he was treated differently, the plaintiff must "show that the `comparables' are similarlysituated in all respects." Toledo Hosp. at 582. In the Sixth Circuit, "the plaintiff must prove that all of the relevant aspects of his employment situation are `nearly identical' to those of the [male] employees who [s]he alleges were treated more favorably." Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir.1994). The plaintiffs has the burden of establishing these factors. Toledo Hosp. at 582. Singfield has also brought a race discrimination claim under Ohio Rev.Code Chapter 4112. Federal case law interpreting Title VII applies in determining whether employment practices have been discriminatory under Ohio Rev.Code Chapter 4112. Hollowell v. Society Bank & Trust, 78 Ohio App.3d 574, 581, 605 N.E.2d 954 (1992) (citations omitted). 1. Direct Evidence of Discrimination The plaintiff claims he shows direct evidence of discrimination. After carefully examining the plaintiffs evidence, this Court finds no direct evidence of discrimination. Specifically, the plaintiff alleges that Singfield "received the dirtiest and hardest assignments while white employees were allowed to lounge, play cards and read the newspaper." Furthermore, the plaintiff asserts that Singfield "was forced to drive a lawn mower, instead of a truck,"... "unlike white employees." Finally, the plaintiff argues Reinhart made, "racially derogatory remarks," to him. Singfield says while he was riding on his tractor Reinhart made the comment, "now all you need is to turn the lights on and wear a straw hat." First, Singfield provides no proof to support his allegation that he received dirtier and harder assignments than his white counterparts. Nor does Singfield provide any proof that he was forced to drive a tractor instead of a truck. A mere allegation without proof cannot serve as direct evidence. Secondly, the remarks that Singfield complains of, even if true, do not amount to direct evidence of racial discrimination. The Supreme Court pronounced that "simple teasing" or "offhand comments, and isolated incidents" do not amount to direct evidence of discrimination under Title VII. Fara v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), accord Hafford v. *740 Seidner, 183 F.3d 506, 512-12 (6th Cir. 1999). Singfield makes no allegation or offers any proof that these comments were anything more than simple teasing. Additionally, the comments concerning driving a tractor are race neutral. The plaintiff makes no showing how these comments are connected to race. For these reasons, the Court finds no direct evidence of discrimination. 2. Indirect Evidence of Discrimination, McDonnell-Douglas Paradigm This Court finds the plaintiff does not make a prima facie showing of racial discrimination claim under Title VII or the Ohio Rev.Code Chapter 4112 using the McDonnell Douglas paradigm. The plaintiff, as an African American, is a member of a protected class. The plaintiff was subject to an adverse employment action when AMHA terminated his employment. As to the third McDonnell Douglas prong, the defendants never contest whether the plaintiff was qualified for the position. However, the Court finds there could be a factual issue as to whether the plaintiff was qualified to work as a maintenance employee once the psychologist diagnosed him with personality disorder and refused to release him for continued employment. Never-the-less, the Court will assume the plaintiff meets prongs one through three. The Court will focus its analysis on prong four, the only prong contested by the defendants in their brief. (Def.'s Mem. Supp. Summ. J. at 13). The plaintiff fails to meet the fourth prong of the McDonnell Douglas test, which requires that he show that AMHA treated him differently than employees outside the protected class for the same or similar conduct. Under Mitchell, the Sixth Circuit held that sharing the same supervisor and being subject to the same standards are not sufficient to establish that a non-minority employee is similarly situated. See generally, Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). Singfield must show that the non-minority employees "have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Clayton v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir.2002) (holding that Caucasian employees who engaged in the same act as the plaintiff, but it did not result in injury to others, were not "similarly situated.") Singfield cannot show that AMHA treated him differently from similarly situated employees when they suspended him for having an altercation with his supervisor and possessing six duplicate master keys. The plaintiff argues that AMHA treated John Stock, a white employee different from him. Although Stock, is a non-minority employee, the Court finds that Stock was not; similarly situated to Singfield. Stock worked as a janitor not as a maintenance worker. Furthermore, AMHA suspended Stock for three (3) days for duplicating without authorization, one master key that accessed an area where he worked. AMHA suspended Singfield for possessing six duplicate master keys and for his altercation with his supervisor. Furthermore, the duplicate master keys that Singfield's possessed, granted access to areas outside the areas where Singfield worked. Additionally, Stock had no prior disciplinary record, whereas AMHA had twice previously been suspended Singfield for misbehavior. Furthermore, Stock did not have an altercation with a supervisor. Therefore, Singfield cannot show that he and Stock were similarly situated. Additionally, the plaintiff claims that AMHA treated Virgil Arnes, a white employee differently for similar offenses. Although Arnes is a non-minority employee, *741 this Court finds that Arnes and Singfield are not similarly situated. AMHA gave Arnes a written reprimand for leaving a master key in his assigned vehicle over-night. Arnes's reprimand occurred ten (10) years before Singfield's suspension. At the time of Arnes suspension, AMHA had a different master key policy. Also, a different management team reprimanded Arnes. AMHA disciplined Singfield under a new master key policy that became effective in 1996, about five years after Arnes's reprimand. Arnes merely left one master key in an assigned vehicle as opposed to carrying around six duplicate master keys on a personal key ring. Furthermore, Arnes was not involved in an altercation with his supervisor. For these reasons, the Court finds Arnes and Singfield were not similarly situated nor where they disciplined for similar behavior. Furthermore, the plaintiff alleges AMHA treated him differently than similarly situated non-minority employees when they terminated his employment for possessing six duplicate master keys and having an altercation with Reinhart. Responding, the Defendants say that they did not fire Singfield for violating the master key policy. Rather, they claim AMHA terminated Singfield because of anger management problems, problems reflected in previous outbursts, difficulties with supervisors and peers, and also shown by his inability to secure a work release saying he was fit for work. In support of AMHA's position, the defendants show evidence that Singfield made threats of violence toward tenants and employees, attempted acts of violence, and intimidation toward employees, managers, and tenants. In response, Singfield argues that white employees engaged in similar conduct but were not terminated. However, Singfield fails to prove that these white employees were similarly situated. For example, Singfield presents the affidavit of AMHA employee Anthony Turner who says at an unspecified time, during a four-year period, he observed a fight between maintenance employees Ronald Feinman and Dan Caporuscio. Turner claims that Bob Spring, a former AMHA supervisor, witnessed the incident. However, Spring no longer works with AMHA and AMHA has no record of the fight ever occurring. Assuming the fight did occur, one altercation could hardly be comparable to Singfield's record of verbal abuse and threatening behavior. Additionally, Singfield claims AMHA treated him differently than John Herrick. Herrick-allegedly made physical threats toward supervisor Pat Dolan during an AMHA Christmas party thirteen (13) years ago. Kevin Ray, an AMHA employee, discusses this event in an affidavit. However, Dolan himself testified that Herrick had never threatened him and he never had knowledge of this Christmas party threat. In fact, AHMA has no record that threat ever occurred. At that time, O'Leary, the Executive Director at the time of Singfield's discharge, did not hold that position. Furthermore, the plaintiff never asserts that Herrick worked as a maintenance employee. Even if Dolan's testimony that he had never been threatened is disregarded, this comparison fails because Herrick and Singfield were not similarly situated because any incident between Dolan and Herrick does not rise to the level of behavior in which Singfield allegedly engaged. Therefore, even if the threat occurred, Herrick and Singfield did not commit similar conduct. Finally, Singfield argues that other white employees committed more serious offenses, but, AMHA did not treat them as harshly. Singfield argues that AMHA only suspended employee Mark-Cook when he tested positive for marijuana usage. *742 Furthermore, Singfield argues that AMHA did not terminate an employee Rainy, when he lost his license due to a D.U.I, conviction. First, neither of these employees are similarly situated to Singfield. The behavior that they allegedly committed is not comparable to Singfield's alleged behavior. Secondly, the plaintiff does not show evidence that these employees were maintenance workers. For these reasons, the Court finds that the plaintiff fails to meet the fourth prong of the prima facie case for a race discrimination claim under Title VII and Ohio Rev.Code Chapter 4112. The Court grants the defendants' motion for summary judgment on these issues. 3. Legitimate Non-Discriminatory Reasons for Termination Although the Court grants the defendants judgment because Singfield fails to show evidence of a prima facie case, the Court goes on to consider whether Singfield shows that AMHA's explanation is pretextual. If a plaintiff meets the prima facie requirement for a race discrimination claim under Title VII, then the burden shifts to the defendant to establish legitimate non-discriminatory reasons for its employment actions. Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the defendant can articulate legitimate non-discriminatory reasons for the adverse employment action, then the burden shifts back to the employer to prove the stated reasons are pretexts for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-5, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Supreme Court says plaintiffs can show pretexts by showing the employer's proffered reasons are unworthy of belief, or by showing that a discriminatory motive more likely motivated the employer's action. Texas Dept. Comm. Affairs, 450 U.S. at 253-254, 101 S.Ct. 1089. The ultimate burden of persuasion rests with the plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). This Court has already found that the plaintiff failed to make a prima facie showing of racial discrimination. However, even if the plaintiff did meet the prima facie requirement, this Court finds that the defendant has presented numerous legitimate, non-discriniinatory reasons for terminating the plaintiff. These factors when taken together, provide a justification for terminating the plaintiff. Additionally, the Court finds that the plaintiff has failed to show that these reasons for the plaintiffs termination are pretexts for racial discrimination. The defendants argue that O'Leary decided to terminate Singfield after evaluating the history of three suspensions for altercations with coworkers, tenants, and supervisors; Singfield's inability to get along with several supervisors; several employees' expression of fear for their safety if Singfield returned to work; Singfield's statement to at least three AMHA employees that he attempted to assassinate his supervisor; and a licensed Ph.D. psychologist's recommendation that it was unsafe for Singfield to return to work. The defendants argue that all these incidents taken together create a legitimate non-discriminatory justification to terminate Singfield. The plaintiff responds by trying to dismantle each incident individually, spinning each in the best possible light for the plaintiff. However, the plaintiff fails to show these reasons for termination offered by the defendant are pretexts for racial discrimination. An employer is entitled to make a subjective judgment to discharge an employee for any non-discriminatory reason. See e.g., Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 70 *743 (6th Cir.1982). An employer's proffered non-discriminatory basis for its adverse employment action cannot be a pretext for discrimination if the employer honestly holds this belief. Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir.1998). To establish that it honestly held justified reasons for terminating an employee, a defendant must establish its reasonable reliance on the particular facts that were before it at the time it made that decision. Id. at 807. In deciding whether the employer reasonably relied upon facts, a court does not require that the decisional process used by the employer be optimal or that it left no stone unturned. Id., see also Snowden v. Proctor & Gamble Distributing Co., 14 Fed. Appx. 605 (6th Cir.2001). It is sufficient that the defendant made a reasonably informed and considered decision before taking an adverse employment action. Snowden, 14 Fed. Appx. at 609. The defendant has shown that it took ample care investigating the facts regarding Singfield's possible termination, and made the decision based on a reasonably held belief. The defendant has shown that O'Leary, the sole decision maker regarding Singfield's termination, met with both outside and in-house legal counsel, gathered information from numerous employees and supervisors who worked with Singfield, review his employment history, and sought a recommendation from a licensed psychologist. The plaintiff has offered no real persuasive evidence to show that these proffered reasons for termination were pretexts for racial discrimination. In fact, most of the employees, tenants, and supervisors Singfield had altercations or anger problems with were also African American. For these reasons, the Court finds that the defendants have offered legitimate non-discriminatory reasons for terminating Singfield. Additionally, the Court finds that the plaintiff has failed to show by a preponderance of the evidence that these reasons are pretexts for racial discrimination. IV. Retaliation Claim In addition, Title VII makes it unlawful for an employer "to discriminate against any of his employees or applicants... because he has opposed any practice, made an unlawful employment practice by this sub chapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub chapter." 42 U.S.C. § 2000e-3(a) (1994). In order to meet the prima facie standards for a retaliation claim, the plaintiff must establish that he: 1) engaged in activity protected by Title VII, 2) the exercise of his civil rights was known to the defendant, 3) the defendant subjected him to an adverse employment action, and 4) a causal connection exists between the protected activity and adverse employment action. Allen v. Mich. Dept. of Corrections, 165 F.3d 405, 412 (6th Cir.1999). To make out a claim of retaliation, the claimant must establish there was discrimination against an employee or applicant, and, second, the discrimination occurred because of the employee's opposition or participation conduct. This Court finds that the plaintiff has established factors one, two, and three of the prima facie case for a retaliation claim, but fails to meet the fourth prong. The defendants concede that the plaintiff engaged in protected activity when he filed his October 2001, racial discrimination charge with the OCRC and EEOC. The defendants also concede they knew about the plaintiffs racial discrimination filing. Finally, the defendants' acknowledge they subjected the plaintiff to an adverse employment action when AMHA terminated the plaintiff. However, the plaintiff has *744 failed to present any evidence that a causal connection exists between the discrimination charge and his termination. To meet the fourth prong of a prima facie claim for retaliation, the plaintiff must show, "a causal connection between filing ... [the] civil rights lawsuit" and the adverse employment action taken against him. Allen v. Michigan Dept. of Corrections, 165 F.3d 405, 413 (6th Cir. 1999). The burden of establishing a prima facie case in a retaliation case is not onerous, but easily met. See Avery, 104 F.3d at 861. However, the plaintiff needs to show more than "vague or generalized claims" of causation. Allen, 165 F.3d at 413. To show a causal connection, a plaintiff must produce sufficient evidence from which an inference can be drawn that employer took the adverse action because the plaintiff filed a discrimination charge. EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (citations omitted). In Allen, the Sixth Circuit held the fact that a plaintiff could not show "any specific dates or incidents in which he was denied a promotion or treated differently from identically situated employees," as dispositive in showing a causal connection between an adverse employment action and exercising a protected right. Id. at 413. The plaintiff argues that he has established causation because he has presented evidence to show that his termination was close in time to his filing of a discrimination charge. Singfield filed his discrimination charge in October 2001 and AMHA terminated him in January 2002. The plaintiff cites Allen, to support this argument. However, the plaintiff misrepresents the Sixth Circuit's holding in Allen. Actually, the Court held the fact that an "adverse action was taken shortly after the plaintiffs exercise of protected rights," was "relevant to causation ... although no one factor is dispositive ..." Id. (emphasis added). The plaintiff has failed to show any persuasive evidence other than close proximity in time to prove causation. This alone cannot establish causation. The plaintiff has failed to show any other evidence that could support an inference that his termination was based on a retaliation for filing a discrimination charge against AMHA. For these reasons, the Court grants summary judgment for the defendants on this issue. V. Due Process Claim Singfield claims that AMHA and Defendant O'Leary violated his constitutional right to due process. Singfield brings a cause of action under 42 U.S.C. § 1983. The right to due process of law is found in the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment in pertinent part prohibits States from depriving, "any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV, § 1. In making his claim that AMHA and O'Leary violated his constitutional right to due process, Singfield must show that he had a property right in continued employment with AMHA. Once Singfield can establish that he enjoyed a property right to continued employment at AMHA, then he must prove that AMHA denied him "due process of law" before terminating his property right. The essential principle behind procedural due process is that deprivation of life, liberty, or property "be preceded by notice and opportunity for hearing appropriate to the nature of the case." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), see also Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062, 1067 (6th Cir.1984). The Court finds that Defendants AMHA and O'Leaiy should receive summary *745 judgment on the plaintiffs due process claims. First, Singfield has failed to show that he had a property interest in continued employment as a maintenance employee at AMHA. In Loudermill, the Supreme Court recognized a property right in continued employment for "classified civil service employees." Loudermill, 470 U.S. at 538-39, 105 S.Ct. 1487. The Ohio statute that creates this property interest states that "classified civil service employees" are entitled to retain their positions, "during good behavior and efficient service," and cannot be dismissed, "except... for ... misfeasance, malfeasance, or nonfeasance in office."[13] Ohio Rev.Code § 124.34. Singfield, however, worked as an unclassified civil service employee. There are several differences between classified and unclassified civil service employees.[14] While in the position of maintenance employee, Singfield did not meet any of the classified civil service requirements.[15] The Sixth Circuit has held that unclassified civil service employees have no property right to continued employment. Vodila v. Clelland, 836 F.2d 231 (6th Cir.1987), accord Christophel v. Kukulinsky, 61 F.3d 479, 482 (6th Cir.1995). Singfield makes two arguments in support of his assertion that he possessed a property interest in his continued employment with AMHA. Singfield argues that he received a property right to continued employment through the language in the AMHA Employee Handbook and the contract AMHA entered into with the union. Second, Singfield argues that he obtained an implied property right in continued employment in exchange for seeking anger management from the terms of his suspension with AHMA. The plaintiff cites, Ventetuolo v. Burke, 470 F.Supp. 887 (D.R.I.1978), to support his second argument. These arguments, however, do not persuade the Court. First, the AMHA Employee Handbook and union contract say that employees will not be terminated without cause and that a structured process will usually precede any employee termination. Assuming that the plaintiff obtained a right to due process from his union contract, the defendants satisfied all of the due process requirements under Loudermill. In discussing what process is required, the Supreme Court has said that the plaintiff should be given notice of the *746 charges against him, an explanation of the employer's evidence, and a chance to present his side of the story. Loudermill, 470 U.S. at 532, 105 S.Ct. 1487. The notice and pre-termination hearing serve to ensure, "... there are reasonable grounds to believe that the charges against the employees are true and support the proposed action." Duchesne v. Williams, 849 F.2d 1004, 1007 (6th Cir.1988). Therefore, the pre-termination hearing does not require full evidentiary, adjudicatory hearing, which is the primary function of the posttermination hearing. Id. at 1006-07. AMHA gave Singfield notice of the charges against him and he had an opportunity to be heard. Yushaz met with Singfield and Davis twice. Yushaz gave Singfield an opportunity to address allegations pending against him. Additionally, his suspension letter, though not conclusive, is some evidence of notice. The Sixth Circuit has held, when a person faces charges that a reasonable person would recognize as jeopardizing an employment future, extra pre-termination due process obligations are not placed on the employer. Buckner v. City of Highland Park, 901 F.2d 491 (6th Cir.1990). This Court finds that even if the plaintiff had a right to a pre-termination hearing, the defendants met all due process obligations. Finally, the defendants gave the plaintiff additional opportunities to be heard and to explain his side regarding the charges against him. The defendants held a Step 3 pre-termination hearing on February 13, 2002. Singfield received notice of this Step 3 grievance hearing, but did not attend. AMHA conducted the hearing in his absence. Furthermore, AMHA, under union rules, subsequently submitted the matter to arbitration on March 26-27, 2003. Singfield testified at this arbitration hearing and was represented by legal counsel. The arbitrator heard arguments concerning Singfield's grievances from his suspension and termination. The process due in any given circumstance entails a balancing of the governmental and private interests that are affected. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) Under Mathews, the specific dictates of due process generally require consideration of three distinct factors: (1) "the private interest that will be affected by the official action"; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards"; and (3) "the Government's interest, including the [governmental] function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id. at 335, 96 S.Ct. 893 (citing Goldberg v. Kelly, 397 U.S. 254, 263-271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). "Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Instead, "[d]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) Flexibility in treatment is a necessary element of due process because "not all situations calling for procedural safeguards call for the same kind of procedure." Ibid. In Gilbert v. Homar, 520 U.S. 924, 117 S.Ct, 1807, 138 L.Ed.2d 120 (1997), the Court discussed the requirement for notice before a suspension without pay followed by a post suspension hearing: "[W]e specifically noted that we have rejected the proposition that [due process] always requires *747 the State to provide a hearing prior to the initial deprivation of property." citing Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In balancing the interest involved, the Court found a pre-termination suspension without pay did not require a full hearing, Id. at 931,117 S.Ct. 1807. In Buckner, the employer offered the employee an opportunity to comment on the allegations against him in front of a union representative, however the employee refused. 901 F.2d 491. The employer terminated the employee and then held a post-termination hearing pursuant to the union's collective bargaining agreement. Id, The employee later claimed his due process rights had been violated. Id. The Sixth Circuit disagreed, finding that the employee's due process rights were met given his opportunity to speak in front of the union representative and particularly in light of the elaborate post-termination hearing. Id. The Sixth Circuit held that the critical element to the Loudermill requirements is the right to be heard and respond to the employer's evidence. Id. The employer need not tell the employee he will be fired unless he presents evidence contrary to the employer's charges against him. Id. Here, the defendants gave the plaintiff at least three opportunities to be heard and to address charges against him. Additionally, the defendants conducted an elaborate post-termination hearing where the counsel represented the plaintiff before a neutral arbitrator. Under the Supreme Court's holding in Gilbert, and the Sixth Circuit's reasoning in Buckner, this Court finds that Singfield's due process right were met. Second, the Court finds no authority to support the plaintiffs second argument. In fact Ventetuolo, which is not binding on this Court, deals with pre-employment promises rather than an alleged promise to continue employment if certain terms of a suspension are met. Ventetuolo, 470 F.Supp. at 892. Even so, the Ventetuolo court found that these pre-employment promises did not amount to a property right for continued employment. Id. at 893. Additionally, the plaintiff makes another argument that the defendants violated his constitutional right to due process with respect to liberty and property, exclusive of race. The plaintiff contends it was a denial of due process to terminate Singfield based on rumors and lies. For the same reasons incorporated above, this argument fails to persuade. For these reasons, the Court grants summary judgment for AMHA and Defendant O'Leary on the due process claims. VI. Equal Protection Claim Singfield has claimed that AMHA and O'Leary violated his constitutional right to equal protection. Singfield finds a cause of action under 42 U.S.C. § 1983. The equal protection clause of the Fourteenth Amendment provides that no State shall deny to any person within its jurisdiction the equal protection of the laws. See U.S. Const. Amend. XIV, § 1. To state a claim under the equal protection clause of the Fourteenth Amendment through § 1983, a plaintiff alleging discrimination must allege that a state actor intentionally discriminated against him because of his membership in a protected class. Henry v. Metropolitan Sewer Dist, 922 F.2d 332, 341 (6th Cir.1990). A claim under the equal protection clause requires a plaintiff to prove the same prima facie elements as a disparate treatment claim under Title VII. Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir.1988). The plaintiff has failed to put forth any new arguments for his equal protection claims. Rather, he relies on the reasoning of his Title VII claims to carry over to the equal *748 protection arguments. Therefore, the Court grants summary judgment for the defendants on the equal protection claims for the same reasons it grants summary judgment on the Title VII claims. VII. Constitutional Claims Against O'Leary This Court finds that both the due process and equal protection claims against O'Leary must fail. However, even if the defendants were not entitled to summary judgment, Defendant O'Leary is entitled to qualified immunity from civil suits for damages on these claims. It is well settled that government officials who perform discretionary functions are entitled to qualified immunity from civil suits for damages arising out of the performance of their official duties unless their alleged conduct violated clearly established constitutional rights of which a reasonable person would have known. Adams v. Metiva, 31 F.3d 375, 386 (6th Cir.1994). The Supreme Court has held that qualified immunity protects, "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). In Malley, the Supreme Court held that a police officer who "reasonably believed" probable cause was present could not be held liable for damages for an equal protection claim. Id. at 344-45, 106 S.Ct. 1092. Given the laundry list of circumstances involving Singfield's confrontations and alleged assassination attempt combined with the psychologist's refusal to clear him for work, its clear that O'Leary had a basis for a reasonable belief Singfield's termination was justified. The plaintiff has failed to present any evidence of intentional discrimination or malice. Therefore, O'Leary is entitled to qualified immunity from liability for both the due process and equal protection claims. VIII. Conclusion For these reasons the Court grants summary judgment for the defendants. The plaintiffs claims are hereby dismissed. IT IS SO ORDERED. ORDER On March 10, 2003, Defendants Akron Metropolitan Housing Authority ("AMHA") and Anthony W. O'Leary ("O'Leary") moved this Court for summary judgment in the above captioned matter. Plaintiff William Singfield ("Singfield") opposes this motion. After considering the facts and applicable law, this + Court grants the defendants' motion for summary judgment. This Court has issued a Memorandum Order in the above captioned matter. Accordingly, this action is terminated under Fed.R.Civ.P. 58. IT IS SO ORDERED. NOTES [1] The Defendants say that two witnesses observed Singfield use loud, abusive, and profane language toward tenant Sandra Montgomery, after she walked across a floor he had just cleaned. Specifically, Singfield allegedly called Mrs. Montgomery a "bitch" and allegedly told her to "get her black ass off the floor." The Defendants also contend Singfield threatened Montgomery's son and called him a "bastard." The defendants say this incident led to a verbal altercation between Singfield and Mr. Montgomery later that month. The defendants say Singfield again used loud and abusive behavior toward Mr. Montgomery. Juanita Martin broke-up the incident. [2] Singfield claims Mrs. Montgomery, who is married, approached him about having a sexual affair. Singfield alleges that he rejected the sexual advance and reported Mrs. Montgomery's behavior to her husband. Singfield claims on the day in question, Mrs. Montgomery maliciously walked across a freshly waxed floor after repeated requests not to do so. Singfield also claims Mrs. Montgomery often asked her five year old son to kick Singfield to get his attention. Singfield denies he initiated the altercation between he and Mr. Montgomery. Singfield says Mr. Montgomery was the aggressor who stood in his face in a threatening manner. [3] Fambro is an African American employee who was painting a vacant unit when the altercation occurred. [4] Reinhart says Singfield was standing outside the unit when he arrived. Reinhart requested Singfield to come inside and Singfield replied that he could hear Reinhart from where he stood. After Reinhart asked Singfield to come inside a few more times, Singfield complied. Singfield allegedly walked over to his radio and turned the volume up. Reinhart says he told Singfield he had no intention of shouting over him and unplugged the radio. Singfield allegedly became angry and moved about one inch from Reinhart's face and told him "he'd be sorry" if he touched Singfield's personal property again. Reinhart says he was frightened by Singfield's behavior. [5] Singfield says that Reinhart became angry after he walked over to the radio and "snatched" the cord out of the wall. Singfield says that he told Reinhart that his radio was not AMHA property and re-plugged the cord in the wall. Thereafter, Singfield claims Reinhart again "snatched" the cord from the wall, and walked within one inch of Singfield's face pointing his finger in an aggressive manner. [6] Yushaz held a second meeting with Singfield, Reinhart, and Davis on August 17, 2001. At that meeting, Yushaz gave Singfield a chance to comment on the allegation that he laid in the snow with a shotgun waiting to kill his supervisor. Singfeild denied the allegation. [7] At Davis's deposition he testified (p. 56 & 78) Tersigni (Defense Counsel): What happed after this meeting, this August 9th meeting? Davis. I believe Les (William Singfield) was suspended... . I'm not sure whether he did it or not, but he said something about lying down in the snow and waiting on the supervisor to come out, but he said that he— he either thought better of it or if he did— his hands got so cold that he changed his mind or something like that. Q. Laying in the snow with a gun? A. Yeah Q. All right. And that's what Les told you? A. Yeah. [8] The text from the suspension letter read: It is expected that you will participate in some type of treatment for anger management while serving your suspension. You will be required to provide proof of treatment in order to be permitted to return to work, and as a condition of employment. If the professional who helps you manage your anger feels that it will take longer than thirty days, your suspension will be extended until such time as he/she recommends your return to work. [9] Singfield argues that Yushasz told Seeley-Fellows several lies to induce her into not recommending Singfield for work release. These alleged lies include telling Seeley-Fellows that Singfield: 1) had only been suspended for two weeks, 2) had been escorted from AMHA on the day he was suspended by armed Akron policemen, 3) several co-workers were afraid of Singfield, 4) Singfield tried to kill another employee, 5) Singfield's brother killed his father (Yushasz denies ever making this statement). [10] Singfield allegedly told three employees, Reinhart, Spurlock, and Davis that he laid in the snow outside his supervisor's home and waited to kill him, but was unable to do it because his hands were too cold to pull the trigger. Singfield allegedly told John Morris that the supervisor he had tried to kill was Allan Thomas. Terry Foster reported that Singfield threatened to "punch someone in the jaw," during an AMHA team meeting. Garrett Williams reported that while Singfield was living at AMHA housing, he got into an argument with another tenant and showed her a gun in his apartment as an implied threat. A police report filed against Singfield alleged that he threatened his mother's fiance after her death saying, "you killed my mother and I will not rest until you are dead." A police report filed against Singfield alleged that he verbally abused a teacher at his son's school yelling at her and calling her a "fucking bitch." Several employees expressed fear about Singfield's return to work and asked if AMHA would provide bullet proof vests for employees when Singfield returned. [11] At Jones-Williams's deposition, she testified (p. 73 & 82-83): Tersigni (Counsel for the Defendants): I notice in this letter you don't say that Mr. Singfield is able to return to work. A. That's correct. Q. Why does your letter not state that? A. Because I do not— I do not make that statement about whether a client should or should not return to work. Q. You never make that statement? A. No, I don't. Q. Why is that? A. Because you can't clearly behavior is very hard to clearly state that someone is or is not going to do something while they're at work, so I just do not respond to that. I give them my assessment and I allow them to make the determination as to whether they should return to work or not. . . . . . Q. do you recall— okay. At what point do you recall talking to Mr. Gilbert about giving Singfield a release to return to work. A. It looks like on January 17, I explained my position that I will not write him a return-to-work. That's what it looks like. Q. Did Gilbert expressly state that that's what he wanted you to provide, a returnto-work? A. He said that the EEOC officer needed yeah, that he needed this return-to-work. Q. And your position was what, what you've previously explained to me? A. Yes, that I would not write that. [12] AMHA says the following factors played a role in deciding to terminate Singfield's employment: employee safety concerns, the disruption caused by Singfield in the workplace, and the lack of a return to work recommendation after four months on suspension. [13] The relevant portion of § 124.34 provides that no classified civil servant may be removed except "for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the director of administrative services or the commission, or any other failure of good behavior, or any acts of misfeasance, malfeasance, or nonfeasance in office." [14] (1) Applicants for classified positions are employed from eligibility lists and are required to demonstrate their fitness for employment through competitive examination or providing evidence that they satisfy specific requirements. Christophel v. Kukulinsky, 61 F.3d 479, 482 (6th Cir.1995).(2) Classified civil servants have tenure during "good behavior and efficient service," and can be discharged only for cause as set forth in Ohio Rev.Code § 124.34, and have displacement or "bumping" rights in the event of job abolishment. See Deryck v. Akron City School Dist., 633 F.Supp. 1180, 1182 (N.D.Ohio 1986), aff'd, 820 F.2d 405, 1987 WL 37610 (6th Cir. 1987).(3) A classified civil servant has the right to appeal a layoff to State Personnel Board of Review within ten days after receipt of the notice of layoff. Ohio Rev.Code § 124.328. [15] AMHA did not hire Singfield through an eligibility list. Singfield did not take a prehire competitive exam. As a maintenance employee, Singfield did not have the right to displacement and could not appeal a layoff decision to the State Personnel Board of Review.

701 F.Supp.2d 1171 (2010) Erick T. MOORE, Plaintiff, v. John E. POTTER, Postmaster General, Defendant. No. 08-CV-1007-BR. United States District Court, D. Oregon, Portland Division. March 29, 2010. *1175 Elizabeth Farrell Oberlin, Hillsboro, OR, for Plaintiff. Dwight C. Holton, United States Attorney, Katherine C. Lorenz, Assistant United States Attorney, Portland, OR, for Defendant. OPINION AND ORDER BROWN, District Judge. This matter comes before the Court on Defendant John E. Potter's Motion (# 27) for Summary Judgment. For the reasons that follow, the Court GRANTS Defendant's Motion (#27) for Summary Judgment in its entirety and DISMISSES this matter with prejudice. FACTUAL BACKGROUND The following facts are undisputed or, if disputed, are viewed in the light most favorable to Plaintiff. Plaintiff Erick T. Moore is an African-American resident of the State of Oregon who began working for the United States Postal Service (USPS) in 1993 and at all relevant times remained a USPS employee. Defendant John E. Potter is the Postmaster General of the USPS. In 2005 Plaintiff attended a roundtable discussion held by USPS and the Western Regional Vice President of USPS, Sylvester Black, to discuss complaints of race discrimination. Portland District Manager Dallas Keck, Portland Postmaster Shawneen Betha, and management-level employees Kim Anderson and Beverly Spina-Denson also attended the roundtable.[1] Plaintiff contends the Portland District has a history of race discrimination that led to the roundtable discussion at which Plaintiff; Harlan Henry, another African-American postal worker; and others complained about race discrimination. Between September 2006 and April 2007, USPS offered Plaintiff multiple management-training opportunities. In September 2006 Plaintiff was enrolled in the Associate Supervisor's Training Program (ASP), which is a 16-week program designed to train employees to perform supervisory duties. Management candidates begin ASP with a two-week, classroom-based training that culminates in written examinations. Plaintiff failed his written tests and did not advance to the on-site training. USPS subsequently assigned Plaintiff as a temporary supervisor (known as a 204-b Supervisor) for additional training to accommodate Plaintiff's stated preference for hands-on training. Plaintiff attended training at the Creston and Cherry *1176 Blossom Stations between October and December 2006.' In January 2007 Plaintiff was assigned to his second ASP. Plaintiff began the classroom-based portion of his ASP assignment at the Park Rose Station, which was close to his home. Plaintiff passed his written tests, and Karen Sharp, the ASP Coordinator, assigned Plaintiff to finish the bulk of the program at the Oak Grove Station 19.5 miles from Plaintiff's home. Between February 12 and March 30, 2007, Plaintiff's ASP trainer, Shelley Lifto, completed five On-Site Instruction Reviews (OSIRs) of Plaintiff, which entails assignment of numerical scores between 1 and 4 for performance in 13 categories and narrative feedback on the trainee's performance. According to the evaluations, Plaintiff did not satisfactorily perform a number of tasks assigned to him, was unprepared for meetings, and was tardy to certain meetings and shifts. Plaintiff acknowledged at his deposition that the information in his first two OSIR evaluations for the weeks of February 12 through February 23, 2007, is accurate. Plaintiff, however, contends the third, fourth, and fifth OSIRs are inaccurate in that he did not meet expectations because he did not receive adequate training from Lifto and his Training Coach, Anthony Spina-Denson, who was also the manager of the Oak Grove Station. Plaintiff attested he made multiple requests for additional training with respect to areas in which he needed to improve as reflected in his OSIRs, but he was not given that additional training. Plaintiff complained to Keck and Charles Collins, Diversity Coordinator, that he was being treated "differently" and "unfairly" by Lifto and Spina-Denson during the ASP. Plaintiff, however, did not expressly assert racial discrimination. During Plaintiff's participation in the ASP at the Oak Grove Station, Lifto and Spina-Denson made the following statements on which Plaintiff relies to support his claims: (1) Spina-Denson told Plaintiff in one of their first meetings that he didn't have to pass Plaintiff; (2) Lifto told Plaintiff that he would have to "kiss a little butt" in order to pass the program; (3) in response to Plaintiff questioning Spina-Denson's mail-counting method, Spina-Denson told Plaintiff that he was "messing with [Spina-Denson's] money"; and (4) in response to questioning by Plaintiff, Spina-Denson put his hand to his head and stated, "You just ask too many questions." Plaintiff cites his "belief" that there was a clear lack of upward mobility for African Americans in the Portland District; that Spina-Denson did not want Plaintiff to have the same advancement opportunities as Spina-Denson; that "the Postal Service is analogous to a plantation with privileged African-American employees who keep other African-Americans from encroaching on their positions; and that five members of management [Douglas Batchelor, Human Resources; Keck; Beverly Spina-Denson; Kim Anderson; and Shawneen Betha, Portland Postmaster] conspired against him to ensure he failed the ASP." Defendant, in turn, provides numerous emails and correspondence from Plaintiff's ASP Trainer, Coach, and Coordinator documenting their concerns about Plaintiff's progress and performance in the ASP. Defendant provides an email from USPS HR Specialist and ASP Coordinator Karen Sharp in which she responded to Plaintiff's complaints about his third OSIR evaluation and suggested six specific additional practices to help him improve his evaluation scores. Defendant also provides emails from Lifto to Spina-Denson and to Betha detailing additional mistakes made by Plaintiff and areas that needed improvement. Spina-Denson also sent emails to Lifto regarding Plaintiff's tardiness, *1177 unpreparedness, and failure to follow instructions. Plaintiff was removed from the ASP on April 4, 2007, by the ASP Advisory Board on the stated ground that he was not making the necessary progress to justify his continued participation in the program. PROCEDURAL BACKGROUND Plaintiff filed a formal complaint of race discrimination with the USPS Equal Employment Opportunity Department. That case was closed on December 21, 2004. Plaintiff does not contend his first USPS EEO complaint was the basis for any discrimination or retaliation by Defendant. On July 11, 2007, Plaintiff filed a second formal complaint with the USPS EEO alleging race discrimination and retaliation. Plaintiff filed his Complaint in this Court on August 27, 2008, seeking relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5, et seq., for unlawful race discrimination based on disparate treatment and hostile work environment and for retaliation for engaging in protected activity. Defendant filed his Answer on December 1, 2008. The Court heard oral argument on Defendant's Motion on January 5, 2010, and requested the parties to file supplemental briefs. On February 1, 2010, the Court took the Motion under advisement. STANDARDS I. Summary Judgment. Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings to show there is a genuine issue of material fact. Id. An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Id. "Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues." Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004) (citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594 (9th Cir.1982)). A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir.1990). When the nonmoving party's claims are factually implausible, that party must "come forward with more persuasive evidence than otherwise would be necessary." Wong v. Regents of Univ. of Cal., 379 F.3d 1097 (9th Cir.2004), as amended by 410 F.3d 1052, 1055 (9th Cir.2005) (citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir.1998)). The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir.2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id. "[W]e require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can be resolved through a searching inquiry-one that is most appropriately conducted by the fact-finder, upon a full *1178 record." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir.) (citations omitted), cert. denied, 519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996). II. Title VII. It is unlawful under Title VII for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1). When a plaintiff establishes a prima facie case of discrimination, it creates a presumption "that the plaintiff's employer undertook the challenged employment action because of the plaintiff's race." (Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 § 9th Cir.2006). To rebut the presumption, the defendant "must produce admissible evidence showing that the defendant undertook the challenged employment action for a `legitimate, nondiscriminatory reason.'" Id. (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant produces that evidence, "the presumption of discrimination `drops out of the picture' and the plaintiff may defeat summary judgment by satisfying the usual standard of proof required in civil cases under Fed.R.Civ.P. 56(c)." Cornwell, 439 F.3d at 1028 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Thus, In the context of employment discrimination law under Title VII, summary judgment is not appropriate if, based on the evidence in the record, a reasonable jury could conclude by a preponderance of the evidence that the defendant undertook the challenged employment action because of the plaintiff's race. Cornwell, 439 F.3d at 1028 (citing Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)). To meet the standard of proof required by Rule 56(c), a plaintiff may offer direct or circumstantial evidence "`that a discriminatory reason more likely motivated the employer' to make the challenged employment decision." Cornwell, 439 F.3d at 1028 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Alternatively, a plaintiff may offer evidence "that the employer's proffered explanation is unworthy of credence." Cornwell, 439 F.3d at 1028 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089). In other words, a plaintiff may defeat a defendant's motion for summary judgment "by offering proof that the employer's legitimate, nondiscriminatory reason is actually a pretext for racial discrimination." Cornwell, 439 F.3d at 1028 (citing McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir.2004)). A plaintiff, however, "may not defeat a defendant's motion for summary judgment merely by denying the credibility of the defendant's proffered reason for the challenged employment action." Cornwell, 439 F.3d at 1028 n. 6 (citing Wallis, 26 F.3d at 890, and Schuler v. Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th Cir.1986)). In addition, a plaintiff cannot establish a genuine issue of material fact exists "by relying solely on the plaintiff's subjective belief that the challenged employment action was unnecessary or unwarranted." Cornwell, 439 F.3d at 1028, n. 6 (citing Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir.1996)) (despite the plaintiff's claims that she had performed her job well, "an employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact"). DISCUSSION Defendant moves for summary judgment on the following grounds: (1) Plaintiff *1179 has not met his burden to establish a prima facie case of race discrimination under Title VII on the basis of either a hostile work environment or disparate treatment; (2) even if Plaintiff established a prima facie case with respect to race discrimination, Plaintiff has not met his burden to show Defendant's legitimate, nondiscriminatory bases for removing Plaintiff from the ASP were merely pretextual; (3) Plaintiff has not met his burden to establish a prima facie case of retaliation for engaging in protected activity; and (4) even if Plaintiff establishes a prima facie case with respect to his claim of retaliation, Plaintiff has not met his burden to show Defendant's legitimate, nondiscriminatory bases for removing Plaintiff from the ASP were merely pretextual. I. Race Discrimination. Defendant contends Plaintiff has not provided sufficient evidence to establish a prima facie case of race discrimination under Title VII on the basis of either a hostile work environment or disparate treatment. In the alternative, Defendant contends Plaintiff has not met his burden to show that Defendant's legitimate, nondiscriminatory bases for removing Plaintiff from the ASP were merely pretextual. A. Hostile Work Environment. Plaintiff contends Defendant subjected Plaintiff to a hostile work environment during the approximately five weeks that he received on-site training in the ASP under Lifto and Spina-Denson at the Oak Grove Station. To establish a prima facie case of race discrimination under Title VII based on a hostile work environment, a plaintiff must establish (1) he was "subjected to verbal or physical conduct" because of his race, (2) "the conduct was unwelcome," and (3) "the conduct was sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and create an abusive work environment." Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir.2003) (quoting Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir.2002)). Title VII does not constitute a "general civility code." Manatt, 339 F.3d at 798 (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275). The Supreme Court has concluded a hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult. Faragher v. Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'" Id. (internal citation omitted). See also Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir.1988) (court held no hostile work environment when "off-color" jokes were told in workplace). A plaintiff must show "the work environment was both subjectively and objectively hostile." McGinest, 360 F.3d at 1113-14. To determine objective hostility, courts consider the "frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 1114 (quoting Nichols v. Azteca Rest. Enter., 256 F.3d 864, 872 (9th Cir.2001)). As noted, the verbal conduct Plaintiff identifies as creating a hostile work environment consists of four statements: (1) Spina-Denson told Plaintiff that he did not have to pass Plaintiff; (2) Lifto told Plaintiff that he would have to "kiss a little butt" to pass the program; (3) in response to Plaintiff questioning Spina-Denson's *1180 mail-counting method, Spina-Denson told Plaintiff he was "messing with [Spina-Denson's] money"; and (4) in response to questioning by Plaintiff, Spina-Denson put his hand to his head and stated, "You just ask too many questions." Plaintiff testified at his deposition that these were the only comments made by any USPS employees that created the alleged hostile work environment. Defendant contends these statements are neither racial in nature nor hostile. Moreover, Defendant contends these comments are "occasional, isolated, sporadic or trivial" as opposed to severe and pervasive. See Manatt, 339 F.3d at 798. Defendant notes Plaintiff admitted at his deposition that these four comments were not racial on their face. Plaintiff also admitted the four comments, although personally hurtful, did not interfere with his performance in the workplace, which undermines Plaintiff's assertion that these statements altered the conditions of his employment. See id. Although the comments by Spina-Denson and Lifto, when viewed in the light most favorable to Plaintiff, may have seemed aggressive, insulting, or subjectively hurtful to Plaintiff, they do not rise to the level of creating an objectively hostile work environment. Viewed objectively, the first and third comments cited by Plaintiff appear to be true based on this record: Participation in the ASP did not guarantee trainees a management position, and management compensation is tied, in part, to the proper reporting of mail volumes. In addition, the Court notes these comments were sporadic and isolated, and none were repeated in a harassing manner. Moreover, the statements were not racial in nature even when considered from Plaintiff's perspective. Plaintiff testified at his deposition that Lifto's statement that Plaintiff would have to "kiss a little butt" implied he would have to supplicate in some manner to white management. It is undisputed, however, that Plaintiff had both white and black managers (the record reflects Lifto is Caucasian, Spina-Denson is mixed-heritage Caucasian and African-American, Dallas Keck is Caucasian, and Shawneen Betha is African-American). Without more, Lifto's statement does not reflect racial animus or hostility, and Plaintiff conceded at his deposition that he is not asserting Lifto discriminated against him based on his race. In any event, the Court concludes as a matter of law that these statements by Lifto and Spina-Denson were neither so severe or pervasive as to alter the conditions of Plaintiff's employment. See, e.g., Vasquez v. County of Los Angeles, 307 F.3d 884, 893 (9th Cir.2002) (no hostile work environment when the employee was told he had "a typical Hispanic macho attitude," he should work in the field because "Hispanics do good in the field," and he was yelled at in front of others); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1111 (9th Cir.2000) (no hostile work environment when a supervisor referred to females as "castrating bitches," "Madonnas," or "Regina" in front of the plaintiff on several occasions and directly called the plaintiff "Medea"); Manatt, 339 F.3d at 798-99 (racially charged but sporadic or isolated behavior such as calling someone a "China man" and pulling eyes back to mock the appearance of Asians as insufficient to create a hostile work environment). Compare McGinest, 360 F.3d at 1114-15 (hostile work environment existed when the plaintiff's supervisors failed to maintain his automobile because of his race causing him to be involved in a serious auto accident and, in addition, subjected him to extreme racial insults, including a management-level employee calling him a "stupid nigger"); Nichols v. Azteca Rest. Enters., 256 F.3d 864, 872-73 (9th Cir.2001)(hostile work environment existed *1181 when a male employee was called "faggot" and "fucking female whore" by co-workers and supervisors at least once a week and often several times per day). On this record, the Court concludes Plaintiff has not satisfied his burden to establish a prima facie case that the statements by Lifto and Spina-Denson created a racially hostile work environment. B. Disparate Treatment. Plaintiff also contends Defendant removed him from the ASP because of his race and treated him differently than similarly situated employees who were not members of his protected class. Specifically, Plaintiff alleges he was treated differently during the ASP on the basis of his race as evidenced by his low evaluation scores and a lack of training. To support his claim, Plaintiff provides the Declaration of Harlan Henry, another African-American USPS employee, who attests Spina-Denson treated Henry and other African-American employees with much more scrutiny than Henry witnessed Spina-Denson treating Caucasian USPS employees. A person suffers disparate treatment in his employment "`when he or she is singled out and treated less favorably than others similarly situated on account of race.'" Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir.2006)(quoting Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir.1988)). To establish a prima facie case of discrimination under Title VII, a plaintiff must offer proof [that]: (1)... the plaintiff belongs to a class of persons protected by Title VII; (2) ... the plaintiff performed his or her job satisfactorily; (3) ... the plaintiff suffered an adverse employment action; and (4) ... the plaintiff's employer treated the plaintiff differently than a similarly situated employee who does not belong to the same protected class as the plaintiff. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Defendant does not dispute Plaintiff is African-American, a class protected under Title VII, nor that terminating Plaintiff's involvement in the ASP was an adverse employment action.[2] Defendant, however, contends Plaintiff has not made a prima facie showing of element two (that Plaintiff performed his job satisfactorily) or element four (that Defendant treated Plaintiff differently than a similarly situated employee who is not in the same protected class as Plaintiff). In the alternative, Defendant contends he has provided legitimate, nondiscriminatory bases for removing Plaintiff from the ASP, and Plaintiff has not met his burden to show those reasons were pretextual. 1. Satisfactory Job Performance. Defendant contends he removed Plaintiff from the ASP for legitimate, nondiscriminatory reasons as reflected in the OSIR evaluations and in correspondence between Lifto, Spina-Denson, and Sharp. As noted, Plaintiff does not dispute the accuracy *1182 of the first two OSIR evaluations that Lifto performed in February 2007. Moreover, Plaintiff only contends the three subsequent OSIR evaluations are inaccurate insofar as Plaintiff was not adequately trained for the duties he had purportedly performed poorly. As the Court requested at oral argument, the parties filed supplemental briefs as to whether a plaintiff's claim of inadequate training relieves him of the burden of proving satisfactory job performance to establish a prima facie claim of race discrimination based on disparate treatment. a. Plaintiff's Performance. As noted, Plaintiff does not dispute the accuracy of his first two OSIR evaluations performed by Lifto on February 20 and 23, 2007, resulting in average scores of 1.4 and 2.3 respectively out of possible scores of four. A score of one indicates the employee is "often ineffective," and a score of two indicates the employee is "sometimes effective." By the eighth week in the program, the ASP trainee must score above a 2.0 average to avoid review by the ASP Advisory Board as to whether the trainee is progressing enough to justify continuation in the program. In his first OSIR evaluation, Lifto rated Plaintiff "often ineffective" in seven of ten categories, including managing employee work performance, managing day-to-day operations, safety, office management, street management, city-route management, and quality retail customer service. Lifto noted Plaintiff needed to hold mail carriers to their projected delivery times more effectively, to submit daily paperwork on safety observations, and to report time-wasting practices. In his second OSIR, Lifto reported Plaintiff was "sometimes ineffective" in seven of nine categories. Lifto noted Plaintiff continued to be deficient in submitting all daily reports such as "MSP" reports, making safety observations, and reporting carrier time-wasting practices. On March 13, 2007, Lifto gave Plaintiff a 1.3 average rating in nine categories and noted Plaintiff did not satisfactorily complete his week of training. Lifto rated Plaintiff "often ineffective" in seven of nine categories and noted Plaintiff's continuing deficiency in submitting all daily reports such as MSPs, choosing an employee to evaluate his performance as instructed, documenting mail case checks and safety observations, arriving to work on time, documenting mail-carrier return times, recording employee safety violations, and documenting time-wasting practices. On March 15, 2007, Lifto gave Plaintiff a 2.09 average rating in eleven categories and noted Plaintiff was "sometimes effective" in submitting all required daily reports such as MSPs, had not copied his trainer on case checks or safety inspections, and had not documented time-wasting practices. Lifto also found Plaintiff was "[s]till struggling with mail volume recording," Plaintiff had improperly entered volume counts, and the "[s]tation ha[d] dropped to 88% DPS because of AM volume counts." On March 30, 2007, Lifto performed the fifth and final OSIR evaluation of Plaintiff, who scored an average of 1.4 out of four. Lifto rated Plaintiff "often ineffective" in seven of ten categories. Lifto noted numerous areas in which Plaintiff had either failed to improve or had not performed adequately, including failing to report to two management meetings on time, failing to bring proper reports to two meetings, completion of only one out of five daily performance reviews of employee Mike Ferrell, running the TACS report before the DOIS report four out of five days, failing to report 11 employees' unauthorized overtime, failing to provide any of *1183 the daily case check reports, reporting incorrect carrier return times, continuing to make errors with mail-volume reporting that caused 18 hours of additional work to correct, reporting only two out of four safety infractions after receiving direct coaching from Spina-Denson on those violations, and continuing to fail to report any time-wasting practices. Moreover, the record contains numerous correspondences between Lifto, Spina-Denson, and Sharp that reflect Lifto and Spina-Denson consistently discussed Plaintiff's poor performance and provided Plaintiff with instruction on multiple occasions as to many of his shortcomings through the OSIRs and in performance review meetings. The record reflects Plaintiff also received instruction and feedback with respect to errors in mail-volume counting and reporting, improper reporting of mail-carrier projected return times, a failure to follow direct instructions to clock out mail-carriers, failure to count all mail before running volume reports, repeated failure to follow a two-step process of running the TACS report before running the DOIS report, failure to investigate an obvious reporting error, failure to follow up with mail-carriers who missed projected return times, and failure to perform required employee evaluations. In response to Plaintiff's complaint of March 14, 2007, about his evaluation scores, Sharp emailed Plaintiff to address his concerns and suggested six specific additional practices to help Plaintiff improve his evaluation scores: (1) review MSP scans with three carriers daily, (2) identify an employee to track daily performance, (3) perform daily case checks and submit written findings to Lifto, (4) talk with mail carriers about their projected return times, (5) try to arrive 15 minutes early for a shift, and (6) document one time-wasting practice per day. Moreover, Sharp suggested Plaintiff follow up with Lifto three to four times per day to report his progress on these items. Thus, the record contains substantial evidence that Plaintiff was not performing his job satisfactorily and that he was receiving feedback as to areas of needed improvement. b. Lack of Training. Plaintiff asserts Lifto and Spina-Denson did not provide him with adequate training to be successful in the ASP. As noted, the Court requested the parties to file supplemental briefs as to whether Plaintiff's complaints that he did not receive adequate training to enable him to perform satisfactorily relieves him of the burden to prove the second element of a race-discrimination claim based on disparate treatment. In his supplemental brief, Plaintiff conceded no controlling precedent exists in the Ninth Circuit. The Court, however, notes the McDonnell Douglas factors are flexible in order to accommodate a wide range of possible facts in each particular instance, and, therefore, the Court will consider Plaintiff's evidence that his training was inadequate when determining whether Plaintiff has established a prima facie case with respect to his disparate-treatment claim. See McGinest, 360 F.3d at 1123 n. 17. Plaintiff makes few arguments in his Response to Defendant's Motion to counter Defendant's numerous complaints about Plaintiff's poor performance. At his deposition, Plaintiff stated he was not trained properly on TACS, was not provided the proper forms to report case checks, and was not provided with examples of time-wasting practices that Plaintiff should report each day. The record, however, reflects Plaintiff received substantial training and instruction between September 2006 and April 2007, and Plaintiff was in management training for most of that *1184 time. As noted, Plaintiff participated in the classroom portion of the ASP twice. In addition, Plaintiff received a month of 204b training with Shaver and Bowers, which Plaintiff admitted was critical to an employee's success in the ASP. At his deposition Plaintiff stated he sought additional training from Lifto for the TACS program and that he told her from the beginning that I don't have any TACS experience. I haven't 204b'ed—I only 204b'ed a short time. I trained this an even shorter time. I said, and neither time have they really sat down and shown me TACS. I said, if you want me to learn TACS, you are going to have to dumb it down to me. Because I never 204b'ed, I don't have any experience with it or anything else. This statement, however, is contradicted by Plaintiff's training while in the 204b program. At his deposition Plaintiff stated that training included instruction on MSP reports, DOIS, CSDRS, reporting and evaluating mail-carrier projections and overages, and exposure to TACS while shadowing Bowers. Plaintiff testified Bowers would take extra time to "go back and explain why he did certain things and why certain things were done a certain way." Plaintiff also admitted Bowers and Shaver were very good trainers and managers who worked well with him, gave him good experience, and taught him the job. Significantly, Plaintiff did not offer any evidence that other ASP or 204b candidates were trained differently than he was trained. In fact, Plaintiff testified at his deposition that he viewed the ASP as having an across-the-board deficiency in training due to a low ratio of coaches to trainees that affected all candidates equally regardless of race. At oral argument Plaintiff's counsel stated there were not any available comparitors because Plaintiff was the only ASP candidate at the Oak Grove Station. The record, however, reflects there were 15 ASP candidates in the Portland area during the time Plaintiff was being trained at the Oak Grove Station who may have provided a basis for assessing the relative quantity and quality of training received by Plaintiff. On this record, however, the Court may only speculate as to whether Plaintiff's training was on par with that of other ASP trainees. Moreover, as noted, Plaintiff conceded Lifto did not refuse to train Plaintiff on the basis of his race. Thus, Plaintiff's subjective complaints that he did not receive adequate training ring hollow in light of Defendant's numerous evaluations and correspondence that demonstrate Defendant provided Plaintiff with substantial feedback and training in an effort to overcome Plaintiff's failure to make appropriate progress in the ASP. In any event, even if Plaintiff were persuasive in arguing that a lack of training removes the requirement of proving element two, Plaintiff still fails to show that he satisfactorily performed some of those aspects of his job that did not depend on formalized training or for which he was adequately trained. For example, Plaintiff conceded, inter alia, that he was late to meetings, failed to review employees as instructed, and struggled with reporting proper mail volumes. Based on the foregoing, the Court concludes on this record that Plaintiff has not met his burden to show that he performed his job satisfactorily. 2. Pretext. Even if Plaintiff had established a prima facie case of race discrimination, Defendant maintains Plaintiff has not shown Defendant's legitimate, nondiscriminatory reasons for removing Plaintiff from the ASP were a mere pretext for racial discrimination. As noted, when a defendant produces evidence of a nondiscriminatory *1185 basis for an adverse employment action, "the presumption of discrimination drops out of the picture and the plaintiff may defeat summary judgment by satisfying the usual standard of proof required in civil cases under Fed.R.Civ.P. 56(c) .... [that] a reasonable jury could conclude by a preponderance of the evidence that the defendant undertook the challenged employment action because of the plaintiff's race." Cornwell, 439 F.3d at 1028-29. Although Plaintiff contends the standard of proof at this stage remains minimal and that the motive of an employer is a pure question of fact for the jury, Plaintiff does not identify any direct evidence in the record to support even an inference of pretext by Defendant. On the other hand, there is significant evidence in the record to support Defendant's stated rationale for removing Plaintiff from the ASP. The Court notes the Ninth Circuit has held even after a defendant has provided a legitimate, nondiscriminatory reason for an adverse employment action, the plaintiff "may rely on circumstantial evidence, which we previously have said must be `specific' and `substantial' to create a genuine issue of material fact." Id. at 1029. a. Specific and Substantial Evidence. In Cornwell v. Electra Central Credit Union, the Ninth Circuit held when a plaintiff depends on circumstantial evidence to rebut a defendant's nondiscriminatory explanation for its actions, such evidence must be "specific and substantial" to defeat summary judgment. 439 F.3d at 1029 n. 9 (citing five Ninth Circuit opinions that uphold the "specific and substantial" circumstantial-evidence showing for proof of employer's pretense). In Cornwell, however, the Ninth Circuit expressed some concern that the "specific and substantial" circumstantial-evidence standard may conflict with the Ninth Circuit's holding in McGinest and the Supreme Court's holding in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003): In view of the Supreme Court's recognition in Costa that circumstantial evidence may be "more certain, satisfying and persuasive than direct evidence," and McGinest's holding that a disparate treatment plaintiff can defeat a motion for summary judgment relying on circumstantial evidence, we conclude that in the context of summary judgment, Title VII does not require a disparate treatment plaintiff relying on circumstantial evidence to produce more, or better, evidence than a plaintiff who relies on direct evidence. Although there may be some tension in our post-Costa cases on this point-several of our cases decided after Costa repeat the Godwin requirement that a plaintiff's circumstantial evidence of pretext must be "specific" and "substantial"—this panel may not overturn Ninth Circuit precedents in the absence of "intervening higher authority" that is "clearly irreconcilable" with a prior circuit holding, see Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc), because that power is generally reserved to our en banc panels. Id. at 1030-31 (citations omitted). The Court notes the Ninth Circuit has continued to rely on the "specific and substantial" test after Cornwell with little discussion or controversy. See, e.g., Nilsson v. City of Mesa, 503 F.3d 947, 953-55 (9th Cir.2007); Metoyer v. Chassman, 504 F.3d 919, 930-31 (9th Cir.2007). In Davis v. Team Electric Co., however, the Ninth Circuit again raises concerns about the consistency between Cornwell, Costa, and McGinest: In Cornwell we relied on the Supreme Court's decision in Costa to conclude that "in the context of summary judgment, Title VII does not require a disparate *1186 treatment plaintiff relying on circumstantial evidence to produce more, or better, evidence than a plaintiff who relies on direct evidence." Cornwell, 439 F.3d at 1030; see also McGinest, 360 F.3d at 1122 ("circumstantial and direct evidence should be treated alike"). We have also held in numerous other cases since Costa that a plaintiff's circumstantial evidence of pretext must be "specific" and "substantial." See, e.g., Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir.2005). 520 F.3d 1080, 1091 n. 6 (9th Cir.2008). The Ninth Circuit, however, did not resolve any potential conflict between these cases and did not abrogate Cornwell. Moreover, the Ninth Circuit recently cited Cornwell's "specific and substantial" standard favorably in E.E.O.C. v. The Boeing Co. and did not repeat the concerns raised in Cornwell or Davis. 577 F.3d 1044, 1049-50 (9th Cir.2009). Thus, there is a substantial body of Ninth Circuit decisions before and after Cornwell in which the court allows a Plaintiff to rely on "specific and substantial" circumstantial evidence to rebut a defendant's nondiscriminatory explanation for taking an adverse employment action. b. Plaintiff's Evidence. In response to Defendant's arguments, Plaintiff merely asserts the circumstantial evidence he relies on to establish his prima facie claim of disparate treatment is sufficient to create an issue of fact as to a pretextual motive by Defendant for removing Plaintiff from the ASP and, therefore, is sufficient to defeat summary judgment. Plaintiff cites Wallis v. J.R. Simplot, Co., 26 F.3d 885, 890 (9th Cir.1994), to support his position. In Wallis, however, the Ninth Circuit held: [T]he mere existence of a prima facie case, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not preclude summary judgment. Indeed, in Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.1991), we specifically held "a plaintiff cannot defeat summary judgment simply by making out a prima facie case." "[The plaintiff] must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses." Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir.1986). In response to the defendant's offer of nondiscriminatory reasons, the plaintiff must produce "specific, substantial evidence of pretext." Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). In other words, the plaintiff "must tender a genuine issue of material fact as to pretext in order to avoid summary judgment." Id. Wallis' assertion, that once a plaintiff makes out a prima facie case summary judgment is impermissible, is untenable. His position would require a trial in every discrimination case, even where no genuine issue of material fact exists concerning the legitimacy of the employer's nondiscriminatory reasons. Such a result is not compelled by Sischo-Nownejad [v. Merced Community College Dist., 934 F.2d 1104 (9th cir.1991)] and would be contrary to other cases affirming summary judgment where the plaintiff failed to produce evidence of intentional discrimination. Id. In his Response, Plaintiff does not make any argument as to why Defendant's reasons for removing Plaintiff from the ASP were merely pretext. Although Plaintiff cites Harlan Henry's Declaration as evidence that Spina-Denson treats African-American employees with more scrutiny and with less cordiality than Caucasian employees, Plaintiff does not provide either specific or substantial evidence that *1187 the motivations of Lifto, Spina-Denson, Sharp, and the ASP Advisory Board or their reasons for removing Plaintiff from the ASP were discriminatory. See id. at 892. Accordingly, on this record the Court concludes Plaintiff has failed to provide sufficient evidence to establish that Defendant's reasons are not credible or are more likely than not a pretext for discrimination. In summary, Plaintiff has not provided sufficient evidence to show "`that a discriminatory reason more likely motivated the employer' to make the challenged employment decision." Cornwell, 439 F.3d at 1028 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). Thus, the Court concludes on this record that a reasonable jury could not "conclude by a preponderance of the evidence that the defendant undertook the challenged employment action because of the plaintiff's race." See Cornwell, 439 F.3d at 1028-29. II. Retaliation. Plaintiff contends he engaged in protected activity by speaking out at the 2005 roundtable held by USPS and the Western Regional Vive President and by informing Lifto, Sharp, Keck, Collins, and Spina-Denson that he was being evaluated unfairly. Plaintiff alleges Defendant retaliated against him for his complaints of discrimination by ensuring he failed in the ASP. "To make out a prima facie case of retaliation, [a plaintiff] must establish `that she acted to protect her Title VII rights, that an adverse employment action was thereafter taken against her, and that a causal link existed between those two events.'" Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1112 (9th Cir.2000)(quoting Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir.1994)). To establish a prima facie case of retaliation under Title VII, a plaintiff must show (1) he engaged in a protected activity, (2) the defendant subjected the plaintiff to an adverse employment action, and (3) a causal link exists between the protected activity and the adverse action. Manatt, 339 F.3d at 800 (quotation omitted). Complaining about race discrimination to a supervisor is a protected activity. Id. at 800 n. 8. If a plaintiff has established a prima facie retaliation claim, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. (citation omitted). If the defendant then "articulates such a reason, [the plaintiff] bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive." Id. (quotation omitted). Defendant concedes it took an adverse employment action against Plaintiff when it removed him from the ASP, but Defendant contends Plaintiff has not satisfied the first and third elements required to establish his prima facie case. A. Protected Activity. Defendant contends Plaintiff did not show that he engaged in protected activity by complaining about "unfair" treatment to Lifto, Spina-Denson, Sharp, Keck, and Collins. Defendant contends such statements do not fairly put the USPS on notice that Plaintiff believed Defendant was unlawfully discriminating against him. Defendant cites the unpublished case of Fundukian v. United Blood Services in which the plaintiff's general complaints about racial attitudes and minority hiring practices were insufficient to constitute protected activity because such complaints would not reasonably be interpreted as complaints of racial discrimination. 18 Fed.Appx. 572, 575-77 (9th Cir.2001). *1188 In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, the Supreme Court addressed the type of "opposition" to discriminatory practices that suffice to trigger protection of the statute. 555 U.S. ___, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009). The Court broadened the application of Title VII protection in Crawford and held an employee need not instigate complaints of discrimination, but may oppose such practices even by merely responding to employer inquiries. Id. at 851. Without deciding whether Plaintiff's complaint of "unfair" treatment alone constitutes protected activity, the Court concludes Plaintiff's complaints of racial discrimination to his superiors at the 2005 roundtable coupled with his complaints of unfair treatment in his performance evaluations are sufficient in light of Crawford to constitute protected activity under Title VII. B. Causation. Defendant next contends Plaintiff has not made any reasonable argument that Plaintiff's removal from the ASP was causally connected to his complaints regarding race discrimination. Plaintiff, in turn, reiterates minimal evidence is required to establish a prima facie case of retaliation and notes the temporal proximity between the complaints of discrimination and the adverse employment action is generally sufficient to permit an inference of causation; i.e., temporal proximity alone can support a causal inference when the period between the protected activity and the alleged retaliation is short. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.2002) ("causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity," but 18 months was too long to infer causation). See also Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987)(causation could be inferred when an adverse employment action took place less than three months after protected activity); Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)(timing alone is insufficient to support a claim of retaliation when almost two years had passed between the protected activity and the adverse employment action). Plaintiff's reliance solely on temporal proximity as proof of causation, therefore, is problematic. The roundtable took place in 2005 and Plaintiff was removed from the ASP program in April 2007, which does not establish a close nexus between the protected activity and the alleged retaliatory conduct. Moreover, between the 2005 roundtable and Plaintiff's removal from the ASP in 2007, Defendant provided Plaintiff with multiple management-training opportunities, which seriously undermines the inference of retaliation based on proximity. In September 2006 Plaintiff was assigned to his first training in the ASP. After two weeks of classroom training, Plaintiff did not pass the written examination to be eligible for further participation in the program. Plaintiff was then accepted into the 204b Supervisor training program and was assigned to train with Lance Shaver and Troy Bowers, whom Plaintiff and Betha described as experienced managers and good trainers. Plaintiff trained with Bowers and Shaver for three or four weeks at the Creston Station in October and November 2006. Plaintiff had additional 204b training in December 2006 at the Cherry Creek Station. In January 2007 Plaintiff was assigned to his second training in the ASP. After his practical 204b experience, Plaintiff passed his written examination and received an additional five weeks of training in the ASP before Defendant removed him from the program. *1189 At his deposition, Plaintiff asserted a wide-ranging conspiracy theory in which high-level USPS management conspired to ensure that he failed in the ASP. When questioned at his deposition about the evidence to support his theory, Plaintiff stated: "I don't have no written evidence, no photographs. I don't have anything. It's just how I feel." Plaintiff made this admission twice in his deposition. As noted, however, Plaintiff's subjective beliefs are an insufficient basis for a Title VII claim for retaliation. See Cornwell, 439 F.3d at 1028 n. 6. At oral argument, Plaintiff maintained Defendant began assembling a "mountain of evidence" against Plaintiff after he complained about unfair treatment. Plaintiff contends Defendant's conduct is evidence of retaliation. The record reflects Plaintiff first raised concerns about his OSIR scores on March 14, 2007, in an email to Sharp. As noted, Lifto had evaluated Plaintiff on three occasions and had noted numerous areas in which Plaintiff was rated "often ineffective" prior to that date. In addition, Lifto also scored Plaintiff as only "sometimes effective" in numerous similar categories and noted several areas in which Plaintiff failed to meet expectations. Both Lifto and Spina-Denson repeated nearly all of these concerns about Plaintiff's performance in the weeks that followed Plaintiff's complaints about his OSIR scores. The consistency of the criticisms of Plaintiff's performance by his trainer and coach before and after Plaintiff's complaints undermines Plaintiff's argument that Defendant merely made up such criticism after Plaintiff raised concerns over his OSIR scores. Moreover, the fact that Plaintiff does not assert Lifto was motivated by retaliation when she reporting Plaintiff's lack of progress undermines any causal link between Plaintiff's complaints of discrimination and his removal from the ASP. The Court concludes on this record that Plaintiff has not shown there is sufficient evidence to create a jury question as to causation as required to state a claim for retaliation under Title VII. C. Pretext. Finally, Defendant maintains even if Plaintiff had satisfied each of the elements to establish a prima facie case of retaliation, he must overcome Defendant's nondiscriminatory explanation of Plaintiff's removal from the ASP. See Manatt, 339 F.3d at 800. Plaintiff, however, fails to articulate any argument or identify any evidence in the record that establishes a reasonable juror could conclude by a preponderance of the evidence that Defendant's explanation for removing Plaintiff from the ASP was a pretext for retaliating against him because of his complaints of discrimination. In any event, Plaintiff's assertion of pretext related to his retaliation claim fails for the same reasons as his assertion of pretext related to his disparate-treatment claim. The Court, therefore, concludes on this record that Plaintiff has not established a prima facie case of retaliation under Title VII nor satisfied his burden to establish that Defendant's legitimate, nondiscriminatory bases for removing Plaintiff from the ASP are not credible or are pretext for retaliation. CONCLUSION For these reasons, the Court GRANTS Defendant's Motion (#27) for Summary Judgment in its entirety and DISMISSES this matter with prejudice. IT IS SO ORDERED. NOTES [1] At the time, these positions were held by the named persons. [2] Plaintiff conceded at oral argument that terminating Plaintiff's involvement in the ASP is the only adverse action at issue. Plaintiff originally asserted two additional adverse employment actions: (1) Defendant shifted Plaintiff's assignment for training from Park Rose Station, which was only a few miles from Plaintiff's home, to Oak Grove Station, which was 19.5 miles from his home and (2) Defendant's assignment of Plaintiff to the night shift after his removal from the ASP. As noted, Plaintiff's counsel stated at oral argument that Plaintiff does not contend these actions were adverse employment actions independent of his removal from the ASP.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-06-00692-CV Provision Interactive Technologies, Inc., a California Corporation, Appellant v. BetaCorp Management, Inc., a Nevada Corporation ndba Dimensions Network, Inc., Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-04-003092, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING M E M O R A N D U M O P I N I O N Appellant Provision Interactive Technologies, Inc. ("Provision") appeals from a final judgment entered on an arbitration award pursuant to the Texas General Arbitration Act (the "TAA"). See Tex. Civ. Prac. & Rem. Code Ann. §§ 171.001-.098 (West 2005). Provision filed an application to vacate the award on the ground that the parties had no agreement to arbitrate under the TAA. The trial court denied Provision's application and entered judgment on the award against Provision in favor of BetaCorp Management, Inc. ("BetaCorp"). Provision appeals, arguing that the parties did not agree to binding arbitration and that the arbitration agreement is fatally ambiguous. Because we hold that the arbitration clause in the contract between Provision and BetaCorp constitutes an unambiguous agreement to arbitrate under the TAA, we affirm the trial court's judgment. BACKGROUND The subject of the arbitration leading to this appeal is a dispute between Provision and BetaCorp regarding an original equipment manufacturer agreement (the "OEM agreement") for the purchase of 3D aerial-imaging kiosk platforms and other services related to the equipment. Section 27 of the OEM agreement states: § 27 Arbitration The contracting Parties shall attempt to settle the questions at dispute, if any, through direct negotiations. If the direct negotiations remain unsuccessful, prior to the commencement of filing any legal actions against the other, the Parties stipulate to employ Arbitration organized under the statutes or the Courts of the States in which the complaining party is domiciled, California for PITI and Texas for BMI. Venue shall be in the county where the complaining party is domiciled. At some point after the OEM agreement was signed, BetaCorp sent Provision a notice of material breach, alleging that Provision had revealed proprietary information. BetaCorp and Provision subsequently attempted to settle the dispute through direct negotiations in Texas. When these negotiations proved unsuccessful, Provision requested arbitration in California. BetaCorp did not respond to Provision's request for arbitration, but instead filed an application for arbitration in Travis County, Texas under the TAA. Over Provision's objection, the Travis County trial court entered an order appointing an arbitrator over the dispute. The parties proceeded to arbitration in Texas under the TAA. On February 15, 2006, the arbitrator signed an arbitration award that awarded BetaCorp $472,500 against Provision, plus attorneys' fees. The arbitration award expressly acknowledged Provision's objections to the arbitration. Provision filed an application in the trial court to vacate the award on the ground that there was no agreement to arbitrate under the TAA. See id. § 171.088(a)(4). The trial court denied Provision's application, confirmed the award, and entered judgment on the award in the amount of $592,312.19 against Provision. See id. §§ 171.088(c), .092. Provision subsequently filed a motion for new trial, which was denied by the trial court, and this appeal followed. Provision argues on appeal that the trial court erred in entering judgment on the arbitration award under the TAA because (1) federal law, rather than the TAA, should have been applied in enforcing the arbitration provision, (2) the arbitration provision is fatally ambiguous, and (3) even if state law does apply, the parties did not enter into a valid "agreement to arbitrate" under the TAA that shows the parties intended to be bound by arbitration. STANDARD OF REVIEW A trial court's determination of the validity of an arbitration agreement is a legal question subject to de novo review. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). While Texas courts recognize a strong presumption favoring arbitration, that presumption does not apply to the initial determination of whether a valid arbitration agreement exists. Id. Arbitration agreements are interpreted under traditional contract principles. Id. The issue of whether contractual ambiguity exists is a question of law that we review de novo. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006). A contract is not ambiguous "merely because the parties assert forceful and diametrically opposed interpretations," but only if it is subject to two or more reasonable interpretations. Id. DISCUSSION Governing Statute As a threshold matter, Provision argues that this dispute should be governed by the Federal Arbitration Act (the "FAA"), 9 U.S.C.A. §§ 1-16 (West 1999 & Supp. 2006), rather than the TAA. The FAA applies to arbitration provisions in "any contract affecting commerce, as far as the Commerce Clause of the United States Constitution will reach." In re L&L Kempwood Assocs., L.P., 9 S.W.3d 125, 127 (Tex. 1999). The present case involves a contract between BetaCorp, a Nevada corporation with its principal place of business in Texas, and Provision, a California corporation with its principal place of business in California, for the purchase of 3D aerial-imaging kiosk platforms to be used in Texas and Oklahoma. The FAA has been applied to contracts containing far fewer connections to interstate commerce. See, e.g., In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex. 2005) (holding FAA applied to Texas medical malpractice case brought by Texans against Texans in Texas state court for torts committed in Texas because Medicare had paid for some of plaintiff's medical expenses); Kempwood, 9 S.W.3d at 127 (holding FAA applied to contract for work to be done on apartments located in Texas by Texas business for Georgia owners); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 270 n.6 (Tex. 1992) (holding that where Michigan corporation contracted to build dam for a Texas city, the contract "clearly establishes interstate activity"). The contract between Provision and BetaCorp clearly falls within the meaning of interstate commerce and the FAA is applicable to the arbitration provision. In drafting an arbitration provision, parties are free to specify which statute shall apply to arbitration proceedings. Volt Info. Sci., Inc. v. Board of Tr. of Leland Stanford Jr. Univ., 489 U.S. 468, 472 (1989). However, if the parties do not explicitly state which statute applies, the courts must look to the contract between the parties, applying the FAA if the contract involves interstate commerce. See Kempwood, 9 S.W.3d at 127-28. In the present case, the OEM agreement states that the parties "stipulate to employ Arbitration organized under the statutes or the Courts of the States in which the complaining party is domiciled." The Texas Supreme Court has held that where a contract does not specifically reference the FAA or the TAA, language generically referring to the law of a particular place invokes both federal and state law. See Wilson, 196 S.W.3d at 778-79 (holding that where contract stated that it shall be "governed by the law of the place where the Project is located," both TAA and FAA applied); Kempwood, 9 S.W.3d at 127-28 (interpreting "the law of the place where the Project is located" to include both TAA and FAA, stating that Houston, where project was located, "is subject to federal law as well as Texas law. The choice-of-law provision did not specifically exclude the application of federal law, and absent such an exclusion we decline to read the choice-of-law clause as having such an effect."). Furthermore, the FAA is considered "part of the substantive law of Texas." Capital Income Properties-LXXX v. Blackmon, 843 S.W.2d 22, 23 (Tex. 1992). As a result, we hold that the parties' arbitration provision invoking "the statutes or the Court of the State[]" of Texas necessarily includes both the FAA and the TAA. The FAA and the TAA, however, are not mutually exclusive. See Wilson, 196 S.W.3d at 780 ("The mere fact that a contract affects interstate commerce, thus triggering the FAA, does not preclude enforcement under the TAA as well."); W. Dow Hamm III Corp. v. Millennium Income Fund, L.L.C., 237 S.W.3d 745, 751 (Tex. App.--Houston 2007, orig. proceeding) ("Even when the FAA applies to an arbitration agreement, however, the parties may invoke the TAA to enforce the agreement, as long as nothing in the TAA would thwart the FAA's policies or goals in the particular context."). The FAA preempts the TAA only if the following four factors are present: (1) the agreement is in 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. Nexion, 173 S.W.3d at 69. It is undisputed that the OEM agreement is in writing, and as discussed above, it clearly involves interstate commerce. Furthermore, neither party has asserted any traditional contract defense against enforcement of the arbitration agreement. Therefore, the only factor at issue in our determination of whether the FAA preempts the TAA in this case is whether Texas law affects the enforceability of the arbitration agreement. In order to satisfy the fourth factor necessary for preemption, Texas law must refuse to enforce an arbitration agreement that the FAA would enforce, either because (1) the TAA has expressly exempted the agreement from coverage or (2) the TAA has imposed an enforceability requirement not found in the FAA. Wilson, 196 S.W.3d at 780. Where parties have asserted nothing in the TAA that would subvert enforcement of the agreement at issue, the FAA does not preempt the TAA. Id. In the present case, the parties do not argue that the TAA expressly exempts the agreement at issue from coverage, nor do they argue that the TAA imposes an enforceability requirement not found in the FAA. (1) In fact, the converse is true, as Provision argues that section 9 of the FAA requires the parties to expressly agree that judgment shall be entered on an award before such judgment may be entered, while the TAA does not impose such a requirement. (2) The FAA preempts only those state laws that undermine the goals and policies of the FAA. Volt, 489 U.S. at 477-78. The FAA was initially designed "to overrule the judiciary's longstanding refusal to enforce agreements to arbitrate." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219-220 (1985). "The primary purpose of the Federal Act is to require the courts to compel arbitration when the parties have so provided in their contract, despite any state legislative attempts to limit the enforceability of arbitration agreements." Anglin, 842 S.W.2d at 271. In light of this purpose, the FAA preempts only those state laws that prevent the enforcement of arbitration agreements, without affecting state laws that foster the federal policy favoring arbitration. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57-58 (1995); see also Wachovia Sec., LLC v. Emery, 186 S.W.3d 107, 111 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding) ("The FAA displaces state law only to the extent the state law conflicts with the FAA's purpose of enforcing the parties' contractual obligation to arbitrate."). Because the TAA does not prohibit the enforceability of the arbitration agreement between Provision and BetaCorp, and because it promotes, rather than undermines, the goals and policies of the FAA, the FAA does not preempt the TAA in this case. (3) As a result, it was not improper for BetaCorp to file its application for arbitration under the TAA or for arbitration proceedings to be conducted under the TAA, and we will apply the TAA in addressing Provision's remaining arguments on appeal. Ambiguity Provision argues that the arbitration provision is ambiguous because it does not specify a governing statute, meaning arbitration could conceivably be conducted under the TAA, the FAA, or the Texas Alternative Dispute Resolution Act (the "Texas ADR Act"), Tex. Civ. Prac. & Rem. Code Ann. §§ 154.001-.073 (West 2005). Arbitration provisions that fail to specify a particular statute to govern arbitration are not considered fatally ambiguous by Texas courts. See Wilson, 196 S.W.3d at 778-79 (interpreting arbitration agreement to invoke both federal and state law when "contracts in question reference neither the FAA nor TAA," but merely invoke law of place where project is located); Henry v. Gonzalez, 18 S.W.3d 684, 688 (Tex. App.--San Antonio 2000, pet. dism'd by agr.) (applying interstate-commerce analysis to determine that TAA applies to arbitration provision, despite fact that contract was internally inconsistent in naming both TAA and FAA as governing statute); In re Education Mgmt. Corp., Inc., 14 S.W.3d 418, 422 (Tex. App.--Houston [14th Dist.] 2000, orig. proceeding) (holding that where agreement is silent as to application of FAA or TAA, question of whether transaction involves interstate commerce is issue of fact). We have already resolved the interaction between the TAA and the FAA in relation to the OEM agreement. Furthermore, the Texas ADR Act is clearly inapplicable, as it applies solely to cases in which a court has referred a pending dispute to alternative dispute resolution, which is not the case here. See Tex. Civ. Prac. & Rem. Code Ann. § 154.021; Porter & Clements, L.L.P. v. Stone, 935 S.W.2d 217, 220 (Tex. App.--Houston [1st Dist.] 1996, orig. proceeding). As a result, we hold that the arbitration agreement's failure to specify a governing statute does not render the agreement ambiguous. Provision also argues that the arbitration agreement is ambiguous because it requires that arbitration take place under the law of the state in which "the complaining party is domiciled," and does not provide which law will apply in the event that there is more than one complaining party. Provision asserts that both Provision and BetaCorp are complaining parties, emphasizing the fact that Provision requested arbitration in California prior to BetaCorp filing an arbitration application in Texas. However, the record reflects that Provision requested California arbitration only in response to the letter from BetaCorp dated July 29, 2004, which served as a notice of material breach of the contract. In light of the circumstances, it would appear from the notice of material breach that BetaCorp was in fact the "complaining party," as contemplated by the arbitration agreement. While Provision asserts that there are now two complaining parties, a more accurate representation of the facts is that BetaCorp is the complaining party, while Provision merely sought arbitration in California in order to resolve BetaCorp's complaints. This view of the contract is consistent with the trial court's order on BetaCorp's application, which states that BetaCorp "is a 'complaining party' for purposes of the arbitration clause in the OEM agreement . . . by virtue of the letter dated July 29, 2004 from James D. Jameson, for [BetaCorp], to Samuel J. Tata, for [Provision]." Furthermore, we must give effect to the objective intention of the parties as expressed or as is apparent in the writing, recognizing that a reasonable interpretation of an agreement is preferred to one that is unreasonable. Westwind Exploration, Inc. v. Homestate Sav. Ass'n, 696 S.W.2d 378, 382 (Tex. 1985). The arbitration provision can reasonably be interpreted to mean that in a dispute regarding the OEM agreement, arbitration is governed by the law of the state where the initial complaining party is domiciled. To hold otherwise would lead to the unreasonable result that the parties agreed to an arbitration provision in which a non-complaining party could assert a counter-complaint and file for arbitration in the state of its domicile, causing competing applications to be filed in two different states. A contract is ambiguous only if it is subject to two or more reasonable interpretations after applying the pertinent rules of construction. Wilson, 196 S.W.3d at 781. Because there is only one reasonable interpretation of the arbitration provision's "complaining party" language, we hold that the provision is unambiguous. Agreement to Arbitrate Provision argues that the arbitration provision does not constitute an "agreement to arbitrate" under the TAA because it does not expressly state that arbitration will be binding, and it dictates that arbitration will take place "prior to the commencement of filing any legal actions," which, Provision argues, necessarily contemplates non-binding arbitration. The TAA allows a court to vacate an arbitration award if (1) there was no "agreement to arbitrate," (2) the issue was not adversely determined in a proceeding to compel arbitration under subchapter B of the TAA, and (3) the party asking the court to vacate the award did not participate in arbitration without objection. Tex. Civ. Prac. & Rem. Code Ann. § 171.088(a)(4). BetaCorp, in its application for arbitration, expressly disclaimed any request for relief under subchapter B of the TAA, instead seeking orders from the court under subchapters C and D. Furthermore, Provision consistently objected to arbitration proceedings, expressly reserving all rights to contest any binding arbitration award entered in Texas in its filings in the arbitration. As a result, our determination of whether the arbitration award should be vacated turns solely on whether there was an "agreement to arbitrate." Provision argues that the parties did not agree to binding arbitration so, as a result, there was no valid agreement to arbitrate under the TAA because the TAA contemplates only binding arbitration. We agree with Provision's view that the TAA contemplates only binding arbitration, as the TAA makes no provision for nonbinding arbitration. See In re Daniel S. Cartwright, 104 S.W.3d 706, 711 (Tex. App.--Houston [1st Dist.] 2003, orig. proceeding) ("The TAA necessarily contemplates that the arbitration award be binding, and it makes no provision for a nonbinding arbitration procedure."); Porter, 935 S.W.2d at 221-22 ("[B]y its very nature, arbitration under the Texas Arbitration Act is a mechanism by which the parties to a contract reach a binding resolution to their differences."). However, we disagree with Provision's contention that the parties did not agree to binding arbitration. The mere omission of the term "binding" from an arbitration agreement does not automatically transform it into a nonbinding arbitration agreement. Porter, 935 S.W.2d at 222. In Porter, the court held that arbitration under the TAA is necessarily binding, even where there is no express agreement that arbitration will be binding. Id. In reaching its conclusion, the court in Porter relied on McKee v. Home Buyers Warranty Corp. II, 45 F.3d 981 (5th Cir. 1995), a Fifth Circuit case applying Louisiana arbitration law. See Porter, 935 S.W.2d at 221. The facts of McKee are similar to the facts of the present case. The contract at issue in McKee stated that arbitration "shall precede any litigation attempted by either party." 45 F.3d at 983. This language is similar to the OEM agreement, which required arbitration "prior to the commencement of filing any legal actions." Based on this language, one of the parties argued that arbitration was merely a condition precedent to litigation, and therefore that the contract called for nonbinding arbitration. Id. The court rejected this view, concluding that under Louisiana law, arbitration is by definition a binding procedure because, like the TAA, "the Louisiana law simply makes no provision for non-binding arbitration." Id. Therefore, if the parties agreed to a nonbinding procedure, they did not agree to arbitration. Id. The court stated that in order to find the condition-precedent language to be ambiguous, it would have to determine that the parties did not really agree to arbitrate, even though the contract explicitly calls for arbitration. Id. "Such a stretch is plainly contrary to the federal and state policies favoring arbitrability." Id. Arbitration under the TAA is by definition a binding procedure. Porter, 935 S.W.2d at 221-22. Like the court in McKee, we are reluctant to hold that BetaCorp and Provision agreed to a nonbinding procedure, because to do so would lead us to the conclusion that the parties did not agree to arbitrate, despite the fact that the contract explicitly calls for arbitration. (4) As a result, we hold that the parties agreed to binding arbitration. CONCLUSION While the FAA is applicable to the parties' arbitration agreement, it does not preempt the TAA in this case. We hold that the arbitration agreement constitutes an unambiguous agreement to arbitrate, and provides for binding arbitration under the TAA. As a result, we affirm the trial court's judgment. __________________________________________ Diane Henson, Justice Before Justices Patterson, Puryear and Henson Affirmed Filed: February 28, 2008 1. An example of an enforceability requirement imposed by state law that is not found in the FAA is the TAA's requirement that arbitration agreements in personal injury cases must include the signature of each party's counsel. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002(c)(2) (West 2005). This requirement has led to federal preemption of the TAA when it interferes with enforceability of an arbitration agreement. See In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69 (Tex. 2005). 2. Section 9 of the FAA reads, in relevant part: If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. 9 U.S.C.A. § 9 (West 1999). 3. Due to our holding, it is not necessary for us to determine whether the trial court could have entered judgment on the arbitration award if the FAA had preempted the TAA. Similarly, we express no opinion regarding whether the FAA is applicable to non-binding arbitration agreements. 4. The fact that the arbitration provision states that arbitration must occur "prior to the commencement of filing any legal actions" is not inconsistent with a mutual agreement to binding arbitration because subsequent legal action is required in order to enforce arbitration awards under the TAA; such awards are not self-executing. In order to enforce an arbitration award, the party seeking enforcement must apply to the trial court for confirmation of the award. See Tex. Civ. Prac. & Rem. Code Ann. § 171.087 (West 2005). Upon confirmation, the trial court shall enter an enforceable judgment or decree on the award. Id. § 171.092.

497 S.W.2d 97 (1973) Patti J. FREEMAN, Appellant, v. David James FREEMAN, Appellee. No. 813. Court of Civil Appeals of Texas, Houston (14th Dist.). June 20, 1973. *98 Joe J. Newman, Houston, for appellant. Edward L. Bailey, Hendrix & Bailey, Jacob J. Walla, W. H. Jordan, Jr., Jordan, Zwernemann, Simmons, Houston, for appellee. TUNKS, Chief Justice. This is an appeal from a decree in a divorce action wherein the sole complaints made concern the awards of property between the parties. After the nonjury trial of the case a judgment was rendered granting the divorce, awarding custody of the minor children to the wife, requiring that child support be paid by the husband in the amount of $400 per month for the minor children until the youngest reaches 18 years of age, awarding fees to the wife's attorneys and making division of the parties' separate and community property. From the judgment Patti J. Freeman perfects this appeal. Essentially appellant's points of error are concerned with the trial court's division of the property in four respects. First, appellant urges no evidence, insufficient evidence and great weight points of error respecting the trial court's finding the husband's corporate retirement plan to have a present value of $13,071.88. Second, the same evidence points of error are raised as to the court's finding the husband's United States Air Force retirement benefits to have a present value of $23,123.10. Third, the trial court erred in considering as of separate value, the shares in a corporation and also in awarding to appellant certain realty owned by that corporation. Fourth, appellant complains of *99 the trial court's division of the property as a whole as being inequitable and failing to take account of the parties' earning capacities and fault. David James Freeman, the husband, was employed as an engineer by Tenneco, Inc. He had procured from his employer a letter dated September 29, 1972 showing the current status of his interests in employee benefit plans. The parties stipulated that the letter be introduced as evidence. It included the following language: "*Retirement Income Plan—This is a deferred income plan that provides financial assistance after attaining normal retirement at age 65. Present cash balance of this plan equals $39,348.89 and is available to you only upon termination of employment or attaining normal retirement age. Your projected monthly benefit at age 65 is presently $900.23/month." The letter had been typed reciting, "Present cash value of this plan equals $39,348.89 ...." The typed word "value" was stricken out and the word "balance" written in with a pen. In evidence is an annual statement dated December 31, 1971 and furnished by the company to the appellee wherein it is recited, "Your retirement income cash value is $35,723.80." The husband called as a witness a certified public accountant who testified that he had experience in the calculation of the present values of sums payable in the future. He was asked on direct examination to "compute the present value of the sum of $39,348.89, discounted at six and a half percent, payable at age sixty-five." (The husband was 49 years old.) In response to that request the witness testified that discounted at six and a half percent the present value was $14,098.61 and discounted at seven and a half percent it was $12,045.14. The trial judge filed findings of fact which included a finding that the present value of the community interest in the retirement plan was $13,071.88, splitting the difference between the two figures given by the witness. All of the interest in the retirement plan was acquired during the marriage. The trial court's judgment decreed that the wife be paid $10,000 out of this retirement plan's payments when those payments are made. The remaining interest in the benefits was awarded to the husband. Appellant's first point of error states that the trial court erred in its finding as to the present value of the community interest in the husband's retirement plan. That point is sustained. The accountant's testimony, which was followed by the trial judge in making his finding, was erroneous in that it was based on a false assumption. The witness assumed that at age 65 the husband was going to be paid $39,348.89 referrable to the present value of his retirement plan. That is not what the husband will be paid. He will be paid a monthly pension, $900.23 of which will be attributable to the present value of his pension plan. Furthermore the evidence shows he could quit his job at any time and draw in cash the present balance. If he quits or dies before 65 a cash sum will be paid to him or his estate, $39,348.89 of which had accrued at the date of the letter. The accountant's testimony on cross-examination shows that he did not consider those factors when he, on direct examination, testified as to present value. On cross-examination he testified: "Q If he were to quit today and get $39,000, if he could under this plan, would your testimony still be the same? A In other words— Q Except that it would be taxable as of the present time? A That is correct, my testimony would not be. Q What would it be if he quit today and got $39,348.89, whatever this letter says? A I would say it would be that, less whatever tax." *100 The trial judge erred in his finding of fact as to the value of the pension plan. Under the record before this Court and the trial court that community asset prima facie had a value of $39,348.89. There may be other facts which would require an adjustment of that value, but those facts are not in the record. No one proved all of the provisions of the pension plan adopted by Tenneco, Inc. The accountant's suggestion that the $39,348.89 should have deducted from it the amount of income tax that would be paid upon it if it were withdrawn in cash is not acceptable. That suggestion assumes that it is to be withdrawn in cash and the husband's testimony is that that will not be done. Under the testimony it is the husband's intention that the present value of the pension plan will be withdrawn by the husband at the rate of $900.23 per month after he reaches 65 years of age. There also exists the possibility that the husband will die before he reaches 65, in which event the value will be paid to his estate or his legatees. Under either of those circumstances it is probable that the tax payable upon it will be less than would be the amount of income tax payable if it were now withdrawn in a lump sum. While it would be proper in computing the present value to make a reasonable deduction for the present value of taxes that may become payable in the future the amount of that deduction would probably be less than the income tax payable if it were withdrawn now. The evidence showed that Mr. Freeman had served 20 years in the Air Force and would draw retirement pay in the amount of $460.29 a month upon reaching 60 years of age. Approximately 7½ years of that service had been on active duty before these parties were married and 12½ years on reserve duty during the marriage. There is no dispute between the parties that their community acquired an interest in this military retirement plan. The trial court found that the community had approximately 38% interest in the retirement plan and that the other 62% belonged to the husband's separate estate. The present value of the community interest was found to be $8,364.74. The appellant however, complains of the court's findings as to the percentage of that plan which the court found belonged to the community and as to the present value of that interest. The appellant wife contends that the community interest in this retirement is represented by the fraction 12.5/20. That contention loses sight of the fact that under the applicable statutes a year of active duty contributes more to the retirement than a year of reserve duty. Armed Forces, 10 U.S.C. secs. 1332 (1959), 1333 (1956) and 1401 (1966). The trial court's computation of the percentage of this retirement plan that accrued to the community was substantially correct. There seems to be a slight error but it is in the favor of the appellant and thus immaterial to this appeal. The appellee's accountant witness also computed the present value of the military retirement benefits. Life expectancy tables showed that the husband, 49 years old at the date of the trial, then had a life expectancy of 23.8 years. The accountant computed the amount that would be paid under the plan by assuming that the husband would live 12.8 years after he became 60 and started drawing retirement pay at $460.29 per month. The value of those payments was then discounted to the date of the trial, again using alternative discount factors of six and a half and seven and a half percent. The court again split the difference between the two figures and found the community fractional interest in the plan to have a present value of $8,364.74. The appellant's complaint as to this finding is based upon the fact that at age 60 the husband will have a life expectancy of 15.8 years rather than the 12.8 years the witness used in making the calculation. The military retirement plan will not pay *101 anything to anyone if the husband dies before reaching 60 years of age. The present life expectancy includes a consideration of the possibility of death before 60. For that reason it properly was used in the computation of present value of the military retirement benefits. The appellant's point of error as to the court's finding of the value of the community interest in the military retirement benefits is overruled. We note that the use of a six and a half or seven and a half percent discount factor is of questionable validity. In this case, however, the appellee's accountant witness testified that in his opinion, based on prevailing interest rates, such procedure was proper. The wife offered no evidence to the contrary. She did not offer in evidence computations based upon lower discount rates. Both of the parties were shown to have some degree of sophistication in investment matters. Under the facts shown in this record the trial judge did not abuse his discretion in this respect. The trial judge's findings of fact include findings that the shares of stock in a corporation named Patti Freeman Realty Company had a value of $4,400 and that certain identified lots of land had a value of $4,000. The judgment purports to give the wife both the shares and the lots as part of her share of the community. One of appellant's points of error states that the court erred in such evaluation. That point of error is sustained. The evidence shows that the lots were owned by the corporation as its principal asset. The court erred in concluding that the lots awarded to the wife had a value separate and apart from the value of the corporate shares. There remains the question as to whether the trial court's errors in its findings as to the value of the Tenneco retirement plan and as to the corporate shares require a reversal of this case. We are cognizant of the often repeated rule that the trial judge has under Tex.Family Code Ann. art. 3.63 (1971) V.T.C.A., broad discretion in regard to the division of the community estate between the parties to a divorce case. His judgment as to such division ordinarily is subject to review only for abuse of discretion. In this case the division was quite generous to the wife and it would be well within the limits of the trial judge's discretion if it were not shown that the exercise of that discretion was based upon erroneous findings of fact as to the value of some of the assets of the community. This record does show such errors and they are demonstrable mathematically. The items as to which the errors were made represent a substantial percentage of the community value. A consideration of their true values might well lead to the trial court's exercise of his discretion in making a different division. See Bell v. Bell, 389 S.W.2d 126 (Tex.Civ. App.—Houston 1965, no writ). For that reason we conclude that the trial court's judgment herein must be reversed and the case remanded. Reversed and remanded.

NO. 07-03-0401-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MARCH 29, 2004 ______________________________ IN THE INTEREST OF Z.J., A MINOR CHILD _________________________________ FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-516,050; HONORABLE BLAIR CHERRY, JUDGE _______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. OPINION Colleen Jiminez appeals from an order following a bench trial terminating her parental rights to her son, Z.J., a minor child. No findings of fact and conclusions of law were requested, and none were signed and filed in the proceeding commenced by the Department of Protective and Regulatory Services.1 Presenting two issues, Colleen contends (1) the trial court committed reversible error by not assuring that the court 1 Now referred to as the Department of Family and Protective Services (DFPS). appointed attorney ad litem for the child performed her duties according to section 107.014 of the Texas Family Code Annotated (Vernon 2001) and the American Bar Association Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases, and (2) there was no evidence or insufficient evidence to support the trial court’s findings that she knowingly placed or allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child, or termination of her parental rights was in the best interest of the child. We affirm. Colleen is the natural mother of Z.J., who was born on November 26, 1995, and was six years old when the trial court appointed an attorney ad litem to represent his interest. Z.J.’s natural father is deceased. By her first issue, Colleen contends the trial court committed reversible error by not assuring that the court appointed attorney ad litem for Z.J. performed her duties according to section 107.014 of the Code and the American Bar Association Standards of Practice for Attorneys Who Represent Children in Abuse and Neglect Cases. We disagree. Colleen asserts the record does not demonstrate that the court appointed attorney ad litem for Z.J. ever reviewed any of his relevant medical, psychological, or school records, or that she interviewed him or any of the parties prior to trial. Although section 107.014 prescribes seven specific duties to be performed by the ad litem, it does not require that evidence be 2 presented so the record will show that the ad litem performed the statutory duties and does not authorize or direct the trial court to supervise or monitor the ad litem’s services. Further, the statute does not authorize either a parent or another party to present any challenge to the services rendered by the ad litem or provide that the failure of an ad litem to perform the seven duties constitutes reversible error of a judgment terminating parental rights. Although section 107.014 is not implicated, in D__F__ v. State, 525 S.W.2d 933 (Tex.Civ.App.--Houston [1st Dist.] 1975, writ ref’d n.r.e.), among other points of error, the child’s mother contended the evidence was legally and factually insufficient to support the termination of the rights of the natural father. After noting that the mother’s attorney did not represent the father, the court held the mother did not have any standing to present any contentions as to the child’s father. Because Colleen’s attorney does not make any appearance here on behalf of Z.J., and section 107.014 does not authorize a parent to challenge an order of termination of parental rights on the ground that the ad litem did not comply with section 107.014, we hold that Colleen has no standing to present her first issue. Moreover, as argued by DFPS, neither party may take a position on appeal that was not presented to the trial court. McDuffie v. Blassingame, 883 S.W.2d 329, 335 (Tex.App. --Amarillo 1994, writ denied). In order to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion, state the specific 3 grounds thereof, and obtain a ruling. Tex. R. App. P. 33.1(a)(1). If however, the matter would not otherwise appear in the record, then a party may preserve an appellate complaint by a formal bill of exception as allowed by Rule 33.2 of the Texas Rules of Appellate Procedure. McDuffie, 883 S.W.2d at 335. Here, however, Colleen’s complaint was not presented to the trial court and thus, the issue presents nothing for review. Colleen’s first issue is overruled. By her second issue, Colleen contends there was no evidence or insufficient evidence to support the trial court’s finding that she knowingly allowed Z.J. to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child, or that termination of her parental rights was in the best interest of her child. Tex. Fam. Code Ann. § 161.01(d), (e). We disagree. Standard of Review The natural right existing between parents and their children is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings must be strictly scrutinized. In Interest of G.M., 596 S.W.2d 846 (Tex. 1980). A termination decree is complete, final, irrevocable, and divests for all time that natural right as well as all legal rights, privileges, duties, and powers with respect to each other except for the child’s right to inherit. Holick, 685 S.W.2d at 20. In proceedings to terminate 4 the parent-child relationship brought under section 161.001 of the Family Code, the petitioner must establish one or more acts or omissions enumerated under subsection (1) of the statute and must additionally prove that termination of the parent-child relationship is in the best interest of the child. Both elements must be established and proof of one element does not relieve the petitioner of the burden of proving the other. See Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Because termination of parental rights is of such weight and gravity, due process requires the petitioner to justify termination by clear and convincing evidence. § 161.001; In Interest of G.M., 596 S.W.2d at 847. This standard is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. Although the clear and convincing burden of proof required at the trial level is well settled, appellate courts have struggled to reconcile this burden of proof with the standard for appellate review of challenges to the sufficiency of evidence. As this Court has previously noted, the clear and convincing standard does not alter the rules generally applicable when appellate courts review factual findings. In Interest of R.D.S., 902 S.W.2d 714, 716 (Tex.App.--Amarillo 1995, no writ). That being said, we turn to the standards of review for challenges to sufficiency of the evidence. In a legal sufficiency review of the evidence to support an order terminating 5 parental rights, we look at all2 the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. Thus, we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. The standard for reviewing the factual sufficiency of termination findings is whether the evidence is such that a reasonable factfinder could form a firm belief or conviction about the truth of DFPS’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). Under that standard, we consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id. 2 Circumstantial evidence may be used to establish any material fact, but it must transcend mere suspicion, provided the material fact must be reasonably inferred from the known circumstances, and circumstantial evidence often involves linking what may be apparently insignificant and unrelated events to establish a pattern. Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001). 6  According to an offense report of the Texas Department of Public Safety, on April 13, 2001, Colleen and Z.J. were passengers in a pickup driven by Colleen’s paramour, Summerford. After Summerford was stopped for a traffic violation, the DPS trooper discovered a parole warrant was outstanding for Summerford’s arrest. He and Colleen were taken to Tahoka and arrested for possession of a controlled substance with intent to deliver. The arresting officer made arrangements for the placement of Z.J. with relatives. The offense report also indicated that Summerford had six prior arrests for narcotics, including delivery of a controlled substance and possession with intention to deliver, and three prior charges for burglary. During a search of the pickup, in addition to a substantial quantity of methamphetamine, the officer found a set of scales, baggies, and syringes. The report further indicated that Colleen had told the officer she knew Summerford had a criminal record and she had recently used drugs. The evidence is replete with instances of Colleen’s drug use. However, Colleen admitted at trial that she was an addict and had been using methapetamine “all of [Z.J.’s] life.” In addition, Colleen admitted it was not a good thing for her to take Z.J. out with a drug dealer and that she knew Summerford was selling drugs. Upon being notified of the events of April 13, 2001, the DFPS commenced an investigation and Z.J. was placed with relatives under a safety plan on June 6, 2001. Among other things, the safety plan required Colleen to refrain from drug or alcohol use. However, she did not comply with the plan and a drug assessment found her to be 7 chemically dependent. Based on that determination, she was referred to outpatient drug and alcohol treatment and failed to show up for many appointments. Despite Z.J.’s relatives’ admission that they violated the safety plan by allowing Z.J. to stay with Colleen, he was again placed with them upon their agreement not to allow Colleen to have contact with Z.J. without the consent of DFPS. Colleen and her relatives, however, violated the plan and resultantly, Z.J. was placed in foster care. At trial, Colleen admitted she did not visit with her son between August 15, 2002 and June 2003. A DFPS caseworker testified that Colleen’s continued drug use and her failure to seek treatment and participate in any services offered to help her quit using drugs endangered Z.J.’s well being and prevented her from providing a safe environment for him. A licensed professional counselor worked with Z.J. for several months. According to her testimony, initially he was overactive, impulsive, and defiant; however, while in foster care and under her counseling, he exhibited “excellent progress overall.” The counselor further testified that Z.J. responded very well to his placement at Boys Ranch and, in her opinion, he “could be adoptable.” Where, as here, findings of fact or conclusions of law were not requested and none were filed, we must presume that every disputed fact issue was found by the trial court in support of the judgment rendered. Fields v. Texas Emp. Ins. Ass’n, 565 S.W.2d 327, 329 (Tex.Civ.App.--Amarillo 1978, writ ref’d n.r.e.). In the summary of her argument, Colleen contends there was no evidence or insufficient evidence that (1) Z.J. was placed in a 8 dangerous situation, (2) Z.J. was placed with persons who were engaging in conduct that could jeopardize his welfare, and (3) there was no evidence that Z.J. was in danger while in her care and custody. The evidence, however, presents a history of continuous drug abuse and addiction, criminal activity by Colleen, and placement of Z.J. in an environment with a known drug dealer with a criminal record. Contrary to Colleen’s argument, the record contains both direct and circumstantial evidence of a probative nature from which the factfinder could have formed a firm belief or conviction that the allegations of DFPS were true. In re J.F.C., 96 S.W.3d at 266. Thus, we conclude the evidence is legally and factually sufficient to support the trial court’s termination order. Moreover, considering that (1) Z.J.’s father is deceased, (2) his relatives were unable to abide by the service plans, and (3) Colleen’s lifestyle, the evidence is also sufficient to support the trial court’s presumed finding that removal of Z.J. from the environment was in his best interest. Colleen’s second issue is overruled. Accordingly, the judgment of the trial court is affirmed. Don H. Reavis Justice 9 

Order entered January 3, 2013 In The Court of istritt of T xas at aIlas No. 05-12-00513-CR No. 05-12-00514-CR - MIGUEL ANGEL IVfENDOZA, Appellant- V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F08-50983-M, F08-50984-M ORDER The Court GRANTS appellant’s January 1, 2013 motion for extension of time to file the brief. We ORDER the Clerk of the Court to file the brief tendered as of the date of this order. 

929 F.Supp. 227 (1996) GLASS EQUIPMENT DEVELOPMENT, INC., Plaintiff, v. SIMONTON WINDOWS CO., et al., Defendants. Civil Action No. 1:93CV63. United States District Court, N.D. West Virginia, Clarksburg Division. June 25, 1996. Stephen C. Jory, Elkins, WV, and Thomas H. Shunk, Wade A. Mitchell, Cleveland, OH, and Linn J. Raney, Cleveland, OH, for Plaintiff. William E. Hamb, Robert W. Kiefer, Jr., Charleston, WV, and Thomas C. O'Konski, Patricia A. Sheehan, Boston, MA, for Defendant Simonton. Gregory A. Morgan, James V. Cann, Clarksburg, WV, and Cheryl Farine, Michael Vary, Cleveland, OH, for Defendant Beston. MEMORANDUM OPINION RICHARD L. WILLIAMS, Senior District Judge. This matter is before the Court on Besten's objections to the Magistrate Judge's Recommendation for Disposition. For the reasons stated below, the Court adopts the Magistrate Judge's Proposed Findings of Fact, rejects the Magistrate Judge's Recommendation for Disposition, grants summary judgment in favor of Besten, and dismisses with prejudice both Besten's counterclaim against Glass Equipment Development ("GED") and Simonton Windows' cross-claim against Besten. *228 I. This case involves fairly simple facts and straightforward claims. GED manufactures a folding, locking corner key, patented under U.S. Patent No. 4,530,195 ("the `195 patent"), which it sells through an exclusive licensing agreement with Allmetal. Small window companies such as Simonton Windows buy the folding, locking corner key from Allmetal for use in manufacturing insulated windows. Allmetal pays GED a royalty on the `195 patent for each folding, locking corner key sold. One method of making such windows using the folding, locking corner key is the linear extrusion method, which is patented under U.S. Patent No. 4,628,582 ("the `582 patent"). The `195 and `582 patents derive from the same application, but the Patent Office forced GED to divide the application, because one cannot combine a piece of equipment and a method of manufacture in the same patent. GED does not directly license the `582 patent, but provides buyers of its linear extruder the right to use the method described therein. Besten sells its own linear extruder. A number of window companies, such as Simonton Windows, purchased Besten's extruder for use in making insulated windows with the folding, locking corner key using the linear extrusion method. Consequently, GED filed suit against Simonton Windows and Besten on April 26, 1993. GED alleged that Simonton Windows had infringed the `582 patent by using the linear extrusion method to manufacture insulated windows with the folding, locking corner key, and that Besten had induced Simonton Windows to infringe the patent by selling it a linear extruder and instructing Simonton Windows how to use it to manufacture insulated windows. Besten filed a counterclaim against GED, alleging that its suit against Besten and Simonton Windows, and other similar threatened suits, were an attempt to eliminate competition and monopolize the market in violation of § 2 of the Sherman Antitrust Act. Simonton Windows also filed a cross-claim against Besten under an indemnification agreement between them. Simonton Windows subsequently reached a settlement with GED, in which they replaced Besten's linear extruders with ones made by GED. Besten filed a motion to dismiss the complaint (converted under FED.R.CIV.P. 12(b) into a motion for summary judgment) on the grounds that Simonton Windows had an implied license to use the `582 patent. The Court held that issues of material fact existed at that point as to whether commercially viable non-infringing uses for the folding, locking corner key existed, and denied Besten's motion on March 23, 1995. Besten filed another motion for summary judgment on its implied license defense on June 26, 1995, after further discovery. The motion was referred to the Magistrate Judge, who issued his Proposed Findings of Fact and Recommendation for Disposition on February 29, 1996, in which he recommended again denying Besten's motion for summary judgment because of the existence of an issue of material fact as to whether an implied license exists. Neither party objected to the Magistrate Judge's Proposed Findings of Fact,[1] and the Court therefore adopts them. Besten, however, did file objections to the Magistrate Judge's Recommendation for Disposition, arguing that it did not logically follow from his Findings of Fact. The standard of review is de novo. See FED.R.CIV.P. 72(b). II. In United States v. Univis Lens Co., 316 U.S. 241, 249, 62 S.Ct. 1088, 1093, 86 L.Ed. 1408 (1942), the Supreme Court stated that "[a]n incident to the purchase of any article, whether patented or unpatented, is the right to use and sell it, and upon familiar principles the authorized sale of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to the article sold." In the context of this case, then, if the only use of the folding, locking corner key is the `582 patent, then by authorizing through Allmetal the sale of the key, GED has relinquished its *229 monopoly on the `582 patent with respect to the key. The Court held, in its earlier denial of summary judgment, that Univis is not directly on point, because the Supreme Court reserved "questions which might arise if the [purchaser of the product] utilized the invention of some patent other than the patent which was practiced in part by the manufacturer." Id. at 248, 62 S.Ct. at 1092. In the context of this case, the purchaser of the folding, locking corner key does not use the `195 patent in using the key to make insulated windows; it uses the `582 patent. Therefore, the purchaser is "utiliz[ing] the invention of some patent other than the patent which was practiced in part by the manufacturer" of the key. In other words, two patents are involved in the making of the key and the insulated window, whereas in Univis only one patent was at issue between the patentee and the purchaser. Thus, as the Court previously noted, the question presented in the instant case is exactly the question reserved by the Supreme Court in Univis. The Federal Circuit partially addressed this question in Bandag, Inc. v. Al Bolsher's Tire Stores, Inc., 750 F.2d 903 (Fed.Cir. 1984). It held that the principle, enunciated above in Univis, that "the first sale by a patentee of an article embodying his invention exhausts his patent rights in that article" did not apply to the method patent at issue, because the method "cannot read on the equipment" used by the infringer. Id. at 924. In other words, the method patent at issue did not include in either its claims or its specifications the equipment relied upon by the infringer to establish an implied license. The negative implication of Bandag, however, is that a method patent which includes in either its claims or its specifications the equipment relied upon to establish the implied license would fall under the exhaustion principle articulated in Univis. The `582 patent includes the folding, locking corner key in claims 1 and 8, and so the exhaustion principle of Univis applies under Bandag. III. The question before the Court, therefore, and the question addressed by the Magistrate Judge's Recommendation for Disposition, is whether the folding, locking corner key "is capable of use only in practicing the ['582] patent." The standard for determining whether a noninfringing use exists is set forth in Cyrix Corp. v. Intel Corp., 846 F.Supp. 522 (E.D.Tex.1994). The Court in Cyrix held that for a use to be noninfringing, it must be commercially viable, and then went on to define what it meant by commercial viability: "Commercial viability" means the ability to sell a device at a profit and to afford the development and continuation of an ongoing business. "Profit" means the difference between what you sell a product for and what a product costs to make. Id. at 541. The Magistrate Judge found that there was a genuine issue of material fact as to whether a commercially viable noninfringing use of the folding, locking corner key exists, and so recommended denying Besten's motion for summary judgment. Besten claims that the Magistrate Judge's Recommendation for Disposition does not follow from his Findings of Fact. In particular, Besten focuses on Findings 5 and 9: 5. Based upon the record before the court, as of September 27, 1995, there was no evidence of current commercial use of the foldable locking corner keys other than its use with the lineal extruder method. The most recent possible use, other than with the lineal extruder method, was in 1988 at the Simonton Window Company. 9. There is no conclusive evidence as to the cost of the production of windows using the foldable locking corner keys as contrasted with the cost of production using fixed corner keys. Besten claims the fact that no current commercial use of the folding, locking corner key exists, and that the two prior commercial uses found by the Magistrate Judge in Findings 2-4 lasted for only brief periods of time before the companies in question adopted the linear extrusion method shows that no commercially viable use for the folding, locking corner key exists other than its use in the linear extrusion method. In particular, the *230 evidence shows that the two companies did not develop or continue their business using the folding, locking corner key in a manner other than the linear extrusion method. Besten further notes that GED introduced no evidence of the profitability of making insulated windows with the folding, locking corner key using a method other than the linear extrusion method to contradict Besten's evidence that no other profitable method exists. Nor did the Magistrate Judge make any relevant findings related to profitability: he addressed the profitability of making insulated windows using folding, locking corner keys as opposed to fixed corner keys instead of addressing the profitability of different methods of making insulated windows using folding, locking corner keys, which was the issue before him. In response, GED claims that the prior uses of other methods demonstrates that there are commercially viable uses for the folding, locking corner key other than the linear extrusion method. It argues that the companies abandoned the prior methods in favor of the linear extrusion method not because the prior methods were not profitable, but because the linear extrusion method was more so. In this very argument, however, GED demonstrates that it has failed to proffer any evidence to oppose Besten's evidence demonstrating that no commercially viable use exists. If the linear extrusion method is more profitable than other methods of making insulated windows using folding, locking corner keys, then such methods cannot "afford the development and continuation of an ongoing business." Any business using the folding, locking corner keys in such a method would be undersold by a business using the linear extrusion method. Consequently, under the Magistrate Judge's own Findings of Fact, Besten has proved that no issue of material fact exists with regard to the fact that no commercially viable noninfringing uses of the folding, locking corner key exist other than the linear extrusion method. The Magistrate Judge's Recommendation for Disposition which states that an issue of material fact exists as to whether such other commercially viable uses exist does not logically follow, and therefore his Recommendation for Disposition is rejected. Simonton Windows, because no other commercially viable use for the folding, locking corner key exists, has an implied license to use the method described in the `582 patent. Therefore, Besten cannot have induced Simonton Windows to infringe the `582 patent and is entitled to have summary judgment entered in its favor. IV. The granting of summary judgment in favor of Besten resolves the remaining outstanding issues in the case. Because Besten has a legal right to sell linear extruders to companies which purchase the folding, locking corner key for use in making insulated windows using the linear extrusion method, GED's lawsuit has not succeeded in establishing a monopoly. Besten, therefore, has suffered no antitrust damages, and consequently, its counterclaim is dismissed with prejudice. Likewise, Simonton Windows had a legal right to manufacture insulated windows using the linear extrusion method and Besten's extruder. Therefore, Simonton Windows was a volunteer in its settlement with GED, and Besten is not liable for the costs thereof. Thus, Simonton Windows cross-claim against Besten is also dismissed with prejudice. V. For the reasons stated above, the Court adopts the Magistrate Judge's Proposed Findings of Fact, rejects the Magistrate Judge's Recommendation for Disposition, grants summary judgment in favor of Besten, and dismisses with prejudice both Besten's counterclaim against Glass Equipment Development ("GED") and Simonton Windows' cross-claim against Besten. NOTES [1] Besten preserved an objection to Finding No. 7, but that objection is not material to the merits of Besten's motion for summary judgment.

NO. 07-12-0350-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D AUGUST 8, 2012 ______________________________ TERRY ALLEN REECE, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 69th DISTRICT COURT OF MOORE COUNTY; NO. 4419; HON. RON ENNS, PRESIDING _______________________________ Order of Dismissal _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Terry Allen Reece, appellant, attempts to appeal from his conviction for obstruction or retaliation. The trial court pronounced sentence and signed the judgment in August of 2011. Appellant did not file his notice of appeal until August 3, 2012. We dismiss for want of jurisdiction. To be timely, a notice of appeal must be filed within thirty days after the sentence is imposed or suspended in open court or within ninety days after that date if a motion for new trial is filed. TEX. R. APP. P. 26.2(a). Therefore, the deadline for perfecting an appeal here lapsed in September of 2011. A timely filed notice of appeal is essential to invoke our appellate jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If it is untimely, we can take no action other than to dismiss the proceeding. Id. at 523. Appellant's notice being untimely filed, we have no jurisdiction over the matter and dismiss the appeal. Accordingly, appellant’s appeal is dismissed.1 Per Curiam Do not publish. 1 The appropriate vehicle for seeking a belated appeal from a final felony conviction is by writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon 2005). 2 

IN THE SUPREME COURT OF PENNSYLVANIA In the Matter of : No. 58 DB 2019 (No. 45 RST 2019) : : JASON ROBERT MOUNTS : Attorney Registration No. 207439 : PETITION FOR REINSTATEMENT : FROM ADMINISTRATIVE SUSPENSION : (Washington County) ORDER PER CURIAM AND NOW, this 4th day of June, 2019, the Report and Recommendation of Disciplinary Board Member dated May 23, 2019, is approved and it is ORDERED that Jason Robert Mounts, who has been on Administrative Suspension, has never been suspended or disbarred, and has demonstrated that he has the moral qualifications, competency and learning in law required for admission to practice in the Commonwealth, shall be and is, hereby reinstated to active status as a member of the Bar of this Commonwealth. The expenses incurred by the Board in the investigation and processing of this matter shall be paid by the Petitioner. 

503 F.2d 631 Edgar T. MOYE, on behalf of himself and all others similarlysituated, Appellants,v.The CITY OF RALEIGH, a municipal corporation, et al., Appellees. No. 73-2515. United States Court of Appeals, Fourth Circuit. Argued April 4, 1974.Decided Oct. 1, 1974. L. Philip Covington, Garner, N.C., for appellant. Walter Lee Horton, Jr., Raleigh, N.C. (Horton, Conely & Michaels and Broxie J. Nelson, Raleigh, N.C., on brief) for appellees. Before BOREMAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit judges. BOREMAN, Senior Circuit Judge: 1 Plaintiff, Edgar T. Moye, brought this class action1 against the City of Raleigh, North Carolina, all other municipalities in the State of North Carolina, and certain designated municipal officers, seeking injunctive relief, a declaratory judgment, and damages. Moye alleges that he and other persons similarly situated are being deprived of their constitutional rights as a result of the legislative scheme of the defendants in the enactment and enforcement of municipal parking ordinances. The district court dismissed the action,2 holding that the complaint failed to present a substantial federal question or state a claim for relief. 2 Under the legislative system here attacked violators of municipal parking ordinances are issued tickets. The recipient of a ticket may pay a 'voluntary contribution' of a designated amount between one and five dollars to the municipality and avoid criminal prosecution or, alternatively, withhold payment and face prosecution. Those who are subject to prosecution are tried in a state court, with the right to a jury trial, and if found guilty must pay a fine (equal to the amount of the 'voluntary contribution') and the court costs all of which go to the state unified court system rather than to the municipality. Moye points out that a parking ordinance violator who elects to defend in a criminal trial rather than pay the 'voluntary contribution' subjects himself to the possibility of the payment of a greater sum of money and the entry of a criminal conviction on his record. Thus, he contends, this legislative scheme violates due process of law since alleged violators are the subjects of coercion which effectively denies them their right to trial by jury. He further complains that since those who refuse to make the 'voluntary contribution' are exposed to a greater monetary penalty (in the form of added court costs) and a record of conviction of a criminal offense, the class of persons exercising their right to trial are denied equal protection of the laws. Finally, Moye asserts that this system of prosecuting parking ordinance violators constitutes a bill of attainder.3 3 The complaint reveals that Moye is presently being subjected to criminal prosecution in state court for alleged parking ordinance violations as a result of his failure or refusal to pay the City of Raleigh the designated amount of 'voluntary contributions.' Plaintiff has not alleged or even suggested that his prosecution is being conducted in bad faith or for purposes of harassment. 4 These facts clearly compel application of the rule announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), whereby federal courts should refrain from interfering with a criminal prosecution pending in state court where the defendant has not shown extraordinary circumstances involving great and immediate threat to federally protected rights which cannot be protected in the defense of the action before the state court. See also Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). 5 Plaintiff has sought to distinguish Younger by noting that there the plaintiff sought to enjoin the state prosecution itself. While technically what the plaintiff seeks here is an injunction4 to prevent continued operation of the 'voluntary contribution' system, as a practical matter such equitable relief would 'result in precisely the same interference with and disruption of state proceedings that the longstanding policy limiting injunctions (against pending state prosecutions) was designed to avoid.' Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 767, 27 L.Ed.2d 688 (1971). The principles of equity, comity, and federalism which precluded issuance of a federal injunction against the pending state criminal prosecution in Younger, supra, likewise preclude issuance of such equitable relief in this case. To enjoin the continued operation of the 'voluntary contribution' system while a state criminal action is pending would constitute a 'disruptive interference with the operation of the state criminal process.' Perez v. Ledesma, 401 U.S. 82, 84, 91 S.Ct. 674, 676, 27 L.Ed.2d 701 (1971). Accordingly, we find no entitlement to the injunctive relief sought. 6 In addition to injunctive relief, plaintiff seeks a declaratory judgment adjudicating as unconstitutional the system allowing an accused to avoid prosecution for parking violations by making a 'voluntary contribution' to the City of Raleigh.5 'In cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and . . . where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well.' Samuels v. Mackell,401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971).6 Plaintiff freely admits that he has asserted the unconstitutionality of the 'voluntary contribution' system as a defense to his prosecution now pending in state court. A declaratory judgment would, in fact, adjudicate the merits of Moy's defenses to the state prosecution; such a judgment might then be res judicata and virtually take the case out of state court before it could be heard and decided. Public Service Commission v. Wycoff Co., 344 U.S. 237, 247, 73 S.Ct. 236, 97 L.Ed. 291 (1952); Perez v. Ledesma, 401 U.S. 82, 125, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (separate opinion of Justice Brennan). It is our conclusion that the issuance of a declaratory judgment would be inappropriate in the instant case and the request therefor should be denied. 7 Finally we are confronted with the claim for money damages for violation of plaintiff's civil rights pursuant to 42 U.S.C. 1983 and 1985(3).7 Plaintiff has not submitted his claim for money damages to the state court and he need not do so in order to invoke the jurisdiction of the federal courts. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Scott v. Vandiver, 476 F.2d 238 (4 Cir. 1973). However, it is clear that he has submitted many of the issues involved in this federal action for money damages to the state court by way of his defense to the pending state criminal prosecution. Judicial economy and the sound exercise of judicial discretion require that federal courts abstain until the state court has had an adequate opportunity to resolve those issues. We recognize that the decision of the state courts on those issues may be res judicata in this civil action. P I Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1 Cir. 1972); Norwood v. Parenteau, 228 F.2d 148 (8 Cir. 1955). But it is the plaintiff who chose to submit those issues to the state court and, having elected to try them there in the first instance, he cannot now be permitted to avoid his decision by initiating this action in federal court while the state action is pending. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); See also Moran v. Mitchell,354 F.Supp. 86 (E.D.Va.1973). 8 Ordinarily in such cases we would remand the case to the district court so that it might retain jurisdiction over the claim for money damages pending the outcome of the state proceeding. However, it appears likely that the outcome of those proceedings will be controlling with respect to many of the issues involved in the claim for money damages and would necessitate extensive revision or amendment of the pleadings. Accordingly, we conclude that the action for damages should be dismissed without prejudice to the right of the plaintiff to institute a new action for damages should he be so advised. 9 Additionally, we note that a substantial question exists as to whether the complaint properly states a cause of action against the municipalities and their officers under 42 U.S.C. 19838 and 1985(3).9 It would appear that the municipalities designated as defendants in this action are not 'persons' subject to suit within the meaning of those sections.10 Likewise the complaint does not appear to properly state a cause of action against the municipal officers.11 This jurisdictional issue was not raised in the district court but in the event a new action for damages is instituted it will be necessary for the district court to fully examine its jurisdiction prior to any consideration of the merits. 10 For the reasons herein stated we affirm the district court's dismissal of the action with respect to the plaintiff's claims for injunctive and declaratory relief but as to the action for damages it is dismissed without prejudice to the plaintiff's right to institute a new action should he be so advised. 11 Affirmed in part and the dismissal of the action for damages affirmed as modified. 1 There was no determination by the district court as to whether the plaintiff could maintain a class action. Since we conclude that the complaint should be dismissed on grounds which do not require such determination at this time, we intimate no opinion on that question 2 Since only local ordinances were involved it was not necessary to convene a three-judge court to hear the constitutional challenge. This is true even though similar ordinances existed in numerous municipalities throughout the state. Moody v. Flowers, 387 U.S. 97, 102, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967) 3 The district court concluded that the bill of attainder argument 'is frivolous and involves no substantial federal question.' 4 Jurisdiction of the claim for injunctive relief is asserted under 28 U.S.C. 1343 5 Jurisdiction for the requested declaratory judgment is asserted under 28 U.S.C. 2201 and 2202 6 We recognize that there are instances where a declaratory judgment is appropriate although a simultaneous request for injunctive relief must be denied. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). However, the instant case is clearly distinguishable from Steffel since there is here a pending state criminal prosecution. Steffel held that in the absence of a pending state prosecution equity, comity, and federalism do not mandate abstention from the mild relief of a declaratory judgment. However, when state criminal proceedings are pending the Court has promulgated firm rules of abstention which are in addition to the traditional equitable requirements that apply where there are no such proceedings pending. Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) Jurisdiction of the claim for money damages is asserted under 28 U.S.C. 1343. 8 'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.' 42 U.S.C. 1983 9 'If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.' 42 U.S.C. 1985(3) 10 It is well established that a municipality is not a 'person' within the meaning of 42 U.S.C. 1983, and therefore cannot be liable under that section in an action for damages (Monroe v. Pape, 365 U.S. 167, 191, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)) or injunctive relief (City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973)). It would appear that municipalities are also immune from suit under 42 U.S.C. 1985(3). Spampinato v. City of New York, 311 F.2d 439 (2 Cir. 1962), cert. denied, 372 U.S. 980, 83 S.Ct. 1115, 10 L.Ed.2d 144, rehearing denied, 374 U.S. 818, 83 S.Ct. 1699, 10 L.Ed.2d 1042; Agnew v. City of Compton, 239 F.2d 226 (9 Cir. 1957), cert. denied, 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910 11 Various municipal officials, including police chiefs, town managers, and members of city councils of all municipalities in North Carolina are designated as defendants in this action. They are sued individually and in their official capacities. There is a substantial question whether these officials can be sued 'in their official capacities' and the absence of any allegation that they acted 'in bad faith' may preclude proceeding against them as individuals. See Bennett v. Gravelle, 323 F.Supp. 203 (D.Md.1971), aff'd 451 F.2d 1011, petition for cert. dismissed 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692; see also Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Other possible jurisdictional questions would appear to be presented but the record is presently inadequate to warrant consideration thereof

44 F.3d 599 Doris DIAMOND, Plaintiff-Appellant,v.SPRINGFIELD METROPOLITAN EXPOSITION AUDITORIUM AUTHORITY,Defendant-Appellee. No. 94-2337. United States Court of Appeals,Seventh Circuit. Argued Oct. 6, 1994.Decided Jan. 10, 1995. Patrick v. Reilly, David A. Rolf (argued), Sorling, Northrup, Hanna, Cullen & Cochran, Springfield, IL, for plaintiff-appellant. Frederick P. Velde, Shannon Taylor, Heyl, Royster, Voelker & Allen, Springfield, IL, Karen L. Kendall (argued), Craig L. Unrath, Heyl, Royster, Voelker & Allen, Peoria, IL, for defendant-appellee. Before COFFEY, MANION and KANNE, Circuit Judges. COFFEY, Circuit Judge. 1 Doris Diamond brought a negligence action against the Springfield Metropolitan Exposition Auditorium Authority ("SMEAA"), the owner and operator of a public convention center located in Springfield, Illinois, claiming she suffered physical injuries as a result of a fall at the SMEAA's convention center. The district court granted the SMEAA's motion for summary judgment, ruling that Diamond's claim was barred by the Illinois Local Government and Government Employees Tort Immunity Act ("Tort Immunity Act"), 745 ILCS 10/3-106. We affirm. I. 2 The SMEAA owns and operates the Prairie Capital Convention Center in Springfield, Illinois, a multi-purpose facility used for meetings, shows, expositions, rodeos, boxing matches, wrestling events, basketball games and tournaments, karate tournaments, and other public events. The SMEAA was created pursuant to sections 205/3 and 4 of the Metropolitan Civic Center Act, 70 ILCS 205/3 and 4, which authorized counties or groups of counties to form authorities to promote, operate, and maintain expositions, conventions, theatrical, sports and cultural activities. The SMEAA is authorized by statute to plan, sponsor, hold, arrange, and finance fairs, exhibits, shows, and events. 3 It shall be the duty of the authority to promote, operate, and maintain expositions and conventions from time to time in the metropolitan area and in connection therewith to arrange, finance and maintain industrial, cultural, educational, trade and scientific exhibits and to construct, equip and maintain auditoriums and exposition buildings for such purposes. The authority is granted all rights and powers necessary to perform such duties. 4 70 ILCS 345/4; see also 70 ILCS 345/5(b). 5 Diamond was injured on July 9, 1993, while she was on her way to attend a career-related conference for sexual abuse counsellors at the Convention Center. Diamond tripped in the doorway to an underground tunnel leading to the Convention Center. In her negligence action against the SMEAA, Diamond alleged that she sustained broken bones and other permanent physical injuries as the result of her fall. 6 The SMEAA moved to dismiss1 Diamond's complaint, asserting that it was immune from liability for negligence under section 3-106 of the Tort Immunity Act, which provides that 7 [n]either a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton misconduct proximately causing such injury. 8 745 ILCS 10/3-106. The SMEAA contended that Diamond's injuries occurred on "public property intended or permitted to be used for recreational purposes" within the meaning of the Tort Immunity Act. To support its motion, the SMEAA filed an affidavit by Judith Meiron, the General Manager of the Convention Center, which stated that 9 [t]he Prairie Capital Convention Center is property intended or permitted to be used for recreational purposes. Recreational activities which have been permitted on the premises in the past include, but are not limited to, City basketball tournaments, World Wrestling Federation events, rodeos, boxing matches and karate tournaments. 10 Diamond opposed the SMEAA's motion, arguing that the Tort Immunity Act did not preclude her suit because the Convention Center could not be characterized as a recreational facility within the meaning of the Act and because her purpose for visiting the Convention Center had nothing to do with recreation. 11 The district court entered summary judgment in favor of the SMEAA, ruling that section 3-106 of the Tort Immunity Act barred Diamond's claim. The court observed that "[t]he determinative question in this case is whether the Prairie Capital Convention Center is public property intended or permitted to be used for recreational purposes," and thus "the question is what is the character of the Convention Center, not why was Plaintiff at the Convention Center." The court found that 12 [t]he Convention Center is a building which provides the people of Springfield and surrounding areas a place to hold public events. A great many of these events are recreational in nature. Even if some of these events are not strictly recreational, they are still examples of members of the community being offered available space to help facilitate their needs. The development and maintenance of buildings like the Convention Center should be encouraged. Since the Convention Center is used for recreational purposes a large percentage of the time, the Court concludes that for the purposes of section 3-106 the Convention Center is public property intended to be used for recreational purposes. II. 13 We review the district court's grant of summary judgment de novo, drawing all reasonable inferences from the record in the light most favorable to the non-moving party. Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Summary judgment is proper only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "The non-moving party cannot rest on the pleadings alone, but must identify specific facts to establish that there is a genuine triable issue." Donovan, 17 F.3d at 947. "Unless we find evidence sufficient to sustain a jury verdict in favor of the non-moving party, we will affirm the grant of summary judgment." Id. As a federal court sitting in diversity, we must also determine whether the district court properly applied the relevant state substantive law. Colip v. Clare, 26 F.3d 712, 714 (7th Cir.1994). 14 The sole issue raised by this appeal is whether section 3-106 of the Tort Immunity Act immunizes the SMEAA from liability for negligence in its operation of a public, multi-purpose convention center. Our determination of this issue turns on the proper interpretation of the phrase "public property intended or permitted to be used for recreational purposes" in section 3-106 of the Tort Immunity Act. This case presents a question of Illinois law that to date has not been addressed by the Illinois Supreme Court. Our duty is to determine, as best we can, how this dispute would be resolved by the Illinois Supreme Court. Todd v. Societe BIC, S.A., 21 F.3d 1402, 1405 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 359, 130 L.Ed.2d 312 (1994). 15 Section 3-106 of the Tort Immunity Act provides immunity to local public entities against negligence claims arising from "the existence of a condition of any public property intended or permitted to be used for recreational purposes." 745 ILCS 10/3-106; Hanover Ins. Co. v. Board of Education, 240 Ill.App.3d 173, 181 Ill.Dec. 110, 112, 608 N.E.2d 183, 185 (1992); Ramos v. Waukegan Community Unit School District, 188 Ill.App.3d 1031, 136 Ill.Dec. 527, 531, 544 N.E.2d 1302, 1306 (1989). Section 3-106 was intended "to encourage the development and maintenance of parks, playgrounds and similar [recreational] areas." Hanover, 181 Ill.Dec. at 112, 608 N.E.2d at 185. The relevant inquiry with respect to immunity under the Act is based on "the character of the property, rather than the injured party's use of that property." Id. (section 3-106 immunity applied where plaintiff was injured on a playground while performing masonry repairs); Ramos, 136 Ill.Dec. at 531, 544 N.E.2d at 1306 (immunity applied where plaintiff was engaged in a recreational activity on non-playground school property). 16 Diamond argues that the Convention Center is neither "intended [nor] permitted to be used for recreational purposes" within the meaning of the Tort Immunity Act because the recreational activities held at the Center--including basketball tournaments, wrestling events, rodeos, boxing matches and karate tournaments--are all spectator events. One Illinois court has held that a facility that was used for a spectator event on one occasion cannot be characterized as recreational property within the scope of section 3-106. See, e.g., John v. Macomb, 232 Ill.App.3d 877, 173 Ill.Dec. 375, 377, 596 N.E.2d 1254, 1256, appeal denied, 147 Ill.2d 627, 180 Ill.Dec. 150, 606 N.E.2d 1227 (1992). In John, the plaintiff was injured while attending a publicly-sponsored festival held on the courthouse lawn. In denying the government's motion for summary judgment based on tort immunity under section 3-106, the court stated: 17 From the record it cannot be determined whether "Heritage Days" is a recreational use of the courthouse lawn. Nor does the record disclose whether defendants customarily permitted any recreational activity on the lawn. The record indicates that on the night in question a band played. But permitting a band concert, without more, does not so alter the character of a public area not generally used for recreational activity that it would necessarily fall within the intended scope of section 3-106 of the Act. In our opinion, the legislative intent of the Act is to immunize governmental entities from liability for simple negligence in areas where public activities of a sportive nature, as opposed to stage entertainment, are permitted. Similarly, the record discloses that a concession stand was permitted on the premises. This is surely a business pursuit--not one that, in itself or combined with the proximity of a band concert, renders the grounds a recreational facility for purposes of section 3-106 of the Act. 18 John, 173 Ill.Dec. at 377, 596 N.E.2d at 1256. In John, the only evidence presented on the recreational use of the courthouse lawn was the "Heritage Days" festival itself, which included a band concert. This paucity of evidence precluded the court from ascertaining whether the courthouse lawn was customarily either intended or permitted to be used for recreational purposes. Id. 19 Unlike the defendant in John, the SMEAA presented the district court with uncontradicted evidence that the Convention Center had hosted several public activities of a "sportive nature" in the past, including city basketball tournaments, wrestling events, rodeos, boxing matches, and karate tournaments. These activities are not only "sportive" in nature, but recreational by definition. "Recreation" is synonymous with "diversion" or "play." Webster's Third New Int'l Dictionary 1899 (1981); see also Frazier v. Norfolk, 234 Va. 388, 362 S.E.2d 688, 690 (1987) (a facility is recreational "where members of the public are entertained and diverted, either by their own activities or by the activities of others"). Without question, the participants in--as well as the spectators of--the basketball tournaments, wrestling events, rodeos, boxing matches, and karate tournaments held at the Convention Center were engaged in some form of diversion or play. The fact that some members of the public enjoyed the diversion offered by these events as spectators does not alter their recreational character. 20 Diamond also argues that section 3-106 immunity applies only to facilities used primarily for recreational purposes, and that the Convention Center's primary use raises a genuine issue of material fact. In Bubb v. Springfield School District 186, 263 Ill.App.3d 942, 200 Ill.Dec. 813, 636 N.E.2d 4 (1994),2 the court stated that section 3-106 immunity applies "if injury occurs while plaintiff is engaged in a recreational activity in an area primarily used for recreational activity," and that "where property which is primarily nonrecreational is actually used for nonrecreational purposes there should be no immunity." Bubb, 200 Ill.Dec. at 815, 636 N.E.2d at 6. In Bubb, the plaintiff was injured while riding her bicycle on a school sidewalk. The complaint alleged that the school district was negligent in failing to maintain the concrete sidewalk in a safe condition. The court imposed its own unique construction of the test for determining the character of public property, ruling that "there is immunity under section 3-106 for dual-purpose property where the primary purpose is recreational, however it is used; there is immunity under section 3-106 for dual-purpose property where the primary purpose is nonrecreational, but only where the property is used for recreational purposes." Id. 21 We decline to follow the Illinois appellate court's construction of section 3-106 announced in Bubb. We think it improvident to follow an intermediate state court's interpretation of state law if we are convinced that the state's highest court would decide the issue differently. Robinson v. Ada S. McKinley Community Services, Inc., 19 F.3d 359, 363 (7th Cir.1994); Smith v. Navistar Int'l Transportation Corp., 957 F.2d 1439, 1443 (7th Cir.1992). The test announced in Bubb ignores established and well-reasoned Illinois appellate court decisions holding that section 3-106 immunity is triggered by the recreational character of the property, i.e., whether the property in question is "intended or permitted to be used for recreational purposes." 745 ILCS 10/3-106. Nothing in the statute requires an examination of the property's primary purpose.3 Indeed, an inquiry into a facility's primary purpose would undoubtedly involve genuine issues of material fact, precluding summary judgment in virtually all cases under section 3-106 of the Tort Immunity Act. We do not believe the Illinois legislature intended to create a triable issue of fact each and every time a public entity raised the bar of tort immunity under section 3-106 of the Act. 22 Moreover, with the exception of Bubb, Illinois appellate courts have consistently refused to consider the plaintiff's use of the property in determining its character. See, e.g., Hanover, 181 Ill.Dec. at 112-13, 608 N.E.2d at 185-86; Ramos, 136 Ill.Dec. at 531, 544 N.E.2d at 1306. Immunity under section 3-106 depends upon the character of the property as a whole, rather than whether the injured person was engaged in a nonrecreational activity. See Kirnbauer v. Cook County Forest Preserve Dist., 215 Ill.App.3d 1013, 159 Ill.Dec. 499, 506, 576 N.E.2d 168, 175 (1991) (immunity applied to an area of a forest preserve used to block vehicle access); Annen v. McNabb, 192 Ill.App.3d 711, 139 Ill.Dec. 669, 670, 548 N.E.2d 1383, 1384 (1990) (immunity applied where plaintiff who was watching a baseball game was injured in a park restroom). 23 The legislative history of section 3-106 supports this broad interpretation of the statute. Prior to its amendment in 1986, section 3-106 of the Tort Immunity Act applied only to public property "intended or permitted to be used as a park, playground or open area for recreational purposes." Ill.Rev.Stat.1985, ch. 85, para. 3-106. In 1986, the legislature amended the statute to provide immunity for "any public property intended or permitted to be used for recreational purposes,...." 745 ILCS 10/3-106 (emphasis added). Amended section 3-106 still provided immunity for parks, playgrounds, and open areas, but added "buildings or other enclosed recreational facilities" to the illustrative list of immunized public properties. Id. In our opinion, the 1986 amendment to section 3-106 evidences the legislature's intent to broaden the scope of immunity provided by the Tort Immunity Act beyond parks and playgrounds to encompass other properties where recreational uses are intended or permitted. See Bonfield v. Jordan, 202 Ill.App.3d 638, 148 Ill.Dec. 110, 560 N.E.2d 412 (1990) (where the court observed that amended section 3-106 would apply to a village hall rented for a private party). The plain language of section 3-106 of the Tort Immunity Act grants owners of public property immunity from negligence suits where the property is "intended or permitted to be used for recreational purposes." 745 ILCS 10/3-106; see Hanover, 181 Ill.Dec. at 111, 608 N.E.2d at 184 ("[t]he best indicator of [legislative] intent is the language of the statute itself"). We refuse to infer any "primary purpose" limitation not found in the language of the statute. III. 24 Diamond's negligence claim against the SMEAA for its alleged failure to maintain the Convention Center's underground tunnel in a reasonably safe condition is barred by section 3-106 of the Tort Immunity Act because the Convention Center is "public property ... permitted to be used for recreational purposes" within the meaning of the Act.4 The judgment of the district court is 25 AFFIRMED. 1 We are of the opinion that the district court's action in treating SMEAA's motion, including its affidavits in support of the motion to dismiss Diamond's complaint, as a motion for summary judgment was proper. Fed.R.Civ.P. 12(b) 2 We note that the Illinois Supreme Court granted leave to appeal in Bubb v. Springfield School District 186 on December 6, 1994 (Ill.Sup.Ct. No. 777-62) 3 We note that this case does not require us to determine whether immunity attaches to public property permitted to be used for recreational purposes on a single occasion 4 We affirm the district court's conclusion that section 3-106 immunity applies, but in so doing, we find it unnecessary to comment on the court's reasoning that the Convention Center is public property intended to be used for recreational purposes. Section 3-106 grants immunity for public property "intended or permitted to be used for recreational purposes." Because the Convention Center was dedicated to a number of uses, including recreational uses, we need not address the SMEAA's argument that the Center was intended for recreational use

56 F.3d 1389 Hopev.City of Hueytown** NO. 93-7075 United States Court of Appeals,Eleventh Circuit. May 15, 1995 1 Appeal From: N.D.Ala., No. 92-00126-CV-N-S 2 AFFIRMED. ** Local Rule 36 case

VELASCO v. RUIZ Skip to Main Content Accessibility Statement Help Contact Us e-payments Careers Home Courts Decisions Programs News Legal Research Court Records Quick Links OSCN Found Document:VELASCO v. RUIZ Previous Case Top Of Index This Point in Index Citationize Next Case Print Only VELASCO v. RUIZ2019 OK 46Case Number: 117706Decided: 06/18/2019THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2019 OK 46, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. CINDY ESQUEDA VELASCO, Petitioner/Appellee, v. JAIRO VARGAS RUIZ, Respondent/Appellant. ON APPEAL FROM THE DISTRICT COURT FOR OKLAHOMA COUNTY ¶0 Mother filed a paternity petition seeking a determination of parentage, custody, visitation and child support. Attempts to serve alleged father were fraught with procedural errors. The trial court authorized service by publication; however, mother's publication notice did not comply with the timing requirements outlined in 12 O.S.Supp. 2017 § 2004(C)(3)(c). Finally, after attempting service by publication, mother's counsel filed a motion seeking a default but failed to serve the motion on father's attorney. After the trial court issued a default paternity ruling, father sought to vacate the judgment. Cumulative problems with service of process and notice warranted vacating the judgment but the trial court refused to set it aside. Father filed the instant appeal. We retained the matter and now reverse. TRIAL COURT'S ORDER DENYING MOTION TO VACATE DEFAULT JUDGMENT IS REVERSED; MATTER REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION Aharon Hernandez Manley, Hernandez Manley, Oklahoma City, OK, for Jairo Vargas Ruiz, Appellant -and- Richard Parr, Tomerlin, High & High, Oklahoma City, OK, for Jairo Vargas Ruiz, Appellant Haley V. Potts, The Potts Law Office, PLLC, Oklahoma City, OK, for Jon Christian, Appellee GURICH, C.J. Facts & Procedural History ¶1 This case originated as a paternity proceeding involving Petitioner Cindy Esqueda Velasco ("Mother") and Respondent Jairo Vargas Ruiz ("Father"). On February 15, 2018, Mother filed a petition against Father seeking an order to establish his legal paternity to two minor children, Y.A.V.E., born February 2015, and Y.V.E., born August 2017. As evidence of parentage, the petition alleged that Father executed an "Acknowledgment of Paternity" for each child and that his name appears on each birth certificate. Her petition further requested sole legal custody over both children, limited visitation rights to Father, and an order requiring monthly payment of child support.1 ¶2 Mother attempted service of the petition by delivering a copy of the pleadings to three different addresses via certified mail, return receipt for merchandise: one attempted mailing to Calvillo, Mexico and two attempts in Riverside, California. None of the attempts was made by "delivery restricted to the addressee" as required in 12 O.S.Supp. 2011 § 2004(C)(2)(b). Counsel for Father filed a Special Appearance and Motion to Dismiss contesting Oklahoma's jurisdiction to hear the parentage case and challenging the sufficiency of service of process. On May 9, 2018, despite noting the problems with service, the trial court overruled Father's motion to dismiss and adjudicated the issue of Father's parentage. ¶3 In response to the court's concerns about the sufficiency of service of process, Mother's attorney filed an affidavit of due diligence and moved for permission to serve Father via publication. The motion was not mailed to Father's attorney. On June 26, 2018, the trial court issued an order authorizing service by publication; nevertheless, the order was not filed until July 6, 2018. Again, nothing in the record indicates this order was delivered to Father's attorney. In the notice, Father was given until August 6, 2018 to file an answer to Mother's petition, otherwise the "petition [would] be taken as true and judgment for [Mother would] be rendered against [Father] according to the prayer of [Mother's] petition." The notice was published for three consecutive weeks in the Journal Record of Oklahoma City.2 ¶4 When no answer was filed, Mother filed a motion seeking a default judgment on August 14, 2018. The motion was set for hearing on September 19, 2018, but again, was not mailed to opposing counsel. Mother appeared at the hearing and secured a default judgment against Father. The trial judge approved a Decree of Paternity which was filed on September 21, 2018. The Decree concluded subject matter and personal jurisdiction were proper; determined Father's acknowledgment of paternity necessitated a finding of parentage to both children; awarded Mother sole legal custody of the children; suspended Father's visitation until further order; and awarded Mother current and past due child support. ¶5 On October 1, 2018, just ten days after the final order was filed, Father entered another special appearance and urged the trial court to vacate the default paternity judgment. Father again argued that service of process was defective. In particular, Father maintained that the publication notice was defective, as it shortened Father's statutorily allotted time to answer. On November 2, 2018 arguments were heard and offers of proof were made on Father's motion to vacate. On December 20, 2018, a journal entry was filed overruling Father's motion to vacate. Father filed a timely appeal of the judgment. We retained the matter, and now reverse the trial court's decision. Standard of Review ¶6 Our role in reviewing a trial court decision either vacating or refusing to vacate a judgment is to assess whether there has been an abuse of discretion. Ferguson Enters. v. H. Webb Enters. Inc., 2000 OK 78, ¶ 5, 13 P.3d 480, 482. An abuse of discretion occurs when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling. Spencer v. Okla. Gas & Elec. Co., 2007 OK 76, ¶ 13, 171 P.3d 890, 895. When reviewing a lower court ruling either vacating or refusing to vacate a default judgment, we have consistently recognized that default judgments are disfavored. Ferguson Enters., ¶ 5, 13 P.3d at 482; see also Midkiff v. Luckey, 1966 OK 49, ¶ 6, 412 P.2d 175, 176 (quoting the syllabus of State Life Ins. Co. v. Liddell et al., 1936 OK 662, 61 P.2d 1075). Our decisions also distinguish between seeking to vacate a default judgment and urging the court to vacate a judgment when the parties have had at least one opportunity to be heard on the merits. Ferguson Enters., ¶ 5, 13 P.3d at 482. Judicial discretion to vacate a default judgment should always be exercised so as to promote the ends of justice. Id. Analysis ¶7 Under the Oklahoma Uniform Parentage Act, the "court shall issue an order adjudicating the paternity of a man who: 1. [a]fter service of process is in default; and 2. [i]s found by the court to be the father of the child." 10 O.S.Supp. 2006 § 7700-634. As such, the court had authority to order default judgment, only if service of process was proper. In the present case, the Decree of Paternity purports to have been entered by default because "[Father] failed to appear after being properly served on February 20, 2018." However, this language in the Decree of Paternity is inconsistent with the record; issues with service by certified mail are the reason Mother requested authorization to perform service via publication. Mother never properly accomplished service in any manner as outlined by Section 2004. Accordingly, it was an abuse of discretion by the trial judge in refusing to vacate the default judgment under the circumstances presented. ¶8 The rules for proper service are delineated in 12 O.S.Supp. 2017 § 2004. Service by mail shall be made by "certified mail, return receipt requested and delivery restricted to the addressee." 12 O.S.Supp. 2017 § 2004(C)(2)(b) (emphasis added). Additionally, service by mail should not be "the basis for an entry of a default or a judgment by default unless the record contains a return receipt showing acceptance [or refusal] by the defendant . . .." 12 O.S.Supp. 2017 § 2004(C)(2)(c). If "the defendant demonstrates to the court that the return receipt was signed or delivery was refused by an unauthorized person" then any "judgment by default shall be set aside upon motion of the defendant" within thirty days of such judgment. Id. ¶9 Mother's attempts to serve Father by mail failed to meet the standard outlined in 12 O.S.Supp. 2017 § 2004(C)(2), which provides service "shall be accomplished by mailing a copy of the summons and petition by certified mail, return receipt requested and delivery restricted to the addressee."3 Our cases make clear that the Legislature's use of the word shall is considered mandatory. Okla. Pub. Emps. Ass'n v. State ex rel. Okla. Office of Pers. Mgmt., 2011 OK 68, ¶ 13 n. 18, 267 P.3d 838, 845. Accordingly, in order to properly serve Father, Mother was responsible for sending a copy of the summons and petition by certified mail with delivery restricted to the addressee. See Woods v. Woods, 1992 OK 64, ¶ 5, 830 P.2d 1372, 1374 ("Oklahoma's Pleading Code, 12 O.S.1991 2004(C)(2)(b) mandates that service of process can only be effected when delivery is restricted to the addressee.").4 ¶10 Although Mother sent each of the mailings by certified mail and requested a return receipt, she did not select "restricted delivery" as required by Section 2004(C)(2)(b). Moreover, Father denies signing for any of the three defective attempted deliveries. Because Mother's counsel failed to comply with the statutory requirements for service by mail, the record demonstrates insufficient service of process on Father. The trial court highlighted this very problem in its order denying Father's motion to dismiss, noting "service may still be an issue."5 ¶11 After recognizing the apparent defects in Mother's attempted service of process by mail, the trial court authorized service by publication. Service by publication may be made if the plaintiff's attorney files a separate affidavit with the court stating "that with due diligence service cannot be made upon the defendant by any other method." 12 O.S.Supp. 2017 § 2004(C)(3)(a). In other words, the very act of seeking permission to serve a party by publication requires an acknowledgment that diligent efforts to obtain service by other means have failed. In re Turkey Creek Conservancy Dist., 2008 OK 8, ¶ 20, 177 P.3d 558, 563 (quoting Bomford v. Socony Mobil Oil Co., 1968 OK 43, ¶ 12, 440 P.2d 713, 718). Service by publication "shall be made by publication of a notice, signed by the court clerk, one (1) day a week for three (3) consecutive weeks in a newspaper authorized by law to publish legal notices which is published in the county where the petition is filed." 12 O.S.Supp. 2017 § 2004(C)(3)(c). The statute also requires the notice to: state that the named defendant[ ]. . . [has] been sued and must answer the petition on or before a time to be stated (which shall not be less than forty-one (41) days from the date of the first publication), or judgment, the nature of which shall be stated, will be rendered accordingly. (emphasis added). Id. Accordingly, Mother was responsible for providing sufficient notice by publication and allowing Father at least forty-one days from the date of the first publication to answer her petition. This did not occur. ¶12 After obtaining an order allowing service by publication, Mother's notice was published in an Oklahoma City legal newspaper on July 9, July 16, and July 23, 2018. The notice stated that Father "must answer Plaintiff's petition filed herein on or before the 6th day of August, 2018, or said petition will be taken as true and judgment for said Plaintiff will be entered against [Father] according to prayer of Plaintiff's petition."6 (emphasis added). The August 6 deadline was only twenty-eight days from the date of the first publication and Mother's subsequent Motion for Default Judgment based on Father's failure to answer was filed only thirty-six days after the date of the first publication. The answer deadline should have been set no sooner than August 19, 2018. "This is a plain violation of this statute, which provides that the time stated in the publication notice for the defendant to answer shall not be less than 41 days from the date of its first publication. This length of time is a matter of right...." Aggers v. Bridges, 1912 OK 156, 122 P. 170, 171, overruled in part by Spears v. Preble, 1983 OK 8, 661 P.2d 1337 (overruling the holding in Aggers to the extent it prevented a trial court from correcting a mistake in process where doing so would not change the nature of the transaction or occurrence which is the subject of the claim or defense). The violation of such a substantial right undermines jurisdiction and is a reversible error. Aggers, 1912 OK 156, 122 P. 107, 171 ; see also Zipperle v. Smith, 1956 OK 303, ¶ 19, 304 P.2d 310, 313 ("In Davis v. Rowland, 206 Okl. 257, 242 P.2d 716,717, it is said in the third paragraph of the syllabus: 'Where jurisdiction of the defendant in an action is sought to be obtained by publication service alone, the affidavit for publication, as well as the publication notice, are matters jurisdictional, and, in order to obtain jurisdiction of the defendant in such case, both the affidavit for publication and the publication notice must comply with the provisions of the statute.'"). ¶13 Further, Mother did not provide Father's counsel with copies of the pleadings pertaining to service by publication. Even more troubling is the failure to provide Father's attorney with notice of the motion seeking judgment by default.7 ¶14 If "the defendant demonstrates to the court that the return receipt was signed or delivery was refused by an unauthorized person" then any "judgment by default shall be set aside upon motion of the defendant" within thirty days of such judgment. Id. When this Court reviews an order refusing to vacate a default judgment, we consider the following factors: 1) default judgments are not favored; 2) vacation of a default judgment is different from vacation of a judgment where the parties have had at least one opportunity to be heard on the merits; 3) judicial discretion to vacate a default judgment should always be exercised so as to promote the ends of justice; 4) a much stronger showing of abuse of discretion must be made where a judgment has been set aside than where it has not. Ferguson, 2000 OK 78, ¶ 5, 13 P.3d 480, 482. We also consider "whether substantial hardship would result from granting or refusing to grant the motion to vacate." Id. ¶15 Considering the multitude of legal errors, weighing public policy and other equitable factors, we find it was error to deny Father's timely Motion to Vacate Default Judgment. Further, no substantial hardship would have resulted from granting Father's motion to vacate. Conclusion ¶16 The trial court's denial of Father's motion to vacate the default judgment constituted an abuse of discretion. Accordingly, we reverse the order denying Father's motion to vacate the default judgment, and the matter is remanded to the trial court to proceed in a manner consistent with this opinion. TRIAL COURT'S ORDER DENYING MOTION TO VACATE DEFAULT JUDGMENT IS REVERSED; MATTER REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION ¶17 Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert, Combs, JJ., concur. FOOTNOTES 1 Mother acknowledged that the Oklahoma Department of Human Services was entitled to notice as a necessary party, due to Mother's receipt of state financial assistance. See 43 O.S.Supp. 2011 § 112(F). However, the notice to OKDHS was sent via facsimile. Section 112(F) requires service "according to Section 2004 of Title 12 of the Oklahoma Statutes." However, counsel for OKDHS signed the September 21, 2018, Decree of Paternity, thereby curing any defect in the notice. 2 Notice was published on July 9, 2018, July 16, 2018, and July 23, 2018. Publisher's Affidavit filed July 24, 2018, O.R. at 41. 3 12 O.S.Supp. 2017 § 2004(C)(2) reads: 2. SERVICE BY MAIL. a. At the election of the plaintiff, a summons and petition may be served by mail by the plaintiff's attorney, any person authorized to serve process pursuant to subparagraph a of paragraph 1 of this subsection, or by the court clerk upon a defendant of any class referred to in division (1), (3) or (5) of subparagraph c of paragraph 1 of this subsection. Service by mail shall be effective on the date of receipt or if refused, on the date of refusal of the summons and petition by the defendant. b. Service by mail shall be accomplished by mailing a copy of the summons and petition by certified mail, return receipt requested and delivery restricted to the addressee. When there is more than one defendant, the summons and a copy of the petition or order shall be mailed in a separate envelope to each defendant. If the summons is to be served by mail by the court clerk, the court clerk shall enclose the summons and a copy of the petition or order of the court to be served in an envelope, prepared by the plaintiff, addressed to the defendant, or to the resident service agent if one has been appointed. The court clerk shall prepay the postage and mail the envelope to the defendant, or service agent, by certified mail, return receipt requested and delivery restricted to the addressee. The return receipt shall be prepared by the plaintiff. Service by mail to a garnishee shall be accomplished by mailing a copy of the summons and notice by certified mail, return receipt requested, and at the election of the judgment creditor by restricted delivery, to the addressee. c. Service by mail shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing acceptance by the defendant or a returned envelope showing refusal of the process by the defendant. Acceptance or refusal of service by mail by a person who is fifteen (15) years of age or older who resides at the defendant's dwelling house or usual place of abode shall constitute acceptance or refusal by the party addressed. In the case of an entity described in division (3) of subparagraph c of paragraph 1 of this subsection, acceptance or refusal by any officer or by any employee of the registered office or principal place of business who is authorized to or who regularly receives certified mail shall constitute acceptance or refusal by the party addressed. A return receipt signed at such registered office or principal place of business shall be presumed to have been signed by an employee authorized to receive certified mail. In the case of a state municipal corporation, or other governmental organization thereof subject to suit, acceptance or refusal by an employee of the office of the officials specified in division (5) of subparagraph c of paragraph 1 of this subsection who is authorized to or who regularly receives certified mail shall constitute acceptance or refusal by the party addressed. If delivery of the process is refused, upon the receipt of notice of such refusal and at least ten (10) days before applying for entry of default, the person elected by plaintiff pursuant to subparagraph a of this paragraph to serve the process shall mail to the defendant by first-class mail a copy of the summons and petition and a notice prepared by the plaintiff that despite such refusal the case will proceed and that judgment by default will be rendered against him unless he appears to defend the suit. Any default or judgment by default shall be set aside upon motion of the defendant in the manner prescribed in Section 1031.1 of this title, or upon petition of the defendant in the manner prescribed in Section 1033 of this title if the defendant demonstrates to the court that the return receipt was signed or delivery was refused by an unauthorized person. A petition shall be filed within one (1) year after the defendant has notice of the default or judgment by default but in no event more than two (2) years after the filing of the judgment. 4 See also Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d 794, 802 (10th Cir. 2008) (finding service to be invalid and not in substantial compliance with 12 O.S. § 2004(C)(2) when plaintiff failed to obtain restricted delivery to an authorized person.). 5 Journal Entry Respondent's Application to Dismiss, O.R. at 30. 6 Publisher's Affidavit, O.R. at 41. 7 "In matters in default in which an appearance, general or special, has been made or a motion or pleading has been filed, default shall not be taken until a motion therefore has been filed in the case and five (5) days notice of the date of the hearing is mailed or delivered to the attorney of record for the party in default." Okla.Dist.Ct. Rule 10. "Rule 10's requirement for filing a motion and giving notice is applicable any time a party appears before a court, whether by filing a document or physically participating in a hearing." Schweigert v. Schweigert, 2015 OK 20, ¶ 15, 348 P.3d 696, 701 (emphasis added). Failing to give notice as required by Rule 10 is an irregularity in the proceedings that affects the aggrieved party's substantial rights and is cause for vacating the district court's default judgment. Id. ¶ 8, 348 P.3d at 699. This notice requirement equally applies when counsel has first appeared through a special appearance. See Vaillencourt v. Vaillencourt (1979) 93 Mich App 344, 287 NW2d 230 ( "one who 'appears', be it a 'special appearance' or a 'general' one, is required to have notice . . . before the taking of a default judgment. It is immaterial that a defendant entitled his original pleading a 'special appearance'; only the generic term' appearance' retains signficiance.").   Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Supreme Court Cases  CiteNameLevel  1992 OK 64, 830 P.2d 1372, 63 OBJ 1443, Woods v. WoodsDiscussed  2000 OK 78, 13 P.3d 480, 71 OBJ 2590, FERGUSON ENTERPRISES, INC. v. H. WEBB ENTERPRISES, INC.Discussed at Length  1952 OK 135, 242 P.2d 716, 206 Okla 257, DAVIS v. ROWLANDDiscussed  1936 OK 662, 61 P.2d 1075, 178 Okla. 114, STATE LIFE INS. CO. v. LIDDELLDiscussed  1956 OK 303, 304 P.2d 310, ZIPPERLE v. SMITHDiscussed  1966 OK 49, 412 P.2d 175, MIDKIFF v. LUCKEYDiscussed  1968 OK 43, 440 P.2d 713, BOMFORD v. SOCONY MOBIL OIL CO.Discussed  2007 OK 76, 171 P.3d 890, SPENCER v. OKLAHOMA GAS & ELECTRIC COMPANYDiscussed  2008 OK 8, 177 P.3d 558, IN THE MATTER OF THE TURKEY CREEK CONSERVANCY DISTRICTDiscussed  2011 OK 68, 267 P.3d 838, OKLA. PUBLIC EMPLOYEES ASSOC. v. STATE ex rel. OKLA. OFFICE OF PERSONNEL MANAGEMENTDiscussed  2015 OK 20, 348 P.3d 696, SCHWEIGERT v. SCHWEIGERTDiscussed  1912 OK 156, 122 P. 170, 31 Okla. 617, AGGERS v. BRIDGESDiscussed at Length  1983 OK 8, 661 P.2d 1337, Spears v. PrebleDiscussed Title 10. Children  CiteNameLevel  10 O.S. 7700-634, Order Adjudicating Paternity - When IssuedCited Title 12. Civil Procedure  CiteNameLevel  12 O.S. 2004, 12 O.S. 2004, ProcessDiscussed at Length Title 43. Marriage  CiteNameLevel  43 O.S. 112, Care, Custody, and Support of Minor ChildrenCited oscn EMAIL: webmaster@oscn.net Oklahoma Judicial Center 2100 N Lincoln Blvd. Oklahoma City, OK 73105 courts Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals District Courts decisions New Decisions Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals programs The Sovereignty Symposium Alternative Dispute Resolution Early Settlement Mediation Children's Court Improvement Program (CIP) Judicial Nominating Commission Certified Courtroom Interpreters Certified Shorthand Reporters Accessibility ADA Contact Us Careers Accessibility ADA

207 Cal.App.3d 1 (1989) 254 Cal. Rptr. 556 JAVIER C. LOPEZ, Plaintiff and Appellant, v. CITY OF OXNARD et al., Defendants and Respondents. Docket No. B028882. Court of Appeals of California, Second District, Division Six. January 10, 1989. *4 COUNSEL Brown & Goldberg and Louis Goldberg for Plaintiff and Appellant. Kosmo, Cho & Brown, Duane Skavdahl, Spray, Gould & Bowers and Susan B. Gans-Smith for Defendants and Respondents. OPINION GILBERT, J. Plaintiff Javier C. Lopez was arrested three times on an outstanding warrant issued by the municipal court. The person named in the warrant had the same name, birth date, address and physical description as plaintiff Lopez. There was, however, a problem. Lopez was not the person named in the warrant. The court offered a solution. After his first arrest, the court prepared a document called a "disposition sheet" for Lopez to carry with him. It stated that Lopez was not the person named in the warrant. When arrested again, he showed the disposition sheet to the arresting officers and the sheriff. They refused to verify its validity. Lopez filed an action for damages for false imprisonment and for negligence against the defendant public entities and their employees. He appeals the judgment of dismissal, entered after defendants' demurrers to his second amended complaint were sustained without leave to amend. *5 Lopez asserts, among other things, that the court erred in its ruling because the arresting officers and the jail personnel should have verified the validity of the court order he held. Because neither the police officers nor the jailers breached any duty in refusing to consider the disposition sheet he showed to them, we affirm the judgment. FACTS On April 26, 1981, the Oxnard City Police Department arrested and booked an individual for driving under the influence and driving without a license. The man arrested gave Lopez's date of birth, address and name as his own. He posted bail and was released the next day. On May 12, 1981, he failed to appear in the municipal court and a warrant was issued for his arrest. On July 23, 1981, the Oxnard City Police Department arrested Lopez for a misdemeanor. The outstanding warrant of April 26 came to light, and ultimately the court determined Lopez was not the individual sought under the warrant. The municipal court gave Lopez a "disposition sheet" stating he was not the person named in the warrant.[1] On November 4, 1983, Ventura County Sheriff's Deputy Bornand arrested Lopez on the outstanding warrant. Lopez showed his disposition sheet to Deputy Bornand and to sheriff's personnel. Nevertheless, he was held in the Ventura County jail for three days before being released. On April 20, 1984, an Oxnard police officer stopped Lopez for speeding. After the officer discovered there was an outstanding warrant for someone named Javier Carrillo Lopez, plaintiff Lopez was taken to the Oxnard City jail where he was held for three hours before the authorities determined he was not the person named in the warrant. In Lopez's second amended complaint, he alleges six causes of action. They include: 1. negligent failure of the County of Ventura and the City of Oxnard to correct their records to enable authorities to distinguish between Lopez and the criminal they seek, 2. false imprisonment for the November 1983 imprisonment of Lopez, 3. intentional infliction of emotional distress, *6 4. battery against the County of Ventura and Deputy Bornand regarding the November 1983 incarceration, 5. negligence against the City of Oxnard for disregarding his proffered disposition sheet during the April 1984 arrest and detention, and 6. false imprisonment against the City of Oxnard. The complaint alleged, among other things, that on September 28, 1981, the court found Lopez was not the person charged under the warrant and that the court provided him with a "disposition sheet" which so stated. Lopez alleged he showed this disposition sheet to the arresting officers and to the sheriff's deputies at the jail to no avail. All defendants demurred to Lopez's complaint. On June 17, 1987, the trial court sustained all demurrers without leave to amend as to all causes of action. In its order, the court took judicial notice of the 1981 disposition sheet. But no order of dismissal appears to have been made on that date. The City of Oxnard filed a notice of entry of judgment on June 26, 1987, which states judgment was entered for the city and against plaintiff on June 17, 1987. On June 30, 1987, Lopez filed his notice of appeal regarding the "judgment" entered in favor of the City of Oxnard and the County of Ventura. On July 2, 1987, the court awarded judgment to the County of Ventura and to Ventura County Sheriff's Deputy Bornand. We construe the notice of appeal liberally in favor of adjudication on the merits. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 59, pp. 82-83; §§ 375-376, pp. 377, 379-380; § 412, pp. 410-411; id. (1988 supp.) § 59, p. 6; §§ 375-376, pp. 32-33.)[2] We do not view the failure to designate Deputy Bornand as an appellee in the notice of appeal as fatal to our consideration of the appeal as to him under these particular facts. (Beltram v. Appellate Department (1977) 66 Cal. App.3d 711, 715 [136 Cal. Rptr. 211].) The parties stipulated to consolidation of the demurrers for hearing. We construe the order of June 17, 1987, and the judgment entered on July 2, 1987, as a timely entry of judgment as of June 17, 1987, as to all parties defendant. (See fn. 2, ante.) DISCUSSION (1) The function of a demurrer is to test the sufficiency of the complaint by raising questions of law. (Rader Co. v. Stone (1986) 178 Cal. App.3d 10, *7 20 [223 Cal. Rptr. 806].) Demurrers are treated as admitting the truthfulness of all properly pleaded factual allegations of the complaint, but not of its contentions, deductions or conclusions of law. (Porten v. University of San Francisco (1976) 64 Cal. App.3d 825, 827 [134 Cal. Rptr. 839]; White v. Davis (1975) 13 Cal.3d 757, 765 [120 Cal. Rptr. 94, 533 P.2d 222].) In ruling on a demurrer, the court is entitled to consider matters which may be judicially noticed. (Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal. Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].) (2) A general demurrer should not be sustained without leave to amend if the complaint, liberally construed, states a cause of action on any theory. (Rader Co. v. Stone, supra, 178 Cal. App.3d at p. 20.) (3) On appeal, however, all intendments are in favor of the regularity of the proceedings and the judgment below. Unless clear error or abuse of discretion is demonstrated, the judgment will be affirmed. (Whitcombe v. County of Yolo (1977) 73 Cal. App.3d 698 [141 Cal. Rptr. 189].) False imprisonment is defined by statute as "the unlawful violation of the personal liberty of another." (Pen. Code, § 236.) (4) To state a cause of action for false imprisonment, one must state facts showing either that one was unlawfully arrested and then imprisoned, or that an unreasonable delay occurred in presenting the arrestee before a magistrate. (City of Newport Beach v. Sasse (1970) 9 Cal. App.3d 803, 810 [88 Cal. Rptr. 476].) The arresting officers Civil Code section 43.55 provides immunity to and precludes actions against "any peace officer who makes an arrest pursuant to a warrant of arrest regular upon its face if the peace officer in making the arrest acts without malice and in the reasonable belief that the person arrested is the one referred to in the warrant." Penal Code section 847 precludes actions for civil liability against any peace officer for false imprisonment if he was acting within the scope of his authority and the arrest was lawful or if, at the time of the arrest, the officer had reasonable cause to believe the arrest was lawful. (5) A police officer must use reasonable prudence and diligence to determine whether a party being arrested is the one described in the warrant. The officer may not refuse to act upon information offered him which discloses the warrant is being served on the wrong person. But, the prudence and diligence required of an arresting officer in determining whether to make an arrest must be balanced against the need to act swiftly and to make on-the-spot evaluations, often under chaotic conditions. (See Whirl v. Kern (5th Cir.1969) 407 F.2d 781, 790.) He need not choose between the *8 possibility of being charged with dereliction of duty for failure to arrest and the possibility of being held to answer in damages for unlawful arrest or false imprisonment. (See Pen. Code, § 142.) It is not the function of an arresting officer to investigate the procedure by which the warrant was issued, nor is it his duty to consider the propriety of its issuance provided the warrant is regular on its face. (See Herndon v. County of Marin (1972) 25 Cal. App.3d 933, 936 [102 Cal. Rptr. 221], disapproved on other grounds concerning malicious prosecution in Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 722, fn. 10 [117 Cal. Rptr. 241, 527 P.2d 865].) (6) The facts alleged here do not show a lack of reasonable precaution on the part of the arresting officers. (Smith v. Madruga (1961) 193 Cal. App.2d 543, 546 [14 Cal. Rptr. 389].) The instant warrant accurately described Lopez, and included his proper name, address, telephone number and driver's license. Lopez makes no allegations that the warrant was either irregular on its face or that it did not adequately describe him. The trial court took judicial notice of the warrant and found it to be regular. (Code Civ. Proc., § 430.30, subd. (a); Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040 [232 Cal. Rptr. 542, 728 P.2d 1177].) There are no allegations the officers were acting outside the scope of their duties at the time of the arrests. It is presumed the officers acted regularly in the performance of their duties in making these arrests. (Evid. Code, § 664.) Peace officers must execute all process and orders which are apparently regular on their face and issued by competent authority, even if there were defects in the proceedings upon which they were issued. (Code Civ. Proc., § 262.1; see Allison v. County of Ventura (1977) 68 Cal. App.3d 689, 697 [137 Cal. Rptr. 542]; Vallindras v. Massachusetts etc. Ins. Co. (1954) 42 Cal.2d 149, 154 [265 P.2d 907].) Failure to have arrested Lopez may have subjected the officers to criminal liability. (Pen. Code, § 142.) Lopez asserts that the question of whether the officers' beliefs were reasonable is one of fact which should survive demurrer. He cites Robinson v. City and County of San Francisco (1974) 41 Cal. App.3d 334 [116 Cal. Rptr. 125], and Smith v. Madruga, supra, 193 Cal. App.2d 543, in support of this argument. They are inapposite. Unlike Robinson, there is no allegation the officers arrested someone whose name did not correspond with the name stated on the warrant. Instead, the police made the instant arrests on the basis of a warrant regular on its face describing Lopez. In Robinson, the warrant named a Harold Cunningham, but the officers arrested the well *9 known performer Smokey Robinson. Unlike the Robinson situation, there is no factual question whether the officer had a reasonable belief that Lopez was the person named in the warrant. This case is also unlike Smith v. Madruga, supra, 193 Cal. App.2d 543. In Smith, plaintiff alleged that he was arrested when defendants knew he was not the person named in the arrest warrant. As in Robinson, Smith alleged that his name did not correspond with the name in the warrant. The plaintiff's name in Smith is Bennie Lee Smith. The warrant listed the true criminal's name, Bennie Leon Smith. Abbott v. Cooper (1933) 218 Cal. 425 [23 P.2d 1027], does not assist Lopez either. In Abbott, a "rival" private police patrol officer, who was also a deputy constable, was arrested and jailed without warrant; there was no proper basis for doing so. (Abbott, supra, at p. 427.) Lopez's allegations that the arresting officers acted with malice are insufficient; one must plead such facts with particularity to adequately support a complaint for a tort claim against a public entity. (Susman v. City of Los Angeles (1969) 269 Cal. App.2d 803, 809 [75 Cal. Rptr. 240].) There are no facts alleged which indicate the arresting officers acted unreasonably or with malice. Despite Lopez's presentation of the disposition sheet to the arresting officers, the police officer cannot be held answerable for this arrest. (Pen. Code, § 847; Civ. Code, § 43.55; Moore v. City & County of San Francisco (1970) 5 Cal. App.3d 728, 735 [85 Cal. Rptr. 281].) Refusal of jail personnel to consider the disposition notice (7a) Lopez also asserts that the refusal of jail personnel to consider the proffered disposition sheet resulted in his false imprisonment. He states it was their duty to ascertain whether or not the court had previously determined he is not the person sought under the instant warrant when he presented that disposition sheet. We disagree. Jail personnel may not be similarly situated to police officers on the street, but they, too, are entitled to rely on process and orders apparently valid on their face. (See Whirl v. Kern, supra, 407 F.2d at pp. 791-792.) Code of Civil Procedure section 262.1 states: "A sheriff or other ministerial officer is justified in the execution of, and shall execute, all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued." (Vallindras v. Massachusetts etc. Ins. Co., supra, 42 Cal.2d at pp. 151-154.) Said the court in Moore v. City & County of San Francisco, supra, 5 Cal. App.3d at *10 page 735: "Imprisonment based upon a lawful arrest is not false, and is not actionable in tort." (Accord Whirl v. Kern, supra, 407 F.2d at p. 791.) In Vallindras, supra, plaintiff was incarcerated for criminal contempt for failure to pay spousal support. The contempt order was technically void on its face due to a minor error. Nevertheless, the Supreme Court held that the plaintiff did not state a civil cause of action for damages for false imprisonment because the sheriff was justified in executing it. (Vallindras v. Massachusetts etc. Ins. Co., supra, 42 Cal.2d at pp. 151-152, 154.) (8) If a warrant appears valid to an ordinarily intelligent and informed layman and the issuing court has subject matter jurisdiction, the sheriff is ordinarily entitled to protection from civil suits for damages for false imprisonment. (Vallindras v. Massachusetts etc. Ins. Co., supra, 42 Cal.2d at p. 154.) The sheriff may rely upon the warrant even if jurisdiction over the person is actually improper. (Ibid.; Magnaud v. Traeger (1924) 66 Cal. App. 526, 532 [226 P. 990].) Although a sheriff is "obliged to use reasonable diligence to perform the duties of his office in a lawful manner," he need not ordinarily search for facts not apparent on the face of a warrant. (Vallindras v. Massachusetts etc. Ins. Co., supra, 42 Cal.2d at pp. 154, 155-156; Burlingame v. Traeger (1929) 101 Cal. App. 365 [281 P. 1051]; First Nat. Bank v. McCoy (1931) 112 Cal. App. 665, 670 [297 P. 571].) (9) Sheriffs are not absolutely immune from civil suits for false imprisonment. Sheriffs may be responsible in damages for false imprisonment if they know the imprisonment is unlawful or if they are put on official notice sufficient to require investigation of its validity. (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 719.) But, reversal is not required in this case. The facts in Sullivan are distinguishable. In Sullivan, the sheriff allegedly failed to respond to an official notice of release sent through official channels. The sheriff may have violated Penal Code section 1384 in failing to discharge Sullivan. Under Penal Code section 1384, the sheriff is under a mandatory duty to release a prisoner in custody if a judge or magistrate directs dismissal of the action. The Sullivan court found that the sheriff may be liable in damages for false imprisonment for his failure to investigate the validity of that official release notice. (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at pp. 719, 722.) In Whirl, official dismissal of the case rendered the warrant defunct and stripped the sheriff of legal authority to hold the plaintiff in custody. (Whirl v. Kern, supra, 407 F.2d at p. 791, fn. 10.) The sheriff's claim he was *11 unaware that the plaintiff was on a dismissal list was no excuse. He received actual official notice of the dismissal. (See Whirl, supra, at pp. 785-786, 791; but see Bryan v. Jones (5th Cir.1976) 530 F.2d 1210, 1213, 1214-1215.) An illegal imprisonment is wrong from its inception, and the jailer can be held liable for it. (Whirl, supra, at p. 791.) (7b) Here, however, the sheriff simply refused to look behind a valid warrant to investigate the validity of statements on a piece of paper handed to him by an arrestee. The sheriff violated no statute. And, unlike Sullivan and Whirl, Lopez could not languish in jail for months or years. By law, a defendant must be taken to appear before a magistrate within two days after his arrest, excluding Sundays and holidays. (Pen. Code, § 825; see Whirl v. Kern, supra, 407 F.2d at p. 792.) Lopez was held only until he appeared before the magistrate. In the second instance, no charges were ever made and he was released within a few hours. A sheriff, as a ministerial officer of the court, may safely proceed to incarcerate an individual on a warrant apparently valid on its face which comes from a court with subject matter jurisdiction. (Code Civ. Proc., § 262.1.) It is true that under Sullivan liability may attach when the sheriff actually knows the imprisonment was illegal or when the sheriff has sufficient notice from an official source which calls for further investigation into the validity of the incarceration. (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at pp. 714, 719; Whirl v. Kern, supra, 407 F.2d at pp. 791-792; Code Civ. Proc., § 262.1; First Nat. Bank v. McCoy, supra, 112 Cal. App. at p. 670.) But, generally this rule applies in situations where the sheriff is not acting pursuant to a warrant valid on its face. Other cases cited by Lopez are inapposite. This case is unlike Abbott, supra, involving a warrantless arrest which the sheriff knew was invalid. Nor is it like Smith or Robinson, supra, in which the people arrested did not fit the facts stated on the warrant. And this case is unlike Bradford or Shakespeare, infra, in which the sheriff was under a mandatory, statutory duty to release the respective prisoners. Initial disposition order as continuing order. Applicability of Penal Code section 1384 and the Sullivan case Lopez also argues that defendants falsely imprisoned him because previous records of the Ventura Municipal Court, which state that the warrant does not apply to him, constitute a continuing order which mandates that defendants immediately dismiss any current charges against him and release him, pursuant to Penal Code section 1384. *12 Lopez's reliance on Penal Code section 1384 and the case of Sullivan v. County of Los Angeles, supra, 12 Cal.3d 710, to support this theory is misplaced. Penal Code section 1384 states, in pertinent part: "If the judge or magistrate directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom...." Aside from Lopez's failure to specifically allege the violation of Penal Code section 1384 in his complaint as he is required to do (see Lehto v. City of Oxnard (1985) 171 Cal. App.3d 285, 292-294 [217 Cal. Rptr. 450]), section 1384 and the Sullivan case are inapplicable under the facts pled. In Sullivan, supra, unlike the instant case, the defendant was held in jail long after all current charges against him had been dismissed, in part because the superior court failed to issue a release order as to those charges. The Sullivan court held that the complaint stated a direct cause of action against the county on that basis. (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 715.) Here, Lopez did not allege that a judge or magistrate failed to direct the instant charges be dismissed, nor that there was any delay in discharging him upon judicial action pursuant to section 1384. Instead, Lopez pled he was released after his appearance before the municipal court in the 1983 incident, and he was released without being charged or being brought before judicial authority in the 1984 incident. Failure to correct court records to reflect disposition (10) Lopez's complaint alleges that the County of Ventura and the City of Oxnard negligently and unlawfully failed to correct their records to reflect the previous disposition of the court which stated that he was not the criminal sought by the warrant. His complaint alleges that the public entities, the City of Oxnard and the County of Ventura, had a duty to correct their records to assist the court and the police in identifying the correct suspect in the instant case. We disagree. The authority Lopez cites does not support this theory. Lopez cites Bradford v. State of California (1973) 36 Cal. App.3d 16 [111 Cal. Rptr. 852], for the proposition that these public entities had a duty to correct their records to reflect the prior disposition. Bradford obtained dismissal of his conviction for violation of Penal Code section 647a pursuant to the provisions of Penal Code section 1203.4. His duty to register as a sex offender ceased following the 1203.4 dismissal. Nonetheless, plaintiff was arrested after the dismissal and charged with failure to register as a sex offender, a violation of Penal Code section 290. *13 Although the case was ultimately dismissed on demurrer, Bradford sued for damages arising out of the state's negligent failure to enter the dismissal pursuant to the mandatory recording requirements for such dismissals contained in Penal Code sections 11116.6 and 11117. The Bradford court held that the plaintiff properly pled the negligent failure of the state to perform a mandatory duty imposed by statute, for which there is no immunity under the Tort Claims Act. (Bradford v. State of California, supra, 36 Cal. App.3d at pp. 18-19.) Here, however, Lopez makes no such allegations of a specific statutory basis upon which to hold the public entities directly liable, as required by Government Code section 815. (See Lehto v. City of Oxnard, supra, 171 Cal. App.3d at pp. 292-294.) The facts pleaded by Lopez do not show a cause of action under the Tort Claims Act for violation of a mandatory statutory duty. Understandably, he alleges no such statutory duty upon the County because there is none. (Ibid.) Shakespeare v. City of Pasadena (1964) 230 Cal. App.2d 375 [40 Cal. Rptr. 863], is also inapposite. It concerned the failure of the jailer, pursuant to the specific, mandatory provisions of Penal Code section 1295, to release one who had posted bail. Although we are bound by statutory immunity provisions, supra, we are sympathetic to the plight of Mr. Lopez. To reduce the risk of this occurring again, we suggest that such disposition notices include as much identifying information as possible, including fingerprints and photographs. The judgment is affirmed. The parties are to bear their own costs. Stone (S.J.), P.J., and Abbe, J., concurred. NOTES [1] Various photocopies of this disposition sheet are in the record, but they are difficult to read. The document is entitled "PROCEEDING/DISPOSITION NOTICE." It is a form notice which concerns the status of a case. The seal of the court is on it, and it has a signature of a deputy clerk of the court. In handwriting it states: "Court finds: Person arrested in case 117391-3 is not Javier Carrillo Lopez bearing Ca. Dr. Lic. #N61286." A social security number is handwritten on it, too. No fingerprints or other identifying information is on the notice. [2] We order the judgment below amended to state: "Following defendants' consolidated demurrers to plaintiff's second amended complaint which were granted without leave to amend on June 17, 1987, and good cause appearing therefor, JUDGMENT of dismissal as to all causes of action is hereby awarded defendants and against plaintiff JAVIER C. LOPEZ with COSTS awarded to defendants. "Clerk of this court is directed to enter this judgment and give notice thereof."

743 P.2d 1200 (1987) Val KILLIAN, Plaintiff and Respondent, v. O.B. OBERHANSLY, Defendant and Appellant. No. 19562. Supreme Court of Utah. September 24, 1987. Clark B. Allred, Gayle F. McKeachnie, Vernal, for defendant and appellant. George E. Mangan, Machelle Fitzgerald, Roosevelt, for plaintiff and respondent. STEWART, Associate Chief Justice: This is an appeal from an accounting in which the district court ruled that the plaintiff and the defendant had incurred a net operating loss of $108,441 from a dairy partnership they had entered into and that the defendant was liable to the plaintiff for one-half that amount, or $54,220.50, less any payment the defendant made on a judgment in favor of Brookfield Seed Co. for a debt owed by the partnership. On this appeal, the defendant contends that the trial court erred in ruling that the plaintiff and the defendant had not entered into an accord and satisfaction with respect to the dissolution of the partnership and in entering judgment for the plaintiff, Val Killian, in an amount equal to one-half the partnership losses. We affirm. The issues raised are factual. In November, 1980, Killian and Oberhansly entered into a partnership agreement to operate a dairy farm. A formalized handwritten partnership agreement was executed February 4, 1981, pursuant to which each party agreed to share profits and losses equally. Killian contributed the use of seventy-two milk cows which he had leased from a commercial leasing company, a dairy barn, and eighty acres of land. Oberhansly contributed $9,100 in cash and leased 124 cows from an agricultural leasing company for use by the partnership. Each party provided security for the lease of the cows. Oberhansly's backhoe, manure spreader, and Dodge truck were also used by the partnership, but Oberhansly claims they were not contributed to the partnership. Killian operated the dairy and was to receive a salary of $2,000 per month. However, he received no salary during the life of the partnership. All the equipment used by the dairy, with the exception of the backhoe, the spreader, and the pickup truck, belonged to Killian or was purchased or leased after the partnership commenced business operations. Killian advanced the partnership $85,000 of his own funds for the operation of the partnership, and Oberhansly *1201 refused to contribute any funds beyond the initial investment and rarely visited the dairy or offered assistance. Prior to the spring of 1982, the partnership began to experience financial problems. The alleged accord and satisfaction grew out of a conversation held shortly before April 30, 1982, between Killian and Oberhansly in front of Killian's house. At that time, it appears, the partnership had only two outstanding debts, and Killian proposed that he pay one, a $20,000 grain bill, and that Oberhansly pay the other, a $5,700 hay bill. Oberhansly refused. At trial, Oberhansly alleged that Killian had agreed to "assume all other bills," and Killian denied the allegation. Instead of accepting Killian's proposal, Oberhansly stated that he would contact Mark Duncan, to whom the hay bill was owed, to negotiate payment. Neither Oberhansly nor Killian paid the bills. Bartlett Farms, to whom the grain bill was owed, thereafter sued Killian and Oberhansly and obtained a judgment. Oberhansly had paid $8,000 on that debt at the time of trial, and Bartlett Farms executed on that judgment for the remainder. On April 30, 1982, Killian and Oberhansly decided to dissolve the partnership and divide the leased cows between them. Killian assumed liability for thirty of the leased cows, and Oberhansly assumed liability for ninety-one cows. New lease agreements reflecting the division were executed in late summer, 1982, with the leasing company. Subsequent to the April 30, 1982, agreement, Killian had an accountant conduct an audit of the partnership books. The audit revealed a partnership loss of over $108,000. Killian asked Oberhansly to contribute to the partnership losses and Oberhansly refused. Killian thereafter filed suit for one-half the losses. Contrary to Oberhansly's contention, the trial court found as a matter of fact that the parties had not entered an accord and satisfaction. Oberhansly now contends that the trial court erred in (1) failing to find the elements of an accord and satisfaction, (2) dividing the losses of the partnership, and (3) finding that the partnership continued through the summer of 1982. Oberhansly also claims that the trial court should have ordered the return of Oberhansly's backhoe and manure spreader, which Oberhansly claims Killian has unlawfully retained. Oberhansly's appeal is frivolous. We will not reverse the trial court's findings of partnership losses unless they are clearly erroneous. Utah R.Civ.P. 52(a). The best that can be said for his claim of an accord and satisfaction is that the evidence, when stretched beyond the breaking point in favor of Oberhansly, is disputed, but there is clearly substantial evidence to support the trial court's finding that there was no accord and satisfaction. Even assuming, contrary to Oberhansly's own testimony, that Oberhansly accepted Killian's offer concerning the payment of the hay and grain bills and that the hay and grain bills were paid according to the terms of the offer, we would not be able to find an accord and satisfaction because the supposed agreement did not purport to be an accord and satisfaction of all liabilities between the parties under the partnership agreement. Nowhere in the record, including Oberhansly's testimony, is there any indication that the agreement to pay the partnership debts to third parties was intended to settle the accounts between the partners. Oberhansly also argues that the trial court erred in awarding Killian a judgment for one-half the $108,441 partnership losses found by Killian's accountant. Having reviewed the record, we think it clear that the trial court did not err. The only evidence of partnership losses introduced at trial was adduced by Killian's accountant. Oberhansly also argues that the trial court did not consider certain partnership property received by Killian that should have been split between the partners or credited against the losses incurred.[1]*1202 Those contentions were not raised in the trial court and may not now be raised here. Oberhansly further asserts that the trial court erred in ruling that the partnership continued into the summer of 1982. Again, the argument was not raised below; in any event, the partnership accounting relied upon by the trial court only covered the period up to April 30, 1982. Finally, Oberhansly claims that the trial court erred in not ordering that the backhoe and manure spreader, which he claims are his personal property, be returned to him. Again, Oberhansly made no request for such relief in the trial court. Furthermore, although it has now been sold at a sheriff's sale, Killian stated both at trial and in his brief on appeal that Oberhansly was free to take the equipment. We see no need to consider the issue further. Affirmed. Costs to the respondent. HALL, C.J., and HOWE, DURHAM and ZIMMERMAN, JJ., concur. NOTES [1] In the statement of facts in his brief, Oberhansly complains that $6,900 initially contributed by him to the partnership was never returned to him. This is technically correct. However, the record, while not absolutely clear on this point, seems to indicate that Oberhansly received a credit in this amount against his liability for the leased cows he received from the partnership. In any event, the point is not raised as an issue by the defendant in his brief on this appeal.

521 U.S. 642 (1997) UNITED STATES v. O'HAGAN No. 96-842. United States Supreme Court. Argued April 16, 1997. Decided June 25, 1997. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT *643 *644 *645 *646 Ginsburg, J., delivered the opinion of the Court, in which Stevens, O'Connor, Kennedy, Souter, and Breyer, JJ., joined, and in which Scalia, J., joined as to Parts I, III, and IV. Scalia, J., filed an opinion concurring in part and dissenting in part, post, p. 679. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., joined, post, p. 680. Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Acting Solicitor General Dellinger, Acting Assistant Attorney General Richard, Paul R. Q. Wolfson, Joseph C. Wyderko, Richard H. Walker, Paul Gonson, Jacob H. Stillman, Eric Summergrad, and Randall W. Quinn. John D. French argued the cause for respondent. With him on the brief was Elizabeth L. Taylor.[*] Justice Ginsburg, delivered the opinion of the Court. This case concerns the interpretation and enforcement of § 10(b) and § 14(e) of the Securities Exchange Act of 1934, and rules made by the Securities and Exchange Commission pursuant to these provisions, Rule 10b—5 and Rule 14e—3(a). *647 Two prime questions are presented. The first relates to the misappropriation of material, nonpublic information for securities trading; the second concerns fraudulent practices in the tender offer setting. In particular, we address and resolve these issues: (1) Is a person who trades in securities for personal profit, using confidential information misappropriated in breach of a fiduciary duty to the source of the information, guilty of violating § 10(b) and Rule 10b—5? (2) Did the Commission exceed its rulemaking authority by adopting Rule 14e—3(a), which proscribes trading on undisclosed information in the tender offer setting, even in the absence of a duty to disclose? Our answer to the first question is yes, and to the second question, viewed in the context of this case, no. I Respondent James Herman O'Hagan was a partner in the law firm of Dorsey & Whitney in Minneapolis, Minnesota. In July 1988, Grand Metropolitan PLC (Grand Met), a company based in London, England, retained Dorsey & Whitney as local counsel to represent Grand Met regarding a potential tender offer for the common stock of the Pillsbury Company, headquartered in Minneapolis. Both Grand Met and Dorsey & Whitney took precautions to protect the confidentiality of Grand Met's tender offer plans. O'Hagan did no work on the Grand Met representation. Dorsey & Whitney withdrew from representing Grand Met on September 9, 1988. Less than a month later, on October 4, 1988, Grand Met publicly announced its tender offer for Pillsbury stock. On August 18, 1988, while Dorsey & Whitney was still representing Grand Met, O'Hagan began purchasing call options for Pillsbury stock. Each option gave him the right to purchase 100 shares of Pillsbury stock by a specified date in September 1988. Later in August and in September, O'Hagan made additional purchases of Pillsbury call options. By the end of September, he owned 2,500 unexpired Pillsbury options, apparently more than any other individual investor. *648 See App. 85, 148. O'Hagan also purchased, in September 1988, some 5,000 shares of Pillsbury common stock, at a price just under $39 per share. When Grand Met announced its tender offer in October, the price of Pillsbury stock rose to nearly $60 per share. O'Hagan then sold his Pillsbury call options and common stock, making a profit of more than $4.3 million. The Securities and Exchange Commission (SEC or Commission) initiated an investigation into O'Hagan's transactions, culminating in a 57-count indictment. The indictment alleged that O'Hagan defrauded his law firm and its client, Grand Met, by using for his own trading purposes material, nonpublic information regarding Grand Met's planned tender offer. Id., at 8.[1] According to the indictment, O'Hagan used the profits he gained through this trading to conceal his previous embezzlement and conversion of unrelated client trust funds. Id., at 10.[2] O'Hagan was charged with 20 counts of mail fraud, in violation of 18 U. S. C. § 1341; 17 counts of securities fraud, in violation of § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 48 Stat. 891, 15 U. S. C. § 78j(b), and SEC Rule 10b—5, 17 CFR § 240.10b—5 *649 (1996); 17 counts of fraudulent trading in connection with a tender offer, in violation of § 14(e) of the Exchange Act, 15 U. S. C. § 78n(e), and SEC Rule 14e—3(a), 17 CFR § 240.14e— 3(a) (1996); and 3 counts of violating federal money laundering statutes, 18 U. S. C. §§ 1956(a)(1)(B)(i), 1957. See App. 13-24. A jury convicted O'Hagan on all 57 counts, and he was sentenced to a 41-month term of imprisonment. A divided panel of the Court of Appeals for the Eighth Circuit reversed all of O'Hagan's convictions. 92 F. 3d 612 (1996). Liability under § 10(b) and Rule 10b—5, the Eighth Circuit held, may not be grounded on the "misappropriation theory" of securities fraud on which the prosecution relied. Id., at 622. The Court of Appeals also held that Rule 14e— 3(a)—which prohibits trading while in possession of material, nonpublic information relating to a tender offer—exceeds the SEC's § 14(e) rulemaking authority because the Rule contains no breach of fiduciary duty requirement. Id., at 627. The Eighth Circuit further concluded that O'Hagan's mail fraud and money laundering convictions rested on violations of the securities laws, and therefore could not stand once the securities fraud convictions were reversed. Id., at 627-628. Judge Fagg, dissenting, stated that he would recognize and enforce the misappropriation theory, and would hold that the SEC did not exceed its rulemaking authority when it adopted Rule 14e—3(a) without requiring proof of a breach of fiduciary duty. Id., at 628. Decisions of the Courts of Appeals are in conflict on the propriety of the misappropriation theory under § 10(b) and Rule 10b—5, see infra this page and 650, and n. 3, and on the legitimacy of Rule 14e—3(a) under § 14(e), see infra, at 669— 670. We granted certiorari, 519 U. S. 1087 (1997), and now reverse the Eighth Circuit's judgment. II We address first the Court of Appeals' reversal of O'Hagan's convictions under § 10(b) and Rule 10b—5. Following *650 the Fourth Circuit's lead, see United States v. Bryan, 58 F. 3d 933, 943-959 (1995), the Eighth Circuit rejected the misappropriation theory as a basis for § 10(b) liability. We hold, in accord with several other Courts of Appeals,[3] that criminal liability under § 10(b) may be predicated on the misappropriation theory.[4] A In pertinent part, § 10(b) of the Exchange Act provides: "It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— . . . . . "(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U. S. C. § 78j(b). *651 The statute thus proscribes (1) using any deceptive device (2) in connection with the purchase or sale of securities, in contravention of rules prescribed by the Commission. The provision, as written, does not confine its coverage to deception of a purchaser or seller of securities, see United States v. Newman, 664 F. 2d 12, 17 (CA2 1981); rather, the statute reaches any deceptive device used "in connection with the purchase or sale of any security." Pursuant to its § 10(b) rulemaking authority, the Commission has adopted Rule 10b—5, which, as relevant here, provides: "It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, "(a) To employ any device, scheme, or artifice to defraud, [or] . . . . . "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, "in connection with the purchase or sale of any security." 17 CFR § 240.10b—5 (1996). Liability under Rule 10b—5, our precedent indicates, does not extend beyond conduct encompassed by § 10(b)'s prohibition. See Ernst & Ernst v. Hochfelder, 425 U. S. 185, 214 (1976) (scope of Rule 10b—5 cannot exceed power Congress granted Commission under § 10(b)); see also Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 173 (1994) ("We have refused to allow [private] 10b—5 challenges to conduct not prohibited by the text of the statute."). Under the "traditional" or "classical theory" of insider trading liability, § 10(b) and Rule 10b—5 are violated when a corporate insider trades in the securities of his corporation *652 on the basis of material, nonpublic information. Trading on such information qualifies as a "deceptive device" under § 10(b), we have affirmed, because "a relationship of trust and confidence [exists] between the shareholders of a corporation and those insiders who have obtained confidential information by reason of their position with that corporation." Chiarella v. United States, 445 U. S. 222, 228 (1980). That relationship, we recognized, "gives rise to a duty to disclose [or to abstain from trading] because of the `necessity of preventing a corporate insider from . . . tak[ing] unfair advantage of . . . uninformed . . . stockholders.' " Id., at 228-229 (citation omitted). The classical theory applies not only to officers, directors, and other permanent insiders of a corporation, but also to attorneys, accountants, consultants, and others who temporarily become fiduciaries of a corporation. See Dirks v. SEC, 463 U. S. 646, 655, n. 14 (1983). The "misappropriation theory" holds that a person commits fraud "in connection with" a securities transaction, and thereby violates § 10(b) and Rule 10b—5, when he misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information. See Brief for United States 14. Under this theory, a fiduciary's undisclosed, self-serving use of a principal's information to purchase or sell securities, in breach of a duty of loyalty and confidentiality, defrauds the principal of the exclusive use of that information. In lieu of premising liability on a fiduciary relationship between company insider and purchaser or seller of the company's stock, the misappropriation theory premises liability on a fiduciary-turned-trader's deception of those who entrusted him with access to confidential information. The two theories are complementary, each addressing efforts to capitalize on nonpublic information through the purchase or sale of securities. The classical theory targets a corporate insider's breach of duty to shareholders with whom the insider transacts; the misappropriation theory outlaws *653 trading on the basis of nonpublic information by a corporate "outsider" in breach of a duty owed not to a trading party, but to the source of the information. The misappropriation theory is thus designed to "protec[t] the integrity of the securities markets against abuses by `outsiders' to a corporation who have access to confidential information that will affect th[e] corporation's security price when revealed, but who owe no fiduciary or other duty to that corporation's shareholders." Ibid. In this case, the indictment alleged that O'Hagan, in breach of a duty of trust and confidence he owed to his law firm, Dorsey & Whitney, and to its client, Grand Met, traded on the basis of nonpublic information regarding Grand Met's planned tender offer for Pillsbury common stock. App. 16. This conduct, the Government charged, constituted a fraudulent device in connection with the purchase and sale of securities.[5] B We agree with the Government that misappropriation, as just defined, satisfies § 10(b)'s requirement that chargeable conduct involve a "deceptive device or contrivance" used "in connection with" the purchase or sale of securities. We observe, first, that misappropriators, as the Government describes them, deal in deception. A fiduciary who "[pretends] loyalty to the principal while secretly converting the principal's information for personal gain," Brief for United States *654 17, "dupes" or defrauds the principal. See Aldave, Misappropriation: A General Theory of Liability for Trading on Nonpublic Information, 13 Hofstra L. Rev. 101, 119 (1984). We addressed fraud of the same species in Carpenter v. United States, 484 U. S. 19 (1987), which involved the mail fraud statute's proscription of "any scheme or artifice to defraud," 18 U. S. C. § 1341. Affirming convictions under that statute, we said in Carpenter that an employee's undertaking not to reveal his employer's confidential information "became a sham" when the employee provided the information to his co-conspirators in a scheme to obtain trading profits. 484 U. S., at 27. A company's confidential information, we recognized in Carpenter, qualifies as property to which the company has a right of exclusive use. Id., at 25-27. The undisclosed misappropriation of such information, in violation of a fiduciary duty, the Court said in Carpenter, constitutes fraud akin to embezzlement—"`the fraudulent appropriation to one's own use of the money or goods entrusted to one's care by another.' " Id., at 27 (quoting Grin v. Shine, 187 U. S. 181, 189 (1902)); see Aldave, 13 Hofstra L. Rev., at 119. Carpenter `s discussion of the fraudulent misuse of confidential information, the Government notes, "is a particularly apt source of guidance here, because [the mail fraud statute] (like Section 10(b)) has long been held to require deception, not merely the breach of a fiduciary duty." Brief for United States 18, n. 9 (citation omitted). Deception through nondisclosure is central to the theory of liability for which the Government seeks recognition. As counsel for the Government stated in explanation of the theory at oral argument: "To satisfy the common law rule that a trustee may not use the property that [has] been entrusted [to] him, there would have to be consent. To satisfy the requirement of the Securities Act that there be no deception, there would only have to be disclosure." Tr. of Oral Arg. 12; see generally Restatement (Second) of Agency §§ 390, 395 *655 (1958) (agent's disclosure obligation regarding use of confidential information).[6] The misappropriation theory advanced by the Government is consistent with Santa Fe Industries, Inc. v. Green, 430 U. S. 462 (1977), a decision underscoring that § 10(b) is not an all-purpose breach of fiduciary duty ban; rather, it trains on conduct involving manipulation or deception. See id., at 473-476. In contrast to the Government's allegations in this case, in Santa Fe Industries, all pertinent facts were disclosed by the persons charged with violating § 10(b) and Rule 10b—5, see id., at 474; therefore, there was no deception through nondisclosure to which liability under those provisions could attach, see id., at 476. Similarly, full disclosure forecloses liability under the misappropriation theory: Because the deception essential to the misappropriation theory involves feigning fidelity to the source of information, if the fiduciary discloses to the source that he plans to trade on the nonpublic information, there is no "deceptive device" and thus no § 10(b) violation—although the fiduciary-turnedtrader may remain liable under state law for breach of a duty of loyalty.[7] We turn next to the § 10(b) requirement that the misappropriator's deceptive use of information be "in connection with *656 the purchase or sale of [a] security." This element is satisfied because the fiduciary's fraud is consummated, not when the fiduciary gains the confidential information, but when, without disclosure to his principal, he uses the information to purchase or sell securities. The securities transaction and the breach of duty thus coincide. This is so even though the person or entity defrauded is not the other party to the trade, but is, instead, the source of the nonpublic information. See Aldave, 13 Hofstra L. Rev., at 120 ("a fraud or deceit can be practiced on one person, with resultant harm to another person or group of persons"). A misappropriator who trades on the basis of material, nonpublic information, in short, gains his advantageous market position through deception; he deceives the source of the information and simultaneously harms members of the investing public. See id., at 120-121, and n. 107. The misappropriation theory targets information of a sort that misappropriators ordinarily capitalize upon to gain norisk profits through the purchase or sale of securities. Should a misappropriator put such information to other use, the statute's prohibition would not be implicated. The theory does not catch all conceivable forms of fraud involving confidential information; rather, it catches fraudulent means of capitalizing on such information through securities transactions. The Government notes another limitation on the forms of fraud § 10(b) reaches: "The misappropriation theory would not . . . apply to a case in which a person defrauded a bank into giving him a loan or embezzled cash from another, and then used the proceeds of the misdeed to purchase securities." Brief for United States 24, n. 13. In such a case, the Government states, "the proceeds would have value to the malefactor apart from their use in a securities transaction, and the fraud would be complete as soon as the money was obtained." Ibid. In other words, money can buy, if not anything, then at least many things; its misappropriation *657 may thus be viewed as sufficiently detached from a subsequent securities transaction that § 10(b)'s "in connection with" requirement would not be met. Ibid. Justice Thomas' charge that the misappropriation theory is incoherent because information, like funds, can be put to multiple uses, see post, at 681-686 (opinion concurring in judgment in part and dissenting in part), misses the point. The Exchange Act was enacted in part "to insure the maintenance of fair and honest markets," 15 U. S. C. § 78b, and there is no question that fraudulent uses of confidential information fall within § 10(b)'s prohibition if the fraud is "in connection with" a securities transaction. It is hardly remarkable that a rule suitably applied to the fraudulent uses of certain kinds of information would be stretched beyond reason were it applied to the fraudulent use of money. Justice Thomas does catch the Government in overstatement. Observing that money can be used for all manner of purposes and purchases, the Government urges that confidential information of the kind at issue derives its value only from its utility in securities trading. See Brief for United States 10, 21; post, at 683-684 (several times emphasizing the word "only"). Substitute "ordinarily" for "only," and the Government is on the mark.[8] *658 Our recognition that the Government's "only" is an overstatement has provoked the dissent to cry "new theory." See post, at 687-689. But the very case on which Justice Thomas relies, Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983), shows the extremity of that charge. In State Farm, we reviewed an agency's rescission of a rule under the same "arbitrary and capricious" standard by which the promulgation of a rule under the relevant statute was to be judged, see id., at 41-42; in our decision concluding that the agency had not adequately explained its regulatory action, see id., at 57, we cautioned that a "reviewing court should not attempt itself to make up for such deficiencies," id., at 43. Here, by contrast, Rule 10b—5's promulgation has not been challenged; we consider only the Government's charge that O'Hagan's alleged fraudulent conduct falls within the prohibitions of the Rule and § 10(b). In this context, we acknowledge simply that, in defending the Government's interpretation of the Rule and statute in this Court, the Government's lawyers have pressed a solid point too far, something lawyers, occasionally even judges, are wont to do. The misappropriation theory comports with § 10(b)'s language, which requires deception "in connection with the purchase or sale of any security," not deception of an identifiable purchaser or seller. The theory is also well tuned to an animating purpose of the Exchange Act: to insure honest securities markets and thereby promote investor confidence. See 45 Fed. Reg. 60412 (1980) (trading on misappropriated information "undermines the integrity of, and investor confidence in, the securities markets"). Although informational disparity is inevitable in the securities markets, investors likely would hesitate to venture their capital in a market where trading based on misappropriated nonpublic information is unchecked by law. An investor's informational disadvantage vis-à-vis a misappropriator with material, nonpublic information *659 stems from contrivance, not luck; it is a disadvantage that cannot be overcome with research or skill. See Brudney, Insiders, Outsiders, and Informational Advantages Under the Federal Securities Laws, 93 Harv. L. Rev. 322, 356 (1979) ("If the market is thought to be systematically populated with . . . transactors [trading on the basis of misappropriated information] some investors will refrain from dealing altogether, and others will incur costs to avoid dealing with such transactors or corruptly to overcome their unerodable informational advantages."); Aldave, 13 Hofstra L. Rev., at 122-123. In sum, considering the inhibiting impact on market participation of trading on misappropriated information, and the congressional purposes underlying § 10(b), it makes scant sense to hold a lawyer like O'Hagan a § 10(b) violator if he works for a law firm representing the target of a tender offer, but not if he works for a law firm representing the bidder. The text of the statute requires no such result.[9] The misappropriation at issue here was properly made the subject of a § 10(b) charge because it meets the statutory requirement that there be "deceptive" conduct "in connection with" securities transactions. *660 C The Court of Appeals rejected the misappropriation theory primarily on two grounds. First, as the Eighth Circuit comprehended the theory, it requires neither misrepresentation nor nondisclosure. See 92 F. 3d, at 618. As we just explained, however, see supra, at 654-655, deceptive nondisclosure is essential to the § 10(b) liability at issue. Concretely, in this case, "it [was O'Hagan's] failure to disclose his personal trading to Grand Met and Dorsey, in breach of his duty to do so, that ma[de] his conduct `deceptive' within the meaning of [§ ]10(b)." Reply Brief 7. Second and "more obvious," the Court of Appeals said, the misappropriation theory is not moored to § 10(b)'s requirement that "the fraud be `in connection with the purchase or sale of any security.' " 92 F. 3d, at 618 (quoting 15 U. S. C. § 78j(b)). According to the Eighth Circuit, three of our decisions reveal that § 10(b) liability cannot be predicated on a duty owed to the source of nonpublic information: Chiarella v. United States, 445 U. S. 222 (1980); Dirks v. SEC, 463 U. S. 646 (1983); and Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164 (1994). "[O]nly a breach of a duty to parties to the securities transaction," the Court of Appeals concluded, "or, at the most, to other market participants such as investors, will be sufficient to give rise to § 10(b) liability." 92 F. 3d, at 618. We read the statute and our precedent differently, and note again that § 10(b) refers to "the purchase or sale of any security," not to identifiable purchasers or sellers of securities. Chiarella involved securities trades by a printer employed at a shop that printed documents announcing corporate takeover bids. See 445 U. S., at 224. Deducing the names of target companies from documents he handled, the printer bought shares of the targets before takeover bids were announced, expecting (correctly) that the share prices would rise upon announcement. In these transactions, the printer did not disclose to the sellers of the securities (the target *661 companies' shareholders) the nonpublic information on which he traded. See ibid. For that trading, the printer was convicted of violating § 10(b) and Rule 10b—5. We reversed the Court of Appeals judgment that had affirmed the conviction. See id., at 225. The jury in Chiarella had been instructed that it could convict the defendant if he willfully failed to inform sellers of target company securities that he knew of a takeover bid that would increase the value of their shares. See id., at 226. Emphasizing that the printer had no agency or other fiduciary relationship with the sellers, we held that liability could not be imposed on so broad a theory. See id., at 235. There is under § 10(b), we explained, no "general duty between all participants in market transactions to forgo actions based on material, nonpublic information." Id., at 233. Under established doctrine, we said, a duty to disclose or abstain from trading "arises from a specific relationship between two parties." Ibid. The Court did not hold in Chiarella that the only relationship prompting liability for trading on undisclosed information is the relationship between a corporation's insiders and shareholders. That is evident from our response to the Government's argument before this Court that the printer's misappropriation of information from his employer for purposes of securities trading—in violation of a duty of confidentiality owed to the acquiring companies—constituted fraud in connection with the purchase or sale of a security, and thereby satisfied the terms of § 10(b). Id., at 235-236. The Court declined to reach that potential basis for the printer's liability, because the theory had not been submitted to the jury. See id., at 236-237. But four Justices found merit in it. See id., at 239 (Brennan, J., concurring in judgment); id., at 240-243 (Burger, C. J., dissenting); id., at 245 (Blackmun, J., joined by Marshall, J., dissenting). And a fifth Justice stated that the Court "wisely le[ft] the resolution of this issue for another day." Id., at 238 (Stevens, J., concurring). *662 Chiarella thus expressly left open the misappropriation theory before us today. Certain statements in Chiarella, however, led the Eighth Circuit in the instant case to conclude that § 10(b) liability hinges exclusively on a breach of duty owed to a purchaser or seller of securities. See 92 F. 3d, at 618. The Court said in Chiarella that § 10(b) liability "is premised upon a duty to disclose arising from a relationship of trust and confidence between parties to a transaction, " 445 U. S., at 230 (emphasis added), and observed that the printshop employee defendant in that case "was not a person in whom the sellers had placed their trust and confidence," see id., at 232. These statements rejected the notion that § 10(b) stretches so far as to impose "a general duty between all participants in market transactions to forgo actions based on material, nonpublic information," id., at 233, and we confine them to that context. The statements highlighted by the Eighth Circuit, in short, appear in an opinion carefully leaving for future resolution the validity of the misappropriation theory, and therefore cannot be read to foreclose that theory. Dirks, too, left room for application of the misappropriation theory in cases like the one we confront.[10]Dirks involved an investment analyst who had received information from a former insider of a corporation with which the analyst had no connection. See 463 U. S., at 648-649. The information indicated that the corporation had engaged in a massive fraud. The analyst investigated the fraud, obtaining corroborating information from employees of the corporation. During his investigation, the analyst discussed his findings with clients and investors, some of whom sold their holdings in the company the analyst suspected of gross wrongdoing. See id., at 649. *663 The SEC censured the analyst for, inter alia, aiding and abetting § 10(b) and Rule 10b—5 violations by clients and investors who sold their holdings based on the nonpublic information the analyst passed on. See id., at 650-652. In the SEC's view, the analyst, as a "tippee" of corporation insiders, had a duty under § 10(b) and Rule 10b—5 to refrain from communicating the nonpublic information to persons likely to trade on the basis of it. See id., at 651, 655-656. This Court found no such obligation, see id., at 665-667, and repeated the key point made in Chiarella: There is no "`general duty between all participants in market transactions to forgo actions based on material, nonpublic information.' " 463 U. S., at 655 (quoting Chiarella, 445 U. S., at 233); see Aldave, 13 Hofstra L. Rev., at 122 (misappropriation theory bars only "trading on the basis of information that the wrongdoer converted to his own use in violation of some fiduciary, contractual, or similar obligation to the owner or rightful possessor of the information"). No showing had been made in Dirks that the "tippers" had violated any duty by disclosing to the analyst nonpublic information about their former employer. The insiders had acted not for personal profit, but to expose a massive fraud within the corporation. See 463 U. S., at 666-667. Absent any violation by the tippers, there could be no derivative liability for the tippee. See id., at 667. Most important for purposes of the instant case, the Court observed in Dirks: "There was no expectation by [the analyst's] sources that he would keep their information in confidence. Nor did [the analyst] misappropriate or illegally obtain the information . . . ." Id., at 665. Dirks thus presents no suggestion that a person who gains nonpublic information through misappropriation in breach of a fiduciary duty escapes § 10(b) liability when, without alerting the source, he trades on the information. Last of the three cases the Eighth Circuit regarded as warranting disapproval of the misappropriation theory, Cen- *664 tral Bank held that "a private plaintiff may not maintain an aiding and abetting suit under § 10(b)." 511 U. S., at 191. We immediately cautioned in Central Bank that secondary actors in the securities markets may sometimes be chargeable under the securities Acts: "Any person or entity, including a lawyer, accountant, or bank, who employs a manipulative device or makes a material misstatement (or omission) on which a purchaser or seller of securities relies may be liable as a primary violator under 10b—5, assuming . . . the requirements for primary liability under Rule 10b—5 are met." Ibid. (emphasis added). The Eighth Circuit isolated the statement just quoted and drew from it the conclusion that § 10(b) covers only deceptive statements or omissions on which purchasers and sellers, and perhaps other market participants, rely. See 92 F. 3d, at 619. It is evident from the question presented in Central Bank, however, that this Court, in the quoted passage, sought only to clarify that secondary actors, although not subject to aiding and abetting liability, remain subject to primary liability under § 10(b) and Rule 10b—5 for certain conduct. Furthermore, Central Bank `s discussion concerned only private civil litigation under § 10(b) and Rule 10b—5, not criminal liability. Central Bank `s reference to purchasers or sellers of securities must be read in light of a longstanding limitation on private § 10(b) suits. In Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723 (1975), we held that only actual purchasers or sellers of securities may maintain a private civil action under § 10(b) and Rule 10b—5. We so confined the § 10(b) private right of action because of "policy considerations." Id., at 737. In particular, Blue Chip Stamps recognized the abuse potential and proof problems inherent in suits by investors who neither bought nor sold, but asserted they would have traded absent fraudulent conduct by others. See id., at 739-747; see also Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 285 *665 (1992) (O'Connor, J., concurring in part and concurring in judgment); id., at 289-290 (Scalia, J., concurring in judgment). Criminal prosecutions do not present the dangers the Court addressed in Blue Chip Stamps, so that decision is "inapplicable" to indictments for violations of § 10(b) and Rule 10b—5. United States v. Naftalin, 441 U. S. 768, 774, n. 6 (1979); see also Holmes, 503 U. S., at 281 (O'Connor, J., concurring in part and concurring in judgment) ("[T]he purchaser/seller standing requirement for private civil actions under § 10(b) and Rule 10b—5 is of no import in criminal prosecutions for willful violations of those provisions."). In sum, the misappropriation theory, as we have examined and explained it in this opinion, is both consistent with the statute and with our precedent.[11] Vital to our decision that criminal liability may be sustained under the misappropriation theory, we emphasize, are two sturdy safeguards Congress has provided regarding scienter. To establish a criminal violation of Rule 10b—5, the Government must prove that a person "willfully" violated the provision. See 15 U. S. C. *666 § 78ff(a).[12] Furthermore, a defendant may not be imprisoned for violating Rule 10b—5 if he proves that he had no knowledge of the Rule. See ibid.[13] O'Hagan's charge that the misappropriation theory is too indefinite to permit the imposition of criminal liability, see Brief for Respondent 30— 33, thus fails not only because the theory is limited to those who breach a recognized duty. In addition, the statute's "requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the [statute]" in circumstances such as O'Hagan's is unjust. Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 342 (1952). The Eighth Circuit erred in holding that the misappropriation theory is inconsistent with § 10(b). The Court of Appeals may address on remand O'Hagan's other challenges to his convictions under § 10(b) and Rule 10b—5. III We consider next the ground on which the Court of Appeals reversed O'Hagan's convictions for fraudulent trading in connection with a tender offer, in violation of § 14(e) of the Exchange Act and SEC Rule 14e—3(a). A sole question is before us as to these convictions: Did the Commission, as the Court of Appeals held, exceed its rulemaking authority under § 14(e) when it adopted Rule 14e—3(a) without requiring a showing that the trading at issue entailed a breach of *667 fiduciary duty? We hold that the Commission, in this regard and to the extent relevant to this case, did not exceed its authority. The governing statutory provision, § 14(e) of the Exchange Act, reads in relevant part: "It shall be unlawful for any person . . .to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer . . . . The [SEC] shall, for the purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative." 15 U. S. C. § 78n(e). Section 14(e)'s first sentence prohibits fraudulent acts in connection with a tender offer. This self-operating proscription was one of several provisions added to the Exchange Act in 1968 by the Williams Act, 82 Stat. 454. The section's second sentence delegates definitional and prophylactic rulemaking authority to the Commission. Congress added this rulemaking delegation to § 14(e) in 1970 amendments to the Williams Act. See § 5, 84 Stat. 1497. Through § 14(e) and other provisions on disclosure in the Williams Act,[14] Congress sought to ensure that shareholders "confronted by a cash tender offer for their stock [would] not be required to respond without adequate information." Rondeau v. Mosinee Paper Corp. , 422 U. S. 49, 58 (1975); see Lewis v. McGraw, 619 F. 2d 192, 195 (CA2 1980) (per curiam) *668 ("very purpose" of Williams Act was "informed decisionmaking by shareholders"). As we recognized in Schreiber v. Burlington Northern, Inc. , 472 U. S. 1 (1985), Congress designed the Williams Act to make "disclosure, rather than court-imposed principles of `fairness' or `artificiality,' . . . the preferred method of market regulation." Id., at 9, n. 8. Section 14(e), we explained, "supplements the more precise disclosure provisions found elsewhere in the Williams Act, while requiring disclosure more explicitly addressed to the tender offer context than that required by § 10(b)." Id., at 10-11. Relying on § 14(e)'s rulemaking authorization, the Commission, in 1980, promulgated Rule 14e—3(a). That measure provides: "(a) If any person has taken a substantial step or steps to commence, or has commenced, a tender offer (the `offering person'), it shall constitute a fraudulent, deceptive or manipulative act or practice within the meaning of section 14(e) of the [Exchange] Act for any other person who is in possession of material information relating to such tender offer which information he knows or has reason to know is nonpublic and which he knows or has reason to know has been acquired directly or indirectly from: "(1) The offering person, "(2) The issuer of the securities sought or to be sought by such tender offer, or "(3) Any officer, director, partner or employee or any other person acting on behalf of the offering person or such issuer, to purchase or sell or cause to be purchased or sold any of such securities or any securities convertible into or exchangeable for any such securities or any option or right to obtain or to dispose of any of the foregoing securities, unless within a reasonable time prior to any purchase or sale such information and its source *669 are publicly disclosed by press release or otherwise." 17 CFR § 240.14e—3(a) (1996). As characterized by the Commission, Rule 14e—3(a) is a "disclose or abstain from trading" requirement. 45 Fed. Reg. 60410 (1980).[15] The Second Circuit concisely described the Rule's thrust: "One violates Rule 14e—3(a) if he trades on the basis of material nonpublic information concerning a pending tender offer that he knows or has reason to know has been acquired `directly or indirectly' from an insider of the offer or or issuer, or someone working on their behalf. Rule 14e—3(a) is a disclosure provision. It creates a duty in those traders who fall within its ambit to abstain or disclose, without regard to whether the trader owes a pre-existing fiduciary duty to respect the confidentiality of the information." United States v. Chest- man, 947 F. 2d 551, 557 (1991) (en banc) (emphasis added), cert. denied, 503 U. S. 1004 (1992). See also SEC v. Maio, 51 F. 3d 623, 635 (CA7 1995) ("Rule 14e—3 creates a duty to disclose material non-public information, or abstain from trading in stocks implicated by an impending tender offer, regardless of whether such information was obtained through a breach of fiduciary duty. " (emphasis added)); SEC v. Peters, 978 F. 2d 1162, 1165 (CA10 1992) (as written, Rule 14e—3(a) has no fiduciary duty requirement). In the Eighth Circuit's view, because Rule 14e—3(a) applies whether or not the trading in question breaches a fiduciary duty, the regulation exceeds the SEC's § 14(e) rulemaking authority. See 92 F. 3d, at 624, 627. Contra, Maio, 51 F. 3d, at 634-635 (CA7); Peters, 978 F. 2d, at 1165-1167 (CA10); *670 Chestman, 947 F. 2d, at 556-563 (CA2) (all holding Rule 14e— 3(a) a proper exercise of SEC's statutory authority). In support of its holding, the Eighth Circuit relied on the text of § 14(e) and our decisions in Schreiber and Chiarella. See 92 F. 3d, at 624-627. The Eighth Circuit homed in on the essence of § 14(e)'s rulemaking authorization: "[T]he statute empowers the SEC to `define' and `prescribe means reasonably designed to prevent' `acts and practices' which are `fraudulent.' " Id., at 624. All that means, the Eighth Circuit found plain, is that the SEC may "identify and regulate," in the tender offer context, "acts and practices" the law already defines as "fraudulent"; but, the Eighth Circuit maintained, the SEC may not "create its own definition of fraud." Ibid. (internal quotation marks omitted). This Court, the Eighth Circuit pointed out, held in Schreiber that the word "manipulative" in the § 14(e) phrase "fraudulent, deceptive, or manipulative acts or practices" means just what the word means in § 10(b): Absent misrepresentation or nondisclosure, an act cannot be indicted as manipulative. See 92 F. 3d, at 625 (citing Schreiber, 472 U. S., at 7-8, and n. 6). Section 10(b) interpretations guide construction of § 14(e), the Eighth Circuit added, see 92 F. 3d, at 625, citing this Court's acknowledgment in Schreiber that § 14(e)'s "`broad antifraud prohibition' . . . [is] modeled on the antifraud provisions of § 10(b) . . . and Rule 10b—5," 472 U. S., at 10 (citation omitted); see id., at 10-11, n. 10. For the meaning of "fraudulent" under § 10(b), the Eighth Circuit looked to Chiarella. See 92 F. 3d, at 625. In that case, the Eighth Circuit recounted, this Court held that a failure to disclose information could be "fraudulent" under § 10(b) only when there was a duty to speak arising out of "`a fiduciary or other similar relation of trust and confidence.' " Chiarella, 445 U. S., at 228 (quoting Restatement (Second) of Torts § 551(2)(a) (1976)). Just as § 10(b) demands a showing *671 of a breach of fiduciary duty, so such a breach is necessary to make out a § 14(e) violation, the Eighth Circuit concluded. As to the Commission's § 14(e) authority to "prescribe means reasonably designed to prevent" fraudulent acts, the Eighth Circuit stated: "Properly read, this provision means simply that the SEC has broad regulatory powers in the field of tender offers, but the statutory terms have a fixed meaning which the SEC cannot alter by way of an administrative rule." 92 F. 3d, at 627. The United States urges that the Eighth Circuit's reading of § 14(e) misapprehends both the Commission's authority to define fraudulent acts and the Commission's power to prevent them. "The `defining' power," the United States submits, "would be a virtual nullity were the SEC not permitted to go beyond common law fraud (which is separately prohibited in the first [self-operative] sentence of Section 14(e))." Brief for United States 11; see id., at 37. In maintaining that the Commission's power to define fraudulent acts under § 14(e) is broader than its rulemaking power under § 10(b), the United States questions the Court of Appeals' reading of Schreiber. See Brief for United States 38-40. Parenthetically, the United States notes that the word before the Schreiber Court was "manipulative"; unlike "fraudulent," the United States observes, "`manipulative' . . . is `virtually a term of art when used in connection with the securities markets.' " Brief for United States 38, n. 20 (quoting Schreiber, 472 U. S., at 6). Most tellingly, the United States submits, Schreiber involved acts alleged to violate the self-operative provision in § 14(e)'s first sentence, a sentence containing language similar to § 10(b). But § 14(e)'s second sentence, containing the rulemaking authorization, the United States points out, does not track § 10(b), which simply authorizes the SEC to proscribe "manipulative or deceptive device[s] or contrivance[s]." Brief for United States 38. Instead, § 14(e)'s rulemaking prescription tracks § 15(c)(2)(D) of the Exchange Act, 15 U. S. C. § 78o (c)(2)(D), *672 which concerns the conduct of broker-dealers in over-thecounter markets. See Brief for United States 38-39. Since 1938, see 52 Stat. 1075, § 15(c)(2) has given the Commission authority to "define, and prescribe means reasonably designed to prevent, such [broker-dealer] acts and practices as are fraudulent, deceptive, or manipulative." 15 U. S. C. § 78o (c)(2)(D). When Congress added this same rulemaking language to § 14(e) in 1970, the Government states, the Commission had already used its § 15(c)(2) authority to reach beyond common-law fraud. See Brief for United States 39, n. 22.[16] We need not resolve in this case whether the Commission's authority under § 14(e) to "define . . . such acts and practices as are fraudulent" is broader than the Commission's frauddefining authority under § 10(b), for we agree with the United States that Rule 14e—3(a), as applied to cases of this genre, qualifies under § 14(e) as a "means reasonably designed to prevent" fraudulent trading on material, nonpublic information in the tender offer context.[17] A prophylactic *673 measure, because its mission is to prevent, typically encompasses more than the core activity prohibited. As we noted in Schreiber, § 14(e)'s rulemaking authorization gives the Commission "latitude," even in the context of a term of art like "manipulative," "to regulate nondeceptive activities as a `reasonably designed' means of preventing manipulative acts, without suggesting any change in the meaning of the term `manipulative' itself." 472 U. S., at 11, n. 11. We hold, accordingly, that under § 14(e), the Commission may prohibit acts not themselves fraudulent under the common law or § 10(b), if the prohibition is "reasonably designed to prevent. . . acts and practices [that] are fraudulent." 15 U. S. C. § 78n(e).[18] Because Congress has authorized the Commission, in § 14(e), to prescribe legislative rules, we owe the Commission's judgment "more than mere deference or weight." Batterton v. Francis, 432 U. S. 416, 424-426 (1977). Therefore, in determining whether Rule 14e—3(a)'s "disclose or abstain from trading" requirement is reasonably designed to prevent fraudulent acts, we must accord the Commission's assessment "controlling weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837, 844 (1984). In this case, we conclude, the Commission's assessment is none of these.[19] *674 In adopting the "disclose or abstain" rule, the SEC explained: "The Commission has previously expressed and continues to have serious concerns about trading by persons in possession of material, nonpublic information relating to a tender offer. This practice results in unfair disparities in market information and market disruption. Security holders who purchase from or sell to such persons are effectively denied the benefits of disclosure and the substantive protections of the Williams Act. If furnished with the information, these security holders would be able to make an informed investment decision, which could involve deferring the purchase or sale of the securities until the material information had been disseminated or until the tender offer had been commenced or terminated." 45 Fed. Reg. 60412 (1980) (footnotes omitted). The Commission thus justified Rule 14e—3(a) as a means necessary and proper to assure the efficacy of Williams Act protections. The United States emphasizes that Rule 14e—3(a) reaches trading in which "a breach of duty is likely but difficult to prove." Reply Brief 16. "Particularly in the context of a tender offer," as the Tenth Circuit recognized, "there is a fairly wide circle of people with confidential information," Peters, 978 F. 2d, at 1167, notably, the attorneys, investment *675 bankers, and accountants involved in structuring the transaction. The availability of that information may lead to abuse, for "even a hint of an upcoming tender offer may send the price of the target company's stock soaring." SEC v. Materia, 745 F. 2d 197, 199 (CA2 1984). Individuals entrusted with nonpublic information, particularly if they have no long-term loyalty to the issuer, may find the temptation to trade on that information hard to resist in view of "the very large short-term profits potentially available [to them]." Peters, 978 F. 2d, at 1167. "[I]t may be possible to prove circumstantially that a person [traded on the basis of material, nonpublic information], but almost impossible to prove that the trader obtained such information in breach of a fiduciary duty owed either by the trader or by the ultimate insider source of the information." Ibid. The example of a "tippee" who trades on information received from an insider illustrates the problem. Under Rule 10b—5, "a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach." Dirks , 463 U. S., at 660. To show that a tippee who traded on nonpublic information about a tender offer had breached a fiduciary duty would require proof not only that the insider source breached a fiduciary duty, but that the tippee knew or should have known of that breach. "Yet, in most cases, the only parties to the [information transfer] will be the insider and the alleged tippee." Peters, 978 F. 2d, at 1167.[20] *676 In sum, it is a fair assumption that trading on the basis of material, nonpublic information will often involve a breach of a duty of confidentiality to the bidder or target company or their representatives. The SEC, cognizant of the proof problem that could enable sophisticated traders to escape responsibility, placed in Rule 14e—3(a) a "disclose or abstain from trading" command that does not require specific proof of a breach of fiduciary duty. That prescription, we are satisfied, applied to this case, is a "means reasonably designed to prevent" fraudulent trading on material, nonpublic information in the tender offer context. See Chestman, 947 F. 2d, at 560 ("While dispensing with the subtle problems of proof associated with demonstrating fiduciary breach in the problematic area of tender offer insider trading, [Rule 14e— 3(a)] retains a close nexus between the prohibited conduct and the statutory aims."); accord, Maio, 51 F. 3d, at 635, and n. 14; Peters, 978 F. 2d, at 1167.[21] Therefore, insofar as it serves to prevent the type of misappropriation charged against O'Hagan, Rule 14e—3(a) is a proper exercise of the Commission's prophylactic power under § 14(e).[22] As an alternate ground for affirming the Eighth Circuit's judgment, O'Hagan urges that Rule 14e—3(a) is invalid because *677 it prohibits trading in advance of a tender offer—when "a substantial step . . . to commence" such an offer has been taken—while § 14(e) prohibits fraudulent acts "in connection with any tender offer." See Brief for Respondent 41-42. O'Hagan further contends that, by covering pre-offer conduct, Rule 14e—3(a) "fails to comport with due process on two levels": The Rule does not "give fair notice as to when, in advance of a tender offer, a violation of § 14(e) occurs," id., at 42; and it"disposes of any scienter requirement," id., at 43. The Court of Appeals did not address these arguments, and O'Hagan did not raise the due process points in his briefs before that court. We decline to consider these contentions in the first instance.[23] The Court of Appeals may address on remand any arguments O'Hagan has preserved. IV Based on its dispositions of the securities fraud convictions, the Court of Appeals also reversed O'Hagan's convictions, under 18 U. S. C. § 1341, for mail fraud. See 92 F. 3d, at 627-628. Reversal of the securities convictions, the Court of Appeals recognized, "d[id] not as a matter of law require that the mail fraud convictions likewise be reversed." Id., at 627 (citing Carpenter, 484 U. S., at 24, in which this Court unanimously affirmed mail and wire fraud convictions based on the same conduct that evenly divided the Court on the defendants' securities fraud convictions). But in this case, the Court of Appeals said, the indictment was so structured that the mail fraud charges could not be disassociated from the securities fraud charges, and absent any securities *678 fraud, "there was no fraud upon which to base the mail fraud charges." 92 F. 3d, at 627-628.[24] The United States urges that the Court of Appeals' position is irreconcilable with Carpenter: Just as in Carpenter, so here, the "mail fraud charges are independent of [the] securities fraud charges, even [though] both rest on the same set of facts." Brief for United States 46-47. We need not linger over this matter, for our rulings on the securities fraud issues require that we reverse the Court of Appeals judgment on the mail fraud counts as well.[25] O'Hagan, we note, attacked the mail fraud convictions in the Court of Appeals on alternate grounds; his other arguments, not yet addressed by the Eighth Circuit, remain open for consideration on remand. * * * The judgment of the Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. *679 Justice Scalia, concurring in part and dissenting in part. I join Parts I, III, and IV of the Court's opinion. I do not agree, however, with Part II of the Court's opinion, containing its analysis of respondent's convictions under § 10(b) and Rule 10b—5. I do not entirely agree with Justice Thomas's analysis of those convictions either, principally because it seems to me irrelevant whether the Government's theory of why respondent's acts were covered is "coherent and consistent," post, at 691. It is true that with respect to matters over which an agency has been accorded adjudicative authority or policymaking discretion, the agency's action must be supported by the reasons that the agency sets forth, SEC v. Chenery Corp., 318 U. S. 80, 94 (1943); see also SEC v. Chenery Corp., 332 U. S. 194, 196 (1947), but I do not think an agency's unadorned application of the law need be, at least where (as here) no Chevron deference is being given to the agency's interpretation, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). In point of fact, respondent's actions either violated § 10(b) and Rule 10b—5, or they did not—regardless of the reasons the Government gave. And it is for us to decide. While the Court's explanation of the scope of § 10(b) and Rule 10b—5 would be entirely reasonable in some other context, it does not seem to accord with the principle of lenity we apply to criminal statutes (which cannot be mitigated here by the Rule, which is no less ambiguous than the statute). See Reno v. Koray, 515 U. S. 50, 64-65 (1995) (explaining circumstances in which rule of levity applies); United States v. Bass, 404 U. S. 336, 347-348 (1971) (discussing policies underlying rule of lenity). In light of that principle, it seems to me that the unelaborated statutory language: "[t]o use or employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance," § 10(b), must be construed to require the manipulation or deception of a party to a securities transaction. *680 Justice Thomas, with whom The Chief Justice joins, concurring in the judgment in part and dissenting in part. Today the majority upholds respondent's convictions for violating § 10(b) of the Securities Exchange Act of 1934, and Rule 10b—5 promulgated thereunder, based upon the Securities and Exchange Commission's "misappropriation theory." Central to the majority's holding is the need to interpret § 10(b)'s requirement that a deceptive device be "use[d] or employ[ed], in connection with the purchase or sale of any security." 15 U. S. C. § 78j(b). Because the Commission's misappropriation theory fails to provide a coherent and consistent interpretation of this essential requirement for liability under § 10(b), I dissent. The majority also sustains respondent's convictions under § 14(e) of the Securities Exchange Act, and Rule 14e—3(a) promulgated thereunder, regardless of whether respondent violated a fiduciary duty to anybody. I dissent too from that holding because, while § 14(e) does allow regulations prohibiting nonfraudulent acts as a prophylactic against certain fraudulent acts, neither the majority nor the Commission identifies any relevant underlying fraud against which Rule 14e—3(a) reasonably provides prophylaxis. With regard to respondent's mail fraud convictions, however, I concur in the judgment of the Court. I I do not take issue with the majority's determination that the undisclosed misappropriation of confidential information by a fiduciary can constitute a "deceptive device" within the meaning of § 10(b). Nondisclosure where there is a preexisting duty to disclose satisfies our definitions of fraud and deceit for purposes of the securities laws. See Chiarella v. United States, 445 U. S. 222, 230 (1980). Unlike the majority, however, I cannot accept the Commission's interpretation of when a deceptive device is "use[d] . . . in connection with" a securities transaction. Although the Commission and the majority at points seem to suggest that *681 any relation to a securities transaction satisfies the "in connection with" requirement of § 10(b), both ultimately reject such an overly expansive construction and require a more integral connection between the fraud and the securities transaction. The majority states, for example, that the misappropriation theory applies to undisclosed misappropriation of confidential information "for securities trading purposes," ante, at 652, thus seeming to require a particular intent by the misappropriator in order to satisfy the "in connection with" language. See also ante, at 656 (the "misappropriation theory targets information of a sort that misappropriators ordinarily capitalize upon to gain no-risk profits through the purchase or sale of securities" (emphasis added)); ante, at 656-657 (distinguishing embezzlement of money used to buy securities as lacking the requisite connection). The Commission goes further, and argues that the misappropriation theory satisfies the "in connection with" requirement because it "depends on an inherent connection between the deceptive conduct and the purchase or sale of a security." Brief for United States 21 (emphasis added); see also ibid. (the "misappropriated information had personal value to respondent only because of its utility in securities trading" (emphasis added)). The Commission's construction of the relevant language in § 10(b), and the incoherence of that construction, become evident as the majority attempts to describe why the fraudulent theft of information falls under the Commission's misappropriation theory, but the fraudulent theft of money does not. The majority correctly notes that confidential information "qualifies as property to which the company has a right of exclusive use." Ante, at 654. It then observes that the "undisclosed misappropriation of such information, in violation of a fiduciary duty, . . . constitutes fraud akin to embezzlement—the fraudulent appropriation to one's own use of the money or goods entrusted to one's care by another." *682 Ibid. (citations and internal quotation marks omitted).[1] So far the majority's analogy to embezzlement is well taken, and adequately demonstrates that undisclosed misappropriation can be a fraud on the source of the information. What the embezzlement analogy does not do, however, is explain how the relevant fraud is "use[d] or employ[ed], in connection with" a securities transaction. And when the majority seeks to distinguish the embezzlement of funds from the embezzlement of information, it becomes clear that neither the Commission nor the majority has a coherent theory regarding § 10(b)'s "in connection with" requirement. Turning first to why embezzlement of information supposedly meets the "in connection with" requirement, the majority asserts that the requirement "is satisfied because the fiduciary's fraud is consummated, not when the fiduciary gains the confidential information, but when, without disclosure to his principal, he uses the information to purchase or sell securities. The securities transaction and the breach of duty thus coincide." Ante, at 656. The majority later notes, with apparent approval, the Government's contention that the embezzlement of funds used to purchase securities would not fall within the misappropriation theory. Ante, at 656-657 (citing Brief for United States 24, n. 13). The misappropriation of funds used for a securities transaction is not covered by its theory, the Government explains, because "the proceeds would have value to the malefactor apart from their use in a securities transaction, and the fraud would be complete as soon as the money was *683 obtained." Brief for United States 24, n. 13; see ante, at 656 (quoting Government's explanation). Accepting the Government's description of the scope of its own theory, it becomes plain that the majority's explanation of how the misappropriation theory supposedly satisfies the "in connection with" requirement is incomplete. The touchstone required for an embezzlement to be "use[d] or employ[ed], in connection with" a securities transaction is not merely that it "coincide" with, or be consummated by, the transaction, but that it is necessarily and only consummated by the transaction. Where the property being embezzled has value "apart from [its] use in a securities transaction"— even though it is in fact being used in a securities transaction—the Government contends that there is no violation under the misappropriation theory. My understanding of the Government's proffered theory of liability, and its construction of the "in connection with" requirement, is confirmed by the Government's explanation during oral argument: "[Court]: What if I appropriate some of my client's money in order to buy stock? . . . . . "[Court]: Have I violated the securities laws? "[Counsel]: I do not think that you have. "[Court]: Why not? Isn't that in connection with the purchase of securit[ies] just as much as this one is? "[Counsel]: It's not just as much as this one is, because in this case it is the use of the information that enables the profits, pure and simple. There would be no opportunity to engage in profit— "[Court]: Same here. I didn't have the money. The only way I could buy this stock was to get the money. . . . . . "[Counsel]: The difference . . . is that once you have the money you can do anything you want with it. In a sense, the fraud is complete at that point, and then you *684 go on and you can use the money to finance any number of other activities, but the connection is far less close than in this case, where the only value of this informa- tion for personal profit for respondent was to take it and profit in the securities markets by trading on it. . . . . . "[Court]: So what you're saying is, is in this case the misappropriation can only be of relevance, or is of substantial relevance, is with reference to the purchase of securities. "[Counsel]: Exactly. "[Court]: When you take the money out of the accounts you can go to the racetrack, or whatever. "[Counsel]: That's exactly right, and because of that difference, [there] can be no doubt that this kind of misappropriation of property is in connection with the purchase or sale of securities. "Other kinds of misappropriation of property may or may not, but this is a unique form of fraud, unique to the securities markets, in fact, because the only way in which respondent could have profited through this in- formation is by either trading on it or by tipping some- body else to enable their trades. " Tr. of Oral Arg. 16-19 (emphases added). As the above exchange demonstrates, the relevant distinction is not that the misappropriated information was used for a securities transaction (the money example met that test), but rather that it could only be used for such a transaction. See also id., at 6-7 (Government contention that the misappropriation theory satisfies "the requisite connection between the fraud and the securities trading, because it is only in the trading that the fraud is consummated" (emphasis added)); id., at 8 (same). The Government's construction of the "in connection with" requirement—and its claim that such requirement precludes coverage of financial embezzlement—also demonstrates how *685 the majority's described distinction of financial embezzlement is incomplete. Although the majority claims that the fraud in a financial embezzlement case is complete as soon as the money is obtained, and before the securities transaction is consummated, that is not uniformly true, and thus cannot be the Government's basis for claiming that such embezzlement does not violate the securities laws. It is not difficult to imagine an embezzlement of money that takes place via the mechanism of a securities transaction—for example where a broker is directed to purchase stock for a client and instead purchases such stock—using client funds—for his own account. The unauthorized (and presumably undisclosed) transaction is the very act that constitutes the embezzlement and the "securities transaction and the breach of duty thus coincide." What presumably distinguishes monetary embezzlement for the Government is thus that it is not necessarily coincident with a securities transaction, not that it never lacks such a "connection." Once the Government's construction of the misappropriation theory is accurately described and accepted—along with its implied construction of § 10(b)'s "in connection with" language—that theory should no longer cover cases, such as this one, involving fraud on the source of information where the source has no connection with the other participant in a securities transaction. It seems obvious that the undisclosed misappropriation of confidential information is not necessarily consummated by a securities transaction. In this case, for example, upon learning of Grand Met's confidential takeover plans, O'Hagan could have done any number of things with the information: He could have sold it to a newspaper for publication, see id., at 36; he could have given or sold the information to Pillsbury itself, see id., at 37; or he could even have kept the information and used it solely for his personal amusement, perhaps in a fantasy stock trading game. Any of these activities would have deprived Grand Met of its right to "exclusive use," ante, at 654, of the information *686 and, if undisclosed, would constitute "embezzlement" of Grand Met's informational property. Under any theory of liability, however, these activities would not violate § 10(b) and, according to the Commission's monetary embezzlement analogy, these possibilities are sufficient to preclude a violation under the misappropriation theory even where the informational property was used for securities trading. That O'Hagan actually did use the information to purchase securities is thus no more significant here than it is in the case of embezzling money used to purchase securities. In both cases the embezzler could have done something else with the property, and hence the Commission's necessary "connection" under the securities laws would not be met.[2] If the relevant test under the "in connection with" language is whether the fraudulent act is necessarily tied to a securities transaction, then the misappropriation of confidential information used to trade no more violates § 10(b) than does the misappropriation of funds used to trade. As the Commission concedes that the latter is not covered under its theory, I am at a loss to see how the same theory can coherently be applied to the former.[3] *687 The majority makes no attempt to defend the misappropriation theory as set forth by the Commission. Indeed, the majority implicitly concedes the indefensibility of the Commission's theory by acknowledging that alternative uses of misappropriated information exist that do not violate the securities laws and then dismissing the Government's repeated explanations of its misappropriation theory as mere "overstatement." Ante, at 657. Having rejected the Government's description of its theory, the majority then engages in the "imaginative" exercise of constructing its own misappropriation theory from whole cloth. Thus, we are told, if we merely "[s]ubstitute `ordinarily' for `only' " when describing the degree of connecteness between a misappropriation and a securities transaction, the Government would have a winner. Ibid. Presumably, the majority would similarly edit the Government's brief to this Court to argue for only an "ordinary," rather than an "inherent connection between the deceptive conduct and the purchase or sale of a security." Brief for United States 21 (emphasis added). I need not address the coherence, or lack thereof, of the majority's new theory, for it suffers from a far greater, and dispositive, flaw: It is not the theory offered by the Commission. Indeed, as far as we know from the majority's opinion, this new theory has never been proposed by the Commission, much less adopted by rule or otherwise. It is a fundamental proposition of law that this Court "may not supply a reasoned basis for the agency's action that the agency itself has not given." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). We do not even credit a "post hoc rationalizatio[n]" of counsel for the agency, id., at 50, so one is left to wonder how we could possibly rely on a post hoc rationalization *688 invented by this Court and never even presented by the Commission for our consideration. Whether the majority's new theory has merit, we cannot possibly tell on the record before us. There are no findings regarding the "ordinary" use of misappropriated information, much less regarding the "ordinary" use of other forms of embezzled property. The Commission has not opined on the scope of the new requirement that property must "ordinarily" be used for securities trading in order for its misappropriation to be "in connection with" a securities transaction. We simply do not know what would or would not be covered by such a requirement, and hence cannot evaluate whether the requirement embodies a consistent and coherent interpretation of the statute.[4] Moreover, persons subject to *689 this new theory, such as respondent here, surely could not and cannot regulate their behavior to comply with the new theory because, until today, the theory has never existed. In short, the majority's new theory is simply not presented by this case, and cannot form the basis for upholding respondent's convictions. In upholding respondent's convictions under the new and improved misappropriation theory, the majority also points to various policy considerations underlying the securities laws, such as maintaining fair and honest markets, promoting investor confidence, and protecting the integrity of the securities markets. Ante, at 657, 658-659. But the repeated reliance on such broad-sweeping legislative purposes reaches too far and is misleading in the context of the misappropriation theory. It reaches too far in that, regardless of the overarching purpose of the securities laws, it is not illegal to run afoul of the "purpose" of a statute, only its letter. The majority's approach is misleading in this case because it glosses over the fact that the supposed threat to fair and honest markets, investor confidence, and market integrity comes not from the supposed fraud in this case, but from the mere fact that the information used by O'Hagan was nonpublic. As the majority concedes, because "the deception essential to the misappropriation theory involves feigning fidelity to the source of information, if the fiduciary discloses to the source that he plans to trade on the nonpublic information, there is no `deceptive device' and thus no § 10(b) violation." Ante, at 655 (emphasis added). Indeed, were the source expressly to authorize its agents to trade on the confidential information—as a perk or bonus, perhaps—there would likewise be no § 10(b) violation.[5] Yet in either case—disclosed *690 misuse or authorized use—the hypothesized "inhibiting impact on market participation," ante, at 659, would be identical to that from behavior violating the misappropriation theory: "Outsiders" would still be trading based on nonpublic information that the average investor has no hope of obtaining through his own diligence.[6] The majority's statement that a "misappropriator who trades on the basis of material, nonpublic information, in short, gains his advantageous market position through deception; he deceives the source of the information and simultaneously harms members of the investing public, " ante, at 656 (emphasis added), thus focuses on the wrong point. Even if it is true that trading on nonpublic information hurts the public, it is true whether or not there is any deception of the source of the information.[7] Moreover, as *691 we have repeatedly held, use of nonpublic information to trade is not itself a violation of § 10(b). E. g., Chiarella, 445 U. S., at 232-233. Rather, it is the use of fraud "in connection with" a securities transaction that is forbidden. Where the relevant element of fraud has no impact on the integrity of the subsequent transactions as distinct from the nonfraudulent element of using nonpublic information, one can reasonably question whether the fraud was used in connection with a securities transaction. And one can likewise question whether removing that aspect of fraud, though perhaps laudable, has anything to do with the confidence or integrity of the market. The absence of a coherent and consistent misappropriation theory and, by necessary implication, a coherent and consistent application of the statutory "use or employ, in connection with" language, is particularly problematic in the context of this case. The Government claims a remarkable breadth to the delegation of authority in § 10(b), arguing that "the very aim of this section was to pick up unforeseen, cunning, deceptive devices that people might cleverly use in the securities markets." Tr. of Oral Arg. 7. As the Court aptly queried, "[t]hat's rather unusual, for a criminal statute to be that open-ended, isn't it?" Ibid. Unusual indeed. Putting aside the dubious validity of an open-ended delegation to an independent agency to go forth and create regulations criminalizing "fraud," in this case we do not even have a formal regulation embodying the agency's misappropriation theory. Certainly Rule 10b—5 cannot be said to embody the theory— although it deviates from the statutory language by the addition of the words "any person," it merely repeats, unchanged, § 10(b)'s "in connection with" language. Given that the validity of the misappropriation theory turns on the construction *692 of that language in § 10(b), the regulatory language is singularly uninformative.[8] Because we have no regulation squarely setting forth some version of the misappropriation theory as the Commission's interpretation of the statutory language, we are left with little more than the Commission's litigating position or the majority's completely novel theory that is not even acknowledged, much less adopted, by the Commission. As we have noted before, such positions are not entitled to deference and, at most, get such weight as their persuasiveness warrants. Metropolitan Stevedore Co. v. Rambo, ante, at 138, n. 9, 140, n. 10. Yet I find wholly unpersuasive a litigating position by the Commission that, at best, embodies an inconsistent and incoherent interpretation of the relevant statutory language and that does not provide any predictable guidance as to what behavior contravenes the statute. That position is no better than an ad hoc interpretation of statutory language and in my view can provide no basis for liability. II I am also of the view that O'Hagan's conviction for violating Rule 14e—3(a) cannot stand. Section 14(e) of the Exchange Act provides, in relevant part: "It shall be unlawful for any person . . . to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer . . . . The Commission shall, for the purposes of this subsection, by rules and regulations define, and prescribe means *693 reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative." 15 U. S. C. § 78n(e). Pursuant to the rulemaking authority conferred by this section, the Commission has promulgated Rule 14e—3(a), which provides, in relevant part: "(a) If any person has taken a substantial step or steps to commence, or has commenced, a tender offer (the `offering person'), it shall constitute a fraudulent, deceptive or manipulative act or practice within the meaning of section 14(e) of the [Securities Exchange] Act for any other person who is in possession of material information relating to such tender offer which information he knows or has reason to know is nonpublic and which he knows or has reason to know has been acquired directly or indirectly from: "(1) The offering person, "(2) The issuer of the securities sought or to be sought by such tender offer, or "(3) [Any person acting on behalf of the offering person or such issuer], to purchase or sell [any such securities or various instruments related to such securities], unless within a reasonable time prior to any purchase or sale such information and its source are publicly disclosed by press release or otherwise." 17 CFR § 240.14e—3(a) (1996). As the majority acknowledges, Rule 14e—3(a) prohibits a broad range of behavior regardless of whether such behavior is fraudulent under our precedents. See ante, at 669 (Rule applies "`without regard to whether the trader owes a preexisting fiduciary duty to respect the confidentiality of the information' " (emphasis deleted)) (quoting United States v. Chestman, 947 F. 2d 551, 557 (CA2 1991) (en banc), cert. denied, 503 U. S. 1004 (1992)). *694 The Commission offers two grounds in defense of Rule 14e—3(a). First, it argues that § 14(e) delegates to the Commission the authority to "define" fraud differently than that concept has been defined by this Court, and that Rule 14e— 3(a) is a valid exercise of that "defining" power. Second, it argues that § 14(e) authorizes the Commission to "prescribe means reasonably designed to prevent" fraudulent acts, and that Rule 14e—3(a) is a prophylactic rule that may prohibit nonfraudulent acts as a means of preventing fraudulent acts that are difficult to detect or prove. The majority declines to reach the Commission's first justification, instead sustaining Rule 14e—3(a) on the ground that "under § 14(e), the Commission may prohibit acts not themselves fraudulent under the common law or § 10(b), if the prohibition is `reasonably designed to prevent . . . acts and practices [that] are fraudulent.' " Ante, at 673 (quoting 15 U. S. C. § 78n(e)). According to the majority, prohibiting trading on nonpublic information is necessary to prevent such supposedly hardto-prove fraudulent acts and practices as trading on information obtained from the buyer in breach of a fiduciary duty, ante, at 675, and possibly "warehousing," whereby the buyer tips allies prior to announcing the tender offer and encourages them to purchase the target company's stock, ante, at 672-673, n. 17.[9] I find neither of the Commission's justifications for Rule 14e—3(a) acceptable in misappropriation cases. With regard to the Commission's claim of authority to redefine the concept of fraud, I agree with the Eighth Circuit that the Commission misreads the relevant provision of § 14(e). *695 "Simply put, the enabling provision of § 14(e) permits the SEC to identify and regulate those `acts and practices' which fall within the § 14(e) legal definition of `fraudulent,' but it does not grant the SEC a license to redefine the term." 92 F. 3d 612, 624 (1996). This conclusion follows easily from our similar statement in Schreiber v. Burlington Northern, Inc., 472 U. S. 1, 11, n. 11 (1985), that § 14(e) gives the "Commission latitude to regulate nondeceptive activities as a `reasonably designed' means of preventing manipulative acts, without suggesting any change in the meaning of the term `manipulative' itself." Insofar as the Rule 14e—3(a) purports to "define" acts and practices that "are fraudulent," it must be measured against our precedents interpreting the scope of fraud. The majority concedes, however, that Rule 14e—3(a) does not prohibit merely trading in connection with fraudulent nondisclosure, but rather it prohibits trading in connection with any nondisclosure, regardless of the presence of a pre-existing duty to disclose. Ante, at 669. The Rule thus exceeds the scope of the Commission's authority to define such acts and practices as "are fraudulent."[10] *696 Turning to the Commission's second justification for Rule 14e—3(a), although I can agree with the majority that § 14(e) authorizes the Commission to prohibit nonfraudulent acts as a means reasonably designed to prevent fraudulent ones, I cannot agree that Rule 14e—3(a) satisfies this standard. As an initial matter, the Rule, on its face, does not purport to be an exercise of the Commission's prophylactic power, but rather a redefinition of what "constitute[s] a fraudulent, deceptive, or manipulative act or practice within the meaning of § 14(e)." That Rule 14e—3(a) could have been "conceived and defended, alternatively, as definitional or preventive," ante, at 674, n. 19, misses the point. We evaluate regulations not based on the myriad of explanations that could have been given by the relevant agency, but on those explanations and justifications that were, in fact, given. See State Farm, 463 U. S., at 43, 50. Rule 14e—3(a) may not be "[s]ensibly read" as an exercise of "preventive" authority, ante, at 674, n. 19; it can only be differently so read, contrary to its own terms. Having already concluded that the Commission lacks the power to redefine fraud, the regulation cannot be sustained on its own reasoning. This would seem a complete answer to whether the Rule is valid because, while we might give deference to the Commission's regulatory constructions of § 14(e), the reasoning used by the regulation itself is in this instance contrary to law and we need give no deference to the Commission's post hoc litigating justifications not reflected in the regulation. Even on its own merits, the Commission's prophylactic justification fails. In order to be a valid prophylactic regulation, Rule 14e—3(a) must be reasonably designed not merely to prevent any fraud, but to prevent persons from engaging in "fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer." 15 U. S. C. § 78n(e) (emphasis added). Insofar as Rule 14e—3(a) is designed to prevent the type of misappropriation at issue in this case, such acts are not legitimate objects of prevention because *697 the Commission's misappropriation theory does not represent a coherent interpretation of the statutory "in connection with" requirement, as explained in Part I, supra. Even assuming that a person misappropriating information from the bidder commits fraud on the bidder, the Commission has provided no coherent or consistent explanation as to why such fraud is "in connection with" a tender offer, and thus the Commission may not seek to prevent indirectly conduct which it could not, under its current theory, prohibit directly.[11] Finally, even further assuming that the Commission's misappropriation theory is a valid basis for direct liability, I fail to see how Rule 14e—3(a)'s elimination of the requirement of a breach of fiduciary duty is "reasonably designed" to prevent the underlying "fraudulent" acts. The majority's primary argument on this score is that in many cases "`a breach of duty is likely but difficult to prove.' " Ante, at 674 (quoting Reply Brief for United States 16). Although the majority's hypothetical difficulties involved in a tipper-tippee situation might have some merit in the context of "classical" insider trading, there is no reason to suspect similar difficulties in "misappropriation" cases. In such cases, Rule 14e— 3(a) requires the Commission to prove that the defendant "knows or has reason to know" that the nonpublic information upon which trading occurred came from the bidder or an agent of the bidder. Once the source of the information has been identified, it should be a simple task to obtain proof of any breach of duty. After all, it is the bidder itself that was defrauded in misappropriation cases, and there is no reason *698 to suspect that the victim of the fraud would be reluctant to provide evidence against the perpetrator of the fraud.[12] There being no particular difficulties in proving a breach of duty in such circumstances, a rule removing the requirement of such a breach cannot be said to be "reasonably designed" to prevent underlying violations of the misappropriation theory. What Rule 14e—3(a) was in fact "designed" to do can be seen from the remainder of the majority's discussion of the Rule. Quoting at length from the Commission's explanation of the Rule in the Federal Register, the majority notes the Commission's concern with "`unfair disparities in market information and market disruption.' " Ante, at 674 (quoting 45 Fed. Reg. 60412 (1980)). In the Commission's further explanation of Rule 14e—3(a)'s purpose—continuing the paragraph partially quoted by the majority—an example of the problem to be addressed is the so-called "stampede effect" *699 based on leaks and rumors that may result from trading on material, nonpublic information. Id., at 60413. The majority also notes (but does not rely on) the Government's contention that it would not be able to prohibit the supposedly problematic practice of "warehousing"—a bidder intentionally tipping allies to buy stock in advance of a bid announcement—if a breach of fiduciary duty were required. Ante, at 672-673, n.17 (citing Reply Brief for United States 17). Given these policy concerns, the majority notes with seeming approval the Commission's justification of Rule 14e—3(a) "as a means necessary and proper to assure the efficacy of Williams Act protections." Ante, at 674. Although this reasoning no doubt accurately reflects the Commission's purposes in adopting Rule 14e—3(a), it does little to support the validity of that Rule as a means designed to prevent such behavior: None of the above-described acts involve breaches of fiduciary duties, hence a Rule designed to prevent them does not satisfy § 14(e)'s requirement that the Commission's Rules promulgated under that section be "reasonably designed to prevent" acts and practices that "are fraudulent, deceptive, or manipulative." As the majority itself recognizes, there is no "`general duty between all participants in market transactions to forgo actions based on material, nonpublic information,' " and such duty only "`arises from a specific relationship between two parties.' " Ante, at 661 (quoting Chiarella, 445 U. S., at 233). Unfair disparities in market information, and the potential "stampede effect" of leaks, do not necessarily involve a breach of any duty to anyone, and thus are not proper objects for regulation in the name of "fraud" under § 14(e). Likewise (as the Government concedes, Reply Brief for United States 17), "warehousing" is not fraudulent given that the tippees are using the information with the express knowledge and approval of the source of the information. There simply would be no deception in violation of a duty to disclose under such circumstances. Cf. ante, at 654-655 (noting Government's concession *700 that use of bidder's information with bidder's knowledge is not fraudulent under misappropriation theory). While enhancing the overall efficacy of the Williams Act may be a reasonable goal, it is not one that may be pursued through § 14(e), which limits its grant of rulemaking authority to the prevention of fraud, deceit, and manipulation. As we have held in the context of § 10(b), "not every instance of financial unfairness constitutes fraudulent activity." Chiarella, supra, at 232. Because, in the context of misappropriation cases, Rule 14e—3(a) is not a means "reasonably designed" to prevent persons from engaging in fraud "in connection with" a tender offer, it exceeds the Commission's authority under § 14(e), and respondent's conviction for violation of that Rule cannot be sustained. III With regard to respondent's convictions on the mail fraud counts, my view is that they may be sustained regardless of whether respondent may be convicted of the securities fraud counts. Although the issue is highly fact bound, and not independently worthy of plenary consideration by this Court, we have nonetheless accepted the issue for review and therefore I will endeavor to resolve it. As I read the indictment, it does not materially differ from the indictment in Carpenter v. United States, 484 U. S. 19 (1987). There, the Court was unanimous in upholding the mail fraud conviction, id., at 28, despite being evenly divided on the securities fraud counts, id., at 24. I do not think the wording of the indictment in the current case requires a finding of securities fraud in order to find mail fraud. Certainly the jury instructions do not make the mail fraud count dependent on the securities fraud counts. Rather, the counts were simply predicated on the same factual basis, and just because those facts are legally insufficient to constitute securities fraud does not make them legally insufficient *701 to constitute mail fraud.[13] I therefore concur in the judgment of the Court as it relates to respondent's mail fraud convictions. NOTES [*] Briefs of amici curiae urging reversal were filed for the American Institute of Certified Public Accountants by Louis A. Craco, Richard I. Miller, and David P. Murray; for the Association for Investment Management and Research by Stuart H. Singer; and for the North American Securities Administrators Association, Inc., et al. by Karen M. O'Brien, Meyer Eisenberg, Louis Loss, and Donald C. Langevoort. Briefs of amici curiae urging affirmance were filed for Law Professors and Counsel by Richard W. Painter and Douglas W. Dunham; and for the National Association of Criminal Defense Lawyers by Arthur F. Mathews, David M. Becker, Andrew B. Weissman, Robert F. Hoyt, Lisa Kemler, Milton V. Freeman, and Elkan Abramowitz. [1] As evidence that O'Hagan traded on the basis of nonpublic information misappropriated from his law firm, the Government relied on a conversation between O'Hagan and the Dorsey & Whitney partner heading the firm's Grand Met representation. That conversation allegedly took place shortly before August 26, 1988. See Brief for United States 4. O'Hagan urges that the Government's evidence does not show he traded on the basis of nonpublic information. O'Hagan points to news reports on August 18 and 22, 1988, that Grand Met was interested in acquiring Pillsbury, and to an earlier, August 12, 1988, news report that Grand Met had put up its hotel chain for auction to raise funds for an acquisition. See Brief for Respondent 4 (citing App. 73-74, 78-80). O'Hagan's challenge to the sufficiency of the evidence remains open for consideration on remand. [2] O'Hagan was convicted of theft in state court, sentenced to 30 months' imprisonment, and fined. See State v. O'Hagan, 474 N. W. 2d 613, 615, 623 (Minn. App. 1991). The Supreme Court of Minnesota disbarred O'Hagan from the practice of law. See In re O'Hagan, 450 N. W. 2d 571 (1990). [3] See, e. g., United States v. Chestman, 947 F. 2d 551, 566 (CA2 1991) (en banc), cert. denied, 503 U. S. 1004 (1992); SEC v. Cherif, 933 F. 2d 403, 410 (CA7 1991), cert. denied, 502 U. S. 1071 (1992); SEC v. Clark, 915 F. 2d 439, 453 (CA9 1990). [4] Twice before we have been presented with the question whether criminal liability for violation of § 10(b) may be based on a misappropriation theory. In Chiarella v. United States, 445 U. S. 222, 235-237 (1980), the jury had received no misappropriation theory instructions, so we declined to address the question. See infra, at 661. In Carpenter v. United States, 484 U. S. 19, 24 (1987), the Court divided evenly on whether, under the circumstances of that case, convictions resting on the misappropriation theory should be affirmed. See Aldave, The Misappropriation Theory: Carpenter and Its Aftermath, 49 Ohio St. L. J. 373, 375 (1988) (observing that "Carpenter was, by any reckoning, an unusual case," for the information there misappropriated belonged not to a company preparing to engage in securities transactions, e. g., a bidder in a corporate acquisition, but to the Wall Street Journal). [5] The Government could not have prosecuted O'Hagan under the classical theory, for O'Hagan was not an "insider" of Pillsbury, the corporation in whose stock he traded. Although an "outsider" with respect to Pillsbury, O'Hagan had an intimate association with, and was found to have traded on confidential information from, Dorsey & Whitney, counsel to tender offer or Grand Met. Under the misappropriation theory, O'Hagan's securities trading does not escape Exchange Act sanction, as it would under Justice Thomas' dissenting view, simply because he was associated with, and gained nonpublic information from, the bidder, rather than the target. [6] Under the misappropriation theory urged in this case, the disclosure obligation runs to the source of the information, here, Dorsey & Whitney and Grand Met. Chief Justice Burger, dissenting in Chiarella, advanced a broader reading of § 10(b) and Rule 10b—5; the disclosure obligation, as he envisioned it, ran to those with whom the misappropriator trades. 445 U. S., at 240 ("a person who has misappropriated nonpublic information has an absolute duty to disclose that information or to refrain from trading"); see also id., at 243, n. 4. The Government does not propose that we adopt a misappropriation theory of that breadth. [7] Where, however, a person trading on the basis of material, nonpublic information owes a duty of loyalty and confidentiality to two entities or persons—for example, a law firm and its client—but makes disclosure to only one, the trader may still be liable under the misappropriation theory. [8] Justice Thomas' evident struggle to invent other uses to which O'Hagan plausibly might have put the nonpublic information, see post, at 685, is telling. It is imaginative to suggest that a trade journal would have paid O'Hagan dollars in the millions to publish his information. See Tr. of Oral Arg. 36-37. Counsel for O'Hagan hypothesized, as a nontrading use, that O'Hagan could have "misappropriat[ed] this information of [his] law firm and its client, deliver[ed] it to [Pillsbury], and suggest[ed] that [Pillsbury] in the future . . . might find it very desirable to use [O'Hagan] for legal work." Id., at 37. But Pillsbury might well have had large doubts about engaging for its legal work a lawyer who so stunningly displayed his readiness to betray a client's confidence. Nor is the Commission's theory "incoherent" or "inconsistent," post, at 680, 692, for failing to inhibit use of confidential information for "personal amusement . . . in a fantasy stock trading game," post, at 685. [9] As noted earlier, however, see supra, at 654-655, the textual requirement of deception precludes § 10(b) liability when a person trading on the basis of nonpublic information has disclosed his trading plans to, or obtained authorization from, the principal—even though such conduct may affect the securities markets in the same manner as the conduct reached by the misappropriation theory. Contrary to Justice Thomas' suggestion, see post, at 689-691, the fact that § 10(b) is only a partial antidote to the problems it was designed to alleviate does not call into question its prohibition of conduct that falls within its textual proscription. Moreover, once a disloyal agent discloses his imminent breach of duty, his principal may seek appropriate equitable relief under state law. Furthermore, in the context of a tender offer, the principal who authorizes an agent's trading on confidential information may, in the Commission's view, incur liability for an Exchange Act violation under Rule 14e—3(a). [10] The Eighth Circuit's conclusion to the contrary was based in large part on Dirks `s reiteration of the Chiarella language quoted and discussed above. See 92 F. 3d 612, 618-619 (1996). [11] The United States additionally argues that Congress confirmed the validity of the misappropriation theory in the Insider Trading and Securities Fraud Enforcement Act of 1988 (ITSFEA), § 2(1), 102 Stat. 4677, note following 15 U. S. C. § 78u—1. See Brief for United States 32-35. ITSFEA declares that "the rules and regulations of the Securities and Exchange Commission under the Securities Exchange Act of 1934 . . . governing trading while in possession of material, nonpublic information are, as required by such Act, necessary and appropriate in the public interest and for the protection of investors." Note following 15 U. S. C. § 78u—1. ITSFEA also includes a new § 20A(a) of the Exchange Act expressly providing a private cause of action against persons who violate the Exchange Act "by purchasing or selling a security while in possession of material, nonpublic information"; such an action may be brought by "any person who, contemporaneously with the purchase or sale of securities that is the subject of such violation, has purchased . . . or sold . . . securities of the same class." 15 U. S. C. § 78t—1(a). Because we uphold the misappropriation theory on the basis of § 10(b) itself, we do not address ITSFEA's significance for cases of this genre. [12] In relevant part, § 32 of the Exchange Act, as set forth in 15 U. S. C. § 78ff(a), provides: "Any person who willfully violates any provision of this chapter . . . or any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required under the terms of this chapter . . . shall upon conviction be fined not more than $1,000,000, or imprisoned not more than 10 years, or both . . . ; but no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation." [13] The statute provides no such defense to imposition of monetary fines. See ibid. [14] In addition to § 14(e), the Williams Act and the 1970 amendments added to the Exchange Act the following provisions concerning disclosure: § 13(d), 15 U. S. C. § 78m(d) (disclosure requirements for persons acquiring more than five percent of certain classes of securities); § 13(e), 15 U. S. C. § 78m(e) (authorizing Commission to adopt disclosure requirements for certain repurchases of securities by issuer); § 14(d), 15 U. S. C. § 78n(d) (disclosure requirements when tender offer results in offer or owning more than five percent of a class of securities); § 14(f),15 U. S. C. § 78n(f) (disclosure requirements when tender offer results in new corporate directors constituting a majority). [15] The Rule thus adopts for the tender offer context a requirement resembling the one Chief Justice Burger would have adopted in Chiarella for misappropriators under § 10(b). See supra, at 655, n. 6. [16] The Government draws our attention to the following measures: 17 CFR § 240.15c2-1 (1970) (prohibiting a broker-dealer's hypothecation of a customer's securities if hypothecated securities would be commingled with the securities of another customer, absent written consent); § 240.15c2-3 (prohibiting transactions by broker-dealers in unvalidated German securities); § 240.15c2-4 (prohibiting broker-dealers from accepting any part of the sale price of a security being distributed unless the money received is promptly transmitted to the persons entitled to it); § 240.15c2-5 (requiring broker-dealers to provide written disclosure of credit terms and commissions in connection with securities sales in which broker-dealers extend credit, or participate in arranging for loans, to the purchasers). See Brief for United States 39, n. 22. [17] We leave for another day, when the issue requires decision, the legitimacy of Rule 14e—3(a) as applied to "warehousing," which the Government describes as "the practice by which bidders leak advance information of a tender offer to allies and encourage them to purchase the target company's stock before the bid is announced." Reply Brief 17. As we observed in Chiarella, one of the Commission's purposes in proposing Rule 14e—3(a) was "to bar warehousing under its authority to regulate tender offers." 445 U. S., at 234. The Government acknowledges that trading authorized by a principal breaches no fiduciary duty. See Reply Brief 17. The instant case, however, does not involve trading authorized by a principal; therefore, we need not here decide whether the Commission's proscription of warehousing falls within its § 14(e) authority to define or prevent fraud. [18] The Commission's power under § 10(b) is more limited. See supra, at 651 (Rule 10b—5 may proscribe only conduct that § 10(b) prohibits). [19] Justice Thomas' dissent urges that the Commission must be precise about the authority it is exercising—that it must say whether it is acting to "define" or to "prevent" fraud—and that in this instance it has purported only to define, not to prevent. See post, at 696. Justice Thomas sees this precision in Rule 14e—3(a)'s words: "it shall constitute a fraudulent . . . act . . . within the meaning of section 14(e) . . . ." We do not find the Commission's Rule vulnerable for failure to recite as a regulatory preamble: We hereby exercise our authority to "define, and prescribe means reasonably designed to prevent, . . . [fraudulent] acts." Sensibly read, the Rule is an exercise of the Commission's full authority. Logically and practically, such a rule may be conceived and defended, alternatively, as definitional or preventive. [20] Justice Thomas opines that there is no reason to anticipate difficulties in proving breach of duty in "misappropriation" cases. "Once the source of the [purloined] information has been identified," he asserts, "it should be a simple task to obtain proof of any breach of duty." Post, at 697. To test that assertion, assume a misappropriating partner at Dorsey & Whitney told his daughter or son and a wealthy friend that a tender for Pillsbury was in the offing, and each tippee promptly purchased Pillsbury stock, the child borrowing the purchase price from the wealthy friend. Justice Thomas' confidence, post, at 698, n. 12, that "there is no reason to suspect that the tipper would gratuitously protect the tippee," seems misplaced. [21] Justice Thomas insists that even if the misappropriation of information from the bidder about a tender offer is fraud, the Commission has not explained why such fraud is "in connection with" a tender offer. Post, at 697, 698. What else, one can only wonder, might such fraud be "in connection with"? [22] Repeating the argument it made concerning the misappropriation theory, see supra, at 665, n. 11, the United States urges that Congress confirmed Rule 14e—3(a)'s validity in ITSFEA, 15 U. S. C. § 78u—1. See Brief for United States 44-45. We uphold Rule 14e—3(a) on the basis of § 14(e) itself and need not address ITSFEA's relevance to this case. [23] As to O'Hagan's scienter argument, we reiterate that 15 U. S. C. § 78ff(a)requires the Government to prove "willful[l]violat[ion]" of the securities laws, and that lack of knowledge of the relevant rule is an affirmative defense to a sentence of imprisonment. See supra, at 665-666. [24] The Court of Appeals reversed respondent's money laundering convictions on similar reasoning. See 92 F. 3d, at 628. Because the United States did not seek review of that ruling, we leave undisturbed that portion of the Court of Appeals' judgment. [25] Justice Thomas finds O'Hagan's convictions on the mail fraud counts, but not on the securities fraud counts, sustainable. Post, at 700-701. Under his view, securities traders like O'Hagan would escape SEC civil actions and federal prosecutions under legislation targeting securities fraud, only to be caught for their trading activities in the broad mail fraud net. If misappropriation theory cases could proceed only under the federal mail and wire fraud statutes, practical consequences for individual defendants might not be large, see Aldave, 49 Ohio St. L. J., at 381, and n. 60; however, "proportionally more persons accused of insider trading [might] be pursued by a U. S. Attorney, and proportionally fewer by the SEC," id., at 382. Our decision, of course, does not rest on such enforcement policy considerations. [1] Of course, the "use" to which one puts misappropriated property need not be one designed to bring profit to the misappropriator: Any "fraudulent appropriation to one's own use" constitutes embezzlement, regardless of what the embezzler chooses to do with the money. See, e. g., Logan v. State, 493 P. 2d 842, 846 (Okla. Crim. App. 1972) ("Any diversion of funds held in trust constitutes embezzlement whether there is direct personal benefit or not as long as the owner is deprived of his money"). [2] Indeed, even if O'Hagan or someone else thereafter used the information to trade, the misappropriation would have been complete before the trade and there should be no § 10(b) liability. The most obvious realworld example of this scenario would be if O'Hagan had simply tipped someone else to the information. The mere act of passing the information along would have violated O'Hagan's fiduciary duty and, if undisclosed, would be an "embezzlement" of the confidential information, regardless of whether the tippee later traded on the information. [3] The majority is apparently unimpressed by the example of a misappropriator using embezzled information for personal amusement in a fantasy stock trading game, finding no need for the Commission to "inhibit" such recreational uses. Ante, at 657, n. 8. This argument, of course, misses the point of the example. It is not that such a use does or should violate the securities laws yet is not covered by the Commission's theory; rather, the example shows that the misappropriation of information is not "only" or "inherently" tied to securities trading, and hence the misappropriation of information, whatever its ultimate use, fails the Commission's own test under the "in connection with" requirement of § 10(b) and Rule 10b—5. [4] Similarly, the majority's assertion that the alternative uses of misappropriated information are not as profitable as use in securities trading, ante, at 657, n. 8, is speculative at best. We have no idea what is the best or most profitable use of misappropriated information, either in this case or generally. We likewise have no idea what is the best use of other forms of misappropriated property, and it is at least conceivable that the best use of embezzled money, or securities themselves, is for securities trading. If the use of embezzled money to purchase securities is "sufficiently detached," ante, at 657, from a securities transaction, then I see no reason why the non-"inherent" use of information for securities trading is not also "sufficiently detached" under the Government's theory. In any event, I am at a loss to find in the statutory language any hint of a "best-use" requirement for setting the requisite connection between deception and the purchase or sale of securities. The majority's further claim that it is unremarkable that "a rule suitably applied to the fraudulent uses of certain kinds of information would be stretched beyond reason were it applied to the fraudulent use of money," ibid., is itself remarkable given that the only existing "rule" is Rule 10b—5, which nowhere confines itself to information and, indeed, does not even contain the word. And given that the only "reason" offered by the Government in support of its misappropriation theory applies (or fails to apply) equally to money or to information, the application of the Government's theory in this case is no less "beyond reason" than it would be as applied to financial embezzlement. [5] See Tr. of Oral Arg. 9 (Government conceding that, "just as in [Carpenter v. United States, 484 U. S. 19 (1987)], if [the defendant] had gone to the Wall Street Journal and said, look, you know, you're not paying me very much. I'd like to make a little bit more money by buying stock, the stocks that are going to appear in my Heard on the Street column, and the Wall Street Journal said, that's fine, there would have been no deception of the Wall Street Journal"). [6] That the dishonesty aspect of misappropriation might be eliminated via disclosure or authorization is wholly besides the point. The dishonesty in misappropriation is in the relationship between the fiduciary and the principal, not in any relationship between the misappropriator and the market. No market transaction is made more or less honest by disclosure to a third-party principal, rather than to the market as a whole. As far as the market is concerned, a trade based on confidential information is no more "honest" because some third party may know of it so long as those on the other side of the trade remain in the dark. [7] The majority's statement, by arguing that market advantage is gained "through" deception, unfortunately seems to embrace an error in logic: Conflating causation and correlation. That the misappropriator may both deceive the source and "simultaneously" hurt the public no more shows a causal "connection" between the two than the fact that the sun both gives some people a tan and "simultaneously" nourishes plants demonstrates that melanin production in humans causes plants to grow. In this case, the only element common to the deception and the harm is that both are the result of the same antecedent cause—namely, using nonpublic information. But such use, even for securities trading, is not illegal, and the consequential deception of the source follows an entirely divergent branch of causation than does the harm to the public. The trader thus "gains his advantageous market position through " the use of nonpublic information, whether or not deception is involved; the deception has no effect on the existence or extent of his advantage. [8] That the Commission may purport to be interpreting its own Rule, rather than the statute, cannot provide it any greater leeway where the Rule merely repeats verbatim the statutory language on which the entire question hinges. Furthermore, as even the majority recognizes, Rule 10b—5 may not reach beyond the scope of § 10(b), ante, at 651, and thus the Commission is obligated to explain how its theory fits within its interpretation of § 10(b) even if it purports to be interpreting its own derivative rule. [9] Although the majority leaves open the possibility that Rule 14e—3(a) may be justified as a means of preventing "warehousing," it does not rely on that justification to support its conclusion in this case. Suffice it to say that the Commission itself concedes that warehousing does not involve fraud as defined by our cases, see Reply Brief for United States 17, and thus preventing warehousing cannot serve to justify Rule 14e—3(a). [10] Even were § 14(e)'s defining authority subject to the construction given it by the Commission, there are strong constitutional reasons for not so construing it. A law that simply stated "it shall be unlawful to do 'X', however 'X' shall be defined by an independent agency," would seem to offer no "intelligible principle" to guide the agency's discretion and would thus raise very serious delegation concerns, even under our current jurisprudence, J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928). See also Field v. Clark, 143 U. S. 649, 693-694 (1892) (distinguishing between making the law by determining what it shall be, and executing the law by determining facts on which the law's operation depends). The Commission's interpretation of § 14(e) would convert it into precisely the type of law just described. Thus, even if that were a plausible interpretation, our usual practice is to avoid unnecessary interpretations of statutory language that call the constitutionality of the statute into further serious doubt. [11] I note that Rule 14e—3(a) also applies to persons trading upon information obtained from an insider of the target company. Insofar as the Rule seeks to prevent behavior that would be fraudulent under the "classical theory" of insider trading, this aspect of my analysis would not apply. As the majority notes, however, the Government "could not have prosecuted O'Hagan under the classical theory," ante, at 653, n. 5, hence this proviso has no application to the present case. [12] Even where the information is obtained from an agent of the bidder, and the tippee claims not to have known that the tipper violated a duty, there is still no justification for Rule 14e—3(a). First, in such circumstances the tipper himself would have violated his fiduciary duty and would be liable under the misappropriation theory, assuming that theory were valid. Facing such liability, there is no reason to suspect that the tipper would gratuitously protect the tippee. And if the tipper accurately testifies that the tippee was (falsely) told that the information was passed on without violating the tipper's own duties, one can question whether the tippee has in fact done anything illegal, even under the Commission's misappropriation theory. Given that the fraudulent breach of fiduciary duty would have been complete at the moment of the tip, the subsequent trading on that information by the tippee might well fail even the Commission's own construction of the "in connection with" requirement. See supra, at 683-687. Thus, even if the tipper might, in some circumstances, be inclined to protect the tippee, see ante, at 675-676, n. 20, it is doubtful that the tippee would have violated the misappropriation theory in any event, and thus preventing such nonviolations cannot justify Rule 14e— 3(a). Second, even were this scenario a legitimate concern, it would at most justify eliminating the requirement that the tippee "know" about the breach of duty. It would not explain Rule 14e—3(a)'s elimination of the requirement that there be such a breach. [13] While the majority may find it strange that the "mail fraud net" is broader reaching than the securities fraud net, ante, at 678, n. 25, any such supposed strangeness—and the resulting allocation of prosecutorial responsibility between the Commission and the various United States Attorneys—is no business of this Court, and can be adequately addressed by Congress if it too perceives a problem regarding jurisdictional boundaries among the Nation's prosecutors. That the majority believes that, upon shifting from securities fraud to mail fraud prosecutions, the "practical consequences for individual defendants might not be large," ibid., both undermines the supposed policy justifications for today's decision and makes more baffling the majority's willingness to go to such great lengths to save the Commission from itself.

662 So.2d 1345 (1995) Basil Alan MUNRO, Appellant, v. STATE of Florida, Appellee. No. 95-02055. District Court of Appeal of Florida, Second District. November 17, 1995. PER CURIAM. Basil Alan Munro appeals the denial of his motion to correct illegal sentence. The state concedes error in the written sentence. Therefore, we affirm in part, but reverse and remand so that the trial court may correct the written sentence to conform to the court's intent at the time of sentencing. Munro pleaded guilty to the crime of second degree murder with a deadly weapon, a life felony pursuant to sections 782.04(2) and 775.087(1)(a), Florida Statutes (1989). The record demonstrates that Munro and the state agreed to a sentence in which Munro would serve sixteen years' incarceration followed by life probation. The trial court had two available options to effectuate that sentence: first, the court could have imposed a *1346 split sentence comprised of a term of incarceration followed by a term of probation, the total of which could not exceed the statutory maximum amount of forty years pursuant to section 775.087(1)(a), Florida Statutes (1989). Alternatively, Munro could have been sentenced to a term of imprisonment not to exceed life, suspended after a specified term of years, followed by a probationary period of up to life. See, e.g., Stephens v. State, 627 So.2d 543 (Fla. 2d DCA 1993); White v. State, 652 So.2d 518 (Fla. 5th DCA 1995); Dyer v. State, 629 So.2d 285 (Fla. 5th DCA 1993). The sentence, as written, imposes an impermissible term of years followed by life probation. In order to carry out the intent of the negotiated plea, the court must impose a sentence in accordance with one of the two proposed options. Accordingly, we reverse and remand this cause to the trial court for correction of the written sentence to effectuate the court's intent at the time of sentencing. Reversed and remanded. DANAHY, A.C.J., and FULMER and QUINCE, JJ., concur.

704 N.W.2d 841 (2005) 2005 ND 175 Lyle SEEHAFER, Plaintiff and Appellant v. Janice SEEHAFER, Defendant and Appellee. No. 20050069. Supreme Court of North Dakota. October 18, 2005. Michael S. McIntee of McIntee Law Firm, Towner, N.D., for plaintiff and appellant. Ted D. Seibel of Ted D. Seibel, P.C., and Maryha Fasching, third-year law student (argued), Harvey, N.D., for defendant and appellee. MARING, Justice. [¶ 1] Lyle Seehafer appeals from a judgment granting his former sister-in-law, Janice Seehafer, a probate homestead on land owned by Lyle and his brother Arlo in joint tenancy. The trial court awarded Janice damages after finding Lyle caused her to involuntarily leave the homestead property. [¶ 2] We conclude a probate homestead may not be created when the claimant has never held any interest in the property on which the homestead is sought to be imposed, and the interest of the claimant's deceased spouse was never more than a joint tenancy; an interest which, by operation *842 of law, terminates at death and vests solely in the surviving joint tenant. Accordingly, we reverse. I [¶ 3] In 1971, Viola Seehafer deeded the family farm, located in McHenry County, to her sons Lyle and Arlo in joint tenancy. The brothers had lived on the property, with their mother, all their lives and had farmed it together since their father's death in 1957. In about 1960, the brothers formed a partnership for the purpose of carrying on the farming business. In 1989, the brothers purchased another tract of land, located across the road from the family farm, again taking the property in joint tenancy. [¶ 4] In 1994, Arlo married Janice. Arlo and Janice subsequently moved into a trailer home on the Seehafer property. Lyle and his mother continued to live in the family house. Janice eventually took over housekeeping chores for both brothers and their mother. Groceries and utilities for both the farm house and trailer home were paid with partnership assets. After the brothers' mother entered a nursing home in 1996, Janice's services for Lyle were reduced, with her primarily providing him only a noon meal. [¶ 5] In January 2000, Arlo died unexpectedly. Janice became the personal representative for Arlo's estate. She and Lyle, soon after, orally agreed Janice would do yard work and continue to provide the noon meal, and Lyle would continue to provide electricity and propane for the trailer home. In April 2000, three months after Arlo's death, Lyle and Janice also entered into an agreement for Lyle to purchase Arlo's share of the partnership's machinery and cattle from Janice. [¶ 6] Although some conflict had arisen between Lyle and Janice before Arlo's death, including arguments over flowers, feeding dogs at the table, and smoking in the house, relations between the two began to deteriorate more rapidly following a February 2001 incident involving a milk check made out to Seehafer Farms. Although the check was eventually split between the parties, this incident led to Janice's initial claim that she was entitled to a homestead interest. This claim was contained in a letter Janice's attorney wrote to Lyle. [¶ 7] In March or April 2001, Janice stopped cooking a noon meal for Lyle for reasons the parties contest. On Memorial Day of 2001, the two had a disagreement about going fishing. During the summer of 2001, Janice and Lyle had an ongoing disagreement about two of Arlo's guns that Lyle considered family heirlooms. Janice wanted to sell the guns at an auction, and Lyle felt the guns should go to a nephew who was a gun collector. Lyle initially sold the guns to the nephew, giving Janice the proceeds, but later recovered them, at Janice's request, so she could sell them at an auction. At some point during this disagreement over the guns, near the end of August, Lyle told Janice he wanted her to move her trailer home from the property and leave. [¶ 8] An August 27, 2001, letter from Janice's attorney to Lyle stated Janice had decided to move and that she was looking for property where she could relocate her trailer home. From approximately September 23 until October 14, 2001, Janice was on vacation and away from the property. When she returned, Lyle shut off her water for a portion of one afternoon. At some point, an advertisement for land from the local paper was posted on Janice's door. The parties contest whether Lyle posted it. A deed, conveying property in Drake, North Dakota, to Janice was signed October 15, 2001, and Janice moved her trailer home and the garage in November 2001. The parties contest when Janice *843 made her decision to finally move from the property. [¶ 9] On February 25, 2002, Janice filed a Declaration of Homestead under N.D.C.C. ch. 47-18 declaring she held a probate homestead on part of the Seehafer property. Subsequently, she sent a letter to Lyle demanding an accounting. Lyle commenced an action to remove the cloud on his title created by Janice's filing. Janice moved for partial summary judgment and counterclaimed requesting a determination of her homestead rights, one-half the farm income, and damages for moving expenses. The trial court denied Janice's motion for partial summary judgment. [¶ 10] Following a bench trial, the trial court found that Janice was entitled to a homestead allowance and had involuntarily left the Seehafer property. The trial court awarded her $35,878 for the value of the homestead, $2,689 in reasonable rental value for the land, and $5,676.54 in moving expenses. Lyle appeals raising several issues. II [¶ 11] Although the parties raise a number of issues on appeal, the dispositive issue is whether a probate homestead may be imposed on land held by the claimant's deceased spouse in joint tenancy with another. Lyle argues the trial court erred when it determined Janice could impose a homestead claim on Lyle's interest in the property. Janice argues a probate homestead may be established by one whose husband held a joint tenancy interest in the property before his death. [¶ 12] This is an issue of first impression in North Dakota and requires us to interpret the meaning of our probate homestead statutes under N.D.C.C. ch. 30-16. The interpretation of a statute is a question of law, subject to full review on appeal. GO Comm. v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865. [¶ 13] Although an issue of first impression in North Dakota, we note that Florida, South Dakota, and Oklahoma have previously considered similar cases. All have determined that a spouse cannot assert a probate homestead on property he or she held no interest in and which his or her now-deceased spouse had held only as a joint tenant. See Ostyn v. Olympic, 455 So.2d 1137 (Fla.App.1984); Gross v. Gross, 491 N.W.2d 751 (S.D.1992); Casey v. Casey, 109 P.3d 345 (Okla.2005). Furthermore, as a general matter: [Probate homestead] provisions presuppose not only that the decedent had a homestead at the time of death, but that the property interest of the decedent did not terminate at death. Consequently, it has been held that the survivor is not entitled to a homestead which the decedent had established in property which he held for life, or as a tenant at will, or during occupancy. On the other hand, such statutes do not require that the decedent have had a fee simple interest, and the survivor may accordingly succeed to a homestead established in leasehold property. However, the survivor's rights cannot be of longer duration than the estate owned by the decedent, and the expiration of that estate will terminate the survivor's interest. American Law of Property § 5.116 (1952). [¶ 14] Janice relies on several cases from other jurisdictions and miscellaneous authorities to support her argument she is entitled to a homestead, including Elms v. Hall, 214 Ark. 601, 215 S.W.2d 1021 (1948); Watson v. Peyton, 10 Cal.2d 156, 73 P.2d 906 (1937); Cooper Co. v. Werner, 111 S.W.2d 823 (Tex.Ct.App.1937); and Joint Tenants, Estate or Interest in Real Property to Which a Homestead Claim May Attach, W.W. Allen, 74 A.L.R.2d 1355 (1960). These cases and the Allen article are not applicable to this case. At the outset, the Allen article states it does not *844 cover the situation presented here. 74 A.L.R.2d at 1358 ("The right of one spouse to claim a homestead in property of the other where the claimant has no interest in the property independently of the homestead statute is not within the annotation."). In Cooper Co., the Texas Supreme Court states that one possessing a joint tenancy interest may sustain a homestead interest against creditors but not to the prejudice of co-tenants. 111 S.W.2d at 826. The Elms case is also not applicable as it relates to a homestead interest claimed by a joint tenant against a creditor, not the spouse of a joint tenant against the surviving joint tenant. 215 S.W.2d 1021. [¶ 15] In Watson, the joint tenants were husband and wife. 73 P.2d 906. The court held the wife alone, or the husband and wife together, could make a valid declaration of homestead upon the property held in joint tenancy. Watson, 73 P.2d at 907. The case is silent, however, as to whether a spouse who holds no interest in property can claim a homestead in her husband's joint estate property after his death. This is the question we are concerned with in this case. III [¶ 16] "Homestead laws are a uniquely American institution, having their origins in the great debtor revolution of the era of `Jacksonian Democracy.'" 40 C.J.S. Homesteads § 3 (1991). Homestead rights "exist only by virtue of constitutional and statutory provisions creating them, and are extended or limited by the provisions creating them." Id. "In the law, the term `homestead' embraces a variety of conceptions and has different meanings when applied to different factual situations." 40 Am.Jur.2d Homestead § 1 (1999). "The extent of protection and purpose behind the numerous state provisions varies enormously." 2 Richard R. Powell, Powell on Real Property, Homesteads § 18.03[1], at 18-63 (Michael Allan Wolf ed., 2005). "[T]he primary purpose of the homestead provision is to place the property designated as a homestead out of reach of creditors while it is occupied as a home or, as otherwise stated, to secure to a debtor and his family necessary shelter from creditors." 40 Am.Jur.2d Homestead § 4 (1999). "Although the law creating the homestead right is to be construed liberally in the debtor's favor, it should not be so applied as to make it an instrument for the accomplishment of fraud or imposition." Id. at § 12. With these general rules in mind, we consider North Dakota's statutes and constitution. See id. at § 2 ("Homestead rights did not exist under the common law. They are, it seems, peculiar to America, and exist by virtue of statute or constitutional provision."). [¶ 17] The North Dakota Constitution provides for the protection of a homestead for debtors, but says nothing about the probate homestead right: The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws, exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law; and a reasonable amount of personal property; the kind and value shall be fixed by law. This section shall not be construed to prevent liens against the homestead for labor done and materials furnished in the improvement thereof, in such manner as may be prescribed by law. N.D. Const. art. XI, § 22. Our statute providing for a probate homestead provides, in relevant part: Upon the death of a person in whom the title to real property constituting a homestead is vested, a homestead estate shall survive, and, until otherwise disposed of according to law, shall be set over to the persons and in the order following: *845 1. To the surviving spouse for life or until the surviving spouse again marries. N.D.C.C. § 30-16-02. [¶ 18] Janice does not claim she ever held an interest in the property in question beyond that of her purported probate homestead. Under N.D.C.C. § 30-16-02, the validity of Janice's probate homestead claim then hinges largely on whether the title to the property on which she wishes to establish her claim had vested in her husband. [¶ 19] "Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained." N.D.C.C. § 1-02-02. "Vested," in its ordinary sense, is defined: "That has become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute." Black's Law Dictionary 1557 (7th ed.1999). Regarding the property interest vested in a joint tenant, we have said: A joint tenancy may be described as a life estate with each joint tenant having a contingent remainder in fee, the contingency being based upon survival of the other joint tenant or tenants. . . . . . . . The surviving joint tenant does not take the interest of the deceased joint tenant; rather, the contingent remainder vests in the survivor because the contingency (survival of the cotenant) has been met. Jamestown Terminal Elevator, Inc. v. Knopp, 246 N.W.2d 612, 613-14 (N.D. 1976). In Jamestown Terminal Elevator, Inc., we went on to say: The interest of two joint tenants is not only equal or similar, but also is one and the same. One has not originally a distinct moiety from the other; but, if by any subsequent act (as by alienation or forfeiture of either) the interest becomes separate and distinct, the joint tenancy instantly ceases. But, while it continues, each of two joint tenants has a concurrent interest in the whole; and therefore, on the death of his companion, the sole interest in the whole remains to the survivor. For the interest, which the survivor originally had, is clearly not devested by the death of his companion; and no other person can now claim to have a joint estate with him, for no one can now have an interest in the whole, accruing by the same title, and taking effect at the same time as his own; neither can anyone claim a separate interest in any part of the tenements, for that would be to deprive the survivor of the right which he has in all, and every part. As, therefore, the survivor's original interest in the whole still remains; and as no one can now be admitted, either jointly or severally, to any share with him therein, it follows that his own interest must now be entire and several and that he shall alone be entitled to the whole estate (whatever it be) that was created by the original grant. 2 W. Blackstone, Commentaries 184-85. 246 N.W.2d at 613-14. This means, in a joint tenancy, nothing beyond a life estate can be said to be vested in a joint tenant until he or she is the only remaining survivor. So long as another joint tenant survives, the entire interest of a deceased joint tenant is terminated at his death. The deceased joint tenant is divested of his interest and no interest remains. [¶ 20] Under our statute, a homestead estate survives only "[u]pon the death of a person in whom the title to real property constituting a homestead is vested." N.D.C.C. § 30-16-02. In this case, Janice's right to claim the probate homestead arises only upon the death of Arlo. At his death, any interest Arlo holds in the joint *846 tenancy is divested. See Jamestown Terminal Elevator, Inc., 246 N.W.2d at 613-14. There is no longer an interest to which a homestead claim may attach. See State ex rel. Board of Univ. & Sch. Lands v. Bladow, 462 N.W.2d 453, 455 n. 1 (N.D. 1990); Myrick v. Bill, 3 Dakota 292, 17 N.W. 268, 271 (Dak.1883) ("[T]he rule seems to be well settled that while a very limited estate in the land, perhaps a mere leasehold interest, may be sufficient to support a claim of homestead, some estate in the land is essential."). Without a property interest on which to attach a probate homestead, Janice's claim must fail. [¶ 21] Our statute provides that the probate homestead is to exist "until otherwise disposed of according to law." N.D.C.C. § 30-16-02. As we stated in Jamestown Terminal Elevator, Inc., upon the death of a joint tenant, property held in joint tenancy is immediately vested in the surviving joint tenant. 246 N.W.2d at 613-14. In other words, it is otherwise disposed of according to law. As the South Dakota Supreme Court explained: "The homestead exemption is temporary and exists only so long as the conditions prevail under which it was allowed by the homestead law." Gross v. Gross, 491 N.W.2d 751, 754 (S.D.1992) (citation omitted) (holding, under a similar statute, ownership of property was transferred to surviving joint tenants upon the death of the joint tenant by operation of law, thus defeating the homestead claim of deceased's spouse). While the law clearly protects the surviving spouse's homestead right to possession and occupation from disposition to other heirs and/or beneficiaries via probate administration proceedings [it does not] provide similar protection of the homestead right as against disposition to true owners by operation of law. Casey v. Casey, 109 P.3d 345, 350 (Okla. 2005). [¶ 22] Homestead protections have "been said to be based on the homestead claimant's rights in the property and to have no separate existence independent of those rights, so that the homestead right in property can never rise any higher than the right, title, or interest that the claimant owns in the property." 40 Am.Jur.2d Homestead § 3; see also, 2-18 Powell on Real Property § 18.03[5], 18-95 ("[T]he exemption from attachment, judgment, levy or execution sale is designed to protect the debtor against third party creditors and it may not provide relief against joint tenants of or tenants in common with the homestead claimant."). [¶ 23] North Dakota has long recognized that a homestead is limited by the extent of the claimant's or the spouse's property interest. In Ferris v. Jensen, this Court said a wife holding no interest in land cannot claim a homestead right greater than the equitable title her husband held under a contract for purchase: The existence of such homestead right was entirely dependent upon her husband's equitable title under said contract. Like a stream, it could rise no higher than its source. The homestead right ceased with the extinguishment of her husband's equitable estate in the land, and such equitable estate was extinguished by abandonment of the contract. 16 N.D. 462, 114 N.W. 372, 375 (1907). Here, Arlo's interest was terminated upon his death and there is no interest remaining in which Janice may create a homestead. [¶ 24] Although Janice argues we should expand our interpretation of N.D.C.C. § 30-16-02 in the interest of furthering the public policy goals of the homestead exemption, "[w]hen the wording of a statute is clear and free of all ambiguity, the letter of it is not to be *847 disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05. If the legislature wishes to make property held in joint tenancy subject to a probate homestead right, it can do so by amending the statutes. IV [¶ 25] The intent of our probate homestead is the protection of the family from creditors and from the improvident devising, by a spouse or parent, of the family home. The intent is not to impose upon the fee simple owner, who until recently has also claimed the property as his home, the burden of another's life estate. This should be particularly true in a case in which the homestead is claimed only after any interest upon which the homestead might validly be claimed has been terminated. [¶ 26] We hold that the trial court erred in concluding Janice could claim a probate homestead on Lyle Seehafer's property by virtue of her husband's prior joint tenancy interest. The spouse of a deceased joint tenant cannot claim a probate homestead on her husband's property when his interest in that property terminated on his death and she held no interest of her own in the property. [¶ 27] Our decision on this issue renders moot the further issues raised by the parties in regard to the abandonment and damages issues and we do not consider them. The judgment of the trial court is reversed and title to the property is vested solely in Lyle Seehafer. [¶ 28] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4153 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUSTIN NICHOLAS GUERRA, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, Chief District Judge. (4:12-cr-00176-TLW-1) Submitted: May 22, 2013 Decided: July 5, 2013 Before MOTZ, GREGORY, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federal Public Defender, Kimberly H. Albro, Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Jimmie Ewing, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a guilty plea, a federal district court convicted Justin Nicholas Guerra of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court applied six sentence enhancements set forth in the presentence investigation report (“PSR”), raising the applicable Federal Sentencing Guidelines range to 188 to 235 months in prison. The district court recognized, however, that the maximum term of imprisonment was limited by 18 U.S.C. § 2252(b)(2) to 120 months. After considering the arguments of counsel, the district court sentenced Guerra to the statutory maximum term. Guerra challenges his sentence, arguing that the district court abused its discretion by imposing a sentence that is both procedurally and substantively unreasonable. We affirm. I. A. In 2011, an undercover FBI agent signed on to a peer-to- peer file sharing program and discovered approximately eighty- five files of child pornography on the network of a user later identified to be Guerra. The FBI obtained a warrant to search Guerra’s home in Myrtle Beach, South Carolina, where they 2 located and seized a computer with images matching those found on the file sharing program. Guerra’s computer contained 1,816 pornographic images involving adult males with prepubescent boys, adult males with infants, and prepubescent boys with other prepubescent boys. Many of the photographs involved sadistic conduct, showing young children in bondage. The file names were graphic, many describing the sexual conduct and the age of the children involved. After speaking with the FBI, Guerra admitted to possessing child pornography, and to using the peer-to-peer sharing network for the purpose of trading child pornography. B. In his plea agreement, Guerra agreed to six conditions regarding the application of the Federal Sentencing Guidelines. First, that § 2G2.2(a)(1) would apply with a base offense level of 18. Second, that a two-level enhancement would be applied pursuant to § 2G2.2(b)(2) because the material involved prepubescent minors. Third, that a five-level enhancement would be applied pursuant to § 2G2.2(b)(3)(B) for distribution of pornography. Fourth, that a four-level enhancement would be applied pursuant to § 2G2.2(b)(4) because the material portrayed conduct of a sadistic or masochistic nature. Fifth, that another two-level enhancement would be applied pursuant to § 2G2.2(b)(5) because the offense involved a computer. And 3 finally, that a five-level enhancement would also be applied pursuant to § 2G2.2(b)(7)(D) because the offense involved more than six-hundred images of pornography. Guerra’s total offense level, as calculated pursuant to the agreement, was 36. The district court adopted the conclusions set forth in the PSR and calculated a Guidelines range of 188-235 months in prison. The district court, however, recognized that the maximum term of imprisonment for a violation of § 2252A(a)(5)(B) was limited to 120 months under 18 U.S.C. § 2252(b)(2) & USSG § 5G1.1(a). Guerra moved for a downward variance. In support of his motion, he filed a sentencing memorandum that raised two issues: (1) the policy disagreements over the application of USSG § 2G2.2; and (2) the individual application of the 18 U.S.C. § 3553(a) factors to his case. At the sentencing hearing, Guerra’s parents and a counselor from his substance abuse program testified regarding Guerra’s character and history of sexual abuse. At the conclusion of Guerra’s presentation, the district court acknowledged the § 3553(a) factors and explained how they applied to Guerra’s case. Focusing on the seriousness of Guerra’s conduct, the district court denied Guerra’s motion and sentenced him to 120 months’ imprisonment. He timely appeals. 4  II. We review the district court’s sentence under an abuse-of- discretion standard, regardless of whether that sentence is inside or outside the Guidelines range. Gall v. United States, 552 U.S. 38, 49 (2007). The Supreme Court has admonished that our review of a district court’s sentencing decision is limited to the determination of whether the sentence is reasonable. United States v. Booker, 543 U.S. 220, 224 (2005). Our review of Guerra’s sentence for reasonableness entails a two-step analysis. Gall, 552 U.S. at 51. First, we must ensure that the district court committed no significant procedural error. Id. at 50. In assessing the procedural reasonableness of a sentence--whether the district court has properly applied the Guidelines--we review factual findings for clear error and legal conclusions de novo. United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). If the district court’s sentencing decision is procedurally sound, we then examine the substantive reasonableness of the sentence amongst the totality of the circumstances. Id. at 51. Gall permits us to apply a presumption of reasonableness if the sentence imposed is within the Guidelines range. Id. III. A. 5  Our initial inquiry of procedural reasonableness focuses on whether the district court (1) correctly calculated the applicable Guidelines range; (2) considered the factors under § 3553(a) and determined whether they supported the chosen sentence; (3) made an individualized assessment based on the facts; and (4) adequately explained the chosen sentence to allow for meaningful appellate review. Gall, 552 U.S. at 49-50. Guerra argues that his sentence is procedurally unreasonable for three reasons: (1) the district court did not properly consider the § 3553(a) factors; (2) the district court relied on an incorrect Guidelines range; and (3) the district court did not adequately explain his sentence. We consider each contention in turn. 1. Guerra contends that the district court failed to properly apply the § 3553(a) factors to his case in two ways. First, he argues that the court made “sweeping generalizations” regarding his conduct that are insufficient to constitute an individualized assessment under Gall. Second, he contends that the only determinations made that were specific to his conduct weighed in his favor. The government responds that the court properly addressed all of the § 3553(a) factors and that the nature and seriousness of Guerra’s conduct weighed against a downward variance. 6  We reject Guerra’s arguments. We have previously held that a district court is not required to provide a lengthy explanation of all the factors under § 3553(a). United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). And as we have many times explained, the court need not “robotically tick through § 3553(a)’s every subsection” to conduct an individual assessment. United States v. Carter, 564 F.3d 325, 329 (4th Cir. 2009). In this case, the district court highlighted the nature and seriousness of Guerra’s conduct, referencing paragraphs 10 through 22 of the PSR. J.A. 199. Based on the number of images recovered--“some 1,816”—and the graphic nature of the sexual violence portrayed in those images, the court concluded that Guerra may pose a risk to society. J.A. 202. The court also noted that people need to be deterred from viewing child pornography because it promotes the abuse of children. J.A. 198. While the district court acknowledged that certain mitigating factors weighed in Guerra’s favor, it ultimately concluded that the fact that Guerra “made [child pornography] available to others” weighed against a variance. J.A. 199. Because the district court acted well within its discretion in determining the weight given to each of the § 3553(a) factors, we conclude that the district court’s explanation of 7 Guerra’s sentence was sufficient to constitute an “individualized assessment” under Gall. 552 U.S. at 51. 2. Next, Guerra argues that the district court relied on an incorrect Guidelines range in determining his sentence. He contends that the district court improperly considered what the Guidelines range would have been but for the statutory maximum when assessing the appropriate sentence. The government responds that the district court properly determined that the statutory maximum sentence was the Guidelines sentence, not a variance sentence, and that, any challenge to the 120-month sentencing guideline should be reviewed for plain error because Guerra did not object at the hearing. We agree with the government. USSG § 5G1.1(a) instructs a district court to apply the statutory maximum sentence if the maximum sentence allowed by statute is less than what the Guidelines range otherwise would have been. United States v. Carr, 395 F. App’x 983, 987 (4th Cir. 2010) (unpublished). Applying the enhancements recommended in the PSR, the district court observed that the applicable Guidelines range was 188-235 months in prison. The district court acknowledged that the statutory range was limited to 120 months under 18 U.S.C. § 2252(b)(2) and applied USSG § 5G1.1(a)--noting that a statutory maximum sentence would not be a variance, but a 8 Guidelines sentence. 1 Consequently, Guerra’s argument fails under both the abuse-of-discretion and plain error standards because he has not shown that the court considered the higher Guidelines range to be an aggravating factor in its sentencing decision. 3. Lastly, Guerra argues that the district court committed procedural error by failing to adequately explain its sentence. First, he contends that the court “reiterated the generic enhancements” and failed to individually assess the § 3553(a) factors based on the record. Second, he argues that the district court did not provide a written explanation of the sentence in the statement of reasons. The government asserts that Guerra has failed to satisfy his burden to show the inadequacy of the court’s explanation, and that alternatively, any error was harmless. We find first that the district court adequately assessed the § 3553(a) factors. “Where a matter is conceptually simple and the record makes clear that the district court considered the evidence and arguments, the law does not require the court 1 Guerra’s reference to U.S. v. Dorvee, 616 F.3d 174, 180 (2nd Cir. 2010) is not dispositive. We find Dorvee to be distinguishable because, unlike the present case, the district court there improperly treated the higher guidelines sentence “as though it were the benchmark for any variance.” Id. at 181. 9 to write more extensively.” Rita v. United States, 551 U.S. 338, 359 (2007). Instead, our cases only require a district court to provide some indication that it considered (1) the § 3553(a) factors with respect to the defendant; and (2) the meritorious arguments raised by both parties as to a proper sentence. United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). In our view, Guerra’s argument that the court “reiterated the generic enhancements” misses the mark because he fails to point out which of the § 3553(a) factors the court applied generally so as to make his sentence unreasonable. To the contrary, the record shows that the district court based its sentence on facts specific to Guerra’s conduct. We also find that the district court’s failure to provide a written explanation of Guerra’s sentence in the statement of reasons is harmless error. In that regard, we agree with the reasoning of our sister circuits that have reached this same conclusion. See, e.g., United States v. Mendoza, 543 F.2d 1186, 1196 (10th Cir. 2008) (holding that failure to provide a written statement is harmless error when the district court gives an adequate verbal explanation of its reasons for the sentence). 2 2 See also, United States v. Jennings, 407 F. App’x 20, 21 (6th Cir. 2011)(unpublished); United States v. Jones, 509 F.3d (Continued) 10  B. In light of our conclusion that the district court’s sentencing decision is procedurally sound, [we] now “consider the substantive reasonableness of the sentence . . . amongst the totality of the circumstances.” Gall, 552 U.S. at 51. Gall permits us to apply a presumption of reasonableness if the sentence is within the Guidelines range, and the fact that we might reasonably have imposed a different sentence is insufficient to justify reversal. Id. Guerra argues that his sentence is substantively unreasonable for two reasons: (1) the district court did not address the policy issues raised in his Sentencing Memorandum; and (2) the district court relied on an improper sentencing factor. We disagree. 1. Guerra argues that the district court failed to consider the policy arguments he presented in determining his sentence. Specifically, he contends the court did not address: (1) the “widespread concerns” with the application of USSG § 2G2.2; (2) cases similar to Guerra’s where variances were applied; and (3) 911, 916 (8th Cir. 2007); United States v. Thomas, 313 F. App’x 280, 283 (11th Cir. 2009) (per curiam). 11 why Guerra’s own sexual abuse was or was not a factor in sentencing. We believe the record establishes that the district court properly considered the policy issues raised by Guerra. First, the record shows that the court engaged in a discussion with Guerra’s counsel regarding the application of USSG § 2G2.2. After Guerra argued that the § 2G2.2 enhancement was “dictated by fiat,” the district court noted that “Congress holds hearings and reviews a lot of information before they send something to the commission.” J.A. 171-174. Second, the district court was unable to determine whether Guerra’s sentence imposed an unwarranted disparity because it did not have before it sufficient relevant information. At the hearing, Guerra failed to offer any statistics or case law regarding the application of § 2G2.2 within this circuit. The district court also concluded that the cases Guerra offered were not helpful to its determination, stating that “without knowing the specifics . . . the information could not be meaningfully used.” J.A. 207. Third, the district court did in fact consider Guerra’s history of sexual abuse as a mitigating factor, albeit with a tinge of irony given Guerra’s offense. Unpersuaded, the court explained its view that, “such a personal history should cause 12 an individual not to involve themselves in images that promote the production of child pornography.” J.A. 206. We find no abuse of discretion in the district court’s disposition of Guerra’s policy arguments. 2. Finally, Guerra contends that his sentence is substantively unreasonable because the district court relied on an improper factor when imposing sentence. Specifically, he asserts that the court considered the need for rehabilitation as a sentencing factor in violation of 18 U.S.C. § 3582(a), when it briefly expressed its hope that “[Guerra] would get treatment for matters that happened to him before [his involvement] with child pronography.” J.A. 210. The government responds that the basis for Guerra’s sentence was the nature and seriousness of his conduct, not the need for rehabilitation, and that, because Guerra failed to object to the court’s remark, his challenge should be reviewed for plain error. We review Guerra’s challenge for plain error as a consequence of his failure to object. Thus, Guerra bears the burden of establishing (1) that the district court erred; (2) that the error was “plain”; and (3) that the error affected the outcome of the proceeding. United States v. Olano, 507 U.S. 725, 734-35 (1993). While we have discretion to correct a forfeited error, we should not do so unless the error “seriously 13 affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 732. In our view, Guerra cannot show error because the record establishes that his sentence was not imposed or lengthened to promote his rehabilitation. We are satisfied that the district court based its sentence on the nature and seriousness of Guerra’s conduct. The court found that Guerra possessed and distributed 1,816 child pornography images involving children under the age of twelve years old, some of which portrayed acts of sexual violence. Because the topic of rehabilitation was raised only after the court denied Guerra’s motion for a downward variance, we find that the length or imposition of Guerra’s sentence was not premised upon a motive or intention that Guerra would receive rehabilitative treatment. In sum, we are not persuaded that Guerra’s sentence is substantively unreasonable. IV. For the foregoing reasons, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before this court and arugment would not aid the decisional process. AFFIRMED 14 

814 F.Supp.2d 374 (2011) Jacquelyn WHITE, Plaintiff, v. DEPARTMENT OF CORRECTIONAL SERVICES ("DOCS"), et al., Defendants. No. 08 Civ. 0993 (JGK). United States District Court, S.D. New York. September 30, 2011. *378 Rocco G. Avallone, Linda M. Cronin, Cronin & Byczek, LLP, Lake Success, NY, for Plaintiff. *379 Julinda A. Dawkins, New York State Office of the Attorney General, New York, NY, for Defendants. OPINION AND ORDER JOHN G. KOELTL, District Judge: The plaintiff, Jacquelyn White, a female correction officer at the Lincoln Correctional Facility in New York City ("Lincoln"), brings this employment discrimination action against New York State, the New York State Department of Correctional Services ("DOCS"), and individual defendants Joseph Williams, Nicholas Brocco, Salvatore Munafo, Ronald Haines, George Van Valkenburg, and Robert Murray, all of whom were employed by DOCS as supervisory officers at Lincoln during the relevant time period. The individual defendants are being sued in their individual capacities. The plaintiff alleges that defendants New York State and DOCS discriminated against her on the basis of gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). The plaintiff also asserts a claim of retaliation in violation of Title VII against these defendants. In addition, the plaintiff asserts a claim under 42 U.S.C. § 1983 against the individual defendants claiming a violation of her Fourteenth Amendment right to equal protection resulting from gender discrimination. The defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing all causes of action against them. I. The standard for granting summary judgment is well established. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts that are material and "[o]nly 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); Behringer v. Lavelle Sch. for the Blind, No. 08 Civ. 4899, 2010 WL 5158644, at *1 (S.D.N.Y. Dec. 17, 2010). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, *380 37 (2d Cir.1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible. . . ." Ying Jing Gan v. City of N.Y., 996 F.2d 522, 532 (2d Cir.1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir.1998) (collecting cases); Behringer, 2010 WL 5158644, at *1. II. The following facts are undisputed unless otherwise noted. A. The plaintiff is a female correction officer who began her employment with DOCS in 1986 at Bedford Hills Correctional Facility. (Am. Compl. ¶ 22.) In 1992, she transferred to Lincoln where, at all relevant times, she held the job post of Relief Officer for the Release Process Booth and Officer in Charge Post.[1] (Am. Compl. ¶¶ 22-23.) The plaintiff worked the 7 a.m. to 3 p.m. shift. (Pl.'s Counter Stmt. of Facts ¶ 4.) B. On May 3, 2006, Lincoln posted a job for assignment entitled Release Process Booth/Officer in Charge, Post No. 0031, Tour II, Squad 8 ("the 2006 OIC position"). (Defs.' 56.1 Stmt. ¶ 33; Pl.'s 56.1 Stmt. ¶ 33.) The posting occurred after the former OIC, Correction Officer Marrero, retired around April 2006. (Defs.' 56.1 Stmt. ¶ 14; Pl.'s 56.1 Stmt. ¶ 14.) The job was posted for thirty days and specified that "male Correction Officers only" were permitted to bid for the post. (Defs.' 56.1 Stmt. ¶ 34; Pl.'s 56.1 Stmt. ¶ 34; Dawkins Decl. Ex. C.) The plaintiff alleges that, after Officer Marrero retired and approximately one month prior to the posting of the position, the job was offered to a female officer, Cokramer McBride, who had less seniority than the plaintiff. (Pl.'s Counter Stmt. of Facts ¶ 25; Dawkins Decl. Ex. E.) Officer McBride turned the job down. (Decl. of Rocco Avallone in Opp. to Defs.' Mot. for Summ. J. ("Avallone Decl.") Ex. A ("Pl.'s Dep.") at 72.) The job requirements listed for the posting included, among other tasks: accounting for equipment, receiving briefing from previous tours, issuing inmate identification cards, and checking inmate rosters. (Dawkins Decl. Ex. C.) The posting also stated that the OIC would be required to "take and/or ensure that Urines are taken." (Dawkins Decl. Ex. C.) Despite the posting's request for only male correction officers, the plaintiff applied for the position on May 3, 2006. (Defs.' 56.1 Stmt. ¶ 40.) The plaintiff testified that she sought the job because it allowed for weekends off and carried a higher position of authority. (Pl.'s Dep. 54.) However, the plaintiff's application was denied on June 3, 2006 and marked with the notations "unsuccessful" and "not allowed." (Defs.' 56.1 Stmt. ¶ 40; Pl.'s 56.1 Stmt. ¶ 40.) The position was awarded to Correction Officer Holland, a male officer with higher seniority than the plaintiff. (Defs.' 56.1 Stmt. ¶ 42; Pl.'s 56.1 Stmt. ¶ 42.) The collective bargaining agreement between DOCS and the Union requires that job assignments be made in accordance with seniority. (Dawkins Decl. Ex. KK.) Prior to the posting of the 2006 OIC position, female officers had been allowed *381 to bid for the OIC position. (Defs.' 56.1 Stmt. ¶ 21; Pl.'s 56.1 Stmt. ¶ 21.) Indeed, female officers had been awarded bids as OICs in the past. (Defs.' 56.1 Stmt. ¶ 21; Pl.'s 56.1 Stmt. ¶ 21.) The plaintiff herself had worked the OIC position many times when the officer who permanently held the position was on vacation or if she needed to swap with him. (Pl.'s Counter Stmt. of Facts ¶ 14.) C. The defendants claim that the decision to re-designate the position as male-only was due to changing demographics at Lincoln that resulted in a shortage of male officers. Inmates at Lincoln are permitted to leave the institution for work release or home furloughs and, upon return, are subject to strip frisks and urine collection. (Dawkins Decl. Ex. FF ("Brocco Decl.") ¶ 4.) DOCS policies state that strip frisks and urine tests must be conducted by officers who are of the same sex as the inmates. (Defs.' 56.1 Stmt. ¶¶ 38, 39; Pl.'s 56.1 Stmt. ¶¶ 38, 39.) Therefore, when female officers worked the OIC position in the past, a male officer would be called in to perform a strip frisk or urine test when the need arose. (Defs.' 56.1 Stmt. ¶ 24; Pl.'s 56.1 Stmt. ¶ 24.) The defendants argue that there were so few male officers at Lincoln that it became extremely difficult to conduct urine tests and strip frisks when females were working the OIC post. According to the defendants, over fifty percent of the officers at Lincoln were female in 2006 and, by 2007, the number had risen to sixty percent. (Defs.' 56.1 Stmt. ¶ 13.) Four officers staff Lincoln's inmate processing area, with two working at the processing booth and two at the processing gate.[2] (Defs.' 56.1 Stmt. ¶ 17; Pl.'s 56.1 Stmt. ¶ 17.) The defendants assert that the only male officers working the 7 a.m. to 3 p.m. shift were one permanent bid officer[3] and one male resource officer and that both had limited availability to conduct urine tests and strip frisks due to work obligations that frequently required them to travel outside Lincoln. (Defs.' 56.1 Stmt. ¶¶ 18-20.) The defendants allege that, as a result, officers from outside the processing area frequently had to be called in to conduct the strip frisks or urine tests, which created serious logistical difficulties. Defendant Brocco testified that he considered several possible means of addressing the shortage of male officers. First, after viewing a list of officers scheduled to transfer into Lincoln in 2006 that indicated that eight of the ten officers were female, he asked the personnel office in Albany for permission to hire officers not on this list. (Brocco Decl. ¶ 6.) However, permission to do so was denied. (Brocco Decl. ¶ 6.) Next, he asked the Assistant Commissioner's office for permission to hire male officers on overtime but was told he could not. (Brocco Decl. ¶ 6.) Finally, he consulted the DOCS Labor Relations and Human Resources Departments, as well as the Director of the Office of Diversity Management, about designating the OIC position male-only and ultimately obtained approval to do so. (Brocco Decl. ¶ 10.) D. On June 21, 2006, the plaintiff filed a grievance with the union challenging the *382 designation of the OIC position as male-only. (Defs.' 56.1 Stmt. ¶ 43; Pl.'s 56.1 Stmt. ¶ 43.) The grievance was denied on November 22, 2006. (Defs.' 56.1 Stmt. ¶ 44; Pl.'s 56.1 Stmt. ¶ 44.) In July 2006, the plaintiff filed a gender discrimination complaint with the New York State Division of Human Rights ("NYSDHR") that was cross-filed with the Equal Employment Opportunity Commission (the "EEOC"), claiming that she was denied the job because of her gender. (Defs.' 56.1 Stmt. ¶ 46; Pl.'s 56.1 Stmt. ¶ 46.) On April 18, 2007, the plaintiff sent a letter to union steward Holland complaining about gender discrimination and the designation of the OIC position as male-only. (Defs.' 56.1 Stmt. ¶ 45; Pl.'s 56.1 Stmt. ¶ 45; Dawkins Decl. Ex. M.) Joseph Williams, Superintendent of Lincoln, was copied on the letter, (Dawkins Decl. Ex. M.) On September 18, 2007, the NYSDHR found no probable cause to believe that DOCS had engaged in the unlawful discriminatory practices alleged by the plaintiff. (Defs.' 56.1 Stmt. ¶ 48; Dawkins Decl. Ex. E.) The NYSDHR concluded that the designation of the OIC position as male-only was "suspect and not consistent with the actual work being done by female Correctional Officers." (Dawkins Decl. Ex. E.) However, it found determinative that the plaintiff had less seniority than the officer who received the position. (Dawkins Decl. Ex. E.) On October 29, 2007, the EEOC issued a right-to-sue letter to the plaintiff. (Defs.' 56.1 Stmt. ¶ 49; Pl.'s 56.1 Stmt. ¶ 49.) E. Between May and September 2007, the plaintiff was subjected to several disciplinary measures by her employer. The first disciplinary measure was a Notice of Discipline ("NOD") issued on May 29, 2007. (Defs.' 56.1 Stmt. ¶ 65; Pl.'s 56.1 Stmt. ¶ 65; Dawkins Decl. Ex. N.) The NOD arose from an incident in April 2007 where defendant Haines alleged that the plaintiff left her post without authorization and was found in the Release Processing Booth, where she was not allowed. (Defs.' 56.1 Stmt. ¶ 66; Pl.'s 56.1 Stmt. ¶ 66; Dawkins Decl. Ex. L.) Defendant Haines also accused the plaintiff of insubordination for failing to leave the Release Processing Booth area in a timely manner and for speaking back to him. (Defs.' 56.1 Stmt. ¶ 66; Pl.'s 56.1 Stmt. ¶ 66.) The NOD recommended a penalty of dismissal from service and loss of accrued annual leave. (Dawkins Decl. Ex. N.) A few days after the NOD was issued, the plaintiff filed a grievance through her union concerning the disciplinary action. (Defs.' 56.1 Stmt. ¶ 67; Pl.'s 56.1 Stmt. ¶ 67.) The grievance was initially denied, and the union appealed the decision. (Defs.' 56.1 Stmt. ¶¶ 68, 69; Pl.'s 56.1 Stmt. ¶¶ 68, 69.) In May 2008, the NOD was settled after the plaintiff agreed to pay a $3000 fine. (Defs.' 56.1 Stmt. ¶ 69; Pl.'s 56.1 Stmt. ¶ 69.) The NOD and the settlement agreement were placed in the plaintiff's personal history folder. (Dawkins Decl. Ex. N.) The second disciplinary action occurred on June 15, 2007, when defendant Van Valkenburg issued a formal counseling letter to the plaintiff alleging that she had falsified records based on an entry she made in the processing area logbook. (Defs.' 56.1 Stmt. ¶ 71; Pl.'s 56.1 Stmt. ¶ 71; Dawkins Decl. Ex. O.) In July 2007, defendant Brocco informed the plaintiff that he would not remove the counseling letter from her personnel folder. (Defs.' 56.1 Stmt. ¶ 72; Pl.'s 56.1 Stmt. ¶ 72.) *383 The third disciplinary action occurred in August 2007, when defendant Haines issued a formal counseling memorandum to the plaintiff for allegedly allowing an inmate to leave Lincoln without proper authorization. (Defs.' 56.1 Stmt. ¶ 74; Pl.'s 56.1 Stmt. ¶ 74; Dawkins Decl. Ex. R.) In September 2007, the plaintiff received an "Excellent Performance Rating" from her immediate supervisor, Sergeant Wilson, for her performance from May 19, 2006 to May 19, 2007. (Avallone Decl. Ex. N.) In the section for "second level supervisory review," defendant Murray stated that "[w]hile Officer White may have the capacity to be an excellent officer, she appears to be more intent in creating disharmony in her workplace." (Defs.' 56.1 Stmt. ¶ 87; Pl.'s 56.1 Stmt. ¶ 87.) On September 23, 2008, the plaintiff filed a separate complaint with the NYSDHR alleging retaliation as a result of her July 2006 discrimination complaint with the NYSDHR. (Defs.' 56.1 Stmt. ¶ 95; Pl.'s 56.1 Stmt. ¶ 95; Dawkins Decl. Ex. W.) F. Officer Holland, who was awarded the 2006 OIC position, retired in December 2007. (Defs.' 56.1 Stmt. ¶ 78; Pl.'s 56.1 Stmt. ¶ 78.) The OIC position was again posted for a thirty-day period beginning on December 5, 2007 with the notation "for bid by male Correction Officers only." (Defs.' 56.1 Stmt. ¶ 79; Pl.'s 56.1 Stmt. ¶ 79; Dawkins Decl. Ex. T.) The plaintiff applied for the post on December 7, 2007 and again on January 20, 2008 after the position was reposted (the "2008 OIC position"). (Defs.' 56.1 Stmt. ¶¶ 80-82; Pl.'s 56.1 Stmt. ¶¶ 80-82.) The plaintiff's applications were denied and marked "unsuccessful" and "due to the job being male only." (Defs.' 56.1 Stmt. ¶¶ 80, 82; Pl.'s 56.1 Stmt. ¶¶ 80, 82.) On March 6, 2008, the OIC position was awarded to Officer Rodriguez, a male officer with lower seniority than the plaintiff. (Defs.' 56.1 Stmt. ¶ 83; Pl.'s 56.1 Stmt. ¶ 83.) G. On January 13, 2008, the plaintiff filed her complaint in this Court. The complaint originally alleged seven causes of action. On March 28, 2009, the defendants' motion to dismiss was granted in part, dismissing without prejudice the plaintiff's hostile work environment claim, due process claim, First Amendment claim, and claims under the New York State Constitution. The plaintiff also withdrew her negligent hiring and breach of contract claims in her opposition papers to the motion to dismiss and at oral argument, respectively. The plaintiff filed an amended complaint on April 29, 2009. The amended complaint asserts claims of gender discrimination and retaliation under Title VII and claims under § 1983 for violation of her constitutional rights to equal protection, procedural due process, and free speech. However, the plaintiff subsequently withdrew her procedural due process and First Amendment § 1983 claims in her opposition papers to the motion for summary judgment and at oral argument,[4] respectively. III. The defendants seek summary judgment dismissing the plaintiff's Title VII claim.[5] The defendants concede that *384 their hiring policy excluded females from the OIC position[6] but argue that this gender-based policy was justified because sex was a bona fide occupational qualification ("BFOQ") for the OIC position.[7] Under § 703(e)(1) of Title VII, an employer may discriminate on the basis of "religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. . . ." 42 U.S.C. § 2000e-2(e)(1).[8] The BFOQ defense is intended to be an "extremely narrow exception" to the general prohibition of discrimination on the basis of sex. Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); see also Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW, et al. v. Johnson Controls, Inc., 499 U.S. 187, 201, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). The defendant bears the burden of proof of establishing the defense. *385 Johnson Controls, 499 U.S. at 200, 111 S.Ct. 1196. The defendants argue that inmates' privacy interests render sex a BFOQ for the OIC position. The defendants rely upon Jennings v. New York State Office of Mental Health, 786 F.Supp. 376 (S.D.N.Y.1992), aff'd 977 F.2d 731 (2d Cir.1992) (per curiam), which held that a staffing policy requiring that at least one treatment assistant assigned to the ward of a state security hospital be of the same gender as patients on that ward was a BFOQ. Id. at 387. Jennings set forth a three-part test for determining whether privacy interests give rise to a BFOQ: (1) the employer must assert a factual basis for believing that the sex-based hiring policy is necessary to protect the privacy interests in question; (2) the privacy interests must be entitled to protection under the law; and (3) there must be no reasonable alternatives to protect those privacy interests other than the sex-based hiring policy. Id. at 380-81. Neither party disputes that prohibiting female officers from personally conducting strip frisks and urine tests is necessary to protect the privacy interests of inmates and that such privacy interests are entitled to protection. The dispute thus turns on whether reasonable alternatives to the gender-based hiring policy exist that would enable females to perform the OIC position without infringing on these privacy interests. In this case, a reasonable jury could find that such alternatives existed. To justify a BFOQ defense, an employer must show "a high correlation between sex and ability to perform job functions." Johnson Controls, 499 U.S. at 202, 111 S.Ct. 1196; see also Breiner v. Nevada Dep't of Corr., 610 F.3d 1202, 1213 (9th Cir.2010) ("[T]he particular staffing restriction at issue must match . . . [the relevant] job functions with a high degree of specificity to be found reasonably necessary." (internal quotation marks and citations omitted)). Here, however, the privacy-related job functions, namely the urine testing and strip frisks, comprised only a small part of the job duties of the OIC position. The majority of the tasks listed in the job description bear no relation to privacy, such as accounting for all equipment, issuing inmate identification cards, checking inmate rosters, and receiving briefing from other officers. (Dawkins Decl. Ex. T.) Moreover, for those tasks that are privacy-related, the plaintiff has presented evidence that the OIC was not required to conduct them personally but only to ensure that they were conducted. The job description itself required only that the OIC "take and/or ensure Urines are taken," and Officer Marrero, who held the OIC position prior to the 2006 posting, testified that the OIC "absolutely" was not required to take the urine samples or conduct the strip frisks personally and that he would frequently delegate those tasks to other officers. (Dawkins Decl. Ex. T; Avallone Decl. Ex. E ("Marrero Dep.") at 8, 15.) The evidence that the privacy-related job functions were only a minimal part of the OIC position weakens the defendants' BFOQ defense. See, e.g., Henry v. Milwaukee Cnty., 539 F.3d 573, 585 (7th Cir.2008) (gender-specific hiring policy aimed at same-sex mentoring of juvenile offenders was not reasonably necessary with respect to the night shift, where opportunities for mentoring were minimal). The plaintiff's claim that she and other female officers regularly performed the OIC position also undermines the BFOQ defense. The plaintiff alleges that she and other female officers served in the OIC *386 position both over the weekends[9] and during weekdays if the OIC was sick or on vacation and that there was never a problem with simply calling in a male officer to perform strip frisks or urine tests when the need arose. (Pl.'s Dep. 54-58.) The defendants concede that female officers have worked the OIC position in the past (Defs.' 56.1 Stmt. ¶ 21), but they argue that the male-female staff ratio had changed by 2006, and even more dramatically by 2008, such that the sex-neutral alternative of delegating urine tests and strip frisks to male officers was no longer feasible. Defendant Munafo testified that he once had to conduct a strip frisk himself because the entire 7 a.m. to 3 p.m. shift working at the processing area was female. (Munafo Dep. 12.) He also stated that, on one occasion, he had to hire male officers to work overtime solely to perform strip frisks. (Munafo Dep. 12.) Defendant Brocco testified that there was one instance where a strip frisk could not be conducted because there was no male officer in the entire facility. (Brocco Dep. 13-15.) However, these assertions are disputed. Officer Marrero, who held the OIC position for ten years prior to the posting of the 2006 OIC position, stated that he never heard of an instance where officers were given overtime to conduct strip frisks. (Avallone Decl. Ex. G ("Marrero Decl.") ¶ 10.) He also swore that it would be "unfathomable" for an occasion to arise where there was no male officer in all of Lincoln. (Marrero Decl. ¶ 11.) In the face of potential alternatives, gender-based hiring is only permissible if the defendant makes a strong showing that such alternatives are not reasonable. See, e.g., Henry, 539 F.3d at 582 ("The BFOQ defense extends only to those policies that are `reasonably necessary to the normal operation' of the institution. It does not excuse investigation of and reliance upon alternatives that involve minor additional costs or inconveniences." (citing 42 U.S.C. § 2000e-2(e)(1))); Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir.1980) (reversing district court decision granting permanent injunction barring male prison guards from performing certain duties during night shift on the grounds that reasonable alternatives to this gender-based employment policy were available). There are genuine issues of material fact as to whether it remained reasonable in 2008 for female officers to serve as OICs and simply delegate strip frisks and urine tests to male officers when the need arose. Moreover, the plaintiff alleges that the OIC position was offered to a female officer approximately one month before the position was first designated male-only in 2006. (Pl.'s Dep. 68-70; Dawkins Decl. Ex. E.) This weakens the defendants' claim that the needs of the facility had changed so dramatically by 2008 that there was no longer any reasonable alternative but to exclude female officers from the OIC position. The plaintiff also testified that she and other female officers had been asked to perform the OIC position on a few occasions even after it had been designated male-only, similarly suggesting that the previous delegation approach remained a reasonable alternative to gender-based hiring. (Pl.'s Dep. 84.) See, e.g., Henry, 539 F.3d at 582-83 (fact that officers of opposite sex were permitted to guard juveniles during day evinced "inconsistencies in implementation [that] cast a significant doubt" on whether barring opposite-sex officers from night shifts was "reasonably necessary to achieve the institution's *387 goal of protecting the privacy interests of the juveniles"); Westchester Cnty. Corr. v. Cnty. of Westchester, 346 F.Supp.2d 527, 535 (S.D.N.Y.2004) (argument that prohibiting male correctional officers from serving in female housing posts was necessary because of safety threat to female inmates was severely undermined by County's subsequent policy reversal revoking this ban). Based on the inconsistencies between the defendants' decision to offer the OIC position to a woman in 2006 and the defendants' claim that a female could not feasibly perform the job in 2008, a reasonable jury could find that sex was not a BFOQ for the 2008 OIC position. Because the defendants' hiring policy was facially discriminatory and because a reasonable jury could find that sex was not a BFOQ for the 2008 OIC position, the defendants' motion for summary judgment dismissing the plaintiff's Title VII claim is denied. IV. The defendants also seek summary judgment on the plaintiff's Title VII retaliation claim. To establish a prima facie case of retaliation, a plaintiff must demonstrate that: (1) the plaintiff was engaged in a protected activity; (2) the defendant was aware of this activity; (3) the defendant took adverse action against the plaintiff; and (4) a causal connection exists between the protected activity and the adverse action, that is, that a retaliatory motive played a part in the adverse employment action. Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993). Claims of retaliation under Title VII are analyzed under the same burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), employed in Title VII discrimination claims. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.2010). If the plaintiff establishes the elements of a prima facie case, the burden of production shifts to the defendant to put forth a legitimate nonretaliatory reason for the actions in question, at which point the plaintiff has the opportunity to demonstrate that the defendant's explanation is false and that retaliation was a motivating factor in the adverse employment action. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). The plaintiff contends that the defendants retaliated against her for engaging in protected activity, namely her filing of a complaint with the NYSDHR in July 2006, her complaint to her union in April 2007, and other informal complaints to her supervisors throughout 2006. The defendants assume for the purposes of this motion that the plaintiff engaged in protected activity and that the defendants were aware of this activity. However, they argue that no adverse action was taken against the plaintiff and, even if adverse action was taken, there is no causal connection between such actions and any protected activity. They also argue that, even if the plaintiff could establish a prima facie case, the defendants have met their burden of production by putting forth legitimate nonretaliatory reasons for their actions that the plaintiff has failed to rebut. Each of these arguments is considered in turn. A. The defendants contend that the plaintiff has failed to show that any adverse action was taken against her. To establish an adverse action under Title VII's antiretaliation provision, a plaintiff must show that "a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded *388 a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). This standard is broader than the adverse employment action requirement in the Title VII discrimination context, because the action in question need not affect the terms and conditions of employment in order to be considered adverse. Id. at 64, 126 S.Ct. 2405 (the antiretaliation provision "is not limited to discriminatory acts that affect the terms and conditions of employment"); Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 207 (2d Cir.2006); Gelin v. Geithner, No. 06 Civ. 10176, 2009 WL 804144, at *20 (Mar. 26, 2009), aff'd 376 Fed.Appx. 127 (2d Cir. 2010) (summary order). However, "trivial harms" such as "petty slights, minor annoyances, and simple lack of good manners" are not sufficient for actionable retaliation claims. White, 548 U.S. at 68, 126 S.Ct. 2405. The plaintiff points to five actions by the defendants that she claims were in retaliation for her protected activity: (1) a notice of discipline in May 2007; (2) a formal counseling letter in June 2007;[10] (3) a formal counseling memo in August 2007; (4) a negative comment in the plaintiff's performance evaluation in September 2007; and (5) denial of the OIC position in January 2008. (Am. Compl. ¶¶ 43, 45, 47, 49, 51-54.) The defendants argue that, even if the notice of discipline constitutes an adverse action, the other actions do not. However, a reasonable jury could find that, at least, the notice of discipline was itself sufficiently adverse to give rise to an actionable retaliation claim. See, e.g., Millea v. Metro-N. R.R. Co., Nos. 10-409-cv(L), 10-564-cv (XAP), 2011 WL 3437513, at *6 (2d Cir. Aug. 8, 2011) (applying the White standard to the FMLA anti-retaliation provision and concluding that a formal letter of reprimand is materially adverse because it "can reduce an employee's likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy"); Babcock v. N.Y. State Office of Mental Health, No. 04 Civ. 2261, 2009 WL 1598796, at *22 (S.D.N.Y. June 8, 2009) (refusing to rule as a matter of law that a notice of discipline did not constitute an adverse action). While some cases have held that a notice of discipline does not constitute an adverse action in the retaliation context, many of these cases have relied on the fact that the plaintiff did not point to any negative consequences arising from the notice of discipline. See, e.g., Weeks v. N.Y. State Div. of Parole, 273 F.3d 76, 86 (2d Cir.2001) (notice of discipline could not constitute an adverse employment action where the plaintiff had not described "its effect or ramifications, how or why the effect would be serious, whether it went into any file, or even whether it was in writing"), abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002);[11]*389 Wright v. Monroe Cmnty. Hosp., No. 09 Civ. 6593, 2011 WL 3236224, at *7 (W.D.N.Y. July 28, 2011) (notices of discipline do not amount to adverse actions "without attendant negative results"). In this case, in contrast, the plaintiff alleges that the notice of discipline threatened severe consequences such as dismissal from service and loss of accrued annual leave, was placed in her personal history folder, and that she had to pay $3000 to settle the disciplinary action. (Pl.'s Dep. 109; Dawkins Decl. Ex. N.) See Uddin v. City of New York, 316 Fed.Appx. 4, 5-6 (2d Cir. 2008) (summary order) (finding disciplinary charges materially adverse where they were recorded in plaintiff's personnel file and plaintiff was fined three days' pay). While the counseling memoranda and negative comment in the plaintiff's performance evaluation may not themselves have amounted to adverse actions, see, e.g., Delaney v. LaHood, No. 07 Civ. 471, 2009 WL 3199687, at *34 (E.D.N.Y. Sept. 30, 2009) (wrongful counseling does not amount to materially adverse action); Ragin v. E. Ramapo Cent. Sch. Dist., No. 05 Civ. 0496, 2010 WL 1326779, at *17 (S.D.N.Y. Mar. 31, 2010), a reasonable jury could find that those actions, in combination with the notice of discipline, would be sufficient to "dissuade[] a reasonable worker from making or supporting a charge of discrimination." White, 548 U.S. at 68, 126 S.Ct. 2405. Thus, genuine issues of material fact exist concerning the adverse action element of the plaintiff's prima facie case.[12] B. The defendants also contend that the plaintiff cannot establish a causal connection between any protected activity and the allegedly retaliatory actions taken by the defendants. A causal connection may be established either directly, through evidence of retaliatory animus directed against the plaintiff by the defendant, or indirectly, by showing that the protected activity was followed closely in time by the adverse action or by other circumstantial evidence. See Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991) (citing DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111, 115 (2d Cir.1987)); Manoharan v. Columbia Univ., 842 F.2d 590, 593 (2d Cir.1988). The defendants assert that the temporal proximity between the plaintiff's complaint with the NYSDHR in July 2006 and the first allegedly retaliatory action (the NOD) in May 2007 is too attenuated to support an inference of causal connection. However, the plaintiff engaged in protected activity as late as April 2007, when she complained to her union steward regarding gender discrimination, a communication on which defendant Williams was copied in his capacity as superintendent of Lincoln.[13] (Dawkins Decl. Ex. M.) While the defendants argue that this complaint was merely a repetition of the NYSDHR charge, the plaintiff's choice to renew her complaints of gender discrimination in a different forum could have served as an independent source of retaliatory animus on the part of the defendants. See Treglia v. Town of *390 Manlius, 313 F.3d 713, 721 (2d Cir.2002) (treating plaintiff's filing of a complaint with NYSDHR and plaintiff's discussion of NYSDHR investigation with other members of the police department as two separate instances of protected activity for purposes of calculating temporal proximity). When the complaint to the union is treated as protected activity, the temporal proximity to the issuance of the notice of discipline is a little over one month.[14] While the Court of Appeals for the Second Circuit has not established a bright-line rule as to when the temporal link becomes too attenuated to demonstrate causation, see, e.g., Gorman-Bakos v. Cornell Co-op. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir.2001); Hill v. Citibank Corp., 312 F.Supp.2d 464, 480 (S.D.N.Y. 2004), the passage of approximately one month between the protected activity and the retaliation is a sufficiently short period of time for a reasonable jury to determine that the two events were causally connected. See, e.g., Scheiner v. N.Y.C. Health & Hosps., 152 F.Supp.2d 487, 497 (S.D.N.Y. 2001) (temporal proximity of one month between protected activity and adverse action supported allegation of causal connection sufficient to survive summary judgment). Moreover, the plaintiff has presented some evidence from which a reasonable jury could conclude that the defendants harbored retaliatory animus toward the plaintiff. The plaintiff alleges that defendant Brocco yelled at her and said he did not know what was wrong with her after he learned that she had filed a charge with the EEOC. (Pl.'s Dep. 98, 100.) Negative reactions by an employer to a plaintiff's complaints of discrimination have been deemed indicative of retaliatory animus. See Mandell v. Cnty. of Suffolk, 316 F.3d 368, 383 (2d Cir.2003) (direct evidence of retaliatory animus presented where supervisor told plaintiff to "keep his mouth shut" after plaintiff gave interview complaining of discrimination). Furthermore, Officer Marrero testified that the defendants intimated that they did not like the plaintiff because she used the employment manual too often. (Marrero Dep. 23-24.) Defendant Murray also inserted a comment into the plaintiff's otherwise "excellent" performance evaluation focused on her creation of "disharmony in the workplace." (Avallone Decl. Ex. N.) Complaints by an employer about a plaintiff's "attitude" or "demeanor" have been considered to be one indicator of retaliatory animus. See Mandell, 316 F.3d at 383 (negative comment in performance evaluation concerning plaintiff's "attitude" was evidence of retaliatory animus); Cobb v. Morningside at Home, Inc., No. 06 Civ. 13161, 2009 WL 874612, at *10 (S.D.N.Y. Mar. 31, 2009) (warnings to plaintiff based not on her "job performance so much as her demeanor" were indicator of retaliatory animus). The direct evidence of retaliatory animus adduced by the plaintiff, as well as the *391 temporal proximity between the union complaint and the notice of discipline, are sufficient to raise genuine issues of material fact with respect to the causal connection element of the plaintiff's prima facie case. C. Because the plaintiff has presented sufficient evidence to carry the minimal requirement of a prima facie case, the burden of production shifts to the defendants to provide a legitimate, non-retaliatory reason for the adverse actions. The defendants have met this burden. They point to several violations of DOCS policies committed by the plaintiff that they allege resulted in the notice of discipline and the counseling memoranda. However, the plaintiff has presented evidence from which a reasonable jury could find that the defendants' proffered reasons for the adverse actions were merely pretextual. With respect to the notice of discipline, which the defendants claim was issued because the plaintiff left her post as a roundsman and entered the relief processing booth, Officer Marrero testified that there is no specific assigned post for a roundsman and that, whenever he performed that position, he was permitted to enter the processing booth. (Marrero Dep. 19-22.) Officer Marrero also stated that he had never heard of anyone being disciplined for such an infraction. (Marrero Dep. 21.) The circumstances surrounding the issuance of the counseling memoranda are also disputed. A reasonable jury could conclude that the counseling memoranda were not justified and that the asserted reasons for issuing them were pretextual. Because the plaintiff has presented sufficient evidence to carry the minimal requirement of a prima facie case of retaliation and because a reasonable jury could find that the reasons offered for the adverse actions were pretextual, summary judgment is denied with respect to the plaintiff's retaliation claim. V. The defendants also seek summary judgment on the plaintiff's § 1983 claims. A. In order to state a claim under § 1983, a plaintiff must allege a violation of a right secured by the Constitution or laws of the United States and must show that the alleged violation was committed or caused by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Feingold v. New York, 366 F.3d 138, 159 (2d Cir.2004) (citing Atkins, 487 U.S. at 48, 108 S.Ct. 2250). In this case, the plaintiff alleges a violation of her Fourteenth Amendment right to equal protection.[15] The plaintiff alleges that her constitutional right to equal protection was violated when the defendants discriminated against her because of her gender[16]*392 by denying her the 2008 OIC Position.[17] The Equal Protection Clause protects "public employees from various forms of discrimination, including hostile work environment and disparate treatment, on the basis of gender." Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.2006). The Second Circuit Court of Appeals applies the Title VII burden shifting analysis in determining whether conduct was unlawfully discriminatory under § 1983. See Annis v. Cnty. of Westchester, 136 F.3d 239, 245 (2d Cir.1998). Thus, where a plaintiff's equal protection claim parallels his or her § 1983 claim, the "elements of one are generally the same as the elements of the other and the two must stand or fall together." Feingold, 366 F.3d at 159. Here, summary judgment has been denied with respect to the plaintiff's Title VII claim concerning denial of the 2008 OIC position and thus summary judgment must also be denied with respect to the plaintiff's § 1983 claim arising from this incident. B. The inquiry thus turns to which of the defendants, if any, were personally involved in this alleged constitutional deprivation. "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)). Where the officer is a supervisor, at a minimum, "liability in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on respondeat superior." Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009); Solar v. Annetts, 707 F.Supp.2d 437, 441 (S.D.N.Y.2010). In Colon v. Coughlin, 58 F.3d 865 (2d Cir.1995), the Second Circuit Court of Appeals held that: [t]he personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring. Id. at 873. The Court of Appeals has not yet definitively decided which of the Colon factors remains a basis for establishing supervisory liability in the wake of Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), which rejected the argument that "a supervisor's mere knowledge of his subordinate's discriminatory purpose *393 amounts to the supervisor's violating the Constitution." Id. at 1949. Nor has any clear consensus emerged among the district courts within this Circuit. See Aguilar v. U.S. Immigration & Customs Enforcement, No. 07 Civ. 8224, 2011 WL 3273160, at *10 (S.D.N.Y. Aug. 1, 2011); but see Rolon v. Ward, 345 Fed.Appx. 608, 611 (2d Cir.2009) (summary order) ("A supervisory official personally participates in challenged conduct not only by direct participation, but by (1) failing to take corrective action; (2) creation of a policy or custom fostering the conduct; (3) grossly negligent supervision, or deliberate indifference to the rights of others."). In particular, district court decisions have differed as to whether Iqbal nullified any of the Colon factors. Compare Qasem v. Toro, 737 F.Supp.2d 147, 152 (S.D.N.Y. 2010) (finding that "the five Colon categories supporting personal liability of supervisors still apply as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to have been violated"), with Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009) ("Only the first and part of the third Colon categories pass Iqbal's muster—a supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred."), aff'd 387 Fed.Appx. 55 (2d Cir. 2010) (summary order); see also Bellezza v. Holland, 730 F.Supp.2d 311, 317 n. 1 (S.D.N.Y.2010) (noting this split in opinion). For the purposes of deciding this motion, however, it is not necessary for the Court to determine the outer reaches of supervisory liability, because the plaintiff has failed to present evidence of personal involvement under any of the Colon categories for any defendants except Brocco and Williams, and her claims against them hinge on their direct involvement in the male-only designation of the OIC position. Direct involvement remains a clear basis for supervisor liability even following Iqbal. As for defendants Brocco and Williams, the plaintiff has adduced sufficient evidence of their personal involvement to withstand their motion for summary judgment. Defendant Brocco stated that he discussed the potential male-only designation with the union and with DOCS' Labor Relations and Human Resources Departments, considered possible alternatives to the designation, and obtained the requisite approvals for its implementation. (Brocco Decl. ¶¶ 6, 7, 10.) Defendant Williams also testified that he and Defendant Brocco together reviewed and discussed the OIC position's requirements to determine whether the qualifications for the position needed to be altered. (Dawkins Decl. Ex. CC ("Williams Dep.") at 10-12.) In conducting this review, defendant Williams discussed the changing male-female ratio at the facility and how that impacted on the job requirements for the OIC position. (Williams Dep. 11.) Defendant Williams also attended a meeting with the union in January 2008, where the reasons why the OIC position had been designated male-only were discussed. (Avallone Decl. Ex. L.) A reasonable jury could find that both defendant Williams and defendant Brocco were personally involved in the alleged constitutional deprivation at issue. C. Defendants Williams and Brocco, however, are entitled to qualified immunity. Qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable *394 person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see, e.g., Iqbal, 129 S.Ct. at 1945-46. "The qualified immunity standard `gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Courts generally perform a two-step analysis to determine whether an official is entitled to qualified immunity.[18]Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir. 2002). First, the Court must undertake a threshold inquiry into whether the plaintiff's allegations, if true, establish a constitutional violation. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If the plaintiff's allegations do not state a constitutional claim, "there is no necessity for further inquiries concerning qualified immunity." Id. Similarly, if the plaintiff's constitutional claims are procedurally barred, or have already been disposed of in a motion for summary judgment, the Court need not reach the question of qualified immunity. Second, if a violation could be made out on a favorable view of the parties' submissions, the next step is to ask if the right was "clearly established" at the time it was allegedly infringed. Id. at 202, 121 S.Ct. 2151. "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." Id. Even where a plaintiff's rights are clearly established, qualified immunity protects a government official "if it was `objectively reasonable' for him to believe his actions were lawful at the time of the challenged act." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995). An official may satisfy the objective reasonableness test if he demonstrates that "`officers of reasonable competence could disagree' on the legality of the defendant's actions." Id. (quoting Briggs, 475 U.S. at 341, 106 S.Ct. 1092). Thus, if "the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendants' conduct under the circumstances," the defendants are entitled to summary judgment on qualified immunity grounds. Id. at 421. The use of this "objective reasonableness" test enables courts to decide qualified immunity claims as a matter of law when there are no material issues of disputed fact. Id. The plaintiff's equal protection claim has survived dismissal. The right to be free from gender discrimination was clearly established at the time of the incidents in question. See Rucci v. Thoubboron, 68 F.Supp.2d 311, 327 (S.D.N.Y.1999) ("It is well-settled that the Fourteenth Amendment's protection extends to the right not to be discriminated against because of one's gender."). However, "the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality" of the designation of the OIC position as male-only. Lennon, 66 F.3d at 421. Before taking action, defendants Brocco and Williams reviewed the changing gender demographics at Lincoln and discussed the best course of action to "ensure that we were able to get the duties that were attached to [the OIC *395 post] completed." (Williams Dep. 11.) Defendant Brocco considered several alternatives before designating the position male-only. He first asked for permission to hire outside of the list of officers scheduled to transfer into Lincoln. (Brocco Decl. ¶ 7.) When such permission was denied, he then attempted to hire male officers on overtime but was also told this was not possible. (Brocco Decl. ¶ 6.) It was only when he believed he had exhausted all potential reasonable alternatives that he sought permission to designate the position as male-only. (Brocco Decl. ¶ 6.) Because reasonable officers could have believed that there was no reasonable alternative other than the gender-based hiring policy to protect the privacy interests of inmates and that gender was therefore a BFOQ for the OIC position, defendants Brocco and Williams are entitled to qualified immunity. The defendants' motion for summary judgment on the plaintiff's § 1983 equal protection claim is therefore granted. CONCLUSION The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the foregoing reasons, the defendants' motion for summary judgment is granted with respect to the plaintiff's § 1983 equal protection claim but denied with respect to the plaintiff's Title VII discrimination and retaliation claims. The Clerk is directed to close Docket No. 37. SO ORDERED. NOTES [1] The plaintiff has also described this job post as Second Officer in the Processing Booth. (Pl.'s Counter Stmt. of Facts ¶ 3.) [2] The officers working in the processing area included both permanent bid officers and resource officers. A permanent bid officer cannot be reassigned to a different post once the bid has been awarded. Officers not serving a bid post are called resource officers and can be reassigned as the needs of the facility dictate. (Defs.' 56.1 Stmt. ¶ 16.) [3] The plaintiff contends that two of the permanent bid positions were held by men. (Pl.'s 56.1 Stmt. ¶ 18.) [4] (Sept. 7, 2011 Hr'g Tr. ("Tr.") at 19.) [5] It was initially unclear whether the plaintiff's Title VII claim concerned only the denial of the 2006 OIC position or also denial of the 2008 OIC position. At oral argument on this motion, the plaintiff's counsel stated that the Title VII claim did not concern the 2006 OIC position but only the 2008 OIC position. (Tr. at 10.) He conceded that, because the 2006 OIC position was given to an officer who was more senior than the plaintiff, the plaintiff would not have received the position even in the absence of any alleged discrimination. (Tr. at 9.) Although the plaintiff did not file a complaint with the EEOC concerning the denial of the 2008 OIC position, counsel for the defendants stated at oral argument that they were not arguing that the plaintiff's claim was precluded because of failure to exhaust administrative remedies. (Tr. at 17.) In any event, the plaintiff's claim of discrimination concerning the 2008 OIC position is "reasonably related" to her claim alleged in the complaint filed with the NYSDHR and cross-filed with the EEOC, such that the exhaustion requirement is excused for the 2008 claim. See Deravin v. Kerik, 335 F.3d 195, 200-01 (2d Cir.2003) (claims not filed with the EEOC are not precluded based on the exhaustion requirement if they are "reasonably related" to claims that have been filed with the EEOC); Butts v. N.Y.C. Dep't of Housing Pres. & Dev., 990 F.2d 1397, 1401-03 (2d Cir.1993) (claim is "reasonably related" if, inter alia, the conduct complained of consists of incidents of discrimination "carried out in precisely the same manner alleged in the EEOC charge"), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir.1998). [6] The defendants initially briefed the BFOQ defense in relation only to denial of the 2006 OIC position. However, defendants' counsel clarified at oral argument that they are also asserting a BFOQ defense in relation to denial of the 2008 OIC position. (Tr. at 16.) [7] The plaintiff argues that the defendants waived the BFOQ defense because it is an affirmative defense that the defendants were required to plead in their answer to the amended complaint. However, the defendants asserted a business necessity defense in their answer (Answer to Am. Compl. ¶ 95), which is similar to a BFOQ defense, and litigated this issue throughout discovery, which sufficed to put the plaintiff on notice of this defense and to avoid prejudice to the plaintiff. [8] In a typical disparate treatment discrimination case under Title VII, claims of discrimination are analyzed at the summary judgment stage under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), burden-shifting test. However, in a BFOQ case, the McDonnell Douglas burden-shifting framework does not apply. See, e.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) (concluding, in the context of a BFOQ case under the ADEA, that "the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination"); Johnson v. State of N.Y., 49 F.3d 75, 79 (2d Cir.1995) ("[W]here there is direct evidence that the disparate treatment [is discriminatory] . . . the McDonnell Douglas search for a motive is unnecessary and therefore inapplicable." (citations omitted)); Healey v. Southwood Psych. Hosp., 78 F.3d 128, 131 (3d Cir.1996) ("[A BFOQ case] should be distinguished from the more typical disparate treatment case, pretextual discrimination, where the familiar procedure set forth in McDonnell Douglas is appropriate. The McDonnell Douglas test is inapt in this case which involves a facially discriminatory policy."). [9] It should be noted, however, that the needs of Lincoln differed over the weekend because there was less inmate movement and there-fore fewer instances where strip searches or urine tests needed to be conducted. (Dawkins Decl. Ex. V at 5.) [10] While the plaintiff's amended complaint alleges that the counseling letter was issued in May 2007, the record establishes that the incident that gave rise to the counseling letter occurred in May but the letter itself was not issued until June. (Dawkins Decl. Ex. O.) While a third counseling memo was issued in March 2007 (Dawkins Decl. Ex. K), the plaintiff does not appear to allege this as a retaliatory action in her complaint. [11] It should also be noted that Weeks was issued before the Supreme Court in White expanded the standard for an "adverse action" as it applies in retaliation cases. Therefore, to the extent that cases following White have simply cited Weeks for the proposition that, as a matter of law, a notice of discipline is not sufficiently adverse to give rise to an actionable retaliation claim, they are not persuasive. [12] It would be difficult to conclude that the denial of the OIC post to the plaintiff in January 2008 was in retaliation for her prior complaints about discrimination. The posting was limited to males, and it had been limited to males since May 2006, before the plaintiff ever began to complain about gender discrimination. [13] Counsel for the defendants agreed at oral argument that they were not disputing the defendants' awareness of the complaint to the union, because DOCS was copied on the letter the plaintiff sent. (Tr. at 3-4.) [14] It should be noted that defendant Brocco's submission of the request for the notice of discipline predated the plaintiff's complaint to the union by one day. (Dawkins Decl. Exs. L, M.) While the notice of discipline was not issued until May 29, 2007, it was Peter Brown, the Director of Labor Relations based in Albany, who actually issued it. (Dawkins Decl. Ex. N.) Because the employer is at issue in a Title VII retaliation claim, rather than the individual defendants, it is DOCS' actions that are determinative, regardless of whether the individuals taking those actions were based in Albany or at Lincoln. While the attenuation between the actions of DOCS at Lincoln and in Albany does weaken the inference of a causal connection somewhat, the plaintiff has presented sufficient evidence to raise a genuine issue of material fact with respect to the causal connection element of the plaintiff's prima facie case. [15] As noted above, the plaintiff has withdrawn her § 1983 claims based on procedural due process and the First Amendment. [16] It is unclear from the plaintiff's amended complaint whether she contends that retaliation for her opposition to discrimination forms any basis of her equal protection claim. See Am. Compl. ¶ 78 ("Plaintiff has been deprived of her Constitutional Rights to be free of discrimination based upon her gender and sex, and opposition to discrimination and workplace violations...."). To the extent that the plaintiff seeks to ground her equal protection claim in retaliation, such efforts must fail. See Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir.1996) ("[W]e know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of [] discrimination."); Sulehria v. City of N.Y., 670 F.Supp.2d 288, 319 (S.D.N.Y.2009) (concluding that a retaliation claim is not cognizable under the Equal Protection Clause). [17] Counsel for the plaintiff clarified at oral argument that the § 1983 equal protection claim only concerned denial of the 2008 OIC position, not the 2006 OIC position. (Tr. at 10.) [18] The Supreme Court has made clear that courts are not required to perform the two steps of the Saucier analysis in any particular sequence. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

226 F.2d 868 C. C. WHITTAKER, Sr., and Pay Rock Oil, Inc., Appellants,v.William G. WALL and Doris I. Wall and A. J. Wagner, Real Name Unknown, Appellees. No. 15293. United States Court of Appeals Eighth Circuit. November 8, 1955. Warren K. Dalton, Lincoln, Neb. (Robert Van Pelt and Van Pelt, Marti & O'Gara, Lincoln, Neb., with him on the brief), for appellants. Frederick M. Deutsch, Norfolk, Neb. (Deutsch & Jewell, Norfolk, Neb., with him on the brief), for appellees Wall. William H. Timbers, Gen. Counsel, Alexander Cohen, Sp. Counsel, Elizabeth B. A. Rogers, Atty., Securities and Exchange Commission, Washington, D. C., filed brief as amicus curiae. Before WOODROUGH, JOHNSEN and VOGEL, Circuit Judges. VOGEL, Circuit Judge. 1 Appellees Wall commenced this action against A. J. Wagner, Pay Rock Oil, Inc. and C. C. Whittaker, Sr., under the Securities Act of 1933, 15 U.S.C.A. § 77a et seq., to recover the consideration paid by them for unregistered fractional interests in oil and gas leases. From an adverse judgment C. C. Whittaker and Pay Rock Oil, Inc., appeal. 2 Pay Rock Oil, Inc., a Delaware corporation, whose principal place of business was Eureka, Kansas, and of which C. C. Whittaker was president and substantial stockholder, employed A. J. Wagner, a resident of Nebraska, as "representative" to sell oil and gas leases on a commission basis. In July, 1952, Wagner told appellees Wall in Nebraska of certain likely oil prospects and persuaded the Walls to inspect the holdings in Kansas with him. As a result, the Walls accompanied Wagner from Nebraska to Kansas, where they were introduced to C. C. Whittaker and taken on a tour of the drilling sites. On the following day, at the offices of Pay Rock Oil, Inc., in Kansas, the Walls signed an agreement authorizing Wagner to procure a 1/16th working interest in certain property known as the Freeburg "A" tract for $3,000.00 plus $1,500.00 if oil was found in commercial quantities. The $1,500.00 was stipulated to be for equipment and drilling expenses. Appellees also acquired an option to purchase a similar lease on the Freeburg "B" tract under the same terms. Provision was made that another $900.00 would be due in each case if a second well was drilled. 3 After conclusion of the negotiations, Wagner signed the agreement as "representative". Appellees then gave Whittaker a check for $3,000.00 and returned to Nebraska. About two weeks later appellees wrote to the secretary of Pay Rock, asking for their copy of the agreement and it was forwarded promptly. Shortly thereafter another document, entitled "Development Contract of Oil and Gas Lease", was sent by mail from the company in Kansas to the Walls in Nebraska. This development contract was executed and acknowledged by Wagner in Kansas. 4 On August 12, 1952, after the Freeburg "A" well struck oil, appellees received a statement by mail, from Kansas to Nebraska, requesting $1,500.00 for equipment and drilling expenses, and on September 5, 1952, they received a similar bill requesting $900.00 for a second well on the "A" tract. Both amounts were remitted by check. On September 1, 1952, in Nebraska, Wagner urged the Walls, by letter and telephone, to exercise the option on the "B" tract, and they did so, paying $3,000.00 then and $1,500.00 when the well struck oil. Such payments were made by mailing checks in Nebraska addressed to Pay Rock Oil, Inc., in Kansas. From December, 1952, through April, 1953, appellees received $342.04 in royalty distributions from Pay Rock in connection with the Freeburg "A" and "B" tracts. No registration certificate for either lease interest was filed with the Federal Securities Commission by Pay Rock or its officers. 5 Appellees, presumably concluding that they had made a bad investment, filed suit in the United States District Court of Nebraska, seeking return of the consideration paid. They relied on the provisions of 15 U.S.C.A. §§ 77e and 77l. These subsections state summarily that unless a registration certificate is in effect as to a security, it is unlawful to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell or offer to buy such security, or to carry or cause to be carried any such security for the purpose of sale or for delivery after sale. Any person who sells a security in violation of such provisions shall be liable to the purchaser, who may sue in any court of competent jurisdiction for the consideration paid plus interest, less any income received. 6 Appellants admitted sale of the securities in Kansas, but contended that the Nebraska court had no jurisdiction because there was no "sale" as contemplated by the statute in the District of Nebraska. 7 The trial court found, Wall v. Wagner, D.C., 125 F.Supp. 854, that it had jurisdiction and gave judgment for the plaintiffs for the entire amounts of the consideration paid, including the two $1,500. 00 payments and the $900.00 payment, less $342.04 royalty distributions. The court also gave plaintiffs a lien on the involved securities, property and trust funds for payment of the judgment, and gave Wagner a similar lien in the event that he would pay any part of or all of the judgment. The court retained jurisdiction for the purpose of disposal of the properties upon payment of the judgment. 8 The questions presented by this appeal involve the jurisdictional issue and the propriety of the relief afforded. 9 Appellants contend, with reference to the question of jurisdiction, that no sale of securities took place in the State or District of Nebraska. 15 U.S. C.A. § 77v at the time in question provided in part: 10 "Any such suit or action may be brought in the district wherein the defendant is found or is an inhabitant or transacts business, or in the district where the sale took place, if the defendant participated therein, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found." (The Securities Act has since been amended. Act of August 10, 1954, 68 Stat. 684.) (Emphasis supplied.) 11 As a basis for jurisdiction under the act, the trial court found that there had been a "sale" in Nebraska. D.C., 125 F.Supp. 854, 858: 12 "d) Jurisdiction and Venue. An action such as this under the Securities Act of 1933 may be brought in the district where the sale took place if the defendant participated therein. The court finds that the `sale' in this case took place in Nebraska within the meaning of that term as used in the Act. The term `sale', `sell', `"offer to sell",' or `"offer for sale",' unless the context otherwise requires, includes a solicitation of an offer to buy a security for value. 15 U.S.C.A. § 77b(3). Such a solicitation was made in Nebraska by Wagner, the Agent of Pay Rock Oil, Inc." 13 Section 77b (3), insofar as it is applicable herein, provides: 14 "The term `sale', `sell', `offer to sell', or `offer for sale' shall include every contract of sale or disposition of, attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value; except that such terms shall not include preliminary negotiations or agreements between an issuer and any underwriter." 15 Appellants argue that this definition is out of context and does not apply to Section 77v because the latter section contemplates only a suit for damages as a consequence of a sale, there being no accrual of damages from a solicitation or an offer to dispose of securities. There would, instead, be a criminal prosecution or suit for an injunction handled by the Securities and Exchange Commission in accordance with Section 77t. Thus, it is concluded by appellants, Section 77v deals only with private, consummated sales and they claim there was no such sale in Nebraska. 16 Whether the statutory periphery of the court's jurisdiction is to be extended liberally by utilizing the Section 77b(3) definition as the meaning of "sale" or whether it shall be limited by the construction proffered by appellants is a query which may be decided by a perusal of the various purposes sought to be accomplished by the Securities Act. In the case of Wilko v. Swan, 1953, 346 U.S. 427, 430, 74 S.Ct. 182, 184, 98 L.Ed. 168, the Supreme Court, through Mr. Justice Reed, used this significant language: 17 "In response to a Presidential message urging that there be added to the ancient rule of caveat emptor the further doctrine of `let the seller also beware,' Congress passed the Securities Act of 1933. Designed to protect investors, the Act requires issuers, underwriters, and dealers to make full and fair disclosure of the character of securities sold in interstate and foreign commerce and to prevent fraud in their sale. * * * The Act's special right is enforceable in any court of competent jurisdiction — federal or state — and removal from a state court is prohibited. If suit be brought in a federal court, the purchaser has a wide choice of venue, the privilege of nation-wide service of process and the jurisdictional $3,000 requirement of diversity cases is inapplicable." (Emphasis supplied.) 18 It is thus apparent that from the inception of the statute the accent has been on liberality. Securities & Exchange Commission v. C. M. Joiner Leasing Corp., 320 U.S. 344, 64 S.Ct. 120, 88 L. Ed. 88; Blackwell v. Bentsen, 5 Cir., 1953, 203 F.2d 690. To restrict jurisdiction here to the situs of the consummated sale would run contrary to this liberal tenor and submit the jurisdictional situs to the vagaries of conflicts of laws issues as to where the sale took place. We therefore hold that it was the intent of Congress to permit an action to be brought in any jurisdiction wherein a "sale", as defined in Section 77b(3), took place. See Securities & Exchange Commission v. Wimer, D.C.1948, 75 F.Supp. 955, 962. As pointed out by the Securities & Exchange Commission in its brief as amicus curiae, this argument finds additional force in the 1954 amendments to the Securities Act and the committee reports. In this amendment, the words "offer" and "sale" were redefined for a purpose not pertinent here, but included separately the same provisions as the prior definition of "sale". The two terms, "offer" and "sale", were both used in the redraft of Section 77v so as to (according to committee reports) "make clear that the civil and penal liabilities and sanctions imposed by the statute shall remain unchanged, notwithstanding the changes made elsewhere in the statute". See Sen.Rep.No. 1036, 83d Cong., 2nd Sess. (1954) and H.R.Rep.No.1542, 83d Cong., 2nd Sess. (1954). 19 Appellants argue that even if a broad meaning were given the term "sale", nothing was done in Nebraska prior to the execution of the contract in Kansas which could be considered a sale, offer or solicitation of an offer. Obviously appellants do not consider the importuning of the Walls by Wagner in Nebraska, concerning either the "A" or "B" leases, as being solicitations. They maintain that he was merely making suggestions concerning securities. This, to us, is untenable, for if appellees had offered to purchase the securities immediately, the necessary adjuncts would undoubtedly have been taken care of. The trip was a mere cautious fortuity. 20 Appellants likewise vigorously deny that Wagner was a representative of Pay Rock Oil or that he had authority to sell the lease interests. However, the affidavit of Wagner, his signature on the procurement agreement as "representative" and his execution of the development contracts deny the efficacy of this contention. The trial court, on substantial evidence, found specifically that Wagner was an agent of Pay Rock Oil, Inc. We conclude, therefore, that Wagner, as agent, solicited the Walls in Nebraska, that such solicitations were "sales" for venue purposes, and that this action was properly brought in the District of Nebraska. 21 Having concluded that there was a "jurisdictional sale" resulting from the solicitations in Nebraska, it is unnecessary to consider appellants' argument that mailing of securities over state lines is not a "sale" within the meaning of the Securities Act for the purpose of establishing jurisdiction. 22 To involve the appellants, it is necessary, under § 77v(a), that they participated in the "sale" in Nebraska. Since it has been determined that Wagner was an agent of Pay Rock Oil, Inc., that relationship would involve the corporation. As to C. C. Whittaker, it is undisputed that he is, or was, president and holder of a large portion of the stock of Pay Rock Oil. His actions in Kansas and his participation in the consummation of the sale there are part and parcel of the entire transaction from solicitation to suit. 23 In Schillner v. H. Vaughan Clarke & Co., 2 Cir., 1943, 134 F.2d 875, at page 879, it is said, paraphrasing Section 77o: 24 "* * * every person who controls through stock ownership or otherwise any person liable under section 12 (Section 77l) is also made liable `jointly and severally with and to the same extent as such controlled person.' The convenience of establishing such joint and several liability in a single suit is obvious." (Emphasis supplied.) 25 We find no basis in logic or practicality for appellants' suggestion that neither Pay Rock Oil or its president controlled Wagner in his sales of the leases in question. Wagner is implicated by his agency relationship with Pay Rock Oil and C. C. Whittaker is liable because of his ostensible control. Miller v. Hano, D.C., 8 F.R.D. 67. 26 Appellants' next contention is that appellees are entitled to recover only the amounts paid for the "securities", not the expenditure for equipment or second well payments. They maintain that this is not the usual action in equity for rescission, but is an action under a specific statute which grants a specific right of recovery and that the right of recovery is limited to the "consideration paid" for the security purchased. Appellants adjudge the distended payments to be outside the definition of "security" and accordingly not a part of the consideration paid. We do not agree. The securities themselves created the secondary obligations when oil was reached. Also these payments were made for the purpose of rendering more valuable the primary securities. It would be a perversion of the statute to allow remittances made in conjunction with a void and unlawful security to be exempt from restitution, and would permit unjust enrichment under the guise of statutory definition. 27 The final contentions of the appellants deal with the propriety of the court's action in awarding appellees a lien on the securities, trust funds and other property to insure payment of the judgment, and with the granting of a similar lien to Wagner in the event he should pay any part of or all of the judgment. Appellees' complaint, it is argued, prays for judgment under the statute, not a specific lien or a determination that the funds paid or property purchased were held in trust. As authority for this position, appellants rely heavily upon Sylvan Beach, Inc., v. Koch, 8 Cir., 1944, 140 F.2d 852, 861. 28 In that case, this court set aside relief granted a trustee against various defendants who were not within the jurisdiction of the court and which relief was violative of due process. In so doing, this court said, 140 F.2d at page 861, referring to the trial court: 29 "It has no jurisdiction to hear and determine controversies between adverse third parties which are not strictly and properly part of the proceedings in bankruptcy. (Citing cases.)" 30 In the instant case, all parties are in court, all material issues are pleaded and the disputed relief is merely the exercise of the equity powers of the court in enforcing its judgment. Such extension of relief beyond that asked for in the pleadings has been approved by many cases, Gins v. Mauser Plumbing Supply Co., 2 Cir., 1945, 148 F.2d 974; Liquid Carbonic Corp. v. Goodyear Tire & Rubber Co., D.C.Ohio 1941, 38 F.Supp. 520; Bemis Bro. Bag Co. v. United States, 1933, 289 U.S. 28, 53 S.Ct. 454, 77 L.Ed. 1011; Ring v. Spina, 2 Cir., 1945, 148 F. 2d 647; and Rule 54(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which provides as follows: 31 "Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." 32 Resultantly, it is necessary only for the facts and issues of the case to support the judgment. Garland v. Garland, 10 Cir., 1947, 165 F.2d 131; Schoonover v. Schoonover, 10 Cir., 1949, 172 F.2d 526; Perkins v. Remillard, D.C.1949, 84 F. Supp. 224. The violation of the statute here observed is sufficient to warrant the judgment awarded and we are convinced that the trial court, through specific liens, used a judicious means of enforcing it. Likewise, we are convinced that the trial court correctly impressed upon the funds paid for drilling expenses an equitable trust for the benefit of the appellees. Blazer v. Black, 10 Cir., 1952, 196 F.2d 139. 33 Pursuant to the holding of Cady v. Murphy, 1 Cir., 1940, 113 F.2d 988, the trial court held both Whittaker and Wagner liable as agents, and then gave Wagner a lien on the properties in the event that he should pay any part of or all of it. There is, to us, no incongruity in thus enforcing the instant judgment. Wagner is liable as agent and as agent may recover from his principal. Restatement of Agency § 438. The court may use suitable means to insure the reimbursement. 34 Affirmed.

41 Md. App. 251 (1979) 396 A.2d 317 SAPERO & SAPERO ET AL. v. BEL AIR PLUMBING & HEATING CONTRACTORS, INC. ET AL. No. 527, September Term, 1978. Court of Special Appeals of Maryland. Decided January 16, 1979. The cause was argued before MOYLAN, LOWE and MASON, JJ. *252 Robert Allen Sapero, with whom were Sapero & Sapero on the brief, for appellants. Paul G. Leiman, with whom were Clarence L. Fossett, Jr., and Fossett & Brugger on the brief, for appellee Maye H. Irwin. LOWE, J., delivered the opinion of the Court. The beneficent effort of a trial judge to overcome a clerk's procedural oversight which precluded appellants' right of review by this Court provides a provocative scenario for an otherwise bland appeal. Except to the litigants, the $4,000 in controversy is not nearly as important as the possible procedural loss of appellate review. We are asked by appellants to decide if the trial judge's factual decision was correct, but our right to hear this appeal, from the Circuit Court for Harford County, is challenged by appellee as well as the trial judge below. We will attempt to simplify the confusing scenario by restricting the recitation of facts to the specified issues upon appeal. Because the factual issue and the procedural obstacles are interwoven, we will face the appellants' substantive question first, obviously indicating that we will ultimately find that we have jurisdiction to hear the appeal. Upon review of the evidence, we had no difficulty in affirming the trial judge on what amounts to an attack on the sufficiency of the evidence under Md. Rule 1086. The case involves judgment creditors seeking to attach funds of appellee Irwin,[1] contended to be those of the judgment debtors. Appellants[2] were judgment creditors of appellees, Bel Air, Inc. and of the Lovelaces[3] who had previously contracted with appellee Irwin (and others) for the purchase of real property. The sale of the property was never consummated. Seeking to satisfy their judgment, appellants sought to attach the deposit paid by the judgment debtors to *253 Irwin at the time they contracted to buy that property. Contending that upon default by the buyers they had forfeited that deposit to her, Mrs. Irwin responded with a plea of nulla bona, that she had no assets of Bel Air or the Lovelaces in her hands. The very narrow sufficiency question justifying a very thick record extract condenses to whether the language used in a letter written by Mrs. Irwin's attorney to the buyers (appellants' debtors), in response to a letter advising that the buyers could not settle, was sufficient to declare and effect a forfeiture of the deposit money. After declaring the inability to settle to be a breach, and declining to consent to a rescission, there followed in the Irwin response the sentence in controversy which appellants contend was insufficient to declare a forfeiture: "Although only a partial deposit (and not the full deposit set forth in the contract) was made, Sellers will retain this deposit." A judgment creditor seeking to attach assets by garnishment is limited to the rights of the judgment debtor as against the garnishee. Messall v. Suburban Trust, 244 Md. 502, 506-507 (1966). The issue of whether the evidence (including that language) effected a forfeiture, is therefore essential to appellants' case. If it did, the deposit would become funds of the garnishee who would then have no funds of the debtors for which the debtors themselves could have sued; and consequently, none subject to attachment by a creditor of the debtors. Walsh v. Lewis Swim. Pool Constr., 256 Md. 608, 610 (1970). Concisely (if elliptically) providing the historic legal background culminating in that forfeiture question, appellants point out that the common law rule is recognizably harsh: "[W]here the vendee of real property makes part payment on the purchase price but subsequently fails to fulfill the contract without justifiable excuse, he cannot recover the payment if the vendor is ready and willing to fulfill his part of the contract, even though the vendor may have made a profit by reason *254 of the default." Great United Realty Co. v. Lewis, 203 Md. 442, 446 (1954). This forfeiture right prevails, "even though the vendor may have made a profit by reason of the default." Quillen v. Kelley, 216 Md. 396, 402 (1958).[4] Appellants contend, however, that because of the availability of elective remedies the default does not effect a forfeiture until the forfeiture is declared. Although the cases they cite for that principle were decided upon the specific language in the contracts in those cases, Chas. H. Steffey, Inc. v. Derr, 275 Md. 121, 125 (1975); Casey v. Jones, 275 Md. 203, 205-206 (1975), we will accept appellants' premise for purposes of this case. In doing so, we must affirm the trial judge nonetheless. The above quoted language in its context, together with all the other evidence in the case, was sufficient to support the factual conclusions of the factfinder. Operations Research v. Davidson, 241 Md. 550, 556 (1966). Although the factfinding judge here did not expressly state that he had concluded that a forfeiture was effected, it was implicit in his ruling in favor of appellee, especially since the issue was pointedly argued as part of appellants' case below. But we have put the cart before the horse. Appellee Irwin contends that we have no right to decide this case, even in her favor. The trial judge whose nunc pro tunc order gave birth to this issue, no longer holds that view; however, he has chosen consistency over prudence and invoked Md. Rule 1013 to strike the order for appeal, thereby strengthening appellee's contention. The events leading to this state of confusion came by way of a simple oversight. The trial judge decided this case and entered judgment nisi causa on September 23, 1977, presumably causing an entry of final judgment "as of course" by the clerk upon expiration *255 of three days. No motion for new trial having been filed, Md. Rule 567 a and f, appellants filed an order for appeal on September 27, 1977. There followed the series of events in which appellants have become entangled. 1) Nearly three months later, on November 22, 1977, the Circuit Court for Harford County entered "Judgment Absolute Nunc Pro Tunc as of September 29, 1977," presumably hoping to avoid a dismissal of the appeal. 2) Four days later, on November 26, 1977, we dismissed the appeal as premature, no final judgment having been entered to our knowledge. 3) On December 1, 1977, notwithstanding the nunc pro tunc entry, the clerk entered anew a "Judgment Absolute ... in accordance with the Mandate of the Court of Special Appeals." 4) On December 9, 1977, appellants again filed an order of appeal. 5) Meanwhile, appellee moved to strike the December 1, 1977 docket entries and to strike or not receive the order for appeal. 6) Given the opportunity for reflection, the trial judge correctly assessed the problems and by a well thought out opinion pointed out the problems as well as his own errors. The trial judge correctly observed that he had erroneously ordered entry of the judgment nunc pro tunc. "My ruling, if allowed to stand, would have the effect of denying the Plaintiffs the right to appeal because their order for appeal, filed December 9, 1977, would have been more than thirty days after the effective date of the judgment absolute. The garnishee has urged me to pursue this result by modifying the December 1st docket entry to delete reference to a redundant second judgment absolute. After reading the cases, I am convinced that my ruling from the bench was wrong. The statute, Courts and Judicial Proceedings Article, Section 12-301 provides that a party may appeal from a final *256 judgment `entered in a civil or criminal case by the Circuit Court'. Maryland Rule 1012.a., however, provides that the order for appeal shall be filed within thirty days from the date of the judgment appealed from, no mention being made of the question of whether or not `entry' is a necessary prerequisite of a judgment absolute. The cases are not particularly helpful as to the specific problem. Merlands Club v. Messall, 238 Md. 359 (1965) set forth the general rule, holding, in the language of the case, that the order of appeal filed `prior to the entry of the judgment absolute was premature and ineffective'. In that case, however, the judgment absolute was duly entered at the end of the three day period. In Aronstamn v. Coffey, 259 Md. 47 (1970), an appeal was taken before the actual entry of the judgment absolute although the clerk should have entered the judgment. The appeal was deemed premature but the Court of Appeals considered the case in order to avoid expense and delay. In that case, however, the entry of the judgment absolute should have been made, not because of the passage of time, but because the Court overruled a motion for new trial. But again, the entry by the clerk was a ministerial act, just as it was here, yet the Court of Appeals impliedly ruled that the crucial event was the entry by the clerk. My direction of November 22, 1977, directing entry of judgment absolute as of September 29, 1977, was entered in the spirit of Keystone Engineering Corporation v. Sutter, 196 Md. 620 (1950) but, unlike the situation there, here there was no agreement of counsel and the appellate court was not aware of my action when the mandate was issued. Under the rationale of Lang v. Catterton, 267 Md. 268 (1972), it seems that a trial court may retain jurisdiction after an appeal has been entered if the retention of such jurisdiction does not affect the *257 status of the appeal. The entry of November 22, 1977 would have the effect of foreclosing the Plaintiffs' right of appeal because more than thirty days would have elapsed since the rendition of judgment absolute. This being the case, I now feel that the direction of that entry may have been beyond my power. But the deed is done and the extent of a trial court's powers can only be decided by appellate courts." But presumably overtaken by the hobgoblin of consistency, he struck the order of appeal invoking Md. Rule 1013 and "corrected" the December 1, 1977 docket entry. "I will, nonetheless, GRANT the motion of the garnishee to strike the order for appeal, under Rule 1013, and will correct the December 1 docket entries as suggested by the garnishee. Hopefully, this will place the matter in a position for consideration by the Court of Special Appeals of the issues previously presented, in such a way as not to again cause the Plaintiffs to be thrown out of the appellate court, this time for failure to comply with the time limits of Rule 1025." 7) Appellants prudently appealed everything.[5] To the trial judge's erudite opinion we must add a few hindsight reflections. That there be no further question, the right to appeal is a substantive right statutorily given from *258 a "final judgment entered," not a final judgment rendered. That was implicit in the holding of Eastgate Associates v. Apper, 276 Md. 698 (1976) which held that there was no appellate jurisdiction when there was no entry of a final judgment. Id. at 699. "In the instant case, the appeal was taken from the instruction granting a directed verdict. Such an instruction is equivalent to a jury verdict, see Rule 552 e, and is analogous to the entry of a judgment nisi in an action tried by the court, Merlands Club, Inc. v. Messall, supra, 238 Md. at 362; Rule 564 b 1. As with a judgment nisi, a verdict, whether reached by jury or directed by the court, is not a final order. See Rule 567 f. `[I]t is indisputably clear that there is no right to appeal from a verdict,' Montauk Corp. v. Seeds, 215 Md. 491, 502, 138 A.2d 907 (1958). See, additionally, Hawkins v. GMAC, supra, 250 Md. [146] at 148; Merlands Club, Inc. v. Messall, supra, 238 Md. at 362-363; Md., Del. and Va. Rwy. Co. v. Johnson, 129 Md. 412, 99 A. 600 (1916)." Id. at 701-702. The procedural implementation of the right to appeal by the Court of Appeals under its rule making authority, (Md. Const. art. IV, § 18), had neither the intention of affecting the language of that statutory right nor authority to expand appellate jurisdiction when it used the term "judgment" generally in Md. Rule 1012 a. There must first be an appealable judgment for the rule to be applicable. Recognizing that prerequisite, the Court of Appeals prefaced its rule with the cautionary phrase: "Whenever an appeal ... is permitted by law." It is "permitted by law" after judgment has been entered. Judge Cameron's reflections upon Aronstamn v. Coffey, 259 Md. 47 (1970), may be somewhat misleading. In that case the Court of Appeals clearly held that the case must be dismissed because "[a]s of the time of appeal no final judgment had been entered, although the clerk should have entered judgment." Id. at 48. *259 That the Court answered the issue raised by way of dicta does not change the effect of the dismissal. Although Aronstamn was not mentioned in Eastgate v. Apper, it is in accord with the closing language in Eastgate. "In exceptional circumstances, however, a court may express its views on the merits of a case as dicta. See, e.g., Hawkins v. GMAC, supra. However, where appellate jurisdiction is absent, such statements by the appellate court can logically be no more than dicta, and it is improper for the order of the appellate court, and the opinion on which the order is based, to be made conclusive as to the points discussed." Eastgate v. Apper, 276 Md. at 704. Only two further matters discussed by the trial judge need be mentioned. We do not agree that Keystone Eng. Corp. v. Sutter, 196 Md. 620 (1951), can any longer be authority for a nunc pro tunc entry of judgment to "correct" the record, even by agreement to expedite the hearing of an appeal prematurely entered. The court's power to change the record is severely restricted: "To make the Record speak the truth and conform to the facts is a common law power, and is incident to all courts of record, and essential to their efficient existence. This power may be exercised at any time, even if the Record has been transmitted on appeal to a superior court and the appeal is there pending. Hays v. P., W. & B.R.R. Co., 99th Md. 420; 17th Enc. Pl. and Pr., 922; Waters v. Engle, 53 Md. 179. But in the exercise of such power the Court is authorized to make only such corrections as will make the record conform to the actual facts occurring in the progress of the cause, or in other words, make the Record speak the truth. It cannot so change the Record as to make it inconsistent with the facts, or make it state what is not true." Md., Del. & Va. Rwy. Co. v. Johnson, 129 Md. 412, 416 (1916). The "actual fact" in this case is that final judgment was not entered on September 2, 1977; the "truth" is, that it should *260 have been, but that it was not. Nor was final judgment entered on November 22, 1977. That which was entered on that date was an improper order nunc pro tunc. Thus, no appeal could properly be taken then either. No final judgment was entered until December 1, 1977. As indicated, the right to appeal is activated after a final judgment is entered, not the time final judgment ought to have been entered. The circuit court lacked any authority to change those facts by retrospective rulings, which are suspect even when ordered within the limited authority to so act. Although Keystone appears to be precedential authority for permitting us to hear premature appeals (at least by adding mutual assent), it could not be considered as such, even if all of the additional contingent factors acknowledged in that case had been complied with in this case. "In the case before us, there is no motion to dismiss the appeal. On the contrary, after argument, when counsel became aware of the lack of a judgment, application was made to the Judge of the Circuit Court for Kent County who heard the case, and, on December 21, 1950, a judgment was entered in favor of the defendant against the plaintiff for costs, nunc pro tunc, May 2, 1950, and an agreement of counsel is filed in the case to the effect that the docket entries showing the record of this judgment be included in the transcript sent to this court. As the case was fully argued, and all parties desire its decision on the merits, and as the effect of dismissing the case would only result in the appellant having to file a new appeal, with the consequent additional expense and delay, or, because of such expense, being denied an appeal, we think it is in the interest of justice to treat the appeal before us as one from the judgment entered nunc pro tunc, and we will so consider it." Keystone Eng. Corp. v. Sutter, 196 Md. at 626-627. Both Keystone Eng. Corp. v. Sutter, supra, and the case it relied upon, Kendall Lumber Co. v. State, 132 Md. 93 (1918), *261 were cited in Eastgate Associates v. Apper, supra, as unexplainable contradictions to the premise that jurisdiction cannot be conferred by consent. 276 Md. at 700-701. That Judge Eldridge, writing for the Court in Eastgate, flagged those cases as such in the Court's first recognition of jurisdictional problems of premature appeals, indicates that the Court would disapprove them as authority for consensual circumvention just as it disapproved Dackman v. Dackman, 252 Md. 331 (1969) and Blocher v. Harlow, 268 Md. 571 (1973), as authority to circumvent utilizing the remand rules. Eastgate Associates, supra, at 703. Prior to Eastgate Associates v. Apper, supra, various devices had been employed by the Court of Appeals and by this Court "to save judicial time and unnecessary [litigation] expense and in the belief that our action is in the best interest of the administration of justice." Apper v. Eastgate Associates, 28 Md. App. 581, 586 (1975). The Court of Appeals acknowledged that both Courts had done this in the past despite the premature nature of the appeals, but pointed out that in none of the previous cases had there been any discussion of the devices relied upon to do so (in Eastgate Rules 871 and 1071) — "or of the jurisdictional problems involved." Eastgate Associates v. Apper, 276 Md. at 703. The Court of Appeals then expressly denounced the previous authority they had used to wink at the technical jurisdictional defect implicit in appealing prematurely. "To the extent that the above-cited cases support an assumption of appellate jurisdiction in the absence of an appealable order, they are disapproved." Id. In light of the recognition that premature appeals are jurisdictional defects, we predict the same fate will befall any device used to acquire jurisdiction where none has been legislatively granted. Even appellate courts cannot grant jurisdiction to themselves. It appears then that Judge Cameron was right that he was wrong, but wrong that he was wrong for the reason he stated. *262 He was qualifiedly right that a trial court may retain jurisdiction for limited purposes after an appeal, Lang v. Catterton, 267 Md. 268, 283-286 (1972), but, if we are right, he was wrong in believing that Keystone Eng Corp. v. Sutter, supra, was authority to bestow jurisdiction where there was none. We will, therefore, vacate the nunc pro tunc order of November 22, 1977, and the supplemental order of February 9, 1978 granting garnishee Maye H. Irwin's Motion Ne Recipiatur or To Strike Order for Appeal, striking and dismissing appellants' December 9, 1977 appeal pursuant to Md. Rule 1013,[6] granting Motion "To Correct Docket Entries and Related Relief," and striking the docket entry of December 1, 1977 entering final judgment. Vacating those orders leaves intact the docket entry of final judgment on December 1, 1977 and the propitious appeal from that judgment. We affirm that final judgment. Orders dated November 22, 1977 and February 9, 1978, vacated. Judgment entered December 1, 1977, affirmed. Costs to be divided equally. NOTES [1] Maye H. Irwin. [2] Robert Allen Sapero and Sapero & Sapero. [3] Bel Air Plumbing & Heating Contractors, Inc.; Fielden Lovelace and Mary Lovelace. [4] Although the appellants' brief alludes to the fact that appellee may have suffered no loss by virtue of a subsequent sale, the issue of unjust enrichment was not pressed by appellants. Certainly the evidence did not prove that the deposit retained exceeded appellee's damage, especially in light of the 7% deposit. Chas. H. Steffey, Inc. v. Derr, 275 Md. 121, 125-126 (1975). [5] "Please enter an Appeal to the Court of Special Appeals of Maryland on behalf of the Plaintiffs in the above captioned matter from the following: 1. The Trial Court Order of February 10, 1978, striking the Order of Appeal filed December 9, 1977. 2. The Trial Court Order of February 10, 1978, striking the Docket Entry of Judgment Absolute on December 1, 1977, which was preserved by the Order of Appeal filed on December 9, 1977. 3. The entry on November 22, 1977, of Judgment Absolute, Nunc Pro Tune to September 29, 1977, which was preserved by the Order of Appeal filed on December 9, 1977. 4. The decision of the Trial Court on the merits entered Judgment Nisi Causa September 23, 1977, and made Judgment Absolute on either September 29, 1977, November 22, 1977, December 1, 1977, or February 10, 1978." [6] The precise limitations and express reasons upon which a trial court has the authority to strike an appeal should not pass unnoticed. "If the order for appeal has not been timely filed or if the clerk of the lower court has prepared the record as required by Rule 1026 (Record on Appeal) and the appellant has neglected or omitted to pay for such record, or has failed to deposit with the clerk of the lower court the filing fee as required by section d of Rule 1011 (How Appeal To Be Taken), or by reason of any other neglect or omission on the part of the appellant, the record has not been transmitted to this Court within the time prescribed pursuant to Rule 1025 (Record — Time for Transmitting), the lower court may sua sponte or upon motion, strike the order for appeal and take all proceedings as if such order for appeal had not been filed." Md. Rule 1013.

FILED NOT FOR PUBLICATION MAR 29 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT EDWIN GIOVANNI RIVAS BOLVITO, No. 09-70555 Petitioner, Agency No. A076-858-638 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 8, 2011 ** Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges. Edwin Giovanni Rivas Bolvito, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for an abuse of discretion, * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), we deny the petition for review. The BIA properly construed Bolvito’s October 10, 2008, filing as a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). The agency did not abuse its discretion in denying Bolvito’s third motion to reopen as untimely because he filed the motion more than nine years after his removal order was entered, see 8 C.F.R. § 1003.23(b)(4)(ii) (motion to reopen must be filed within 180 days of removal order entered in absentia), and Bolvito failed to show that he acted with the due diligence required to warrant equitable tolling of the filing deadline, Iturribarria, 321 F.3d at 897 (a petitioner may obtain equitable tolling based on ineffective assistance of counsel as long as he “act[ed] with due diligence in discovering the deception, fraud, or error”). PETITION FOR REVIEW DENIED. 2 09-70555 

268 S.W.2d 801 (1954) ADAIR COUNTY v. URBAN et al. No. 43498. Supreme Court of Missouri. En Banc. April 12, 1954. Robert S. McKenzie, Stubbs, McKenzie, Williams, Merrick & Gibson, Kansas City, for appellants. W. C. Frank, Pros. Atty., A. D. Campbell, P. J. Fowler, E. M. Jayne, Kirksville, for respondent. CONKLING, Chief Justice. This action was brought by Adair County, Missouri, as plaintiff, against the defendants, William Urban, Jr., a contractor, and The Travelers Indemnity Company, the surety on Urban's performance bond, for damages for the alleged breach of Urban's contract to erect a bridge for the County across the Chariton River at Yarrow, Missouri. The action seeks damages of $20,000. We herein continue to denominate the parties as plaintiff and defendants. The first trial of the case resulted in a verdict for plaintiff for $5,000. The County's motion for new trial, filed after that first verdict, was sustained on the sole ground that the sum awarded as damages was inadequate. From the order granting that new trial defendants appealed. The trial court's judgment and order granting that new trial was affirmed by this Court and the cause was remanded. The issue before us on that first appeal was whether *802 plaintiff made a case for the jury. We held that plaintiff made a jury case. Adair County v. Urban, Mo.Sup., 250 S.W.2d 493. When the cause again came on in the circuit court of Adair County, the defendant Urban moved for a change of venue on the sole ground that plaintiff had an undue influence over the mind of the judge who was alleged to be prejudiced. When the motion for change of venue came on to be considered and ruled, the judge of the circuit court of Adair County, Honorable Tom B. Brown, disqualified himself to further hear the cause and requested Honorable Walter A. Higbee, Judge of the Thirty-seventh Judicial Circuit, to sit in Adair County to hear and try the cause. When the cause came on regularly for trial in Adair County before Judge Higbee as special judge and a jury the second trial of the case resulted on September 22, 1952, in a judgment in favor of the county in the sum of $4,000. Judgment for that amount was entered accordingly. Defendants did not file a motion for new trial, or any other after-trial motion. The plaintiff, however, filed a motion for new trial "in so far only as to the amount of damages sustained by plaintiff," was concerned contending again that the verdict of $4,000 was inadequate, and, in the alternative, plaintiff filed also a separate motion for new trial of all the issues in the case. The grounds of the latter motion are later noticed herein. The above motions were set for hearing on October 10, 1952. Defendants' counsel had notice that the above motions filed by plaintiff were so set for hearing but did not appear in court on that date. On October 10, 1952, and within thirty days of the entry of the judgment, the trial court considered and overruled the above alternative motions filed by plaintiff, and thereupon, of the court's own motion, entered the following order: "Order Setting Aside Verdict. Acting by authority and in accordance with the provisions of Section 510.370, the court, on its own motion, doth hereby set aside the verdict of the jury returned in the above numbered case and the judgment entered thereon for the reason that, in the opinion of the court, the motion for change of venue filed by the defendant, William Urban, Jr., on August 23, 1952, divested the Circuit Court of Adair County, Missouri, of jurisdiction to further consider and try said cause." Defendants have appealed from the trial court's above quoted order the effect of which was to grant a third trial of the case. This appeal has not come to us upon a full transcript of the record, or upon the merits, but upon an agreed "Statement Of The Case As Transcript On Appeal," Section 512.120 RSMo 1949, V.A.M.S. It is therein stipulated that upon this appeal the points to be relied on by the appellants are: (1) that Urban's above motion for change of venue did not divest the circuit court of Adair County of jurisdiction of the cause; (2) that the above quoted order setting aside the judgment was without notice to defendants and was therefore void, and (3) that if the motion for change of venue divested the circuit court of Adair County of jurisdiction of the cause, that the court's failure to send the cause to another circuit was an error of which plaintiff cannot now complain. Those are the points which were briefed and argued by defendants when this cause was in Division 2 of this Court. In Division 2 plaintiff contended (and now contends) that defendants were not aggrieved by the above quoted order of the court entered on October 10, 1952. Division 2 transferred this cause to Court en Banc. Defendants filed, in Court en Banc, an additional brief in the cause, and now contend that (1) they are "aggrieved" and are therefore entitled to appeal from the order of the trial court setting aside the jury's verdict and the judgment and granting plaintiff a new trial, (2) that the filing of the above motion for change of venue did not divest the Adair County circuit court of jurisdiction of the cause, and that Judge Higbee was without authority to set aside the verdict and judgment upon the ground stated in the order of October 10, *803 1952, (3) that the order of October 10, 1952, was void because defendants had no opportunity to be heard by the court with respect to the entry of such an order. We first consider the validity of the reason assigned by Judge Higbee as the basis for his order entered on October 10, 1952, i. e., that the motion for a change of venue divested the circuit court of Adair County of jurisdiction of this cause. Did the allegation of the motion for change of venue on the sole ground that plaintiff had an undue influence over the mind of the judge and that because thereof the judge was prejudiced, divest the circuit court of Adair County of jurisdiction? Did such allegation divest the circuit court of jurisdiction, or did it divest only the judge of that circuit court of power to proceed? In Section 15 of Article V of the Constitution of 1945, V.A.M.S., it is provided that, "Any circuit judge may sit in any other circuit at the request of a judge thereof." Where, as here, the sole ground of the motion for change of venue is the allegation of a litigant that the judge of the court is prejudiced, it is recognized that the above self-enforcing constitutional section saves the litigants "the annoyance, delay and expense attending a trial in another circuit," and empowers the regular judge of a circuit to request another circuit judge to come in and hear the cause. Pogue v. Swink, Mo.Sup., 261 S.W.2d 40. Clearly the affidavit of prejudice filed against the judge of the circuit court of Adair County only, and not against the inhabitants of that county, did not divest the court "of jurisdiction to further consider and try the cause" and the judge of that court properly requested the judge of another circuit, Judge Higbee, to sit in Adair County and try the cause. State v. Emrich, 361 Mo. 922, 237 S.W.2d 169(1), Hayes v. Hayes, Mo.Sup., 252 S.W.2d 323(17), State ex rel. Book v. Goodman, Judge, Mo.Sup., 263 S.W.2d 409, 412. It may be here observed that the trial court overruled both of plaintiff's motions. In so doing the court denied plaintiff a third trial of this case on the following asserted grounds stated in the motions, that (1) the $4,000 damages awarded by the jury were inadequate and against greater weight of the evidence; (2) the verdict was the result of misunderstanding or misconception or prejudice on the part of the jury; (3) erroneous or conflicting or confusing instructions were given; (4) the court erred in accepting the jury's verdict; (5) the verdict was against the weight of the evidence, and (6) the court erred in not permitting plaintiff to offer more instructions. The new trial having been granted within the thirty days following the judgment, the court could have set aside the judgment for any legal reason for which a new trial may be granted, Section 510.330, whether such legal reason be contained within either of the written motions or not. But here the court did not set aside the judgment on any ground stated in either motion, nor was it set aside upon any valid legal ground. The assignments contained within the written motions were overruled. The reason assigned in the order setting aside the judgment and therefore granting the new trial was not a legal reason. The trial court therefore erred in setting aside the verdict and judgment in awarding the new third trial. We must conclude therefore that the circuit court of Adair County was not divested of jurisdiction to try and determine the cause, that the reason assigned by Judge Higbee in his order of October 10, 1952, granting the new trial was not a valid legal reason, that the new trial was not validly ordered therefor, and the court erred in entering the order of October 10, 1952. We come now to a consideration of whether defendants could appeal from the above order of October 10, 1952, setting aside the verdict and judgment rendered on September 22, 1952. Plaintiff contends that defendants are not aggrieved by the order setting aside the instant verdict and judgment. The effect of that order was to grant plaintiff a third trial of the cause. An appeal may be taken from an order the effect of which is to grant a new trial. Plaintiff argues that *804 since the order of October 10, 1952, setting aside the verdict and judgment vacated a judgment against defendants and relieved defendants of any immediate liability from the second trial judgment that the defendants are not presently aggrieved adversely in their legal rights by this particular judgment in their pecuniary or property rights or in their interests. We examine that contention in the light of all the facts. It appears that the amount of the recovery which plaintiff seeks in this action is $20,000. The first trial resulted in a verdict and judgment for plaintiff for $5,000. Plaintiff was thereafter awarded a new trial of the case upon the ground that the damages of $5,000 found by the jury was inadequate under the evidence. Defendants thereupon appealed. Upon that appeal the sole question determined was that plaintiffs evidence made a jury case upon the issue of plaintiffs right to recover against defendants in some amount. The second trial of the cause resulted in another verdict and judgment for plaintiff, this time in the sum of $4,000. From the fact that defendants thereafter filed no after-trial motion of any character it is obvious that defendants desired not to further litigate the case, nor to accrue more costs, but that defendants desired to abide that conclusion of the litigation, pay the judgment and costs, and their litigation expenses, including attorneys' fees, and to close their books as to that liability and extinguish it. This Court, in 250 S.W.2d 493, had ruled that a liability existed against defendants on plaintiff's cause of action in an amount to be determined by a jury. By their failure to file any after-trial motion it is both obvious and clear that defendants concluded they had attained a position in the litigation which was so advantageous to them that they preferred to terminate the litigation, to pay that judgment and the accrued costs and discharge their liability to plaintiff, rather than incur the liability of additional costs, additional attorneys' fees and expenses, and a judgment for a sum possibly much in excess of $4,000. Under these circumstances was the effect of the unquestionably erroneous order of October 10, 1952, such as to make defendants an "aggrieved" party within Section 512.020 of our statutes authorizing appeals, notwithstanding that such order set aside the $4,000 second trial judgment? We have concluded that defendants were aggrieved. Arguing that defendants are not aggrieved because the court's order set aside a judgment against defendants, plaintiff cites and relies upon McClain v. Kansas City Bridge Co., 338 Mo. 7, 11, 88 S.W.2d 1019, 1021. That and other cases rule that the above numbered appeal statute means that the appealing litigant "must be aggrieved * * * by that particular judgment," and that the judgment must affect some pecuniary or property right or some interest. In State ex rel. Consumers Public Service Co. v. Public Service Commission, 352 Mo. 905, 180 S.W.2d 40, 44, we said: "`Under the statute respecting the right of appeal, we are of (the) opinion that the proper general rule to be applied is that any party to an action or proceeding having an interest recognized by law in the subject-matter, which interest is injuriously affected by the judgment, is a party aggrieved within its meaning.'" In the McClain case, supra, the dependents of the deceased filed a claim for compensation. The Workmen's Compensation Commission took jurisdiction of the claim, heard the evidence and made an award in favor of the dependents. Upon appeal from the Commission the circuit court entered the judgment that "This cause is reversed for want of jurisdiction under state law." The judgment or award there was thus reversed outright. In ruling that case this Court stated the question to be determined in these words: "Can a party to an action appeal from a judgment which completely determines that particular action in his favor? * * * As the case stood before the appeal was granted, this particular action was finally determined in appellant's favor." We there ruled the Bridge Company was not aggrieved for the judgment of the circuit court completely determined *805 that case in the Bridge Company's favor. The instant facts readily distinguish this case from the McClain case. Judge Higbee's order of October 10 did not completely determine this case in favor of these defendants, for its effect was to merely grant a new trial of the cause. As a result of that order instant defendants had to try the case anew. The Bridge Company in the McClain case contended that the circuit court's order was appealable because that order deprived it of the right to defend before the Workmen's Compensation Commission, but here instant defendants do not seek further opportunity to re-litigate the instant issues. On the contrary, instant defendants seek to have their liability to plaintiff terminated and this litigation ended by the reinstatement and their satisfaction of the $4,000 judgment. The McClain case, supra, is not determinative of these facts now before us. In Stith v. St. Louis Public Service Co., Mo.Sup., 251 S.W.2d 693, where defendant, after verdict for plaintiff, moved for a new trial, and the court granted a new trial as to the issue of damages only and overruled defendant's motion as to all other particulars, we held that the new trial ordered was one for which defendant had not asked in its motion and one which plaintiff did not seek and was, thus, on court's own motion, and that the court's order constituted an order granting a new trial from which both plaintiff and defendant, as aggrieved parties could appeal. The new trial effected and compelled by Judge Higbee's instant order was one neither sought nor asked nor desired by defendants. Nor did plaintiff ask that the judgment be set aside on the ground that the motion for change of venue had divested the Adair County circuit court of jurisdiction of the case. From defendants' failure to file any after-trial motion it can be concluded only that defendants desired to abide the result of the second trial and judgment, to pay the judgment and costs and their other incurred expenses of litigation and thus to terminate their liability to plaintiff. As above noted, Judge Higbee had jurisdiction to have set aside the judgment by an order based upon a valid reason for the entering of such an order. The judgment was not set aside on the ground that the verdict was against the greater weight of the evidence, nor upon any valid basis whatever. Instead, the order of Judge Higbee was founded upon an invalid and erroneous basis. Judge Higbee did a thing he then had jurisdiction to do, (set aside a judgment) but his action was founded upon a basis rendering such exercise of jurisdiction ineffective and erroneous. By this particular order setting aside the instant judgment defendants were aggrieved for, upon an invalid basis and for a wholly illegal reason, the instant order of October 10, 1952, took from defendants their attained position in the litigation and deprived them of their right to conclude the litigation and forever terminate their liability upon plaintiff's cause of action by paying the judgment entered together with the costs. In the maintenance of their attained position in the litigation the defendants had a right and an interest in the subject matter which the law must recognize, and upon which the trial court's order adversely acted. Under these circumstances this particular order adversely and injuriously affected defendants' interest and defendants were aggrieved within the meaning of the appeal statute. It is unnecessary to discuss or rule the remaining contention made by defendants. For reasons above appearing the order entered in this cause on October 10, 1952, setting aside the verdict and judgment of September 22, 1952, is reversed. The cause is remanded to the circuit court with directions to reinstate the judgment entered in the cause on September 22, 1952. It is so ordered. ELLISON, HYDE, HOLLINGSWORTH, and DALTON, JJ., concur. LEEDY and TIPTON, JJ., dissent and adopt Divisional opinion as dissenting opinion. *806 Divisional opinion of BARRETT, Commissioner. This is an action by Adair County against William Urban, Junior, a contractor, and The Travelers Indemnity Company, his surety, for damages for breach of a contract to erect a bridge across the Chariton River. The county claims damages in the sum of $20,000. Upon the first trial the jury returned a verdict for $5,000 which the trial court, upon the county's motion for a new trial, set aside as inadequate. The defendants appealed and the trial court's judgment was affirmed and the cause remanded. Adair County v. Urban, Mo.Sup., 250 S.W.2d 493. After the cause was remanded the defendant, Urban, petitioned for a change of venue for the asserted reason that the plaintiff had an undue influence over the mind of the judge who was prejudiced. When the application for a change of venue was heard the judge disqualified himself and requested Honorable Walter A. Higbee, Judge of the 37th Judicial Circuit, to hear the cause. The case came on for trial before Judge Higbee and the defendants objected to the jurisdiction of Adair County upon the ground that the cause should have been sent to another county in an adjoining or next adjoining circuit. Judge Higbee overruled the defendants' objections and upon the second trial there was a judgment in favor of the county in the sum of $4,000. The defendants did not file a motion for a new trial, or any other after trial motions. The plaintiff, however, filed a motion for a new trial as to the amount of the damages only, or in the alternative a motion for a new trial as to the whole cause. The grounds of the alternative motions were inadequacy of the verdict, error in the giving of instructions and error in the acceptance of the jury's verdict which, according to the plaintiff and the jurors, resulted from the jury's misunderstanding and confusion and was not in the total sum intended by the jury, to wit, $12,166.66, or the total amount of the surety bond, $8,166.66, plus the sum of $4,000 found against the contractor. The motions were set for hearing on the 10th day of October, 1952, and the defendants had notice of the fact but did not appear. On the date set, which was within thirty days of the entry of the judgment, the trial court considered and overruled the alternative motions but, on the court's own motion, entered the following order: "Order Setting Aside Verdict. Acting by authority and in accordance with the provisions of Section 510.370, the court, on its own motion, doth hereby set aside the verdict of the jury returned in the above numbered case and the judgment entered thereon for the reason that, in the opinion of the court, the motion for change of venue filed by the defendant, William Urban, Jr., on August 23, 1952, divested the Circuit Court of Adair County, Missouri, of jurisdiction to further consider and try said cause." The defendants have appealed from the order granting the new trial. The appeal is not upon a full transcript of the record, or upon the merits of the entire cause, but upon an agreed "Statement Of The Case As Transcript On Appeal," V.A.M.S. § 512.120, and consists of the facts and statements heretofore set forth. In the agreed statement the appellants stipulated that the points relied upon are: (1) that Urban's motion for change of venue did not divest Adair County of jurisdiction, (2) that the order of the court setting aside the judgment, on the court's own motion, was without notice to the defendants and, therefore, void, and (3) that if the motion for change of venue divested the Circuit Court of Adair County of jurisdiction that the court's failure to send the cause to another circuit was an error of which the plaintiff could not complain. And those are the points briefed and argued here as grounds for reversing the judgment and remanding the cause with directions to reinstate the judgment for $4,000. In so far as it concerns this appeal the statute, V.A.M.S. § 512.020, provides that "Any party to a suit aggrieved by any judgment of any trial court in any civil *807 cause * * * may take his appeal to a court having appellate jurisdiction from any order granting a new trial * * * or from any final judgment in the case * * *." The statute says "from any order granting a new trial," consequently it is assumed that the appellants may maintain the appeal provided they are "aggrieved" by the order within the meaning of the statute. In general "aggrieved" means "adversely affected in respect of legal rights; suffering from an infringement or denial of legal rights." Webster's New International Dictionary. The infringement or denial must be direct, the rights adversely affected must not be collaterally or incidentally involved, and, more specifically, the judgment must affect some pecuniary or property right or interest. American Petroleum Exchange v. Public Service Commission, 238 Mo.App. 92, 176 S.W.2d 533, 534. Furthermore, the statute means that the appealing litigant "must be aggrieved or injured by that particular judgment". McClain v. Kansas City Bridge Co., 338 Mo. 7, 11, 88 S.W.2d 1019, 1021. As a general rule a litigant, either plaintiff or defendant, is not aggrieved and may not appeal from an order or judgment in his own favor, 4 C.J.S., Appeal and Error, § 183(3), page 359, his legal rights are not infringed or adversely affected by a favorable order or judgment. To illustrate, a judgment of dismissal, entered at the proper time, does not so adversely affect the defendant's rights that he is aggrieved, within the meaning of the statute. McCormack v. Dunn, 232 Mo.App. 371, 106 S.W.2d 933. And neither the plaintiff nor the defendant is adversely affected when the trial court sustains either of their motions for a new trial. Luethans v. Lahey, Mo.App., 237 S.W.2d 209; Long Mercantile Co. v. Saffron, Mo.App., 104 S.W.2d 770; Vendt v. Duenke, Mo.App., 210 S.W. 2d 692. So when both the plaintiff and defendant file motions for a new trial and the trial court overrules the defendant's motion but sustains the plaintiff's motion the defendant is not aggrieved. Deiermann v. Bemis Bros. Bag Co., 144 Mo.App. 474, 129 S.W. 229. Likewise, a party is not aggrieved when his complaint in the appellate court is that the verdict rendered against him is not as large as it should have been. Western States Portland Cement Co. v. Bruce, 160 Mo.App. 246, 142 S.W. 783. In Humphries v. Shipp, 238 Mo.App. 985, 194 S.W.2d 693, the plaintiff brought an action in conversion, the defendant filed a counterclaim. There was a verdict against the plaintiff on his cause of action and a verdict and judgment in favor of the defendant on his counterclaim in the sum of $118.50. Upon the plaintiff's appeal it was held that the plaintiff was not aggrieved when his complaint was that the judgment on the counterclaim was not as large as it should have been. A litigant is aggrieved, however, and may appeal, even though he has filed no after trial motions, when his complaint is that his adversary, as a matter of law, is not entitled to a judgment in any event and that the trial court should have so declared. In Nelson v. Kansas City, 360 Mo. 143, 227 S.W.2d 672, the plaintiff had a verdict for his personal injuries for $1,000. The trial court sustained the plaintiff's motion for a new trial on the ground of inadequacy of the verdict. Even though the defendant had filed no after trial motions it was held that the defendant could raise and the court would consider the question of whether the plaintiff had a submissible case. The rule is stated in Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73, 77, in this language, "Defendant filed no after trial motions, and, therefore, we are precluded from reviewing any error occurring in the trial of the case other than that inherent in every case that comes to an appellate court on appeal, to wit: whether a submissible case was made." Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456, 460, is illustrative of the rule. There the plaintiff instituted an action for $50,000 damages for personal injuries. After the case was submitted, but before the jury returned a verdict, the court permitted the plaintiff to enter a voluntary dismissal. Upon the defendant's appeal it was contended, among other things, that he was not aggrieved. But the statute as to voluntary dismissals then provided, M.R.S.A. § *808 1111, that "The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward." (See V.A.M.S. § 510.130.) Under this provision the appellant contended that after submission to the jury the court had no power to enter a voluntary dismissal and upon the plaintiff's entering a dismissal the defendant was entitled, as a matter of law, to a judgment of dismissal with prejudice—a judgment that would completely adjudicate the plaintiff's claim for $50,000. In holding that the appellant was aggrieved and could appeal this court said, "While the judgment on its face appears to be in appellant's favor, yet if, under the circumstances shown by the record, the appellant was entitled, as a matter of law, to a judgment of dismissal `with prejudice' or on the merits, barring a further prosecution of the cause, and, if the judgment entered does not so provide, then error, in prejudice of appellant's substantial rights, has been committed against him, in that he did not receive all to which he was legally entitled." But it will be observed that the appellants here do not contend that the plaintiff does not have or did not make a submissible case. On the contrary, it is tacitly conceded that the plaintiff has and made a submissible case and is entitled to recover in some sum. The appellants have not appealed upon a full transcript of the record or upon the merits of the case, and they do not contend that they are entitled to an order or judgment absolutely discharging them, as a matter of law, of all liability upon the contract and suretyship, or, conversely, they do not claim and contend that the plaintiff's claim is or should be completely extinguished for any reason. They are in the exceptional and anomalous position of asking that an order granting a new trial, in ordinary circumstances a favorable order, be set aside and that a judgment imposing liability be entered in the sum of $4,000. It may have been due to confusion on the part of the jury but the second trial resulted in a smaller verdict than the first trial and, while it is extremely unlikely, it is possible that a third trial may result in a still smaller verdict, or, from all that appears from this record, no verdict at all. In any event, it is difficult to demonstrate upon this record that the appellants are aggrieved or injured "by that particular judgment," they are not aggrieved in a legal sense within the meaning of the statute because of the possibility of being subjected to another trial and greater liability. In McClain v. Kansas City Bridge Co., supra, the deceased fell from a pile driver on a barge on the Missouri River. His parents, as dependents, filed a claim for compensation and the Workmen's Compensation Commission took jurisdiction of the claim and made an award in favor of the dependents. Upon appeal to the circuit court the trial judge entered this judgment, "this cause is reversed for want of jurisdiction under state law." Upon appeal the bridge company contended that it was aggrieved in two respects, (a) that it was deprived of the right to defend before the Workmen's Compensation Commission and (b) that as a result of the judgment it would be forced to defend against an action under the federal laws relating to maritime torts. In holding that the appellant bridge company was not aggrieved the court said, "As the case stood before the appeal was granted, this particular action was finally determined in appellant's favor. We cannot see how appellant is aggrieved in any manner, as far as the action pending in the circuit court is concerned, by being deprived of the opportunity to further litigate it. Neither do we agree with the theory that appellant is aggrieved in the sense that term is used in the statute, by the possibility it will be required to defend another action before some other tribunal. The statute, properly construed, means that a litigant must be aggrieved or injured by that particular judgment, or, as section 1023, supra, says, that error was committed by the trial court `against the party,' before he should have the right to appeal." Prudence may dictate the discharge of the appellants' obligations in this case by the payment of $4,000 and, depending on future events and *809 the outcome of another trial, the appellants may indeed become aggrieved, but they are not aggrieved by the particular judgment in the circumstances involved upon this appeal. From the appellants' point of view a retrial of this cause may eventually bring about an apparent unjust result, but upon the record involved in this appeal the present order relieves them of any immediate liability and they are not presently aggrieved adversely in their legal rights by the particular judgment in their pecuniary or property rights or interests. McClain v. Kansas City Bridge Co., supra; American Petroleum Exchange v. Public Service Commission, supra; Deiermann v. Bemis Bros. Bag Co., supra; McCormack v. Dunn, supra; Vendt v. Duenke, supra. Since the appellants are not "aggrieved" within the meaning of the statute they are not entitled to maintain this appeal and, accordingly, the appeal is dismissed. WESTHUES and BOHLING, CC., concur.

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 9, 2005 Charles R. Fulbruge III Clerk No. 04-50441 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELIZABETH LOPEZ; FELIX VARGAS, Defendants-Appellants. Appeals from the United States District Court for the Western District of Texas USDC No. 2:03-CR-86-1-AML Before JONES, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM:* Elizabeth Lopez and Felix Vargas appeal their convictions for possession of five or more kilograms of cocaine with intent to distribute and importation of five or more kilograms of cocaine into the United States. Lopez and Vargas were arrested after a checkpoint inspection uncovered 8.81 kilograms of cocaine hidden in the van in which Lopez and Vargas were traveling. Finding no error as to either defendant, we AFFIRM. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Lopez contends that the testimony of Jacky Gomez concerning conversations that he had with Vargas during which Vargas admitted facts surrounding the offense violated her Sixth Amendment right to confront witnesses pursuant to Bruton v. United States, 391 U.S. 123 (1968). As Lopez did not object to the admission of the allegedly improper testimony, review is for plain error. See United States v. Cartwright, 6 F.3d 294, 300 (5th Cir. 1993). The statements made by Gomez did not facially implicate Lopez. Thus, Bruton is inapplicable. See United States v. Walker, 148 F.3d 518, 522 (5th Cir. 1998). Moreover, there was significant evidence from which the jury could infer that Lopez was an active participant in the operation, including her admitted use of false addresses to obtain a Georgia driver’s license and to register and insure two different vehicles, which she then drove from Georgia to Mexico; her implausible explanation regarding the circumstances of both trips to Mexico; the inconsistent statements she gave to agents at Eagle Pass; her demeanor during the inspection; and the large quantity of drugs found in the van. See, e.g., United States v. Villarreal, 324 F.3d 319, 325 (5th Cir. 2003). Given the ample evidence supporting the verdict, any Bruton violation would have been at most harmless error. See United States v. Nutall, 180 F.3d 182, 188 (5th Cir. 1999). Vargas argues first that the district court violated his Sixth Amendment right of confrontation by not allowing him to ask 2 Gomez what his attorney told him he could expect his punishment to be without an agreement to cooperate. We review the district court’s limits on cross-examination for abuse of discretion. United States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993). Vargas was able to elicit from Gomez that he had entered into a plea agreement with the Government and that, under the agreement, he could receive a reduced sentence in exchange for testifying. The jury heard ample testimony to allow it to infer that Gomez was biased. Accordingly, there was no Sixth Amendment violation or abuse of discretion. See id. Finally, Vargas complains that the district court’s deliberate ignorance instruction was improper because it was appropriate only as to Lopez but did not exclude the possibility that the jury would apply it to him. The parties dispute whether Vargas preserved this objection. However, even under a harmless error standard, Vargas’s claim is without merit. The district court’s charge was a correct statement of the law. See United States v. Reissig, 186 F.3d 617, 619 (5th Cir. 1999). Further, there was substantial evidence of Vargas’s actual knowledge, including the testimony of Gomez as well as the evidence of Vargas’s demeanor and actions during the inspection. Even if the charge was incorrect, any error was harmless. See United States v. Mendoz-Mendina, 346 F.3d 121, 134-35 (5th Cir. 2003). 3  For the foregoing reasons, the judgment of the district court is AFFIRMED. 4 

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 16, 2009 Decided June 15, 2010 Before JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 08-3753 UNITED STATES OF AMERICA, Appeal from the United States Plaintiff-Appellee, District Court for the Northern District of Indiana. v. No. 06 CR 00023 VERNELL A. BROWN, Defendant-Appellant. Theresa L. Springman, District Judge. ORDER On May 24, 2006, Vernell Brown was indicted, along with Marlyn Barns, Melvin 08-3753 Page 2 Taylor, Michael Alexander, Theodis Armstead, and Herbert Hightower, for conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846. Brown initially proceeded to trial with Barnes, Taylor and Armstead. However, several days into the trial, the district court stopped the proceeding and declared a mistrial to allow Brown, Taylor, and Armstead to sever their case from Barnes. Brown pleaded guilty before proceeding to trial again. As part of the plea agreement, the government agreed to recommend a sentence at the low-end of the guideline range or at the statutory minimum of 120 months if the guidelines fell below the minimum. The district court sentenced Brown to 120 months, the statutory minimum. Brown now appeals, but his appointed counsel has moved to withdraw because he cannot identify any nonfrivolous argument to pursue on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Brown opposes counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief and Brown’s response. See United States v. Schuch, 289 F.3d 968 (7th Cir. 2002); CIR. R. 51(b). On May 5, 2006, the six individuals indicted in this case were arrested as they arrived at the site of a planned drug heist where they intended to steal numerous kilograms of cocaine. Unknown to the defendants, the couriers for the target drug shipment, who orchestrated this drug heist with the defendants, were a confidential 08-3753 Page 3 informant and an undercover agent. The shipment of drugs did not exist. All of the planning meetings and pre-heist preparations were captured on audio and video tapes. Alexander and Hightower pleaded guilty early on in the proceedings. The remaining defendants, including Brown, proceeded to trial. Shortly before the beginning of the trial, the government filed a motion pursuant to 21 U.S.C. § 851(a)(1) informing Brown that the government intended to enhance his sentence based on his prior conviction for possession of a narcotic controlled substance in the state of Michigan which resulted in an eighteen-month sentence. Brown did not raise any objections to this motion. Early in the trial, Armstead, Brown, and Taylor moved for a mistrial because Barnes agreed to testify on their behalf. The district court granted the mistrial and severed the defendants’ trials. Barnes proceeded to trial alone and was found guilty. In March 2008, shortly before his trial was scheduled to start again, Brown entered into a plea agreement with the government. One key component of the plea agreement was that it allowed Brown to plead guilty to an amount of drugs less than what the indictment charged. This reduction in drug quantity decreased the statutory mandatory minimum sentence from twenty years to ten years. Under the drug quantity in the plea agreement the statutory maximum sentence remained life in prison. The government agreed to recommend that the district court sentence Brown at the low end of the guidelines range or to the statutory minimum of 120 months if the guidelines 08-3753 Page 4 range did not meet that minimum. In the plea agreement, Brown acknowledged that the minimum sentence he could receive was ten years because he had a prior conviction for a felony drug offense which had become final before the time of the agreement. Brown made the same acknowledgment in open court during his change of plea hearing. The plea agreement also contained an express waiver of Brown’s appeal rights: “I expressly waive my right to appeal or to contest my conviction and my sentence and any restitution order imposed or the manner in which my conviction or sentence or the restitution order was determined or imposed, to any Court on any ground, including any claim of ineffectively assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation.” In May 2008, approximately two months after entering a plea of guilty, Brown moved to withdraw his guilty plea. Brown stated that he was withdrawing his plea and all prior testimony because he entered the guilty plea “under duress and feared life long imprisonment.” After several months of hearings, affidavits, and briefing, the district court found that Brown was not coerced into entering the plea agreement. In assessing Brown’s argument, the district court analyzed the potential sentences Brown could have faced had he gone to trial and the sentencing recommendations in the plea agreement. The district court found that Brown’s attorney was correct in telling Brown that if a jury found him guilty and held him responsible for the amount of drugs charged in the 08-3753 Page 5 indictment, Brown would face a minimum twenty-year sentence and could face life in prison. The district court based its calculations of the minimum and maximum sentences on the government’s notice under 21 U.S.C. § 851 seeking an increased statutory minimum sentence due to Brown’s prior possession conviction in Michigan. In the brief filed pursuant to Anders, counsel first asserts that Brown cannot raise any meritorious argument challenging his conviction because he entered into an unconditional, knowing, and voluntary plea of guilty pursuant to a plea agreement. Brown’s reply makes two arguments that are intertwined and both attack the validity of the plea agreement as a knowing and voluntary waiver of his rights. The standard of review applicable to whether a guilty plea is knowing and voluntary is “whether looking at the total circumstances surrounding the plea, the defendant was informed of his or her rights.” United States v. Mitchell, 58 F.3d 1221, 1224 (7th Cir. 1995). In reviewing whether a defendant was informed of his rights and the subsequent plea agreement was voluntary, we review the plea under the requirements of Federal Rule of Criminal Procedure 11. To comport with Rule 11, the district court must advise the defendant of his constitutional rights, the charges against him, the factual bases for the plea, and the minimum and maximum penalties. United States v. Garcia, 35 F.3d 1125, 1132 (7th Cir. 1994). These safeguards help ensure that the defendant’s plea is knowing and voluntary. Id. 08-3753 Page 6 Brown argues that he did not waive his right to appeal because his plea of guilty was not knowing and voluntary. He asserts that his counsel and the district court misinformed him about the statutory minimum and maximum penalties because his sentence should not have been enhanced under 21 U.S.C. § 841 on the basis of his Michigan conviction. This argument is unavailing. Prior to trial, the government filed a motion pursuant to 21 U.S.C. § 851 informing Brown of the government’s intention to seek an enhanced sentence based on Brown’s prior conviction for possession of cocaine in Michigan. At that time, Brown did not object. While there is some discrepancy regarding whether Brown’s eighteen-month sentence was for incarceration or probation, there is no argument in the record to counter the government’s assertion that the Michigan conviction was a state felony conviction. Brown contends that because the federal system does not treat mere possession as a felony, a felony conviction for simple possession in state court cannot be used to enhance the statutory minimum sentence under 21 U.S.C. § 841(b)(1)(B). We are not aware of any court holding that a state felony drug conviction for possession does not trigger the increased mandatory minimum in 21 U.S.C. § 841(b)(1)(B) because simple possession is not a felony in the federal system. Based on the record before us and the prevailing state of the law known to defense counsel and the district court at the time of the plea agreement, Brown did not receive misinformation about his potential sentencing liability. Therefore, his argument that he 08-3753 Page 7 was coerced into pleading guilty due to misinformation about the potential sentences he faced is without merit. Counsel also asserts that Brown cannot raise any appealable issues with regard to the district court’s denial of his motion to withdraw his plea of guilty. “A defendant does not have an absolute right to withdraw a plea before sentencing, although the court may allow him to do so if he has a fair and just reason for doing so.” United States v. Chavers, 515 F.3d 722, 724 (7th Cir. 2008). We agree with counsel that Brown did not demonstrate a fair and just reasons for withdrawing his plea of guilty. Brown argued that he entered into his plea agreement under duress because he was afraid of receiving a life sentence. However, the district court properly found that defense counsel’s candid evaluation of Brown’s potential sentencing liability if he went to trial was not coercion nor did it create impermissible duress. Therefore, any argument that the district court erred by not allowing Brown to withdraw his guilty plea would be frivolous. Lastly, counsel asserts that any argument challenging Brown’s sentence would be frivolous because Brown specifically waived his right to appeal his sentence. When a defendant enters into a knowing and voluntary plea of guilty pursuant to a plea agreement that contains an explicit waiver of the defendant’s right to appeal his sentence, this Court will honor that waiver and refuse to review the sentence, unless the 08-3753 Page 8 sentence ultimately received was in excess of the statutory maximum sentence or was the result of the district court’s reliance on a constitutionally impermissible factor such as race. Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1998). The waiver in the plea agreement was explicit and, for the reasons discussed above, we agree with the district court that it was entered into voluntarily and knowingly. The sentence does not exceed the statutory maximum and there is no evidence that the district court relied on impermissible factors in coming to a sentence. Therefore, in light of this explicit waiver, any argument regarding the sentence would be frivolous. For the reasons set forth above, we GRANT the motion to withdraw and DISMISS Brown’s appeal. 

339 F.Supp. 695 (1972) Iberia HAMPTON, Administratrix on behalf of the Estate of Fred A. Hampton, Deceased, Plaintiff, v. The CITY OF CHICAGO, COOK COUNTY, ILLINOIS, et al., Defendants. Fannie Mae CLARK, Administratrix of the Estate of Mark Clark, deceased, Plaintiff, v. The CITY OF CHICAGO, a Municipal Corporation, et al., Defendants. Verlina BREWER, by her next friend, William R. Brewer, Plaintiff, v. The CITY OF CHICAGO, a Municipal Corporation, et al., Defendants. Deborah JOHNSON et al., Plaintiffs, v. The CITY OF CHICAGO, a Municipal Corporation, et al., Defendants. Nos. 70 C 1384, 70 C 2371, 70 C 3026, 70 C 3029. United States District Court, N. D. Illinois, E. D. February 3, 1972. *696 Dennis Cunningham, Francis E. Andrew, Jeffrey Haas, Jonathan M. Hyman, Kermit Coleman, Cornelius E. Toole, James D. Montgomery, Chicago, Ill., David Scribner, New York City, William J. Bender, Newark, N. J., Arthur Kinoy, New York City, for plaintiffs. Richard L. Curry, Corporation Counsel, City of Chicago, and Benjamin E. Novoselsky, John V. Virgilio, Michael S. Jordan, Asst. Corp. Counsels, and Edward V. Hanrahan, State's Atty., of Cook County, Ill., and Vincent Bentivenga, Nicholas Trovato, Gerald Mannix, Asst. State's Attys., Chicago, Ill., for defendants. MEMORANDUM OPINION AND ORDERS PERRY, District Judge. On October 22, 1971, cases numbered 70 C 1384, 70 C 2371, 70 C 3026 and 70 C 3029 were by agreement and order of this court consolidated. Said cases were ordered to proceed for all purposes thereafter under case numbered 70 C 1384. These suits are civil actions for damages. Plaintiffs allege defendants committed acts under color of law which deprived plaintiffs of their rights, privileges and immunities as guaranteed by the First, Fourth, Fifth, Eighth, Ninth, Thirteenth and Fourteenth Amendments to the Constitution of the United States and protected under 42 U.S.C. § 1981 et seq. All four actions grow out of a "raid" by certain Chicago policemen (assigned as State's Attorney's Police) at an apartment located at 2337 W. Monroe Street in Chicago, Illinois, occupied by members of the Black Panther Party, and out of the aftermath of that raid. Plaintiffs allege certain of the defendants herein illegally entered said apartment on December 4, 1969 and assaulted them with deadly weapons, killing Fred Hampton in the presence of plaintiff Deborah Johnson, killing Mark Clark, and causing serious bodily harm to Verlina Brewer, Ronald Satchel, Blair Anderson and Brenda Harris. Plaintiffs Brewer, Johnson, Satchel, Anderson, Harris, Harold Bell and Louis Trueluck further charge they were illegally arrested, falsely imprisoned and prosecuted wrongfully and maliciously. Sued are the Chicago police officers who participated in the raid; certain other police officers assigned to the Crime Laboratory and Internal Inspections Division of the Chicago Police Department; the State's Attorney of Cook County and three Assistant State's Attorneys; the *697 City of Chicago as employer of the police officers; the County of Cook as employer of the state's attorneys; the Mayor of the City of Chicago, and the Superintendent of the Chicago Police Department. The allegations made in these four suits are voluminous, and the court in this particular memorandum and order will not attempt here to set them forth in detail, nor further attempt to summarize them. The complaint in 70 C 1384 ("the Hampton case") covers 15 pages; in 70 C 2371 ("the Clark case"), 9 pages; in 70 C 3026 ("the Brewer case"), 42 pages; and in 70 C 3029 ("the case of Johnson, et al."), 68 pages. Various defendants in the various cases have moved to dismiss the complaints wherein they are named for failure to state a cause of action and for lack of jurisdiction. Other motions to extend time to plead and motions to stay discovery have been filed. Plaintiffs have responded to the various motions and defendants have made reply. Following consolidation of the actions, other motions were filed by defendants on November 17, 1971; and on December 15, 1971, plaintiffs filed further answer to various defendants' motions to dismiss in this consolidated cause. The court has now reviewed the four complaints and has read and considered all the motions and all the briefs and/or memoranda of the parties in support of their respective positions. The court's memorandum and its orders follow: As to the Motions to Strike and Dismiss of the City of Chicago: The City of Chicago is a defendant in all four consolidated cases. Jurisdiction is alleged under the Civil Rights Act (42 U.S.C. § 1981 et seq.) The City of Chicago is a municipal corporation and not a "person" within the meaning of the Civil Rights Statute. It is now well established that an action for damages will not lie against a municipal corporation on these jurisdictional allegations. Monroe v. Pape, 365 U.S. 167, 191, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); United States ex rel. Lee v. State of Illinois, 343 F.2d 120 (7th Cir., 1965); Fisher v. City of New York, 312 F.2d 890 (2nd Cir. 1963); Spiesel v. City of New York, 239 F.Supp. 106 (S.D.N.Y., 1964); Wilcher v. Gain, 311 F.Supp. 754 (N.D.Cal., 1970). The civil rights statutes are aimed at individuals who subject others to deprivation of their civil rights and personal involvement is contemplated. They are not aimed at the city which employs them. Plaintiffs seek to hold the city liable here for the acts of its employees under the doctrine of respondeat superior. The theory that a municipality is liable for the failure to properly train, discipline, supervise, etc. its employees has been advanced in numerous cases in this court and elsewhere. The theory has been struck down. Salazar v. Dowd, 256 F.Supp. 220 (D.Colorado, 1966); and in this court, Down v. Daley, 69 C 1789; Williams et al. v. Barnes et al., 69 C 1942; Sanberg v. Daley, Mayor of the City of Chicago et al., 306 F.Supp. 277. Additionally, governmental entities have defenses under Chapter 85, Ill.Rev. Stats. (1969). All of the counts in all four complaints as they relate to the City of Chicago should be stricken and the City should be dismissed from all four suits as a party defendant. It is, therefore, Ordered that the City of Chicago be and it is hereby dismissed as a party defendant in this consolidated case. As to the Motions to Strike and Dismiss of the County of Cook, Illinois: As in the case of the City of Chicago, the county is not a "person" within the definition of the Civil Rights Act. Monroe v. Pape and other cases, supra, and Dodd v. Spokane County, Washington, 9th Cir., 393 F.2d 330. Plaintiffs, likewise, seek to recover damages against the County of Cook under the doctrine of respondeat superior based upon the alleged negligent acts of the State's Attorney of Cook County and certain Assistant State's Attorneys. The Illinois Local Governmental and Governmental *698 Employees Tort Immunity Act (Ill.Rev.Stats.1969, Chap. 85, § 1-101 et seq.) affords the County, as a local public entity, immunity from civil liability because of the acts of its employees done in the execution or enforcement of any law or committed by employees serving in positions involving determination of policy or exercise of discretion. The acts alleged to have been committed by said employees were done in their capacities as persons serving in positions involving said policy and discretion. Fustin v. Board of Education of Community Unit District No. 2, 101 Ill.App.2d 113, 242 N.E.2d 308; Woodman v. Litchfield Community School District No. 12, 102 Ill. App.2d 330, 242 N.E.2d 780; Mills v. County of Winnebago, 104 Ill.App.2d 366, 244 N.E.2d 65. It is, therefore, Ordered that the County of Cook, Illinois be and it hereby is dismissed as a party defendant in the Hampton, Brewer and Johnson, et al. suits wherein it is named, and that the County of Cook be and it hereby is dismissed as a party defendant in this consolidated cause. As to the Motions to Strike and Dismiss as to Richard J. Daley, Mayor of the City of Chicago, and James B. Conlisk, Jr., Superintendent of Police of the City of Chicago. The Mayor of the City of Chicago and the City's Superintendent of Police are named as defendants in the Brewer and Johnson, et al. suits. These causes of action against these defendants cannot be maintained as they fail to state the personal, specific and factual involvement necessary to impose liability. The civil rights statutes are premised on personal culpability, as aforesaid. The Mayor and Superintendent of Police are not charged here with any personal participation in the raid or direct infliction of injury on plaintiffs. Plaintiffs seek to hold them liable under the doctrine of respondeat superior. There is a lack of specificity in the complaints as to the failure of said Mayor and Superintendent to train and supervise police employees and a lack of any showing that they had any immediate supervision, direction or control of the defendants executing the search warrant. To hold them liable under the doctrine of respondeat superior would be contrary to the law as decided in this District and elsewhere. Sanberg v. Richard J. Daley, Mayor of the City of Chicago, Down v. Daley and Salazar v. Dowd, all supra, and Jordan v. Kelly, 223 F.Supp. 731 (W.D.Mo., 1963). The Mayor and the Superintendent of Police also are charged with conspiracy in allegations that there was a personal failure on their part to stop an alleged conspiracy they had the power to stop. This conclusory and general allegation is not well taken. Huey v. Barloga, 277 F.Supp. 864 (N.D.Ill., 1967). In this court's opinion there is no showing of an act or an omission in dereliction of these defendants' public responsibility. Accordingly, the motions of Richard J. Daley, Mayor of the City of Chicago, and James B. Conlisk, Superintendent, Chicago Police Department, to strike counts in the two complaints as to them are granted and it is Ordered that said defendants be and they hereby are dismissed as defendants in this consolidated cause in their individual and official capacities. As to the Motions to Strike and Dismiss of Edward V. Hanrahan, State's Attorney of Cook County, and Richard S. Jalovec, James Meltreger and Sheldon Sorosky, Assistant State's Attorneys. Plaintiffs allege various acts by the State's Attorney and three Assistant State's Attorneys in violation of plaintiffs' constitutionally protected rights. Among other things, plaintiffs allege that these defendants or some of them in their official capacities planned with others the raid upon the Monroe Street apartment and that as a result of the raid Fred Hampton and Mark Clark were killed and certain others wounded; that said defendants placed charges against some of the plaintiffs after planning with others *699 to do so; that said defendants caused the institution of criminal proceedings against some of the plaintiffs after planning to do so with others, and that said State's Attorney and Assistant State's Attorneys continued in the alleged malicious prosecution of said charges. The State's Attorney and Assistant State's Attorneys are not charged with on-the-scene participation in the raid, which raid was conducted by certain of the other defendants. Said State's Attorney and Assistant State's Attorneys plead, among other things, their official and governmental immunity as a bar to the actions against them and their immunity from civil liability for damages arising out of the performance of their official duties. The State's Attorney and Assistant State's Attorneys were, at all times enumerated by plaintiffs, quasi-judicial officers of the State of Illinois and in the performance of their official duties. They are immune under the Illinois Tort Immunity Act, Ill.Rev.Stat. (1969), Ch. 85, § 1-101 et seq. A part of their official duties was and is the draftsmanship of legal papers, such as a search warrant. Their official duties and responsibilities include the necessary investigation of facts and evaluation of evidence so that they can determine from such facts and evidence whether or not an offense had been committed and what offenses an accused can be charged with. Such officials are necessarily involved in the presentation of the legal aspects of a case. In their quasi-judicial character and function the State's Attorney and Assistant State's Attorneys are immune from liability herein and enjoy the same common law immunity as afforded the judiciary. This immunity has not been abrogated by the enactment of the Civil Rights Act. Bauers v. Heisel, 361 F.2d 581 (3 Cir. 1966); Kostal v. Stoner, 292 F.2d 492 (10th Cir. 1961); Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L. Ed. 646; Cawley v. Warren, 216 F.2d 74 (7th Cir., 1954); Stift v. Lynch, 267 F. 2d 237 (7th Cir. 1959); Smith v. Dougherty et al., 286 F.2d 777 (7th Cir., 1961); Agnew v. Moody, 330 F.2d 868 (9th Cir., 1964); Wise v. City of Chicago, 308 F.2d 364 (7th Cir., 1962). Here, too, as to these particular defendants the court has found many of the allegations conclusory. There are not sufficient allegations made by plaintiffs that these defendants went outside their judicial or quasi-judicial capacities and engaged in investigatory conduct other than that necessary to carrying out their duties in their judicial function. There is no factual showing of malice or lack of good faith conduct by the State's Attorney and three Assistant State's Attorneys individually or in the performance of their official duties. Nor is there a sufficient showing that their alleged acts or omissions were unreasonable under the circumstances. The principle of granting immunity to prosecuting attorneys has been recognized in many cases. (Bauers v. Heisel and other cases, supra). As was said in Bauers, 361 F.2d at pages 589 and 590: "... we believe that both reason and precedent require that a prosecuting attorney should be granted the same immunity as is afforded members of the judiciary. The reasons are clear: his primary responsibility is essentially judicial — the prosecution of the guilty and the protection of the innocent. ... his office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest. In this respect, it is imperative that he enjoy the same freedom and independence of action as that which is afforded members of the bench. This reasoning is nearly as well established in Anglo-American law as judicial immunity itself ..." The motions to strike and dismiss of the State's Attorney and three Assistant State's Attorneys should be granted and it is, therefore, Ordered that said Edward V. Hanrahan, Richard S. Jalovec, James Meltreger and Sheldon Sorosky be and they hereby are dismissed as parties defendant in the complaints where named and in this consolidated cause in *700 both their individual and official capacities. As to the Motions to Strike and Dismiss of John Mulchrone, Harry Ervanian, John Meade, Robert Kukowinski, David Purtell, Charles Koludrovic and John Sadunas. These police officers were not part of the so-called State's Attorney's detail. They were policemen assigned either to the Crime Laboratory or the Internal Inspections Division of the Chicago Police Department. None of them are alleged to have actually participated in the raid on the apartment at 2337 W. Monroe Street, Chicago. Plaintiffs in the Brewer and Johnson, et al. cases allege the subsequent involvement of this group of policemen. Plaintiffs seek to involve them in alleged conspiracy to instigate and continue alleged malicious prosecution of plaintiffs. Plaintiffs allege defendants Koludrovic and "Doe" examined the premises of the raid "falsely" in order to justify the version of the incident by the State's Attorney's detail; that defendants Mulchrone, Ervanian, Meade, Kukowinski and "Roe" intentionally modified procedures and limited questions put to the other policemen; that Sadunas and Purtell produced a false and misleading firearms report, and that Sadunas and Koludrovic testified falsely all to the same end. This group is among those defendants alleged by plaintiffs to have conspired to deprive plaintiffs of equal protection of the law and their civil rights by alleged wrongful and malicious prosecution. In this court's opinion there is not set forth by plaintiffs the required degree of specificity as to what each of these policemen (not part of the detail) did to interfere with the constitutional rights of each affected plaintiff so as to impose liability. It appears to the court that plaintiffs are attempting to hold these defendants liable for the acts of persons other than themselves or for the failure of other persons to act. These defendants caused no physical injury to any of the plaintiffs. They are not liable under the doctrine of respondeat superior. Some had to do with the investigation of the need, if any, to discipline any of the other defendant police officers who attempted to execute a search warrant. They had to do in various ways with the internal police department review of the conduct of the other group of police officers. This was an internal police department matter and plaintiffs were not parties thereto. As to the matter of the laboratory tests, the defendants making the tests were public employees in the exercise of a discretionary function and there is lack of specificity as to malice or lack of performance in good faith. There is not sufficient pleading as to these defendants and lack of sufficient showing their actions caused the deprivation of any of plaintiffs' rights. Defendants John Mulchrone, Harry Ervanian, John Meade, Robert Kukowinski, David Purtell, John Sadunas and Charles Koludrovic are hereby dismissed as parties defendant where named in these consolidated actions and it is Ordered that they be and they are hereby dismissed as party defendants in this consolidated cause in their individual and in their official capacities. As to the Motions to Strike and Dismiss of defendants James Davis, Daniel Groth, Edward Carmody, John Ciszewski, Ray Broderick, George Jones, John Marusich, Lynwood Harris, Fred Howard, William Corbett, William Kelly, Philip Joseph, Joseph Gorman and Robert Hughes. These police officers of the City of Chicago were detailed and/or on detached service with the Office of the Cook County State's Attorney as State's Attorney's police or detail. This group of policemen is charged in all four of the consolidated complaints with actual on-the-scene participation in the raid on the Monroe Street apartment occupied by Fred A. Hampton, Mark Clark, Verlina Brewer, Deborah Johnson, Ronald Satchel, Harold Bell, Blair Anderson, Brenda Harris and Louis Truelock. Plaintiffs charge illegal and forced entry of *701 the apartment and the unjustifiable use of excessive and deadly force by these officers acting under color of law. In the various complaints these policemen are charged with killing Fred Hampton in the presence of his fiance, Deborah Johnson, with killing Mark Clark, with wounding plaintiffs Satchel, Anderson and Harris, and with physically and verbally abusing and illegally arresting plaintiffs Brewer, Johnson, Satchel, Bell, Anderson, Harris and Truelock. They are also charged with conspiracy and conspiracy in connection with alleged and malicious prosecutions. These allegations and others are set forth in detail in the various complaints. As to certain of the allegations made in the complaints against these defendants, the court is of the opinion that there are questions of fact and of law that cannot be resolved except upon trial. Therefore, the motions of James Davis, Daniel Groth, Edward Carmody, John Ciszewski, Ray Broderick, George Jones, John Marusich, Lynwood Harris, Fred Howard, William Corbett, William Kelly, Philip Joseph, Joseph Gorman and Robert Hughes to dismiss them as parties defendant in this consolidated cause is hereby denied. The court is hereinafter granting plaintiffs leave to file amended complaints in this consolidated cause against these defendants and said defendants are directed to answer or otherwise plead within 20 days of the filing of said amended complaints. Further Memorandum and Orders: The court hereinabove having dismissed certain defendants as party defendants herein, any motions filed by the dismissed parties, such as to extend time to answer or plead, or to stay discovery, now are moot and require no ruling by the court. The court finds the four complaints filed herein do not conform to the rules of pleading. All of the complaints are broad and contain a multiplicity of bare conclusory allegations without any support in the facts alleged. The complaints are replete with descriptive phrases that are scandalous and irrelevant. The court has spent considerable time in an attempt to detail the counts to be stricken in so far as they relate to the parties being dismissed and to direct elimination, where proper, of those references to defendants already hereinabove dismissed from these cases. It has likewise considered the striking of the innumerable words and phrases which are scandalous and the striking of material which is irrelevant and which constitutes the pleading of alleged evidence. It finally became the court's opinion and conclusion that even if it were to set forth in voluminous detail all the counts or parts thereof that should be stricken in these complaints, in the end the original complaints would not be clearly readable, understandable and in a useable condition. It is, therefore, Ordered that each and all of the four complaints filed herein be and they hereby are stricken in their entirety. Plaintiffs in each of the four consolidated cases are given leave to file an amended complaint (under the consolidated case number and title, No. 70 C 1384, Iberia Hampton, Administratrix, on behalf of the Estate of Fred A. Hampton, Deceased, vs. James Davis, et al.) within 30 days hereafter against those certain defendants not already dismissed herein as party defendants. Plaintiffs are Ordered to conform to the rules of pleading in their amended complaints. Defendants are given 20 days after the filing of the amended complaints to answer or plead thereto, as aforesaid. The motions of the police officers remaining as defendants herein to stay discovery are denied. The court directs discovery to proceed in this consolidated cause except that no defendant remaining herein who is, or may be, under indictment in Cook County, Illinois, for charges related to the subject matter of these law suits, shall be required to make any answer to request for admissions, give any statement, answer any interrogatory or give his deposition, orally or in writing, herein until after the final *702 order of the Criminal Court of Cook County has been entered therein, including a final disposition thereof in the highest court to which such order may be appealable either directly or indirectly. The court having completely adjudicated plaintiff's claims against certain parties defendant herein by granting their motions to dismiss and dismissing them as defendants herein, and, further, the court having expressly determined that there is no just reason for delay in entering final judgment as to them, it is hereby Ordered that final judgment be and the same is hereby entered herein dismissing the four actions of all the plaintiffs and this consolidated cause as to defendants City of Chicago; County of Cook, Illinois; Richard J. Daley, Mayor of the City of Chicago; James B. Conlisk, Superintendent of Police of the City of Chicago; Edward V. Hanrahan, State's Attorney of Cook County; Richard S. Jalovec, James Meltreger and Sheldon Sorosky, Assistant State's Attorneys; John Mulchrone, Harry Ervanian, John Meade, Robert Kukowinski, David Purtell, Charles Koludrovic and John Sadunas.

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 02-15448 April 1, 2004 Non-Argument Calendar THOMAS K. KAHN ________________________ CLERK D.C. Docket No. 98-02373-CV-ODE CONTINENTAL CASUALTY COMPANY, Plaintiff-Appellee, versus BARBARA F. ADAMO, individually and in her capacity as Administrator of the Estate of SHANA SLAKMAN, SHERWIN GLASS, Defendants-Appellees, BARRY S. SLAKMAN, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia _________________________ (April 1, 2004) Before ANDERSON, BLACK and WILSON, Circuit Judges. PER CURIAM: Barry S. Slakman appealed the district court’s grant of summary judgment in favor of Barbara F. Adamo, Sherwin Glass, and Continental Casualty Co. in Continental’s interpleader action. We issued an opinion in the case on April 2, 2003, in which we certified the following question to the Georgia Supreme Court: “WHETHER SECTION 33-25-13 OF THE CODE OF GEORGIA BARS AN INDIVIDUAL FROM RECEIVING BENEFITS UNDER A MURDER VICTIM’S LIFE INSURANCE POLICY BEFORE HIS CONVICTION AND SENTENCE BECOME ‘FINAL’ UNDER STATE LAW.” See Cont’l Cas. Co. v. Adamo, 326 F.3d 1181, 1183 (11th Cir. 2003) (per curiam). The Georgia Supreme Court then answered the question in the negative. They held that a reading of OGCA § 33-25-13 that ensures that a conviction for murder or voluntary manslaughter may serve as prima facie evidence of guilt in a § 33-25-13 civil proceeding upon exhaustion of the right to appeal or the expiration of time within which a first direct appeal could be filed, furthers the public policy upon which OGCA § 33-25-13 is based. See Slakman v. Cont’l Cas. Co., 587 S.E.2d 24, 27 (Ga. 2003). In addition, they held, such a reading “affords an individual the opportunity to challenge a criminal conviction through direct 2 appeal before imperiling his rights to any insurance benefits.” Id. In light of that holding, we reverse the district court’s order finding that Slakman forfeited all rights under the insurance policy at issue, and remand for proceedings not inconsistent with this opinion. REVERSED AND REMANDED. 3 

443 F.2d 735 143 U.S.App.D.C. 320 UNITED STATES of Americav.Sidney W. HARDIN, Appellant. No. 22683. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 4, 1969.Decided Dec. 22, 1970, Petition for Rehearing Denied June 10, 1971. Messrs. Kenneth F. Hickey and Robert J. Hickey (both appointed by this court) for appellant. Mr. Roger E. Zuckerman, Asst. U.S. Atty., with whom Messrs. Thomas A. Flannery, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for appellee. Mr. David G. Bress, U.S. Atty., at the time the record was filed, also entered an appearance for appellee. Before BAZELON, Chief Judge, and TAMM and MacKINNON, Circuit judges. PER CURIAM: 1 On June 17, 1967, Sidney W. Hardin shot and killed one Leslie Fredericks. At the trial, the key witness for the Government was Leslie Fredericks, Jr., an eleven-year-old boy, the son of the deceased. Sidney W. Hardin was convicted of second degree murder. 2 The appellant presents four issues on appeal which we set out below and deal with in order. We find no prejudicial error and accordingly affirm. 3 I Did the trial court make sufficient inquiry to determine that eleven-year-old Leslie Fredericks, Jr. was legally competent to testify?The determination as to whether a person is legally competent to testify as a witness is a matter that rests largely within the discretion of the trial court.1 Because the exercise of that discretion often rests on factors at trial which cannot be photographed into the record, it should not be disturbed except where 'clearly erroneous.'2 Appellant has demonstrated nothing to so mark the trial court's determination concerning the deceased's son. Actually, the record shows that Leslie Fredericks, Jr., understood the meaning of the oath he took to tell the truth.3 Furthermore, his testimony was logical, responsive, internally consistent and in no way indicates that he did not have the necessary intelligence to testify as to what he observed. 4 II Was the evidence supporting the charge of second degree murder sufficient to go to the jury? 5 On appeal, if the evidence is asserted to be insufficient, it must be reviewed in the light most favorable to the Government, making full allowance for the right of the jury to draw justifiable inferences of fact from the evidence adduced at trial and to assess the credibility of the witnesses before it.4 The Government's key witness, Leslie Fredericks, Jr., testified that, after his father and the appellant had a fight in which the appellant had smashed a Diet-Rite Cola bottle over the head of the deceased, and after the two men had fought for a spell in a closet of the apartment where the killing occurred, the deceased retired from the fight to the center of the living room. The appellant then went to the kitchen-dinette area of that apartment, took a gun from his pocket and, from 15 to 18 feet away, shot the deceased. After he shot the deceased in the neck with the gun he told his wife 'I meant to shoot him in the head.' This alone was enough to send the issue of second degree murder to the jury. 6 III Did the trial court err in not allowing appellant to testify to a threat allegedly uttered by the deceased to him concerning a third person not a party to this proceeding? 7 At trial the appellant testified that he and the deceased had an argument earlier that same evening over the gun which appellant had purchased that same day. According to appellant, the deceased had demanded that the appellant give him the gun so that he could kill a third party not a party to this proceeding. He wished to introduce this evidence for the purpose of showing his own state of mind. However, it was admitted that during the course of the affray in the apartment, the appellant had exclusive control of the gun. Also, the alleged conversation was irrelevant and incompetent to show that the deceased intended to kill the appellant nor would such a statement have shown any malice towards the appellant. For these reasons the trial court properly excluded this testimony. 8 IV Did the trial court err in its explanation to the jury of the substantive law on malice, manslaughter, self-defense and lesser included offenses? 9 Appellant here takes issue with the trial court's instructions to the jury. First, the appellant argues that the court committed error5 in instructing on the use of a deadly weapon, as follows: 10 If a person uses a deadly weapon in killing another malice may be inferred from his use of such weapon in the absence of explanatory or mitigating circumstances. 11 You are not required to infer malice from the use of such weapon, but you may do so if you deem it appropriate. 12 You are instructed as a matter of law that a gun is a dangerous weapon. 13 Appellant's contention is that the trial court, sua sponte, should have made reference to what, in this case, were the possible explanatory or mitigating circumstances the jury might consider. 14 It is our position that the words explanatory or mitigating circumstances are self-explanatory and that, even though the court could have given a more detailed instruction sua sponte or pursuant to a request by the defense, failure to do so was certainly not prejudicial error. 15 Second, the appellant contends that the charge on manslaughter wrongfully put the issue in a posture requiring the jury to determine that the deceased was the aggressor before the appellant could be found not guilty of second degree murder and guilty of the lesser included offense of manslaughter. This simply was not the case. The trial court said: 16 It (manslaughter) occurs when the homicide is committed at the time of mutual combat or when it is committed in passion or hot blood caused by adequate provocation. 17 If one believes the story as related by the defense, this was a case of self-defense.6 The defense contends that the trial court went on from this point in the instructions to discuss 'heat of passion,' 'hot blood,' 'adequate provocation' and then went on to discuss self-defense in terms of the aggressor and the one who was the object of the aggression without elaborating on mutual combat. This argument fails to recognize that the words 'mutual combat,' like the words 'explanatory or mitigating circumstances' discussed above, are sufficiently self-explanatory so as to not require elaboration by the court to convey their intent to a reasonably intelligent jury.7 Since the charge was given in the disjunctive, the jury was presented with alternative grounds on which to find appellant guilty of manslaughter and we do not think that it was error for the court to fail to elaborate, sua sponte, on the alternative which explained itself. 18 The appellant further contends that the trial court failed to give a proper instruction on recklessness and that this was fatal. The simple answer to that contention is that appellant, by his own testimony, precluded the possibility that he was merely grossly negligent-- he either shot the deceased in the heat of passion while engaged in mutual combat or he shot the decedent in self-defense or he maliciously killed the decedent. By his own admission, he did not kill the deceased while merely handling the gun in a negligent manner. Thus the facts of the case did not present a need for a charge of recklessness. 19 Third, the charge on self-defense was more extensive, in this case, than the one this court upheld in Williams v. United States, 131 U.S.App.D.C. 153, 403 F.2d 176 (1968). The only variance from the recommended charge contained in the Junior Bar Manual that is of any concern to us was the use of the words honest belief instead of actual belief. We find that, although the word actual would be preferred to the use of the word honest, the exchange did not impose some higher standard of belief in this case, but only required a finding that the appellant really believed that he was in mimmediate danger. This is a fair statement of the law of self-defense. 20 Fourth, the appellant was not entitled to have the lesser included offense of assault with a dangerous weapon submitted to the jury as an alternative verdict because it was uncontradicted and established beyond any doubt that the deceased died of a gunshot wound inflicted by the appellant. 21 With respect to these instructions to the jury, in addition to the above comments, we note that no objections were taken to any of them at the time of trial. We have also reviewed the court's charge in its entirety and we consider that the question of appellant's guilt or innocence was fairly presented to the jury and that there is no showing here of plain error affecting substantial rights which justifies or requires reversal. Cf. Kelly v. United States, 124 U.S.App.D.C. 44, 361 F.2d 61 (1966). 22 Affirmed. BAZELON, Chief Judge (dissenting): 23 I concur in parts I, II, and III of the court's opinion, but because I consider the trial judge's instruction on manslaughter to be defective, I must dissent from the court's affirmance of this conviction. 24 I agree with the court's opinion that the first two sentences of the instruction stated the law correctly: 25 Manslaughter is the unlawful killing of a human being without malice aforethought. 26 It occurs when the homicide is committed at the time of mutual combat or when it is committed in passion or hot blood caused by adequate provocation. 27 Unfortunately, the next two sentences, while purporting to restate the above definition and to specify the elements in greater detail, concentrated exclusively on the second alternative: 28 In other words, in order to reduce the offense from second degree murder to manslaughter there must be shown ample provocation and sudden passion and both of these things must exist at the time the fatal blow is struck. 29 The elements the Government must prove in order for you to find the defendant guilty of manslaughter are, one, that the defendant inflicted a wound or wounds from which the deceased died; two, that the defendant shot the deceased in sudden passion without malice; that the defendant's sudden passion was aroused by adequate provocation. 30 The remainder of this lengthy instruction elaborates upon the notions of 'sudden passion' and 'provocation.'1 Although appellant's main defense was mutual combat, at no time did the judge even mention this again-- much less elaborate upon it-- as a separate ground for a conviction of manslaughter. 31 This was not a case of robbery or assault between two strangers. It involved two old friends who had spent the evening drinking together; upon their return to the apartment where they both lived with their families, this tragic gight ensued. No one denied that the deceased willingly continued the fight-- at least for a time-- after it began. In such circumstances, the crucial issue of mutual combat must necessarily be very close, and the adequacy of the instruction on mutual combat becomes of critical importance. 32 We must remember that jurors do not take the instructions with them into the jury room; therefore we cannot rely heavily upon nice calculations as to what is strictly implied by the grammar of sentences which stand alone. Instructions must be judged as a whole. Given the general tenor of this one, it is too much to expect that the jury caught the significance of the word 'or' in the second sentence and correctly understood the relation of mutual combat to manslaughter. 33 A nontrivial error in an instruction defining the elements of one of the offenses of which a defendant might be found guilty is certainly plain error requiring reversal of the conviction.2 1 Beausoliel v. United States, 71 App.D.C. 111, 113, 107 F.2d 292, 294 (1939) (six-year-old child ruled competent to testify) 2 Doran v. United States, 92 U.S.App.D.C. 305, 205 F.2d 717, cert. denied, 346 U.S. 828, 74 S.Ct. 49, 98 L.Ed. 352 (1953) 3 The witness testified that he understood that he would be punished if he told a lie and that, in this case, he might go to jail. It was also brought out that he attended Sunday School as well as elementary school 4 Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Crawford v. United States, 126 U.S.App.D.C. 156, 375 F.2d 332 (1967); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947); Morton v. United States, 79 U.S.App.D.C. 329, 147 F.2d 28, cert. denied, 324 U.S. 875, 65 S.Ct. 1015, 89 L.Ed. 1428 (1945) 5 The appellant relies on Williams v. United States, 131 U.S.App.D.C. 153, 403 F.2d 176 (1968), but the same instruction was given there and properly applied by the jury and we see no reason to conclude there is error in the charge here because the result is different. The words used are in common use and fully capable of being understood and applied by the jury without additional definition 6 The dissent argues that the issue of mutual combat was very close but mutual combat alone is not a true alternative ground for mitigating a murder to manslaughter; it is merely one of the circumstances from which the jury could find adequate provocation. Since the court instructed in detail on adequate provocation, a particularized instruction on mutual combat was not necessary. Defense counsel said he was 'satisfied' with the court's instructions on everything except its refusal to charge on assault with a dangerous weapon as a lesser included offense and his argument to the jury was based on self-defense. This in turn was based on an attempt to get the jury to believe the testimony of appellant and his wife and to disbelieve that of Leslie Fredericks, the minor son of the victim. Defense counsel argued, 'Did the shooting take place as eleven-year-old Leslie Fredericks said or did it take place as the defendant said?' Thus, the issue of the instruction on 'mutual combat' assumes more importance in the dissent than it actually did in the minds of the lawyers and the judges who tried the case and at the most is harmless error. Fed.R.Crim.P. 52 7 See Byrd v. United States, 114 U.S.App.D.C 117, 312 F.2d 357 (1962); Byas v. United States, 86 U.S.App.D.C. 309, 311-312, 182 F.2d 94, 96-97 (1950) 1 The rest of the instruction reads: When I say sudden passion, I mean to include rage, resentment, anger, terror, and fear. So when I used the expression sudden passion I include all of these. Provocation in order to be sufficient to reduce the defense of murder to manslaughter must be adequate, must be such as might naturally induce a reasonable man in the anger of the moment to commit the deed. It must be such provocation as would have like effect upon the mind of a reasonable or average man causing him to lose self-control. In addition to the great provocation there must be passion and not blood caused by that provocation. Mere words, however, no matter how insulting, offensive or abusive, are not adequate to reduce a homicide, although committed in passion, provoked as I have explained, from murder to manslaughter. If you find the Government has proved all of these elements beyond a reasonable doubt, then you may find the defendant guilty of manslaughter. If, however, you find the Government has failed to prove any one or more of these elements, then you cannot find the defendant guilty of manslaughter and you must find him not guilty. 2 Fed.R.Crim.P. 52(b). See Byrd v. United States, 119 U.S.App.D.C. 360, 342 F.2d 939 (1965)

732 F.2d 163 Collierv.Heckler 83-1999 United States Court of Appeals,Ninth Circuit. 4/2/84 1 N.D.Cal. AFFIRMED

49 F.3d 1254 UNITED STATES of America, Plaintiff-Appellee,v.Scott KUIPERS, Defendant-Appellant. No. 94-2676. United States Court of Appeals,Seventh Circuit. Argued Jan. 25, 1995.Decided March 3, 1995. Barry Rand Elden, Asst. U.S. Atty., Matthew C. Crowl (argued), Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee. Thomas J. Organ, Raymond P. Cisco (argued), Cisco & Organ, Chicago, IL, John A. Lundquist, Lundquist & Associate, Bloomingdale, IL, for defendant-appellant. Before FLAUM, EASTERBROOK, and MANION, Circuit Judges. FLAUM, Circuit Judge. 1 The two thousand remaining Desert Bighorn Sheep, though (and perhaps because) highly prized by hunters, are a protected species in Mexico and the United States. Mexico offers a limited number of hunting permits for the sheep, but Scott Kuipers, a taxidermist, bypassed the process and bagged a sheep on his own. In the course of illegally transporting the hide and horns of the sheep to the United States, Kuipers presented phony documentation to U.S. Customs agents. These actions violated 18 U.S.C. Sec. 545, as well as various provisions of the Lacey Act, 16 U.S.C. Secs. 3372-3373. A jury convicted Kuipers, and he received a six-month prison sentence. Kuipers appeals the guilty verdict, claiming that the evidence was insufficient to sustain the conviction, and that the use of 404(b) evidence was reversible error. 2 Desert Bighorn sheep weigh about 200 pounds, and the large spiral horns, coveted by hunters, can weigh as much as forty pounds. The sheep are a protected species, and cannot be legally killed in Mexico without a hunting permit, obtainable only through a lottery. Of the two thousand extant, only fifty are males with horns that approach trophy status. 3 In October, 1988, Scott Kuipers and a fellow hunter, Ronald Brunsfeld, arranged a Mexican Desert Bighorn Sheep hunt through an Arizona booking agent named Fred Romley. The two each paid Romley $5,000 for a hunt, with an additional $2,500 to be paid upon killing a sheep. The checks were marked "Deposit for sheep hunt starting April 1, 1989. Balance of $2,500 on the kill." 4 In March, 1989, Kuipers and Brunsfeld flew to Hermosillo, Mexico and met with Manuel Garcia-Puebla, who acted as a supplier and a translator, and with two guides, including a Mexican game warden. Neither Kuipers nor Brunsfeld were given or shown a hunting permit; no one represented to the two that any permits had been secured for the hunt. The party drove to a camp, where they spent the night; the next day the party split into two groups to hunt. Kuipers and one guide climbed into the mountains, and the other three hunted nearby. 5 When Brunsfeld, Garcia, and their guide returned to the camp at the end of the day, they saw a dead Desert Bighorn Sheep, and watched Kuipers skin the sheep and prepare the hide for mounting. Brunsfeld saw the skull and horns near one of the tents, and could tell it had been freshly killed. Brunsfeld congratulated Kuipers, who told Brunsfeld how he saw three sheep and shot the largest of them twice. Kuipers told Garcia that he wanted to take his trophy with him back to the United States, and asked for documents that would let him do so. Garcia told Kuipers that he did not know if there were documents, but would check. 6 During the trip, Garcia steered the party away from locals to avoid drawing attention to the illegal hunt. This included the highly unusual tactic of moving camp in the middle of the night, something that happened twice. The hunt was done with rifles owned by one of the guides, because the hunters did not have the required gun licenses for Mexico. 7 Later during the hunting trip, Kuipers and Brunsfeld shot some javelina, a type of wild pig. This was done both without the required license and outside of hunting season. Kuipers indicated that he wished to transport the javelina back to the United States, but Garcia told him they had no licenses for the javelina, but that they could be purchased when the upcoming season started. 8 When the hunters returned to Hermosillo, Garcia told Kuipers that there was a document issued under the name of Fred Romley which Kuipers could try to use to transport the sheep parts back into the United States; he warned Kuipers that there were no documents issued in Kuipers's name. Kuipers expressed concern about this, but told Garcia that, to avoid suspicion, he could always tell authorities in the United States that he was simply the taxidermist for the animal. 9 Garcia then gave Kuipers a document written in Spanish purporting to give Fred Romley permission to transport a Desert Bighorn Sheep into the United States. The document was irregular: it did not resemble the nonresident hunting license required for an individual to export a Desert Bighorn Sheep from Mexico; it was not issued in the name of the hunter; it was signed by an official who had long before been fired from the Mexican government. Kuipers accepted the fake document without protest. At the end of the hunting trip, Kuipers paid Garcia the additional $2,500 required for killing the Desert Bighorn Sheep, and boarded the airplane with a duffel bag large enough to carry the horns and hide. 10 Kuipers and Brunsfeld flew from Hermosillo to Tucson. At Customs, Brunsfeld saw Kuipers declare a set of sheep horns, which he claimed were a "pick up" set that he had found (as opposed to from an animal he had shot). Kuipers completed a U.S. Fish and Wildlife declaration form, certifying that he was importing a "pick-up skull" and a salted hide, and representing that he had an export permit for the wildlife. Kuipers provided with the form the phony letter in the name of Fred Romley that Kuipers had received from Garcia. 11 On March 31, 1989, Kuipers shipped the full-mount hide of a Desert Bighorn Sheep for tanning, and it was tanned and shipped back to Kuipers's taxidermy shop on April 28, 1989. 12 Tucson U.S. Fish and Wildlife Agent Greg Stover eventually received the declaration and permit several days after Kuipers returned to the United States, and noticed that the "permit" was fake. Stover mailed a letter to Kuipers requesting an original permit, but got no response. On May 5, 1989, Stover phoned Kuipers asking for additional documentation; Kuipers said he had none, and that the sheep was Fred Romley's. Kuipers insisted that the horns were "pick-up" horns and that he had killed nothing during his trip to Mexico. Kuipers would not even acknowledge that he had gone to Mexico on a hunting trip. Stover asked Kuipers for an address or telephone number for Romley, and eventually Kuipers conceded that he would try to get in touch with Romley and re-contact Stover. Stover told Kuipers the purported import permit was fraudulent, and asked Kuipers to abandon the horns and hide to the U.S. Fish and Wildlife Service office in the Chicago area. 13 On May 10, 1989, Kuipers abandoned the horns to the Chicago office of the U.S. Fish and Wildlife Service, stating to Agent Joe Budzyn that the horns were a pick-up set of Desert Bighorn Sheep horns from Mexico that he had imported through Tucson. Kuipers signed a form agreeing to abandon the horns to the Service, but never made a mention of the hide to anyone. 14 Kuipers was indicted on March 1, 1994 for (1) knowingly submitting false records for importation of a Desert Bighorn Sheep from Mexico (16 U.S.C. Secs. 3372(d), 3373(d)(3)(A)); (2) fraudulently and knowingly importing the Desert Bighorn Sheep into the United States contrary to law (18 U.S.C. Sec. 545); (3) knowingly importing, transporting and receiving the Desert Bighorn Sheep possessed and transported in violation of law (16 U.S.C. Secs. 3372(a)(1), 3373(d)(2)); and (4) knowingly possessing the Desert Bighorn Sheep contrary to the provisions of the Convention in International Trade of Endangered Species ("CITES") (16 U.S.C. Secs. 1538(c)(1), 1540(b)(1)). Kuipers pled not guilty. 15 On April 19, 1994, Kuipers's jury trial began. The government closed its case two days later. Among its witnesses was Agent Richard Dickinson of the U.S. Fish and Wildlife Service. Dickinson had inspected Kuipers's taxidermy shop in 1986, and found numerous violations of record-keeping requirements. Dickinson testified that he told Kuipers that Kuipers had sold illegal wildlife to undercover state and federal officers. Dickinson stated that Kuipers told him that wildlife was only kept in one room, but that wildlife was found in three rooms. Dickinson testified that state officials seized business records and wildlife that had not been "tagged" so a conservation officer could determine if it had been lawfully taken under a state license. Among the untagged animals was a member of a protected species, the bobcat. On cross-examination, he testified that three recordkeeping violations were brought against Kuipers in federal court, but were dismissed upon his recommendation because of Kuipers's cooperation in another federal investigation. There were four state citations, two of which were dismissed, and the other two resulted in a small fine and a sentence of supervision after a plea of guilty. Garcia and Brunsfeld also testified against Kuipers. 16 Kuipers presented no evidence, and the jury convicted him on three of the counts after brief deliberations. The jury acquitted Kuipers of the CITES violation. 17 Kuipers filed a motion for a new trial, challenging, among other things, the sufficiency of the evidence and admission of other acts evidence pursuant to Federal Rule 404(b). The district court denied the motion, and, on July 6, 1994, Kuipers was sentenced to six months' incarceration, followed by two months of home confinement and three years of supervised release. Kuipers was also fined $10,000. Kuipers filed a timely notice of appeal on July 14, 1994, and we consider his claims now. Finding no error, we affirm. 18 In reviewing a claim of insufficient evidence, the court must consider the evidence in the light most favorable to the government; the verdict should be reversed only if the record contains no evidence from which the jury could find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Herrera-Rivera, 25 F.3d 491, 498 (7th Cir.1994). Here, the evidence is more than strong enough to support a guilty verdict. The jury was entitled to believe the testimony of Garcia and Brunsfeld. United States v. McFarland, 37 F.3d 1235 (7th Cir.1994). Kuipers argues that a government expert, Bonnie C. Yates, was unable to testify with certainty that the sheep skull presented at trial was from a Desert Bighorn in Mexico rather than a Rocky Mountain Bighorn from the United States. But the jury was entitled to believe Kuipers's own admission to the Fish and Wildlife Service about the nature of the skull. 19 Requiring slightly more analysis is Kuipers's appeal regarding the admission of Dickinson's testimony. The government, in compliance with Rule 404(b),* filed a motion in limine to introduce Dickinson's testimony. Kuipers failed to file a response, and the district court granted the motion in a thorough memorandum opinion and order. At trial, Kuipers moved to reconsider, arguing that the evidence was "highly prejudicial", "irrelevant" and being introduced for "no purpose other than to show that Mr. Kuipers is somehow a bad person". The district court rejected this approach, responding: 20 The proffer was made by the government under Rule 404(b) to establish Mr. Kuipers' knowledge and intent in this case. And knowledge and intent seem to be the crux of what the case is all about. According to your opening statement and the cross examinations you've conducted this far, it is knowledge and intent by Mr. Kuipers that you are contesting, not the acts of transporting these horns and skins from an endangered species into the United States. 21 So I find that the evidence is highly probative. Whether or not that would indicate that on prior occasions Mr. Kuipers knew and had knowing possession or was on notice of other endangered species or species that required tagging and licensing or other government regulations does not require a conviction; it requires the proffering of reliable evidence from which a jury could find by a preponderance of the evidence that Mr. Kuipers committed these other acts, which would show knowledge and intent on his part, that he was not a novice when it came to dealing with these kinds of animal hides and skins. 22 So I do find that the evidence is highly probative of intent, knowledge, and shows the absence of mistake or accident, as I believe you suggested to the jury was your defense. 23 Limiting instructions were given to the jury at the time of Dickinson's testimony more than once. 24 On appeal, Kuipers raises for the first time the claim that he never put his intent at issue; his stance at trial was that the horns were not those of a Desert Bighorn sheep and that they were a "pick up." Kuipers also argues for the first time that the acts presented below were insufficiently similar to the crime with which he was charged. The arguments that were waived below can only be reviewed for plain error, "plain" meaning "egregious." United States v. Caputo, 978 F.2d 972, 975 (7th Cir.1992). The arguments that were preserved are reviewed under an abuse of discretion standard. United States v. Beasley, 809 F.2d 1273, 1278-79 (7th Cir.1987). 25 This circuit uses a four-part test for admitting evidence under Rule 404(b). The district court must determine that "(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." United States v. Maholias, 985 F.2d 869, 879 (7th Cir.1993). 26 Evidence of past bad acts is inadmissible as proof of a defendant's character and propensity to commit crimes, but under certain conditions it is admissible as proof of an element of a crime, such as a defendant's intentions: it can help show that his behavior was purposeful rather than accidental, since accidents usually are not repeated. Fed.R.Evid. 404(b); Beasley, 809 F.2d at 1278. While Kuipers may or may not have put intent at issue, the crimes charged required the government to prove a mens rea of "knowingly," and the Seventh Circuit has held that in such cases, 404(b) evidence always will be at least relevant. United States v. Liefer, 778 F.2d 1236, 1243 (7th Cir.1985); United States v. Chaimson, 760 F.2d 798, 805 (7th Cir.1985). Kuipers's claim at oral argument that he was not charged with crimes of specific intent directly contradicts the language of 18 U.S.C. Sec. 545. 27 An additional requirement for admissibility is that the 404(b) acts be sufficiently alike and close in time to the crime charged. Here, both involved illegal possession of protected species of wildlife, albeit a bobcat rather than a Desert Mountain Sheep. The similarity is also easily discernible between Kuipers's failure to tag animal parts adequately and his failure to comply with documentation requirements for the sheep. The difference in the specific species is irrelevant for these purposes. United States v. York, 933 F.2d 1343, 1351 (7th Cir.1991). The three-year span of time is sufficiently close for the evidence to be admitted. United States v. Goodapple, 958 F.2d 1402, 1407-08 (7th Cir.1992). The decision was plainly correct on this account, rather than one of plain error. 28 The government prompted Dickinson to testify that Kuipers tried to mislead him during the search, telling him that wildlife could only be found in one room, when there was wildlife in two other rooms. At oral argument, Kuipers's attorney argued that this was reversible error. Kuipers failed to object to this testimony before or during trial. It is imperative that defendants notify trial judges of the nature of their objections at trial, when possible errors can be addressed and rectified. A defendant cannot squirrel away objections, revealing them only upon successive appeals. As with all waivers, plain error must be shown. Perhaps if we were judges at the trial level below, we might have excluded testimony about that specific incident; then again, we cannot say that no reasonable judge would have admitted it. Even if we were inclined to find error here, given the weight of the evidence against Kuipers, it is impossible for us to say that this particular piece of disputed testimony was of "such a great magnitude that it probably changed the outcome of the trial." United States v. Stone, 987 F.2d 469, 471 (7th Cir.1993). 29 As for the lower court's weighing of probativeness and undue prejudice, one is hard-pressed to find an error, much less an abuse of discretion, in the district court's decision to admit the evidence. Even if, as Kuipers now claims, he was relying on the hope that the jury would decide the sheep was not a Desert Mountain Sheep rather than a finding that he lacked intent, the prosecution still needed to show that his illegal importation was the result of more than just a poor choice of tour guides. Admitting the evidence was well within the bounds of the trial judge's discretion, and any "undue prejudice" was minimized with a limiting instruction. For the foregoing reasons, the judgment is 30 AFFIRMED. * Fed.R.Evid. 404(b) reads: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

479 F.Supp. 828 (1979) UNITED STATES of America, Plaintiff, v. Harold J. RICHARDS, Defendant. Civ. A. No. CA77-0189-R. United States District Court, E. D. Virginia, Richmond Division. November 16, 1979. *829 Raymond A. Carpenter, David Schneider, Eliot Norman, Asst. U. S. Attys., Richmond, Va., Joseph M. Gontram, Atty., Donald Gavin, Tax Division, U. S. Dept. of Justice, Washington, D. C., for plaintiff. Harold J. Richards, pro se. Milton V. Freeman, Walter J. Rockler, Stephen L. Hester, Stephen M. Sacks, Robert J. Jones, Arnold & Porter, Washington, D. C., Richard L. Williams, McGuire, Woods & Battle, Richmond, Va., for defendant. MEMORANDUM MERHIGE, District Judge. This matter is before the Court on petitioners' motion to reopen this cause and for modification of the Court's order of April 18, 1977. The action was brought pursuant to §§ 7402(b) and 7604(a) of the Internal Revenue Code of 1954, 26 U.S.C. §§ 7402(b) and 7604(a), seeking judicial enforcement of an Internal Revenue Summons. The individual petitioner, Revenue Agent P. L. Sylvia, Jr., is employed by the Internal Revenue Service ("I.R.S.") in Richmond, Virginia, and is authorized to issue investigatory summonses pursuant to § 7602 of the Internal Revenue Code of 1954, 26 U.S.C. § 7602. Respondent, Harold J. Richards, is the recipient of the Internal Revenue summons in question and is a resident of Richmond, Virginia, within the jurisdiction of the Court. The relevant facts are as follows: Agent Sylvia is conducting an investigation into the federal tax liabilities of Fidelity Corporation for the years 1971-1974. Respondent Richards was the president of Fidelity Corporation at all times during the years relevant to the investigation. On November 12, 1976, Agent Sylvia issued an Internal Revenue summons to Mr. Richards directing him to appear and give testimony on December 1, 1976. Mr. Richards appeared on that date and was asked a series of eleven standardized questions,[1] eight of *830 which he refused to answer. These eleven questions were formulated by the I.R.S. as an auditing technique and compliance check to aid in identifying schemes such as "slush funds" designed by corporations to circumvent the tax laws. The I.R.S. routinely asks these eleven questions of large corporations. Mr. Richards' refusal to answer eight of the eleven questions prompted petitioners to institute this action for enforcement of the summons and to seek an order from the Court directing respondent to answer the questions. The Court heard argument in this matter in April of 1977. Mr. Richards, appearing pro se, argued that the unanswered questions were accusatory in nature, burdensome, and neither relevant nor material to a legitimate purpose of the I.R.S. investigation. Petitioners, on the other hand, contended that the questions were all relevant to a determination of the occurrence of any illegal payments that might have been included in Fidelity Corporation's tax returns as deductions or credits, which would therefore affect the tax liability of the corporation. In an order and memorandum entered on April 18, 1977, the Court modified the form of the unanswered questions so as to limit the scope of the I.R.S. inquiry to the potential tax liability of Fidelity Corporation.[2]*831 Language directed to other illegal conduct, which the Court deemed to have no effect on tax liability, was deleted from the questions. The Court then directed Mr. Richards to respond to the modified questions. On April 26, 1977, petitioners moved to reopen the case and applied for a modification of the Court's order. Mr. Richards, with counsel, opposed petitioners' motion and filed a memorandum in support thereof. The matter is currently ripe for disposition notwithstanding the Court's previously expressed intention to await a decision in an identical case by the United States Court of Appeals for the Fifth Circuit. In light of the soon to expire limitations period on tax assessments for the years 1971 through 1974, the Court deems it appropriate to enter a final order in this matter. For the reasons that follow, the Court denies petitioners' motion to reopen the case and application for modification of the Court's order. To obtain enforcement of an I.R.S. summons, petitioners must show (1) that the investigation will be conducted pursuant to a legitimate purpose, (2) that the inquiry may be relevant to that purpose, (3) that the information sought is not already within the Commissioner's possession, and (4) that the administrative steps required by the Code have been followed. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). The Court is concerned here with only the first two requirements listed above. Although the Court focused its attention primarily on the second of the requirements in its earlier memorandum, a threshold examination of the purpose of the I.R.S. investigation under the first requirement is in order. The scope of the investigatory power of the I.R.S. is determined by Section 7602 of the Internal Revenue Code of 1954, 26 U.S.C. § 7602. Section 7602 grants the I.R.S. summons power "[f]or the purpose of ascertaining the correctness of any return, making a return where none has been made, [or] determining the liability of any personal for any internal revenue tax . . .." Any inquiry outside this statutory purpose constitutes an unauthorized use of the summons power. The statute does not, unfortunately, specify when or under what circumstances the summons power may be exercised. *832 Mr. Richards has argued that, in the absence of a suspicion that Fidelity Corporation's tax returns are in error, the I.R.S. has no authority to make the "slush fund" inquiry in the present case. As noted in the Court's order and memorandum of April 18, 1977, the I.R.S. is not bound by a "probable cause" standard. Rather, the IRS may conduct an investigation "merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." United States v. Powell, supra at 57, 85 S.Ct. at 255, quoting United States v. Morton Salt Co., 338 U.S. 632, 642-43, 70 S.Ct. 357, 94 L.Ed. 401 (1950). Therefore, the I.R.S. is authorized to summons Mr. Richards for questioning in order to determine that Fidelity Corporation has not employed illegal practices so as to avoid tax liability. This broad investigatory power is not limitless; all questions asked pursuant to an I.R.S. investigation must, under the second requirement, be relevant to the purpose of determining compliance or non-compliance with the tax laws. 26 U.S.C. § 7602(3). The Court in its earlier order and memorandum found many of petitioners' questions too broad, inquiring into conduct unrelated to any potential tax liability. These questions address the occurrence or nonoccurrence of various illegal payments without restricting the inquiry to those payments which had or might have had an affect on Fidelity Corporation's tax returns. Finding the language of these questions to constitute an unauthorized intrusion into matters outside the scope of I.R.S. investigatory powers, the Court modified the questions and added a preamble that restricted the inquiry to expenditures "reflected directly or indirectly in the tax returns of the Corporation for the years in question."[3] Petitioners' memoranda in support of their motions to reopen this action and to modify the Court's order have failed to dissuade the Court from its finding that the proper focus of this I.R.S. investigation is on those illegal payments from which Fidelity gained some tax deduction or credit in circumvention of the tax laws. The relevancy requirement has been quite adequately defined as a test of whether the inspection sought might have thrown light on the correctness of the taxpayer's returns. United States v. Matras, 487 F.2d 1271, 1274 (8th Cir. 1973); United States v. Shlom, 420 F.2d 263 (2d Cir. 1969), cert. denied, 397 U.S. 1074, 90 S.Ct. 1521, 25 L.Ed.2d 809 (1970). The United States Court of Appeals for the Second Circuit has further refined this standard by defining the "might" in "might have thrown light upon" to mean whether, in the particular circumstances, there exists an indication of a "realistic expectation rather than an idle hope that something may be discovered." United States v. Harrington, 388 F.2d 520, 524 (2d Cir. 1968). The relevancy standard requires, then, that petitioners' inquiry limit itself to Fidelity Corporation's tax returns and those transactions which petitioners reasonably expect to throw some light on the accuracy thereof. The questions as modified, in the Court's view, satisfy this relevancy requirement. Petitioners have argued, however, that limiting the scope of the inquiry to those corporate expenditures that are directly or indirectly reflected in Fidelity Corporation's returns has prevented the I.R.S. from discovering the "myriad types of transactions which can be involved in illegal payments, schemes, or slush funds." As an example of such a "scheme" that would not be reflected as either a deduction or a credit, petitioners posit the existence of an illegal payment out of unreported income which would not appear at all on the tax return. Initially, the Court finds that any inquiry into such hypothetical schemes runs afoul of the Second Circuit's interpretation of the relevancy standard, constituting "an idle hope that something may be discovered" in *833 illegal payments not reflected on the return which could somehow affect Fidelity Corporation's tax liability. Cf. United States v. Goldman, 453 F.Supp. 508, 511-12 (C.D.Cal. 1978). Secondly, such an inquiry is patently irrelevant to the stated purpose of this slush fund investigation, because illegal payments may only be used to gain a tax advantage if they are somehow reflected, directly or indirectly, on a taxpayer's return.[4] The fact that such a payment was made, for example, from unreported income, is not material to this investigation. The existence of the unreported income and not the occurrence of any expenditure therefrom would be relevant to Fidelity Corporation's tax liability and could be questioned by a simple and direct inquiry directed towards unreported income. Although the Court sympathizes with petitioners' expressed inability to discern the "myriad ways in which such a fund could be created and expended," it is not the province of the I.R.S. to inquire into this area of corporate activity except insofar as the corporate expenditures affect tax liability. While the misplaced ingenuity of law violators may appear to be boundless, and thus an impediment to ferreting out illegal acts affecting tax liability, the experience and expertise of the I.R.S., in the Court's view, is equal to the task. While a sense of utter confusion over the ins and outs of tax laws is familiar to most taxpayers, including, and especially, the Court, an expression of bafflement by the tax collectors themselves, although a bit unsettling, is in the Court's view, no more than a statement of an enthusiastic advocate. The Court does not find persuasive petitioners' argument that the Court's preamble restricting the scope of inquiry leaves too much discretion to the taxpayer or his agent to withhold relevant information. While petitioners argue that the modified questions permit Mr. Richards to make the determination of which expenditures were reflected in the tax return, the Court finds this duty no more objectionable or discretionary than the determination of which payments were "bribes", "kickbacks", "loans", "disbursements", etc., which were left to Mr. Richards under the original questions. Only by means of the Court-imposed restriction may these questions meet the relevancy requirement explained above. Without such a limitation, the summons is unreasonable and disproportionate to the end sought. Cf. United States v. Theodore, 479 F.2d 749 (4th Cir. 1973) (summons to accounting firm executive to produce all clients' returns held too broad and vague). Any inquiry outside the limits set out in the Court's preamble would constitute an impermissible "fishing expedition" which this Court cannot sanction.[5] The Court acknowledges its own lack of expertise in drafting questions regarding tax matters. As noted in the Court's earlier order, however, it is the federal court's duty to interpose itself between the government and the person summoned to ensure "that a legitimate investigation was being conducted and that the summons was no broader than necessary to achieve its purpose." United States v. Bisceglia, 420 U.S. 141, 151, 95 S.Ct. 915, 921, 43 L.Ed.2d 88 (1975). Should petitioners seek other information relevant to Fidelity Corporation's tax liability, such as unreported income or corporate net worth, a simple, direct question or questions directed to those issues would be appropriate and welcomed by the Court. The burden is on petitioners to prove relevance and not on Mr. Richards to prove the irrelevance of any inquiry made by the I.R.S. to Fidelity Corporation's tax liability. The complexity of tax issues is no excuse for an overly broad summons. For the reasons stated in *834 the Court's order of April 18, 1977, as reiterated and supplemented by this memorandum, the Court will deny petitioners' motion and application. NOTES [1] 1. During the years 1971 through 1974, did the corporation, any officer or employee or any third party acting on behalf of the corporation, make, directly or indirectly, any bribes, kickbacks or other payments, regardless of form, whether in money, property, or services, to any employee, person, company or organization, or any representative of any person, company or organization, to obtain favorable treatment in securing business or to otherwise obtain special concessions, or to pay for favorable treatment for business secured or for special concessions already obtained? 2. During the years 1971 through 1974, did the corporation, any corporate officer or employee or any third party acting on behalf of the corporation, make any bribes, kickbacks, or other payments regardless of form whether in money, property or services, directly or indirectly, to or for the benefit of any government official or employee, domestic or foreign, whether on the national level or a lower level such as state, county or local (in the case of a foreign government also including any level inferior to the national level) and including regulatory agencies or governmentally-controlled businesses, corporations, companies or societies, for the purpose of affecting his/her action or the action of the government he/she represents to obtain favorable treatment in securing business or to obtain special concessions, or to pay for business secured or special concessions obtained in the past? 3. During the years 1971 through 1974, were corporate funds donated, loaned or made available, directly or indirectly, to or for the use or benefit of, or for the purpose of opposing, any government or subdivision thereof, political party, candidate or committee, either domestic or foreign? 4. During the years 1971 through 1974, was corporate property of any kind donated, loaned, or made available, directly or indirectly, to or for the use or benefit of, or for the purpose of opposing, any government or subdivision thereof, political party, candidate or committee, either domestic or foreign? 5. During the years 1971 through 1974, was any corporate officer or employee compensated, directly or indirectly, by the corporation, for time spent or expenses incurred in performing services for the benefit of, or for the purpose of opposing any government or subdivision thereof, political party, candidate or committee, either domestic or foreign? 6. During the years 1971 through 1974, did the corporation make any loans, donations or other disbursements, directly or indirectly, to corporate officers or employees or others for the purpose of making contributions, directly or indirectly, for the use or benefit of, or for the purpose of opposing, any government or subdivision thereof, political party, candidate or committee, either domestic or foreign? 7. During the years 1971 through 1974, did the corporation make any loans, donations or other disbursements, directly or indirectly, to corporate officers or employees or others for the purpose of reimbursing such corporate officers, employees or others for contributions make, directly or indirectly, for the use or benefit of, or for the purpose of opposing, any government or subdivision thereof, political party, candidate or committee, either domestic or foreign? *8. During the years 1971 through 1974, does now or did any corporate officer or employee or any third party acting on behalf of the domestic corporation have signatory or other authority or control over disbursements from foreign bank accounts? *9. During the years 1971 through 1974, does now or did the corporation maintain a bank account or any other account of any kind, either domestic or foreign, which account was not reflected on the corporate books, records, balance sheets, or financial statements? *10. During the years 1971 through 1974, does now or did the corporation or any other person or entity acting on behalf of the corporation maintain a domestic or foreign numbered account or any account in a name other than the name of the corporation? *11. Which other present or former corporate officers, directors, employees, or other persons acting on behalf of the corporation may have knowledge concerning any of the above areas? * Indicates answered by respondent. [2] 1. During the years 1971 through 1974, were any expenses of the Corporation, or any expenditures of the corporate income or assets, attributable, directly or indirectly, to any of the following, and reflecting directly or indirectly in the tax returns of the Corporation for the years in question: (a) Payment by the Corporation, any officer or employee or third party of any bribes, kickbacks or other payments, regardless of form, whether in money, property or services, to any employee, person, company, or organization to obtain favorable treatment in securing business or to otherwise obtain special concessions, or to pay for favorable treatment for business secured or for special concessions already obtained? (b) Payments by the Corporation to any corporate officer or employee or any third party acting on behalf of the Corporation of or for bribes, kickbacks, or other payments regardless of form, whether in money, property or services, directly or indirectly, to or for the benefit of any government official or employee, domestic or foreign, whether on the national level or lower level such as state, county or local (in the case of a foreign government also including any level inferior to the national level) and including regulatory agencies or governmentally-controlled businesses, corporations, companies, or societies, for the purpose of affecting his/her action or the action of the government he/she represents to obtain favorable treatment in securing business or to obtain special concessions, or to pay for business secured or special concessions obtained in the past? (c) The use of corporate funds, or corporate property of any kind, donated, loaned or made available, directly or indirectly, to or for the use or benefit of, or for the purpose of opposing any government or subdivision thereof, political party, candidate or committee, either domestic or foreign? (d) Payment or disbursement, loans, donations or other disbursements, regardless of form, for the performing of services for the benefit of, or for the purpose of opposing any government or subdivision thereof, political party, candidate or committee, either domestic or foreign? (e) Loans, donations, or other disbursements, directly or indirectly, to corporate officers or employees or others for the purpose of reimbursing such corporate officers, employees or others for contributions made, directly or indirectly, for the use or benefit of, or for the purpose of opposing any government or subdivision thereof, political party, candidate or committee, either domestic or foreign? 2. During the years 1971 through 1974, was any corporate officer or employee compensated, directly or indirectly, by the Corporation, for time spent or expenses incurred in performing services for the benefit of, or for the purpose of opposing any government or subdivision thereof, political party, candidate or committee, either domestic or foreign? 3. During the years 1971 through 1974, did the Corporation make any loans, donations or other disbursements, directly or indirectly, to corporate officers or employees or others for the purpose of making contributions, directly or indirectly, for the use or benefit of, or the purpose of opposing any government or subdivision thereof, political party, candidate or committee, either domestic or foreign? 4. Which of the present or former corporate officers, directors, employees, or other persons acting on behalf of the Corporation may have knowledge concerning any of the above areas? [3] The Tax Section of the New York Bar Association has likewise suggested that responses to the eleven questions be limited to payments that "have generated or may in the future generate or affect deductions or credits on the Company's federal income tax return . .." See N.Y. State Bar Ass'n., Report on the Internal Revenue Service `Slush Fund' Investigation, 32 Tax.L.Rev. 161, 235-36 (1977). [4] It is noteworthy that the New York State Bar Association's Tax Section has suggested that the slush fund inquiry is not primarily undertaken to ensure the collection of revenue, the main function of the auditing process. Id. at 162. [5] It should be noted here that the Court restricted the scope of the inquiry to those transactions reflected in 1971-1974 tax returns because those returns were under investigation. The Court finds no problem with an inquiry into 1971-1974 transactions which are reflected in returns filed after that three-year period.

Affirmed and Memorandum Opinion filed October 26, 2006 Affirmed and Memorandum Opinion filed October 26, 2006.     In The   Fourteenth Court of Appeals _______________   NO. 14-05-00395-CV _______________   U.S. JIN CHEN ENTERPRISE, INC., Appellant   V.   PI-CHI CHEN a/k/a PI-CHEE CHEN and HOUSTON T-SHIRT BAG COMPANY, Appellees                                                                                                                                                  On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 03-56332                                                                                                                                                    M E M O R A N D U M   O P I N I O N In this breach of contract and fraud case, U.S. Jin Chen Enterprise, Inc. (AJin Chen@) appeals the trial court=s: (1) denial of its motion for continuance and (2) order striking the affidavit attached to its response to Pi-Chi Chen (APi-Chi@) and Houston T-Shirt Bag Company=s (AHouston T-Shirt@) motions for summary judgment.[1]  We affirm. Background In early 2000, Shaanxi Jinye Science Technology & Education Co., Ltd. Group (AJinye@), a Chinese company, and Houston T-Shirt entered into an agreement, written entirely in Chinese (the AChinese agreement@), in which Jinye agreed to acquire Houston T-Shirt=s plastic bag manufacturing business in Houston, and Houston T-Shirt agreed to purchase a monthly minimum of plastic bags.  Jinye thereafter formed Jin Chen, a Texas corporation, which began operating that business and selling plastic bags to Houston T-Shirt.  Several months later, Jin Chen entered into several contracts[2] written in English (the AEnglish agreements@) that were similar in effect to the Chinese agreement, except that Nation Plastics, Inc. (ANation Plastics@), rather than Houston T-Shirt, agreed to purchase the monthly minimum of plastic bags from Jin Chen.  In 2002, Nation Plastics began complaining about the quality of bags manufactured by Jin Chen and reduced the level of its purchase orders, ultimately ceasing orders from Jin Chen in 2003. Jin Chen thereafter filed this lawsuit against Pi-Chi and Houston T-Shirt for breach of contract and fraudulent inducement with regard to only the Chinese agreement.[3]  Pi-Chi and Houston T-Shirt filed counterclaims, alleging breach of the English agreements for Jin Chen=s failure to pay the full purchase price under these agreements and rent under a lease it assumed from Houston T-Shirt. As relevant to this appeal, Pi-Chi and Houston T-Shirt filed motions for summary judgment against Jin Chen=s claims and on their own counterclaims.  With its summary judgment response, Jin Chen moved for a continuance in order to depose certain witnesses and provided an affidavit (the Aaffidavit@) by Genqun Lei, the president of Jin Chen.  The trial court struck the affidavit and implicitly denied the motion for continuance by granting summary judgment in favor of Pi-Chi and Houston T-Shirt. Finality of Summary Judgment Because Jin Chen filed a first original amended petition purporting to join Jinye as an additional plaintiff on December 16, 2004, and Houston T-Shirt filed a motion to strike the amended petition, we abated this appeal to ensure that the summary judgment being appealed was a final judgment.  See Tex. R. App. P. 27.2.  Our abatement order (the Aabatement order@) stated, in part: [W]e order the case abated and remanded to the trial court for a period of thirty days to permit the parties to obtain an order granting the motion to strike the first amended original petition.  If an order granting the motion to strike is signed by the trial court, a supplemental clerk=s record containing the order, and all documents necessary to establish that the judgment being appealed is final, shall be filed with the clerk of this court on or before August 28, 2006. U.S. Jin Chen Enter. v. Pi-Chi Chen, No. 14-05-00395-CV (Tex. App.CHouston [14th Dist.] July 27, 2006) (order abating appeal).  The trial court subsequently entered an order, entitled AJudgment Nunc Pro Tunc,@ in which it stated: This Judgment Nunc Pro Tunc is entered solely to clarify that, when the Final Judgment was signed on January 17, 2005, the Court intended to enter a final order addressing all claims of all parties in this case because the Court finds that some confusion may have been created due to the fact the Court did not enter a written order striking [Jin Chen=s] First Amended Original Petition while intending to do so. IT IS THEREFORE ORDERED that the terms of the Court=s Final Judgment signed on January 17, 2005 are incorporated herein by this reference. IT IS FURTHER ORDERED that [Jin Chen=s] First Amended Original Petition is stricken from the record.  Thus, the Court did not consider [Jin Chen=s] First Amended Original Petition as its live pleading when signing the Final Judgment on January 17, 2005. Jin Chen has objected to the judgment nunc pro tunc arguing that, after a trial court loses its jurisdiction over a judgment, it can correct only clerical errors in the judgment by a judgment nunc pro tunc.  See, e.g., Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986).  Jin Chen argues this nunc pro tunc judgment is void because it attempts to correct a judicial, rather than clerical, error. However, until the record reflected that the trial court=s previous judgment was made final by the striking of Jin Chen=s first amended original petition, that judgment remained interlocutory and the trial court retained jurisdiction over the case; and our abatement order remanded the case to the trial court to so clarify the record.  Therefore, regardless whether the trial court=s purported judgment nunc pro tunc is correctly titled, it is not void for lack of jurisdiction.  We thus overrule Jin Chen=s objection to it and turn to the merits of the appeal. Summary Judgment Jin Chen=s first and second issues challenge the denial of its motion for continuance.  The granting or denial of a motion for continuance is within the trial court=s sound discretion.  Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997).  Should it appear from the affidavits of a party opposing a motion for summary judgment that it cannot (for reasons stated) present by affidavit facts essential to justify its opposition, the court may refuse the application or may order a continuance to permit affidavits, depositions or other discovery to be obtained.  Tex. R. Civ. P. 166a(g).  In this case, because Jin Chen does not cite us to any affidavits indicating that it could not present controverting summary judgment evidence without the requested depositions,[4] we have no basis to conclude that the trial court abused its discretion in denying the motion for continuance.  Accordingly, Jin Chen=s first and second issues are overruled. Jin Chen=s third and fourth issues challenge the striking of the affidavit.  However, issues not expressly presented to the trial court by written motion or response cannot be considered as grounds for reversal on appeal.  Tex. R. Civ. P. 166a(c).  Similarly, an appellant=s brief must contain a clear argument for the contentions made, including necessary citations to the record.  Tex. R. App. P. 38.1(h). In this case, Jin Chen contends that the affidavit contained evidence necessary to rebut appellees= motions for summary judgment.  However, its brief does not specify how any facts recited in the affidavit would have created a fact issue on any claims or defenses in the case.  Similarly, Jin Chen=s summary judgment response asserted, in a conclusory manner, that referenced paragraphs of the affidavit supported elements of its claims and raised fact questions concerning various issues in the case, but it did not explain how any particular facts set forth in any referenced paragraph actually did so or otherwise rebutted any summary judgment grounds asserted by appellees.  Under these circumstances, we have no basis to conclude that reversing the trial court=s decision to strike the affidavit would, in turn, require a reversal of the summary judgment.  Accordingly, Jin Chen=s third and fourth issues are overruled, and the judgment of the trial court is affirmed.       /s/        Richard H. Edelman Justice   Judgment rendered and Memorandum Opinion filed October 26, 2006. Panel consists of Justices Anderson, Edelman, and Frost. [1]           Although Voni Chen a/k/a Pi-Chun Chen, Richard Chun-Hua, John Doe I, John Doe II, and John Doe III were listed as defendants in the caption of the trial court case, our record does not reflect that any of them were served or participated in the lawsuit, and the judgment in this case does not purport to address them in any way. [2]           These documents included an Asset Purchase Agreement and Bill of Sale, executed by Pi-Chi on behalf of Houston T-Shirt, and a Purchase Agreement, executed by Pi-Chi on behalf of Nation Plastics. [3]           Jin Chen was not a party to the Chinese agreement but was formed after its execution.  [4]           Jin Chen filed a motion for new trial, attaching deposition transcripts taken in a companion case of the witnesses for whose depositions the continuance was sought in this case.  However, Jin Chen=s brief fails to particularize how the testimony in those depositions would have created fact issues on any of the grounds for which appellees sought summary judgment in this case.

849 F.2d 600 Appeal of Dombek (Harry, Pastor) NO. 87-5761 United States Court of Appeals,Third Circuit. MAY 12, 1988 Appeal From: M.D.Pa., Rambo, J. 1 AFFIRMED.

623 F.Supp.2d 1257 (2009) Bob COFFEY, et al., Plaintiffs, v. FREEPORT-McMORAN COPPER & GOLD INC., et al., Defendants. No. CIV-08-0640-HE. United States District Court, W.D. Oklahoma. April 27, 2009. *1259 Andrew M. Ihrig, Ihrig Law Firm-Stillwater, Stillwater, OK, Benjamin L. Barnes, Micky Walsh, Beeler Walsh & Walsh PLLC, Oklahoma City, OK, John C. Hull, Keith L. Langston, Kristen J. Pauls, Nelson J. Roach, Bradley Earl Beckworth, Nix Patterson & Roach LLP, Daingerfield, TX, for Plaintiffs. Emily P. Blackwell, Lewis C. Sutherland, Morgan L. Copeland, Vinson & Elkins, Houston, TX, Reid E. Robison, Timothy *1260 J. Bomhoff, McAfee & Taft, Klahoma City, OK, Kevin E. O'Malley, Michael K. Kennedy, Raymond K. Ramella, Wm Charles Thomson, Gallagher & Kennedy PA, Phoenix, AZ, for Defendants. ORDER JOE HEATON, District Judge. Plaintiffs, Oklahoma citizens, filed this class action in state court asserting nuisance, trespass, strict liability and unjust enrichment claims, based on the defendants' alleged contamination of their property through operation of the Blackwell Zinc Smelter in Blackwell, Oklahoma. The defendants are Blackwell Zinc Company, Inc. ("BZC"), the company that operated the smelter, its parent companies and their successor corporations—Freeport-McMoRan Copper & Gold, Inc., Phelps Dodge Corp., Cyprus Amax Minerals Co., and Amax, Inc.,—the Blackwell Industrial Authority ("BIA"), and BNSF Railway Co. The defendants removed the case, asserting jurisdiction under the Class Action Fairness Act of 2005 ("CAFA"), the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"),[1] and 28 U.S.C. § 1442(a)(1), federal officer removal.[2] The plaintiffs have filed a motion to remand, contending the court lacks subject matter jurisdiction. BACKGROUND[3] BZC owned and operated a smelter, used to refine zinc and cadmium ore concentrates, in Blackwell, Oklahoma from 1916 until 1974. In 1974, it dismantled the facility and donated the land to the Blackwell Industrial Authority ("BIA").[4] The BIA developed the property as an industrial park. Currently known as the Blackwell Industrial Park, the site[5] consists of approximately 160 acres located one-half mile west of downtown Blackwell. In 1992 the Environmental Protection Agency ("EPA") indicated Blackwell might be designated a Superfund site and placed on the National Priorities List if investigation and remedial efforts did not begin. That year BZC, the BIA and the City of Blackwell entered into a Consent Agreement and Final Order with the Oklahoma State Department of Health "to characterize and remediate the environmental contamination at the old Smelter site and on *1261 city property." Petition, ¶ 12. Two years later, in 1994, the Oklahoma Department of Environmental Quality ("ODEQ")[6] and the EPA entered into a Memorandum of Understanding ("MOU")[7] regarding remedial action to be taken in response to the release of hazardous substances at the Blackwell Zinc Site ("Site").[8] The purpose of the MOU was to "ensure prompt CERCLA-Quality Cleanup of the Site," but conserve EPA resources by allowing ODEQ to develop and implement a remediation plan for the Site. The MOU required ODEQ to submit drafts of its proposed Plan, Decision Document,[9] and Remedial Design to the EPA for its review and comment, present to the EPA the procedures selected to complete the Remedial Design/Remedial Action ("RD/RA"), submit written quarterly and yearly progress reports, and arrange for EPA representatives to have access to the Site. The MOU provided that "[i]f, at any time, EPA determines that ODEQ is overseeing or conducting remedial action, at the Site, which is inconsistent with CERCLA, or the NCP, or which is not a CERCLA-Quality Cleanup, this MOU shall terminate." MOU, p. 10.[10]See Notice of Removal, Exhibit C, Record of Decision Document ("ROD"), p. 7 ("EPA agreed to not make a final determination to list the Site on the National Priorities List (NPL) as long as the pilot project proceeds in a timely manner and achieves CERCLA quality results."). The Site was divided into three operable units—the Soil Remediation Unit ("SRU"), the Ecological Remediation Unit ("ERU") and the Ground Water Remediation Unit ("GRU")—to allow soil remediation to proceed in advance of the other units. The SRU dealt "with soil contamination in residential, recreational, and commercial/industrial areas on the site." ROD, p. 1. The ERU included "areas subject to ecological risk-based remediation goals," such as grasslands, riparian areas, and streams. The GRU pertained to contaminated groundwater.[11] In April, 1996, ODEQ issued its Record of Decision, which specified the remediation plan for the SRU. Remediation efforts began, principally consisting of soil removal and the capping in place of impacted soil. In July, 2001, the Final Remedial Action Completion Report ("Final Report") for the SRU was issued, which documented that "the construction of the *1262 remedy as prescribed within the Final Remedial Design Report, Blackwell Zinc Site Soil Remediation Unit, Blackwell, Oklahoma, PTI, May 1999 was substantially complete in 1999 with final completion in 2000." Notice of Removal, Exhibit E, Second Five-Year Review Report ("Second Report"), p. iii. The Second Report, dated April, 2008, states that BZC had undertaken a second residential soil sampling program and that "[t]hrough May 2008, access agreements for over 3,400 properties had been obtained and sampling is in progress. Based on results, some properties will require cleanup. Cleanup will begin in May 2008." Id. The Report also states that: Construction is complete for those properties within the SRU that were identified and addressed prior to ODEQ's approval of the FRACR.[12] Additional properties are currently being evaluated under a supplemental soil sampling program. With respect to those additional properties, the remediation status is "under construction." Id. at p. iv. In April, 2008, the plaintiffs filed this class action in state court, asserting state common law claims and seeking both monetary and equitable relief.[13] The defendants removed the case, asserting three bases for federal jurisdiction: CAFA, CERCLA and federal officer. CAFA CAFA "extends the subject matter jurisdiction of the federal courts to encompass putative class actions in which at least one plaintiff class member is diverse from one defendant and where the amount in controversy exceeds $5 million." Weber v. Mobil Oil Corp., 506 F.3d 1311, 1313 (10th Cir.2007). "In enacting CAFA, Congress was responding to what it perceived as abusive practices by plaintiffs and their attorneys in litigating major interstate class actions in state courts, which had `harmed class members with legitimate claims and defendants that ha[d] acted responsibly,' `adversely affected interstate commerce,' and `undermined public respect for our judicial system.'" Amoche v. Guarantee Trust Life Ins. Co., 556 F.3d 41, 47 (1st Cir.2009) (quoting CAFA, Pub.L. No. 109-2, § 2(a), 119 Stat. 4, 4 (2005)). Although "CAFA's language favors federal jurisdiction over class actions," Evans v. Walter Indus., Inc., 449 F.3d 1159, 1163 (11th Cir.2006), Congress "did not give federal courts jurisdiction over all class actions, specifically excluding those consisting of `primarily local matters.'" Johnson v. Advance America, 549 F.3d 932, 938 (4th Cir.2008), citing Sen. Rep. No. 109-14, at 6 (2005), U.S.Code Cong. & Admin.News 2005, at 3, 7. The plaintiffs argue that their lawsuit constitutes a "truly local dispute," which falls within the "local controversy" exception to CAFA. That exception provides in relevant part: "A district court shall decline to exercise jurisdiction ...— (A)(i) over a class action in which— (I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed; (II) at least 1 defendant is a defendant— *1263 (aa) from whom significant relief is sought by members of the plaintiff class; (bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and (cc) who is a citizen of the State in which the action was originally filed; and (III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and (ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons."[14] 28 U.S.C. § 1332(d)(4)(A). While the defendants must establish under CAFA that the amount in controversy and minimal diversity requirements are met, Amoche, 556 F.3d at 48, the plaintiffs bear the burden of proving that one of the exceptions to federal jurisdiction applies. Evans, 449 F.3d at 1164-65. There is no dispute here that the defendants have met their initial burden of showing the existence of diversity jurisdiction under CAFA. See 28 U.S.C. § 1332(d)(2). The question is whether the plaintiffs have met their burden to establish an applicable exception. In particular, have the plaintiffs satisfied the "significant defendant" prong of the local controversy exception? See generally Evans, 449 F.3d at 1163 ("CAFA's legislative history suggests that Congress intended the local controversy exception to be a narrow one, with all doubts resolved `in favor of exercising jurisdiction over the case.'") (quoting S.Rep. No. 109-14 at 42, U.S.Code Cong. & Admin. News 3, 40). For the exception to apply, the proposed class must seek significant relief from an instate defendant whose conduct forms a significant basis for their claims. The plaintiffs argue that both Blackwell Zinc Company ("BZC") and the Blackwell Industrial Authority ("BIA") are "significant defendants." BZC The initial question is whether BZC is an in-state/Oklahoma corporation. As BZC is incorporated in New York, its principal place of business must be in Oklahoma for it to be considered an Oklahoma citizen. See Gadlin v. Sybron Int'l Corp., 222 F.3d 797, 799 (10th Cir.2000). The defendants claim BZC has not conducted sufficient business to have a principal place of business in Blackwell "since at least the time that Phelps Dodge Corporation (now Freeport-McMoRan Corporation) acquired BZC's parent corporation Cyprus Amax, in 1999." Defendants' response, p. 29. BZC's corporate secretary has attested that, since 1999, the company "has conducted no business, other than following the formalities to keep the corporation in existence." Defendants' Notice of Removal, Exhibit G, Currault affidavit. The defendants also have submitted testimony that BZC has no significant assets *1264 and is not engaged in any revenue-generating operations. However, in 2006, BZC filed a permit application with ODEQ for the Blackwell Zinc Site Groundwater Treatment Plant, whose stated purpose was to treat groundwater contaminated "by past operation—at the former Blackwell Zinc Smelter."[15] Plaintiffs' motion, Exhibit 4, water permit. BZC also has engaged in continued remediation efforts in conjunction with the ROD, including "an extensive community outreach program."[16] Second Report, pp. 14-17 ("BZC also performed several response actions in 2007 in connection with a supplemental residential soil sampling program (SSP) initiated by BZC that year."). While, as the defendants assert, an inactive corporation that is merely responding to claims or lawsuits arising from its prior operations may not have a "principal place of business," as the term is used in 28 U.S.C. § 1332(c)(1), the court is not persuaded that the "various environmental response activities that [BZC] has conducted or overseen beginning in the 1990's," defendants' response, p. 29, do not constitute "transacting business" for jurisdictional purposes. The plaintiffs argue that "[t]he only purpose for the continued existence of BZC is to clean up pollution in Blackwell left behind by the smelter." Plaintiffs' motion, p. 11. Whether or not that is the sole reason for the company's existence, it appears to be a substantial activity in which it currently is engaged. The court finds that activity suffices to establish Oklahoma as BZC's principal place of business. See Gadlin, 222 F.3d at 799 ("When determining a corporation's principal place of business, a court should look to the `total activity of the company' or the `totality of the circumstances,' considering `the character of the corporation, its purposes, the kind of business in which it is engaged, and the situs of its operations.'") (quoting Amoco Rocmount Co. v. Anschutz Corp., 7 F.3d 909, 915 & n. 2 (10th Cir.1993)). Resolving the question of BZC's citizenship does not end the inquiry though. To establish the local controversy exception, the plaintiffs also must show that they seek significant relief from the former smelter operator and that BZC's conduct forms a significant basis for their claims. CAFA offers little guidance in defining or supplying "standards for determining whether the relief sought is `significant,' or for determining which bases for the plaintiffs' claims are `significant.'" Ava Acupuncture P.C. v. State Farm Mut. Auto. Ins. Co., 592 F.Supp.2d 522, 528 (S.D.N.Y. 2008). Many courts have concluded that the terms "significant relief" and "significant basis" are ambiguous, allowing resort to legislative history, a Senate Committee *1265 Report, for their interpretation.[17]E.g., Kearns v. Ford Motor Co., 2005 WL 3967998, at *9-11 (C.D.Cal.2005). Contra Caruso v. Allstate Ins. Co., 469 F.Supp.2d 364, 370 (E.D.La.2007) ("When, as here, there is no ambiguity in the statutory language that would warrant looking beyond the plain language of the statute for additional understanding of Congress's intent, resort to the legislative history is unnecessary.") (internal quotation omitted). Courts generally have required that the local defendant's conduct be significant when compared to the alleged conduct of the other defendants and that "the relief sought against that defendant is a significant portion of the entire relief sought by the class." Evans, 449 F.3d at 1167. Several courts have stated that the significant relief inquiry "`includes not only an assessment of how many members of the class were harmed by the defendant's actions, but also a comparison of the relief sought between all defendants and each defendant's ability to pay a potential judgment.'" Id. (quoting Robinson v. Cheetah Transp., 2006 WL 468820, at *3 (W.D.La. 2006) (opinion of Magistrate Judge), aff'd, 2006 WL 1453036 (W.D.La.2006) (district court opinion)). The defendants do not dispute that BZC's alleged conduct satisfies the "significant basis" requirement. As the sole owner and operator of the smelter, BZC clearly played a principal role in the alleged contamination. The defendants also do not dispute that the class seeks to recover extensive damages from the instate defendant. Instead they focus on BZC's alleged lack of assets, arguing that a class cannot seek significant relief from a party that is unable to satisfy any judgment entered against it. Essentially, the defendants claim that a class can only seek "significant relief" under CAFA from a defendant with "appreciable assets." Defendants' response, p. 13. The construction of the phrase "from whom significant relief is sought," urged by the defendants originated in Robinson, 2006 WL 468820, at *3. That class action was filed in state court in Louisiana on behalf of all person who resided or worked in Caldwell Parish on a certain date and were affected by the closure of the Columbia bridge, which occurred after it was struck by a tractor-trailer driven by John Gaston. The putative class representative sued the truck driver, his employer, the employer's insurer, and the owner of the truck's cargo. All the defendants, with the exception of Gaston, were citizens of states other than Louisiana. They removed the case to federal court pursuant to CAFA and the plaintiff sought to have it remanded under the statute's local controversy exception. The court held that the putative class did not seek significant relief from Gaston, the sole in-state defendant, relying on an example the Senate used to illustrate the local controversy exception. The example described a products liability class action brought in Florida on behalf of Floridians against an out-of-state automobile manufacturer and a few in-state dealers alleging a defective transmission. The Report stated that the automobile dealers are not defendants whose alleged conduct forms a significant basis of the claims or from whom significant relief is sought by the class. Even if the plaintiffs are truly seeking relief from the dealers, that relief is just small change compared to what they are seeking from the manufacturer. Moreover, the main allegation is that the *1266 vehicles were defective. In product liability cases, the conduct of a retailer such as an automobile dealer does not form a significant basis for the claims of the class members. S.Rep.No. 109-14, at 41 (2005), U.S.Code Cong. & Admin.News 2005, at 39. The Robinson court focused on the Senate's "small change" comment, concluding that, "[a]s this statement makes clear, whether a putative class seeks significant relief from an in-state defendant includes not only an assessment of how many members of the class were harmed by the defendant's actions, but also a comparison of the relief sought between all defendants and each defendant's ability to pay a potential judgment." Robinson, 2006 WL 468820, at *3. The court found that Gaston, the only individual named in the suit whom the plaintiffs had not ever served with process, was "just small change," in comparison to the remaining defendants, all out-of-state national companies. While his "alleged negligence may have substantially contributed to the class members' damages," the judge held that the plaintiff would seek most of the relief "from those who are capable of paying it: the corporate defendants." Id., at *4. Robinson has been quoted in subsequent cases. In some of them, while a defendant's financial status was listed as a consideration, it was not actually discussed. Evans, 449 F.3d at 1167; Cox v. Allstate Ins. Co., 2008 WL 2167027, at *3 (W.D.Okla.2008); Dunham v. Coffeyville Res., LLC, 2007 WL 3283774, at *3-4 (D.Kan.2007); see Cooper v. R.J. Reynolds Tobacco Co., 586 F.Supp.2d 1312 (M.D.Fla.2008) (noting that, for purposes of § 1332(d)(4)(B), courts used a variety of tests to define the term "primary defendants," including whether a defendant was "most able to satisfy a potential judgment," but finding it unnecessary to adopt any test); see generally Phillips v. Severn Trent Envtl. Servs., Inc., 2007 WL 2757131, at *3 n. 4 (E.D.La.2007) ("The Court acknowledges that Plaquemines Parish contends in its cross-claim that its contract with Severn Trent for the maintenance of the Parish's water treatment contains an indemnity provision, but that has no effect on the determination that the Parish is a significant defendant."). In others, in which the courts factored in a defendant's ability to satisfy a judgment, the facts are distinguishable. For example, in Escoe v. State Farm Fire and Cas. Co., 2007 WL 1207231 (E.D.La.2007), the court concluded that an insurance agent, whom it presumed sold insurance policies to only a fraction of the class members and whose ability to pay an potential judgment obviously was much smaller than State Farm's,[18] was not a significant defendant.[19]See Cox, 2008 WL 2167027, at *3-4. In none of these cases did the court conclude that a defendant in a position akin to that of BZC was not a significant defendant because of an asserted lack of assets. Also, here, in contrast to most of the decisions in which a defendant's ability to satisfy a judgment has been considered, all putative class members allege claims against the in-state defendant and seek the identical—injunctive and monetary—relief *1267 from all defendants. Petition, ¶¶ 37, 111. See generally Notice of Removal, ¶¶ 30-36. Defendants argue that unless the phrase "from whom significant relief is sought" is construed as "from whom significant relief may actually be obtained," the two separate elements of the local controversy exception—significant relief and significant basis—merge. The argument is unpersuasive. While the requirements may, to some extent, overlap, the court concludes that the separate significant relief element is satisfied here, where the petition claims that every potential plaintiff is entitled to recover from the BZC and the proposed class seeks to collect damages from all the defendants jointly and severally. See Kearns, 2005 WL 3967998, at *10 ("[Significant] relief must be measured with respect to that sought by the entire class.").[20] The plaintiffs' inclusion of other members of the corporate structure as defendants does not mean the class is not seeking to recover its full damages from BZC. Although the plaintiffs have "sued a number of legal entities, but one defendant clearly stands before all the others in importance: [BZC] which own[ed] and operate[d] the [smelter] in question." Dunham, 2007 WL 3283774, at *3. See generally Laws v. Priority Trustee Servs. of North Carolina, L.L.C., 2008 WL 3539512, at *5 (W.D.N.C.2008) (when plaintiffs were seeking relief from fees law firm received in connection with foreclosures and codefendant trust service, allegedly owned by law firm, neither at the time of the lawsuit nor during the time frame relevant to the plaintiffs' claims had any assets, trust service was not a defendant from whom significant relief was sought). Although the question is not free from doubt, the court concludes plaintiff's view of the "significant defendant" element is most consistent with the statutory language actually employed by Congress. The CAFA exception refers to a defendant from whom significant relief is "sought," rather than a defendant from whom the relief "may be obtained" or "can be collected" or words of similar import. Further, in other portions of the statute, Congress used a different term—that of "principal defendants"—to identify defendants from whom the bulk of any financial recovery would expect to be collected. The Senate Report states: For purposes of class actions that are subject to subsections 1332(d)(3) and (d)(5)(A), the Committee intends that "primary defendants" be interpreted to reach those defendants who are the real "targets" of the lawsuit—i.e., the defendants that would be expected to incur most of the loss if liability is found. S.Rep. No. 109-14, at 43, U.S.Code Cong. & Admin.News 2005, at 41. Although it is possible that Congress intended the terms "principal defendant" and "from whom significant relief is sought" to mean the same thing, it did not say so. It expressed the principles or elements in different language and the court assumes that was intentional. Based on the statutory language and the specific facts before it,[21] the court concludes *1268 that BZC's status as a significant defendant does not turn on its ability to satisfy any judgment the class may obtain against it.[22] Recognizing that the local controversy exception "is a narrow exception that was carefully drafted to ensure that it does not become a jurisdiction loophole," the court nonetheless concludes that BZC is a significant in-state defendant for purposes of the local controversy exception[23] and that this case is "a truly local controversy—a controversy that uniquely affects a particular locality to the exclusion of all others." Evans, 449 F.3d at 1164 (quoting S.Rep. 109-14, at 39, U.S.Code Cong. & Admin.News 2005, at 38).[24] The court does not have subject matter jurisdiction under CAFA. CERCLA[25] "Congress enacted CERCLA to provide a mechanism for the prompt and efficient cleanup of hazardous waste sites." Cannon v. Gates, 538 F.3d 1328, 1332 (10th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1669, 173 L.Ed.2d 1035 (2009) (quoting United States v. City and County of Denver, 100 F.3d 1509, 1511 (10th Cir.1996)). Federal district courts have "exclusive original jurisdiction" of CERCLA actions. 42 U.S.C. § 9613(b). CERCLA does not, however, completely preempt state law claims. See General Elec., 467 F.3d at 1244 ("Given these saving clauses, as well as the spirit of cooperative federalism running throughout CERCLA and its regulations, we may safely say Congress did not intend CERCLA to completely preempt state laws related to hazardous waste contamination."). "CERCLA as enacted provides no private right of action for personal or economic injury caused by the release of hazardous substances." Id. at 1246 n. 34. Individuals may "proceed with their state law claims concurrently with a CERCLA remediation in place," *1269 New Jersey Dep't of Environmental Protection v. Minnesota Mining & Man. Co., 2007 WL 2027916, at *6 (D.N.J.2007), so long as they are not seeking relief that is inconsistent with ongoing CERCLA-mandated remediation. See Cannon, 538 F.3d at 1332. The defendants assert that the court has jurisdiction under CERCLA because the plaintiffs, in their petition, challenge an "ongoing CERCLA-quality cleanup." Defendants' response, p. 40. They claim the plaintiffs seek "sweeping injunctive relief to dramatically alter the on-going cleanup that is progressing under the mandate of CERCLA and with EPA oversight...." Notice of Removal, ¶ 49. The plaintiffs respond that they have simply pleaded state, common law causes of action, which do not provide a basis for removal jurisdiction. "Congress has provided for removal of cases from state court to federal court when the plaintiff's complaint alleges a claim arising under federal law." Rivet, 522 U.S. at 472, 118 S.Ct. 921. Generally the existence of federal-question jurisdiction is governed "by the `well-pleaded complaint' rule, under which a suit arises under federal law only when the plaintiff's statement of his own cause of action shows that it is based on federal law.'" Turgeau v. Admin. Review Bd., 446 F.3d 1052, 1060 (10th Cir.2006) (quoting Schmeling v. NORDAM, 97 F.3d 1336, 1339 (10th Cir.1996)). A case does not arise under federal law by either "the plaintiff's anticipation of a federal defense or the defendant's assertion of a federal defense." Id. "The plaintiff is the `master of the claim' and may prevent removal [to federal court] by choosing not to plead a federal claim even if one is available." Id. (internal citation omitted). The Supreme Court has developed two narrow exceptions to the well-pleaded complaint rule: the complete preemption doctrine, Nicodemus v. Union Pacific Corp., 440 F.3d 1227, 1232 n. 4 (10th Cir.2006) and the substantial federal question doctrine. Grable & Sons Metal Prods., Inc. v. Darue Eng'r & Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). The complete preemption doctrine allows a state law cause of action to be removed to federal court on the theory that "federal preemption makes the state law claim necessarily federal in character." Turgeau, 446 F.3d at 1061 (internal quotation omitted). Because CERCLA does not completely occupy the field of environmental regulation, the complete preemption doctrine does not apply here. Under the substantial-federal-question doctrine, a state law claim can give rise to federal question jurisdiction, even though Congress has not created a private right of action, if the right to relief depends on the validity, construction, or effect of federal law. Grable, 545 U.S. at 312, 125 S.Ct. 2363. The plaintiffs contend the defendants have not identified an actual dispute about federal law and, at best, have a preemption defense to a potential remedy. They assert that their "request for equitable relief, [which] only potentially, if at all, implicates federal law," does not confer jurisdiction over their claims. Plaintiffs' motion, p. 26. Relying principally on Ninth Circuit cases, including Fort Ord Toxics Project, Inc. v. California Envtl. Protection Agency, 189 F.3d 828 (9th Cir.1999) and ARCO Envtl. Remediation, L.L.C. v. Dep't of Health & Envtl. Quality, 213 F.3d 1108 (9th Cir.2000), the defendants respond that jurisdiction exists because federal courts have jurisdiction under CERCLA § 113(b) over any challenges to a CERCLA cleanup and the plaintiffs, through their request for affirmative injunctive relief, have challenged the cleanup. Few cases have addressed the issue of whether "CERCLA's involvement with ... *1270 state law claims [is] sufficient to warrant the district court's independent exercise of federal jurisdiction," General Elec., 467 F.3d at 1242 n. 29 (citing Grable, the Tenth Circuit noted, but did not address the issue, as the district court properly exercised supplemental jurisdiction over the plaintiff's state law claims). Those that have are not in agreement. Compare ARCO, 213 F.3d at 1115-16[26]with New Jersey Dep't of Envtl. Protection v. Occidental Chemical Corp., 2006 WL 2806231 (D.N.J.2006)(limiting federal jurisdiction to completely preempted state law claims)[27] In Grable the Supreme Court announced a new test for determining when a state-law claim gives rise to federal jurisdiction, occasioned by a split among the Circuit Courts "on whether Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), always requires a federal cause of action as a condition for exercising federal-question jurisdiction." Id. at 311-12, 125 S.Ct. 2363. The Court concluded that the lack of a federal cause of action did not preclude a lawsuit's removal to federal court. The test is whether "a state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Grable, 545 U.S. at 314, 125 S.Ct. 2363. The plaintiff in Grable brought a quiet title action against the purchaser of property it had previously owned, but which the Internal Revenue Service ("IRS") had seized and sold to the defendant at a tax sale. The plaintiff claimed the IRS had given a deficient notice of seizure under a federal statute. The defendant removed the case to federal district court, contending that the plaintiff's claim of title depended on the interpretation of a federal tax law. The Supreme Court concluded that the meaning of the federal statute was actually in dispute because an essential element of the plaintiff's claim was whether it had been given notice as required by the tax law. The Court also found that, because state quiet title actions rarely involve contested issues of federal law, exercising federal jurisdiction in the case "would not materially affect, or threaten to affect, the normal currents of litigation." Id. at 319, 125 S.Ct. 2363. As this case is factually distinct from Grable, it offers little guidance in the court's task of determining whether the plaintiffs' claims present a substantial federal question justifying removal or if "this is a case of conflict preemption."[28]General *1271 Elec., 467 F.3d at 1244. Support for the conclusion that the plaintiffs' claims raises disputed and substantial federal issues regarding the scope and impact of CERCLA is found in ARCO, 213 F.3d at 1115-16. In that case the Ninth Circuit had to determine whether the district court had removal jurisdiction over a suit ARCO brought in state court to obtain documents from the State of Montana pertaining to a CERCLA cleanup and to enjoin certain closed-door meetings. ARCO's claims were based entirely on state law. The answer depended, the Ninth Circuit found, on "whether CERCLA's jurisdictional provisions deprive[d] the Montana state court of jurisdiction over [the] case, thereby making ARCO's claims `necessarily federal in character.'" Id. at 1115. The court noted that it had expansively read § 113(b) of CERCLA, finding that it conferred on the federal district courts exclusive original jurisdiction over both claims created by/controversies arising under CERCLA and "`any challenge to a CERCLA cleanup.'" Id. (quoting Fort Ord, 189 F.3d at 832). ARCO's claims were "necessarily federal claims under section 113(b)," the Ninth Circuit stated, "only if they constitute[d] a `challenge to a CERCLA cleanup.'" Id. The court defined such a challenge as an action that is "related to the goals of the cleanup," id. (internal quotation omitted), giving as examples cases in which the plaintiff sought to dictate specific remedial actions, to postpone the cleanup and to terminate the Remedial Investigation/Feasibility Study and to alter the method and order of cleanup. Id. The court emphasized that "an action d[id] not become a challenge to a CERCLA cleanup simply because the action has an incidental effect on the progress of a CERCLA cleanup." Id. Because the relief sought by ARCO did not "alter cleanup requirements or environmental standards," or "terminate or delay the ... cleanup," it was not "related to the goals of the ... cleanup" and did not arise under CERCLA § 113(b). Id.; see Fort Ord, 189 F.3d at 832 (court rejected plaintiffs' "cramped interpretation" of § 113(b) of CERCLA, instead reading it to "cover any `challenge' to a CERCLA cleanup"). Although a close question, the court agrees with the Ninth Circuit's conclusion that a district court has jurisdiction over state law claims that challenge a CERCLA cleanup because they implicate significant federal issues.[29]See North Penn Water Auth. v. BAE Systems, 2005 WL 1279091, at *10-11 (E.D.Pa.2005) (state law claims involving a direct challenge to a CERCLA cleanup completely preempted). Both the government and parties participating in a CERCLA cleanup have a strong interest in ensuring that CERCLA's objectives are accomplished without "time-consuming litigation which might interfere with CERCLA's overall goal of effecting the prompt cleanup of hazardous waste sites." Denver, 100 F.3d at 1514. The court finds that "providing a federal forum for the resolution of this issue will not disrupt the sound division of labor between state and federal courts." Nicodemus, 440 F.3d at 1237 (internal quotation omitted). Having concluded that a federal court would have jurisdiction over a plaintiff's state law claims which challenge a CERCLA cleanup, the question then becomes *1272 whether the cleanup at issue in this case is "a CERCLA cleanup" for federal question purposes and whether plaintiffs are challenging that cleanup. The latter question is easy enough. The plaintiffs' petition specifically attacks, in multiple ways, the "purported" remedial efforts to date: Indeed, none of Defendants' purported "remediation efforts" were effective or comprehensive. In fact, Defendants' investigation and attempted remediation has been and continues to be nothing more than a sham designed to deceive the citizens of Blackwell. The testing protocols and threshold clean up levels employed by Defendants are designed to minimize findings of contamination, wholly fail to investigate contamination inside residents' homes, and turn a blind eye to well-established and widely accepted benchmarks, such as those adopted and endorsed by the EPA. Petition, ¶ 14. The plaintiffs further allege the manner in which the defendants operated, closed and remediated the site was "woefully inadequate and further jeopardized the safety and welfare of all individuals residing in and around Blackwell." Id., ¶ 17. It is plain that the plaintiffs are more than a little critical of the cleanup efforts to date. Simply being critical is not enough, though, to constitute a "challenge" to a cleanup in this context. The question is whether the plaintiffs' lawsuit challenges the remediation action by calling into question the remediation plan. Cannon, 538 F.3d at 1335. As explained by the Tenth Circuit, "a suit challenges a removal action if it `interferes with the implementation of a CERCLA remedy' because `the relief requested will impact the [removal] action selected.'" Id. (quoting Broward Gardens Tenants Ass'n v. EPA, 311 F.3d 1066, 1072 (11th Cir.2002)). However, given the pervasive nature of the plaintiffs' criticisms of the cleanup to date and the scope of relief sought relative to the existing plan,[30] the court readily concludes that plaintiffs have "challenged" the cleanup plan for present purposes. See General Elec., 467 F.3d at 1250 ("The State's argument that remediation in the South Valley is not working as the EPA and NMED claim constitutes a dispute over environmental cleanup methods and standards."). The question of whether the plaintiffs are challenging a "CERCLA cleanup," as that phrase is used in the context of determining federal question jurisdiction, is considerably closer. The plaintiffs essentially argue that the remediation efforts to date have been an ODEQ-mandated cleanup, rather than a "CERCLA cleanup." They argue that the EPA has made no formal determination of a hazardous release within the meaning of CERCLA, that it did not place the Site on the National Priorities List, and that it had no direct role in the cleanup efforts. They therefore argue that the EPA was not acting under CERCLA to "arrange for the removal of ... [a] hazardous substance." 42 U.S.C. § 9604(a)(1). They assert that the MOU with ODEQ was an express deferral of its authority under CERCLA, rather than an exercise of it. Defendants respond that they were required to remediate the Site to federal standards set out in, or promulgated pursuant to, CERCLA, and that this dispute therefore constitutes a controversy arising *1273 under CERCLA. They note the extensive involvement of the EPA in reviewing the plan at various times prior to its adoption and to its extensive monitoring role during plan implementation. The parties have not supplied, and the court has not otherwise located, statutory or other authority specifically addressing the circumstances here—where the EPA plainly wanted a cleanup to be done, insisted that the cleanup be done according to CERCLA standards and subject to extensive EPA oversight and monitoring, but did not actually do the cleanup itself or order it to be done. The evidence suggests that the approach adopted by the EPA as to the Blackwell site was part of a pilot program designed to rely on state enforcement resources, recognizing that the EPA did not have the resources to directly address every potential site. While there is considerable force to the defendants' argument that the cleanup efforts in Blackwell were, in substance, a CERCLA cleanup, the court nonetheless concludes that, in these circumstances, the formal steps taken or not taken by the parties control the designation of the cleanup. The most pertinent document for purposes of characterizing the cleanup efforts at the Blackwell site is the MOU entered into between the EPA and ODEQ, which specifically addressed the basis upon which the parties would go forward. That document recites EPA has received information that there "may" have been a release of hazardous substances but that, as of that date, it had "made no determination as to whether there may be a release or a threatened release." MOU, ¶ I-B. It also reflected EPA's recognition that, under CERCLA, a determination by it that a release had occurred would trigger its authority to initiate, or arrange for the initiation of, appropriate removal or remedial action. However, the MOU also explicitly reflects the EPA's decision to defer making that release determination, in deference to the ongoing state enforcement efforts and in recognition of its own limited resources. Although the EPA retained the right under the MOU to declare it terminated if dissatisfied with the nature or progress of cleanup efforts, there is no indication in the submissions of the parties to suggest that it has ever done so. The references to the site in EPA status records continue to identify the site as one "deferred for further action under State authority" with no suggestion of any formal determination or assertion of authority having been made by the EPA.[31] In these circumstances, the court concludes there has been neither a determination of release sufficient to trigger a formal EPA response, 42 U.S.C. § 9604, nor the "selection" of a remedy within the meaning of 42 U.S.C. § 9621 and 40 C.F.R. § 300.430. A cleanup initiated solely under State authority, even if agreed to be conducted consistent with "CERCLA standards" and with the threat of EPA enforcement lurking in the background, does not constitute a "CERCLA cleanup" such as would, upon a challenge to it being initiated, implicate federal jurisdiction. Any other conclusion would permit non-federal parties to turn any cleanup into a "CERCLA cleanup" merely by agreeing to do the cleanup to CERCLA standards. The cases addressing federal question jurisdiction in this context plainly contemplate something more. The court concludes the plaintiffs' claims, though highly critical of the Blackwell site cleanup, do not constitute a challenge to a "CERCLA cleanup." As a result, they do not create a basis for subject matter jurisdiction in this court. And even if a challenge to a CERCLA cleanup was involved, the existence of jurisdiction would depend on a further determination *1274 of whether the cleanup is ongoing. Where a CERCLA cleanup is ongoing,[32] a federal court lacks jurisdiction to "review any challenges to removal or remedial action." 42 U.S.C. § 9613(h). FEDERAL OFFICER REMOVAL JURISDICTION As the final basis for their removal of this action, the defendants rely on 28 U.S.C. § 1442(a),[33] which provides: (a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. The defendants' argument that jurisdiction exists under § 1442(a) is based on the role the smelter played in conjunction with the United States' efforts to prepare for and enter World War II. In 1942, the Metals Reserve Company ("MRC"), a wartime organization whose mission was to obtain strategic metals for the United States, entered into an agency agreement with American Metals Company, Ltd. ("AMC"), the predecessor entity to Cyprus Amax Minerals and parent company of BZC. Under the terms of the agreement,[34] AMC was to act as MRC's "Agent," Notice of Removal, Exhibit D, ¶ 24, and was to buy, "receive, smelt and/or refine the ores and concentrates...." Id. at ¶¶ 24-25. AMC also agreed to stockpile MRC-owned zinc. Id. at ¶¶ 26, 31. AMC and its subsidiaries, including BZC, operated as a consolidated organization in complying with the agreement. "A private corporation[35] may remove a case under § 1442(a)(1), if it can show: (1) that it acted under the direction of a federal officer; (2) that there is a causal nexus between the plaintiff's claims and the acts the private corporation performed under the federal officer's direction; and (3) that there is a colorable federal defense to the plaintiff's claims."[36]*1275 Greene v. Citigroup, Inc., 2000 WL 647190, at *2 (10th Cir. May 19, 2000) (unpublished opinion). Most courts, when considering the extent to which a defendant was acting under federal direction "at the time they were engaged in conduct now being sued upon ... require `direct and detailed control' by the federal officer over the defendant." Bahrs v. Hughes Aircraft Co., 795 F.Supp. 965, 969 (D.Ariz.1992) (quoting Ryan v. Dow Chem. Co., 781 F.Supp. 934, 950 (E.D.N.Y.1992)). Such control was found to exist in Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398-401 (5th Cir.1998). The Fifth Circuit concluded in that case that a private company acted under the direction of a federal officer in conjunction with a contract to supply Agent Orange where the government maintained strict control over the product's development and production, required the production to be done in accordance with specifications set forth in the contract and documents referenced in the agreement, and performed inspections. Winters, 149 F.3d at 398-401. When a plaintiff's claims are based on pollution or contamination resulting from a facility's waste disposal, courts have required the removing party to show "the federal government exercised control over the disposal of hazardous substances." Ward v. Lockheed Martin Corp., 2006 WL 889729, at *5 (M.D.Fla.2006). The plaintiffs contend that, while the defendants have demonstrated that BZC contracted with the federal government to produce and store zinc, they cannot show that the contamination was done under the direction of a federal officer.[37] The defendants respond that the plaintiffs ignore both the fact the AMC/BZC acted as an express agent of the government and the extent to which the Smelter "was dedicated to meeting the wartime needs of the Federal Government." Defendants' response, p. 63. The defendants claim that they have shown that AMC and BZC were "acting under" a federal officer, as that term has been recently defined by the Supreme Court in Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007). They assert that the Court explained that "the private person's `acting under' must involve an effort to assist, or to help carry out the duties or tasks of the federal superior," id. at 152, 127 S.Ct. 2301, and identified "assisting" relationships, two of which are present here. Because AMC and BZC "provid[ed] the Government with a product that it used to help conduct a war," id. at 154, 127 S.Ct. 2301, and had a "special [agency] relationship" with the government, the "acting under" requirement of § 1442(a) has, the defendants contend, been met. The defendants focus on only part of the Supreme Court's opinion, however, ignoring its statement that the word "under" as used in the statute must refer to what has been described as a relationship that involves "acting in a certain capacity, considered in relation to one holding a superior position or office." 18 Oxford English Dictionary *1276 948 (2d ed.1989). That relationship typically involves "subjection, guidance, or control." Webster's New International Dictionary 2765 (2d ed.1953). See also Funk & Wagnalls New Standard Dictionary of the English Language 2604 (1942) (defining "under" as meaning "[s]ubordinate or subservient to," "[s]ubject to guidance, tutorship, or direction of"); 18 Oxford English Dictionary, supra, at 949 ("[s]ubject to the instruction, direction, or guidance of"). Id. at 151-52, 127 S.Ct. 2301. The requirement that the private person be an "assisting relationship" is in addition to the requirement that the person be in a relationship involving "subjection, guidance, or control." Id. In Watson, the court held that "[t]he upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone." Id. at 153, 127 S.Ct. 2301. Here, a company that was not closely regulated or supervised cannot find a statutory basis for removal solely in the fact that it "help[ed] the Government to produce an item that it need[ed]." Id.[38] The defendants have demonstrated that the government clearly had a "significant wartime interest in the operation of the Smelter," defendants' response, p. 61. However, while operation of the smelter may have been "of utmost importance to the country's war effort" and the smelter may have been "in large part dedicated to performing tasks for the Federal Government during this critical time period, id. p. 64, the defendants have not demonstrated an unusually close [relationship] involving detailed regulation, monitoring, or supervision" id. at 153, 127 S.Ct. 2301 required to bring AMC/BZC "within the scope of the statutory phrase `acting under' a federal `officer.'" Id. at 153, 127 S.Ct. 2301; Bahrs, 795 F.Supp. at 969-70; Brown v. Delta Air Lines, Inc., 2004 WL 5041257 (W.D.Okla.2004) (to demonstrate they were acting under the direction of a federal officer or agency defendants had to "show that their actions were performed pursuant to an officer's direct orders or comprehensive and detailed regulations.... The official must have [had] direct and detailed control over the defendant[s].") (internal quotation omitted); see Ward, 2006 WL 889729 at *4-5. Removal was not, therefore, authorized under § 1442(a)(1).[39] While this case presents a number of close and difficult questions, the court concludes defendants have not established a basis for federal jurisdiction under any of the theories they have identified. Accordingly, plaintiffs' motion to remand [Doc. #78] is GRANTED. This case is REMANDED to the District Court of Kay County, State of Oklahoma. As the court does not find the issues the plaintiffs seek to address in their supplemental brief to be dispositive, their motion for leave to file *1277 a supplemental brief [Doc. # 179] is DENIED. IT IS SO ORDERED. NOTES [1] "The official title of CERCLA, also known as Superfund, is the Comprehensive Environmental Response, Compensation, and Liability Act, Pub. L. No. 96-510, 94 Stat. 2767 (1980), as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986) (codified at 42 U.S.C. §§ 9601-9675). The core of the CERCLA cleanup program is the National Contingency Plan, 40 C.F.R. Part 300, which establishes response procedures." New Mexico v. General Elec. Co., 467 F.3d 1223, 1227 (10th Cir.2006). [2] "A state-court action may be removed to federal court if it qualifies as a `civil action... of which the district courts of the United States have original jurisdiction,' unless Congress expressly provides otherwise." Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 474, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998) (quoting 28 U.S.C. § 1441(a)). [3] The case history, taken from the petition and documents submitted by the parties, is limited to the facts necessary to place in context the parties' allegations and arguments and the issues that must be decided. [4] The BIA is a public trust of the State of Oklahoma whose sole beneficiary is the City of Blackwell. [5] The "site" for purposes of the remediation plan includes other areas in and about the City of Blackwell. Notice of Removal, Exhibit C, Figure 1, 3-5 (Record of Decision Document—Soil Remediation Unit). The court will initially specify the document to which an exhibit is attached and its identifying number or letter. Thereafter, exhibits will simply be referred to by their titles. [6] The ODEQ assumed the environmental responsibilities of the Oklahoma State Department of Health in July, 1993. [7] Notice of Removal, Exhibit B. [8] As noted by the defendants, the Site, as depicted in the map attached to the MOU, was not limited to the smelter site, but covered essentially all of Blackwell. See Notice of Removal, Exhibit E, Second Five-Year Review Report, pp. 8-12. [9] The Decision Document was "analogous to a Record of Decision at a Superfund Site." MOU, p. 4. [10] The National Contingency Plan or NCP "specifies the roles of the federal and state governments in responding to hazardous waste sites, and establishes the procedures for making cleanup decisions. The Plan provides that once a hazardous waste site is identified, [the site] should be evaluated to determine whether a remedial action is required. This evaluation involves an intensive remedial investigation/feasibility study, which identifies the possible remedial alternatives. On the basis of that study, the EPA proposes the selected remedy, after which there follows a period for public comment. The cleanup plan is then finalized, and the EPA's remedy decision is documented in a record of decision." United States v. City and County of Denver, 100 F.3d 1509, 1511 (10th Cir.1996). [11] The ROD noted that the groundwater contamination was a low level threat, because the water was not used for public or private water supply. [12] The Final Remedial Action Completion Report. [13] In considering the motion to remand, the court has reviewed the evidentiary submissions of the parties. Radil v. Sanborn Western Camps, Inc., 384 F.3d 1220, 1224 (10th Cir.2004). ("Where a party attacks the factual basis for subject matter jurisdiction, the court does not presume the truthfulness of factual allegations in the complaint, but may consider evidence to resolve disputed jurisdictional facts."). [14] The statute refers to prior class actions filed "against any of the defendant on behalf of the same or other persons." 28 U.S.C. § 1332(4)(A)(ii) (emphasis added). The plaintiffs have submitted evidence that their research did not disclose "any other class action filed asserting the same or similar allegations against any of the Defendants in this case on behalf of the same putative class." Plaintiffs' Motion to Remand, Exhibit 11, Langston Declaration. The plaintiffs stated during the hearing on their motion to remand, and the defendants made no assertion to the contrary, that there has not been a similar class action filed by any persons within the specified three year period. [15] The parties do not indicate whether the plant is operating. The Second Report states that construction of the groundwater treatment plant was expected to commence in 2008. Second Report, p. 1. [16] The Second Report states that BZC opened and staffed a community outreach office as part of its effort to inform Blackwell residents of the opportunity to have their soil sampled. Second Report, pp. 16-17. Press releases attached to the plaintiffs' motion to remand indicate that Phelps Dodge opened the office and undertook, "on Blackwell Zinc's behalf," supplemental soil sampling. Plaintiffs' response, Exhibits 17-24. The defendants did not challenge the plaintiffs' assertion of BZC's participation in these activities, arguing that "BZC's activities in response to EPA's and the State of Oklahoma's environmental claims are irrelevant." Defendants' response, p. 31. Consequently, the court concludes the continued remediation efforts and related activities, while financed by and sometimes executed by employees of other defendants, are attributable to BZC. The defendants conceded at the hearing that the various activities were conducted for or on behalf of BZC. See defendants' response, p. 25 ("BZC has continued to meet its obligations to Oklahoma Department of Environmental Quality to investigate and remediate impacted areas in Blackwell...."). [17] Cooper v. R.J. Reynolds Tobacco Co., 586 F.Supp.2d 1312, 1321 (M.D.Fla.2008) ("CAFA's legislative history is relatively thin. While there is a Senate Committee Report accompanying CAFA, there is no corresponding House Committee Report."). [18] There also were no class allegations against the agent. [19] This holding comports with another example given in the Senate Report to illustrate the criteria set forth in subclause (aa) of the local controversy exception. It describes a class action brought as the result of a fraudulent insurance scheme and states that the class presumably would not seek significant relief from a local company agent as "[h]e or she probably would have had contact with only some of the purported class members and thus would not be a person from whom significant relief would be sought by the plaintiff class viewed as a whole." S.Rep. No. 109-14, at 40, U.S.Code Cong. & Admin.News 2005, at 38. [20] The court is not concluding that a defendant's ability to satisfy a judgment may never be considered, but that, in the circumstances present here, that factor is not determinative. [21] While the court does not find the terms "significant relief" and "significant basis" to be ambiguous, a different conclusion would not be reached regarding BZC's status as a significant defendant even if the court construed the language in light of CAFA's legislative history. See generally Caruso, 469 F.Supp.2d at 370 ("Additionally, at least two courts of appeals have cast doubt on the value of the Senate Judiciary Committee Report on CAFA as an interpretive guide, since it was issued ten days after CAFA was signed into law."). [22] Because of this conclusion, the court need not consider BZC's current financial status and its ability to pay a potential judgment. In this case that inquiry, alone, would be a mini trial, involving consideration of multiple insurance coverage litigation settlement agreements, the solvency of different carriers, pollution and other policy exclusions, etc. See e.g. defendants' response, p. 16. See Amoche, 556 F.3d at 50 ("[W]e do not wish to encourage or create a step-by-step burden shifting system, which would result in extensive and time consuming litigation over the question of the amount in controversy in CAFA removal cases ... Consideration of this preliminary issue should not devolve into a mini-trial regarding the amount in controversy."); 14B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3702, at 16-17 (3d ed. 1998) ("The federal courts, as well as the parties, naturally are concerned about the efficient use of their own limited resources and attempt to avoid time-consuming threshold issues that do not go to the merits."). [23] Because only a single significant defendant is required for CAFA's local controversy exception to apply, the court need not determine whether the BIA also is a significant defendant within the meaning of CAFA. [24] As the court has found that the local controversy exception applies, there is no need to consider the plaintiffs' arguments that remand is warranted under the home state exception, 28 U.S.C. § 1332(d)(4)(B), which requires that "the primary defendants are citizens of the State in which the action was originally filed," or CAFA's discretionary jurisdiction provision, § 1332(d)(3). The court doubts either would apply, though, as Freeport-McMoRan Corporation, Freeport-McMoRan Copper & Gold Ind., and Cyprus Amax appear to be primary defendants and are not Oklahoma citizens, and § 1332(d)(3) applies to class actions "in which greater than one-third but less than two-thirds of the members of all proposed plaintiff classes in the aggregate ... are citizens of the State in which the action was originally filed...." Here all of the plaintiffs are Oklahoma citizens. [25] The defendants, as the parties invoking federal jurisdiction, bear the burden of establishing jurisdiction. See Radil, 384 F.3d at 1224. [26] In ARCO the Ninth Circuit initially concluded that CERCLA did not completely preempt, but might provide a conflict preemption defense to, the plaintiffs' state law claims. The court proceeded to determine whether ARCO's claims were "necessarily federal in character" because CERCLA's jurisdictional provisions deprived the state court of jurisdiction, id. at 1115, and then considered whether federal jurisdiction existed because "some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims." Id. at 1116 (internal quotation omitted). It is unclear whether, as one court put it "the Ninth Circuit appl[ies] a more expansive view of when a federal court has jurisdiction over claims based solely on state law," New Jersey Dep't of Envtl. Protection v. Occidental Chemical Corp., 2006 WL 2806231, at *9 (D.N.J. 2006), or just articulates the exceptions to the well-pleaded complaint rule differently. [27] The New Jersey court concluded that, under Third Circuit precedent, a state law claim could be deemed to arise under federal law only if there was complete preemption. Occidental, 2006 WL 2806231, at *9. The court did not discuss Grable or the substantial federal question doctrine, relying on Goepel v. Nat'l Postal Mail Handlers Union, 36 F.3d 306 (3d Cir.1994), a 1994 Third Circuit decision. [28] "`Conflict preemption' occurs where it is impossible to comply with both the federal and state laws, or the state law stands as an obstacle to the accomplishment of Congress's objectives." Denver, 100 F.3d at 1512. [29] The court also agrees with the district court in Occidental, 2006 WL 2806231, at *9 that the rationale of the Ninth Circuit's decisions regarding jurisdiction under CERCLA is not entirely clear. [30] The plaintiffs seek damages for the decrease in their property values, which essentially challenges the scope of the cleanup. They seek damages for loss of use of, or interference with, groundwater—another operable unit under the remediation plan. They also seek injunctive relief for expanded remediation and for medical monitoring of individuals in the area. [31] Notice of Removal, Exhibit L, Site Description. [32] Although the defendants' current activities in Blackwell as to soil testing and further soil remediation are arguably voluntary rather than part of an ongoing cleanup (the Soil Remediation Unit of the cleanup was completed in 2001), the operational units of the site cleanup involving groundwater and ecological remediation are ongoing. In light of the court's determination as to whether a CERCLA cleanup is involved, it is unnecessary to determine here whether—given the use of multiple operational units—the pertinent cleanup is ongoing. [33] Because it is a "pure jurisdictional statute" that conditions removal on a federal defense, § 1442(a) creates an exception to the "well-pleaded complaint" rule. Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). [34] The agreement lasted from May, 1942 until May 31, 1944. [35] The plaintiffs concede that the defendants are "persons" for purposes of the statute. See Isaacson v. Dow Chem. Co., 517 F.3d 129, 135-36 (2d Cir.2008) [36] The Supreme Court has explained the purposes behind § 1442(a)(1) as follows: [T]he Federal Government can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection,-if their protection must be left to the action of the State court,-the operations of the general government may at any time be arrested at the will of one of its members. Mesa, 489 U.S. at 126, 109 S.Ct. 959 (quoting Tennessee v. Davis, 100 U.S. 257, 263, 25 L.Ed. 648 (1880)). "Removal pursuant to § 1442(a)(1) is thus meant to ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties." Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir.1998) (internal quotations omitted). [37] The plaintiffs also argue the defendants have not shown they have a colorable federal defense. Because the court agrees that the defendants have not satisfied the "acting under" requirement of the statute or the "causal nexus" requirement, it need not determine whether the defendants have asserted a colorable federal defense. [38] The court is not persuaded that Isaacson, 517 F.3d at 136-38 dictates a different result. The court focused in Isaacson on the "special relationship" required by Watson for a private contractor to satisfy the "acting under" prong of § 1442(a). Id. at 136-37. The plaintiffs' claims in Isaacson, like those in Winters, were based on the defendant chemical companies' production of Agent Orange for military use in the Vietnam War. Presumably the government exercised the same kind of detailed control over the Isaacson defendants' production and formulation of the herbicide, as it did over the Winters' defendants, eliminating any need for the Second Circuit to discuss § 1442(a)'s requirement of "detailed regulation, monitoring, or supervision." Watson, 551 U.S. at 154, 127 S.Ct. 2301. [39] The court has considerable doubt whether government actions of sixty years ago, and which preceded the Blackwell plant's closure by thirty years, could plausibly be said to be causally related to the plaintiffs' claims. However, in light of the court's disposition of the "acting under" element, it is unnecessary to belabor the point.

939 F.2d 683 60 USLW 2140, 14 Employee Benefits Ca 1259 LUMBER INDUSTRY PENSION FUND, Plaintiff-Appellant,v.WARM SPRINGS FOREST PRODUCTS INDUSTRIES, Defendant-Appellee. No. 90-15309. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 14, 1991.Memorandum Filed June 19, 1991.Order and Opinion Filed Aug. 1, 1991. Robert A. Gordon, Pillsbury, Madison & Sutro, San Francisco, Cal., for plaintiff-appellant. Howard G. Arnett, Marceau, Karnopp, Petersen, Noteboom & Hubel, Bend, Or., for defendant-appellee. Appeal from the United States District Court for the Eastern District of California. Before FARRIS and TROTT, Circuit Judges, and DUMBAULD,* District Judge. ORDER The memorandum disposition filed June 19, 1991, is redesignated with slight modifications as an opinion authored by Judge Farris. OPINION FARRIS, Circuit Judge: 1 Lumber Industry Pension Fund appeals the dismissal of its action to recover pension contributions from Warm Springs Forest Products Industries. 730 F.Supp. 324. The Fund argues that although Warm Springs is an Indian entity, the Employment Retirement Income Security Act and Labor Management Relations Act apply. We reverse. 2 Warm Springs Forest Products Industries is a tribally owned and operated sawmill located on the Warm Springs Indian Reservation. Up until June 30, 1988 the mill was a signatory to a collective bargaining agreement with the Lumber and Sawmill Workers Union. That agreement required the mill to make pension contributions on behalf of its employees to the Lumber Industry Pension Fund. 3 In December 1987, the mill stopped making contributions to the Fund on behalf of approximately ninety of its employees and began making contributions to the tribal pension plan. The Fund filed this action pursuant to ERISA, 29 U.S.C. Secs. 1132 and 1145, and the LMRA, 29 U.S.C. Sec. 185, seeking recovery of pension contributions for the period between December 1987 and June 30, 1988. The district court dismissed the complaint on the ground that ERISA and the LMRA do not apply. 4 We review de novo whether ERISA and LMRA apply to the mill. See Confederated Tribes of Warm Springs Reservation v. Kurtz, 691 F.2d 878, 880 (9th Cir.1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1433, 75 L.Ed.2d 792 (1983). 5 In general, in the absence of an expressed exemption for Indians, "a general statute in terms applying to all persons includes Indians and their property interests." Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1115-16 (9th Cir.1985). However, a general statute that does not expressly apply to Indians will not apply if: 6 (1) the law touches "exclusive rights of self-governance in purely intramural matters"; (2) the application of the law to the tribe would "abrogate rights guaranteed by Indian treaties"; or (3) there is proof "by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations...." 7 Id. at 1116. 8 ERISA is a statute of general applicability. See 29 U.S.C. Sec. 1001. The mill is within ERISA's broad definition of employer. See 29 U.S.C. Sec. 1002(5). However, Congress did not expressly state that ERISA applies to Indian tribes. If one of the exceptions listed above applies, ERISA does not apply to the mill. 9 The district court held that application of ERISA would interfere with exclusive rights of self-governance in a purely intramural matter and that the first exception therefore applied. 10 The district court's holding is erroneous. The self-government exception applies only where the tribe's decision-making power is usurped. See United States v. Quiver, 241 U.S. 602, 605, 36 S.Ct. 699, 700, 60 L.Ed. 1196 (1916); Jones v. Meehan, 175 U.S. 1, 29-30, 20 S.Ct. 1, 12, 44 L.Ed. 49 (1899); Roff v. Burney, 168 U.S. 218, 222-23, 18 S.Ct. 60, 62, 42 L.Ed. 442 (1897). Permitting the Fund to sue the mill under ERISA will subject the mill to possible liability for money damages, but will not usurp the tribe's decision-making power. 11 The tribe was free to form and operate a tribal pension plan, and the mill was free to transfer its employees to that plan at the end of the collective bargaining agreement term. But, by transferring its employees to the tribal plan before the bargaining agreement expired, the mill exposed itself to possible liability for unpaid contributions to the Fund. The mill is not protected from such liability under the self-government exception. See Coeur d'Alene, 751 F.2d at 1116 (control of all tribal business and commercial activity not within embrace of "tribal self-government"); Kurtz, 691 F.2d at 880 (tribal enterprise must pay federal tax). 12 The mill argues that, because a Tribal ordinance mandates that it transfer its tribal-member employees to the tribal pension plan, it cannot be compelled under ERISA to pay contributions to the Fund. It argues that ERISA must give way to the tribal ordinance. We reject the argument. Federal law does not give way to a tribal ordinance unless the federal law encroaches on exclusive rights of self-governance, abrogates treaty rights, or was intended by Congress not to apply to Indians. See Duro v. Reina, --- U.S. ----, 110 S.Ct. 2053, 2063, 109 L.Ed.2d 693 (1990) (Indians like all other citizens share allegiance to overriding sovereign, United States); Hoopa Valley Tribe v. Nevins, 881 F.2d 657, 662 (9th Cir.) cert. denied, --- U.S. ----, 110 S.Ct. 1523, 108 L.Ed.2d 763 (1989); Coeur d'Alene, 751 F.2d at 1116. ERISA does not encroach on the tribe's right of self-governance in passing or enforcing the ordinance. The ordinance requires that all retirement plans covering tribal member employees of tribal enterprises provide benefits at least as favorable as those of the tribal plan. Application of ERISA will not inhibit tribal employees of the mill from joining the tribal plan. 13 We hold further that application of ERISA is not barred under either the "treaty rights" exception, see Kurtz, 691 F.2d at 880 (application of federal tax law did not interfere with tribe's exclusive use of reservation), or the "congressional intent" exception, see Smart v. State Farm Ins. Co., 868 F.2d 929, 935-36 (7th Cir.1989) (no evidence of congressional intent that ERISA is not applicable to Tribe employers and Indians). 14 Because we hold that ERISA applies to the mill and provides a basis for jurisdiction over the Fund's action, we need not reach the question of whether the LMRA applies. 15 REVERSED. * Honorable Edward Dumbauld, Senior United States District Judge for the Western District of Pennsylvania, sitting by designation

838 F.2d 1222Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.In re Max SCHARER, Rene Muntwyler and Daniel Bellus. No. 87-1465. United States Court of Appeals, Federal Circuit. Jan. 15, 1988. Before PAULINE NEWMAN, ARCHER, and MAYER, Circuit Judges. PER CURIAM. 1 This appeal is taken by Max Scharer, Rene Muntwyler, and Daniel Bellus, from the decision of the Board of Patent Appeals and Interferences rejecting claims 19-24 of patent application Serial No. 559,013. The Board held that applicants did not meet their burden of demonstrating, in terms of 35 U.S.C. Sec. 103, that their claimed invention would not have been obvious in view of the prima facie case presented by the cited references, with particular attention to Van Reet et al. U.S. Patent No. 4,079,062 and Canadian Patent No. 1,094,258. We have reviewed the references, the arguments, and the two declarations. We affirm the Board's decision on the basis thereof.

FILED JUL 2 5 20111 UNITED STATES DISTRICT COURT m us. nisactlaitmgrflwa FOR THE DISTRICT OF COLUMBIA cm “"1"” D 5" ° CATHERINE GRAHAM, ) ) Plaintiff, ) ) v. ) Civil Action NO. / 5‘ - A136 7 J MELVIN OTEY, ) ) Defendant. ) MEMORANDUM OPINION This matter comes before the court on review of plaintiff's application to proceed in forma pauperis and pro 58 civil complaint. The Court will grant the application, and dismiss the complaint. It appears that defendant was plaintiff’s landlord. Plaintiff alleges the parties entered in to an agreement that defendant pay plaintiff $1 ,500.00 if she would vacate the unit before May 27, 2012. Compl. at 1. She fiirther alleges that, even though she moved on May 26, 2012, defendant has not paid her. Id. at 2. She demands damages of $200,000.00, id. at 3. Federal district courts have jurisdiction in civil actions arising under the Constitution, laws or treaties Of the United States. See 28 U.S.C. § 1331. In addition. federal district courts have jurisdiction over civil actions where the matter in controversy exceeds $75,000, and the suit is between citiZens of different states. See 28 U.S.C. § 1332(a). Plaintiff‘s breach of contract claim presents no federal question. And, notwithstanding her demand for damages in excess of $75,000, plaintiff does not establish diversity of citizenship. Accordingly, the complaint will be dismissed for lack of subject matter jurisdiction. An Order consistent with this Memorandum Opinion is issued separately. United States District Judge DATE: /4/_

Decisions of the Nebraska Court of Appeals 646 20 NEBRASKA APPELLATE REPORTS In re I nterest ofAngelina G. et al., children under 18 years of age. State of Nebraska, appellee, v. Julian G., appellant. ___ N.W.2d ___ Filed April 2, 2013. Nos. A-12-281 through A-12-284.  1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings.  2. Evidence: Appeal and Error. When the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other.  3. Judgments: Appeal and Error. When an appellate court reviews questions of law, it resolves the questions independently of the lower court’s conclusions.  4. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012) provides 11 separate conditions, any one of which can serve as the basis for the termina- tion of parental rights when coupled with evidence that termination is in the best interests of the child.  5. Parental Rights. Neb. Rev. Stat. § 43-292(9) (Cum. Supp. 2012) allows for ter- minating parental rights when the parent of the juvenile has subjected the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse.  6. Parental Rights: Words and Phrases. The term “aggravated circumstances” embodies the concept that the nature of the abuse or neglect must have been so severe or repetitive that to attempt reunification would jeopardize and compro- mise the safety of the child and would place the child in a position of unreason- able risk to be reabused.  7. ____: ____. While aggravated circumstances must be determined on a case- by-case basis, where the circumstances created by the parent’s conduct cre- ate an unacceptably high risk to the health, safety, and welfare of the child, they are aggravated to the extent that reasonable efforts of reunification may be bypassed.  8. Judgments: Minors: Time. Courts may consider whether the offer or receipt of services would correct the conditions that led to the abuse or neglect of a child within a reasonable time.  9. Parental Rights. Parental rights can be terminated only when the court finds that termination is in the child’s best interests. 10. ____. A termination of parental rights is a final and complete severance of the child from the parent and removes the entire bundle of parental rights. With such severe and final consequences, parental rights should be terminated only in the absence of any reasonable alternative and as the last resort. 11. ____. Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights.  Decisions of the Nebraska Court of Appeals IN RE INTEREST OF ANGELINA G. ET AL. 647 Cite as 20 Neb. App. 646 12. ____. Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. 13. Standing: Words and Phrases. Standing is the legal or equitable right, title, or interest in the subject matter of the controversy. 14. Actions: Parties: Standing. The purpose of an inquiry as to standing is to deter- mine whether one has a legally protectable interest or right in the controversy that would benefit by the relief to be granted. 15. Standing: Claims: Parties. In order to have standing, a litigant must assert the litigant’s own legal rights and interests and cannot rest his or her claim on the legal rights or interests of third parties. Appeal from the County Court for Scotts Bluff County: K risten D. Mickey, Judge. Affirmed. Bernard J. Straetker, Scotts Bluff County Public Defender, for appellant. Tiffany A. Wasserburger, Deputy Scotts Bluff County Attorney, for appellee. Lindsay R. Snyder, of Smith, Snyder & Petitt, G.P., guardian ad litem. Inbody, Chief Judge, and Sievers and Riedmann, Judges. Riedmann, Judge. INTRODUCTION Julian G. appeals from the decision of the county court for Scotts Bluff County sitting as a juvenile court which ter- minated his parental rights to his minor children, Phillip G., Angelina G., Adriana G., and Marciano G. The four cases have been consolidated for briefing, argument, and disposition. The issues presented on appeal are (1) whether the State proved by clear and convincing evidence that aggravated circumstances existed, (2) whether the State proved by clear and convincing evidence that termination of Julian’s parental rights was in the children’s best interests, and (3) whether Julian was prejudiced by the State’s filing supplemental juvenile petitions subsequent to trial. We find that the State sufficiently proved the exis- tence of aggravated circumstances and that termination was in the children’s best interests. We further find that Julian lacks standing to challenge the supplemental petitions, and therefore, we affirm.  Decisions of the Nebraska Court of Appeals 648 20 NEBRASKA APPELLATE REPORTS BACKGROUND Julian and Peggy T. are the parents of Phillip, born in 1996; Angelina, born in 2000; Adriana, born in 2003; and Marciano, born in 2008. The record reveals a lengthy history of violence in Julian and Peggy’s relationship, with police involvement dating back to August 2001. In August 2001, law enforcement responded to a call at Julian and Peggy’s residence. There was a party at the resi- dence and numerous people had been drinking, smoking mari- juana, and “huffing” paint. Peggy’s oldest child, Roman T., who is not a part of this case; Phillip; and Angelina were present at the residence during the party. A fight broke out, and Julian assaulted Peggy and another man in front of the children. Officers noted that all adults present were intoxicated and in no condition to care for the children. Additionally, mari- juana and “huffing” materials were accessible to the children. Officers eventually located Julian walking down a highway at 4 a.m. carrying Angelina, then 1 year old. Julian was very intoxicated and was arrested for assault. As a result of that incident, Roman, Phillip, and Angelina were removed from their parents’ home, placed in the custody of the Nebraska Department of Health and Human Services (DHHS), and found to come within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2002). Due to the ongoing violence in Julian and Peggy’s relation- ship, in July 2002, Peggy applied for and received a protection order against Julian. In her application for the order, Peggy stated, “[My children and I] are afraid for our lives.” Despite the protection order, police responded to another domestic disturbance involving Julian and Peggy the following month. After arriving at the family’s residence, the officers discovered that Julian had stabbed Peggy in the throat with a steak knife inside the residence where three of their children were pres- ent. Julian was arrested and convicted of second degree assault and violating the protection order. Nevertheless, in November, Julian and Peggy requested that the protection order be vacated. The following month, Julian was sentenced to 36 to 60 months in prison for the assault and to 6 months in prison for the pro- tection order violation, sentences to be served concurrently.  Decisions of the Nebraska Court of Appeals IN RE INTEREST OF ANGELINA G. ET AL. 649 Cite as 20 Neb. App. 646 After Julian was released from prison, he and Peggy resumed their relationship. Julian and Peggy were involved in another altercation in September 2005 where law enforcement responded to a com- plaint of a loud verbal disturbance between the two of them. Julian and Peggy both appeared very intoxicated, and police placed Julian on a civil protective custody hold and transported him to the Scotts Bluff County jail, where he was placed in the “drunk tank” on a minimum 6-hour hold. In February 2006, Julian was arrested for driving under the influence. Julian had a previous conviction for driving under the influence from July 2001. Two months later, in April 2006, police responded to another incident at Julian and Peggy’s residence. During an argument, Julian spit in Peggy’s face and threw rocks at her, hitting her in the back of the head. Peggy locked herself inside the house, and Julian began pounding on the doors and windows. There were young children inside the home at the time. Police arrested Julian for domestic assault. As a result of this incident, Adriana was removed from the home and placed in the custody of DHHS and Roman, Phillip, and Angelina were returned to DHHS’ custody. In August 2007, Julian was convicted on another charge of driving under the influence. In August 2008, Phillip, Angelina, and Adriana were returned to their mother’s care, and their cases were closed in January 2009. During the 7-year period that the children were in the custody of DHHS, numerous services were provided to Julian and Peggy, including but not limited to case management services; drug and alcohol eval­ uations; daycare services; individual therapy; aftercare pro- grams; group therapy; assistance with paperwork; Alcoholics Anonymous and Narcotics Anonymous classes for support groups; parenting classes; supervised visitation; intensive fam- ily preservation services; protection orders; anger manage- ment services; visits by law enforcement; marriage coun- seling; family therapy; psychological service evaluation; gas vouchers; transportation; and assistance paying for groceries, gas and electric bills, clothing, household supplies, and rent. Despite this, the family made very little progress between 2001 and 2008.  Decisions of the Nebraska Court of Appeals 650 20 NEBRASKA APPELLATE REPORTS Shortly after the children were returned to Peggy, she and the children moved to Texas to escape from Julian, but Julian discovered where they had gone and followed them to Texas. Peggy reunited with Julian while living in Texas because he told her he had changed and she believed him. In early 2011, while the family was still living in Texas, Julian was involved in an argument with Roman and hit Roman in the head with a crowbar. After this incident, Peggy left Julian and moved back to Nebraska with the children. Once back in Nebraska, Peggy applied for an ex parte pro- tection order against Julian in March 2011. In her application, Peggy stated that Julian followed her and the children back to Nebraska and that he “continue[d] to [harass] and stalk” them. Peggy also stated that Julian continued to harass her family by telephone and threatened to “leav[e] the state with [their] boy[s].” In the application, Peggy recounted an incident in February where Phillip was hospitalized and she called hospital security because Julian “threatened several times with his hands pretending to shoot and kill [Peggy].” Peggy stated, “I do not feel safe without turning my back and thinking he is there to attack.” The protection order was issued, but Julian was never located for service, and in August, the parties requested that the ex parte order be vacated. In April 2011, Julian and Peggy were both arrested for domestic assault after an argument at a park. Julian and Peggy were sitting in their van when Julian got upset, took away Peggy’s telephone, and “ripped the glasses off of her face,” breaking the glasses and scratching her face. After they both got out of the van, Peggy hit Julian twice in the face while he was holding Marciano. Three months later, in July 2011, the family went to a lake to celebrate Marciano’s third birthday. Julian and Peggy were involved in another argument, and when Peggy said she was going to take the car and leave, Julian, in front of the chil- dren, threatened to burn the car. Angelina testified at trial that Julian’s threat made her feel scared because she did not know what would happen. As a result of this incident at the lake, the court ordered that the minor children be placed in the tem- porary custody of DHHS. Currently, Julian and Peggy have  Decisions of the Nebraska Court of Appeals IN RE INTEREST OF ANGELINA G. ET AL. 651 Cite as 20 Neb. App. 646 visits with Adriana and Marciano, but Phillip and Angelina refuse to go on visits. On October 11, 2011, the State filed second amended motions to terminate Julian’s and Peggy’s parental rights as to all four minor children. The termination hearing was held January 9 and 20, 2012. The State presented numerous wit- nesses, including Angelina, who testified that Julian and Peggy are “mean,” that they do not treat her and her siblings “right,” and that Julian calls her names like “bitch.” Angelina recalled an incident where Julian put Marciano “in the dryer” when Marciano was just 1 or 2 years old, which made Angelina feel scared. Angelina and Adriana pushed Julian away to help Marciano, but Julian pushed them back. Angelina stated that Julian would also throw toys at Marciano, which made Marciano cry. Angelina testified that she does not feel safe living with Julian because he does not treat her and her siblings “right” and that she would not feel safe if she had to live with him again because she would “have to go through everything [all] over again.” Jeanna Townsend, a licensed mental health practitioner and certified professional counselor, also testified. Townsend worked with Phillip, Angelina, and Adriana for several ses- sions each. Townsend stated that she has never met a child as angry, hostile, and homicidally inclined as Phillip. She observed that Phillip does not want a relationship with either of his parents and that any mention of his parents makes him “incredibly angry.” Townsend observed signs that Phillip had been exposed to violence in his parents’ home. Specifically, she observed the symptoms typically associated with posttraumatic stress disorder, including an effort to avoid any discussion about his parents or any discussion regarding physical violence, and incredible agitation at the mention of his parents or any of the historical violence in his family. In addition, Phillip has exhibited violent behaviors toward small children; he had reportedly made threats against school personnel, specifically male authority figures; and he was “in a chronic state of agita- tion . . . where he was just looking for the next moment that he would have to fight.” Based on her training and experience,  Decisions of the Nebraska Court of Appeals 652 20 NEBRASKA APPELLATE REPORTS Townsend stated Phillip’s symptoms were typical of expo- sure to violence in the home. Townsend opined that it would be harmful to Phillip if he were returned to his parents’ care because returning him to the same environment would be returning him to a place that would continue to traumatize him psychologically. Townsend observed that Angelina presented as a trauma- tized child and was very depressed. Angelina wanted abso- lutely no contact with her parents, which is not a normal response Townsend sees from children. Angelina appeared to be functioning better insofar as she had been removed from the stressor, presumed to be her parents. Townsend believed it would be harmful to Angelina to be returned to her parents’ care because she seemed to be using all of her strength to keep things together, and Angelina had expressed that she did not think she could take being in the family home any longer. Townsend noted that neither Phillip nor Angelina showed signs of normal bonding with their parents. It was significant to Townsend that Phillip and Angelina wanted no contact or interaction with their parents because most children, on some level, still want some relationship with their parents regardless of the level of abuse they have endured. This, Townsend testified, indicated chronic and ongoing severe abuse or trauma. Townsend observed that Adriana was struggling with emo- tional difficulty which most children suffer when removed from their home but that there was no indication Adriana had been traumatized. Adriana, because of her age, felt more con- nected to her parents and was still at an age where she desired a relationship with her parents. Townsend expressed concern, however, that if Adriana is returned home and the conditions remain the same, she will grow up to believe that violent interaction is the norm and might emulate those behaviors. Townsend testified that if the conditions at home remain the same, it would be harmful for Adriana to return home, because she worries about Adriana’s continuing the cycle of violence whether as the victim or as an aggressor. Townsend diagnosed Adriana with adjustment dis- order with depressed mood, which means that when Adriana  Decisions of the Nebraska Court of Appeals IN RE INTEREST OF ANGELINA G. ET AL. 653 Cite as 20 Neb. App. 646 is in the presence of a stressor, her mood is depressed and she feels helpless and despondent, but when the stressor is removed, there is improvement in her mood. Townsend noted that chronic exposure to domestic violence and substance abuse adversely affects children because they learn to cope negatively, they learn maladjustive ways of deal- ing with stress and relationships, they are likely to identify with either the abuser or the victim and perpetuate such rela- tionships throughout their lives, and they are more likely to suffer from depression, anger outbursts, criminal activity, and substance abuse. In Townsend’s opinion, terminating Julian’s parental rights to Phillip, Angelina, and Adriana would be in the children’s best interests. Dr. Matthew Hutt, a licensed psychologist who conducted mental status evaluations on Phillip, Angelina, and Adriana, also testified. Dr. Hutt stated that Phillip’s mood became more dark and angry when Phillip was asked about his parents. Phillip indicated that he preferred not to have any contact with his parents. Dr. Hutt diagnosed Phillip with anxiety disorder, not otherwise specified. Angelina acknowledged a sense of anger and resentment toward her parents similar to Phillip’s. Dr. Hutt diagnosed Angelina with adjustment dis- order, not otherwise specified. Adriana reported to Dr. Hutt that she felt safe in her current environment with her mater- nal aunt and denied any sadness, despondency, or anger. Dr. Hutt diagnosed Adriana with adjustment disorder, not other- wise specified. The court also heard testimony from Katherine Batt, a chil- dren and family services supervisor with DHHS who super- vised Julian and Peggy’s case. Batt testified that Julian would consistently follow through with services provided by DHHS for 3 or 4 weeks, but never longer than that. More significantly, Julian had never been able to admit any wrongdoing and did not think he had a problem, which had been a roadblock in the progression of the case. Ultimately, Batt opined that terminat- ing Julian’s parental rights would be in the best interests of the children because, despite services offered to the family, Julian and Peggy continued to have a very violent relationship, the children were fearful of their parents, and DHHS had been  Decisions of the Nebraska Court of Appeals 654 20 NEBRASKA APPELLATE REPORTS involved with the family for over 11 years by offering services to them, but they had been noncompliant. Rickie Wynne, a children and family services specialist with DHHS, also testified. When the current case was opened in August 2011, Wynne interviewed Julian and Peggy, and they both blamed DHHS’ current involvement on the two older children, claiming that Phillip and Angelina were out of control and lying. Julian and Peggy indicated they were not willing to participate in the services provided by DHHS because they had “‘already done all of this stuff’” and did not understand why they should be expected to do it again. In September 2011, Julian’s and Peggy’s visits with Adriana and Marciano were separate because Peggy had a protection order against Julian, and Wynne recounted an incident where Peggy’s visit had to be moved to a different location because Julian showed up during Peggy’s visit and started shouting at her through her car windows with the children present. After that, Peggy’s visits had to be held at a center for supervised visitation and family support for several months to protect her visits from Julian. The court also heard testimony from two visitation aides who testified that Julian generally showed up for his visits and was on time, that he was good with the children, and that he and the children always seemed excited to see each other. Julian testified in his own behalf during the termination hearing. When asked about his discipline practices, Julian testi- fied that he never touched his children physically. When asked again, he stated that he has “tapped” them, which means “like a slap on the hand, you know, a tap on the rear.” He stated that he has yelled at the children quite a bit but never threatened them. However, on cross-examination, Julian admitted that he told Wynne that he has threatened to “beat the kids’ asses,” stating, “[W]ho hasn’t heard that from their parent?” When asked about his relationship with Peggy, Julian replied that their relationship is “no worse or better than most others. It’s pretty good, as far as the relationship.” When asked what steps he has taken to address the issues of domestic violence in his relationship with Peggy, Julian stated, “I don’t believe I need to. I’m sorry, I don’t. I haven’t taken any.”  Decisions of the Nebraska Court of Appeals IN RE INTEREST OF ANGELINA G. ET AL. 655 Cite as 20 Neb. App. 646 Overall, Julian tended to either downplay or outright deny many of the events described above. When asked about the incident in the hospital when Peggy called security, Julian stated, “Security was called because she wanted to call them.” Julian denied putting Marciano in the dryer, stating that it was Angelina and Adriana who were trying to put Marciano in the dryer and that Julian had to discipline them for doing so. Julian testified that the incidents where he threw rocks and spit at Peggy and where he hit Roman in the head with a crowbar “didn’t happen.” The court also heard testimony from Peggy. Peggy admitted that her relationship with Julian was violent and that some- times the violence occurred in front of the children. Peggy stated that Julian cannot control his anger. Peggy did not think the children would be safe with her and Julian because Julian does not think he has a problem, but he is the one who “causes everything.” Peggy arrived to court on the second day of the hearing with a black eye as a result of an incident that occurred on January 13, 2012, between the 2 days of trial. Scottsbluff police responded to the incident and found Peggy, who was very intoxicated, with a black eye. Peggy told police that she and Julian began arguing, she hit him twice, and then he punched her in the eye. Julian told police that Peggy had gotten into a fight with his mother and that his mother had given Peggy the black eye. Police noted that Julian’s mother also had a black eye. A few days later, Julian told Batt during a team meeting that he had not caused Peggy’s injuries, that he was tired of covering for Peggy, and that Peggy is the one who beats him. At trial, Peggy testified that Julian had given her the black eye and that after the incident, she contacted police, moved into a women’s shelter, and obtained a protection order against Julian. Peggy testified that she was not going to go back to Julian again and stated that she was afraid of Julian because he has threatened to kill her. After all parties had rested at trial, the State requested to withdraw the motion to terminate Peggy’s parental rights to Adriana and Marciano and file a “fault petition” for each under  Decisions of the Nebraska Court of Appeals 656 20 NEBRASKA APPELLATE REPORTS § 43-247(3)(a) (Reissue 2008) instead. Peggy indicated that she agreed to this amendment. Julian objected to the timing of the amended petition because all the evidence had already been presented and all parties had rested. The court noted the objection but allowed the State to file first supplemental juvenile court petitions for Adriana and Marciano on January 30, 2012, alleging they were children within the meaning of § 43-247(3)(a). In an order dated February 29, 2012, the court termi- nated Julian’s parental rights to Phillip, Angelina, Adriana, and Marciano. The court noted that the evidence presented at the termination hearing showed a history of more than 10 years of various incidents exposing the children to domestic violence, alcohol abuse, physical violence, threats of physical violence, and a failure to protect the children. The court also noted that the record includes a documented history of prior interventions by DHHS because of issues of substance abuse and domestic violence. Overall, the court found by clear and convincing evidence that the substantial history of violent domestic disputes between Julian and Peggy over the course of more than 10 years, the exposure of the minor children thereto, and the parents’ failure to protect the minor children constitute chronic abuse. The court found the credibility of Julian’s testimony was suspect in view of his argumentative nature and confronta- tional behavior throughout the course of trial. The court noted the “astonishing absence” of any accountability on his part for his history of violent behavior or recognition of anything abnormal about that history, and his aggressive and inappropri- ate reactions to caseworkers and law enforcement attempting to intervene on behalf of the children. The court found the testimony of Angelina, Townsend, Dr. Hutt, and Batt to be “extraordinarily compelling” in support of a finding that ter- mination of parental rights is in the children’s best interests. Regarding Julian specifically, the court found there was an absence of evidence indicating the likelihood of significant rehabilitation of his behavior anytime in the foreseeable future. Julian timely appeals.  Decisions of the Nebraska Court of Appeals IN RE INTEREST OF ANGELINA G. ET AL. 657 Cite as 20 Neb. App. 646 In the February 29, 2012, order, the court also terminated Peggy’s parental rights to Phillip and Angelina. Peggy did not appeal the decision. ASSIGNMENTS OF ERROR Julian asserts the juvenile court erred in (1) failing to estab- lish by clear and convincing evidence that the children were subjected to aggravated circumstances as set out in Neb. Rev. Stat. § 43-292(9) (Cum. Supp. 2012), (2) permitting the State to file first supplemental juvenile court petitions in the cases involving Adriana and Marciano after the State rested its case during trial and after the court adjourned the trial and prior to the issuance of the court’s order ruling on the merits of the second amended motions to terminate parental rights, and (3) finding that the State had established by clear and convincing evidence that termination of Julian’s parental rights was in the best interests of the children. STANDARD OF REVIEW [1,2] An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings. See In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009). However, when the evidence is in conflict, an appellate court may con- sider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other. Id. [3] When an appellate court reviews questions of law, it resolves the questions independently of the lower court’s con- clusions. In re Interest of Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758 (2007). ANALYSIS Grounds for Termination. [4] The bases for termination of parental rights are codified in § 43-292. Section 43-292 provides 11 separate conditions, any one of which can serve as the basis for the termination of parental rights when coupled with evidence that termination is  Decisions of the Nebraska Court of Appeals 658 20 NEBRASKA APPELLATE REPORTS in the best interests of the child. In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010). [5] In its order terminating Julian’s parental rights, the juvenile court found by clear and convincing evidence that the minor children are within the meaning of § 43-292(9) and that it is in the children’s best interests that Julian’s parental rights be terminated. Section 43-292(9) allows for terminating paren- tal rights when “[t]he parent of the juvenile has subjected the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse.” [6-8] The term “aggravated circumstances” embodies the concept that the nature of the abuse or neglect must have been so severe or repetitive that to attempt reunification would jeopardize and compromise the safety of the child and would place the child in a position of unreasonable risk to be ­reabused. See In re Interest of Jac’Quez N., 266 Neb. 782, 669 N.W.2d 429 (2003). While aggravated circumstances must be determined on a case-by-case basis, where the circumstances created by the parent’s conduct create an unacceptably high risk to the health, safety, and welfare of the child, they are aggravated to the extent that reasonable efforts of reunifica- tion may be bypassed. Id. Courts may also consider whether the offer or receipt of services would correct the conditions that led to the abuse or neglect of a child within a reasonable time. Id. While aggravated circumstances have not yet been found in a situation like the present case, we conclude on our de novo review that the evidence clearly and convincingly establishes the children were subject to chronic abuse in the form of repeated exposure to domestic violence. The record sets out the violent history of Julian and Peggy’s relationship, with many incidents occurring in the presence of their children. Townsend and Dr. Hutt testified that this repeated exposure to violence has caused psychologi- cal damage to the children, particularly Phillip and Angelina, and that returning them to the same environment would cause further damage. Even though there was no evidence that  Decisions of the Nebraska Court of Appeals IN RE INTEREST OF ANGELINA G. ET AL. 659 Cite as 20 Neb. App. 646 Adriana and Marciano have been as negatively impacted by the exposure to violence, § 43-292(9) allows for termination of parental rights if the juvenile or another minor child has been subjected to aggravated circumstances. Thus, the evi- dence as to the trauma sustained by Phillip and Angelina is sufficient to terminate Julian’s parental rights to Adriana and Marciano as well. We find it compelling that Julian blamed Phillip and Angelina for DHHS’ current involvement with the family and refused to acknowledge any abnormality or problems in his relationship with Peggy. Because Julian indicated he would not accept services offered by DHHS, we cannot find that the con- ditions which led to the chronic abuse would be corrected in a reasonable amount of time, particularly in light of the fact that the family previously received DHHS services for 89 months and made very little progress in that time. We also cannot find that the current conditions would be corrected based on Peggy’s testimony that she ended her rela- tionship with Julian and will not return to him. The history of the relationship is compelling, especially Peggy’s history of ending the relationship, obtaining a protection order, and then returning to Julian and moving to vacate the order. Our de novo review of the record shows that grounds for termination of Julian’s parental rights under § 43-292(9) were proved by clear and convincing evidence. Once a statutory basis for termination has been proved, the next inquiry is whether termination is in the children’s best interests. Best Interests. [9-12] Section 43-292 requires that parental rights can be terminated only when the court finds that termination is in the child’s best interests. A termination of parental rights is a final and complete severance of the child from the parent and removes the entire bundle of parental rights. See In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004). Therefore, given such severe and final consequences, paren- tal rights should be terminated only “‘[i]n the absence of any reasonable alternative and as the last resort . . . .’” See In re  Decisions of the Nebraska Court of Appeals 660 20 NEBRASKA APPELLATE REPORTS Interest of Kantril P. & Chenelle P., 257 Neb. 450, 467, 598 N.W.2d 729, 741 (1999). However, [w]here a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best inter- ests of the child require termination of the parental rights. In re Interest of Andrew M. et al., 11 Neb. App. 80, 643 N.W.2d 401 (2002). Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. In re Interest of Phyllisa B., 265 Neb. 53, 654 N.W.2d 738 (2002). In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 717, 684 N.W.2d 594, 602 (2004). The evidence reveals the children were initially placed in the custody of DHHS in 2001 due to domestic violence occur- ring in front of the children. Despite numerous services offered to Julian and Peggy from 2001 to 2008, the family made very little progress and Julian and Peggy’s relationship remained virtually unchanged. The children were placed in DHHS’ cus- tody again, resulting in the present case after another incident of violence in their presence. Townsend opined that terminating Julian’s parental rights would be in the best interests of the children because the children have already been psychologically traumatized by the repeated exposure to domestic violence and returning them to the same environment would continue to damage them and potentially continue the cycle of violence with them as either abusers or victims. Batt also opined that terminat- ing Julian’s parental rights would be in the children’s best interests because Julian and Peggy continue to have a very violent relationship, the children are fearful of their par- ents, and the family made very little progress during DHHS’ prior involvement. Additionally, Julian and Peggy blame Phillip and Angelina for DHHS’ current involvement and deny any wrongdoing. They both indicated they were not willing to participate in serv­ces provided by DHHS because they had already done so i and did not understand why they would have to do so again.  Decisions of the Nebraska Court of Appeals IN RE INTEREST OF ANGELINA G. ET AL. 661 Cite as 20 Neb. App. 646 The evidence is clear that it is in the best interests of the children that Julian’s parental rights be terminated. Supplemental Juvenile Petitions. Julian asserts the juvenile court erred in allowing the State to file first supplemental juvenile court petitions as to Adriana and Marciano after the State rested at trial. The State argues Julian lacks standing to challenge the supplemental petitions. We agree. [13-15] Standing is the legal or equitable right, title, or inter- est in the subject matter of the controversy. County of Sarpy v. City of Gretna, 267 Neb. 943, 678 N.W.2d 740 (2004). The purpose of an inquiry as to standing is to determine whether one has a legally protectable interest or right in the controversy that would benefit by the relief to be granted. Id. In order to have standing, a litigant must assert the litigant’s own legal rights and interests and cannot rest his or her claim on the legal rights or interests of third parties. Id. In the present case, the State made an offer to both Julian and Peggy to dismiss the second amended motions to termi- nate parental rights to Adriana and Marciano and file a “fault petition” for each under § 43-247(3)(a) instead. Peggy agreed, but Julian did not. Thus, the State proceeded with its motions to terminate Julian’s parental rights as to all of the children. Julian was not affected or prejudiced by the State’s agreement with Peggy. Therefore, Julian lacks standing on appeal to chal- lenge the State’s supplemental petitions. CONCLUSION For the reasons stated above, we affirm the juvenile court’s order terminating Julian’s parental rights to Phillip, Angelina, Adriana, and Marciano. Affirmed. 

521 F.2d 114 Dorothy BRUNO, Appellant,v.Hon. Calvin K. HAMILTON, Appellee. No. 74-1968. United States Court of Appeals,Eighth Circuit. Submitted June 9, 1975.Decided Aug. 1, 1975. Charles C. Shafer, Kansas City, Mo., for appellant. J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee. Before VAN OOSTERHOUT, Senior Circuit Judge, LAY and HEANEY, Circuit Judges. PER CURIAM. 1 Fulltime Magistrate Calvin K. Hamilton disapproved a bond tendered by Dorothy Bruno on behalf of an unnamed criminal defendant and in connection therewith entered an order that he would no longer accept Mrs. Bruno as a surety on any bond tendered to him. Mrs. Bruno filed a motion for reinstatement as a qualified bondsman with the magistrate. An evidentiary hearing was granted, after which the magistrate filed a memorandum opinion finding Mrs. Bruno was not a suitable bondsman under Local Court Rule 21(d) of the Western District of Missouri. The order concludes as follows: 2 The undersigned is of the opinion that Dorothy Bruno, by: (a) her association with Felix Ferina, (b) her acceptance of the .38 caliber revolver from Azariah M. Bates, as security for a promissory note given in payment of the fee for the criminal appeal bond, with knowledge that he had been convicted of a felony, and (c) her failure to obtain the permit required by Section 564.630, RSMo, prior to receiving the .38 caliber revolver from Azariah M. Bates, has demonstrated that she is not a reputable person. Further, knowledge that Dorothy Bruno received the .38 caliber revolver, without complying with the law of the State of Missouri, from a person who had been found guilty of a felony as security for a promissory note given in payment of a fee for posting a criminal appeal bond, has caused the undersigned to lose confidence in her business integrity and the moral manner by which she carries out her business or undertakings. Therefore, the motion to reinstate Dorothy Bruno as a bondsman is denied and the undersigned will not accept her or the Bruno Bonding Company as a surety on any bail or other bond proferred to him. 3 Mrs. Bruno filed a timely notice of appeal to the district court from such disqualification order, filed exceptions to the magistrate's findings and order, and filed a petition for writ of mandamus ordering the magistrate to reinstate her as a bondsman. 4 Parenthetically, we note that no appeal has been taken from the order refusing to accept Mrs. Bruno as a bondsman for the unknown criminal defendant. The magistrate's disapproval of that particular bond is not here involved. 5 The trial court by final order filed October 14, 1974, determined it had no jurisdiction to review the magistrate's order. It treated the case as one for mandamus and dismissed the petition on the ground that under Local Rule 21 the magistrate acted within his discretion and that mandamus will not lie to compel a discretionary act. 6 Local Rule 21(b) and (c) sets forth the general qualifications for a bondsman, which Mrs. Bruno appears to have met. Mrs. Bruno had served as a bondsman in state and federal courts for many years. The magistrate's disqualification order is based on Local Rule 21(d) which reads: 7 (d) Bonds Surety. If any sureties, corporate or individual, or any agent, representative, servant, or employee thereof, conduct themselves or their business respecting the writing of bail, surety, or bonds of any type or character, so as to forfeit the confidence of this Court, or cause any Judge of this Court to lose confidence in the business integrity or moral manner by which they carry out their business or undertakings; the Court or Judge expressing any such loss of confidence may enter an order directing that such surety, agent, representative, or employee of a surety, be precluded from proffering bail, surety, or any other bonds to this Court. 8 The "moral manner" by which any surety, or its agent, representative, or employee will be measured, is whether, in the opinion of any Judge of this Court, the method of conducting its business will subject the Court to calumny in any manner whatsoever. 9 The magistrate urges that the district court lacks jurisdiction to review a magistrate's disqualification order. There appears to be no specific statutory proceeding for district court review of a magistrate's order in a case of this kind. However, Local Rule 26(B)(6) is set out in footnote 1 of Birdwell v. Ciccone, 490 F.2d 310, 311-312 (8th Cir. 1973). The rule in substance provides that the magistrate shall file a written report and recommendations and that there shall be a review de novo of any order or filing of a magistrate to which written exception is filed by a party within five days. 10 Plaintiff has appealed from the magistrate's order and filed exceptions to the magistrate's order. The district court does not discuss the applicability of Local Rule 26(B)(6) or any other pertinent local rule. We believe that the rule cited confers jurisdiction for district court review. In any event, we believe the district court has inherent power to review the final decision of its magistrates except in situations where by statute or valid court rule the magistrate is empowered to make final disposition. See 28 U.S.C. § 636(c). No such situation here exists. Upon remand the issue of the trial court's power and authority to review the orders of its magistrates under the circumstances here presented should be resolved. 11 A serious question exists on whether Local Rule 21(d) confers jurisdiction upon the magistrate to permanently disqualify a bondsman. Rule 21(d) by its plain language appears to limit the revocation of bond writing authority to a court or a judge thereof. We find nothing in the record to indicate that the court's rights under Rule 21(d) have been delegated to the magistrate. Moreover, the delegation if made is highly questionable. The magistrate is rather strictly limited with respect to his jurisdiction to enter final orders by 28 U.S.C. § 636. See Wingo v. Wedding, 418 U.S. 461, 470, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974); Noorlander v. Ciccone, 489 F.2d 642, 646-647 (8th Cir. 1973), and cases there cited.1 The substantial issues of whether Rule 21(d) or any other rule confers jurisdiction on a magistrate to permanently disqualify a bondsman should be resolved initially by the district court. If no such jurisdiction exists, the magistrate's order should be vacated for lack of jurisdiction. If on the other hand jurisdiction does exist, the trial court should review the record made and afford opportunity to the parties to offer evidence before the court. We note that the record reflects that the trial transcript before the magistrate did not become available to the court until long after the court's entry of final judgment. 12 The court disposed of the petition for mandamus upon the ground that it could not compel an official to perform a discretionary act. Unless the magistrate has jurisdiction to enter a non-reviewable order under Local Rule 21(d) or otherwise, there is no discretion which he can exercise and an order entered without jurisdiction is void. 13 Moreover, mandamus is an extraordinary remedy reserved for extraordinary situations. It is not to be used as a substitute for appeal. If as we have heretofore indicated the magistrate's action is reviewable by the district court, no need arises to resort to mandamus. If the mandamus issue is reached, we believe the initial issue is whether the magistrate acted within his jurisdiction in issuing the order here under attack. Absent jurisdiction, the issue of discretion or abuse of discretion would not arise. 14 The judgment of dismissal is reversed and this case is remanded to the trial court for further consideration in light of the views here expressed. 1 In Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), the Supreme Court held that magistrates are not authorized to conduct an evidentiary hearing in federal habeas corpus cases. 418 U.S. at 473, 94 S.Ct. 2842, 41 L.Ed.2d 879. At footnote 19 on the same page the Court states: To the extent that OShea v. United States, 491 F.2d 774 (CA1 1974), and Noorlander v. Ciccone, 489 F.2d 642 (CA8 1973), suggest that magistrates may also accept oral testimony, provided that each party has the right to a De novo hearing before the District Judge, we disagree. Such a procedure is precluded by both § 2243 and § 636(b). The foregoing does not impair the validity of Noorlander for the purpose for which it is cited.

409 S.W.2d 443 (1966) HUNT DEVELOPERS, INC., Appellant, v. WESTERN STEEL COMPANY, Appellee. No. 244. Court of Civil Appeals of Texas, Corpus Christi. November 17, 1966. Rehearing Denied December 15, 1966. *445 John A. Waller, Jr., Corpus Christi, for appellant. William R. Anderson, Jr., of Sorrell, Anderson & Porter, Corpus Christi, for appellee. OPINION NYE, Justice. Appellee Western Steel Company sued Hunt Developers, Inc., the owner of certain properties, and contractor Gerald DeGough, d/b/a G & G Construction Company on an open account to establish and foreclose a statutory materialman's lien. Trial was to the court without the aid of a jury and resulted in a judgment against the contractor and owner of the properties. The court entered an interlocutory default judgment against DeGough, contractor, for the amount of the open account ($2,499.36) plus $600.00 attorneys' fees, and subsequently made such judgment final. Final judgment was further rendered in favor of Western Steel Company, the materialman, for the amount of its account against Hunt Developers, Inc. and foreclosing the liens against Hunt's properties. No appeal has been taken by DeGough as to judgment against him. Hunt has perfected its appeal to this court. Appellant, Hunt Developers, Inc., hereinafter referred to as owner, employed Gerald DeGough, d/b/a G & G Construction Company, hereinafter referred to as contractor, to do the concrete work on the foundations and driveways for the construction of houses on eight lots of owner. Contractor ordered reinforcing steel, wire mesh and anchor bolts from Western Steel Company, hereinafter called materialman, to be used in the construction of the houses on owner's property. Owner's agreement with contractor was oral and no provision was made for any retainage. The concrete work was performed and completed by contractor at various times on the eight lots. As agreed upon, owner paid the contractor almost immediately after the completion of the concrete work on each lot. The first delivery of materials to the contractor was on or about February 15, 1965 and the last delivery was made on or about March 5, 1965. The contractor did not pay the materialman. On May 18, 1965 materialman filed its lien affidavit against the properties involved. This affidavit was filed within thirty days after the work had been completed as to six lots and more than thirty days as to two lots. The trial court disallowed the lien against the latter two lots and entered judgment foreclosing materialman's lien on the remaining six lots of owner. It was stipulated that ten percent of the total cost of each house was more than materialman's claim against each. Materialman notified Hunt on May 4, 1965 that he had furnished material to contractor. On May 6, 1965 the owner advised the attorneys for materialman that contractor had already been paid. The notice was mailed to owner less than ninety days after all of the material was delivered. Appellant-owner's first point is to the effect that the notice mailed by materialman to the owner was ineffective to establish a lien to the fund that should have been retained by the owner under Article 5469, Vernon's Ann.Civ.St. Materialman's notice was as follows: "You are hereby notified that the undersigned, under the provisions of Article 5453, Vernon's Annotated Civil Statutes, hereby gives notice of an unpaid balance due to the undersigned, Western Steel Company, by Jerry DeGough, doing business as G & G Construction Company, in the amount of Two Thousand Four Hundred Ninety-Nine and 36/100 Dollars ($2,499.36). This indebtedness is for the furnishing of reinforcing steel, wire mesh and anchor bolts in the construction of houses on lots set forth below. The specific amount due on each lot is set forth below. The claim of the undersigned *446 against Jerry DeGough, doing business as G & G Construction Company, became due as is set forth below: Due Date of Claim Lots Against Which Amount of Claim A Lien is Claimed (Dates) (Lot and Block No. (Amount in dollars) Total $2499.36 WESTERN STEEL COMPANY" This notice was sent by certified mail on May 4, 1965, return receipt requested. In a letter dated May 6, 1965, owner advised materialman's attorneys as follows: "Gentlemen: We have today received notice from you regarding the claim of Western Steel Co. against Jerry DeGough doing business as G & G Construction Co. in the amount of $2,499.36. "The balance due on each job listed in the notice has been paid by us to G & G Construction Co." In a letter dated May 7, 1965, materialman, through his attorneys advised owner as follows: "Dear Mr. Hunt: This will acknowledge receipt of your letter of May 6, 1965. We assume from your letter that you have not complied with Article 5469 of Vernon's Annotated Civil Statutes, and, therefore, we will claim a lien as set forth under such Statute." No other notice was given to the owner. Thereafter, on May 18, 1965, materialman filed its lien affidavit. The primary question to be decided is whether or not the notice mailed by materialman was sufficient under the statutes to entitle the materialman to a lien under Article 5469, V.A.C.S. Appellant-owner contends that the notice received by the owner was simply a statement that contractor owed materialman a certain amount of money and was insufficient as a matter of law to entitle the materialman to a lien under Art. 5469, V.A.C.S. Appellant advances several grounds for his conclusion. (1) It does not contain any itemization of any description whatsoever of the type of materials furnished. (2) It does not contain a statement or billing in the usual and customary form as is stated under the statute to be sufficient. (3) It does not contain any statement to the effect that the owner of the property, if the bill remains unpaid, may be personally liable and his property subjected to a lien, which is necessary in order to authorize an owner to retain funds. (4) It does not contain a demand to the owner to pay the claim as required under Article 5453(3). It is appellee's position that he has complied with the applicable mechanic's and materialman's line laws and since owner failed to retain ten percent of the contract price as required under Article 5469, V.A.C.S. for thirty days after the work had been completed, owner is liable and his property is subject to a materialman's lien to the extent of the amount of the fund that should have been retained under Article 5469, V.A.C.S. *447 Appellant's grounds one and two above are without merit. The fact that materialman did not send a statement or billing in the usual or customary form does not make the notice ineffective. This statement or billing is not a requirement, but merely a suggested one as being sufficient. The notice did itemize the material furnished as being reinforcing steel, wire mesh and anchor bolts for the construction of houses on lots owned by the appellant. Certainly, it is conceivable that his itemization might be more descriptive than the customary billing or statement which the statute provides as being sufficient. See Murchison v. Caruth Building Service, 369 S.W.2d 380, Tex.Civ.App. (1963), ref. n. r. e. Appellant's contention under Number (4) that the notice did not contain a demand does not make the notice deficient. Such demand under Art. 5453, Section 3, is applicable where a claimant is desirous of demanding payment of his claim by the owner as prescribed in Art. 5454, V.A.C.S. When an owner has withheld payment from the original contractor pursuant to Art. 5463 and a claimant gives timely notice to the owner that his claim has accrued (Art. 5467) or is past due, then the claimant may make demand in writing to the owner with a copy to the contractor. If the contractor shall not within thirty days after receiving such demand advise the owner in writing that he intends to dispute the claim then the contractor shall be considered as having consented to the demand and the owner may pay the claimant. Demand is not a necessary prerequisite to a valid notice to claim a lien under Art. 5469, V.A.C.S. Appellant contends that in order to be entitled to the claimant's fund under Art. 5469, V.A.C.S., notice must be given in accordance with Art. 5453, 2b(2) accompanied with the warning that if the bill remains unpaid the owner may be personally liable and his property subject to a lien unless he withholds payment from the contractor or unless the bill is otherwise paid or settled. It is true that this warning must be given in order to trap funds under Art. 5463 but it is not necessary or contemplated under Art. 5469. A brief discussion of these articles is necessary for this conclusion. Prior to the change in the "mechanics', contractors' and materialmen's" line law in 1961, Article 5463, V.A.C.S., limited the owner's liability. This article provided in part: "But the owner shall in no case be required to pay, nor his property be liable for, any money that he may have paid to the contractor before the fixing of the lien or before he has received written notice of the existence of the debt." See Berry v. McAdams, 93 Tex. 431, 55 S.W. 1112, Supreme Court (1900) and the many cases found in Shepard's Texas citations under this citation; Marek v. Goyen, 346 S.W.2d 926, Tex.Civ.App.(1961); 38 Tex. Jur.2d, Sec. 69, page 632. The owner, under the new revised statutes, as well as the former ones cannot be liable for more than the contract price if he complies with the statutes. Article 5463, Paragraph 2, V.A. C.S., still limits the owner's liability in that he "shall in no case be required to pay, nor his property be liable for, any money, other than that required to be retained by him under the provisions of Article 5469 hereof, that he may have paid to the contractor before he is authorized under this Article to retain the money." If the owner fails to comply with the statute and pays to the contractor money due under the contract after he has received proper notice in accordance with Article 5453, V.A.C.S., he may be liable for that which he was authorized to retain under Art. 5463, and in addition the money he is required to retain under the provisions of Art. 5469, V.A.C.S. Where derivative claimants give proper notices in accordance with Article 5453, V.A.C.S., prior to the payment by the owner to the contractor, such notices operate much in the same way as do writs of garnishment. 38 Tex.Jur.2d, Section *448 41, p. 594. These derivative claimants can only acquire liens by giving the proper notices required by the statute (Article 5453, V.A.C.S.) and by filing with the county clerk proper affidavits claiming their lien. (Owner makes no contention that contractor's affidavit was not timely filed or was insufficient in any manner.) This is the same as was provided under the old statute. Even though a notice is given within the time prescribed by the statute it may come too late to impound funds in the owner's hands. If all of the funds owing to the contractor have been paid to him by the owner under the terms of the contract prior to the receipt of the notice, there may be nothing left to which the claimant's lien can attach, unless it is those funds provided for in Article 5469, V.A.C.S. Under the old law Article 5469, V.A.C.S., the owner was required to retain in his hands ten percent of the contract price for a period of thirty days after the completion of the work. This fund that was required to be retained by the owner, was for the benefit of artisans and mechanics. This duty was imposed upon the owner even though he had no notice of the outstanding claims at the time the job was completed. If the artisans and mechanics gave timely notice and perfected their liens they obtained an enforceable lien against the owner's property and a claim against the owner to the extent of ten percent of the contract price. Miller v. Harmon, 46 S.W.2d 342, Tex.Civ.App.(1932). The new statute as amended preserves a preference in this same fund for the same thirty-day period, not only for artisans and mechanics, but further, after they have been satisfied, to all other claimants who may share ratably in the balance to the extent of their claims. This imposes a duty upon the owner to withhold ten percent of the contract price for the benefit of those who would qualify under this statute. It is to the extent of this fund that appellee materialman makes claim for a lien. In order for a claimant to qualify for a lien to the extent of this fund required to be retained by the owner, he "shall send notices in the time and manner required by this Act and shall file affidavits claiming a lien not later than thirty (30) days after the work is completed * * *." Article 5469, V.A.C.S. Article 5453 makes the notice requirement a condition precedent to the validity of such claims under these Acts. Chapter 2, Title 90, Articles 5452-5472d as amended in 1961, 57th Legislature. The Act provides in part: "Such notices shall be sent by certified or registered mail, addressed to the owner, and where required by this Article to the original contractor, at their last known business or residence address. A copy of the statement or billing in the usual and customary form shall suffice as a notice under this subparagraph; provided, however, if such statement or billing is to be effective to authorize an owner to retain funds for the payment of such claim as provided in Article 5463 of this Act, it shall contain or be accompanied by some form of statement to an owner to the effect that if the bill remains unpaid he may be personally liable and his property subjected to a lien unless he withholds payments from the contractor for the payment of such statement or unless the bill is otherwise paid or settled." (emphasis supplied) The notice requirement under Article 5453, paragraphs 2a, 2b(1), 2b(2) first paragraph, and 2c, make no reference to the requirement that a warning must be given to the owner to make the notice effective. Yet these are notice requirements that are sufficient under certain circumstances. Article 5469 provides that notice must be given in the time and manner required by this Act. This Act under 5453, 2b(2) first paragraph, provides that "Where the claim consists of a lien claim arising from a debt incurred by the original contractor, (as here) * * * notice to *449 the owner, as prescribed in paragraph 2b(1) of this Article will be sufficient." If the notice under 2b(1) is sufficient, then the warning is not required, as no mention of warning is given under 2b(1). The notice provision under 2b(2) second paragraph, where the warning provision is contained, confines it to the trapping of funds under Art. 5463, V.A.C.S. Article 5453 says: "provided, however, if such statement or billing is to be effective to authorize an owner to retain funds for the payment of such claim as provided in Article 5463 of this Act * * *." (emphasis supplied). it shall contain the statutory warning. Article 5463, V.A.C.S. provides that the owner may, when notice of claims have been received, retain in his hands the amounts of money necessary to pay the claims from payments or part payments to the original contractor under certain numerated conditions. This is the retained fund provision which authorizes the owner to deduct from the amount due the contractor and requires the contractor to defend certain suits. The warning provision is not applicable to Article 5469, V.A.C.S. Article 5469 requires the owner to retain in his hands during the progress of the work and for thirty days after the work has been completed to secure the payment of claimants with preference to artisans and mechanics ten percent of the contract price to the owner. It is undisputed that the owner did not retain any funds. The owner paid the contractor in full as soon as he completed the job. The materialman gave the owner notice within thirty days after the work had been completed that his materials had not been paid. His affidavit was duly filed, the validity of which is uncontested, within ninety days after his indebtedness accrued. It would have served no purpose for materialman to have given the owner the statutory warning in addition to the notice for two reasons: (1) Article 5469, V.A.C.S. fixes the duty on the owner to retain funds for lien claimants for thirty days after the job has been completed and (2) the owner had already paid out the amounts owned to the contractor and therefore there were no retained funds existing as required by Article 5469, V.A.C.S. The emergency clause in connection with Ch. 382, p. 872, of the Laborers' and Materialmen's Lien Law, 57th Legislature, 1961 provides: "the fact that the existing Statutes governing mechanics and materialmens lien are antiquated, vague, and ambiguous, and have been the subject of numerous conflicting court decisions resulting in loss of liens through technicalities, creates an emergency * * *." (emphasis supplied) The materialman-appellee substantially complied with all the provisions of the mechanics' and materialmen's lien act. This compliance is especially sufficient where no one has been misled to his prejudice. The Legislature did not intend that the materialman should lose his lien through the technicalities of a warning, where the owner was not misled to his prejudice. Appellant's first point is overruled. Appellant's third point of error is that the ten percent provision under Article 5469, V.A.C.S. concerns only ten percent of the contractor's contract and not ten percent of the contract price of the house. Article 5469 V.A.C.S. clearly states that the owner is to retain ten percent of the contract price. This does not refer to a particular contract, a subcontract or anything less than the contract price of the building. Miller v. Harmon, 46 S.W.2d 342, Tex.Civ.App.(1932). Appellant argues that under the old statute ten percent of the entire contract must be withheld but that under the 1961 amendment this was modified. The amendment of Article 5469 in 1961 still requires the owner to withhold ten percent of the contract price to secure the payment of claimants who qualify under this Act. We hold that Article 5469 requires the owner to retain ten percent of the entire contract price of the building. *450 Lane-Wells Company v. Continental-Emsco Company, 397 S.W.2d 217, Tex.Sup.Ct. (1965). Appellant's point is overruled. We have considered appellant's other points and overrule them. Judgment of the trial court is affirmed.

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT June 8, 2009 ERRATA Appeal No. 2007-7255 MEDRANO V DVA Decided: June 3, 2008 Nonprecedential Opinion Please make the following change: Page 3, line 16, change the word “principal” to “principle.” 

599 P.2d 700 (1979) Vincent EBEN, Appellant, v. STATE of Alaska, Appellee. No. 3525. Supreme Court of Alaska. September 7, 1979. *701 Dana Fabe, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellant. John A. Scukanec, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ. OPINION RABINOWITZ, Chief Justice. After trial by jury Vincent Eben was found guilty of two counts of second degree *702 murder.[1] The only significant issue litigated at trial was the extent of Eben's culpability and legal responsibility for his parents' deaths. The evidence produced at trial showed the following. On the afternoon of December 6, 1976, Vincent Eben went to a bar to shoot pool and drink beer. At about 6 p.m. that evening, Eben called his friend, Cecelia, and told her to meet him at the Elbow Room bar because he was drunk and wanted her to be with him. When Cecelia arrived at the Elbow Room at about 7:30 p.m., Vincent appeared to her to be drunk. Throughout the evening and until about 4:30 the next morning, Eben drank continuously.[2] At about 4:30 a.m., Eben and Cecelia took a cab to the family apartment. Cecelia testified that she had to assist him because he was drunk and "kind of staggering."[3] They arrived at the apartment a little before 5 a.m., December 7, 1976. Vincent Eben took off his coat and shoes, went to the kitchen and ate some spareribs. He initiated an argument with Cecelia, became angry, and slapped her once in the face. She went to the bathroom to clean her face. When she returned to the kitchen, his expression had changed. He was quiet, but his muscles were "all tensed up" and his eyes were open wide and had a "wild look" in them. Eben then said "something about his mom and dad always wanted to die," opened a kitchen drawer, pulled out a knife, and started walking toward his parents' bedroom. Cecelia attempted to stop him, but he pushed her to the floor. This struggle and Cecelia's screaming awakened Eben's two sisters. His sister Charlotte came out of her room and attempted to stop him, but he hit her in the stomach with his hand and the knife handle and proceeded into his parents' room. He stabbed his father, Francis, once in the chest, and his mother, Rebecca, three times in the back, killing them both. Vincent emerged from the room and threw down the knife, which stuck in the floor. He walked down the hall to the living room and sat on the couch. Charlotte called the police. Anchorage Police Officers Loy and Haakenson were only a half block away when they received the dispatcher's call and arrived at the Eben apartment shortly after the stabbings had occurred. The three young women were "very excited and yelling." Charlotte pointed down the hall and stated: "[H]e just stabbed my mom and dad." The police officers saw Eben standing in the hall without a shirt or shoes or socks. At this time, Eben made a statement which one of the officers summarized as follows: [T]hey wanted to go to hell so I sent them there, I stabbed them. You better get an ambulance, ... I stabbed them bad. Eben then turned around and held his hands behind his back in what the officers described to be a "handcuffing position." While Officer Loy investigated the parents' room, Officer Haakenson attempted to advise Eben of his rights, but Eben interrupted him, shouting that he knew his rights. Haakenson shortly thereafter took Eben outside to transport him to the police station.[4] Haakenson testified that he detected a moderate odor of alcohol on Eben's breath. Both officers testified that Eben was not *703 greatly intoxicated and did not seem much impaired in either speech or movement.[5] Haakenson and Eben arrived at the police station at about 5:30 a.m. and went to an "interview room," where Eben's handcuffs were removed. Haakenson read Eben his rights from a standard Miranda rights advisement form, and Eben replied that he understood each of these rights. The officer pushed the rights waiver form across the table for Eben to read. As Eben started to pick it up, he observed the blood on his hands and became "quite upset at the sight of the blood asking where did this blood come from." Eben was "visibly shaking... . [H]e seemed to be very tense and his arms were shaking and his voice began to rise again." Officer Haakenson further testified: [I] advised him at that time that if he did not calm down that I would have to put the handcuffs back on him. He seemed to calm down considerably, however he began to spit on his hands and wipe the blood off on his pants. Eben refused to sign the rights form, stating that he wished to speak to a lawyer and wanted a court-appointed lawyer. Officer Haakenson did not call the public defender agency at that time because he was not aware that they could be reached at night and he "did not have the number handy." Soon thereafter, Officer McCollum joined Officer Haakenson in the room with Eben. McCollum told Haakenson that he knew Eben and that Eben might talk more freely with him. Eben recognized McCollum, greeted him by his first name, and asked him for a cigarette. The police officers then once more advised Eben of his rights. Eben told them that he would sign the rights waiver form after he talked to Cecelia, who had remained at the family apartment. He gave the officers the phone number. One of them dialed it for him and asked a police sergeant at the apartment to bring Cecelia to the phone. The officers remained in the room during Eben's conversation with Cecelia.[6] At no time to this point had Eben indicated that he was willing to talk to the police officers and answer their questions. After the phone call, Eben again refused to sign the waiver form. Eben was then taken to the jail and placed in a "detox" unit at about 6 a.m. Correctional Officer Strutko testified at trial that, over the monitoring microphones, he heard Eben yelling to Eben's brother Owen, who was also in jail. He quoted Eben as saying: "Hey, I just killed mom and dad." Prior to the trial, Eben's counsel sought a protective order prohibiting Officers McCollum and Haakenson from testifying regarding admissions which they claimed Eben made during the phone call from the police station to Cecelia. After a full hearing on this motion, it was denied by the superior court.[7] The prosecution and defense presented widely conflicting testimony as to the degree of intoxication from which Eben was *704 suffering at the time of the stabbing and in the hours that followed. The testimony of the law enforcement officials portrayed Eben as smelling moderately of alcohol and abusive in manner, but not severely intoxicated or impaired in speech, balance, or movement. In contrast, and in addition to Cecelia's testimony that Eben was very drunk, defense witnesses who saw him from four to seven hours after the stabbing testified that Eben's breath smelled strongly of alcohol and estimated from his demeanor that he must have been very intoxicated at the time of the stabbings. At the conclusion of the prosecution's case in chief, Eben's attorney moved for a judgment of acquittal of first degree murder on both counts. The superior court granted this motion only as to the killing of Eben's mother, Rebecca. The court again denied a similar motion with respect to acquittal of the charge of first degree murder of Eben's father, Francis, made after all evidence had been presented to the jury. As indicated previously, the jury returned unanimous verdicts of guilty of second degree murder on both counts. We first address Eben's argument that the superior court erred in denying his motion for a judgment of acquittal on the charge of first degree murder of Francis Eben. The applicable standard which this court employs on review is the same as that used by the trial courts in ruling on such motions: On a motion for a judgment of acquittal the judge must take the view of the evidence and the inferences therefrom most favorable to the state. If he determines that fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt, then he must submit the case to the jury.[8] As Eben's brief argues, the effective difference between first and second degree murder for the purposes of analyzing the superior court's ruling is that sufficient evidence of "premeditation" and "deliberation" must be presented to warrant submission of a charge of first degree murder to the jury. The jury instructions in this case summarized the definitions of these terms: "Deliberate" means that the act was not the result of a sudden impulse; that some thought and consideration was given by the defendant before arriving at the purpose or intent to kill. "Premeditated" means that a deliberate thought process was used; that the purpose to kill was turned over in the defendant's mind and that a decision to kill was made prior to the commission of the act.[9] The trial court specifically noted the evidence that Eben had threatened to kill his father because of "verbal attacks on his girlfriend," which a jury might see as evidence of "a very deep smoldering conflict or hatred ... between the defendant and his father." The court also relied upon evidence that Eben deliberately went to his father to kill him first.[10] In addition to the threats and hostility in evidence between Eben and his father and the fact that he stabbed his father first, the court noted that there was testimony that Eben felt that he had stabbed his father only once but "far enough into his father's heart that he didn't think he would ... live." *705 Eben argues that this court should focus only on the evidence which differentiates the killings of his father and mother in evaluating the merits of the superior court's denial of part of his motion for a judgment of acquittal. However, evidence probative of Eben's mens rea common to both killings may properly be considered, if only because the superior court conceivably might have erred in the defendant's favor in granting the motion as to the killing of Eben's mother. The evidence of the fight, the threat, and the order and manner of the killings may have been seen by the superior court as sufficient additional probative evidence of premeditation and deliberation to allow a jury decision as to a first degree murder charge[11] with respect to the killing of Eben's father. However, other evidence probative of these mens rea requirements in varying degrees included: the "choice of knives" theory;[12] the fact that Eben walked between 30 and 40 feet to reach his parents after apparently deciding or feeling compelled to act; the fact that Eben ignored the pleas of and fought off both his sister and girlfriend, who attempted to stop or dissuade him; the testimony of his girlfriend that immediately prior to making that walk to effect the stabbings, Eben stated that he was going to kill his parents; the incriminating remarks in the presence of police officers both at the Eben apartment and the police station which revealed his comprehension of the nature and consequences of his actions; and the testimony of police officers that Eben did not appear to be highly intoxicated. Viewing this evidence common to both killings and that specific to the killing of his father with "the inferences therefrom most favorable to the state," it is our opinion "that fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt [of first degree murder in the killing of his father] has been established beyond a reasonable doubt." Accordingly, we hold that the superior court did not err in denying Eben's motion for a judgment of acquittal of the charge of first degree murder of Francis Eben. We next turn to Eben's specification of error that the admission of testimony by police officers as to statements made by him in the course of the phone call to Cecelia violated his right to counsel. More specifically, Eben argues that the admission of his statements made during the phone call to Cecelia was a violation of his right to counsel under the sixth amendment of the United States Constitution and article I, section 11 of the Alaska Constitution. In support of this assertion, Eben's brief portrays the actions of the police officers present and the attendant circumstances as effectively amounting to an attempt to "elicit" those statements. Arguing from the United States Supreme Court decisions in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), he asserts that the evidence should not have been used because "[a]ny subsequent effort by the police to elicit information, no matter how deceptive or indirect, has the same practical effect as interrogation." It is contended that Eben neither had the capacity nor intention to waive his right to counsel, and that the admission of this testimony was prejudicial and requires the reversal of his conviction. Eben's arguments are not persuasive. First, they purport to be based on the sixth amendment right to counsel rather than fifth amendment Miranda counsel rights.[13]*706 Yet our understanding of this distinction makes it clear that it is Miranda and not sixth amendment counsel rights which may be appropriately asserted by Eben with respect to the phone call admissions. The case most strongly relied on by Eben, Brewer v. Williams, makes this distinction. In that case, there was "no doubt ... that judicial proceedings had been initiated against Williams." A warrant had been issued for his arrest, he had been arraigned on that warrant before a judge with the assistance of counsel, and he had been committed to jail by the court.[14] In this procedural context, the United States Supreme Court held that Williams' sixth amendment right to counsel had attached and had been violated.[15] At the time Eben made the statements whose admission at trial is challenged here, he had been arrested after a phone call report to police and had been in police custody for about one-half hour. No formal judicial proceedings had been initiated against him and he had not yet obtained the assistance of counsel. While, as the Supreme Court in Brewer v. Williams observed, there is a divergence of judicial opinion as to the "peripheral scope" of the sixth amendment right to counsel, there is little dispute that the formulation in the plurality opinion in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), defines that right's basic scope.[16] Eben's sixth amendment rights were not implicated under that formulation because no "adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment" — had been initiated against him. 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417. *707 Furthermore, Eben has cited no authority which would extend the sixth amendment right to counsel to the context of this case. Those cases which have directly considered the question have held that such an extension of sixth amendment rights is not warranted.[17] We agree with the reasoning of these decisions and conclude that Eben's sixth amendment right to counsel had not attached at the time of his telephone call to Cecelia. At this stage of the criminal process it is the Miranda requirements implementing the fifth amendment privilege against self-incrimination which provide a right to counsel.[18] Therefore, it is by Miranda standards that we must review the trial court's decision to admit the police officers' testimony as to statements made by Eben during the telephone conversation. We find no violation of Miranda here. Miranda requires certain substantive rights and procedural safeguards where a suspect is subjected to "custodial interrogation," which Miranda defines as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). Both custody and interrogation must be involved in the procurement of an inculpatory statement by law enforcement officials before the standards enunciated in Miranda are applicable.[19] In this case, it is clear that Eben was "in custody" at the time he made the statements.[20]*708 However, the record reveals no attempt whatsoever by the police officers to interrogate Eben at any time after he asserted his Miranda right to counsel. The statements made by Eben during the telephone conversation with Cecelia were not made in response to police interrogation, but were spontaneous, unsolicited and made with an awareness that the officers were present. The superior court, in denying the motion for a protective order, found that: There was no evidence of coercion, physical or psychological... . There was no prolonged custodial interrogation... . There was no deception ... [I]t was an open situation... . There was no eavesdropping. While we recognize that "interrogation" may include a wide range of police practices designed to elicit incriminating information,[21] the police officers here appear to have employed no tactics which might be considered tantamount to interrogation.[22] The United States Supreme Court in Miranda made it clear that "volunteered statements" not made in response to "interrogation" may be used as evidence by the prosecution without infringing on fifth amendment guarantees. In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726 (footnote omitted). This principle, sometimes termed an exception to the Miranda requirements, has been recognized *709 and applied in our prior decisions[23] and those of other jurisdictions.[24] As a New York court has said: Indeed, it would be illogical to exclude such statements since they are not the subject of objectionable police behavior, and would reward the guileful, boastful, brazen defendant without corresponding benefit to the search for truth or due process of law.[25] Eben attempts to construe the record to support his argument that his statements resulted from police coercion. However, the superior court concluded that Eben's statements were "made fully and voluntarily without any compelling influences." We have independently reviewed the record and have considered the "totality of circumstances" surrounding Eben's statements. We find that sufficient evidence in the record supports the superior court's conclusion that the state met its burden of proving by a preponderance of the evidence that Eben's statements were made voluntarily and not in response to official interrogation.[26] Therefore, we hold that the superior court did not err in admitting the testimony as to Eben's statements made during his telephone conversation with Cecelia, as the admission of those statements did not violate Eben's rights under either the fifth or sixth amendments to the United States Constitution.[27] *710 Eben's two remaining specifications of error will be briefly addressed. First, Eben contends that error was committed by the superior court in admitting into evidence four knives which constituted Exhibit 14. The state at trial advanced the theory that these four knives were in the same drawer as the weapon Eben used to stab his parents, and that he "chose" the knife used in the killings as the most "appropriate" murder weapon. This "choice," the state argued, was probative of Eben's mental state at the time of the crime. Eben's attorney objected to the admission of the four knives because "an inadequate foundation for admission ... was laid ... [making the knives] a piece of evidence that's unduly prejudicial and not very probative... ." The superior court admitted the exhibit containing the four knives because they were found in the kitchen area, and because Charlotte Eben's testimony indicated that she thought they were all in the same drawer. The superior court concluded that the jury should be allowed to consider this exhibit and the state's choice of knives theory. A trial judge's ruling on the admissibility of evidence "should be reversed only upon a showing of a clear abuse of discretion." Newsom v. State, 533 P.2d 904, 908 (Alaska 1975). We have concluded that the superior court did not clearly abuse its discretion in admitting the questioned *711 knives. In so holding, we reject Eben's contention that the state failed to authenticate properly the four knives when offering them in evidence. In the context of this case, the state need only have shown as a matter of reasonable certainty that the four knives were kitchen knives removed from the Eben apartment. Once this threshold requirement of authentication was met, Charlotte's testimony that she thought the knives were all in the same kitchen drawer was evidence sufficient to support a finding by the jury to that effect. Although not conclusive, there was sufficient testimony in the record from which the superior court could have concluded that the knives had been sufficiently authenticated to allow the jury to consider them as evidence in support of the state's case.[28] This holding is also reflective of our rejection of Eben's further argument that the four knives were improperly admitted because their probative value was outweighed by the danger of "unfair prejudice, confusion of the issues, or misleading the jury" which was presented by their admission into evidence. Rule 403 of the now effective Alaska Rules of Evidence provides: Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.[29] This rule provides that admission or exclusion of evidence is a question for the trial judge after weighing its probative value against the countervailing concerns. The record shows that the superior court engaged in this balancing process and concluded that the knives should be admitted.[30] Although the probative value of the four knives may have been slight, the only allegations of prejudice made by Eben reflect a concern that the jury might misestimate their probative value.[31] *712 Eben's final specification of error is that AS 12.45.083(d), which allows a defendant to unilaterally waive a jury trial where "a defense based on mental disease or defect" is offered to preclude criminal responsibility, should be read to require a bifurcated trial on request. Eben, in his reply brief, concedes that this argument is not viable in light of Post v. State, 580 P.2d 304, 306 (Alaska 1978), which held that AS 12.45.083(d) did not create a statutory right to a bifurcated trial. Eben does not contend that the superior court abused its discretion in denying his motion for a bifurcated trial. At the hearing on that motion, the superior court fairly considered the factors which should guide a trial judge's discretion in ruling on such a motion.[32] Eben's convictions of two counts of murder in the second degree are Affirmed. NOTES [1] Eben was sentenced to fifteen years imprisonment on each count. The sentences were to run concurrently with Eben eligible for parole after serving five years of the sentence. [2] Eben told Cecelia to leave at about 3 a.m. She went to the Montana Club for a half hour or an hour and then returned to Eben at the Elbow Room. [3] The bartender at the Elbow Room that night testified that Eben was "not too sober" when he left, but that he had seen Eben "more intoxicated." However, the bartender's testimony was less than consistent, and the prosecutor stipulated that this witness was under the influence of alcohol as he testified. [4] Haakenson testified that he was in the apartment about eight minutes in all. [5] Loy's observations were based on only a few minutes with Eben in the apartment. Haakenson took Eben to the station, while Loy remained at the apartment. [6] Officer McCollum evidently left the room for a short period and did not overhear the entire conversation. [7] At trial, Officer Haakenson testified as to Eben's statements during the call to Cecelia: I can't state the exact words ... ..... He stated that they both wanted to go to hell so he had sent them there, and also that he didn't feel his father would live because he had stabbed the knife far enough into his father's heart that he didn't think he would — would live. He also said that — he said I hope they're both dead and he — and I'll meet them in hell. ..... ... [H]e stated that he wasn't afraid of the establishment and he could take anything that they could give him. He also, during the phone conversation, made some mention that he felt that — that he would be executed in some form. I believe it was either the electric chair or firing squad but I don't remember which, for what he had done. Officer McCollum corroborated some of this testimony. [8] Bush v. State, 397 P.2d 616, 618 (Alaska 1964) (footnotes omitted). See also Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976); McCurry v. State, 538 P.2d 100, 101 (Alaska 1975); Armstrong v. State, 502 P.2d 440, 443 (Alaska 1972). This standard is relevant whether the evidence presented is direct or wholly circumstantial. See, e.g., Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976). [9] The instructions further defined these necessary mental states, consistently with Gray v. State, 463 P.2d 897, 905-06 (Alaska 1970), as not tested by the "duration of time" of reflection, but requiring a "mind ... sufficiently composed to reflect upon the killing and to understand the nature and character of the act and its consequences." [10] Eben's sister Charlotte related an incident two to four weeks prior to the killings in which Eben hit his father on the left side of the face. His father was drunk and had called Cecelia "names ... like slut and prostitute." After he hit his father, he said, according to Charlotte: "If you don't watch out, man, Ill kill you." [11] Immediately after the judge's ruling, Eben's attorney stated that "there is now evidence of premeditation as to Mr. Eben ... [but as the judge] ruled, properly, I think, ... no evidence of premeditation as to Mrs. Eben." [12] This theory will be alluded to subsequently in the opinion. [13] See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In his reply brief, Eben attempts to distinguish cases raised by the state as dealing "only with Fifth Amendment issues." These are inapplicable, the reply brief argues, because "Vincent Eben is not appealing the admissibility of the calls on Fifth Amendment or voluntariness grounds." [14] Brewer v. Williams, 430 U.S. 387, 399, 97 S.Ct. 1232, 51 L.Ed.2d 424, 436 (1977). In the Massachusetts case relied on by Eben, the defendant had been arrested pursuant to a warrant and had "consulted with two attorneys, having retained the second after discharging the first." Commonwealth v. Dustin, 373 Mass. 612, 368 N.E.2d 1388, 1389 (1977), cert. denied, 435 U.S. 943, 98 S.Ct. 1523, 55 L.Ed.2d 540 (1978). [15] The Supreme Court thus distinguished a defendant's fifth and sixth amendment rights to counsel: [T]here is no need to review in this case the doctrine of Miranda v. Arizona, a doctrine designed to secure the constitutional privilege against compulsory self-incrimination... . For it is clear that the judgment before us must in any event be affirmed upon the ground that Williams was deprived of a different constitutional right — the right to the assistance of counsel. This right, guaranteed by the Sixth and Fourteenth Amendments, is indispensable to the fair administration of our adversary system of criminal justice. Its vital need at the pretrial stage has perhaps nowhere been more succinctly explained than in Mr. Justice Sutherland's memorable words for the Court 44 years ago in Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527: "[D]uring perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself." ... Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him — "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." 430 U.S. at 397-99, 97 S.Ct. at 1239, 51 L.Ed.2d at 435-36 (citations omitted). See also Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Satterfield, 558 F.2d 655 (2d Cir.1976). Many decisions fail to accurately make this distinction. See, e.g., United States v. Massey, 437 F. Supp. 843 (M.D.Fla. 1978). The supreme court's decision in Brewer v. Williams has been the subject of extensive commentary. The most detailed analysis of that decision is developed in two articles by Professor Kamisar. See Kamisar, Foreword: Brewer v. Williams — A Hard Look at a Discomfiting Record, 66 Geo.L.J. 209 (1977), and Kamisar, Brewer v. Williams, Massiah, and Miranda: What is "Interrogation"? When Does It Matter?, 67 Geo.L.J. 1 (1978). [16] See note 15 supra. See also Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). [17] See, e.g., Jett v. Castaneda, 578 F.2d 842, 844 (9th Cir.1978); United States v. Duvall, 537 F.2d 15, 20-22 (2d Cir.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976); People v. Wong, 18 Cal.3d 178, 133 Cal. Rptr. 511, 513-15, 555 P.2d 297, 299-301 (1976); State v. Stone, 397 A.2d 989, 996-97 (Me. 1979). The federal district court in United States v. Miller, 432 F. Supp. 382, 385-89 (E.D.N.Y. 1977), aff'd without opinion, 573 F.2d 1297 (2d Cir.1978), discussed this issue at length and concluded that there were "persuasive reasons" for holding that the defendant's sixth amendment rights had attached during an interrogation conducted after his arrest, but prior to the initiation of formal judicial proceedings. However, in contrast to the present case, "Miller had retained counsel, he indicated that he wished to consult with counsel prior to answering questions, he repeatedly asked when counsel would be present, and prior to questioning counsel had spoken with two F.B.I. agents, directing them not to speak to his client." 432 F. Supp. at 387 (footnote omitted). The Miller court's discussion of this sixth amendment question was dicta, as it expressly declined to make a "final determination" of the question and suppressed Miller's statement on fifth amendment grounds. Id. at 389. [18] We recognized this distinction between fifth and sixth amendment rights in Ladd v. State, 568 P.2d 960, 966 n. 9 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978), with specific reference to Brewer v. Williams. See Jett v. Castaneda, 578 F.2d 842, 844 (9th Cir.1978): The right to counsel during custodial interrogation implements the Fifth Amendment right against self-incrimination. It does not proceed directly from the Sixth Amendment. See also Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 1779, 16 L.Ed.2d 882, 890 (1966) ("prime purpose" of Miranda is "to guarantee full effectuation of the privilege against self-incrimination," rather than implement sixth amendment). Additionally, we find no convincing reasons for extending the right to counsel guaranteed in article I, section 11 of the Alaska Constitution to the factual context presented here. The Miranda protections are specifically tailored to the custodial interrogation context. Given those protections, there are, as the California Supreme Court has noted, "compelling policy considerations" against an extension of the right to counsel under either the sixth amendment or the corresponding section of the Alaska Constitution to all custodial interrogations. Following the commission of a possible crime, it is essential that the police not be unduly hampered in their investigation. Under defendant's proposed extension of [this right to counsel], however, interrogation of suspects could be delayed indefinitely while the officers attempted to locate the suspect's counsel, notify him of the proposed interview, and either obtain his consent thereto or permit his participation therein. People v. Wong, 18 Cal.3d 178, 133 Cal. Rptr. 511, 515, 555 P.2d 297, 301 (1976). See also State v. Stone, 397 A.2d 989, 996-97 (Me. 1979). Compare Blue v. State, 558 P.2d 636, 640-43 (Alaska 1977) (suspect has right to counsel at pre-indictment lineup under Alaska Constitution absent exigent circumstances). [19] See, e.g., People v. Smith, 475 P.2d 627, 628 (Colo. 1970) (en banc). [20] The state does not dispute the fact that Eben was "in custody." In our recent opinion in Hunter v. State, 590 P.2d 888 (Alaska 1979), we delineated an objective, reasonable person test for determining whether a person is "in custody" in the Miranda sense. [21] Interrogation within the meaning of Miranda is certainly not limited to the asking of questions, but includes official conduct of any description which is calculated to, expected to, or likely to elicit incriminating information. See, e.g., Combs v. Wingo, 465 F.2d 96 (6th Cir.1972); People v. Sanders, 55 Ill. App.3d 178, 13 Ill.Dec. 186, 190, 370 N.E.2d 1213, 1217 (1977); State v. Snethen, 245 N.W.2d 308, 313 (Iowa 1976); State v. Atkins, 251 Or. 485, 446 P.2d 660, 662 (1968) (with police knowledge, defendant placed in cell with much larger violent internee who threatened to kill defendant if he did not confess); State v. Johnson, 37 Or. App. 209, 586 P.2d 811, 814 (1978); State v. Innis, 391 A.2d 1158, 1161 (R.I. 1978), cert. granted, 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 (1979); State v. Travis, 360 A.2d 548, 551 (R.I. 1976) (statements made in conversation with undercover officer brought to defendant's cell in handcuffs); State v. Boggs, 16 Wash. App. 682, 559 P.2d 11, 15 (1977). See also Kamisar, Brewer v. Williams, Massiah, and Miranda: What Is Interrogation? When Does It Matter?, 67 Geo.L.J. 1 (1978); Annot., 31 A.L.R.3d 565, 676-96 (1970). [22] This further distinguishes Brewer v. Williams, 430 U.S. 387, 399-400, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424, 436-37 (1977) (police detective employed psychological tactics which he admitted were designed to elicit incriminating information and which the court held "tantamount to interrogation"). Eben's reliance on Commonwealth v. Dustin, 373 Mass. 612, 368 N.E.2d 1388 (1977), cert. denied, 435 U.S. 943, 98 S.Ct. 1523, 55 L.Ed.2d 540 (1978), is based on characterizing that case as involving a "statement absent interrogation." The holding there, however, was clearly based on improper police tactics. Dustin had asserted his rights and obtained counsel. The officer assigned to watch him was asked by Dustin: "If I tell you something about the incident, will I be admitting my guilt?" The officer replied: "You are not on the stand and you are not under oath. You can tell me anything you want to." Id. 368 N.E.2d at 1389. The Massachusetts court upheld the trial court's finding that in that context there had been no voluntary and intelligent waiver of rights by Dustin. [23] See Padgett v. State, 590 P.2d 432, 436 (Alaska 1979); Ladd v. State, 568 P.2d 960, 966-67 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978); Morris v. State, 473 P.2d 603, 605-06 (Alaska 1970); Soolook v. State, 447 P.2d 55, 60-61 (Alaska 1968), cert. denied, 396 U.S. 850, 90 S.Ct. 107, 24 L.Ed.2d 99 (1969). [24] See, e.g., United States v. McCormick, 565 F.2d 286, 289 n. 4 (4th Cir.1977), cert. denied, 434 U.S. 1021, 98 S.Ct. 747, 54 L.Ed.2d 769 (1978); United States v. Gaynor, 472 F.2d 899, 899-900 (2d Cir.1973); United States v. Massey, 437 F. Supp. 843, 849 (M.D.Fla. 1977); People v. Patterson, 88 Cal. App.3d 742, 152 Cal. Rptr. 183, 187 (1979); State v. Peabody, 320 A.2d 242, 245 (Me. 1974) (statements made during conversation with third party in officer's presence); Commonwealth v. Myers, 481 Pa. 217, 392 A.2d 685, 687 (1978); State v. Guerrero, 29 Utah 2d 243, 507 P.2d 1029, 1030 (1973); State v. Miner, 22 Wash. App. 480, 591 P.2d 812, 815 (1979). [25] People v. Ellis, 91 Misc.2d 28, 397 N.Y.S.2d 541, 548 (Sup.Ct.Crim.Term. 1977). [26] determining whether a confession is voluntary or is the `product of a mind overborne by coercion,' this court has previously stated that it will consider the `totality of circumstances surrounding the confession' and conduct an independent review of the record. Sprague v. State, 590 P.2d 410, 413 (Alaska 1979) (footnote omitted). See also Ladd v. State, 568 P.2d 960, 967 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978); Schade v. State, 512 P.2d 907, 916-17 (Alaska 1973). The trial court properly considered the evidence as to Eben's level of intoxication as a factor to be weighed in determining the voluntariness of his statements. See Schade v. State, 512 P.2d at 916-17 (mental illness a factor in determination of voluntariness). See also State v. Wilson, 264 N.W.2d 614, 614-15 (Iowa 1978) (influence of drugs a factor); State v. Snethen, 245 N.W.2d 308, 315 (Iowa 1976) (mental abnormality a factor); Yarborough v. Commonwealth, 217 Va. 971, 234 S.E.2d 286, 289 (1977) (intoxication a factor). Cf., Hampton v. State, 569 P.2d 138, 141-44 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S.Ct. 1225, 55 L.Ed.2d 757 (1978); Thessen v. State, 454 P.2d 341, 344-46 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S.Ct. 588, 24 L.Ed.2d 525 (1970) (both cases recognizing intoxication or influence of drugs as simply a factor in determination of whether Miranda rights waived). The federal constitutional standard requires that the prosecution prove voluntariness by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618, 627 (1972). We have employed this standard on review in previous cases and Eben has not argued for the adoption of a higher standard as a matter of state constitutional law. See Sprague v. State, 590 P.2d at 413 n. 7; Schade v. State, 512 P.2d at 917. [27] Because Eben's statements were not the result of official interrogation, his Miranda rights were not implicated and there is no need to determine whether Eben waived his Miranda right to counsel, which he had expressly asserted. See, e.g., Ladd v. State, 568 P.2d 960, 966 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978); Tarnef v. State, 512 P.2d 923, 934-36 (Alaska 1973) (discussing standard for waiver of Miranda rights). Even in the absence of such a waiver, Miranda requires only that "[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present." Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 723 (1966) (emphasis added). For the same reason, there is no need to decide whether Eben waived his right to remain silent. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (federal standard for waiver of right to remain silent); Miranda v. Arizona, 384 U.S. at 473-74, 86 S.Ct. at 1627, 16 L.Ed.2d at 723 ("If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.") (emphasis added). See also Comment, Reinterrogation of the Silent Suspect: Another Look at the Miranda Doctrine, 62 Iowa L.Rev. 291 (1976). After briefing was completed, counsel for Eben filed a "Notice of Additional Authority" which, in part, cited the provisions of AS 12.25.150(b) and (c), which provide: (b) Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with his attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner, or any relative or friends of the prisoner, have the right to immediately visit the person arrested. (c) It shall be unlawful for any officer having custody of a person so arrested to wilfully refuse or neglect to grant any prisoner the rights provided by this section. A violation of this section is a misdemeanor, and, upon conviction, the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both. In light of these provisions, Eben argues that the police officers did not provide him with any privacy during his phone call to Cecelia, and thus he was forced to elect between his statutory right to place a phone call to a friend and his constitutional right to remain silent and to have an attorney present during questioning. Relying on State, Dep't of Public Safety v. Held, 246 N.W.2d 863 (Minn. 1976), Eben urges this court to adopt a per se rule against use of any statements made during such a telephone conversation which is overheard by the police. However, Held was concerned with implementing a Minnesota statute providing that a detainee should be allowed "a private interview at the place of custody" to consult with his or her attorney. To implement this provision, the Minnesota Supreme Court adopted a per se rule that accounts of a detainee's phone conversation with his or her attorney, as overheard by officers at the place of custody, would not be admitted as evidence at trial. See also State, Dep't of Public Safety v. Kneisl, 251 N.W.2d 645 (Minn. 1977). In contrast, the Alaska statute on which Eben relies is not concerned with implementing an arrestee's right to consult privately with his or her attorney, but with the right to contact an attorney, relative or friend for the purpose of arranging for bail or legal representation. It is not contemplated that during such a phone call an arrestee should or will make incriminating statements concerning the offense for which he or she was arrested. The attorney consultation context in Held implicates the sixth amendment right to counsel, since it is necessary to the full implementation of that right that a defendant be allowed the privacy necessary to full and free consultation with his or her attorney. No such interest is implicated on the facts presented here. In light of the potential security problems involved and variations in physical settings, we decline to adopt the per se rule urged by appellant. Nevertheless, we caution that to the extent deemed appropriate in light of the circumstances, law enforcement officials should administer AS 12.25.150(b) in a manner which will permit a prisoner to communicate in privacy with his attorney, relative, or friend. [28] Alaska's requirements as to authentification are codified in Rule 901 of the Alaska Rules of Evidence, which became effective August 1, 1979. That rule provides: (a) General provision. The requirement of authentification or identification as condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims, except as provided in paragraphs (1) and (2) below: (1) Whenever the prosecution in a criminal trial offers (A) real evidence which is of such a nature as not to be readily identifiable, or as to be susceptible to adulteration, contamination, modification, tampering, or other changes in form attributable to accident, carelessness, error or fraud, or (B) testimony describing real evidence of the type set forth in (A) if the information on which the description is based was acquired while the evidence was in the custody or control of the prosecution, the prosecution must first demonstrate as a matter of reasonable certainty that the evidence is at the time of trial or was at the time it was observed properly identified and free of the possible taints identified by this paragraph. (2) In any case in which real evidence of the kind described in subparagraph (1) of this subdivision is offered, the court may require additional proof before deciding whether to admit or exclude evidence under Rule 403. In this case, Charlotte Eben provided uncertain testimony as to whether the knives offered in evidence were the same as those removed from the Eben apartment. The trial judge required the state to offer Wayne Eben's testimony concerning the removal of the knives from the apartment in order to provide the reasonable certainty necessary to authenticate this real evidence. [29] The rule merely codifies existing Alaska law. See, e.g., Eubanks v. State, 516 P.2d 726, 729 (Alaska 1973); Lewis v. State, 469 P.2d 689, 696 (Alaska 1970); Love v. State, 457 P.2d 622 (Alaska 1969). [30] The superior court's ruling is consistent with the elaboration provided in the commentary to Rule 403. If the balance between probative value and prejudicial effect (signifying all of the factors discussed in this Rule) is close, the Judge should probably decide to admit the evidence. In other words, there is a slight presumption in favor of admitting relevant evidence. In order to overcome this minimal presumption, the prejudicial effect must be demonstrably greater than the probative value of the evidence. [31] No other special problems of prejudice appear in the record. The evidence was not presented in a misleading manner and the deficiency in the information as to the exact location of the knives was apparent in the testimony of Charlotte and Wayne Eben. As with any evidence, it was the jury's duty to assess the strength of the state's "choice of knives" theory. [32] The ruling on this motion was made by Superior Court Judge Ralph Moody.

540 U.S. 819 ARENAS-MORALESv.UNITED STATES. No. 02-1751. Supreme Court of United States. October 6, 2003. 1 Appeal from the C. A. 9th Cir. 2 Certiorari denied. Reported below: 310 F. 3d 1217.

181 Ga. App. 425 (1986) 352 S.E.2d 577 DEDOUSIS v. FIRST NATIONAL BANK OF COBB COUNTY. 73158. Court of Appeals of Georgia. Decided December 2, 1986. Rehearing Denied December 19, 1986. Ronald A. Lowry, for appellant. Hansell L. Smith, Brince H. Manning III, for appellee. CARLEY, Judge. The instant suit was brought against appellant-defendant Mr. Louis Dedousis as the guarantor of a note made by Southern Garden Company (SGC) in favor of the appellee-plaintiff First National Bank of Cobb County. The evidence presented at a bench trial showed the following: Appellant was president, major stockholder and the key principal of SGC, a corporation which at the time of trial was no longer viable, had no assets and had not been operating as a business for three years. In April of 1978, SGC obtained a loan from appellee evidenced by a note due 364 days after date. On March 31, 1979, the loan was negotiated and a 45-day renewal note was executed by SGC in favor of appellee. In mid-1979, appellant suffered a series of heart attacks, causing him to be totally disabled for an extended period. During this period, the March 31 note matured and Mr. Boyd Page, the attorney for SGC was authorized to negotiate a repayment plan. On July 10, 1979, Mr. Page presented a three-page letter to appellee setting forth a proposed 30-month payment schedule and stating that "an appropriate power of attorney" would be obtained to execute documents on behalf of appellant. Appellee accepted the proposal on July 11 and, the next day, a general power of attorney was signed by appellant, appointing Mr. Yehuda Smolar to manage his affairs. The following day, Mr. Smolar signed appellant's name to both the corporate note and a personal guaranty. Upon SGC's default, appellee sought to enforce appellant's personal guaranty. On this evidence, the trial court found against appellant and in favor of appellee. Appellant appeals from the judgment entered in favor of appellee. 1. The denial of appellant's motion for summary judgment is moot and will not be considered. Gosnell v. Waldrip, 158 Ga. App. 685, 686 (1) (282 SE2d 168) (1981); Hardaway Constructors v. Browning, 176 Ga. App. 530 (2) (336 SE2d 579) (1985). 2. The general grounds are the subject of numerous enumerations. These enumerations challenge the authority of Mr. Smolar, acting *426 under the power of attorney, to execute the personal guaranty in the name of appellant. The record clearly shows that Mr. Smolar was invested by appellant with broad, general powers "to act in, manage and conduct all my affairs, and for that purpose for me and in my name, place, and stead, and for my use and benefit, and as my act and deed, to do and execute, or to concur with persons jointly interested with myself therein in the doing or executing of, all of any of the following acts, deeds, and things . . . [t]o bargain and agree to buy, sell, mortgage, hypothecate, and in any way and every way and manner deal in and with goods, wares, and merchandise, chooses in action, and other property in possession or in action, and to make, do, and transact all and every kind of business of whatsoever nature and kind; And also for me and in my name, and as my act and deed, to sign, seal, execute, deliver, and acknowledge such deeds, leases, mortgages, hypothecations, bills of lading, bills, bonds, notes, receipts, evidence of debt, releases and satisfaction of mortgage, judgments and other debts, and such other instruments in writing of whatsoever kind and nature as may be necessary or proper in the premises; GIVING AND GRANTING unto my said attorney full power and authority to do and perform all and every act, deed, matter, and thing whatsoever in and about my estate, property, and affairs set forth above as fully and effectually to all intents and purposes as I might or could do in my own proper person if personally present, the above especially enumerated powers being in aid and exemplification of the full, complete, and general power herein granted and not in limitation or definition thereof; and hereby ratifying all that my said attorney shall lawfully do or cause to be done by virtue of these presents." (Emphasis supplied.) "A power of attorney, like any other contract, must be construed by ascertaining the intention of the parties, and, although the general terms are strictly construed so as to be restricted to consistency with the controlling purpose, they include those things which are usual and necessary to carry out that purpose. [Cit.]" Flake v. Fulton Nat. Bank, 146 Ga. App. 40, 42 (245 SE2d 330) (1978). Although appellant urges that the power of attorney was not intended to authorize Mr. Smolar to sign the personal guaranty, appellant knew that the power of attorney was needed in connection with the renegotiated loan that his corporation, SGC, had obtained from appellee. The personal guaranty, signed in connection with that loan, would clearly appear to be such an "evidence of debt" as was within the authority of Mr. Smolar to execute and deliver. See generally Goldstein v. Ipswich Hosiery Co., 104 Ga. App. 500, 514 (16) (122 SE2d 339) (1961). "While an authorization to a person to manage a business . . . would not generally include authority to make unusual or extraordinary contracts *427 with reference thereto . . ., it would empower him to make such contracts as are incidental to such operation, which are usually made in it, or are reasonably necessary in conducting it. . . For `if a person imposes upon another the duties and responsibilities involving the management and control of a business, such person will be presumed to have authority to represent his employer in any matter within the scope of the business.' [Cit.]" Martin v. McLain, 51 Ga. App. 336, 338-339 (180 SE 510) (1935). "Where the instructions to an agent are general and he is expected to merely obtain a result, he is only required to act according to his best judgment to that end, within the rule of ordinary care." Benton v. Roberts, 35 Ga. App. 749, 750 (7) (134 SE 846) (1926). Mr. Smolar acted within the broad and general powers vested in him by the power of attorney and the evidence is sufficient to support the judgment of the trial court. 3. Appellant enumerates as error the admission into evidence of prior promissory notes evidencing SGC's indebtednesses to appellee, contending that they were not the subject matter of the instant litigation. The record shows, however, that these documents were admitted into evidence without objection from appellant. Accordingly, this enumeration presents nothing for review. 4. The trial court did not err in allowing a witness to testify that appellant had signed personal guaranties of SGC's prior indebtednesses to appellee. The failure to produce the original of such personal guaranties was explained and oral testimony was shown to be the "best" secondary evidence of their existence. See generally OCGA § 24-5-5. Moreover, appellant did not contest the existence of such signed guaranties; he merely did not recall whether he had signed such documents in the past. See generally OCGA § 24-5-25. Contrary to appellant's assertions on appeal, his prior conduct in executing the personal guaranties of the indebtedness of SGC to appellee was relevant to the issue of whether Mr. Smolar was authorized to execute the personal guaranty in appellant's name on this occasion. See generally Planters' & Miners' Bank v. Neel, 74 Ga. 576 (4) (1885). 5. Appellant contends that there was no evidentiary support for the trial court's finding that he had subsequently ratified Mr. Smolar's act of executing the personal guaranty. However, subsequent ratification by appellant would be relevant to his liability only if Mr. Smolar had lacked initial authority. See generally OCGA § 10-6-52. Since we have held in Division 1 of this opinion that Mr. Smolar had authority to execute the personal guaranty, any question concerning appellant's subsequent ratification of that act is therefore immaterial and need not be considered on appeal. A judgment right for any reason will be affirmed. Broyles v. Kirkwood Court Apts., 97 Ga. App. 384 (103 SE2d 97) (1958). 6. Appellant enumerates error in the trial court's award of attorney *428 fees. Appellant first urges that there was insufficient compliance with OCGA § 13-1-11 (a) (3). However, the letter sent to appellant by appellee in ostensible compliance with OCGA § 13-1-11 was admitted into evidence without objection. "It was incumbent on appellant to challenge any deficiencies in the letter on the trial level. Appellant's failure to do so precludes consideration of this issue. [Cit.]" Childs v. Liberty Loan Corp., 144 Ga. App. 715, 716 (3) (242 SE2d 354) (1978). Appellant further asserts that the amount of attorney fees awarded was erroneous. The contention in this regard is that the note contained conflicting attorney fees provisions and that the trial court erroneously enforced that which allowed a greater amount of attorney fees. The note provided for financing at 10-1/2 percent interest per annum, "together with the Base Charge and with all costs of collection including 15% as attorneys fees if collected by law or through an attorney at law. . . ." (Emphasis supplied.) It also provided for "enforcement of rights under any of the Collateral, including reasonable attorney's fees and legal expenses." (Emphasis supplied.) These two provisions are not in conflict. They are two entirely separate provisions and the instant suit was not brought to enforce rights of collateral, but to collect the debt due on the note. Thus, the award of attorney fees equal to 15 percent of the amount owed was not erroneous. 7. Appellant enumerates as error the trial court's "allowing" appellee to reopen the evidence and submit documents after the evidence had been closed. The record does not support appellant's assertion that the trial court "allowed" appellee to reopen the evidence. Although the record does show that appellee sent documents to the trial court after the close of the evidence, there is nothing to indicate that the trial court considered those documents. "`Where a case is tried before a judge without a jury, it is presumed that judgment was rendered only upon the competent and legal evidence before him; consequently, if illegal evidence was admitted, it does not require a new trial.' [Cits.]" Citizens & Southern Bank v. Morris State Bldg. Corp., 243 Ga. 169, 170 (2) (253 SE2d 89) (1979). Accordingly, even assuming that the trial court "admitted" the additional documentary evidence, no grounds for reversal would be presented. Judgment affirmed. McMurray, P. J., and Pope, J., concur.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) NORA AND HER MINOR ) SON, JOSE (by and through ) his mother) c/o American ) Civil Liberties Union, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 20-0993 (ABJ) ) CHAD F. WOLF, Acting ) Secretary of the Department ) of Homeland Security ) in his official capacity, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION Plaintiffs are twenty-six asylum seekers – twelve adults and their fourteen minor children – who are awaiting the completion of asylum proceedings in the Mexican state of Tamaulipas. Compl. [Dkt. # 3] ¶ 1. They all fled violence and persecution in their home countries and sought refuge in the United States. Compl. ¶ 1. Once they reached the border, the Department of Homeland Security returned plaintiffs to Mexico pursuant to the Migrant Protection Protocols, which require that asylum seekers be returned to the territory from which they came from pending adjudication of their requests. Compl. ¶¶ 3–4. The complaint alleges that the decision to expand the implementation of this policy to include the entry points bordering Tamaulipas was unreasonable and unlawful; plaintiffs allege that they have endured – and continue to endure – extreme physical violence there. Compl. ¶ 2. They aver that have been assaulted, kidnapped, raped, extorted, and threatened by members of organized groups that control the area. Pls.’ 1 Declarations, Ex. 1 to Compl. [Dkt. # 3-2] (SEALED) (“Pls.’ Decls.”). Plaintiffs contend that the federal government is well-aware of the violence that migrants face in Tamaulipas, Compl. ¶ 5; they point out that the region has been assigned the U.S. State Department’s highest level “Do Not Travel” advisory “due to crime and kidnapping.” Compl. ¶¶ 39–40. On April 16, 2020, plaintiffs filed this lawsuit, claiming that the Department of Homeland Security and its Acting Secretary, Chad F. Wolf, violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), in expanding the Migrant Protection Protocols to include Tamaulipas; that the policy and the government’s decision to return these plaintiffs violates their substantive due process rights; and that the return decisions were not adjudicated appropriately. Compl. ¶¶ 105–21. On May 2, 2020, plaintiffs filed a motion for a preliminary injunction, requesting that they be returned to the United States during the pendency of this litigation. Pls.’ Mot. for Prelim. Inj. [Dkt. # 18] (“Pls.’ Mot.”); Pls.’ Redacted Mem. of P. & A. in Supp. of Mot. for Prelim. Inj. [Dkt. # 18-2] (“Pls.’ Mem.”) at 1, 4. Defendants opposed the motion on May 8, 2020. Defs.’ Mem. of P. & A. in Opp. to Pls.’ Mot. [Dkt. # 23-2] (SEALED); Defs.’ Redacted Mem. of P. & A. in Opp. to Pls.’ Mot. [Dkt. # 34] (“Defs.’ Mem.”). In opposition to the motion, defendants argued, among other things, that plaintiffs could not demonstrate a likelihood of success on the merits since the Court lacked jurisdiction to hear their claims. Defs.’ Mem. at 22–30, 35–37. For the reasons set forth in more detail below, the motion for preliminary injunctive relief will be granted in part and denied in part. Defendants have pointed to a statutory provision that precludes judicial review of individual, discretionary deportation decisions, Defs.’ Mem. at 29– 30; see 8 U.S.C. § 1252(a)(2)(B)(ii), and the portions of the complaint that seek such relief must be dismissed pursuant to Federal Rule of Civil Procedure 12(h)(3). But there are some claims in the complaint that will go forward. Claim One alleges that the defendants’ broadly applicable 2 decision to expand the Migrant Protection Protocols to Tamaulipas was arbitrary and capricious, Compl. ¶¶ 105–08, and the Court has jurisdiction to hear it under the APA notwithstanding section 1252 of the Illegal Immigration Reform and Immigrant Responsibility Act. The Court has jurisdiction to consider Claim Two to the extent it challenges the constitutionality of the expansion of MPP to Tamaulipas, as opposed to the MPP generally. See Compl. ¶¶ 109–14. Claim Three directly challenges the merits of the decisions to return each of the plaintiffs to Mexico notwithstanding their expressions of fear in nonrefoulement interviews, Compl. ¶¶ 115–21, and it falls under the statutory prohibition except to the extent that it alleges that some plaintiffs received no nonrefoulement interview at all. Assuming that plaintiffs have demonstrated that they risk irreparable harm if they remain in Tamaulipas, the Court must consider whether they have carried their burden to show that they are likely to succeed on the merits of the claims over which it has jurisdiction. Based on the complaint and the evidence adduced so far, the Court cannot determine whether plaintiffs are likely to succeed on the merits of Claim One since it has not been provided with records that memorialize the agency’s decision or any administrative record underlying the alleged decision. Therefore, the Court will consolidate consideration of the motion for preliminary injunction with expedited consideration of Claim One on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). The Court finds that plaintiffs have not shown that they are likely to succeed on the merits of Claim Two given the lack of authority to support the extension of the state-created danger doctrine to the immigration context. But the Court will order that any plaintiffs who were returned to Mexico without nonrefoulement interviews as alleged in the surviving portion of Claim Three must receive an interview by July 2, 2020. 3  BACKGROUND I. The Migrant Protection Protocols On December 20, 2018, the Department of Homeland Security (“DHS”) introduced the Migrant Protection Protocols (“MPP”), which require that certain noncitizens who enter the United States directly from, or by travelling through Mexico, “illegally or without proper documentation,” must be “returned to Mexico for the duration of their immigration proceedings.” Compl. ¶ 29; Dec. 20, 2018 Migrant Protection Protocols Announcement, Ex. 1 to Declaration of Darlene Barballianiz Boggs [Dkt. # 18-14] (“MPP Announcement”). The protocols were issued pursuant to a provision in the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1225(b)(2)(C) (hereinafter, “contiguous territory provision”), which states: In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title. See Jan. 25, 2019 Policy Guidance for Implementation of the Migrant Protection Protocols, Ex. 3 to Defs.’ Mem. [Dkt. # 34-3] (“Jan. 25 MPP Policy Guidance”). The announcement that accompanied the adoption of the protocols asserts that they were issued because the United States “has an overwhelming asylum backlog of more than 786,000 pending cases,” and “[m]ost of these claims are not meritorious.” MPP Announcement at 2. Therefore, DHS proclaimed, to prevent “aliens . . . [from] exploit[ing] asylum loopholes” and from “disappear[ing] into the United States,” asylum seekers must await the processing of their applications in Mexico, and if they are granted asylum, they will then be allowed to enter the country. Id. 4  The same day the United States announced the MPP, the government of Mexico also issued a statement declaring that it would allow “temporary entrance of certain foreign individuals coming from the United States who entered that country at a port of entry” and “ensure that foreigners who have received their notice to appear have all the rights and freedoms recognized in the Constitution, the international treaties to which Mexico is a party, and its Migration Law.” Jan. 25 MPP Policy Guidance at 1–2. Individuals subject to the MPP undergo removal proceedings under 8 U.S.C. § 1229(a), and they are ordered to appear at immigration hearings at a U.S. port of entry on a future date. Compl. ¶ 30. Then, they are physically returned to Mexico, and on the date of their hearing, they must report to their designated port of entry to be processed by Customs and Border Patrol (“CBP”) and transported to the hearing site. Id. ¶¶ 30–31. After the hearing, they are transported back to the port of entry and returned to Mexico. This process continues for as many hearings as are necessary to conclude the individual’s immigration proceedings. See Jan. 28, 2019 MPP Guiding Principles, Ex. 2 to Defs.’ Mem. [Dkt. # 34-2] (“Jan. 28 MPP Guiding Principles”) at 2. Consistent with the principle of nonrefoulement, which precludes a State from expelling or returning a refugee “to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social 5 group or political opinion,” 1 United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150, the MPP are not supposed to apply to any individual who is “more likely than not to face persecution or torture in Mexico.” Jan. 28 MPP Guiding Principles at 2. Thus, “where an alien affirmatively states a concern that he or she may face a risk of persecution on account of a protected ground or torture upon return to Mexico,” U.S. Citizenship and Immigration Services (“USCIS”) “will conduct an assessment” to determine whether application of the MPP is appropriate. Jan. 28, 2019 MPP Guidance for Implementing Section 235(b)(2)(C) of the INA, Ex. 2 to Declaration of Darlene Barballianiz Boggs [Dkt. # 18-15] (“Jan. 28 Policy Memo.”) at 3. That assessment is referred to by plaintiffs as a “nonrefoulement interview.” See, e.g., Compl. ¶ 9. These interviews are meant to be conducted in a “non-adversarial manner, separate and apart from the general public.” Jan. 28 Policy Memo at 3. “The purpose of the interview is to elicit all relevant and useful information bearing on whether the alien would more likely than not face persecution on account of a protected ground, or torture, if the alien is returned to Mexico pending the conclusion of the alien’s [asylum] proceedings.” Id. The officer conducting the 1 While the United States is not a party to the 1951 Convention Relating to the Status of Refugees, it is a party to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267, which incorporates the 1951 convention’s prohibition on refoulement. In addition, the United States is a signatory of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, 1465 U.N.T.S. 85 (“CAT”), which states: “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Id. at art. 3, ¶ 1. CAT was implemented in U.S. law by the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), Pub. L. No. 105-277, Div. G, Title XXII, § 2242(a) (codified at 8 U.S.C. § 1231 note) (“It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”). 6 interview takes into account “[t]he credibility of any statements made by the alien,” whether “residing in another region of Mexico to which the alien would have reasonable access could mitigate against the alleged harm,” “[c]ommitments from the Government of Mexico regarding the treatment and protection of aliens,” and “[w]hether the alien has engaged in criminal, persecutory, or terrorist activity.” Id. at 4. On January 28, 2019, the government began implementing section 235(b)(2)(C) of the INA through the MPP at the San Ysidro port of entry, located in San Diego, California, with the understanding that implementation would be expanded in the near future. Compl. ¶ 34; Jan. 28, 2019 Memorandum from Kevin K. McAleenan, Commissioner of CBP to Todd C. Owen, Executive Assistant Commissioner of CBP, Implementation of the MPP, Ex. 3 to Declaration of Darlene Barballianiz Boggs [Dkt. # 18-16] (“Jan. 28 MPP Implementation Memo”) (“MPP expansion beyond . . . San Ysidro is coordinated closely with my office.”); see also Jan. 28 MPP Guiding Principles. 2 The complaint alleges that in March 2019, DHS “expanded MPP” to the Calexico, California and El Paso, Texas ports of entry. Compl. ¶ 35. On June 7, 2019, the United States issued a U.S.-Mexico Joint Declaration, stating that “[t]he United States will immediately expand the implementation of the existing Migrant 2 On April 8, 2019, the Northern District of California issued a nationwide preliminary injunction enjoining the continued implementation of the MPP. See Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110, 1130–31 (N.D. Cal. 2019). The court found that plaintiffs were likely to succeed on their claim that the MPP, as applied to a particular class of plaintiffs, were in violation of the APA and the INA. Id. at 1121–28. The Ninth Circuit affirmed the injunction, Innovation Law Lab v. Wolf, 951 F.3d 1073, 1095 (9th Cir. 2020), petition for cert. filed, 88 U.S.L.W. 3339 (U.S. Apr. 10, 2020), but it has since been stayed by the Supreme Court pending petition for certiorari. Wolf v. Innovation Law Lab, No. 19A960, 2020 WL 1161432, at *1 (U.S. Mar. 11, 2020). 7 Protection Protocols across its entire Southern Border.” June 7, 2019 U.S.-Mexico Joint Declaration Media Note, Ex. 1 to Defs.’ Mem. [Dkt. # 34-1] at 2. Plaintiffs allege that in July of 2019, DHS expanded the MPP to the Mexican border state of Tamaulipas. Compl. ¶¶ 5, 36. Individuals entering the United States through the ports of entry in Laredo, McAllen, or Brownsville, Texas are returned through these ports to Tamaulipas. Id. ¶ 36. II. Factual Background Plaintiffs are migrants from Central and South American countries with pending asylum applications who were returned to Tamaulipas under the MPP. While awaiting the outcome of their asylum proceedings in Tamaulipas, plaintiffs have been kidnapped, raped, assaulted, threatened, sexually assaulted, extorted, imprisoned, robbed, and attacked. Compl. ¶¶ 15–25; see generally Pls.’ Decls. Plaintiffs have been unable to seek protection from the Mexican police, Compl. ¶ 73, and they allege that they live in constant fear of additional similar attacks. Compl. ¶ 2. Several plaintiffs expressed fears of returning to Mexico when they were first processed at the border. Compl. ¶ 88. CBP did not refer them to USCIS for nonrefoulement interviews, as it was required to do, and it returned them to Tamaulipas instead. Compl. ¶ 88. Eventually, all of the plaintiffs except for one received interviews when they returned to the port of entry for a hearing. Compl. ¶¶ 78–79. Not one plaintiff who was interviewed was found to have satisfied the “more likely than not” standard; in each case, a finding was made that the individual had not made a sufficient showing. Compl. ¶ 91. Plaintiffs allege that the hearings were not conducted in 8 accordance with the applicable procedures, and that the migrants were prevented from fully sharing their experiences or submitting evidence. Compl. ¶¶ 94–104. In their complaint, plaintiffs highlight the government’s own statements about the dangers of Tamaulipas. Since at least 2018, the U.S. Department of State has assigned the Mexican state a “Level 4: Do Not Travel” advisory. Compl. ¶ 39. This is the Department’s highest level of warning, typically assigned to active-combat zones such as Afghanistan, Iraq, and Syria. Id. Until coronavirus-related travel advisories were issued, plaintiffs assert that Tamaulipas was the only Mexican border state with a Level 4 advisory. Compl. ¶ 41. It warns: Do not travel due to crime and kidnapping. Violent crime, such as murder, armed robbery, carjacking, kidnapping, extortion, and sexual assault, is common. Armed criminal groups target public and private passenger buses as well as private automobiles traveling through Tamaulipas, often taking passengers hostage and demanding ransom payments. Federal and state security forces have limited capability to respond to violence in many parts of the state. U.S. Dep’t of State, Mexico Travel Advisory, available at https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel- advisory.html (Apr. 9, 2019) (“April 2019 Mexico Travel Advisory”). Indeed, the State Department advises that anyone traveling to such a high-risk area should create a will, designate a family member to negotiate with kidnappers, and establish secret questions and answers to verify that the traveler is still alive when kidnappers reach out to family. U.S. Dep’t of State, High-Risk Area Travelers, available at https://travel.state.gov/content/travel/en/international-travel/before- you-go/travelers-with-special-considerations/high-risk-travelers.html (last updated Nov. 6, 2019). The Mexican government has similarly recognized the dangers associated with this region. For example, according to the complaint, the Mexican ambassador to the United States 9 acknowledged that her government had not been prepared for the expansion of MPP to Tamaulipas, given challenges associated with security. Compl. ¶ 46, citing CQ Newsmaker Transcripts, CQ Roll Call and the Meridian International Center Holds Discussion on Trade, Immigration and Foreign Affairs, (Jul. 18, 2019), Ex. 21 to Pls.’ Mot. [Dkt. # 18-34], quoting Ambassador Martha Bárcena Coqui (“[W]e recognize there are certain areas of Mexico in which the challenges of security are higher. So, that is why we have been very careful of not opening up, for example, the return in Tamaulipas . . . .”); see also Kevin Sieff, When They Filed Their Asylum Claim, They Were Told To Wait in Mexico. There, They Say, They Were Kidnapped, Wash. Post., (June 9, 2017), Ex. 26 to Declaration of Darlene Barballianiz Boggs [Dkt. # 18-39] (reporting a statement from a Mexican legislator stating that the lives of migrants were in danger and that the State does not have the capacity to protect them). Plaintiffs contend that asylum seekers who are sent to Tamaulipas to wait out their immigration proceedings have no choice but to be exposed to the violence in the region. Individuals who are processed under the MPP are dropped off at bridges connecting ports in Texas to cities in Tamaulipas. Compl. ¶ 53. Individuals with proceedings underway must report to these bridges, where they are then picked up by DHS agents for their hearings. See Compl. ¶ 54. These locations are well-known, and plaintiffs assert that many asylum applicants are kidnapped within moments of their return to Mexico. Compl. ¶ 53. In addition, migrants can be ordered to present themselves at the pick-up locations very early in the morning, sometimes as early as 4:30 AM. Compl. ¶ 54. Plaintiffs allege that reporting “essentially in the middle of the night” is especially dangerous, Compl. ¶ 54: the State Department imposes a curfew on U.S. government employees in these areas between midnight and 6:00 am because of the risks. April 2019 Mexico Travel Advisory. And, “[b]ecause immigration proceedings require multiple hearings over a period of 10 many months, individuals are repeatedly subjected to the danger of being dropped off at the bridges.” Compl. ¶ 56. Plaintiffs further allege that the dangerous nature of the region hinders individual asylum applications: lawyers are afraid to travel to Tamaulipas to meet with asylum seekers, and many applicants receive removal orders in absentia because they are too afraid to attend their hearings. Compl. ¶ 57. III. Procedural Background On April 16, 2020, twenty-six plaintiffs proceeding under pseudonyms filed a complaint against the DHS and Chad F. Wolf, Acting Secretary of DHS, that included three claims: 1) Defendants’ decision to expand the MPP to Tamaulipas was arbitrary and capricious in violation of the APA, 5 U.S.C. § 706(2), because DHS knew that migrants would face extreme levels of violence there. Compl. ¶¶ 105–08. Plaintiffs also allege that defendants failed to engage in reasoned decision-making because they have not supplied any explanation for their action. Compl.¶ 108. 2) Defendants violated the Due Process Clause of the Fifth Amendment to the U.S. Constitution by knowingly placing plaintiffs in danger so serious and egregious that it shocks the conscience. Compl. ¶¶ 109–14. 3) Defendants violated the APA, 5 U.S.C. § 706(2) and the Accardi doctrine because they failed to follow their own regulations when conducting the nonrefoulement interviews for individuals returned to Tamaulipas under the expanded MPP. Compl. ¶¶ 115–21. Plaintiffs also alleged that one of them did not receive an interview at all. Compl. ¶¶ 117–18. On May 2, 2020, plaintiffs filed a motion for a preliminary injunction, requesting an order that they be permitted to return to the United States for the pendency of the litigation, or at least an order that they be promptly provided with nonrefoulement interviews to be adjudicated under the proper standard. Pls.’ Mem. at 45 n.24. The government opposed the motion on May 8, 2020. Defs.’ Mem. 11  STANDARD OF REVIEW A preliminary injunction “is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011), quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). The decision to issue a preliminary injunction turns on four factors: whether (1) plaintiffs are likely to succeed on the merits of the action; (2) plaintiffs will suffer irreparable harm absent an injunction; (3) the balance of the equities tips in the plaintiffs’ favor; and (4) an injunction is in the public interest. See Winter, 555 U.S. at 20; Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 10 (D.C. Cir. 2019). The last two factors merge when the government is the opposing party. Guedes, 920 F.3d at 10. Preliminary injunctive relief “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). The manner in which courts should weigh the four factors “remains an open question” in this Circuit. Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014). The Court of Appeals has long adhered to the “sliding scale” approach, where “a strong showing on one factor could make up for a weaker showing on another.” Sherley, 644 F.3d at 392. But its more recent decisions call that into question. The Supreme Court has not addressed the precise question of whether a particularly strong showing of harm would suffice in the face of a weaker showing on the merits. But because the Supreme Court’s decision in Winter “seemed to treat the four factors as independent requirements,” the Court of Appeals has “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.’” Id. at 392–93, quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) 12 (Kavanaugh, J., concurring). And although the Court of Appeals has not specifically clarified whether the “‘sliding scale’ approach remains valid after Winter,” League of Women Voters v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016), it has ruled that a failure to show a likelihood of success on the merits is sufficient to defeat a motion for a preliminary injunction. See Ark. Dairy Co-op. Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009); Apotex, Inc. v. FDA, 449 F.3d 1249, 1253–54 (D.C. Cir. 2006). Regardless of whether the sliding scale framework applies, it remains the law in this Circuit that a movant must demonstrate irreparable harm, which has “always” been “the basis of injunctive relief in the federal courts.” Sampson v. Murray, 415 U.S. 61, 88 (1974), quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506 (1959) (internal edits omitted). A failure to show irreparable harm is grounds for the Court to refuse to issue a preliminary injunction, “even if the other three factors entering the calculus merit such relief.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). ANALYSIS I. Jurisdiction Defendants argue that section 1252(a)(2)(B)(ii) of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) prohibits the Court from reviewing plaintiffs’ claims. Defs.’ Mem. at 22. The provision states: (B) Denials of discretionary relief - Notwithstanding any other provision of law (statutory or nonstatutory), . . . no court shall have jurisdiction to review— (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. 13 8 U.S.C. § 1252(a)(2)(B)(ii). Defendants argue that the ban on judicial review applies in this case because the statute specifically accords the Secretary the discretion to return an alien to the territory from which he or she arrived pending a section 1229a proceeding. Defs.’ Mem. at 22–23. 8 U.S.C. § 1225(b)(2)(C) states: In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title. 8 U.S.C. § 1225(b)(2)(C). In other words, since a return decision is left to the discretion of the Secretary, a court cannot review it. Defs.’ Mem. at 22–23; see Zhu v. Gonzales, 411 F.3d 292, 294–96 (D.C. Cir. 2005) (finding that a statute using the word “may” conferred discretion to the attorney general, and thus the decisions made under that statute were unreviewable pursuant to section 1252(a)(2)(B)(ii)). Claim One alleges that defendants’ decision to expand the MPP to Tamaulipas was arbitrary and capricious given the known dangers in the region. Compl. ¶ 106. Defendants maintain that the claim is precluded because, in essence, it challenges the agency’s exercise of its discretion to return the individual plaintiffs. Defs.’ Mem. at 22–27. But Claim One does not take on the individual decisions made to return each plaintiff to Mexico; it is directed at an agency decision – the decision to “expand” MPP implementation to Tamaulipas – that applies to migrants arriving from Mexico at three Texas points of entry. See Safari Club Int’l v. Jewell, 842 F.3d 1280, 1287 (D.C. Cir. 2016) (differentiating between a discrete agency action and the broader ongoing policy underlying that action). Defendants do not point to any specific provision in the INA specifying that a decision to expand protocols implementing 14 section 1225(b)(2)(C) is discretionary. Thus, the claim does not fall within section 1252(a)(2)(B)(ii), and the Court may consider Claim One. 3 Claim Two alleges that defendants engaged in affirmative conduct they knew or should have known would expose asylum seekers to the risk of grave danger. Compl. ¶ 110. This general allegation is followed by a more particularized one: that defendants have forced each of the plaintiffs to remain in Tamaulipas “despite [d]efendants’ knowledge of the severe harms that plaintiffs have experienced and the continuing serious and obvious risk . . . .” Compl. ¶ 111. Paragraph 114 of the complaint concludes, “[d]efendants have violated [p]laintiffs’ due process rights both by adopting and applying MPP-Tamaulipas, and additionally by subjecting and continuing to subject [p]laintiffs to MPP-Tamaulipas.” Compl. ¶ 114. This claim is something of a hybrid; to the extent it claims, as in paragraph 111, that the defendants were aware that these particular plaintiffs had already suffered harm in the Mexican state but returned them anyway, it asks the Court to review individual discretionary decisions made in the application of the MPP, and the Court lacks jurisdiction to do so. But to the extent Claim Two challenges the allegedly unconscionable nature of the decision to implement the MPP in Tamaulipas at all, that is not a 3 Defendants cite Cruz v. Dep’t of Homeland Sec., No. 19-CV-2727, 2019 WL 8139805, at *6 (D.D.C. Nov. 21, 2019) in support of their argument, but Cruz actually supports jurisdiction for Claim One. That court found that it could not review a specific challenge to the Attorney General’s discretionary choice to remove the plaintiff back to Mexico. But, the court found that section 1252(a)(2)(B) did not preclude review of the plaintiff’s APA claims challenging the procedures employed in promulgating the MPP. Id. at *4. 15 decision committed to the discretion of the Attorney General by statute, and the Court has the power to consider the constitutional question.4 Finally, Claim Three states that defendants failed to properly adjudicate the plaintiffs’ nonrefoulement interviews in violation of the APA. Compl. ¶¶ 115, 117–18. They also allege that one plaintiff did not receive the required interview at all, even though she too expressed a fear of returning to Mexico. Compl. ¶ 117. The allegation that the defendants failed to properly “adjudicate,” that is, to make an official decision about, plaintiffs’ nonrefoulement requests is a clear attack on the merits of the return decisions. Plaintiffs make clear that they are attacking the legitimacy of the individual, 4 Defendants note in their opposition that other circuit courts have held that constitutional claims are unreviewable under this statute. Defs.’ Mem. at 29–30. But the cases they cite are not so broad; those opinions held that the particular constitutional claims before them could not be reviewed because they were specifically aimed at discretionary decisions. See Polfliet v. Cuccinelli, 955 F.3d 377, 384 (4th Cir. 2020) (“8 U.S.C. § 1252(a)(2)(B)(ii) strips courts of jurisdiction to review” “constitutional claims” challenging discretionary “decisions”); Privett v. Sec’y of Dep’t of Homeland Sec., 865 F.3d 375, 381 (6th Cir. 2017) (“The Secretary’s decision not to make an exception for Privett is an element of these constitutional and statutory claims. In fact, it is the very thing challenged as causing the constitutional harm or applying the statute improperly. Accordingly, in order to adjudicate these claims, we would be required to give the Secretary’s decision not to grant his petition a central role in our review. Because such review is proscribed by § 1252(a)(2)(B)(ii), we do not have jurisdiction over the constitutional and retroactivity claims.”); Jilin Pharmacy USA v. Chertoff, 447 F.3d 196, 206 (3d Cir. 2006) (“Because evaluating these constitutional claims requires us to revisit and review the Attorney General’s exercise of discretion . . . we lack the jurisdiction to consider them.”); Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004) (“[T]he decision when to commence deportation proceedings is within the discretion of the Attorney General and does not, therefore, involve a protected property or liberty interest.”). Here, the Court need not review the decision to return any particular plaintiff to assess the lawfulness of the expansion of the MPP to Tamaulipas. Plaintiffs are challenging the policy itself, and courts have held that those claims are reviewable under the INA. See Mantena v. Johnson, 809 F.3d 721, 728 (2d Cir. 2015) (holding that the statue “does not strip jurisdiction over procedural challenges,” but it “strips jurisdiction over a substantive discretionary decision”); Kwai Fun Wong v. United States, 373 F.3d 952, 963 (9th Cir. 2004) (finding that the plaintiff’s constitutional claims did not challenge any discretionary decision, and so the Court could review the claims under section 1252(a)(2)(B)). 16 discretionary determinations in their motion for a preliminary injunction; they complain that “despite [their] credible accounts of being raped, assaulted, and subjected to repeated death threats in Tamaulipas, [d]efendants did not find that any of them had established the requisite fear to remove them from MPP.” Pls.’ Mem. at 32. The declarations submitted to the Court in support of the motion include individual accounts of “past persecution in Tamaulipas on account of a protected ground,” and plaintiffs argue that “they should have been presumed to face a future threat of persecution.” Id. at 32–33. In other words, plaintiffs are contesting the outcome of their nonrefoulement interviews. While the allegation that the interview has become a hollow exercise that offers asylum seekers little protection is deeply troubling, the Court is required by law to conclude that Claim Three questions discretionary decisions that it lacks the jurisdiction to review. Plaintiffs argue, though, that even if the Court construes Claim Three to be challenging the return decisions themselves, section 1252(a)(2)(B)(ii) does not preclude judicial review. They submit that the provision “only restricts review of discretionary denials of relief concerning admission or removal,” Pls.’ Reply in Supp. of Pls.’ Mot. (REDACTED) [Dkt. # 36] (“Pls.’ Reply”) at 5, and that “an individual decision to ‘return’ an individual to Mexico during the course of immigration proceedings is not a decision about whether that person can legally be admitted to the country or should be removed.” Id. at 6. Plaintiffs’ argument is that the operative subparagraph – section 1252(a)(2)(B)(ii) – cannot be understood unless it is read within the context of paragraph (B) in its entirety. The IIRIRA provision in question states: 17  (B) Denials of discretionary relief - Notwithstanding any other provision of law (statutory or nonstatutory), . . . no court shall have jurisdiction to review— (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. 8 U.S.C. § 1252(a)(B). According to the plaintiffs, paragraph (B)(ii) is a “catchall or residual clause that should be interpreted as limited by the enumerated categories . . . which are recited just before it.” 5 Pls.’ Reply at 5. Applying that principle, they reason that because all of the statutes listed in (B)(i) involve substantive decisions regarding whether an individual may stay in the country, the catchall provision should be construed to refer only to similar decisions, and, they say, returning an asylum seeker under the MPP is not one of these types of decisions. Id. at 5–6. Plaintiffs point to the Supreme Court’s opinion in Kucana v. Holder, 558 U.S. 233 (2010), which examined the relationship between the two subsections. In that case, the “discretionary decision” at issue was one made by the Board of Immigration Appeals (“BIA”) to deny a motion to reopen removal proceedings. The discretion to deny such a motion was derived from a federal regulation, not a statute, and the Court found that (B)(ii) did not contemplate discretionary 5 Plaintiffs are invoking the statutory canon of ejusdem generis, which provides that “[w]here general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001) (where the statute stated that “nothing herein shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” the residual clause at the end of that list was informed by the two preceding categories of workers). 18 decisions set forth in federal regulations. It relied, in part, on a consideration of subsection (B)(i); the Court stated that it was instructive in determining the meaning of (B)(ii) that Congress had in mind “decisions of the same genre, i.e., those made discretionary by legislation.” Id. at 246–47. The Court also found “significant the character of the decisions Congress enumerated in section 1252(a)(2)(B)(i)” which were “substantive decisions . . . made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not.” Id. at 247. Because a motion to reopen a case “does not direct the Executive to afford the alien substantive relief” and is merely a “procedural device” that “concerns only the question whether the alien’s claims have been accorded a reasonable hearing,” the Court was not precluded from reviewing the BIA’s decision to deny the motion to reopen by (B)(ii). Id. at 248. Plaintiffs argue that the decision to remove an individual from the United States under the MPP is an “adjunct” decision, similar to a decision denying a motion to reopen proceedings, and it does not afford the alien substantive relief. Pls.’ Reply at 6. But the Court concludes, as others have, that while the return determination under the MPP may be a merely interim decision regarding the status of an alien, the ruling is not simply a “procedural” decision like the one in Kucana. Rather, it is a decision that entails the substantive evaluation of the non-citizen’s fear of return, and it plainly “involve[s] whether aliens can stay in the country or not.” Kucana, 588 U.S. at 247. Moreover, the main focus of the Kucana decision was whether (B)(ii) precluded judicial review when discretion was conferred by regulation as opposed to by statute. Here, discretion is conferred by statute, and therefore, the decision to return an alien to Mexico pending further proceedings falls within the scope of section 1252(a)(2)(B)(ii). See Cruz, 2019 WL 8139805, at *4 (finding individual return decisions unreviewable under section 1252(a)(2)(B)(ii)); see also E.O.H.C. v. Sec’y U.S. Dep’t of Homeland Sec., 950 F.3d 177, 191 (3d Cir. 2020) (finding that 19 section 1252(a)(2)(B)(ii) did not preclude judicial review over plaintiffs’ claims because they did not seek review of the Attorney General’s exercise of discretion, rather, they challenged the extent of the Attorney General’s authority under the statute); Innovation Law Lab, 366 F. Supp. 3d at 1118, aff’d sub nom. Innovation Law Lab v. Wolf, 951 F.3d 1073 (9th Cir. 2020) (recognizing that DHS’s “decisions to return or not return any particular alien . . . might not be subject to review,” but finding that plaintiffs’ claims were justiciable because plaintiffs were challenging the applicability of the contiguous territory provision to them, not the return decisions themselves). Thus, the Court finds that it does not have jurisdiction over Claim Three to the extent that it challenges the adjudication of the nonrefoulement interviews. However, the Court finds that it can review the decision not to grant plaintiff Diana a nonrefoulement interview at all, since that was not a choice the Attorney General was accorded the discretion to make. The MPP Guiding Principles issued by DHS in January of 2019 state: • “If an alien who is potentially amenable to MPP affirmatively states that he or she has a fear of persecution or torture in Mexico, or a fear of return to Mexico, whether before or after they are processed for MPP or other disposition, that alien will be referred to a USCIS asylum officer for screening following the affirmative statement of fear of persecution or torture in, or return to, Mexico, so that the asylum officer can assess whether it is more likely than not that the alien will face persecution or torture if returned to Mexico.” Jan. 28 MPP Guiding Principles at 1–2. • “If USCIS assesses that an alien who affirmatively states a fear of return to Mexico is more likely than not to face persecution or torture in Mexico, the alien may not be processed for MPP. Officers retain all existing discretion to process (or re-process) the alien for any other available disposition, including expedited removal, NTA, waivers, or parole.” Id. at 2. The government is bound to follow its own procedures, and a failure to follow those procedures is not immune from judicial review because it is not a discretionary decision. See Damus v. Nielsen, 313 F. Supp. 3d 317, 327 (D.D.C. 2018) (finding that section 1252(a)(2)(B)(ii) did not apply 20 because the plaintiffs were not challenging the outcome of the agency’s decision making, but the method by which the policy was being applied). Here, plaintiff Diana was subject to the MPP without being afforded the proper procedures. Thus, the Court may review her claim. Because the Court has jurisdiction to review at least some parts of all three claims, the Court will go on to assess the likelihood of success on the merits and the other preliminary injunction factors. II. The Court will consolidate the motion for preliminary injunctive relief with expedited consideration of the merits of Claim One. Plaintiffs allege that the decision to expand implementation of the MPP to Tamaulipas was arbitrary and capricious because they exposed asylum seekers to a known risk of serious harm. Compl. ¶¶ 36, 47, 106; see also Pls.’ Mem. at 21–24 (defendants did not offer any plausible explanation for the choice, and they failed to consider the risk of danger to the migrants). Defendants respond that the “relevant inquiry” to evaluate this claim “is not whether DHS acted arbitrarily or capriciously ‘[i]n expanding MPP to Tamaulipas, but rather . . . whether the individual asylum officers’ determinations in question were rational” in light of the contiguous territory provision, which gives DHS the authority to return aliens “arriving on land . . . from a foreign territory contiguous to the United States . . . to that territory.” Defs.’ Mem. at 27, citing 8 U.S.C. § 1225(b)(2)(C). Defendants emphasize that DHS was implementing a statute that permits the return of aliens who come from a foreign contiguous country to that country. They point out that the plaintiffs came to the United States through Tamaulipas, and they submit that 21 therefore, it could not have been unreasonable to carry out the statutory scheme by sending them back. But plaintiffs are not challenging the government’s decision to return them to Mexico; this lawsuit takes on the agency’s decision to expand its implementation of the statute to the state of Tamaulipas. The defense points to selected interviews in which at least some of the plaintiffs failed to identify another place it would be safer to go, and it maintains that the decision to return them isn’t arbitrary and capricious. Defs.’ Mem. at 27–28. This is simply the jurisdictional argument restated. The Court has already concluded that defendants have mischaracterized the complaint, and that complaint is indeed asking it to assess the reasonableness of a broad policy decision and not the individual asylum officers’ determinations. Since plaintiffs focused their evidentiary presentation on the question of irreparable harm and the deficiencies of the nonrefoulement interviews, and defendants declined to address the alleged expansion directly at all, the Court has little before it that would enable it to determine, based on this record, whether plaintiffs have carried their burden to demonstrate the likelihood that they will succeed on the merits of the APA claim. So, the Court will defer ruling on the motion until it has had the benefit of the necessary materials. The complaint details what was known to – and announced by – some agencies within U.S. government about Tamaulipas, and it gives rise to serious questions about whether it would be reasonable for DHS to require asylum seekers to stay there for an indefinite period of time, even if their route to the United States took them through that territory. But the Court has not yet been provided with records memorializing the actual decision or the reasons behind it; nor has it seen any material comprising an administrative record that could reveal what facts were known to or considered by the decision makers, and what risks 22 were evaluated or ignored. 6 Therefore, the parties will be ordered to meet and confer and propose a schedule for the expedited creation of an administrative record and the briefing of dispositive motions. III. Plaintiffs have not shown that they are likely to succeed on Claim Two. Plaintiffs allege that when defendants expanded the MPP to Tamaulipas, they violated plaintiffs’ Fifth Amendment substantive due process rights. The concept of substantive due process embodies the recognition that the Constitution “forbids the government to infringe certain ‘fundamental’ liberty interests . . . no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 301–02 (1993). “To succeed on a substantive due process claim, a plaintiff must prove ‘egregious government misconduct’ that deprives him of a liberty or property interest.” Bellinger v. Bowser, 288 F. Supp. 3d 71, 85 (D.D.C. 2017), citing George Washington Univ. v. District of Columbia, 318 F.3d 203, 206 (D.C. Cir. 2003), as amended (Feb. 11, 2003) (holding that substantive due process imposes no burden on the government “in the absence of a liberty or property interest”). “[T]he plaintiff must also show that the . . . conduct was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’” Butera v. District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001), quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). The “[s]ubstantive due process analysis must begin with a careful description of the asserted right, for [t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are 6 For example, the Court notes that in the Memorandum referred to in paragraph 34 of the complaint, the Commissioner of CPB stated: “MPP implementation will begin at the San Ysidro port of entry on January 28, 2019, and it is anticipated that it will be expanded in the near future. Please ensure that each stage of MPP expansion beyond OFO implementation at San Ysidro is coordinated closely with my office.” Jan. 28, 2019 MPP Implementation Memo. at 1. This suggests that there may be a record of decision making related to the expansion to Tamaulipas. 23 asked to break new ground in this field.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Defendants argue that plaintiffs have not alleged a deprivation of a liberty or property interest, and they rely on authority that states, “an applicant for initial entry has no constitutionally cognizable liberty interest in being permitted to enter the United States.” Rafeedie v. INS, 880 F.2d 506, 520 (D.C. Cir. 1989); see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215 (1953) (“Aliens seeking entry from contiguous lands obviously can be turned back at the border without more.”). Plaintiffs do not dispute that legal principle. But plaintiffs point out that the second claim expressly alleges that they have been deprived of something else: their liberty interest in bodily security. See Compl. ¶¶ 109–112. According to the plaintiffs, the constitutional right at issue is protection from third-party violence, and that claim can be recognized under the state-created danger doctrine. See Pls.’ Mem. at 25, quoting Butera, 235 F.3d at 654; see also Pls.’ Reply at 15 (“Plaintiffs’ substantive due process claim is that the state cannot, in a conscience- shocking way, increase their risk to deadly harm.”). In Butera, the D.C. Circuit explained that “[a]s a general matter, a State’s failure to protect an individual from private violence, even in the face of a known danger, ‘does not constitute a violation of the Due Process Clause.’” Butera, 235 F.3d at 647, quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). But the Court of Appeals has also recognized that in “certain limited circumstances, the Constitution may impose affirmative duties of care and protection with respect to particular individuals.” DeShaney, 489 U.S. at 198 (where state authorities knew that a child’s father was abusive, but did not take steps to remove the child from his father’s custody, the Court found that the state’s failure to provide the child with adequate protection against his father’s violence did not violate the substantive due process clause). 24  One such circumstance is “where the state creates a dangerous situation or renders citizens more vulnerable to danger.” 7 Butera, 235 F.3d at 648–49, quoting Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993). The state-created danger doctrine applies where “the State knowingly created or increased the risk that an individual would be exposed to danger.” Butera, 235 F.3d at 654. In Butera, the plaintiff brought several claims under 42 U.S.C. § 1983, alleging violations of a number of constitutional rights when her son was killed while serving as an undercover operative for the Metropolitan Police Department (“MPD”). Id. at 640–41. The plaintiff presented evidence that the police officers failed to advise her son of the risks of serving as an undercover operative and failed to put in place measures to ensure his safety. Id. at 643–44. The Court examined whether the District of Columbia and MPD officers could be held liable for failing to protect an individual who was not in custody from harm inflicted by a third party. Id. at 641. The Court held that they could under the state-created danger doctrine, but because this case was the first in the D.C. Circuit to deal with this issue, it held that the right was not clearly established when Eric was murdered, and the officers were entitled to qualified immunity. Id. at 654. Other circuits have also recognized this right in the section 1983 context. See Munger v. City of Glasgow, 227 F.3d 1082, 1084–85 (9th Cir. 2000) (where the police ejected an intoxicated man wearing only a t-shirt and jeans from a bar on a very cold night and forced him to walk home, and he later died of hypothermia, the court found the district court erred when it granted the officers qualified immunity); Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (police officer who stopped a car in which plaintiff was a passenger, arrested and removed the driver, impounded the car, and 7 Another circumstance arises when the State “takes a person into its custody and holds him there against his will,” hence depriving him of liberty. Id. at 199–200. 25 left the plaintiff in a high crime area could be liable for a substantive due process violation when she was raped on her way home). Plaintiffs contend that defendants have created a dangerous situation and increased their vulnerability to danger by: returning them to Tamaulipas; requiring them to appear at known kidnapping sites as early as 4:30 AM; returning them to the dangerous locations at the end of the day; and forcing them to repeat this process again and again for months while their cases are adjudicated. Compl. ¶¶ 53–56; Pls.’ Reply at 13, 16. Plaintiffs have not pointed the Court to any opinion in which this circuit applied the state- created danger doctrine to a non-citizen in immigration proceedings. The doctrine arose in proceedings under 42 U.S.C. § 1983 seeking to hold state actors liable for constitutional violations, and several circuits have expressly rejected the notion that it could be applied in the immigration context. For example, in Enwonwu v. Gonzales, 438 F.3d 22, 29 (1st Cir. 2006), the First Circuit held: [T]here can be no substantive due process objection to the order removing [plaintiff]. The state-created danger theory argument fails because an alien has no constitutional substantive due process right not to be removed from the United States, nor a right not to be removed from the United States to a particular place. The First Circuit relied on separation of powers principles, finding that “entertaining the state- created danger theory as means for relief from a removal order, a court, whether sitting in habeas or in judicial review, steps outside its defined constitutional role and intrudes into a realm reserved to the Executive and the Legislative Branches.” Id. at 30. The Third Circuit came to a similar conclusion, stating that “[w]e are aware of no court of appeals which has recognized the constitutional validity of the state-created danger theory in the context of an immigration case. We decline to do so here, and hold that the state-created danger 26 exception has no place in our immigration jurisprudence.” Kamara v. Attorney Gen. of U.S., 420 F.3d 202, 217 (3d Cir. 2005). The Kamara court reasoned that “[e]xtending the state-created danger exception to final orders of removal would impermissibly tread upon Congress’ virtually exclusive domain over immigration, and would unduly expand the contours of our immigration statutes and regulations.” Id. at 217–18; see Paulino v. Attorney Gen. of U.S., 445 Fed. Appx. 558, 561 (3d Cir. 2011) (reaffirming the holding in Kamara); see also Beibei Zhang v. Holder, 358 Fed. Appx. 216, 218 (2d Cir. 2009) (citing to Kamara in “holding that the state-created danger doctrine does not apply in immigration proceedings.”). The Tenth Circuit adopted the same reasoning, finding that the state-created danger doctrine should not be extended to the context of immigration review because that would effectively “judicially engraft a new form of relief from removal onto the statutory scheme established by Congress.” Vincent-Elias v. Mukasey, 532 F.3d 1086, 1095 (10th Cir. 2008). In the absence of clear direction from the D.C. Circuit on the issue, and in light of the persuasive reasoning of the three other circuits cited above, the Court cannot find that plaintiffs 27 have shown that they are likely to be successful on the merits of their constitutional claim.8 Therefore, the Court will deny plaintiffs’ motion for preliminary injunction as to Claim Two. 9 IV. Plaintiffs have established that plaintiff Diana is likely to succeed on the surviving portion of Claim Three, and that the requested relief should be granted as to her. Guidance issued by DHS provides that an individual who “affirmatively states that he or she has a fear of persecution or torture in Mexico, or a fear of return to Mexico,” will be referred for a nonrefoulement screening. See Jan. 28 MPP Guiding Principles at 1. One plaintiff, Diana, never received a nonrefoulment interview, although she told immigration officials that she feared 8 Even if the state-created danger doctrine applied in this context, plaintiffs face difficulties meeting the legal test for whether the government’s conduct is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Lewis, 523 U.S. at 847 n.8. There are two methods or proving the claim: a plaintiff must show that the defendant acted with “intent to harm” or “deliberate indifference.” Fraternal Order of Police Dep’t of Corr. Labor Comm. v. Williams, 375 F.3d 1141, 1145–46 (D.C. Cir. 2004). The Court cannot find that plaintiffs have shown at this time that a claim under “intent to harm” standard will succeed because the complaint does not allege any facts that would support an inference that the government intended to harm plaintiffs when it expanded the MPP to Tamaulipas. The “deliberate indifference” standard “applies only in circumstances where the State has a heightened obligation toward the individual.” Id. at 1145–46, citing Butera, 235 F.3d at 652. Because the government has required plaintiffs to remain in Tamaulipas or travel to Tamaulipas to attend their asylum hearings and assumed the role of transporting them from the border to their hearings, one could argue that it has undertaken a heightened obligation to ensure plaintiffs’ safety. But the guiding principles implementing the MPP show that the government contemplated that migrants may fear remaining in Mexico, and it adopted procedures requiring a nonrefoulement interview for any person that expresses such a fear. Jan. 28 MPP Guiding Principles at 1–2. If the Asylum Officer determines that these fears are founded, they will not be processed under the MPP. Id. at 2. Such procedures run counter to the necessary finding that the agency has been indifferent to the risks, and it will be difficult for plaintiff to establish that they are likely to succeed on the merits on the record before it. 9 Where plaintiffs have not demonstrated a likelihood of success on the merits, the Court need not analyze the other preliminary relief factors. Arkansas Dairy Co-op Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009). 28 returning to Mexico. Declaration of Diana, Ex. 1 to Compl. [Dkt. # 3-2] (“Diana Decl.”) (SEALED) at 70, ¶ 34. Government agencies must follow their own rules, including agency procedures “[w]here the rights of individuals are affected.” Morton v. Ruiz, 415 U.S. 199, 235 (1974); see United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267–68 (1954); accord Damus, 313 F. Supp. 3d at 337. This obligation extends even to unpublished measures intended to be binding. See Aracely v. Nielsen, 319 F. Supp. 3d 110, 150 (D.D.C. 2018). Defendants argue that Diana has not shown that she is entitled to a nonrefoulement interview because she claims only that she intended to express a fear and ask for help, but does not state that she affirmatively articulated the fear. Defs.’ Mem. at 36–37. But, Diana avers that her family was subjected to an armed assault in Mexico, see Diana Decl. ¶¶ 21–27, and that when immigration officials asked her to sign documents written in English, and stated that she would be agreeing to leave for Mexico, “[t]hat is when I told them I was afraid of being in Mexico, which I knew is as or more dangerous than my home country.” Diana Decl. ¶ 34. She added, “I refused to sign these documents because I did not understand them and I did not want to go back to Mexico.” Diana Decl. ¶ 36. Because Diana articulated a fear of returning to Mexico and was not given a nonrefoulement interview, in violation of the agency’s procedures, she has demonstrated a substantial likelihood of success on the merits. Diana has also demonstrated that she would be likely to suffer irreparable injury if she and her children were to remain in Mexico without being properly evaluated for a fear of persecution. Diana has already been attacked and robbed, and her daughter has been kidnapped and raped multiple times. Compl. ¶ 21. Others around them in the camp have had similar experiences, and 29 it is likely that they will continue to be targets of violence. Thus, plaintiff Diana has shown that she is entitled to a preliminary injunction. However, “[i]njunctive relief granted to a party in a lawsuit must be framed to remedy the harm claimed by the party.” Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 108 (D.C. Cir. 1976). The injunction should be “no broader than necessary to achieve its desired goals.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994); see also Nebraska Dep’t of Health & Human Servs. v. Dep’t of Health & Human Servs., 435 F.3d 326, 330 (D.C. Cir. 2006) (“We have long held that an injunction must be narrowly tailored to remedy the specific harm shown.”) (internal quotation marks omitted). For that reason, the Court is constrained to order that plaintiff Diana be afforded the nonrefoulement interview to which she is entitled, rather than that she be returned to the United States for the pendency of the litigation. CONCLUSION For all these reasons, plaintiffs’ motion for preliminary injunction will be granted in part and denied in part. A separate order will issue. AMY BERMAN JACKSON United States District Judge DATE: June 25, 2020 30 

761 F.2d 1442 Abolfazl SALEHPOUR, Plaintiff-Appellant,v.IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee. No. 84-6202. United States Court of Appeals,Ninth Circuit. Submitted May 9, 1985.*Decided May 31, 1985. Otto Frank Swanson, Marina del Rey, Cal., for plaintiff-appellant. Carolyn M. Reynolds, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before WRIGHT, ALARCON and NORRIS, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge. 1 Salehpour appeals an order of summary judgment upholding the Immigration and Naturalization Service's decision that he is statutorily ineligible to adjust status pursuant to 8 U.S.C. Sec. 1255.1 The issue is whether work performed by Salehpour prior to formal approval of his H-1 application renders him statutorily ineligible to adjust. FACTS AND PROCEEDINGS BELOW 2 The following chronology summarizes the events that led to this appeal: 3 9/25/78: INS granted Salehpour a change of status from visitor for pleasure (B-2) to nonimmigrant student (F-1) and granted an extension of temporary stay until October 30, 1979, with authorization to attend Carnegie-Mellon University. 4 10/23/79: INS granted him an extension of stay for the duration of his status as an F-1 student at Carnegie-Mellon University. 5 12/30/81: INS authorized Salehpour for practical training employment in connection with his student status until June 30, 1982. 6 4/29/82: Salehpour's training employer, Heat Transfer Research, Inc., filed a petition to classify him as a temporary worker (H-1) and an application to change his nonimmigrant status (F-1 to H-1) pursuant to 8 U.S.C. Sec. 1258. These documents indicated that Salehpour was to commence employment May 1, 1982. 7 8/12/82: INS granted the petition and application for a change of classification and granted an extension of Salehpour's temporary stay until June 30, 1983. 8 3/2/83: Salehpour filed an application to adjust his status to permanent resident pursuant to 8 U.S.C. Sec. 1255. 9 6/7/83: District director denied Salehpour's application for status as a permanent residence based on statutory ineligibility. The district director reasoned that he had no discretion to adjust status for an alien who had engaged in unauthorized employment and that Salehpour's employment from July 1, 1982 to August 12, 1982 was unauthorized. 10 Salehpour filed a complaint for declaratory relief and judicial review of the INS decision. The district court granted the INS motion for summary judgment, finding that Salehpour was statutorily ineligible to adjust status pursuant to 8 U.S.C. Sec. 1255(c). DISCUSSION I. Standard of Review 11 The standard of review of an INS determination that an applicant is statutorily ineligible to adjust status is unclear in this circuit. In Lee v. INS, we reviewed using the substantial evidence test. 541 F.2d 1383, 1384-86 (9th Cir.1976) (Service's factual determination was not supported by any evidence in the record and it misread its regulation). 12 Later, we held that where facts are undisputed and an applicant is held ineligible as a matter of law, the Board's decision is subject to review for errors of law. Yui Sing Tse v. INS, 596 F.2d 831, 834 (9th Cir.1979); accord Ka Fung Chan v. INS, 634 F.2d 248, 252 (5th Cir.1981). 13 Because there is no factual dispute in this case and the district court held that the INS was entitled to judgment as a matter of law, we review the Service's decision de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). 14 The outcome here depends on the INS interpretation of "unauthorized employment." Review of an agency's interpretation of a statute is governed by the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706, which requires that an agency's action be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1982). 15 We give deference to an administrative agency's interpretation of a statute it is charged with administering. NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974); Markair, Inc. v. Civil Aeronautics Bd., 744 F.2d 1383, 1385 (9th Cir.1984). If the agency's interpretation is reasonable, we may not reject that interpretation merely because we prefer another view. National Treasury Employees Union v. Federal Labor Relations Auth., 732 F.2d 703, 706 (9th Cir.1984). The courts, however, are the final authorities on statutory construction. Markair, Inc., 744 F.2d at 1385. 16 Further, an agency's interpretation of its administrative regulations is controlling unless it is plainly erroneous or inconsistent with the regulations. United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977); Ruangswang v. INS, 591 F.2d 39, 43 (9th Cir.1978); Pei-Chi Tien v. INS, 638 F.2d 1324, 1327 (5th Cir.1981). 17 If the INS determination that employment pending approval of an H-1 application constitutes unauthorized employment is reasonable and not inconsistent with its own regulations, then its conclusion that Salehpour is statutorily ineligible to adjust is not arbitrary and capricious, see Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Auth., 672 F.2d 732, 735 (9th Cir.1982), rev'd on other grounds, 464 U.S. 89, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983), and must be affirmed. 18 We hold that the agency's conclusion is not reasonable, is inconsistent with its own regulations and, therefore, is arbitrary and capricious. II. Unauthorized Employment 19 If an alien applicant is not statutorily ineligible, Pei-Chi Tien v. INS, 638 F.2d at 1326, and complies with the entry requirements, the attorney general has discretion to adjust the alien's status to that of a permanent resident. 8 U.S.C. Sec. 1255(a) (1982). Section 1255(c) includes as ineligible "an alien ... who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status." 20 Salehpour asserts that work performed by an alien after having filed a prima facie approvable petition and application for H-1 status pursuant to 8 U.S.C. Sec. 1258, but prior to formal approval, is not unauthorized employment within the meaning of 8 U.S.C. Sec. 1255(c) where the petition and application are subsequently approved. See 2 Gordon & Rosenfield, Immigration Law & Procedure Sec. 7.7(b) at 7-87 (1985). He argues that his interpretation is consistent with prior INS interpretations of "unauthorized employment." See id. n. 38j.1; Matter of Tan, No. Aon-izk-tkq, (BIA, June 14, 1980) (continued employment pending approval of an application pursuant to 8 U.S.C. Sec. 1258 not unauthorized within the meaning of 8 U.S.C. Sec. 1255); In re Shoh, No. Ajo-nea-bhq (R.C. Eastern Regional Office, Sept. 21, 1979) (same; reasoning that time taken by the INS to adjudicate an application is beyond the control of the applicant); Chaudhury v. INS, No. Atf-ncx-etv (R.C. Southern Region, Aug. 3, 1977) (same).2 21 According to the INS, permission to work arose only when it approved the application for adjustment, not on the date for commencement of employment listed on the application. It asserts that its policy dictates that work performed by an H-1 applicant prior to formal approval of an application for change of classification is unauthorized employment, citing a letter from the Associate Commissioner for Examinations and a telex from the central office, both issued in 1982. 22 The INS relies also on two cases to support its conclusion that Salehpour is statutorily ineligible to adjust: Oki v. INS, 598 F.2d 1160 (9th Cir.1979) and Aiyadurai v. INS, 683 F.2d 1195 (8th Cir.1982). Oki and Aiyadurai are inapposite to this case. Neither involved applications for H-1 classifications. Oki involved an alien who engaged in employment prior to applying for permission to work. 598 F.2d at 1161. The employment was clearly unauthorized because there was no pending application for permission. The application for labor certification in Aiyadurai was denied. 683 F.2d at 1197. 23 Finally, the INS maintains that 8 U.S.C. Sec. 1258,3 change of nonimmigrant classification, is irrelevant to this case. It argues that whether employment performed pending approval of an H-1 application is unauthorized involves agency policy and is not a matter committed to the discretion of the District Director. 24 The assertion that 8 U.S.C. Sec. 1258 is irrelevant to this case is incorrect. It is through the procedure of applying for and being granted H-1 classification that Salehpour obtained employment authorization. If Salehpour's employment from July 1, 1982 to August 12, 1982 is considered authorized under 8 U.S.C. Sec. 1258, then his employment should not be considered unauthorized for purposes of adjustment of status under 8 U.S.C. Sec. 1255. 25 The INS also asserts that 8 C.F.R. Sec. 248.1,4 which interprets 8 U.S.C. Sec. 1258, does not allow the District Director to excuse any failure to maintain status other than overstay. 8 C.F.R. Sec. 248.1(a) provides that an alien who is continuing to maintain his nonimmigrant status may apply to have his nonimmigrant classification changed. Section 248.1(b) provides that the District Director "shall consider any conduct by the applicant relating to [his] maintenance of ... status." 26 The plain language of the regulation gives the District Director authority to determine whether an alien has maintained status to qualify for change of nonimmigrant classification. In addition, the regulation clearly allows the District Director to consider any conduct by the applicant relating to maintenance of status, including unauthorized employment. Cf. Matter of Kung, 17 I & N Dec. 260, 264 (BIA 1978) (unauthorized employment is a bar to 8 U.S.C. Sec. 1258 change of nonimmigrant classification). 27 Further, the regulations provide that an applicant may not be considered as having maintained status if he did not submit his application for change "before his authorized temporary stay in the United States expired ...." 8 C.F.R. Sec. 248.1(b); cf. Samimi v. INS, 714 F.2d 992, 994 (9th Cir.1983) (failing to file an application for an extension prior to the expiration of authorized stay is a violation of status sufficient to predicate deportation). The plain regulatory language allows an applicant to file for change of classification up to the last day of his prior authorized stay. 28 Salehpour has complied with the language of this regulation. Where the objective criteria of a regulation are clearly met, there is no room for an agency to interpret a regulation so as to add another requirement. Ruangswang v. INS, 591 F.2d at 43-44. By its decision, the Service requires an applicant to do more than what is stated in the regulations.5 29 The INS interpretation of the regulations does not comport with their plain language. Cf. Markair, Inc. v. Civil Aeronautics Bd., 744 F.2d at 1385-86 (policy justification for agency interpretation of a statute cannot ignore well-settled rules of statutory construction). We accord the agency's asserted interpretation less deference than usual because it arises from two 1982 internal communications, which are contrary to prior INS decisions. See Pei-Chi Tien v. INS, 638 F.2d at 1327 (Board erred as a matter of law because its decision was contrary to prior Board decisions and the clear language of the applicable regulations). We hold that the INS decision in this case is plainly erroneous and inconsistent with its regulations.6 30 Salehpour argues also that his employment was implicitly authorized by the INS. Because his application stated that employment would begin on May 1, 1982, the INS approved the application in full awareness that he was employed. A change of nonimmigrant status may be authorized only to an alien who is continuing to maintain status. 8 C.F.R. Sec. 1258. Because INS policy is that unauthorized employment is a bar to change of nonimmigration status, Matter of Kung, 17 I & N Dec. at 264, it must have implicitly authorized Salehpour's employment from July 1 to August 12, 1982, when it granted him H-1 status. See Matter of Tan (BIA). 31 In Matter of Tan, the alien applied for a "one year" extension of employment authorization to complete training. The termination date given on the approval was one year from the expiration of his prior authorized stay. The alien argued that had his employment prior to formal approval been unauthorized, the extension should have been granted to one year from the approval date. The INS ruled that the alien's employment was authorized based on its application and approval forms. 32 The factual situation here is similar to that in Tan. The INS granted Salehpour's H-1 visa with a termination date one year from the termination date of his practical training authorization.7 We find that it implicitly authorized Salehpour's employment.8 33 The district court's grant of summary judgment is reversed and the case remanded to the district director to determine in his discretion whether Salehpour should be granted adjustment of status pursuant to 8 U.S.C. Sec. 1255. 34 REVERSED. * This panel is unanimously of the opinion that oral argument was not required. Fed.R.App.P. 34(a); 9th Cir.R. 3(a) 1 8 U.S.C. Sec. 1255 provides in relevant part: (a) The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. .... (c) The provisions of this section shall not be applicable to (1) an alien crewman; (2) an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status; or (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title. 8 U.S.C. Sec. 1255 (1982). 2 Other INS decisions support Salehpour's argument. See In re Lett, 17 I & N Dec. 312, 313 (BIA 1980) (where investor exemption application is approved, management work prior to approval not unauthorized employment); Lee v. Ferro, No. 83-553T (W.D.N.Y. Oct. 5, 1983) noted in 60 Int.Rel. No. 42 at 829-30 (delay caused by filing wrong form does not result in unauthorized employment because of good faith effort to comply with INS directives; to deny application would be to place form over substance); see also Memorandum of the Commissioner, Northern Region, noted in 58 Int.Rel. No. 32 at 419-20 (continued employment pending approval of "H" petition is not unauthorized under 8 U.S.C. Sec. 1255) 3 Section 1258 provides in relevant part: The Attorney General may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status, ... 8 U.S.C. Sec. 1258 (1982). The regulations interpreting section 1258 are found at 8 C.F.R. Sec. 248 (1985). 4 8 C.F.R. Sec. 248.1 provides in relevant part: (a) General. Except for those classes enumerated in Sec. 248.2, any alien lawfully admitted to the United States as a nonimmigrant, including an alien who acquired such status pursuant to section 247 of the Act, who is continuing to maintain his nonimmigrant status, may apply to have his nonimmigrant classification changed to any nonimmigrant classification other than that of a fiancee or fiance under section 101(a)(15)(K) of the Act. (b) Maintenance of status. In determining whether an applicant has continued to maintain nonimmigrant status, the district director shall consider whether the alien has remained in the United States for a longer period than that authorized by the Service. The district director shall consider any conduct by the applicant relating to the maintenance of the status from which the applicant is seeking a change. An applicant may not be considered as having maintained nonimmigrant status within the meaning of this section if the applicant failed to submit an application for change of nonimmigrant classification before the applicant's authorized temporary stay in the United States expired, unless the disitrict director determines that-- (1) The failure to file a timely application is excusable; (2) The alien has not otherwise violated the nonimmigrant status; (3) The alien is a bona fide nonimmigrant; and (4) The alien is not the subject of deportation proceedings under Part 242 of this chapter. 8 C.F.R. Sec. 248.1 (1985) The regulations in effect at the time of this controversy contain somewhat different language, but the April 5, 1983 amendment does not change the result in this case. The 1971 version of the regulations expressly gave the district director discretion to excuse failure to file a timely aplication. 8 C.F.R. Sec. 248.1 (1983). However, this case does not involve filing a late application; the language of the regulation involved here is materially the same. 5 The INS cites another regulation that provides that unauthorized employment by a nonimmigrant constitutes a failure to maintain status. 8 C.F.R. Sec. 214.1(e) (1985). The regulation states that a nonimmigrant may not engage in employment "unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter." Id. (emphasis added). Notwithstanding that this regulation applies to deportation (8 C.F.R. Sec. 241), its language does not compel a finding of unauthorized employment in this case. Salehpour obtained authorization for employment. The regulation does not state that a nonimmigrant may not engage in employment until authorization is granted 6 By so holding we do not reach the merits of Salehpour's argument that the INS is required to follow the notice and comment provision of the APA in order to change Service precedent and policy 7 Although Salehpour applied for a two-year visa beginning on the date of his employment, the Service generally does not grant visas for longer than a one year period. 1 Gordon & Rosenfield, Immigration Law & Procedure Sec. 2.14(c) (1985) 8 Salehpour also argues that congressional intent does not support the Service's interpretation of "unauthorized employment." The bar of "unauthorized employment" was intended to prevent aliens from filling jobs for which there are citizens or authorized alien aspirants, citing Bhakta v. INS, 667 F.2d 771, 772-73 (9th Cir.1981) (alien not authorized as a business investor under INS regulations yet employment not held unauthorized by analogy to the reasons for the business investor exception). He asserts that a requirement that the employer and alien wait for prior Service approval would frustrate the intent of Congress. See 2 Gordon & Rosenfield, Immigration Law & Procedure p 7.7(b) at 7-87 (1985). While interesting, this argument was not fully addressed by the parties and it is not necessary for us to reach it

568 F.Supp. 790 (1983) MANUFACTURERS BANK AND TRUST COMPANY OF ST. LOUIS, Plaintiff, v. TRANSAMERICA INSURANCE COMPANY, Defendant and Third-Party Plaintiff, v. Peter L. DEIBEL and Harley Schwering, Third-Party Defendants. No. 82-0896C(4). United States District Court, E.D. Missouri, E.D. March 16, 1983. *791 Richard B. Scherrer, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., for plaintiff. Bernard A. Reinert, David D. Crane, Leritz & Reinert, P.C., St. Louis, Mo., for Transamerica Ins. Co. Alan C. Kohn, Robert A. Useted, Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, Mo., for Deibel and Schwering. MEMORANDUM HUNGATE, District Judge. Plaintiff, Manufacturers Bank and Trust Company of St. Louis (the Bank), brings this action against Transamerica Insurance Company (Transamerica) based on a bankers blanket bond (the Bond) in connection with certain loan losses. Transamerica filed third-party claims against two Bank officers, Peter Deibel and Harley Schwering, alleging it is subrogated to any rights the Bank may have against Deibel and Schwering for negligent handling of the loan transactions. The third-party defendants move to dismiss the first amended third-party complaint. Oral argument was heard on the present motion February 18, 1983, and additional briefs were submitted regarding ripeness of the third-party claims and bifurcation. The third-party defendants concede that the surety may implead them even though it has not paid on the principal claim because their substantive rights are not affected by Rule 14 of the Federal Rules of Civil Procedure, which permits impleader of parties who are or may be liable for all or part of the principal claim. See, e.g., Glens Falls Indemnity Co. v. Atlantic Building Corp., 199 F.2d 60 (4th Cir.1952); Commercial Credit Development Corp. v. Scottish Inns of America, Inc., 69 F.R.D. 110 (E.D. Tenn.1975). However, the Bank officers submit that Transamerica is not entitled to any relief against them by right of subrogation as a matter of law. Fed.R.Civ.P. 12(b)(6). They place central reliance on First National Bank of Columbus v. Hansen, 84 Wis.2d 422, 267 N.W.2d 367 (1978), in which the Supreme Court of Wisconsin held that a fidelity insurer could not maintain a subrogation action against bank officers and directors for negligence in connection with their failure to supervise a fellow officer who defrauded the bank. Deibel and Schwering insist Hansen is squarely on point and should be applied to the alleged *792 facts in this case. In rejecting the third-party claim, the Hansen court reasoned: We think the equitable principles which deny an insurer the right of subrogation against its own insured are also applicable here. In this case the negligence of the Bank in permitting Hansen's wrongful acts to go undiscovered is but the negligence of its officers and directors whose duty is to supervise the operations of the Bank.... [L]ack of ordinary care by the directors and officers of the insured does not give the fidelity insurer, who is paid to assume this risk, an equitable position superior to that of the officers and directors of the Bank. Without a favorable balance of equities, subrogation is improper and the judgment dismissing the third-party complaint with respect to the officers and directors must be affirmed. Id. 267 N.W.2d at 372. The bond involved in that case was issued to protect against "fraudulent and dishonest acts," id. at 369; however, none of the contractual terms of the bond are set forth in the opinion except as indicated above. The Bond here provides the standard coverage characteristic of such fidelity insurance. Transamerica, in summary, has agreed to indemnify the Bank against loss arising out of want of honesty, integrity, or fidelity of an employee or other person. See 13 Couch on Insurance 2d (rev. ed.) § 46:2. The loss contemplated is clearly that resulting from willful, intentional, and dishonest conduct; negligence, mistake, carelessness, errors of judgment, inattention to business, or incompetence are not insured. Eglin National Bank v. Home Indemnity Co., 583 F.2d 1281, 1285-87 (5th Cir.1978); New Mexico Savings & Loan Association v. United States Fidelity & Guaranty Co., 454 F.2d 328, 334 (10th Cir.1972); First National Bank v. United States Fidelity & Guaranty Co., 275 Md. 400, 340 A.2d 275, 284 (Md.App.1975). This is illustrated by the plain terms of the present Bond which of course are controlling in this instance. See, for instance, plaintiff's complaint, exhibit A, section (A), Insuring Agreements, and section (h), Conditions and Limitations. This Court respectfully declines to follow the holding of the Hansen court under the present record. By denying recourse against third parties responsible for or contributing to a loss which might otherwise have been avoided, the surety is denied the rights of an ordinary subrogee. Clearly the Bank has a cause of action against the negligent acts of its directors and officers. E.g., Atherton v. Anderson, 99 F.2d 883, 887 (6th Cir.1938). Denying subrogation would confuse the Bank as a corporate entity with its agents. The named insureds in this Bond are the Bank and its affiliated companies (first amended third-party complaint, exhibit A, Bond Rider, dated May 22, 1981; and section 10, Conditions and Limitations), not the officers employed by it. For these reasons, the Court believes the better view, permitting subrogation, is expressed in Federal Deposit Insurance Corp. v. National Surety Corp., 434 F.Supp. 61, 63 (E.D.N.Y.1977): ... Courts in New York have held that "a surety or liability insurer is subrogated to the rights of the creditor against third parties whose wrongs have compelled the surety or insurance company to make payment." [citations omitted.] This principle is sound, for if an insurance company pays on a bond it should "step into the shoes" of the corporation and should be able to assert claims of the corporation against third parties. To hold otherwise would mean that if the bonds covered the total loss of the corporation, no one would have a cause of action against third parties such as the directors who may have contributed to the loss. The corporation could not sue because it would be fully reimbursed, and the insurance companies could not sue because they would have no standing. Alternatively, the Bank officers argue there is no claim against them because section (E) of the Insuring Agreements requires the Bank to act in "good faith." *793 Section (E) provides coverage, in pertinent part, for: Loss resulting directly from the Insured having, in good faith for its own account or for the account of others (1) acquired, sold or delivered, or given value, extended credit or assumed liability, on the faith of, or otherwise, acted upon any original ... (e) Evidence of debt ... which (i) bears a signature of any maker ... which is a forgery. They contend "negligence" and "reasonable commercial good faith" are synonymous under Missouri law. Therefore, negligent actions imputable to the Bank bar Transamerica's liability and hence any basis for subrogation. This theory is predicated on a misconstruction of the term "good faith" as used in section (E) which is inconsistent with the plain language of the Bond considered as a whole. This is manifest from all that has been said previously concerning the risks insured. See generally Martin v. Yeoham, 419 S.W.2d 937, 944-45 (Mo.App.1967); see also 13 Couch on Insurance 2d, supra at § 46:51, pp. 54, 55 n. 6. For all of the foregoing reasons, the motion of third-party defendants to dismiss will be denied. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). By their supplementary memoranda both the Bank and the Bank officers seek bifurcation. Transamerica opposes such a severance claiming the issues of its defense in the main action are thoroughly intertwined with its claims against Deibel and Schwering. Rule 42(b) of the Federal Rules of Civil Procedure provides, "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim ... or third-party claim." The Court finds that considerations including convenience, clarity, and the avoidance of confusion and prejudice favor separate trials of the respective claims in this proceeding and outweigh the immediate and superficial economies which might be achieved by conduct of a single trial. See Kosters v. The Seven-Up Company, 595 F.2d 347, 356 (6th Cir.1979). The request for bifurcation will be granted.

76 Cal.App.3d 188 (1977) 143 Cal. Rptr. 160 COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF HAWTHORNE, Plaintiff and Respondent, v. ALBERT FRIEDMAN et al., Defendants and Appellants. Docket No. 50339. Court of Appeals of California, Second District, Division Five. November 29, 1977. *189 COUNSEL Fadem, Berger, McIntire & Norton, Fadem, Berger & Norton and Michael M. Berger for Defendants and Appellants. Kenneth L. Nelson, City Attorney, Oliver, Stoever & Laskin, William B. Barr and Ronald J. Einboden for Plaintiff and Respondent. OPINION STEPHENS, J. Following judgment in a condemnation action, defendant property owners made a timely motion for award of litigation costs under former Code of Civil Procedure section 1249.3. The motion was denied and the property owners appeal from the order denying the motion. We reverse. In June 1969, the City of Hawthorne announced the Hawthorne Plaza Redevelopment Plan, which provided for the acquisition of the subject property by eminent domain proceedings. Because the redevelopment *190 agency did not file its complaint until November 16, 1973, the trial judge found that the period from January 1, 1971 to November 16, 1973 constituted an unreasonable delay in instituting the present action, which entitled the property owners to the loss of rental income caused by the delay, pursuant to Klopping v. City of Whittier, 8 Cal.3d 39 [104 Cal. Rptr. 1, 500 P.2d 1345].[1] Of the $63,780 recovered by the property owners at trial, $56,000 represented the jury's verdict as the value of the property, and $7,780 was the stipulated amount of the damages occasioned by the delay. Immediately before trial, the agency's offer pursuant to section 1249.3 was $48,000, while that of the property owners was $60,000. Shortly thereafter but still before trial, the property owners offered to settle for $58,500. The property owners' figure included rent loss.[2] Following the trial, the court denied the property owners' motion under section 1249.3 for reimbursement of their litigation costs on the ground that the agency's offer was reasonable. Discussion (1) This case falls directly within the holding of City of Gardena v. Camp (1977) 70 Cal. App.3d 252 [138 Cal. Rptr. 656], County of Los Angeles v. Kranz (1977) 65 Cal. App.3d 656 [135 Cal. Rptr. 473], and City of Los Angeles v. Cannon (1976) 57 Cal. App.3d 559 [127 Cal. Rptr. 709]. The City of Gardena case was decided subsequent to the rendering of the judgment here appealed from. We adopt the analysis of that case wherein it is stated at pages 257-258: "The City, relying on Cannon, stresses the good faith nature of its offer. This is not, we are told, a case in which there was merely a difference of opinion as to value of property. The real difference of opinion was on the matter of severance damages. As to severance damages the City claims to have been faced with a `yes-no' decision; it *191 submits that `it would not have been unreasonable for [it] to refrain from recognizing any severance damages at all in view of the position of [its] competent appraiser that there was no justification for severance damages.' But the distinction the City attempts to make is spurious. There was never any doubt that severance damages, if any, would be included in the `just compensation' (Cal. Const., art. I, § 19) to which defendants were entitled. (City of Los Angeles v. Oliver, 102 Cal. App. 299, 311 [283 P. 298] [app. dism. 283 U.S. 787 (75 L.Ed. 1415, 51 S.Ct. 348)]; 3 Nichols on Eminent Domain (Sackman and Van Brunt, rev. 3d ed. 1976) § 8.6, pp. 45-46.) Like any of the factors considered in the appraisal, severance damages might be accorded a high or low value. It seems that according to the City's reasoning it was justified in refusing to compromise the question of severance damages because its appraiser said they were nonexistent, but it would have been unjustified had the appraiser agreed there were such damages in the amount, say, of one dollar — there would be no `yes - no' decision, but a difference of opinion of value. This argument has no logical appeal. An opinion that there are no severance damages effectively values severance damages at zero dollars. Clearly this was a subject about which reasonable men might differ — presumably defendants' expert was also a `competent appraiser.' A reasonable person would have included it as a factor of negotiation. "The City further seeks to demonstrate the good faith of its position by contending that it made an oral offer of $40,000 immediately prior to trial. Support for this contention appears in the declaration of counsel for the City filed in opposition to the 1249.3 motion. According to the declaration, the offer was declined because defendants also wanted interest on the sum from the time the City took possession of the property in 1974. Apparently defendants filed no declaration controverting that of the City's counsel. However, appellants do deny the accuracy of this account. They stress the unlikelihood that the court would have proceeded to trial when there were both a demand and offer of $40,000 outstanding. They also ask why, if the City were willing to pay this amount, it did not file a written offer of this amount, or simply file an acceptance of the modified $40,000 demand. Indeed, appellants might have added that the failure to reduce to writing the alleged oral offer, the binding effect of which is highly dubious, itself tends to weaken rather than strengthen the City's good faith argument. They also refer to section 1255b which dictates when interest on an award shall accrue, raising the question whether this is a subject of offer and demand under section 1249.3. *192 "We do not pass on this factual dispute. Section 1249.3 provides that `written, revised or superseded offers and demands served and filed prior to or during the trial' shall be considered by the court in determining the amount of attorneys' fees and expenses to be awarded under the section. The requirement that offers and demands be in writing appears at least in part designed to avoid a dispute over the parties' positions. But, even if the City's alleged offer of $40,000 fell within this provision, it would affect only the amount of fees and expenses to be awarded defendants, not the entitlement thereto. We fail to see how the offer itself, even if made, goes to show reasonableness or good faith of the $29,000 offer. Rather, the opposite would seem to be true." (Fn. omitted.) The judgment is reversed and the cause remanded for the purpose of fixing attorney's fees in accordance with the views hereinabove expressed. Kaus, P.J., and Ashby, J., concurred. NOTES [1] Although Code of Civil Procedure section 1249.3 provides that the reasonableness of the condemnor's offer be assessed "in the light of the determination as to the value of the subject property," the amount of damages under Klopping are not to be subtracted from each side's offer, inasmuch as section 1249.3 contemplated "that the offer and demand are to cover all of the compensation in the proceeding...." (Legis. Com. com. § 1250.410, Code Civ. Proc.) [2] During trial and after, the court found that the redevelopment agency had unreasonably delayed instituting this action, thus rendering the agency liable for $7,780 damages for delay. Thereafter, the agency increased its offer by $10,000, and while this was only $2,220 more than the stipulated liability for damages caused by the agency's unreasonable delay, it raised the total offer to $58,000.

856 F.2d 142 129 L.R.R.M. (BNA) 2592, 49 Ed. Law Rep. 20 GEORGIA ASSOCIATION OF EDUCATORS, Gwinnett CountyAssociation of Educators, Executive Committee of GwinnettCounty Association of Educators, Debbie Thurston, CarlRadford, Ona Blankenship, Jane Hughes, Nancy Neal, Jim Nix,Jr., Gail McBride, Neva McGuire, Jo Clifton, and MarshaWooten, Plaintiffs- Appellants,v.GWINNETT COUNTY SCHOOL DISTRICT, All Board Members ofGwinnett County Board of Education, Cecil Gober, Chairman,Jeff Moore, Stan Jones, Louise Radloff, all individually andin their official capacities, Bob Wood, in his officialcapacity only, Alton Crews, Superintendent, individually andin his official capacity, Defendants-Appellees. No. 87-8089. United States Court of Appeals,Eleventh Circuit. Sept. 29, 1988.Rehearing and Rehearing En Banc Denied Nov. 9, 1988. 1 Michael D. Simpson, Washington, D.C., for plaintiffs-appellants. 2 Theodore G. Frankel, Atlanta, Ga., for Georgia Ass'n of Educators. 3 Michael J. Goldman, Freeman & Hawkins, Dan E. White, Atlanta, Ga., E.L. Victoria Sweeny, Tennant, Davidson & Thompson, P.C., Lawrenceville, Ga., Jonathan David Moonves, Smith, Gambrell & Russell, David A. Handley, Atlanta, Ga., for defendants-appellees. 4 Appeal from the United States District Court for the Northern District of Georgia. 5 Before RONEY, Chief Judge, TJOFLAT, Circuit Judge and CLEMON*, District Judge. CLEMON, District Judge: 6 The Georgia Association of Educators (GAE), its local affiliate the Gwinnett County Association of Educators (GCAE) and individual teacher-members of these associations brought this action under 42 U.S.C. Section 1983 against the Gwinnett County School District, members of its Board of Education, and its superintendent, claiming that the defendants terminated an automatic payroll dues deduction service in retaliation for plaintiffs' exercise of their First Amendment rights. The district court granted summary judgment for the defendants. We reverse. I. 7 For more than twenty years, the Gwinnett County Board of Education provided its employees who were members of GAE, GCAE, and the National Education Association (NEA) a service of automatic payroll deduction of membership dues. 8 At the June 1985 meeting of the Gwinnett County Board of Education ("the Board"), the superintendent recommended that the Board terminate the dues deduction service for GAE-GCAE members,1 and the Board voted 4-1 to accept the recommendation. 9 The publicly stated reason for the termination was that the administrative cost of providing the service would be an unauthorized expenditure of public funds.2 According to the affidavits submitted below, however, the Board members admitted that the real reason for the termination of the dues deduction was that GCAE leaders had spoken to the Board on behalf of its members, that it admits nonprofessionals to membership, and that it is affiliated with NEA which is perceived by the Board as being a union. When approached concerning a resolution of the problem, the board chairman responded that "[t]he only way to resolve [the termination of the dues deduction service] is to get out of NEA." The lone board member who voted against the termination of the deduction service subsequently indicated that the real reason for the termination was a desire to destroy GCAE. 10 After the vote, the superintendent wrote to GCAE officers that "... the school board and administration have tossed, instead of marshmallows, a few hardballs back to GCAE...." 11 Following the termination, GCAE offered to pay the reasonable administrative costs involved in the dues deduction service for GCAE members. The defendants rejected the offer. 12 As a result of the termination of the service, GCAE has lost approximately 430 members and $81,000 in dues revenues. II. 13 For at least a quarter-century, [the United States Supreme] Court has made clear that even though a person has no 'right' to a valuable government benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. 14 Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). The First Amendment protects the right of public employees to associate, speak and petition freely, as well as the right of associations to engage in advocacy on behalf of their members. The Government may not retaliate against individuals or associations for their exercise of First Amendment rights "by imposing sanctions for the expression of particular views it opposes." Smith v. Arkansas State Highway Employees, 441 U.S. 463, 464, 99 S.Ct. 1826, 1827-28, 60 L.Ed.2d 360 (1979). 15 The district court, relying on Smith and Arkansas State Highway Employees Local 1315 v. Kell, 628 F.2d 1099 (8th Cir.1980), held that plaintiffs had no constitutional right to a dues withholding service and thus, any impairment suffered as a result of the discontinuation of such service could not give rise to a cause of action under the First Amendment. The starting point of our analysis is not whether the dues deduction service is a constitutional right possessed by appellants;3 rather the initial inquiry is whether the service is a valuable benefit to either the individual or the associational plaintiffs. The district court erred as a matter of law4 in failing to address the issue with respect to GCAE.5 16 Whether the dues deduction service is a valuable benefit to individual plaintiffs turns on the extent to which the absence of the service has caused them expense and inconvenience. When the evidence appearing in the record is construed most favorably for the individual plaintiffs, the logical inferences create a genuine issue of disputed facts.6 17 Summary judgment for the defendants was therefore inappropriate on the initial inquiry. 18 The district court did not reach the second level of inquiry, i.e., whether the termination of the dues checkoff service was retaliatory. Obviously, the defendants were not entitled to summary judgment on the ground that they did not act in a retaliatory manner, for the evidence concerning the defendants' motive is vigorously disputed.7 III. 19 Because the district court did not recognize the settled law that state officials may not retaliate against associations and individuals for their exercise of First Amendment rights, and genuine factual issues preclude granting summary judgment for the defendants, the judgment is REVERSED and the cause REMANDED for proceedings not inconsistent with this opinion. * Honorable U.W. Clemon, U.S. District Judge for the Northern District of Alabama sitting by designation 1 Although not discussed by the district court in its findings of fact, the following background information is alleged by plaintiffs in affidavits submitted below Within the past few years, the superintendent has become increasingly hostile towards GCAE--principally because it is affiliated with NEA and it admits non-professional school personnel to associate memberships. Relations between GCAE and the superintendent came to a head at a May 1985 meeting of the Board. Kenneth Cain, a Board-employed bus mechanic, appeared before the Board and read a statement of his grievance. Cain is a member of GCAE, and his written statement was prepared by GCAE president Debbie Thurston. Thurston was also in attendance at the meeting. Immediately following the meeting, the superintendent sent a memorandum to the Board members, in which he said, among other things: If we go beyond the law and permit anyone to address the Board, we can be assured that the GCAE-NEA union will be here every month with some disgruntled employee. In Georgia the GAE, the NEA affiliate, has seen its membership decline from 42,000 to approximately 29,000 teachers. Its membership is being drawn increasingly from racial minorities. It is small wonder that the NEA union has targeted Gwinnett County, Georgia's fastest growing school system, with its 97% white employee membership. I respectfully remind the Board that the NEA has twenty-five years of collective bargaining experience, has trained its employees thoroughly in techniques of divisiveness and militant action, is totally committed to the unionization of teachers, and is a formidable opponent. I will be developing some recommendations to the Board regarding the management problems that I refer to in this letter. 2 Prior to recommending the termination of the deduction service, the superintendent obtained the advice of counsel concerning the legality of the service as well as the legality of terminating it. Counsel was "... of the opinion that dues checkoff probably is an improper expenditure of school funds; but I regard the question of how the courts would view the legality of dues checkoff as an open one. Historically, the courts tend to construe educational purposes broadly." Earlier in his letter opinion, counsel had noted the argument that "... the dues deduction promotes good employee relations and that such good relations are necessary for public education." Counsel's letter assumed that "the employee organizations are not reimbursing the school district for the administrative costs of carrying out the deductions...." 3 The authorities make it clear that the plaintiffs have no such constitutional right. Smith, supra; City of Charlotte v. Firefighters, 426 U.S. 283, 96 S.Ct. 2036, 48 L.Ed.2d 636 (1976) 4 The court was of the view that the First Amendment does not protect associations engaged in advocacy from retaliation at the hands of state officials. That view is erroneous. Smith, supra; Alabama State Federation of Teachers v. James, 656 F.2d 193, 197 (5th Cir.1981) 5 There is evidence in the record that the dues deduction service is a valuable benefit to GCAE. The Board chairman analogized the service to "firewood to people who are burning a fire." Without the service, GCAE has lost fully a third of its members and substantial revenues. The union has been put to the time and expense of collecting the dues of the Gwinnett County employees who remain its members 6 The district court should have inferred that without the service, individual members would be required to write personal checks or purchase money orders in the amount of their monthly dues, which would be paid for by the members. It should have inferred that additional time of members would be required to send the checks or money orders to GCAE and GAE. Although the district court opined that "[only] the method of dues payment has changed", it should have inferred that the change has likely resulted in additional expense and inconvenience for the individual plaintiffs 7 Discovery was postponed pending disposition of the Motion For Summary Judgment. Basically, the defendants contend that the termination was based on their good-faith belief that the dues deduction service violated Georgia law. Plaintiffs' evidence, if credited, would compel the conclusion that retaliation was the sole motivation of the defendants

T.C. Memo. 2002-301 UNITED STATES TAX COURT ESTATE OF ELMA MIDDLETON DAILEY, DECEASED, DONOR, K. ROBERT DAILEY, II, EXECUTOR, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent ESTATE OF ELMA MIDDLETON DAILEY, DECEASED, K. ROBERT DAILEY, II, EXECUTOR, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket Nos. 6251-00, 6262-00. Filed December 9, 2002. Harold A. Chamberlain, for petitioners. Richard T. Cummings, for respondent. MEMORANDUM OPINION FOLEY, Judge: This matter is before the Court on petitioners’ motion for allowance of claims for litigation and  - 2 - administrative costs pursuant to section 7430 and Rule 231.1 This Court ruled in favor of petitioners, in Dailey v. Commissioner, T.C. Memo. 2001-263, and we incorporate herein by reference the facts set forth in that opinion. Background On October 20, 1992, Elma Middleton Dailey executed a will, a Revocable Living Trust (trust), and an Agreement of Limited Partnership (agreement) of Elma Middleton Dailey Family Limited Partnership (FLP). On November 13, 1992, Mrs. Dailey contributed publicly traded stock to the FLP, and on December 8, 1992, she gave limited partnership interests in the FLP to her son, her son’s wife, and the trust. By notices dated March 15, 2000, respondent determined Federal gift and estate tax deficiencies relating to the valuation of the FLP interests. At trial, the Court upheld petitioners’ discounts and held that there were no deficiencies. On December 4, 2001, petitioners filed their motion for allowance of claims for litigation and administrative costs. On March 4, 2002, respondent filed an objection to motion for litigation costs and memorandum of points and authorities in support of respondent’s objection to the motion for litigation costs. Petitioners then filed an affidavit on June 19, 2002. 1 Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.  - 3 - After a conference call on June 21, 2002, and pursuant to an order dated June 24, 2002, petitioners filed a supplement to motion for allowance of claims for litigation and administrative costs (supplement) seeking only those litigation costs incurred after February 1, 2001, for services provided by Jeffrey A. Schumacher, expert; Harold A. Chamberlain, lead attorney; and Michael C. Riddle, attorney. On July 8, 2002, respondent filed his objection to supplement to motion for allowance of claims for litigation and administrative costs. Discussion The prevailing party in a Tax Court proceeding may recover litigation costs. Sec. 7430(a); Rule 231. Except as provided in section 7430(c)(4)(B), petitioners bear the burden of proving that they meet each of the requirements of section 7430. Rule 232(e). Their failure to establish any one of the requirements of section 7430 on which they have the burden of proof will preclude an award of costs. Minahan v. Commissioner, 88 T.C. 492, 497 (1987). Respondent contends that he was substantially justified in challenging the valuation of Mrs. Dailey’s FLP (valuation issue). Respondent, however, concedes he was not substantially justified in maintaining his position that Mrs. Dailey’s FLP should be disregarded for tax purposes (FLP issue). We must, therefore,  - 4 - decide whether respondent’s position relating to the valuation issue was substantially justified, and whether costs relating to the FLP issue are reasonable. I. Substantial Justification We may award costs to petitioners where respondent’s position was not substantially justified (i.e., did not have a reasonable basis in law and fact). See Pierce v. Underwood, 487 U.S. 552, 565 (1988). In addition, the justification for each of respondent’s positions must be independently determined. See Swanson v. Commissioner, 106 T.C. 76, 92, 97 (1996). This Court will determine the reasonableness of respondent’s position as to each issue independently and apportion the requested award between those issues for which respondent was, and those issues for which respondent was not, substantially justified. See id. at 87-92; Salopek v. Commissioner, T.C. Memo. 1998-385, affd. without published opinion 210 F.3d 390 (10th Cir. 2000). The fact that respondent loses an issue is not determinative of the reasonableness of respondent’s position. Wasie v. Commissioner, 86 T.C. 962, 969 (1986). To establish that respondent was substantially justified on the valuation issue, respondent must establish that he was reasonable in adopting his expert’s analysis. See Smith v. United States, 850 F.2d 242, 246 (5th Cir. 1988); see also Fair v. Commissioner, T.C. Memo. 1994-602 (holding that when deciding if respondent’s position on valuation is substantially justified,  - 5 - the Court “must consider the facts of the case, the nature of the asset to be valued, the qualifications of the expert, the soundness of the valuation methods, the reliability of the expert’s factual assumptions, and the persuasiveness of the reasoning supporting the expert’s opinion”). The values of family limited partnership interests are difficult to determine. See Estate of Smith v. Commissioner, 57 T.C. 650, 655 (1972) (“valuation has been consistently recognized as an inherently imprecise process”), affd. 510 F.2d 479 (2d Cir. 1975). Respondent’s expert began with the net asset value of the FLP, then made adjustments reflecting minority and marketability discounts. Regarding the minority discount, he compared the FLP to closed-end mutual funds. Regarding the marketability discount, he relied on studies relating to the value of common stock with legal restrictions impairing transferability (i.e., Restricted Stock Studies) and a study relating to the value of closely held company shares prior to initial public offerings (i.e., Pre-IPO Study). Problems with the expert’s analysis were not revealed until petitioners’ counsel conducted voir dire and cross-examination. With respect to the valuation of the FLP interests, this Court held that, “although neither expert was extraordinary, petitioners’ expert provided a more convincing and thorough analysis than respondent’s expert.” Dailey v. Commissioner,  - 6 - supra. The Court upheld petitioners’ discounts for the valuation of the FLP interests. Respondent’s expert holds a Ph.D. and M.B.A., has extensive qualifications and expertise, and used sound valuation methods in his report. Cf. Estate of Cervin v. Commissioner, 111 F.3d 1252 (5th Cir. 1997) (holding that respondent was not substantially justified for relying upon the discredited unity-of-ownership valuation theory), revg. T.C. Memo. 1994-550. Despite the expert’s performance at trial, respondent’s adoption of the expert’s report was reasonable. Accordingly, respondent was substantially justified, and petitioner is not entitled to litigation costs related to the valuation issue. II. Reasonable Costs Petitioners may recover only litigation costs related to the FLP issue. See sec. 7430(a)(2), (c)(1). Section 7430(c)(1)(B)(iii) imposes a statutory rate for attorney’s fees (i.e., $140 per hour relating to calendar year 2001). See Rev. Proc. 2001-13, 2001-1 C.B. 337, 341. In their supplement, petitioners seek litigation costs in the amount of $68,593 (i.e., 489.95 hours), of which petitioners allocated $50,540 (i.e., 361 hours2) to the FLP issue. Respondent contends $39,900 (i.e., 285 2 Petitioners, in their supplement, state that Chamberlain worked 48 hours on the valuation issue, but Exhibit C of the supplement indicates that Chamberlain worked 49 hours on that issue.  - 7 - hours3) is the appropriate amount allocated to the FLP issue. The following chart represents the petitioners’ proposed allocation of hours: FLP Valuation (hours) (hours) Jeffrey A. Schumacher (expert) 0 77.95 Subtotal-Jeffrey A. Schumacher 0 77.95 Harold A. Chamberlain (lead attorney) Pleadings 30 0 Summary judgment 7 0 Expert witness 0 31 Conference with district counsel 21 1 Pre-trial prep/memorandum/motions 77 15 Trial-day 1 10 0 Trial-day 2 10 2 Briefing and posttrial review 106 0 Review respondent’s posttrial brief 3 0 Motion 40 0 Subtotal-Harold A. Chamberlain 304 49 Michael C. Riddle, Esq. (attorney) Conferences with Chamberlain 37 0 Trial-Day 1 10 0 Trial-Day 2 10 2 Subtotal-Michael C. Riddle 57 2 Total (489.95 hours) 361 128.95 Petitioners allocated 106 hours to the FLP issue relating to briefing and posttrial review by Chamberlain. This allocation is unreasonable because the parties’ findings of fact predominantly deal with valuation and more than 80 percent of their brief is dedicated to valuation. Moreover, the portion of the brief dedicated to the FLP issue merely references Knight v. Commissioner, 115 T.C. 506 (2000), and Estate of Strangi v. Commissioner, 115 T.C. 478 (2000), revd. on other grounds 293 F.3d 279 (5th Cir. 2002), which are decisions in which the Court held that an FLP is not disregarded for tax purposes. Under 3 Respondent, however, neglected to exclude 47 hours of time that petitioners allocated to the valuation issue.  - 8 - these circumstances, respondent’s contention that only half of these hours were allocable to the FLP issue is more than reasonable. Accordingly, petitioners are entitled to only 53 hours relating to briefing and posttrial review. Petitioners also seek 3 hours for review of respondent’s posttrial brief by Chamberlain, but respondent’s posttrial brief does not even mention the FLP issue. Accordingly, petitioners are not entitled to these costs either. Petitioners attributed 59 hours to work performed by Riddle and allocated 57 of these hours to the FLP issue. Riddle served as attorney for the probate of Mrs. Dailey’s estate, represented her during the administrative proceedings, and assisted Chamberlain during litigation. Petitioners have adequately set forth the services he performed. We reject respondent’s contention that such services were duplicative. Accordingly, petitioners are entitled to 57 hours relating to work performed by Riddle. Thus, petitioners are entitled to litigation costs in the amount of $42,700 (i.e., 305 hours). Contentions we have not addressed are irrelevant, moot, or meritless. To reflect the foregoing, - 9 - Appropriate orders and decisions will be entered. 

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT FEB 27, 2009 No. 08-12666 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 94-06003-CR-DTKH UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RONALD FORD, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (February 27, 2009) Before DUBINA, BLACK and BARKETT, Circuit Judges. PER CURIAM: Appellant Ronald Ford, a federal prisoner convicted of a crack cocaine offense, through counsel, appeals the district court’s grant of his pro se motion for a reduced sentence, pursuant to 18 U.S.C. § 3582(c)(2). Ford’s motion was based on Amendment 706 to the Sentencing Guidelines, which lowered the base offense levels associated with crack cocaine offenses. Ford’s motion also included an argument that the district court could impose a sentence below the amended guideline range after United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). The district court granted the motion in part, recalculated the guideline range, and imposed a sentence at the low end of the amended guideline range. On appeal, Ford argues that both Booker and Kimbrough v. United States, 552 U.S. __, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007), apply to § 3582(c)(2) proceedings, and that the district court should further reduce his sentence after considering his post-conviction efforts, strong family ties, and the crack/powder disparity. In the 18 U.S.C. § 3582(c)(2) context, “we review de novo the district court’s legal conclusions regarding the scope of its authority under the Sentencing Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). Under 18 U.S.C. § 3582(c)(2): in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, 2  or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3583(c)(2) (emphasis added). The policy statement applicable to § 3582(c)(2) proceedings is U.S.S.G. § 1B1.10, which instructs courts how to determine the amended guideline range. U.S.S.G. § 1B1.10(b)(1) (2008). The policy statement provides in relevant part that “the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under [§ 1B1.10(b)(1)].” U.S.S.G. § 1B1.10(b)(2)(A). In United States v. Melvin, ___ F.3d ___, No. 08-13497 (11th Cir. February 3, 2009), we held that § 3582(c)(2) only allows a district court to reduce sentences in a manner “consistent with the applicable policy statements of the Sentencing Commission.” Id. at ___. We noted that the policy statement applicable to 3582(c)(2) proceedings prohibited the district court from reducing a term of imprisonment below the end of the amended guideline range. Id. at ___; see also U.S.S.G. § 1B1.10(b)(2)(A). We further held that the district court could not rely on Booker or Kimbrough to reduce the defendant’s sentence below the low end of the amended guideline range. Melvin, ___, F.3d at ___. 3  In the § 3582(c)(2) proceeding, the district court was not permitted to reduce Ford’s sentence below his amended guideline range. Accordingly, we conclude that the district court did not err, and we affirm Ford’s sentence. AFFIRMED. 4 

280 N.W.2d 631 (1979) STATE of Minnesota, Appellant, v. William HELENBOLT, Respondent. No. 49956. Supreme Court of Minnesota. June 7, 1979. Rehearing Denied July 16, 1979. Warren Spannaus, Atty. Gen., St. Paul, Alan L. Mitchell, County Atty., by Michael W. McNabb, Asst. County Atty., Duluth, for appellant. *632 C. Paul Jones, Public Defender, by Mollie G. Raskind, Asst. Public Defender, Minneapolis, for respondent. Considered and decided by the court en banc without oral argument. PER CURIAM. This is a pretrial appeal by the state pursuant to Rule 29.03, subd. 1, Rules of Criminal Procedure, from an order of the district court denying a motion by the state to compel testimony by defendant's alleged accomplice at defendant's trial without granting the accomplice immunity from prosecution. The defendant, in a motion to dismiss, argues that the state has failed to demonstrate clearly and unequivocally that the trial court erred in its decision and that the court's ruling will have a critical impact on the outcome of the trial. Although we deny the motion to dismiss, we agree that the state has not met its burden of demonstrating error, and accordingly we affirm. See, State v. Webber, 262 N.W.2d 157 (Minn.1977). Affirmed.

246 P.3d 162 (2010) 2010 UT App 381 STATE of Utah, Plaintiff and Appellee, v. Robert Martell McDANIEL, Defendant and Appellant. No. 20090885-CA. Court of Appeals of Utah. December 23, 2010. Sherry Valdez and Heather Chesnut, Salt Lake City, for Appellant. Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee. Before Judges McHUGH, ORME, and THORNE. MEMORANDUM DECISION THORNE, Judge: ¶ 1 Defendant Robert Martell McDaniel appeals from convictions of forgery, see Utah Code Ann. § 76-6-501 (2008), and attempted theft, see id. § 76-6-404, arguing that the trial court erred by refusing to merge the forgery charge with the attempted theft charge. We affirm. ¶ 2 "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (internal quotation marks omitted). To preserve an issue for appeal, "the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue." 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (internal quotation marks omitted). "For a trial court to be afforded an opportunity to correct the error `(1) the issue must be raised in a timely fashion[,] (2) the issue must be specifically raised[,] and (3) the challenging party must introduce supporting evidence or relevant legal authority.'" Id. (alterations in original) (quoting Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968). ¶ 3 In this case, Defendant directs our attention to the portion of the trial transcript wherein defense counsel moved for a directed verdict and argues that counsel raised the merger doctrine in her directed verdict argument sufficiently to alert the trial court to the issue and give the court an opportunity to address it. The directed verdict argument defense counsel raised with the trial court is as follows: MS. CHESNUT: Your Honor, I would ask the Court to enter a directed verdict of not guilty on count 2, the attempted theft, on the basis that there seems to be lacking any evidence that the defendant obtained any property through—through a deception in this case. He didn't even have possession of this car until after there was a valid down payment. And additionally, there is only one act that's describing the evidence out of giving an invalid check to this car dealership. *163 And so I would say probably there's a merger issue with the attempted theft count and would ask that the Court enter a directed verdict on that count. I'd also— THE COURT: Go ahead. MS. CHESNUT: Just briefly, I'd also ask the Court to enter a directed verdict on count 1, the forgery, on the basis of lack of evidence of intent. (Emphases added.) Although the record reflects that defense counsel mentioned the possibility of a merger issue in the instant case, this was not sufficient to preserve the issue for appeal as the issue was not raised to a level of consciousness to allow the trial court an adequate opportunity to address it nor did counsel introduce supporting evidence or relevant legal authority. Cf. State v. Worwood, 2007 UT 47, ¶ 16, 164 P.3d 397 ("[P]erfunctorily mentioning an issue, without more, does not preserve it for appeal."); Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543. In fact, the record demonstrates that defense counsel failed to pursue the merger issue after it became apparent that the trial court had not considered defense counsel's merger theory when it denied the directed verdict motion on the basis that the "State has certainly presented enough evidence that viewing the evidence in the light most favorable to the State, the elements have been shown." ¶ 4 Because Defendant's merger argument was not presented to the trial court in a way that would have alerted the court of the necessity to rule on that issue, nor does Defendant argue that the trial court committed plain error or that the case involves exceptional circumstances, see Lunt v. Lance, 2008 UT App 192, ¶¶ 23-24, 186 P.3d 978, we decline to address it on appeal. ¶ 5 Affirmed. ¶ 6 WE CONCUR: CAROLYN B. McHUGH, Associate Presiding Judge and GREGORY K. ORME, Judge.

Fourth Court of Appeals San Antonio, Texas April 22, 2015 No. 04-15-00220-CV IN THE INT OF JHL, From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2013-PA-01904 Honorable Charles E. Montemayor, Judge Presiding ORDER It appears this court may not have jurisdiction over the appeal filed by Priscilla Levine. This is an accelerated appeal and the notice of appeal must be filed within twenty days after the judgment is signed in such an appeal. See TEX. R. APP. P. 26.1(b). Motions for new trial and other specific post-judgment motions will not extend the time to perfect an accelerated appeal. See TEX. R. APP. P. 28.1(b). In this case, the trial court signed its Order of Termination on June 20, 2014. Therefore, any notice of appeal was due on July 10, 2014. Priscilla Levine filed her notice of appeal on April 10, 2015. Accordingly, Priscilla Levine’s notice of appeal was not timely. It is therefore ORDERED that Priscilla Levine file no later than May 4, 2015 a response presenting a reasonable explanation for failing to file the notice of appeal in a timely manner. If Priscilla Levine fails to respond within the time provided, her appeal will be dismissed. See TEX. R. APP. P. 42.3(a), (c). All appellate filing dates are ABATED pending further orders from this court. _________________________________ Sandee Bryan Marion, Chief Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 22nd day of April, 2015. ___________________________________ Keith E. Hottle Clerk of Court 

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT January 9, 2013 Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 12-3256 (D.C. Nos. 2:11-CV-02575-KHV and RICHARD D. BURK , 2:08-CR-20128-KHV-1) (D. Kan.) Defendant - Appellant. ORDER DENYING CERTIFICATE OF APPEALABILITY* Before MURPHY, EBEL and HARTZ, Circuit Judges. Defendant-Appellant Richard Burk seeks a certificate of appealability (“COA”), see 28 U.S.C. § 2253(c), in order to appeal the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Burk pled guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a), and was sentenced to 189 months in prison. That sentence fell within Burk’s advisory guideline range of 168 to 210 months in prison. At sentencing, Burk unsuccessfully moved for a below-guideline sentence. In his § 2255 motion, Burk primarily complains that his attorney ineffectively argued for a below- * This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. guideline sentence. Burk specifically argues that defense counsel provided ineffective representation when he; 1) failed to object to the district court’s denial of Burk’s right to allocution at sentencing; 2) failed to prepare for Burk’s sentencing by investigating Burk’s mental disorder; 3) did not discuss the results of Burk’s mental evaluation during the sentencing proceeding; and 4) failed to raise, on direct appeal, the district court’s denial of Burk’s right to allocution.1 Burk is entitled to a COA if he can make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing requires Burk to demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the [§ 2255 motion] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks omitted). Burk has failed to make such a showing. In order to succeed on a claim of ineffective assistance of counsel, Burk must establish both that his attorney’s performance was deficient and that that deficiency prejudiced Burk’s defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, Burk “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In this case, then, Burk must show that, but for counsel’s alleged deficient 1 Burk also initially raised a claim in his § 2255 motion alleging that the district judge was biased, but Burk later voluntarily dismissed that claim. 2 performance, the district court would have exercised its discretion to impose a below- guideline sentence. See United States v. Sanders, 372 F.3d 1183, 1186 (10th Cir. 2004). Burk has not made such a showing, and so his claims challenging the adequacy of counsel’s representation at sentencing do not warrant a COA. Further, because Burk cannot show that, but for counsel’s alleged deficient performance at sentencing, he would have received a below-guideline sentence, his claim that appellate counsel failed to raise these sentencing issues on direct appeal also does not warrant a COA. See United States v. Hollis, 552 F.3d 1191, 1194-96 (10th Cir. 2009) (rejecting claim that appellate counsel was ineffective because defendant could not establish prejudice). Therefore, we DENY Burk a COA and dismiss this appeal. ENTERED FOR THE COURT David M. Ebel Circuit Judge 3 

174 B.R. 604 (1994) In re AMERICAN FREIGHT SYSTEM, INC., Debtor. AMERICAN FREIGHT SYSTEM, INC., Plaintiff, v. INTERSTATE COMMERCE COMMISSION, an agency of the United States of America, United States of America, B.F. Goodrich a/k/a Uniroyal Goodrich Tire, Interplastic Company and Higbee Company, Defendants. Bankruptcy No. 88-41050-11. Adv. No. 94-7011. United States Bankruptcy Court, D. Kansas. November 17, 1994. *605 Kurt Stohlgren, Kansas City, MO, for A.F.S. Virginia Strasser, Washington, DC, for I.C.C. Brendan Collins, Dept. of Justice, Washington, DC, for U.S. Scott J. Goldstein, Kansas City, MO, for Uniroyal Goodrich. Joseph M. Weiler, Topeka, KS, for Interplastic. Anthony D. Clum, Topeka, KS, for Higbee. Paul Hoffman, Kansas City, MO, for American Safety Razor. MEMORANDUM OPINION AND ORDER JULIE A. ROBINSON, Bankruptcy Judge. This matter comes before the Court to determine whether American Freight System, Inc. ("AFS"), is "no longer transporting property" within the meaning of 49 U.S.C. § 10701(f)(1)(A). *606 JURISDICTION The Court has jurisdiction over this proceeding. 28 U.S.C. § 1334. This is a core proceeding. 28 U.S.C. § 157(b)(2)(A) and (O). The Negotiated Rates Act of 1993 also confers jurisdiction on this Court. 49 U.S.C. § 10701(f)(1). FINDINGS OF FACT Plaintiff AFS, shipper/defendant Interplastic Company ("Interplastic"), and defendants Interstate Commerce Commission ("ICC") and the United States of America ("USA") stipulated in pertinent part as follows. In 1991 the Court confirmed a Joint Plan of Reorganization of AFS and its parent company American Carriers, Inc., which subsequently changed its name to Anuhco. In connection with such Joint Plan, the Court approved a Disclosure Statement wherein AFS and Anuhco contemplated the joint acquisition and subsequent operation of a new business, and provided that in order to facilitate such acquisitions, Anuhco could request a loan from AFS up to an aggregate amount of $2.8 million. The Disclosure Statement further provided that AFS would engage in business following confirmation of the Plan. Pursuant to the Joint Plan, AFS was to advance to Anuhco $50,000 per quarter for two years to help defray Anuhco's operating costs. In addition, Anuhco could employ AFS to render services, provided AFS's rates were competitive. Prior to filing the Joint Plan, from 1989 through 1991, and thereafter, AFS and Anuhco acquired ownership of Crouse Cartage Company ("Crouse"). Crouse was a motor common carrier. AFS loaned Anuhco $2.8 million to facilitate the acquisition and in addition AFS purchased 3½% of Crouse's stock. Anuhco owned all other stock in Crouse. In February, 1993, Anuhco repaid the $2.8 million loan and purchased AFS's stock in Crouse. Following that purchase, Anuhco became the owner of 100% of the outstanding stock in Crouse. Anuhco also owns 100% of the outstanding stock in AFS. AFS has no current ownership interest in Crouse. AFS does not own subsidiary companies. Anuhco rents corporate office space from AFS. Crouse leases a transportation terminal from AFS and has purchased three such terminals from AFS in the past. AFS's Disclosure Statement[1] reflects that prior to August of 1988, AFS was the principal trucking operation of American Carriers, Inc. During the first quarter of 1988, AFS employed over 9,000 persons including over 6,900 truck drivers and terminal employees; and operated 258 freight terminals. In its First Amended Complaint for Declaratory and Injunctive Relief, filed in this adversary proceeding, AFS states that "[p]rior to its bankruptcy, AFS was engaged in business as a common carrier of property by motor vehicle. . . ." Currently, AFS does not own or operate any tractors, trailers or trucks. AFS does not have current, effective tariffs on file with the ICC, nor does it have a current certificate of operation from the ICC. AFS does not have any current insurance policies on file with the ICC for bodily injury, property damage and cargo liability. AFS does not advertise, dispatch, solicit loads, prepare original freight bills or documentation, bill for current invoices, or prepare bills of lading. Crouse owns and operates 48 terminals, 483 tractors and trucks, and 869 trailers. Crouse advertises, dispatches, solicits loads, prepares original freight bills or documentation, bills for current invoices, prepares bills of lading, and undertakes other activities incidental to freight transportation. CONCLUSIONS OF LAW AFS has filed a number of adversary actions in its Chapter 11 bankruptcy, seeking collection of undercharges for past motor vehicle transportation services rendered prior to 1989. On December 3, 1993, the Negotiated Rates Act (Pub.L. No. 103-180, 107 Stat. 2044) became effective ("NRA"). It modified the Interstate Commerce Act, by inter alia, allowing shipper-defendants in undercharge *607 actions (1) to settle certain undercharge claims through prescribed settlement formulas; (2) to be relieved from all liability above the charges originally billed and paid if the shipper qualifies as a "small-business concern," or a tax-exempt organization, or if the cargo involved in the claim is recyclable materials; or (3) for transportation provided before September 30, 1990, to be free from undercharges, the collection of which the ICC determines to be an unreasonable practice. See Section 2(a) and (e) of the NRA, codified at 49 U.S.C. § 10701(f). AFS contends that the NRA does not apply to it, such that the settlement provisions are not available to the defendant shippers in the adversary actions filed in this bankruptcy. Defendant/shipper Interplastic, along with B.F. Goodrich[2], the ICC and the USA take the position that the NRA does apply to AFS, because it is no longer transporting property. The salient issue is the meaning of language added by the NRA to 49 U.S.C. § 10701(f), which sets forth the procedures for resolving claims involving unfiled, negotiated transportation rates. That section states in pertinent part: (1) In general. — When a claim is made by a motor carrier of property (other than a household goods carrier) providing transportation subject to the jurisdiction of the Commission under subchapter II of chapter 105 of this title, by a freight forwarder (other than a household goods freight forwarder), or by a party representing such a carrier or freight forwarder regarding the collection of rates or charges for such transportation in addition to those originally billed and collected by the carrier or freight forwarder for such transportation, the person against whom the claim is made may elect to satisfy the claim under the provisions of paragraph (2), (3), or (4) of this subsection, upon showing that — (A) the carrier or freight forwarder is no longer transporting property or is transporting property for the purpose of avoiding the application of this subsection; . . . 49 U.S.C. § 10701(f)(1) [emphasis added]. When interpreting a statute, the Court's inquiry must begin with the language in the statute; and where the language is plain, "the sole function of the courts is to enforce it according to its terms." United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)). Section 10701(f) provides that a respondent to a motor carrier's claim may resolve the dispute by electing certain settlement provisions set out in subsections (2), (3) and (4) of the statute, if the respondent shows that the carrier is no longer transporting property. The Court must first determine which claimants the statute applies to. The statute clearly states that it applies when a "motor carrier of property . . . providing transportation subject to the jurisdiction of the Commission" has filed a claim. "Motor carrier" is defined in § 10102(13) of the Interstate Commerce Act as a motor common carrier or a motor contract carrier, which are in turn defined in §§ 10102(14) and (15) of the Interstate Commerce Act. Motor common carrier is defined at § 10102(14), as: . . . a person holding itself out to the general public to provide motor vehicle transportation for compensation over regular or irregular routes, or both. And, motor contract carrier similarly is defined at § 10102(15) as someone providing "motor vehicle transportation." Motor vehicle is defined at § 10102(17) as: . . . a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation, or a combination determined by the Commission, but does not include a vehicle, locomotive, or car operated only on a rail, or a trolley bus operated by electric power from a fixed overhead wire, and *608 providing local passenger transportation similar to street-railway service. Finally, transportation is defined at § 10102(26) as including: (A) a locomotive, car, vehicle, motor vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, regardless of ownership or an agreement concerning use; and (B) services related to that movement, including receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, and interchange of passengers and property. Reading these statutory definitions together, it is evident that the "motor carriers of property" that come within the purview of § 10701(f) are those that provide motor vehicle transportation, that is those who move property by using motor vehicles, tractors, trucks or trailers drawn or propelled by mechanical power on highways. Clearly, at the time AFS's undercharge claims arose, it was a motor carrier of property. AFS's undercharge claims resulted from it providing motor vehicle transportation. As such, AFS's claims clearly fall within the language in § 10701(f)(1). Therefore, the Court must now determine whether AFS is "no longer transporting property" within the meaning of § 10701(f)(1)(A). The defendants urge the Court to find the language unambiguous and consider the plain meaning of "no longer transporting property," as no longer providing motor vehicle transportation. AFS urges the Court to find the language ambiguous and to utilize the statutory definition of "transportation" found at 49 U.S.C. § 10102(28), which would include not only trucking, but services related to trucking. If the Court adopts AFS's interpretation, AFS may be still "transporting" property, in its capacity as the owner or lessor of six freight terminals, and thus the provider of services related to storage or interchange of property. If the Court agrees with the defendants' interpretation, AFS is no longer transporting property, as there is no dispute that AFS is no longer a trucking company or providing motor vehicle transportation. AFS's analysis fails in several respects. First, it is not clear that AFS is providing transportation even under the broad definition in § 10102(28). Transportation is defined as owning or using an instrumentality to move property and providing services related to that movement. The plain language of the statute indicates that those who provide services relating to the movement of property but who do not own or use instrumentalities for the movement of property, do not provide transportation. The statute defines transportation as having two components, movement and related services. Even if AFS is providing "transportation" within the meaning of § 10102(26), AFS is not providing "motor vehicle transportation." AFS neither owns, uses nor operates motor vehicles, trucks, trailers or other mechanically powered instrumentalities propelled or drawn on a highway in the movement of property. AFS provides a tangential service, it owns or leases storage facilities to others who store property in transit. Thus, AFS is not providing "motor vehicle transportation." The court in PNH Corp. v. Hullquist Corp., 843 F.2d 586 (1st Cir.1988), likewise found that "motor vehicle transportation" was not being provided. In that case, a shipper brought suit against carriers under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707, to recover for a loss of cargo. The first carrier dropped off the load at Hullquist, which operated a storage facility where the cargo was stored until the second carrier picked it up. Hullquist argued that it was not a common or contract carrier within the meaning of the Carmack Amendment and thus bore no liability for the loss. The court found that storage is a service related to the motor carrier's carriage and delivery and thus constituted transportation, as defined by § 10102(28). Id. at 590. The court seemed to ignore the plain language of § 10102(28), which defined transportation as providing the instrumentality and related services. In any case, the court went on to indicate, in dictum, that even if Hullquist was providing transportation, it was not providing "motor vehicle" *609 transportation, precisely because it was not using a vehicle, tractor, or trailer on a highway. Id. at 591. Thus, the court concluded that Hullquist's activities were outside the scope of the Carmack Amendment because a warehouseman is not engaging in motor vehicle transportation. Id. Next, the Court must determine whether the fact that AFS is no longer providing motor vehicle transportation is equivalent to "no longer transporting property" within § 10701(f)(1)(A). The parties in this case are at odds as to the meaning of "no longer transporting property." The defendants contend that it means the same thing as the language in the body of § 10701(f), that the motor carrier is no longer providing motor vehicle transportation.[3] AFS contends that it means that the carrier is no longer providing any transportation, including both movement and services related to movement of property. The Court finds that there is no ambiguity in the language of § 10701(f), and "no longer transporting property" means no longer providing motor vehicle transportation. The language of § 10701(f)(1)(A) states that the settlement provisions apply when the "carrier" is "no longer transporting property." But, it is clear from the context of the statute, that "carrier" is merely a shorthand reference to "motor carrier of property," the description of the type of claimants in the body of § 10701(f)(1). Thus, it is evident that the settlement provisions apply when a motor carrier of property has made an undercharge claim, and that motor carrier of property is no longer providing motor vehicle transportation. It follows then, that AFS is "no longer transporting property" such that the respondents to AFS's undercharge claims are entitled to elect into certain settlement provisions.[4] AFS alternatively argues that even if AFS is no longer transporting property, the activities and operations of Crouse are "sufficient to confer status upon AFS as an entity transporting property." Crouse and AFS are wholly owned by Anuhco. AFS has no ownership interest in Crouse, nor does Crouse have any ownership interest in AFS. Anuhco, AFS and Crouse do share some directors and officers. AFS and Crouse share no identity of customers, rates, routes or employees. Anuhco, AFS and Crouse file consolidated income tax returns and their financial results are consolidated in Anuhco's filings with the Securities and Exchange Commission. AFS leases a terminal to Crouse and has sold three other terminals to Crouse. AFS and Crouse have no other affiliation. AFS contends that their contacts are sufficient to render AFS and Crouse the same entity, and relies on the "single system doctrine" citing Louisville & Jeffersonville Bridge and R.R. Co. Merger, Etc., 295 I.C.C. 11 (1956), and Alleghany Corp. v. Breswick and Co., 353 U.S. 151, 77 S.Ct. 763, 1 L.Ed.2d 726 (1957). That doctrine is an interpretation of 49 U.S.C. § 11343(a)(4) which provides that a noncarrier may not acquire control of at least two carriers subject to ICC jurisdiction, unless that noncarrier obtains approval and authorization of the ICC. The doctrine provides that if a noncarrier acquires a single established carrier system, the noncarrier is not required to get the ICC's blessing if the single carrier system happens to be comprised of a number of corporate entities. AFS contends that Crouse, Anuhco and AFS are part of a single carrier system. It is unnecessary to further examine AFS's relationship with Crouse and Anuhco, because an extension of the single system doctrine to the issue at hand would do violence to the plain meaning of § 10701(f). For the reasons discussed previously, the Court must compare the nature of AFS's transportation at the time of the undercharges, with the nature of its transportation now. At the time of the undercharges, AFS was a trucking company, moving property. The undercharges *610 were based on AFS's activity, not the activity of Crouse or any other entity. The Court must focus on the substance of what AFS was doing before, with the substance of what it is doing now. Changes in form are irrelevant. The fact that AFS may have changed the form of its operation, the fact that it may have changed ownership or management is not what is important. The critical inquiry is whether AFS is still transporting property in the sense that it was at the time of the undercharges. It is not. And, the fact that in the interim AFS has ceased trucking and has been acquired by a company that also owns a trucking company, does not mean that AFS is still transporting property as it had before. Thus, whether AFS tries to bootstrap onto Crouse's trucking activities through an "imputation" theory, a negative piercing of the corporate veil, the single system doctrine, or some other theory, is inapposite.[5] The Court will only focus on AFS's activities at the time of the undercharges and AFS's activities now. If an undercharge claimant can defeat application of the NRA by changing its ownership, then the second clause of § 10701(f)(1), "transporting property for the purpose of avoiding the application of this subsection;" is rendered meaningless. IT IS THEREFORE ORDERED BY THE COURT that AFS is no longer transporting property within the meaning of 49 U.S.C. § 10701(f)(1)(A), and the Negotiated Rates Act of 1993 applies to AFS. This Memorandum shall constitute findings of fact and conclusions of law under Rule 7052 of the Federal Rules of Bankruptcy Procedure and Rule 52(a) of the Federal Rules of Civil Procedure. A judgment based on this ruling will be entered on a separate document as required by Rule 9021 of the Federal Rules of Bankruptcy Procedure and Rule 58 of the Federal Rules of Civil Procedure. IT IS SO ORDERED. NOTES [1] The parties stipulated to certain portions of the Disclosure Statement. The Court reviewed the Disclosure Statement in its entirety. [2] B.F. Goodrich's pleadings are also filed on behalf of some other defendant shippers: Aristokraft, Inc.; J & S Capital, Inc.; Silver Burdette Press, Inc.; Wilson Jones Company; and Graphic Technology, Inc. In addition, defendant/shipper American Safety Razor has filed an amicus brief that joins in and incorporates the brief filed by Interplastic. [3] The defendants argue that transportation is limited to trucking, that is the movement of property, and does not include services related to the movement of property, as § 10102(28) suggests. [4] It should be noted that some of the respondents claim that they are small business concerns and thus exempt from any liability for undercharges pursuant to 49 U.S.C. § 10701(f)(9)(A). The Court does not decide in this opinion which respondents are small business concerns exempt from the provisions of this statute. [5] AFS's single system theory is confounded by Anuhco's failure to make any of the requisite filings with the ICC for a consolidation or merger of entities; nor did Crouse adopt AFS's tariffs as the statute requires a carrier's successor in interest to do. See 49 U.S.C. § 11343.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2026 SYLVIE NYATO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: August 27, 2009 Decided: September 16, 2009 Before MOTZ, KING, and SHEDD, Circuit Judges. Petition denied by unpublished per curiam opinion. Peter Nyoh, PETER NYOH AND ASSOCIATES, Silver Spring, Maryland, for Petitioner. Michael F. Hertz, Acting Assistant Attorney General, M. Jocelyn Lopez Wright, Jessica Segall, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sylvie Nyato, a native and citizen of Cameroon, seeks review of an order of the Board of Immigration Appeals (“Board”) dismissing her appeal from the Immigration Judge’s (“IJ”) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture. Nyato challenges the IJ’s adverse credibility finding, as affirmed by the Board. For the reasons set forth below, we deny the petition for review. We will uphold an adverse credibility determination if it is supported by substantial evidence, see Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006), and reverse the Board’s decision only if the evidence “was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.” Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002) (internal quotations and citations omitted). Having reviewed the administrative record and the Board’s decision, we find that substantial evidence supports the immigration judge’s adverse credibility finding, as affirmed by the Board, and the ruling that Nyato failed to establish past persecution or a well-founded fear of future persecution as necessary to establish eligibility for asylum. See 8 U.S.C. § 1158(b)(1)(B)(i), (ii) (2006) (providing that the burden of proof is on the alien to establish eligibility for asylum); 8 2 C.F.R. § 1208.13(a) (2006) (same). Because the record does not compel a different result, we will not disturb the Board’s denial of Nyato’s application for asylum, withholding of removal, and protection under the Convention Against Torture. Accordingly, we deny the petition for review. 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. PETITION DENIED 3 

18 Cal.3d 641 (1976) 557 P.2d 104 134 Cal. Rptr. 813 JOHN FRANCIS LINHART, Plaintiff and Respondent, v. SCOTT DONALD NELSON et al., Defendants and Appellants. Docket No. S.F. 23493. Supreme Court of California. December 21, 1976. *642 COUNSEL Ericksen, Ericksen, Lynch, Mackenroth & Arbuthnot, Robert A. Seligson and Patrick A. Nielson for Defendants and Respondents. Memering, Stumbos, DeMers, Ford & Norris, William B. Boone and Terrence J. Ford for Plaintiff and Respondent. OPINION CLARK, J. Defendants appeal from judgment in favor of plaintiff for personal injury following an automobile accident. We granted hearing to consider whether a party has a right to subpoena jurors to testify in support of a motion for new trial. *643 Defendants moved for a new trial on the basis of jury misconduct. In support of this motion, they filed their investigator's affidavit. This affidavit alleges that the investigator interviewed eight jurors following trial, that four jurors indicated liability insurance had been mentioned during the jury's deliberations, and that three of these jurors also stated attorney fees had been considered. Another juror said that while attorney fees had been mentioned, they had not been used as an argument to increase the award. Further, the jurors discussed the factors relied upon in finding liability and damage. The investigator then prepared affidavits for the five jurors who indicated a willingness to sign. However, when he returned to obtain the signatures he was informed plaintiff's attorney had telephoned in the interim and "cautioned" the jurors against signing.[1] Only the foreman signed the prepared affidavit. The foreman's affidavit states that attorney fees, medical expenses, pain and suffering, and the contention that the greater the award the more money plaintiff's attorney would receive had been discussed during deliberations. Plaintiff filed two affidavits in opposition to the motion for new trial — a second affidavit by the foreman and an affidavit of another juror. These affidavits stated that the subjects of attorney fees and insurance had been discussed, but that the discussion had ended after other jurors pointed out that there was no evidence on those subjects and that their verdict was to be based only on the evidence and the law as instructed by the judge. Further, these affidavits state the ultimate award had been based solely on compensation for injury, disability, and medical expense. Defendants subpoenaed three jurors to testify at the hearing on the new trial motion. The trial court refused to admit testimony from the jurors and denied the motion for new trial. Code of Civil Procedure section 657 specifies the grounds for a new trial. The first four subdivisions include: (1) irregularity in proceedings or any order or abuse of discretion preventing a fair trial; (2) misconduct of the jury; (3) accident or surprise; and (4) newly discovered evidence. Code of Civil Procedure section 658 provides: "When the application is made for a cause mentioned in the first, second, third and fourth subdivisions of the last section, it must be made upon affidavits; *644 otherwise, it must be made on the minutes of the court." Section 659a of the code establishes time limits for filing affidavits and counteraffidavits. (1) "As the motion for a new trial finds both its source and its limitations in the statutes (Malkasian v. Irwin (1964) supra, 61 Cal.2d 738, 745 [40 Cal. Rptr. 78, 394 P.2d 822]), the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed [citations]." (Mercer v. Perez (1968) 68 Cal.2d 104, 118 [65 Cal. Rptr. 315, 436 P.2d 315].) In Cembrook v. Sterling Drug Inc. (1964) 231 Cal. App.2d 52, 65-67 [41 Cal. Rptr. 492], the court upheld the rejection of testimony from subpoenaed witnesses offered in support of a motion for new trial. Recognizing the proceedings to be strictly statutory, the court held that when the motion is based on one of the first four grounds of section 657, and on facts outside the record, section 658 limits the presentation exclusively to affidavits. The grounds for new trial set forth in the first four subdivisions of 657 are obviously broad. To allow a disappointed litigant to call witnesses in support of his motion could effectively allow retrial of his case. Because of the short time limitations on new trial proceedings (Code Civ. Proc., §§ 659, 660), parties opposing the motion would be unable to discover proposed testimony prior to hearing, therefore being compelled to subpoena witnesses to guard against surprise and newly discovered evidence. The statutes were not so intended. (2) Rather, the provision requiring the moving party to file all affidavits within 10 days of notice of motion (Code Civ. Proc., § 659a) makes clear that opposing parties are to be apprised not only of grounds but also of the entire presentation in time to allow counteraffidavits — and without the burden of gathering witnesses. While a new trial hearing based on a charge of jury misconduct would not necessarily constitute retrial of the merits, permitting jurors or other witnesses to testify for one party would mean that opposing parties — unaware of the proposed testimony — would be obligated to subpoena all jurors and all other witnesses in preparation for hearing. Moreover, permitting counsel for the losing party to interrogate unwilling trial jurors touches the integrity of our venerable jury process. First, once aware that after sitting through a lengthy trial he himself may be placed on trial, only the most courageous prospective juror will not seek excuse from service. Secondly, if jury deliberations are subject to *645 compulsory disclosure, independent thought and debate will surely be stifled. (Clark v. United States (1932) 289 U.S. 1, 13 [77 L.Ed. 993, 999, 53 S.Ct. 465].) We conclude that a motion for new trial on grounds enumerated in the first four subdivisions of section 657 must be presented solely by affidavit. Insofar as it is contrary, Saltzman v. Sunset Tel. etc. Co. (1899) 125 Cal. 501 [58 P. 169], is overruled.[2] Having examined defendants' other contentions, we find them of insufficient merit to warrant discussion. The judgment is affirmed. Wright, C.J., McComb, J., Tobriner, J., Mosk, J., Sullivan, J., and Richardson, J., concurred. Appellants' petition for a rehearing was denied January 19, 1977. NOTES [1] Four of the five had voted in favor of the eleven to one verdict. [2] Defendants inaccurately contend Bardessono v. Michels (1970) 3 Cal.3d 780, 793-794 [91 Cal. Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717], holds that a litigant may call witnesses in support of motion for new trial. The Bardessono court merely noted the Saltzman holding, neither applying it nor relying upon it in the opinion.

Digitally signed by Reporter of Decisions Illinois Official Reports Reason: I attest to the accuracy and integrity of this document Date: 2018.07.10 Appellate Court 14:23:08 -05'00' In re M.S., 2018 IL App (1st) 172659 Appellate Court In re M.S., a Minor (The People of the State of Illinois, Caption Petitioner-Appellee, v. Marie H., Respondent-Appellant). District & No. First District, Second Division Docket No. 1-17-2659 Filed May 1, 2018 Decision Under Appeal from the Circuit Court of Cook County, No. 13-JA-344; the Review Hon. Kimberly D. Lewis, Judge, presiding. Judgment Affirmed. Counsel on Amy P. Campanelli, Public Defender, of Chicago (Suzanne A. Appeal Isaacson, Assistant Public Defender, of counsel), for appellant. Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Nancy Kisicki, and Gina DiVito, Assistant State’s Attorneys, of counsel), for the People. Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain and Jean M. Agathen, of counsel), guardian ad litem.  Panel JUSTICE HYMAN delivered the judgment of the court, with opinion Presiding Justice Neville and Justice Pucinski concurred in the judgment and opinion. OPINION ¶1 M.S. and his older brother, J.S., were made wards of the court and have lived with foster parent Crystal B. since 2013. Caseworkers found that both boys were thriving, that Crystal’s home was a safe and appropriate placement for them, and that it would be in the children’s best interests to appoint Crystal as their guardian. The boys wanted to continue living with Crystal and did not want to return to their mother’s home. After the trial court appointed Crystal as J.S.’s guardian (In re J.S., 2017 IL App (1st) 170506-U), the court granted the State’s petition for the appointment of Crystal as M.S.’s guardian. M.S.’s mother, Marie H., argues the trial court violated the Juvenile Court Act of 1987 and her due process rights by having an off-the-record, ex parte conversation with M.S. before the guardianship hearing and relying on that conversation, in part, in deciding to appoint Crystal as guardian. Marie asks that we remand for a new guardianship hearing before a different judge. ¶2 The facts and law before us justify the trial court’s order appointing Crystal the guardian of M.S. so we affirm. Marie’s attorney did not object during the hearing when the trial judge said she had a conversation with M.S. If Marie had raised an issue about the conversation, the trial court could have addressed it. Thus, Marie forfeited the issue. And Marie has not shown she was prejudiced by the conversation as multiple witnesses testified that M.S. said he wanted to continue living with Crystal. ¶3 Background ¶4 M.S., now age 13, is the son of Marie H. and A.S. (A.S. is not party to this appeal). In July 2012, the State filed a petition in Kane County for adjudication of wardship for M.S., as well as his older brother, J.S., and his seven other siblings. The petition alleged neglect of M.S. due to an environment injurious to his welfare and that he was without care necessary for his well-being, including adequate food, clothing, and shelter. Specifically, the petition stated that M.S. resided in a home without electricity or sufficient food and that his mother’s substance abuse issues and domestic violence in the home placed him at risk of harm. ¶5 In December 2012, the Kane County circuit court entered a dispositional order adjudicating M.S. neglected. He was made a ward of the court and placed in the guardianship of the Department of Children and Family Services (DCFS). The court found both parents unfit and unable to care for, protect, train, educate, or discipline M.S. for reasons other than financial circumstances alone. The court cited a history of domestic violence in the home and noted that services had begun but the parents needed to make more progress and establish an adequate care plan. The order stated that while reasonable efforts and appropriate services aimed at family reunification had been made to keep M.S. in the home, these actions have not eliminated the necessity for his removal, as the parents failed to cooperate with services in two previous intact cases. The permanency goal was set as return home in 12 months and supervised visitation was ordered. -2- ¶6 When M.S.’s parents moved, the case was transferred to Cook County. In 2013, M.S. and his brother, J.S., were placed in the home of foster parent, Crystal B. In December 2013, after a permanency hearing, the trial court determined that M.S. was doing well in his foster home. M.S.’s parents were compliant with services but needed to make more progress. M.S.’s permanency goal was to return home within 12 months. ¶7 Ten months later, after a permanency hearing at which both parents were present, the permanency goal was changed to private guardianship, which remained the goal for the remainder of the case. ¶8 In 2016, a new trial judge held a permanency hearing for M.S. and J.S. By that time, Marie’s other children had been successfully returned home, and M.S. and J.S. continued to live with Crystal. The caseworker testified that the boys had a planned visit home on Thanksgiving 2015. Before the visit, Marie called Crystal and told her M.S. and J.S. would be returning home and that she intended to sue DCFS. Then, J.S. received a text from his sister saying he was “breaking his mom’s heart for not wanting to come home.” J.S. responded by text that he and his brother were not supposed to discuss the case. Crystal brought the boys to Marie’s home, but shortly after their arrival, J.S. and his sister got into an argument, and J.S. called Crystal and asked her to pick them up. ¶9 The caseworker testified that after Thanksgiving the brothers did not want further visitations. A visit was scheduled for February 2016, but Marie texted J.S., and the boys changed their minds. They told the caseworker that Marie always wants to “discuss the case and ask them why they are not returning home.” Although they desired to see their siblings, the brothers considered the visits to their mother’s home to be uncomfortable because of the conversations about the case. ¶ 10 According to the caseworker, M.S. did well in school and had an individualized education program (IEP), with Crystal monitoring his homework and M.S. receiving tutoring services. He participated in extracurricular activities and played on two basketball teams. M.S. told the caseworker he wanted to remain with his brother with guardianship as the goal; he does not wish to return to his parents due to the history in the home. ¶ 11 M.S.’s mother, Marie, told the trial court that she has nine children and she does not “think that it’s right to separate the two, because it’s hurting the whole home. My kids want their brothers home. We want our kids home.” The trial judge told Marie, “it’s evident you love your children,” and praised Marie for completing services so that her other children could return home. But, the judge stated, “The hard part of the conversation is that your other two children are getting to the age where they get to voice their opinions. And what I have to do is not only consider what you want, but I also have to consider what they want, and also what’s in their best interests. The testimony I got was your two kids love you. They don’t want their rights terminated; they want you to be their parents. *** And, you know, there is one side of the coin where I can say they are kids, they don’t know what they want. On the flip side of that same coin, however, they have gone through quite a bit of experience for their young ages. And they’ve made a determination that they are settled, they are doing well, and they want to stay settled where they are. But that doesn’t mean they don’t want to visit. They want to have connections; they want to be a family but they don’t want to live at home.” -3- ¶ 12 The trial judge advised the parents that they were not to discuss the case with M.S. and J.S. While the boys wanted to visit, the trial court said it would not force a visit as long as the parents continued to discuss the case with them. The court explained to the parents that should guardianship be granted, the boys continue to be their children and their parental rights would not be terminated. The court ordered supervised visitation and entered an order with the goal of guardianship. ¶ 13 In January 2017, the trial court held a combined permanency hearing for M.S. and J.S. Both boys were in court. Marie was not present. Addressing the judge in open court, J.S. said he did not want to return to Marie’s home because he did not trust his mother. He said he had been living in Crystal’s home for nearly four years and was “very, very comfortable” there. He did not feel obligated to return to his mother’s home because she tells him things that are not true, and he’s worried he “might just walk into a trap.” ¶ 14 The caseworker testified she had no concerns about M.S.’s health or safety and no reported complaints or unusual incidents. Crystal involved herself in his schooling, and the agency worked with Crystal and M.S.’s school to make sure M.S. adhered to his IEP and received an appropriate education. M.S. wanted Crystal to be appointed his guardian, and it was still in his best interest. ¶ 15 Crystal testified that M.S. and J.S. live with her and that no one else lives in the home. She said she is supportive of a relationship between the boys and their parents. ¶ 16 At the end of the hearing, the trial court granted DCFS’s motion to place J.S. in private guardianship with Crystal and closed his case. The court also set private guardianship as M.S.’s permanency goal. At a status hearing, the caseworker testified that the subsidy for M.S. had been approved by DCFS and that the case would go to legal screening that day to complete the guardianship goal. ¶ 17 In September 2017, DCFS filed a motion to vacate its guardianship of M.S., terminate wardship, and close the case. DCFS also filed a petition to appoint Crystal as M.S.’s guardian. At the hearing on DCFS’s motions, Marie’s attorney was present, but not Marie. At the start of the hearing, the trial judge said, “I can just briefly indicate that [M.S.] has indicated, just as a synopsis, that he really likes staying with [Crystal] and he wants to stay there and he feels that he has enriching activities and that she’s supportive of his education, tutoring. And he enjoys basketball, et cetera.” ¶ 18 At the hearing, the caseworker testified that M.S. and J.S. had been living with Crystal for about 4½ years. M.S. and Crystal had a great bond and an emotional attachment, as it appeared that they loved each other. M.S. told the caseworker he wanted to stay in Crystal’s home. Adoption was ruled out as Marie had successfully completed services. Returning to Marie’s home also was ruled out as M.S. said he did not want to return to his mother’s care. The agency recommended that Crystal be appointed M.S.’s guardian. ¶ 19 On cross-examination, the caseworker stated that Crystal, who is a teacher, has been a strong educational advocate for M.S. She was influential in getting his IEP modified to meet his needs and helped him transfer schools when he was being bullied. She supported his playing basketball, attended his games, and paid for him to play extra basketball on weekends. M.S.’s brother was thriving in Crystal’s home as well. She would facilitate visits with M.S., J.S., and their siblings if the boys wanted to visit them. -4- ¶ 20 Crystal testified she wants to be appointed M.S.’s guardian and is aware of all of the conditions of guardianship. She has been committed to M.S.’s education and his extracurricular activities. During the summers, she took the boys to Cincinnati, and they participate on travel basketball teams. M.S. is involved with her extended family. Indeed, her brother and father, who live nearby, consider M.S. and J.S. to be part of the family. She understood that M.S.’s parents would be entitled to reasonable visitation of at least one visit a month. And, she is willing to facilitate M.S.’s visits with them and to foster his relationships with his siblings. ¶ 21 After the parties rested, the DCFS attorney argued for Crystal as an appropriate caregiver for M.S. given that he was thriving in her home, and it was in his best interest that she be appointed his guardian. The assistant public guardian agreed, stating it is “a great home,” and “he’s always seemed happy and comfortable there and has a lot of enrichment activities.” The State supported the guardianship motion too. Marie’s attorney stated, “Natural mother opposes it. No other argument.” ¶ 22 In issuing her ruling, the trial judge said she “had the lovely opportunity to speak to [M.S.] and I enjoyed our conversation. Everyone is really proud of [M.S.]” She noted that M.S. was thriving in Crystal’s home and “has all of the support he needs.” Also, Crystal agreed to facilitate visits between M.S. and his parents, if that is what M.S. wants. She then concluded that it was “definitely in [M.S.]’s best interest for [Crystal] to become his legal guardian.” The trial court vacated DCFS’s guardianship, terminated the court’s wardship, appointed Crystal as M.S.’s guardian, and closed the case. ¶ 23 Analysis ¶ 24 Marie argues the trial court committed plain error and denied her due process rights by relying on an off-the-record, ex parte conversation with M.S. when deciding to appoint Crystal as M.S.’s guardian. Specifically, she points to the judge’s comments before the hearing that “[M.S.] has indicated *** that he really likes staying with Crystal and he wants to stay there ***” and the judge’s comment at the end of the hearing that “I had the lovely opportunity to speak to M.S.] and I enjoyed our conversation.” ¶ 25 While the record does not indicate that M.S. testified or who was present for this conversation, arguably, at least, it appears the trial judge and M.S. had a substantive conversation outside the presence of her attorney. Marie acknowledges that in some circumstances, a trial judge can speak with a minor in chambers but asserts that the Juvenile Court Act of 1987 and the due process clause of the Constitution require that those conversations take place in the presence of counsel or a court reporter, unless otherwise agreed. She argues that this conversation constitutes reversible error and asks us to remand for a hearing before a different judge. ¶ 26 Assuming a conversation outside the presence of the parties and their attorneys occurred, Marie failed to preserve the alleged error for appellate review by objecting at trial and filing a written posttrial motion addressing it. In re April C., 326 Ill. App. 3d 225, 242 (2001) (“Where a party fails to make an appropriate objection in the court below, he or she has failed to preserve the question for review and the issue is waived.”). Marie did not object or seek clarification when, before hearing testimony at the guardianship hearing, the trial judge stated that M.S. indicated he wants to continue living with Crystal. The judge’s comment at the end of the hearing that she “had the lovely opportunity to speak to [M.S.]” suggests she spoke to -5-  M.S. but not where or when. Although Marie was not in court that day, the record shows her attorney was there and her attorney had an opportunity to object. So she has forfeited the issue and cannot raise it for the first time on appeal. In re William H., 407 Ill. App. 3d 858, 869-70 (2011) (application to child custody cases). ¶ 27 Marie argues that forfeiture limits the parties and not the court, and we may relax the rules of forfeiture where an issue impacts the fundamental fairness of a proceeding and address it under the plain error rubric. See In re Tamera W., 2012 IL App (2d) 111131, ¶ 30. Even if the trial court erred and held an improper ex parte conversation with M.S., for plain error to apply, the error must be prejudicial; that is, the case must be a close one. People v. Sebby, 2017 IL 119445, ¶ 68 (citing People v. Herron, 215 Ill. 2d 167, 187 (2005)). In civil cases, the plain error rule usually applies “only where an act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process.” (Internal quotation marks omitted.) In re Marriage of Saheb, 377 Ill. App. 3d 615, 627 (2007). ¶ 28 We cannot say that the trial judge’s conversation, if it did occur outside the presence of the attorneys, was critical to the decision or potentially dispositive, as it was merely cumulative of the evidence presented by multiple witnesses. See Nassar v. County of Cook, 333 Ill. App. 3d 289, 303-04 (2002) (finding no prejudice where allegedly inadmissible testimony elicited during adverse examination of defendant doctor was cumulative of previously introduced testimony); People v. Davidson, 160 Ill. App. 3d 99, 119 (1987) (no plain error where evidence “cumulative of other evidence properly admitted”). ¶ 29 In deciding that guardianship was in M.S.’s best interest, caseworkers relied on their determination that Crystal provided a stable home for M.S. and J.S. and that M.S. and Crystal bonded over more than four years and appeared to love each other. Also, M.S.’s educational needs were being met, and he engaged in extracurricular activities. Significantly, Crystal supported M.S.’s continued relationship with his parents. ¶ 30 Caseworkers testified on multiple occasions that M.S. consistently told them he felt happy in his current living situation, wanted to continue living with Crystal, and did not want to return to his mother’s home. And, he wanted Crystal to be appointed as his guardian. As the trial judge advised Marie, she had to consider not only what the parents wanted but also what M.S. wanted, and multiple witnesses testified that M.S. wanted Crystal to be appointed his guardian. ¶ 31 To the extent that a purported off-the-record conversation factored into the trial court’s decision to appoint Crystal as M.S.’s guardian, the conversation was merely cumulative. ¶ 32 Affirmed. -6- 

679 F.3d 1301 (2012) Scott MANSFIELD, Petitioner-Appellee, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General of the State of Florida, Respondents-Appellants. No. 09-12312. United States Court of Appeals, Eleventh Circuit. May 9, 2012. *1303 Stephen D. Ake, Office of the Attorney General, Tampa, FL, for Respondents-Appellants. James L. Driscoll, Jr. (Court-Appointed), Capital Collateral Regional Counsel-Middle Region, Tampa, FL, for Petitioner-Appellee. Before EDMONDSON, MARCUS and PRYOR, Circuit Judges. MARCUS, Circuit Judge: In this capital case, the State of Florida appeals the district court's order granting habeas relief to petitioner Scott Mansfield on his claim that the admission at trial of a videotape of his custodial interrogation by law enforcement officers, when he never received any Miranda warnings, yielded prejudicial constitutional error. On direct appeal, the Florida Supreme Court determined that the admission of the videotaped interrogation was error, but concluded that the error was harmless beyond a reasonable doubt. The district court disagreed, determining that the Florida Supreme Court's harmless error determination was an objectively unreasonable application of clearly established federal law and that the admission of the videotape had a substantial and injurious effect on the jury's verdict. After thorough review of the record, and having had the benefit of oral argument, we reverse the judgment of the district court. As we see it, the district court essentially engaged in its own factfinding process, failing to accept as correct (as it was obliged to do) some of the unrebutted factual findings of the Florida Supreme Court that credited significant pieces of the State's case against Mansfield. The district court also afforded precious little weight to other pieces of evidence that the Florida Supreme Court fairly relied upon, and ignored entirely still other evidence incriminating Mansfield. Viewing the entirety of the evidence in light of the full record and according proper deference to the Florida Supreme Court's factfinding process, we are constrained to conclude that the admission of the videotaped interrogation amounted to harmless error under the "actual prejudice" standard for collateral review set forth by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Accordingly, we reverse the district court's order granting habeas relief. I. Mansfield was convicted of the first degree murder of Sara Robles. The underlying facts, which we glean from the trial testimony and the opinion of the Florida Supreme Court addressing Mansfield's direct appeal of his conviction and sentence, Mansfield v. State, 758 So.2d 636 (Fla. 2000) ("Mansfield I"), are these. On October 15, 1995, at approximately 3:00 a.m., Sara Robles was brutally murdered. Her body was discovered later that morning, lying adjacent to a Winn-Dixie grocery store in Kissimmee, Florida. Her breasts and pelvic area had been mutilated, and further examination revealed that her nipples had been cut off, as well as portions of her labia minora, labia majora, and clitoris. Robles was found wearing a watch that was cracked and stopped at 3:00 a.m. Food stamps were strewn around her body, and a pager was found less than eight feet away. The police also found two gold chains: one by the pager, and the other on Robles' body. The police investigation that followed determined that Robles and a male matching Mansfield's description had been at a nearby bar called Rosie's Pub, located in the same shopping plaza as the Winn-Dixie, in the early morning hours on the *1304 day of the murder. The police interviewed a bartender at Rosie's Pub, who indicated that Robles, Mansfield, and a third individual, William Finneran, left the bar shortly after 2:00 a.m. The police also interviewed Finneran, who testified at trial that he left the bar at the same time as Mansfield and Robles and that he last saw the two just outside the Winn-Dixie before they entered the store. The police discovered that the pager found at the crime scene belonged to Mansfield. Detectives from the Kissimmee Police Department went to Mansfield's residence on the evening of October 15 to question him. Mansfield agreed to be interviewed by the detectives at the police station. The interrogation was videotaped by the police. The videotaped interrogation, which was played to the jury at trial over Mansfield's objection, is at the core of this appeal. The interrogation took place on the night of October 15, 1995, the date of the murder. Once at the police station, Mansfield was interrogated by a total of three officers. It is undisputed that the officers never informed Mansfield of his Miranda rights prior to or during the interrogation. Mansfield I, 758 So.2d at 644. The vast majority of the approximately two-hour-long interrogation consisted of the officers asking Mansfield about where he went—and with whom—after leaving Rosie's Pub on the morning of the murder. Mansfield initially said that he went directly home by himself, but later, after being confronted with evidence placing him at the Winn-Dixie with the victim shortly before her death, repeatedly claimed that he was drunk at the time and could not remember what had happened or where he had gone. Mansfield gave similar denials when confronted with other evidence. When the officers told Mansfield that they had found his pager (because it had been discovered near Robles' body next to the Winn-Dixie), Mansfield claimed that he must have lost it at the bar or it must have been stolen. The interrogation also contained a number of exchanges in which the officers accused Mansfield of committing this gruesome murder. The interrogation did not contain a confession, however. Throughout the interrogation, Mansfield consistently denied the officers' accusations. During the course of the interrogation, the police received further evidence placing Mansfield at the scene of the crime. Juanita Roberson, who was working at the Winn-Dixie on the morning of the murder, identified Mansfield in a photo lineup. In particular, she identified him as the man she twice saw with Robles in the early morning hours of October 15—first inside the Winn-Dixie, and then outside of the store at approximately 3:00 a.m. At the close of the interrogation, the police arrested Mansfield and took into evidence a ring with a "grim reaper" design that Mansfield was wearing. The next day, Mansfield's brother Charles called the police and alerted them to items found in Mansfield's room, which included food stamps, a knife, clothing, and a towel. At trial, the State's medical examiner, Dr. Julie Martin, testified that Robles died of asphyxia due to airway compression as a result of blunt force trauma to the neck. Dr. Martin opined that the murderer likely strangled Robles with one hand, while using the other hand or an object, such as Mansfield's ring, to press down on her lower neck, causing the trachea to collapse. Dr. Martin concluded that Robles was alive but likely unconscious when parts of her genitalia were excised by a sharp object. The jury found Mansfield guilty of first-degree murder. Mansfield I, 758 So.2d at 642. Following the penalty phase, the jury *1305 unanimously recommended the death penalty. Id. The trial court followed the recommendation and sentenced Mansfield to death. Id. In support of the death sentence, the trial judge found two aggravating circumstances. First, the crime was especially heinous, atrocious, or cruel, and second, the crime occurred during the commission of, or an attempt to commit, a sexual battery. Id. The trial court found no statutory mitigators and five nonstatutory mitigators. Id. The trial court afforded very little weight to the following three mitigators: (1) the defendant displayed good conduct during trial; (2) the defendant is an alcoholic; and (3) the defendant's mother was an alcoholic during his childhood. Id. However, the court afforded some weight to the other two mitigators: (1) the defendant had a poor upbringing and dysfunctional family; and (2) the defendant suffers from a brain injury due to head trauma and alcoholism. Id. Mansfield filed a direct appeal of his conviction and death sentence, and the Florida Supreme Court affirmed the murder conviction and death sentence in an opinion issued on March 30, 2000. Mansfield I, 758 So.2d 636. After describing the videotaped interrogation, the Florida Supreme Court concluded that the interrogation was erroneously admitted and should have been suppressed. Id. at 644-45. The Florida Supreme Court noted that it was "undisputed that Mansfield was not advised of his [Miranda] rights at any point prior to or during the interrogation," and that Mansfield would not have felt free to leave during the interrogation. Id. Accordingly, Mansfield was "in custody for purposes of Miranda." Id. The Florida Supreme Court then concluded that the admission of the interrogation was harmless beyond a reasonable doubt: "The erroneous admission of statements obtained in violation of Miranda rights is subject to harmless error analysis." Caso v. State, 524 So.2d 422, 425 (Fla. 1988). Error is harmless if the reviewing court can say beyond a reasonable doubt that the error did not affect the verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). Such is the character of the error that occurred in the instant case. ... In the instant case the State, in addition to the significant circumstantial evidence placing the defendant at the crime scene with the victim near the time the murder is presumed to have occurred, presented the testimony of [Christopher Randall a/k/a] Michael Johns, who recounted a jailhouse confession by Mansfield. Additionally, the testimony tended to show that the food stamps found in Mansfield's room the day after the murder belonged to Robles. Further, the State's medical examiner testified as to the existence of a pattern injury on Robles' neck matching the distinctive pattern found on the ring recovered from Mansfield during his arrest. Mansfield I, 758 So.2d at 644-45. Mansfield filed a petition for writ of certiorari with the United States Supreme Court, which was denied. Mansfield v. Florida, 532 U.S. 998, 121 S.Ct. 1663, 149 L.Ed.2d 644 (2001). Mansfield then sought postconviction relief in state court. The postconviction trial court conducted an evidentiary hearing and then denied all relief. State v. Mansfield, No. CR95-2078 (Fla. 9th Cir. Ct. June 30, 2003). Mansfield appealed to the Florida Supreme Court, which also denied all relief. Mansfield v. State, 911 So.2d 1160 (Fla.2005) ("Mansfield II"). Soon thereafter, Mansfield filed his federal habeas petition, raising fifteen claims, in the United States District Court for the Middle District of Florida. On February *1306 26, 2009, the district court issued its opinion and order granting Mansfield's petition as to Claim One (the claim that the erroneous admission of the videotaped interrogation in violation of Miranda was not harmless), and denying relief on Mansfield's remaining fourteen claims. Mansfield v. Sec'y, Dep't of Corr., 601 F.Supp.2d 1267 (M.D.Fla.2009). The State timely appealed the district court's order granting habeas relief on Claim One. There is no dispute at this stage that the admission of the videotaped interrogation was in error. The sole question we face is whether that error was harmless. We hold that it was. II. Our review of the district court's decision to grant habeas relief is de novo. Fotopoulos v. Sec'y, Dep't of Corr., 516 F.3d 1229, 1232 (11th Cir.2008). Mansfield filed his federal habeas petition after the 1996 effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254, and AEDPA therefore governs the petition and the scope of our review. Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Grossman v. McDonough, 466 F.3d 1325, 1335 (11th Cir.2006). Under AEDPA, when a state court has adjudicated the petitioner's claim on the merits, as it did in this case, a federal court may not grant habeas relief unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). In granting habeas relief, the district court concluded that the Florida Supreme Court's decision was an "unreasonable application" of clearly established federal law under the standard set forth in 28 U.S.C. § 2254(d)(1). Mansfield, 601 F.Supp.2d at 1308-09. "A state court decision is an `unreasonable application' of clearly established [federal] law if the state court identifies the correct governing legal rule from the Supreme Court's holdings but unreasonably applies it to the facts of the particular defendant's case." Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir.2011) (citing Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). This standard is a highly deferential one. AEDPA "demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (internal quotation marks omitted). "A state court's determination that the claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (internal quotation marks omitted). "It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). The Supreme Court has repeatedly instructed us that an unreasonable application of law requires more than mere error or even clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) ("We may not grant respondent's habeas petition, however, if the state court simply erred in concluding that the State's errors were harmless; rather, habeas relief is appropriate only if the [state appellate court] applied harmless-error review in an `objectively unreasonable' manner."); Lockyer, 538 U.S. at 75, *1307 123 S.Ct. 1166 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."); Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."). In short, as the Supreme Court recently observed, "[i]f this standard is difficult to meet, that is because it was meant to be." Harrington, 131 S.Ct. at 786. In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court held that on direct review, a federal constitutional error is harmless only if the reviewing court is "able to declare a belief that it was harmless beyond a reasonable doubt," id. at 24, 87 S.Ct. 824. Under AEDPA's unreasonable application prong, 28 U.S.C. § 2254(d)(1), federal habeas relief may only be granted if the state court's application of the Chapman harmless error standard on direct review was "objectively unreasonable." Esparza, 540 U.S. at 18, 124 S.Ct. 7. For ease of exposition, we refer to this standard as the "AEDPA/Chapman" standard. See Fry v. Pliler, 551 U.S. 112, 120, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). As a federal habeas court, however, we apply a different harmless error analysis than the one articulated in Chapman. On collateral review, a federal constitutional error is harmless unless there is "actual prejudice," meaning that the error had a "substantial and injurious effect or influence" on the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Harmlessness under the Brecht standard is a question of law that we review de novo. Vining v. Sec'y, Dep't of Corr., 610 F.3d 568, 571 (11th Cir.2010) (per curiam); Prevatte v. French, 547 F.3d 1300, 1305 (11th Cir.2008). "[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the `substantial and injurious effect' standard set forth in Brecht, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the `harmless beyond a reasonable doubt' standard set forth in Chapman." Fry, 551 U.S. at 121-22, 127 S.Ct. 2321. Because of the "[s]tates' interest in finality," the states' "sovereignty over criminal matters," and the limitation of habeas relief to those "grievously wronged," the Supreme Court set forth in Brecht a standard that is more favorable to and "less onerous" on the state, and thus less favorable to the defendant, than the Chapman harmless beyond a reasonable doubt standard. Brecht, 507 U.S. at 637, 113 S.Ct. 1710; accord Fry, 551 U.S. at 117, 127 S.Ct. 2321. The Supreme Court emphasized in Brecht that "collateral review is different from direct review," and, therefore, that "an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Brecht, 507 U.S. at 633-34, 113 S.Ct. 1710. Thus, we have at our disposal two different standards for evaluating harmless error: the AEDPA/Chapman standard and the Brecht standard. It is clear that when a state court on direct review has determined that the alleged constitutional error was harmless under Chapman, a habeas petition cannot be successful unless it satisfies both AEDPA/Chapman and Brecht. That is, for a federal court to grant habeas relief, it must be true both that the state court's application of the Chapman harmless beyond a reasonable doubt standard was objectively unreasonable and that the error had a substantial *1308 and injurious effect or influence on the verdict. Fry, 551 U.S. at 119, 127 S.Ct. 2321 (explaining that a petitioner must continue to satisfy Brecht even after the enactment of AEDPA, because AEDPA "sets forth a precondition to the grant of habeas relief ... not an entitlement to it"). That said, as the Supreme Court recognized in Fry, "it certainly makes no sense to require formal application of both tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former." 551 U.S. at 120, 127 S.Ct. 2321. Similarly, a federal court may deny habeas relief based solely on a determination that the constitutional error is harmless under the Brecht standard. Because the petitioner must satisfy both tests in order to obtain habeas relief, it necessarily follows that relief may be denied on the basis of Brecht alone. Indeed, subsequent to the Supreme Court's decision in Fry, decisions of this Court have denied habeas relief solely under the Brecht standard, without first examining whether the state court's harmless error determination on direct review was objectively unreasonable. See Vining, 610 F.3d at 571-74; Hodges v. Att'y Gen., State of Fla., 506 F.3d 1337, 1343 (11th Cir.2007). Although, unlike the instant case, it was not entirely clear in those cases whether the state court had conducted its harmless error analysis under the correct Chapman standard, we proceeded to deny habeas relief solely under an application of Brecht without ever engaging in the AEDPA/Chapman analysis. Vining, 610 F.3d at 571-74 & n. 2; Hodges, 506 F.3d at 1343. We also observe that almost all of our sister circuits have concluded that a determination that an error is harmless under the Brecht standard is sufficient for the denial of habeas relief, without any examination of whether the state court's harmless error determination under Chapman was objectively unreasonable. See Wood v. Ercole, 644 F.3d 83, 93-94 & n. 9 (2d Cir.2011); Bauberger v. Haynes, 632 F.3d 100, 104-05 (4th Cir.2011); Welch v. Workman, 639 F.3d 980, 993 (10th Cir.2011); Wesbrook v. Thaler, 585 F.3d 245, 255-56 (5th Cir.2009); Ruelas v. Wolfenbarger, 580 F.3d 403, 411-13 (6th Cir.2009); Jackson v. Norris, 573 F.3d 856, 858 (8th Cir. 2009); Foxworth v. St. Amand, 570 F.3d 414, 435-36 (1st Cir.2009); Moses v. Payne, 555 F.3d 742, 755 (9th Cir.2009); Bond v. Beard, 539 F.3d 256, 275-76 (3d Cir.2008). But see Johnson v. Acevedo, 572 F.3d 398, 404 (7th Cir.2009) (requiring a two-step analysis: first, AEDPA/Chapman, and then, if the petitioner clears the AEDPA/Chapman hurdle, Brecht). In short, we observe, consistent with the Supreme Court's decision in Fry, that a federal habeas court may deny relief based solely on a determination that a federal constitutional error was harmless under the Brecht standard. III. A. On appeal, the State contends that the district court erred in granting Mansfield habeas relief, having wrongfully substituted its own independent factfinding about the nature and strength of the State's evidence against Mansfield for the judgment of the Florida Supreme Court. In particular, the State says that the district court rejected the state court's factfinding determination by failing to assign sufficient (if any) probative value to: the jailhouse confession testimony of Christopher Randall a/k/a Michael Johns ("Randall"); the incriminating evidence, especially food stamps, found in Mansfield's room at his brother's apartment; the medical examiner's testimony regarding a distinctive pattern injury on Robles' neck that was consistent with Mansfield's "grim reaper" *1309 ring; and the significant circumstantial evidence, including Mansfield's pager, placing Mansfield with Robles at the scene of the crime at almost the exact time of Robles' death. In response, Mansfield primarily challenges the probative value of the State's evidence against him, asserting that the State only had a weak case for conviction without the videotaped interrogation. Mansfield claims that: the testimony of Randall, who was heavily impeached at trial, was not credible in the least; the food stamps found in Mansfield's room were "not incriminating" because the State never proved that they were issued to Robles; the pattern injury on Robles' neck was "not incriminating" because the medical examiner only testified that the grim reaper ring could have caused the injury, not that it definitively caused the injury; Mansfield's pager found near Robles' body had "no evidentiary weight" because "[p]agers fall off of people all of the time"; and the identity of the murderer is uncertain because Finneran had a weak alibi and was also observed near the crime scene around the time of the murder. In short, Mansfield's position is that, absent the videotaped interrogation, the evidence against him had precious little probative value. Under AEDPA, however, a state court's factual findings are presumed correct, and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Ferrell, 640 F.3d at 1223. "Clear and convincing evidence entails proof that a claim is `highly probable,' a standard requiring more than a preponderance of the evidence but less than proof beyond a reasonable doubt." Ward v. Hall, 592 F.3d 1144, 1177 (11th Cir.2010) (quoting United States v. Owens, 854 F.2d 432, 436 n. 8 (11th Cir.1988)). Indeed, we have noted that our review of findings of fact by the state court under § 2254(e)(1) "is even more deferential than under a clearly erroneous standard of review." Wood v. Allen, 542 F.3d 1281, 1285 (11th Cir.2008) (quoting Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir.2005)), aff'd, ___ U.S. ___, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). "Therefore, where factual findings underlie the state court's legal ruling, our already deferential review [under AEDPA] becomes doubly so." Childers v. Floyd, 642 F.3d 953, 972 (11th Cir.2011) (en banc). Viewing the evidence through the lens of AEDPA, as we must, the State has the better of the argument. Here, in connection with its harmless error determination, the Florida Supreme Court plainly made factual findings crediting four important pieces of evidence in support of Mansfield's conviction: (1) the testimony of Randall, who recounted a very detailed jailhouse confession by Mansfield; (2) the testimony of the medical examiner that a pattern injury found on the victim's neck "match[ed]" the distinctive pattern found on the ring recovered from Mansfield during his arrest; (3) the evidence tending to show that the food stamps found in Mansfield's room the day after the murder belonged to the victim; and (4) the "significant circumstantial evidence placing the defendant at the crime scene with the victim near the time the murder is presumed to have occurred." Mansfield I, 758 So.2d at 645. In concluding that the error— admission of the videotaped interrogation—was not harmless under either AEDPA/Chapman or Brecht, the district court improperly afforded virtually no deference to the Florida Supreme Court's reliance on the considerable body of evidence mounted against Mansfield. 1. To begin with, the district court erred in completely rejecting the Florida Supreme *1310 Court's credibility determination about Randall, who testified at trial that Mansfield had confessed to the murder during a time in which Mansfield and Randall shared a holding cell. Randall testified that Mansfield told him that "he cut the fucking bitch's tits off," and that he cut Robles' vaginal area, but that he wasn't concerned with getting caught because he went swimming in a nearby pool after the murder "so that the chlorine would eat the blood and get the shit out from underneath his fingernails." The district court considered Randall's testimony highly suspect. The district court pointed out Randall's extensive criminal history and "fantastic record of extracting confessions from his cell mates." 601 F.Supp.2d at 1290, 1305. The district court also noted that "there was no information in Mansfield's alleged confession that was unknown to the general public by that time." Id. at 1306. However, the Florida Supreme Court's finding that Randall's testimony was credible was not rebutted by clear and convincing evidence, and the district court was plainly required to presume the correctness of that factual finding under AEDPA. 28 U.S.C. § 2254(e)(1). Both Randall's state felony convictions and his prolific history of extracting confessions were presented to the jury at great length during the defense's cross-examination of Randall. Nonetheless, the jury convicted Mansfield, and the Florida Supreme Court credited Randall's testimony as evidence contributing to Mansfield's conviction. In addition, we can find no record support for the district court's determination that the contents of Randall's testimony were known to the general public at the time of Mansfield's jailhouse confession. Moreover, Randall's testimony concerning Mansfield's actions after the killing was corroborated by the testimony of Mansfield's niece, Melissa Johnson (who lived in the apartment where Mansfield was staying), who testified that Mansfield arrived at the apartment at approximately 4:30 a.m. on the morning of Robles' murder, that Mansfield did not have his shirt on and was carrying his shoes, that Mansfield's entire body was wet, that Mansfield asked her for a towel, and that Mansfield had a red spot on his shorts. Although ignored entirely by the district court, this testimony corroborated the account reported by Randall at trial: that Mansfield went swimming shortly after committing the murder in order to wash off any blood or other physical evidence. 2. The district court afforded virtually no weight to the testimony of the State's medical examiner, Dr. Martin, notwithstanding the Florida Supreme Court's finding crediting her testimony. In its harmless error analysis, the Florida Supreme Court said that Dr. Martin testified that the pattern injury on Robles' neck "match[ed]" the pattern on Mansfield's grim reaper ring. Mansfield I, 758 So.2d at 645. This admittedly would overstate the case if we were to interpret "match" to mean a 100 percent certainty that the injury was caused by the ring, but earlier in its opinion the Florida Supreme Court accurately recounted Dr. Martin's testimony as stating that the pattern injury was "consistent" with the pattern found on the ring. Id. at 641. More importantly, the record strongly supports the Florida Supreme Court's determination that Dr. Martin's testimony was credible. On direct examination by the prosecution, and with the aid of photographic slides, Dr. Martin explained what it meant to observe a "pattern injury" and described some of the specific characteristics of the injury found on Robles' neck: Q That is a pattern injury; is that correct? *1311 A Yes. I think you can appreciate that within this broad area of abrasion on the front of the neck, we are now seeing something which has a pattern to it. It's rather elliptical, has some points here towards this apex. And then also within it, there are some characteristic lines or curves that to a forensic pathologist who deal [sic] with pattern injuries, this is recognized as a pattern of some type of object. Q Okay. And what would be necessary to leave a pattern injury such as that for a body to reflect a pattern injury like that? A We expect it to have some—an object that had some curve to it, an elliptical form, pretty symmetrical on the outside; these two elliptical aspects and then maybe something in the center that has some type of unusual characteristics that would create this type of a pattern. Dr. Martin testified that, at the time she originally observed the injuries, before being presented with Mansfield's grim reaper ring or any other particular object, "I thought perhaps a piece of jewelry, perhaps a ring or maybe a belt buckle might have a similar configuration that may have caused these injuries." Mansfield seizes on this line of testimony, particularly Dr. Martin's reference to a belt buckle, to argue that the injury was not sufficiently distinctive for the ring to have much, if any, evidentiary weight. But this distorts the actual testimony. While still on direct examination, Dr. Martin testified that she was later shown Mansfield's ring. Dr. Martin testified that "when I saw it, I thought that it could have produced the pattern injury on the neck." The prosecutor then followed up: Q And could you describe what similar characteristics are observable between the ring and that injury? A Well, as you recall from the photographs, we had those two areas kind of elliptical in shape and then we have something similar to that here on the ring. And then in the center of the ring, there is a figure which could have produced the internal characteristics that you saw, that injury on the neck. Furthermore, Dr. Martin, using scale photographs of the pattern injury, actually held the ring up to the pattern injury photographs in order to make a visual comparison before the jury—powerful testimony that was completely ignored by the district court. Again, the district court erroneously afforded virtually no significance to the Florida Supreme Court's findings about Mansfield's ring. 3. The Florida Supreme Court also credited the testimony indicating that the food stamps found in Mansfield's room belonged to Robles. Mansfield I, 758 So.2d at 645. The police found food stamps strewn around Robles' body at the crime scene. Id. at 640. At trial, the State introduced evidence that Robles had received $576 worth of food stamps only five days before she died. The trial evidence also showed that Mansfield was with Robles shortly before the murder inside the Winn-Dixie, where Robles made two purchases using food stamps. In addition, Mansfield's brother, Charles Mansfield (who owned and inhabited the apartment where Mansfield was staying), testified at trial that he found food stamps in Mansfield's room, and that he told police at the time that the food stamps did not belong to anyone in the apartment and that no one in the apartment received food stamps. In short, there was considerable circumstantial evidence tending to corroborate the Florida Supreme Court's finding that the food stamps found in Mansfield's room *1312 the day after the murder belonged to Robles. To be sure, the evidence did not establish with certainty that the food stamps found in Mansfield's room belonged to Robles. Charles Mansfield also testified that, although Mansfield did not receive food stamps from the State, he knew that Mansfield had used them in the past. In addition, Mansfield contends that food stamps are fungible, and the State acknowledged at trial that there is no system for matching a given food stamp with the person to whom it had been issued. But the Florida Supreme Court did not find that the food stamps found in Mansfield's room definitely belonged to Robles. Rather, it found that the evidence "tended to show" that they did. This was a reasonable reading of the totality of the evidence on this issue, and the district court's assessment that the Florida Supreme Court "overstate[d] the case" is not borne out by the record. The district court was, in short, bound to afford real deference to this state court finding of fact as well. 4. Finally, the Florida Supreme Court credited "the significant circumstantial evidence" putting Mansfield with the victim at the scene of the crime at the time of the murder. Mansfield I, 758 So.2d at 645. At trial, the State established that Mansfield was seen with Robles inside the Winn-Dixie a little before 3:00 a.m., while Robles made purchases using food stamps. Juanita Roberson, a cashier at the Winn-Dixie who rang up Robles' purchases, further testified that, when she went outside the store on her break at around 3:00 a.m., she saw Mansfield and Robles standing together next to one of the side walls of the Winn-Dixie. The State also established at trial that the time of Robles' death was approximately 3:00 a.m. In particular, Detective Warren Shepard testified that, when law enforcement found Robles' body, she was wearing a watch that was "non-functional" and "had been broken." Shepard testified that "[i]t appeared to have been broken during some type of struggle and it was stopped right around 3:00." Dr. Julie Martin, the State's medical examiner, further supported this approximate time of death. She was asked on direct examination whether she had reached an opinion as to the time of death. She replied: "Yes. I believe [Robles] died at approximately 3:00 a.m. on the morning of October 15 ... 1995." Mansfield contends that Dr. Martin's opinion "simply was not a medical opinion but rather based on the victim's stopped watch," but there is no record support for this claim. In fact, Dr. Martin's testimony about the time of death went unrebutted at trial. Additional evidence placed Mansfield with Robles at the scene. Notably, the police found Mansfield's pager close to Robles' body. Detective Shepard testified that the pager was found "within eight feet of the body immediately adjacent to the structure of the Winn-Dixie building." Moreover, Shepard said that law enforcement officials found two gold chains at the scene, one in "close proximity" to the pager and the other on Robles' body, further connecting the defendant's pager with the nearby body. The district court conceded that this evidence—the pager and the evidence showing that Mansfield was with Robles "just before she died"—was significant, stating that it was likely "[t]he strongest part of the case against Mansfield." 601 F.Supp.2d at 1311. But the district court downplayed the weight afforded this evidence by the Florida Supreme Court, noting that William Finneran, who had left the bar with Mansfield and Robles, had a "weak" alibi. Id. According to the district *1313 court, "Finneran also was in Robles' company until just a few minutes before her death." Id. But the unrebutted testimony at trial was that Finneran was last with Mansfield and Robles before they entered the Winn-Dixie. The testimony did show that Finneran was still in the vicinity of the Winn-Dixie, because he made a collect phone call at around 3:15 a.m. from a nearby store. Accordingly, the State acknowledges that Finneran was "in the general vicinity near the time of the murder," but further contends that this "does not negate the substantial evidence incriminating Mansfield rather than Finneran." The State is correct that Finneran's presence in the general vicinity does not negate the considerable body of evidence incriminating Mansfield and the testimony showing that Finneran parted ways with Mansfield and Robles before the murder. The district court's diminution of this evidence was not supported by the record. Indeed, the district court ignored entirely evidence linking Mansfield, not Finneran, to the crime scene, failing to even mention the gold chains found at the crime scene, one near Mansfield's pager and the other on the body of the victim only a few feet away. B. We repeat that we are obliged to accept as correct the factual findings of the Florida Supreme Court, because they have not been rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Having accepted the state court's findings of fact, we turn finally to our de novo determination of whether the admission of the videotaped interrogation at trial "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239). "To show prejudice under Brecht, there must be more than a reasonable possibility that the error contributed to the conviction or sentence." Mason v. Allen, 605 F.3d 1114, 1123 (11th Cir.2010) (internal quotation marks and alteration omitted). Although harmless error review is necessarily fact-specific and must be performed on a case-by-case basis, the erroneous admission of evidence is likely to be harmless under the Brecht standard where there is significant corroborating evidence, id. at 1123-24; Grossman, 466 F.3d at 1337-40, or where other evidence of guilt is overwhelming, Prevatte, 547 F.3d at 1305-06; Grossman, 466 F.3d at 1340. The corpus of evidence against Mansfield was substantial. As we have detailed, the jury was presented with considerable evidence of Mansfield's presence at the crime scene with Robles almost exactly contemporaneous to the killing. An eyewitness saw Mansfield and Robles together at around 3:00 a.m., just before the time of death. Mansfield's pager was found within eight feet of Robles' body, along with one of two gold chains, the other of which was found on Robles' body. The jury heard Randall's testimony that Mansfield had confessed in violent detail to the savage killing and to going swimming after the killing in order to wash off the blood. The testimony of Mansfield's niece similarly suggested that Mansfield went swimming after the murder. The jury was presented with testimony showing that food stamps were found in Mansfield's room in his brother's apartment the day after the murder. The jury heard evidence that Robles had received several hundred dollars' worth of food stamps less than a week before the murder, had food stamps on her in the grocery store just before the murder, and had used the food stamps—while accompanied by Mansfield—to make two purchases at the grocery *1314 store, and that food stamps were found strewn about Robles' body at the crime scene. Moreover, Mansfield's brother Charles testified that neither Mansfield nor anyone else in the apartment received food stamps. The jury also heard evidence from the State's medical examiner that the distinctive pattern injury on Robles' neck from where her trachea was crushed was consistent with the pattern of Mansfield's grim reaper ring that was recovered following his arrest. Finally, we emphasize that the videotaped interrogation was not a confession or admission of guilt by Mansfield. Cf. Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ("A confession is like no other evidence. Indeed, the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him." (internal quotation marks omitted)). When confronted with the officers' accusations, Mansfield repeatedly denied harming or murdering Robles. What the interrogation did show was Mansfield making false and inconsistent exculpatory statements as to his whereabouts after leaving a bar in the early morning hours just before the murder. For example, Mansfield first claimed that he had gone straight home after leaving Rosie's Pub, but then claimed that he was too drunk to remember what had happened and that he might have gone to the Winn-Dixie with Robles after leaving the bar in order to buy a pack of cigarettes. And, although he claimed to be too drunk to remember what had happened, Mansfield remembered that he went swimming to "sober up a little bit" before entering the apartment. Similarly, Mansfield first claimed that he had rented his pager three or four months earlier, but when confronted with what the officers claimed was a contrary statement from an employee of the pager company, Mansfield claimed that the pager was a "loaner" because his pager "was in the shop." The principal substantive information revealed by the videotape—that Mansfield went to Winn-Dixie with Robles after leaving the bar and that his pager was found near Robles' body—could not have been prejudicial because it was already well-established and fully corroborated by other evidence. See Mason, 605 F.3d at 1124; Grossman, 466 F.3d at 1338, 1340. Thus, if the admission of the video was prejudicial, the source of the prejudice must have come not from any directly inculpatory statement made by Mansfield, but rather from the jury viewing Mansfield give false or inconsistent statements to the detectives. In this respect the circumstances confronted by the Supreme Court in Brecht itself are instructive. In Brecht, the defendant testified at his trial and admitted to the charged shooting but claimed it was an accident. 507 U.S. at 638, 113 S.Ct. 1710. The question before the Court was whether the state's improper use of the defendant's post-Miranda silence for impeachment purposes had a substantial and injurious effect on the jury's verdict. Id. As in this case, the erroneous admission in Brecht was of evidence tending to suggest that the defendant lacked credibility and was attempting to falsely exculpate himself. The Supreme Court concluded that the error was harmless. Id. at 639, 113 S.Ct. 1710. The Court's conclusion was based in part on the fact that "the State's evidence of guilt was, if not overwhelming, certainly weighty" and that "other circumstantial evidence ... also pointed to petitioner's guilt." Id. So too here. The other, properly admitted evidence against Mansfield was substantial and far more probative than the erroneously admitted interrogation. Given the entirety of the State's evidence against *1315 Mansfield and the Florida Supreme Court's factfinding crediting significant pieces of that evidence, we cannot say that the erroneously admitted interrogation—in which Mansfield consistently denied having committed the murder, and much of the substance of which was corroborated by other independent evidence—had a substantial and injurious effect on the jury's verdict. In short, viewing the evidence in light of the record as a whole and accepting as correct the unrebutted factual findings of the Florida Supreme Court, we are compelled to conclude that the erroneous admission at trial of a videotape of Mansfield's interrogation by law enforcement officers was harmless error under Brecht. Accordingly, we reverse the district court's order and judgment granting habeas relief on this claim. REVERSED.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA D’RAYFIELD KARY-KLAME SHIPMAN, Plaintiff, v. Civil Action No. 19-04 (RDM) AMTRAK, Defendant. MEMORANDUM OPINION AND ORDER This matter is before the Court on Defendant’s Motion to Dismiss. Dkt. 7. Plaintiff, Drayfield Kary-Klame Shipman, proceeding pro se, initiated this action against his former employer, Amtrak, by filing a four-page, hand-written complaint that read as follows: Plaintiff was awarded Disability Retirement from his previous Employer Amtrak three years ago. Amtrak has continued discriminatory behavior against Plaintiff, asserting on his Personnel Record that Plaintiff was forcibly relieved of his duties, instead of the aforementioned. Plaintiff is seeking reinstatement of his travel privileges as well as compensation for all travel related expenses for rail travel since having his travel privileges suspended due to being out of work due to stress related issues incurred at work. Plaintiff is also seeking damages for slander on record with Human Resources. Plaintiff was hired as a Statistical Clerk while being an Honorable Discharged veteran, 40% disabled. Plaintiff obtained a 60% disability rating during employment with Amtrak. Plaintiff was eventually taken out of work by his current physicians at Veteran’s Administration due to stress and health related issues. Plaintiff is entitled as other[s] who left on disability to enjoy privileges of travel. Plaintiff is asking Court to appoint Counsel since Plaintiff is pending 100% disability which is being hindered by current Administration. Plaintiff is in protected class African-American male 61 year[s] old and Disabled American Veteran. Plaintiff feels entitled to 100,000.00 in damages Dkt. 1 (Compl.). On April 15, 2019, Amtrak moved to dismiss this action pursuant to Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6). Dkt. 7. In its memorandum in support of that motion, Amtrak argues that the complaint should be dismissed “because it fails to provide Amtrak with ‘fair notice’ of the . . . claim(s)” Shipman is asserting. Dkt. 7-1 at 5. It also contends that Shipman has failed to “allege sufficient facts to state a plausible claim for relief under any relevant law.” Id. at 8. For the reasons explained below, the Court agrees. The Court will dismiss the complaint without prejudice, however, and allow Plaintiff the opportunity to refile the complaint within 30 days of this order in a manner that complies with the Federal Rules of Civil Procedure. Although pleadings by pro se litigants such as Shipman are held to “less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), they must still comply with the Federal Rules of Civil Procedure, see Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987). Federal Rule of Civil Procedure 8(a) requires that a complaint contain a short and plain statement of the grounds upon which the Court’s jurisdiction depends, a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for the relief the pleader seeks. See Fed. R. Civ. P. 8(a). The Rule is designed to “give the defendant notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citation omitted). Plaintiff’s complaint fails to comply with Rule 8. In all essential respects, the complaint is conclusory and fails to provide Amtrak or the Court with a description of the essential facts. Most notably, the complaint merely asserts that Amtrak engaged in “discriminatory behavior.” 2 Dkt. 1 at 1 (Compl.) This unexplained assertion is insufficient to satisfy Rule 8’s requirement that a plaintiff provide a statement “showing that the pleader is entitled to relief.” Indeed, the only discriminatory behavior even alluded to in Plaintiff’s complaint is that he appears to believe that Amtrak mistakenly categorized him as “forcibly relieved of his duties” in his “Personnel Record.” Dkt. 1 at 1 (Compl.). Even construed liberally, Plaintiff’s allegations leave the Court and Amtrak to guess what claim or claims Plaintiff intends to pursue. Plaintiff has not alleged that Amtrak discriminated against him on the basis of age, race, sex, disability, or some other trait or factor. Nor has Plaintiff alleged any factual circumstances that led to his termination or the revocation of his “travel privileges.” Put simply, Plaintiff has failed to provide Amtrak or the Court with notice of the claims he intends to assert or the grounds on which those claims rest. Accordingly, it is hereby ORDERED that Defendant’s motion to dismiss, Dkt. 7, is GRANTED. Plaintiff’s complaint, Dkt. 1, is DISMISSED without prejudice. Plaintiff may file an amended complaint consistent with Federal Rules of Civil Procedure on or before November 3, 2019. The clerk is directed to mail a copy of this order to Plaintiff at his address of record. SO ORDERED. /s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: October 3, 2019 3 

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 11 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS AMEEN AL TAIFI, No. 11-73918 Petitioner, Agency No. A078-065-543 v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 13, 2015 San Francisco California Before: WALLACE, M. SMITH, and FRIEDLAND, Circuit Judges. Ameen Al Taifi petitions for review of an order of the Board of Immigration Appeals denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252, and reviewing for abuse of discretion, Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014), we deny the petition for review. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.  The Board did not abuse its discretion in holding that Al Taifi’s motion to reopen was filed out of time or in holding that Al Taifi’s motion did not fall within the timeliness exception for motions based on changed circumstances. The Board correctly held that Al Taifi failed to show how his evidence of generalized conditions in Yemen had individual relevancy to his claims. See Najmabadi v. Holder, 597 F.3d 983, 989–90 (9th Cir. 2010). The Board also thoroughly considered the evidence related to the alleged death of Al Taifi’s mother, including the lack of authentication for the police report and the complete lack of detail regarding the explanation for her death, and did not abuse its discretion in concluding that this evidence did not establish any connection between the death of Al Taifi’s mother and the persecution claimed by Al Taifi. See Lin v. Holder, 588 F.3d 981, 986 (9th Cir. 2009) (thorough consideration of evidence revealed lack of detail regarding connection between actions against petitioner’s relatives and potential future persecution of petitioner); Toufighi v. Mukasey, 538 F.3d 988, 996–97 (9th Cir. 2008) (evidence immaterial to petitioner’s claim where petitioner failed to meet his burden to show how he would be affected by the changed conditions described in the evidence). Thus the Board acted within its discretion when it held that Al Taifi had not established the existence of changed circumstances in Yemen that would materially affect his asylum eligibility. 2 PETITION DENIED. 3 

933 N.E.2d 544 (2010) Gregory JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 49A02-1003-CR-375. Court of Appeals of Indiana. September 7, 2010. *545 Evelyn Lecia Keaton, Indianapolis, IN, Attorney for Appellant. OPINION NAJAM, Judge. STATEMENT OF THE CASE Gregory Johnson appeals his conviction for Refusal to Identify Self, a Class C misdemeanor, following a bench trial. He presents two issues for our review: 1. Whether the State presented sufficient evidence to support his conviction. 2. Whether his misdemeanor conviction violates Article I, Section 16 of the Indiana Constitution. We affirm. FACTS AND PROCEDURAL HISTORY On February 19, 2009, at approximately 4:00 a.m., Johnson was operating a tractor-trailer on I-465 in Marion County. The roads were icy and there was a "slight dusting of snow on the roadway" at the time. Transcript at 4. There had been "several crashes and several slide-offs throughout the night" due to the weather conditions. Id. Other vehicles on I-465 in the vicinity of Johnson's vehicle were traveling between thirty and forty miles per hour. Johnson was traveling between fifty-five and sixty-three miles per hour when he passed Indiana State Police Officer Jeffrey Payne, who was driving his vehicle at approximate speeds of thirty to forty miles per hour. Officer Payne activated his emergency lights and followed Johnson for approximately two miles before Johnson pulled to the side of the highway and stopped. Officer Payne exited his vehicle and entered the cab of Johnson's truck through the passenger-side door to talk to Johnson.[1] In a raised voice, Johnson demanded to know why Officer Payne had stopped him, and Johnson asserted that he had been driving fifty-five miles per hour in accordance with the posted speed limit. Officer Payne ignored Johnson's question and asked to see his driver's license. Johnson stated that "he wanted to know why he was being stopped first." Id. at 5. Officer Payne repeated his request to see Johnson's driver's license and assured Johnson that he would explain the reason for the *546 traffic stop once he received the license. Johnson asked a third time for an explanation for the stop and repeated his assertion that he was driving fifty-five miles per hour. Officer Payne again asked Johnson to produce his driver's license, told him that he would explain the reason for the stop, and advised Johnson that if he did not produce his license Officer Payne would arrest him for refusal to identify himself. Johnson refused the officer's request again, stating that "he was not going to provide [Officer Payne] with his driver's license" until the officer told him the reason for the stop. Id. After Officer Payne asked for Johnson's driver's license a fourth time, Johnson "just stared" at Officer Payne and started dialing a number on his cell phone. Id. Officer Payne then exited the truck and walked around to the driver's side door, but Johnson had closed the window and locked the doors to the cab. Officer Payne asked Johnson several times to open the door and threatened to break the window if he did not comply. Officer Payne then walked to his police vehicle and moved it to the front of Johnson's truck so that he could not drive away. Officer Payne returned to the driver's side door of Johnson's truck and began banging on the window with his flashlight. Johnson continued to refuse to open the door. Officer Payne then returned to his vehicle and contacted dispatch for assistance. When Officer Payne returned to Johnson's truck, Johnson exited the cab.[2] Officer Payne instructed Johnson to turn around and put his hands on the cab, but Johnson did not comply. Officer Payne then forcibly placed Johnson in handcuffs. Officer Payne asked Johnson to identify himself, and Johnson did not reply. After Officer Payne placed Johnson inside his police vehicle, an officer with the Beech Grove police department arrived at the scene. Johnson instructed that police officer where in his cab he could find his driver's license, which the officer finally retrieved. The State charged Johnson with resisting law enforcement and refusal to identify self. Following a bench trial, the trial court acquitted Johnson on the first count,[3] but found him guilty of refusal to identify. This appeal ensued. DISCUSSION AND DECISION Issue One: Sufficiency of the Evidence Johnson contends that the State did not present sufficient evidence to support his conviction. When reviewing the claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003). *547 We look only to the probative evidence supporting the judgment and the reasonable inferences therein to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id. To prove refusal to identify self, the State was required to prove that Johnson knowingly or intentionally refused to provide either his name, address, and date of birth, or his driver's license to Officer Payne after he stopped Johnson for an infraction or violation of an ordinance. See Ind.Code § 34-28-5-3.5. On appeal, Johnson maintains that the State did not prove that he knowingly or intentionally refused to provide identification given that his failure to comply with Officer Payne's requests was a direct result of Officer Payne's "threatening behavior" towards Johnson. Brief of Appellant at 10. In essence, Johnson asks that we create an exception to the statute where a defendant has a reasonable fear for his safety which prevents his compliance. Further, Johnson contends that because the Beech Grove police officer ultimately retrieved his driver's license from the cab of his truck, he did, in fact, comply with the statute. We cannot agree. This court analyzed the refusal to identify self statute in Bringle v. State, 745 N.E.2d 821 (Ind.Ct.App.2001), trans. denied. In Bringle, the defendant refused to give police officers his driver's license, but he displayed his license through his closed car window for the officers to see. The trial court entered judgment of conviction for refusal to identify self, and the defendant appealed, alleging that he had substantially complied with the statute. On appeal, we examined the language of the statute as follows: When interpreting the meaning of a statute, this court is guided by well-established rules of statutory construction. A statute should be construed to ascertain and give effect to the expressed intention of the legislature by giving the words and phrases their common and ordinary meaning. The common and ordinary meaning of "provide" is to supply for use. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 1827 (1993). In fact, "provide" is often used interchangeably with the words "supply" or "furnish." Id. Giving the words and phrases their common and ordinary meaning, we find that Indiana Code section 34-28-5-3.5 requires that a person either supply a law enforcement officer with his name, address, and date of birth, or physically hand over his license, if it is in his possession. Further support for construing the statute to mean that a person must hand over his license upon an officer's request can be found by examining the justification for physically relinquishing the license from a law enforcement officer's perspective. When questioned by counsel why he asks for drivers to give him their licenses, Deputy Drake responded: A: Well, there's a lot of counterfeit license [sic] out here. I need the information to fill out the uniform traffic ticket. I want to make sure, who I'm dealing with, uh, the driver's license has a picture I.D. on it and a date of birth, address, all the information that I need to perform my duties. Q: Is there any particular reason you didn't want to look at his license through the window? A: Well, traffic was heavy. We'd just buried an officer two months prior to that, I had to work the accident *548 where the officer was killed out on the interstate and uh, every time I stop the [sic] car it still goes through my mind. I was trying to, uh, protect myself from being hit, uh, I couldn't pay attention, look at the driver's license through a window and watch up [sic] for my well being also. Q: There any other reasons you ask for a license? A: Well, you need to know if the license is authentic or not. You have to take and actually hold them, bend them to where you can see the State seal. Record at 325-26. Deputy Drake and the others made several requests for Bringle to hand over his license. However, Bringle repeatedly refused to provide it to the deputies. While Bringle argues that he provided the deputies with the requisite information by displaying his license through the window, we find that such a display did not comply with the mandate of the statute. Thus, we conclude that there was sufficient evidence for the jury to convict Bringle of Refusal to Identify Self. Id. at 826-27 (some citations omitted, footnotes omitted, emphasis added). Here, Officer Payne asked Johnson to provide his driver's license, which was in his possession, at least four times, and Johnson refused each request. Johnson did not ever "physically hand over" his driver's license. See id. Instead, only after his arrest did Johnson instruct the Beech Grove officer where to find his driver's license. We hold that the State presented sufficient evidence to support his conviction. To the extent that Johnson contends that his fear for his safety prevented him from complying with the statute, Johnson asks us to reweigh the evidence and to create an exception to the statute, which we will not do. Issue Two: Article I, Section 16 Johnson also contends that "[c]onviction on a misdemeanor where the law was ultimately complied with by the defendant driver during the traffic stop is disproportionate punishment for what actually occurred." Brief of Appellant at 23. For support, Johnson cites to Article I, Section 16 of the Indiana Constitution, which provides in relevant part that "[a]ll penalties shall be proportioned to the nature of the offense." Because we hold that Johnson did not "ultimately comply" with the statute, Johnson's contention on this issue is without merit. Further, we will only find a violation of Article I, Section 16 where the punishment is "grossly and unquestionably excessive." See Clifton v. State, 176 Ind.App. 395, 375 N.E.2d 1126, 1128 (1978) (quoting Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910)). We decline Johnson's invitation to so find here. Affirmed. BAKER, C.J., and MATHIAS, J., concur. NOTES [1] Officer Payne testified that it was his custom to enter the cab of tractor-trailers during traffic stops. [2] Johnson had dialed 911 and reported that he had been pulled over by a police officer who was acting aggressively towards him. Johnson stated that he was "afraid for [his] life." Transcript at 11. Johnson was able to speak to another officer on the phone, who instructed him to exit the cab. [3] Officer Payne testified that Johnson "tried to pull his arm away" twice as Officer Payne tried to place handcuffs on his wrists. Transcript at 6. The trial court determined that that evidence was insufficient to support a conviction for resisting law enforcement. We note that, given our Supreme Court's holding that "stiffening" of one's arms is sufficient to prove resisting law enforcement, the evidence here could have been sufficient to support the State's allegation. See Graham v. State, 903 N.E.2d 963, 966 (Ind.2009) (citing Johnson v. State, 833 N.E.2d 516 (Ind.Ct.App.2005), with approval and stating that evidence defendant stiffened his arms when officer attempted to place handcuffs on wrists sufficient to satisfy forcible resistance element of resisting law enforcement). But since Johnson was acquitted on that count, that issue is not before us on appeal.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4619 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAURICE DEWAR, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:04-cr-00144-H-1) Submitted: May 16, 2014 Decided: May 21, 2014 Before MOTZ and KING, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Shailika K. Shah, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Maurice Dewar appeals the district court’s order revoking his supervised release and sentencing him to an eleven- month term of incarceration. On appeal, Dewar argues that the district court imposed a plainly unreasonable sentence because the court should have ordered that he undergo substance abuse treatment rather than imposing a term of incarceration. We affirm. “A district court has broad discretion when imposing a sentence upon revocation of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). Accordingly, in examining a sentence imposed upon revocation of supervised release, we “take[] a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal quotation marks omitted). We will affirm a revocation sentence that falls within the statutory maximum, unless we find the sentence to be “plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). In reviewing a revocation sentence, we first consider “whether the sentence is unreasonable,” following the same general principles we apply to our review of original sentences. Id. at 438. Only if we find 2 a sentence to be procedurally or substantively unreasonable will we determine whether the sentence is “plainly” so. Id. at 439. A revocation sentence is procedurally reasonable if the district court has considered both the applicable 18 U.S.C. § 3553(a) (2012) factors and the policy statements contained in Chapter Seven of the United States Sentencing Guidelines Manual. Crudup, 461 F.3d at 439. The district court also must provide an explanation of its chosen sentence, although this explanation “need not be as detailed or specific” as is required for an original sentence. United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). A revocation sentence is substantively reasonable if the district court states a proper basis for concluding that the defendant should receive the sentence imposed. Crudup, 461 F.3d at 440. We cannot conclude that Dewar’s eleven-month revocation sentence is unreasonable, much less plainly so. Our review of the record reveals that the district court provided Dewar several opportunities to participate in substance abuse and mental health treatment but that, despite these opportunities, Dewar was unable to refrain from using marijuana and, later, cocaine. Although Dewar requested that he be placed in a more intensive treatment program, the court was not required to select treatment over incarceration, particularly in light of Dewar’s history of failed efforts to achieve sobriety. 3 In any event, the court fully recognized Dewar’s drug addiction, recommending that Dewar “be exposed to the most intense drug treatment possible during the term of this incarceration.” Finally, we conclude that the court properly imposed a term of incarceration “to sanction [Dewar] for failing to abide by the conditions of the court-ordered supervision and to punish the inherent breach of trust indicated by [his] behavior.” Moulden, 478 F.3d at 655 (internal quotation marks omitted). Thus, the sentence imposed by the district court was not plainly unreasonable. Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4 

91 F.3d 127 U.S.v.Gregorio Millan NO. 94-2239 United States Court of Appeals,Third Circuit. June 27, 1996 Appeal From: E.D.Pa., No. 94-00105, Padova, J. 1 AFFIRMED.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-08-00059-CV Pacific Employers Insurance Company, Appellant v. Twelve Oaks Medical Center, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. D-1-GN-06-000550, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING M E M O R A N D U M O P I N I O N In this suit for judicial review of an agency determination, Pacific Employers Insurance Company ("Pacific") appeals from an order of the trial court remanding this cause to the Division of Workers' Compensation. Pacific challenges the remand order on the ground that the trial court lacked jurisdiction. We conclude the trial court lacked jurisdiction. (1) We vacate the remand order and dismiss the cause. Twelve Oaks Medical Center sought judicial review of a decision issued by the Texas Department of Insurance, Division of Workers' Compensation in a medical dispute resolution proceeding. See Tex. Lab. Code Ann. § 413.031(k) (West 2008). Twelve Oaks filed its petition for judicial review on February 15, 2006, within 30 days of the date the decision was issued as required by statute. See Tex. Gov't Code Ann. § 2001.176(a) (West 2008). Pacific was served with the petition on March 9, 2007, almost thirteen months later. In the district court, Pacific took the position that Twelve Oaks failed to exercise diligence in procuring service of process as a matter of law, and therefore, that it did not timely perfect its suit for judicial review. (2) The trial court rejected Pacific's jurisdictional challenges contained in a plea to the jurisdiction and a motion for summary judgment, and ordered the cause remanded to the Division. Pacific contends that the district court had no jurisdiction to consider the request for a remand to the Division. Pacific argues that because Twelve Oaks failed to exercise diligence in procuring service of process, its suit was not timely filed, depriving the district court of jurisdiction to hear the suit. The record contains an order denying Pacific's motion for summary judgment--which was based on Pacific's argument that the district court lacked jurisdiction--but there is no order explicitly denying the plea to the jurisdiction. However, a trial court that rules on the merits of an issue without explicitly rejecting an asserted jurisdictional attack has implicitly denied the jurisdictional challenge. Thomas v. Long, 207 S.W.3d 334, 339-40 (Tex. 2006). By ruling on the merits of Twelve Oaks's request to remand the cause to the agency, the trial court necessarily denied Pacific's plea to the jurisdiction as well as its motion for summary judgment. Id. The issue before us, therefore, is whether the trial court erred in denying Pacific's plea to the jurisdiction. We review the denial of a plea to the jurisdiction under a de novo standard. Texas Dep't of Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In this case, Pacific's plea to the jurisdiction challenged the existence of a jurisdictional fact--that is, whether Twelve Oaks exercised diligence in serving Pacific. Once the defendant affirmatively shows that service of process was effected after expiration of the relevant filing period, as Pacific did, the burden shifts to the plaintiff to present evidence to "explain the delay." Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990). The plaintiff must present evidence that it exercised the diligence to procure service that an ordinary prudent person would have used under the same or similar circumstances. See Tate v. Beal, 119 S.W.3d 378 (Tex. App.--Fort Worth 2003, pet. denied); Hodge v. Smith, 856 S.W.2d 212, 215 (Tex. App.--Houston [1st Dist.] 1993, writ denied). If the plaintiff's explanation for the delay raises a material fact issue concerning the diligence of service efforts, the burden shifts back to the defendant to conclusively demonstrate why the explanation is insufficient. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007). In some instances, the plaintiff's explanation may be legally improper to raise the diligence issue, and the defendant will bear no burden at all. See id. (citing Brown v. Shores, 77 S.W.3d 884, 890 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (Brister, C.J., concurring)). In others, the plaintiff's explanation of its service efforts may demonstrate a lack of due diligence as a matter of law, as when one or more lapses between service efforts are unexplained or patently unreasonable. See, e.g., Gant v. DeLeon, 789 S.W.2d 259, 260 (Tex. 1990). In the present case, the explanation Twelve Oaks offered for its delay in serving Pacific was, in essence, that it was awaiting the outcome of other litigation involving similar legal questions that could affect the merits of its suit for judicial review. Twelve Oaks offered no other explanation for the thirteen-month delay in procuring service and presented no evidence regarding its attempts, if any, to effect service during that time period. Although a plaintiff may have good reasons for not wanting to seek immediate service on a defendant, those reasons do not negate the requirement that diligence be used in attempting service once the relevant filing period has passed. See Broom v. MacMaster, 992 S.W.2d 659, 665 (Tex. App.--Dallas 1999, no pet.) (plaintiff's desire to obtain remand from federal court did not justify delay in serving defendant). Once the time for filing suit has passed, a plaintiff must use due diligence to procure service regardless of any reasons he may have for not wanting to commence the lawsuit right away. The explanation given by Twelve Oaks does not raise a fact issue regarding diligence in seeking to serve Pacific. See Proulx, 235 S.W.3d at 216. The record contains no other evidence creating a fact issue with regard to diligence. Pacific met its burden of establishing that Twelve Oaks failed to exercise diligence in serving its suit for judicial review once the 30-day filing period expired. As a consequence, Twelve Oaks' petition for judicial review was not timely filed, and the district court lacked jurisdiction to take any action other than to dismiss the case. The trial court lacked jurisdiction over this suit for judicial review. Consequently, we vacate the remand order and dismiss this cause for want of jurisdiction. _____________________________________________ G. Alan Waldrop Before Justices Patterson, Pemberton and Waldrop; Concurring and Dissenting Opinion by Justice Patterson Vacated and Dismissed for Want of Jurisdiction Filed: April 16, 2010 1. The dissent's analysis relies entirely on the proposition that a suit for judicial review under labor code section 413.031(k) is not a suit against a governmental entity and that, therefore, the 30-day filing deadline in government code section 2001.176 is mandatory but not jurisdictional. This proposition directly conflicts with this Court's precedent--a decision the dissenting justice joined. See HCA Healthcare Corp. v. Texas Dep't of Ins., 303 S.W.3d 345, 352 (Tex. App.--Austin 2009, no pet.) (section 2001.176(a) deadline is jurisdictional for suit brought under labor code section 413.031). Moreover, this Court's analysis in HCA Healthcare Corp. is not altered by the Texas Supreme Court's recent decision in In re United States Automobile Association. While the supreme court did note in that case that prerequisites to suit are jurisdictional requirements in all suits against a governmental entity, it did not hold that all such prerequisites are not jurisdictional when the suit is not against a governmental entity. See No. 07-0871, 2010 Tex. LEXIS 282, at *16-24 (Tex. Mar. 26, 2010). 2. If a party files suit before the filing period expires, but effects service of citation after the filing period expires, the date of service relates back to the date of filing and the suit is considered timely filed only if the party exercised diligence in effecting service. Police Serv. Comm'n v. Gutierrez, 182 S.W.3d 430, 432 (Tex. App.--Austin 2005, no pet.).

In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-15-00118-CR CARLTON DANIEL JONES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 196th District Court Hunt County, Texas Trial Court No. 28,989 Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Moseley  MEMORANDUM OPINION Carlton Daniel Jones pled guilty to burglary of a habitation. Pursuant to a plea agreement, Jones was placed on deferred adjudication community supervision for seven years. Subsequently, the State filed a motion to revoke Jones’ community supervision on the ground that he had intentionally and knowingly engaged in sexual contact with a child. The trial court found this allegation to be true, adjudicated Jones guilty of burglary of a habitation, sentenced him to twenty years’ imprisonment, and ordered him to pay a $500.00 fine. Jones appeals from the trial court’s judgment adjudicating his guilt. However, the appellate brief he has filed raises no points of error that pertain to this case. Instead, Jones’ brief is virtually identical to the brief filed in the appeal from his conviction of continuous sexual assault of a child in cause number 06-15-00119-CR, but the points of error raised in that case are inapplicable to this appeal. Essentially, Jones has presented nothing for our review. We affirm the trial court’s judgment. Bailey C. Moseley Justice Date Submitted: March 10, 2016 Date Decided: June 9, 2016 Do Not Publish 2 

United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-3640 ___________________________ Michael John Bui lllllllllllllllllllll Plaintiff - Appellant v. U.S. Attorney’s Office lllllllllllllllllllll Defendant - Appellee ____________ Appeal from United States District Court for the District of Minnesota - Minneapolis ____________ Submitted: May 2, 2016 Filed: May 4, 2016 [Unpublished] ____________ Before WOLLMAN, BOWMAN, and MURPHY, Circuit Judges. ____________ PER CURIAM.  Michael Bui appeals after the District Court1 dismissed his petition for a writ of mandamus. Upon careful de novo review, see Hart v. United States, 630 F.3d 1085, 1088 (8th Cir. 2011) (reviewing de novo the dismissal of a complaint for lack of subject-matter jurisdiction based on sovereign immunity), we conclude that dismissal was proper, see Borntrager v. Stevas, 772 F.2d 419, 420 (8th Cir.) (“[M]andamus may issue against an officer of the United States only when the plaintiff has a clear right to relief, the defendant has a clear duty to perform the act in question, and the plaintiff has no adequate alternative remedy.”), cert. denied, 474 U.S. 1008 (1985); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that a pleading “must contain sufficient factual matter” to state a claim that is plausible on its face in order to avoid dismissal); In re Lombardi, 741 F.3d 888, 893–94 (8th Cir.) (en banc) (explaining the standards for granting a petition for writ of mandamus), cert. denied, 134 S. Ct. 1790 (2014). Accordingly, we affirm. ______________________________ 1 The Honorable John R. Tunheim, Chief Judge, United States District Court for the District of Minnesota, adopting the report and recommendations of the Honorable Franklin L. Noel, United States Magistrate Judge for the District of Minnesota. -2- 

245 S.W.2d 8 (1952) ROUSH v. ALKIRE TRUCK LINES, Inc. No. 42480. Supreme Court of Missouri, Division No. 1. January 14, 1952. *10 Robert S. Burns, Kansas City, for appellant. Paul C. Sprinkle, William F. Knowles, Roy F. Carter and Sprinkle, Knowles & Carter, Kansas City, for respondent. COIL, Commissioner. In an action for $30,000 damages for personal injuries resulting from a collision between an automobile, in which plaintiff-appellant was a passenger, and a truck owned and operated by defendant-respondent, a jury found for plaintiff and assessed her damages at $750. Plaintiff appealed from the judgment, after her unavailing motion for new trial, in which was included the ground of inadequacy of verdict. Plaintiff contends (1) that the verdict of the jury was inadequate, and so inadequate as to indicate it was the result of "passion and prejudice" on the part of the jury, and (2) that the court erred in giving instruction 4. The trial court, in overruling plaintiff's motion for new trial on the ground of inadequacy of verdict, weighed the evidence and determined that a verdict in the sum of $750 was not against the weight of the evidence. Coats v. News Corporation, 355 Mo. 778, 785[3], 197 S.W.2d 958, 962[6-8]. We do not weigh the evidence in this action. We determine only whether the trial court abused its discretion in overruling plaintiff's motion for new trial on the ground of inadequacy of verdict. Murphy v. Kroger Grocery & Baking Co., 350 Mo. 1186, 1194[7], 171 S.W.2d 610, 613[8, 9]. In making this determination, we examine the record to ascertain whether there is substantial evidence to support the action of the trial court. Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 11[2], 212 S.W.2d 915, 918[4-7]; Coats v. News Corporation, supra; Murphy v. Kroger Grocery & Baking Co., supra. Plaintiff, a woman 32 years of age at the time of the accident in November 1947, was a passenger in an automobile being driven by her husband in Kansas City, Missouri, when the automobile was struck in the rear by the bumper of defendant's cattle truck. Plaintiff adduced evidence as to the nature and extent of her injuries upon which the jury could have awarded her damages in an amount many times greater than the $750 awarded. We do not, however, review the evidence pertaining to injuries from a standpoint favorable to plaintiff but, on the contrary, consider the evidence from the standpoint favorable to the verdict and to the action of the trial court in overruling plaintiff's motion for new trial on the ground of inadequacy. Wilhelm v. Kansas City Public Service Co., supra. So viewed, the evidence tended to show that defendant's truck hit the automobile in which plaintiff was riding a slight blow, the truck stopping just as it hit; that plaintiff immediately got out of the automobile and remained standing and walking about at the scene of the accident for some 20 or 25 minutes during which she not only made no complaint of injury, but stated that no one in the automobile was injured. Plaintiff went to her family physician later during the evening of the accident, ascending a flight of stairs to his office. An examination was made, some medicine put on a cut or bruise on plaintiff's leg, and some "pain" medicine given her. The family physician did not see plaintiff for another ten days, at which time she met him at a hospital for X-rays and obtained from him some more pain medicine. Up to January 1948, plaintiff saw the family physician five or six times, always at his office, other than the one time at the hospital. He did nothing other than to give her pain medicine and tell her to wear a heavy corset. The only visible sign of injury on plaintiff's body at any time following the accident was a small bruise about the size of a dollar above her knee. The X-rays taken by plaintiff's family physician were not introduced in evidence. The family physician died before trial and his testimony was not adduced by deposition. Two doctors examined plaintiff on behalf of defendant. At one examination, by an orthopedist, February 3, 1948, plaintiff complained: of pains in her back when sitting of lying down, and sometimes when walking; of intermittent headaches; and of menstrual disturbance. On examination, *11 some tenderness in the small of the back and over the left sacroiliac joint was noted. There was no muscle spasm, no limitation or pain on flexion, or on forward, lateral, or backward bending, or on rotation; no limitation or pain on straight leg raising. Reflexes were normal in the lower extremities. Examination of the cervical spine was negative. The X-rays of the lumbar spine showed a mild dorsal lumbar scoliosis. The doctor's conclusion was that plaintiff had only a mild postural disorder and that there was no evidence of any disability due to traumatic injury. At the other examination, by a physician and surgeon, April 5, 1948 (about two months subsequent to the examination just mentioned), plaintiff complained: of a constant backache; of her left hip giving way at times; of soreness and aching in the lower left abdomen when on her feet; of frequent headaches; of a change in her menstrual cycle. Examination revealed: weight, 187½ pounds; no abnormal findings about the head; a large smooth mass in the thyroid gland, mostly on the right side, causing a protrusion forward about the size of a large lemon or small orange, which was diagnosed as a simple type goiter which was producing no disability except by pressure; neck otherwise normal; chest normal; breasts normal; on the abdomen, a low midline well-healed surgical scar, the result of an operation performed when plaintiff's last child was four months old for the purpose of correcting a suspension of the uterus (at the time of this operation, according to plaintiff, her appendix was removed); a "markedly lacerated perineum, with a large cystocele and rectocele," resulting in a "loss of the supportive structure of the perineum, so that the rectum bulged forth and pushed the posterior vaginal wall out of the introitus of the vagina, the introitus being the entrance from the outside, upon straining. This same condition occurred with the urinary bladder on the anterior vaginal wall so that a cystocele resulted. There is also a bad laceration of the cervix, which was in need of repair. This is also the result of childbirth." Examination of the back with patient in standing position showed good alignment, no muscle spasm, and no tenderness. The X-rays taken at the examination of February 3, 1948, revealed no evidence of fracture or dislocation or of any abnormality with the exception of a mild degree of flattening of the lumbar curve which, in view of plaintiff's weight of 187 pounds, was, in the doctor's opinion, due to a postural defect resulting from her weight—a condition which might cause pain. The doctor's conclusion was that there was no evidence of any disability which was the result of injury. The doctor was of the further opinion that there were three definite physical findings which could account for the complaints plaintiff made, including the complaint of pain in her lower back. These conditions were: the goiter which could be causing nervousness and pressure in the throat, not connected in any way with trauma or injury; the advanced cystocele and rectocele, definitely the result of childbirth and not related to trauma, which would produce fatigue, backache, and "lack of support in the perineum"; and obesity, plaintiff being approximately 40 pounds overweight, which excess weight would produce a strain on the back muscles which would cause the pains complained of in that region. There was no evidence of loss of earnings, nor any evidence of hospital, medical, and other expense attributable to the accident. From the foregoing review of the evidence, it is apparent that a jury could reasonably find that any injury sustained as a result of the accident was trivial. It is also apparent that a verdict of $750 does not convict the trial court of an abuse of discretion in overruling plaintiff's motion for new trial on the ground of inadequacy of verdict. Plaintiff, however, vigorously contends that further facts shown in evidence necessarily make these conclusions erroneous. Plaintiff points to her evidence which showed that she went to an orthopedic surgeon on October 29, 1948 (after the examination by the doctors whose testimony was adduced by defendant). This doctor testified by deposition: that plaintiff complained of *12 pain in her lower back; that he found on examination and by X-rays taken by him that plaintiff had an "unstable spine due to congenital abnormality in the fifth lumbar" vertebra consisting of the failure of the vertebra, a condition found in approximately 6½ per cent of all persons; that this abnormality is evidenced by the fifth lumbar vertebra being in two parts rather than being one solid bone; that he prescribed conservative treatment, a back support, and some "balancing up" of her shoes; that plaintiff got relief but not complete relief; that consequently on July 17, 1950, he operated and thereby fused the fourth and fifth lumbar vertebrae to the sacrum by means of a bone graft taken from plaintiff's leg. This doctor also testified that, based upon plaintiff's history as given to him, including the accident and plaintiff's subjective symptoms, and assuming no other accident or mishap to plaintiff in the interim, in his opinion the accident subjected the "weak area of the spine" to a strain which aggravated this congenital abnormality and caused plaintiff's ensuing pain and suffering, and made the operation necessary. Plaintiff insists that because an operation was done in July, 1950 which disclosed the described condition of the fifth lumbar vertebra, and because of the testimony of the doctor as to causation, the medical testimony adduced by defendant becomes worthless and plaintiff's evidence as to injury and cause thereof is uncontradicted and unimpeached. Plaintiff states her contention: "If a doctor says in his opinion that she was not injured, and another doctor operates and finds that she did have a serious bone injury, it is proof that the first doctor's opinion is of no value. Facts overcome opinions." The difficulty with plaintiff's position in this regard is that it overlooks the testimony of defendant's doctors who examined the X-rays taken by plaintiff's doctor in October, 1948 (which plaintiff's doctor testified disclosed the condition for which he operated), and each of defendant's doctors denied that the X-rays disclosed any condition which called for the fusion operation performed. It overlooks the proposition that, despite plaintiff's testimony to the contrary, the jury could reasonably find from all the evidence that any aggravation of the congenital back condition was caused by something other than trauma received in the accident, either prior or subsequent thereto, and that the operating doctor's testimony as to causation was based upon facts related by plaintiff which the jury could accept or reject. In short, plaintiff's contention overlooks the fact that the jury, as the sole judge of the credibility of witnesses and of the weight and value to be given their testimony, could reasonably find from defendant's medical testimony that whatever condition was found in plaintiff in October, 1948, was produced by causes other than the accident. Plaintiff has cited many cases. We have examined all of them. Most of them involve an entirely different situation in that they are cases in which a trial court sustained plaintiff's motion for new trial on the ground that a verdict was inadequate. Obviously, such cases are not applicable to the proposition we here consider. The cases cited in which this court has determined that a trial court abused its discretion in overruling a motion for new trial on the ground of inadequacy of verdict, are all readily distinguishable on the facts. It would serve no useful purpose to review those cases here. We find nothing in this record demonstrating that the small verdict for plaintiff was the result of passion and prejudice. We are of the opinion that there is substantial evidence in the record to support the action of the trial court in overruling plaintiff's motion for new trial on the ground of inadequacy of verdict. Plaintiff contends that the court erred in giving instruction 4: "The Court instructs the jury that in considering the testimony of any witness you should use your common sense, reason and judgment, so that if you find that the testimony of any witness as to the facts surrounding the alleged accident is in conflict with physical facts, then you are instructed that you may take into consideration such conflict in determining what weight will be given to the testimony of such witness or witnesses so conflicting." *13 Plaintiff says the instruction is erroneous because it tells the jury that it may consider the testimony of a witness in conflict with physical facts in determining the weight to be given all the testimony of such witness. She also contends that there is no evidence in the record to justify any instruction on this subject. We think plaintiff has misconstrued the instruction. The instruction does not authorize the jury to disregard any testimony of any witness. The instruction tells the jury that it may consider the conflict with physical facts in the testimony of a witness in determining the weight to be given to such conflicting testimony. Compare Mueller v. Schien, 352 Mo. 180, 187, 191[7], 176 S.W.2d 449, 452, 455[21]; Steinmetz v. Nichols, 352 Mo. 1047, 1055[4], 180 S.W.2d 712, 716[4]. We need not and do not determine whether it would have been error to instruct the jury that it might consider the conflict with physical facts in the testimony of a witness in determining the weight to be given all the testimony of that witness. This instruction does not so tell the jury. The giving of instruction 4, a cautionary instruction, was largely within the discretion of the trial court. Where, as here, the trial court passed upon the propriety of this cautionary instruction by overruling the ground of plaintiff's motion for new trial alleging error in giving it, this court will not interfere unless the trial court has clearly erred in exercising its discretion. West v. St. Louis Public Service Co., 361 Mo. 740, 236 S.W.2d 308, 313[13]. There was some testimony by plaintiff and her husband that they were thrown forward when the rear of their car was struck. Defendant says this testimony is contrary to physical law. Defendant also points out that plaintiff's testimony as to the seriousness of her injury caused by this accident, was contrary to the physical facts of the manner in which the accident occurred and the admitted actions of plaintiff immediately thereafter. While a consideration of the evidence in the record does not impress us with the necessity for a cautionary instruction on the subject covered, nevertheless, we are also of the opinion that the action of the trial court in giving instruction 4 was not clearly an erroneous exercise of discretion. The trial court overruled plaintiff's motion for new trial "and we are precluded from reversing the judgment unless we `shall believe that error was committed * * * against the appellant * * * and materially affecting the merits of the action.'" Mueller v. Schien, supra, 352 Mo. 188, 176 S.W.2d 453[7-9]; Mo.R.S.1949, § 512.160, V.A.M.S. The judgment is affirmed. VAN OSDOL and LOZIER, CC., concur. PER CURIUM. The foregoing opinion by COIL, C., is adopted as the opinion of the court. All concur.

276 S.C. 438 (1981) 279 S.E.2d 603 Robert A. PIPPIN and Glenda H. Pippin, Respondents, v. Douglas E. BURKHALTER, Margaret P. Burkhalter, and South Carolina Federal Savings and Loan Association, Defendants, of whom South Carolina Federal Savings and Loan Association is, Appellant. 21487 Supreme Court of South Carolina. June 10, 1981. *439 J.D. Todd, Jr., and Joseph E. Major of Leatherwood, Walker, Todd & Mann, Greenville, for appellant. Eugene C. Covington, Jr., of Foster, Covington & Patrick, Greenville, for respondents. June 10, 1981. HARWELL, Justice: South Carolina Federal Savings and Loan Association appeals from the verdict allowed against it on a purported claim arising under the Federal Flood Disaster Protection Act. South Carolina Federal contends that its motions for a directed verdict and judgment non obstante veredicto were erroneously denied. We agree and reverse. The provision at issue, 42 U.S.C.A. § 4104a, and the applicable regulation formulated in conjunction with it, 12 C.F.R. § 523.29(h), provide that financing institutions supervised, approved, regulated or insured by the federal government must give purchasers of real property located within special flood hazard areas written notice of that fact prior to the closing of the transaction. In this instance South Carolina Federal failed to give the respondents Pippin written notice that the home they had *440 contracted to purchase was within the flood area. It appears from the record, however, that the Pippins had a seller-provided flood insurance coverage provision inserted into the purchase agreement. The loan commitment executed by the appellant was conditional on flood insurance coverage. Indeed, the respondents had knowledge that the creek abutting their lot had flooded its banks once prior to the transaction at issue. Despite the admitted failure of South Carolina Federal to provide written notice, the respondents had no basis to prosecute their alleged action since the Flood Disaster Protection provision at issue creates no private cause of action by implication. Among the tests applied to federal legislation to determine whether a right of private action is impliedly created is that of assuring that the legislation was enacted for the "especial" benefit of the private party. Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed. (2d) 26 (1975); Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed. (2d) 146 (1979). It is clear that the Flood Act is designed to protect not only borrowers, but the lending institutions themselves as well as their depositors. The purpose of the act is to encourage proper flood insurance coverage on flood risk property. Any "especial" status of the purchaser, as contended for, is diminished by the fact that only a purchaser-borrower from an enumerated financing institution is benefited by the act. The outright purchaser, one assuming a loan made prior to the enactment of this legislation or one giving his vendor a note and mortgage, for instance, are not protected at all. It is clear that the provisions are intended to protect a class of loans supervised, approved, regulated or insured by the federal government and all those associated with such loans. There can be no implied cause of action in the purchaser. Accord, Till v. Unifirst Federal Savings & Loan Association, D. Miss. *441 C.A. J79-0415(R), order of 7/17/80. Enforcement thus falls to the appropriate federal regulatory agency. We note in passing that even had there been a cause of action, the appellant's motions should have been granted. Respondents had flood insurance coverage. They had actual knowledge of an actual flood onto the property before they agreed to purchase the property. There can be no question that they were on notice of the flood risk and that they were protected against a flood risk. We therefore cannot agree that appellant's omission of notice proximately would have caused the respondents any damages. The verdict of $5,000 against South Carolina Federal must be set aside. Reversed. LEWIS, C.J., and LITTLEJOHN, NESS and GREGORY, JJ., concur.

944 F.2d 904 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.Andrew L. CAIN, Plaintiff-Appellant,v.Dan BOLDEN, Theodore W. Koehler, Gary Hoffman, Defendants-Appellees. No. 91-1541. United States Court of Appeals, Sixth Circuit. Sept. 16, 1991. Before KEITH and BOYCE F. MARTIN, Jr., Circuit Judges, and KRUPANSKY, Senior Circuit Judge. ORDER 1 Andrew L. Cain, a former Michigan prisoner, appeals the district court's dismissal of his pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 2 Seeking monetary and injunctive relief, Cain sued the defendant prison officials in their individual and official capacities alleging that during his stay at Marquette Branch Prison (MBP) between January 3, 1986 through July 14, 1989, he was denied access to the courts due to the inadequacy of the prison law library and its call-out system. Cain also requested injunctive relief directing that neither he nor his witnesses be retaliated against for his filing the instant complaint. Cain has since been paroled from prison. 3 Defendants filed a motion for summary judgment and Cain responded. In his recommendation, a U.S. magistrate judge found that Cain had adequately demonstrated that a question of fact existed as to whether the prison's call-out system provided him with effective and meaningful access to the courts. The magistrate however recommended that the complaint be dismissed because the action was barred by eleventh amendment immunity because the defendants were sued for acts done in their capacity as state officers. The magistrate also recommended that defendant Koehler be dismissed from the action pursuant to Fed.R.Civ.P. 4(j), because plaintiff did not timely serve him with a copy of the summons and complaint, and that Cain was not entitled to injunctive relief because he had not demonstrated that harm from governmental agents was imminent. The district court adopted the magistrate's recommendation after reviewing Cain's objections. On appeal, Cain reasserts his claims, requests the appointment of counsel, and has filed a pro se brief. Defendants have not participated in this appeal. 4 Upon review, we affirm the district court's judgment for the reasons stated in the magistrate's report dated February 25, 1991, as adopted by the district court on April 15, 1991. Defendants are entitled to eleventh amendment immunity because the acts complained of were taken in the defendants' official capacity. See Cowan v. University of Louisville, 900 F.2d 936, 942 (6th Cir.1990). In addition, we note that Cain's request for injunctive relief is moot because he has been released from prison since the filing of this complaint. 5 Accordingly, the request for counsel is denied, and the district court's judgment is hereby affirmed pursuant to Rule 9(b)(3), Rules of the Sixth Circuit.

13 So.3d 455 (2007) DANNY GLENN PYLANT v. VICKY PYLANT. No. 2060221. Court of Civil Appeals of Alabama. September 21, 2007. Decision of the Alabama Court of Civil Appeals without published opinion. Affirmed.

698 F.Supp.2d 992 (2010) John W. FERRON, Plaintiff, v. METAREWARD, INC., et al., Defendants. John W. Ferron, Plaintiff, v. Adteractive, Inc., et al., Defendants. John W. Ferron, Plaintiff, v. Azoogle.Com, Inc., et al., Defendants. John W. Ferron, Plaintiff, v. Search Cactus, LLC, et al., Defendants. John W. Ferron, Plaintiff, v. World Avenue Holdings, LLC, et al., Defendants. Case Nos. 2:09-cv-430, 2:09-cv-440, 2:09-cv-512, 2:09-cv-513, 2:09-cv-520. United States District Court, S.D. Ohio, Eastern Division. March 15, 2010. *995 Lisa A. Wafer, Jessica G. Fallon, Ferron & Associates, Columbus, OH, for Plaintiff. Jeffrey Manghillis, Jones Day, Stephen Douglas Jones, Roetzel & Andress, Michael R. Traven, Roetzel & Andress LPA, Columbus, OH, John Winship Read, Vorys Sater Seymour & Pease, Cleveland, OH, Jonathan S. Frankel, Bingham McCutchen LLP, Ky E. Kirby, Bingham McCutchen LLP, Washington, DC, for Defendants. OPINION AND ORDER GREGORY L. FROST, District Judge. This matter is before the Court for consideration of the following filings: (1) Defendants' motions to dismiss (Doc. # 10 in 2:09-cv-430; Doc. # 12 in 2:09-cv-440; Doc. # 9 in 2:09-cv-512; Doc. # 11 in 2:09-cv-513; Doc. # 16 in 2:09-cv-520); (2) Plaintiff's combined memorandum in opposition (Doc. # 31 in 2:09-cv-430; Doc. # 34 in 2:09-cv-440; Doc. # 29 in 2:09-cv-512; Doc. # 35 in 2:09-cv-513; Doc. # 35 in 2:09-cv520); (3) Defendants' joint combined reply memorandum (Doc. # 34 in 2:09-cv-430; Doc. #37 in 2:09-cv-440; Doc. #32 in 2:09-cv-512; Doc. #38 in 2:09-cv-513; Doc. # 38 in 2:09-cv-520). For the reasons that follow, this Court finds the motions well taken only in part. I. Background Plaintiff, John W. Ferron, is an Ohio attorney and user of various e-mail accounts through which he has allegedly received a multitude of e-mails from various companies named as defendants in the five consolidated diversity cases before this Court. In mid-2009, Plaintiff filed the identified actions in which he asserts in his first claim that various defendants violated the Ohio Consumer Sales Practices Act ("OCSPA"), specifically Ohio Revised Code § 1345.02(A), by sending him unlawful email solicitations. Plaintiff then seeks in a second claim a declarative judgment under Ohio Revised Code § 1345.09(D) to this effect, as well as preliminary and permanent injunctive relief to stop the transmission to any Ohio consumer of e-mail messages from Defendants that violate § 1345.02(A). Additionally, Plaintiff asserts a third claim for the intentional interference with or destruction of evidence. In addition to statutory and other compensatory damages, Plaintiff prays for an award of attorney's fees under Ohio Revised Code § 1345.09(F), as well as punitive damages. Each of the five complaints covers a specified time period and involves specific defendants. In Case No. 2:09-cv-430, Plaintiff asserts that Defendants Metareward, Inc. and Media Breakaway, LLC either sent or authorized or caused agents to send 41 emails to him between December 17, 2005 and April 7, 2006, in violation of § 1345.02(A).[1] In Case No. 2:9-cv-440, Plaintiff asserts that Defendants Adteractive, Inc. and Media Breakaway, LLC either sent or authorized or caused agents to send 300 emails to him between September 15, 2005 and May 3, 2006, in violation of § 1345.02(A). In Case No. 2:09-cv-512, Plaintiff asserts that Defendants Azoogle.com, Inc. and Media Breakaway, LLC either sent or authorized or caused agents to send 66 emails to him between October 30, 2005 *996 and May 4, 2006, in violation of § 1345.02(A). In Case No. 2:09-cv-513, Plaintiff asserts that Defendants Search Cactus LLC, Aaron Weitzman, David Weinberg, and Media Breakaway, LLC either sent or authorized or caused agents to send 555 emails to him between January 7, 2006 and February 14, 2007, in violation of § 1345.02(A). In Case No. 2:09-cv-520, Plaintiff asserts that Defendants World Avenue Holdings, LLC, World Avenue USA, LLC, and Media Breakaway, LLC either sent or authorized or caused agents to send 303 emails to him between October 24, 2005 and May 4, 2006, in violation of § 1345.02(A). Defendants have moved to dismiss the five complaints. The parties have completed briefing on the motions to dismiss, which are ripe for disposition. II. Discussion A. Standards Involved A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires an assessment of whether the party asserting a claim has set forth a claim upon which the Court may grant relief. This Court must construe the pleading in favor of the party asserting a claim, accept the factual allegations contained in that party's pleading as true, and determine whether the factual allegations present a plausible claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court has explained, however, that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Accordingly, "[d]etermining whether a complaint states a plausible claim for relief will. . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 To be considered plausible, a claim must be more than merely conceivable. Bell Atlantic Corp., 550 U.S. at 556, 127 S.Ct. 1955; Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir.2007). What this means is that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. The factual allegations of a pleading "must be enough to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. See also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir.2008). In addition to Rule 12(b)(6), the motions to dismiss involve Rule 9(b) as well. That rule provides that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed.R.Civ.P. 9(b). To satisfy this rule, a plaintiff must "at a minimum allege the time, place and content of the misrepresentation upon which he or she relied; the fraudulent intent of the defendant; and the injury resulting from the fraud." See Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 680 (6th Cir.1988). See also United States v. Cmty. Health Sys., Inc., 342 F.3d 634, 642 (6th Cir.2003) (explaining that Rule 9(b) requires a plaintiff to state with particularity the circumstances of fraud-"i.e., the time, place, and substance"); American Town Ctr. v. Hall 83 Assocs., 912 F.2d 104, 109 (6th Cir. 1990). Thus, although the circumstances *997 of the fraud must be stated with requisite particularity, a complaint need not include evidence. Michaels Bldg. Co., 848 F.2d at 680 n. 9. What is required is simply sufficient notice of the nature of the claim. Id. at 680; American Town Ctr., 912 F.2d at 109-10. When deciding whether there is fair notice or a lack of particularity, a court must consider the heightened standard of Rule 9(b) in light of the policy of simplified pleadings set forth in Rule 8. Michaels Bldg. Co., 848 F.2d at 679; American Town Ctr., 912 F.2d at 109. For this Court to consider only the particularity of Rule 9(b) would be too narrow and inappropriate considering the simplicity and flexibility in pleading contemplated by the Rules. Michaels Bldg. Co., 848 F.2d at 679. Further, the Sixth Circuit Court of Appeals has held that Rule 9(b) may be relaxed when there has been a lack of discovery and the information needed for a plaintiff to achieve particularity is held exclusively by the opposing party. Id. at 680. Rule 9(b) therefore does not require a plaintiff to be omniscient, and it is not intended to prevent courts from reaching the truth behind a case. Id. Rather, the main purpose behind Rule 9(b) is to provide notice of a plaintiff's claim to a defendant so that the defendant may be able to prepare an informed responsive pleading. Id. at 679; Coffey v. Foamex, L.P., 2 F.3d 157, 161-62 (6th Cir.1993). B. Analysis As a threshold matter, this Court notes that Defendants have requested oral argument on their motions. S.D. Ohio Civ. R. 7.1(b)(2) permits such a request, which is subject to the Court's determination of whether oral argument is essential to the fair resolution of the cases sub judice. Upon consideration, the Court concludes that oral argument on the motions to dismiss is not warranted at this time and therefore DENIES the request for such argument. Having disposed of this preliminary matter, the Court shall now address each argument targeting the merits of Plaintiff's pleading. 1. Claims One and Two All of the motions to dismiss present the arguments that Plaintiff has failed to satisfy the requirements of Rule 12(b) and has failed to plead with particularity as required under Rule 9(b). In regard to the former argument, Defendants assert that Plaintiff's complaints only present generic recitations of the elements of OCSPA violations while lacking factual allegations that allow the Court to draw the inference that Defendants are actually liable for the alleged misconduct. Defendants argue, for example, that Plaintiff has failed to plead facts that indicate that the alleged unfair or deceptive acts occurred in connection with requisite consumer transactions. The OCSPA defines a "consumer transaction" as "a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, a franchise, or an intangible, to an individual for purposes that are primarily personal, family, or household, or solicitation to supply any of these things." Ohio Rev.Code § 1345.01(A). Noting that whether a primarily personal, family, or household purpose is involved is a subjective inquiry focusing on a plaintiff, Defendants posit that the complaints fail to include factual assertions as to Plaintiff's intended use for the advertised items; they also assert that there is nothing inherent in the advertised items that mandates concluding that primarily personal, family, or household purposes exist. Sixth Circuit precedent and the nature of today's inquiry dispose of Defendants' Rule 12(b)(6) argument. In the post-Twombly case of Ferron v. Zoomego, Inc., 276 Fed.Appx. 473 (6th Cir.2008), the court *998 of appeals addressed whether Plaintiff sufficiently pled all of the elements of his OSCPA claims in a complaint dismissed by another judicial officer in this District. The Sixth Circuit explained that the trial judge "reasoned that while Plaintiff's Complaint alleges that `each of the email messages transmitted by Defendants to Plaintiff is a "consumer transaction,"' Plaintiff had failed to plead any factual allegations in support of this legal conclusion by categorizing the emails as sales, leases, assignments, award by chance, etc." Id. at 475-76. The court of appeals upheld that determination. In so doing, the Sixth Circuit noted that whether a consumer transaction was involved was a legal conclusion, while factual allegations were necessary for each element of that legal conclusion. Id. at 476. The court of appeals looked to the pleading for these factual allegations and explained: We can construe the language of Paragraph 15 of Plaintiff's Complaint, describing the factual content of some email messages as notifying Plaintiff that he had won a prize (albeit by using the exact language of the pertinent Ohio Administrative Code sections) to find that he alleged some email solicitations sent by unidentified Defendants were to supply an "award by chance." However, we can find no direct or inferential allegation in his Complaint that any email solicitations to supply an award by chance were for primarily personal, family, or household purposes. Thus, while Plaintiff may have sufficiently alleged in his Complaint that the email messages were solicitations, and that the solicitations were to supply an "award by chance" to an individual, Plaintiff did not allege that the award by chance was "for purposes that are primarily personal, family, or household" as required to satisfy the definition of a "consumer transaction" under the OCSPA. Without this additional allegation, Plaintiff has not pleaded sufficiently with respect to a material element of his claim-that the email messages were "consumer transactions." Therefore, he has failed to state a claim on which relief can be granted. Id. at 476 (emphasis added). Thus, what the Sixth Circuit found Twombly to require in such cases was an allegation that an award by chance was for purposes that are primarily personal, family, or household. What the complaints sub judice allege are that each award involved in each email solicitation "is a good, service and/or intangible for purposes that are primarily personal, family or household." Such allegations, absent from the complaint in Zoomego, Inc., distinguish today's pleadings from Plaintiff's prior, dismissed complaint. Consequently, these allegations satisfy the Twombly standard. Defendants label Plaintiff's personal, family, or household use allegations as cursory and argue that they fail to provide a factual basis supporting the conclusion that the advertised items are covered by the OCSPA. This argument fails to credit that by classifying the award or prize involved as he does, Plaintiff is representing by inference to this Court his intended use for the items involved. In other words, although the items may not be intrinsically and solely for primarily personal, family, or household purposes—they may be capable of work-related purposes as well—the items as perceived by Plaintiff allegedly would be put to purposes that would place any exchange within the realm of a consumer transaction. The Sixth Circuit did not say in Ferron v. Zoomego, Inc. that Plaintiff has to plead what personal, family, or household item he would purchase with the Target store gift card offered in one of the emails. Rather, the court of appeals requires Plaintiff to indicate that he would use that gift card for a primarily *999 personal, family, or household purpose. Plaintiff has made such allegations by reasonable inference. This Court should not credit such allegations, Defendants argue, because Plaintiff's private law practice has focused on pursuit of alleged OCSPA violations in advertisements sent to him or his friends. Therefore, Defendants conclude, Plaintiff's assertions that the offers constituted consumer transactions lack trustworthiness. This argument ignores the standard that controls today's inquiry. The Court cannot weigh the veracity of the allegations Plaintiff makes; rather, this Court must accept the factual allegations contained in Plaintiff's pleading as true and then determine whether the factual allegations present plausible claims. It simply does not matter at this stage whether this Court believes the inferences. Precedent teaches that asking for plausible grounds to create an inference does not impose a probability requirement. Twombly, 550 U.S. at 556, 127 S.Ct. 1955. Instead, all that is required is enough factual content, necessarily accepted as true, to raise a reasonable expectation that discovery will reveal evidence of illegality. Id. This standard is not as strict as Defendants argue given that "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and `that a recovery is very remote and unlikely.'" Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)); see also Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 630 (6th Cir.2009). This Court declines Defendants' invitation to engage in what amounts to "requir[ing] heightened fact pleading of specifics" and instead looks for "only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Thus, as explained above, the Court regards Plaintiff's pleading not as just a collection of threadbare recitals of elements, but as presenting allegations of the sort discussed by the court of appeals in Zoomego, Inc. Plaintiff has pled factual allegations that allow the Court to draw the reasonable inferences at issue, and this Court is not permitted to weigh or disbelieve these factual allegations in the motion to dismiss context. Defendants also argue that dismissal is warranted under Rule 12(b)(6) on the grounds that Plaintiff has failed to identify precisely how each email violates the OCSPA. Criticizing paragraphs in each claim of the complaints as "formulaic" and "substantively identical," Defendants argue that Plaintiff has simply parroted language from the Ohio Administrative Code provisions that form the basis of the asserted OCSPA violations. Defendants cite as an example Plaintiff's allegation that the emails fail to disclose clearly and conspicuously any and all conditions necessary to receive the items offered without pleading what specific conditions were purportedly omitted or disclosed in an unclear or inconspicious manner. Impermissibly relying on material extrinsic to the pleadings, such as their history with Plaintiff in other cases and correspondence by Plaintiff's counsel, Defendants again argue that the complaints fail to set forth factual content presenting the elements of an OCSPA claim. This Court disagrees. As discussed above, Rule 12(b)(6) requires Plaintiff to plead facts sufficient to present a plausible claim. Plaintiff has pled that Defendants failed to disclose or disclose sufficiently material. This is a factual allegation leading to a legal conclusion, and the Court must accept as true that Defendants failed to disclose some conditions or terms. Nothing in Twombly and its progeny require Plaintiff to specify in the pleading what those conditions are. Twombly in *1000 fact provides that "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations." 550 U.S. at 555, 127 S.Ct. 1955. There is thus no basis in Rule 12(b)(6) for the heightened pleading Defendants urge this Court to require. Cf. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 725 (6th Cir.2010) (citing Twombly in holding that a plaintiff need not plead "specific facts" to support a claim when he has pled a set of facts that, accepted as true, would entitle him to relief). Accordingly, the court of appeals has found an unsigned proposal of a settlement agreement attached to a pleading to constitute sufficient detail to assume the agreement existed for purposes of a motion to dismiss. Courie, 577 F.3d at 630. The complaints here assert that conditions or terms existed, and Defendants' own argument in their briefing is that the content of such conditions or terms was contained in the webpages (accessible via hyperlinks) that Plaintiff asserts in his third claim Defendants have destroyed. As the court of appeals was persuaded in regard to content in Courie, this Court is similarly persuaded that website conditions or terms existed—at least for purposes of resolving the motions to dismiss. Defendants also attack Plaintiff's assertion of his allegations "upon information and belief." Another judicial officer in this District has explained that "[a] plaintiff may plead fraud based `upon information and belief,' but `the complaint must set forth a factual basis for such belief, and the allowance of this exception must not be mistaken for license to base claims of fraud on speculation and conclusory allegations.'" Ferron v. SubscriberBase Holdings, Inc., No. 2:08-cv-760, 2009 WL 650731, at *5 (S.D.Ohio Mar. 11, 2009) (quoting Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 878 (6th Cir.2006)). The pleading here satisfies this criteria. This leads to the issue of whether Plaintiff must comply with the particularity requirement of Rule 9(b) in pleading claims arising under the OCSPA. Defendants contend that Plaintiff has not pled fraud with sufficient particularity, as required by Rule 9(b), insofar as he has failed to identify the specific shortcomings of each email at issue. Defendants also argue that the complaints not only fail to provide factual support for an assertion of damages, but also fail to assert any injury related to claims one and two in contravention of Rules 9(b) and 12(b)(6). In a prior Ferron case, the undersigned judicial officer addressed whether Rule 9(b) applied to OCSPA claims and concluded that it did not. Ferron v. Search Cactus, L.L.C., No. 2:06-cv-327, 2007 WL 1792332, at *4 (S.D.Ohio June 19, 2007). That conclusion turned on the implicit rationale that unfair or deceptive acts under the OCSPA "`need not rise to the level of fraud.'" Hacker v. Nat'l Coll. of Bus. & Tech., No. 23489, 186 Ohio App.3d 203, ___, 927 N.E.2d 38, 44-45, 2010 WL 404844, at *6 (Ohio Ct.App. Feb. 5, 2010) (quoting Mannix v. DCB Serv., Inc., No. 19910, 2004 WL 2848921, at *3 (Ohio App. Nov. 24, 2004)). See also Shumaker v. Hamilton Chevrolet, Inc., 184 Ohio App.3d 326, 335, 920 N.E.2d 1023, 1031 (Ohio App. 2009). At least two other judicial officers in this District appear to disagree, however, and have concluded that "Rule 9(b) applies in cases such as this because actions for deceptive trade practices are, at their core, fraud claims." Ferron v. SubscriberBase Holdings, Inc., No. 2:08-cv760, 2009 WL 650731, at *5 n. 4 (S.D.Ohio Mar. 11, 2009) (citing Ferron v. Zoomego, Inc., No. 2:06-cv-751, 2007 WL 1974946 (S.D.Ohio July 3, 2007)). The Sixth Circuit declined to reach the issue in Ferron v. Zoomego, Inc., *1001 276 Fed.Appx. 473, leaving the potential application of Rule 9(B) unresolved. Assuming arguendo that the heightened pleading standard of Rule 9(b) applies here, this Court concludes that Plaintiff's complaints satisfy that standard. In discussing its "long-standing holding that, under Rule 9(b), a plaintiff must `allege the time, place, and content of the alleged misrepresentation . . . the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud'" the Sixth Circuit has "also made clear, however, [that] this requirement should be understood in terms of Rule 9(b)'s broad purpose of ensuring that a defendant is provided with at least the minimum degree of detail necessary to begin a competent defense." U.S. ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 504 (6th Cir.2008) (quoting U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 504 (6th Cir.2007)). The pleadings here, although they could be more detailed in some specifics, nonetheless present sufficient particularity to enable Defendants to begin mounting a competent defense. See Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 680 n. 9 (6th Cir.1988) ("[D]efendants border on urging that Rule 9(b) requires that plaintiff plead the evidence of the fraud. The rule, however, requires only that the `circumstances' of the fraud be pled with particularity, not the evidence of the case. While `circumstances' may consist of evidence, the rule does not mandate the presentation of facts and evidence in a complaint."). Similarly unsuccessful for Defendants is their argument that Rules 9(b) and 12(b)(6) compel dismissal because the complaints fail to provide factual support for an assertion of injury and damages. Another judicial officer in this District has concluded that the OCSPA does not require a showing of reliance on email solicitations or injury. SubscriberBase Holdings, Inc., 2009 WL 650731, at *6. Citing Ohio law stating that "`under the Consumer Sales Practices Act it is not necessary that a sale actually take place before a supplier may be held liable to a consumer for deceptive acts,'" that judicial officer correctly concluded that "[a]ccordingly, Section 1345.02 does not require [a][p]laintiff to allege reliance on or damages arising out of the deceptive scheme." Id. (quoting Weaver v. J.C. Penney Co., Inc., 53 Ohio App.2d 165, 168, 372 N.E.2d 633, 635 (Ohio App.1977)). This Court agrees and concludes that dismissal is not warranted here. See Weaver, 53 Ohio App.2d at 169, 372 N.E.2d at 635 ("A solicitation to sell goods or services intended primarily for personal, family, or household use, may be sufficient to give rise to liability even in the absence of an actual sale [i]f a deceptive act is committed in connection with that solicitation."). Defendants next argue that dismissal is warranted of Plaintiff's claims under § 1345.02(A) for failing to register fictitious business names with the Ohio Secretary of State. Defendants note that Plaintiff's pleading fails to identify a specific statute or rule giving rise to such a duty to register, but suggests that Plaintiff is relying on Ohio Revised Code § 1329.01. Plaintiff in turn directs this Court in his briefing to the Ohio Attorney General's Public Inspection File, which he asserts supports that failure to register as required by § 1329.01 constitutes an OCSPA violation. In one of Plaintiff's prior cases, the undersigned judicial officer addressed this precise issue and explained at length why "a § 1329.01 violation is not a § 1345.02(A) violation and does not afford a consumer a private cause of action." Ferron v. VC E-Commerce Solutions, Inc., No. 2:06-cv-322, 2007 WL 295455, at *7 n. 6 (S.D.Ohio Jan. 29, 2007). The Court incorporates by reference the relevant portion *1002 of that analysis, recognizing that the latter proposition proves dispositive here. Id. at *5-7. Thus, as Defendants note in their reply memorandum, regardless of whether the failure to register indeed presents a § 1345.02(A) violation that the Ohio Attorney General can pursue, there is simply no private cause of action for such lack of registration. The Court finds Defendants' argument for dismissal of this component of Plaintiff's complaints well taken. 2. Claim Three Defendants next argue that Plaintiff has failed to satisfy the pleading requirements of Rules 9(b) and 12(b)(6) in regard to his claim for the intentional interference with or destruction of evidence. Plaintiff asserts that spoliation occurred because Defendants ceased hosting various websites made relevant by hyperlinks in the emails, which means that Defendants failed to preserve evidence. Defendants argue that Plaintiff has failed to plead any facts indicating when and why the websites were taken down. Additionally, Defendants present the dubious argument that Plaintiff committed spoliation by failing to retain the website evidence. This latter argument, presented by Defendants with no supporting authority, warrants little comment beyond a statement of rejection by this Court. In support of dismissal on the former grounds set forth above, Defendants again direct this Court to Ferron v. SubscriberBase Holdings, Inc., 2009 WL 650731. That decision turned on the conclusions that the spoliation claim was one for the fraudulent concealment of evidence and that the pleading failed to present facts regarding the why and when the websites were taken down. Id. at *5-6. Despite that non-binding case, Defendants' Rule 9(b) argument for dismissal fails here. Even assuming arguendo that Rule 9(b) applies to the spoliation claim, this Court is cognizant that "`[Rule 9(b)] may be relaxed where information is only within the opposing party's knowledge.'" Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir.2003) (quoting Michaels Bldg. Co., 848 F.2d at 680). The when is not reasonably within Plaintiff's knowledge absent discovery. The why is a question of intent that can be culled by reasonable and obvious inference from the pleadings. The effect of Defendants' alleged spoliation on Plaintiff's claims is implicit. The complaints thus present the necessary pleading and enable Defendants to begin to mount a competent defense. See Michaels Bldg. Co., 848 F.2d at 680 ("Rule 9(b) does not require omniscience; rather, the Rule requires that the circumstances of the fraud be pled with enough specificity to put defendants on notice as to the nature of the claim."). Neither Rule 9(b) nor 12(b)(6) compel dismissal here. 3. Attorney's Fees Defendants argue that Plaintiff cannot recover attorneys' fees under the OCSPA because he is the only identified shareholder of his law firm. Although two associates of that firm represent Plaintiff, Defendants argue, this is simply a ruse to circumvent the general rule that pro se litigants cannot recover attorneys' fees. The distinguishable authority on which Defendants rely, however, targets pro se litigants. Plaintiff is not a pro se litigant, and this Court declines Defendants' slippery slope invitation to recast a firm shareholder whose firm represents him as a pro se individual. Plaintiff has counsel who are representing him, subjecting themselves to various risks and sustaining various obligations (i.e., Rule 11). There is nothing beyond mere speculation to suggest here that Plaintiff's counsel are not functioning as independent counsel. This Court will *1003 not ignore the presence of counsel simply because they are also Plaintiff's employees. To do so would invite meaningless distinctions because logic would progressively render no law firm capable of representing any partner at that firm, however inconsequential his or her role in management of the firm may be. The Court declines to follow Defendants' attempt to impose a limitation on the OCSPA that the statutory scheme does not embrace. 4. Res judicata Defendant Search Cactus argues in Case No. 2:09-cv-513 that res judicata bars Plaintiff's claims against the company for emails Plaintiff received prior to April 3, 2006. Search Cactus reasons that these emails should have been litigated in a state municipal court case that Plaintiff voluntarily dismissed with prejudice and reaching a settlement. (Doc. # 11-4 in 2:09-cv-513.) Search Cactus also argues that dismissal of claims involving pre-April 3, 2006 emails is warranted based on this Court's decision in another case Plaintiff had before this Court, Case No. 2:06-cv-327. In that case, Plaintiff asserted OCSPA claims against Search Cactus and other defendants. The defendants in that case filed for summary judgment on grounds that included a res judicata argument, asserting that the doctrine barred claims for emails received before April 3, 2006, the date on which the state court case was dismissed with prejudice. This Court agreed and granted summary judgment on the claims related to the pre-April 3, 2006 emails. (Doc. # 237 in 2:06-cv-327.) Plaintiff argues that res judicata does not apply. He reasons that because this Court's previous summary judgment decision was an interlocutory order, it became null and void upon the voluntary dismissal of that case. Plaintiff also asserts that this Court should decline to adopt the reasoning set forth in the summary judgment decision because it was incorrectly reasoned. This Court agrees with Search Cactus, Weitzman, Weinberg, and Media Breakaway. Regardless of the nature of the summary judgment decision, the rationale set forth in that October 26, 2007 Opinion and Order, which this Court adopts and incorporates by reference, proves dispositive here. (Doc. # 237 in 2:06-cv-327.) The Court reaches now the same conclusion it reached then: res judicata bars claims based on all the pre-April 3, 2006 emails because Plaintiff could have and should have brought such claims in the municipal court case, regardless of whether the emails constituted separate or a single transaction. Additionally, the foregoing res judicata rationale extends, as before, to those in privity with Search Cactus (a point that Plaintiff does not address in his memorandum in opposition). 5. Statute of limitations In Case No. 2:09-cv-513, Defendants Search Cactus, Weitzman, Weinberg, and Media Breakaway argue that the statute of limitations has expired on claims related to three "new" emails, constituting exhibit 104 (dated February 7, 2006), exhibit 244 (dated March 11, 2006), and exhibit 361 (dated April 4, 2006) to the relevant complaint. (Doc. #3-21, at 11, Ex. 104 in 2:09-cv-513; Doc. # 3-25, at 13, Ex. 244 in 2:09-cv-513; Doc. # 3-29, at 17, Ex. 361 in 2:09-cv513.) The Court's decision on the res judicata argument, discussed above, renders the limitations argument moot in regard to the first two emails at issue. This leave the April 4, 2006 email subject to the limitations attack. There is a two-year statute of limitations on OCSPA claims of the sort asserted in Case No. 2:09-cv-513. Ohio Rev.Code § 1345.10(C) ("An action under sections 1345.01 to 1345.13 of the Revised Code *1004 may not be brought more than two years after the occurrence of the violation which is the subject of suit, or more than one year after the termination of proceedings by the attorney general with respect to the violation, whichever is later."). Plaintiff filed the complaint in Case No. 2:09-cv-513 in the Franklin County Court of Common Pleas on June 3, 2009. (Doc. #3.) This falls well after the two-year limitations period attached to the April 4, 2006 email. Accordingly, any OCSPA claim predicated on that email is time barred. In Case No. 2:09-cv-520, Defendants World Avenue USA, LLC and World Avenue Holdings, LLC argue that the two-year statute of limitations bars all claims against them. They argue that because Plaintiff failed to name them in a prior dismissed case, Case No. 2:06-cv-322, Ohio's Savings Statute does not salvage the claims that form the basis of the lawsuit against them in Case No. 2:09-cv-520. See Ohio Rev.Code § 2305.19. At the core of this argument is the status of World Avenue USA, LLC and World Avenue Holdings, LLC. The defendant companies have attached to their briefing certificates of good standing indicating their State of Delaware incorporation, as well as a certificate showing such information for The Useful, LLC. (Docs. # 16-5, 16-6, 16-7.) This Court can consider such documents as part of its Rule 12(b)(6) analysis.[2]Armengau v. Cline, 7 Fed.Appx. 336, 344 (6th Cir.2001) (recognizing that a court can consider public records in considering a Rule 12(b)(6) motion); see also Rodney v. LaHood, 359 Fed.Appx. 634, 636-37 (6th Cir.2010) ("A court considering a 12(b)(6) motion may consider materials in addition to the complaint if such are public records or otherwise appropriate for the taking of judicial notice."). These documents indicate that World Avenue USA, LLC was formed on September 21, 2006 (Doc. #16-5), that World Avenue Holdings, LLC was formed on June 1, 2006 (Doc. # 16-6), and that The Useful, LLC was originally formed as World Avenue U.S.A., LLC on June 26, 2006, and later changed its name on September 19, 2006 (Doc. #16-7). Noting that the emails at issue in Case No. 2:09-cv-520 were received between October 24, 2005 and May 4, 2006—before they were even formed-World Avenue USA, LLC and World Avenue Holdings, LLC argue that the statute of limitations on the claims against them expired at the latest on May 4, 2008. Moreover, the defendant companies assert, Ohio's Savings Statute, Ohio Revised Code § 2305.19, does not apply because Case No. 2:06-cv-322 and Case No. 2:09-cv-520 are not substantially the same as required because the complaints involve different parties. Plaintiff disagrees. He notes that he had previously named The Useful (as the useful.com) as a defendant in the prior case and that his complaint in Case No. 2:09-cv-520 asserts that World Avenue USA, LLC has been owned by, or is a subsidiary of, World Avenue Holdings, LLC and that both companies have done business under numerous names, including The Useful.[3] Plaintiff argues § 2305.19 allows him to re-file an action within one year if the original action was dismissed without prejudice, as Case No. 2:06-cv-322 *1005 was. The statute applies, Plaintiff asserts, because World Avenue USA, LLC and World Avenue Holdings, LLC are alter ego companies of The Useful and variant business names thereof. The parties disagree as to the effect on their dispute of Children's Hospital v. Ohio Department of Public Welfare, 69 Ohio St.2d 523, 433 N.E.2d 187 (1982). In that case, the Ohio Supreme Court explained that "[t]he savings statute applies when the original suit and the new action are substantially the same. The actions are not substantially the same, however, when the parties in the original action and those in the new action are different." Id. at 525, 433 N.E.2d at 189. Plaintiff attempts to distinguish this statement by pointing to discussion of the state court decision by a judicial officer in the Northern District of Ohio, who explained that he was "persuaded that the addition of new parties in Children's Hospital was a circumstance supporting the conclusion that the complaints were not substantially the same, not a sine qua non for such conclusion." Lum v. Mercedes Benz USA, L.L.C., No. 3:05CV7191, 2006 WL 1174228, at *2 (N.D.Ohio Apr. 28, 2006). That same judicial officer stated that "a refiled complaint may be substantially the same as an original complaint even where the designation of the parties differs." Id. at *2 n. 1 (citing Cox v. Ohio Parole Comm'n, 31 Ohio App.3d 216, 217-18, 509 N.E.2d 1276, 1278 (Ohio App. 1986)). Drawing on this reasoning, Plaintiff concludes that "[a]lthough [World Avenue USA, LLC and World Avenue Holdings, LLC] were not specifically named as defendants in Plaintiff's previous lawsuit, Plaintiff's Complaint in this case pleads facts establishing that World Avenue USA, LLC and World Avenue Holdings, LLC stand in the shoes of The Useful, which was named, and may be held accountable for The Useful's tortious conduct." (Doc. #31, at 34 in 2:09-cv-520.) World Avenue USA, LLC and World Avenue Holdings, LLC urge this Court to reject the alter-ego theory on the grounds that Plaintiff has failed to plead any facts supporting what is a legal conclusion: the asserted alter-ego status of these companies. The defendant companies posit that Lum in fact supports their view of the Children's Hospital holding, stating that Lum "held that a re-filed complaint should be dismissed pursuant to Children's Hospital where the parties or the claims have changed such that the action is not substantially similar to the original action. It did not hold that new defendants may be added in a re-filed action under the savings statute." (Doc. # 34, at 40 in 2:09-cv-430.) World Avenue USA, LLC and World Avenue Holdings, LLC also attempt to explain away Cox by noting that because that case involved a first case filed against individual commissioners in a court in which only state agencies could be sued and a second case properly naming Ohio's Parole Commission, the complaints were substantially similar. The claims and ultimately the intended parties were the same. The crux of the instant dispute therefore lies in whether Plaintiff has added new parties so as to defeat application of the savings statute. As noted, Ohio law provides that the key is whether the prior action and the new action are substantially the same. One Ohio court of appeals has explained: Whether a new action is substantially the same as an original action for purposes of the savings statute does not always depend on whether the original action set forth the same legal theories as those asserted in the new complaint. Instead, the question largely turns on whether the original complaint and the *1006 new complaint contain similar factual allegations so that it can reasonably be said that the party or parties were put on fair notice of the type of claims that could be asserted. See Bowshier v. North Hampton, Clark App. No.2001CA3, 2002-Ohio-2273 [2002 WL 940125] (concluding that new complaint alleging breach of fiduciary duty was substantially the same as claims asserted in original complaint, "taxpayer action, declaratory judgment action, and civil rights claim," when the original complaint and the new complaint both asserted the same facts); Rios v. Grand Slam Grille (Feb. 18, 1999), Cuyahoga App. No. 75150 [1999 WL 1044506] (concluding that new complaint asserting malicious prosecution and abuse of process was substantially the same as original complaint that asserted malicious prosecution when both claims arose out of the same conduct and both the new and original complaints alleged the same facts establishing the right to relief); Vercellotti v. HVC-Daly, Inc. (Dec. 5, 1997), Lucas App. No. L-97-1063 [1997 WL 770964], discretionary appeal not allowed, (1998), 81 Ohio St.3d 1515, 692 N.E.2d 620, and Carrier v. Weisheimer Companies, Inc. (Feb. 22, 1996), Franklin App. No. 95APE04-488 [1996 WL 76317] (both stating that in determining whether new complaint substantially the same as original complaint "a court must determine whether the allegations in the first action gave the defendant fair notice of the allegations in the second action"); Jones v. St. Anthony Med. Ctr. (Feb. 20, 1996), Franklin App. No. 95APE08-1014 [1996 WL 70997] (concluding that new complaint and original complaint were substantially the same when the new complaint differed "only to the extent that new theories of recovery, based on the same factual occurrence, are added to the new complaint"); Andrews v. Scott Pontiac Cadillac GMC, Inc. (June 2, 1989), Sandusky App. No. S-88-32 [1989 WL 57618] (stating that "a new complaint is substantially the same as an original complaint * * * where the new complaint differs only to the extent that new theories of recovery, based on the same factual occurrence, are added to the complaint"). Thus, when a new complaint contains factual allegations that were not alleged in the original complaint, and further contains a new theory of relief based on the new factual allegations, the savings statute will not apply. See Vercellotti, supra (concluding that when the new complaint raised a new legal theory, a defective product claim, and further added factual allegations not raised in the original complaint to support the defective product claim, the savings statute did not apply). Lanthorn v. Cincinnati Ins. Co., No. 02CA743, 2002 WL 31768796, at *4-5 (Ohio App. Dec. 5, 2002) (paragraph designations omitted). Thus, a re-filed action can permissibly present new claims or theories of recovery based on the same facts. Id.; see also Fiske v. U.S. Health Corp. of S. Ohio, No. 04CA2942, 2005 WL 674445, at *4-5 (Ohio App. Mar. 11, 2005). The two complaints involved in today's inquiry present the same claims arising from the same set of factual allegations. World Avenue USA, LLC and World Avenue Holdings, LLC argue, however, that the new complaint substitutes parties. They assert that alter-ego liability is a legal conclusion and not a factual conclusion, which means that this Court need not accept what they paint as Plaintiff's belated attempt to add substitute defendants via artful pleading. But the latest complaint involved here asserts factual allegations that, if true, could lead to the legal conclusion that would permit application of *1007 the alter-ego theory to establish liability. The inference that arises by the allegations that the defendant companies have done business as The Useful and variants of that entity presents facts that could support the elements of the alter-ego theory. The Court is cognizant that the "substantially the same" issue unquestionably presents a close call. Even in light of Cox's apparent endorsement of "close enough" pleading, other state case law exists adhering to a narrow application of Ohio's savings statute. For example, another state court of appeals addressed a situation in which, following dismissal of a prior action, a plaintiff attempted to add one new defendant to a subsequent action. Crawford v. Medina Gen. Hosp., No. 2604-M, 1997 WL 537675, at * 1-2 (Ohio App. Aug. 20, 1997). The court of appeals held that § 2305.19 applied to save claims against those four defendants named in both the old and the new actions, but that the statute of limitations barred select claims against the defendant added to the second action because the savings statute did not apply to this belated defendant. Id. at *2-3. In reaching this result, the state court explained that "where, as here, the claims made and the relief sought are substantially similar, then to the extent the named defendants are the same in each complaint, the savings statute should apply." Id. at *2. Similarly, another Ohio court of appeals distinguished Cox as a "unique situation." Lewis v. Lawyer Chiropractic Clinic, No. 98CA2590, 1999 WL 713605, at *6 (Ohio App. Aug. 26, 1999). The Lewis court addressed a situation in which a plaintiff has added four chiropractors in a second action who were not named as defendants in a previously dismissed action. Id. at *5-6. That court of appeals examined whether the plaintiff had provided pre-lawsuit notice to the four new defendants of the first law suit as required by an applicable medical malpractice statute, whether the plaintiff had named these individuals in that first action, whether the first action had been filed in a court of special jurisdiction as in Cox so as to create an inference of who constituted the intended defendants, and, notably, whether plaintiff had presented evidence of a special contractual relationship between various defendants that would permit a conclusion that the first lawsuit was an attempt to commence an action against the four chiropractors. Id. at *6. Finding that each of these factors weighed against the plaintiff, the state court concluded that the second action was not substantially the same as the first action so as to render the savings statute applicable. Id. Such case law informs today's decision— especially the Ohio courts' focus on a plaintiff's intent and the relationship between various defendants. The complaint in 2:06-cv-322 did not name World Avenue USA, LLC and World Avenue Holdings, LLC, although depending on the circumstances of the corporate relationships involved, these two companies might have been on fair notice of the type of claims that could have been eventually asserted against them via amendment absent the prior dismissal. Thus, like Cox, the facts may reflect a situation in which a plaintiff named one or more intended defendants improperly in one case and properly in the next, all the while with the intent to reach the party ultimately responsible for the alleged wrongdoing. Or the facts may ultimately reveal that Plaintiff has unmistakably dropped the ball and is foreclosed from continuing to proceed against World Avenue USA, LLC and World Avenue Holdings, LLC. See Heilprin v. Ohio State Univ. Hosps. of Ohio State Univ., 31 Ohio App.3d 35, 37, 508 N.E.2d 178, 180 (Ohio App.1986) (holding that § 2305.19 did not *1008 preserve claims against a defendant named in a second action but not in the first). The end result of this uncertainty is that this Court declines to resolve the statute of limitations issue in favor of World Avenue USA, LLC and World Avenue Holdings, LLC in the context of the instant motion to dismiss. This Court must accept the factual allegations of "doing business as" as true and draw all reasonable inferences in Plaintiff's favor, which means that there may be a basis for a legal conclusion favoring Plaintiff—the alter ego theory—which may in turn establish permissible application of the savings statute so as to defeat a statute of limitations defense. Discovery and eventual disposition based on the precise relationships of the companies involved will resolve this issue, whether through summary judgment or another dispositive mechanism. The Court emphasizes that it expresses no conclusive opinion as to application of the alter-ego theory or the statute of limitations defense. Today's narrow holding is simply that based on the spartan record and the briefing before this Court, the requested dismissal is not warranted at this time. 6. Jurisdiction In Case No. 2:09-cv-520, World Avenue Holdings, LLC argues that dismissal is warranted because this Court lacks both general and personal jurisdiction over the company. Relying on the aforementioned certificates of good standing and the Declaration of Fidel D. Dhana (Docs. # 16-5, 16-6, 16-7, 16-8 in 2:09-cv-520), the last of which this Court now considers, World Avenue Holdings, LLC asserts that the Court should credit its fairly undetailed documents and self-serving representations over the allegations of the complaint and persuasive authority. The undersigned has previously rejected the same essential argument raised by another defendant in a similar case brought by Plaintiff. See Ferron v. 411 Web Directory, No. 2:09-cv153, 2009 WL 2047780, at * 1-6 (S.D.Ohio July 6, 2009). Other judicial officers in this District have reached the same result in other similar cases based on the same core reasoning. See Ferron v. e360Insight, LLC, No. 2:07-cv-1193, 2008 WL 4411516, at *2-4 (S.D.Ohio Sept. 29, 2008); Ferron v. Echostar Satellite LLC, No. 2:06-cv-453, slip op. at 4-5 (S.D.Ohio Sept. 24, 2008). This Court incorporates by reference the relevant portion of all of the foregoing decisions and concludes that based on the same rationale contained therein, coupled with the uncertainty surrounding the not yet fully apparent (and therefore not fully accepted by this Court) corporate relationship of World Avenue Holdings, LLC to various actors involved in this litigation, Plaintiff has met his relatively slight burden of establishing a prima facie case of personal jurisdiction over World Avenue Holdings, LLC. The company's jurisdictional challenge therefore fails. III. Conclusion For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the joint combined motions to dismiss. (Doc. #10 in 2:09-cv-430; Doc. # 12 in 2:09-cv-440; Doc. # 9 in 2:09-cv-512; Doc. # 11 in 2:09-cv-513; Doc. # 16 in 2:09-cv-520.) This Court dismisses: (1) that portion of Plaintiff's pleadings predicated on Defendants' asserted failure to register fictitious business names with the Ohio Secretary of State; and (2) all claims based on the pre-April 3, 2006 emails and the April 4, 2006 email in Case No. 2:09-cv-513. All other claims remain pending. IT IS SO ORDERED. NOTES [1] Plaintiff previously asserted claims related to these emails in Case No. 2:06-cv-322, which Plaintiff dismissed. For purposes of summarizing the complaints, however, the Court will describe each case in terms of the number of emails involved in the pleading and not set forth here the effect of any subsequent dismissals or amendments. For example, all claims against Defendant Metareward, Inc. have been dismissed with prejudice. (Docs. # 29, 31 in 2:09-cv-513.) [2] This Court declines to consider a fourth proffered exhibit, the Declaration of Fidel D. Dhana, a Vice president of World Avenue Holdings, LLC, because that document is not a public record and would constitute extrinsic evidence. (Doc. # 16-8 in 2:09-cv-520.) [3] The Court notes that Plaintiff's briefing incorrectly references Case No. 2:06-cv327 as the prior case. Plaintiff actually relies upon his actions and pleading in Case No. 2:06-cv-322, beginning when he named The Useful as a defendant in his second amended complaint. (Doc. # 126 in 2:06-cv-322 ¶ 48.)

626 F.2d 863 Robinsonv.Woodard 80-6269 UNITED STATES COURT OF APPEALS Fourth Circuit 7/2/80 1 M.D.N.C. AFFIRMED

14 So.3d 200 (2007) ANGELO RUDOLPH v. STATE. No. CR-06-0766. Court of Criminal Appeals of Alabama. August 24, 2007. Decision of the Alabama Court of Criminal Appeals without opinion Affirmed.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kathleen G. Connors, : Petitioner : : No. 2198 C.D. 2013 v. : : Submitted: June 20, 2014 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: July 21, 2014 Kathleen G. Connors (Claimant) petitions pro se for review of the November 7, 2013 order of the Unemployment Compensation Board of Review (Board) which held that Claimant is ineligible for benefits pursuant to section 402(b) of the Unemployment Compensation Law (Law).1 We affirm. Claimant was employed by Human Resources Centers, Inc. (Employer) as a part-time respite worker from June 2007 to April 2013. On April 23, 2013, Claimant resigned from her position. The local job center determined that Claimant was ineligible for compensation under section 402(b) of the Law because, although 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). Section 402(b) of the Law provides that a claimant is ineligible for benefits for any week in which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. she had cause of a necessitous and compelling nature to leave her employment, she did not exhaust all alternatives prior to quitting. Claimant appealed, and the matter was assigned to a referee. On June 28, 2013, the referee mailed a Notice of Hearing for July 12, 2013 (Notice) to the parties. Neither party attended the hearing. Citing Claimant’s absence from the hearing, the referee determined that Claimant failed to meet her burden to demonstrate entitlement to benefits and held that she was ineligible for compensation under section 402(b) of the Law. (Referee’s opinion at 2.) Claimant appealed to the Board and requested a remand hearing. The Board remanded the matter for a hearing to address the reason for Claimant’s failure to appear at the July 12, 2013 hearing as well as the merits of the case. Claimant testified that she did not receive the Notice sent on June 28, 2013. She confirmed that she never had trouble receiving mail in the past and that she received the referee’s Notice of Determination dated July 15, 2013. Claimant stated that she knew of no reason why she would not have received the Notice. (Notes of Testimony (N.T.), 10/01/2013, at 2-3.) Claimant testified that after she sustained a work injury in December 2012, she was unable to provide services for her original client. She stated that upon her return to work in April 2013 with partial workers’ compensation benefits, Employer assigned her a new client with whom she would work fewer than half of her pre-injury hours. Claimant stated that she was worried about this assignment because it involved a forty-five-minute commute and she would not be able to reach the client at his bus stop if her car broke down. She also testified that she was concerned that the out-of-pocket expenses of taking the client to required activities, 2 such as eating out, watching movies, and going bowling, would amount to a significant portion of her pay. (N.T. at 3-6.) Claimant said that she brought her concerns to her supervisor who responded that she would have to report Claimant’s refusal of the assignment to workers’ compensation authorities. Claimant explained that she did not ask if there were any other assignments available because she felt “thrown” by this response. Claimant testified that she subsequently notified Employer of her resignation. (N.T. at 7-9.) The Board found that Claimant’s testimony regarding the Notice was not credible and did not establish proper cause for her failure to appear at the first hearing. Thus, the Board examined the record from that hearing and adopted the referee’s findings of fact and conclusions of law. In addition, the Board alternatively held that Claimant’s testimony at the remand hearing did not demonstrate a compelling cause for leaving her employment because the distance to the new client was not unreasonable and Claimant did not have to eat or bowl herself when she took the client to eat or go bowling. Accordingly, the Board held that Claimant was ineligible for benefits under section 402(b) of the Law. On appeal to this Court,2 Claimant argues that the Board erred in determining that she did not have proper cause for not attending the July 12, 2013 hearing. Claimant also asserts that the Board erred in failing to find that she left her employment for cause of a necessitous and compelling nature based on the testimony presented at the second hearing. 2 Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether findings of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 n.3 (Pa. Cmwlth. 1997). 3  When a party makes a timely request for reopening of the record to establish good cause for her failure to attend a hearing, the Board is required to allow a further appeal and take additional evidence. 34 Pa. Code §101.104(c)(3); see also Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 45 (Pa. Cmwlth. 2012) (holding that the Board must schedule a hearing to give a party the opportunity to rebut the presumption that she received a duly mailed notice). If the party fails to establish proper cause for not attending the initial hearing, then the Board must issue a decision on the merits based on the record which was before the referee. Ortiz v. Unemployment Compensation Board of Review, 481 A.2d 1383, 1386 (Pa. Cmwlth. 1984). This Court has held that not receiving a hearing notice can constitute proper cause. Volk, 49 A.3d at 40-41. However, if a notice was mailed to a party’s last known address and not returned as undeliverable, there is a presumption that the party received proper notice. Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138, 140 (Pa. Cmwlth. 1981). Here, the Board granted Claimant the opportunity to rebut the presumption that she received the Notice. However, the Board found that Claimant’s testimony was not credible and determined that she did not have proper cause to miss the July 12, 2013 hearing. The credibility of testimony and the weight to be given to the evidence presented to rebut this presumption are matters for solely the Board to decide. Gaskins, 429 A.2d at 140. Furthermore, the Board may disregard even uncontroverted testimony if it concludes that the testimony is not credible. Fuentes v. Unemployment Compensation Board of Review, 413 A.2d 449, 450 (Pa. Cmwlth. 1980). Therefore, we conclude that the Board did not err by relying only on the 4 record of the first hearing to determine that Claimant is ineligible for benefits under section 402(b) of the Law.3 Claimant also argues that the Board erred in determining that she did not have cause of a necessitous and compelling nature to leave her employment based on the evidence presented at the second hearing. Having concluded that the Board properly relied solely on the record of the July 12, 2013 hearing, we need not address the merits of the Board’s alternative decision. Accordingly, we affirm. ________________________________ PATRICIA A. McCULLOUGH, Judge 3 The Board points out that Claimant has not challenged any of the Board’s findings, and, therefore, these findings are conclusive on appeal. Munski v. Unemployment Compensation Board of Review, 29 A.3d 133, 137 (Pa. Cmwlth. 2011). 5  IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kathleen G. Connors, : Petitioner : : No. 2198 C.D. 2013 v. : : Unemployment Compensation : Board of Review, : Respondent : ORDER AND NOW, this 21st day of July, 2014, the November 7, 2013 order of the Unemployment Compensation Board of Review is hereby affirmed. ________________________________ PATRICIA A. McCULLOUGH, Judge 

916 F.2d 874 59 USLW 2246, RICO Bus.Disp.Guide 7610 In re SUNRISE SECURITIES LITIGATION.George POPKIN and Anne Popkinv.Robert C. JACOBY, George Greenberg, Nathaniel J. Jacobs,Alan B. Keiser, Robert E. Logsdon, Lake Lytal, Frank Shaw,Robert T. Siemon, Bernard Simonson, William C. Frame, SheilaEvelyn, M. Kalman Gitomer, Michael D. Foxman, Robert A.Calsin, Joseph C. Taber, Deloitte Haskins & Sells, and BlankRome Comisky & McCauley,George and Anne Popkin, Appellants. No. 89-2116. United States Court of Appeals,Third Circuit. Argued May 17, 1990.Decided Oct. 17, 1990. Arthur M. Kaplan (argued), Allen D. Black, Fine, Kaplan & Black, Philadelphia, Pa., for appellants. Amy B. Ginensky (argued), Robert C. Heim, Jan P. Levine, Dechert, Price & Rhoads, for appellees Alan B. Keiser, Nathaniel B. Jacobs, Robert E. Logsdon, Robert T. Siemon, George Greenberg and Lake Lytal. John G. Harkins, Jr. (argued), Jeffrey C. Hayes, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appellees, Blank, Rome, Comisky & McCauley. Rudolph Garcia, David R. Moffitt, Saul, Ewing, Remick & Saul, Philadelphia, Pa., for appellee Bernard Simonson. S. Michael Levin, Edwards & Angell, Providence, R.I., for appellee M. Kalman Gitomer. Perry S. Bechtle, LaBrum & Doak, Philadelphia, Pa., for appellee Michael D. Foxman. Bruce A. Zimet, Bruce A. Zimet, P.A., Fort Lauderdale, Fla., for appellee William C. Frame. James M. Miller, Akerman, Senterfitt & Eidson, Miami, Fla., for appellee Joseph C. Taber. Alan J. Davis, Robert McL. Boote, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appellee Deloitte, Haskins & Sells. Stephen H. Glickman, Zuckerman, Spaeder, Goldstein, Taylor & Kolker, Washington, D.C., for appellee Robert C. Jacoby. Donald T. Bucklin, Scott T. Kragie, Margaret A. Jennings, Squire, Sanders & Dempsey, Washington, D.C., for amicus curiae The Federal Deposit Ins. Corp., etc. on behalf of all appellees. Before MANSMANN and SCIRICA, Circuit Judges and STANDISH, District Judge.* OPINION OF THE COURT SCIRICA, Circuit Judge. 1 In this appeal, we consider the legal limitations on the rights of depositors to assert individual RICO claims against the directors, officers, auditors, and outside counsel of an insolvent savings and loan association, rather than to recover their losses through the receiver's actions on their behalf, or by way of a derivative suit. The plaintiffs in this class action, former depositors of Sunrise Savings & Loan Association of Florida ("Old Sunrise"), a Florida corporation, and Sunrise Savings & Loan Association ("New Sunrise"), a federal mutual association, appeal the dismissal of their complaint against the former directors, officers, attorneys, and auditors of Old Sunrise. The complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1961-1968 (1988), as well as pendent state law claims arising from the insolvency and federal takeover of Old and New Sunrise. 2 The district court granted summary judgment for defendants after finding that plaintiffs could not establish that defendants' misrepresentations regarding the financial condition of Old Sunrise caused plaintiffs' losses. Moreover, the district court found that to the extent plaintiffs had alleged that defendants' wrongdoing caused the demise of New Sunrise or that defendants misrepresented and failed to reveal that they had injured Old or New Sunrise, plaintiffs had asserted a derivative claim that could not be brought individually. In re Sunrise Securities Litigation, 108 B.R. 471, 475 (E.D.Pa.1989). We hold that this entire claim is derivative and cannot be brought as an individual RICO action. Therefore, we will affirm the district court's grant of summary judgment. I. 3 On October 11, 1984, plaintiffs Anne and George Popkin purchased five $100,000 six-month certificates of deposit from Old Sunrise. Popkin claims that they purchased the certificates after learning of Old Sunrise's favorable interest rate in a Florida newspaper advertisement and after confirming that the certificates were insured by the Federal Savings and Loan Insurance Corporation ("FSLIC").1 To ensure that their entire deposit would be protected under the $100,000 FSLIC insurance limit, the Popkins placed the five certificates in separate accounts under the names of George Popkin, Anne Popkin, George Popkin in trust for Anne Popkin, Anne Popkin in trust for George Popkin, and George or Anne Popkin. Popkin asserts that at the time of purchase, he requested a financial statement for Old Sunrise and that he received a statement for the period ending June 1983. On April 11, 1985, the certificates matured. The Popkins withdrew the interest and rolled over the principal into five one-year $100,000 certificates. 4 On July 18, 1985, the Federal Home Loan Bank Board ("Bank Board") declared Old Sunrise insolvent, appointed FSLIC as receiver, and organized New Sunrise, the federal mutual association to which Old Sunrise's assets and liabilities were transferred. Defendants were not involved in the establishment or operation of New Sunrise. A new board of directors, auditor, and general counsel were appointed, and AmeriFirst Federal Savings and Loan Association was hired as management advisor. Plaintiffs have acknowledged that none of the Old Sunrise depositors lost any portion of their Old Sunrise deposits, including those whose deposits exceeded the insurance limit of $100,000 prescribed under 12 C.F.R. Sec. 564.3. In re Sunrise Securities Litigation, 108 B.R. at 474 & n. 4. 5 On July 19, 1985, The Wall Street Journal and The New York Times ran articles on the Bank Board's takeover and the financial problems that led to Old Sunrise's failure. The Wall Street Journal reported that the Bank Board "will give the new Sunrise an undisclosed amount of promissory notes sufficient to make the thrift technically solvent ... in exchange for IOUs that don't have to be repaid until the thrift returns a profit." The New York Times reported that the Bank Board, through FSLIC, "would issue promissory notes to the new thrift institution to insure it was financially solvent." 6 In a letter dated July 30, 1985, the president of New Sunrise informed depositors of the insolvency of Old Sunrise, the transfer of accounts to New Sunrise, and the retention of AmeriFirst as management advisor. The letter stated that the Bank Board had provided New Sunrise "with the financial resources to insure its stability and solvency" and that "the result of the Bank Board's action is a stable, solvent Sunrise Savings." Popkin claims that he neither saw the newspaper articles nor received the July 30 letter. He contends that he remained unaware of Old Sunrise's insolvency until July 1986. 7 In the meantime, on April 11, 1986, the Popkins' Old Sunrise certificates matured. The Popkins withdrew their interest and rolled over the principal into five $100,000 one-year certificates with New Sunrise. They elected to receive their interest quarterly rather than at maturity. Nonetheless, they did not withdraw the interest when it was posted the following quarter. 8 On September 12, 1986, the Bank Board declared New Sunrise insolvent and temporarily froze all accounts. In October 1986, FSLIC transferred the insured deposits to Beach Federal Savings and Loan Association and issued certificates of claim for the uninsured interest that had accrued between April 1986 and September 1986 on each of the Popkins' five certificates. Since July 1988, FSLIC has made three partial distributions of proceeds to New Sunrise depositors, including the Popkins, amounting to a total of 43.45% of their uninsured deposits. At the time of the district court decision, the Popkins had outstanding claims for interest of $1,878.92 on each certificate, totaling $9,394.60. Id. at 475. 9 The Popkins filed this action in February 1988 on behalf of all depositors with interest-bearing accounts at Old Sunrise on July 15, 1985 seeking recovery of their uninsured deposits.2 In their complaint, they allege that defendants violated RICO, 18 U.S.C. Sec. 1962(a), (c), and (d), by conducting the affairs of Old Sunrise through a pattern of racketeering activity consisting of numerous acts of mail, wire, and securities fraud, and the interstate transportation and receipt of fraudulently-obtained funds. According to plaintiffs, defendants attracted depositors "by holding Sunrise out to federal and state regulators and the public ... as a legitimate, well-run and secure savings and loan association" and by promising attractive interest rates in "advertisements, press releases, periodic reports and other publicly disseminated materials." Complaint pp 15, 20. In particular, plaintiffs contend that defendants failed to disclose that Old Sunrise was neither financially secure nor well-managed and that defendants had engaged in self-dealing. Id. pp 22-25. Plaintiffs allege that Old Sunrise's insolvency and plaintiffs' losses resulted from defendants' RICO violations. Id. pp 43, 44. 10 Certain defendants moved for summary judgment and the district court granted the motion and dismissed the complaint as to all defendants.3 The district court stated that plaintiffs could not recover on the theory that defendants' mismanagement caused the insolvency of either Old or New Sunrise because such a claim was derivative and belonged to FSLIC as receiver for both institutions.4 In re Sunrise Securities Litigation, 108 B.R. at 477-78. Moreover, the court held that plaintiffs' claims based on the failure to disclose that mismanagement and self-dealing injured Old Sunrise also were derivative. Id. at 479. The court reasoned that, in essence, plaintiffs claimed that defendants failed to inform depositors that defendants had injured Old Sunrise. Thus, the depositors' injury was an indirect result of defendants' wrongdoing to Old Sunrise. In addition, the court concluded that allegations involving misrepresentations made in statements to the general public asserted a wrong that is common to all depositors and, therefore, constituted an indirect injury. Id. The court stated that an individual depositor may bring a derivative action to recover for injuries to the bank that indirectly injured depositors after making an unsuccessful demand on the institution or its receiver to bring suit. The court noted, however, that plaintiffs did not seek to bring a derivative suit nor did they allege an unsuccessful demand on the receiver. Id. at 477 n. 7. 11 While recognizing that claims based on misrepresentations of financial condition could, under certain circumstances, state a claim of individual injury, the court concluded that in this case, plaintiffs might not have stated such a claim because the injury they suffered was common to all depositors of Old Sunrise and because recognition of such a claim might disrupt the federal regulatory receivership scheme. Id. at 480. The district court declined to decide the question, however, because it concluded that the undisputed facts established that plaintiffs' injury did not result from misrepresentations or omissions concerning the financial condition of Old Sunrise. The court reasoned that plaintiffs suffered no loss when Old Sunrise was declared insolvent; rather, their loss occurred only on the New Sunrise certificates purchased in April 1986. Therefore, the court held that summary judgment was appropriate for any RICO claim that plaintiffs might assert based solely on these allegations. Id. at 481. II. 12 On appeal, plaintiffs contend that the district court erred in holding as a matter of law that defendants' misrepresentations of the financial condition of Old Sunrise were not the proximate cause of plaintiffs' injuries. Moreover, plaintiffs argue that the district court erred to the extent it held that plaintiffs' RICO action is derivative. 13 Our review of the district court's grant of summary judgment is plenary. We apply the standard the district court used initially. Environmental Tectonics v. W.S. Kirkpatrick, Inc., 847 F.2d 1052, 1057 (3d Cir.1988), aff'd, --- U.S. ----, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990). Summary judgment may be granted only when there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Once the moving party has identified those portions of the record that demonstrate the absence of a genuine issue, the nonmoving party must "go beyond the pleadings and by ... affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(e)). 14 To recover under RICO, a private plaintiff must demonstrate an injury "in his business or property by reason of a violation of [18 U.S.C. Sec. 1962]." 18 U.S.C. Sec. 1964(c). The Supreme Court has explained that the injury and causation requirements of Sec. 1964(c) are aspects of RICO standing. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (plaintiff has standing only to the extent he has been injured by conduct constituting violation); see Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1164 (3d Cir.1989); Brandenburg v. Seidel, 859 F.2d 1179, 1187 (4th Cir.1988). 15 Although both requirements are implicated in this appeal, we need not decide whether the district court erred in its causation analysis. Even if plaintiffs' losses could be traced to defendants' alleged misconduct, in substance, the complaint states a claim of injury to Old and New Sunrise and it is from this injury that plaintiffs' losses flowed. Therefore, we hold that the claim belongs in the first instance to the institutions through their receiver, and may be brought by plaintiffs only as a derivative claim, following an unsuccessful demand on the receiver.5 A. 16 As a threshold matter, we must decide what law to apply in determining whether plaintiffs have stated a nonderivative claim of direct injury. According to the district court, a number of federal courts have assumed that federal law decides the question. Therefore, the district court held that federal common law applies in determining whether a RICO action is derivative. In re Sunrise Securities Litigation, 108 B.R. at 476 n. 6. On appeal, plaintiffs argue that Florida law controls.6 17 Plaintiffs base their claim on a federal statute and, therefore, the issue of standing is a federal question. This fact, however, does not render state law irrelevant. See Burks v. Lasker, 441 U.S. 471, 477-78, 99 S.Ct. 1831, 1836-37, 60 L.Ed.2d 404 (1979). Plaintiffs were allegedly injured in Florida by the former directors, officers, auditors, and attorneys of a Florida corporation. "Corporations are creatures of state law," Cort v. Ash, 422 U.S. 66, 84, 95 S.Ct. 2080, 2090, 45 L.Ed.2d 26 (1975), and unless state law on the issue of the derivative nature of plaintiffs' claim is inconsistent with the federal policy underlying RICO, it should not be displaced simply because plaintiffs base their claim on a federal statute. See Burks, 441 U.S. at 478-79, 99 S.Ct. at 1837-38; id. at 486, 99 S.Ct. at 1841 (federal courts should apply state law--to extent it is consistent with federal policy--in deciding power of corporate directors to discontinue shareholders' derivative suit alleging violations of federal law); cf. Morgan v. South Bend Community School Corp., 797 F.2d 471, 475 (7th Cir.1986) (state law applies to procedural matters in federal civil rights cases unless state rule is systematically hostile to federal interests, that is, unless "over the run of cases" state rule dramatically reduces incentive to comply with federal substantive rule). Absent inconsistency with federal policy, federal courts are relieved "of the necessity to fashion an entire body of federal corporate law out of whole cloth." Burks, 441 U.S. at 480, 99 S.Ct. at 1838. Therefore, to resolve the question, we must examine Florida law on this issue and determine whether it is consistent with federal policy. 18 While our focus is on depositors, the issue of whether a complaint states a claim of injury to the individual or to the corporation usually arises in the context of shareholder suits. Under Florida law, a shareholder may bring an individual action for injuries suffered directly by the shareholder that are separate and distinct from injuries to all other shareholders. Wolfe v. American Savings & Loan Association, 539 So.2d 606, 607-08 (Fla.Dist.Ct.App.1989) (quoting 8 Fla.Jur. Sec. 361 (1978)) (preferred stockholders' suit against officers of savings and loan for damages caused by merger may be maintained as direct action; plaintiffs claim injury to their separate interests as preferred stockholders; corporation not harmed by allegedly wrongful actions). Conversely, a shareholder does not have an individual cause of action for damages that result from injury to the corporation. Alario v. Miller, 354 So.2d 925, 926 (Fla.Dist.Ct.App.1978). If the gravamen of the complaint is injury primarily to the corporation or to the shareholders generally, then the claim belongs to the corporation and the shareholder's right to bring the action derives from the corporation. Id. (quoting Citizens National Bank v. Peters, 175 So.2d 54, 56 (Fla.Dist.Ct.App.1965)). 19 The Florida courts have not specifically addressed the issue of derivative claims in the context of a savings and loan depositors' suit. As a general matter, although a depositor is viewed as a creditor of the corporation, see 3A Fletcher Cyclopedia of the Law of Private Corporations Secs. 1180, 1184 (1986), courts have relied on the principles applicable in shareholder suits in deciding whether depositors and other creditors have stated a claim that may be brought individually. See 1 Michie on Banks and Banking ch. 3, Sec. 69 (1986) (suit against officers and directors must be brought by bank or receiver where wrongful acts affect all depositors or creditors alike) (citing Adato v. Kagan, 599 F.2d 1111, 1117 (2d Cir.1979)); 3A Fletcher, supra, Sec. 1134 (creditor may sue corporate officer for tort if there is special damage to the creditor suing, not common to other creditors, i.e., injury to individual creditor that is not injury to corporation); id. Sec. 1180 (where officer causes loss to corporation through mismanagement, injury results to creditors but primary injury is to corporation itself and the cause of action is asset of corporation or its receiver). In light of the holdings set forth in Wolfe and Alario, we predict that the Florida courts would do the same, and permit depositors to maintain a nonderivative action against officers or directors only if their alleged injuries are separate and distinct from the injuries sustained by the institution and other depositors. 20 Federal courts that have considered the question in shareholder suits all have held that shareholders lack standing to assert RICO claims where their injuries are not direct and distinct from any injury sustained by the corporation and shareholders generally.7 Moreover, a number of federal courts have employed these principles to decide the question of RICO standing in other contexts.8 Without deciding the issue, we assume that they would apply the same rules in a depositors' case. Cf. Downriver Community Federal Credit Union v. Penn Square Bank, 879 F.2d 754, 764 (10th Cir.1989) (remedy for fraudulent representations affecting all creditors belongs to receiver for benefit of all creditors; uninsured depositors who relied on misleading information available to all depositors may not assert a preference in distribution of insolvent bank's assets by FDIC), cert. denied, --- U.S. ----, 110 S.Ct. 1112, 107 L.Ed.2d 1019 (1990); Brandenburg v. Seidel, 859 F.2d 1179, 1191 (4th Cir.1988) (depositors' RICO action against officers of failed savings and loan for misfeasance of official duties properly belongs to state receiver rather than to depositors; damages recoverable are assets of institution; Burford abstention appropriate). 21 Notwithstanding that some of these courts have relied on sources other than state law in addressing the issue,9 under the circumstances, we think it is appropriate to look to state law for guidance in deciding whether plaintiffs have stated a nonderivative claim, rather than to fashion federal common law in this area. Florida law on this issue, which permits nonderivative suits against officers and directors only for injuries that are separate and distinct from injuries sustained by the corporation and all shareholders, comports with the federal policy of deterrence underlying RICO. See Carter v. Berger, 777 F.2d 1173, 1176 (7th Cir.1985) (concentrating entire right to recover in hands of directly injured party promotes RICO goal of deterrence). Moreover, it is consistent with RICO's standing requirement, under which suit may be brought only by "[a]ny person injured in his business or property" by reason of the RICO violation, 18 U.S.C. Sec. 1964(c), and with principles applied by federal courts in determining RICO standing, see notes 6 & 7, supra. 22 Therefore, in deciding this case, we will apply the law that we predict the Florida courts would employ in this context; that is, claims by depositors based on injuries sustained primarily by the financial institution or by depositors generally belong to the financial institutions initially through their receiver. See Leach v. Federal Deposit Insurance Corp., 860 F.2d 1266, 1274 (5th Cir.1988) (incorporation of state law into RICO for purposes of shareholder suits implicates problem of uniformity throughout the states but is preferable to generating federal common law in this area), cert. denied, --- U.S. ----, 109 S.Ct. 3186, 105 L.Ed.2d 695 (1989); see also Morgan, 797 F.2d at 475 (when federal government is not party to litigation, neutral state rules that do not undermine federal interests should be applied unless statute or constitution authorizes federal court to create federal rule). B. 23 Plaintiffs do not disagree with this statement of the law. They urge, however, that the gravamen of their complaint is that defendants' fraud induced them to deposit their money and maintain their accounts in Old Sunrise. Thus, they contend, they have stated a claim of direct injury because they, not Old or New Sunrise, were injured by defendants' alleged fraud. 24 Whether a claim is individual or derivative is determined from the body of the complaint rather than from the label employed by the parties. Alario, 354 So.2d at 926; Citizens National Bank, 175 So.2d at 56; see Kalmanovitz v. G. Heileman Brewing Co., 595 F.Supp. 1385, 1399 (D.Del.1984), aff'd, 769 F.2d 152 (3d Cir.1985); 12B Fletcher Cyclopedia of the Law of Private Corporations Sec. 5912 (1984 & Supp.1989). Plaintiffs' claim of fraudulent inducement is based on allegations that defendants misrepresented Old Sunrise as a "well run and secure" institution in "publicly disseminated materials," and that defendants failed to disclose that Old Sunrise was not financially secure, that they had mismanaged Old Sunrise, that they had omitted information from the financial statements, and that they had engaged in self-dealing. Complaint pp 15, 20-25. After reviewing the complaint, we cannot agree with plaintiffs' characterization of these allegations as a claim of direct injury from fraud, distinct from the injury sustained by Old Sunrise and all other depositors as a result of defendants' mismanagement. 25 In their complaint, plaintiffs contend that "Sunrise's advertisements, press releases, periodic reports and other publicly disseminated materials" portrayed its business techniques and lending practices as "sound, prudent ... secure" and "interest sensitive," its loans as "fully secured," "adequately collateralized," and well controlled, and the institution as "profitable." Id. pp 20, 28. According to plaintiffs, defendants failed to disclose that the lack of proper lending controls prior to 1984 could not be corrected or controlled by Sunrise's 1984 five-year Supervisory Agreement with FSLIC. Id. p 28. With respect to the financial condition of Old Sunrise, plaintiffs allege that defendants failed to disclose that a substantial portion of Sunrise's portfolio consisted of risky real estate construction loans, which were inadequately secured, and which were structured to preclude foreclosure during development and to defer classification of the loans as delinquent. Moreover, defendants allegedly failed to disclose that they had understated loan loss reserves and the value of nonperforming loans. Id. p 22. With respect to the management of Old Sunrise, plaintiffs allege that defendants failed to disclose that Sunrise did not adhere to sound lending and banking practices, made loans to developers that exceeded regulatory limits, permitted developers to use checking account overdrafts to pay the interest on outstanding loans, and permitted the diversion of construction funds for other purposes. Id. p 23. With respect to Old Sunrise's financial statements, plaintiffs allege that defendants failed to disclose that they had overstated net worth, understated the value of nonperforming loans and loan loss reserves, and improperly classified real estate construction loans. Id. p 24. Finally, with respect to self-dealing, plaintiffs allege that defendants failed to disclose that certain defendants had received personal loans from Old Sunrise. Id. p 25. 26 Although the allegations are cast in terms of defendants' misrepresentation of and failure to disclose information, we believe that under the distinct circumstances of this case, such allegations do not state a claim of direct injury founded on fraud. The essence of the complaint is that defendants misrepresented the financial condition of Old Sunrise by failing to disclose that they had mismanaged Old Sunrise rendering the institution insolvent, and that they had employed deceptive operating practices, which prevented federal and state regulators from acting in a timely manner to forestall the insolvency of Old Sunrise. Id. p 31. Defendants' mismanagement and wrongdoing brought about the insolvency of Old Sunrise and may have contributed to the insolvency of New Sunrise, thus injuring the depositors indirectly. The asserted injury emanated from mismanagement, not fraud. Furthermore, in this case, the depositors' loss cannot be separated from the injury suffered by the institutions and all other depositors, and the damages recoverable are assets of the institutions. See Brandenburg, 859 F.2d at 1191 n. 15 (depositors' loss is derivative of loss suffered by savings and loan when defendants misappropriated its assets, preventing it from earning income on those assets); id. at 1191 (depositors' action against officers and directors for misfeasance of official duties belongs to receiver and damages recoverable are assets of institution). 27 Plaintiffs lack standing to bring an individual suit against defendants on the basis of conduct that primarily injured Old or New Sunrise and only indirectly injured depositors because such a claim belongs to the institutions. See Wolfe, 539 So.2d at 607-08; Alario, 354 So.2d at 926; see also notes 6 & 7, supra. We do not believe that plaintiffs can sidestep this prohibition for purposes of stating a RICO claim merely by framing their allegations as misrepresentations and the failure to disclose information. To hold otherwise would eviscerate RICO's standing requirement of injury to plaintiff's business or property by reason of the RICO violation. See Leach, 860 F.2d at 1267, 1274 (minority shareholders lack standing to sue under RICO for diminution in value of stock based on allegations that defendants mismanaged bank and failed to disclose true financial condition to shareholders; shareholders have not alleged as individuals any legally cognizable injury); Crocker v. Federal Deposit Insurance Corp., 826 F.2d 347, 348-52 (5th Cir.1987) (minority shareholders lack standing to assert nonderivative RICO claim; allegations that defendants' misrepresentations in financial statements regarding financial condition of bank deterred shareholders from selling stock in time to avoid loss from diminution in value do not state a claim of direct injury to shareholders distinct from injury to corporation), cert. denied, 485 U.S. 905, 108 S.Ct. 1075, 99 L.Ed.2d 235 (1988). 28 Plaintiffs argue that their allegations are sufficient to state a claim of direct injury. They cite Hinson v. Drummond, 98 Fla. 502, 123 So. 913, 914 (1929), and Mallett v. Tunnicliffe, 102 Fla. 809, 136 So. 346 (1931), as examples of cases where the Florida courts permitted depositors to assert individual fraud claims against bank officers or directors. These cases are distinguishable, however, because they involved officers who personally misrepresented the banks' financial condition directly to an individual depositor, and because the allegations did not link the officers' conduct to injury to the bank or depositors generally. See id., 136 So. at 347; Hinson, 123 So. at 914. Similarly, in Fagan v. Whidden, 57 F.2d 631 (5th Cir.1932), also cited by plaintiffs, the Court of Appeals for the Fifth Circuit stated that bank officers may be held liable for fraudulently concealing the existence of a deposit from a depositor's guardians. In Fagan, however, the bank officer had personally denied the existence of the account in response to a direct inquiry from the guardians and there were no allegations connecting the fraud to any injury to the bank. Id. at 631-32. Thus, each of these cases exemplifies the principle that a nonderivative action may be maintained where the injury was sustained by a depositor as an individual, independent of any injury to the bank or other depositors.10 That is not the case here. 29 Plaintiffs also cite Wolfe v. American Savings & Loan Association, 539 So.2d 606 (Fla.Dist.Ct.App.1989), in which a Florida court permitted preferred shareholders to maintain a direct action against the officers and directors of a savings and loan for damages allegedly arising from the merger of the institution into other corporations. The shareholders claimed that the merger arrangement, under which the right to convert preferred stock into common stock was eliminated, violated the corporation's prior agreement and was a breach of the officers' fiduciary duty to the shareholders. The court held that the claim could be maintained as a direct action because the plaintiffs had alleged "injury to their separate, individualized interests as preferred shareholders alone which would necessarily inure to their own benefit, rather than--as is true of a derivative claim--that of the corporation itself," and because the corporation had not been harmed by the defendants' allegedly wrongful conduct. Id. at 607-08. 30 Plaintiffs contend that in this case, just as in Wolfe, defendants' conduct did not harm the corporation. We disagree. Plaintiffs base their claim on allegations that defendants misrepresented and failed to disclose mismanagement and improper accounting and reporting practices. Thus, their fraud claim is premised on conduct that injured the institutions, and plaintiffs' losses are incidental to and flow from that injury. In Wolfe, there was no indication that the challenged merger, or the officers' conduct associated with the merger, injured the corporation in any way. Thus, the Wolfe court held that the preferred shareholders had alleged injury to their "separate, individualized interests." Id. 31 Plaintiffs also rely on Alario v. Miller, 354 So.2d 925 (Fla.Dist.Ct.App.1978), in which, they contend, "the Florida court declined to hold that plaintiffs' claim of fraud was a derivative action." Plaintiffs' Brief at 22. Plaintiffs' interpretation of Alario places an unwarranted gloss on the court's holding. Alario was a suit by minority shareholders against the majority shareholder and the chief executive officer, alleging negligence, breach of fiduciary duty, corporate mismanagement, and fraud. Without specifying the nature of the alleged fraud, the court held that the gravamen of the complaint was a derivative, not an individual action. Id. at 926. With respect to the fraud claim, the court noted: 32 [T]he allegations of fraud are intertwined with the other allegations and only arguably constitute an individual cause of action. We need not treat this point, however, because our review of the record indicates that the cause of action was not proved and that the judgment [below in favor of plaintiffs] was not based on fraud, but if it had been, the judgment would be reversible for failure to carry the burden of proof. 33 Id. at 926 n. 1. Thus, it is not accurate to contend, as plaintiffs have, that the Alario court declined to label the fraud claim as derivative. In fact, the court declined to address the issue altogether. 34 Plaintiffs also cite several federal cases brought by shareholders against bank directors under the federal banking laws. According to plaintiffs, in Adato v. Kagan, 599 F.2d 1111 (2d Cir.1979), "the Second Circuit reinstated claims against bank officers, because '[i]ndividual depositors may sue in their own right ... if they have suffered a wrong that is distinctly theirs and not common to all.' ... The court found that plaintiffs' conduct may have been 'fraudulently induced.' " Plaintiffs' Brief at 45-46. 35 As with Alario, plaintiffs' interpretation of Adato is misleading. The plaintiffs in Adato, in response to a concerted drive for new deposits, had placed their funds in a state-chartered commercial bank which shortly thereafter went into receivership. Subsequently, they learned that their funds had not been entered as deposits but instead credited to several corporate accounts, and thus FDIC refused to recognize their claims. The plaintiffs sued FDIC in state court and certain directors and officers in federal court under federal securities and banking laws. Id. at 1114-16. The Court of Appeals for the Second Circuit recognized that as a general rule, "wrongdoing by bank officers that adversely affects all depositors creates a liability which is an asset of the bank, and only the bank or its receiver may sue for its recovery." Id. at 1117. Under the special circumstances of the case, however, the court held that FDIC was "hardly the proper party to represent them in this proceeding." Because FDIC had disputed the plaintiffs' right to be treated as depositors and because the plaintiffs had a suit pending against FDIC, the court concluded that they stood in a different position from other depositors whose right to recover from FDIC had not been challenged. Id. Therefore, Adato is distinguishable from the present case on the facts, and does not support plaintiffs' position that they should be permitted to proceed with their nonderivative claim. 36 In Chesbrough v. Woodworth, 244 U.S. 72, 37 S.Ct. 579, 61 L.Ed. 1000 (1917), also relied upon by plaintiffs, the Supreme Court found "no reversible error" in a lower court ruling that a shareholder could maintain a direct cause of action under the National Bank Act11 against bank officers who knowingly authorized a false report upon which the shareholder relied in purchasing stock. Id. at 76, 79, 37 S.Ct. at 581, 583. The Court did not discuss or explain its affirmance on this issue, however, as the question of whether the shareholder had stated a nonderivative claim was not before the Court. Moreover, the Court's discussion does not disclose whether the directors' misconduct injured shareholders generally. 37 Relying on Chesbrough, the Court of Appeals for the Ninth Circuit in Harmsen v. Smith, 542 F.2d 496 (9th Cir.1976), held that an allegation by shareholders that they had relied to their detriment upon false reports issued by bank officers was sufficient to state a claim of direct injury under the National Bank Act, even though the only injury claimed, diminution in share value, was sustained by all shareholders alike. Id. at 502. The Harmsen court recognized the well-established rule that shareholders may not recover directly for injuries sustained by the bank; they must demonstrate injury to themselves, "as distinct from the bank." Id. at 500. However, the court's holding that shareholders may sue directly for diminution in share value, an injury sustained by all shareholders alike, runs counter to this principle and has not been adopted by other courts.12 38 The Court of Appeals for the Sixth Circuit expressly rejected Harmsen, holding that shareholders lack standing under RICO and the National Bank Act when the only damage alleged is diminution in share value. Gaff v. Federal Deposit Insurance Corp., 814 F.2d 311, 317 (6th Cir.), vacated in part on other grounds, 828 F.2d 1145, 1150 (6th Cir.1987) (state law claims). The court stated: "While this conclusion is contrary to the specific holding in Harmsen, it is consistent both with the common law principles ... and with the general principles governing Sec. 93 [The National Bank Act, 12 U.S.C. Sec. 93] set forth in Chesbrough v. Woodworth...." Gaff, 814 F.2d at 318. We agree and decline to rely on Harmsen in deciding this issue. 39 In Leach v. Federal Deposit Insurance Corp., 860 F.2d 1266 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3186, 105 L.Ed.2d 695 (1989), a RICO and National Bank Act action, the Court of Appeals for the Fifth Circuit attempted to harmonize the apparent conflict between Chesbrough and Harmsen on the one hand, and the rule that a loss in stock value sustained by shareholders generally is recoverable under the National Bank Act only by the corporation or in a derivative action. The court distinguished the plaintiff in Chesbrough, who had been fraudulently induced into becoming a shareholder, from plaintiffs who purchased their stock before the directors' mismanagement had impaired its value. Id. at 1272. Viewed in that light, the court concluded that Harmsen also was in accord with the rule. Id. at 1272-73. If this distinction were valid, it might support plaintiffs' view that the interest they lost upon the insolvency of New Sunrise is recoverable in an individual rather than a derivative action, simply because their original deposit in Old Sunrise allegedly had been induced by defendants' fraud. 40 We do not believe this is a valid distinction in this case. Underlying the rule that diminution in share value is an injury to the corporation and shareholders generally is the principle that decreases in share value reflect decreases in the value of the company. Rand v. Anaconda-Ericsson, Inc., 794 F.2d 843, 849 (2d Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 579, 93 L.Ed.2d 582 (1986). The principle is equally valid in depositor cases. The loss in value of depositors' certificates reflects the impaired condition of the financial institution. The injury--loss of principal or interest--is sustained by all depositors and is incidental to and dependent on injury to the institution. Therefore, the institution or its receiver is the proper party to sue for the benefit of all depositors and creditors, or, after an unsuccessful demand, the depositors may bring a derivative action. The alternative, permitting depositors to bring individual actions for such injuries, would invariably impair the rights of other general creditors and claimants with superior interests. See Rylewicz v. Beaton Services, Inc., 888 F.2d 1175, 1179 (7th Cir.1989); Rand, 794 F.2d at 849; see also Warren v. Manufacturers National Bank, 759 F.2d 542, 545 (6th Cir.1985); cf. 3A Fletcher, supra, Sec. 1282. In our view, the fact that the officers' and directors' alleged fraud may have induced all of the depositors to make their original deposits does not justify bypassing this equitable and common-sense system for recovery, especially in circumstances like these, where all the depositors' losses are inextricably linked to the insolvency of New Sunrise. In cases like this, actions to recover losses on certificates of deposit sustained by depositors generally are derivative and belong to the institution or its receiver. See Adato, 599 F.2d at 1117; In re Longhorn Securities Litigation, 573 F.Supp. 255, 272 (W.D.Okla.1983) (individual depositors may sue bank officers directly if they suffer wrong that is uniquely theirs and not common to all); 1 Michie, supra, Sec. 69. 41 As these cases demonstrate, in some circumstances, depositors may bring individual RICO actions against officers, directors, and others who fraudulently obtain deposits by misrepresenting the financial condition of an institution. This would be the case where the officer's alleged misconduct primarily injured the depositor rather than the institution, and where the injury suffered by the depositor is not shared by depositors generally and is distinct from any injury to the institution. See Downriver, 879 F.2d at 764 (absent fraudulent representations made directly to plaintiff with respect to financial condition of bank, plaintiff's rights are not superior to rights of other depositors and creditors; remedy for fraudulent representations affecting all creditors belongs to receiver; Congress did not intend to deluge FDIC with claims for preferential constructive trusts on behalf of uninsured depositors who allegedly relied on misleading information available to all depositors); Adato, 599 F.2d at 1117; In re Longhorn Securities Litigation, 573 F.Supp. at 272; Mallett, 136 So. at 348; Hinson, 123 So. at 914; cf. Sparling v. Hoffman Construction Co., 864 F.2d 635, 640 (9th Cir.1988) (shareholder must show injury distinct from that to other shareholders to have standing to assert RICO claims based on injury to corporation); Roeder v. Alpha Industries, Inc., 814 F.2d 22, 30 (1st Cir.1987) (shareholder may not maintain RICO action in his own right unless injury to stock is peculiar to plaintiff alone and does not fall upon other shareholders); Wolfe, 539 So.2d at 608. 42 The complaint and record here do not present such a case. As we see it, plaintiffs' fraudulent inducement claim rests on allegations that defendants misrepresented and failed to disclose "to federal and state regulators and the public, including plaintiffs," that defendants had injured Old Sunrise. New Sunrise's insolvency may have resulted from defendants' mismanagement, self-dealing, and improper accounting and reporting practices while at Old Sunrise. But the only damage claimed by plaintiffs, the loss of their uninsured deposits, emanated from the mismanagement and wrongdoing and cannot be separated from the injury sustained by the institutions and by depositors generally. Plaintiffs do not assert and the record does not disclose that they received personal assurances from defendants that Old Sunrise was financially stable. Rather, plaintiffs contend that certain "publicly disseminated materials" available to all depositors alike (none of which are part of the record) falsely portrayed Old Sunrise's business strategy and lending techniques as "sound, prudent and secure." Complaint p 20. These allegations state a claim of injury primarily to the institutions that in turn affected depositors generally.13 It can be brought by the receiver on behalf of all depositors and creditors or as a derivative claim, but it is not a claim of a distinct, direct injury for which plaintiffs can recover as individuals under RICO. 43 Important policy considerations support the dismissal of this action in light of our determination that the depositors' claims are derivative. As we have stated, courts generally have recognized that permitting indirectly injured parties to sue wrongdoers under RICO may lead to a multiplicity of suits and potentially impair the rights of other claimants. See Rylewicz, 888 F.2d at 1179; Rand, 794 F.2d at 849; Warren, 759 F.2d at 545; cf. 3A Fletcher, supra, Sec. 1282. This principle has special significance in this case, where continuation of plaintiffs' suit could disrupt the efforts of FDIC to recover the institution's assets, which were depleted by defendants' mismanagement and wrongdoing, for equitable distribution among all depositors and creditors in accordance with the federal priority scheme. Cf. Downriver, 879 F.2d at 764 (uninsured depositors' suit against insolvent bank and its receiver (FDIC) seeking imposition of constructive trust upon bank assets could jeopardize orderly administration of receiver's estate; depositors are limited to pro rata share of assets held by receiver); Brandenburg, 859 F.2d at 1191-92 (Burford abstention appropriate; continuation of depositors' RICO suit against officers and directors of failed savings and loan could disrupt state receiver's efforts to recover institution's assets for distribution to depositors and creditors who sustained losses because of mismanagement by officers and directors). 44 FDIC brought suit against defendants on September 2, 1986, alleging negligence and breach of fiduciary duty, and seeking more than $589 million in damages. See FSLIC v. Jacoby, CA No. 86-7567, MDL No. 655 (E.D.Pa.). On May 29, 1990, over the Popkins' objections, the district court approved a settlement agreement between FDIC, the shareholders of Old Sunrise, and a number of defendants. In re Sunrise Securities Litigation, MDL No. 655, 131 F.R.D. 450 (E.D.Pa.1990); see note 2, supra. According to FDIC, funds recovered under this agreement will be applied toward the claims against FDIC, including the depositors' claims, in accordance with the distribution scheme established under the receivership regulations, 12 C.F.R. Secs. 388.4, 389.11 (1990); id. Secs. 569a.7, 569c.11 (1989).14 45 The Popkins objected to the settlement on grounds that it depleted defendants' liability insurance, thus limiting the depositors' ability to recover from these defendants directly. 131 F.R.D. at 458. FDIC contends, however, that it is best able to maximize recovery for all depositors, who have recovered 100% of their Old Sunrise deposits, 100% of their insured New Sunrise deposits, and, to date, 43.45% of their uninsured New Sunrise deposits through FDIC's efforts. According to FDIC, permitting plaintiffs to sue directly for claims emanating from injury to the institutions would circumvent the priority scheme by enabling depositors to recover the institutions' assets in advance of other general creditors and claimants with superior interests, such as secured creditors. This result, argues FDIC, is both inequitable and inefficient, and threatens to further complicate the immense task of liquidating the institutions' assets. We agree. 46 Plaintiffs cite Federal Deposit Insurance Corp. v. Jenkins, 888 F.2d 1537 (11th Cir.1989), for the proposition that Congress declined to recognize a priority for FDIC claims over the claims of depositors, creditors, or shareholders against the officers, directors, attorneys, or accountants of insured financial institutions. In Jenkins, FDIC brought a declaratory judgment action against the shareholders of an insolvent FDIC-insured bank, seeking a declaration that FDIC's claims against the bank's officers and directors had priority over the shareholders' claims against these defendants. Id. at 1538-39. The Court of Appeals for the Eleventh Circuit held that FDIC was not entitled to priority by virtue of its status as insurer of the failed bank. Moreover, the court declined to fashion a federal common law absolute priority rule. Id. at 1544. 47 As noted by the Eleventh Circuit in its review of the legislative history of FIRREA, Pub.L. No. 101-73, 103 Stat. 183 (1989), the conference committee rejected a Senate amendment that would have granted such a priority to FDIC claims. Jenkins, 888 F.2d at 1538 n. 1 (citing 135 Cong.Rec. H4985, H4989 (daily ed. Aug. 3, 1989) (statement of Rep. Glickman)). We do not disagree with the Eleventh Circuit's discussion of the legislative history of FIRREA, nor do we believe that our holding is inconsistent with Jenkins. To the extent that depositors assert individual, nonderivative fraud claims against the officers, directors, auditors, or attorneys of insolvent financial institutions, they may proceed on equal footing with FDIC against these defendants. That is not the circumstance here. In this case, we hold that the claims are derivative and belong to FDIC as receiver. Therefore, FDIC should be permitted to pursue these claims on behalf of all depositors and creditors and to distribute the proceeds equitably. 48 We recognize that plaintiffs suffered a personal financial loss when New Sunrise failed. However, this fact alone does not confer standing to pursue a claim under RICO that in every relevant way is identical to the claims of all other New Sunrise depositors, and which arose by virtue of injuries sustained by Old or New Sunrise. In this instance, recovery must come through the efforts of FDIC on their behalf or through a derivative suit after an unsuccessful demand upon FDIC. III. 49 For the foregoing reasons, we hold that plaintiffs' RICO claim is derivative and may not be brought by plaintiffs as an individual action. Therefore, we will affirm the district court's grant of summary judgment and the dismissal of plaintiffs' complaint. 50 Costs taxed against appellants. * The Honorable William L. Standish, United States District Judge for the Western District of Pennsylvania, sitting by designation 1 In the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA"), Pub.L. No. 101-73, Sec. 401, 103 Stat. 183, 354-57 (1989), Congress dissolved FSLIC and delegated most of its functions to the Federal Deposit Insurance Corporation ("FDIC"). See H.R.Rep. No. 54(I), 101st Cong., 1st Sess. 355, 439, reprinted in 1989 U.S.Code Cong. & Admin.News 81, 151, 235. By order dated February 1, 1990, FDIC was substituted for FSLIC in this litigation. See In re Sunrise Securities Litigation, MDL No. 655, 131 F.R.D. 450, 452 n. 1 (E.D.Pa.1990) 2 The depositors' case is one of three groups of claims that have been consolidated for pretrial proceedings in this multidistrict litigation, MDL No. 655 (E.D.Pa.). See In re Sunrise Securities Litigation, 108 B.R. at 473 n. 1. A consolidated class action suit on behalf of all Old Sunrise shareholders was filed on July 25, 1986. FSLIC filed suit against virtually the same defendants on September 2, 1986. See In re Sunrise Securities Litigation, 131 F.R.D. at 453. Under a Settlement and Joint Prosecution Agreement and Confidential Sharing Agreement, entered on July 9, 1987, FSLIC and the shareholder plaintiffs agreed to combine forces to share expenses and any recoveries from defendants. Id. at 453. On May 29, 1990, over the objections of the Popkins, the district court approved settlement agreements reached between the shareholder plaintiffs and three groups of defendants: the FDIC defendants (Old and New Sunrise, FDIC as receiver, the Bank Board); Blank, Rome, Comisky & McCauley (general counsel for Old Sunrise and several of its partners); and Robert Calsin and Sheila Evelyn, two of the Old Sunrise officers named as defendants. Id. at 461-63 3 In light of the dismissal of the RICO claim, the district court dismissed the pendent state law claims and denied plaintiffs' motion for class certification as moot. In re Sunrise Securities Litigation, 108 B.R. at 482 n. 14 & n. 15 4 As the district court understood it, plaintiffs' complaint did not assert such a claim but rather alleged that defendants' misrepresentations induced plaintiffs to deposit money at Old Sunrise. The court stated that to the extent plaintiffs argued in their Memorandum in Opposition to Summary Judgment that they did assert that defendants' mismanagement caused the insolvency, such claims are derivative. In re Sunrise Securities Litigation, 108 B.R. at 478 n. 9 5 Fed.R.Civ.P. 23.1 requires a shareholder derivative complaint to allege either that a demand was made or the reasons for failing to make the demand. Courts will excuse the derivative shareholder from the demand requirement when the allegations show that the directors upon whom demand would be made are too involved in the alleged wrongdoing to determine fairly whether the claim should be pursued by the corporation. Lewis v. Curtis, 671 F.2d 779, 784-85 (3d Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 144 (1982). Because FDIC as receiver--not the directors--would decide whether to pursue a claim on behalf of the institutions in this case, the question whether demand could be excused in a depositors' derivative suit is not an issue 6 Certain defendants also argued for the application of state law before the district court. They have not pressed this argument on appeal, however, because they believe that the result is the same under Florida law or federal law. Even though plaintiffs claim state law applies, they also cite federal law to support their position 7 See Rylewicz v. Beaton Servs., Ltd., 888 F.2d 1175, 1179 (7th Cir.1989); Flynn v. Merrick, 881 F.2d 446, 450 (7th Cir.1989); Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir.1988); Leach v. Federal Deposit Ins. Corp., 860 F.2d 1266, 1273-74 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3186, 105 L.Ed.2d 695 (1989); Warner v. Alexander Grant & Co., 828 F.2d 1528, 1530 (11th Cir.1987); Crocker v. Federal Deposit Ins. Corp., 826 F.2d 347, 349 (5th Cir.1987), cert. denied, 485 U.S. 905, 108 S.Ct. 1075, 99 L.Ed.2d 235 (1988); Roeder v. Alpha Indus., Inc., 814 F.2d 22, 29-30 (1st Cir.1987); Rand v. Anaconda-Ericsson, Inc., 794 F.2d 843, 849 (2d Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 579, 93 L.Ed.2d 582 (1986); Warren v. Mfrs. Nat'l Bank, 759 F.2d 542, 544 (6th Cir.1985); see also Brandenburg v. Seidel, 859 F.2d 1179, 1191 (4th Cir.1988) (affirming district court's Burford abstention in depositors' RICO action against officers and directors of failed savings and loan; action for misfeasance of official duties belongs to state receiver, not depositors); cf. Gaff v. Federal Deposit Ins. Corp., 814 F.2d 311, 315, 317-18 (6th Cir.) (shareholder lacks standing to bring direct action under National Bank Act for damages resulting from diminution in value of corporate shares; such damages do not qualify as a direct or personal injury distinct from injury to other shareholders or corporation) (rejecting Harmsen v. Smith, 542 F.2d 496, 502 (9th Cir.1976) (shareholder may sue directly under banking act even though only damage is diminution in value)), vacated in part on other grounds, 828 F.2d 1145, 1150 (6th Cir.1987); Adato v. Kagan, 599 F.2d 1111, 1117 (2d Cir.1979) (individual depositors may sue in their own right under banking laws if they have suffered a wrong that is distinctly theirs and not common to all) 8 See Mid-State Fertilizer Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1335-36 (7th Cir.1989) (guarantors, like creditors, may not recover directly against lender for injury inflicted on firm; they may pursue their own remedies only if they suffer direct injury--injury independent of firm's fate); Ocean Energy II, Inc. v. Alexander & Alexander, Inc., 868 F.2d 740, 744-47 (5th Cir.1989) (plaintiff who was allegedly defrauded into becoming insured of insolvent insurance company has standing to sue insurance agent; plaintiff did not suffer derivatively from fraud perpetrated on corporation; damages cannot be characterized as property of bankruptcy estate); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1100-01 (2d Cir.1988) (creditor who was injured by acts of debtor's officers has standing to bring RICO claim even if debtor has a similar right to recovery; creditor does not seek recovery for injuries suffered by debtor), cert. denied, --- U.S. ----, 109 S.Ct. 1642 & 1643, 104 L.Ed.2d 158 (1989); Adams-Lundy v. Association of Professional Flight Attendants, 844 F.2d 245, 250 (5th Cir.1988) (union members do not have standing under RICO to sue union; assume without deciding that district court was correct in analogizing plaintiffs' claim to shareholder derivative suit); Carter v. Berger, 777 F.2d 1173, 1174-76 (7th Cir.1985) (taxpayers are not proper parties to bring RICO suit against individual who defrauded county; taxpayers' injury derives from county's injury; look to directly injured party--not to wrongdoer--for relief); Warren v. Mfrs. Nat'l Bank, 759 F.2d 542, 545 (6th Cir.1985) (corporate employee who lost job lacks standing to sue bank under RICO on basis of defendants' misrepresentations to corporation; lost employment was incidental to corporation's injury; plaintiff has no more standing as employee than he does as shareholder) 9 Some federal courts have looked to state law to determine whether RICO suits brought by shareholders were derivative. See Leach v. Federal Deposit Ins. Corp., 860 F.2d 1266, 1273-74 (5th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 3186, 105 L.Ed.2d 695 (1989); Crocker v. Federal Deposit Ins. Corp., 826 F.2d 347, 349 (5th Cir.1987), cert. denied, 485 U.S. 905, 108 S.Ct. 1075, 99 L.Ed.2d 235 (1988). Others have applied rules developed in federal antitrust cases. See Warren v. Mfrs. Nat'l Bank, 759 F.2d 542, 544 (6th Cir.1985); cf. Mid-State Fertilizer Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1335 (7th Cir.1989) (borrower's guarantors sue lender; rules established in antitrust cases for identifying proper plaintiffs should be applied to RICO); Carter v. Berger, 777 F.2d 1173, 1175 (7th Cir.1985) (taxpayers sue individual who bribed county employees; antitrust principles should apply in deciding who may sue under RICO). Still other courts have cited without explanation federal case law and general principles of corporate law in deciding the question. See Rylewicz v. Beaton Servs., Ltd., 888 F.2d 1175, 1179 (7th Cir.1989); Flynn v. Merrick, 881 F.2d 446, 450 (7th Cir.1989); Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir.1988); Warner v. Alexander Grant & Co., 828 F.2d 1528, 1530 (11th Cir.1987); Roeder v. Alpha Indus., Inc., 814 F.2d 22, 29-30 (1st Cir.1987); Rand v. Anaconda-Ericsson, Inc., 794 F.2d 843, 849 (2d Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 579, 93 L.Ed.2d 582 (1986) In one case, depositors brought a RICO action against the former officers and directors of a failed savings and loan. Brandenburg v. Seidel, 859 F.2d 1179 (4th Cir.1988). In ruling on the propriety of the district court's decision to abstain under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), the Fourth Circuit cited state law when it concluded that plaintiffs' action for misfeasance of official duties properly belonged to the state receiver rather than to the depositors. Brandenburg, 859 F.2d at 1191. 10 Plaintiffs quote 5 Fla.Jur.2d Banks & Lending Institutions Sec. 89 (1978) ("Officers and agents rendering false reports of the conditions of the bank may be personally liable to persons injured by reason of such reports;" "that an agent is personally liable for his wrongful or tortious acts directly and proximately injuring a third person, and that he cannot relieve himself by showing his agency, applies fully to the officers and agents of banks.") and 8 Fla.Jur.2d Business Relationships Sec. 205 (1978) ("the declaration of an unearned dividend, for the purpose of inducing others to purchase the corporate stock at an exaggerated and inflated or fictitious market value, may constitute fraud for which the directors may be liable to one purchasing such stock."); id. Sec. 339 n. 51 (references to forms for complaints by former shareholders for fraudulent misrepresentations by officer as to financial condition of corporation to acquire plaintiff's stock at below market value). We note that the editors of Fla.Jur.2d cite Fagan, Hinson, and Mallett as authority for some of the textual propositions in Sec. 89. We have stated that these cases are distinguishable from this case. Moreover, as we will discuss, we have no quarrel with plaintiffs' position that under certain circumstances, bank officers may be liable directly to depositors for fraudulent representations. Our response is the same to plaintiffs' citation of 3A Fletcher, supra, Sec. 1184 ("bank directors and other officers may become liable to an ordinary depositor in the bank for damages for false and fraudulent representations made by them whereby the depositors have suffered loss") 11 In its present form, section 93 of the National Bank Act provides: If the directors of any national banking association shall knowingly violate, or knowingly permit any of the officers, agents, or servants of the association to violate any of the provisions of this chapter, all the rights, privileges, and franchises of the association shall be thereby forfeited.... And in cases of such violation, every director who participated in or assented to the same shall be held liable in his personal and individual capacity for all damages which, the association, its shareholders, or any other person, shall have sustained in consequence of such violation. 12 U.S.C. Sec. 93 (1988). 12 See, e.g., Rylewicz, 888 F.2d at 1179 (standing rule that shareholders may not bring individual claims under RICO for diminution in corporation's value prevails in all circuits that have considered the matter); Flynn, 881 F.2d at 449 (decrease in value of shareholders' interest is an injury to corporation; shareholders' injury was indirect result of damage to corporation); Sparling, 864 F.2d at 640 (plaintiffs must show injury distinct from that to other shareholders to have standing under RICO); Leach, 860 F.2d at 1269 (law treats injury to all shareholders as corporate injury and injury not suffered by other shareholders as personal injury; directors' mismanagement resulting in diminution of stock value is corporate injury); Gaff, 814 F.2d at 317 (shareholder lacks standing to bring direct cause of action under federal law when only damage alleged is diminution in corporate value); Roeder, 814 F.2d at 30 (shareholder may not maintain RICO action in his own right for injury to corporation and decline in stock price affecting shareholders generally); Rand, 794 F.2d at 849 (shareholders lack standing to sue under RICO because their injury--decrease in share value--reflects decrease in value of firm and is corporate asset that cannot be brought without impairing rights of prior claimants); Warren, 759 F.2d at 544 (diminution in value of stock is insufficient direct harm to give shareholder standing to sue in his own right under RICO); Wolfe, 539 So.2d at 607 (stockholder may bring suit to redress injury sustained directly by him and which is separate and distinct from that sustained by other shareholders); Alario, 354 So.2d at 926 (if gravamen of complaint is injury to corporation or to shareholders generally, then claim belongs to corporation); Citizens Nat'l Bank, 175 So.2d at 56 (same) 13 Plaintiffs contend that the loss they sustained was not shared by all other depositors; only those whose deposits were not fully covered by the FSLIC insurance limit suffered when New Sunrise failed. We are not persuaded that this factor distinguishes plaintiffs' claims. All prospective depositors had access to the same "publicly disseminated" information regarding the management and financial condition of Old Sunrise. Plaintiffs do not allege that special assurances were given to those whose accounts exceeded the insurance limit and or that they held a special interest in their deposit distinct from the interest of the fully insured depositors. See Wolfe, 539 So.2d at 607-08. Although only the uninsured depositors suffered a financial loss when New Sunrise failed, all Old Sunrise depositors were affected by the misconduct that brought about the insolvency. Only the actions of FSLIC prevented the fully insured depositors from standing in plaintiffs' shoes. Moreover, plaintiffs have received and should continue to receive distributions as the receiver liquidates the institutions' assets 14 Plaintiffs cite Coit Independence Joint Venture v. Federal Savings & Loan Insurance Corp., 489 U.S. 561, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989), contending that the Supreme Court has rejected a broad reading of 12 U.S.C. Sec. 1464(d)(11) (1988), amended by FIRREA, Pub.L. No. 101-73, Sec. 301, 103 Stat. 183 (1989), the statutory authority under which the receivership regulations were promulgated. The issue before the Court in Coit was "whether FSLIC has exclusive authority to adjudicate the validity of creditors' state law claims against failed savings and loan associations under a FSLIC receivership." Coit, 109 S.Ct. at 1366 (emphasis added). The Court held that "Congress has not granted FSLIC the power to adjudicate creditors' claims against the assets of a failed savings and loan association under FSLIC receivership, and that creditors are entitled to de novo consideration of their claims in court." Id. at 1376. Coit did not address either the validity of the priority scheme established by the receivership regulations or FDIC's power to sue third parties to recover the institution's assets for the benefit of all creditors and depositors. As noted by FDIC in its brief: "Since the validity of the Popkins' claims [was] never disputed, Coit has no bearing on this case." FDIC Brief at 15 n. 23

339 Pa. Superior Ct. 373 (1985) 489 A.2d 207 COMMONWEALTH of Pennsylvania, Appellee, v. Brian SANDERS, Appellant. Supreme Court of Pennsylvania. Argued May 10, 1984. Filed February 15, 1985. *377 Larry J. Folmar, Assistant Public Defender, Norristown, for appellant. J. William Ditter, III, Assistant District Attorney, Norristown, for Commonwealth, appellee. Before WICKERSHAM, WIEAND and HOFFMAN, JJ. WIEAND, Judge: Brian Sanders, a juvenile, having been certified for trial as an adult, was tried without jury and found guilty of rape,[1] indecent assault,[2] indecent exposure,[3] unlawful restraint,[4] recklessly endangering another person,[5] simple assault,[6] aggravated assault,[7] and escape.[8] Post-verdict motions were denied. At sentencing, the court concluded that *378 the assault convictions and the conviction for indecent exposure had merged into the conviction for rape. Consecutive sentences of imprisonment totalling 17 to 34 years were imposed for rape, unlawful restraint, recklessly endangering another person and escape. On appeal, Sanders argues (1) that the evidence was insufficient to sustain the conviction for recklessly endangering another person; (2) that several evidentiary rulings by the trial court were erroneous; (3) that the sentence was excessive; and (4) that reckless endangerment merged with aggravated assault and rape for sentencing purposes. He also argues that the Juvenile Court failed to properly certify him for trial as an adult. In determining whether evidence is sufficient to sustain a conviction, we view the evidence in a light most favorable to the Commonwealth and, drawing therefrom all proper inferences which could reasonably have been drawn, determine whether the evidence was sufficient to prove all elements of the crime beyond a reasonable doubt. Commonwealth v. Miller, 327 Pa.Super. 154, 156-57, 475 A.2d 145, 146 (1984); Commonwealth v. Leatherbury, 322 Pa.Super. 222, 225, 469 A.2d 263, 265 (1983). The evidence in this case showed that appellant, at age 15, had been involuntarily committed to Norristown State Hospital in Montgomery County. On the evening of September 30, 1981, he was escorted to a laundry facility by Polly Holland, a psychiatric security aide trainee. Upon their return, appellant managed to grab Holland around the neck. He then dragged her backwards into a bathroom and later forced her into a day room in a remote part of the hospital. He held her neck so tightly that she was unable to breathe, and she sustained injury which required physical therapy for two months and the wearing of a neck brace for six months. Appellant took Holland's keys from her, locked the doors to the day room, and ordered Holland to undress. With his hand on her neck, appellant threatened to break Holland's neck if she didn't follow his instructions. He then forced her to the floor and engaged in sexual intercourse *379 with her. Thereafter, he locked his victim in the room and left. Appellant escaped from the hospital by using a picnic table to assist him in climbing over the wall. Ms. Holland was able to use a pay phone in the day room to call for assistance, but she was too late to prevent appellant's escape. He was apprehended in Philadelphia on November 20, 1981. A person commits the misdemeanor of recklessly endangering another person "if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S. § 2705. This section is, in effect, an ad hoc reckless conduct statute. Toll, Pennsylvania Crimes Code Annotated § 2705 (1974). A sine qua non to a conviction is a conscious disregard of a known risk of death or great bodily harm to another person. Commonwealth v. Henck, 329 Pa.Super. 275, 279, 478 A.2d 465, 468 (1984). In this case, the trial court could properly find from the manner in which appellant grabbed Polly Holland around the neck and pulled her backwards into a room that he consciously disregarded a known risk of serious bodily harm to her person. While the victim was testifying on direct examination, she was asked, "Did you engage in this act of sexual intercourse willingly?" (N.T. 44). A general objection was made to the question and overruled by the trial court. Appellant contends that this was error. Since the objection was general, the court's ruling will be upheld if the evidence was competent for any purpose. Woldow v. Dever, 374 Pa. 370, 377, 97 A.2d 777, 781 (1953); Commonwealth v. Marshall, 287 Pa. 512, 521, 135 A. 301, 304 (1926). The question asked in the instant case was intended to ascertain from the witness whether she had consented to have intercourse with appellant and had willingly engaged therein without forcible compulsion. This evidence was relevant and was properly received. Appellant argues also that the trial court erred when it overruled a specific objection on the grounds of *380 repetitiveness to a question asked of the victim to determine the duration of vaginal intercourse. In both instances, the witness answered that she did not know. Whether to exclude repetitive testimony is a matter within the discretion of the trial court. Commonwealth v. Simmons, 482 Pa. 496, 510, 394 A.2d 431, 438 (1978). The trial judge in this instance committed no abuse of discretion. Moreover, appellant was not prejudiced thereby in any way. The Commonwealth offered into evidence a photograph of a picnic table leaning against the wall of the hospital over which appellant allegedly had escaped. There was testimony that the photograph depicted the table as it had appeared on the night of the escape. The evidence also disclosed, however, that the photograph had been taken three weeks before trial and almost ten months after the alleged escape. The admission of photographs is a matter largely within the discretion of the trial judge. Commonwealth v. Fields, 317 Pa.Super. 387, 402, 464 A.2d 375, 383 (1983). "A photograph must be verified either by the testimony of the person who took it or by another person with sufficient knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time of the [event], or if there is a difference or change, the difference or change is specifically pointed out and is readily capable of being clearly understood and appreciated by the [factfinder]." Tolbert v. Gillette, 438 Pa. 63, 66, 260 A.2d 463, 465 (1970) (emphasis deleted), quoting Semet v. Andorra Nurseries, Inc., 421 Pa. 484, 488-489, 219 A.2d 357, 360 (1966). See also: Commonwealth v. Braithwaite, 253 Pa.Super. 447, 452-453, 385 A.2d 423, 426 (1978). The trial judge, who was also the trier of facts, was aware that the photograph had been staged three weeks prior to trial in order to show the manner in which the picnic table had been used to gain access to the top of the wall. The court did not abuse its discretion in receiving this evidence. It was relevant to explain how appellant was able to escape over the wall of the hospital. *381 The imposition of a proper sentence is a matter which is vested in the sound discretion of the trial court. Commonwealth v. Muller, 334 Pa.Super. 228, 236, 482 A.2d 1307, 1311 (1984). "`[U]nless the sentence exceeds the statutory maximum or is so excessive as to constitute a manifest abuse of discretion, the trial court's determination will not be disturbed.'" Commonwealth v. Ignatavich, 333 Pa.Super. 617, 625, 482 A.2d 1044, 1048 (1984), quoting Commonwealth v. Scarborough, 313 Pa.Super. 521, 533, 460 A.2d 310, 316 (1983). A sentencing court must examine the circumstance of the crime and the individual background of the defendant and in so doing is entitled to consider intervening criminal activities and convictions of the defendant. Commonwealth v. Johnson, 333 Pa.Super. 42, 45, 481 A.2d 1212, 1214 (1984). The sentences imposed upon appellant were within the permissible ranges established by the legislature. The sentencing court carefully considered appellant's personal history, which included a lengthy juvenile record of delinquency adjudications, many of them involving assaultive, sex-related offenses. See: N.T. December 14, 1982, pgs. 19-22. On June 23, 1982, appellant was also convicted in Philadelphia of attempted rape and involuntary deviate sexual intercourse. Rehabilitation in mental institutions had been tried unsuccessfully, a fact evidenced by the instant offenses. The sentence imposed by the court was not manifestly excessive or an abuse of discretion in view of appellant's history. Appellant contends, however, that for sentencing purposes the offense of recklessly endangering merged in the crime of rape. We are constrained to agree. "Analysis of duplicitous sentence questions has traditionally revolved around the concept of injury to the sovereign, in this case the Commonwealth." Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976). For crimes to merge, one must "necessarily involve" the other. Commonwealth v. Miranda, 296 Pa.Super. 441, 461, 442 A.2d 1133, 1143 *382 (1982). In Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), the Supreme Court said: The true test of whether one criminal offense has merged in another . . . is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. The `same transaction' test is valid only when the `transaction' means a single act. When the `transaction' consists of two or more criminal acts, the fact that the two acts are "successive" does not require the conclusion that they have merged. Two crimes may be successive steps in one crime and therefore merge, . . . or they may be two distinct crimes which do not merge. Id., 343 Pa. at 104-105, 21 A.2d at 921 (emphasis in original). "Following this test, it has been noted that for two crimes to merge `they must be part of the same act." Commonwealth v. Miranda, supra 296 Pa.Super. at 461, 442 A.2d at 1143. See also: Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 8, 426 A.2d 674, 677 (1981). They must also constitute the "same offense" as contemplated by the legislature. Commonwealth v. Frisbie, 506 Pa. 461, 465-466, 485 A.2d 1098, 1100 (1984). The trial court in this case found that the aggravated assault committed by appellant had been a necessary part of the crime of rape and, therefore, that it had merged in the more serious offense. As we have seen, however, the crime of recklessly endangering the victim was merely a part of the crime of aggravated assault which, the court found, constituted the evidence of forcible compulsion necessary to prove the crime of rape. Under these circumstances, it must follow that the crime of reckless endangerment also merged in the crime of rape for sentencing purposes, for rape, aggravated assault and reckless endangerment were all part of the "same offense." We reject the suggestion that a separate offense of recklessly endangering another person occurred when Polly Holland, a claustrophobic, was locked in a room while appellant made his escape. The evidence was insufficient to *383 show that a second offense of reckless endangerment occurred at this point in time. There was no evidence that she had been endangered in any way while locked in the day room. The room was not a small room; it had several doors and a telephone; and even Polly Holland expressed no fear with respect to this room. The only fear which she expressed during the trial was a fear of being locked in the bathroom. This did not occur. In view of the findings of the trial court, therefore, we are constrained to hold that for sentencing purposes the offense of reckless endangerment merged in the conviction for rape. Finally, appellant argues that the Juvenile Court erred in certifying the charges against him for trial in adult court. He relies on the rule which holds that a criminal court is without authority to try and sentence a juvenile unless the juvenile has been certified for trial as an adult in compliance with the Juvenile Act of July 9, 1976, 42 Pa.C.S. § 6301 et seq. See: Commonwealth v. Greiner, 479 Pa. 364, 372, 388 A.2d 698, 702 (1978); Commonwealth v. Deppeller, 314 Pa.Super. 368, 375, 460 A.2d 1184, 1188 (1983). This issue of certification is jurisdictional and therefore not waivable. Commonwealth v. Moyer, 497 Pa. 643, 646, 444 A.2d 101, 102 (1982). In order to comply with the Juvenile Act, a certification court need not make a formal statement or conventional findings of fact, but the statement must be sufficient to demonstrate that the question of certification has received the careful consideration of the juvenile court. "[I]t must set forth the basis for the order with sufficient specificity to permit meaningful review." Commonwealth v. Broome, 317 Pa.Super. 1, 3, 463 A.2d 1053, 1053 (1983), quoting Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84, 97 (1966) and Commonwealth v. Harrod, 260 Pa.Super. 312, 316, 394 A.2d 567, 570 (1978). See also: Commonwealth v. Deppeller, supra 314 Pa.Super. at 374, *384 460 A.2d at 1187; Commonwealth v. Stokes, 279 Pa.Super. 361, 367, 421 A.2d 240, 243 (1980). In this case, the certification order of the Juvenile Court contained no reasons for certification. At the conclusion of the certification hearing, the court stated: This 25th day of February 1982, this Court having previously determined that a prima facia [sic] case had been established, this Court now determines, based upon the reports and testimony presented, that the requirements for Certification required under the Juvenile Act have been amply fulfilled and therefore determines that this young man be transferred to the criminal division of the Court of Common Pleas of Montgomery for the prosecution of this offense. N.T. February 25, 1982 at 44. No additional reasons or findings were stated by the court. This was insufficient under the decided cases to permit meaningful appellate review. In Commonwealth v. Deppeller, supra, the certification court stated on the record that "[t]here are reasons to believe that the child is not amenable to treatment, supervision, or rehabilitation as a juvenile through available facilities; that the child is not committable to an institution for the mentally ill, or mentally retarded; that the interests of the community require that the child be placed under legal restraint or discipline. . . ." Id., 314 Pa.Super. at 372, 460 A.2d at 1186. This statement, our Court held, did not constitute adequate "reasons" for certification; and, therefore, a new certification hearing was ordered. Id., 314 Pa.Superior Ct. at 374, 460 A.2d at 1187. Incorporations by reference to juvenile files and other documentary evidence are insufficient to constitute an adequate statement of reasons for certification. Commonwealth v. Broome, supra 317 Pa.Super. at 3, 463 A.2d at 1054. The order in the *385 instant case was more sparse and conclusory than in either Deppeller or Broome.[9] Therefore, we vacate the judgment of sentence and remand for further consideration by the Juvenile Court.[10] If appellant is again certified to adult criminal court, a judgment of sentence may be reimposed consistently with the foregoing opinion. If appellant is not certified to criminal court, the case shall remain in the Juvenile Court for disposition. Jurisdiction is not retained. NOTES [1] 18 Pa.C.S. § 3121. [2] 18 Pa.C.S. § 3126. [3] 18 Pa.C.S. § 3127. [4] 18 Pa.C.S. § 2903. [5] 18 Pa.C.S. § 2705. [6] 18 Pa.C.S. § 2701. [7] 18 Pa.C.S. § 2702. [8] 18 Pa.C.S. § 5121. [9] Appellant argued on appeal that he was improperly denied a Pa.R. Crim.P. 305 discovery motion prior to the December 11 hearing. However, the rules of criminal procedure do not apply to proceedings in Juvenile Court (Pa.R.Crim.P. 1(a)). Moreover, pre-trial discovery is generally not available to an accused at the preliminary hearing stage of criminal proceedings. Commonwealth v. Nacrelli, 280 Pa.Super. 338, 342-343, 421 A.2d 752, 754 (1980). In any event, since there is no longer any question that a prima facie case existed against appellant, it cannot be said that he was prejudiced by a denial of discovery prior to the certification hearing. [10] The certification proceedings in this case were bifurcated by the Juvenile Court. On December 11, 1981, the court concluded, after hearing, that a prima facie case existed against appellant, a prerequisite to certification. See: 42 Pa.C.S. § 6355(a)(4)(i). The accuracy of this conclusion has been confirmed by the finding of guilt by the criminal court. On remand, the Juvenile Court need not redetermine whether a prima facie case exists but may proceed directly to consider whether or not appellant should be tried as an adult. See: 42 Pa.C.S. § 6355(a)(4)(iii).

257 S.C. 443 (1972) 186 S.E.2d 247 NEW FOUNDATION BAPTIST CHURCH, Respondent, v. Otis DAVIS, Appellant. 19352 Supreme Court of South Carolina. January 12, 1972. *444 William I. Bouton, Esq., of Greenville, for Appellant. *445 Messrs. C. Ben Bowen and George F. Townes, of Abrams, Bowen and Townes, Greenville, for Respondent. January 12, 1972. BUSSEY, Justice: In this action plaintiff-respondent alleged that defendant-appellant had negligently constructed an addition to its existing church sanctuary which resulted in the sanctuary floor collapsing during a funeral service. Both actual and punitive damages were sought. Defendant answered interposing a general denial; alleging that the work was properly done; that more than three years passed before the floor collapsed, and that such was due to heavy use and overloading on the occasion of the funeral. The verdict of the jury was for actual damages in the amount of $6,500.00. *446 Appellant first asserts that the verdict is not responsive to the evidence, contending that respondent failed to prove actual damages to that extent. A detailed review of the evidence as to damages would, we think, serve no useful purpose. Viewing such in the light most favorable to the respondent as we are required to do, we conclude that there was sufficient evidence to support the verdict, even without resort to what is commonly referred to as the "collateral source rule". When that rule is resorted to and applied to the facts of this case it would appear that the verdict was, in fact, conservative rather than excessive. There was evidence as to damage to pews, carpet, space heater, and loss of use of the building for a number of weeks, in addition to the cost of repairs to the building itself. A commercial contractor who regularly builds and repairs churches testified that the minimum cost of repair to the building would be $4,746.00, and the reasonableness and accuracy of such figure was uncontradicted by any evidence in the case. The repairs were actually done, however, by one Craig, a contractor who was a member of the church for some eighteen years and a trustee thereof, he having waived any profit and donated his time. He actually completed repairs at a cost of $3,000.00 to the church and testified that he did so not to make money and without any profit to himself, simply to get the church back on its feet. It is only by using this lesser figure of $3,000.00 as the measure of damages to the building that the appellant arrives at the conclusion that the verdict was excessive. The appellant would, in effect, have the generosity of Craig inure to his benefit, rather than to the church which Craig intended as the beneficiary thereof. Briefly stated, the "collateral source rule" is that which holds that total or partial compensation for injury which an injured party receives from a collateral source, wholly independent of the wrongdoer, does not operate to lessen the damages recoverable from the wrongdoer. Such doctrine has been applied by this Court in quite a variety of factual situations. Jeffords v. Florence County, *447 165 S.C. 15, 162 S.E. 574, 81 A.L.R. 313; Joiner v. Fort, 226 S.C. 249, 84 S.E. (2d) 719; Scott v. Southern Ry. Co., 231 S.C. 28, 97 S.E. (2d) 73; Powers v. Temple, 250 S.C. 149, 156 S.E. (2d) 759; Young v. Warr, 252 S.C. 179, 165 S.E. (2d) 797. While we regard the verdict as adequately supported by the evidence, without resort to the collateral source rule, the facts of this case are clearly one for the application of that rule, and when such is applied, the evidence would clearly warrant a verdict in excess of that actually returned by the jury. Appellant next asserts that the court erred in submitting the issue of punitive damages to the jury. It is well established that where, as here, no punitive damages were awarded by the jury the question of whether or not the trial judge properly submitted such issue to the jury becomes moot. Even if there were error, it was harmless error which would not justify reversal. Bradley v. Keller, 250 S.C. 143, 156 S.E. (2d) 638. See the long line of cases collected in West's South Carolina Digest, Appeal and Error, Key No. 1068(4), none of which we are even asked to overrule. Finally, appellant asserts that the court erred in refusing to charge the jury concerning the lapse of time "from the work performed to the incident sued on", as requested by appellant's attorney. At the conclusion of the judge's charge, appellant's then attorney (not his present counsel) had the following to say: "Your Honor, I feel like something ought to be charged in the way of time. From the time the work was performed until the time this occurred." Precisely what counsel wished the court to charge appeared neither then nor now. His Honor's response indicated that he considered such to be a request for a charge on the facts, which he declined, and the matter was not further pursued by counsel. Even here appellant's exception concedes *448 that no request to charge was properly framed and presented to the court by the trial attorney. Moreover, neither the pleadings nor the evidence in the record raise or suggest any issue which properly called for a charge of any proposition of law pertinent to the length of time elapsing between the construction and the collapse. We conclude that all exceptions are without merit and the judgment of the lower court is, accordingly, Affirmed. MOSS, C.J., and LEWIS, BRAILSFORD and LITTLEJOHN, JJ., concur.

Case: 19-40465 Document: 00515440633 Page: 1 Date Filed: 06/04/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-40465 FILED June 4, 2020 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. HEON JONG YOO, also known as Hank Yoo, Defendant - Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:18-CR-16-1 Before DAVIS, GRAVES, and DUNCAN, Circuit Judges. PER CURIAM:* Heon Jong Yoo was convicted on eight counts under the Gun Control Act: seven counts of making a false statement to a federally licensed gun dealer, in violation of 18 U.S.C. § 924(a)(1)(A), and one count of possession of a firearm by a prohibited person, in violation of § 922(g)(4). Because the evidence was sufficient to establish each element of § 924(a)(1)(A), we AFFIRM Yoo’s conviction as to Counts 1-7. But because Yoo was not “committed to a mental * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 19-40465 Document: 00515440633 Page: 2 Date Filed: 06/04/2020 No. 19-40465 institution” within the meaning of § 922(g)(4), we REVERSE the judgment of conviction as to Count 8. I. BACKGROUND Heon Jong Yoo was involuntarily committed to treatment under New Jersey’s temporary, ex parte procedure twice. First, in April 2013, Yoo agreed to be transported by the Rutgers University Police Department (RUPD) to a hospital for evaluation. There, a screener, a physician, and a psychiatrist determined that Yoo met the criteria for mental illness, was a danger to himself or others, and should be involuntarily committed to a mental institution. Based on their certifications, a New Jersey superior court judge found probable cause to believe that Yoo was in need of involuntary commitment. The judge issued a “Temporary Order for the Involuntary Commitment of an Adult,” ordering that Yoo be committed to a hospital “pending a court hearing” in about two weeks. Yoo was discharged from the hospital four days before the scheduled hearing. RUPD took Yoo to a hospital for another evaluation in September 2015. Once again, a screener, physician, and psychiatrist determined that Yoo met the criteria for mental illness and that he should be committed. And, once again, a New Jersey superior court judge ordered that Yoo be temporarily committed “pending a court hearing” 12 days later. Yoo was discharged six days before the scheduled hearing. A few months later, in January 2016, Yoo tried to buy a gun. But because the National Instant Criminal Background Check System (NICS) revealed that Yoo had been “adjudicated as mental defective/committed to a mental institution,” his purchase was denied. The FBI explained, upon Yoo’s inquiry, that he was a “prohibited person” under one of the 10 possible categories listed in §§ 921 and 922, but did not specify which one applied. 2  Case: 19-40465 Document: 00515440633 Page: 3 Date Filed: 06/04/2020 No. 19-40465 Yoo kept trying (often successfully) to buy firearms from 2016-2017. Each time, he had to fill out the Form 4473 issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). In response to a question on that form, Yoo stated that he was a citizen of the United States seven different times. He correctly identified his country of citizenship as South Korea—not the United States—twice. Ultimately, Yoo was convicted of eight crimes under the Gun Control Act: seven counts of making a false statement to a federally licensed firearms dealer, in violation of § 924(a)(1)(A) (Counts 1-7), and one count of possession of a firearm by a prohibited person, in violation of § 922(g)(4) (Count 8). Yoo timely appeals his conviction. II. § 924(a)(1)(A) To establish a violation of § 924(a)(1)(A), the Government must prove that: “(1) the dealer was a federally licensed firearms dealer at the time the events occurred; (2) the defendant made a false statement or representation in a record that the licensed firearms dealer was required by federal law to maintain; and (3) the defendant made the false statement with knowledge of its falsity.” 1 A. First, Yoo argues the Government failed to establish that the gun dealers named in Counts 1-7 were federally licensed. Because this element is jurisdictional, 2 we must determine whether the evidence was sufficient to establish it. 3 1United States v. Pena, 541 F. App’x 453, 455 (5th Cir. 2013) (quoting United States v. Abramski, 706 F.3d 307, 316-17 (4th Cir. 2013), aff’d 573 U.S. 169 (2014)). 2 United States v. Reid, 595 F. App’x 280, 283 (5th Cir. 2014). 3 United States v. Schultz, 17 F.3d 723, 725 (5th Cir. 1994). 3  Case: 19-40465 Document: 00515440633 Page: 4 Date Filed: 06/04/2020 No. 19-40465 The Government need not produce each dealer’s federal license. 4 For example, we have held that an ATF agent’s testimony that he “knew that the [dealer] was a licensed firearms dealer,” 5 and an employee’s testimony that the dealer “had a valid license during the relevant period” 6 was enough. Here, there was sufficient evidence that Superior Firearms, First Cash Pawn, Academy Sports, and Cash America Pawn were federal firearms licensees (FFLs) at the time of Yoo’s offenses. The Form 4473 used by the dealers implicated in Counts 1-5 states on its face that “This form should only be used for sales of a firearm where the seller is licensed under 18 U.S.C. § 923.” Moreover, the jury heard testimony from employees of each dealer about its status as an FFL. 7 B. Next, Yoo argues the evidence was insufficient to prove that he made a false statement by selecting “USA” in response to the Form 4473’s “country of citizenship” question. An October 2016 revised version of the Form 4473 states that “Nationals of the United States” may select “USA.” Yoo argues that the Government failed to prove he wasn’t a U.S. national. This argument only applies to Counts 6 and 7. The dealers associated with Counts 1-5 used the Form 4473 version revised in April 2012—and that version did not allow U.S. nationals to identify as U.S. citizens. 4 United States v. Frazier, 547 F.2d 272, 273 (5th Cir. 1977). 5 Id. 6 United States v. Ballard, 18 F.3d 935 (5th Cir. 1994). 7 The owner of Superior Firearms testified that “[w]e are a federal firearms licensed gun dealer,” that he has “own[ed] the FFL” for nine years, and that, “as an FFL,” Superior Firearms is required to keep each Form 4473. The jury heard testimony that only federally licensed dealers can submit the Form 4473 to the ATF for a background check, and the owner of Superior Firearms testified that he “got an immediate denial from the ATF.” Employees testified that First Cash Pawn (involved in Counts 2, 3, and 4) is an FFL. Academy Sports employees (Count 5) also testified that it is in FFL. Likewise, employees of Cash America Pawn (Counts 6 and 7) testified that it is an FFL and that it is required to keep each Form 4473. 4  Case: 19-40465 Document: 00515440633 Page: 5 Date Filed: 06/04/2020 No. 19-40465 The Government produced evidence that a U.S. national is a person “who [was] born in the territories of the United States, specifically, American Samoa and the Commonwealth of Northern Mariana Islands.” 8 Yoo argues now, as he did at trial, that a definition of “national” from the Immigration and Nationality Act should apply. Under that definition, a national is “(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” 9 Yoo’s argument fails under either definition. In Omolo v. Gonzales, we considered both definitions and held that “a person may become a national only by birth or by completing the naturalization process.” 10 Yoo’s administrative file, which was introduced into evidence, showed that he had not completed the naturalization process. Accordingly, the evidence was sufficient for the jury to find that Yoo was not a national of the United States. C. Recall that under § 924(a)(1)(A), it is a crime to make a false statement “with respect to the information required by this chapter to be kept in the records” of a federally licensed gun dealer. Yoo argues that an applicant’s country of citizenship is not “information required by this chapter.” Yoo is incorrect. “This chapter” means chapter 44 of title 18 of the United States Code. A statute within chapter 44 directs gun dealers to “maintain such records . . . as the Attorney General may by regulations prescribe.” 11 “Because of that statutory section, the information that the Attorney General’s regulations compel a dealer to keep is information ‘required by this chapter.’” 12 One of 8 This definition derives from 8 U.S.C. § 1408. 9 8 U.S.C. § 1101(a)(22). 10 452 F.3d 404, 409 (5th Cir. 2006). 11 18 U.S.C. § 923(g)(1)(A). 12 Abramski v. United States, 573 U.S. 169, 192 (2014). 5  Case: 19-40465 Document: 00515440633 Page: 6 Date Filed: 06/04/2020 No. 19-40465 those regulations instructs dealers to “obtain a 4473 from the transferee showing,” among other things, “the transferee’s country of citizenship[.]” 13 Moreover, since the regulations require that licensed dealers retain each Form 4473, “a false answer on that form . . . pertains to information a dealer is statutorily required to maintain.” 14 For these reasons, Yoo’s convictions on Counts 1-7 of the superseding indictment are AFFIRMED. III. § 922(g)(4) Under § 922(g)(4), it is a crime for any person “who has been adjudicated as a mental defective or who has been committed to a mental institution” to “possess[,] in or affecting commerce, any firearm or ammunition.” 15 Yoo argues he was not “committed” to a mental institution as a matter of law. 16 Whether Yoo has been “committed” within the meaning of § 922(g)(4) is a question of federal law, but courts look to state commitment law for guidance. 17 In New Jersey, an action for commitment to treatment can be commenced by a screening service. 18 First, a mental health screener must determine whether the person meets the criteria for “mental illness” and whether they pose a threat to themselves, others, or property. If the screener finds that the person meets that standard and that there are no less restrictive alternatives, a “screening document” is prepared. Next, a physician evaluates the person and issues a “screening certificate” if it finds the same criteria 13 27 C.F.R. § 478.124(c)(1). 14 Abramski, 573 U.S. at 192. 15 18 U.S.C. § 922(g)(4). 16 Section 922(g)(4) does not define “committed,” but ATF regulations provide the following guidance: “A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority . . . The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.” 27 C.F.R. § 478.11. 17 United States v. Giardina, 861 F.2d 1334, 1335 (5th Cir. 1988). 18 N.J. Ct. R. § 4:74-7. 6  Case: 19-40465 Document: 00515440633 Page: 7 Date Filed: 06/04/2020 No. 19-40465 satisfied. 19 Finally, a psychiatrist evaluates the person under the same standard, and if she agrees, issues a “clinical certificate.” The county adjuster presents the screening document, screening certificate, and clinical certificate to a New Jersey superior court judge, who “shall immediately review them in order to determine whether there is probable cause to believe that the person is in need of involuntary commitment to treatment.” 20 If the court finds probable cause based on those documents, “it shall issue a temporary order authorizing the assignment of the person to an outpatient treatment provider or the admission or retention of the person in the custody of the facility . . . pending a final hearing.” 21 The final commitment hearing must take place within 20 days of the order of temporary commitment. At the final hearing, each patient has the right to be present, to be represented by counsel, to present evidence, and to cross-examine witnesses. 22 After that hearing, the court shall enter a final order of commitment if it finds “by clear and convincing evidence presented at the hearing that the patient is in need of continued involuntary commitment to treatment.” 23 Yoo went through the screening process twice. Both times, a New Jersey superior court judge found probable cause, based on the certificates completed by a screener, physician, and psychiatrist, to issue an order of temporary 19 At this point, the person may be involuntarily admitted to a psychiatric unit, where they must be evaluated by a psychiatrist within 72 hours. 20 N.J.S.A. § 30:4-27.10(f). 21 N.J.S.A. § 30:4-27.10(g); see also N.J. Ct. R. 4:74-7(c) (“The court may enter an order of temporary commitment to treatment . . . pending final hearing if it finds probable cause, based on the documents filed . . . to believe that the person is in need of involuntary commitment to treatment”). 22 N.J.S.A. § 30:4-27.14. 23 N.J. Ct. R. § 4:74-7(f)(1); see also § 4:74-7(e) (“No final order of commitment to treatment shall be entered except upon hearing conducted in accordance with the provisions of these rules”). 7  Case: 19-40465 Document: 00515440633 Page: 8 Date Filed: 06/04/2020 No. 19-40465 commitment. But both times, Yoo was discharged before the final commitment hearing. So, the question narrows to whether New Jersey’s ex parte procedure for temporary orders of involuntary commitment constitutes “commitment to a mental institution” under § 922(g)(4). The only federal court to consider the issue (the District of Maine) said yes. 24 At the time, the First Circuit (where the district court was located) had held that temporary involuntary commitment without an adversarial hearing is “commitment” under the statute. 25 The First Circuit overturned that line of cases in United States v. Rehlander. 26 There, both defendants had been hospitalized under Maine’s ex parte, emergency procedure, 27 but were never committed under Maine’s full- scale, adversarial procedure. 28 The court reasoned that, after District of Columbia v. Heller, 29 the right to possess a firearm “is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process.” 30 And, in enacting § 922, “nothing suggests that Congress had in mind temporary hospitalizations supported only by ex parte procedures.” 31 Accordingly, the court concluded that “section 922 should not be 24 United States v. Miller, 366 F. Supp. 2d 128 (D. Me. 2005). 25 See United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir. 1998); United States v. Holt, 464 F.3d 101, 105-6 (1st Cir. 2006). 26 666 F.3d 45 (1st Cir. 2012). 27 This procedure required (1) an application by a health officer or law enforcement officer, (2) a medical practitioner’s certificate, and (3) endorsement by a judge that the application and certificate are “regular and in accordance with the law.” Me. Rev. Stat. tit. 34-B, § 3863. 28 The formal commitment procedure requires an adversary hearing, counsel for the patient and an opportunity to testify and to call and cross-examine witnesses. The court must determine whether there is clear and convincing evidence that the patient is mentally ill and poses a likelihood of serious harm, and whether better alternative arrangements exist. 29 554 U.S. 570 (2008) (announcing an individual constitutional right to possess a firearm). 30 Rehlander, 666 F.3d at 48. 31 Id. at 50. 8  Case: 19-40465 Document: 00515440633 Page: 9 Date Filed: 06/04/2020 No. 19-40465 read to encompass a temporary hospitalization attended only by [Maine’s] ex parte procedures[.]” 32 Similarly, we held that Louisiana’s (slightly different) ex parte procedure for temporary involuntary hospitalization did not constitute “commitment” in United States v. Giardina. 33 At the time, Louisiana law allowed a “mentally ill person” to be involuntarily admitted for “observation, diagnosis, and treatment” for up to 15 days under an emergency certificate issued by a physician. 34 A court order was required to detain the person any longer. Like Yoo, Giardina was discharged before those 15 days were up. We concluded that “[t]emporary, emergency detentions for treatment of mental disorders or difficulties, which do not lead to formal commitments under state law, do not constitute the commitment envisioned by 18 U.S.C. § 922.” 35 We conclude that Yoo’s temporary hospitalization based on an ex parte order, signed by a judge without a hearing, does not constitute “commitment to a mental institution” within the meaning of § 922(g)(4). 36 Accordingly, the judgment of conviction as to Count 8 is REVERSED. IV. CONCLUSION For these reasons, Yoo’s conviction as to Counts 1-7 are AFFIRMED, and his conviction as to Count 8 is REVERSED. 32 Id. at 49. 33 861 F.2d 1334 (5th Cir. 1988). 34 Id. at 1336. 35 Id. at 1337. 36 See also United States v. McIlwain, 772 F.3d 688, 697 (11th Cir. 2014) (finding “commitment” where defendant “received a formal hearing, was represented by an attorney, and the state probate court heard sworn testimony and made substantive findings of fact that it included in its formal order of commitment”); United States v. Hansel, 474 F.2d 1120, 1123 (8th Cir. 1973) (“There is nothing in [§ 922(g)(4)] which indicates an intent to prohibit the possession of firearms by persons who had been hospitalized for observation and examination, where they were found not to be mentally ill”). 9